Wanted: Proof, Not Diary Notes

THE entry was certainly grander than the exit. On April 8, Justice Mohammed Shamim of the Delhi High Court had just one question to ask the CBI counsel Gopal Subramaniam: do you have anything else to prove the involvement of L.K. Advani and V.C. Shukla in the hawala payoffs other than the sacrosanct diaries recovered from the residence of the main accused S.K. Jain? Investigations are going on, the CBI counsel countered. The judge said he was willing to wait for a day or two if the CBI counsel could produce something, i.e. anything besides the diary, as evidence. When Subramaniam failed to comply, the single-member bench of the High Court delivered the verdict—clearing Advani, Shukla and the Jain brothers of the hawala taint.

The infamous Jain diaries, which chronicled the entries of over 200 top politicians and officials, Shamim said, did not constitute evidence that money had been paid for favours granted. In other words, the diaries were no more than pieces of paper and did not become proof admissible under the Evidence Act. So, if the diaries, considered to be the most significant proof of corruption in high places, were not what was supposed to be, then where is the question of hawala transactions and, more important, how can 41 top politicians be charged

under the Prevention of Corruption Act? The judge's conclusions seemingly brought to an end one of the murkiest periods in Indian politics. Starting off with the hawala case in early 1996, judicial activism reached its zenith last year with a series of scandals, Bofors apart, involving politicians like Narasimha Rao and his kin, Sukh Ram, Laloo Yadav et al. And now that Advani and Shukla have been absolved in the hawala scam, could the tide be turning against the judicial will, thanks largely to the poor quality of the CBI's investigation?

During the last three hearings in the hawala scandal—even as it had ceased to grab headlines in the face of other scams—it was becoming clear that the evidence provided by the CBI in a majority of cases was wearing thin. Says lawyer Rebecca John: "The CBI chargesheets were nothing short of scandalous. They may have appeared sensational at the time they were filed, but when the time came to prove the charges, the agency could not back it up with adequate evidence." Privately, CBI officers involved with the case say that they never really had a chance from the beginning. "There was too much pressure from the Supreme Court to nail the people named in the diaries. Investigations against so many politicians took about six months or so. The time was not enough to nail even one, if thorough investigation had actually been pursued," admits one official.

But passing the buck on to the Supreme Court does not suffice. Says senior advocate Arun Jaitley, who successfully defended Advani: "What, for instance, was the CBI's own independent investigations—other than the Jain diaries? After all, the diaries were no proof of payment. They just mentioned that payment had been made. The diaries could have at best corroborated the CBI's own independent investigations. "

THAT obviously has not happened. In a typical case—one involving a lesser-known accused, former director of the Central Board of Direct Taxes (CBDT) Hari Narain—it turned out that the agency was unable to corroborate its earlier allegation that Narain had taken money from the Jains, as mentioned in the diaries. The revision petition filed in Justice Shamim's court was quick to point it out: "The diaries (MR-71 and MR-72) disclosed an alleged payment to one 'HN' in July 1989... the prosecution has not reasonably and rationally de-codified the initials 'HN' on the basis of any legally admissible evidence to mean Hari Narain... nowhere amongst the evidence relied upon by the CBI has the identity of 'HN' been firmly and unequivocally established to mean Hari Narain."

 Hari Narain's petition placed before the trial court a list of bureaucrats and public servants with the initials 'HN', working in various ministries and public sector undertakings during the period 1988-89. During the course of arguments, the CBI counsel conceded that the name mentioned in the diary (MR 68/69) was not Hari Narain but Hari Haran—even though Hari Narain, as CBDT director, had handled a file relating to S.K. Jain's property in 1989. The diary contains the name 'Hari Narayan' under page dated August 14, 1989. However, it's unclear as to who the scribe of this document was and the purpose for which it was written.

 After Shamim's verdict, several of the accused politicians, including former Delhi chief minister Madan Lal Khurana and former Union minister Arjun Singh, have made a beeline for the courts with one self-redemptive purpose: they want their char-gesheets to be quashed on similar grounds. Arjun Singh's counsel told the designated hawala court of V.B. Gupta that since "there was no legal evidence on the basis of which any prosecution against the petitioner can subsist, there is no sufficient ground for proceeding with the trial." Arjun's counsel said since the prosecution (CBI) had not indicated any specific date on which the payment was allegedly made and the diaries are not books of account, there is no evidence on record which could be converted into legal evidence.

