BJP's Anti-Corruption Poll Promise Has The Key to Essar Tapes

The BJP's anti-corruption stance was one of the major factors that helped them win with a large majority. Since there is a complaint with the prime minister's office on the Essar tapes, it is up to Narendra Modi to push investigating agencies into action.

The Modi government has already initiated investigations into the Panama Papers, which were reported a few months earlier by the International Consortium of Investigative Journalists.

There are several allegations and conspiracy theories made by the Essar whistleblower's lawyer based on the tapes. The tapes have to be verified and the voices on them have to be authenticated.

All corporate groups and individuals who are alleged to have been caught on the tapes have denied that these are genuine. Essar has denied that it had sanctioned any illegal phone taps.

The Essar tapes are alleged secret conversations between some of the most powerful people in the country. Albashit Khan, who recorded the conversation, claims that he was wooed by Essar bosses from Dubai to India and asked to secretly record conversations as a part of the company's surveillance and corporate espionage operations. The purpose – that Khan claims his bosses told him – was to keep a tab on what employees were up to.

On one end of the phone are purportedly corporate tycoons who have often been accused of unfair and illegal practices to promote their business interests and on the other end are their minions, agents, bureaucrats and politicians. The allegations point at a major conspiracy between several individuals, corporate entities and government officials to use malpractices for personal and corporate gain.

The first issue on the anvil will be the motives and credentials of Khan and his lawyer, Suren Uppal (see interview). As per sources, Khan has worked with law enforcement agencies in an off-the-book capacity.

The more important issue will be verifying the tapes, identifying and validating the voices on them and fixing if the tapes disclose any wrong doing. Uppal has already approached the government and its action and response is awaited. Since he has written to the prime minister and the offences include former and current politicians, ministers and bureaucrats, it is likely that the PMO will hand over the investigation to the CBI.

The alleged offences potentially violate several penal and civil laws and therefore multiple agencies could be given charge of such investigations.

As per Uppal, he sent separate caution notices to officials and promoters of Reliance Industries and Essar in which he has laid down the material made available to him through Albasit Khan and the possible violations in the process.

In the caution notice to the Ruias – who are the promoters of the company and control it – the first offence mentioned is that of illegal wire tapping. As per the law, private conversations can be intercepted only by permitted authorities for national security or else by court orders. There is an international debate around mass surveillance by government authorities since the revelations by Edward Snowden. The debate has raged in India focusing on the ‘right to privacy' of individuals.

However, under no mandate can a private entity keep surveillance on any one in the country. The exception is when a government agency (with the mandate) engages a private company to do so on their behalf. 

Government agencies that keep surveillance

Revenue department - Directorate General of Income Tax
Income Tax (investigations)
Directorate of Revenue Intelligence, Enforcement Directorate
Ministry of Home Affairs - Intelligence Bureau, NIA
BSF and other paramilitary forces
State governments- Similar corresponding state agencies that have power to investigate economic or penal offences

As per Albasit Khan, Essar had allegedly been asked by a government agency to keep surveillance on some mobile phone numbers. These were said to be on mobile networks owned and operated by the Essar Group. In some cases, the tapes allegedly reveal that there might have been taps on mobile phones used by officials in the highest executive office of the country – the prime minister's office – during 2001-2004.

As per the caution notices,

Illegal phone taps violate

Law Sections
Constitution of India Art 21 (right to life and liberty)
Information Technology Act 43A
Indian Telegraph Act 20A, 24, 25, 25A, 26, 29A
Indian Penal Code 409, 415, 418, 120-A, 120-B
Prevention of Damage to Public Property 3 & 5

Regarding the constitutional law, there are two important cases in this regard – the PUCL case and the Amar Singh phone tapping case.

In the PUCL case, the apex court had issued guidelines for the government to conduct phone taps which included monitoring of the surveillance by high-powered committees.

In the Amar Singh phone-tapping case, Reliance Industries had reportedly been asked by a government agency to facilitate phone taps on Samajwadi Party leader Amar Singh. However, forged government documents were used to order Reliance to facilitate the phone taps.

Phone taps as evidence

The validity of the phone taps as evidence has been argued and studied by the courts many times. They are admissible in certain cases. The clear cases are when a government agency has made properly-authorised phone taps and the courts have admitted these as evidence. There have to be proper authorization slips, logs maintained and monitoring reports.

In this case, there is a lot of legwork that investigation agencies have to put in. They have to verify the phone numbers, study the logs, collect the voice recordings and authenticate them scientifically with voice samples and other scientific methods. Even after that, the courts have to uphold their authenticity and also whether they can legitimately be used to build a case or prosecute any alleged wrong doing that is in the taped conversations.

The allegations against Essar are mostly regarding corporate espionage. However, Albasit Khan claims that these conversation records were submitted to Essar officials. If the officials were indeed acting on behalf of the company's interests and not for any government agency, they would have also have to explain to the government and the court as to why it had kept these tapes and any potentially incriminating contained in it buried. If these tapes are genuine and Essar turns the lot in as evidence, Uppal suggests that they could be turned into ‘approvers'.

The allegations made by Uppal, based on Khan's tapes, against Reliance are of a serious nature as per the caution notice sent to the Ambanis and other top officials.

Most of the transcripts deal with contracts or transactions in which Reliance Industries had a stake as a private entity engaging in government contracts or as a private partner in public private partnerships. These include gas exploration in the Krishna Godavari Basin's D-6 block, telecom sector and others.

A number of allegations claim manipulation of government plans and policies, including budget decisions and legal strategy. There is also one instance of trying to bribe an apex court judge. As per the Caution Notice, agencies may have to investigate these as alleged offences under the Indian Penal Code, PMLA, and the Official Secrets Act as well as several civil and corporate laws such as the Competition Act, Companies Act, tax laws, telecom laws and others.

The allegations contained in the said tapes will jar up the political world since the conversation between the corporate honchos allegedly took place with government officials and bureaucrats. This will automatically attract several laws against bureaucrats, politicians and their advisers under the Prevention of Corruption Act and the CBI is empowered to investigate any wrongdoings by such a nexus. It would mean reopening and scrutinizing several transactions that have a bearing on the country's economy.

There is already a pending PIL in the Supreme Court, filed by senior advocate Prashant Bhushan, which deals with Essar's internal communications and emails. These allege a nexus which supposedly bestowed favours on the company.