By Arun Shourie
We are reproducing a series of articles by Arun Shourie published in the Indian.
Express to show how Supreme Court Judges in India act as handmaids of the government and pervert the judicial and constitutional process to further the political interests of the ruling party. World Sikh News has all along maintained that the reports of all such commissions are written by the Prime Minister’s Secretariat and the judges merely sign them. That’s why Sikhs have lost faith in the Indian Judiciary.
THE reason the Commissioners so wantonly disregarded the law is manifest. Had they give persons like V.P. Singh, V.C. Pande, Bhure Lal and S. Gurumurthy the rights conferred by sections 8B and 8€ these persons would have had the opportunity both to address the Commission and to cross examine the witnesses. This opportunity would have prevented the commissioners from reaching even one of the fantastic conclusions which they have now trumpeted about with such abandon.
They cast doubt, for instance, on what Bhure Lal had said about his conversations with an official of the U.S. Criminal Investigation Department. And how do they say they have received from that official. Was it not incumbent upon them to confront Bhure Lal with this communication and to seek his explanation?
Similarly, they make much of pettifogging “discrepancies” between the averments of V.C. Pande, the Secretary and V.P. Singh, his minister. On V.C. Pande’s account VP. Singh is said to have asked that the file be “sent” to him. On VP. Singh’s account he had merely asked that the file be “shown” to him.
Before trumpeting this “discrepancy” to cast doubt on the veracity and the integrity of the two: was it not incumbent upon Thakkar and Natarajan to confront the two with the “discrepancy” assuming for the moment that it is of any consequence and seek their explanation?
Scores and scores of such examples can be given. That the Commissioners chose not to afford the potential victims the opportunity which sections 8B and 8C guarantee to them cannot in the circumstances be described as anything but a fraud, a fraud on preselected targets, a fraud with a purpose.
And it is a fraud that has led to grave consequences. The reputations of honorable men have been dragged in mud extending to all of 290 pages. In the case of one person S. Gurumurthy his chances of obtaining a fair trial have been put in grave jeopardy.
A TRIAL PREJUDICED
When S. Gurumurthy was arrested on March 13, 1987, along with S. Janakiraman, the CBI first tried to hold him for violation of the Official Secrets Act. It became apparent at the very first hearing that this charge would not hold water. Then, on the basis of two forged letters, the CBI charged that he had been in touch with, that in fact he had engaged and helped pay a foreign detective agency. Gurumurthy at once disclosed in his bail application the fact that it was not he who had engaged Fairfax but the Government. That is how the matter first became public,
The allegations of his having procured secrets and also of his having engaged and helped pay a foreign detective agency, in any case, are still before the court. He is out on bail, and he faces the prospect of trial on these counts.
And along come two sitting judges of the Supreme Court who while admitting again and again that they have not come across any evidence to show that Hershman was, in fact, paid by anybody, insist again and again and yet again that he must have been paid by someone. And the only reason they give for this far reaching conclusion is that in their view Hershman could never have agreed to track down economic offenders on the mere prospect of receiving up to 20 per cent of the amounts that he helped uncover. In a typical passage they say that “it is absolutely unrealistic to believe that Mr. Hershman or M/s Fairfax could have ever agreed to such a highly speculative proposition with no guarantee of payment.” They say, “When these circumstances are viewed cumulatively and realistically there remains no room for doubt that M/s Fairfax or Mr. Hershman could never (sic,) have agreed to such an agreement unless there was some collateral agreement for payment by some private party”.
Is the issue that is before the court then not prejudiced?
Secondly, the commissioners cast the gravest possible doubts on the conduct and motives of S. Gurumurthy both in regard to the articles he had written about Reliance and in regard to the application he filed before the commissioners. They condemn him for “wantonly refusing to furnish information to the Commission on misconceived and imaginary pleas based on misinterpretation of powers… They accuse him of “playing the role of an investigative journalist”. They say, “It is difficult to believe that Shri Gurumurthy was doing all these out of excessive zeal to unearth the economic offenders for the benefit of the Nation”. In a typical passage they besmirch his reputation and then claim innocence by pretending that they cannot pronounce an opinion on the matter. Here is how they fling mud at another and try at the same time to ensure that none of it should show on their hands.
