The CBI's record in the Jain hawala case was disappointing. But there are powerful elements in favour of unravelling the truth in the 2G spectrum scam.
On December 16, 2010, the Supreme Court (Justices G.S. Singhvi and Asok Kumar Ganguly, ) ordered a comprehensive and thorough investigation by the Central Bureau of Investigation and the Enforcement Directorate into what has become notorious as “the 2G scam.” The investigation, into spectrum allocation from 2001 to 2008, would be monitored by the judges.
One is reminded of the Jain hawala case (Vineet Narain vs UOI) in which the author was counsel for the petitioners and later designated as amicus curiae. In that case, the CBI chargeesheeted three Central Cabinet Ministers and the then Leader of the Opposition in January 1996 leading to their resignation. In May 1996, the serving Governors of Kerala and Uttar Pradesh were forced to resign and were charged. The fallout of all these resignations was described by the BBC as “the biggest political earthquake to have hit independent India.” In the April 1996 elections, the Congress was reduced to 130-odd seats in the Lok Sabha and was voted out of office. However, all the prosecutions failed and most of the accused were discharged by the trial courts before the final judgment was delivered on December 18, 1997. (1998) 1 SCC 226).
The Supreme Court observed: “The recent experience in the field of prosecution is also discouraging. To emphasise this point, some reference has to be made to a large number of prosecutions launched as a result of monitoring by the court in this matter which have resulted in discharge of the accused at the threshold … These facts are sufficient to indicate that either the investigation or the prosecution or both were lacking” (Page 264-265, Para 50).
The 2G scam has an equally explosive potential and should not result in a similar denouement. It is instructive to revisit some of the principal shortcomings of the investigations and the lessons from the past.
The CBI
Considerable effort was made in the Jain hawala judgment (Justices C.J. Verma, Bharucha and Sen) to insulate the CBI and the Chief Vigilance Commissioner from political influence and make them autonomous. But the guidelines and directions given have been circumvented and have failed to achieve that result.
Many CBI officers, past and serving, are handicapped and cannot act independently and fearlessly, being subordinate to the political executive and bureaucrats — the same set of persons who are suspects.
Where powerful persons are involved, the CBI's track record is abysmal and hopeless. Justice Santosh Hegde in the CPIL vs . UOI: (2000) 8 SCC 606, 625 = Panna-Mukta Case observed that the CBI had resorted to ‘suggestio falsi' and ‘suppressio veri' and noted that files were destroyed unauthorisedly with an ulterior motive by its officers.
An equally trenchant criticism came in the Taj Corridor Scam case ((2007) 1 SCC 110 at 133), in which Justice Kapadia observed: “We reject the status report dated 31-12-2004 as it is a charade of the performance of duty by CBI” (Para 33).
“In matters after matters, we find that the efficacy and ethics of the governmental authorities are progressively coming under challenge before this Court by way of PIL for failure to perform their statutory duties. If this continues, a day might come when the rule of law will stand reduced to ‘a rope of sand'” (Para 35).
The CBI's track record in the Jain hawala case: The CBI's record in the Jain hawala case was equally disappointing. Sanjay Kapoor's first story in the Blitz on August 10, 1991 under the caption “Top Politicos in Multi-Crore Hawala Scandal” evoked no reaction from the investigating agencies. However, while investigating terrorist funding, the CBI on May 3, 1991 carried out simultaneous raids and searches all over India. Accidentally, diaries and documents were seized from the Jains, in addition to substantial cash and foreign exchange. The diaries contained hawala entries of payment in foreign exchange made abroad and equivalent rupee payments made in India to prominent and powerful politicians, bureaucrats and businessmen easily identifiable by the initials mentioned. The diaries were a ticking time bomb which could suddenly explode and had to be covered up. The cover-up was commenced by suspending the DIG-CBI in-charge, on the allegation that he was asking for a bribe — a trap laid by the CBI with the cooperation of the Jains who, ironically, instead of being the accused, became star witnesses. The unintended and unforeseen result was that the incriminating diaries were preserved. The time bomb was only temporarily defused.
