'What Is The Offence?'

Speaking against the motion for condemnation of the the alleged involvement of some Indianentities and individuals as non-contractual beneficiaries of the United Nations'Oil-for-Food-Programme in Iraq, as reported in the Report of the United Nations'Independent Inquiry Committee (Volcker Committee).

Source: Verbatim uncorrected proceedings of the Rajya Sabha

Mr. Chairman, Sir, I rise to oppose the motionmoved by my learned friend under Rule 167. Sir, I have great admiration for mylearned friend for his flights of imagination. And it is a very cubic flight.And, unfortunately, he has fallen into his own trap. He is right. If you ask thewrong question, you will get the wrong answer. And all the questions that heasked today were the wrong questions. And, naturally, he could not come up withthe right answers.

If you remember, Mr. Chairman, Sir, he started off by saying that this is aCongress coupon. The Report says, "Congress is a non-contractualbeneficiary"; "Natwar Singh is a non-contractual beneficiary".So, this is a case of Congress coupon and Natwar coupon. And then, towards theend of the debate, he said there was a very limited investigation that wasrequired to be done. And what is that investigation? He said three things.Number one, who received the coupons? But, if it was the Congress coupon, why doyou ask that question? Then, he asked, "On whose behalf?". So, if youassume it is a Congress coupon, or, a Natwar coupon, then why are you askingthese questions -- who received the coupons; on whose behalf were these couponsreceived; where are they today? So, you concede, and rightly so becausesomewhere there is a sense of balance, that you do not know what these couponsare all about; on whose behalf they were issued; who took them; who encashedthem; where is the money; into which bank account the money has gone; who hasgot the kickback; what is the extent of the kickback. That is why, in the courseof my learned friend's erudite opening, I asked the question if I could knowwhat was the offence that had been committed.

Mr. Chairman, Sir, obviously, offences have been committed. Number one underFEMA. No.2 - under the Prevention of Corruption Act andNo.3 - under FCRA. Now, as my learned friend should know there is no criminalliability under FEMA. So, no criminal offence...

[SHRI ARUN JAITLEY: That is why you have chosen only FEMA. (Interruptions)]

Don't interrupt me. (Interruptions) I would have thoughtthat you would have studied all these. That is why I asked the question. It isvery unfortunate. You said FEMA, knowing full well that FEMA does not attach anycriminal liability. For criminal liability to be attached under FERA, theoffence should have been prosecuted prior to June 1, 2002.

[Interruptions]

So, Mr. Chairman, Sir, clearly there is no criminalliability under FEMA. As far as the Prevention of Corruption Act is concerned,you have to be a public servant on that day when the offence is alleged to becommitted. Now, everybody knows and it is a matter of record that the CongressParty, as a political party, cannot be a public servant. And, as far as Mr.Natwar Singh is concerned, he became a public servant and a Member of this Housein April, 2002. All the alleged transactions that my learned friend has invitedour attention to are all transactions in 2001. One in March, 2001; one in May,2001; one in June, 2001 and one in November, 2001. So, the Prevention ofCorruption Act is not attracted because he is not a public servant. 

Then, hesays, 'No, no; but, then, FCRA is attracted.' But to establish an offence underFCRA, you have to show that a political party took money, accepted money, or,that a member of a political party who is an office-bearer accepted money. Thereis nothing in the Volcker Report to show that. My learned friend made much ofthose documents. He said, look at the entries. Entry in Table 3 shows. Then, welook at Table 3, right away. It shows beneficiary - Shri K. Natwar; country -India. It does not show. This is only a conclusion. This beneficiary, K. Natwaris not a document. I don't understand it. It is not a document. It is aconclusion. Now, on what basis did Mr. Volcker come to the conclusion that K.Natwar Singh was the beneficiary? Those documents are not disclosed in theVolcker Report. Not disclosed in the Volcker Report. If those documents aredisclosed in the Volcker Report, then, I need not argue the case any further.Then, of course, the law must take its course. 

