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BOFORS WITHOUT RAJIV GANDHI

THE LANGUAGE OF the Delhi High Court's latest judgment quashing the bribery and related charges but ordering the trial to go ahead on the counts of cheating, entering into a criminal conspiracy to cheat, causing wrongful loss to the Government, and committing forgery has given rise to the impression that Rajiv Gandhi, his Defence Secretary S.K. Bhatnagar, and his Government have been cleared of all wrongdoing in the 14-year-old Bofors criminal case. Starting with its president, Sonia Gandhi, the Congress party has been quick to respond with a repetition of the absurdly false claim that l'affaire Bofors has been, from start to present, an exercise in "abuse, vilification and ... character assassination," indeed an evil conspiracy. Forsaking judicial statesmanship, the single Judge made uncalled for and self-defeating observations in his judgment on "trial by media", bringing in irrelevancies such as the recent Daler Mehndi episode. He needs to be reminded that had the news media, especially The Hindu, left Bofors to the official investigative process, nothing would have come of it — since between April 1987, when the scandal surfaced, and January 1990, when a criminal case was first registered, the Government's response was deliberate and studied non-investigation of the alleged criminal wrongdoing. The Judge has also unjustly characterised as a "fiasco" the Central Bureau of Investigation's efforts to discover direct payoffs to Rajiv Gandhi, Bhatnagar or any other public servant — ignoring the elementary fact that the agency never assumed or asserted that the illegal payments were made into secret accounts owned by any of them.

These obiter dicta have added to the impression that the Bofors scandal has now been judicially determined to be sound and fury, signifying little. This little, of course, translates into triable charges of the undeclared commission agents of Bofors - the three Hinduja brothers, Win Chadha, and Ottavio Quattrocchi — "cheating," and causing "wrongful loss" to the Government of India, and Bofors resorting to "forgery". The cheating charge against the agents that has been upheld as triable is: "entering into a criminal conspiracy to cheat the Government of India by fraudulently and dishonestly representing that there were no agents involved in the negotiation for the contract, and further that the price quoted was the reduced price proportionate to the amount of commission that would have otherwise been paid to the agents." The triable charge of forgery against Bofors is concocting false documents to show that no middlemen were involved in the deal.

So where does this leave us on Bofors? This is actually the third time over the past 14 years that the investigation and prosecution of India's best-known corruption case has suffered setbacks in the Delhi High Court, only to have the quashing decisions reversed on appeal. The CBI will no doubt appeal against the quashing of the charges under the Prevention of Corruption Act. But the issues involved in this scandal must be understood at a deeper level than is evidenced in the Delhi High Court's latest judgment. Analytically, l'affaire Bofors needs to be understood in terms of five modes of action. The first is the Rajiv Gandhi-led decision-making on the choice of howitzer, which involved conspiratorial "cheating" and "forgery" to "induce" the Government into going in for a contract that resulted in "wrongful loss." The arrangements for the illegal and secret payments amounting to Rs. 64 crores, and the prolonged cover-up and crisis management, are the second and third modes. The fourth is the journalistic investigation and exposé. The fifth mode of action is the CBI's criminal investigation, assisted by the authorities and courts of countries like Switzerland, and the ongoing prosecution. To suggest that Rajiv Gandhi, some of his key officials, and his regime had no role in the scandal other than their bit parts as naïvely innocent dupes of alleged cheats and forgers is, well, to read Hamlet without the Prince of Denmark.

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