The 2010 Commonwealth Games may have ended on October 14th, but the controversy surrounding the organising of the games is far from over. In Parliament, the Opposition has called for a Joint-Parliamentary Committee (JPC) to be formed to investigate suspected financial irregularities in the organising of the Games[1]. In a statement in Parliament on Tuesday, Minister for Youth Affairs & Sports M.S. Gill commented that “All irregularities will be examined and the guilty will not be spared”[2]. In July 2010, the Central Vigilance Commission (CVC) found irregularities in 14 Games related construction projects[3]. It has been reported that officials from the CVC now believe total misappropriation of Games Funds could be between Rs 5000 crore and Rs 8000 crore [4]. So what is being done about it? Currently, six different government organisations are conducting independent inquiries into financial irregularities, corruption, and mismanagement of the Games: the High Level (Shunglu) Commission, CVC, CAG, CBI, Income Tax Department, and Enforcement Directorate (ED). With so many government organisations involved, it can be difficult to decipher the big picture. Here is a breakdown of what each organisation is doing: High Level Commission (Shunglu Commission): The Commission was appointed by the Prime Minister on October 15th[5]. It is chaired by V.K. Shunglu, former Comptroller and Auditor General of India, who has been given the status equivalent to a Supreme Court Judge[6]. The Commission has a broad mandate to investigate all matters regarding the Games, specifically:[7]
A report from the Commission detailing its findings is expected by mid January. Central Vigilance Commission (CVC): The CVC first found financial irregularities in 14 Games projects in July 2010. Subsequently, it asked the CBI to register a corruption case against MCD officials in connection with a tender issued for a Games project[8]. In total, the CVC has found irregularities in 38 games related projects, under the following departments and agencies:[9]
The CVC has directed the above agencies to respond to queries regarding the irregularities and has directed the CBI to begin a Preliminary Inquiry into them [10]. The CVC will report its findings to the Shunglu Commission. Income Tax Department: The I-T Department is investigating tenders and awards of contracts for Games related works, as well as tax evasion [11]. It has conducted raids in offices of over 30 business firms and individuals [12]. Enforcement Directorate (ED): The ED is proceeding against Organising Committee officials for violations of the Foreign Exchange Management Act (FEMA) for projects involving venue development and overlays contracts awarded by the Organising Committee. Central Bureau of Investigation (CBI): It has been reported that the CBI had received over 300 complaints of corruption in Games projects by August 2010[13]. It is verifying these claims and investigating matters highlighted by the CVC. Comptroller and Auditor General (CAG): In August 2009, the CAG published a report entitled Preparedness for the XIX Commonwealth Games highlighting the lack of preparedness for the Games and its escalating cost. The CAG is conducting a detailed audit of the Games that is expected to be published in March 2011[14]. Given that CAG reports are tabled in Parliament, the March 2011 report will be critical to the Parliamentary debate on the Games. Two members of the Organising Committee, the Joint Director and the Deputy Director General, were arrested by the CBI this past Monday. However, Given that the report of the Shunglu Commssion is due in January 2011, the CAG audit will follow two months later, and the current Opposition demand for a JPC remains unresolved, it may be some time before significant details are made public.
