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dr subramanian swamy

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unexpected turn in 2 G Scam =i) Whether the Government has the right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the Constitution? (ii) Whether the recommendations made by the Telecom Regulatory Authority of India (TRAI) on 28.8.2007 for grant of Unified Access 3 Service Licence (for short `UAS Licence’) with 2G spectrum in 800, 900 and 1800 MHz at the price fixed in 2001, which were approved by the Department of Telecommunications (DoT), were contrary to the decision taken by the Council of Ministers on 31.10.2003? (iii) Whether the exercise undertaken by the DoT from September 2007 to March 2008 for grant of UAS Licences to the private respondents in terms of the recommendations made by TRAI is vitiated due to arbitrariness and malafides and is contrary to public interest? (iv) Whether the policy of first-come-first-served followed by the DoT for grant of licences is ultra vires the provisions of Article 14 of the Constitution and whether the said principle was arbitrarily changed by the Minister of Communications and Information Technology (hereinafter referred to as `the Minister of C&IT’), without consulting TRAI, with a view to favour some of the applicants? (v) Whether the licences granted to ineligible applicants and those who failed to fulfil the terms and conditions of the licence are liable to be quashed? 4=the writ petitions are allowed in the following terms: (i) The licences granted to the private respondents on or after 10.1.2008 pursuant to two press releases issued on 10.1.2008 and subsequent allocation of spectrum to the licensees are declared illegal and are quashed. (ii) The above direction shall become operative after four months. (iii) Keeping in view the decision taken by the Central Government in 2011, TRAI shall make fresh recommendations for grant of licence and allocation of spectrum in 2G band in 22 Service Areas by auction, as was done for allocation of spectrum in 3G band. 9 (iv) The Central Government shall consider the recommendations of TRAI and take appropriate decision within next one month and fresh licences be granted by auction. (v) Respondent Nos.2, 3 and 9 who have been benefited at the cost of Public Exchequer by a wholly arbitrary and unconstitutional action taken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band and who off- loaded their stakes for many thousand crores in the name of fresh infusion of equity or transfer of equity shall pay cost of Rs.5 crores each. Respondent Nos. 4, 6, 7 and 10 shall pay cost of Rs.50 lakhs each because they too had been benefited by the wholly arbitrary and unconstitutional exercise undertaken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band. We have not imposed cost on the respondents who had submitted their applications in 2004 and 2006 and whose applications were kept pending till 2007. (vi) Within four months, 50% of the cost shall be deposited with the Supreme Court Legal Services Committee for being used for providing legal aid to poor and indigent litigants. The remaining 50% cost shall be deposited in the funds created for Resettlement and Welfare Schemes of the Ministry of Defence. (vii) However, it is made clear that the observations made in this judgment shall not, in any manner, affect the pending investigation by the CBI, Directorate of Enforcement and others agencies or cause prejudice to those who 9 are facing prosecution in the cases registered by the CBI or who may face prosecution on the basis of chargesheet(s) which may be filed by the CBI in future and the Special Judge, CBI shall decide the matter uninfluenced by this judgment. We also make it clear that this judgment shall not prejudice any person in the action which may be taken by other investigating agencies under Income Tax Act, 1961, Prevention of Money Laundering Act, 2002 and other similar statutes.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 423 OF 2010 Centre for Public Interest Litigation and others …Petitioners versus Union of India and others …Respondents With WRIT PETITION (CIVIL) NO. 10 OF 2011 Dr. Subramanian Swamy …Petitioner versus Union of India and others …Respondents     J U … Continue reading

