July 27, 2021
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Who Will Investigate The Investigators?

Who Will Investigate The Investigators?

A quick recap first:

  1. Samajwadi Party's former general secretary Amar Singh
  2. BJP leader L K Advani's former aide Sudheendra Kulkarni
  3. Ex-BJP MP Faggan Singh Kulaste
  4. Ex-BJP MP Mahabir Singh Bhagora
  5. Amar Singh's former aide Sanjeev Saxena
  6. Alleged BJP activist Suhail Hindustani.

A few quick points on today's court order 

  • What happened in court today was not unexpected. The same charge-sheet under which Mr Amar Singh and two ex-BJP MPs were placed in judicial custody on Sep 6 had also named Mr Sudheendra Kulkarni. The Special Judge had already expressed her unhappiness with Mr Kulkarni's absence, regardless of its legitimacy, on Sept 6 and Sept 19 and had issued a strict warning asking him to present himself in court on Sept 27.
  • Mr Advani's much-belated grandstanding in Lok Sabha on Sep 8, after the arrest of its two ex-MPs on Sept 6, was largely seen to be an exercise to prevent what happened today — the arrest of his former close aide. [Contrast the response after the arrest of Suhail Hindustani on July 20, for instance]. It has thankfully not had any influence on today's decision. The court has to go by the evidence presented to it.  It had denied interim bail to the others chargesheeted and if anything, Mr Advani's belated discovery of the onus of leadership only ended up providing grounds for embarrassment at the hands of Mr Jethmalani.
  • Perhaps the BJP needs to consider why, for instance, it did not expend its energies in ensuring that it had deployed its best legal brains to fight this case or why its luminaries such as Mr Jethmalani were not employed on its behalf rather than for Mr Amar Singh.
  • Let it be reiterated just for those who may not have grasped it: today's detention is ordered not by UPA but a designated court which examined the evidence presented before it
  • Mr Amar Singh managed to get an interim bail only on medical grounds, the other two ex-MPs of the BJP remain in jail, as do Sanjeev Saxena and Suhail Hindustani. In fact, perhaps the only reason the third MP is not in jail is because he is also a serving MP. So why should it be a surprise that Mr Kulkarni would be treated differently by the court?

Having said the above, it is even more important to refresh our memory by considering the following:

  • Leaving aside what the BJP charges or what the Congress offers in its defence for the moment, even without Wikileaks cables, there was enough circumstantial evidence on record by way of video footage, whether or not it was truncated and incomplete, which to any neutral observer made clear that at least charges against the beneficiaries of the cash for vote scam should have been properly investigated. 
  • Though Mr Manmohan Singh's UPA I won the trust vote 275-256, i.e. by 19 votes, on paper, if one went by the formal decisions announced by the various parties, it should have lost the vote of confidence by a margin of 16.
  • Mr Amar Singh's sudden proximity to Mr Manmohan Singh was not exactly a state-secret then; nor that the difference of (19 + 16) 35 was accounted for by 10 absentations and 25 instances of cross-voting. It is quite possible that some of them may have voted on ideological grounds or as per their conscience, but surely there is a case for thorough investigation?
  • Even the disputed Parliamentary Committee report ( there were two dissent notes, one by BJP's V.K. Malhotra and the other by CPM's Mohd Salim) had demanded a probe into the source of cash presented in parliament and further investigation into the role of L.K. Advani's then aide Sudheendra Kulkarni, Amar Singh's former aide Sanjeev Saxena and alleged BJP activist Suhail Hindustani.
  • No action was taken by Delhi Police. There was just no investigation to speak of. The case had been effectively buried till March 17, 2011 (i.e almost three years) when the publication of a Wikileaks cable once again put the spotlight back on it.
  • The SC stepped in only because of the intervention by former election commissioner Mr J.M. Lyngdoh and others via a PIL
  • The case was not handed over by the SC to CBI or SIT or any other investigative agency. The same Delhi Police which had effectively buried the case was suddenly expected to turn a new leaf. 
  • Delhi Police's bias is clear from this lack of any proper investigation till the Wikileaks cable rekindled interest and based on a PIL the SC had to goad it into at least the appearance of going through what seems to be a clear charade of an investigation.
  • The Congress expectedly distanced itself from those named in the Wikileaks cable, but there has not even been any effort to question those named or try and look for corroborative evidence, not even as an allied case.
  • Let it be underlined: Delhi Police works directly under the home ministry and cannot even plead the fiction of being an autonomous body, as the CBI did today.
  • Another recent illustration of Delhi Police acting as the home ministry's hand-maiden was provided by the blatant and brazen attempt to smear the Bhushans using a forged CD
  • Till July 19, DP had not even requested for permission from home ministry to question Amar Singh
  • As recently as Sept 2, when the SC refused to monitor Delhi Police because a charge-sheet had been filed, it said: "You (Delhi Police) have not done what we said earlier. Find out the source of money. You can do it, if you want to do it. You are capable of doing so."
  • After all the charade of an investigation, it had arrested only Sanjeev Saxena and Suhail Hindustani, forcing the special judge to say: "They did not do their job. Instead, they are leaving it to the court. They had no justification in arresting one or two persons and leaving out the rest of the accused. They cannot pick and choose" 
  • But eventually, while ordering judicial custody, as it did, the court could only go with what is presented before it as evidence

