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Sunday, 29 April 2012

देश विभाजन के चलते भारत आए घटिया ट्रक




नई दिल्ली। टाट्रा के घटिया ट्रकों की खरीद उसके मूल निर्माता कंपनियों के बजाय एक मध्यस्थ कंपनी के जरिए करने का मुद्दा रक्षा मंत्रालय ने सात साल पहले ही उठाया था। खरीदारी की मजबूरियों पर गौर करने के बाद मंत्रालय ने इस अध्याय को बंद कर दिया था। सेना प्रमुख जनरल वीके सिंह द्वारा इसमें रिश्वतखोरी का मुद्दा उठाने के बाद मामले ने तूल पकड़ा और अब सीबीआई इन ट्रकों की खरीदारी में अनियमितताओं की जांच कर रही है।
वास्तव में ये ट्रक चेक रिपब्लिक स्थित कंपनी टाट्रा से खरीदे जाने थे। इसके लिए वर्ष 1986 में जब करार पर हस्ताक्षर हुआ था तब देश चेकोस्लोवाकिया था। विभाजन के बाद चेक रिपब्लिक स्थित टाट्रा कंपनी को इसकी आपूर्ति करनी थी। रवि ऋषि ने वर्ष 1997 में टाट्रा सिपोक्स यूके को खरीदा और इस कंपनी को इन ट्रकों का मूल उपकरण निर्माता [ओईएम] और पूरी तरह चेक कंपनी की अनुषंगी कंपनी के तौर पर पेश किया।
आरोप लगा कि वर्ष 2005 में टाट्रा के इन ट्रकों की खरीदारी एक एजेंट से की गई सीधे ओईएम से नहीं। भारत सरकार की कंपनी बीईएमएल बगैर उससे इन ट्रकों की तकनीकी जानकारी प्राप्त किए ही उसकी दूत बन गई। इन आरोपों के बाद रक्षा मंत्रालय ने मामले की जांच की और पाया कि मध्यस्थ कंपनी से पुर्जो की खरीद में कोई गड़बड़ी नहीं है।
इस बारे में स्लोवाकिया स्थित भारतीय राजदूत का एक पत्र मिला था। वर्ष 2005 के उस पत्र में राजदूत ने लिखा था कि टाट्रा सिपोक्स कंपनी की स्थापना चेकोस्लोवाकिया के चेक और स्लोवाक रिपब्लिक के रूप में दो देशों में बंटवारे के कारण उत्पन्न मसलों के समाधान के लिए की गई है।
राजदूत ने कहा था कि वाहनों की आपूर्ति उनके ओईएम अपनी ही अनुषंगी कंपनी के माध्यम से कर रहे हैं। मंत्रालय को टाटा सिपोक्स के निदेशक जोसेफ माजस्की ने भी जवाब दिया कि यह कंपनी मूल कंपनी का प्रतिनिधित्व करती है व भारत, इजरायल, इंडोनेशिया और ताइवान सहित कई अन्य देशों में ट्रकों की बिक्री के लिए अधिकृत है।
मंत्रालय का कहना है कि उसके पास टाट्रा सिपोक्स यूके से पुर्जो की खरीद के अलावा और कोई विकल्प नहीं था। ऐसा इसलिए कि ये ट्रक तभी तैयार होते जब चेक रिपब्लिक स्थित टाट्रा के पुर्जे और स्लोवाक रिपब्लिक स्थित टाट्रा सिपोक्स के पुर्जे मिलते। रिपोर्ट में कहा गया है कि देश बंटवारे के साथ मूल कंपनी के बंटवारे के कारण यह विचित्र स्थिति पैदा हुई।