The Jains were not even interrogated till the Supreme Court intervened on a PIL petition filed by Vineet Narain, Rajinder Puri, Kamini Jaiswal and Prashant Bhushan. The authenticity of the diaries was confirmed by the CBI after the resourceful journalist Vineet Narain presented their photocopies.
The version of B.R. Lall, former Joint Director, CBI, on how the Jain hawala case was scuttled by Vijaya Ramo Rao (then Director, CBI) is detailed in his book, Who Owns CBI — The Naked Truth.
In sum, the investigations were derailed till the court proceedings. Secondly, defective charge sheets were filed leading to the accused being discharged. Thirdly, the Enforcement Directorate and Income Tax were kept out of the picture from 1991 to about 1995, disabling them from recording statements which are admissible in evidence under FERA and Income Tax unlike those recorded by the police. The entire political establishment (ruling and opposition) closed ranks to save itself.
Skipper Cases
In the Skipper Construction cases, the Supreme Court, through a series of orders and with a continuous “hands-on” approach by Justice Jeevan Reddy, forced the investigating agencies to achieve substantial success. Some innovative approaches in those cases are worth recalling. If, prima facie, there was a case of bribe or loss caused by public officials by breach of the fiduciary duty or violation of law, the court attached the properties of the suspects, their spouses and dependants. ((1996) 1 SCC 272; (1996) 4 SCC 622, (1997 (1) Scale 532).
Peep into the future
The 2G scam case may acquire contours similar to the Jain hawala case as very powerful industrial and banking lobbies will exert influence to undermine the investigations.
But in contrast, there are powerful elements in favour of unravelling the truth. The Supreme Court has adopted a “no-nonsense” approach; the CAG report cannot be wished away; the Opposition is in full cry; the electronic and print media are doing a commendable job — and it is the unremitting pressure and the continuing debate in the media that can tilt the balance and become decisive factors.
The media, however, have their faults and excesses. To recall the famous words of Chief Justice Hughes of the U.S. Supreme Court: “Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the Press … it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. “
The media as a professional group have an inbuilt self-corrective mechanism promoted by the pressure of competition and the lure of improved ratings and readership. This hydraulic pressure is a self-cleanser and works aggressively even against media icons.
The way forward
First, the innovative steps in the Skipper Cases of attachment of properties for suspected bribes or breach of duty can be a potent judicial tool. Secondly, a key input would be to fashion a leak-proof mechanism (independent of the government and investigating agencies) to collect evidence from ‘whistleblowers' and potential insider ‘approvers' with the assistance of former police officers, CVCs, CECs and others with impeccable integrity.
Thirdly, the money trail through the money laundering, FEMA and Income Tax routes — where statements recorded during investigations are admissible — should be traced.
Our respected Prime Minister in his New Year message has promised to double efforts to make a “course correction” and cleanse our “governing processes” (The Hindu, January 1, 2011).
A long-term solution and course correction to reduce corruption will require parliamentary intervention by setting up an Independent Commission against Corruption (ICAC) with a distinct cadre of investigative officials and with an autonomous status and constitutional protection equivalent to the higher judiciary, the CAG and the CEC. A Director of Public Prosecution with similar status and protection must also be appointed. Other measures would merely be a charade.
Prime Minister Manmohan Singh, in his address to the CBI in August 2009, exhorted the agency to aggressively pursue high level corruption and change the perception that while petty cases were quickly tackled, the “big fish escaped punishment” (The Hindu, August 27, 2009). Will the investigating agencies live up to that exhortation? Can they catch the big fish? The litmus test is whether they will receive vigorous and unstinted support from the highest quarters. Otherwise, the fish will continue to feed on our national wealth.