“Whether Shri Gurumurthy ‘was acting only as an investigative journalist or was motivated by the high ideal of unearthing the economic offenders to benefit the Nation or whether he was doing so ‘on account of any personal vendetta or on account of the inter corporate war between the two business houses or whether he was acting in order to further the ends of someone who was interest in playing the stock market and was interested in making quick money by indulging in speculative short sales, in the hope of the share Prices crashing in the wake of the series of articles is a matter on which the Commission cannot pronounce any opinion in view of what has transpired and) has disabled the Commission from gathering quick money by indulging in Speculative short sales, in the hope of share prices crashing in the wake of the series of articles is a matter on which the Commission Cannot pronounce any opinion in view of what has transpired and has disabled the Commission from gathering information on the relevant matters”.
Passages such as these occur at page after page of the report. Thakkar and Natarajan damn @ person and his conduction the most extreme terms and then add that they are not able to come to a definite view on the subject for want of necessary evidence, that they would rather not pursue the Matter any further as, being a policy matter, it is best taken up by’ the Government itself. Such libelous innuendo! Is unheard of even among commissioners, that it. Comes in this instance from sitting Judges of the Supreme Court can be termed as nothing but judicial indiscipline, and an extreme variety of it at that.
Nor do they stop at such libelous innuendo. As I mentioned above, Gurumurthy faces the prospect of trial under the Official Secrets Act and one of the allegations against him is that he obtained information and files by questionable means. This specific allegation will be the subject of trial. Without hearing Gurumurthy, without looking at the evidence, the commissioners pronounce as follows:
“There is also the evidence of Shri Bhure Lal to the effect that Shri Gurumurthy had passed on a file containing various papers relating to Reliance Industries in September, 1986. This file contained telex message and correspondence from and with Bank of Oman and copies of correspondence with Reserve Bank of India. This shows that Shri Gurumurthy has been playing the role which was much more than the role of an investigative journalist. The file containing the Xerox copies of the original documents which he had furnished to Shri Bhure Lal could not have been secured by any person without making recourse to some dubious mode of collecting information”.
The matter is before a mere Metropolitan Magistrate in Delhi. Two sitting judges of the Supreme Court having pronounced themselves so decisively on Guru: murthy’s motives, on the “dubious mode” which in their considered view he must have used to obtain the information and the file, on their certainty that Hershman must have been paid by a private party, which mere Magistrate is going to remain uninfluenced on the questions before him? Has Gurumurthy’s right to a fair trial not been blown? Can Commissioners or even judge’s heap injustice of this kind?
And do they know or care that the court was told nine months ago, that Mr. S. Mulgaokar had disclosed in writing a full year ago that the information and file had come first to him? Do they know or care that long before Gurumurthy got the file and used it, a Member of Parliament, Mr. A.G. Kuikarni, had already got it, used it in his address to the Rajya Sabha and in fact had offered to lay it on the table of the House there and then?
Gurumurthy as well as the others pointed out repeatedly that following the procedure which the Commission was ramming down their throats would lead them to disclosing their defense without hearing even the charges against them. They pointed out that this ‘was not just repugnant to every norm of natural justice, it was in clear violation of what the courts had held. They drew attention, for instance, to the ruling of the Delhi Court cited earlier in which the court had said: “requiring a person accused of misconduct to furnish a statement disclosing his defense even before he has heard the case against him is so opposed to the basic norms of our legal system that every court would be loath to draw such an inference”. (1980 (1) ILR Delhi, 820).
They had pointed out the ruling of the same court that “Rule 3 (now Rule 5(5) enjoins that in all cases that the Central Government must first lead evidence. There is no exception whatever to this rule”. (ibid, 815).
The commissioners disregarded all this and kept insisting that the likely victims must first file their answers. The reason they gave again and again and which they repeat as frequently in their reports that Section 6 of the Commission of Inquiry Act provides likely victims the safeguard they need. That this was a mirage they were holding out will be evident from Section 6 itself. It says:
“6. Statements made by persons to the Commission No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statements:
Provided that the statement: a. is made in reply to a question. Which he is required by the Commission to answer; or
- is relevant to the subject matter of the inquiry”.
