Sunday, December 20, 2009

I had written this sometimes in 2000. Some of the characters are still around and some are dead and gone. But corruption is still alive....

A national consensus on corruption?

``Participation in political activities and public life as such began to be seen as a vocation soon after 1947. And hence a means to self-preservation. It is only natural then for the institutionalisation of corruption.'' - Thus spoke Mr. M. Kumaran, who gave up college education in August 1942 to join the Quit India struggle when asked what the cause for corruption across the country was.
JUSTICE JAGMOHAN LAL SINHA of the Allahabad High Court disqualified Indira Gandhi as member of the Lok Sabha because ``there is not an iota of doubt'' that the then Prime Minister had indulged in corrupt electoral practices. Besides allowing Yashpal Kapoor, a Government servant at that time, to organise her election campaign in Rae Bareli, Indira Gandhi was also found guilty of obtaining the assistance of the Executive Engineer of the Uttar Pradesh PWD and other gazetted officers to erect the rostrum from where she addressed two election meetings.
Memories of that fateful day - June 12, 1975 - when the verdict was delivered and the events during the next fortnight leading to the abrogation of democracy have been revived during the past few weeks. But then all the accounts reminding us of those dark days have said nothing about what could be described as the immediate spark that led to the Emergency: corruption.
Indeed, there were those among the middle class intelligentsia who held that ``corrupt practices'' as defined in the law and the interpretation by Justice Sinha were too trivial and even demanded that such laws be scrapped. However, the fight against corruption was already high on the nation's agenda and the youth in particular were not willing to be guided by Indira's apologists among the intelligentsia. Their determination to fight against the corrupt among the rulers, thanks to JP's call for a Total Revolution, led to a groundswell of opposition to Indira Gandhi. Twentyfive years later, during which time almost all those who played a role in the political theatre at that time had occasion to be in positions of power, the story of a Prime Minister being found guilty of corruption for getting the PWD to erect a rostrum and hence getting barred from contesting elections for six years sounds too good to be true.
After all, these are times when an official of the Enforcement Directorate (who was paid a salary and allowances to check corruption) had to be placed under suspension after it was found that he possessed enormous wealth; when wads of currency, jewellery and property title-deeds were found when the CBI raided the residence of a former Union Minister. The whole process was telecast and this worthy member of the political class did not even blink when claiming that he had earned all this wealth selling apples.
Then there have been instances of a former Chief Minister, who decided to forego even the legitimate salary she was entitled to draw from the exchequer and accepted only a token payment of Re. 1 every month, now being tried for possessing wealth running into crores; and of another former Chief Minister and his wife (now holding that post) earning Rs. 46 lakhs and acquiring immovable property worth several crores. He too drew only a token salary of Re. 1 since he became Chief Minister in 1990.
But then, why is it that the civil society - whose members found in Justice Sinha's verdict reason enough to demand that Indira Gandhi quit or whose members, the youth in particular, were willing to forego their studies for a while and even brave police bullets in the streets of Patna, Allahabad and Ahmedabad - is no longer concerned about corruption even after this monster has now grown so much? There is so much sleaze pouring out of the pores of the body politic that Indira Gandhi's corruption sounds trivial now and yet there is no ferment, not even a ripple.
The sense of helplessness as well as the insensitivity that marks the popular perception across the nation about corruption must necessarily be addressed now; and it is pertinent here to recall what JP had to say a few months before June 12, 1975: ``Collection of party funds, specially for elections is perhaps the largest source of political and other fields of corruption.... These funds are used mainly for Parliamentary and State elections, at which the dependable supporters of the leadership are favoured.'' He went on to add that ``these funds are also used for `managing' party members, buying up defectors and toppling not only Opposition Ministries but also Congress Ministries in the course of party-infighting.''
Prophetic words indeed; except that JP did not foresee that even those whom he had inspired to brave the police and the state machinery - those who could enter the political mainstream thanks to his ``demand'' before the stalwarts who forged the Janata Party that those who were part of his Nav-nirman Samithi be given importance - turned out to be willing participants in this corrupt scheme. Mr. Sharad Yadav, Mr. Laloo Prasad Yadav, Mr. Subodh Kant Sahay, to name a few, were all such young men blessed and handpicked by JP himself. It is common knowledge now where these ``illustrious'' youth of the struggle against corruption have ended up.
