Rahul is indulging in shoot and scoot
Allegation of corruption becomes leitmotif of India’s politics.
Ganga has once again been i nvoked i n the debate on corruption. Rejecting Rahul Gandhi’s perceived “earthtremor” allegation against Narendra Modi, Union minister and eminent lawyer Ravishanker Prasad has said the Prime Minister is “as pure as Ganga”. In 1981, when Lok Sabha discussed the scam relating to purchase of diesel from a Hong Kong firm, Kuo Oil, K.P. Unnikrishnan alleged the involvement of those around Indira Gandhi and asked the Prime Minister, “Madam, if the Gangotri is polluted how can we en- sure purity of the Ganga?” In her reply, Mrs Gandhi sidestepped the allegation and said, “Corruption is a world phenomenon”. She cited allegations against British PM’s spouse Dennis Thatcher; a Prince in Holland and a top leader in Japan. (Committee on Public Undertakings in later years determined the colossal loss Indian Oil Corporation suffered in the Kuo deal.)
The first scam in our parliamentary democracy was exposed by Rahul Gandhi’s grandfather, Feroze Gandhi in 1958. Being the Prime Minister’s son-in-law did not deter the member from Rae Bareli from ripping apart Finance Minister T.T. Krishnamachari (who had to quit) and lay bare what came to be known as the Mundhra scandal. Feroze Gandhi cited noting from secret government files. The government’s objection was dismissed by Speaker M. Ananthasayanam Ayyangar, who ruled that the scope of Article 105 of the Constitution empowers a Member of Parliament to cite documents marked “confidential” in the course of exposing an act of wrongdoing by a public servant, “even if the document has been obtained by stealth”. (An MP has to authenticate the document under his signature and lay it on the table of the House—in doing so he invites contempt proceedings if the document is found to be false.)
Mundhra was just one issue raised by Feroze Gandhi. A year earlier he had caused the imprisonment of Ram Kishan Dalmia, who then owned Times of India. He had also demanded nationalisation of a Tata company, Telco (now Tata Motors) for unfair practices. Apart from Feroze Gandhi, the MP from Kanpur, S.M. Banerjee cited government files in the Ruby Insurance scam. (Between 1957-77 a Bengali represented UP’s biggest metro: caste politics came later.)
The Gandhi family has retained the Rae Bareli legacy of Feroze Gandhi. And that’s about it. In 1982, Ottavio Quattrocchi first made it to the headlines after a subsidiary of Snam Progetti bagged the consultancy for Thal Vaishet fertiliser plant. Exposing the deal, K.P. Un- nikrishnan cited Ayyangar’s ruling and produced government files in Lok Sabha. He was charged by CBI for “spying”. A former sheriff of Bombay, N.N. Kapadia was arrested as he represented an American firm, which had lost out to Snam in the scam. A year later, this writer cited files of the Prime Minister’s Office while writing in Kolkata’s the Telegraph about a telemetric deal of ONGC in which an Italian firm, Ferranti had bagged the contract. When the report was flashed in Parliament, ruling party MPs led by Rafiq Zakaria demanded a probe—not on the deal, but on the leakage of files. CBI summoned this writer. Propriety had not entirely been vanquished. When journalistic privilege of secrecy of source was cited in defence, the joint director, C.M. Sharma found merit in the argument. On the Thal case, Unnikrishnan cited parliamentary privilege and the case still lingers in CBI records.
Rahul Gandhi’s “attack” on PM was billed for Parliament. Cacophony notwithstanding, the process of Parliament, of giving a formal notice of the charges to the Speaker with simultaneous notice to the Treasury benches was not complied with. The allegations seem serious. They are part of a petition by Prashant Bhushan pending before Supreme Court. The Richter scale was dormant when the grandson of Feroze Gandhi spoke in Mehsana as parliamentary practice was ignored.
The ruling party’s counter, that Rahul Gandhi is “scared” of the Agusta deal too is a matter pending not merely before a CBI court at a preliminary stage, but is an active case in the courts of Italy. Matters came to head following a judgement of the court of Busto Arsizio on 9 October 2014, which was upheld by the Court of Appeal in Busto Arsizio on 7 April this year. Italy’s Supreme Court in Rome on 16 December has quashed certain portions of the earlier judgement and asked the Busto Arsizio appeals court to review its order. This perhaps necessitates retrial, which, as per Italy’s law of limitation, has to be completed by March 2017. As the controversy began in Italy, the outcome of the retrial needs to be watched.
