An inquiry in trouble

Published : Dec 20, 2002 00:00 IST

"BECAUSE of the nature of the case, I must come out successfully and without any scratch on my reputation. Till now I have acquitted myself credibly and to the satisfaction of everyone. I want to continue like this." This is what Justice K. Venkataswami said in March 2001 in an interview to a news portal before beginning the Tehelka probe. With his resignation as the Chairman of the Commission the biggest casualty is the Tehelka inquiry just when it was coming to an end. "With one more extension I would have submitted the final report," said Justice Venkataswami before submitting his resignation.

That the probe has reached its end in less than two years is no small achievement, given the pressures under which the Commission worked since it started its hearings in June 2001. It went into various aspects of the inquiry, including the defence deals, the veracity of the Tehelka tapes, authenticity of the transcripts and the portal's motives. The government and Tehelka counsel agree that this was possible because the Commission had set a time frame for completing its tasks and made sure that it was respected by all concerned.

The Commission has completed witness action, including the examination of the witnesses in defence of various noticees and the examination of these noticees. All this has been recorded in the 3,114 pages of depositions which are ready with the Commission. So far, up to 50 witnesses have been examined.

The Commission achieved this task in 181 sittings, during which it passed 720 interim orders. It has completed its inquiry into 15 defence transactions, including those involving the SU-30 aircraft, Barak missiles, T-90 tanks, Rocket launcher MK III, and the Kandla-Bhatinda pipeline deal. Up to 961 pages of deposition have been recorded on the defence deals. Some of its significant orders include the one on the Tehelka tapes on October 12, 2001, where the Commission held them to be genuine. The Commission even clarified its own functioning to the parties concerned when the occasion demanded it. For instance, when a demand was made in Parliament that a parallel commission be set up to probe the controversy over the use of sex workers by Tehelka, the Commission clarified that this aspect came within the scope of its inquiry.

What happens to the inquiry now with Justice Venkataswami's resignation? What impact will the controversy have on the report, which is almost ready? Answers to these questions cannot be found in the Commission of Inquiry Act, 1952, which is silent on these aspects. Section 8 of the Act states that if, during the course of an inquiry before a Commission, a change takes place in the constitution of the Commission by reasons of any vacancy having been filled or by any other reason, it shall not be necessary for the Commission to commence the inquiry afresh and the inquiry may be continued from the stage at which the change took place. This section, however, does not deal with the reconstitution of the Commission. It only deals with an eventuality, such as a decrease in the number of members. Given that the Commission of Inquiry Act does not come up with options, it is clear that it would be the prerogative of the next head of the Commission to make use of the findings collected so far. In any case, this would mean a delay in the submission of the final report.

If the Commission was disbanded just when it had completed its work it is also true that it was passing through a very crucial stage. The controversy over Justice Venkataswami's appointment as Chairman of a quasi-judicial body arose when the Commission asked the Union of India to define clearly its stand in respect of its allegations of financial conspiracy levelled against Tehelka. The controversy came at a time when the Commission was to resume its work after a break of nearly one and a half months. On September 30, it ordered counsel appearing in the proceedings to submit written arguments on "all aspects" except the "financial aspect".

The financial aspects of the Tehelka inquiry are important as they form the main body of the government's arguments against Tehelka. The Centre's main charge against Tehelka is "that the entire operation has been undertaken to earn a few crores (of rupees) at the stock market." However, the situation became sticky for the government when, in presenting its witnesses in connection with the financial aspects of the deal, it appeared to be on a weak wicket.

During the course of the cross-examination the government found it difficult to hold on to its initial charge against Tehelka - that it had timed the release of the tapes so as to make gains in the stock market. In its affidavit on the financial aspects of the case, it alleged that Operation Westend was a conspiracy involving Shankar Sharma, who carried on operation in the stock market in the name of First Global along with Tarun Tejpal and Aniruddha Bahal of Buffalo Networks. It said that although on paper it seemed that Shankar Sharma had only a 14 per cent stake in Tehelka, in reality first Global had raised 95 per cent of the finances of Buffalo Networks.

It was further stated in the affidavit that just before the release of the tapes Sharma started building up a bear position in the stock market. This was done so that once the tapes were released the stock market would crash and all concerned would make a profit. It said: "First Global appears to have embarked upon a policy of making heavy net short sales in select momentum scripts with a view to manipulate the market." It further stated that the market did crash soon after the Tehelka expose. The affidavit said: "It is obvious that with the operation on such a massive scale Shankar Sharma and his associates would have made a killing on the market."

This voluminous affidavit was presented by the government before the Commission in March 2002. The government also emphasised that more investigations were being undertaken to come up with a fuller picture. However, in September, during cross-examination, the government witness, an Additional Director in the Income Tax (Investigation) Department in Mumbai, could not hold on to the government allegations, seemingly weakening its case.

Subsequently, on September 30, the Commission passed its interim order that it would go into the financial aspects of the case after looking at all the other aspects. The Commission asked all the parties to file written arguments on all aspects, except the financial aspects, by November 18.

Tarun Tejpal then moved an application before the Commission seeking a review of its September 30 order. He claimed that during the first two days of cross-examination, a government witness on the financial aspect, Shanker, contradicted himself on dozens of occasions. "It is therefore imperative that the evidence on the financial aspects be completed first, as the evidence on this aspect goes to the root of the case," Tejpal said in his application to Justice Venkataswami. "It became clear that the allegations made in Shanker's affidavit had been made at the behest of someone else and not on the basis of his investigations. It also became clear that his investigations on behalf of the Income Tax department were mala fide and motivated and made only for the purpose of filing these affidavits before the Commission," Tejpal said.

Submitting that there was a "direct and an alive link between the allegations made on the financial aspects and the other evidence concerning the veracity of the tapes", he said, "In any case, there is no justification for the indefinite postponement of the cross-examination of the government witnesses." Further proceedings of the Commission on other aspects should take place only after the evidence on the financial aspects has been recorded completely, he demanded in his application.

"In these circumstances, the mala fides and motives of the government in making these allegations against Tehelka, as would appear from the cross-examination of its witnesses, would be highly relevant even for the purpose of deciding other issues which are before the Commission," he said.

MEANWHILE, after Justice Venkataswami's resignation the battle between Tehelka and Samata Party leader Jaya Jaitly seems to have spilled outside Vigyan Bhavan, where the Commission hearings were held. Jaitly alleged that Siddharth Aggarwal, a lawyer with the Commission, had "links" with Tehelka throughout the probe. Commission's counsel Gopal Subramanium, rebutting the charge, said that Aggarwal had been his chamber junior for the last one year and there was no question of his working for some other firm. Jaitly accused Aggarwal of working with Tehelka counsel Sidharth Luthra.

Luthra clarified that though Aggarwal had started his career with his firm he had never been a partner. Said Luthra: "In the public domain lawyers often fight cases against each other and at other times work with each. I have fought with Jaitly's counsel Niloy Dutta in at least two cases in the last one year while Tehelka proceedings were going on. Jaitly's allegations are incorrect.''

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