Sharma case poses legal
questions
THE review judgement by the
Supreme Court in the case of Satish Sharma setting aside
the earlier judgement of the Supreme Court imposing a
penalty of Rs 50 lakh on him raises important
constitutional and legal questions.
Earlier Bench had
recorded a finding that all those allotments made by Mr
Sharma, were wholly arbitrary, nepotistic and were
motivated by extraneous considerations. The Review Court
also recorded its own findings in a more devastating form
as follows:
.....the conduct
of the petitioner in making allotment of petrol outlets
was atrocious, specially those made in favour of the
members, Oil Selection Board, or their sons, etc.. and
reflects a wanton exercise of power by the petitioner.
This court has already used judicial vituperative in
respect of such allotments and we need not strain our
vocabulary any further in that regard...
Notwithstanding these
strong observations the court has surprisingly gone ahead
to review the earlier judgement. This reminded me of my
favourite detective novelist Agatha Christie, whose style
always had the unsuspecting end. In one of her novels
written in first person, narrator gets your attention
fixed on one or other characters who you feel is the
murderer and yet when you reach the end, you find that
the narrator himself is the murderer.
In similar vein I had
assumed that Sharma could not escape the wrath of the
Review Court which had found his action actrocious, but
again like the detective novel, I was mistaken because it
turned out that Sharma was the poor victim and the guilty
were the erstwhile judicial colleagues.
Even though the court
accepted the principle that in action for tort, exemplary
damages can be awarded when the conduct of government or
its officers is found to be arbitrary, it accepted the
review by laying down the principle which if allowed to
prevail would damage the whole fabric on which a
representative democracy is based, namely its finding
that Sharma did not on becoming a minister assume
the role of a trustee in the real sense nor does a
trust come into existence in respect of
government properties.
The principle of
ministers responsibility, for any maladministration
is well established.
According to Dicey, acts
of ministers are subject to the rule of law. Thus a
minister is liable to criminal or civil proceedings in a
court of law.
The Supreme Court of
Canada (1959) awarded damages against the Prime Minister
of Quebec personally for cancellation of a restaurant
owners liquor license, on the ground that the
cancellation was an abuse of discretion.
Another worrisome
finding is the proposition of law that as Common
Cause, (an NGO of impeccable integrity) had not
applied for a petrol pump, it could not have obtained
damages for itself and therefore no tort of misfeasance
had been committed by Sharma. These findings go against
the well-established law of Public Interest Litigation
evolved by the Supreme Court over the last 30 years.
Another reason for
review mentioned is as to how damage could be paid to the
State as it had not suffered any loss. But the principle
has been settled in English courts that although the
Crown may have suffered no loss, the Court orders the
money to be handed over to the Crown, because the Crown
is the only person to whom the case property can be paid.
This difficulty, in any case, could have been easily
overcome by directing Sharma to pay the amount instead to
Kargil Martyrs Fund no one would have objected.
RAJINDER SACHAR
New Delhi
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