Due process

Print edition : July 18, 1998

Ashok Jain is arrested by the Enforcement Directorate.

ON July 3, the Enforcement Directorate (E.D.) arrested media baron Ashok Kumar Jain of Bennett, Coleman & Company Limited, at his Carmichael Road residence in Mumbai. The arrest came hours before a deadline set by the Supreme Court for the conclusion of a probe against Jain relating to alleged violations of the Foreign Exchange Regulation Act (FERA) expired. The decision was prompted by Jain's failure to cooperate with the investigation even after the Supreme Court had ordered him to do so while rejecting in January 1998 an anticipatory bail petition filed by him. Subsequently, Jain went abroad for medical treatment with the E.D's permission. When he returned on May 31, the E.D. summoned him three times for interrogation. Jain failed to respond, and the E.D. arrested him.

E.D. officials took along a cardiologist and a team of paramedics and an ambulance when they went to arrest him. When Jain complained of chest pain, the officials took him to the J.J. Hospital, where he was admitted to the Intensive Coronary Care Unit; the E.D. then moved a remand application.

According to a source close to the Jain family, Vineet Jain and Samir Jain, sons of Ashok Jain, met Prime Minister A.B. Vajpayee on July 1 seeking an assurance that no drastic action would be taken by the authorities against their ailing father. (This information could not be independently confirmed by Frontline.) The arrest seems to have come as a surprise to the family. Following the arrest, which came after a setback that the group suffered with regard to the 'Times FM' slot, top executives of the newspaper were learnt to have rushed to Mumbai for consultations. (The Supreme Court upheld the decision of Prasar Bharati, the agency controlling the airwaves, to auction FM, or frequency modulation, broadcasting channels over All India Radio when the licences issued to the Times group and two other entities expired recently. The Times group, which operated the FM slot for five years from 1993, had demanded automatic renewal of its licence.)

Ashok Kumar Jain, an October 1997 picture.-SHANKER CHAKRAVARTY

The remand application moved by the E.D., which sought judicial custody for Jain until July 15, charged him with unauthorised foreign exchange transactions outside India. These involve an amount of Rs.4 crores alleged to have been received by the accused outside India in 1973, unauthorised transfer of $21,000 to M.M. Seghal and another unauthorised transfer of $11,000 to Ms. Geard and Davis of the U.S., the solicitors of M.M. Seghal. The magistrate took note of the fact that the accused could not be produced in court in view of his health and remanded him to judicial custody until July 6. The court ordered that a jail guard be posted at the hospital. The E.D. sought to move Jain to Delhi where its jurisdiction over his alleged FERA violations lay.

On July 5, Ashok Jain's family obtained a certificate from Dr. Lekha Pathak, chief cardiologist of J.J. Hospital, saying that the hospital did not have the facilities to treat Jain's condition. On the basis of this, R.B. Chorge, Mumbai Metropolitan Magistrate, allowed Jain to be shifted to Bombay Hospital. Jain reached Bombay Hospital on the night of July 5. On July 6, his bail petition was posted for hearing on July 9.

Interestingly, on July 8 The Free Press Journal reported that Dr. Pathak herself was under investigation, along with others, for her alleged connections with patient-criminals and that this probe was conducted in 1994 and again last year, by Dr. P.S. Shirodkar, Dean, J.J. Hospital. Dr. Pathak was a member of the panel of cardiologists that examined Ashok Jain earlier and recommended that he be allowed to go abroad for treatment. This was soon after his anticipatory bail application was rejected by the Supreme Court in January.

During the past 18 months, when the FERA probe has been in progress, Jain was admitted to Bombay Hospital on several occasions. (He went abroad four times during this 18-month period.) Bombay Hospital is run by a trust whose former chairman was Shreyans Prasad Jain, an uncle of Ashok Jain. Several of the current trustees are either friends or associates of Jain. In Bombay Hospital, Jain is said to be under the care of Dr. B.K. Goyal. Bombay Hospital is apparently examining Jain's condition to see if he needs a heart transplant.

On July 9, V.S. Dikshit, Chief Metropolitan Magistrate of Mumbai, rejected Ashok Jain's bail petition. Jain will remain under judicial remand until July 15. The court ordered that a panel of five cardiologists nominated by the Director-General of Health Services examine him and that Jain could be shifted to New Delhi if this panel gave the opinion that he was in a fit condition to undertake the journey. It is learnt that four cardiologists from Delhi - Dr. Manchanda, who had referred Jain to the Cleveland hospital, and Dr. A.K. Talwar, both from the All India Institute of Medical Sciences (AIIMS), and Dr. Dhiraj Pandey from the Ram Manohar Lohia Hospital and Dr. Ramesh Arora - are on the panel. A fifth cardiologist will be from Bombay Hospital as directed by the court.

On an earlier occasion the Delhi High Court had held that the E.D. could interrogate Jain with the permission of and in the presence and care of cardiologists of the AIIMS specially assigned for the purpose. However, the Supreme Court in its order held: "To say that interrogation should be subject to the opinion of cardiologists of the AIIMS and that the officials of the Directorate should approach the Director of AIIMS to constitute a Board of cardiologists to examine the respondents, etc., would, in our opinion, considerably impair the efficient functioning of the investigating authorities under FERA... They cannot be nailed to any fixed modalities stipulated by the court for conducting interrogations. It is not unusual that persons involving themselves in economic offences, particularly those living in affluent circumstances, are afflicted by conditions of cardiac instability."

