Sobriety is the casualty

A news report of a group of editors and civil society members taking serious exception to the observations of the Supreme Court contained in a judgement and wanting them to be expunged, makes an interesting reading because the contention is quite meaningful and relevant.

“Leading editors, media groups and civil society members from across the country have signed a statement taking strong exception to the Supreme Court's observation that the killers of Graham Staines and his two minor children intended to teach the Australian missionary a lesson for preaching and practising conversion.

While upholding the life sentence awarded to Bajrang Dal activist Dara Singh for the 1999 killings, a Bench said on Friday: “In the case on hand, though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity.”

The Bench of Justices P. Sathasivam and B.S. Chauhan went on to add: “It is undisputed that there is no justification for interfering in someone's belief by way of ‘use of force', provocation, conversion, incitement or upon a flawed premise that one religion is better than the other. It strikes at the very root of the orderly society, which the founding fathers of our Constitution dreamt of.”

Arguing that the remarks were “gratuitous,” “unconstitutional” and went against the “freedom of faith” guaranteed by the Constitution, the signatories asked that they be expunged. “Did the SC [Supreme Court] ever take into consideration the report of the Wadhwa Commission which was set up to probe the murder of Graham Staines and which had observed, ‘There has been no extraordinary increase in the Christian population in Keonjhar district between 1991 and 1998. The population had increased by 595 during this period and this could have been caused by natural growth'. The SC ruling may in fact send the wrong signals to courts trying cases of religious violence in Kandhamal, for instance, and in other places. It also tends to pre-empt possible challenges to the black laws enacted by many States in the guise of Freedom of Religion Bills.”

The signatories said the Supreme Court and other judicial forums were secular India's last hope to preserve constitutional guarantees given to religious minorities and other marginalised groups. “Judgments such as this one” and the Ayodhya verdict delivered by the Allahabad High Court were disturbing because they could be interpreted as “supporting the bigoted point of view of right wing fundamentalists such as the Sangh Parivar.”

Further, “the state cannot abrogate its responsibilities” towards preserving the secular fabric of the country. “We expect the government to ask the SC to expunge the unnecessary, uncalled for and unconstitutional remarks.”

The statement was signed, among others, by editorial representatives from The Times India, The Hindustan Times, Indian Express, The Hindu, The Pioneer and The Telegraph, besides the Editor-in-Chief of The Hindu, N. Ram, the Editor-in Chief of The Pioneer, Chandan Mitra, and over 50 journalists from the States, including from Jammu and Kashmir.”

Even while appreciating the concern of media groups over the “SC ruling sending wrong signals to courts trying cases of similar nature”, possibility of being interpreted as “supporting the bigoted point of view”, “gratuitous, “unconstitutional” and “went against freedom of faith guaranteed by the Constitution,” however on their turn, they castigate people who question the observations of the CAG report on 2G spectrum allotment or the SC’s oral remarks which do not constitute part of the judgement; do not see such observations sending wrong signals to other courts and investigating agencies dealing with the same issue; do not perceive the possibility of being interpreted as supporting the perverted point of view of the opposition parties and the media; make out that the CAG’s observation on ‘presumptive’ loss is out of context and beyond its purview and the SC’s oral observation on Kapil Sibal’s remarks as gratuitous; do not discern that the statements of the CAG, chairman of the PAC and oral observations of the SC on the Minister are unconstitutional and went against freedom of speech and expression guaranteed by the Constitution, when particularly all Tom, Dick and Harry had been slandering his Ministry and the government? Is not the media using double standards?

Union Minister for Communications, Thiru Kapil Sibal, who is in the eye of the storm created by his statement rubbishing the CAG report of a presumptuous loss to the tune of a mind-boggling amount of Rs.1,76,000 cr. in the allocation of 2G spectrum in 2008 as utterly erroneous, is no ordinary politician. Son of a renowned advocate Hira Lal Sibal, who was awarded Padma Bhushan by the Government of India, Kapil Sibal obtained Masters Degree in Law from Harvard Law School, where he demonstrated himself to be Strong Scholar and awarded ‘the citation’ the ultimate reasonable man in discussions. He qualified for the IAS but declined the offer of appointment to set up his own law practice in 1973. He was designated as senior lawyer in 1983. He had served as Additional Solicitor General of India between 1989 and 1990. Over the years, he has held several important positions in the Government of India and the society such as Additional Solicitor General of India; Member, Board of Management, Indira Gandhi National Open University; President, Supreme Court Bar Association; Member, Rajya Sabha; Member, Executive Council, Institute of Constitutional and Parliamentary Studies; Member, Business Advisory Committee; Member, Committee on Home Affairs; Co-chairman, Indo-US Parliamentary Forum; Member, Board of International AIDS Vaccine Initiative; Member, Programme Board of the Bill & Melinda Gates Foundation's Indian AIDS initiative; Member, Working Group on Arbitrary Detention set up by the Human Rights Commission, Geneva.