Even if the Section is taken at face value it only guarantees that “no statements made by a person… before the Commission shall subject him to or be used against him…”
But the prosecutor will be looking not merely to the formal statement that a person may have, made. He would be getting the information he needs for trapping the person by the line of argument the person has adopted, by the reasons and explanation which he has given in his defense. And these are the clues which will jeopardies the defense of the person facing charges in a court of law,. Or whose conduct is to be examined by the Commission.
‘The matter is so obvious that it does not need to be argued. And yet the commissioners disregard the jeopardy in which they were placing a person facing the imminent prospect of criminal charges in a court charges of stealing secrets, of violating Foreign Exchange Regulations, of activities bordering on espionage as well as the persons whose repute their inquiry was to besmirch.
It is not just that Thakkar and Natarajan pursued Gurumurthy so doggedly so as to force him into a course of action which would have led him to disclose his defense against the charges on which he faces a criminal prosecution, they set upon him the very agency the Central Bureau of Investigation which is prosecuting him in that case, the very agency which had detained him and subjected him to the severest interrogation on the basis of forged letters.
When Gurumurthy kept pleading with Thakkar and Natarajan to give him the rights which were his due under Section 8B and 8C when their threat to prosecute him failed to cow him down, they sent four CBI officials to his house in Madras to compel him to disclose whatever it is that they wanted to extract from him.
As that device too failed, they now condemn him in their report for “wantonly” refusing to cooperate with them!
Commissioners or hatchet men?
I cannot imagine that these Commissioners did not know the consequences of what they were doing, that they were oblivious of the web that they were weaving. Nor can I believe that they did not know that the web would come apart if persons like Gurumurthy ‘were confronted with the evidence or, as in the case of these commissioners, the absence of evidence that it would come apart if they were given the slightest opportunity to cross examine the wit nesses and to state their position on the facts, That is why their deliberate decision, to deny Gurumurthy, VP, Singh and all the others their rights under sections 8B and 8C, as I said, is nothing but a fraud, and a fraud with a purpose.
It has been held again and again that inquiries must be conducted in public except in grave and specific circumstances, for instance, when holding the hearings in public might inflame passions, when doing so might scandalize innocent persons, when doing so might lead to the disclosure of something that would adversely affect national security.
It has been held that such open hearings discourage perjury; that they safeguard against any attempt to employ courts etc. as instruments of persecution; that they ensure fair and accurate adjudication of guilt or innocence; that they increase the confidence of the public in the final pronouncements. All this is specially so where the Executive is a party to the proceedings the very Executive which is the largest litigant in the country, which is also the agency which has a decisive, in fact the predominant say in the appointment of magistrates, judges and commissioners.
Instead of following these salutary principles Thakkar and Natarajan began their hearings surreptitiously and in secret. They got Bhure Lal one of the principal person whose conduct was to be examined and who has in the event come in for such severe censure at their hands to the house of Thakkar. As was pointed out at that time if it were to become known that a Supreme Court judge was meeting an accused at his home, secretly, and unknown to the public, unknown to the legal fraternity; and if it transpired further that the judge had insisted that the accused come without his lawyer it would be a scandal of the highest order. And yet what did these two sitting judges of the Supreme Court now dressed up as commissioners do but this?
And these surreptitious, secret hearings might never have come to light had it not been for the vigilance of some journalists, including, those working for this paper.
In their long and labored defense of this strange procedure Thakkar and Natarajan give two reasons. They say, first, that it was necessary for them to get Bhure Lal’s version of the facts swiftly, that is before anyone could reach and influence him. Second, they say that they were functioning under a time constraint and as no premises had been allotted to them to commence work in the Supreme Court they had to begin the inquiry at the residence of Thakkar himself.
The reasons are self-serving nonsense. The matter of Fairfax had come to light in mid-March. The dates the Commissioners are talking about relate to a period which is one and a half months after this.
