A challenging assignment

Although D.R. Karthikeyan's tenure as CBI Director will be brief, his contribution during the period could prove crucial and decisive.

IN the general elections of 1996, the Jain hawala scandal was among the most important issues before voters. This time around, the topic has all but vanished from political discourse. Figures ranging from the Bharatiya Janata Party's L.K. Advani and Kailash Joshi to the Congress(I)'s Arjun Singh and the Bahujan Samaj Party's Arvind Netam have reappeared as major actors on the political stage. Predictably enough, no party barring those of the Left is in a position to attack its opponents on the hawala issue. Proceedings on the Special Leave Petition of the Central Bureau of Investigation (CBI) against the controversial orders that held that the Jain diaries were not admissible in evidence has moved at a snail's pace. A poor investigative process, a leadership that has recently been deferential to executive authority and a lack of organisational purpose seem to have beaten the most important investigation into sleaze in India's political life dangerously close to being out for the count.

The fate of the Jain hawala investigation illustrates the sheer challenge before the CBI's new Director,D.R.Karthikeyan.Fresh from the brilliant and awesome success of securing the conviction of all the 26 accused who were brought to trial in the Rajiv Gandhi assassination case, Karthikeyan has been placed in charge of the CBI until the end of March, when a six-month extension of his tenure of service is due to expire. The January 31 appointment was made two days after the Supreme Court turned down last-minute pleas by former CBI Director R.C. Sharma that he be granted an extension of service. The court had on December 18, 1997 ordered that Sharma not be given extension of service beyond the end of January, appropriately as part of its final orders in the Jain hawala case. An obsequious Sharma had replaced an independent Joginder Singh as the CBI Director.

How important will Karthikeyan's brief term at the CBI be? The new Director is the first new head of the agency after it was granted broad powers of autonomy by the Supreme Court last year. The Supreme Court's order in the Jain hawala case, apart from ensuring Sharma's exit, sought to guarantee the CBI's functional autonomy by placing it under the supervision of the Central Vigilance Commission (CVC). The court also directed that legislation be introduced to grant the CVC statutory status. Secondly, the order in the Jain hawala case mandated the creation of an independent prosecution agency similar to that of the United Kingdom's Director of Prosecutions. Finally, the court abolished the 1969 Single Directive, a Union Government order that prevented the CBI from conducting investigations against officers above the rank of Joint Secretary without the permission of the Ministries concerned. All these orders are "to operate until such time as they are replaced by suitable legislation."

The effective autonomy the CBI is able to assert until April, by when discussion on new legislation regarding the agency should begin, will shape the terms and character of the law that emerges. Karthikeyan's first steps have certainly held out hope for a change in that direction. On February 7, senior officials of the agency were allocated responsibility for spheres of the CBI's ongoing work. Special Director Trinath Mishra, widely tipped to succeed Karthikeyan, has been given responsibility for cases relating to the Bihar Animal Husbandry Department fraud. Mishra has also been placed in charge of anti-corruption investigations in the north, south, east, west and Delhi zones of the CBI. Additional Director G. Achari has been put in charge of anti-corruption investigations in the headquarters zone, special crimes in Zones I and II, and the working of all special task forces. Economic offence investigations in all CBI zones will be handled by Additional Director P.C. Sharma. Karthikeyan has retained supervisory control only of the Rajiv Gandhi assassination case.

This clear demarcation of responsibility is a welcome shift from the Sharma dispensation. The former Director's personal interventions in important cases had created controversy on more than one occasion, notably in the investigation of the Animal Husbandry Department fraud. His attitude to the Bofors investigation also raised all-round scepticism if not cynicism. Whether the charge was fair or not, Sharma came to be seen as something of a hand-picked undertaker of investigations in which the political stakes were high. His clampdown on the flow of information to the media from the CBI, too, affected the organisation's credibility. Karthikeyan, by contrast, is known for his commitment to transparency: through the unravelling of the Rajiv Gandhi assassination case, he allowed the media reasonable access to information within the confines of court proceedings where secrecy was often judicially prescribed. At his first major meeting with over 50 senior CBI officials on February 13, Karthikeyan warned against "premature publicity" to cases in which prima facie evidence did not exist, on the reasonable grounds that such publicity not only affected the rights of suspects but also jeopardised the investigation. He made it clear, however, that where evidence did exist, cases had to be pursued with integrity and speed.

