May 1, 2001


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Don't spare the
    rod, Sushmaji
Our media's avowed
Let the nation beware
Should they first
    become conjurers?
Idols: filth or deities?

Arvind Lavakare

Needed: legal enlightenment, please

Ultimately, the Congress had to eat crow. When Parliament adjourned sine die on April 27, Sonia and her sycophants had not got either the NDA government's resignation, or a Joint Parliamentary Committee on Tehelka, or even those half-baked documents known as FIRs against the "villains" of the Tehelka piece. And George Fernandes continuing as convener of the NDA was the non-iodised salt in the wound. It truly was retribution for the rumbustious, rowdy rumpus the Opposition parties had created right in the sanctum sanctorum of the Lok Sabha for two full weeks.

Symptomatic of the way the Opposition played out its innings in the "Obstruct Parliament" game was a hit by Somnath Chatterjee that must be the most mysterious stroke in criminal history. As quoted in The Telegraph of Kolkata in its edition of April 18, the distinguished CPM member of the Lok Sabha said, 'Though we are not opposed to the JPC, we want the guilty to be punished.'

That last sequence is as classic an example as you will ever get of putting the cart before the horse. One had all along believed that the suspect or the accused is prosecuted first and the courts decide whether s/he is innocent or guilty. But the eminent comrade wanted it otherwise. Having pronounced Laxman, Jaitly and others in the Tehelka tapes as 'guilty' without so much as taking them to court through any inquiry, he wanted the NDA government to punish them! One didn't know that in Jyoti Basu's version of Marxist ideology even the judicial process withers away.

Laloo Yadav not only demanded summary punishment but laid out its nature as well. On television he proclaimed that the 'culprits' had been seen taking money by the whole nation and therefore did not warrant any inquiry of any kind. In fact, the cunning king of Bihar said that the only point of debate was where exactly the 'traitors' seen on the Tehelka tapes should be exiled. The Congress has not been much behind in this thirst for action first, debate later. 'File FIRs first! Why doesn't government file FIRs against them?' thundered Kapil Sibal, the Sonia attorney with a perpetual smile or snigger.

Before discussing that demand, the boss of Bihar needs to be reminded that though a certain William Jefferson Clinton was not caught by the camera with his pants down, the whole of the USA and the rest of the world were certain that he had had oral sex more than once in the revered Oval office in White House, probably just a 'press' away from the nuclear button. Yet, the US senate defeated the impeachment motion brought against their president on charges of perjury. Yet, moreover, the entire Indian Parliament gave that same president a memorable standing ovation after which a backward class female MP of ours shook his hand for what seemed an eternity and then proclaimed that she would not wash her hands for quite a while. But were Yadav an American senator -- what a thought! -- he would, by his current rhetoric, have held Clinton guilty of treason by 'exposing' the American nation to nuclear threats, and demanded his banishment to outer space.

Now to Sibal's FIRs.

Construed to denote 'First Information Report,' the term actually means (under Sections 154 and 155 of the Criminal Procedure Code, 1973) the first statement of a person lodging information in a police station about the commission of a crime. Required to be reduced to writing, it is the complaint that enjoins the police officer in charge to observe certain duties and formalities. If the offence reported is cognisable, the police can start investigations without the order of a magistrate; if the offence is non-cognisable, they cannot investigate without the order of a magistrate. What Sibal has been demanding therefore is for the NDA government to set the police and criminal law in motion.

However, according to several judgments cited in the All India Reporter Manual, Volume XIII, an FIR is not an indispensable requisite for the investigation of a crime. Further, the courts have also held that an FIR may be given by anyone. Yes, anyone! Thus, since the NDA government was not willing to file FIRs against Laxman, Jaitly and other civilians in the Tehelka affair, the Congress party was at liberty to do so. Why hasn't it done so even a month and more after the Tehelka tapes exploded on the television screen?

Let's examine, nevertheless, what Laxman & Co can be prosecuted for. The most obvious offence is under Section 9 of The Prevention of Corruption Act, 1988. That Section reads as follows:

'Whoever accepts or obtains or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, any public servant whether named or otherwise to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and shall also be liable to fine.'

To determine their guilt under the above Section 9, it will have to be established without a reasonable doubt that both, Laxman (who accepted money) and Jaitly (who agreed to accept money) did so as 'a motive or reward' for using their personal influence to facilitate the fictitious West End Co to obtain a favour from Brajesh Mishra or George Fernandes or any such public servant. To do so, the edited tapes of Tehelka and their edited conversations (some of which don't even make grammatical sense) are not at all adequate. Instead, what would be required is an intelligent, painstaking study of the entire sequence of conversation between the parties concerned. Now that is a Herculean task and the ordinary police cannot be expected to perform it unless it is monitored by a judicial commission of the kind set up by the NDA government.

Further, whether the Prevention of Corruption Act applies to even fictitious 'favours' from public servants is a complex legal point and cannot be left to the ordinary police investigating an FIR or even to a multi-member JPC.