With such a sound background in law, Constitution and parliamentary practices, Sibal needs no lessons in Constitutional propriety and Parliamentary propriety from persons such as physicist Dr. Murli Manohar Joshi, chairman of the Public Accounts Committee and least of all from the ex-actress Jayalalitha, whose reputation of respect for law and Constitutional and Legislative propriety is well known.

Joshi has complained to Lok Sabha Speaker Meira Kumar that Kapil Sibal’s critical remarks on the CAG report make ‘infructuous’ all the inquiries initiated into the spectrum allocation. ‘In fact such a situation would have a deleterious effect on the health of democracy and the Speaker should take steps to prevent this kind of breach of parliamentary propriety in future’ Dr.Joshi had said. Similarly while issuing a brief order a SC Bench of Justice G S Singhvi and Justice A K Ganguly said, “In our opinion, the CBI, which is conducting the investigation into what has been termed ‘2G scam’ is expected to carry on with the investigation without being influenced by any statement made by anybody in the press or otherwise.” Justice Ganguly has said, “This (Kapil’s statement) is unfortunate. The Minister is supposed to behave with some sense of responsibility.”

Similarly there is a spate of hard hitting editorials against Sibal in newspapers including the usually sober ‘The Hindu’ and statements from Left, Right and direction-less parties such as the ADMK. The distinguished lawyer and Parliamentarian Kapil Sibal has clarified that he meant no disrespect to any institution and neither directly or indirectly tried to interfere with any process going on. Welcoming the court’s observation that no one should comment on the CAG report he has said ‘I wish that the SC had made this observation earlier as that could have prevented an unnecessary controversy.”

First of all no one has so far denied with substance Sibal’s contention on the astronomical figure of loss to the exchequer based on auction of 3G spectrum, which was not recommended by the price fixing authority TRAI. It is not that the media, opposition parties et al., have not understood the veracity of the claims of Sibal or his predecessor A.Raja. The slanderous campaign of ‘spectrum scam’ had been ceaselessly carried out by the media and opposition for over two years now despite point by point rebuttals with documentary evidence by the Ministry then and there and in a very detailed report tabled in both Houses of Parliament by A.Raja. The prejudiced media completely covered up the rejoinders of the government systematically creating a distorted public opinion as reflected in the observation of the Hon’ble Justice of the Supreme Court in its present order as ‘investigation into what has been termed 2G scam’. Note that the Supreme Court, in the first instance, admitted the PIL based on leaked press reports of the CAG report ‘as the basis for a prima facie case.’ The very admission of these cases smacks of breach of parliamentary and constitutional propriety as the CAG is supposed to submit its report to the President of India, who in turn will forward to the government for placing it before the Parliament. The parliamentary committee will study the report, raise queries and get explanations from ministries/ departments and finally submit its investigation report with recommendations to both Houses of Parliament, which will discuss the whole issue and decide on the course of action for the government. Till all these proceedings are completed the CAG report is a privileged document of the Parliament, the democratic and elected forum of the people of India, the supreme body enshrined in the Constitution. But in this specific case all these constitutional norms have been whimsically thrown to winds by various institutions like the CAG, the media and unfortunately the Supreme Court itself. (the joint statement of representatives and editors of media and civil society members provide muscle for such a conclusion.)

First of all the CAG report, on which all these hullabaloo is made, had not said that its estimates on presumptive (not actual) losses to the exchequer are final. The CAG had only mentioned four different figures based on three different methods to calculate the presumptive loss. It had not said the report was final and admitted that its estimates of losses are debatable. The CAG has issued a statement saying “Making public comments on the matter which is being considered by a Parliamentary Committee is highly improper and may even amount to contempt of the House.”

It is an exotic logic that after going through a live press conference with presumptive loss contained in the CAG report in flagrant violation of canons of Parliamentary propriety, now CAG is advising MPs not to comment on it resorting to argument of propriety. Confirming that the audit authority did not pursue the matter with an open mind that it was very much influenced by the media blitzkrieg, the CAG report states “The entire implementation process does not withstand the test of scrutiny, and hence, the widely held belief that ……it has benefited few operators and has not been able to maximize generation of revenue from allocation of such a scarce revenue….. The fact that there has been a loss to the national exchequer in the allocation of 2G spectrum cannot be denied. However the amount of loss could be debated.” The report gives four calculations ranging from Rs.57,000 cr. to 1,76,645 cr., whereas everybody stick on to the maximum of Rs.1.76 lakh cr. which is derived through an auction route specifically disallowed for 2G spectrum by the TRAI.

The CAG report is an open admission of the fact that it was least concerned with the policy directives contained in the New Telecom Policy-1999  and in the objectives of Tenth Five Year Plan. However even while the CAG report itself admits that the amount of (perceived) loss could be debated (and hence not sacrosanct) the same authority and the SC taking objection to Sibal’s remarks and his calculation based on policy directives and benefit of Rs.1,50,000 cr. to the consumers through reduced tariff, is indeed is a bizarre logic.