सोनिया के आशीर्वाद से बना राज्यपाल





भोपाल [जागरण ब्यूरो]। उत्तराखंड के नवनियुक्त राज्यपाल अजीज कुरैशी ने कहा कि उन्हें कांग्रेस अध्यक्ष सोनिया गांधी के आशीर्वाद के कारण यह जिम्मेदारी मिली है। राष्ट्रपति प्रतिभा पाटिल ने विदेश दौरे पर रवाना होने से ठीक एक दिन पहले ही कुरैशी को उत्तराखंड का राज्यपाल नियुक्त किया था। कुरैशी फिलहाल मार्गेट अल्वा की विदाई का इंतजार कर रहे हैं। इसके बाद वे देहरादून जाकर अपना पद संभालेंगे।
वरिष्ठ कांग्रेसी नेता और मध्य प्रदेश में अर्जुन सिंह की सरकार में मंत्री रहे कुरैशी ने रविवार को यहां कहा, 'मैं गांधी-नेहरू परिवार के प्रति हमेशा से वफादार रहा हूं और राज्यपाल के पद पर मेरी नियुक्ति वफादारी के इस इनाम को दर्शाता है।' उन्होंने कहा कि यह केवल सोनिया के आशीर्वाद की वजह से संभव हो सका कि मैं इस पद पर नियुक्त किया गया। कुरैशी ने बताया कि मैं वर्ष 1951 में कांग्रेस से जुड़ा हूं। तब से मैंने पार्टी के लिए हर स्तर पर काम किया।
उन्होंने कहा, 'मैं उस पीढ़ी से आता हूं जो सोचता है कि राज्यपाल बनाया जाना एक अपमान है। लोग सोचते हैं कि उसे सक्रिय राजनीति से दूर कर दिया गया है।' कुरैशी का मानना है कि राज्यपाल बनाया जाना एक सम्मान की बात है।
कुरैशी का कहना है कि इसके अलावा समाज के शोषत, पीड़ित और गरीबों की आवाज को सही जगह पहुंचाना भी उनका भूमिका में शामिल है। वे अपनी नियुक्ति से खुद पर एक महत्वपूर्ण जिम्मेदारी का अहसास कर रहे हैं। वे इसके लिए सभी के आभारी हैं। वह राज्यपाल की भूमिका को सीमित नहीं मानते, लेकिन संविधान के दायरे से बाहर कोई ऐसा कार्य भी नहीं करना चाहते, जिससे इस पद की गरिमा पर आंच आए। उन्होंने कहा कि समाज के जरूरतमंद लोगों को उनका हक दिलाने का प्रयास वह हमेशा करते रहेंगे।

Tuesday, 24 April 2012

‘Can you imagine... no one from India met the real investigators of gun deal?’



