FIR Registered Against FM Nirmala Sitharaman in Karnataka Over Electoral Bonds Scheme: Legal and Political Implications
With due respect, we are of the opinion that the Judicial Magistrate's order directing the police to register an FIR and conduct an investigation is, prima facie, beyond the Magistrate's jurisdiction.
FIR Registered Against FM Nirmala Sitharaman Over Electoral Bonds Scheme
An FIR has been registered against Union Finance Minister Nirmala Sitharaman and others in connection with the controversial electoral bonds scheme, that was recently struck down by the Supreme Court. The case was filed at the High Grounds Police Station in Bengaluru, Karnataka, following an order from a Special Court. The complaint, lodged by Adarsh R. Iyer, Co-President of the 'Janaadhikaara Sangharsha Parishath', alleges serious criminal offences, prompting the registration of the FIR on September 28, 2024. The named individuals in the case include Enforcement Directorate officials and BJP leaders such as Karnataka BJP Chief B.Y. Vijayendra and party leader Nalin Kumar Kateel.
Allegations of Extortion and Criminal Conspiracy
The FIR against Union Finance Minister Nirmala Sitharaman and others outlines and alleges serious charges, including extortion (Section 384 IPC), criminal conspiracy (Section 120B IPC), and acts done in furtherance of common intention (Section 34 IPC). The complaint alleges that the accused benefited from extortion through the electoral bonds scheme, with the illicit gains amounting to over ₹8,000 crore. The Supreme Court had declared the electoral bonds scheme unconstitutional in February 2024, citing violations of the right to information and freedom of speech and expression. This ruling had not only raised legal questions but also set off a broader political storm, as the implications of the scheme continue to be debated.
Political Repercussions and Debates
The registration of the FIR has intensified political debates, particularly in Karnataka. Chief Minister Siddaramaiah has publicly questioned whether Finance Minister Sitharaman should resign, drawing comparisons to his own situation, where the opposition BJP is demanding his resignation over a separate case. Siddaramaiah pointed out, "Should the Finance Minister resign on moral grounds? The same standards should apply to all." However, opposition leaders argue that the two cases are distinct, noting that the Supreme Court has already adjudicated the electoral bonds issue, further fuelling the political tensions surrounding this matter.
Supreme Court's Verdict on Electoral Bonds Scheme
In a landmark judgment, the Supreme Court struck down the electoral bonds scheme in February, citing violations of the right to information and freedom of speech and expression under the Constitution. The Apex Court held that the scheme facilitated anonymous donations to political parties, thereby compromising transparency and accountability in the electoral process. The judgment has significant implications for campaign finance reforms and the conduct of free and fair elections in India.
Legal Analysis of the Magistrate's Order
The initiation of an FIR against a sitting Union Minister raises important legal questions regarding the jurisdiction and procedural propriety of the magistrate's order directing the police investigation under Section 156(3) of the Code of Criminal Procedure (CrPC).
Magistrate's Discretion Under Section 156(3) CrPC
Under Section 156(3) CrPC, a magistrate empowered under Section 190 may order an investigation by the police into a cognizable offence. However, this power is discretionary and not mandatory. The magistrate is expected to apply judicial mind and cannot mechanically order an investigation. Key considerations include:
Examination of the Complaint: The magistrate must assess whether the complaint discloses a cognizable offence warranting investigation.
Supporting Affidavit: An affidavit should accompany the application to prevent frivolous or vexatious litigation.
Options Available: The magistrate can choose to direct a police investigation, take cognizance as a complaint case, or dismiss the complaint if insufficient grounds exist.
Requirement of Sanction for Prosecuting Public Servants
When allegations are made against a public servant, such as a Union Minister, additional legal safeguards come into play:
Section 197 CrPC: Requires prior sanction from the appropriate government authority before a court can take cognizance of offences alleged to have been committed by a public servant while acting in the discharge of official duties.
Section 19 of the Prevention of Corruption Act (PC Act): Mandates prior sanction for offences under the PC Act.
Section 17A PC Act: Introduced in 2018, this section prohibits any enquiry, inquiry, or investigation into offences alleged to have been committed by a public servant without prior approval from the competent authority.
Magistrate's Order Lacking Jurisdiction and Application of Mind
In the present case, the magistrate appears to have directed the police to register an FIR and initiate an investigation without considering the mandatory requirement of prior sanction under Section 197 CrPC and Section 19 of the PC Act. Additionally, the order seems to disregard the prohibition under Section 17A PC Act against initiating an investigation without prior approval.
Absence of Sanction: Without the requisite sanction, the magistrate lacks the jurisdiction to take cognizance of the offences alleged against the Finance Minister.
Lack of Application of Mind: The magistrate did not explore whether the alleged acts fell within the scope of official duties or whether any exceptions to the sanction requirement applied.
Violation of Legal Provisions: Directing the police to investigate offences under the PC Act without prior approval contravenes Section 17A and undermines the legal protections afforded to public servants.
Applicability of Section 17A PC Act to Magistrates
While Section 17A primarily restricts police officers and investigating agencies from conducting inquiries without approval, courts have held that magistrates should not indirectly circumvent this provision by directing police investigations under Section 156(3) CrPC without the necessary sanctions.
Judicial Precedents: The Madhya Pradesh High Court has opined that special courts can initiate an inquiry without police assistance but should not order a police investigation that would violate Section 17A.
Scope of Magistrate's Powers: Magistrates can conduct preliminary inquiries independently to determine if an offence is disclosed but must refrain from involving the police without such prior approval.
Our Opinion and Expected Legal Challenges
The magistrate's order directing an investigation against Union Finance Minister Nirmala Sitharaman appears to have been passed without due application of mind and is, in our humble opinion, prima facie without jurisdiction. The failure to consider the mandatory requirements of prior sanction under Section 197 CrPC and Sections 17A and 19 of the the Prevention of Corruption Act, 1988 renders the order legally unsustainable.
It is anticipated that the Finance Minister, or the Union of India, will challenge the magistrate's order in the Karnataka High Court very soon. Legal experts expect the High Court to stay the police investigation, given the apparent procedural irregularities and jurisdictional errors, or at least pass an order of “no coercive measures.” The case underscores the critical importance of judicial scrutiny and adherence to legal protocols when dealing with allegations against high-ranking public officials.
The Need for Judicial Independence and Safeguarding Due Process
Furthermore, the justice system must remain free from any executive or political interference, whether direct or indirect. This case, though unusual, is perhaps not the only one where inquiries and investigations are initiated ostensibly under the provisions of law but are, in reality, driven by political motivations, vendettas, or score-settling. A mature democracy like India should not permit such questionable practices to fester. While much was expected from the new criminal laws now in force, this case reveals that they may inadvertently open avenues for vexatious and frivolous investigations and prosecutions, undermining the very foundations of fairness and justice.
It is important to clarify that we are not building a case to protect perpetrators of economic offences or corruption by public servants and their cohorts. However, as a nation, we must find the balance—the "sweet spot"—in initiating such cases, ensuring that both the public and the accused are afforded the "due process of law," and not subjected to a travesty of justice.
Disclaimer
This article is based on publicly available information regarding matters of fact. However, the analysis on legal issues reflects our own opinions and is intended solely for general informational purposes.
This is political assassination with character assassination also
Nothing more
We are walking towards destruction