Having given a very long rope to the media and opposition parties to carry out a slanderous campaign against the government exclusively based on the CAG report, the CAG, PAC and SC objecting to the response of the Minister, who is incharge  of the Ministry, and place his case, is indeed travesty of justice. As a Minister he was aware of his responsibilities, obligations and duties when the government was not being allowed any forum to put forth its views on the issue while the opposition and the media continued to tarnish its image. The Parliament and government are also constitutional authorities and denying their rights and privilege tantamount to unconstitutional act. If the Minister is accused of influencing or interfering in the on-going investigations, are not those (including the Apex court)  who were raising a hullabaloo of a purported scam of a reported ‘presumptive loss’ directing the investigating agencies with an externally predetermined objective.

They contend that the CBI is an autonomous agency and should be free from the influence of the government. If so can any other authority interfere with and exert influence on its investigation process. The agency will have its own modus operandi and time frame for thoroughly pursuing tens of thousands of reports/ documents, investigating a number of people, organizations, institutions in such a complex issue and hence will not any regimentation- mildly called on under the monitoring of – over the agency by external authorities, howsoever higher, torpedo the investigation and unearthing of the truth. In the rash drive for nabbing and punishing the guilty, objective investigation should not be lost sight of resulting in hunt for scapegoats.

The edifice of the Indian criminal justice administration is based on certain fundamental maxims one of which states: ‘Let one hundred guilty be acquitted, but one innocent should not be convicted.’ Victims of Bhopal gas tragedy in 1984 are still to get justice. One woman who was molested by a sub-inspector in a police station in Tamil Nadu had to wait for 27 years to get the compensation when in the meanwhile the SI got promoted as DSP. The huge number of cases pending in Supreme Court, High courts and lower courts need no recounting. In this background, the terrific expediency evinced by the apex court in this case is indeed surprising and smacks of some hidden agenda.

Nothing of what Sibal has said on the erroneous procedure adopted by the CAG for calculating the presumed loss is news; all his contentions are contained in the affidavits filed by the Telecom Ministry and Thiru A.Raja in the Supreme Court and statements issued by the Ministry. He makes a clear distinction between issues of policy, procedure and culpability. On the policy issue, he has defended it and rubbished the CAG report on presumed loss. On the issue of procedure, Justice Shivraj Patil committee is investigating and on the issues of culpability the CBI is investigating. So the whole outcry against his statement is meaningless.

Referring to the Aluminium Casket scandal during the BJP-led government in 1998, Sibal said the BJP then undermined the authority of the CAG by distributing pamphlets against the audit body to all MPs even before the report was tabled in Parliament. The Defence Minister George Fernandes was working overtime for some weeks to rubbish the CAG’s damning conclusions pertaining to the purchase of caskets for martyrs of Kargil war.

An old associate of Fernandes, R.V. Pandit, a former editor and entrepreneur, who had been championing right-wing causes for many years, came out with a booklet attacking the CAG report and giving a clean chit to Fernandes in the "coffin-gate" scandal. Fernandes vehemently denied that Pandit was given access to secret documents. But he did not deny that Pandit was given full cooperation by the Defence Ministry to produce his booklet, "The Whole Truth with all the Documents about the Aluminium Caskets bought by the Defence Ministry in 1999-2000".

The booklet, which was very critical of the media coverage on the "coffin-gate" scandal, gave a clean chit to the Defence Ministry and all officials involved in the scam. Pandit held Army and Defence Ministry officials responsible for only "minor goof-ups". He had, on the other hand, castigated the media, for their coverage of the report, and the CAG. Fernandes said that "Pandit's documented story is very different from what the press published, and based on what it published, accused the Ministry of Defence, the NDA government, and me, personally, of irregularities, wrong-doing and corruption". He went on to say that Pandit's booklet, "with documents, showed that the CAG review to be not entirely factual" and that the media accounts pertaining to the CAG reports were "largely exaggerated and untruthful".

The Opposition parties criticised Fernandes' espousal of Pandit's journalistic efforts. CPI(M) leader Somnath Chatterjee said that the only purpose of the booklet was to malign the office of the CAG and those sections of the media that made critical observations about the functioning of the Defence Ministry. He had written to the Prime Minister, drawing the latter's attention to the flouting of established procedures for dealing with CAG reports by Parliament.

Somnath Chatterjee wrote further: "Fernandes has in open violation of all norms and conventions sponsored Pandit to launch a frontal attack on the CAG and he has approvingly forwarded the same with a view to join in the campaign against a high constitutional authority." But the NDA government's priority was to silence those sections of the media that sought to expose corruption in defence purchases. The use of state machinery to hound tehelka.com is an illustration. What happened to the CAG authority then? Why did not BJP leaders speak then?

As a whole, as far as the spectrum issue is concerned, the vast majority of people do not know anything and hence they have to be patiently explained and won over. Most of those who are vocal about the so-called scam, do not basically know what spectrum is and where does it lie? But they want to show off as if they are well informed. Middle class ego and pride will not let them admit their ill-informed understanding. They can’t be helped. But the opposition parties have a political agenda to grind. The media seeks sensation for their sales promotion. The purpose of the authorities mentioned above will transpire in due course. It is for the over 74 crore people who are benefited by telephony at cheep rates of tariff, to rebut the malicious campaign against their interests and teach a fitting lesson to the vested interests.