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 TWENTY PER CENT
SIMILARLY, the repeated assertion of Thakkar and Natarajan that Nusli Wadia must have made some clandestine payment to Hershmann rests on their assertion that Hershman just would not have undertaken the enquiry solely on the basis of payment which would have been his due under the Reward Rules. (They assert this almost a dozen times). The Reward Rules, which Hershman had been given clearly, state that the informer is entitled to a payment of up to twenty per cent of the amounts which are recovered as a result of the evidence that he gives. The amounts that were involved in the foreign exchange violation of Reliance, Doshi ran into several hundreds of corers. Equally important from Hershman’s point of view much of the evidence was not difficult to get, Ambani’s violations had been documents and by then certified by departments of the Government of India itself. The transactions of Louis Dreyfus and L.M. Thapar were also a matter of record. Shah and Doshi had been conducting their activities by open advertisements in newspapers in the U.S. Moreover, collecting information about corporate misdemeanors of this kind is routine work for investigators in Europe, Japan and the US.
The prospect of getting up to twenty per cent of these hundreds of corers was enough to propel any investigators. And Hershman could have enforced his rights to the return in a court of law.
But see what happened.
When P.R. Vakil, Counsel for Nusli Wadia, began asking Bhure Lal during the hearings what offences Hershman had been asked to investigate and what the likely magnitude of the amounts involved was, Thakkar and Natarajan prevented Bhure Lal from answering the question, Their reasons were curious, They said that the answer might harm the reputation of parties who were not before the Commission (to which Vakil’s obvious answer was that in that case the Commission should send for those parties). Then they said that any figure which Bhure Lal might furnish would be nothing but guess work, and they would not allow guesstimates to be bandied about in the Commission (to which Vakil’s obvious answer was that Bhure Lal must have arrived at such an estimate before commencing the enquiry into specified economic offences). ~ But whatever the arguments, Thakkar and Natarajan would just not allow Bhure Lal to answer the question. Bhure Lal was willing to answer it and repeatedly indicated his willingness to do so. In fact, he began answering the question and went on for three or four minutes with the stenos of the Commission taking down the answer. Thakkar almost lost his nerve. I feared he would bring on a seizure. He cut Bhure Lal short and prohibited the stenos from taking down anything that Bhure Lal said.
At one stage none other than G. Ramaswamy, counsel for the Commission, himself said that if the witness — Bhure Lal — was willing to answer the question he, that is Ramaswamy, would not stand in the way.
Even then Thakkar would not allow Bhure Lal to answer the question.
Only to be embarrassed by Vakil then telling him that the answer was already contained in Bhure Lal’s tour note of February 6, which was already on record with the Commission!
Even after this embarrassment Thakkar would not allow Bhure Lal to record an answer.
The point having gone home to all present, Vakil began moving to the next question. As the exchanges had lasted over twenty minutes and the thread had been broken, he requested the stenos to read out the last few sentences that they had entered into the record so that he could commence from where they had stopped. Soagitated was he by this time that Thakkar seemed to be tethering on paranoia no, don’t read them, he ordered.
That the reasons they gave for shutting out the answer to these questions. Who was Hershman to investigate? What were magnitudes of the violations he was to investigate? we’re nothing but convenient inventions were evident then, The report makes it doubly so.
While Thakkar and Natarajan were so solicitous that day about not letting the names of organizations or persons whose transactions Hershman was to examine being mentioned in their hearings lest their reputation be affected, they their report! And as for not allowing guesses or conjectures before the Commission, their entire report rests on conjecture after conjecture after conjecture. And they are themselves forced to admit in passage after passage that this is so.
What then was the real reason that they did not allow Bhure Lal to answer that question? The answer would have blown their theory that Hershman just could not have undertaken the investigation without some clandestine payment by Nusli Wadia or his associates. For it would have brought on record the fact that as the violations amounted to several hundred corers, the prospect of a reward of up to twenty per cent of those amounts was more than enough to propel Hershman, and Hershman’s father, to go after the offenders.
Entrepreneurs every day go to great trouble and expense against much heavier odds prospecting for gold, for oil, in launching a new product in the market, in investing in a new, untried technique that the odds that Hershman had of raking in up to twenty per cent of several hundred corers.