In Khurana's case too, his counsel Arun Jaitley and K.K. Sud contended that since the arguments on framing charges against the accused are yet to be made, he should be discharged if there is nothing against him. Another accused, former Congress minister Buta Singh, has filed a similar application in the special court.

Justice Shamim's verdict had another significant angle. The High Court judge ruled that elected representatives are indeed 'public servants', setting to rest the debate on the status of ministers, MPs and MLAs.

But is the verdict on the Jain diaries premature? Says lawyer Rajeev Dhavan: "Prima facie, without having gone into the case thoroughly, I would say yes. It could have also gone to a trial court." According to him, it would not be correct to say that there was any pressure applied by the Supreme Court to hurry the cases. "The apex court has always maintained that its job is to tell official agencies to do their job, not how to do it," he points out.

Some of the dramatis personae of the hawala case are naturally disturbed at the turn of events. Prominent among them is the original hawala petitioner Vineet Narain, who criticises the role played by the CBI and other official investigating agencies. Says Narain: "The CBI filed only one FIR, clubbing all the 115 transactions of bribe, when each transaction constituted a distinct offence. Then, they avoided registering the case under section 14 of the Prevention of Corruption Act. Under this section, a person can get up to seven years rigorous imprisonment for bribing public servants." According to Narain, the CBI cannot be allowed to take the defence that it failed to nail the accused because of the voluminous nature of the investigations—it had to probe 115 transactions within a period of 60 days.

Narain says that key accused S.K. Jain and J.K. Jain were released on bail as the Directorate of Enforcement (DOE) failed to file a complaint within 60 days of his arrest in the FERA case. Similarly, he says N.K. Jain was released on bail when the CBI failed to charge-sheet him under the Prevention of Corruption Act.

He also alleges that the CBI carried out no independent investigations, depending instead on the diaries for help. "No attempts were made to collect real evidence by conducting searches and raids. The chargesheeting has been based on the account books of the Jains."

According to well-placed sources, there were differences of opinion in the CBI about the conduct of the hawala case. Particular exception seems to have been taken to the opinion expressed by one of its key counsel K. Natarajan, who had said that he did not favour prosecuting the accused persons merely on the basis of entries made in the diaries. Even in the High Court, he maintained that entries in the Jain diaries did not constitute entries in a "business account". On the other hand, officials say that one of the few raids carried out by the agencies—like at former minister Arif Mohammed Khan's place—yielded good results. Documents linking Arif to the Jains were recovered, as were instances of a quid pro quo: the Jains obliging Khan for contracts awarded in the power sector in Madhya Pradesh.

THE judgement has other fall-outs as well. The CBI apart, even the DOE and the Income Tax, which have based all their charges on the diaries, now find themselves at a loose end. "If the diaries by themselves are not evidence, then there was no FERA violation or income tax anomalies," says a source. Add to it some other snags. For instance, no efforts were made to record the statement of main accused S.K. Jain before a magistrate, which would have been taken as legally admissible evidence. Instead, Jain's statement was recorded only by the CBI and the matter was left hanging. Had his statement been recorded then, it would have become a legal piece of document, something that the agencies are now going to miss sorely in the light of the new developments.

Stung by the High Court judgement, the CBI is planning to move the Supreme Court in a special leave petition (SLP). "Our legal advisors say there is a case for fresh examination of evidences. We are going to sound the Supreme Court," says an official.

Attorney General Ashok Desai held a meeting to study the court order. Unfortunately for the CBI, filing an SLP is not going to be easy. It needs the Law Ministry's nod and with only an 'acting' government in place, things will be difficult. Probably even more significant is the fate of other scams, like the telecom scandal—the CBI is banking on Sukh Ram's diaries to solve the case. If Sukh Ram's diaries and others are not admitted as evidence, then certain politicians could be laughing all the way to the bank.