A trail of errors

Print edition : September 26, 1998

The story behind the Government's maladroit handling of the Bezboruah affair.

THE Bharatiya Janata Party-led Government's decision to transfer M.K. Bezboruah, Director, Enforcement Directorate, to the Delhi Government as the head of the Union Territory's Transport Department, supposedly to implement its Mass Rapid Transport System, came in for sharp censure by no less an authority than the Supreme Court. The rebuke came during the course of a hearing on the Indian Bank scam case on September 8. A three-member Bench, comprising Justice S.P. Bharucha, Justice G.T. Nanavati and Justice B.N. Kirpal, found that the Government had misled the court in its counter-affidavit explaining the reasons for Bezboruah's transfer from the E.D. The counter-affidavit was filed on August 25 in response to directions given by the court during a hearing on the Indian Bank scam case on August 18, when Anil Diwan, the amicus curiae (friend of the court), drew its attention to the Government's seemingly arbitrary decision to transfer Bezboruah.

While Diwan's submissions to the court amply demonstrated the premature and mala fide nature of the transfer, it was the counter-affidavit that aroused the court's anger. In para 12 of the counter-affidavit, the Government contended that the term "transfer" did not form a part of the terms of reference of the Independent Review Committee (IRC) Report, which was the basis of the Supreme Court's directions relating to the grant of autonomy to investigative agencies. The implication was that the Supreme Court's directions on the grant of autonomy to the Central Bureau of Investigation (CBI) and the E.D. did not extend to "transfers" of personnel heading these agencies but only to "external pressure or arbitrary withdrawals" of the functionaries concerned. In order to support its claim, the Government produced the terms of reference of the IRC, which had been notified in an office memorandum dated September 8, 1997.

Anil Diwan was quick to point out that the office memorandum had an entire line missing from it and that it was this missing line that included "transfers" in the terms of reference. The original office memorandum had said that the IRC had been set up, inter alia, "to examine the present structure and working of the CBI, the Enforcement Directorate and related agencies to suggest the changes, if any needed, to ensure: (a) that the offences alleged to have been committed by any person, particularly those in position of high authority, are registered, investigated and prosecuted fairly and expeditiously, ensuring against, inter alia, external pressure, arbitrary withdrawals or transfers of personnel, etc. and ensuring adequate protection to the concerned functionaries to effectively discharge their duties and responsibilities."

If the version of the office memorandum that was submitted along with the counter-affidavit had just left out the line "transfers of personnel, etc. and ensuring adequate protection to...", it could have been attributed to an inadvertent error. (Many such "errors" seem to be appearing in recent times. For instance, in the Law Commission draft on the Central Vigilance Commission, two missing words limited the choice of the Vigilance Commissioners to bureaucrats; in the Jain Commission Action Taken Report, Tamil Nadu Chief Minister M. Karunanidhi's name had crept into a certain chapter because of such an error.) What made the omission seem deliberate was that the next paragraph in the counter-affidavit went on to reinforce the point that transfers were not a part of the terms of reference of the IRC. It stated: "It will be observed therefrom that they are somewhat at variance with what has been shown as reproduction in the paragraph under reply. It is submitted that the words 'transfer of persons etc.' do not form part of the terms of reference of Independent Review Committee issued by the Government."

The court took serious objection to the error pointed out by Diwan and lambasted Santosh Hegde, the hapless Solicitor-General who kept looking back at the officials of the Revenue Department present in the courtroom, expecting them to come to his rescue. But no help came and Hegde was forced to admit the error. "It was a tremendous error," thundered Justice Bharucha. "The relevant words of the judgment are omitted. How can you do so? If this is not an attempt to mislead the Court, then what is it? The sentence is rewritten and that too by the Government? It shows with what great diligence the counter-affidavit has been prepared."

However, what did not surface in the court was the fact that the same kind of error had crept into the terms of reference as well as the preface to the IRC Report submitted to the court on November 18, 1997. Then too, Anil Diwan had blown the whistle on this. On December 3, Diwan brought to the court's notice this significant omission in the document and pointed out that it was at variance with the original office memorandum outlining the terms of reference of the IRC.

In support of his claim, Diwan had produced a copy of an affidavit filed by B.K. Halder, Joint Secretary in the Union Home Ministry, along with the original copy of the office memorandum which included "transfers" within the IRC's terms of reference. The same point was elaborated in Diwan's written submissions to the court the next day. The court then ordered the Government to make the necessary corrections, which were carried out.

