By Arun Shourie
THE Commission”, say the commissioners on page 98 of their report, “under the circumstances, has found itself unable to do anything in the background of the aforesaid features emerging from the report, and has not been able to undertake the exercise to inquire into the conduct of Sarvashri Goenka, Pande, Gurumurthy, Bhure Lal and the role, if any, played by them in regard to the utilization of the services of Messrs. Fairfax Group Inc.”.
And then they spend the next 200 pages doing precisely that, which is making the wildest assertions about the conduct of Goenka Pande, Gurumuthy, Bhure Lal and others in the matter. This is typical of Thakkar and Natarajan.
On vital point after vital point the only evidence that they adduce is that the persons concerned have not furnished them the evidence they have asked for Nusli Wadia must have paid money to Hershman clandestinely and for collateral purpose because he has not supplied Thakkar and Natarajan the passbooks of foreign accounts which he must have. Hershman must have received such money because he has not answered the questionnaire that the commissioners sent him. Gurumurthy must have had collateral motives including the possibility “that he was acting in order to further the end of someone who was interested in playing the stock market and was interested in making quick money by indulging in speculative short sales” because. He has refused to disclose his motives to the commissioners.
“The inference is obvious”, they say. “The inference is obvious”, they say a dozen times.
But the fact the only evidence Thakkar and Natarajan produce to support their assertion is that they do not have the required evidence is just one perversity of the commissioner’s report. In addition to this the record of the hearings and the report show that:
* They have suppressed what was given to them and what was on record.
* They have shut out information which was vital to the matters which they were considering but which would have blown the conspiracy theory that they were concocting;
* They have misrepresented what was put to them.
SHIELDING RAJIV
The way they have handled matters relating to V.P. Singh is typical — and astonishing — example of the first.
They indict V.P. Singh for not taking the approval of the Cabinet or the Prime Minister.
They suppress the answer that S. Venkataramanan the Finance Secretary then and now, gave to the office of none other than Rajiv Gandhi, In response to a specific query from Rajiv’s office on the point Venkataramanan wrote:
Whether the P.M, had to be consulted or not was for FM to decide. There was no need to consult the Finance Secretary. It does not appear necessary to consult cabinet or C.C.P.A.
The answer was as much on the record of the Commission as the note of March 23, 1987, from the P.M.’s office which occasioned the answer.
They are at pains to show that Rajiv Gandhi knew nothing of what had been decided. They suppress what was on their record.
First, the fact that Bhure Lal had met Rajiv Gandhi on February 5 — Rajiv having taken over Finance and thus being Bhure Lal’s minister — and had apprised him fully that an American detective agency had been engaged. He had told Rajiv the names of the persons whose affairs were to be examined by the agency.
Rajiv expressed total agreement with what had been done.
He then did not just send the minute to his Secretary, V.C. Pande. He personally apprised Pande of what the Prime Minister had said.
All this was as much within the grasp of Thakkar and Natarajan as anything else. But there is not a mention of it in their report.
Similarly, while they indict V.P. Singh for not seeking the approval of the Prime Minister, they suppress the fact which had been brought on record through the written statement of V.P. Singh himself that on three separate occasions the Prime Minister had specifically, and personally to V.P. Singh, endorsed the decision to hire the foreign detective agency.
On March 11, 1987, after V.P. Singh had in writing recorded that he is the one who had given the approval for seeking the assistance of the foreign detective agency, V.P. Singh called on Rajiv Gandhi, By that time Rajiv Gandhi had seen the file and as the file was less than a dozen pages even he must have read it. He by now knew not just the fact that a detective agency had been hired, he knew the name of the agency, i.e. The Fairfax Group. V.P. Singh, called on him in the evening and discussed the matter with him. Rajiv told him that he saw nothing wrong at all in what Y.P. Singh had done.
When the controversy erupted in the press as a result of the lies, the Government was caught out in trying to off load in the court of the Metropolitan Magistrate in Delhi, V.P. Singh met Rajiy Gandhi, a second time on the matter. Again Rajiv Gandhi told him that he approved of V.P. Singh’s decision and that his concern was only to ascertain whether the officials had exceeded their brief, and that it was for this reason that his office had raised the questions it had in its note of March 23, 1987.
The controversy escalated by the day as the Government was ensnared in lie after lie. The matter was to be discussed in Parliament on March 31. Just before the debate V.P. Singh met Rajiv Gandhi a third time. Rajiv this time went farther than he had done on the two previous meetings. He said that not only did he find nothing wrong with the decision of V.P. Singh, the Government would endorse that decision on the floor of the House that very day.
And so it did. Speaking for the Government, Brahm Dutt, the « Minister of State for Finance, said: I am satisfied with the arrangement which had been made the way in which: the then Finance Minister gave his permission for it was completely right. There was no difficulty.
You can see the concern now. Each of the facts narrated above is mentioned in the statements of Bhure Lal, V.C. Pande and of V.P. Singh to the Commission. The statement of Brahm Dutt figures in the official record of the Lok Sabha debates (of March 31,1987 at pg. 13592), that is in the record of the debate of the very day from which Thakkar and Natarajan quote several passages. But they suppress each one of the facts.
