In public interest

Written by Prithvi Haldea | Updated: Jan 7 2014, 08:27am hrs
We find no merit in this petition which is accordingly dismissed must have come as a huge sigh of relief for the respondent and a stinging defeat for the petitioner.

This verdict of the Supreme Court in November last year refers to the public interest litigation (PIL) filed by a habitual litigant against the appointment of UK Sinha as the chairman of the Securities and Exchange Board of India (Sebi) in February 2011.

Though it is two months since the judgment, this case is worthy of discussion as it raises several serious issues on the future of public servants in high positions, especially those occupying regulatory seats.

Reading the long 71-page order increasingly infuriated the author against the petitioner, as one after another, all allegations got trashed. Then why was such a petition even entertained, which ended up doing so much damage to so many people: the respondents, the judicial infrastructure and the taxpayers The Courts defence is that though it was simple for it to have dismissed the petition as not maintainable for a variety of reasons, it chose to closely examine the case to satisfy its judicial conscience. The judges finally did not deem it a public interest petition for protecting the fundamental rights of any class of downtrodden or deprived section of the population (which is the raison detre for PILs) but one that served private, vested interests.

To strengthen a weak case, petitioners would typically build not one or two, but several grounds in the hope that at least a couple of them would stick. In this case too, the petitioner did the same, using several RTIs to first collect information and then piece it together to suit his point of view.

Since there was no room to level any charges on the selection criteria of competence and standing, he focused on the nebulous criterion of integrity. Allegations were made that the appointment was a result of manipulation, misrepresentation and suppression of vital material by the respondent before the search-cum-selection committee. This was found to be without basis.

Then there was the oblique charge of mala fide. It is well settled that the burden of proving mala fide lies very heavily on the petitioner requiring him to provide cogent materials. No evidence was good enough to conclude mala fide.

On another front, the Court held that acceptance by Sinha of lesser salary as chairman, Sebi, cannot ipso facto lead to the petitioners allegation that he did so to abuse the authority. The Court, in fact, found this argument too absurd to even take cognisance of.

It is not abnormal for people of high integrity to make a sacrifice financially to take up a position of honour and service to the nation. In this case, the respondent, but for the 5 years when he was with a mutual fund, had always been in public service. And the happiness that he must have derived from his life-long experience could have led him to revert.

To enlarge the scope, and hoping that digging up the past may help to demolish integrity, the petitioner also made several charges concerning Sinhas previous employment at UTI AMC. These too were not found sustainable.

Though this case was finally settled entirely in favour of the respondent, has anyone bothered to even think what it could have done to his morale over a long 2-year period (two-thirds of his tenure) How does one feel to be at the helm of an important, high-impact, highly-visible regulatory position, with a case filed against the very appointment, and worse, one which is not being tried within the confines of a court but is being constantly reported by the media The public at large, not clued into the details, would tend to believe that there has to be some fire behind the smoke.

Many regulators are in a hot-seat job, and have to be alert almost every minute of the day. If the minds of such regulators are going to be preoccupied with fighting cases filed against them, would the situation not carry the possibility of adversely affecting their performance It is to the credit of the incumbent that despite the proverbial sword of Damocles hanging on his head, he went ahead with promulgating several new regulations to develop the market and protect the investors, as also pursue with vigour, several high profile offenders.

Finally, what about the time and money that has to be spent by the respondents It is often said that one can lose even a very good case if she/he has a bad lawyer. No wonder, the respondent had to hire the best available legal expertise in this case too.

It is heartening that our democracy is finally maturing, and there is now a greater demand for governance and transparency. A lot of empowerment of the public has happened, including from instruments like PIL and RTI. It is, however, imminent to pause and think if we have gone too far to the other direction.

Though we are increasingly becoming very cynical about all public servants, the fact remains that many of them have high integrity and are public-spirited. The irony is that many of them are not now able to deliver, courtesy politicians, processes, PILs and the fear of a potential persecution for even a decision taken in good faith.

The time has come for the regulatory structures to be revisited; in the financial sector, a way forward has been suggested by the FSLRC. The appointment process should be made more transparent. These should also not be made post-retirement benefit positions; the search has to become broad-based.

Simultaneously, regulators have to be made more independent.

On the subject of PILs, though these have had a huge positive impact, we need to ensure that these are not filed irresponsibly. The judiciary has to be extremely careful to see that behind the beautiful veil of public interest, there is no lurking of any ugly private malice.

Severe action should be taken against frivolous petitioners. In this case, the petitioner was let off with just a dismissal. Strict action, including high penalties, would create a deterrent, which is necessary to preserve two scarce resources of the judiciary, time and human resources, from undesirable PILs. This would also create tension-free work environment for the respondent.

It may also be expedient to put a framework in place where some diligent preliminary work is done when a PIL is filed to establish the credentials of the petitioner and of the public interest, failing which the petition should be dismissed at the threshold. Finally, PILs against in-service persons at high positions should be dealt with separately and expeditiously.

The author is chairman, PRIME Database