TheOped
✵ THURSDAY, JANUARY 6 | 2011 | CHENNAI
C V Narasimhan
T
HE Supreme Court made a his-
toric order on December 16 tak-
ing over the superintendence of
the 2G Spectrum scam probe now
being conducted by the Central
Bureau of Investigation (CBI),
and also widening the scope of its investiga-
tion to cover the grant of licences from 2001
itself. Presently this order has to some extent
softened the edge of the escalating raucous
confrontation between the government and
the Opposition in Parliament on the question
whether the probe should be done by a Joint
Parliamentary Committee (JPC) or the Public
Accounts Committee (PAC). While the Su-
preme Court’s order may be seen as a welcome
relief to the blocked Parliament, this unique
arrangement for the Supreme Court itself to
monitor the CBI investigation, even as it pro-
ceeds on the ground, raises several basic pro-
cedural issues which, if not resolved right
now, might make the course of investigation
get lost in the ‘dreary desert sands’ of legal
battles, ultimately prejudicing the successful
prosecution, trial and conviction of the mafia
who had deliberately planned and diaboli-
cally perpetrated this monstrous fraud on the
nation. Some of the issues are highlighted
here.
The prime objective of the entire exer-
1 cise is to prosecute all the conspiring
criminals and get them convicted with
exemplary punishments in criminal courts.
It is not just to examine the rightness or
wrongness of policies adopted by the govern-
ment at different times. Policy determination
is the prerogative of the government, but if
gross criminal acts get committed while im-
plementing the policy, the personnel con-
cerned have to be hauled up before the court
and got punished.
Inquiry bodies like the Chagla Com-
2 mission, Sarkaria Commission, JPCs,
PACs which had gone into some scan-
dals in the past could only make a basic fact-
finding survey of the scenario of the alleged
misconduct and give a report which had to
be followed up by a regular investigation by
the CBI or other authorised agencies to take
the matter ultimately to court. The commis-
sions and JPCs did not, and could not, di-
rectly take the matter to court. Our criminal
justice system does not provide for it. All ma-
jor criminal acts require a full-fledged inves-
tigation under the Criminal Procedure Code
(CrPC) for the accused to be tried in a court.
Further, a JPC or PAC is a multi-member
body and cannot possibly interrogate indi-
vidual witnesses in detail as envisaged in the
CrPC. Their record of examination of wit-
nesses will be insufficient to put the matter
before court, without a further regular inves-
tigation by an authorised agency.
Ambassador to Libya returns to US following leaked cable
Warren P Strobel
IN what appears to be the first diplomatic ca-
sualty from the latest WikiLeaks revelations,
the US ambassador to Libya has returned to
Washington and is likely to leave his post, US
officials said recently.
Ambassador Gene Cretz, a veteran Amer-
ican diplomat, authored several secret cables
to Washington that speculated on longtime
Libyan leader Moammar Gadhafi’s health,
and described his personal proclivities, in-
cluding his reliance on a “voluptuous”
Ukrainian nurse.
The documents are among about 2,000 that
have been publicly released from a cache of
more than 2,50,000 State Department cables
obtained by WikiLeaks.
While the Libyan government has not com-
mented publicly on them, the leaked cables
can only have complicated Cretz’s task in deal-
ing with the notoriously prickly regime in
11
3
Having regard to the wide sweep of the
criminal activities including the sus-
pected massive outflow and inflow of
illegally held money, witnesses will have to
be examined in great detail and all the con-
nected documents with supporting evidence
must be identified and quickly secured by
organising searches in the field, along with
arrest of suspects wherever called for. Such
detailed examination of each witness along-
side field work of conducting searches and
making arrests cannot possibly be done di-
rectly by a JPC or a commission transacting
its business more like a court than a field of-
ficer. This is best done by a professional agen-
cy like the CBI.
