File photo of Bofors gun 155mm. Photo courtesy: Wikimedia Commons
THE STATESMAN, KOLKATA
05th January 2018
By Devendra Saksena*
The accused in scam cases are extremely rich and influential who hire the best legal brains and do not mind going down to any level to get a clean chit. The role of the investigators is often not above board: many a time investigators were found to be hand in glove with the persons they were investigating. This is one of the main reasons why whistleblowers are very cagey to come forward with instances of corruption in high offices, in spite of The Whistle Blowers Protection (Amendment) Bill, 2015 (amendment of the Whistleblowers Protection Act, 2014), which provides a mechanism for receiving and inquiring into public interest disclosures against acts of corruption, wilful misuse of power or discretion, or criminal offences by public servants.
A very incisive article in the Statesman Kolkata which no wonder, is held in high esteem by readers all over India and abroad, for its high ethics in journalism and for not succumbing to the five Cs – Corporatisation, Commercialisation, Co-option, Compromise and Communalisation – which control the world of media today. Isaac Gomes, Asso. Editor, Church Citizens' Voice.
The judgment in the 2G case has flummoxed everyone. The accused who were being branded as icons of corruption, having emerged as white knights while the accusers have received their comeuppance. The electronic and the print media is eating its words while the social media is afloat with jokes and weird theories.
Apart from the thinly veiled innuendos emanating from political opponents and corresponding protestations of injured innocence from the accused and their well-wishers, acquittal of the accused in the 2G case has brought to the fore the dichotomy between judicial and public perception. With the public failing to accept the judgment, we need to introspect as to why in so many instances of high profile corruption the courts have not gone along with the public perception of guilt.
Take the Bofors scam, the 2G scam, the Gujarat Riot cases. In all these cases, the accused walked free or only some small fry got indicted. To explain this anomaly one can perhaps say that unnecessary hype is created by the media which makes the accused appear guilty in public eye. Combined with the fact that the public actively distrusts bureaucrats and politicians, it is ready to believe the worst about the accused persons. On the other hand, a conscientious judge decides a case based only on legal provisions and the evidence available on record. Therefore, persons who have been presumed to be guilty by the public are often acquitted by the courts.
However, this does not explain the situation fully. One also has to keep in mind that the accused in scam cases are extremely rich and influential who hire the best legal brains and do not mind going down to any level to get a clean chit. The role of the investigators is often not above board: many a time investigators were found to be hand in glove with the persons they were investigating. The Mumbai Police Commissioner was jailed for connivance with Telgi & Co. the CBI Director’s role is under investigation in the 2G scam and in the Adarsh scam the government advocates were found to be colluding with the accused.
Many years were wasted in all cases in filling charge-sheets and the subsequent court proceedings. The Bofors scam first surfaced in 1987 but the charge-sheet was filed only in 1999. The trial in the 2G scam dragged on for seven years. Generally there is inordinate delay by investigating agencies in filing voluminous charge-sheets after which court cases drag on for decades. By the time the Court takes up the case in earnest, witnesses may have been compromised, investigating officers may have changed and main culprits may have died. The judge in the 2G case succinctly noted that initially the CBI was very prompt in its submission but towards the end, the CBI’s responses were faltering.
Starting from the days of Bofors, allegations of a scam are a sure-fire way to win elections. In fact everyone, except the Government of the day, loves a nice juicy scam. The media gets a good story, the public gets a chance to bring down the high and mighty and the Opposition gets a handle to beat the government with. Conversely constant media attention puts immense pressure on the Government. To avoid further ignominy, Government agencies drag the accused to court without proper investigation which ensures that generally the accused walk free. The results could have been quite had the agencies acted professionally.
It would thus appear that like God, scams have to be invented if they do not exist. Analysing, with hindsight, the Bofors, the Coalgate and the 2G scams and taking a contrarian view one would notice that the decision to allot airwaves on a “first come first served basis” was a policy decision of the Government which put mobile telephony within the reach of the poorest Indian. The JAM (Jan Dhan, Aadhaar and Mobile) model of dispensing benefits of the present government would not have been possible had mobile telephony been expensive, as it would have been after auction of the airwaves. Therefore, a sustainable charge against the 2G dramatis personae could only be that of cronyism in allotment of spectrum and not that of framing a faulty policy, which was what the CBI set out to prove.
Similarly, not auctioning coalmines ensured that the price of coal remained low, which meant lower prices of electricity as also other manufacturing products. However, it is also a fact that coal mines were allotted in violation of the extant policy. It would thus appear that 2G and the Coalgate were instances of the ever0present venality in our system and were not scams in the sense the term is generally understood. The Bofors “scam” can also be summarised in similar terms. The Bofors guns were undoubtedly most suited for requirements; later on the gun acquitted itself honourably in the Kagril conflict. Under-the-table payments were made at the time of the purchase of Bofors gun because this is how the armament industry works.
After the Bofors scam surfaced, the gun manufacturer was blacklisted and no purchases were made from it for many years. This led to a piquant situation where at the time of the Kargil war we had the Bofors gun but no ammunition to feed it. Consequently, we had to purchase ammunition from South Africa at $10,000 per round. Since the Bofors gun fires one round every 20 seconds, the cost of ammunition was exorbitant; much more than the cost of the gun or the amount defalcated. However, our knee-jerk reaction to the Bofors scam ensured that we did not manufacture the Bofors gun indigenously which was our right under the contract. The Bofors ghosh continues to haunt defence purchases; even essential purchases are inordinately delayed fearing allegation of corruption. No lessons were learnt from the Bofors scam; The Teheran sting (2001) showed the entire defence establishment still mired in corruption. Tehelka was different from Bofors in only that the journalists involved in the Tehelka sting were jailed.
Unproved allegation of a “scam” cause damage to society at large because allegations of corruption in high places shake the confidence of the public in the system and not in the government of the day alone. The public begins to justify their own corruption in light of the perceived corruption of the high and mighty, which corrupts the system at all levels. Another consequence is that regular politicians stand discredited in the public eye and community and caste leaders intrude into regular politics.
Persons involved in scams are seldom punished because the very mention of “scam” sends all enforcement agencies – Enforcement Directorate, Income Tax, CBI and their ilk – on overdrive. Working in silos, each agency tries to prove offences under its domain; contradicting other agencies in the process which ensures that the charges against the accused are seldom proved. In the Malegaon blasts case, the Maharashtra ATS and the NIA charged different sets of persons for the same blasts. After a change of government, the NIA gave a clean chit to the very persons it had charged, leaving everyone baffled. At another level, the hyperactivity of investigating and regulatory agencies – which smell a scam in every routine transaction – has led to bureaucratic inertia with top bureaucrats blaming “5Cs” – CBI, CVC, CAG, CIC and the Courts – for their lack of performance.
Looking at the frequency with which the allegations of scam are bandied about and the consequent drop in public confidence, a standard response to such allegations has to be thought of. Any credible allegation of widespread corruption should be thoroughly probed by a combined team of enforcement agencies working with a common strategy for a common object viz. Ensuring punishment of the accused and recovery of the defalcated money. All agencies should file a common charge-sheet and day-to-day hearings should be held in designated courts. Investigation and judgment should both be time-bound under law. Persons found guilty of perpetrating scams should be banned from public life forever. Finally, any law can be as strong as its enforcers. Political parties have to realise that all scams are bad; not necessarily only those of their political opponents. Till the time political parties fight over “our scam” and “their scam” there would be no reprieve from scams and corruption would continue to bedevil our polity.
*Shri Devendra Saksena is a retired Principal Chief Commissioner of Income Tax