[1] http://economictimes.indiatimes.com/news/politics/nation/BJP-to-press-for-JPC-probe-into-spectrum-Adarsh-CWG-scams/articleshow/6934697.cms [2] http://www.thehindu.com/news/article890174.ece [3] ttp://economictimes.indiatimes.com/news/news-by-industry/et-cetera/CVC-finds-irregularities-in-several-CWG-projects/articleshow/6229429.cms [4] http://www.deccanherald.com/content/105830/cwg-fraud-may-touch-rs.html [5] http://www.business-standard.com/india/news/games-over-pm-orders-probe-into-pre-event-mess/411739/ [6] http://economictimes.indiatimes.com/news/politics/nation/CWG-probe-Shunglu-given-status-of-SC-judge/articleshow/6818404.cms [7] http://pib.nic.in/newsite/PrintRelease.aspx?relid=66561 [8] http://timesofindia.indiatimes.com/city/delhi/CWG-construction-CVC-asks-CBI-to-register-corruption-case/articleshow/6237714.cms [9] http://www.hindustantimes.com/specials/sports/cwg-2010/22-more-CWG-works-under-CVC-scanner/CWG2010-TopStories/SP-Article10-614446.aspx [10] http://www.indianexpress.com/news/Claiming-fraud---favour-in-Games-rentals--CVC-to-CBI--begin-probe/700998/ [11]http://www.indianexpress.com/news/it-dept-collects-cwg-works-related-documents/698683/ [12] http://www.thehindu.com/news/national/article837892.ece [13] http://www.indianexpress.com/news/cbi-has-over-300-complaints-regarding-games-works/655692/ [14] http://economictimes.indiatimes.com/news/politics/nation/CAG-starts-Commonwealth-Games-audit-report-by-March-2011/articleshow/6252852.cms
As per news reports, the union government has filed a Presidential Reference in relation to the 2G judgment. In this judgment the Supreme Court had cancelled 122 2G licences granting access to spectrum and had ordered their re-allocation by means of an auction. It also held that use of first cum first serve policy (FCFS) to allocate natural resources was unconstitutional. It had held that natural resources should be allocated through auctions. As per the news report, the Presidential Reference seeks clarity on whether the Supreme Court could interfere with policy decisions. This issue has been discussed in a number of cases. For instance, the Supreme Court in Directorate of Film Festivals v. Gaurav Ashwin Jain[1] held that Courts cannot act as an appellate authority to examine the correctness, suitability and appropriateness of a policy. It further held that Courts cannot act as advisors to the executive on policy matters which the executive is entitled to formulate. It stated that the Court could review whether the policy violates fundamental rights, or is opposed to a Constitutional or any statutory provision, or is manifestly arbitrary. It further stated that legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. In Suresh Seth vs. Commissioner, Indore Municipal Corporation[2] a three judge bench of the Court observed that, “this Court cannot issue any direction to the Legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power or authority to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.” In the present case it may be argued that whereas the Court was empowered to declare a policy such as FCFS as unconstitutional, it did not have the jurisdiction to direct auctioning of spectrum and other natural resources. The Presidential Reference may conclusively determine the Court’s jurisdiction in this regard. However, it has been urged by a few experts that this Presidential Reference amounts to an appeal against the decision of the Court. They have argued that this could be done only through a Review Petition (which has already been admitted by the Court). The advisory jurisdiction of the Court invoked through Presidential References, is governed by Article 143 of the Constitution. Under Article 143 of the Constitution of India, the President is empowered to refer to the Supreme Court any matter of law or fact. The opinion of the Court may be sought in relation to issues that have arisen or are likely to arise. A Presidential Reference may be made in matters that are of public importance and where it is expedient to obtain the opinion of the Supreme Court. The Court may refuse to answer all or any of the queries raised in the Reference. A Presidential Reference thus requires that the opinion of the Court on the issue should not have been already obtained or decided by the Court. In the Gujarat Election Case[3] the Supreme Court took note of Presidential References that were appellate in nature. Thus, a Presidential Reference cannot be adopted as a means to review or appeal the judgment of the Supreme Court. Against judgments of the Court the mechanisms of review is the only option. This position was also argued by Senior Advocate Fali S. Nariman in the Cauvery Water Case[4], where the Court refused to give an opinion. Whether the Court had the authority to determine a policy, such as FCFS, as unconstitutional is not disputed. However, there are conflicting judgments on the extent to which a Court can interfere with the executive domain. It would be interesting to see whether the Court would give its opinion on this issue. In the event it does, it may bring higher level of clarity to the relationship between the executive and the judiciary.
[1] AIR 2007 SC 1640
[2] AIR2006SC767
[3] (2002) 8 SCC 237
[4] (1993) Supp 1 SCC 96(II)
