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Tuesday, 05 November 2013 00:00
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SC has interesting observations in Sebi chief case

While Sebi chief UK Sinha is probably relieved now that the Supreme Court has dismissed the public interest litigation (PIL) filed against his appointment, what is worrying, as the Court has pointed out, is that this is the fourth such PIL filed in the matter, including one by the same petitioner—the previous three were ‘dismissed as withdrawn’. Indeed, while dismissing the PIL, the Court has said that it wanted to hear the petition ‘not to satisfy the ego of the petitioner’ but to demonstrate that the PIL was in fact a private interest litigation, masquerading as a public interest one, certainly not something that could justify being filed under Article 32 since no Fundamental Rights of any downtrodden or deprived section were being violated. The arguments made by the petitioners were broadly three: that, in April 2008, Sinha suppressed his high salary while applying for VRS from the government when he wanted to remain the chairman and managing director of UTI AMC; that he withheld information about his UTI Esops while being considered for the Sebi job in 2010 since, had he declared the truth, the government would not have selected him for the job as it would have been argued that there was no reason why a person earning so much should want to become Sebi chief; third, the entire selection panel had been chosen in such a way as to ensure Sinha got the job.

As for Sinha not declaring his higher UTI salary while applying for VRS from the government, the Court accepted the Attorney General’s argument that the salary had not been fixed by UTI’s board at the time Sinha was applying for VRS; since Sinha had given up the UTI Esops on being chosen for the Sebi job—his argument was that owning shares in an entity he was going to regulate would create a conflict of interest—the Court argued the charge was irrelevant. As for the selection panel being rigged to ensure Sinha got the job, the Cabinet Secretary headed the panel which, apart from two respected non-government professionals, had senior secretaries like the finance secretary. Apart from the Court ruling that allegations of mala fide are no good unless there is actual proof of such mala fide, the larger point is that highly paid professionals do take up government jobs, either for the prestige attached to them or in order to serve a larger cause. While UIDAI chairman Nandan Nilekani is an obvious example, a more recent example is that of RBI Governor Raghuram Rajan. If every government action is going to be the subject of PILs, it is difficult to see how the government can possibly run. A parallel issue, not before the Court in this case, relates to PSUs where, too often, cases get filed against tenders—sometimes even by losing parties—and this then sets back the entire process by a few years; given the commercial implications of this, the courts would do well to examine the issue. Frivolous litigation, and litigators have to be recognised as such, and have to be dealt with a firm hand.


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