Sunday, 31 May 2020

Bofors Shoots the System

Updated: January 22, 2011 2:50 pm

After 23 years the Bofors scam returns with a bang. The Income-Tax Appellate Tribunal has affirmed that bribes were paid in the Bofors deal to Win Chaddha and Ottavio Quattrocchi and therefore tax was due from them. The Tribunal reached its conclusion on the basis of the CBI’s own investigation documents and from foreign sources including the Swedish government’s Audit Department. The Tribunal findings were released one day before the CBI sought the closure of the Bofors case in court. The timing was deadly. New lethal ammunition has been provided in the ongoing war of words between political parties. But for the moment let us ignore the inside story of political infighting and intra-party collusion under way.

                Something much bigger than the fortunes of a government or the prospects of the opposition is affected by these findings. This event has shot India’s political system. One branch of the government exonerates the Bofors deal. Another branch of the government nails it. The fact that during the last 23 years while the deal was being probed different parties governed the nation is irrelevant. It is not one party but one political class that is on trial. It is not just governance but the political system that has failed. Let us understand why.

                On June 14, 1987 President Zail Singh was petitioned for permission to prosecute Prime Minister Rajiv Gandhi under sections 120 (B), 161 and 165 of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act ‘ all these sections read with section 109 of Indian Penal Code’. The government’s FIR registered in the Bofors case on January 22, 1990 cited precisely these same sections. The petition was based upon India’s ambassador to Sweden, Mr. Bhupat Ozha’s communication to the government confirming that “while payments had indeed been made in connection with the Bofors deal, they were not made for the ‘winning of the contract’”. Prime Minister Rajiv Gandhi held the Defence portfolio. After he received the ambassador’s communication he misled parliament to deny that payments were made. It was this information that sustained the petition presented to President Zail Singh. The President was ill advised and ill served by aides who were more loyal to the PM than to him. He had little understanding of his constitutional rights and obligations. He rejected the petition. Years after retirement he confessed to this scribe that he had erred by rejecting it.

                The CBI probe was adequate. But prosecution was thwarted by the government’s interference. Thereby nobody was convicted. Quattrocchi was allowed to escape from the country before he could be questioned. He could not be extradited. His frozen bank accounts in London were allowed to be withdrawn. On the government’s advice he was taken off Interpol’s wanted list. And the government sought closure of the Bofors case. Now it transpires that a wing of the government has categorically stated that Quattrocchi was guilty and bribes were exchanged in the deal. This rubbishes the quality of governance administered to the nation for the past two decades. How did this bizarre episode occur? It became possible because our system has failed. It needs reform.

                The tsunami of corruption that is drowning the nation has compelled a desperate government to seek reform. New ordinances are being drafted and new laws being contemplated. The courts might be made to deliver time bound justice. Though the measures contemplated are overdue such haphazard tinkering with the prevalent system will not suffice. The system needs basic and sweeping reform. One takes the liberty of recalling what appeared in these columns on February 18, 2010:

                “However, the prevailing system by which clearance from the government is required before the CBI may launch investigation or prosecution is grotesque…. For impartial and effective investigation the CBI cannot function under the very government that may be under investigation. Neither can it function under the Supreme Court as the Jain Hawala case experience painfully revealed. What then is the solution? The solution is obvious. The CBI should be converted into a Constitutional body that is accountable to the President. That however would open the door to the exercise of powers explicitly conferred on the President by our written Constitution. These powers are never invoked. If that were done the President’s role would become more executive notwithstanding Article 74 of the Constitution which provides for a ‘… council of ministers to aid and advise the President who shall, in exercise of his functions, act in accordance with such advice’. As Wikepedia in its commentary points out: ‘However, the Article 74(2) bars all courts completely from assuming even an existence of such an advice. Therefore from the courts’ point of view, the real executive power lies with the President. As far as President’s decision and action are concerned no one can challenge such decision or action on the ground that it is not in accordance with the advice tendered by the Ministers or that it is based on no advice.’ Thus the President…could exercise authority over the CBI without violating separation of power.”

                There is among our thinking class great resistance to a basic reappraisal, based upon reinterpretation, of our Constitution. If that were done our system could change without disturbing the basic structure of our Constitution. Without the President exercising the Constitutional role conferred upon the office India will never get adequate governance. Today India is reeling from body blows inflicted by corrupt elite exploiting inadequate governance resulting from flawed political system created by a misinterpreted written Constitution. If India does not seek early and basic reform, democracy could perish.

By Rajinder Puri

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