Obstacles all the way

The recent judicial rulings in India and Malaysia in the Bofors case constitute a temporary setback for the prosecution.

EVEN by its own fitful standards of progress, December 2 was an especially bad day for the prosecution in the Bofors payoffs scandal. Setbacks and delays have been a part of the job of bringing the rich and the influential to account for their part in India's longest-running perhaps emblematic case of political corruption. But December 2 brought a double whammy, administered from quarters as diverse as the Supreme Court of India and a sessions court in Malaysia.

The substantial progress made by the Central Bureau of Investigation (CBI) over the last two years has been punctuated at regular intervals with unforeseen obstacles, as the accused have deployed their ample resources in every possible quarter. Death has claimed three of the individual accused and the company at the centre of the scandal has had its identity effaced through a series of corporate mergers. Martin Ardbo, president of the Swedish company during the crucial years, has proven all but impossible to bring to book. For these reasons, the Bofors action essentially has been focussed on two fronts the fugitive Italian businessman Ottavio Quattrocchi and the three Hinduja brothers who are based in the normal course in either London or parts of Switzerland. While at least one of the Hindujas was obliged by a judicial order to remain in India till the trial was completed, Quattrocchi had sought sanctuary in Malaysia as far back as 1994.

On December 2, a sessions court in Malaysia ruled against Quattrocchi's extradition to India to face trial, holding that the CBI's description of his alleged offences was "insufficient, vague and ambiguous". And in the Supreme Court of India, trial proceedings due to commence in a matter of two days were stayed by a three-judge bench comprising Chief Justice G.B. Pattanaik, and Justices K.G. Balakrishnan and S.B. Sinha.

The Bofors prosecution has of course been through earlier setbacks and survived. Neither of the two recent blows needs be fatal. But the outlook in Malaysia was further clouded on December 13 when a High Court dismissed the CBI's appeal against the sessions court order. And in India, the trial will effectively be in a limbo until at least March 11, 2003.

In ordering a stay on the trial, the Bench observed that the charge-sheets against the Hindujas had been quashed by the Delhi High Court in June and the CBI appeal was still pending before the Supreme Court. If the trial were to proceed in the circumstances, it would effectively be as good as allowing the CBI's appeal even before it is heard.

Appearing for the CBI, Solicitor-General Kirit Raval argued that it was not unusual for trial proceedings to continue while appeals on substantive matters related to the charges were pending before higher judicial authorities. Sensing the drift in the thinking of the Bench, the CBI then urged the Court to grant a week to file a reply to the Hindujas' application. It was highly irregular, said Raval, that a mention of this matter should be made before the Bench on Friday, a formal application filed the next day and an order issued on Monday. "Are there," he asked, "any special provisions for the Hindujas" in the law? Representing the Hindujas, senior counsel Ram Jethmalani was quick to interject with allegations of "contempt of court". He also accused the prosecution of bad faith in securing the publication in prominent newspapers of articles suggesting wrongdoing on the part of the Hindujas every time a crucial hearing was scheduled.

Reassuring the defence counsel that it would not be influenced by media reports, the Bench posed a rather sharp question to the prosecution: "What will happen if during the pendency of the appeal, the trial court proceeded to convict them and later we dismiss the CBI's appeal? It would lead to an anomalous situation where the apex court would hold that the High Court was right in quashing the charge-sheet on technical grounds but the accused would be convicted by the trial court. It would be a travesty of justice."

In ordering a stay that will remain in force till further orders, the Bench gave the CBI four weeks to file its response. It also directed that the CBI's appeal against the Delhi High Court judgment be listed before Justice V.N. Khare for March 11.

THE recent ruling represents a curious reversal of opinion by the Supreme Court. On July 12, in admitting an appeal by the CBI, a three-judge Bench of the Supreme Court comprising the then Chief Justice B.N. Kirpal and Justices K.G. Balakrishnan and Arijit Pasayat had rejected a plea from the Hindujas' counsel for a stay on trial proceedings. The Bench had taken a rather dim view of the Delhi High Court then, holding that in quashing the charge-sheet against the Hindujas on a rather trivial technical point, it had potentially compromised all criminal prosecutions: "We are convinced that this judgment is completely unsustainable. Forget about this case, if such judgments are not stayed, no prosecution will succeed. We are staying the operation of the Delhi High Court judgment, and all proceedings before the trial court will go on."

The basis of the Delhi High Court ruling was the Supreme Court judgment in the Vineet Narain case, also known as the hawala case, when it had invested the Central Vigilance Commission (CVC) with broad powers of oversight in matters of official malfeasance and corruption. Taking its cue from this rather limited point, counsel for the Hindujas submitted before the High Court that the CBI had not placed the results of its investigation before the CVC and obtained the concurrence of the supervisory authority before filing its charge-sheet against the Hindujas. The CBI and the CVC in turn argued that the Vineet Narain judgment did not raise the CVC to the status of a supervisory or sanctioning authority over the CBI. Rather, the purpose was merely to ensure that the CBI would not suffer from being accountable to the very officials and politicians it is supposed to investigate.

On July 12, the Supreme Court seemed tacitly to accept this reasoning, observing that "the Vineet Narain judgment is not meant for this". And in posting the CBI petition for a future date, it directed that proceedings in the trial court should continue. The apex court confirmed its stay on the High Court order on July 29.

The trial court was, meanwhile, faced with a petition pleading for the discharge of the Hinduja brothers on various other grounds. After rejecting this petition on November 14, Special Judge Prem Kumar proceeded to frame charges against the brothers the following day. The ruling of the Special Judge is a fairly comprehensive assessment of the evidence against the accused, including Quattrocchi and the Hinduja brothers. In diligently seeking to answer the Hindujas' contention that the evidence against them was weak and infirm, Judge Prem Kumar in fact found the opposite.

Ironically, at the same time, the CBI was also beginning to see a glimmer of hope on the Malaysian end of their endeavours. A High Court in that country had just then declined to hear Quattrocchi's plea that extradition proceedings against him in the sessions court be halted. It is curious, though entirely in character for the Bofors case, that a promising situation on two fronts has been rendered into a rather more bleak picture in the space of less than a month.

SOME explicit signals are now available of the factors that have been influencing the course of events from behind the scenes. Following a few media reports suggesting as much, Malaysian Prime Minister Mahathir Mohammad confirmed that his Italian counterpart Silvio Berlusconi had indeed urged him to intercede in the Quattrocchi case. But even while acknowledging that his intervention had been sought, Mahathir was at pains to emphasise that he was not about to agree, since the matter was entirely within the jurisdiction of the courts.

Yet, the rapid oscillations in the fortunes of the Bofors prosecution provide an accurate picture of the heavy stakes involved. But for a process that has gone through severe adversities in the past and successfully run the gauntlet of the widely disparate judicial systems of India, Switzerland and Sweden among other countries all this must be considered just passing misfortunes. The evidence gathered in the Bofors prosecution is of a nature that should help it withstand even worse.