India angle in Bofors cropped up by accident, says Swedish ‘Deep Throat’, who has now identified himself. Excerpts from Sten Lindstrom’s interview to Chitra Subramaniam-Duella, from thehoot.org
In 1987, former Swedish police head Sten Lindstrom shared key information with journalist Chitra Subramaniam-Duella (The Hindu, The Indian Express, The Statesman) on the Bofors-India deal. Twenty-five years on, Lindstrom identifies himself as he goes back to the case with Subramaniam-Duella.
Why did you decide to identify yourself now?
Twenty-five years is a good landmark. We have had some time for reflection. Now it is time to speak again. Corruption levels in the world are increasing... In a world of shrinking resources and ruthless ambition, we have to ensure that survival instincts that brought us out of the caves do not push us back in there because of a few greedy people. I hope I can contribute to the global struggle against corruption by sharing what I know.
Tell us something about yourself.
Like many Swedes of my generation, my wife Eva and I were raised in the best traditions of social democracy. Equity and justice for all is something we hold dear and for which we have [striven] as a nation.
...In my long career as a police officer I have seen many things. What was shocking in the whole Bofors-India saga was the scale of political involvement in Sweden breaking all rules including those we set for ourselves. Bofors was a wake-up call for most Swedes who thought corruption happens only far away in Africa, South America and Asia. There was disbelief and hurt when they found that some of their top politicians, bureaucrats and businessmen were no better than others. The $1.3 billion deal with India for the sale of 410 field howitzers, and a supply contract almost twice that amount, was the biggest arms deal ever in Sweden. Money marked for development projects was diverted to secure this contract at any cost. Rules were flouted, institutions were bypassed and honest Swedish officials and politicians were kept in the dark. Our former Prime Minister Olof Palme was talking peace, disarmament and sustainable development globally, while we were selling arms illegally, including to countries that were on our banned list. My office, the office of Hans Ekblom, the public prosecutor in Stockholm, our National Audit Bureau — everything was ignored. So was the Swedish taxpayer.
The managing director of Bofors, Martin Ardbo, had worked very hard for this deal. He brought over 900 jobs to Karlskoga where Bofors is headquartered for at least a decade. When the stories started appearing, Ardbo was a shaken man. He knew that I knew that he had made a political payment even more secretly than the rest to close this deal. He told me he didn’t have a choice.
How did the India angle in Bofors crop up?
It was an accident. We were conducting several search and seize operations [on] the premises of Bofors and their executives. I have some experience in this area, so I asked my team to take everything they could find. In the pile [was] one set of documents to Swiss banks with instructions that the name of the recipient should be blocked out. An accountant doing his job asked why anonymity was necessary since the payments were legal. Bofors was unable to explain and then we found more and more documents leading to India...
...Looking back, what would you say are some of the lessons learnt?
There are several, but I could mention a few. The role of the whistleblower is a part of democracy. When all official channels are clogged, you have to take a decision. We have a culture here that it is okay to blow the whistle... I knew what I was doing when I leaked the documents to you. I could not count on my government or Bofors or the government of India to get to the bottom of this. My only option was to leak the documents to someone we could trust.
There needs to be a free and fair discussion in the media about itself. The media is the watchdog of our society — but who is watching the media? Most whistleblowers around the world leak information to the media because they feel they owe it to their country, their job or the position they are elected to.
Genuine whistleblowers also expect the media to be responsible and according to me this means that the media has to understand the motives of whistleblowers... Every role has its limits. I cannot become a journalist, a journalist cannot become a judge, and a judge cannot become a politician. Who controls the media, what are their interests? What happens if a reporter is also part of the management? Do journalistic ethics compete with business and political interests of the media organisation? Can an ombudsman be the answer? If not, let us all work together globally to find a solution we all respect and understand.
There is also a lot of debate in the world about the role of middlemen in arms deals. Some say they should not exist at all, others say they have a role. I believe they have a role insofar as marketing a product is concerned and they should be remunerated accordingly in a transparent way so that the cost to the buyer is not circulated as kickbacks. Where it becomes illegal and dangerous is when the ambit of their work includes paying politicians and bureaucrats and in some cases journalists to push their product...
Tell us something about those days, people’s reactions, your difficulties.
People in Sweden were shell-shocked. Bo G Andersson of the Dagens Nyhetter (DN), Burje Remdahl and Jan Mosander of the Swedish Radio are investigative journalists of repute. They were exposing illegal sales of arms to eastern Europe, the Middle East, even Vietnam through Australia. There was total disbelief in Karlskoga. The Indian deal was the straw that broke the camel’s back because it showed that corruption had reached right to the top in Sweden and in India... There was no evidence of any bribe being paid to Palme, but he and some of his ministers knew exactly what was going on.
A quarter century later, any reflections on why Rajiv Gandhi’s name came up?
There was no evidence that he had received any bribe. But he watched the massive cover-up in India and Sweden and did nothing. Many Indian institutions were tarred, innocent people were punished while the guilty got away. The evidence against Ottavio Quattrrocchi was conclusive. Through a front company called AE Services, bribes paid by Bofors landed in Quattrocchi’s account which he subsequently cleaned out because India said there was no evidence linking him to the Bofors deal. Nobody in Sweden or Switzerland was allowed to interrogate him.
[Proceedings against Quattrocchi have been dropped, his accounts de-frozen, after the Delhi High Court accepted the CBI’s plea to drop its case against him.]
Ardbo was terrified about this fact becoming public. He had hidden it even from his own marketing director, Hans Ekblom, who said marketing middlemen had a role, but not political payments... As the stories began to appear, Ardbo knew what I knew. He had written in his notes that… at no cost could the identity of Q (Quattrocchi) be revealed because of his closeness to R (Rajiv Gandhi). He had also mentioned a meeting between an AE Services official and a Gandhi trustee lawyer in Geneva. This was a political payment. These payments are made when the deal has to be inked and all the numbers are on the table. I spent long hours interrogating Ardbo.
What was your experience with the Indian investigators?
The only team I met in early 1990 damaged the seriousness of my work and the media investigation. I met them on a courtesy call. They were in the process of filing a letter rogatory (LR) in Switzerland. Without an official request from Switzerland, Sweden could not intervene. They gave me a list of names to pursue including the name of Amitabh Bachchan. They also told me they did not trust you entirely because you had refused to link the Bachchans to the kickbacks. During that trip to Sweden, the Indian investigators planted the Bachchan angle on DN. The Bachchans took them to court in the UK and won. DN had to apologise and they said the story had come from Indian investigators. I was disappointed with the role of many senior journalists and politicians during that period. They muddied the waters.
After the LR was lodged in Switzerland, I was waiting for the official track with India and Switzerland to begin. It never did. Whenever the public prosecutor Ekblom and I heard of any Indian visits to Stockholm, we would speak to the media expressing our desire to meet them. Can you imagine a situation where no one from India met the real investigators of the gun deal? That was when we saw the extent to which everyone was compromised. Many politicians who had come to my office claiming they would move heaven and earth to get at the truth if they came to power, fell silent when they held very important positions directly linked to the deal.
Any final thoughts?
There cannot be final thoughts on something like this. False closures of corruption bleed the system. Every day has to matter. When something like the scale and violence of Bofors happens, you begin to question your own faith as a professional and a human being. When you start losing faith, you begin to lose hope. When hope is lost, everything is lost. We cannot afford to let that happen. Maybe we will get nowhere, but silence cannot be the answer.