Election Symbols (Reservation and Allotment) Order, 1968 – Clauses 10A, 5, 6, 6A, 6B and 6C – De-recognition of Political party as a recognized political party – Challenge to de-recognition set aside right upto Supreme Court – In the meantime, by amendment of Symbols Order, Clause 10A inserted providing for retention of its symbol by a de-reorganiszed political party for six years as a grace period – Provision challenged as irrational, arbitrary and undemocratic – Election Commission as well as High Court setting aside the challenge and upholding Clause 10A – On appeal, held: The provision is not arbitrary, irrational or undemocratic – The grace period of six years for retention of symbol is rational – Reading down the provision by ignoring the limit of six years is not permissible since the language of the provision is clear and since such reading down will lead to absurdity in the wake of Clauses 5 and 6 – In absence of challenge to clauses 5 and 6 also, challenge to Clause 10A fails – The symbol of a political party cannot be treated as `intellectual property’ as it does not have the concept of monetary implications – Representation of People Act, 1951 – s. 29A – Interpretation of Statutes. After de-recognition of `Janata Party’ as a recognized political party, it lost its reserved symbol. Appellant (president of the party) approached the Election Commission asking for continuance of the reservation of its symbol. The order of de-recognition was also challenged before this Court by filing SLP. During the pendency thereof, Election Symbols (Reservation and Allotment) Order, 1968 was amended, whereby clause 10A was inserted which allowed a period of six years as a grace period to retain its symbol, even after the party lost its status as a recognized party. Ultimately the SLP was dismissed in limine. Appellant approached Election Commission complaining against clause 10A and proposed the amendment so as to enable the once recognized political parties of national or State level to retain their reserved symbols permanently. Election commission refused the proposal. Appellant filed a writ petition, challenging Clause 10A as arbitrary. High Court dismissed the writ petition. Hence the present appeal. Dismissing the appeal, the Court HELD: 1. Theory of continuance and permanent reservation of a particular symbol for a particular political party cannot stand on the ground that after passing of the Election Symbols (Reservation and Allotment) Order, 1968, the concept of recognition of a political party and the concept of a reserved symbol for that party must be treated to have amalgamated. [Para 17] [866-E] 2. There is no irrationality or arbitrariness in providing six years time as an additional period for retaining the exclusive symbol for the simple reason that within that period there is bound to be one or more general elections on the national level. So also, if any political party has lost its status in the State Elections, apart from the fact that upto the next general elections, it will not lose the said symbol, there is bound to be another opportunity by way of fresh elections within six years. It is on this rationale that the period of six years is provided. This is apart from the fact that in case of Janata Party it continued to have and enjoyed the status of said national or State party for the purposes of next general elections due to the saving clause vide clause 7. [Para 17] [866 A-C] 3. In absence of any challenge to the constitutional validity of clauses 5 and 6, the challenge to Clause 10A must necessarily fail. Reading these clauses together it becomes very clear that firstly the reserved symbol is meant only for recognized political party for its exclusive user. Again the second inference which comes out of such conjoint reading of two provisions is that if a particular symbol is not a reserved symbol, meaning thereby that it is not meant for a recognized political party, such symbol automatically become a free symbol. There is no challenge to this concept nor is there any challenge to the constitutional validity of Clauses 5 and 6. [Para 18] [867-A-C] 4.1 The exercise of reading down the provisions of Clause 10A so as to avoid the mention of six years in Clause 10A, is not possible where the language of the provision is clear, admits of no doubt and no situation warrants such reading down. Such reading down and thereby ignoring the limit of six years as provided in the Clause would render other provisions nugatory. Since the language of Clause 10A is extremely clear and its plain meaning does not, in any manner, bring out any absurd results, the court would have to rely upon the plain meaning which is the only meaning emerging out of the plain language of the provision. It is for this reason that the court was not in a position to read down the provision so as to ignore the words “six years” in Clause 10A. Apart from that, such reading down would lead to absurdity in the wake of other provisions. [Paras 18 and 20] [866 D-E- 869A-B] 4.2 It is trite law that a statute must be read as a whole in its context. Therefore, the provisions of Clause 10A should be read in the light of other provisions, namely, Clauses 5, 6, 6A, 6B and 6C. If the provision is read down ignoring the limit of six years, an absurdity would creep in vis-

1 “REPORTABLE” IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO._5803________OF 2008 (Arising out of SLP (Civil) No.3010 of 2008) Subramanian Swamy ….Appellant Versus Election Commission of India Through its Secretary ….Respondent JUDGMENT V.S. SIRPURKAR, J. 1. Leave granted. 2. Dr.Subramanian Swamy comes up before us challenging the judgment of the High … Continue reading

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