COVER STORY
THE BOFORS TRIAL
As India's most explosive case of political corruption in recent years goes on trial, an examination of the state-of-play and the prospects.
SUKUMAR MURALIDHARAN
in New Delhi
AFTER a brief interval dominated by political grandstanding, the charge-sheet filed by the Central Bureau of Investigation (CBI) in the Bofors payoffs case came up before Special Judge Ajit Bharihoke in New Delhi on November 3. The first hearing, a much-awaited media event, turned out to be anti-climactic. The Judge merely asked to be shown the originals of all the documents that the CBI had cited as evidence in the most explosive case of political corruption in recent years.
Following a scrutiny of the 213 documents appended to the charge-sheet, Judge Bharihoke decided the following day that there was "sufficient prima facie material on record to proceed against the accused". The court proceeded to issue summons to three of the four individuals listed as accused. Martin Ardbo, former chief executive of A.B. Bofors, Sweden, S.K. Bhatnagar, former Secretary in the Ministry of Defence, and W.N. "Win" Chadha, the long-serving agent for the arms manufacturer in India, were directed to appear before the court on December 13. Also summoned was the Swedish company itself, now known after a series of corporate takeovers, by the relatively uncontroversial name of Celsius, and represented in judicial proceedings by its chief executive.
The court also issued a fresh non-bailable warrant for the arrest of Ottavio Quattrocchi, the Italian businessman whose involvement is proving the greatest political liability for the Congress(I) and its leader. The Judge observed pointedly that the accused had early this year been granted provisional immunity from arrest by the Supreme Court to come to the country from his exile in Malaysia and assist the CBI in its investigations. The opportunity had been squandered, making the issue of a fresh arrest warrant unavoidable.
Appropriately enough for an investigation that has stretched over nine years and run the gauntlet of the judicial systems in India and Switzerland, the CBI has marshalled a voluminous body of evidence for the prosecution. In the reconstruction of the steps that led to the award of the contract for the Indian Army's purchase of 155 mm howitzer guns from A.B. Bofors, the role of former Prime Minister Rajiv Gandhi is crucial. It is on account of this compelling requirement of logical closure that the CBI has included Rajiv Gandhi's name as an accused. In conformity with established procedure, his name is featured in Column 2 of the charge-sheet, as an accused not being sent up for trial because he is dead.
SHANKER CHAKRAVARTY
The Bofors FH 77B weapons system in action in Kargil.
It may well have been a viable strategy for those who are anxious to protect the aura of the former Prime Minister and president of the Congress(I) to keep their criticism on a low key and allow the process of law to take its course. But this manner of sobriety has been conspicuously absent in the reactions of the Congress(I) and its partisans. First off the mark was Kapil Sibal, the Congress(I) MP who served all through the recent election campaign as the party's principal spokesman. Allowing partisan passions to get the better of his legal acumen, Sibal pronounced initially that there was simply no precedent for a dead individual being named as an accused in a criminal trial.
This bungled reading of judicial precedent served as the underpinning for the Congress(I)'s initial vituperations on the issue. The bubble was rather rudely deflated by Minister of State Arun Jaitley, speaking for the Government in the Lok Sabha. Two rather well-known precedents were cited, familiar to anybody with even a passing knowledge of the law - the indictment of Beant Singh in the Indira Gandhi assassination trial and the inclusion of the name of the "human bomb" Dhanu in the Rajiv Gandhi assassination case charge-sheet.
The offensive having all too predictably gone askew, the Congress(I) adopted a new strategy. It was not appropriate for a junior Minister who was not yet a member of either House of Parliament to respond to their concerns on an issue of such gravity, claimed Congress(I) spokespersons. The matter warranted an intervention from the Prime Minister himself, they said.
Discretely though, the Congress members had, even while raising this clamour, withdrawn the notice for a discussion on the Bofors matter in both Houses of Parliament. This showed an infirmity of conviction that the Government was quick to capitalise on, meeting the continuing tumult in the Congress(I) benches with the simple assertion that a full-fledged discussion could be scheduled without any delay. Expectedly, the forceful statement of this position by Prime Minister A.B. Vajpayee had a noticeably sobering effect on some irrepressible elements within the Congress(I).
Logical consistency continued to be at a severe premium in the main Opposition party. In one of many interventions on the issue, the Congress(I)'s deputy leader in the Lok Sabha, Madhavrao Scindia said: "Let the Government not determine what the course of the law should be." Curiously, this bore a close resemblance in its spirit to Arun Jaitley's statement that "it would be a sad day" if governments were to influence criminal investigations and decide who should be charged and on what counts. Aware of this uncomfortable symmetry, Scindia's voluble colleague in the party, Mani Shankar Aiyar, took a different approach: "We wish to know whether government will delete his (Rajiv Gandhi's) name. This is our demand and we insist upon it."