(Anil Divan is a senior advocate. abdsad@airtelmail.in)
Keywords: Political scandals, A. Raja, 2G spectrum scam, Radia tapes, CBI, Enforcement Directorate, UPA government, Jain hawala case, CAG report, JPC
I am overwhelmed by the 'loud cries' of readers over this article. Its the anger of common man finding himself helpless before the government they have chosen. The government is doing everthing to corrupt every layers of democracy.The Recent example of Ex-CJI.The pious post of CJI which millions of Indians swear for honesty, has been made filthy.Ex-CJI is serving as chairman of National Human Rights Commisson.The favour bestowed over to him for his exceptional job by Mrs.Gandhi.I agree with Sivasathivel and Jayaram, nothing is going to happen.Overhaul of this government by public and installing an efficient and nationalist government is the only option.Through this comment,I appeal to readers not to repeat their mistake in 2014 when prince of Congress will smile to you for votes.
Power is not inherent in man, it is vouchsafed by those over whom this so called power is exercised. That is to say a person is only as powerful as we allow him or her to be. We, the people, must relentlessly demand rigorous investigation by independent investigative bodies to ensure that justice is served at all times. I fear a consistent failure to bring those in high places to book for wrongdoings may well result in vigilantism. Big fish smell worse than small fish, especially when rotten, and the people of India are beginning develop a strong aversion to the stench.
Thanks to The Hindu and Anil Divan for bringing up history and relating it to the present situation. I am not totally pessimistic in 2G case, to say that 'nothing will happen'. However I will still say, 'nothing will happen', unless the kingpin of the scam, one of most corrupt politicians of past two decades, the Prime Minister, is shown the door. As long as he is at the helm, corrupt people will rule the country and he will continue to guarantee them that 'nothing will happen'. Same as his signature on Indian currency notes, in the capacity of RBI Guv, guarantee 'the bearer, the sum of Rupees ....".
I can reassure that not a single fellow will be brought to books.Our honorable telecom minister is in the process of sowing the seeds by diverting the attention to how BJP/Alliance allotted the spectrum causing huge losses to the Govt.Instead of bringing all the crooks including some of the ministers,industrialists and whoever was involved ( the govt knows all the details) to books,the telecom minister will do everything to cover up the scam.I am neither a supporter of BJP nor CONGRESS nor any party. Watch my words 'Nothing will happen."
We, the Indians, have a sickening record of letting the perpetrators of financial skulduggery go away scot-free. There was a time when such people, however high and mighty, were shunned. Now, they laugh their way to a corporate hospital. Coming to specifics, CAG Reports are always left in the back drawer, to gather dust. He is a victim of lip service. His 2G Report will also go the same way. CBI will file a closure report after 20 years.
This is in response to Sivasakthivel. Its a well known truth that the himalayan amount swindled in the post-independent India will put British to shame. I believe a revolution is on the cards not very far though. I don't see light at the end of the tunnel. I firmly believe nowhere else in the world would corruption take place to this extent given the scale of population in our country. I would not blame politician as its us the people who have let them do this for all these years and keep quiet.
With so many agencies all having their own shortcomings, dont see a new body Independant Commission Against Corruption(ICAC) alone to overcome all of them. Rather all the so called rights at the higher judiciary CAG, CEC can be bestowed to CBI. This is will reduce the number of authorities involved in the process and save public money. But I dont think it is rational to expect the same people who want to loot to frame a system to prevent looting. The Constitution is not a small group to reform all at once.
Are we living in a country , where law exist only in books . Raja says he has followed what was done in BJP period , because we people did not like the way BJP ruled us ,we send them home . We put Congress in action to correct and construct the nation. They have just done the reverse. Law now has to act fast that's the message we people want.
