gfiles magazine

March 7, 2011

MANDARIN MATTERS | corruption | br lall
An Open Letter to the Prime Minister of India

Respected Sir,

It had been an article of faith with me that, to set the country right, all we required was “a straightforward, effective, honest, firm, bold and well-meaning Prime Minister” who would be able to solve all the problems our country faces, with corruption in the forefront. With your elevation to the top, our hopes soared. With the reputation for integrity and learning that you commanded, people expected effective, bold and firm governance. Initially, we felt you were leading the country on that path but then that impression started waning. Disillusionment set in as scams started rolling out and peaked with the 2G spectrum affair.
The worst feature is that information about the 2G spectrum, CWG and other scams has been in the public domain for quite some time and yet no action was taken while the nation helplessly watched the loot of the treasury. In the 2G spectrum case, the information indicates that, on learning of the bungling, you wrote to the Telecom Minister, restraining him from allotting the spectrum without your permission. Despite that, after a while he issued allotment orders. He reportedly had the audacity to inform you of the allotment and you merely acknowledged his letter. The public has been discussing the issue for the past two years and certain knowledgeable sections have displayed all this correspondence. When it came to allotment of 3G spectrum, people’s groups exercised such pressure that the Minister could not make arbitrary allotments and had to hold an auction. That brought very high dividends and also focused the nation’s attention on the mischief related to 2G spectrum.
As public property, the spectrum was supposed to be held and operated by the Minister in trust, but it was disposed of in violation of the directions and procedures set by law, thereby betraying the trust he was bound to uphold and discharge as a public servant. This was criminal breach of trust as defined in Section 405 of the Indian Penal Code and punishable under Section 409 of the IPC with life imprisonment.
It was an act committed by the Telecom Minister but you were in the know. It was incumbent upon you to have taken action against him as follows:

i) Dropped him from the Ministry so that he could not influence the department further, fiddle with the files and destroy evidence.

ii) Registered cases under Section 409, IPC, against him and others concerned, and ordered prompt investigation.

iii) Registered cases under the Prevention of Corruption Act against him and all others involved and conducted thorough searches of all their premises, including bank lockers and so on, and looked into their assets and attached the same so that these could be forfeited in future at the appropriate time. Attachment was necessary at the initial stage as otherwise the assets would be disposed of, and cash and other moveables, including papers pertaining to benami properties, hidden. By not taking such action you facilitated the crime, omitting the legal duty imposed on you as Prime Minister and committing an offence of abetment under Section 107 (3), IPC. Your argument relating to the compulsions of a coalition is not tenable in the face of the substantive crime. The case of the CWG scam is similar. The appointment of PJ Thomas as CVC is a very obnoxious affair. The highest watchdog of integrity and morals in the country cannot be facing criminal charges himself. Your government has not accorded sanction for prosecution, without which no trial can commence. Punishing the high and mighty for corruption or related cases is not a done thing in India. I can safely infer, though it is painful, that all the governments have been protective of the high and mighty corrupt. Corruption, exploitation, tax evasion, misappropriation of public funds and the like are treated as perquisites of VIPs. But empanelling for higher responsibilities a bureaucrat against whom a chargesheet has been framed and the sanction for prosecution has been pending for years constitutes a crime against the nation. The sanction was pending with the Centre since 2003 or so, how could the government feign ignorance? This culpable act was committed on many occasions: at the time of his empanelment as Additional Secretary and as Secretary, at the time of posting as Secretary to the GOI, and at the time of selection as CVC. On the last occasion, the Leader of the Opposition brought the issue to the notice of the committee chaired by you but was overruled. The constitution of the committee is defective in that the association of the Leader of the Opposition is meaningless as he or she can always be overruled by the PM and the Home Minister as they will always be on the same side. But since, in this case, she brought it up, the government cannot plead that the State government had not sent the information. The obvious inference is devastating as the people have started holding you personally responsible for fomenting corruption, though at the same time they may swear by your personal integrity.

With the reputation for integrity you commanded, people expected effective, bold and firm governance.

There is a political stalemate in Parliament on the 2G spectrum affair, but the common man is concerned with a fair investigation and recovery of the misappropriated wealth. My worry is that, while the polemics continue, the evidence is being destroyed and lost. The CBI has been asked to register cases and conduct investigations but at the same time probes under the CAG and VK Shunglu have also been set up. These are supposed to be fact-finding bodies, but the facts are already in the public domain. Besides the report of the CAG, the media has already investigated and marshalled the facts with documents that are public and prima facie establish committing of criminal offences. As per the Supreme Court judgement dealing with the preliminary inquiries, it was clearly laid down in the Serajudin case from Madras (as reported in AIR, 1971, page 520) that the moment a criminal case is prima facie made out, all the inquiries should stop and investigations under the Code of Criminal Procedure should commence. The ruling is as good as law and setting up these committees in this case is bad in the eyes of the law. The JPC, as the government says, may be a political weapon but all these committees, including the JPC, go against the above ruling and hence are illegal. All this will hamper the investigations and recovery of the lost wealth. The Opposition contends that the JPC will pinpoint the responsibility and also study the procedures and suggest measures to prevent such occurrences in future. Fixing responsibility and collecting the evidence for prosecution is the task of investigation. The JPC can look into procedures better after the investigations are over and all the records have been collected as otherwise all these committees hamper the process of investigation and damage the criminal cases.
Monitoring by the Supreme Court did not succeed in the Jain hawala case as that case was scuttled.

