March 24, 2001


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Arvind Lavakare

Should they first become conjurers and criminals?

Ex-defence minister Mulayam Singh and ex-prime minister Chandra Shekhar owe pots of money to the defence ministry for using the nation's aircraft for personal purposes. But nobody has asked them to quit the Lok Sabha even though, mind you, neither has seriously contested the offence in the ongoing court case.

The Lok Sabha member, Mohammad Shahabuddin from Bihar, has three criminal cases registered against him, and his home was found, the other day, stocked with guns and grenades. But nobody is asking him to quit Parliament. Why, the jail server, Laloo Yadav, and his charge-sheeted wife's government are holding their state police guilty rather than Shahabuddin for the recent violence in Siwan.

In utter contrast, the entire Opposition wants the NDA government to pack its bags just because of some videotapes that are so hazy and ham-handed, so stammering and stuttering and out of sync.

The tragedy is that our media, pretending to be the nation's honorary watchdog, have fallen hook, line and sinker for those third-quality tapes, without caring to ascertain whether they are morphed or manipulated or both.

Look at the lie recorded in the Tehelka notes (published in The Asian Age of March 14, 2001) regarding their meeting with Jaya Jaitly, president of the Samata Party. Those notes say that among those present for their discussion with Jaitly was member of Parliament Srinivas Prasad. However, it now transpires that, on the day of that meeting, Prasad was not in New Delhi but in Bangalore! That falsehood or fabrication, call it what you will, is clear from Tehelka's own transcript in which Jaitly says "Please send this to our minister, Mr Srinivas Prasad." Now, if Prasad, minister of state for consumer affairs, were indeed present at that meeting (as stated by Tehelka), Jaitly would have said "Please give this to our minister…" and not "Please send this to our minister…"

Further, there is absolutely nothing in that Jaitly transcript to even hint at a quid pro quo. In fact, what she is reported as saying is "Look, you mustn't treat anybody unfairly. Give everybody a chance… if there is any unfair practice, we can step in… You then take the best, which is at the best price." Where, then, is the deal, signed, sealed and delivered? Where is the corruption? Only in the minds of the Opposition and the gullible, sensationalising journalists.

Then there is the matter of Jaitly's meeting taking place at the residence of the country's defence minister. If that is such a horrendous act as has been made out, is it not equally so for the PM or the home minister or any other minister to take decisions on office files in the privacy of his/her home? Is it not also horrendous then for Sonia Gandhi, leader of the Opposition and therefore enjoying ministerial status, to discuss, with then US deputy secretary of state Strobe Talbott, the nation's nuclear doctrine, J&K terrorism etc at her residence instead of at her Lok Sabha office?

Now look at the treacherous "testimony" against Bangaru Laxman, BJP president. Although it did not, once again, prove any wrongdoing, it cast an incalculable damage on the man's reputation. Consider that one sequence in the publicised Tehelka transcript that ran as follows:

Tehelka: Rupees or dollars?
Laxman: Dollars. You can give in dollars.

The above "quote" of Laxman was given a eight-column headline in The Asian Age, but with the exclamation mark (!) after "Dollars." The observant would have wondered why, if Laxman had reportedly wanted dollars as offered by Tehelka, did he accept payment in rupees? Why did Tehelka not explain to the public how it managed to get away with rupee payment if, as they now want us to believe, Laxman had opted for dollars?

The mystery lies in that exclamation (!). What Laxman in all probability said was "Dollars??" with an exclamation of shock in his tone, and "You can give dollars??" with another exclamatory tone. But Tehelka must have just clipped away the exclamation marks in its transcripts while the audio in its tapes was just too damned garbled to reveal the exclamatory tone. Anyway, why has Tehelka not cared to tell us whether they had or hadn't received the official BJP stamped receipt for what they gave to Laxman?

Indeed, all it needs is logic and patience to bore big holes in the Tehelka tapes and transcripts, the jumps and the juxtapositions therein.

But lo! And behold. The Times of India in its first editorial of March 22, 2001 says, "…the Opposition may have lost a golden opportunity to turn the Tehelka aftermath to their own advantage. Think of what a lawyer might have done with the explosive evidence." Yes, even a freshly inducted criminal advocate would have exploded the "evidence" --- in Tehelka's face.