The Prime Minister's exhortation is just another rhetoric to fool the public. The agencies will and be forced to function only as a cover-up agency not as an investigation agency. In the record of independent India, no politician has be convicted or there is any hope to be convicted for any of his wrong doings and a politician always exist in the backdrop of every corruption and unsocial activities in India. It is known to all but who is to tie the bell? The Congress which is confidence of its 'divide and rule' (creating a split between the communities) and 'money for vote' policies has always had a excellent record in abetting and sustaining corruption. Why else the CBI is hell bent on closing the suit against Quattrochi? If the agencies have to function without the fear of repercussions, then they should not be made to report to any individual politician, but to a body like JPC. However, since JPC will be constituted by the representatives of the parties, it is likely for a collusion to evolve and for joint-corruptions. Hence, CBI must also need to make its activities clear to the judiciary and the people. Any promotions in CBI, IB or RAW, should only be based on the number of successful convictions by the authority in question and again the criteria should be made public. However, I believe it is a utopian dream. Until the people wake up for a second revolution and come out of the illusions created by our self-serving politicians, they are bound to be looted. By the way, I would like to ask UPA, how are the different from the British who ruled India before independence?
Your interesting and well informed analysis of the 2G spectrum scam, in today's 'The Hindu' is timely. I hope the honourable bench of the Supreme Court hearing the matter will have the opportunity to go through your article 'Dealing with the 2G spectrum scam'. As has been pointed out by you, because of the powerful personalities involved from different spheres of our society, including the bureaucracy and politics, every well wisher of this nation is concerned whether anything substantial will happen. There is a strong apprehension that as in the past, as in the case of Vineet Narain vs UOI, this case may also fizzle out. But optimists like me believe, due to several factors pointed out by you, this case cannot be buried so easily. Anyhow, the truth about the honesty and integrity of our officers in the CBI and their inherent shortcoming of having to report to those who themselves are under the scanner needs to be appreciated and may be a SIT can be solution. Though ICAC and a Director of PP can be a step in the right direction, there is no guarantee that the political bosses will make even such a dispensation work. The politicians can take care at the time of appointment itself. Haven't we seen recently, how a tainted person is appointed as CVC, when his own Department is involved in the scam and he himself had acted in a manner to cover up the scam (even forgetting his part in the palmolein scam).
I do venerate Anil Divan and the Hindu, for exposing the under currents in the investigations of scams. It may be recalled that GOI spokeperson had stated that the GOI has no objection in the monitoring of the 2G Spectrum scam by the Supreme Court. If CBI were an independent entity like CAG, CEC etc, no such statement would have arisen. In view of this, I fully endorse the view expressed by the Author that a long-term solution and course correction is to set up an Independent Commission against Corruption (ICAC) or, may be, Anticorruption Bureau for Legal Evidences (ABLE) with constitutional protection appointed. This view is endorsed by the observations 'We reject the status report' made by Justice Kapadia and other Judges.
Despite trying to raise some false hope on how things may be different this time around, this article gives a pretty good preview of how the 2G scam investigation will be scuttled. By now, it's settled 'law' that, in India, money once eaten by crooks can never by recovered. And, that makes Manmohan Singh's inaction in preventing it from happening in the first place all the more gut-wrenching.
Call me a pessimist. I don't expect any swift resolution to the scam. Advocates and lawyers like the author know how to delay the process of law and by the time the culprit(s) are found most of them would be dead or so old that no justice will be served. The establishment will be spending crores of ruppes in defending the culprit(s) because they are part of the establishment. BJP before they came to power were very vocal about Bofors. What prompted them to become absolutely silent is anybody's guess. To the author, well written academic peice but you and I know that CBI is lap dog of the political masters in office.
The lack of confidence of the public in the CBI is understandable. The CBI has been utilized by the party in power to cover up the misdeeds of the powerful. Upright offices are harrassed by the powers that be. Moreover, the CBI has botched up several cases and this fact leads one to question it's professional capabilities. I wonder if any of the big fish in the CWG and 2G Spectrum cases will ever be punished.
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