M J Antony: Shadow of the political hand

OUT OF COURT

Political interference has become the bane of every aspect of democratic life, whether it be sports, science or education. When money is involved, this evil is even more persistent and extensive. Moreover, it is difficult to prove the role of ministers and politicians in a court of law. The legal profession refers to it in euphemistic jargons, such as "extraneous considerations" and "non-application of mind". Rarely does a judgment come out openly and criticise the role of a politician or a minister. In some recent decisions, the Supreme Court has been forced to do so. The latest was delivered last month in Subhash Projects & Marketing Ltd vs West Bengal Power Development Corporation.

L & T and Subhash Projects were two contenders for a thermal power project, with the aid of Overseas Economic Corporation Fund, Japan (OECF). The award of tender went to Subhash Projects. L & T challenged it in the Calcutta High Court. It ruled that the contract based on the tender floated by the power development corporation should have gone to L & T and giving it to Subhash Projects was illegal. Since the project had gone ahead, the court did not cancel the deal and merely asked Subhash Projects to pay Rs 1 crore to L & T. Both the companies moved the Supreme Court. But how the Union Ministry of Power stretched its neck to get the eminently deserved blow from the apex court is the interesting part of the story.

The Calcutta High Court had not merely called the award illegal, but also criticised the then Union minister of state for several improprieties. Stung by the censure, the Central government, the ministry of power and the Central Electricity Authority appealed to the Supreme Court regarding the adverse remarks. It only managed to get more of it from the apex court.

When the tenders were evaluated by the concerned committee, the power corporation and OECF, they found that the L&T offer was the lowest and recommended it for the award. At that stage Subhash Projects handed over a letter to the minister of state for power at the Centre, complaining about the recommendation. Following this, the secretary in the ministry wrote to the power corporation to look into the complaint. The corporation and the state government stuck to their decision.

The judgement describes what happened then: "The minister and his ministry persisted in its direction seeking a fresh evaluation to be made on the basis of the original bids, even going to the extent of writing directly to the government of West Bengal in that regard. Ultimately, the state government and the power corporation were compelled to make a fresh evaluation, ignoring the reduction of Rs 64 crore offered by L & T and to recommend the award to Subhash Projects." This is what the high court called exertion of undue pressure and securing the contract by dubious means.

In the Supreme Court, the additional solicitor general defended the minister claiming that the latter acted only in public interest and he had no axe to grind in the matter. The receiving of a representation personally, or forwarding it, could not be said to be acts not befitting a minister, who is a representative of the people. The Supreme Court examined the facts of the case once again and added some more stinging comments, like: "the persistence of the ministry and the manner of it, in the circumstances, looks strange." It said that the ministry had no locus in the whole affair. The matter was not within the purview of the minister for power. "The ministry was not fair in not apprising OECF of the entire facts and seeking its advice before taking a stand on the matter of identification of the lowest tenderer...the manner in which the minister went about it has led to the observations of the high court," the Supreme Court judgement said, justifying the criticism.

Earlier this year, the Supreme Court had delivered two judgements highlighting the scourge of political patronage in the appointments, promotion and transfer of key officials in public sector undertakings. In Suresh Chandra vs Chairman, UPSEB, it said: "The state government has power under the Electricity Act to issue directives in the nature of policy directives, but with the board's chairman and top executive heads packed by political bosses, the government appears to be exercising unbridled power of interference in the day-to-day working of the board. This has totally destroyed the autonomous nature of the board."

The other decision involved the management and appointments in Food Corporation of India. Though the Act that created the corporation enjoins it to run in on "business principles" the facts of the case showed that these were far from the minds of the people who run the government. These cases show how urgent it is for the politicians to come out of their megalomaniac mindset and leave business alone.