Spying for democracy

By Rajeev Dhavan

TEHELKA DESERVES to enter our dictionary as a new word to denote a species of investigative spying for democracy. It adds a new - at times, worrying - flavour to investigative journalism. To do a `tehelka' is not just to interrogate or eavesdrop but to obtain the `truth' by electronic entrapment. Whether this form of journalism is ethical cannot elude controversy. But, these questions of journalistic ethics cannot eclipse the importance of the Tehelka revelations. Read with the Vohra Committee Report (1995), Tehelka portrays a crisis in Indian governance which knows no parallel. Read the two revelations together. The `Vohra' report tells us that all the Indian governance - especially at local and regional levels - is being run by hoodlums and gangsters as private fiefdoms. Tehelka extends this rottenness to not just the Union Cabinet but `defence' and the Army. Indian governance is up for hire and purchase. Today, democratic decisions in India - indeed, the Government itself - can be bought, sold and terrorised. What, then, is the difference, between India and any other banana republic run as a puppet regime at the bidding of muscle, money and corruption? The issue is not corruption or whether this is the tip of the iceberg. We are now dealing with the question of whether India is destined to join those nations which are rapidly moving to a state of affairs of having no credible or viable system of public governance at all.

When the `Tehelka' crisis broke, journalists were more interested in whether the erring public officials and politicians would be convicted and sent to jail rather than their conduct and its effect on governance. Crime reporting overtook the more important issues of the day. The primary concern has to be to examine the political and social conduct of our politicians not whether some clever lawyer can get them acquitted. It is precisely this distinction between criminality and public conduct that was lost sight of in the Hawala crisis. In the Hawala case, by all accounts, money was taken. Something had happened. That a conviction could not take place because of the inadmissibility of the Jain diaries moved the crisis away from the conduct to the crime. This is even more forcefully true of Tehelka. Quite apart from the question of criminality and admissibility of evidence, there is more than credible information that interviews did take place. Conspiracies were entered into. Corrupt defence deals were made. Money did change hands. An entire system of corruption in the Army and defence has been revealed. Apart from criminality, such conduct can never be excused. It is not just about a few rupees, but governance itself.

First, what is the relationship of political parties and Government. Two of the prime interviewees who allegedly accepted money were Mr. Bangaru Laxman and Ms. Jaya Jaitly. We know that parties influence Government. But, can political parties actually take over and corrupt governmental processes? Both in the Hawala case as well as the Tehelka crisis, there is an ungainly justification that the monies were not for personal benefit but for the political party. This argument is farcically incredulous. Could Mr. Harshad Mehta have claimed that he did what he did for his company? Can a business house claim that it stole, corrupted and misled to keep one lakh workers and shareholders alive? No Indian claims to live for himself - only for others; family, caste, charity and, now, political party. Such a justification has to be excised from our political rhetoric. Everything - as Solzhenitzyn's little novel reminds us - is supposed to be `for the good of the cause'. The logic of this is to give Mr. Laxman and Ms. Jaitly a party political medal for agreeing to corrupt the nation for the benefit of the party.

Second, what is to be done in such situations? Five standard responses have been put in motion. (i) A resignation offered by the Defence Minister, Mr. George Fernandes, was inelegantly accepted on a `sack-the- minister-save the-government' basis. (ii) A Commission of Inquiry was ordered which the Congress(I) wishes to resist for political reasons even though it chose a Joint Committee of Parliament to probe Bofors. This initiative has been undermined further because the Chief Justice of India cannot spare a sitting judge for investigating the biggest crisis in governance in India since Independence. With respect, if Lord Denning could examine the Profumo crisis in England, Lord Scarman could be called upon to examine Red Lion Square, Brixton and the Ulster crisis, Chief Justice Warren the Kennedy assassination and Justices Verma and Wadhwa aspects of the Rajiv Gandhi and the Staines killings, a similar probe was called for by a sitting judge.

(iii) Suspensions and administrative actions have been commenced in the Army and civil service. (iv) The Prime Minister has angrily personalised the issue by declaring that he is a deshbhakt (patriot) to declare the overall innocence of the Government. (v) The Opposition has been invited to an arithmetical challenge of a no-confidence motion in the knowledge that as along as the ruling coalition holds together, the Government cannot be defeated in the Lok Sabha. The question is: should the Government be forced to resign? The crisis is certainly big enough for this to happen. But, without defections from the NDA, this Government will not fall. Or, are we looking at a fresh general election? This needs to be carefully considered. The Congress(I)'s call is both shrill and opportunistic, and, can hardly be treated as one of `Gandhian' proportions. Yet, a corrupt Government which has allowed Defence to be bartered away cannot be permitted the right to self- protection by conspiratorial parliamentary majorities. A broad consensus needs to be developed by both the Opposition and the people on elections or an alternative government. Clumsiness and short-sightedness will prove costly to both the opposition parties and the nation.

Third, the validity and legality of the tapes. Tape recordings are admissible in evidence after due precaution has been taken to ensure authenticity, accuracy and non-tampering. The `tapes' should be sealed; and, Tehelka should authoritatively declare the manner and process of their procurement. More serious is the question whether a crime has been committed. If I put my hand in your pocket, can I be convicted of a conspiracy or attempt to do the impossible if the pocket is found to be empty? This question has vexed criminal law. Yet, the better view is that this could constitute an attempt. In any event, the issue at this stage is not about the ultimate conviction, but whether - on these facts - a CBI investigation can be started. The short answer to that question is that a CBI investigation is valid and proper. The future will depend on what comes out of this investigation.

The fourth issue relates to the ethics of this form of investigative journalism. To begin with, after Auto Shankar's case (1994), Justice Jeewan Reddy in the Supreme Court has clearly underlined that those who occupy public office have to accept a different and higher standard of scrutiny about revelations about themselves. No doubt, general electronic snooping is an invasion of privacy and generally impermissible. Normally, journalists should reveal the nature of interrogation. But, an entrapment of the Tehelka kind cannot be dismissed as illegal or illegitimate journalism. What is objectionable are the Government's efforts to victimise Tehelka with multiple investigations. The Union Law Minister, Mr. Arun Jaitley's statement that Tehelka victimisation was not ordered by the Government but simply took place is too clever by half.

What we are left with is the single biggest crisis in Indian governance since 1950. The response to this crisis cannot be fudged by politicians. This Government cannot be trusted with the defence and governance of the country.

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