A shot in the dark

Justice S.N. Phukan's first report on the Tehelka tapes provokes a furore.

EVERYONE has heard the bang, but no one knows what the missile has hit - or even if it has actually gone off at all.

On February 4, Justice S.N. Phukan submitted the first volume of his three-part report on the Tehelka tapes to the Union government. The Commission was set up to investigate a covert investigation by tehelka.com, which filmed top politicians and military officials offering to swing an arms deal in return for bribes. Defence Minister George Fernandes' closest aide Jaya Jaitley and former Bharatiya Janata Party president Bangaru Laxman, were among those filmed in March 2001 receiving cash from Tehelka reporters posing as representatives of a non-existent firm (Frontline, April 13, 2001). Justice Phukan's 641-page report is based on the in-camera examination of 507 secret defence files and the evidence of 26 witnesses on 14 deals. The deals involve purchases made from 1981 to 2001, authorised by Fernandes, Sharad Pawar and Mulayam Singh Yadav as Defence Ministers.

Opposition figures reacted with outrage to news of Phukan's report. Several senior Congress(I) leaders described the Commission's findings as a "scandal in themselves". Rashtriya Janata Dal leader Raghuvansh Prasad Singh went one stage further. He asserted that nobody would trust the findings of the Phukan Commission as it was set up "to give a clean chit to Fernandes". "We have been boycotting him in Parliament," Singh continued, "and now the people will boycott him. There is no doubt about it." Most in the Congress(I) and other Opposition parties make no secret of their belief that Justice Phukan timed the release of his report to bail out Fernandes and the National Democratic Alliance government on election-eve. Justice Phukan's predecessor, Justice K. Venkataswamy, had said he had completed the report prior to resigning office. It is unclear why Justice Venkataswamy did not release the document himself, and if Justice Phukan's findings differ significantly from those of his predecessor.

In fairness to Justice Phukan, though, it is not clear if the Opposition's fury is justified. "I have not," he affirmed before journalists shortly after handing over the report to Prime Minister Atal Bihari Vajpayee, "given a clean chit to George Fernandes." This, in plain English, seems to suggest that the Defence Minister did have something to do with what Justice Phukan had found. The report, Justice Phukan was reported as saying, "clearly brings out the involvement of middlemen in defence deals and has recommended action against certain officials for their alleged role in deals while suggesting improvement in the present system of procurement of defence equipment." If this is in fact the case, the Union government is now legally bound to consider Justice Phukan's report and initiate criminal investigation against those the Commission has named.

Nothing on this, however, has so far been heard from anyone in the Union government. Fernandes, who ought to have had some concern for whatever criticism the report contains of his Ministry, focussed almost exclusively on self-justification. He described the Tehelka sting operation as "motivated rubbish" and said that political forces who backed the organisation's "malicious campaign" against him stood exposed. "Ever since the Tehelka rubbish came out those who wanted to malign me used this as well as the coffins issue to tarnish my image," Fernandes argued, "but did I have anything to clarify?" If it is indeed the case that the report has not exonerated Fernandes, as Justice Phukan himself as asserted, it is clear that the Defence Minister has a lot of questions to answer - questions on which no progress has so far been made.

Justice Phukan, however, has not helped his own case with some of the assertions he has made on the affair. A news agency report, for example, quoted him as saying that there was no link between the 15 defence deals examined by him and the Tehelka tapes. Yet, key evidence of corruption in the deals was in fact on the tapes, which were the raison d'tre of the Commission's investigation. Soon after taking charge of the Commission from Justice Venkataswamy, who resigned in November 2002, Justice Phukan reversed his predecessor's judgment on the legal reliability of the tapes. These were subsequently sent for technical assessment to a laboratory in the United Kingdom. No one other than the Union government and Justice Phukan knows which laboratory is being used, leaving wide room for suspicion of malpractice. More important, Justice Phukan seems not to have used the evidence on the Tehelka tapes to arrive at his determination on the deals - making clear that the most potent weapon in his arsenal was not fired.

Unless and until the Union government chooses to make public Justice Phukan's report, people may never know just what he had to say on the 14 deals examined. Nor will it be possible to see who were cross-examined or what evidences were brought on record.

Justice Phukan's second report, on the middlemen involved in the deal, is expected this summer. Notices are believed to have been issued to five alleged arms dealers, whose work on behalf of companies was at that time illegal under Indian regulations. What determination he arrives at will, clearly, depend on what has been said on the Tehelka tapes, which in turn will depend on what the U.K. laboratory finds. "The whole thing is ridiculous," says Tehelka editor Tarun Tejpal. "Justice Venkataswamy had clearly said the tapes were reliable; after all, none of those on them has denied being present when the meetings took place, or actually said they did not say what they said on film. I can't understand why Justice Phukan should feel otherwise, or why the simple business of determining the reliability of the tapes is taking so long. The said truth is that no one wants the truth, because it involves so many people from different parties."