Life Among the Scorpions

by Jaya Jaitly

  Meanwhile, Chris Mills appeared at the Commission and was allowed to speak for just twenty minutes on the stand. Gopal Subramanium and his team of lawyers advised the judge to disallow questions by any other lawyers, including all other noticees, Tehelka and government lawyers. They simply shut Mills down. Chris Mills was stunned. He told us he felt humiliated and short changed considering the expense we had incurred for him to do his job. I arranged for media interactions and even a television appearance on India TV channel. Nothing had any effect, and I was certain the judge was unaware of the ramifications of new digital technologies and their importance.

  The proof that the transcripts were incorrect ultimately spilled out inadvertently when a Tehelka lawyer’s references were not the same as in the transcript held by Soli Sorabji. Sufficiently chastened, the Commission ordered re-transcription of all the tapes by the Ministry of Defence—the only ones with available personnel. After several weeks, 700 more pages of transcript emerged, many parts of which contained exculpatory material. We finally got the unedited transcripts.

  When we asked for copies of the tapes to view carefully on our own, we were reluctantly given one set and made to copy them at our own expense. Do the accused ever have to pay to receive material provided as evidence of their supposed crimes? Well, the rules seemed to be different in this case.

  In 2002, finally, my turn to depose came along. I was excited, eager and confident. The previous evening, when chatting with Niloy Dutta, I had cried for a few moments at the sheer ignominy of being made to convince a complete stranger that I was not a corrupt person. The trigger was an article I had seen in that national Hindi daily about corrupt officers in Uttar Pradesh. It referred to a statement by Mahatma Gandhi I had come across when he was once accused of putting away pounds sterling in London. The gist of the story was that the good always lose out at the hands of the crooked and ruthless. As I said earlier in the context of Gandhiji’s influence on my life, this seemed to resonate with me deeply in ways that motivated me to fight more although there was much happening around me that was discouraging.

  Niloy was nervous thinking that I would be shaky the next day before the judge. What happened was a comedy of errors. The good old CBI, as a matter of sheer coincidence, had decided to raid the office premises of Tehelka on a complaint of causing illegal acts of poaching so as to be able to make a film on poaching in a forest in Uttar Pradesh. It had nothing to do with us. But as expected, there was an uproar against us for manipulating the CBI. I happened to meet the CBI chief at a social function during that period and shared that I had been put in a soup at my deposition because of the CBI raid on Tehelka. He replied rather sombrely, ‘Ma’am, the CBI does not look all around to see what else is going on the day when it plans its actions.’ Fair and plausible enough, I concluded.

  The gentler of the Tehelka lawyers, Kavin Gulati, was made to cross-examine me. In my chief deposition, I described and displayed the modalities of manipulation indulged in to portray me as a crook. I answered every question without a pause or doubt.

  Gopal Subramanium’s junior, Dayan Krishnan, thought his next question was going to clinch my guilt. He had a triumphant look of expectation on his face. He asked me, ‘You deny that Gopal Pacherwal was present at the scene. Then how have you referred to him by name throughout your deposition?’

  I gave the only answer I could: ‘You cannot see anyone’s face in the tapes except mine throughout the filming. I would have had to refer to everyone as “unidentified person”. Instead, I merely followed the names offered by Tehelka.’ He had nothing more to say.

  Niloy, grey haired and usually a bit formal, had a broad smile on his face when I stepped off the stand. ‘Can I give you a kiss?’ he asked happily.

  Incidentally, in the midst of all this, my first grandchild, a boy, was born. I spent my time between Commission hearings every afternoon and helping my daughter with her newborn for the rest of the day and night.

