September 24, 2020
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'What Is The Offence?'

The Congress legal-eagle quotes the former PM Vajpayee: "Every man is innocent till he is proven guilty" while replying to Arun Jaitley's charge-sheet, and wonders why "now he doesn't want to accept that very principle which is espoused by his own PM

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'What Is The Offence?'

Speaking against the motion for condemnation of the the alleged involvement of some Indian entities 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 motion moved by my learned friend under Rule 167. Sir, I have great admiration for my learned 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 the wrong question, you will get the wrong answer. And all the questions that he asked today were the wrong questions. And, naturally, he could not come up with the right answers.

If you remember, Mr. Chairman, Sir, he started off by saying that this is a Congress coupon. The Report says, "Congress is a non-contractual beneficiary"; "Natwar Singh is a non-contractual beneficiary". So, this is a case of Congress coupon and Natwar coupon. And then, towards the end of the debate, he said there was a very limited investigation that was required 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 do you ask that question? Then, he asked, "On whose behalf?". So, if you assume it is a Congress coupon, or, a Natwar coupon, then why are you asking these questions -- who received the coupons; on whose behalf were these coupons received; where are they today? So, you concede, and rightly so because somewhere there is a sense of balance, that you do not know what these coupons are all about; on whose behalf they were issued; who took them; who encashed them; where is the money; into which bank account the money has gone; who has got the kickback; what is the extent of the kickback. That is why, in the course of my learned friend's erudite opening, I asked the question if I could know what was the offence that had been committed.

Mr. Chairman, Sir, obviously, offences have been committed. Number one under FEMA. No.2 - under the Prevention of Corruption Act and No.3 - under FCRA. Now, as my learned friend should know there is no criminal liability 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 thought that you would have studied all these. That is why I asked the question. It is very unfortunate. You said FEMA, knowing full well that FEMA does not attach any criminal liability. For criminal liability to be attached under FERA, the offence should have been prosecuted prior to June 1, 2002.


So, Mr. Chairman, Sir, clearly there is no criminal liability 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 be committed. Now, everybody knows and it is a matter of record that the Congress Party, 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 House in April, 2002. All the alleged transactions that my learned friend has invited our 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 of Corruption Act is not attracted because he is not a public servant. 

Then, he says, 'No, no; but, then, FCRA is attracted.' But to establish an offence under FCRA, 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. There is nothing in the Volcker Report to show that. My learned friend made much of those documents. He said, look at the entries. Entry in Table 3 shows. Then, we look 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. Natwar is not a document. I don't understand it. It is not a document. It is a conclusion. Now, on what basis did Mr. Volcker come to the conclusion that K. Natwar Singh was the beneficiary? Those documents are not disclosed in the Volcker Report. Not disclosed in the Volcker Report. If those documents are disclosed 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 not disclosed in the Volcker Report. The primary evidence is the document on the basis of which you say that Natwar Singh took money, or, on the basis of which you say the Congress Party took money. That is not there. You can prove that by secondary evidence, under the Evidence Act. This is not even secondary evidence because secondary evidence means certified copies of the primary evidence because the primary evidence is not available. So, the documents on the basis of which Volcker could have come to a conclusion are neither disclosed by Volcker in his Report nor given to anybody, and Mr. Jaitley says that an offence has been committed.

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

Imagine, here is a Government which has set up the Commission to get the primary evidence; then was the Government which had the primary evidence and sent it outside India to get an expert opinion to say it is not a primary evidence! When you had the primary evidence in your possession, you questioned the authenticity of that evidence. We are trying to determine the authenticity of 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 your very best to hide the truth! You had the primary evidence and you chose not to lodge an FIR. We do not have the primary evidence. Till we get it, we cannot lodge an FIR. The then Enforcement authorities were helping the accused. The Enforcement authorities are now questioning the people.

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

Mr. Chairman, Sir, you remember, when the scandal broke out on 14th March, 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 a single person was inquired into. In fact, the Government was helping the accused. 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 people of India are not going to buy that argument.

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

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


Mr. Chairman, Sir, I would like to inform the House that, perhaps, many do not 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 not summon witnesses. He could not ask for this, that or the other. He had no coercive powers. So, whatever Mr. Volcker got was on the basis of voluntary disclosures made from time to time.


