The Expendables

THE DELHI REPORTERS who cover the Supreme Court are not accustomed to the rapid pace of live news: usually, they wait for the hearings to finish, stroll out of the courtroom, chat with the advocates, and slouch off to file. But on 8 May, the proceedings before the bench were too sensational for any time-lag. The room was packed, and some of the legal reporters came with their own support staff. Mobile phones are not allowed inside the court, so front-benchers taking notes passed chits containing newsflash-worthy quotes to colleagues at the rear, who scurried out to message instant updates back to their newsrooms.

Not everyone in the court that day knew the names of the lawyers, or even the justices, but those details were beside the point; all they had to do was parrot the Court’s words to the public. And so they did: by the end of the day, seemingly all of India (or that portion of it within earshot of a television) knew that the Court had derisively likened the Central Bureau of Investigation (CBI) to a “caged parrot”.

The impetus for this observation was an affidavit that the CBI director, Ranjit Sinha, had been compelled to file before the Court, detailing with whom and for what reason he had shared the draft status reports in the agency’s ongoing investigation of the coal allocation scandal.

In the affidavit, Sinha revealed details of the meetings held between the law minister, Ashwani Kumar, additional solicitor general Harin Raval (who was representing the CBI), and attorney general Goolam Vahanvati on 6 March, which took place in the law minister’s office and at the attorney general’s residence. Sinha’s affidavit also described two meetings with Shatrughna Singh, a joint secretary in the Prime Minister’s Office (PMO), and Ajay K Bhalla, a joint secretary in the coal ministry.

Minor changes to the status reports had been suggested by everyone mentioned, Sinha wrote, adding that it was difficult to attribute each change to a particular person. But he listed a few “significant” amendments by Kumar, Singh and Bhalla. Neither the original CBI reports nor the edited versions have been made public, but Sinha’s affidavit shows that the changes, though subtle, were calculated to stunt the scope of the investigation. This, the Court remarked later that day, had “changed the heart” of the reports.

The Court had asked Sinha to produce an affidavit precisely because it suspected such manipulation on the part of the executive. In an earlier hearing, on 12 March, the bench inquired, point blank, if anybody from the political executive had seen the report. Both Vahanvati and Raval denied it, and did not disclose to the Court that the reports had indeed been shared with the executive, nor that several interested parties had modified them. When a series of news reports in April showed these statements to be false, the Court demanded that Sinha record his own account in writing.

At the hearing on 8 May, Justice RM Lodha, heading the three-judge bench, was evidently flummoxed by the deception. After reminding Vahanvati that he had failed to inform the Court of all the facts known to him, Lodha noted that “a state functionary should not lie” to the Court. And yet, he pointed out, in the past 15 years the Court has increasingly had to ask that such affidavits be filed, as it could no longer trust the honesty of oral submissions before the bench. For the length of Lodha’s two-hour pronouncement, lawyers representing the government and the CBI listened to his obliquely worded attack on the degraded integrity of their institutions, wearing the guilty expressions of admonished schoolboys.

For all that, the Court issued no significant strictures. Politicians and talking heads called the Court’s remarks a damaging indictment for Manmohan Singh and the CBI. But while the Court came down heavily on the agency in its observations, they should be a source of shame for the other parties involved as well. When the bench orders that the government’s law officers should no longer be permitted to see status reports from the country’s top investigative body, it is a rebuke to those law officers, and a sign that the Court no longer believes they function independently of the executive.

This belief is reinforced by the CBI’s decision to be represented in the case by UU Lalit, a senior advocate, rather than an additional solicitor general, and by the government’s decision to retain Tehmtan Andhyarujina, another senior advocate, to assist the attorney general. The unavoidable impression is that the law officers—the attorney general, solicitor general and additional solicitors general—can no longer be trusted to properly represent their clients, and that the already shallow reserve of respect for these offices may now be empty.

We are well within our rights to ask: just what were the law officers doing by going through those status reports? These reports, a lawyer who has worked with the CBI told me, are essentially summaries of diaries maintained by the investigating officers. While lawyers representing the CBI examine the reports prior to hearings to understand the facts of a given case, he said, there could be no reason to participate in editing or amending them; they do not require any legal input. “The notion that the law is involved” in the preparation of these reports, he said, “is false. There is no role for a lawyer.”

As details of the subterfuge emerged in recent months, the outcry from the opposition parties and sections of the media grew louder and more insistent. But placating them was always going to be a difficult task; the offices involved—those of the attorney general, the law minister and the prime minister—were among the highest in the land. The most beneficial sacrifice that seemed possible was of the smallest player in the game. Raval duly resigned, but not before he had written a letter to expressing his “pain and anguish” that he was to be made a “scapegoat” even though it was Vahanvati who had lied to the court.