  The transcripts of over 10,000 pages piled up as the Tehelka journalists answered penetrating questions from the lawyers of so many noticees. They were surprisingly cavalier and blasé about the gaping holes in their allegations. It was as if they were heroes in the eyes of the world and needed to give no credible explanations for inaccuracies, loose ends and statements with no evidence to back them up. After a series of dead ends, when Tarun Tejpal, the chief of Tehelka had no credible answer to support presumptions made in the tapes, his answer was he did not have the facts, because in fact ‘the Commission was there to find out the facts’. Under rigorous questioning, they admitted to not being necessarily accurate and of actually putting the system rather than individuals in the dock. No one cared to ask why then were those individuals having to have their reputations tarnished and having to spend time answering questions to defend their integrity.

  The gem they finally pulled out of their bag of tricks and evasions was ‘George is not corrupt’. This, after practically carrying his head on the tip of their swords and doing victory marches.

  ~

  Tehelka’s story began interestingly by referring to Joseph Heller’s classic anti-war novel Catch-22. Everyone had read it at some stage for its dark humour and fierce condemnation of war. I thought it ironic that Aniruddha Bahal of Tehelka, who wrote the ugly commentary, used Heller’s writings for his opening mood piece, to go on to condemn the mighty Indian defence establishment itself, whose job, for a start, is to prevent war. The story ends with them saying that the entire brave exercise of the Operation West End documentary ended with them ‘getting’ a 26-page evaluation letter for a product from the Ministry of Defence as a result of their bribery. But the letter was not really obtained because their ‘cover was blown’ and the person who was supposed to give it to them was forewarned and became incommunicado. Or so they say. They could produce no record of any sort to confirm any of this, nor of purported demands for call girls or many other conversations, despite several of their stories resting on the strength of telephone calls they never recorded, even when they had the equipment to do so. How could anyone in their right mind have believed them? Sadly, all these questions were never allowed to be analysed.

  After one and a half months and over thousands of questions, the best response to questions by various lawyers on why he spread lies among the people they had conversations with in the process of building their story, was given by Matthew Samuel. He was the man who actually went around with hidden cameras, encouraging people to respond according to the lies he had fed them. When asked why he lied for instance about my daughter’s non-existent job and my never-happened dinner with a Major-General, he said that he wasn’t lying, only boasting. A boast can sometimes be a lie but a lie isn’t a boast, but who cared? There were also admissions around the fact that amounts exchanged during the alleged transactions could not be accounted for since they were never filmed.

  In another detection exercise, my team set out to demolish Tehelka’s claim that the blank tapes were legitimately obtained. They submitted invoices of these purchases. The letterheads and signatures looked fishy so we sent blank letters to all the addresses—in Ghaziabad, Old Delhi and other places by Speed Post. They returned with stamps saying: ‘No such address’. Only one turned out to be a modest grocery store. Pinned down, Tehelka admitted to acquiring them from the ‘grey market’ and delivered to the doorstep of an anonymous staffer’s home. We took this to the press. The Tehelka journalists’ comments were printed loud and clear on the front pages of Mail Today calling me ‘hysterical’ and a ‘mad woman’. I enjoyed it.

  At the Commission, Tehelka admitted that a single person accounted for under two names—Anil Malviya and Rajiv Sharma—in their ledgers, who had provided the call girls, was now dead!* The mystery of how this young man died suddenly in Allahabad during the investigation has never been explained. Akshay Mukul, journalist with The Times of India followed the story, as did I. Tehelka said he died at the Kumbh Mela. I checked with the Uttar Pradesh Chief Minister at the ti
me, Rajnath Singh, who confirmed proudly that not a single person had died at the Mela. Then they clarified that he had died at the railway station during the Mela. I checked with Nitish Kumar, who was railway minister at the time. His office confirmed that there had been no death at the railway station. Finally, Tehelka explained that he had felt unwell at the station, had returned home, and died in his bed. We traced the man’s family in Mumbai to have this confirmed. There was no conclusive response from there.

  George Fernandes thought he would ask the Home Minister L.K. Advani about how to acquire this gentleman’s death certificate from Allahabad. When he got him on the phone, it was 11 September 2001. Advani cut him short.

  ‘George, are you watching television?’

  ‘No, why?’ asked George Sahib.

  ‘Turn it on immediately.’