Mr. Chairman, Sir, the point that I was making was Mr. Volcker was not operating like a Grand Jury. He was receiving documents and I tried to figure out how is it and in what manner did the name of the Congress Party and Shri Natwar Singh, come into these records. And, I wish that my learned friend on the other side had also made those investigations because when I 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 that Mr. Volcker submitted was on February 3, 2005. And, thereafter, there were three more 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 Report was submitted on October 7, 2005. Now, the first Interim Report that Mr. Volcker gave on February 3, 2005, did not contain either the name of the Congress Party or the name of Mr. Natwar Singh. But, on February 9, 2005, certain proceedings took place. Those proceedings were before the hearing of the Sub-Committee on Oversight and Investigations of the Committee on International Relations of US. Before that, in that Committee, some testimony was given by a gentleman called Mr. Nimerod Ruffiali. He is a Ph.D and he runs a company called MEMRI -- Middle East Media Research Institute.

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

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

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

The Middle-East Media Research Institute translated the article and brought it to public attention in the United States and everywhere, culminating in an investigation by various committees of the US Congress and other Governments. So, what the gentleman Nimrod Rafi Ali gave, was a translation of a newspaper report, appearing in Iraq, under the title Al Maga, in which a list of 270 entities was given, as having received money. So, he submitted the statement. 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 go into the number. At page 39, Mr. Rafi Ali said, The list was confirmed by the Dulfer Report. "There is absolutely no question about the authenticity and accuracy of the list". I am reading from the proceedings which say, "There is absolutely no question about the authenticity and accuracy of the list". So, it is accurate as it was published by the newspaper. So, the accuracy 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 motion was that this Government is not honestly trying to investigate the matter, but wants to reach a dead-end. Mr. Sibal has just started. We will have the benefit of listening to him. But if opening is clear, that instead of speaking as a Minister...

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. I did 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 order is this? You cannot. (Interruptions) There is no question of... (Interruptions)

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

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

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

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

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

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

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

Mr. Chairman, Sir, so, at the end of that deposition, he asked Dr. Rafi Ali if he could provide us the list. I would insert that list in this place as a record of this Committee and I would be pleased to forward it tomorrow morning. So, the list is given and in that list there is a reference to two entities. One is Shri Bhim Singh, 5.5 million, and Congress Party India, 4 million. 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 Dolfer of 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 been allocated and lifted. And, he says the report is based on information obtained from the Iraqi sources interrogated by U.S. occupation forces and not independently verified. ...(Interruptions)... It is very sad. ...(Interruptions)... Therefore, the source says it is not independently verified. Volcker does not disclose us the material and Mr. Jaitley says an FIR should be lodged. They do not understand. I could have understood if Mr. Jaitley had shown to me documents from the Volcker report which suggested any linkage between the Congress Party as being a non-contractual beneficiary or Mr. Natwar Singh being a non-contractual beneficiary. I could have understood that. We would not have had this debate because an FIR would have been lodged unlike Tehelka because we are a Government who would certainly lodge a complaint. We will still lodge a complaint if we get the information. 

The point that I am making, Mr. Chairman, Sir, is that this is the state of affairs. The findings of the Volcker Committee report are, apparently -- we don't know, because that is something that we have to find out yet -- based on information which the sources themselves say are not independently verified. Now, what is the task of a Government in this context? What should a responsible Government do? An irresponsible Government like the one that we had in the past would say, forget it, what we see we do not believe. That is the act of an irresponsible Government. 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 a report headed by Volcker who was the ex-Chief of the Federal Reserve. 

Even though we do not know the reasons why those names have come into that report, a responsible 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, we decided to have a Commission of Inquiry. (Interruptions) One second, Mr. Jaitley, don't get worried now. (Interruptions) Don't get worried. (Interruptions) The point is this. What happens is that when there is an over enthusiastic prosecutor and he is dealing with oil, he always slips. That is what happened to you today. He has slipped and fallen on his face because he has not verified anything. Now, a responsible Government said, we want to get at the root of this and that is what the Prime Minister said.

On the first day, the Prime Minister on 30th of October made that statement 'that the documents don't suggest that there is any prima facie proof of any culpability, but we must get at the root of this.' And the 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 the Opposition, we set up a Commission of Inquiry. My good friends said, no, no, you can't have a Commission of Inquiry, you must have a prosecution. Why? Because a prosecution 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 is absolutely right. We are not going to send a letter rogatory till we are prima facie convinced that the Congress Party or Mr. Natwar Singh is involved, or anyone else is involved. He is absolutely right. We are not going to lodge an FIR till we are prima facie convinced that our Party or Mr. Natwar Singh is involved. There is no question. We are here not to please you. We are here to find out what the truth is. 

So, look at section 166(a) of the Code of Criminal Procedure. I remember when Mr. Jaitley was making his submission, he was looking at Shri Ram Jethmalani for some approval. Mr. Jethmalani being an outstanding defence lawyer will tell him what the state of evidence of this case is...(Interruptions)..

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