So, the primary evidence is notdisclosed in the Volcker Report. The primary evidence is the document on thebasis of which you say that Natwar Singh took money, or, on the basis of whichyou say the Congress Party took money. That is not there. You can prove that bysecondary evidence, under the Evidence Act. This is not even secondary evidencebecause secondary evidence means certified copies of the primary evidencebecause the primary evidence is not available. So, the documents on the basis ofwhich Volcker could have come to a conclusion are neither disclosed by Volckerin his Report nor given to anybody, and Mr. Jaitley says that an offence hasbeen committed.

Mr. Chairman, Sir, this is the problem. When political parties take anabout-turn and apply double standards, and when there is an over-enthusiasticargument, you always fall into an error. Mr. Chairman will remember, there was a time whenwe saw some primary evidence on tape which was in the possession of Government.Primary evidence and not conclusions! What happened to that? What happened tothe law of morality that my learned friend was talking about?

Imagine, here is a Government which has set up the Commission to get theprimary evidence; then was the Government which had the primary evidence andsent it outside India to get an expert opinion to say it is not a primaryevidence! When you had the primary evidence in your possession, you questionedthe authenticity of that evidence. We are trying to determine the authenticityof the conclusions of the Volcker Report, because we did not have the evidence.We are trying to arrive at the truth. And when it came to you, you tried yourvery best to hide the truth! You had the primary evidence and you chose not tolodge an FIR. We do not have the primary evidence. Till we get it, we cannotlodge an FIR. The then Enforcement authorities were helping the accused. TheEnforcement authorities are now questioning the people.

I am just trying to talk about the morality that you talked about. The thenGovernment in power relied upon that very primary evidence to prosecute or todeal with the members of the Defence services while members of political partiesand office bearers of political parties were not dealt with. What happened? Mylearned friend was at the helm of affairs then! You chose not to inquire intothe conduct of those people who took money on camera, not to inquire.

Mr. Chairman, Sir, you remember, when the scandal broke out on 14thMarch, 2001, what happened? When the scandal broke out from 2001 to 2004,nothing happened. No inquiry against the political beneficiary. No inquiry.Either by Venkataswami Commission or by Phukan Commission, no inquiry. And not asingle person was inquired into. In fact, the Government was helping theaccused. You see the affidavits before the Tehelka Commission and you will find.Let us not talk about the political morality. It is not going to gel. The peopleof India are not going to buy that argument.

Remember what happened in the petrol pump scam. For the 3,850 allotments madeto RSS and BJP workers, the primary evidence was in your possession. What didthey do? No FIR was lodged. (Interruptions) Let us not talk about the law ofmorality. I would never have touched it. (Interruptions) Because he talked about the law of morality, I am touchingit. (Interruptions)

SHRI JASWANT SINGH: Sir, are you going to keep within the ambit of thesubject or are we allowed to go outside? Then, we will start discussing theMittrokhin also. This is not permissible, Sir.

(Interruptions)

Mr. Chairman, Sir, I would like to inform the House that, perhaps, many donot know some of these facts, Mr. Volcker was not operating like a Grand Jury.He had no powers of a Grand Jury. He could not summon evidence. He could notsummon witnesses. He could not ask for this, that or the other. He had nocoercive powers. So, whatever Mr. Volcker got was on the basis of voluntarydisclosures made from time to time.

(Interruptions)

Mr. Chairman, Sir, the point that I was making was Mr.Volcker was not operating like a Grand Jury. He was receiving documents and Itried to figure out how is it and in what manner did the name of the CongressParty and Shri Natwar Singh, come into these records. And, I wish that mylearned friend on the other side had also made those investigations because whenI tell him how it all happened he himself would be surprised.

