Lest they get away…

The apex court might find it difficult  to monitor complex multi-agency investigations like the 2G scam. Successful prosecution can be better ensured if the court appoints a panel of experts to monitor such cases
MR Sivaraman Chennai 

The apex court of India has once again decided to monitor a sensational case of alleged corruption and misdemeanour by a minister and some bureaucrats that led to huge losses to the exchequer. But to what extent can the highest court of the land monitor a multi-agency investigation into a very complex case? This is a question agitating the minds of persons like this writer who was associated with the Jain Hawala case involving dozens of politicians, public sector officials and others. Such cases involve violations under several laws of the country, enforced by various agencies having their separate hierarchical structures. There could also be administrative lapses, deliberate acts of impropriety, omission and commission, favouritism and nepotism.

Similar monitoring proceedings in the Supreme Court in the Vineet Narain case had been little more than a series of public hearings in which the amicus curiae would invariably criticise the investigating agencies for delays and lack of enthusiasm to prosecute ministers and bureaucrats who figured in the Jain diaries. The solicitor general would summarise the progress of investigations. Sometimes there would be closed-door hearings in which the court sought information that could not be immediately made public. But the court never asked for a direct report from the chief investigating officers in the field on individual cases, except in a very general way, or from this writer or the CBI director, who regularly attended the hearings and enjoyed the full confidence of the court.

Though there is a mistaken perception that all senior officers act only on instructions from their political masters, let's not forget that behind them are reputations built over long years of distinguished service. They also have to answer to god, if they are believers, and to their conscience. Of course, some officers do sell their conscience, but they are exceptions. 

In the 18 months this writer was associated with the case, not once did any minister, including the then finance minister and prime minister, ask anything about the case. Once or twice, the writer in disgust had to go to one of the ministers whose name figured in the diary, tell him he was sick of the whole issue, and ask why the minister could not declare that he took the money for elections if he indeed had. To be fair, this minister did say he had done it while he was not holding any office. It's difficult to assert, however, that the tainted ministers had no direct line to the investigating officers in the field.

The Vineet Narain case was a colossal failure and no one got punished. After the judgement, the Supreme Court was done with the case. Monitoring by the apex court was effective only to the extent that certain cases were filed in the appropriate criminal courts. The court could not and did not function as an overarching supervisory authority over the investigations. 

In the 2G spectrum case the same agencies are involved: the enforcement directorate, the income tax department and CBI. Possibly, these different agencies may have taken statements of the same individuals. But who will coordinate them to prevent contradictory statements and cross-purpose investigations, secure the safety of documents seized by the different agencies, and ensure their proper collation and coordinated examination? The apex court has neither the time nor the expertise to do this full-time work. Any loss of link would provide an escape route and prosecution will fail. It failed in the Bofors case, the submarine case, the Airbus 320 purchase case and the Vineet Narain case. The investigating agencies became a laughing stock. But did they allow this to happen so that the accused go scot-free? 

There is a perception that owing to changing loyalties and transfers of officers, there is no single-minded determination to get the guilty punished. To ensure that this does not happen in the 2G case, this writer suggests that the apex court should set up a five-member monitoring panel headed by a retired Supreme Court judge, with one leading prosecutor, a chartered accountant, a former CBI joint director with a record of successful prosecutions, and a former Union secretary with deep knowledge of the investigating agencies' functioning. This panel should coordinate all investigations and report to the apex court. It can also be entrusted with monitoring the CWG cases. The cases should finally be put up before a special court constituted to try only these cases. This is the only way to ensure that the investigating agencies work with the sole objective of successful prosecution of the accused.   

The writer is a former revenue secretary, government of India

This story is from the print issue of Hardnews: JANUARY 2011

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