Just see how the Tehelka blokes said in the interview with The Indian Express published in the Mumbai edition of March 18, 2001. In that interview, they did not deny that their apology to the home minister regarding accepting a commission on a border-fencing contract was because the tapes were not verified. Regarding the blatant contradiction in First Global's statement that it owned just 3 per cent of Tehelka's shareholding as against Tehelka's own statement that First Global had a 14.5 per cent stake in it, the discrepancy was "explained" as an event that would happen in the future!

The possibility that talk on the tapes may well have been "cooked up" and "recooked" was not denied! Asked about the possibility that there may be errors on the tapes, the reply of Tehelka's second in command was "I don't know" (sic). When asked whether they had verified every fact that had been given by Jain and Gupta and others, Tehelka claimed, poor dear, that "only the context of the talk was important, not exactly what they said"(sic). Such then is Tehelka's credibility.

Yet, Aroon Purie, editor-in-chief of India Today went gaga over Tehelka's work in the magazine's issue of March 26, 2001. He wrote, "This is a proud moment for India's journalism; and that too good old-fashioned, painstakingly investigative journalism."

Using modern, miniaturised video recording equipment is considered illegal in many countries -- is that "old fashioned"? Mounting a sting operation that is, in the USA, permitted only to the FBI -- is that old fashioned? Gathering defamatory, but doubtful, info on those you meet, and then recycling it without allowing the affected ones to react -- is that journalism? Turning and twisting your data in presentation --- is that journalism? The solitary way in which all that is "old fashioned" is its violation of norms of natural justice and human rights.

Worst of all, is it "a proud moment for Indian journalism" when members of that so-called "noble" profession don the garb of criminals to do their work? Yes, this is something that nobody but nobody in our country seems to have realised till this is being written.

By admittedly pretending to represent a fictitious company during all their meetings with all of Jaitly Laxman & Co., the Tehelka team laid itself wide open to the contemptible criminal charge of violating Section 415 and Section 416 of our country's criminal law called the Indian Penal Code, 1860. Those two sections are reproduced below, word-by-word.

"415. Cheating. --- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat."

Explanation: A dishonest concealment of facts is a deception within the meaning of this section."

To enable a clearer understanding of the crime that Tehelka could well be prosecuted for, the relevant portion of Section 415 can be restated as "Whoever, by deceiving any person, induces the person so deceived to do anything which he would not do if he were not so deceived, and which act is likely to cause damage or harm to that person in mind or reputation, is said to "cheat."

The punishment for the offence under Section 415 above is imprisonment of either description for a term which may extend to one year, or with fine, or with both. (Section 417 of the IPC)

"416. Cheating by personation. --- A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such person really is.

Explanation. --- The offence is committed whether the individual personated is a real or imaginary person."

In 1974, the Supreme Court held that under Section 416, there must be evidence to show that the person deceived was induced by such deception to act to his own detriment. (Tehelka have not only boastfully admitted that they were pretenders but that they intended to induce their subjects to act in a manner proving that they accepted bribes for swinging defence contracts.)

The punishment for the offence under Section 416 above can extend to imprisonment of either description for a term which may extend to three years, or with fine, or with both. (Section 419 of IPC)

Another point: can "facts" gathered in a criminal manner be used as legal evidence? The ongoing army court of inquiry into the Tehelka disclosures would do well to bear that crucial issue in mind. The army top brass should also note that US courts do not accept edited tapes as evidence.

Let it also be noted by one and all that under Section 237 of our country's Companies Act, 1956, the central government is empowered to investigate the affairs of a company if, in the opinion of the Company Law Board, "the business of the company is being conducted …for a fraudulent or unlawful purpose…"

Finally, therefore, two confounding questions:

1. "Does the end justify the means in investigative journalism?"

2. "Should those young Indians who want to become 'good old fashioned investigative journalists' first become conjurers and criminals?"

This amateur pen pusher seeks answers from the oh-so-many of our wise patriots who display the mantle of the nation's honorary watchdog.

Arvind Lavakare

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