The crowning performance came from Sonia Gandhi, Congress(I) president and Leader of the Opposition in the Lok Sabha. Rising to support the motion of thanks for the President's address to Parliament, she took a quick detour to denounce the inclusion of her late husband's name in the charge-sheet. The Government, she said, had acted "maliciously and vindictively" in bringing forward charges against an innocent man without a shred of evidence. To have dragged the honour of a dead man in the mud was simply "despicable", she said.
STANDING in for an indisposed Prime Minister, Home Minister L.K. Advani caused a minor flutter when he opened his reply to the debate with the assurance that he would give due consideration to the sentiments voiced by the Leader of the Opposition. Was he being correct and courteous in seeking to assuage Sonia Gandhi's deeply felt anguish? Or was he giving the first hint that the Government was prepared to yield on the Bofors issue in order to secure the Congress (I)'s cooperation in the ambitious legislative agenda that it had framed? The speculation did not proceed very far before it was scotched by a number of fairly decisive assertions.
The Government had no authority under the law to intervene in a criminal prosecution, said Ram Jethmalani, Minister for Law, shortly after the brief session of Parliament had ended. He followed this up with a witheringly pejorative reference to Sonia Gandhi's level of knowledge of the law.
A definitive statement of the official view came on November 5, when the Delhi High Court took up a petition by a private advocacy group - the Rajiv Gandhi Ekta Samiti - pleading for the deletion of the former Prime Minister's name from the charge-sheet. Appearing for the Government, Additional Solicitor-General S.R. Jaisinghani pleaded for the dismissal of the petition on the grounds that it lacked merit. His plea was seconded by senior counsel N. Natarajan, who appeared on behalf of the CBI. Clearly unconvinced of the locus standi of the petitioners, the High Court deferred hearings till November 18, in order to provide them an opportunity to establish how Rajiv Gandhi's indictment impinged on their rights.
BRIEFLY put, the charge-sheet makes out a case of undue favours being done to the Swedish arms manufacturer in return for pecuniary advantages of a precisely quantified magnitude. These illicit remittances were received in Swiss bank accounts opened in the names of A.E. Services Ltd and Svenska Inc., which were front organisations for Quattrocchi and Chadha. This was a clear breach of a contractual undertaking given by the arms vendor to the Indian Government to eliminate all middlemen and avoid commission payments.
In itself, this may constitute a case for prosecution under the law of contracts. It does not yet amount to a case of criminal conspiracy. That essential linkage is provided by Section 5(1)(d) of the Prevention of Corruption Act, 1947, which is cited by the CBI in its charge-sheet. The Section reads as follows: "A public servant is said to commit the offence of criminal misconduct if he, by corrupt or illegal means or otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage..." It is not necessary, in other words, to prove that a public servant has directly benefited from a transaction. To hold him or her liable for prosecution, it is sufficient to know that he or she has contributed to the illicit enrichment of "any other person".
V. SUDERSHAN
Former Prime Minister Rajiv Gandhi.
At the present level of knowledge, Rajiv Gandhi's role in the Bofors scandal did not involve a direct pecuniary gain for himself. This point was made amply clear through an intervention by Joginder Singh, former Director of the CBI, who oversaw the crucial phase of investigations that has led directly to the ongoing prosecution. It is not essential for a viable case, in his estimation, to prove that Rajiv Gandhi directly received any of the monies paid out by Bofors. There is, rather, ample scope to indict him for his various acts of "omission and commission".
The charge-sheet makes out a case that Rajiv Gandhi went out of his way to ensure that Bofors was awarded the contract for the howitzer deal before March 31, 1986, which was the cut-off point beyond which A.E. Services' contractual entitlements to a part of the Bofors commissions would cease. In order to do this, he applied an arbitrary guillotine on the competing bid by Sofma of France. Bids from both the principal contenders were being continually received from January 1986. On March 11, Bofors submitted what would be its final offer. Without any further deliberation, the negotiating committee in the Ministry of Defence decided on March 12 to issue a Letter of Intent to the Swedish vendor for the purchase of the guns. The matter went through five tiers of official approval and three Ministers on a single day, before it was approved by Rajiv Gandhi in his capacity as Minister for Defence on March 14.
