THE two-member Commission of Inquiry on the snooping scandal, which Gujarat Chief Minister Narendra Modi appointed on November 26, is a fraud as well as a ruse. It is a fraud for two reasons. First, it studiously omits from its remit precisely the issues that have caused widespread concern and, next, because the very composition of the Commission betrays evil intent. Not least because one of the two members is a retired bureaucrat with an uninspiring past.
It is a ruse because its clear object is to prevent the Centre from appointing a Commission of Inquiry. The Commissions of Inquiry Act, 1952, empowers both the Central and State governments to set up commissions of inquiry on any of the matters within their respective legislative competence. However, a proviso to Section 3(1)(b) of the Act says, “Provided that where any such commission has been appointed to inquire into any matter by a State government, the Central government shall not appoint another commission to inquire into the same matter for so long as the commission appointed by the State government is functioning, unless the Central government is of opinion that the scope of inquiry should be extended to two or more States .”
For reasons more than one, the ruse will fail. The proviso itself explicitly empowers the Central government to supersede the State commission by one of its own if “the Central government is of opinion that the scope of the inquiry should be extended to two or more States”. In plain words, if the Government of India feels that the probe should be extended beyond Gujarat. On the facts, such an “opinion” would not only be reasonable but that course would be imperative in the interests of justice and to fulfil the object of setting up a commission of inquiry. There is another reason, besides. Modi’s commission has a remit so narrowly restricted as to invite disdain and, thus, permits the Centre to fill the gaping void by providing the desired remit, which, accordingly, would not be inquiring “into the same matter”—the one Modi ordained. And the snooping covered more States than one.
There is a precedent for it which received the endorsement of the Supreme Court. After the Emergency, the wily Devraj Urs hastily set up a commission of inquiry to pre-empt any move by the Janata Party government to bring him to book before a Central body. The Centre adopted an equally clever course and foiled Devraj Urs’ move. The Supreme Court upheld the appointment of the Centre’s commission of inquiry. More on this, later.
If a proper commission of inquiry is called for in this case, it is because in November the nation was rocked by disclosures of snooping by the Gujarat government and, worse, it was disgusted by the lies retailed in its defence by the Bharatiya Janata Party’s (BJP) leaders in New Delhi. This is just one of the many skeletons that have tumbled out of the Modi cabinet.
On November 15, two investigative news portals, Cobra Post and Gulail, released a set of transcripts from audio recordings disclosing an unprecedented and outrageously invasive surveillance of a young woman by the Gujarat Police. They covered 267 phone conversations, spread over from August 4, 2008, to September 10, 2009, between Modi’s confidante Amit Shah, then Minister of State for Home, and his favourite Girish L. Singhal, Superintendent of Police (Operations) in the Anti-Terrorism Squad, who also deployed seven subordinates.
According to the tapes, Amit Shah ordered Singhal to mount surveillance on Pradeep Sharma, an Indian Administrative Service (IAS) officer then posted as Municipal Commissioner, Bhavnagar, and a 35-year-old architect, Madhuri (not her real name), known to both Modi and Pradeep Sharma. As Collector in Bhuj during the 2001 earthquake, Sharma’s performance won high praise from Modi (“one of the State’s brightest Collectors”). In 2004, Madhuri met Sharma, whom she and her family came to trust. Her family hails from Bhuj. Her father, Pranlal Soni (63), ran one of the best-known jewellery shops in Kutch, in Saraf Bazar in Bhuj, known as Nabheram Ramji Jewellers. Madhuri worked on a landscaping project on a public recreation park in Bhuj. She was introduced to Modi in 2005 when he inaugurated the park. Their interactions swelled by e-mail and text messages. Madhuri kept Sharma “in the loop”. Before long, not only Madhuri but her entire family came under surveillance on Amit Shah’s orders to Singhal. That throughout the tapes Amit Shah spoke of his accountability to “Saheb” raised suspicions. Madhuri married an Ahmedabad businessman in 2010 and her wedding reception at Kennoville Golf Club in Ahmedabad was attended by Modi. Her father was close to him.
