Chidambaram's Jail-Bail Ordeal - Echoes of 2G Saga?

Raman Swamy

The 2G case, in which all the accused were acquitted, is a big blot on the image of investigating and prosecuting agencies.  When Special Judge O. P Saini dismissed the charges of corruption due to lack of evidence, he did more than expose shoddy incompetence - he shed light on the injustice of the so-called justice system. 

Former Minister A. Raja spent 15 months in jail, before he was acquitted.  His party MP Kanimozhi was in Tihar Jail for six months.  Several other accused were similarly subjected to the humiliation and agony of jail time – even though they are citizens of a country which believes in the noble dictum of ‘innocent till proven guilty’.   

The 2G accused have still not been found guilty. The government has appealed against the exoneration and the hearings have been going on for the last two and a half years. The next hearing is on October 24. 

In between there have been bizarre orders by the high court, which might have been hilarious in any other context.  Some of the accused have been ordered to plant 3,000 trees each in Delhi’s Ridge area as punishment for ‘time wasting’ and ‘delaying tactics’.  

From one point of view, nothing could be more ridiculous than this. Serious allegations of corruption are levelled, with the magnitude of the alleged crime being blown up to enormous proportions with incredible ‘notional amounts’ running into lakhs of crores of rupees. It escalates into the biggest scandal of the new century. Careers are destroyed.  Suicides take place.  Elections are won and lost.  But the case is thrown out of court because the policemen and lawyers had not done their homework properly. 

Incidentally, the judge who dismissed the 2G case, O. P. Saini, quietly retired just recently on September 30 after a distinguished career of 29 years in which he had earned the reputation of being fearless and fair - he has issued a death sentence, has summoned powerful CEOs to appear in person and sent several CWG accused to jail.  He also exonerated the 2G accused.  That is what rankles the most with government agencies and lawyers.  

The 2G embarrassment has badly dented credibility. In the current case against P.  Chidambaram and his continuous incarceration for over 60 days have revived dark memories of the botched charges against A. Raja, Kanimozhi, Dayanadhi Maran,  Siddhartha Behura,  Shahid Balwa,  et al.,  not forgetting the sudden suicide of Sadiq Batcha.  

Chidambaram has finally been granted bail by a three-judge Bench of the Supreme Court, which has made some strong remarks about the CBI arguments pleading for denial of bail.  Since the former Finance Minister is currently in the custody of the Enforcement Directorate, it could take a few days before he emerges from behind the bars. 

However, before dealing with the apex court’s order, it is interesting recall a heated exchange between Chidambaram’s lawyer Kapil Sibal and Solicitor General Tushar Mehta who appeared for the CBI.    

The Solicitor General had concluded his arguments. Sibal began by saying that the charges being levelled against Chidambaram reminded him of the charge-sheet in the infamous 2G case.  “We all know what happened to those sensational charges. They didn’t have a shred of evidence”. 

Tushar Mehta was stung by the reference to the 2G case.  He raised a technical objection by saying that since the 2G matter is under appeal before the Delhi high court, no mention should be made of it. 
Sibal:  I am talking about the 2G judgment.  All charges were dismissed. 
Mehta:  Currently there is an appeal being heard in high court. 
Sibal:  I will argue this case the way I wish.  I did not interrupt you even once when you were making your argument.  Why are you preventing me?  This is not done. 
Mehta:  Don't make analogies with fairytales.
Sibal:  Sometimes you threaten and other times you interrupt.  The 2G judgment is not a fairy tale.  I have respect for your office, but I will not be interrupted in this way. 

At this point, Justice R Bhanumati, who was presiding over the three-judge Supreme Court Bench, sought to bring tempers down by saying:  I request the counsels to smile at each other while arguing. 

However, for the 74-year-old Chidambaram who has been in police and judicial custody since August 21, it is no laughing matter and even now with the apex court granting bail, it will be a few days more before he can smile.   

A closer reading of the judgment delivered on Tuesday reveals just how deep the rot seems to have set in matters of levelling serious charges against political adversaries.  Each of the grounds on which the Solicitor General opposed bail is in the apex court’s view untenable and even flimsy.  This is far more serious that whether or not the CBI has been acting under pressure to keep in behind bars for as all long as possible.  

The Supreme Court is crystal clear:  i) Chidambaram is not a “flight risk” and there is no possibility of him absconding from the trial.  ii)  There is not even a whisper about fears that Chidambaram would “influence witnesses” in any of the six-remand applications CBI has filed.  iii) The charge sheet has already been filed against all the accused in the case, all the other co-accused have already been granted bail and Chidambaram has been continuously in custody for over two months - hence no possibility of “tampering with evidence”.   

The wording of the judgment conveys the views of the Bench more loudly than the headline points. 

“just because certain other economic offenders have flown out of the country, we cannot apply a straight-jacket formula and deny bail to this applicant who is not a flight risk.”

insofar as the “flight risk” and “tampering with evidence” are concerned, the High Court held in favour of the appellant by holding that the appellant is not a “flight risk” i.e. “no possibility of his abscondence”. The High Court rightly held that by issuing certain directions like “surrender of passport”, “issuance of look out notice”, “flight risk” can be secured. So far as “tampering with evidence” is concerned, the High Court rightly held that the documents relating to the case are in the custody of the prosecuting agency, Government of India and the Court and there is no chance of the appellant tampering with evidence.

The judgment also notes that being a Member of Parliament and a Senior Member of the Bar, Chidambaram has strong roots in society and moreover his passport having been surrendered and “look out notice” issued against him, there is no likelihood of his fleeing away from the country.

The judges also referred to the mysterious “sealed cover” that CBI had handed over to the high court judge.  It would seem that, far from containing any “clinching new evidence” (as had been reported in sections of the media at that time), it was only a claim made by two witnesses that they had been approached and told not to disclose any information regarding Chidambaram and his son.

The High Court judge opted to take this very seriously indeed – that, too, 48 hours before his retirement and, curiously, his post-retirement appointment as chairman of the Tribunal for Prevention of Money Laundering Act. He had rejected bail by saying “it cannot be ruled out that he may influence witnesses”.

In contrast, Justice Bhanumathy and her two fellow judges in the Supreme Court, finds this logic unacceptable.  i)  FIR registered by CBI on May 15, 2017.  ii)  Chidambaram granted interim protection on May 30, 2018 right up to August 20, 2019.  iii) Not even a passing mention by CBI about influencing witnesses during all this time.  iv) Suddenly, after he is in custody and is seeking bail, fears expressed that he might influence witnesses.

The judgment minces no words: “CBI has no direct evidence against the appellant regarding possibility of influencing the witnesses.  No material particulars were produced - when and how these two new secret witnesses had been approached.  No details of what kind of ‘approach’ – was it by SMS, e-mail, letter or telephonic calls and were the persons approached face to face? Details are also not available as to when, where and how those witnesses were approached.

The Supreme Court bench very obviously does not believe a word about the “secret witnesses” mentioned in the “sealed cover” given to Delhi high court judge.  This has serious implications – it means that not every sealed envelope the official agencies had over to judges contain solid information or evidence and is more for dramatic effect and silent signals.

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Oct 25, 2019

Raman Swamy [email protected]

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