Despite the law banning corporate funding of political parties being in place (part of Indira Gandhi's rhetoric of 1969) few across the political spectrum, barring perhaps some of the Left- wing groups whose presence in the Parliamentary scheme of things is marginal, can claim to be free of the stranglehold of illegitimate funds, including ``commissions'' from industrial houses, public works contractors and underworld dons. JP's own creation, the Janata Party, was not free from this menace even while the Loknayak was around.
It was not just the party headquarters; local leaders of these parties too began to line their pockets a little after the dark days of the Emergency - mandated as they were to ``manage'' crowds for the various political programmes of the leaders. Political corruption of the kind JP lamented about spread horizontally, leading to the decentralisation of corruption.
And the next phase began somewhere in the early Eighties from when the party headquarters beginning to look out for funds from an entirely new source, an idea given shape by someone who gave up a ``promising'' career selling paint to ``work'' for the ``uplift'' of the masses. The Government's purchases of goods and services (defence equipment in particular) from manufacturers across the world, running into crores, were found to be a source of funds for the parties' operations, whose magnitude had gone up substantially by then. And this saved the ``managers'' at the party headquarters the bother of having to pressure the rank and file for money; after all they too were demanding a ``charge'' on the ``services'' rendered.
It is this feature of corruption - leaving the localised sources of funds to the rank and file while the headquarters could manage its affairs with large commissions on the Government's purchases from the global market - that is beginning to erode the democratic fabric. For in such a scheme, it is not just the khadi-clad politician who is involved; instead, we find the suave safari-clad bureaucrat, the industrious manager of the ``private sector'' drawn invariably from the middle classes - the bent and the beautiful - often playing the role of facilitator and making a few hundred thousands in the process for him/herself.
And as for the charges of corruption raised by political parties - the Samata party in Bihar, the Congress(I) in Andhra Pradesh and Gujarat, the BJP in Madhya Pradesh and Rajasthan or any one of the regional parties in Tamil Nadu - the anguish seems to be more because of their not being able to lay their hands on the pie. And thus expressions within the political class against corruption in high places fail to evoke any sense of anger or moral outrage as was witnessed when Justice Sinha disqualified Indira Gandhi some 25 years ago for corrupt poll practices.
In other words, the man on the street has nowhere to go and virtually no one whom he can trust among the political classes any longer. And this indeed is the spirit of Mr. Kumaran's observation.
The 'burden' of proof
STORIES ABOUT members of the ruling elite possessing wealth enough for generations to come in their families to lead a ``happy and contented'' life are no longer a secret. The nation is well aware that these are corrupt practices without ``an iota of doubt'' to repeat Justice Sinha's observations of June 12, 1975. But despite this, no serious observer of the Indian political scene can rest assured that all these cases will end up in conviction of the accused - the multi-crore Jain hawala scam is a typical example. Justice Sinha's verdict now seems an aberration.
Take for instance Mr. Sharad Yadav, one among the several accused in the Jain Hawala scandal. He ``confessed'' before television cameras that he had taken money from one Jain on a particular day; the only point of dispute was the amount. Mr. Yadav claimed at that time that the sum was Rs. 3 lakhs, whereas the entry in the infamous Jain diaries had Rs. 5 lakhs against his name. Mr. Yadav also gave a break-up of how this money was spent; he had disbursed the Rs. 3 lakhs to a handful of his own men who were candidates of the Janata Dal in the 1989 elections.
It so happened that this Mr. Jain's kin were awarded industrial licenses by the Ministry of Textiles and Food processing during the 11 months when Mr. Yadav was presiding over it. Is there any way a quid pro quo can be established here? Unless and until the prosecution submits proof that the grant of licences was in return for the Rs. 3 lakhs, there is no case of corruption here.
This basic premise of the law on corruption led to the courts dismissing the entire Jain hawala scandal, involving crores and players from all walks of the polity - politicians, criminals, businessmen and bureacrats - on grounds that the CBI failed to establish the nexus between the launderer of funds and the taker in terms of any quid pro quo.
Much worse was to follow. Mr. Yadav was discharged from the case on the grounds that his `brave declaration' before TV cameras, which he maintained was reflective of his commitment to principles and value-based politics, did not fit into the definition of ``confessions'' as provided for in the Indian Evidence Act. The Court was right. But then, how is it that it did not occur to the CBI to get Mr. Yadav to repeat what he said before the TV cameras before a Magistrate. This would have ensured a verdict declaring Mr. Yadav, a public servant, guilty of corruption.
Is it at all possible to ``establish'' the nexus between acts of giving money to a political leader and contracts awarded?