Apparently, none of them knew of the surveillance. On November 19, four days after the two news portals’ disclosures, Prashant Bhushan, Pradeep Sharma’s counsel, asked the Supreme Court to hear his plea on the audio tapes. In January 2010, Sharma was arrested by the Gujarat Police on charges of criminal conspiracy and breach of trust. According to a news report, “Pradeep’s troubles started soon after. His IPS officer brother, Kuldip Shrma, then a State Additional DGP, was in Shah’s crosshairs ‘for issuing directions to his subordinates to submit an interim report to the court in the Sohrabuddin encounter case and to vigorously pursue the inquiry’. This, many believe, led to the arrest of Amit Shah in October 2010.” Amit Shah was in prison over a year before he got bail. In an affidavit to the Supreme Court, Pradeep Sharma alleged that he was victimised because the government had problems with his elder brother, Kuldip Sharma, an IPS officer who is now adviser in the Union Home Ministry. Also, Pradeep Sharma alleged that the government’s wrath was because Kuldip had “unmasked the government’s role in the 2002 riots”.
Like Pradeep Sharma, G.L. Singhal was also suspended. He was accused in the Ishrat Jahan fake encounter case and got bail in May 2013. He spilled the beans to the Central Bureau of Investigation (CBI) in April when he handed over the 267 phone conversations which he had recorded.
References to ‘saheb’ The Modi government dangles before the public a letter said to have been written by Pranlal Soni to Modi seeking security for his daughter Madhuri. The plea, rather pretext, went viral once the BJP’s too-clever-by-half spokespersons seized on the straw. Thanks to the excerpts from the transcripts published in the media, especially Outlook and India Today (both on December 2), the lies blew up in the faces of those spokespersons.
It is these excerpts, read in the light of the relationships and the background, which warrant a central commission of inquiry. As one newspaper asked, “What was the nature of the threat to the young woman that warranted a round-the-clock check on her movements and tapping of her phone conversations? Why did Amit Shah insist that police officials should instantly provide him with a blow-by-blow account of her activities? And why did he ensure that his ‘Saheb’ was also kept in the loop about them? His near-obsessive interest in her safety does appear to be bizarre.” Why, indeed, did Amit Shah order Singhal: “Don’t let her escape ”?
These references to “Saheb” by Amit Shah alone suffice to render such a probe imperative. “I talked to Saheb and he got to know from someone that they did go outside twice. I think our men are not watching properly.” And “The fact is that Saheb gets all the information, so the thing is that our loopholes might surface… Saheb comes to know of everything.”
“Saheb has been calling repeatedly.” “Saheb has solid information of some activity, so better put somebody on the flight.” A police officer was then put on the flight to Mumbai to tail Madhuri. Why? Besides Singhal &Co., Modi had also deployed the State’s Intelligence Bureau for the dirty work.
Sample this: “Today they are going out for a meal in a hotel. Saheb received a phone call about this. So watch out as she is going with someone. It is the boy who is coming to see her. Pay proper attention. The fact is that Saheb gets all the information, so the thing is that our loopholes might get found out. Shah: ‘Keep watch the whole night. Call for men.’ Singhal: ‘I have called two-three from the crime department.’ Shah: ‘How about two-three IB [Intelligence Bureau] men to watch the other side? And some IB men to intercept calls at night?’”
Why did the Saheb have so obsessive an interest? The Economist of December 14, 2013, had a report from Ahmedabad and Delhi by its correspondent. He referred to “accusations” that Shah used officers to “spy on a woman, with whom Mr Modi was apparently besotted”. What kind of an image will he project to the world unless there is a probe on the “accusations”?
A commission of inquiry does not run of its own steam. It needs the services of an investigating agency. But it can be appointed only “with the concurrence of the State government” (Section 5(1)(b). In other words, the Gujarat Police itself. The State’s commission will summon and acquire the audio tapes.
It is a convention that governments request the Chief Justice of India or the High Court to name members of the proposed commission. Modi has no time for settled conventions or norms. His hand-picked nominees betray his purpose as does the remit assigned to them.
Justice Sugnyaben K. Bhatt is a former judge of the Gujarat High Court. She was a very controversial figure. K.C. Kapoor, IAS (Retd) was Additional Chief Secretary, Home. Reportedly, the maximum number of encounters were staged during his tenure. After retiring, he was appointed Chairman, State Election Commission, for five years. He was reputed to be “one of Modi’s men”. Since “Saheb” figures all too prominently in this sordid episode, can you expect such persons to command public confidence? Why are inquiries instituted in the first place? What is the raison d’etre of a commission of inquiry? The Act of 1952 is modelled on the British Tribunals of Inquiry (Evidence) Act, 1921. In November 1966, a Royal Commission on Tribunals of Inquiry was headed by one of the most distinguished judges of his time, Lord Salmon. Also included was the famous jurist in constitutional law, H.W.R. Wade. It urged the appointment of Tribunals of Inquiry on “matters of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence ” (para 2, page 16). This is a perfectly accurate description of the people’s reaction to the snooping affair.