Why, then, did Raval, as CBI counsel, agree to a meeting if Vahanvati called him to the law minister’s office, as he alleged in his letter? Why did Vahanvati go to the law minister’s office when Kumar called him, as he, Vahanvati, told the court? There is no explanation for why he agreed to meet CBI investigators and go through the reports at Kumar’s behest, just as it remains unclear why Ranjit Sinha agreed to take the status reports to Kumar when summoned. But Sinha has now declared that his agency is too subservient to its political masters, and Kumar has demitted his office, although without making an admission of guilt. It is not currently known if Kumar called the meeting simply to volunteer unsolicited legal or grammatical advice to the CBI.

A further question arises. Was Kumar following instructions? The Court cautiously deferred to the next hearing the question of whether the law allows a minister or other executive officials to be given details of CBI investigations in which they may be implicated. Delicate mention was made of the fact that all the parties involved seemed to be interested only in the status report pertaining to the period from 2006 to 2009, when Manmohan Singh served as coal minister. (Singh, it was reported in late April, had asked his law officers if it was possible that he might be made an accused in the case, which suggests that the investigation may be getting too hot for him.)

Prashant Bhushan, the lawyer and Aam Aadmi Party leader who represents the original petitioner in the case (which began as a public interest litigation demanding that the CBI investigate the coal allocation scandal), requested that the bench ask the bureaucrats from the PMO and coal ministry to produce affidavits specifying on whose behest they had twice visited the CBI investigator’s office to request changes to the reports. Though the Court’s inquiries had all along been inching toward this question, it demurred, suggesting the issue could be taken up later if required.

This struck a curiously modulated note on a day of otherwise high drama. Earlier, Vahanvati—who was appearing for the Union but looked to be mostly defending himself—had shouted across the courtroom that he was being subjected to a “trial by media” at the hands of Bhushan. “We are damned at every stage,” Vahanvati announced. But every time the attorney general denied that he had played a role in revising the status report, or said that he had no interest in seeing such reports in the future, the courtroom murmured with sceptical laughter. (A few days earlier, a Supreme Court advocate launched a signature campaign to force a meeting of the Supreme Court Bar Association to censure Vahanvati. Little may come of this, but it was yet another blow to the tattered reputation of the government’s top law officer.)

The day after the hearing, Kumar reportedly told his colleagues in a cabinet meeting that though Vahanvati had shifted all blame to Kumar in court, it was actually Vahanvati who had called the fated meeting in order to interfere with the reports. It is clear that Kumar’s defence was ignored. Having failed to stem the tide of criticism following Raval’s resignation, parliamentarians demanded that one of their own assume responsibility—and the Congress chose, once again, to sacrifice the smaller player.

With his minister and his subordinate gone, the attorney general seems to be safe. It had been his word against theirs, and he had survived. Vahanvati has now outlasted four law ministers: HR Bhardwaj, Veerappa Moily, Salman Khurshid and Kumar. The fifth man to take up the job is the loquacious Kapil Sibal, who told an interviewer in 2009 that it would be inappropriate for him to serve as law minister, given that both his sons are practising lawyers.

If the government’s interference in the coal allocation investigation was a cover-up intended to protect the prime minister and other officials, then the parade of resignations last month might be seen as a cover-up for the cover-up. The ousters of Raval, and then Kumar, were desperate moves intended to quell the displeasure of the judiciary, the political opposition and the public. But now that the dust has settled, it’s clear that nothing has changed: the elemental sources of the malaise have remained untouched and, at least in court, unexamined.

Manmohan Singh, for whose protection all this was done, still remains in what he once self-effacingly called “this big chair”. One of the main charges against Singh is also the one that has always protected him: the spectacular scams that have defined his government are supposed to be the result of his inability to control his incorrigible cabinet colleagues, rather than reflecting any dishonesty or corruption on his part. Singh’s fatal flaw, apparently, is that he cannot say no.

This inability now seems like the only defence for everyone involved in this imbroglio. When Ashwani Kumar asked Vahanvati to come to his office, and Vahanvati asked Raval to do the same; when Kumar asked Vahanvati to call the CBI investigators to his house; when Kumar asked Sinha to come to his office with the status reports and then to bring them to Vahanvati’s house; when Raval saw Vahanvati make a false oral submission before the Court, and then did the same; when Ajay Bhalla and Shatrughna Singh were asked to go to the CBI office to suggest changes, and the investigator allowed it—no one said no. We might call this passivity, or pusillanimity, or complicity, but by whatever name, it has become the defining characteristic of Manmohan Singh’s administration. Whether he willed it, or simply failed to prevent it, no longer really matters.