Bofors ‘Deep Throat’ reveals all: How Rajiv protected Quattrocchi




In April 1987, a secret Swedish source leaked nearly 350 documents to Indian journalist Chitra Subramaniam-Duella. The resulting media expose – based on minutes of meetings, private notes, bank instructions, contracts, and a diary – became the biggest political scandal in modern Indian history, bringing down the Rajiv Gandhi government.
On its 25th anniversary, the Swedish Deep Throat has revealed himself to the Indian media blog, The Hoot.org, in an explosive interview with none other than Subramaniam-Duella. He is Sten Lindstrom, the former head of Swedish police, who led the investigation into the Bofors-India gun deal. [Read the interview here]
Deep Throat reveals that Rajiv Gandhi did not personally take a bribe but allowed a massive cover-up aimed to protecting Ottavio Quattrocchi. KM Kishan/Reuters
So what does he have to say?
For one, Rajiv Gandhi did not personally take a bribe but allowed a massive cover-up aimed to protecting Ottavio Quattrocchi:
There was no evidence that he (Rajiv Gandhi) had received any bribe. But he watched the massive cover-up in India and Sweden and did nothing. Many Indian institutions were tarred, innocent people were punished while the guilty got away. The evidence against Ottavio Quattrocchi was conclusive. Through a front company called A.E. Services, bribes paid by Bofors landed in Quattrocchi’s account which he subsequently cleaned out because India said there was no evidence linking him to the Bofors deal. Nobody in Sweden or Switzerland was allowed to interrogate him.
And in the pecking order of protection, Quattrocchi merited greater protection than even Rajiv Gandhi’s relative Arun Nehru: ”He [Managing Director of Bofors Martin Ardbo] had written in his notes that the identity of N (Nehru) becoming public was a minor concern but at no cost could the identity of Q (Quattrocchi) be revealed because of his closeness to R (Rajiv Gandhi). ”
The Quattrocchi-Gandhi link is also up-front and centre: “[Ardbo] had also mentioned a meeting between an A.E. Services official and a Gandhi trustee lawyer in Geneva. This was a political payment. These payments are made when the deal has to be inked and all the numbers are on the table.” A.E. Services was a front company used to facilitate the transfer of money from Bofors to Quattrocchi.
So determined was the Indian government to cover up the scandal that when Bofors officials arrived in India with a list of names, “nobody of any consequence received them.” And yet even the VP Singh administration, which was voted to power in late 1989 on an anti-corruption platform, does not come out looking any better. According to Lindstrom, only one team of Indian investigators met with the Swedish team even after VP Singh took power, and their primary aim was to force him to link the Bachchans to the kickbacks. When he refused to do so, they planted a story in a leading Swedish newspaper instead – for which the paper was successfully sued by the Bachchans.
In fact, Rajiv’s fall from power did little to improve the efforts of Indian investigative agencies:
Whenever the public prosecutor Ekblom and I heard of any Indian visits to Stockholm, we would speak to the media expressing our desire to meet them. Can you imagine a situation where no one from India met the real investigators of the gun deal? That was when we saw the extent to which everyone was compromised. Many politicians who had come to my office claiming they would move heaven and earth to get at the truth if they came to power, fell silent when they held very important positions directly linked to the deal.
Lindstrom’s lesson in Indian politics rings truer than ever 25 years later.
Read his interview in its entirety on The Hoot website.

Singhvi 'video' puts spotlight on retired judge's decisions


Justice AP Shah's role in Hiranandani arbitration can come under cloud


The sordid sex video freely circulating in the social media purportedly linking elevation of the impugned lady to judgeship flows beyond the senior MP and parliamentary committee chairman allegedly promising the lady to precisely what coincidentally/subsequently was recommended by the AP Shah collegium.


The multi-billion dollar family feud between the Hiranandani siblings, Priya Vandrevala and her brother Darshan Hiranandani, has had a twist. The choice of arbitrators in the panel, which includes Queen’s Counsel Cherie Blair, can be questioned on grounds of public interest, undoing hard work put in by Blair over two years of arbitration.



The fitness of justice (retd) AP Shah as one of the arbitrators is suspect after the leak of the name of the lady lawyer who the Delhi high court collegium chaired by him as chief justice had recommended for elevation to the bench, but whose entire set of recommendations the chief justice of India, SH Kapadia, had refused to entertain (http://www.indianexpress.com/news/cji-sends-back-5-names-cleared-by-delhi-hc-c/627667/).



