last week, I had presented the gist of the judgement of the Supreme Court in a batch of writ petitions, which included Alok Jena Vs Union of India & Others. The court directed transfer of investigation into the chit fund scam to the CBI and further directed that the Enforcement Directorate also expedite the investigation initiated by it in the meantime.
More than two decades ago, in the case of Janamohan Das, popularly referred to as the Cuttack liquor tragedy case, the Bench of the Odisha High Court headed by then Chief Justice Bl Hansaria did not appear to be very happy with my submission relying upon some newspaper reports and other details that prolonged organised and expansive illegal trade in illicit liquor could not have flourished without political protection and patronage. But when the judgment was pronounced, Chief Justice Hansaria, speaking for the court, went o to hold:
“Apart from what has been stated in the Press in this regard, Sri Das states that it is a ‘notorious’ fact that illegal activities of the kind at hand in a big way cannot take place without political patronage, especially of persons in power. We have not felt happy in putting this submission on record, but it seems to be an unpleasant truth. At least, this is how people at large feel. We wish this were wrong. But then, if a fact be taken as ‘notorious’, law permits a court to take judicial notice of the same.”
Now on May 9, 2014, the Supreme Court held that the factual narrative given in the body of the judgrment clearly establishes six things. These were extracted in this column last week under the headline “Be you so high, the law is above you”. The fifth item that is found to be clearly established (as stated by the court) is “that investigation so far conducted reveals involvement of several political and other influential personalities wielding considerable clout and influence”.
It is natural for the poor, hapless and cheated investors to express their gratitude to the Judges for the well-reasoned and purposive decision and they particularly salute Justice TS Thakur, who spoke for the court.
The court has rightly not viewed the issues raised to be “adversorial” in nature and dealt with the matter in an “inquestorial” orientation. The persistent probing queries of the court brought to light the magnitude of the scam and the quality of investigation in the hands of the State Government’s agencies. Before listing out the six findings relating to the factual scenario, the court emphatically states, “It is unnecessary to multiply decisions on the subject, for this Court has exercised the power to transfer investigation from the State Police to the CBI in cases where such transfer is considered necessary to discover the truth and to meet the ends of justice or because of the complexity of the issues arising for examination or where the case involves national or international ramifications or where people holding high positions of power and influence or political clout are involved. What is important is that while the power to transfer is exercised sparingly and with utmost care and circumspection, this Court has more often than not directed transfer of cases where the fact situations so demand.”
“Investigation by the State Police in a scam that involves thousands of crores collected from the public allegedly because of the patronage of people occupying high positions in the system will hardly carry conviction especially when even the regulators who were expected to prevent or check such a scam appear to have turned a blind eye to what was going on.”
The judgement also demonstrates how the court has treated access to justice to be a right vested in every citizen. The right of any individual or any organisation to take up the cause of those whose rights are violated and who are not fortunate enough to be able to knock at the doors of justice has been reaffirmed.
In the chit fund case, so far as it relates to Odisha, the Supreme Court did not construe the locus standi of the petitioner as an “aggrieved person”, as understood and relevant to the invocation of the traditional justice delivery system. The court rightly substituted the principle to meet the ends of justice to one of “litigational competence” which now seems to be more and more appropriate in “representative” Public Interest litigations.
The acrimonious attack on behalf of the State in the course of the proceedings before the court on the “genuineness” of the petitioner was appropriately brushed aside by the court with reference to the ingredients of representative class-action. The issues that were raised, the nature of infringement of rights and interests of a vast majority of economically weaker citizens and the need for proper redressal were further demonstrated by the diligent and painstaking pursuit of the petitioner. When more than 20 lakhs of innocent residents of Odisha were victims of the modus operandi of the companies involved in the illegal Ponzi schemes, which had defrauded the poor by novel ways of “tantalising” the gullible public to make deposits and, thereby, fall prey to the temptations and the designs of those promoting such companies.
Plundering the gullible poor was almost a new arena that the court was entering upon in this case, whereas hitherto they had reposed their attention on matters like bonded labour, health rights of workers, minimum wages, housing rights, displacement and rehabilitation, right to food, custodial violations, denial of minimum wages, child labour, inter-country adoptions, trafficking of women and children, rights of under-trial persons and the like. Apart from the plundering of the poor, this case also brought forth innovative methods of money laundering and the money trail spreads from inter-State to international transactions.
To make the court’s directions in the chit fund case meaningful and purposive, there has to be complementariness in the steps initiated by the aggrieved persons and the efficacy of the investigating agency. This necessitates furnishing of germane and relevant material particulars to the CBI so that the process of investigation is channelised in the right direction. It would be not fair to expect the CBI to go on fishing and roving expeditions.
The responsibility, therefore, lies on the shoulders of social activists and professionals to help the defrauded poor in presenting their case in an effective manner before the investigating authority. This necessitates organised and purposive activity by all concerned so that there is restitution of the illegal deprivations of the poor and all those who were involved in conspiratorial manner (high or low), face the punitive consequences of law and there is a prevention of such events in the future. This definitely concerns us.
Fortunately enough, the State-suggested SIT was not acceptable to the court, and notwithstanding the aspersions from many quarters on the CBI, the court reposed its confidence in the CBI. And the poor in Odisha eagerly await the manifestation of the ability and efficiency of the CBI: hence, a litmus test.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor and a former Advocate General of Odisha.jayantdas@hotmail.com)