The setting up of an inquiry by a retired Judge of the Supreme Court into the Tehelka expose appears to be a part of the government's tactics of diversion and delay.
THE Union government on March 24 appointed a Commission of Inquiry under Justice K. Venkataswami, a retired Judge of the Supreme Court, to probe certain aspects of the allegations contained in the Tehelka tapes and transcripts. The allegations, accordin g to the notification, tend to cast an adverse reflection on the manner in which defence procurements and other transactions of the Central government were carried out.
The appointment of the Commission follows Prime Minister Atal Behari Vajpayee's announcement in the course of his address to the nation on March 16 that the government would institute an inquiry by a sitting or retired judge of the Supreme Court and that it was consulting the Chief Justice of India, Justice A.S. Anand, in this regard. An inquiry became necessary, Vajpayee argued in his speech, because such an important matter could not be allowed to drift and become a football of political calculations and because the facts needed to be nailed. However, the speech made it clear that the government did not have an open mind on the issue. Vajpayee said: "Throughout the hours of recordings (by tehelka.com), no deal is actually struck. No Minister is invol ved. The boasts and allegations which the actors hurl are patently false, even the slightest effort would have revealed them to have been completely contrary to facts. Hurling such allegations is criminal. Giving heed to them is just as destructive."
"If any one has done wrong, he must be brought to book - swiftly and with the fullest force of law," he said, promising the inquiry all assistance.
The terms of reference of the Commission make the government's objectives clear. There is no hint therein that the Commission would be free to examine the available evidence on the involvement of senior politicians and bureaucrats in alleged defence scam s. The first part of the terms of reference says that the Commission shall inquire whether the transactions relating to defence and other procurements referred to in the videotapes and transcripts have been carried out in accordance with the prescribed p rocedures and the imperatives of national security. Secondly, the Commission would inquire whether in any of these procurements illicit gains have been made by persons in public office, other individuals, and any organisation as alleged, and if so, to wh at extent. In other words, the Commission will have to establish whether there was any linkage between the payments made by the Tehelka team and any actual procurement transactions. As the Tehelka team was only negotiating a fictitious procurement transa ction, there may be no scope for the Commission to examine how porous the procurement system in the Defence Ministry is or whether an arms dealer with the necessary monetary resources would have been able to destabilise the entire system. What the tapes revealed was only a tip of the iceberg and the Commission has no scope to bring the larger malaise under scrutiny. By inference, it is clear that the Commission would not be able to look into the claims of Bangaru Laxman and Jaya Jaitley that they accept ed money as donations to their party funds.
If the transactions had been carried out under the prescribed procedures and the imperatives of national security at least on paper, would that be sufficient ground to rule out any illicit gains having been made by anyone? Though the Commission would be competent to examine this aspect, its probe would be restricted to specific allegations that have been made against persons in public office, individuals and organisations as having made an illicit gain. If the illicit gains so made do not match the alle gations in the expose, would the Commission still inquire into them? It seems unlikely.
The Commission has been asked to suggest action that may be taken in respect of persons who may be found responsible for acts of commission and/or omission in respect of the transactions referred to in the first clause. This appears to be an attempt by t he government to deflect demands for the immediate prosecution and arrest of those found guilty on camera.
The Commission has also been asked to inquire into all aspects relating to the "making and publication of these allegations and any other matter which arises from or is connected with or incidental to any act, omission or transaction" referred to in the first two clauses. This clause enables the Commission to inquire into the motives, if any, of tehelka.com in bringing out this expose at this juncture, which appears to be a veiled attempt to bring into disrepute one of the finest works of investigative journalism in India.
THE Government faced considerable embarrassment in the matter of instituting an inquiry in the backdrop of the Opposition's lack of trust in any probe initiated by it. It has the power to constitute a Commission of Inquiry headed by a retired Judge witho ut consulting the Chief Justice of India. It was also aware that it would be difficult to get the Supreme Court to agree to spare a sitting Judge for the probe in view of the political nature of the controversy. It is clear that the government at the out set wanted the Chief Justice to recommend the name of a retired Judge of the Supreme Court for the probe, which it felt would carry credibility in the face of the widespread scepticism about the government's sincerity and objectiveness in this affair. Bu t instead of requesting the Chief Justice straightaway to name a retired Judge, it sought the services of a sitting Judge. It was open to the Chief Justice of India to nominate a sitting Judge in response to the government's request without consulting th e Full Court. However, Justice A.S. Anand, it appears, acted with abundant caution in seeking the Full Court's opinion before expressing his inability to spare a sitting Judge for the probe.
The Chief Justice could have expressed his inability to name a retired Judge also as there appears to be no precedent for such a step. This would have forced the government to take the responsibility of finding a retired judge. By getting the Chief Justi ce to agree to recommend a retired Judge, the government seems to have passed on the onus of ensuring the neutrality of the probe to the judiciary. This, many feel, is an unhealthy precedent.
The view that a judicial probe of this nature cannot be of much use in this case appears to be valid. The setting up of the Commission of Inquiry does not prevent the filing of first information reports based on reasonable suspicion. But the investigativ e agencies have made no effort to prosecute those who may have committed crimes under the Prevention of Corruption Act and verify the claims of Bangaru Laxman and Jaya Jaitley that they accepted donations to the party in good faith.
Secondly, two parallel enquiries have been initiated. The Defence Ministry appointed a one-man fact-finding committee on March 22 to probe the conduct of officials whose names have figured in the tapes. Headed by R.P. Bagai, Joint Secretary and Chief Vig ilance Officer of the Ministry, the committee has been directed by Jaswant Singh, the new Defence Minister, to submit a report within a month. It will look into transactions relating to the procurement of armaments, weapons systems and stores that have b een referred to in the tapes in order to ascertain whether the prescribed procedure has been followed. It would also report on whether there is any scope in the present procurement policies for manipulating the procedures and suggest corrective steps.
The other inquiry is by a three-member court headed by Lt.-Gen. S.K. Jain set up under the Army Act. This court will also examine whether there has been any deviation from established norms for procurement. It has been asked to suggest ways to make the p rocurement process transparent. It will probe whether there has been a security breach in the Army's Weapons and Equipment Directorate or any case of "moral turpitude" on the part of personnel there.
Besides, another inquiry is on into the allegations that a conspiracy in relation to the Tehelka expose was hatched in the office of a Home Ministry official in North Block with a view to discrediting the government.
The multiplicity of inquiries with similar mandates also raises questions: Will there not be a duplication of work and overlapping of terms of reference? What if they arrive at different findings?
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