Author: Rajinder Puri
Publication: Boloji.com
Date: December 1, 2010
URL: http://cms.boloji.com/index.cfm?md=Content&sd=Articles&ArticleID=10274
Will Supreme Court Repeat Disaster?
In order to avoid a Joint Parliamentary Committee
(JPC) probe of the 2G Spectrum scam the government has proposed a CBI probe
monitored by the Supreme Court. It passes comprehension how the government
can be brazen enough to even make this outlandish proposal. The Supreme Court
(SC) should firmly reject the proposal even before the opposition responds
to it. The scandalous fiasco enacted during the Jain Hawala case remains too
fresh in memory. It left perhaps the worst blot on the reputation of the Supreme
Court which monitored the CBI's investigation of that case. Just recall a
few bald facts that emerged from the handling of that case.
The investigative agencies reported the progress of the probe at each step
to the Supreme Court in hearings held in camera. After Court's approval the
cases were registered and prosecution launched. But the Delhi High Court rubbished
the case for insufficient evidence to justify prosecution. So who was right,
the Supreme Court or the High Court? The Supreme Court meekly accepted the
High Court's snub!
The Supreme Court was totally ill equipped to deal with the chicanery of the
CBI's investigative officers. It foolishly allowed the agency to introduce
an event extraneous to the case as evidence. A junior officer without clearance
from the CBI Director introduced a recorded confession of the accused, SC
Jain, that he had also paid funds to then Prime Minister Narasimha Rao. This
payment may have merited a separate case but was in no way part of the Hawala
case because Rao's name had not figured anywhere in the Jain Hawala diaries
which provided the basis of the case. Without executive authority over the
bureaucracy how can the Supreme Court counter the machinations of officials
whose career prospects are determined by politicians? After the PM's name
was allowed by the Supreme Court to be falsely included in the Jain Hawala
case there naturally developed a vested interest in the government to close
the investigation.
The Jain Hawala case was a TADA case connected to the funding of militants
but was illegally converted into a corruption case to protect the politicians
who along with the militants were recipients of illegal money from the same
foreign sources. The Supreme Court was helpless in dealing with this sleight
of hand by the prosecution. The entire probe could be subverted by various
acts of commission and omission by officials investigating the case.
At the end of it all the outcome was so farcical and comical that one did
not know whether to laugh or to cry. Not a single politician among the over
forty accused was convicted. But the two Kashmiri separatists who received
the Hawala money from the same sources as the politicians were convicted although
given surprisingly mild sentences. The accused businessman who paid the money
through these Hawala conduits, SC Jain, many years later was found guilty
by the Enforcement Directorate and made to pay a hefty fine of Rs 35 crore.
So, despite the failure of the Delhi High Court and the Supreme Court to find
sufficient evidence, it becomes clear from these convictions and punishments
that undoubtedly the crime was committed. But for politicians whose names
figured in the diary, some of whom admitted on TV that they had indeed received
the Hawala money, there was insufficient evidence to pursue prosecution!
The final order of the Supreme Court quoted the Jain Hawala case to justify
that the procedures governing the appointment and functioning of the Chief
Vigilance Commissioner of the central government needed to be amended. Why?
Had not the courts themselves ruled that there was insufficient evidence to
proceed with the case? Why such a systemic change on the basis of something
that never merited a single politician's conviction? The Chief Justice of
the Supreme Court and the Chief Justice of the Delhi High Court who presided
over the case did well for themselves after retirement. During the tenure
of a Home Minister who was a prominent accused in the Jain Hawala case one
became the Chairman of the Human Rights Commission and the other became Chairman
of the Minorities Commission. So much for judicial rectitude! There was also
a defamation case against the Judges hearing the Jain Hawala case that was
buried but not pursued despite most damaging allegations made against them.
Ironically the former Chief Justice of India who presided over the case opined
many years later that the Jain Hawala case should be reopened. One does hope
that he did not imply that the second time around the Supreme Court would
again be required to monitor the investigation! Currently he is the doyen
among legal eagles passing judgment on his peers regarding judicial rectitude.
In the light of all this one fervently hopes that Chief Justice Kapadia will
firmly put his foot down and not again make a laughing stock of the Supreme
Court. He should not fall into the trap of lending the Supreme Court's name
to an endorsement of what may well end up as another CBI cover up.