Two years of investigative journalism
4 in the media have already brought to
light considerable evidence delineating
the criminal handling of the Spectrum issue
to benefit private parties at a huge cost to the
national exchequer. The matter is now ripe
for regular investigation under the CrPC to
bring the criminals to book. Involving the JPC
or PAC in this matter at this stage would need-
lessly delay the criminal proceedings which
are overdue. Keeping in view the urgency of
criminal prosecution to protect national in-
terests, I would make a plea to the government
and the Opposition to give up their rigid stand
on the JPC/PAC issue, and allow the criminal
process to go forward immediately.
Investigation of this mega scam calls
5 for professional competence and com-
mitment of the highest order. The
criminal misconduct involved in the scam has
linkages with several forms of crime covered
by different laws like Prevention of Corrup-
tion Act, Indian Penal Code, Foreign Exchange
Regulations and Income Tax Acts. Presently
the CBI, Enforcement Directorate and Income
Tax Department are separately investigating
the offences relating to their respective do-
main. It is most likely that some important
witnesses and documents come up as common
to all the three agencies. While the CBI, as a
police agency, is precluded from recording
signed statements of witnesses, and the con-
fessions made to the CBI may only aid the
investigation but will not be admissible as
evidence, the Enforcement Directorate and
the Income Tax Department have no such le-
gal restraint. They can record signed state-
ments which can be used as evidence in their
proceedings. Multiplicity of statements from
common witnesses recorded by the three
agencies with different rules of evidentiary
admissibility will throw up numerous legal
points for debate in courts. It will be a para-
dise for defence lawyers to protract proceed-
ings on these issues and interminably delay
the trial. During this long period the accused
are most likely to be on bail and free all the
time to draw all the pecuniary benefits from
their vast benami holdings within the country
Tripoli, which the mercurial Gadhafi has
ruled since a 1969 military coup.
A senior State Department official said that
the WikiLeaks revelations were not the only
reason for Cretz’s return, noting the frustra-
tions of US-Libyan ties.
“It’s a complicated relationship, and
WikiLeaks just added to that complication,”
said the official, who requested anonymity
because no announcement has been made on
Cretz’s status.
State Department spokesman P J Crowley
told reporters that Cretz had returned to
Washington for consultations. “One of the is-
sues to be discussed will be, you know, when
he goes back,” Crowley said.
Current and former American officials have
bemoaned the WikiLeaks disclosures’ poten-
tial impact on Washington’s foreign policy.
Sources are less likely to approach American
diplomats with sensitive information if there
is a risk it will end up in the public domain,
and in tax havens abroad acquired by this
fraud. Such a scenario will not at all be in
national interest. It is therefore most impor-
tant that the investigations by the three agen-
cies are closely coordinated and performed
as a team job, with the chief CBI investigator
as the team leader, with due access to all the
evidence collected by the other agencies. This
procedural arrangement may be put in place
by an appropriate order of the Supreme Court
to be sought by the CBI and obtained at the
next hearing slated on February 10. Detailed
statements of common witnesses may be re-
corded by the CBI in the first instance and
made use of later by the other agencies under
the existing provisions in law for their respec-
tive departmental proceedings. The priority
in all this exercise will be given to the pros-
ecution of the criminals in court for their
criminal misconduct.
Detailed examination of each
witness alongside field work of
conducting searches and making
arrests cannot possibly be done
directly by the commission
transacting its business more
like a court than a field officer.
This is best done by a
professional agency like the CBI
6
A lot of benami transactions in money
and other property are most likely to be
exposed by the unfolding evidence in
this case as the investigation proceeds. In 1988
the central government had enacted The Be-
nami Transactions (Prohibition) Act as a ma-
jor anti-corruption measure to put down all
such dealings linked with corruption and ill-
gotten money. It is distressing and frustrating
to note now that this law practically remains
a dead letter even after 22 years of enactment,
since the rules under the Act have not yet been
framed and notified! It is horrendous indiffer-
ence on the part of the Union ministry con-
cerned to have made this important anti-cor-
ruption measure ineffective right from the
start. This should be set right immediately by
framing and notifying the rules for the afore-
said Act so that the CBI may in the instant
case freeze all the benami holdings of the ac-
cused and proceed further for their confisca-
tion or disposal otherwise under the law.