Friday, December 18, 2009

Dinakaran is Making a Virtue out of a Reality

It is now a habit, for those in positions of power, to make a virtue out of a necessity. We are used to seeing politicos, when arrested for or charged with corruption that they believe in the law and that they will face the due process of law. The point is that they hardly have a choice because the due process of law taking its course is not a matter of choice. In the constitutional scheme of things, a citizen has to submit himself to the due process of law.

The recent case in this context is that of Justice P.D.Dinakaran. He had the choice, in the past three months or so, to convey to the Chief Justice of India, Justice K.G.Balakrishnan to not give him any judicial work until the charges against him were either proved or disproved. Justice Dinakaran could have done this the morning after charges against him of encroachment of public land in Kaverirajapuram were conveyed to the collegium of the Supreme Court. He did not do that.

Instead, the learned Chief Justice of the Karnataka High Court simply denied all that was said about him. It did not matter to the judge that the charges against him were not merely verbal slander but based on documentary evidence. A section of the Madras High Court Bar had put together documents obtained from the Revenue department to establish that the judge had encroached upon public land and fenced all of that along with his own property. The documents revealed, prima facie, that the judge had violated provisions of the Land Ceiling Act.

Such violations by any citizen is actionable and in the event such actions are not taken by the Revenue authorities, a citizen has the right to approach the higher judiciary seeking a writ to act against the person guilty of violation. Well. This was a case of a member of that higher judiciary violating the law. And he was even waiting to be elevated to the Bench in the Supreme Court! That was when the petition detailing his acts of arrogance and illegality was submitted to the collegium.

Dinakaran stayed on in the denial mode. And this he did even after the District Collector of Tiruvellur reported to the collegium that the charges against Dinakaran are true. That the Hon’ble Chief Justice of the Karnataka High Court did encroach as many as 197 acres of public land. It was also confirmed by now that the learned judge owned more land in his own name (and more than what is allowed by the Land Ceiling Act) and also property in Chennai city. For some reason, the judge decided to disregard the Collector’s report. It is strange because the established norm and the law is that the District Collector is the absolute authority when it comes to attesting land related documents.

Dinakaran did not say, anytime in these days, that he would stay away from judicial work. He insisted on sitting in the court, preside over the first bench of the Karnataka High Court, even while the advocates in the Bangalore Bar insisted that he stay away from doing judicial work. The Bar Association even went on a strike and Dinakaran insisted that he presided over the Bench. He was sitting in court everyday and shuttling between Delhi and Bangalore to meet the Chief Justice of India, K.G.Balakrishnan. He even managed to defend himself by way of speaking to the media.

All the while, Dinakaran had opportunities to say that he will not sit on judgment until the charges against him were cleared. Dinakaran himself had up-held and rightly so, in his capacity as judge for several years, that it is proper and appropriate to place an officer charged of some guilt under suspension during the period of enquiry. That is the law of the land. And there is no way that such suspensions can be called into question.

This is now the reality. An impeachment motion has been moved against Justice Dinakaran by as many as 75 members of the Rajya Sabha. The required norm is that at least 50 MPs of the Rajya Sabha or 100 of the Lok Sabha can sign and move a motion. Once done, the Chairman of the Rajya Sabha (Hamid Ansari in this case) will necessarily have to set the ball rolling and seek the Chief Justice of India to appoint a sitting High Court Judge along with a former judge and a jurist of repute to form a committee that must investigate into the charges. Once and only if the committee finds substance in any of the charges, the next stage will be that the motion is put to vote before the Rajya Sabha in this case and if passed by a majority, it will be placed before the Lok Sabha.

And it is the law, in this context, that the judge under enquiry is kept away from discharging justice. Justice P.D.Dinakaran has now no other choice than to stay away from judicial work. And it is a shame that he too has played the drama by conveying it to the media that he has decided to stay away from judicial work. The sadder part of the story is that the media too has reported as if Dinakaran did this out of his own volition. Sorry. He did not have a choice.

Wednesday, December 02, 2009

Bhopal... 25 years have gone and.....