Shah’s favourable judgments on the Hiranandanis during the period he was at the Madras high court were borderline cases on conflict of interest and wouldn’t have washed under norms governing choice of arbitrators. But the sordid sex video freely circulating in the social media, which is linked to the elevation of the impugned lady to judgeship, overflows beyond the senior MP and parliamentary committee chairman purportedly promising the lady precisely to what coincidentally/ subsequently was recommended by the Shah collegium.



Justice Shah, who started his career in Mumbai in the late 70s, was one of the most popular judges in the Bombay high court, and rose to become chief justice of the Madras high court before his transfer to the Delhi high court as chief justice in 2008. 



Relevant to the multi-billion dollar arbitration he accepted, valuation of which is done by E&Y and Houlihan Lokey, his verdict on the Hiranandani matter included disallowing the state police from investigating the allegations against the builder has subsequently been upturned by the supreme court. In this July 2006 verdict, justice Shah approved the transfer of 750 acres of land in Tamil Nadu belonging to a finance company, which had gone bust, to five sponsoring companies, of which Niranjan Hiranandani was the director. Hiranandani was asked to pay Rs 34 crore at a time when the market price of the said land was estimated to be more. The Economic Offences Wing (EOW) of the local police appealed against the land deal but justice Shah rejected the plea. The EOW went to the supreme court, which admitted their plea, thus overruling justice Shah’s judgment.



This, among reasons that haven’t being officially commented by the chief justice of India, is commonly understood as the cause of the rejection of his candidature for elevation. An RTI query on the subject filed by one Deb Bhattacharya seeking minutes of the collegium meeting and exact reasons why justice Shah was denied elevation has been rejected by the apex court.



Post-retirement, Shah was appointed to head the complaints council of the Indian Broadcasting Federation (IBF). Unlike his senior colleague, Justice JS Verma, a former chief kustice of India, who charges an honorary pay of Re 1 for his role as chair of the News Broadcasting Standards Authority, justice Shah charges a fee.



Compared to the exalted standards of his brother judge, this puts justice Shah’s position under a conflict of interest, as here he is expected to rein in erring broadcasters, who coincidentally also pay him. In other words, here the group of accused pay the former judge, a sordid example being porn star Sunny Leone and her broadcaster Network 18 getting away scot free from Justice Shah’s jury despite proven cross-promotion of her porn sites/mobile downloads on inhouse MTV’s social media platforms and “Bigg Boss 5” promos on her business solicitation website.



Any one party in an arbitration can challenge the appointment of an arbitrator if circumstances exist that give rise to justifiable doubts as to his independence or impartiality. Family tussles having wider public interest overtones have attracted the court’s intervention to protect the interest of the public and other stakeholders.



The tussle between the Hiranandani family members - Priya Vandrevala and her brother Darshan Hiranandani – came out in the public in 2009 after Vandrevala accused her father Niranjan Hiranandani and brother of cheating. Niranjan, who started out in the real estate business in the 80s, along with his son has been accused of violating a non-compete agreement signed between them and Priya in 2006. At the heart of the controversy is prime land in and around Mumbai and Pune bought under the name of Hirco PLC, a company which was started in London and later listed on the London Stock Exchange.



According to the agreement, the father and son duo could purchase and develop property in India on an exclusive basis with Vandrevala and the profits from all such projects had to be shared equally. However, the father and son duo stand accused of violating the agreement by buying plots after involving other developers in the project.



The arbitration, which is being heard under the London Court of International Arbitration, has DLA Piper and noted Mumbai-based lawyer Parimal Shroff representing the Hiranandanis and Pepper Hamilton and Karanjawalla & Associates representing Vandrevala.



In State of Orissa v. Gokulnanda Jena AIR  2003 SC 4205, the appellant had challenged the decision of the high court in holding that a writ Petition under Article 226 of the constitution of India challenging the validity of an order made by the judge designate of the chief justice of the high court under Section 11(6) of the Arbitration Act. The apex court declared that the view taken by the high court as to the non-maintainability of a writ petition against an order made by the designated judge under Section 11(6) of the Act cannot be sustained and held that the writ petition in such cases is maintainable against an order made by the designate judge.



That said, courts have denied stranger petitions in normal course on public interest locus of a stranger. The ground has to yet be tested, a leaf can be taken from the Reliance family dispute where the court heard the central government though it was not a party to a family settlement.



PC as accused in 2G, Question of Law: Dr. Swamy's arguments in SC (April 24, 2012)



I. QUESTION OF LAW
    

1. I may begin by reading two paragraphs of the impugned Order [at SLP Vol. I p. 63 at para 66 r/w paras 69-70 at p. 65 ].

