The Supreme Court on Wednesday stayed the summonses served on former Prime Minister Manmohan Singh and industrialist Kumar Mangalam Birla in the coal block allocation scam. Singh was required to appear before the trial judge on April 8 and had challenged the March 11, 2015 order passed by Special Judge Bharat Parashar on the ground that charges under Section 409 of the IPC (criminal breach of trust) and Section 13(1)(d) were slapped on him for an administrative decision he took as a Coal Minister to allot part of the Talabira coal blocks to Hindalco at the recommendation of the then Odisha CM.
The apex court stayed all further proceedings before the trial court relating to allocation of Talabira coal blocks and issued notices to the Centre and the CBI to respond within four weeks. Interestingly, the CBI was represented by senior counsel Amarendra Saran, who did not oppose the petitions. Singh, whose two daughters witnessed the proceedings, had a battery of lawyers, led by Kapil Sibal, representing him.
Charges against Singh as serious as criminal breach of trust punishable with life imprisonment caught even the Bench by surprise. The Bench of Justices V Gopala Gowda and C Nagappan asked Sibal, “How Section 409 is made outIJ” Sibal said that the trial judge proceeded on the assumption that since the Prime Minister did not act as per the recommendation of the 25th Screening Committee, he committed illegality and hence, criminal breach of trust as the property was vested in his authority as the Coal Minister.
To start with, Sibal argued that the trial court could not have issued summons to Singh for a decision he took on the administrative side. “While discharging his role as Prime Minister he has to keep competing public interests in mind,” Sibal said, as he narrated how on one hand, Screening Committee favoured giving the coal block to public companies Mahanadi Coal and Neyveli lignite, while Odisha Chief Minister wrote seeking allocation for Hindalco. Of the 503 million tonne coal reserve, Singh took the decision to allot 70 per cent of coal to PSU Mahanadi Coal and Neyveli lignite was also fully satisfied.
Sibal submitted that the trial judge proceeded on the sole assumption that not agreeing with Screening Committee recommendation was an “illegal act” and went on to determine whether any “public interest” was involved in obtaining the coal block for Hindalco. “Today all major industries - power, cement, steel and iron - cannot be run without coal and they are run mostly by private persons. Is the judge trying to say that it should not be given to private partyIJ”
“I have been a Minister myself and I know that you have to keep reviewing your decisions,” Sibal argued, adding that the trial judge lost sight of the fact that the Screening Committee findings, forming the basis of issuing summons, were rubbished by the Supreme Court while cancelling all coal blocks. He quoted the SC judgement that said, “Procedure adopted by Screening Committee was unknown to law”. The trial court order runs contrary to the SC judgement, Sibal added.
Counsels appearing for Kumar Mangalam Birla, Hindalco officials and former Coal Secretary PC Parakh who too filed petitions challenging the summons issued under the charge of criminal conspiracy and corruption charge.
Senior advocate Harish Salve who represented Birla argued that Section 13(1)(d) of Prevention of Corruption Act charged on his client does not talk of criminal intent (mens rea) which can be dangerous as in the present case where a 10-year-old allotment with all legal approvals is being called to question by a trial judge who wants to decide public interest in an executive action.
Salve said, “After a closure report is filed by CBI, the judge says in his observation of the matter, there is need to examine the matter further. In a Westminster model of democracy that we have, the PM has plenary powers and it is he who decides public interest and not the Court.” The bench issued notice on a separate petition filed by Hindalco challenging the constitutional validity of Section 13(1)(d).