In order to fulfil its prime task—ascertainment of the whole truth which alone can remove the “crisis of confidence”—a commission of inquiry must meet four tests: 1. It should comprise persons whose independence, integrity and competence command respect and confidence. The convention is to ask the Chief Justice of India or the Chief Justice of the High Court to select the appointees. 2. The terms of reference must be fairly, honestly drawn to cover the very matters which created the crisis of confidence. 3. The investigating agency which serves the inquiry must be above suspicion. 4. The procedure of the inquiry must be transparent, fair and just. The Gujarat commission fulfils none of the tests before the commencement of its proceedings. We have noted the glaring deficiencies in regard to the composition of the commission and its dependence on Modi’s police. The terms of reference he has prescribed betray sheer lack of honesty. They exclude the very matters about which the public is exercised. Chief among them are the role of the “Saheb” and his stooge Amit Shah. The popular perception is that “Saheb” refers to Modi, the only one to whom Amit Shah bears allegiance, and not to anyone in the BJP’s headquarters, neither L.K. Advani nor Arun Jaitley.
Significantly, the otherwise loud and loquacious Modi has been silent on the affair. Not once has he denied that he is not Amit Shah’s Saheb. It is only fair that this should be a prime remit for the commission. Modi’s personal exertions have been alleged and exposed. For much less, Chief Minister of Karnataka Ramakrishna Hegde resigned in mid-1988, because the State I.B. had tapped the telephone of a colleague though there was no evidence of orders for tapping by him personally.
The terms of reference are designed to pillory the media —kill the messenger. (See box for the full text). At stake are matters far graver than “questions regarding policing and other issues concerning the governance”. At stake is the abuse of the police and intelligence services to ensure that the target—the 35-year-old Madhuri—did not “escape”. Modi apart, Amit Shah has not provided to an anxious public a full statement, either. Clauses (ii) and (iii) of the Terms of Reference contradict each other. On the one hand, the Gujarat government casts doubt on “whether the incidents of security/surveillance as alleged in the web portals ‘Cobra Post’ and ‘Gulail.com’ and subsequently published/telecast in various news media actually took place. But it proceeds immediately thereafter to try to justify the surveillance. The facts, circumstances, reasons and causes that led to the alleged security/surveillance, if any, and/or steps taken by the government agencies.” In consistent pleas in the alternative are the stock-in-trade of dishonest lawyers.
Next comes the threat of a charge of “conspiracy” by the media. “Whether the circumstances leading to the release of the audio tapes after a long gap of four years reveal any conspiracy .” This was designed to discredit the two news portals and also the media which reported the portals’ disclosures.
Women’s groups should not ignore this term of reference with its latent threat for the future in order to justify the misdeed. “What shall be the objective considerations while arranging discreet security to a woman if the circumstances so warrant.”
The Modi government will have egg on its face if the Government of India were to set up a commission of inquiry with terms of reference that fill the gaping loopholes in his commission. To wit, 1. Whether Narendra Modi is the “Saheb” referred to in the transcripts of the phone calls between Amit Shah and G.L. Singhal. (2) Whether the actions of the State police and intelligence revealed in the transcripts were taken at the instance of and/or orders by Modi. 3. Whether the said actions constituted a breach of the affected person’s [Madhuri’s] fundamental right to privacy. Other related queries can follow.
Such a step has been upheld by the Supreme Court in State of Karnataka vs Union of India & Another (1977) 4 Supreme Court cases 608. The facts of that case are an exact parallel to those of the Gujarat case. On May 23, 1977, the Central government appointed a commission of inquiry against the Chief Minister of Karnataka, Devaraj Urs. The State of Karnataka filed a suit in the Supreme Court of India for a declaration that the appointment of the commission was illegal on the grounds that the Commissions of Inquiry Act does not authorise the Central government to constitute such a commission in regard to matters falling exclusively within the sphere of the State’s legislative and executive power; and that if they did, they are ultra vires for the contravention of the Constitution as well as the federal structure. It contended that since the State government had also appointed its own commission, Section 3(1)(b) of the Act prohibits the Central government from appointing another commission to “enquire into the same matter’’ as long as the commission appointed by the State government was functioning.
