Bruised by Rafale

There was only a muted celebration for the Rafale judgement. Although the SC order has prevented an assault of Rafale, as for the procurement process, it has left the bruise of allegations of corruption untreated. It is good for the country since the Modi and BJP have always been fork-tongued.

As he is prone to doing, Modi has created illusions about freeing the country of black money and corruption. Contrary to his rhetoric, he installed notoriously corrupt Yeddyurappa as the chief minister of Karnataka through corrupt manoeuvres. Of late, playing an active role in a midnight coup, he made Fadnavis unscrupulously embrace Ajit Pawar to form the government in Maharashtra, although he is under the scanner in the 70,000 crore rupees irrigation-scam, involved in bank embezzlements and is an accused in the ED charge-sheeted money-laundering case. Although they have ended up with a bloody nose in this power game, Modi and the BJP have been brazenly exploiting the core issues of the nation-wide Anna Movement — black money, corruption and electoral reforms for their benefit.

For example, demonetisation was imposed on the country in spite of strong objections from RBI. Regardless, all the black money found its way into banks and was laundered white while more was generated, further bloating the coffers of the BJP in several ways. They could spend 27,000 crore rupees in elections and they could engineer numerous defections. Yeddyurappa could even afford to give 1700 crore rupees to his leadership. BJP is flourishing but with millions of jobs and livelihoods lost and economy in shambles; people are in misery.

Similarly, the country was made to believe that Electoral Bonds are the panacea to curb slush money in elections and to bring in transparency. And the law was passed in 2017, with claims that the donor would remain anonymous. The country was unaware that they had overruled objections from the RBI and the Election Commission and that this measure would only help in money-laundering. However, questions were raised when the Association for Democratic Rights found that about 95 per cent of donations went only to BJP. Quint investigations found the answer and exposed their lies about donor-anonymity.

A donor simply has to purchase the EBs from a designated SBI Unit by depositing cheques or DDs and then issue unnamed bearer bonds to a political party. However, the hidden randomised serial number on the EBs exclusively facilitates the government to trail the donor and the destination of donations. He is thus deterred from making substantial donations to Opposition Parties for fear of being haunted for his own malfeasance.

Furthermore, in order to make the scheme more BJP-friendly, even ignoring the advice of the Law department that it would be unconstitutional, they restricted donations only to Parties with more than 8 per cent vote share. Also, the scheme was extended to the states since most of them are BJP-ruled. Thus, their designs to choke donations to opposition Parties make the electoral reforms only farcical and a scam. Same is the case with the fight against corruption.

It is now common knowledge that every institution is being arraigned only against the Opposition leaders, as if those in the BJP and those who join it and all those who support them are saints. Ambanis, Adanis, etc., are only examples.

Ambanis are always known for their close nexus with governments. Years ago, when CBI conducted raids at their premises for purported frauds, the bold acting-Director, Trinath Mishra, was denied the post of Director. Similarly, when the Anti-Corruption Branch of AAP government in Delhi registered and began investigations in the 50,000 crore rupees Krishna-Godavari gas-basin fraud involving Mukhesh Ambani, Modi took away the ACB itself from the State Government. Now, even after years, there is not an inch of progress made, showing the kind of patronage these crony capitalists enjoy from the government. The facade of fighting corruption is only for public consumption, which is evident even in the making of laws.

Even as participants of Anna Movement, they colluded with the other Parties in the creation of a lame-duck institution in place of an autonomous one that Jan Lokpal demanded. And then, they have gone a step further by making changes in the Prevention of Corruption Act that would only foster corruption.

Earlier the Single Directive, that made it mandatory for CBI to seek prior sanction from the government for initiating probes against officers of joint secretary level and above, was an anathema. When it was quashed by the SC, the government of the day inserted the same provisions through Sec 6A in the PC Act. Later, in 2013, the UPA government introduced a bill to make amends to extend the benefit even to retired government servants. However, on the advice of the standing committee of Parliament, it was put on hold since Sec 6A was already under challenge in the SC.