Mr. Chairman, Sir, Mr. Volcker set out to do the inquiry sometime in April,2004, and the final Report came in October, 2005. The first Interim Report thatMr. Volcker submitted was on February 3, 2005. And, thereafter, there were threemore Interim Reports -- one was on March 29, 2005, one was on August 8, 2005,and one was on September 7, 2005 -- till the final Report. And, the final Reportwas submitted on October 7, 2005. Now, the first Interim Report that Mr. Volckergave on February 3, 2005, did not contain either the name of the Congress Partyor the name of Mr. Natwar Singh. But, on February 9, 2005, certain proceedingstook place. Those proceedings were before the hearing of the Sub-Committee onOversight and Investigations of the Committee on International Relations of US.Before that, in that Committee, some testimony was given by a gentleman calledMr. Nimerod Ruffiali. He is a Ph.D and he runs a company called MEMRI -- MiddleEast Media Research Institute.

SHRI S.S. AHLUWALIA: It is not a company.

It is an institute. It is in Washington. In the course ofthat hearing -- and I will refer you to page 29 of that -- he submitted aprepared statement before the Sub-Committee.

And, he said that it is, perhaps, a tribute tothe freedom of Press introduced in Iraq in the wake of the operation 'IraqiFreedom' that Iraqi newspapers should have been able to expose a scandal thathas international reverberations. The Oil-for-Food scandal was made public by aliberal Iraqi daily Almada's publication. Over 270 individuals and entities whohad received vouchers, provided for the purchase of oil below market price. 

TheMiddle-East Media Research Institute translated the article and brought it topublic attention in the United States and everywhere, culminating in aninvestigation by various committees of the US Congress and other Governments.So, what the gentleman Nimrod Rafi Ali gave, was a translation of a newspaperreport, appearing in Iraq, under the title Al Maga, in which a list of270 entities was given, as having received money. So, he submitted thestatement. And, there is testimony which goes on. Ultimately, at page 39, Mr.Rafi Ali talks about vouchers received by various people. I don't want to gointo the number. At page 39, Mr. Rafi Ali said, The list was confirmed by theDulfer Report. "There is absolutely no question about the authenticity andaccuracy of the list". I am reading from the proceedings which say,"There is absolutely no question about the authenticity and accuracy of thelist". So, it is accurate as it was published by the newspaper. So, theaccuracy of this list is based on a publication by a newspaper. This is Mr.Jaitley's case. (Interruptions) This is Mr. Jaitley's case.

SHRI ARUN JAITLEY: Sir, I have a point of order. The reason for our motionwas that this Government is not honestly trying to investigate the matter, butwants to reach a dead-end. Mr. Sibal has just started. We will have the benefitof listening to him. But if opening is clear, that instead of speaking as aMinister...

SHRI KAPIL SIBAL: What is his point of order?

SHRI ARUN JAITLEY: I am coming to the point of order. (Interruptions)

Which rule has been violated? You can't have a speech. Idid not interrupt you. Please. Let me complete. This can't be a point of order.How I proceed in my debate is my business. (Interruptions) What point of orderis this? You cannot. (Interruptions) There is no question of... (Interruptions)

SHRI PRANAB MUKHERJEE: Sir, he has the right to reply. He can reply tothat point. (Interruptions)

SHRI ARUN JAITLEY: If my learned friend, Shri Pranab Mukherjee, will let mesay, is this a Minister of the Government who honestly wants to investigatethis... (Interruptions) ...is my point of order. (Interruptions)

SHRI KAPIL SIBAL: How can you raise it as a point of order? This is not apoint of order. (Interruptions)

SHRI KAPIL SIBAL: I am trying to show that as a lawyer you have not done yourhomework. (Interruptions) You should have done your homework because you makeallegations against the Government of the day; you are making allegationsagainst a national party. (Interruptions) You have made allegations against anational party, which has stood the test of time. And, you make seriousallegations without looking into the...(Interruptions) I am sorry to say.(Interruptions)

SHRI S.S. AHLUWALIA: Sir, I want to submit. (Interruptions) He is misleadingthe House. (Interruptions) He is misleading the House. (Interruptions)

SHRI KAPIL SIBAL : Why are you getting frustrated?

SHRI KAPIL SIBAL: Mr. Chairman, Sir, so in the course ofthis...(Interruptions)...

