The judgment in the 2G case has flummoxed everyone. The accused, who were being branded as icons of corruption, have emerged as white knights while the accusers have received their comeuppance. The electronic and print media is eating its words and the social media is afloat with jokes and weird theories.
Apart from the thinly-veiled innuendos emanating from political opponents and corresponding protestations of injured innocence from the accused and their well-wishers, acquittal of the accused in the 2G case has brought to the fore the dichotomy between judicial and public perception. With the public failing to accept the judgment, we need to introspect as to why in so many instances of high profile corruption the courts have not gone along with the public perception of guilt.
Take the Bofors scam, the 2G scam, the Gujarat riots cases. In all these cases all the accused walked free or only some small fry got indicted. To explain this anomaly one can perhaps say that unnecessary hype is often created by the media which makes the accused appear guilty in the public eye. Combined with the fact that the public actively distrusts bureaucrats and politicians, it is ready to believe the worst about the accused persons. On the other hand, a conscientious judge decides a case based only on legal provisions and the evidence available on record, therefore, persons who have been presumed to be guilty by the public are often acquitted by the Courts.
However, this does not explain the situation fully. One also has to keep in mind that the accused in scam cases are extremely rich and influential who hire the best legal brains and do not mind going down to any level to get a clean chit. The role of the investigators is often not above board; many a time investigators were found to be hand in glove with the persons they were investigating. The Mumbai Police Commissioner was jailed for connivance with Telgi & Co, the CBI Director’s role is under investigation in the 2G scam and in the Adarsh scam the Government advocates were found to be colluding with the accused.
Many years were wasted in all cases in filing charge-sheets and the subsequent court proceedings. The Bofors scam first surfaced in 1987 but the charge-sheet was filed only in 1999. The trial in the 2G scam dragged on for 7 years. Generally, there is inordinate delay by investigating agencies in filing voluminous charge-sheets after which court proceedings drag on for decades. By the time the Court takes up the case in earnest, witnesses may have been compromised, investigating officers may have changed and the main culprits may have died. The judge in the 2G scam case succinctly noted that initially the CBI was very prompt in its submissions, but towards the end the CBI’s responses were faltering.
Starting from the days of Bofors, allegations of a scam are a sure-fire way to win elections. In fact everyone, except the Government of the day, loves a nice juicy scam. The media gets a good story, the public gets a chance to bring down the high and mighty and the Opposition gets a handle to beat the government with. Conversely, constant media attention puts immense pressure on the Government. To avoid further ignominy Government agencies drag the accused to court without proper investigation which ensures that generally the accused walk free. The results could have been quite different had the agencies acted professionally.
It would thus appear that like God, scams have to be invented if they do not exist. Analysing, with hindsight, the Bofors, Coalgate and 2G scams and taking a contrarian view one would notice that the decision to allot airwaves on “first come first served basis” was a policy decision of the Government which put mobile telephony within the reach of the poorest Indian. The JAM (Jan Dhan, Aadhaar and Mobile) model of dispensing benefits of the present Government would not have been possible had mobile telephony been expensive, as it would have been after auction of air waves. Therefore, a sustainable charge against the 2G dramatis personae could only be that of cronyism in allotment of Spectrum and not that of framing a faulty policy, which was what the CBI set out to prove.
Similarly, not auctioning coalmines ensured that the price of coal remained low, which meant lower prices of electricity as also other manufacturing products. However, it is also a fact that coal mines were allotted in violation of extant policy. It would thus appear that 2G and Coalgate were instances of the ever-present venality in our system and were not scams in the sense the term is generally understood. The Bofors “scam” can also be summarised in similar terms. The Bofors gun was undoubtedly most suited for our requirements; later on, the gun acquitted itself honourably in the Kargil conflict. Under-the-table payments were made at the time of the purchase of the Bofors gun because this is how the armament industry works.
After the Bofors scam surfaced, the gun manufacturer was blacklisted and no purchases were made from it for many years. This led to a piquant situation where at the time of the Kargil war we had the Bofors gun but no ammunition to feed it. Consequently, we had to purchase ammunition at $10,000 per round from South Africa. Since the Bofors gun fires one round every 20 seconds, the cost of the ammunition was exorbitant; much more than the cost of the gun or the amount defalcated. However, our knee-jerk reaction to the Bofors scam ensured that we did not manufacture the Bofors gun indigenously which was our right under the contract. The Bofors ghost continues to haunt defence purchases; even essential purchases are inordinately delayed fearing allegation of corruption. No lessons were learnt from the Bofors scam; the Tehelka sting (2001) showed the entire defence establishment still mired in corruption. Tehelka was different from Bofors in only that the journalists responsible for the Tehelka sting were jailed.
Unproved allegations of a “scam” cause damage to society at large because allegations of corruption in high places shake the confidence of the public in the system and not in the government of the day alone. The public begins to justify their own corruption in light of the perceived corruption of the high and mighty, which corrupts the system at all levels. Another consequence is that regular politicians stand discredited in the public eye and community and caste leaders intrude into mainstream politics.
Persons involved in scams are seldom punished because the very mention of “scam” sends all enforcement agencies ~ Enforcement Directorate, Income tax, CBI and their ilk ~ on overdrive. Working in silos, each agency tries to prove offences under its domain; contradicting other agencies in the process which ensures that the charges against the accused are seldom proved. In the Malegaon blasts case, the Maharashtra ATS and the NIA charged different sets of persons for the same blasts. After a change of Government, the NIA gave a clean chit to the very persons it had charged leaving everyone baffled. At another level, the hyperactivity of investigating and regulatory agencies ~ which smell a scam in every routine transaction ~ has led to bureaucratic inertia with top bureaucrats blaming “5Cs” ~ CBI, CVC, CAG, CIC and the Courts for their lack of performance.
Looking at the frequency with which allegations of scam are bandied about and the consequent drop in public confidence, a standard response to such allegations has to be thought of. Any credible allegation of widespread corruption should be thoroughly probed by a combined team of enforcement agencies working with a common strategy for a common object viz. ensuring punishment of the accused and recovery of the defalcated money. All agencies should file a common charge-sheet and day-to-day hearings should be held in designated courts. Investigation and judgment should both be time-bound under law. Persons found guilty of perpetrating scams should be banned from public life forever. Finally, any law can only be as strong as its enforcers. Political parties have to realise that all scams are bad; not necessarily those of their political opponents. Till the time political parties fight over “our scam” and “their scam” there would be no reprieve from scams and corruption would continue to bedevil our polity.
The writer is a retired Principal Chief Commissioner of Income Tax