An Open Letter to the Prime Minister of India

BR Lall (IPS)

Tel 9871439097

Email: brlall@gmail.com

(Retired DG Police Haryana )

Respected Sh Manmohan Singh,
Hon`ble Prime Minister of India,
New Delhi.
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Respected Sir,

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It has been an article of faith with me that to set the country right “all that we require is a straightforward, effective, honest, firm, bold and a well meaning Prime Minister” who would be able to solve all the problems that our country faces, with corruption in the forefront. With your elevation to the top, our hopes soared high. With the highest reputation for integrity that you commanded and the great learning that you imbibed, people expected effective bold and firm governance. Initially we felt that you were leading the country on that path, but before long the impression started waning.

Disillusionment set in as scams started rolling out and peaked with the 2G spectrum. Worst feature has been that the information about the spectrum, the CWG and many more has been in public domain for quite some time and still no action was taken while the nation watched the loot of the treasury helplessly. If people in street knew and talked about, there is no reason that you did not know.

In the 2-G spectrum case the information available in public domain discloses that on learning about bunglings being cooked up, you had written a letter to the telecom minister restraining him from allotting the spectrum without your permission, but despite that, after a little while he proceeded ahead in violation of your orders and issued allotment orders. He is said to have the audacity to write about the allotment to inform you.

Public has been discussing the issue for the last 2 years and certain knowledgeable people had been displaying all this correspondence along with what is purported to be your response of just acknowledging the letter by thanking him.

When it came to allotment of 3-G spectrum, the people`s groups exercised great pressure so that the minister could not make arbitrary allotments. he had to conduct auction. That brought very high dividends and also focussed the nation`s attention on the mischief played in the 2-G spectrum.

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Public property that the spectrum is, was supposed to be held and operated by the minister, in trust, but that was disposed of in violation of the directions and the procedures set by law, thereby betraying such trust that he was bound to uphold and discharge as a public servant, committing thereby the offence of Criminal Breach of Trust as defined in section 405 IPC and punishable under section 409 IPC with life imprisonment.

It was an act committed by A. Raja, the telecom minister, but as per above narration, you had come to know of the same. It is for this reason that you wrote him the letter restraining him from allotment and assigning it to group of ministers to deliberate on the same and give well considered advice. But still the minister went ahead and only informed you that too after disposing of the same. As Prime Minister, instead of thanking him it was incumbent upon you to have taken action, there and then, against him as follows:

i) To drop him immediately from the ministry, so that he could not influence the department further, fiddle with the files and destroy the evidence.

ii) To register cases under section 409 IPC against him alongwith others concerned and order prompt investigations.

iii) To register cases under Prevention of Corruption Act against him alongwith all others involved and conduct thorough searches of all their premises and bank lockers etc and look into their assets and attach the same, so that these could be forfeited in future at the appropriate time. Attachment was necessary at the initial stage as otherwise the assets would be disposed of, the cash and other movables including the papers pertaining to Benami properties would be moved away and hidden.

By not taking any such appropriate action despite having known in advance, you facilitated the commission of the above crimes with full knowledge, thereby intentionally omitting the legal duty cast on you as the PM to prevent the same, thereby committing an offence of abetment under section 107 (3) IPC for all the above crimes of which Raja and others are guilty. The argument of coalition is not at all tenable in the face of the substantive crime. It is sad to learn that the PM of the biggest democracy is so Majboor.

The story of the CWG scam is also similar. Further, the appointment of PJ Thomas as CVC has been a very vicious affair. The highest watchdog of integrity and morals in the country cannot be the one facing criminal charges himself. Trial has not proceeded against him as the government under you has not accorded prosecution sanction, without which no trial can commence. Punishing the high and the mighty in corruption or the related cases is not a done thing in India and I can safely infer, though painfully, that all the governments have been protective to the corrupt provided he is high and mighty. Corruption, exploitation, tax evasion, misappropriation of public funds etc, that too with impunity, are treated as perquisites of the VIPs. But empanelling for higher responsibilities, such a bureaucrat against whom chargesheet has been framed and prosecution sanction has been pending for years, itself constitutes a crime against the Nation. When his case for prosecution sanction was pending with the Union government since 2003 or so, how could the same government feign ignorance? This culpable act was committed not once but on many occasions; twice at the time of empanelment as Additional Secretary and Secretary as also at the time of posting as Secretary to GOI and finally at the time of selection as CVC.