Grover Commission A.N. Grover, a retired judge of the Supreme Court of India, was appointed to the Centre’s commission. Its terms of reference were “(a) to inquire into the following allegations, namely: (i) such of the allegations contained in the memorandum dated 11 April 1977, received from some Members of the Karnataka State Legislature and addressed to the Prime Minister as are specified in Annexure I; (ii) such of the allegations contained in the memoranda aforesaid as are specified in annexure II, but excluding any matter covered by the notification of the Government of Karnataka in the Chief Secretariat No. DPAR 7 GAM 77, dated 18 May 1977 ; (b) to inquire into any irregularity, impropriety or contravention of law other than those specified in the said notification of the Government of the State of Karnataka, on the part of any person in relation to any matter referred to in the allegations aforesaid; (c) to inquire into any other matter which arises from, or is connected with or incidental to, any act, omission or transaction referred to in the allegations aforesaid. The headquarters of the Commission will be at New Delhi .”
The Supreme Court upheld the Centre’s appointment of the commission. Chief Justice of India Justice M.H. Beg noticed the rules played by Devaraj Urs. “The first thing that strikes one, on a bare reading of the two notifications is that, whereas the State’s notification seems scrupulously to avoid any mention of any particular act or part of any individual whatsoever , the whole object of the Central government notification seems to be to inquire into the correctness of the allegations made against the Chief Minister of the State principally and into allegations against other specified individuals incidentally.… In other words, apart from their parts in certain lapses the responsibility of the Chief Minister or any other Minister of the Government of Karnataka could not be inquired into by the Commission appointed under the State notification. And, all that the State notification seems to empower its Commission to inquire into, with regard to transactions mentioned there, is whether there was any excessive payment or irregularity involved. Hence, it speaks of responsibility for ‘lapses’ as though one could assume that there was no dishonest motive. The emphasis, in the State notification, is on the question of observance or non-observance of rules coupled with the question whether certain payments were proper. And, the question of affixation of responsibility is confined to ‘lapses’ in the course of these transactions only.
“Even if a transaction has been made completely in accordance with the rules, it may, nevertheless, be an act of favouritism tainted with corruption or dishonesty. Less deserving parties could be deliberately preferred over more deserving parties in such transactions. It is not difficult to make out compliance with rule or to show on paper that the most deserving party has received the benefit of contract. Indeed, even the most deserving party may receive a contract or a benefit under a decision taken by a government or its Ministers who may have received an illegal gratification for it without anything whatsoever appearing on the records of the government about the bribe received by the Minister concerned. But the Central government notification is clearly meant to enable the commission appointed to tear down even the veil of apparent legality and regularity which may be worn by some transactions. It authorises the Grover commission to inquire into and discover the reality or substance, if any, behind certain (mostly other) transactions …. We do not think that such notifications would justly or fairly be spoken of as covering ‘the same matter’ as contemplated by proviso (b) to section 3(1) of the Act, because the State commission is there to examine the appearance or the surface whereas the Central Commission is expected to delve deeper into what could only lie behind or below it.
“…. If the State notification shows no concern for what seem to us to be the much more important objects of the Central Government notification, one could perhaps guess that the indifference of the State towards the more serious matters is not without some object or significance.
“The argument that the two notifications cover the same matter suffers from a lack of recognition of ordinary political realities. It is hardly ever possible, except in Utopian conditions, that the State government will appoint a Commission to inquire into acts of corruption, favouritism and nepotism on the part of its Chief Minister.”
These remarks very much apply to Modi and the commission he has set up in desperation to silence the media.
It also bears mention that it is equally well settled that criminal proceedings, actual or imminent, do not bar an inquiry by a commission of inquiry. Justice D.P. Madon of the Bombay High Court inquired into the riots in Bhiwandi in May 1970 even while the sessions court tried some persons charged with offences in the riots. His inquiry exposed the frame-up by the Special Investigation Squad and resulted in withdrawal of the charges of conspiracy.
It remains to be seen whether the Government of India will have the guts to set up a commission of inquiry in order to unravel and expose before the public the whole truth about the Gujarat snooping scandal.