As expected, in May 2014, the top court declared this Section void in law, saying that "the protection in Section 6A has the propensity of shielding the corrupt, CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations." CBI was thus unshackled of the restrictions of the mischievous Section. The political class and corrupt bureaucracy were naturally unhappy with this outcome.

It was at this juncture that BJP came to power. Amid the euphoria in the country, there were also allegations that Anil Ambani had helped in EVM tampering. And soon, the matter of Rafale procurement that was already initiated by the UPA government gained priority and along with it, the changes in corruption law. The sequence of developments raises suspicions whether they were to safely bail out Anil Ambani, the insolvent of 45000 crore rupees and such people.

The Bill of 2013 was modified to introduce Sec 17A in 2015. Initially, it looked like an innocuous action when it was proposed to empower the still-to-be-formed Lokpal at the Centre and Lokayuktas in states to approve the initiation of inquiries and probes against serving and retired bureaucrats of any rank. But, by the time the law was passed in 2018, the government had shown its true colours and retained this power. The very rationale for quashing of Sec 6A was thus, diabolically negated while the Rafale deal had been making its headway, apparently with meticulous planning by the PMO.

PM's announcement in France to procure 36 Rafale fighters came in April 2015, even a month before the Defence Acquisition Committee held its meeting to grant the requisite AON to set off the process of acquisition. Interestingly, AON was not a part of the Defence Procurement Procedure. Furthermore, while invoking Inter-Governmental Agreement is a prerequisite, if any procurement process deviates from the DPP, it was not followed. IGA is an assurance from a sovereign foreign government for assistance in case of unforeseen problems, like contractor failure, etc. Inexperienced and insolvent Anil Ambani was made the off-set partner at the cost of experienced HAL. Furthermore, the price was $9.13 billion for 36 aircraft as against the original tender of $10.5 billion for 126 of them, even when 13 'India-specific Enhancements' demanded were the same in both cases as per the joint statement of Modi and the French President. Although Meteor air-to-air missile was said to be an additional feature, it is not exclusive to Rafale since the Tejas, etc., can also be fitted with them. The deal also does not help in enhancing indigenous expertise. Fishy activity was suspected which resulted in Arun Shourie and others approaching the CBI on October 4, 2018, with allegations of corruption.

However, within days, its Director Alok Verma was sent on leave by a midnight order. The complainants drew a blank in the SC too after two months. Their petition for a direction to the CBI to register an FIR was dismissed saying that there was no occasion to doubt the decision-making process in the procurement. Subsequently, while their review petition was pending, the government said that important documents were stolen. But, 'The Hindu' exposed their lie regarding the documents. However, the SC did not go into the merits of the allegations of corruption but confined itself only to the process of procurement and ultimately dismissed the petition.

At the same time, Justice KM Joseph made significant observations which were tacitly agreed to by the other judges. Citing the constitutional bench ruling in Lalita Kumari vs The state of UP, he said that "If the preliminary inquiry ends in the closure of the complaint, the first informant must be informed in writing and not later than a week. That apart, reasons, in brief, must also be disclosed." Apparently, CBI did not follow this procedure. He also observed that the Lalita Kumari judgement made the registration of an FIR mandatory when a complaint of a cognisable offence was filed and elaborated that "the scope of the preliminary inquiry by the investigating agency was not to verify the veracity of the information but only to ascertain whether the information revealed any cognisable offence." In finality, he said, "In my view, the judgment seeking to be reviewed would not stand in the way of' the CBI taking action on the complaint in accordance with the law and subject to CBI obtaining previous approval under Sec 17A of the PC Act." Thus, CBI now needs to comply with it. In case the government denies the approval without justification, petitioners would still be able to knock on the doors of the court.

The bruise incurred due to the allegations of corruption caused by Rafale still remains untreated. Time will tell whether it will fester, with even more serious consequences of metastasis to dig out cases like Judge Loya's death, Sahara Diary, etc., buried in the graveyard.

Dr N Dilip Kumar is a retired IPS officer and a former Member of Public Grievances Commission, Delhi. Views expressed are strictly personal