Under the provisions of the Delhi Spe-
7 cial Police Establishment Act, 1946 su-
perintendence over investigations done
by the CBI in respect of offences under the
Prevention of Corruption Act vests with the
Central Vigilance Commission, but the cen-
tral government continues to have its super-
they say.
Already, there are anecdotal reports that
foreign leaders have circumscribed meetings
with United States envoys, insisting in some
cases that note-takers or other American staff
be excluded.
“Obviously, this has been a difficult period
for a lot of US diplomats,” said David Mack,
a retired State Department official who served
in Libya and traveled there recently, where he
was told the storm from Cretz’s leaked reports
would blow over.
US ambassadors and other diplomats are
expected to report frankly on political and
social conditions in the countries where they
are posted, including on such sensitive mat-
ters as the health and personal habits of lead-
ers. But until WikiLeaks, those cables didn’t
become public until decades later, if at all.
Cretz, who in November 2008 became the
first US ambassador to Libya since 1972, did
just that.
The UPA government and
Opposition should give up their
rigid stand on the JPC/PAC issue
and allow the criminal process to
go forward immediately
Let the
probe
continue
intending powers over the CBI in respect of
other offences and all other administrative
matters. This legal status gives scope for the
central government to ask the CBI to report
to it periodically the progress of investigation
into various other serious economic offences
arising from the scam. This would bring some
details of the connected evidence within the
knowledge of the ministry dealing with the
CBI and other agencies. This information may
therefrom reach other interested sources also.
This possibility of ‘leakage’ of evidence in
advance to outside sources carries the obvious
scope for tampering with other supporting
evidence which the CBI might be looking for.
This would seriously prejudice the fair course
of investigation by the CBI. It is most neces-
sary to protect the CBI from such vulnerabil-
ity. In the present case the protection can be
got by an appropriate order to be sought from
the Supreme Court which would keep the cen-
tral government’s superintendence away from
the CBI in respect of all its investigative work
in the instant case.
Stakes in this case are very high. The
8 accused, when pushed to the wall, may
be expected to retaliate with counter-
action with no holds barred. In this context,
the security of crucial documents and im-
portant witnesses needs special attention.
The central government, in consultation
with the CBI, should put in place unobtru-
sive but effective protective arrangements
for this purpose.
From the press reports about the pro-
9 ceedings in Supreme Court on Decem-
ber 16 it appears that the court would
be ‘monitoring’ the investigation of this case
by obtaining ‘status reports’ from the CBI,
Enforcement Directorate and Income Tax De-
partment about their respective investiga-
tions from time to time. Such submission of
mere status reports in the open court would
hardly serve the purpose of monitoring re-
quired in this case. The status reports would
only indicate the quantum of investigation
done and not its quality. It is the quality that
has to be effectively assessed even as the in-
vestigation proceeds in the field.
The monitoring work envisaged by the
10 Supreme Court actually requires dis-
cussion meetings of the monitoring
body with the investigating team leader across
the table when details of oral and documen-
tary evidence could be scrutinised to ensure
that all the leads emanating from the evidence
have been effectively followed up by field ac-
tion. Such discussion meetings cannot pos-
sibly be visualised in the solemn, judicial and
majestic ambience of the Supreme Court Hall
itself. Having regard to the practical require-
ments of this important and unique case, I
would humbly suggest that this monitoring
work may be got done by the Supreme Court
In a leaked September 2009 cable, entitled
“A Glimpse Into Libyan Leader Gadhafi’s Ec-
centricities,” the ambassador wrote that
“Gadhafi relies heavily on his longtime Ukrai-
nian nurse, Galyna ... who has been described
as a ‘voluptuous blonde.’”