At the last occasion, the leader of opposition had brought this issue to the notice of the committee chaired by you, but yourself and the Home Minister overruled her. The constitution of the committee is defective in that the association of the leader of opposition is meaningless as he or she can always be overruled by the other two as they will always be on the same side. But since she brought it to the knowledge of the committee, the government cannot take the plea that the state government had not sent the information. The inference that is obvious is certainly devastating as people have started holding you personally responsible for fomenting corruption, though at the same time they may swear by your personal monetary integrity.

There is a political stalemate in the parliament on 2-G spectrum, but what an ordinary man is concerned is the fair investigation into it and recovery of the misappropriated wealth. As a professional my worry is that while the polemics continue, the evidence is being destroyed and lost. The CBI has been asked to register cases and conduct investigations but at the same time, various probes under CAG and Mr Shunglu have also been set up. These are supposed to be the fact finding bodies, but the facts are already in the public domain.

Besides the report of the CAG, the Media has already investigated and marshalled the facts with documents that are in public domain and prima facie establish Commission of Criminal Offences. As per Supreme Court judgment dealing with preliminary enquiries, it was clearly laid down in Serajudin case from Madras as reported in AIR 1971 page 520 that the moment a criminal case is prima facie made out, all the enquiries should stop and investigations under the Code of Criminal Procedure should commence. The ruling is as good as law and as such setting up committees in this case is bad in the eyes of law. JPC, as the government says may be a political weapon, but all these committees, including the JPC, are against the above ruling and hence illegal. These all will hamper the investigations and recovery of the lost wealth. The opposition contends that the JPC will pinpoint the responsibility and also study the procedures and suggest the measures to prevent such occurrences in future. Fixing responsibility is the task of investigation and thereby also to collect the evidence for prosecution. JPC can better look into procedures after the investigations are over and all the records have been collected as otherwise all these committees hamper the process of investigations and damage the criminal cases and only help the accused.

Investigations i.e. the collection of evidence is the most crucial aspect as the court will adjudicate on that whereas the committees collect and project facts and not necessarily the Evidence. But investigations must be conducted by an agency independent of the government.

History bears witness that all the governments have misused the CBI for their ends and as such the people have lost confidence in the CBI under the government. It is but natural as an organ under the government cannot go against it and even if it is fair still it will have to prove its credentials every time. For this reason most of the countries have gone ahead with independent investigating agencies like Independent Commission Against Corruption, but we are still sticking to the executive control over investigations including the CBI. For this reason we are not able to ratify the UNCAC as that presupposes the independence of the investigating agencies, though ratifying the UNCAC will help us trace and recover the huge amount of black money of this country lying in Tax Havens.

That however is a basic reform. Immediately to do justice and to restore public confidence, it is necessary that for these cases SITs independent of the government, reporting to the Supreme Court be set up. The SIT be monitored by a chosen Police Professional who may be a distinguished retired officer in no way under the government, as he only could be effective. He should write and endorse the ACRs of all its officers. Monitoring by Supreme Court has been proposed in certain circles, but that experiment did not succeed in Jain Hawala case in 1990ies as that case was scuttled despite Supreme Court monitoring. Justice JC Varma, presiding over that bench, later regretted and said that Judiciary has its own Maryada and it could not be expected to supervise investigations on a day to day basis.

Sir, to vindicate your position, it is necessary that you may kindly on your own approach the Supreme Court proposing the above arrangement so as to mitigate the guilt of being an abetter and at the same time to give a substantive relief to the people.

