End Of A Farce

The winding up of the Tehelka commission, brings to an end a long-running and expensive farcefoisted upon this country by the NDA government, in an attempt to deflect attention from the rampantcorruption in their Defence Ministry, which had been graphically exposed through a most dramatic stingoperation by a couple of courageous journalists of Tehelka. The appointment of this commission and themanner in which the NDA government, its agencies and its counsel conducted themselves in the commission,represents the most brazen abuse of the Commissions of Inquiry Act and government agencies in the history ofIndependent India.

Consider the facts. Tehelka showed a 4 hour video film which graphically showed senior army officersinvolved with arms procurement accepting cash, liquour and sex as a consideration for bestowing favours topurported arms companies ostensibly engaged in selling arms to the army. The tapes also showed the handpickedtreasurer of the Defence Minister, Fernandes’ Samta party openly bragging about how he and Fernandes used tofix Defence deals. They also showed the Presidents of the BJP and the Samta Party accepting money from theseshadowy "arms merchants" while agreeing to use their influence to help them. What the tapes showed wereclear cases of offences under the prevention of corruption act being committed. 

While many of the key players shown in the tapes charged that the tapes were fabricated, none of themdenied the damaging facts shown in the tapes. The BJP chief Bangaru Laxman admitted that he had met these "armsagents", and accepted money from them. The Samta party chief Jaya Jaitley admitted that she had met thesepersons at the official residence of the Defence Minister, and had agreed to intercede on their behalf withthe defence Minister, while accepting a sum of two lakhs from them (which was supposed to be for her party).Despite these admissions of the essential charges emerging from the tapes, she still claimed that the tapeswere fabricated.

Instead of straightaway getting the CBI to register an FIR and investigate the offences emerging from thetapes, the NDA government employed the standard technique to buy time and brush the scandal under the carpet.They appointed a Commission of Inquiry and introduced an innocuous term of reference asking the Commission toinquire into any other aspect relating to the making of the tapes. This term was then used by the governmentand the persons shown in the tapes to have accepted gratifications to turn the focus of the Tehelka Commissionfrom an inquiry into corrupt defence deals into an inquiry into the motives of Tehelka and the ethicsof the methods used by them. And every effort was made by them to delay the proceedings of the commission byseeking to send the tapes for forensic examination.

While the original Tehelka Commissioner Justice Venkatswami acquitted himself honourably and refused tosend the tapes for forensic examination, holding that no sufficient doubt had been created on their veracity,the first action of the next Commissioner, Justice Phukan was to send the tapes for forensic examination.Almost a year was spent on this exercise, and even after the report of the foreign forensic experts wasreceived, holding the tapes to be undoctored, it was not made public for a considerable period of time. 

During all this time, when the government kept most of the Commission’s attention on the veracity of thetapes and the motives and ethics of Tehelka and its main sponsor, First Global, the main issues of thecorruption in defence deals shown in the tapes were relegated to in-camera hearings, the results of which havenot been made public. Throughout the proceedings, the role of the NDA government’s counsel (who were led bytheir senior-most Law officers including the Attorney General and the Solicitor General) was shockinglypartisan. They behaved entirely as counsel for the powerful politicians of the ruling parties in the dockrather than counsel for a government interested in the truth. Thus while they vigorously cross-examined thewitnesses of Tehelka, there was virtually no cross examination of the persons shown to be acceptinggratification from the arms dealers.

While the Commission’s proceedings served to deflect public attention from the rampant corruption in theDefence Ministry that the Tehelka tapes had exposed, the time gained by the NDA government was used to launchan unprecedented witch hunt against Tehelka and particularly First Global. Every possible governmentagency was set upon them, from the Income Tax Department, to the Enforcement Directorate to SEBI to theDepartment of Company Affairs. Their offices were repeatedly raided and subjected to innumerable searches andnotices. They were subjected to absurd Income Tax demands. SEBI closed down their entire operations at theStock Market. First Global’s promoters Shankar Sharma and Devina Mehra were Gold Medallists from IIMAhmedabad and had impeccable track records. Shankar Sharma was arrested and kept in detention for months bythe Enforcement Directorate without any charge! All this while, the top law officers of the government wereused to deny him bail. The denial of bail for such a long time in these circumstances is also a sad commentaryon the judiciary whose lack of backbone was on conspicuous display in this sordid episode.

One would have thought that the report of the forensic expert on the genuineness of the tapes would haveput at rest the inquisition of Tehelka and First Global. But the Phukan Commission appeared willing to spendmore time to probe the motives and ethics of Tehelka. That is when the UPA government decided to put an end tothe farce and wind up the Commission. The CBI will now hopefully investigate the matter though it would beoptimistic to hope that any of the major political players will be arrested.

But will those in SEBI, the Income Tax Department, the Enforcement Directorate and other governmentagencies who became willful instruments of the government’s witch hunt be allowed to get away without anyconsequences? They used their powers in a most malafide and illegal manner to deflect attention from a hugescandal and harass and ruin individuals and organizations which devoted enormous resources to bring to light amonumental public scandal.

Though nothing can compensate Tehelka, First Global and particularly Shankar Sharma for the lostyears, the pain and humiliation that they had to undergo, it is essential that their tormentors must beprosecuted. Their guilt is far more serious than the offences they have committed under the penal code. Theyhave committed the most serious misdemeanor that any public servant can commit. They have mortgaged and soldthe public trust that they were entrusted with. To tolerate them in government would be to encourage otherpublic servants to commit such misdemeanors. They must be identified and immediately charge-sheeted andsuspended. Till that happens, the wounds of Tehelka and First Global cannot heal.

Prashant Bhushan is a public interest lawyer in the Supreme Court.