The Hindu : Opinion / Leader Page Articles : The Tehelka Commission

Online edition of India's National Newspaper
Friday, Oct 15, 2004

Opinion

Opinion - Leader Page Articles

The Tehelka Commission

By Rajeev Dhavan

The reliance on Commissions of Inquiry is misplaced. Increasingly, they are instruments of intimidation.

TEHELKA HAS become a household word. Long after our present controversies are forgotten, it will make its way into the dictionaries and annals of journalism as an exceptional form of investigative journalism. Its story began on March 13, 2001, when Operation West End was set up at the Imperial Hotel in New Delhi. A sting operation revealed corruption in defence deals. After an officer accepted his guilt, Prime Minister Atal Bihari Vajpayee was surely right in describing Tehelka as a "wake-up call to the nation." But it fell on deaf ears. Instead of the Government investigating defence deals, it turned its wrath on Tehelka. A Commission of Inquiry was set up on March 24, 2002.

As soon as it started getting to the root of startling truths, Justice Venkataswami, the sole Commissioner, resigned in November 2003 to pave the way for the appointment of Justice S.N. Phukan in January 2004. The Phukan Commission sought to re-invent the wheel. Inquiries into the authenticity of the Tehelka tapes were re-ordered on scanty evidence. Forensic evidence showed the tapes to be genuine.

Tehelka had simply been victimised. What needed to be investigated were the possible defence deals not the persons who exposed them. On October 4, 2004, the Phukan Commission was wound up and the Central Bureau of Investigation-led probe of the defence issues was taken up in greater earnest. Two and a half valuable years had been lost.

Indian democracy has much to learn from the Tehelka episode. Indian governance is wrapped up in corruption, which has not spared even issues relating to national security. But the more stinging truth is that it is virtually impossible to discover the real state of affairs through any normal methods of investigation.

Whether we like it or not, the `sting' and the `whistleblower' are inevitably going to become the only effective way of exposing the truth. Parliamentary question results in evasive answers. Normal methods of journalistic investigation yield incomplete speculation, which is brushed aside. A doubting, but curious, public demands not just the truth but proof. This proof is not there for the asking. In a society and system of governance that defies transparency, only the `sting' and the `whistleblower' can provide reliable and credible proof. Both these forms of exposure are hazardous in India.

Satyendra Dubey's exposé in Bihar resulted in his murder. While the Supreme Court seems to have accepted the broad guidelines for whistleblower protection suggested by the Law Commission, it has taken the conservative route of permitting the whistleblower to protest within the administration rather than through the media. This follows the conservative "commonwealth" of blowing the whistle to the Government rather than the more forthright American approach of going public. No doubt, we cannot have all administrators running to the media on every issue. But complaints within the system are incomplete solutions. But, if those inside the system are intimidated, sting operations from outside the system are no less hazardous. Tehelka was run into the ground operationally and financially. Every conceivable pressure was put on Tehelka. Income Tax raids were made against those funding it. The associates were sent to jail. Despite the free pro bono help of lawyers, the inquiry broke Tehelka's financial back without affecting its spirit.

There have been huge debates on whether the Tehelka style `stings' are ethical — in terms of invasion of privacy, the breach of normal methods, the use of women as part of the sting and the unorthodox interviews. To argue that stings can never be done overstates the case against the `sting' as a legitimate weapon of investigative journalism. Drawing sustenance from the American concept of public exposure in defamation cases, the Supreme Court in the Auto Shankar case (1994) rightly reminds public persons that they should have nothing to hide from the public, which is entitled to know the truth.

Freedom of information statutes have their place. But they are weak and not supported by adequate public record availability under conditions of candour and transparency. But they cannot obviate the role of `insider' information and `outsider' exposure to ensure truth and accountability in Indian governance.

This takes us to the second area of concern about the role of Commissions of Inquiry. Invented in England after the Marconi Scandal in the First World War, they were supposed to get at the truth so that action should follow as an objective consequence. Today's Commissions have lost their status and significance. The Tehelka episode is a nail in the coffin of the reputation of commissions as effective tools of governance. In the Nehru era, Commissions acted swiftly to effect the resignation of Finance Minister T.T. Krishnamachari at the Centre and Chief Minister Pratap Singh Kairon in Punjab. In our times, the Commission has become a defensive weapon to diffuse, stall and frustrate decision-making. The Wadhwa Commission on the Staines murder was swift, but over-careful and vacillating in pointing to the guilty.

Where Commissions have been forthright — such as the Srikrishna Commission on the Bombay riots — they have been both attacked and ignored. On October 13, 2004, the Rajasthan High Court had to order that the Lodha Commission Report, which was available from 1996, on the Kumher massacre of Dalits in 1993 be tabled before the State Assembly. The Liberhan Commission looking into the destruction of the Babri Masjid in 1992 continues without a report on the horizon. We have to pay heed to the Supreme Court's warning in a Haryana case (2003) that Commissions of Inquiry have no teeth, take too long, and lack follow-up due to political considerations.

The Court rightly suggested that Commissions should be invoked to devise policies and not as preludes to consider punishing the guilty. In a sense, this is the stance that Justice J.S. Verma took when he investigated aspects of the Rajiv Gandhi assassination so that security policies were examined by the Commission without thwarting, pre-empting or pre-judging criminal investigation.

It is in this background that we have to judge and examine the winding up of the Tehelka Commission. It was not a genuine investigation commission. In fact, it was both a cover-up and a punitive commission. While it was in place, a `wait-and-see' mentality thwarted discussion and action. The fourth clause D of the Commission's frame of reference was directed towards intimidating and harassing Tehelka. In fact, Tehelka seemed to dominate the Commission's work. At centre-stage lay the concerns of those out to use the Commission to exonerate themselves. Despite Justice Venkataswami's finding of January 16, 2002, that the tapes were genuine and Justice Sarin holding in the Delhi High Court on July 3, 2003, that the tapes need not suffer forensic examination, a relentless battle ensued. After Justice Phukan took over on May 9, 2004, the Commission ordered a forensic examination, which confirmed in a belatedly released report that the tapes had not been tampered with. These litigational tactics had derailed the Commission. Justice Venkataswami's findings on 15 defence deals never surfaced.

Meanwhile, on May 26, 2001, the Ministry's own Bagai Committee had already concluded on the guilt of some Army officers. A court of inquiry found a prima facie case against them. The Tehelka inquiry itself revealed and confirmed the availability of various politicians to accept `bribes' for party funds. The fact that they were for political parties does not credit them with a higher and worthy purpose. After all this, the Phukan Commission would only have stalled legitimate investigation. On October 4, 2004, the Union Government correctly discontinued the Tehelka Commission, which had become an oppressive farce.

The transition of Commissions of Inquiry from instruments for effective inquiry to tools for cover-ups and oppression seems complete. After Tehelka, this is where the logic of using commissions seems to be taking us.

Commissions are expensive and archaic — lacking the ability and credibility to serve a useful function. India's reliance on Commissions of Inquiry is misplaced. Commissions should be strategically used and confined to policy questions. Issues of corruptions and criminality should be dealt with by strong criminal investigations. Today, India's Commissions of Inquiry are not just evasive but subversive, increasingly, instruments of intimidation.

Printer friendly page
Send this article to Friends by E-Mail

Opinion

News Update

Stories in this Section

DOMAIN OF THE IMMENSELY SMALL

INCOMPATIBLE MARRIAGE

The Tehelka Commission

Business cycles and free markets

Leadership crisis in Maharashtra