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We Indians have been witness to many obnoxious developments in politics and
public life in the past year or so. A former Prime Minister is entangled in a
labyrinth of litigations in which the offence alleged against him ranges from
bribery to forgery. Another politician, who has visions of becoming the next
Prime Minister, and has, for this and other dishonourable reasons,
precipitated an unprecedented crisis before his own party and the governing
coalition it had pledged to support, is linked to an even more murky offence.
And as the dominant political practice plumbed newer depths of degradation in
recent times, a cynical view began to gain ground that all politicians are
corrupt and all have skeletons in their cupboards.
The spread of cynicism helped none but the truly and incorrigibly corrupt.
For, after all, the best way to blunt the society's anger and capacity for
corrective action was to erase the dividing line between the corrupt and the
clean. Once the common man began to believe that those considered the
cleanest were also, in real life, men with stained hands and stuffed pockets,
he would naturally lose hope in politics itself. And since loss of hope is
always the first decisive stage in the loss of strength, a society cynical
about its political class as a whole would naturally be a society of choice
for the corrupt rulers and power-brokers.
It is this hardening crust of cynicism about the entire community of
politicians which has suffered a deep dent in it by Tuesday's judgement
delivered by Justice Mohammad Shamim of the Delhi High Court, quashing the
charge of corruption against Mr LK Advani in the Hawala case. A
conspiratorially placed taint on the life of a clean and honest political
leader has been judicially rubbed out. A plot to finish off, or at any rate
severely disable, the political career of the BJP president, and thereby halt
the seemingly unstoppable progress of his party has come to naught. Justice
Shamim's 70-page judgement, a work of high legal discipline and exceptional
fidelity to facts on hand, has not only quashed the charges against Mr Advani
but held that the case is not even worth consideration for trial. He found no
evidence with the prosecution to establish that industrialist, Mr SK Jain
paid out and Mr Advani received the alleged Hawala cash of Rs 35 lakh. The
judge has emphatically held that such evidence as does exist in the form of
the infamous Jain diaries "cannot be converted into legal evidence against
the petitioners".
Not that this was not known to the CBI or its mentors in the South Block when
Mr Advani was chargesheeted on January 16, 1996. The legal untenableness of
the case was known to anyone who had even an elementary understanding of the
Evidence Act and other relevant aspects of the law. But what was known even
more widely was that it was also politically untenable. Mr Advani's life-long
record of personal probity and integrity had never been questioned even by
his bitterest ideological and political opponents. Yet, a pliant CBI sought
to make out a case that "Mr LK Advani while working as public servant has
demanded and accepted a sum of Rs 35 lakh" and, moreover, been "an integral
part of a conspiracy" in the Hawala case.
It was, therefore, a frame up-clear and simple. In discharging the case
against Mr Advani, Justice Shamim has understandably stuck to the purely
legal dimensions of the matter. But those who can jog their memory and their
political mind will come to the inescapable conclusion that the CBI's
chargesheet was a cunning attempt by the then Government, or rather by the
then Prime Minister, to show that if the Congress president was merely facing
allegations of corruption, the BJP chief actually carried charges of
corruption.
Honour restored
A beleaguered Prime Minister wanted to diffuse and deflect the charge of
corruption against himself and his Government. And what better way to achieve
it, Mr Narasimha Rao must have thought, than to "fix" his political opponent
in a corruption scandal in which many of his own ministers and partymen were
also going to be named. That is why, when judicial pressure mounted on the
Rao Government in the latter half of 1995 to begin probing the sensational
Hawala scandal, an ever-obedient CBI included Mr Advani's name among those
politicians mentioned in the Jain diaries.
In other words, it was an attempt to make the common man believe that all
politicians are unclean and, therefore, the BJP had no business and no moral
right to speak out against corruption. A scam-tainted Mr Advani was thus
sought to be projected as the proof that corruption was not a real issue in
Indian politics anymore.
Unfortunately, Special Judge VB Gupta's verdict of September 6 allowing the
CBI to frame charges against Mr Advani in the Hawala case served to provide
judicial imprimatur to this frame-up. It was riddled with many pitfalls and
internal inconsistencies. First of all, although the judge repeatedly stated
that 11 what is relevant at the stage of the consideration of the charge is
only the sufficiency of the grounds for proceeding against the accused and
not whether the material on record is sufficient for conviction or not", he
had, in reality, as good as pronounced Mr Advani guilty of the charge brought
against him by the CBI. He had stated that "enough circumstantial evidence"
was available to show that Mr Advani was not only guilty of ordinary
corruption "demanding" and accepting" illegal gratification but also of
"criminal conspiracy" in league with the Jains and others accused of
bribe-giving.
But what is that circumstantial evidence which the CBI furnished to the court
in "enough" and decisive quantity? If it existed, it was not to be found in
Judge Gupta's 267-page tome. The name of Mr Advani did not appear in any of
the meticulously maintained daily khatas, the monthly diaries, the periodic
ledgers, and not even in the "mother diary" which were confiscated from Mr JK
Jain, an official of Mr SK Jain, by the police on May 3, 1991. It appeared on
a loose and apparently interpolated sheet of paper which is inconsistent with
the continued consistency of the rest of the documents and hence is
considered in legal parlance as "written heresy".
It is now clear that the CBI resorted to the wholly implausible larger
conspiracy theory solely in order to overcome its own unsustainable stand of
treating the loose sheet of paper as admissible evidence. In the process, it
disregarded a key juridical principle well established by the Supreme Court:
That "charges can be framed only if the material on record, if unrebutted, is
such on the basis of which a conviction can be said reasonably to be
possible". In the Hawala case, the material on record which referred to Mr
Advani was so sloppy that, even if unrebutted, it could hardly have served as
the basis for conviction.
For 16 months Mr Advani suffered being categorised with the knaves and crooks
in the system at a time when the common people were being conditioned to
believe the worst about their politicians. That Mr Advani's honour has been
restored is his personal gain. That the case against the BJP chief has been
summarily discharged is the party's gain. But there is a bigger gain in
Justice Shamim's verdict, and it is the gain for India's political class and
its democracy. One does not have to be a sympathiser to the BJP to
appreciate this broader point.
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