Transparent, independent and credible investigation will be essential in the weeks to come. The CBI has been left with something of a bloody nose by Assam Governor S.K. Sinha's decision not to allow the prosecution of Chief Minister Prafulla Kumar Mahanta in the Letters of Credit (LoC) case. Sinha based his findings on his own scrutiny of the CBI's evidence as well as the expert opinion provided by former Chief Justice of India J.S. Verma and former Supreme Court Judge H.R. Khanna. Governor Sinha found that the CBI's contention that Mahanta had received Rs.40 lakhs from R.P. Borah, the principal accused in the LoC fraud case, was "mere hearsay". The CBI, he held, had not established that Mahanta had assets disproportionate to his known sources of income. On charges that Borah distributed bank drafts to the value of Rs. 26 lakhs in Mahanta's constituency, the Governor said that since they "were distributed openly to institutions and not individuals," there was "no evidence of Mahanta misappropriating any of these drafts."

This unprecedented rejection of a request by the CBI to prosecute a public servant suggests, at the very least, either an indifferent quality of investigation or an even more worrying role of political influence in shaping the course of the investigation. In the past, Bhishma Narain Singh as the Governor of Tamil Nadu had refused permission for the prosecution of a former Chief Minister, but the CBI had not been involved in those investigations. Mahanta, for his part, had consistently argued that Sharma had arranged an inquisition against him at the Congress(I)'s behest.

Karthikeyan says only that both the CBI and the Governor "have done their duty", but he will soon have to decide whether to terminate the investigation against Mahanta, move a legal appeal against Sinha's decision, or instruct his officials to excavate fresh evidence. The CBI's findings in other cases, notably the Panna-Mukta oil and gas field deal in which the agency cleared former Union Petroleum Minister Satish Sharma, are also being tested in courts.

Perhaps Karthikeyan's biggest challenge will be to protect the CBI's autonomy from political pressure. Sources told Frontline that several important cases have been hanging fire since the summer of 1997. Requests made in July 1997 to sanction the prosecution of five important former Congress(I) Union Ministers, for example, have yet to be cleared by the Prime Minister's Office. Satish Sharma himself is accused of the relatively minor offence of handing out 15 petrol pump licenses in violation of rules, while Sheila Kaul and P.K. Thungon are charged with having played a role in the improper allotment of government housing. Former Union Telecom-munications Minister Sukh Ram is charged with the considerably more serious offence of wrongfully awarding a contract to Haryana Telecom, an act that allegedly cost the exchequer Rs. 15 crores. Finally, former Prime Minister P.V. Narasimha Rao's key aide Madhavsinh Solanki is accused of attempting to engineer a cover-up in the Bofors affair by handing over a note to a representative of the Swiss Government asking it to go slow on investigations into the bank accounts in which payoffs were allegedly held.

Ensuring transparent and independent investigation is unlikely to be easy in the months to come. Sonia Gandhi's broadsides on the Bofors affair have left few in any doubt that pursuing this most vital investigation is certain to be difficult should the post-election political dispensation involve Congress(I) leadership, participation or even support. Yet Karthikeyan has in the past shown the courage to stand up to political intimidation. There was no question of accepting any political pressure to have any one implicated in the Rajiv Gandhi assassination case. He courageously resisted efforts by Rajiv Gandhi "loyalists", if they can be called that, to derail the proceedings in the assassination case in the Designated Court at Poonamallee near Chennai through the medium of the Justice M.C. Jain Commission of Inquiry. Given Sonia Gandhi's personal support for Justice Jain's enterprise, his position required an evident courage of conviction.

Although his tenure as CBI Director will be brief, his contribution could prove decisive. Without a strong political executive in place to shape the CBI's working, the organisation has the opportunity to regain the credibility and authority it steadily lost through 1997. If Karthikeyan succeeds in ensuring that objective, it will be a contribution of even more long-term significance than the role he played in the Rajiv Gandhi assassination case.