Nothing will go on record. (Interruptions) Nothing will go on record.

SHRI KAPIL SIBAL: It shows your frustration. ...(Interruptions)...It onlyshows your frustration. ...(Interruptions)... When I am telling you the facts......(Interruptions)...

Mr. Chairman, Sir, so, at the end of that deposition, heasked Dr. Rafi Ali if he could provide us the list. I would insert that list inthis place as a record of this Committee and I would be pleased to forward ittomorrow morning. So, the list is given and in that list there is a reference totwo entities. One is Shri Bhim Singh, 5.5 million, and Congress Party India, 4million. This is what happens on February 9, 2005. Then, he talks about one Mr.Dolfer who seems to have verified this. Then comes the report of Charles Dolferof CIA Iraq Study Group, Director of CIA, September 2004. 

And, what does he say?In the Annexure list there are several references to Indian oil having beenallocated and lifted. And, he says the report is based on information obtainedfrom the Iraqi sources interrogated by U.S. occupation forces and notindependently verified. ...(Interruptions)... It is very sad....(Interruptions)... Therefore, the source says it is not independentlyverified. Volcker does not disclose us the material and Mr. Jaitley says an FIRshould be lodged. They do not understand. I could have understood if Mr. Jaitleyhad shown to me documents from the Volcker report which suggested any linkagebetween the Congress Party as being a non-contractual beneficiary or Mr. NatwarSingh being a non-contractual beneficiary. I could have understood that. Wewould not have had this debate because an FIR would have been lodged unlikeTehelka because we are a Government who would certainly lodge a complaint. Wewill still lodge a complaint if we get the information. 

The point that I ammaking, Mr. Chairman, Sir, is that this is the state of affairs. The findings ofthe Volcker Committee report are, apparently -- we don't know, because that issomething that we have to find out yet -- based on information which the sourcesthemselves say are not independently verified. Now, what is the task of aGovernment in this context? What should a responsible Government do? Anirresponsible Government like the one that we had in the past would say, forgetit, what we see we do not believe. That is the act of an irresponsibleGovernment. But a responsible Government would say, 'yes', there are some names,including the name of the Congress Party which has come in the records of areport headed by Volcker who was the ex-Chief of the Federal Reserve. 

Eventhough we do not know the reasons why those names have come into that report, aresponsible Government would say, "still we would like to clear our name.We would like to find out as to why this has happened." And, therefore, wedecided to have a Commission of Inquiry. (Interruptions) One second, Mr. Jaitley,don't get worried now. (Interruptions) Don't get worried. (Interruptions) Thepoint is this. What happens is that when there is an over enthusiasticprosecutor and he is dealing with oil, he always slips. That is what happened toyou today. He has slipped and fallen on his face because he has not verifiedanything. Now, a responsible Government said, we want to get at the root of thisand that is what the Prime Minister said.

On the first day, the Prime Minister on 30th ofOctober made that statement 'that the documents don't suggest that there is any primafacie proof of any culpability, but we must get at the root of this.' Andthe same thing was repeated on the 3rd of the following month. In other words,we reacted as a Government should react. When there was a demand of theOpposition, we set up a Commission of Inquiry. My good friends said, no, no, youcan't have a Commission of Inquiry, you must have a prosecution. Why? Because aprosecution must be lodged to get at documents. He says that the reason is,under the Commission of Inquiry you can't send a letter rogatory, and he isabsolutely right. We are not going to send a letter rogatory till we are primafacie convinced that the Congress Party or Mr. Natwar Singh is involved, oranyone else is involved. He is absolutely right. We are not going to lodge anFIR till we are prima facie convinced that our Party or Mr. Natwar Singhis involved. There is no question. We are here not to please you. We are here tofind out what the truth is. 

So, look at section 166(a) of the Code of CriminalProcedure. I remember when Mr. Jaitley was making his submission, he was lookingat Shri Ram Jethmalani for some approval. Mr. Jethmalani being an outstandingdefence lawyer will tell him what the state of evidence of this caseis...(Interruptions)..