IF this shows an undue interest in awarding the contract to Bofors, Rajiv Gandhi's conduct after the Swedish Public Radio blew the lid on the scandal in April 1987 betrays an obsessive concern with suppressing the truth. India's Ambassador to Sweden, B.M. Oza, had advised the government to disregard Bofors' disclaimers and instead wait for a final pronouncement from the Swedish official investigation. This eminently sensible proposal was overruled by Rajiv Gandhi, who instead directly conveyed his inclination to accept Bofors' denial to his Swedish counterpart and sought to dissuade him from pursuing the official investigation.
As Defence Secretary, Bhatnagar too partook of the attempt to obscure the truth, suppressing the considered professional evaluation of the Chief of the Army Staff, General K. Sundarji, that the threat of cancelling the howitzer contract would rapidly bring Bofors around to naming the beneficiaries of its commissions, while not impinging too seriously on the country's defence preparedness. Gen. Sundarji's suggestion, which was endorsed by the Minister of State for Defence, Arun Singh, elicited a hostile - indeed, almost hysterical - reaction from Rajiv Gandhi.
To add to all this, the CBI is learnt to have gathered a mass of evidence on the kind of contacts that existed between Quattrocchi and the Rajiv Gandhi family. These include evidence on the movements of two cars belonging to the Italian businessman, which points to the ease of access he enjoyed to the prime ministerial household. Five photographs, one of them a "group photograph", have also been cited as evidence of this proximity. Then again, 10 of the 83 witnesses listed by the prosecution are employees - both past and present - of Snamprogetti, the Italian fertilizer-related conglomerate that Quattrocchi represented for close to a quarter century in India.
Since the first information report (FIR) in the Bofors case was filed in January 1990, the prosecution effort has withstood judicial tests of extreme severity. These began with the maladroit effort by an individual of uncertain credentials to obtain the quashing of the FIR during the Chandra Shekhar Govern-ment's tenure. With the enforcement authorities wavering in their resolve, the Delhi High Court then gave a ruling which could have seriously debilitated the investigative effort. It took the intervention of the Supreme Court to restore a sense of propriety to the handling of the matter.
Still more severe tests were inflicted during the P.V. Narasimha Rao Government's tenure. If the Bofors investigation has progressed now to the stage of trial, this is a testament to its inherent robustness and to the sense of purpose with which it has proceeded. To invoke mawkish sentimentality to subvert the process of law at this stage would be a rude affront to the basic principle of democratic accountability.
THE immediate prospects are that the trial will encounter continuing intransigence by the accused. With the exception of S.K. Bhatnagar, all the other accused are in exile. Neither Quattrocchi nor Chadha is likely to return voluntarily to cooperate with the prosecution. As for Ardbo, he has expressed his disinclination to involve himself any further in the case. In this matter he has won the support of the Swedish Justice Ministry, which has ruled out the possibility of any citizen of that country being extradited for trial elsewhere. There is a possibility held out by the Ministry, though, of Ardbo subjecting himself to judicial cross-examination in Sweden.
When the trial reopens on December 13, it is likely that the Judge will have only one of the accused - Bhatnagar - before him. The Judge will then have to decide whether to provide another opportunity to the absentees or declare them absconders. Extradition prospects would then need to be explored with Malaysia in the case of Quattrocchi and the United Arab Emirates in the case of Chadha. An extradition treaty was recently signed between India and the UAE, while Malaysia is obliged to extend cooperation under a Commonwealth ag-reement on mutual assistance in criminal matters.
Martin Ardbo, former chief executive of A.B. Bofors.
MEANWHILE, two more fronts are also expected to open up in the near future. The first could see the charge-sheeting of Madhavsinh Solanki, former Union Minister for External Affairs. Consent for prosecution under the Prevention of Corruption Act has been received from the appropriate quarters. Formal charge-sheeting is now expected to be only a matter of time.
The second front, though, could be the more consequential one. The Swiss Federal Councillor is considering a final appeal against the transfer of documents pertaining to another set of bank accounts where funds from the Bofors payoffs were parked. It is widely known that the appellants in this case are the Hinduja brothers - Gopichand, Srichand and Prakash - enormously influential financiers of Indian descent settled in London. They have lost their case at three levels of the Swiss judicial hierarchy and taken recourse to a rarely used clause of law to appeal to a quasi-ministerial functionary in the federal government. The CBI expects a decision in its favour and could proceed with preparing charge-sheets once these documents are received.
The political sensitivities that are likely to be bruised in l'affaire Bofors are many. As of now, it is only the Congress(I) that is feeling the heat. But the Hindujas are known to have been extremely catholic in scattering patronage. For the Bharatiya Janata Party, will proceeding on this front involve shredding up some of the IOUs it may have accumulated during its relentless push for power?
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