It is 25 years now after one of the worst incidents of manslaughter in independent India. I am not referring here to the murder of Sikhs by the Congress-led gangs in Delhi and elsewhere. It remains a blot on our experience with the rule of the law. But then, I am now referring to the killing of at least fifteen thousand people (the Government of India’s figures have confirmed 15,250 as the number of dead) during the week after December 3 1984, when the poisonous gas began to leak in the Union Carbide plant in Bhopal. It is also a fact that over one lakh people began suffering from respiratory diseases and children born afterwards in that city had congenital diseases diagnosed as due to their parents inhaling the toxins.

All that has happened since then in the quarter of a century are: (1) The plant was shut down; (2) Some money, drawn from the US multinational corporation as compensation to the victims as part of an unfair barter between the Government of India and the company brokered by the Supreme Court has been disbursed to some of the victims. Well that is not all. It is also important to note here that ever since that dark winter morning, when the plant shut down, tonnes of deadly and toxic chemicals were allowed to remain inside the premises, to sink under the soil over the years and contaminate the ground water in as far as a three kilometer distance from where the rusty plant stands now.

In the meanwhile, Union Carbide Corporation sold out its interests in Bhopal including the machines, the chemicals lying in the sumps and elsewhere in the premises and all else to another American corporation called Dow Chemicals. Dow Chemicals bought over Union Carbide in 1999; incidentally, has the operations hub in India located in our own State: It is in one of those swanky buildings in the Guindy region in Chennai. But then, Dow Chemicals, even while admitting that it has purchased all that belonged t Union Carbide Corporation, insists that it will not spend money cleaning up the place in Bhopal. Dow has been maintaining that all the liabilities, in the context of the 1984 disaster have been settled by Union Carbide by way of paying some 470 million dollors being the settlement brokered by the Spreme Court in 1989.

The point I want to make here is that it is a settled law in India as well as the world over that the buyer of an asset also buys up the liability and in this case, Dow Chemicals is bound by law to clean up the mess created by Union Carbide in Bhopal some 25 years ago. For reasons best known to them, the ministers in the successive governments in Delhi since 1999 (that includes the BJP and the Congress) have not been insisting that Dow chemicals act according to settled law. In any case, it is pertinent to state here that Abhishek Manu Singhvi, a vocal face of the ruling Congress, happens to be Dow’s counsel in the Indian courts!

Meanwhile, the New Delhi based Centre for Science and Environment had conducted a study in the recent months in Bhopal. Scientists and activists from the Centre, had gone around the city collecting samples of the ground water there, testing them in laboratories and found huge traces of some such dangerous toxins as mercury, chlorinated benzene compounds and organochlorine. Now, these are metallic toxins that are present in huge quantities in the ground water from even as far as 3 kilometres from where the plant stands and the only reason why they are found is that these toxins, stored in the Bhopal plant over the years since December 1984 have sunk into the ground and mixed with the water in the city.

It is common knowledge that those poor people who consume this water (and they cannot afford to buy water from one of those kinds like Pepsi or Coke) will end up with health problems that are, in fact, a consequence of the 1984 disaster. But then, Dow would argue, through Abhishek Manu Singhvi and other such famous lawyers that they have nothing to do and hence will not entertain compensation claims from these poor people. The CSE’s Sunita Narain, makes a point. That the poisoning that takes place in the present is as dangerous as that happened in December 1984. And if someone there thinks that it is Sunita Narain and an NGO that is making these charges, it is important to point out that studies by the Pollution Control Board in Bhopal have revealed similar results.

The fact is that the Union Carbide handed over the factory to the Government of India in July 1998 (about a year before it was sold to Dow Chemicals) with 8,000 tonnes of toxic effluent and 10,000 tonnes of toxic silt in ponds. And most of these must have sunk deep into the soil contaminating the ground and the water around the place. It is also important to recall that a former Union Carbide employee T R Chouhan had told a US court that between 1969 and 1984, the factory had dumped over 1,900 tonne of chemicals in and around the factory. Another 390 tonne of toxic waste, which was the raw components for the pesticide, has been packed and kept for disposal.

This is a truth that we cannot gloss over now and the sad comment is that none, who have been in power, those in the opposition parties and all those who could have done something to clean up the place had bothered to do that in all these years. It is just another instance that shows the democratic establishment as a sham.