  I did it for him as he never looked in the direction of a television set.

  Images of the twin towers standing in flames in New York were being shown as it was happening. We watched a hugely significant moment in history and left the subject of Anil Malviya/Rajiv Sharma hanging in mid-air forever.

  George Fernandes was later reappointed Defence Minister because the situation in our region had destabilized and the country needed a full-time minister to head the crucial department.

  ~

  At the Commission, Tehelka finally admitted that they had misrepresented facts about their journalists’ educational qualifications, and age. They also admitted to having submitted false bills for purchase of tapes from non-existent shops.** A hawala operator from Chennai named Shamsuddin confirmed in a written confession that six crore rupees had been paid into Shankar Sharma’s First Global account in Mauritius, and from there to the same company in Mumbai. It was from this account that Sharma funded Tehelka’s Operation West End which they termed in court as ‘a leanly funded journalistic operation’. And yet, they calmly denied being able to account for the number of cars and computers they had bought with this money. These records are in some Enforcement Directorate files and full transcripts of all depositions at the Commission are now with the CBI. I have a few trunks full of records too, waiting to be burned in a celebratory bonfire when the whole show is finally over.

  Justice Venkataswami may have been partly persuaded by my deposition to send the tapes abroad for questioning, or so we heard through the grapevine. He also announced he would next go into Tehelka’s financial matters, as mandated.

  In the meantime, Congress’s Kapil Sibal mounted an attack on the judge in November 2002 for his appointment as chairman of the Authority on Advance Ruling on Customs and Excise which he had accepted in May at the behest of none other than the then Chief Justice of India. He accused this God-fearing, tika-wearing, soft-spoken gentleman of being bought out*. Justice Venkataswami was truly honourable. He quit both assignments on 23 November 2002.

  I wrote a private note to Justice Venkataswami regretting that opposition parties had denigrated the judiciary and that he had to face attacks usually faced by us, politicians. I added that despite him often not being sympathetic to my genuine and honest requests, I had always respected his intentions to get to the truth. He wrote back immediately saying,

  Dear and respected Ms Jaya Jaitly,

  I acknowledge receipt of your kind letter dated 24th November 2002. I thank you sincerely for the sentiments expressed in the said letter.

  Wishing you all well.

  Please accept my regards and respects.

  Yours sincerely,

  K. Venkataswami

  It was very gracious of him to do that. He need not have replied at all.

  But, without a Chairman, the Commission ran aground for four months. Even during this lull, the activist in me did not rest. We had earlier set up a little sting operation of our own called Project Email. This was because during the writ petition hearings in the Delhi High Court, we had begun to suspect the worthy gentlemen on the Commission and Tehelka’s legal teams were not just legal buddies. They seemed to be working so closely and in tandem that their statements, responses and questioning of witnesses which were seamless at the Commission’s proceedings, were even more convivially and openly carried out in the courtroom. The Commission’s counsel would at times be seen whispering relevant information to the Tehelka counsel even in the appellate court. Its counsels surprisingly never opposed any plea of the Tehelka group. They vigorously supported the view that the videotapes upon which people were to be examined did not need to be forensically scrutinized and certified as genuine although no one knew whether they were the real thing at all. As one of the expert witnesses presented by Tehelka said in September 2001, ‘For all I know the tapes lying with the Commission could be blank’.