If anyone had wanted to get at Bhure Lal he had already had ample time to do so. The “reason” they would have us believe therefore does not hold. It is not that someone might, have got a Bhure. Lal. But that the commissioners for reasons, as they would put it, of their own thought it prudent to get at him in secret.
And that bit about not having been allotted accommodation is worse than nonsense. It so happens that the Supreme Court is not fully manned. Several court rooms therefore lie unoccupied and unused. The Chief Justice had already indicated even before the Commission was formally constituted that its hearings would be in the Supreme Court. The very Court No. 9 in which Thakkar and Natarajan eventually held their hearings in public was lying empty. ]t had been lying empty then. In fact no judge had ever used Court No. 9 at all till that date, Just as no one has used it since Thakkar and Natarajan wound up. And yet the two would have us believe that they had to begin private, unannounced hearings at Thakkar’s residence for want of a room in the Supreme Court.
In any case, why did they not announce that they were commencing the hearings? Why the furtiveness? And why did they compel Bhure Lal to appear without a lawyer? And why not just without a lawyer but also without adequate notice?
But it is not just that Thakkar and Natarajan held the initial hearings in secret, furtively. It is not just that they were compelled by the public protest of senior advocates of the eminence of Mr. F.S. Nariman to go public. It is that throughout their inquiry they continued to conduct themselves largely in secret. In what must be an unprecedented transgression of the norms they took to obtaining evidence, to settling matters of law, to settling matters even relating to the Constitution by “Top Secret” correspondence?
Whereas other commissions have opened documents and communications filed with them for inspection by parties and their counsel, or commissioners here kept crucial data that had been filed by one part secret from the others. It is only by this device that they have been able to censure V.P. Singh, V.C. Pande, Bhure Lal, and to cast doubt on the integrity. The “discrepancies” the make so much of are pettifogging trivia. But that is the minor point. They would not have survived at a had one been shown what the other had communicated and then questioned on the “discrepancy”.
Apart from adopting the very “cloak and dagger method of which they accuse the Directorate of Enforcement, the Commission adopted another device which is as repugnant to the law as it has been laid down by the courts as it was tail or made to help them reach their fantastic inferences.
Whenever a question came up for instance, when someone applied for right der Sections 8B and 8C or when someone enquired of a point of law — their unvarying answer was what they would declare themselves on the matter “at the appropriate time”. They would invariably say that they were conducting the inquiry “in a phased manner”, and that they would therefore deal with the question at the appropriate, subsequent phase.
Ram Jethmalani, appearing for Nusli Wadia, asked them the elementary question about the yard stick on which his client’s conduct would be assessed. Would the Commission follow the principles of the Indian Evidence Act? Would the Commission judge Wadia’s conduct on the preponderance of possibilities as is done in civil law or would it judge it on the criterion of the evidence being beyond reasonable doubt as is done in criminal law? Even these elementary questions the Commissioners refused to answer saying that they would do so “at the appropriate time”, at a subsequent “phase” of their inquiry.
That subsequent phase, that appropriate time never came for one day every one suddenly learnt that such hearings as the commissioners were going to conduct were over with the hearings they had conducted into the conduct of Nusli Wadia exclusively. Throughout these hearings the commissioners had ruled out all questions relating to all the other terms of reference for instance, to the all-important one about national security as well as to the conduct of each the other persons on the assertion that the inquiry was a phased one and that in the phase at hand they were concerned with the conduct of Nusli Wadia alone. They left everyone hanging there. And the next thing we learn is that they have ‘already finalized the report condemning all the persons they had refused to hear and pronouncing themselves on all the terms of reference on which they had refused to entertain arguments or evidence on the ground that in that particular phase they were only concerned with one person and with one matter.
Contrast all this with the admonitions of the Royal Commission on Tribunals of Inquiry against the holding of such hearings in private. Contrast it with the judgment of the Delhi High Court which was as binding on these commissioners as on anyone else that “Enquiry (under the Commission of Inquiry Act) is one continuous proceedings and there are no. Iwo stages……” (ILR, op,cit,588).
The consequences are before us. The victims are now confronted with a fait accompli and they have no way to get their views to the commissioners.