FURTHER CONCEALMENT
They make much of the fact that while V.P. Singh had merely asked that the file be “shown” to him, V.C. Pande, the Secretary, Revenue, in fact “sent” the file to him whereupon V.P. Singh got his chance to create an ex post facto record. But it emerges from their Own telling that V.P. Singh had mentioned the matter of his wanting to record on the file the fact that he had himself approved the principle of hiring a foreign detective agency to none other than Brahm Dutt, the minister holding the specific charge which covered the Directorate of Enforcement. It emerges too that just as soon as he had sent it, V.C. Pande himself told Brahm Dutt that he had sent the file to V.P. Singh and that there was no objection from Brahm Dutt to his having done so.
While Conjuring the miasma that there was a conspiracy to create a self-serving ex post facto record Thakkar and Natarajan forget to stress that V.P. Singh did not in any way try to antedate the note he wrote. He dated it correctly that is he dated it as having been written on the day on which he wrote it, March 9, 1987 and that he recorded in it what he had told his secretary in October the Previous year, Nor is there any doubt about the reason for his having written the note — the reason being that the officials who had carried out his instructions, V.C. Pande and Bhure Lal, were by then being harassed and interrogated, they were being hounded.
Nor can one fault Brahm Dutt for not objecting when he was told that the file had been asked for by Y.P. Singh and that it had been sent to him.
In his handwritten queries of February 17, Brahm Dutt had asked, “Was any permission from FM. obtained about contacting foreign agencies… Was the permission of F.M. obtained for engaging F.G. Ltd…’’
The mere answers of the secretary and the Directorate of Enforcement on these points could not be enough. The only person who could definitely answer the question of whether he had given permission or not and, if so, to what proposition and on what conditions was V.P. Singh. It was entirely natural therefore for the secretary to send the file to V.P. Singh and for V.P. Singh to answer the queries that Brahm Dutt had raised,
Nor is it in relation to V.P. Singh alone that Thakkar and Natarajan suppress documents. They insist that it has been proved “beyond doubt” that Hershman had himself acknowledged at the Oberoi Hotel in Delhi that his company was Bombay Dyeing. They ignore the document which exists and which was referred to extensively at the hearings of the Commission in which in his own handwriting Hershman had written that he was from the Fairfax Group and given his address in Washington!
They fault Bhure Lal for not mentioning the names of the agency which he had contacted and which was to be an informer, a source of information for the Directorate. They forget to stress the written statement to them of the Revenue Secretary that it was just not necessary for the Directorate to convey the name of the agency to the Ministry.
In his note to the Commission the Revenue Secretary specifically stated as follows:
The choice of the case, identification of the evidence etc., to be procured, and the choice of the agency were required as operational matters, to be decided by the DENF and no reference to Government was necessary. As matter of principle, the Ministry is not involved in operational affairs.
If Thakkar and Natarajan had not suppressed the fact of the meeting of Bhure Lal with Rajiv Gandhi on February 5; if they had not suppressed the fact of the three meetings of V.P. Singh with Rajiv Gandhi; if they had not suppressed Brahm Dutt’s statement in Parliament on March 31; if they had not suppressed Venkataramanan’s answer to the queries from the Prime Minister’s office; if they had not ignored the statement the Reyenue Secretary made to them; if they had not ignored the bar prescribed in Section 44 of FERA if they had not done these things they could not have shielded Rajiv Gandhi and they could just not have come down on V.P. Singh and the officers. As they would say, “The inference is obvious”.
DISTORTIONS
Next, Thakkar and Natarajan patently distort what is put to them. Throughout his applications Gurumurthy kept offering to cooperate with the Commission once he was given the rights to be represented before the Commission, to address the Commission and to cross examine witnesses which were his rights by virtue of Section 8(B) and 8(C). The commissioners distort these representations to say that Gurumurthy was proceeding on the assumption that the Commission is bound to issue a notice and hold an inquiry under Section 8(B) against a person “whenever it is called upon by a person to hold such an enquiry”, that “according to Shri Gurumurthy it is his subjective satisfaction of the matter that should be taken note of by the Commission and proceedings initiated for an inquiry being held under Section 8(B) without collecting the information no such matters as are considered relevant or useful by the Commission”, that “going. a step further, Shri Gurumurthy would say that even before a Commission gathers all the necessary information required by it for finding out the facts of the subject matter adverted to in the terms of reference, the Commission should hold an inquiry under Section 8(B) against a person who invites the Commission to hold such an inquiry in order to absolve himself of any possible slur on his conduct or on his reputation”.
Not only is this a caricature, a perversion of what Gurumurthy sought of the Commission, it is disingenuous. Let us take the word of the Commission at its face value. Let us assume with it that at the time at which Gurumurthy was making his application even though the time covers the period from the very beginning of the Commission’s existence to the commencement of its public hearings let us assume with Thakkar and Natarajan that at the relevant time they were not satisfied that they would be inquiring into the conduct of Gurumurthy or that his reputation was liable to be affected by their findings. But is it their case that at no subsequent stage also till the very moment of the release of the Commission’s report did the two realize that they were going to inquire into the conduct of Gurumurthy and that their findings may affect Gurumurthy’s reputation prejudicially? And that it was all of a sudden, that
is in the winking of an eyelid that they came to write without forethought or premonition Chapter VIII (13 pages), Chapter IX (26 pages), Chapter X (16 pages), Chapter XVI (22 pages), each of which deals expressly and specifically with the conduct of S. Gurumurthy and which, without an iota of evidence, besmirches his reputation no end?