2. Thus, the Learned Special Judge accepted my allegations as prima facie valid. These two allegations I made u/s 311 Cr. PC.
 
3. I submit that these two allegations find support in the judgment of this Hon’ble Court [(2012) 1 SCC 1] wherein it was held that spectrum “was “virtually gifted away” [para 91. P.58] since the spectrum licence price determined was at a “throw away price”. 

4. TRAI’s calculations and recent reserve price for public auction of 2G spectrum also support the first allegation of under pricing of spectrum. The total revenue estimated by TRAI as a consequence of proposed auctioning is now estimated at Rs. 70 lakh crores, and for much less spectrum against Rs. 15,000 crores earlier for 6.2 Mhz spectrum. 

5. Mr. Chidambaram as Finance Minister was bound by oath of office especially to safeguard government finances and he could have easily prevented Mr. Raja from going ahead with his plan, by invoking the Transaction of Business Rules No. 7(L) framed under Article 77 of the Constitution [Vol III, p.5-7 at 7]. But he did not. CAG disappointed

6. The prima facie conclusion therefore, based on the memos of three meetings of Mr. Chidambaram with Mr. Raja and twice together with the PM, two written communications of Mr. Chidambaram with the PM and with Raja,  and five memos prepared by MoF officials, is that Mr. Chidambaram deliberately chose not to safeguard the nation’s financial resources or defend the public interest, thereby caused a huge loss of revenue foregone.

7.  Mr. Chidambaram by coming to an agreement with A. Raja to permit the acquisition, enabled Swan and Unitech to enrich themselves by selling equity even before roll out to two black-listed foreign companies, who thereby became beneficiary of defacto spectrum transfer [Vol III p.4]. 

8. By Competition Act Section 2 it was an acquisition and by Etisalat website it was a formation of a joint venture [Vol III p. 31] in which Swan now sold to Etisalat DB which became a junior partner.

9. This was violative of its Aug 28, 2007 Recommendation [No. 6.31(iv), which states: “ Any proposal for merger and acquisition shall not be entertained till roll out obligations are met”] and hence this violation is ultra vires the TRAI Act (1997) [Section 11(1) Fifth Proviso]. 

10. It be recalled that on October 17, 2007, the DoT had accepted the TRAI Report in toto. The dilution amendment on April 22, 2008 is a reckless disregard of the TRAI Act. 

11. The share dilution proposal was later cleared by the FIPB of which Mr. Chidambaram as FM was the ex-officio Chairman.

12. It was therefore neither legal, nor in the public interest or even I allege in the interest of national security.[Vol III p. 13-17 at p.15. and p. 28]. The main document is at p. 21-27 with IB Note 19-21]. 

13. That this meant pecuniary gain especially for Swan and Unitech is implied in this Hon’ble Court’s judgment [para 91, p. 58, op.cit.,] that “ some of the beneficiaries” of this licence allotment soon after and even before roll out of services, “offloaded their stakes to others in the name of transfer of equity or infusion of fresh capital by foreign companies, and thereby made huge profits” 

14. Had auction been done, this Hon’ble Court therefore observed, “the nation would have been enriched by many thousand crores”[Ibid].

15. According to yesterday’s TRAI’s calculation, Rs. 7 lakh crores, not just some thousand of crores.

16. On this possibility of windfall gains because of the under-pricing of spectrum, Mr. Chidambaram had been apprised of in the 30.1.08 meeting.

17. This Hon’ble Court thus decided that all 122 licences be cancelled as illegal and holding the offloading of shares as against public interest, and also  imposed a fine on Swan and Unitech [para102 (i)& (v), p. 63]. 

18. Therefore, as Counsel conducting my own Complaint Case, I after my Section 311 Cr. PC statement on oath before the Learned Special Judge, I submitted that it was prima facie proved that the offence u/s Section 13(1)(d)(iii) of the PC Act, was committed by Mr. Chidambaram, since the two required ingredients of the offence were present, i.e., as a public servant, he “obtained pecuniary benefits” for Swan, Unitech and others, which was “without any public interest”. 

19. And hence my plea for issue of process u/s 204, or postpone issue of process and order u/s 202 an inquiry. 

20. The Learned Special Judge thereafter ought to have proceeded according to the guidelines succinctly laid down by this Hon’ble Court [in (2010) 7 SCC 578 at 585-6 paras 16-21] for issue of process u/s 204 or for an inquiry u/s 202 Cr.PC. HOON

21. With Your Lordships’ permission, I shall now read from the relevant parts of impugned Order [Vol. I, starting at p. 36, paras. 47-49; p. 60, para 59; p.61, paras 60-61; p. 62, para 63  which is irrelevant for Section 13(1)(d)(iii) of the  PC Act; p. 63, para 66; p. 64-65, paras 67-69; p. 65, para 69].  

