In quashing the assets case against Mayawati, the Supreme Court seems to have ignored its earlier orders to CBI

The Supreme Court order quashing the Central Bureau of Investigation’s FIR in the assets case against former Uttar Pradesh chief minister, Mayawati, has come as a jolt. Yes, the Supreme Court’s order is binding and must be respected but, equally, it is important to record honest opinions on such an important matter that affects the fight against corruption in high places. The order was based on technical grounds which, in the view of many, are untenable.

Decidedly, the CBI stepped into the matter over allegations against Ms Mayawati relating to the Taj Heritage Corridor Project under the directions of the Supreme Court.

First, the CBI was asked to enquire and submit a preliminary report. It did this in two phases, upon which the Supreme Court directed the agency on September 18, 2003 to lodge an FIR and investigate Ms Mayawati, then chief minister, and Nadeemuddin Siddiqui, former minister for environment, U.P. and other officers involved; On October 5, 2003, the CBI registered two cases, No. 18 relating to the Taj Corridor and No. 19 under Section 13(I)(e) of the Prevention of Corruption Act, for possession of disproportionate assets.

Sanction declined

The charge sheet filed by the CBI in the Court in the Taj Corridor case, however, failed. The U.P. Governor declined sanction for prosecution under Section 197 CrPC and Section 19(1) of the PCA on the grounds that, “no prima facie case to charge Ms Mayawati with the offences … [was made out]. There was no forgery either. There was also no element of corruption on her part.”

This immediately raises the question whether the power of according sanction should continue to be vested in a political authority, or even the Governor, who is an appointee of the ruling party at the Centre. Consequently, the Special Judge refused to take cognisance, which was not challenged by the CBI, not surprisingly because, again, the power to challenge such an order lies with the Law Ministry of the Government of India and not the CBI.

As for the assets case, Ms Mayawati challenged FIR No. 19 before the Allahabad High Court, Lucknow Bench, which disposed of the matter on October 22, 2003 with the direction that the petitioner will not be arrested until the conclusion of the investigation into the allegations. There was, however, no order questioning the jurisdiction of the CBI. Any agency would take the order as a go-ahead for investigation into the allegation.

The Supreme Court also, at the very initial stage through its order on August 21, 2003 in M.C. Mehta v. Union of India in the Taj case, asked the CBI to verify “their assets because it was alleged that an amount of Rs. 17 crores was released without sanction”. Thus, though not specifically against Ms Mayawati in a separate case, there was an order, for verification of “assets.”

It is thus not correct that the CBI, out of the blue, began investigating the assets case against her. Further, when the status reports for both FIRs, 18 and 19, were filed before the Supreme Court, the court issued directions on July 19, 2004 in M.C. Mehta v. Union of India, permitting the CBI eight weeks time to complete investigations in the Taj Corridor case, also adding: “As far as FIR No. RC 0062003A0019 is concerned, three months’ time is granted.”

In other words, the CBI was allowed to proceed with the investigation in the assets case as well. Assertions by the court regarding the absence of a link between the two cases, and that it would not monitor the assets case also indicated that it was cognisant of investigation into two separate cases. For five years thereafter, Ms Mayawati chose not to raise any objection regarding the assets case and filed the present separate writ only in 2008. And on July 6, 2012, the court struck down the FIR in the assets case on the ground that it was without jurisdiction and that the CBI investigation was illegal.

The bottom line

What, in any case, is the bottom line here? The court, undoubtedly, asked the CBI on September 18, 2003 to lodge an FIR into allegations of corruption against some top functionaries of the State, including Ms Mayawati, a minister of her government, and other officials. The order was related to the Taj Corridor, but on the basis of preliminary enquiries conducted by the agency, it registered a case on the same day against Ms Mayawati specifically with respect to offences under Section 13(1)(e) of the P.C. Act, for possession of disproportionate assets. Subsection (e) was provided in the P.C. Act, our stand goes, so that if specific charges of corruption like accepting bribe, showing favour, illegally causing gain to himself and others and a loss to the public exchequer, etc., under Sections 13(1)‘ a,’ ‘b,’ ‘c,’ or ‘d’, failed, a public servant could still be hauled up if he or she was found with disproportionate assets that, under the law, would be presumed to be acquired through illegal/corrupt means.

It is for this reason that quite often, the CBI has registered and investigated cases of disproportionate assets against public servants as offshoots of specific corruption cases.

In this case, the CBI contended that preliminary enquiries in the Taj Corridor case led it to discover these assets, and hence the case and investigation into the assets. The court called it “a roving enquiry into assets.” With respect, it may be said that all enquiries into the acquisition of disproportionate assets, by their very nature, have to be “roving.”

According to the CBI, her assets increased fifty-fold, from Rs. 1 crore in 2003 to Rs. 50 crore in 2007. By Ms Mayawati’s own estimates, her wealth is worth Rs 111.64 crore, as mentioned in an affidavit filed along with her Rajya Sabha nomination papers. This is not to say that the charges are true or that she is guilty of the offence. But why quash the FIR, why nullify the investigation done so far, and stall the due process of law, including trial by the competent court, to determine guilt or innocence? One may recall that in the Bofors case too, the FIR was quashed by the Delhi High Court. And the prolonged litigation from High Court to Supreme Court and back had something to do with the not-so-successful investigation in the Bofors case, if I may humbly say.

Perhaps with the exception of the Left parties, the reaction of political parties to the order of the Supreme Court, across the board, was more to do with politics than with public interest. The Congress, not surprisingly, tended to take a soft line, in keeping with its hat trick of procuring support from the two warring rivals of U.P. No surprise too that the Samajwadi Party highlighted that the order was no exoneration of Ms Mayawati. The BJP was back to accusing the Congress for using the CBI as its tool, showing no concern for the setback to the fight against corruption, or repeated denigration of the CBI, premier investigating agency of the country.

Two imperatives emerge from above: One, the CBI must file a review petition in the Supreme Court against the order; and, two, no time must be lost in creating the institutions of Lokpal at the Centre and Lokayukats in the States, vested with the authority to oversee investigation of all cases against political functionaries and top bureaucrats, with powers to accord sanction for prosecution under CrPC/PCAct and other relevant laws.

(N.K. Singh is a former Joint Director, CBI, who retired as Director General Bureau of Police Research & Development.)

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