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Modi is still not out of woods in Sahara-Birla case

By Nitya Chakraborty. Dated: 2/18/2017 12:03:37 AM

Leading lawyers call for fresh review by apex court

The Supreme Court judgment given on January 11 in the Sahara-Birla papers case dismissing application submitted by the activist lawyer Prashant Bhushan pleading for investigation into large scale payments made to the political leaders including the Prime Minister, has created fresh furore in the legal circles. Leading Supreme Court lawyer Dushyant Dave, former President of the Supreme Court Bar Association, has observed in an article in a leading website that the judgment smacks of bias and it deserves to be recalled by the Supreme Court exercising, if necessary suo moto powers. Then alone, the apex court can reaffirm its commitment to democracy and rule of law.
Mr. Dave who is highly respected in the legal circles for his erudition and commitment, has blasted the judgment of Justice Arun Mishra mentioning that post January 3, Justice Mishra started presiding over the bench for the first time and the controversial Sahara Birla case was listed before the bench of Justice Amitava Roy and Justice Arun Mishra but not once did Mishra disclose his proximity to political leaders including the Madhya Pradesh Chief Minister Shivraj Singh Chauhan whose name is included in the papers as one of the political leaders getting payment. This, Mr. Dave says, automatically disqualifies Justice Mishra from hearing the case taking into account the precedents of Supreme Court.
According to Mr. Dave, the judgment on January 11 rejecting the petition of Prashant Bhushan, falls squarely within the parameter of an earlier Supreme Court judgment which says" where in the proceedings, a learned judge failed to disclose his connection with the subject matter or the parties, giving scope for an apprehension of bias, and the judgment adversely affects the petitioner", and this observation has scope for a curative petition.
According to the set of documents filed by Mr. Bhushan with his application, the Sahara Group and an Aditya Birla group company allegedly made massive payments to prominent BJP and Congress politicians in 2013-14 and 2012 respectively and these payments recipients included many CMs including Gujarat CM. Prime Minister Narendra Modi was the chief minister of Gujarat during the mentioned period. Bhushan has alleged that both the CBI and the income tax department, after persuing for some time, stopped the investigations as very big names were involved and they covered different political parties. The documents recovered during the CBI raids on Sahara group in 2014 and Birlas in 2013 show that the corporates may have paid bribes running into crores to politicians in exchange for various favours which have been a common feature in Indian politics.
The documents submitted by Mr. Bhushan show an entry signed by an income tax officer Ankita Pandey that on September 23, 2013, a sum of Rs. 1crore is shown against Delhi CM and Rs. 5 crore against CM, MP. Similarly, the documents show that on October 30, 2013, a sum of Rs. 25 crore was paid to " CM Gujarat" Further, Ram Jethmalani, senior Supreme Court lawyer got the signature of Ankita Pandey examined by the Delhi govt experts and it was said in the laboratory report submitted on July 1, 2016 that the signature was genuine.
As regards the payments made by the Aditya Birla group, the documents show that there was an email exchange through the laptop of Subhendu Amitabh, the then executive president dated November 15, 2012 which says" Gujarat CM-25 cr (12 done-rest).The income tax department at that time in its report called for further investigations in view of" highly incriminating nature of transactions" but this was not persued due to pressure from the top . It is quite likely since many of the Congress leaders names were there, the Manmogan Singh government dumped the investigations.
But now, the Supreme Court can go into the entire issue and assess the reports of the income tax officers which are included in the application. The apex court earlier intervened on Sharda Chit fund issue since political corruption was involved. The Court committee monitored the investigations. The allegations made by Mr. Bhushan have wider national dimension and this involves the core issue of political corruption of which the Supreme Court has always been warning. The curative petition can be the right occasion to go into the roots of corruption and take action against the politicians and industry people who have been polluting the electoral politics of the country.
Justice Mishra's judgment is based on two findings. First, that the Settlement Commission has called the Birla-Sahara documents "doubtful" and second, that they are of no evidentiary value either because they were contained as electronic records or not as regular books of accounts. On both counts, Mr. Dave says the judgment suffers from serious legal infirmities by ignoring the fact that the contents of electronic records are admissible under the Evidence Act without further proof of the original and that Section 132(4) and (4A) of the Income Tax Act, read with Section 79 of the Evidence Act, create the legal presumption of such documents as "belonging to the person from whom they are seized" and "to be true" and make statements made in respect of such documents in investigation as evidence. The Supreme Court has itself - in Pooran Mal v. Director of Inspection and ITO v. Seth Bros. - confirmed this position. The Madras, Delhi and Rajasthan high courts have treated such documents as admissible.
So there is clear case now for a review petition. Prashant Bhushan and other leading lawyers like Dushyant Dave, Indira Jai Singh and young lawyers like Amritananda Chakravorty who believe in fighting political corruption, must join hands and see that the Supreme Court gets committed to democracy and rule of law, free of bias, as Mr. Dave wanted.
—(IPA Service)