“He also appears to have an intense dislike
or fear of staying on upper floors, reportedly
prefers not to fly over water, and seems to en-
joy horse racing and flamenco dancing,” re-
ported the cable, written as the Libyan leader
prepared to travel to New York for the annual
UN General Assembly.
Gadhafi “has been described as both mercu-
rial and eccentric, and our recent firsthand
experiences with him and his office, primar-
ily in preparation for his UNGA trip, demon-
strated the truth of both characterisations,”
Cretz wrote.
Another cable, written three months ear-
lier, reported that rumours of Gadhafi’s suf-
fering from cancer were “unreliable,” but that
THE NEW INDIAN EXPRESS
through a three-member panel to be consti-
tuted by the court for this purpose. The panel
may be headed by a retired high court judge
of unimpeachable reputation as the chair-
man, and a retired director/ joint director of
the CBI and a retired public prosecutor from
a state, known for their impeccable integrity
and professional commitment, as members.
This monitoring panel can check the progress
of investigation in detail as indicated supra
and keep the Supreme Court informed of the
status of investigation at intervals. This
ground arrangement may be brought into
place by making appropriate submissions to
the Supreme Court at the next hearing in Feb-
ruary and persuading them to constitute the
panel for this purpose.
11
The ground arrangement proposed
above will insulate this historic inves-
tigation from political and other ex-
traneous interference of any kind, and at the
same time ensure its professional thorough-
ness which can expose the whole truth behind
the scam.
12
The Centre for Public Interest Litiga-
tion, which is a party to the proceed-
ings before the Supreme Court, may
apprise the court of different aspects of the
matter as detailed supra and request the court
to pass appropriate orders to put in place the
necessary working arrangements for effective
investigation of this important case.
13
The monstrosity and magnitude of
crimes committed in this case by per-
sons holding public office call for spe-
cial statutory arrangements for investigation/
prosecution/trial to achieve the desired deter-
ment on future offenders across the nation.
The criminal justice process for this purpose
has to be specially crafted, moving away from
the archaic confines and concepts of the pres-
ent system which is a legacy of the old British
regime. Some states like Maharashtra have
enacted special procedural laws to deal with
locally organised crimes which seriously im-
pinge on public order. It is opportune for the
central government to legislate a special law
titled ‘The Criminal Misconduct of Public Men
(Prevention, Investigation, Prosecution and
Trial) Act’ which will spell out the punishable
offences on the lines in the Prevention of Cor-
ruption Act, the procedure for investigation,
the admissibility of confessional statements,
and the recording of signed statements of wit-
nesses and so on. ‘Public Men’ may be defined
to include the central and state ministers and
the MPs/MLAs. Legislation of this new law
in Parliament may be taken up straightaway
and completed quickly so that the present
scam case on completion of its detailed inves-
tigation, hopefully in the next nine months or
so, may be tried under the new law.
(The writer is a former director of the
Central Bureau of Investigation)
the leader had hypertension and was a bor-
derline diabetic.
“Gadhafi was described as ‘a hypochon-
driac,’ who insisted that all examinations and
procedures be filmed and then spent hours
reviewing them with physicians whom he
trusted,” the ambassador reported.
A series of cables from the US embassy in
Tripoli described a dramatic standoff over
the fate of Libya’s 11.4 pounds of highly en-
riched uranium, which can be used to fuel
nuclear weapons. Shipment of the material
out of Libya for disposal in Russia was halted
at the last minute.
Cretz, a native of Albany, New York, served
in numerous Middle East and South Asia post-
ings, including India, Pakistan, Syria, Egypt
and Israel, where he was the deputy chief of
mission from 2004 to 2007, according to his
State Department biography. He speaks Dari,
Urdu, Arabic and Chinese.
© McClatchy-Tribune