The Bofors howitzer, whose acquisition in 1986 led to the downfall of Rajiv Gandhi (allegation yet to be proved), is known for its shoot- and- scoot ability. This was amply demonstrated in the Kargil war of 1999. The Opposition in 1986-89, of which BJP was a driving force, used shoot-and-scoot tactics and the political mileage was tremendous. One does not know if Rahul Gandhi too is indulging in shoot-andscoot. Political allegation, if made, must be of the order of the Feroze Gandhi heritage, which is best summed up as hoot and toot. The power to demonetise India’s currency is controlled by statutes and subject to the Constitution. All exercises of such power are controlled by democratic discourse. No policy, large or small, including demonetisation is immune from the judicial review of the rule of law. No exercise of power can escape the control of parliamentary and people’s discourse or the strict scrutiny of the rule of law. These are the street anchors on India’s democracy. The government pretends that demonetisation is a secret weapon which can elude a full discussion in Parliament or rigorous examination by the Supreme Court and High Courts.
The facts will show that its policy is full of holes. After the Reserve Bank Act in 1934, demonetisation was done on 31 January 1946. Under Section 22 of the RBI Act, the Bank shall have the right to issue currency notes on the recommendation of its RBI’s Central Board supplied by the Central government. The Central government shall have no power to issue currency notes (Section 22 [2]). The Central Board may recommend the discontinuance of legal tender as prescribed (Section 26 [2]). Strangely, Section 26A introduced in 1956, made the grand declaration that Rs 500, Rs 1,000 and Rs 10,000 will be discontinued from 13 January 1946. A statutory provision was passed by Parliament under Section 28A (introduced in 1959) that the Bank could issue notes of 5, 10 and 100 rupees and the government would recommend Re 1 notes and coins. The Nehru government understood the issuance of notes to be a parliamentary issue especially as moneys were guaranteed by gold bullion and other securities (Section 33). The demonetisation of 1946 was reversed in 1954. The next demonetisation was in 1978 (the Janata initiative was clumsy and ill thought out). In October 1987, the Rs 500 was back and the Rs 1000 in 2000—all for regulatory reasons without hurting the public.
The Modi government inaugurated the aatishbazi of surgical strike. Post Uri followed a minor operation against Pakistan, which it called a surgical strike. “Wah! Wah!” the people clapped as if India had captured Pakistan. Pakistanis promised retaliation. India, further counter retaliation. But a bigger event was needed to impress the nation of the fight against black money.
In fact there was no real crisis for the second demonetisation surgical strike. Let the abysmal facts speak for themselves. The demonetised Rs 500 and Rs 1,000 make 85% of the 17.97 trillion economies. On 5 August, Minister of State states that the Fake Indian Currency Notes (FICN) was Rs 400 crore. So the fake currency argument was silly (0.022 of the circulation. 0.00281% Rs 1000 notes were fake; and 0.00191% of Rs 500s). The justification was to sift out black money. Did you really expect a clean out? The white money in Rs 500 and Rs 1,000 was considerable well over 75%. The target of black money was that the rich and powerful who had already invested in buildings, lands, assets, consumption and payments. Shopkeepers organised and disorganised labour. This is India’s vibrant black money. Who was being flushed out? The rich? Hardly. Your ordinary person that stood in line and over 50 or more of whom committed suicide. I want to introduce a legal term here called “direct and inevitable effect”. The government is responsible for the direct and inevitable effect of its actions. The government paid no notice to the tragedy it had perpetuated. Then the government changed its goalposts to aim for a cashless economy for 1.2 billion people with half below the poverty line. The logo: own a phone become cashless:
There is no policy or law of the government that cannot be discussed in Parliament. Secrecy before 8 November to prevent currency trade was obvious. But what about after 8 November? It was the duty of the government to offer a full fledged debate informed by all information—past, present and future? At least an adjournment debate? Demonetisation was on a major policy on which the government could win or fall. Don’t blame the opposition for demanding a debate even if its actions were unruly. Throwing paper darts at the Speaker is unforgiveable. But why not a full fledged debate? There was and is no reason. This was the stuff of confidence motions. After all the politicking a clear legislative debate was not permitted to emerge. Democracy was subverted.
India is governed by the rule of law. Earlier, India copied England to say (1) ministerial decisions cannot be judicially reviewed; (2) courts should not review policy decisions. Both these limitations have been bombarded by Indian constitutionalism. In 1968, the English denuded the “unofficial” ministerial protection. This was followed in India to the detriment of many Chief Ministers. In 1977, the Supreme Court smashed the view that the courts would not go into “political” questions. As long as there was a constitutional transgression, “political question” is not a defence. The third trajectory was respect to “policy” was the domain of the exemption. The latter are allowed some play in the joints, but not immunity from the judicial examination. Not to examine such a fractious policy is to abandon the Constitution.
Apply this to demonetisation. All factors were not taken into account (Wednesbury), the doctrine of proportionality was thrown to the winds (Teri Oates). The entire concept of constitutional reasonableness was ignored (V.G. Row), the policy was manifestly unjust and arbitrary. The direct and inevitable effect of the policy affected and hurt millions.
The saddest part of demonetisation is that it has not been tested by democracy or the rule of law; and, therefore, the scrutiny of constitutional democracy.
The first scam in our parliamentary democracy was exposed by Rahul Gandhi’s grandfather, Feroze Gandhi in 1958.