Hon`ble Sir, I am sorry that I have recorded the unpleasant but frank legal position as you are answerable to the law of the land, your inner self and to the history as I noted in context of the black money of our country in my book titled ‘Financial Terrorism: Black Money and the Indian Elite’. The relevant excerpt is reproduced below:

“However, the country expects action from the Prime Minister who is revered as an economist, an academician and an honest person though surrounded by dishonest and fraudulent crowds, by and large, who themselves may be having such accounts like any other person in power in India. It may be argued that if action is taken, the government may fall as most of the elites including the civil servants and big businessmen also hold such slush. The moot point is whether the PM owes his loyalty to such criminals or to the nation. What if the government of the day falls, the nation will surely rise? The nation will be galvanized, will be hopeful about future and the PM would have an occasion to select a more honest team. The PM is fortunate to be blessed with this great opportunity, but if he ignores or misses it, he will be answerable to the nation, to himself and to the history. Such tailor-made opportunities seldom visit though only the brave can avail. One can extend best wishes and cooperation to the PM if he undertakes this most sacrosanct national task.”

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The media on 2nd and 3rd instant has carried the declaration by Smt Sonia Gandhi to provide for Lokpal and to amend the law on corruption to make it more effective and fast. Certain sections of public opinion have called it cosmetic to score political point in the political battle against the opposition. Prima facie one cannot dispute their claim. As reported in the media, all the constitutional functionaries have been kept out and all the politicians in power have been protected by the provision of permission from the presiding officer of the house, thereby extending the provisions of the infamous single directive to all these dignitaries. The public servants beyond a certain level already enjoy this privilege under section 26 of the CVC Act. Then what for this lame Lokpal? Can`t we imagine any government action, even the laws without extending privileges. This feudal bias has to end. The common sense suggests that the law of corruption should be more stringent against the higher ups as the capacity for corruption is directly proportionate to the power exercised.

Corruption and misappropriation are crimes and no criminal should be shown any consideration. No permission is required to proceed against a person charged with the most heinous of the crime like murder or rape. Then, why in cases of corruption? The only reason that comes to mind is that it is a crime committed by the big, so they have enacted a shield to protect themselves.

Out of my long experience of investigating corruption cases and in my fight against corruption at high places that started publically in 1996 with publication of my article “How to Make CBI a Free Agency”, I outline below the first phase of measures that require to be adopted without any loss of time, in case the government really means business.

1) Establish a high power “Independent Commission Against Corruption” that will cover all shades of public servants, including the highest politician, as also the people from the private sector. The commission would be absolutely free from any governmental control and will submerge into it the functions of the proposed Lokpal, the existing CVC, the CBI and the enforcement directorate as also of the government as at present in relation to corruption cases.

2) Repeal the provisions of section 26 of the CVC Act as the registration and investigation of a crime should not require any permission from anyone for any criminal charged with an offence of corruption even if he be a constitutional functionary or a legislator of any description.

3) Similarly repeal section 19 of Prevention of Corruption Act. This is a requirement of a colonial power and not of the democracy that boasts of Rule of Law.

4) Amend Prevention of Corruption Act to provide for more stringent punishments. As of now a person amassing even thousands of crores of rupees through corruption does not attract a punishment beyond 7 years. It should extend upto punishment for whole of life for corruption or amassing assets beyond certain level. Do away with the notional fines; a provision need be made to confiscate any of his properties or those of the family members to recover the amount equivalent to misappropriation alongwith penalties.

5) Make Tax evasion a cognizable crime punishable with a Jail term that should be commensurate with the amount evaded.

6) Amend Representation of People`s Act to debar all the chargesheeted persons from fighting elections or from holding any office in the government or in any registered political party. The persons convicted for any term, of course, cannot find any place.

7) Rules under the Benami Property Transactions Act 1988 be framed and promulgated immediately.

Other measures can closely follow in the 2nd and 3rd phases, but in any case if we mean business the whole spectrum of laws and the enforcement need be recast and implemented without any distinction or favour, equally amongst all like the advanced countries.

I close with best wishes to you on the occasion of the New Year and hope that in the New Year you will bring cheers to the nation by combating the Corrupt, the Black-marketer, the Tax Evader, and the likes who in reality are the Terrorists i.e. the Financial Terrorists.
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With warm regards and best wishes for a happy new year.
 

Yours Sincerely,
 

( B R Lall )

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