What seems a veritable can of legal worms is that while Laxman & Co could be prosecuted for the offence of accepting gratification under Section 9, at least this writer does not find in that act any section that will penalise Tehelka (posing as West End Co) for giving gratification to Laxman & Co!! This anomaly that reduces the law to an ass arises because neither Laxman nor Jaitly is a 'public servant' as defined in Section 2 of that Act, and, therefore, any private party giving any gratification to them cannot be deemed as having committed any of the following offences listed under that Act:

  • 'Public servant taking gratification other than legal remuneration in respect of an official act.' (Section 7)
  • 'Taking gratification, in order, by corrupt or illegal means, to influence public servant.' (Section 8)
  • 'Taking gratification, for exercise of personal influence with public servant.' (Section 9)
  • 'Abetment by public servant of offences defined in sections 8 or 9.' (Section 10)
  • 'Public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant.' (Section 11)
  • 'Criminal misconduct by a public servant.' (Section 13)

    Section 12 is deliberately excluded from the above list. And that is because Section 12 would be the offence for which Tehelka itself could be prosecuted --- for 'abetment of offences defined in section 7 or 11' namely, giving gratification to those serving army blokes (who are public servants) whom they met. Punishment for an offence under Section 12 is not less than six months but may extend to five years; it shall also be liable to fine. Hence, if the Tehelka blokes and their cheerleaders are still euphoric about what those 'cowboy journalists' did to Laxman and Jaitly, let them beware the consequences of their ultimate "success" with Major General Chowdhary & Co.

    What about the applicability of the Indian Penal Code, 1860?

    When the IPC was enacted it also provided for punishment for the offences of bribery and corruption among public servants. Consequent to the enactment of The Prevention of Corruption Act, however, the relevant offences were transferred to the new law. Thus, the words 'bribe' and 'corruption' do not figure in the prevalent IPC. The euphemism 'illegal gratification' appears there only in its Section 213 that deals with 'concealing an offence' and 'screening any person from legal punishment'. This section can hardly be applied to Laxman & Co or the army people 'caught' by Tehelka.

    However, Laloo Yadav believes that Laxman and Jaitly came through on the Tehelka tapes as desh-drohi -- 'traitors' who committed 'treason.' Well, neither of these two words is in the IPC. What we find there instead is the following list categorised as 'Offences Against The State.'

    1. Section 121. 'Waging or attempting to wage war or abetting waging of war against the Government of India.'
    2. Section 121A. 'Conspiracy to commit offences punishable by Section 121.'
    3. Section 122. 'Collecting arms, etc, with intention of waging war against the Government of India.'
    4. Section 123.'Concealing with intent to facilitate design to wage war'
    5. Section 124 'Assaulting President, Governor, etc, with intent to compel or restrain the exercise of any lawful power.'
    6. Section 124A. 'Sedition.'
    7. Section 125. 'Waging war against any Asiatic power in alliance with the Government of India.'
    8. Section 126. 'Committing depredation on territories of power at peace with the Government of India.'
    9. Section 127. 'Receiving property taken by war or depredation mentioned in section 125 and 126'
    10. Section 128. 'Public servant voluntarily allowing prisoner of State or war to escape'
    11. Section 129. 'Public servant negligently suffering such prisoner to escape.'
    12. Section 130. 'Aiding escape of, rescuing or harbouring such prisoner.'

    Would any of the above describe the deeds shown by Tehelka?

    Next, there are the following crimes listed at Section 131 to Section 138 and Section 140 as 'Offences Relating To the Army, Navy And Air Force', with Section 139 exempting the application of those offences to persons subjected to the relevant legislation of the army, navy and air force. The following are those offences --

    1. 'Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his 'duty
    2. 'Abetting of mutiny, if mutiny is committed in consequence thereof'
    3. 'Abetment of assault by soldier, sailor or airman on his superior officer, when in execution of his office.'
    4. 'Abetment of such assault, if the assault is committed'
    5. 'Abetment of desertion of soldier, sailor or airman'
    6. 'Harbouring of deserter'
    7. 'Deserter concealed on board merchant vessel through negligence of master'
    8. 'Abetment of act of insubordination by soldier, sailor or airman'
    9. 'Wearing garb or carrying token used by soldier, sailor or airman'

    Would Yadav & Co want any of the above to be slapped on Laxman & Co?

    What about subjecting those desh-drohis of Yadav to the IPC's Section 120A dealing with criminal conspiracy? That Section goes as follows:

    'When two or more persons agree to do, or cause to be done,--- 1. an illegal act, or 2. an act which is not illegal by illegal means, such an agreement is designated as a criminal conspiracy. Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.'

    Try to apply the above section to the revealed portions of Tehelka's interaction with Laxman and Jaitly, and you are confronted with the billion dollar question: Did Laxman or Jaitly at all agree to secure an arms contract illegally for the fake West End Co? Re-read the well-publicised transcripts of the Tehelka tapes and you are bound to say 'No' to the question. Incidentally, who was it that sought such an agreement? Who was it that committed an act in pursuance thereof? Tehelka, isn't it?

    Will some angel's or devil's advocate therefore enlighten the Indian nation on what alleged crimes the police should investigate after someone does file Sibal's FIRs against the army men and the civilians seen in the Tehelka affair?

    Till that enlightenment comes, it seems best for Laloo to keep his mouth shut, to let the Vekataswami commission of inquiry and the army court do their respective work, and to let our Parliament perform its own Constitutional functions without the Congress cacophony.

    Arvind Lavakare

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