A real sting

Bangaru Laxman is escorted out of the CBI court in New Delhi.-SUSHIL KUMAR VERMA

A CBI court's verdict against former BJP president Bangaru Laxman puts at rest all doubts about the legal validity of sting operations.

IN the world of sting journalism, the dividing line between exposure of a wrongdoing and entrapment of the wrongdoer has always been blurred. In the Indian context, the law has been unclear as to whether a sting operation involving a fictitious transaction could make the person exposed guilty of wrongdoing and whether the journalist using a sting operation is equally liable for prosecution. The judgment delivered by the Central Bureau of Investigation (CBI) Special Judge, Kanwaljeet Arora, on April 27 in the case of Bangaru Laxman, a former president of the Bharatiya Janata Party (BJP), has put this lingering doubt to rest. The judge found Laxman, 72, guilty under Section 9 (taking gratification, for exercise of personal influence with public servant) of the Prevention of Corruption Act (PCA), 1988, and sentenced him to four years' rigorous imprisonment for the offence of accepting illegal gratification in 2001 when he was a Rajya Sabha member, to facilitate the grant of government contracts. He has been sent to the Tihar jail in New Delhi.

In 2001, two journalists of the news magazine Tehelka (tehelka.com at that time), posing as arms dealers, videotaped Laxman accepting Rs.1 lakh as gratification towards arranging defence procurement from a fictitious company, which promised to deliver a fictitious product to the country's defence forces, and televised the video, much to the embarrassment of him and the BJP-led National Democratic Alliance (NDA), which was in power at that time. The fact that the BJP was in power at the Centre until 2004 helped postpone the filing of a first information report (FIR) against Laxman, on the grounds that a commission of inquiry had been set up by the government. The United Progressive Alliance (UPA), which came to power in 2004, wound up the commission before it could submit its report. In December 2006, the CBI filed an FIR and began investigations into the sting operation, leading to the filing of a charge sheet against Laxman in the CBI Special Court.

The Tehelka journalists, posing as representatives of M/s Westend International, London (a fictitious company), submitted their brochures and applications with the authorities concerned for promotion/evaluation of their product, hand-held thermal imagers (HHTI), to get the supply orders from the Indian Army. Laxman accepted Rs.1 lakh from Mathew Samuel, one of the them, as a reward for exercising his personal influence with the Ministry of Defence to secure the supply orders. The team secretly video-recorded the eight meetings it had with Laxman and his staff. Laxman is alleged to have said that he would accept the balance payment worth Rs.4 lakh in dollars.

Laxman contended that the sting operation was carried out in violation of his fundamental right to privacy and that the Tehelka team had illegally induced and given him Rs.1 lakh. The judge agreed that the method adopted by Tehelka could be considered objectionable but the purpose was not. Laxman argued that the evidence on record fell short of proving the necessary ingredients of the offence under Section 9 of the PCA. He pointed out that he had never stated that he had any proximity with any public servant, and since the company and the product were fictitious, he could not have exercised any influence over anyone to do or not to do any act.

Interpreting Section 9, the judge said that it did not talk of any specific demand by the accused for illegal gratification. It specifically states that whoever accepts or obtains or agrees to accept or attempts to obtain any gratification as a motive or reward, for inducing by the exercise of personal influence any public servant, then he can be tried for an offence under this section. Consequently, the language, import and spirit of Section 9 is acceptance of gratification. Its invocation did not call for any other act, action or inaction, the judge held.

Justice Arora agreed, No doubt, the company, Westend International, and the product, HHTIs, which they were promoting were both fictitious, but this fact was only known to the representatives of the company, who had approached the convict for favour. Convict Bangaru Laxman had agreed to exert his personal influence in favour of the fictitious company for his personal gains by way of getting illegal gratification' with the intention and belief that the product for which a supply order is required is genuine. Section 9, he held, covered such acts.

Laxman contended that the words personal influence used in Section 9 suggested that the accused must have proximity with the public servant sought to be influenced, whereas there was no evidence to suggest that he knew the public servant concerned personally. To this, the judge reasoned that the word personal is a qualifying word used in this section for the word influence. Therefore, the word personal should not be interpreted in such a manner that the word influence loses its significance.

The CBI had sought to rely upon the deposition of T. Satyamurthy, Laxman's secretary, who was an accomplice in the crime and had turned approver. The judge agreed with Laxman's contention that the very fact that Satyamurthy participated in the commission of the offence introduced a serious taint in his evidence, unless it was corroborated in material particulars by other independent corroboration. However, he disagreed with Laxman's counsel that independent corroboration should cover the whole of the prosecution case or even all the material particulars of the case. If such a view was adopted, it would render the evidence of the accomplice wholly superfluous, and render the provision of having someone as approver or tendering him pardon nugatory, the judge observed.

BJP's damage control

Another line of defence advanced before the court was that Laxman had received Rs.1 lakh towards the party fund, for which a receipt was issued by the party office in favour of Mathew Samuel, which he had deliberately failed to collect. The court accepted Mathew Samuel's plea that he had given the amount as a bribe to Laxman and so there was no question of collecting any receipt.

Moreover, Laxman could not have accepted the money for the party fund as he was not the party's treasurer. Satyamurthy, in his deposition, pointed out that after the Tehelka tapes were telecast, the BJP leadership had called for a meeting to undertake a damage-control exercise and it was decided at the meeting that the bribe amount be shown as party fund and that a receipt be made out to that effect and issued to the arms dealer. The court accepted Satyamurthy's deposition as correct and cogent. This revelation about the BJP's dubious role in the cover-up exercise is at odds with its current act of distancing itself from Laxman. The party certainly has much to explain why it sought to cover up the scam in the manner it did in 2001.

The court was convinced that the Tehelka team acted as whistle-blowers only. It was Laxman who, despite not being related to the process of procurement or evaluation of any product for the Indian Army, entertained the two journalists and assured them that he would speak to the Defence Secretary, and, thereafter, told them that the message had been passed on, and accepted the gratification.

While pronouncing the sentence, the judge observed that corruption was worse than prostitution while the latter endangers the morals of an individual, the former invariably endangers the entire society. The judge pointed out that Laxman kept his individual interests over and above the national interest and had even agreed to compromise the security and safety of the nation. Laxman, the judge held, agreed to compromise the lives of lakhs of soldiers who without fearing for their lives, fight for the nation. He further pointed out that Laxman did not even give a thought about the quality of the equipment promoted by the fictitious company. He seemed to have believed that the product for which a supply order was required was genuine.

The gravity and magnitude of corruption, according to the court, assumes dangerous proportions when it is practised by someone in a position of authority to compromise the defence mechanism of the country and the lives of its brave soldiers. As the president of a political party, Laxman was supposed to have shown exemplary character to lead by example. But he did not, the judge observed.

The punishment prescribed under Section 9 of the PCA is for a term not less than six months but which may extend up to a period of five years with a fine. Comparing this provision with the corresponding provision in the Indian Penal Code (Section 163), which prescribes simple imprisonment for a term which may extend up to one year or with a fine or both, the judge said Parliament must have had good reasons to enhance the punishment to a minimum imprisonment of six months and a maximum extending to five years, with liability to pay a fine as well. The judge thus justified the four years' rigorous imprisonment awarded to Laxman as he was only implementing the will and intention of Parliament, which enacted the PCA to deal sternly with persons found guilty under the Act.