2G verdict: Why the CBI owes an explanation to the nation

Our criminal justice system is in dire need of serious reforms.

 |  7-minute read |   22-12-2017
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We have all heard of prosecution witnesses turning hostile and retracting their statements. But have we ever heard of the entire prosecution turning hostile? Welcome to the Indian criminal justice system where the premier investigating agency - the Central Bureau of Investigation (CBI) - is now accused of turning "hostile", by no less than the special court judge in the high-profile 2G scam case, for seven long years.

To capture the purport of this piece, here's what special judge Saini said:

“In the beginning, the prosecution started with the case with great enthusiasm and ardour. However, as the case progressed, it became highly cautious and guarded in its attitude making it difficult to find out as to what the prosecution wanted to prove. However, by the end, the quality of prosecution totally deteriorated and it became directionless and diffident. Not much is required to be written as the things are apparent from the perusal of the evidence itself.”

When the learned regular senior public prosecutor and the inspector present in the court were questioned as to why they had were not signing the written submissions, their reply was that the same were not coming from their office and were instead coming from the office of the learned special public prosecutor. Their submission was that unless these written arguments were processed in their office, they would not sign it. “This shows that the learned special public prosecutor and the regular prosecutor were moving in two different directions without any coordination,” said the court. Many more things can be said, but that would only add to the length of the order, the judge added.

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Equally, this column could quote more, but that would only add to the length of this article.

Not long ago, we had the sorry spectacle of the Allahabad High Court allowing the appeals of Dr Rajesh and Nupur Talwar against the orders of conviction by the sessions court and castigating the CBI for its "miserable failure to prove the guilt of the accused".

At least, in the Aarushi-Hemraj double murder case, to be fair, the original report of the CBI was to recommend closure as they had no "prosecutable evidence to pursue a successful trial". It was the district judge who refused to accept the recommendation and instead ordered trial which led to the conviction. The CBI’s heart and soul was that they had no "conviction" in the evidence they had gathered, to result in "conviction" of the Talwars. Yet, the CBI was forced by legal process to pursue the trial to its logical end. And, therefore, when the high court reversed the "conviction", the CBI could say “we told you so”.

But in the 2G trial,  it has no such room to manoeuvre or wriggle  out of the tight spot it finds themselves in. A real bind it is in, this time. The 2G case was a Supreme Court-monitored trial. The prosecutor was appointed with the top court's approval. No high court was allowed to interfere with the proceedings before the trial court. So, the accused were "tried" under the watchful eyes of the apex court.

Special judge OP Saini was the chosen officer, by the Delhi High Court, at the request of the apex court, sitting daily, exclusively devoted to this cause. Yet,  this is what he had to say: “I religiously sat in open court for the last seven years from 10am to 5pm even during summer vacation awaiting for someone with legally admissible evidence. Not a single soul turned up."

Why? Would the CBI please care to explain?

To the trained lawyers as well as the ordinary-yet-well-informed citizens, the verdict of the special judge is a serious indictment of the total lack of professionalism in investigation and prosecution of crimes in India, even if by the topmost agency.

If the apex investigative mechanism is held guilty of total lack of intent and diligence, the judgment has to be read as nothing short of "sabotage" - as someone mischievously, albeit suggestively put it on social media - leading to the acquittal of "all the accused".

It is a shocking state of affairs if what the learned judge has expounded is true. Remember, aggrieved petitioners across India keep seeking investigation by the CBI, as the last resort to "catch the  criminal" as those in the lower rung may be unwilling to do so. In the face of this indictment, where does the citizen now go?

In the face of the damning CAG report of Vinod Rai - the grant of 122 licences issued for exploiting spectrum was challenged, and the Supreme Court in February 2012 cancelled them all as "founded in illegality". The licences issued on first-come-first-served basis were held to have been granted contrary to rules and there was "colourable exercise of discretion vitiating the process". The central government was directed to take note and "henceforth, to only auction natural resources". The discretion vested in the state having been snatched, UPA 2 sought a presidential reference and a constitution bench refused to budge. While the then telecom minister had sold 122 licences for Rs 9,200 crore, upon cancellation of the licences, yield from spectrum auction was for Rs 3.6 lakh crore between 2010 and 2016.

All that the CBI was required to do was, like Robert Mueller, the special counsel in the US who is probing into potential collusion between Donald Trump's presidential campaign and Russia, was to "follow the money". According to judge OP Saini, the CBI has "miserably failed" to do so. Was there no money to follow? Or the CBI took a detour along the line? What happened? India needs to know.

The CBI has a lot to answer. Yes, it may file appeals and the high court may even reverse (who is to hazard a guess?). But what about the recorded statements of judge Saini that the prosecution did not bend their backs and there was lack of will to "prove the guilt". Why? Did the CBI hold back? If so, did anyone hold them back? Or, was it a simple case of the CBI lacking the legal acumen and wherewithal to handle such a complicated crime woven in intricate corporate webs?

Whatever be the case, it is a sad day for Indian polity that politicians, bureaucrats and businessman walked free in a case which the Supreme Court had ruled was "tainted in illegality", resulting in huge loss to the exchequer.

What about the judiciary? Has it covered itself with glory as an independent entity bowing only to the rule of law? Did the court feel it was a case for "conviction", but the "evidence" never came forth?

Did the court feel its hands were tied because the prosecution was inclined to do so? Was the judge handicapped by absence of legally admissible evidence? What is one to make of these stinging observations of the learned judge? Or the special court had cherry-picked from the mountain of evidence, to castigate the CBI to justify its conclusion?

Yes, the accused may be entitled to feel "vindicated". But can they claim to be "innocent"? Or is it a nuanced case where the special judge was constrained to let them go scot-free because the prosecution did not do its duty by the rule of law and Constitution? It would be shatteringly sad to even remotely think it was so, for India lives by BR Ambedkar’s Constitution.

The CBI, as the premier investigating agency, owes the nation an explanation to ward off the obvious imputations arising out of the stinging observations in the 1,555-page verdict. Would the answer be by way of appeals to overturn the verdict and expunge the observations? Tomes would be written on the "caged parrot" epithet about its abysmal track record of convictions.

This judgment of epochal  proportions - in  terms of its sweep and implication across political, bureaucratic and corporate spheres - has at least set the cat among the pigeons that our premier investigating agency is far from being healthy in its professionalism and competence, to put it mildly. Our criminal justice system is in dire need of serious reforms, as it is more than frayed in the edges.

Also read: 2G verdict: Hard-hitting questions no one is asking

Writer

Vijayaraghavan Narasimhan Vijayaraghavan Narasimhan @narasimhan6

Author is a practising advocate in the Madras High Court.

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