Investigation, ie collection of evidence, is the most crucial aspect as the court will adjudicate on that. Committees collect and project facts which are not necessarily evidence. But investigations must be conducted by an agency independent of the government. All the governments have misused the CBI for their ends and as such the people have lost confidence in the CBI. An organ under the government cannot go against it and even if it is fair it will still have to prove its credentials every time. For this reason, most countries have independent investigating agencies like the Independent Commission Against Corruption. We are unable to ratify the UNCAC as that presupposes the independence of the investigating agencies. Ratifying the UNCAC would help us trace and recover the huge amount of black money lying in tax havens.

Steps to stem the rot 
From my long experience of investigating corruption cases and in my fight against corruption in high places that started publicly in 1996 with my article, “How to Make CBI a Free Agency”, I outline below the first phase of measures that require to be adopted if the government really means business:
i) Establish an “Independent Commission Against Corruption” that will cover all shades of public servants as also people from the private sector. The commission would be free of any governmental control and would include the functions of the proposed Lokpal, the existing CVC, the CBI and the enforcement directorate as also of the government at present in relation to corruption cases.
ii) Repeal the provisions of Section 26 of the CVC Act as the registration and investigation of a crime should not require any permission from anyone for any criminal charged with corruption even if he be a constitutional functionary or a legislator of any description.
iii) Repeal Section 19 of the Prevention of Corruption Act. This is a requirement of a colonial power and not of a democracy that boasts rule of law.
iv) Amend the Prevention of Corruption Act to provide for more stringent punishment. As of now a person amassing even thousands of crores of rupees through corruption does not attract punishment beyond seven years. It should extend to lifelong punishment for corruption or amassing assets beyond a certain level. Do away with notional fines; a provision needs to be made to confiscate properties to recover the amount equivalent to misappropriation along with penalties.
v) Make tax evasion a cognizable crime punishable with a jail term that should be commensurate with the amount evaded.
vi) Amend the Representation of the People’s Act to debar all chargesheeted persons from fighting elections or from holding any office in the government or in any registered political party. Persons convicted for any term, of course, cannot find any place.
vii) Rules under the Benami Property Transactions Act, 1988, be framed and promulgated immediately.
Other measures can follow but, if we mean business, the whole spectrum of laws and enforcement needs to be recast and implemented without any distinction or favour.

That, however, is a basic reform. Right now, to do justice and to restore public confidence it is necessary that SITs independent of the government, reporting to the Supreme Court, be set up. The SIT can be monitored by a distinguished retired police officer in no way under the government, as only he would be effective. He should write and endorse the ACRs of all its officers. Monitoring by the Supreme Court has been proposed in certain circles, but that experiment did not succeed in the Jain hawala case as that case was scuttled despite Supreme Court monitoring.
I am sorry to have recorded, however unpleasant, the legal position as you are answerable to the law of the land, your inner self and to history as I noted in the context of the black money of our country in my book, Financial Terrorism: Black Money and the Indian Elite. I reproduce the relevant excerpt: “However, the country expects action from the Prime Minister who is revered as an economist, an academician and an honest person though surrounded by dishonest and fraudulent crowds, by and large, who themselves may be having such accounts like any other person in power in India. It may be argued that if action is taken, the government may fall as most of the elite, including the civil servants and big businessmen, also hold such slush. The moot point is whether the PM owes his loyalty to such criminals or to the nation. What if the government of the day falls, the nation will surely rise? The nation will be galvanized, will be hopeful about the future and the PM would have an occasion to select a more honest team. The PM is fortunate to be blessed with this great opportunity, but if he ignores or misses it, he will be answerable to the nation, to himself and to history. Such tailor- made opportunities seldom visit though only the brave can avail. One can extend best wishes and cooperation to the PM if he undertakes this most sacrosanct national task.” The media has highlighted the declaration by Smt Sonia Gandhi to provide for a Lokpal and to amend the law on corruption to make it more effective and fast. Certain sections of public opinion have called it cosmetic and meant to score political points against the opposition. As reported in the media, all the constitutional functionaries have been kept out and all the politicians in power have been protected by the provision of permission from the presiding officer of the House, thereby extending the provisions of the infamous single directive to all these dignitaries. Public servants beyond a certain level already enjoy this privilege under Section 26 of the CVC Act. Then why this lame Lokpal? Can’t we imagine any government action, even the laws, without extending privileges? This feudal bias has to end. The law against corruption should be more stringent against the higher-ups as the capacity for corruption is directly proportionate to the power exercised. Corruption and misappropriation are crimes and no criminal should be shown any consideration. No permission is required to proceed against a person charged with the most heinous of crimes like murder or rape. Then why so in cases of corruption? The only likely reason is that it is a crime committed by the powerful, so they have enacted a shield to protect themselves.

Yours sincerely,
BR Lall
(Retired DGP, Haryana)

(BR Lall joined the Indian Police Service in 1967. He was CBI Joint Director and steered the Jain hawala, Assam LOC and Indian Bank probes. Repatriated from the CBI due to his insistence on investigating the powerful, he has given an account of his experience in Who Owns CBI: The Naked Truth.)

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