HVK Archives: Activism prevails over restraint
Activism prevails over restraint - The Indian Express
Swapan Dasgupta
()
14 September 1996
Title : Activism prevails over restraint
Author : Swapan Dasgupta
Publication : The Indian Express
Date : September 14, 1996
Political commentators who detected a wave of disappoint-
ment in BJP circles after Special Judge V. B. Gupta's
September 6 order to frame charges of criminal conspiracy
and corruption against L. K. Advani in the hawala case,
were not far off the mark. Since the day the BJP presi-
dent resigned his Gandhinagar seat and vowed not to re-
enter electoral politics till his name was cleared,
India's premier opposition party has been waiting expect-
antly for a speedy and conclusive trial. After the
exhaustive 26-day hearing of the matter in the Designated
Court, informed legal opinion was almost certain that
Judge V. B. Gupta would clear Advani of the charge of
receiving Rs 35 lakh from the Jam brothers.
The belief that the CBI chargesheet would not stand
scrutiny was not based on some abstruse legal point. It
was centred on a careful reading of the Jam diary -
described by the CBI as the "mother of all documents"
which contains monthly details of all payments made by
the Jams for the 38 months between February 1988 and
March 1991. Advani, it may be recalled, was accused of
receiving Rs 35 lakh at an unspecified date between April
1988 and March 1990.
For the purposes of the pre-trial hearings, the entire
set of diaries recovered from the Jain's premises was
treated as books of accounts. Accountants who have
studied these documents are clear that the figures are
exhaustive and internally consistent. In his order of
May 8, ordering the framing of charges against V. C.
Shukla, Judge Gupta had assumed the diaries, notebooks
and ledgers to be books of accounts.
However, the curious feature of the Jam diaries is that
Advani's name does not figure in them. This is an im-
portant facet of the case which the CBI has mysteriously
glossed over in its publics pronouncements on the case.
Nowhere in the diaries is there any reference to the
payment of Rs 35 lakh to Adavni. In directing charges to
be filed against the BJP president, Judge Gupta relied on
a loose sheet of paper entitled "POE" (presumably Politi-
cal Expenses) where there was a reference to Advani. The
problem with this loose sheet of paper is that the fig-
ures mentioned therein bear no relation to accounts
meticulously maintained by the Jains.
At various stages of the hearing, the CBI made three
different attempts to weave the so-called POE into the
main body of accounts, but these proved arithmetically
impossible. It prompted the defence to suggest that the
loose sheet was in fact disjointed scribbles akin to
written hearsay wrongly totalled, then left untotalled
and finally abandoned. The notings on the loose sheet of
paper could not be corroborated by any other "substantive
evidence". Unlike the V. C. Shukla case where there is
independent evidence of social interaction with the
Jains, there is no hint of any association between Advani
and the Jains.
Recognising the fragility of the CBI case against Advani,
Judge Gupta was compelled to dictate a set of 15 ques-
tions to the prosecution. These questions were at the
heart of the allegations against Advani. The CBI counsel
said he would respond to the queries at the next hearing
on August 7. However, he did not do so despite being
reminded by the Special Judge. He said that his senior
counsel would do so the next day. However, the senior
counsel neither appeared nor answered the queries. When
the hearing concluded on August 9 with Judge Gupta re-
serving orders, the CBI had not provided any answers to
the questions raised by the court.
In view of the inability of the CBI to either link the
loose sheet of paper to the main body of the hawala
accounts or prove Advani's association with the Jains, it
was expected that Judge Gupta would readily agree that
the case against the BJP leader lacked any real sub-
stance. As such, it came as a big surprise when the
Judge in a 267-page order concluded that the CBI char-
gesheet was not "frivolous" and that the court had to
form a "presumptive opinion". What was even more ex-
traordinary is that Judge Gupta concluded that "there is
enough circumstantial evidence... to frame charges
against all these accused, since accused L. K. Advani
while working as a public servant has demanded and ac-
cepted a sum of Rs 35 lakh and this demand was illegal
gratification other than legal remuneration".
Having said that ordering the cases to be filed was not a
judgment on whether or not the evidence warrants convic-
tion, the Judge went on to observe that "corruption has
eaten into the nation's material fibre and rectifying
this should be the top priority and a beginning has to be
made". To the average Indian reading Judge Gupta's
words, there was only one unmistakable impression: Advani
is guilty.
Arguably, this may be an unintended consequence of Judge
Gupta's order, but in today's prevailing environment it
is also likely to be viewed as another instance of the
deep anti-politician bias of an activist judiciary. As
the judges become more and more embroiled in the noble
crusade of ethical cleansing, the thin line between
activism and restraint and between law and correctness is
being obliterated. The presumption of innocence - a
cardinal principle of criminal law - is being turned on
its head and being replaced with what Supreme Court
lawyer Indira Jaising described in these columns as an
attitude of "I can do what I wish to do".
The problem is most marked in those celebrated cases
involving senior politicians where the High Court or the
Supreme Court has taken a leading role. If a Supreme
Court judge repeatedly makes harsh observations against
the CBI for being soft on hawala-tainted politicians, the
apex court comes to be viewed as a super prosecutor. In
this atmosphere, it becomes extremely difficult for
subordinate courts to settle for a balanced approach. In
the end, what prevails is not law but a determination to
teach politicians a lesson. How else is it possible to
explain Kalpnath Rai's prolonged incarceration under TADA
and the imprisonment of Sasikala Natarajan's husband for
45 days on the charge of slapping a photographer?
Granted that many view Rai and Natarajan as
unprepossess-
ing individuals, the type who are the bane of our politi-
cal system. But aesthetic disdain should not become a
criterion for punishment under law. Having faltered in
the battle against corruption in the past, should we now
bend the stick in the other direction? By attempting to
enshrine equality under law, we can ill afford to intro-
duce fresh distortions.
If a politician is guilty of bribery and corruption, it
is the business of the courts to ensure his conviction.
That is the hallmark of a healthy democracy. But it will
be a sad day for Indian democracy if the law becomes an
instrument for the articulation of public prejudices. It
happened in France in the Dreyfus affair; it happened in
Khomeini's Iran when one Ayatollah became known as the
"hanging judge"; and it must not happen in India. The
judiciary must look at what is right in law, not what is
politically correct and popular.
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