Ashok Jain went to Cleveland in March 1998 reportedly for a third coronary bypass surgery soon after his anticipatory bail petition was rejected. This was facilitated by the order of a Delhi court, which directed him to abide by the conditions imposed by the authorities. On directions from the court, the E.D. obtained an undertaking from Jain that he would return to India within a week of his discharge from the Cleveland hospital, that he would present himself for interrogation at its offices on his return, that he would abide by the letter and spirit of the Supreme Court's order in cooperating with the investigations and that he would send weekly medical reports to the E.D. on his treatment abroad.

Although Jain returned on May 31, he did not present himself for interrogation. Times House insiders told Frontline that after his return, Ashok Jain has been attending to business at his Mumbai residence and took major corporate decisions relating to cost reduction measures in the company. The E.D's direction to Jain to deposit his passport with the agency has also not been complied with. Nor has Jain produced any medical records from the Cleveland hospital despite repeated requests from the agency to do so. In the circumstances, the E.D. has been unable to get any meaningful details about Jain's medical condition, and specifically the diagnosis and treatment he received at the Cleveland hospital.

THE E.D. probe into the current charges against Jain appears to be hamstrung by dissensions within the Directorate. The E.D. headquarters is learnt to have expressed its dissatisfaction with the Delhi zone which had initially pursued the Ashok Jain probe satisfactorily but now appears to be unenthusiastic about the case. E.D. insiders allege that efforts are on to block or undermine the investigation from within. The headquarters is learnt to have sent three written requests - in May, June and July - for the transfer of Delhi zone Deputy Director Ashok Aggarwal out of the Directorate. However, N.K. Singh, Union Revenue Secretary, who has a track record of having come to Jain's rescue when he was first raided in January 1996, has not yet cleared the proposal to remove Aggarwal.

Meanwhile, many high-profile alleged FERA offenders who have been under the recent scrutiny of the E.D. are exploring ways and means to clip the wings of the agency. The Revenue Department, which is under the charge of R. Janarthanan, Minister of State for Personnel, Public Grievances and Pensions, a nominee of the All India Anna Dravida Munnetra Kazhagam, is spearheading such a move. According to sources in the Finance Ministry, although the Government is actively considering posting a Director-General of Enforcement in a rank above the incumbent Director, such a move will pose problems.

The Supreme Court in its judgment on the Jain hawala case had directed that the E.D. chief's post be upgraded to the grade of that of an Additional Secretary. However, it stipulated a mechanism for the selection of the new chief. This mechanism can be put in place only after according statutory status to the Central Vigilance Commission and after selecting the Central Vigilance Commissioner according to the procedure laid down by the court. Any move to bring in a Director-General of Enforcement without going through these steps will be tantamount to short-circuiting the process prescribed by the apex Court.

H.K. DUA, former Editorial Adviser to The Times of India, who was dismissed allegedly for his failure to come to the rescue of Ashok Jain in his battle against the authorities, petitioned the Press Council. In his petition, Dua stated that pressure was brought on him to help Ashok Jain fight his battle with the authorities. He alleged that his dismissal had brought into focus the question of an editor's right to discharge his duties without fear. He said that a newspaper cannot be run for proprietorial needs and that an editor's responsibility was ultimately to the wider public. Dua said in his petition that threats to the freedom of the press came from many sources - governments, advertisers, pressure groups, vested interests and terrorists, and in this case, from proprietors who had a record of terminating the services of senior journalists at will. He accused the owners of The Times of India of jeopardising the freedom of the press.

The Press Council also heard three petitions filed by the Delhi Union of Journalists, the Indian Journalists' Union and the People's Union for Civil Liberties, a voluntary organisation, on an allied subject. Har Dev Singh, counsel for these organisations, argued that in carrying out a campaign against the E.D. through its columns, The Times of India had violated Norm 10 of the Journalistic Code of Ethics prescribed by the Council. This norm says: "Publication of news or comments/information on public officials conducting investigations should not have a tendency to help the commission of offences or to impede the presentation or detection of offences or prosecution of the guilty. The investigative agency is also under a corresponding obligation not to leak out or disclose such information or indulge in disinformation."

The petitioners alleged that the proprietors of the newspaper group had misused the paper to tackle Ashok Jain's personal problems and while doing so they had given the effort a human rights garb; they cited the copious columns on human rights abuse that have appeared in the paper in the past five months. They argued that the paper had lost credibility inasmuch as its columns were used to fight the proprietor's personal battles. According to witnesses present at the hearing in Mussoorie, lawyers for The Times of India, in their deposition before the Council, agreed that the human rights campaign in the paper started only after Jain came under the scrutiny of the E.D. but said that now it was wider in its scope. The Press Council is expected to give its ruling any day now.

JUSTICE M.N. Venkatachaliah, Chairman of the National Human Rights Commission (NHRC), during a meeting with senior journalists in the national capital in the first week of July, is learnt to have expressed dissatisfaction with the role of the media in addressing human rights issues. According to those present at the meeting, Justice Venkatachaliah emphasised that a human rights campaign in the media should have credibility. Meghraj Jain, a former employee of Ashoka Marketing which went sick in the early 1970s, has filed a petition against Ashok Jain in the NHRC. Ashoka Marketing is a Sahu Jain company controlled by Shanti Prasad Jain and subsequently by Ashok Jain.

Meanwhile, Ashok Jain himself is learnt to have filed a petition before the NHRC, alleging harassment by law enforcement agencies.

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