A FALSEHOOD
And the same thing happened in the case of Bhure Lal, V.C. Pande and V.P. Singh. They too were told, again and again that the stage for calling them as 8(B) persons had not yet arisen.
When V.P. Singh for instance asked that he be allowed to go through the records that the Commission would be using a facility which has been granted by the other Commissions the Secretary of the Commission, P.V. Ramana Rao, wrote to him on May 18, 1987, that as the Commission was till then only engaged in the “investigative part of exercise” the records of the Commission “are entirely confidential and those cannot be disclosed to you at the juncture”. He then added: “Whatever material is released will be made available to you at the appropriate stage in due course if sought to be used against you”.
That “appropriate stage”, of course never came.
Remember that the rights under Section 8(B) and 8(C) are not favors which a Commission may grant or may withhold. Granting them is a mandatory obligation upon every Commission from the moment it is constituted. Nor is that right contingent upon any fact that the persons whose conduct the Commission may be examining should behave in one way towards it rather than in some other.
But here are two judges of the Supreme Court who by way of explaining why they did not give V.P. Singh ete. their rights under 8(B) and 8(C), say that they did not do so “on account of two factors viz”:
- Failure of the concerned person to respond to the requisition seeking information; and
- The intransigent stand adopted by the concerned persons from whom the information was sought. Apart from being untenable under the law because the granting of 8(B) status is not contingent upon the potential victims behaving one way rather than another the statement of Thakkar and Natarajan is just plain false. V.P. Singh, V.C. Pande and Bhure Lal in fact answered the questions of the Commission in writing, they responded to the requisitions,
Bhure Lal was called and he answered every question orally also. In each of the documents the three expressed the desire and willingness to assist the Commission and cooperate with it.
But for a moment take Thakkar and Natarajan at their word. Let us assume that when Gurumurthy, V.P. Singh and the others were making their applications, Thakkar and Natarajan were not satisfied that they would be examining the conduct of these persons. Yet surely they did examine the conduct of these persons at some stage before they reached their libelous conclusions. And if they did so, they were bound under the law, to give them the opportunity which they were seeking.
And the opportunity would have had far reaching consequences. Had they, for instance, given VP. Singh, the opportunity to cross examine witnesses, he would certainly have confronted Rajiv Gandhi and Brahm Dutt with what they had told him and with Brahm Dutt’s statement in Parliament. That would have knocked the thesis of Thakkar and Natarajan hard, If they had given Bhure Lal and V.C. Pande the opportunity to cross examine witnesses, these two would have confronted Rajiv Gandhi. Brahm Dutt and S. Venkataramanan with ‘what was on record and with what they had told these two officers personally. That would have knocked the thesis of Thakkar and Natarajan harder still. But the commissioners withheld the opportunity.
‘As Thakkar and Natarajan would say, “the inference is obvious’
FURTHER SUPPRESSION
At point after point where the facts would have blown their thesis to bits the commissions brazenly, tenaciously shut out evidence. Two examples will suffice.
Readers by now know well the case of the forged letters. During Gurumurthy’s interrogation the CBI produced these forged letters and questioned him on their basis. They then produced these letters before the magistrate to stress that they had “documentary evidence” to establish that Gurumurthy had engaged and helped pay for a ~ foreign detective agency. The existence of these letters has never been in doubt. The magistrate himself referred to them in his order to March 20, 1987. This order of the magistrate was brought on record in the Commission. The CBI which had used these forged letters was the very agency which Thakkar and Natarajan had engaged to assist them.
The text of the letters had been published by the press, by the very press, in fact by the very publications The Statesman and Illustrated Weekly which their report shows Thakkar and Natarajan have been reading to diligently when they have thought it suited them.
And yet the commissioners refused to allow any discussion of these letters. They refused to take them into account or to call for them. At point after point in the hearings they pretended that they could not even be sure that the letters existed or had ever existed. Now, if the forged letters had been allowed to be brought into the discourse they would have blown a large part of the assertions of the commissioners in regard to both Nosli Wadia and Gurumurthy, for it would have been put to them that “the manipulator behind the screen”, to use another of their favorite phrases, who had caused the letters to be forged was the very cone who had caused the forgeries ‘on which they place such heavy reliance for indicating Nusli Wadia. Try as every one might they would not allow any mention of the letters. As Thakkar and Natarajan would say, “The inference is obvious”.
Contrast their conduct with the way Justice Chagla conducted the Mundhra inquiry. “It will be open to counsel appearing for different interests”, he laid down in his rules of procedure, “to call for any evidence they think proper, and after all the evidence is offered, counsel may address me on the evidence”.
Article extracted from this publication >> January 15, 1988