  In August 2002, I decided to see whether there was a strong professional connection or only a personal friendship that I was misconstruing. I telephoned the residence of the Commission’s junior counsel, Siddharth Agarwal and asked whether it was the office of Luthra & Associates as I was inquiring on behalf of foreign clients. I was directed to telephone a Dr Vijay Agarwal and given his number. A male friend telephoned on my behalf and explained that one Anurag Sharma of May & Co in Dubai was inquiring about a good legal firm to conduct a title search and other basic formalities to set up a cancer hospice in Haryana. He said that as a doctor he would help later but an email should be addressed to his son who was a lawyer. When asked if he was a partner in Luthra & Associates, he said his son and Siddharth Luthra were associated with it but not strictly partners. I sent an email to Agarwal at the address given by his father with a copy to the father, giving all the details of the client’s requirements and asking for the profile of their firm, with the names of all the associates and partners. Within two days, on 12 August 2002, I received a lengthy and effusive reply, not from Agarwal but from Siddharth Luthra, the Tehelka counsel. He listed the capabilities, achievements and names of all those who worked as part of an ‘enthusiastic and capable’ team of associates in different areas of specialization in the firm Luthra & Associates. Siddharth Agarwal was listed under various areas of expertise and assistance. He copied Agarwal in the email. This clearly meant that in March 2002 and as on 12 August 2002, the two counsels were very much associated as per their own document. A few more emails passed back and forth including a reminder from Agarwal saying ‘we would be happy to meet you’, until Anurag Sharma’s silence made them suspicious. They then sent three virus-ridden emails to the address I had created. I checked with VSNL to confirm that Luthra’s email address was indeed his. It was. I checked with the Delhi High Court records to see whether they appeared as a team out of Luthra’s chamber. Court orders of November that year, confirmed it.

  My little sting operation was not with the intention of creating a sensation and earning a packet from a television channel; it was done neither to unveil lawyers as being a part of a corrupt system, nor to destabilize the work of the Commission or to put the inquiry under a bad light. However, it was necessary to remind the opposition parties who hounded Justice Venkataswami out of office that if judges have to be credible and therefore not take on two jobs, the lawyers assisting them had equal responsibility to reveal that they too did not have a foot each in both camps. Furthermore, persons in close association with those being inquired into should not have been brought in to assist the fact-finding Commission. After all, there are thousands of other capable lawyers in this country; the government was anyway footing the bill, and ‘Caesar’s wife’ would have been beyond reproach. Following Justice Venkataswami’s exit, I exposed the collusion between Tehelka lawyers and the Commission counsels and distributed the emails to the media at a press conference.

  Since the Commission of Inquiry was in limbo, no one could accuse me of trying to make false accusations. As the news came out, Soli Sorabji. rang me in shock, asking, ‘Jaya, what have you done? Poor Gopal!’ I replied calmly, ‘I am sorry, Soli. If Gopal did not know what was going on, he should have done so.’

  Gopal Subramanium and
his entire team resigned from their Commission appointments the next day.

  From the first ridiculous time frame of four months given to the Commission to finish its task, it seemed as if there would never be a conclusion. This was obviously what the Tehelka journalists wanted, because when Justice S.N. Phukan, then heading the Assam State Human Rights Commission, agreed to simultaneously take up the unwanted hot potato of the Tehelka inquiry in January 2003, Tehelka, led by its lawyer Prashant Bhushan, who is today a crusader for transparency, let forth a tirade at the resuscitated Commission and announced its boycott. He obviously believed we were corrupt or preferred to assist Tehelka since it was attacking a government he did not like. Perhaps his clients or friends were adamant they did not want the tapes, their motives or financing examined. Since Justice Phukan had been appointed to the state commission by the Congress government in Assam, they perhaps could not attack his integrity immediately.

  Justice Phukan meant business and did not allow anyone to delay matters. He took calmly the fact that the Tehelka team decided to walk out of the Commission’s proceedings as soon he announced the tapes were being sent for checking. The Judge also produced a 900-page report on the first part of the Inquiry covering 1400 confidential files of the Ministry of Defence and the depositions in camera of George Fernandes and other officers. He handed this report over to Prime Minister Vajpayee on 4 February 2004. I remember a feeling of relief and expectation upon the fact that at last the report would be made public and the Ministry would hopefully be cleared completely. It had transpired during the examinations that many so-called deals which were supposedly concluded based on commissions and bribes were either matters already concluded by an earlier regime, or not even taken up for discussion, or still in the early stages where no decisions had been taken at all. So Tehelka’s unsavoury ‘documentary’ was more fiction created from meaningless ramblings of people they filmed.