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SCOI Analysis: Congress gets two partial reliefs and one huge setback in National Herald case

The proceedings in Court number 3 during the hearing of item number 53 today were full of suspense.

At the end of the hearing, the journalists were still debating whether the outcome should be called a setback or partial relief for the beleaguered Congress leaders who sought quashing of the trial against them in the National Herald case.

Relief 1

The bench of justices JS Khehar and C Nagappan held that the petitioners would not be required to appear in the ongoing case in the trial court in person.

This is a partial relief. The court gave this relief on consideration of the balance of convenience.

Ensuring their presence like any aam admi during the hearing of the case in the trial court would highlight our commitment to rule of law; but the court was asking itself the question whether their physical absence would dilute such a commitment.

The court believed that as the petitioners are eminent persons in public life, they would not run away; hence, there is no need to ensure their physical presence just to make a point.

Besides, their physical presence at every hearing would only put security agencies under considerable strain, as the state has a duty to ensure their protection, the court seemed to be saying.

But the court qualified its order by saying the trial court judge could seek a personal appearance by the two top Congress leaders if it needed at any stage in the case.

The court granted this relief despite opposition from Subramanian Swamy, who appeared as the caveator-in-person.

Swamy’s contention was that the accused should, going by the precedents, seek exemption from personal appearance from the trial court, and that exemption could be granted only on the satisfaction of the concerned Magistrate.

The court agreed with Swamy’s proposition, but still granted relief in view of the peculiar circumstances of the case, and the presence of the petitioners during the hearing would cause more inconvenience than convenience.


The leaders appeared in the trial court hearing held at the Patiala House court in New Delhi on 19 December.

Though they were granted bail by the trial court that day, the leaders decided to challenge the high court’s refusal to quash the trial court’s summons in the Supreme Court.

Today, the Supreme Court declined to interfere with the the Delhi high court judgment refusing to quash the summons.

This is a setback of sorts.

The five SLPs before the court were filed by Sonia Gandhi , Moti Lal Vora and others, Rahul Gandhi, Sam Pitroda and Suman Dubey.

The respondent in four of these was listed as Subramanian Swamy, who was the respondent before the Delhi high court too.

In the SLP filed by Motilal Vora, the respondent is shown as the State of NCT of Delhi.

The SLPs were directed against the judgment delivered by the single judge of the Delhi high court, Justice Sunil Gaur on 7 December.

During today’s arguments, the petitioners raised the same arguments made before the Delhi high court. The petitioners challenged the issue of summons by a lower court to the Congress president, Sonia Gandhi, vice-president, Rahul Gandhi, party officials, Motilal Vora, Oscar Fernandes and Sam Pitroda, journalist, Suman Dubey and the company, Young Indian Private Company, apparently created by the party.

Senior counsel Kapil Sibal appearing for the petitioners questioned the locus of Swamy, as he himself was not a victim of alleged breach of trust.

Although the Supreme Court did not go into the merits of the case today, it is instructive how the Delhi high court answered the same contention.

The high court had held that the right of a private citizen to proceed against the corrupt could not be restricted.


Swamy had sought to expose cheating, fraud, criminal misappropriation etc. by the office bearers of the Congress, who are also directors and shareholders of the Young Indian Private Company and Associated Journals Private Limited, which was engaged in publishing National Herald, which has a rich legacy of being the mouthpiece of the Congress before and after independence.

When the National Herald ceased publishing in 2008, the AJL owed a huge debt of Rs 90 crore to the Congress.

This, according to Swamy’s complaint, was the outcome of interest-free loans extended by the Congress to AJL from time to time.

Swamy has alleged that the Congress had assigned this debt to Young Indian Private Company on receiving a paltry sum of Rs 50 lakh. Both Sonia Gandhi and Rahul Gandhi, according to reports, owned 38 per cent each of shares of YIPC

The allegation is that both Sonia Gandhi and Rahul Gandhi had hatched a conspiracy with the other accused to defraud the Congress and AJL by dubiously forming YIPC to misappropriate the huge assets of AJL, thus satisfying the ingredients of the offence of criminal breach of trust reposed in the Congress.

The National Herald House is a prime property on Bahadur Shah Zafar Marg in Delhi worth crores of rupees, although it was acquired at concessional rates for the purpose of publishing a newspaper. Today, the building has been rented out for commercial use.

Relief 2

Today, the Supreme Court, even while refusing to quash the trial court’s summons in the case, however, gave another substantial relief by expunging portions in the Delhi high court’s 7 December judgment, which aggrieved the petitioners.

The Supreme Court expunged all final inferences and conclusions drawn by the high court, on the various factual aspects of the matter.

Although the Supreme Court has not specifically mentioned which are the paragraphs or portions of the paragraphs, in 7 December judgment of the Delhi high court which stood expunged, it is clear that the Supreme Court had these in mind:

Paragraph 31:

"The impropriety of extending interest free loans to a separate legal entity i.e. AJL, which is a Public Limited Company, by the Congress Party is a matter of concern in a democratic set up…"

In Paragraph 38, the high court observed:

"This Court is of the considered view that the gravity of the allegations leveled against petitioners has a fraudulent flavor involving a national Political Party….”

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