It is not my case that the investigation could only be true or correct if it agreed with what the circumstantial evidence clearly pointed to: viz. that Mr Amar Singh was acting at the behest of Congress or that we should entirely rule out the possibility that the sting was merely designed to benefit the BJP if the UPA came to grief following its telecast. The point is that (a) Delhi Police's conduct does not even remotely provide any reassurance of a competent investigation to explain the available corroborative evidence and (b) even if it had acted fairly, it would still be liable to be accused of acting at the behest of home ministry.

Where do we go from here?

  • Even though Mr Kulkarni has been placed in judicial custody till October 1, and denied interim bail, his regular bail application would be considered in normal course on October 1
  • The judicial process is far from over and one should hope that the Delhi Police's role in this sordid episode and its shoddy and lack-lustre investigation in the case would  be again taken up at least by the SC, regardless of what the trial court decides. On Sep 2, while refusing to further monitor Delhi Police, the SC had told Mr Lyngdoh that he could approach it at any stage when its intervention was required.
  • While we do need the truth to prevail in the cash for votes saga, the real issue is not and should not be reduced to a mere debate about this or that party or individual. No matter what noise is made by which side of the party/political divide, one fact remains indisputable: the current controversy is only a symptom. There is an urgent need for police reforms so that at least an effort is made to restore faith in the credibility of the investigative process. The same crisis of credibility confronts us even in those cases where the SC was forced to monitor investigations by CBI. (That the problem persists even in those cases where SITs and amicus curiaes are appointed is an important, related, but different debate). In any case, the courts can only monitor investigations up to a point. For any sense of closure or justice, at least a modicum of faith in the independence, fairness and competence of the investigative process is required, making reforms an urgent necessity, something that is linked to the whole debate over the Lokpal controversy as well.  (Who will monitor the Lokpal? How do you have autonomy and yet ensure accountability by means of checks and balances?). Those in power today would do well to think about this in their (to use a phrase much profaned by Gen Musharraf) "enlightened self-interest" for they may be at the receiving end of a similarly biased investigation at a different time/place.
  • Clearly, we have not heard the last of this case which, among many other things about the murkiness of our political system, also once again spotlights the need to debate judicial custody and the denial of bail, regardless of the personalities concerned, a point which has been made regarding the 2G and other attendant cases as well.
  • Till then, unfortunately we have no alternative but to rely only on our instincts and intuitions (or, in other words: our prejudices and biases).  Let us not forget that the same investigative agencies are also in charge of our security and solving the various terror cases, among other things.


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