Anil Diwan, the amicus curiae, who drew the Supreme Court's attention to the error in the Government's counter-affidavit.-ANU PUSHKARNA

amicus curiae

That being the case, it is difficult to believe that the same error and the same faulty office memorandum were preserved for nearly a year and reproduced on August 25 this year to reinforce the point that it was within the competence of the Government to transfer the head of an investigative agency, the Supreme Court's directions to the contrary notwithstanding. In fact, the omission was pointed out to the higher-ups in the Personnel Department by Shankar Aggarwal, the Director who signed the counter-affidavit, before it was submitted to the court. However, nothing was done to remedy it, suggesting that it was not an accidental omission.

The Solicitor-General who took the drubbing in open court on September 8 on behalf of the Government advised the Cabinet Secretary that the Government should offer to revoke Bezboruah's transfer. His recommendation was prompted not only by the tongue-lashing from the Bench, but also by the convincing arguments advanced by Diwan to demonstrate that the transfer was, in fact, arbitrary.

Diwan retraced the sequence of events leading to the transfer. He pointed out that former Chief Vigilance Commissioner (CVCr) S.V. Giri had relinquished charge on August 9. A request for the repatriation of Bezboruah was mooted by the Delhi Government on August 10. This request was received by the Home Ministry on August 11. He showed that the file moved with lightning speed through five offices, including the Ministries of Home, Finance and Personnel, the Cabinet Secretariat and the Establishment Office, all within a space of 48 hours; the clearance of the Appointments Committee of the Cabinet (ACC) was obtained, with Home Minister L.K. Advani, Finance Minister Yashwant Sinha and Prime Minister A.B. Vajpayee signing the order in rapid succession; and the transfer order was served on Bezboruah on August 13. Diwan also pointed out that it was a reconstructed file that was signed by the Prime Minister, and that the Minister of State in charge of Revenue and Personnel, R. Janarthanan, had been bypassed in the entire process. (Janarthanan was in Chennai at that time.)

Diwan also alleged that Bezboruah had received five calls from the Revenue Department on August 13, including two from N.K. Singh, the then Revenue Secretary, urging him to hand over charge immediately. M.C. Joshi, Special Director in the E.D., who had been ordered to take over from Bezboruah, also received five calls from the Revenue Department on the morning of August 14, asking him to take charge of the agency regardless of whether Bezboruah was there to hand over charge. Consequently, Joshi took charge on August 14 without Bezboruah handing over charge. The latter took another week to hand over the numerous files relating to various sensitive cases.

Diwan submitted that the court should call for the handing-over and taking-over files in which Bezboruah and Joshi had recorded verbal instructions conveyed by their superiors in the Revenue Department. The court took note of the fact that Bezboruah, whose services were said to be urgently commissioned by the Delhi Government, had been served not with an order appointing him Transport Commissioner, but with an order repatriating him to the Delhi Government. By the time Diwan finished his arguments on September 8, it became apparent that the Government had no reasonable explanation for the hasty and patently arbitrary transfer of Bezboruah.

The Solicitor-General's request for time to consult his client came soon after, and the hearing was adjourned until the next day. Both Santosh Hegde and C.S. Vaidyanathan, the Additional Solicitor-General, conveyed their view that the Government should not only offer to reinstate Bezboruah, but also submit all the relevant files for scrutiny if the court so desired. In fact, they had tendered the same advice to officials of the Personnel Department even before the September 8 hearing, since they believed that the Government did not have a strong case in its own defence. This was, however, not conveyed to higher-ups in the Prime Minister's Office (PMO).

R. Janarthanan, Minister of State in charge of Revenue and Personnel.-V. SUDERSHAN

Meanwhile, Hegde was summoned to the PMO on the evening of September 8 and told by a team of top bureaucrats, including Cabinet Secretary Prabhat Kumar, Prime Minister's Principal Secretary Brajesh Mishra and Revenue Secretary Javed Chowdhury, to put up a stout defence the following day instead of offering to reinstate Bezboruah. It was only subsequent to this that Hegde received a call from R.K. Nair, Establishment Officer, who conveyed the Prime Minister's instruction to state in the court that the Government would reinstate Bezboruah as E.D. chief.

