`Justice has been thwarted'

LAKSHMANAN

Interview with Prashant Bhushan.

Prashant Bhushan, Supreme Court advocate and civil rights activist, has closely watched the progress of the Bofors case from the beginning. The author of the book Bofors: The Selling of a Nation (Vision Books, 1990), he challenged in the Supreme Court the Delhi High Court's order quashing the FIR in the Bofors case in 1992. The High Court had quashed the First Information Report (FIR) on a petition filed by a self-styled public interest litigant. It had also quashed the Letter Rogatory issued to the Swiss Court. The Supreme Court reversed the judgment. Prashant Bhushan spoke to V. Venkatesan on the Delhi High Court's latest judgment and its implications. Excerpts:

Do you think the Hindujas are innocent in the Bofors case?

The Hinduja brothers resisted the transfer of documents from Switzerland to India. They lost the case. If they were innocent, why should they legally challenge the transfer? These documents pertained to payments made by Bofors to the secret accounts held by the Hindujas. Switzerland has strict secrecy laws governing the sharing of details of bank accounts. It was only after the Switzerland Supreme Court was convinced that these accounts related to the offence of bribery that they agreed to the transfer of these documents.

Are the grounds cited by Justice Sodhi for quashing the proceedings against the Hindujas valid?

The Delhi High Court has quashed the proceedings against the Hindujas on technical grounds, saying there is inadequate and improper authentication of documents from Sweden. For instance, Justice Sodhi has referred to the joint statement dated February 22, 2005, from Sten Lindstrom and Thomas Lindstrand, in which there is an expression `stamped by him', and has asked who this `him' is. Obviously, it has to be either Lindstrom or Lindstrand. One letter to the Swedish authorities would have been enough. One fax will do. As per the procedures in Sweden, they are bound to return the original documents after verification to those to whom they belonged. If they were bank documents, they must have been returned to the banks concerned, or to the Bofors company by the Swedish Prosecutor's Office.

Then, Justice Sodhi says in paragraph 31 that the Prosecutor's Office had in its possession photostat copies, and they sent them to the Ministry of Justice, Sweden. This is not what a careful analysis of the joint statement reveals. The Prosecutor's Office had the originals and the photostat copies, and it was only after due authentication that the original documents were returned to the concerned parties. If there was any doubt about the authenticity, Lindstrom could have been called to give evidence. He would have been happy to come here. In the joint statement, they said they compared the originals with the photostat copies, sealed them and signed them.

In my view, the documents from Switzerland are sufficient to hold the charge of cheating against the Hindujas, as also the charge of bribery, which was unjustly quashed by Justice Kapoor. Now Justice Sodhi says only Bofors had given an undertaking to India that it would not employ agents to procure the contract, so Hindujas would not be guilty of the offence. It has to be recalled that it was Justice Sodhi who quashed the proceedings in the trial court against the Hindujas earlier on the ground that the CBI did not get prior approval from the Central Vigilance Commissioner in line with the Supreme Court's judgment in the Vineet Narain case, before filing its charge-sheet. Why should he have quashed the proceedings on this ground? The Supreme Court later had to step in and express disapproval of his misinterpretation of its judgment in the Vineet Narain case and let the proceedings against the Hindujas continue in the trial court.

In paragraph 53 of the May 31 judgment, Justice Sodhi referred to three documents in Volume 22 and concluded that the whole of Volume 22 emanated from the Prosecution Authority of Stockholm through Sweden's Ministry of Justice in response to a request from the CBI rather than in execution of Letters Rogatory issued by any Indian court. Of course, the CBI has been following it up, ever since the Letters Rogatory were issued. It makes no sense to draw an inference as Justice Sodhi has done.

In paragraph 58, Justice Sodhi said he would not have issued the direction to frame the conspiracy charge of cheating, if it had been brought to his notice that these documents were not capable of being proved, and that in order to prevent serious injustice, he would recall Justice Kapoor's order directing the trial court to frame charges of conspiracy against the Hindujas. When the trial has not even commenced, how can the material to prove the documents come up? However, it appears from the judgment that the CBI colluded with the accused.

Is it the end of the road?

The Supreme Court can entertain third party appeals against both Justice Kapoor's and Justice Sodhi's judgments if the CBI is reluctant to appeal against them for political reasons.

I had successfully challenged in the Supreme Court the quashing of the FIR in the Bofors case in 1992 by the Delhi High Court. But the long spell in the litigation has taken its toll. Most public-spirited individuals now do not have the energy or drive to pursue the case in the Supreme Court. They feel exhausted. There has been a sharp decline in the public interest in the case over the years. So I do not think that the Bofors accused would ever be brought to book.

The outcome of the case reveals the incapacity of our criminal justice system to bring any powerful and influential person to book. It is a very good case study on the functioning of the CBI (which has often shown gross inaction in this case owing to political pressure) and also on the functioning of the judiciary, particularly the High Court.

The Delhi High Court's orders have created similar hurdles in the progress of the case earlier. Can you recall some of them?

The May 31 judgment is the fifth time the judiciary came in the way of the investigation and trial of the Bofors case.

The first was when Justice M.K. Chawla of the Delhi High Court quashed the FIR and the investigation on the petition of a self-styled "public interest litigant", H.S. Chowdhary.

The Supreme Court reversed this order with severe strictures against the Judge. The second time was when a Bench of Chief Justice G.C. Mittal and Justice Satpal of the Delhi High Court quashed the investigation and Letters Rogatory on a petition by W.N. "Win" Chaddha. Again, the Supreme Court intervened and reversed the High Court's order with strictures against the High Court Bench.

The third time was when Justice Sodhi himself quashed the charge-sheet on the Hinduja brothers' petition on the grounds that the CVC [Central Vigilance Commission] had not been consulted before filing the charge-sheet. Again, the Supreme Court reversed Justice Sodhi's order.

The fourth intervention was in February 2004, when Justice J.D. Kapoor of the Delhi High Court set aside the charges of bribery on a petition by Bofors. Though this order was also patently erroneous, this was not appealed by the CBI.

Justice Sodhi could not have interfered with the trial in this manner, since Justice Kapoor's order directing charges of cheating to be framed against the Hindujas had become final. Justice Sodhi observed that he would not let any technicality come in the way of justice. But it appears that justice has been thwarted on the basis of an unconvincing technical ground.