22. Instead, the Learned Special Judge dismissed my plea u/s 203, because I produced no evidence  to prima facie establish mens rea as an ingredient  or prove that Mr. Chidambaram had a criminal intent [paras 67-70]. 

23. The Learned Judge, furthermore, did not at all consider the question of postponement of process for further investigation u/s 202 of the Cr.PC.

24. The question of law thus is as follows: Is mens rea an essential ingredient for an offence to have been committed u/s 13(1)(d)(iii) of PC Act?

25. A bare reading of Section 13 is as follows…….         

26. Section 13(1)(d)(iii) was introduced as a new Section in the 1988 Act after repeal of the 1947 Act, and is significant in the difference in its wording from  the other sub-sections of Section 13 of the PC Act. viz.,  (i) & (ii), in terms of the stated ingredients of the offence of criminal misconduct. 

27. Comparing the two sub sections (i) and (ii) with sub-section (iii), brings out that in the former two sub sections, the adverb qualifies the verb “obtains” by “ by corrupt and illegal means” and “by abusing his position”  respectively, and in (iii) the adverb is “without any public interest” as the ingredient of criminal misconduct.

28. That is, the offence u/s 13(1)(d)(iii) of the PC Act has two ingredients: a public servant is said to commit the offence if he obtains for any person [i] any pecuniary advantage [ii] without any public interest. 

29. A bare reading thus of Section 13(1)(d)(iii) shows that mens rea or criminal intent is not an essential ingredient in Section. It was thus a clear intention of Parliament to exclude mens rea or criminal intent.

30. Essentiality of mens rea ingredient in any criminal offence, whether under IPC or under other enacted statutes, was gone into in a number of judgments of this Hon’ble Court. 

31. On this subject, of whether an enacted statute which provides for criminal punishment for special offences such as corruption, requires mens rea, I cite: (1964) 6 SCR 594 at 610; (1965) 1 SCR 123 at 145; (1978) 1 SCR 338 at 351-52.

32. The ratio of these judgments thus is that the statute enumerating certain criminal offences imposing punishment of incarceration need not require mens rea if instead strict liability is enumerated in the statute itself.

33. This question of mens rea u/s 13(1)(d)(iii) also arose before a Division Bench of the Delhi High Court, squarely in Runu Ghosh vs. CBI , wherein the CBI had argued what I am arguing here today.

34. The Honourable Bench decided on 21.12.11 in CRL. A. 482 of 2002, viz., six weeks before the impugned Order of the Special Court. This is pending now in this Hon’ble Court in SLP 24&25 of 2012. Final hearing listed on 7/8/12 for CBI counter arguments].

35.  It was held therein [para. 73. P. 53 ] that: “the conclusion this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d)(iii). It would be sufficient… ” 

36. All the judgments cited by Learned Judge in his Order are of murder/ assassination cases at the stage of conviction and not at the prima facie threshold. 

37. In other words, citing Section 13(1) (d) (iii), I have shown prima facie that the two ingredients of the offence, “obtains” and “public interest”, are in the said decisions. 

II. CONCLUSION

38. It may thus be inferred that the Learned Trial Court Special Judge failed to appreciate Parliament’s intention, and thus wrongly dismissed my plea under Section 203 of the Cr.PC, erroneously holding that my complaint lacked prima facie evidence of criminality or mens rea. 

39. The Learned Special Judge ought to have summoned Mr. Chidambaram as an accused u/s 204 of the Cr.PC, or at the very least, postponed the issue of process and ordered a CBI investigation u/s 202 of the Cr. PC.

40. I submit that if the Learned Special Judge’s impugned Order stands, it could vitiate the trial. This Hon’ble Court has propounded the Doctrine of Parity [in (2007 5 SCC 403 at 411 para 23]. 

41. Invoking that Doctrine, if Raja is charged, so too prima facie must be similarly placed Mr. Chidambaram. 

42. My prayer is in para 21, page 85 of the SLP. 

43. My plea in the Trial Court is at p. 38-39,  . 

44. Your Lordships may please direct the Learned Special Judge to issue process and summon Mr. Chidambaram as an accused.

