Anand Grover, Senior Advocate, is well known for his contribution to landmark cases involving the right to shelter, safe environment, the right to health, and LGBT rights. His work in the field of patent law, opposing the grant of patents for essential life-saving drugs, is equally well recognised. A founder member of the Lawyers Collective, a non-governmental organisation (NGO) campaigning for the rights of vulnerable groups and against discrimination, Anand Grover was the U.N. Special Rapporteur on the right to health from August 2008 to July 2014. He was the Special Public Prosecutor (SPP) for the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) before the Special Court that held the trial of the accused in the 2G case. In this interview, he shares his concerns over the judgment delivered by the trial court acquitting all the accused.
Overall, what is your view about the judgment?
It is, of course, very disappointing. In my opinion, the judgment is wrong. But it won’t be appropriate to speak about the merits of the judgment. That will be a matter for appeal.
But I think I have to speak about the remarks made about the prosecution and me. It is unfortunate that the learned judge has made such remarks. He has, by making statements about me, which are not correct, damaged the institutional integrity of the court and the judicial system. Every officer of the court, a judge, a lawyer, and even a litigant, has to always maintain the dignity of the institution by respecting all players. No judge, or a lawyer or a litigant, should ever resort to stating something that would damage the institution. That is what I strived for in the 2G case before the learned judge. I may have a different point of view. But I want to use the legal system in a constitutional manner to help people. I respect the institution. That is why I am a lawyer. The learned judge’s remarks, to say the least, are inappropriate, and in the long term will damage the institution.
The judgment is very harsh on your role. The judge says initially the CBI was very enthusiastic, and eventually it became directionless.
I took over as SPP in the middle of September 2014. The trials in the Raja case and in the Loop case were completely over by then. So there is no question of me directing any trial-related matters. All I had to do was to present the final arguments in these matters. However, I did supervise and conduct the Raja money-laundering trial, but the judge has practically not commented at all about that case. It is therefore unfortunate that the learned judge has made such remarks.
The judge says that the charge sheet is orchestrated. What do you have to say?
I am not going into the merits of the case. As I said, that will be gone into in appeal. But it is interesting that the judge now, after six years, says that the charge sheet was orchestrated.
Firstly, the Supreme Court had vetted the charge sheet. Only after that it gave the go-ahead to the CBI to file it. The charge sheet was then filed before the Special Court. It contained all the documents and the statements, which were later to be proved in the trial. The matter was argued for framing charges by the prosecution and for discharge by the accused. Arguments on framing charges and discharge took nearly three and a half months. The learned judge, after hearing the parties, framed the charges. He obviously did that because he saw substance in the case of the prosecution. He could have discharged the accused at that time if the charge sheet was “orchestrated”, as he now suggests. But he did not do that.
The prosecution then led all its evidence. He obviously saw that the prosecution had a case. Therefore, as the law requires, under Section 313 CrPC, he put the case of the prosecution against each of the accused to each of them. He had to frame questions for that. Against Raja alone, there were nearly 1,800 questions, all starting with the phrase, “This is against you.” Why were these questions put if he did not see any case against the accused?
To the questions, all the accused gave their explanations. If the learned judge was satisfied with the explanation of the accused, he need not have allowed the defence to lead its own evidence. But both Raja and Chandolia [Raja’s private secretary] led evidence in their own defence, which is rarely ever done in India. They deposed themselves. If there was no case against the accused, the learned judge could have said, “There is no case against you, there is no need to lead any defence evidence.” That was not done. Thus it is clear that at all stages the judge was satisfied that there was a case against the accused. Now, he can’t go back to the charge sheet. The prosecution is a very convenient alibi to blame. There is always a scapegoat to be found.
But the judge says arguments at the Bar are not the only thing, and that there is need for legally admissible evidence. Is the judge blaming your predecessor (Uday Umesh Lalit), who was the SPP in the case, before his appointment as the judge of the Supreme Court?
As I said, these comments are inappropriate.
The other point the judge makes is that written submissions are not signed by you.
Designated Senior Advocates don’t sign any pleadings or applications. They can’t sign any legal notices either. They can’t draft anything. They can only settle pleadings. That is the practice of Senior Advocates. Moreover, there is no practice of signing written submissions. Written submissions are not pleadings. They are only to assist the court. Even then I signed them because the learned judge wanted me to. I asked, “What about the defence? They are not signing them.” They agreed to do that later. But the judge took umbrage only at my protest.
The learned judge also takes issue with you not signing applications.
As I said, Senior Advocates are not allowed to do that. So I could not sign the applications and as SPP, I requested the investigating officer (IO) to sign them. There is nothing wrong with that. The IO is authorised. In any event these issues are totally irrelevant to the main decision, on which it is not appropriate to comment at this stage.
By V. Venkatesan
The article was first published in Frontline Today.