A CONCOCTION
And thus I come to none other than myself! Thakkar and Natarajan open their account on evidence with a report from The Statesman in which I am said to have “confirmed” that a meeting had taken place at New Delhi between Messrs. Goenka, V.C. Pande, Bhure Lal, Gurumurthy and a representative of Fairfax. The report had appeared in The Statesman of 20.3.87. I had at once pointed out the error of the reporters concerned to the paper and had requested the paper to carry my contradiction forthwith; The Statesman the very next day published a report saying that I had “clarified” (their word, not mine) that no such meeting had taken place.
The error was patent. It is not just that I had not said what I was reported to have said; I just could not have said it. I had been attending every hearing of Gurumurthy and Jankiraman where the facts were being narrated again and again. I had got to know by then too that Mr. Goenka had in fact been out of the country when Hershman had been in India that is from November 15 to 17.
The fact of the denial having been published was specifically brought to the attention of the Commission. As was the fact that Mr. Goenka had not even been in the country at that time, a fact which can be verified from the entries in his passport.
But by quibbles by the fact that the original report was said to have been by The Statesman’s “Insight Reporters” while the denial was credited to the paper’s “Special Representative”, by the fact that the denial had been carried by the paper as a “clarification” the commissioners pronounced that they entertain “serious suspicion about the so called clarification”.
But supposing I had not denied the report at all, the fact itself could have been verified by asking Mr. Goenka to produce his passport. Thakkar and Natarajan chose not to do so. To do so would have blown their case that in spite of the denial they still harbor the suspicion that the said meeting a meeting whose only “record” was in the forge d letters which Thakkar and Natarajan themselves had refused to admit into the discourse — had in fact taken place. As the two would say, “The inference is obvious”.
Stumped by the fact that Mr. Ramnath Goenka was not in India on the dates on which Hershman was here and so the meeting at which Hershman and he were together present could just not have taken place, Thakkar and Natarajan come up with a new concoction. They say that the meeting could in fact have been not between Hershman, Goenka and the others but between some other representative of Fairfax, Goenka and the others!
Now this is a concoction which even the Government has not yet thought of.
And the narrative of Thakkar and Natarajan themselves contained in Chapter XIII, a chapter of 45 pages reports the visit of ‘only one representative of Fairfax to India that is Michael Hershman! And yet they say that in spite of the denial which had been published the very next day in The Statesman and in spite of the fact that Mr. Goenka in response to their query had specifically told them that he was not even in India at the time of the visit of Hershman, “the question (of the meeting having taken place between Goenka, Hershman, Pande, Bhure Lal and Gurumurthy in Delhi) therefore remains open notwithstanding the explanation.
Such is the record of these commissioners in assessing evidence and such are the grounds which they find sufficient to besmirch the reputation of others. Contrast this with the manner in which other Commissions have proceeded. Here is how Justice S.R. Das, formerly the Chief Justice of India, expressed the principles which governed him in the enquiry he held into the allegations against Sardar Pratap Singh Kairon:
The Commission has, throughout this inquiry, constantly borne in mind the two cardinal principles which have made our laws and administration of Justice noble and which bar the way to tyranny and arbitrary government. These principles are:
- that an individual must be presumed to be innocent until the contrary is proved beyond reasonable doubt by dependable evidence freely given and publicly ascertained or by the irresistible probabilities of the case; and
- That no individual shall be condemned on suspicion, however, strong.
In arriving at its conclusions the Commission has, therefore, demanded the high standard of proof, which our laws enjoin before it has accepted any allegations, however emphatically asserted as evidence on which it could safely rely and confidently act. In evaluating the evidence laid before it and in regulating its proceedings the Commission has adhered to the time honored principles embodied in our Evidence Act and the Codes of Procedure, not because they are binding on it but because they enshrine in themselves the sound and salutary good sense gathered through centuries of experience and wisdom. In the arduous and trying task of holding the scale of justice even as between the contending parties the Commission has spared no pants to ensure that justice is not only done but also appears to have been so done.
And here is Justice H.R. Khanna in 1967 setting out the principles which would guide him in the Commission he then headed.
In order to come to the conclusion as to whether the charges have or have not been proved, the Commission would have regard to the documentary evidence, supplemented as it is by affidavits and the other material on record, taken in the context of all the surrounding circumstances. The quantum of proof in order to carry conviction has necessarily to be same as is required in a case in a court of law. The principles applied in this respect in courts of law would hold good equally in proceedings before the Commission, because those principles are essentially based upon rules of prudence and common sense and embody within themselves the distilled wisdom of years gone by. Such are the precedents. And such the conduct of Thakkar and Natarajan. “The inference”, as they would say, “is obvious”.
Article extracted from this publication >> January 22, 1988