Monday, 23 April 2012

The rise and rise of tomorrow’s Prime Minister Narendra Modi




RAM JETHMALANI
No politician in independent India has been demonised in such a relentless, Goebbelsian manner as Narendra Modi, and no politician has withstood it with as much resilience and courage as him, notwithstanding the entire Central government, influential sections of the media machinery and civil society arraigned against him.
His dark patch started with the unfortunate Godhra train massacre and the ensuing communal riots in Gujarat in 2002, where several innocent people lost their lives. A train carrying non-violent harmless karsewaks were set on fire and nearly 60 persons were burnt to death. Understandably, but regrettably, this provoked retaliation and mayhem resulting in many innocent members of the minority community losing their lives and suffering other indignities. It is equally true that the desire for revenge did paralyse the will of some law enforcement agencies, including some prosecutors and judges. Serious steps had to be taken to restore the confidence of the victims of revenge in the legal and judicial system of the state.
Today, vast sections of civil society see in Narendra Modi the next Prime Minister of India. I hope he will plant more visible footprints on the international seashore. He has to speak of peace and a durable solution to the Kashmir problem with the rulers of Pakistan. 
The most diabolical role was played by the Congress government at the Centre. A bogus commission was appointed to whitewash the Godhra tragedy to establish that the attack on the train was not the result of a conspiracy of some evil minded Muslims, but an accidental stove fire. This serious crime by the Congress government was fully exposed when a Special Investigation Team appointed by the Supreme Court made their own independent investigation and reiterated that the burning of the pilgrims was a concerted plan by those who must have known that it will inevitably lead to retaliation and atrocities against the minorities, a finding fortified by recent court judgments. Their evil calculations proved to be right. Obviously, the planners wanted India to get a bad name, its national unity and integrity shaken and its defence against scheming neighbours enfeebled.
The unfortunate riots were followed by the state elections, the results of which made the psephologists run for cover. One is reminded of a story, which may well be apocryphal, but is fairly apposite and bears repetition. The Viceroy of India, Lord Linlithgow, wanted to hold an open air reception in Simla and sought, and received, the assurance of the weather bureau that there wouldn't be any showers on that day. But while strolling on the mall, he encountered a farmer and his donkey. Proletarian as he pretended to be, he struck up a conversation with him and made the same enquiry. The farmer looked at his donkey and said, "Whenever my mate's ears shake the way they are doing now, it just pours." The Viceroy made light of the donkey signal, but his evening party was a big fiasco. In anger, he had the weather station removed to faraway Pune as punishment. I hope the media will never again mess with Narendra Modi or Gujarat elections. Modi won a landslide victory, which even he and his followers could not have imagined or hoped for. I congratulated him for his brilliant victory, but I sincerely advised him that he should wear a look of absolute humility; he should publicly own that something had seriously gone wrong and that he should loudly proclaim that India could never go forward and retain its independence and sovereignty unless Hindus and Muslims were locked in an embrace of love and mutual understanding. He must declare his firm resolve to bring back to the minorities a feeling of absolute security and an assurance of every kind of protection by the powers of the state. Modi thought out and reasoned his strategy and since then his stature has risen manifold to heights rarely attained before.
Today, vast sections of civil society see in him the next Prime Minister of India. I hope he will plant more visible footprints on the international seashore. He has to speak of peace and a durable solution to the Kashmir problem with the rulers of Pakistan. He must project himself as a great democratic leader of the world and a fighter for human rights and justice the world over. On the domestic front, I am proud to see him winning Muslim hearts by presenting to them the real Hindutva, which even the Supreme Court had to acknowledge and admire. Let not the real Hindutva be confused with its counterfeit version, which unfortunately gains currency during the course of electoral battles.
The policies and conduct of Narendra Modi may be compared with those of the late Rajiv Gandhi. The sad assassination of his mother led to what may accurately be described as a virtual genocide of the Sikhs. Armed bands of hooligans and murderers went around the streets and colonies of Delhi in search of innocent Sikhs, sought them out and slaughtered them mercilessly. We saw some Sikhs being burnt alive on public roads while crowds watched the heartrending scenes. Even the then Sikh President could not move a finger to help the unfortunate followers of Guru Nanak. I cannot forget those shameful days even now. All that the new Prime Minister Rajiv Gandhi had to say was a defiant, "When a big tree falls the earth must shake". Never did the Congress leadership apologise for the atrocities and the murders. It is the greatness of the Sikh community that they have forgiven the Congress.
In a corruption ridden country where the chief source of corruption is the Congress and its leaders, Narendra Modi shines for his impeccable integrity. He has focused his entire energy on building in Gujarat an able administration and good governance. He has achieved phenomenal development and economic growth, and at the same time bolstered social inclusiveness. Through these he has worked hard to regain the confidence of the minorities, even as the relentless and pervasive hate campaign against him has continued unabated in the electronic media, among the fashionable intellectuals and civil society activists, who have become the media sweethearts.
This is the first of a two-part article on Narendra Modi