Just before the court proceedings began on September 9, even as Hegde was preparing to convey the Government's decision, Revenue Department officials met him in his chambers in the Supreme Court and advised him about how to word the statement. During this meeting, a Deputy Director of the E.D. entered the chambers, demanding that his version be heard before any statement was made in court. The officer is reported to have claimed that he carried instructions from the PMO. However, M.C. Joshi, who was also present in the Solicitor-General's office, sent the Deputy Director out. Joshi is conducting an inquiry into the incident.

Bezboruah had once wanted the officer transferred out of the E.D. on the grounds of his suspected closeness to godman Chandraswami, who is being investigated in 15 cases of FERA violations. Despite six requests made to the then Revenue Secretary N.K. Singh, the Deputy Director continued in the post.

Thanks to tutoring by the bureaucrats who briefed him, Hegde's initial statement was ambiguous. It said that the Government was "willing" to keep Bezboruah in the E.D. until such time as it appointed another Director according to the provisions of the law. Hegde was told by the court that mere "willingness" was not enough; he was repeatedly asked to revise and rephrase his statement until the court got what it wanted to hear. The final statement that emerged said that the Government shall revoke Bezboruah's transfer order and reinstate him as the chief of the E.D. with immediate effect. It also said that the continuance of Bezboruah as the E.D. chief, his transfer or his replacement would be decided by the selection committee in accordance with the law. The court, in its order, directed the Government to give effect to the statement immediately.

M. Thambidurai, Minister for Law, Justice and Company Affairs.-T.A. HAFEEZ

The offer to reinstate Bezboruah did not result from any change of heart in the Government; it continued to insist that the transfer was routine and that no mala fide was involved. However, in its order, the court refused to go into the merits of the Government's submissions in view of its offer to reinstate the transferred official.

SMARTING under the double humiliation of being compelled to reinstate Bezboruah for want of a good defence and receiving a severe reprimand from the court, the Government set about finding scapegoats. It is reported that Santosh Hegde received a call from the PMO on the morning of September 9 and was told by the caller that the Government had lost its confidence in the Solicitor-General for having failed to put up a convincing defence. Hegde went on to argue the Government's case in the court that day but, in an honourable action, submitted his resignation to Attorney-General Soli Sorabjee the same evening, owning moral responsibility for the embarrassment. However, Sorabjee refused to accept Hegde's resignation. Sorabjee was subsequently asked by the Prime Minister to conduct an inquiry into how the error had crept into the counter-affidavit, as also into the circumstances that led to Bezboruah's transfer. The report is awaited.

Sources told Frontline that the Prime Minister himself called Hegde on the morning of September 9 and conveyed the Government's displeasure in the matter. If this is true, it is not known why he would want to hold Hegde responsible for a misrepresentation that occurred at the bureaucratic level. After all, the law officers assumed office only with the new Government and were not present when the Supreme Court heard the Jain hawala case. That the Solicitor-General should have known or suspected that the Government's counter-affidavit was not a genuine one is to admit that the Government was capable of such misrepresentation.

Inputs for the counter-affidavit came from at least three sources - the Home Ministry, the Ministry of Personnel and the PMO - and the counter-affidavit itself was drafted by officials belonging to the Ministries of Law and Personnel. Union Law Minister M. Thambidurai has said that his department is not responsible for the error.

Among the officials who could have provided inputs for the counter-affidavit or even helped in its drafting, the one who ought to have known that a similar error occurred in November last year and that it was subsequently rectified on the orders of the court was N.K. Singh, now Secretary, Coordination, in the PMO. For, during the hawala case hearings, the apex court had expressly ordered N.K. Singh, who was then Revenue Secretary, to be personally present at all the hearings. He was present in the court on many occasions, and even if he had missed this particular one, the court had enjoined upon him to acquaint himself with its proceedings.

Therefore, there is speculation that the misrepresentation in the counter-affidavit was deliberate and was within the knowledge of top bureaucrats. Yet it is doubtful if such a deliberate misrepresentation would have been resorted to without the tacit or explicit approval of the political higher-ups.

In the circumstances, the Government would do well to identify and fix responsibility on the real culprits, however high up they may be. It should give up any idea of a cover-up. After all, for the BJP-led Government, it is a question of credibility.

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