It is true that the Supreme Court in the Jain hawala case had ruled that diary entries do not constitute "admissible evidence". But the Supreme Court also ordered that whenever any record indicating illegal payments to any public functionary is recovered by any government agency, a "thorough and independent investigation" must be undertaken. All the Opposition are asking for is that such a thorough and independent investigation be undertaken. Has it?
Neither Modi nor his propagandists have dared answer. After all, they only have to detail the follow-up steps taken by the IT department once the diary entries were seized on 22.11.2014 by the IT's investigating team headed by one Ankita Pandey, whose signature and stamp describing her as Deputy Director (Inv) appears on the document. So, is this document genuine? Prima facie it is, because after such search and seizure, not only does the head of the team sign, but his or her signature has to be backed by the signatures of two witnesses, in this case Yogesh K. Yadav and another. Also, a representative of the firm or organization that has been raided has to affix his signature. Such a signature is also to be seen on the seized document. It appears to be that of Sahara's Shubhendu Amitabh. At any rate, Amitabh is on record as affirming that references to "Gujarat CM" are his personal jottings for "Gujarat Alkalies and Chemicals." As Sahara's man is not denying the contents of the documents, and the IT department is not denying the signatures of the deputy director and the witnesses, it follows as night the day that there is good reason to believe the documents are authentic recoveries from the premises of Sahara.
Another easy authentication is possible. No raid can be undertaken on a whim. It has to be authorized by a higher officer. That officer has to be satisfied that a raid is required on the basis of whatever leads are available with the department. All that would be on file. A "thorough and independent" investigation would reveal who issued the search and seizure warrant and why, as also how the team was constituted. And although officers of the IT department are not authorized under the Income Tax Act to speak to the media (which is why Ms. Pandey has said nothing in public), she and other IT officers concerned would be required to speak the truth, the whole truth and nothing but the truth to an independent investigation agency such as the CBI (notwithstanding its damning indictment as a "caged parrot").
An honest government would not need to wait for a court directive to initiate a thorough investigation by an independent agency; it would do so as a matter of course in view of the Supreme Court's directions in the Jain diaries case. The investigation would also have to look into the accounts of Gujarat Alkalies and Chemicals to discover whether they received the relevant payments on the dates indicated through intermediaries named by the Sahara Group. If they did, the separate issue of whether they declared these payments in their income tax returns might arise. But if their records do not show any such receipts, then the ball squarely returns to Sahara's court. What stands in the way of such simple confirmation of facts? Obviously, the Modi government itself.
Is there a nexus between the payments made to "Gujarat CM" and any action taken to favor Sahara? As of now, no one can say for certain, but any PM concerned with protecting his reputation would surely want his innocence revealed through a thorough and independent investigation? Not Modi. He ducks and weaves but does nothing to explicitly deny his involvement. Why does he not follow Sheila Dikshit's example and demand an investigation? That is the path of the innocent. The guilty hope silence will overcome the charge.
Moreover, standard operating procedures in the IT department demand that that within a period of three months, the Investigation Directorate complete an Appraisal Report of the documents seized. That does not require the PM's authorization; it does not even require the concurrence of the hapless Arun Jaitley (surely the most sidelined Finance Minister in history). It is part of the laid down procedure. Of course, the investigating officer concerned can seek more time. Has he - or she - done so? Only a thorough and independent investigation will reveal that - unless, of course, the IT department comes clean of its own accord.
Also, before the Appraisal Report is prepared, the assessee (in this case, Sahara) is given every opportunity of explaining their point of view. Has Sahara ever been called by IT to explain? If so, what were they asked and what did they say? And if not, why not? One presumes it is not every day that the Prime Minister's name comes up in seized documents. Why then this reluctance to tell the whole story? Only if guilt lurks in hidden corners.
In cases involving more than one branch of a commercial undertaking as geographically widespread as Sahara, the relevant documents are brought together in IT's Central Circle so that the Appraisal Report can be prepared at one point. Has this been done in the instant case? If not, why not? One newspaper account says an Appraisal Report running to thousands of pages is, in fact, ready. Is this so?
And in the absence of convincing corroborative evidence but strong leads, the IT department has to call in either the Enforcement Directorate or the CBI. Has this been done? If not, why not? What is being asked for by the Opposition is the current status of the Appraisal Report and the action, if any, taken thereon. Guilt and innocence are for the courts to decide and the Supreme Court is already seized of the matter. The NGO Common Cause brought up this matter incidental to its main petition pertaining to the appointment of the Central Vigilance Commissioner. They have been asked to substantiate their claims. Prashant Bhushan, their lawyer, has indicated that he will be doing so at the next hearing. But whether or not an individual lawyer is able to undertake a "thorough and independent" investigation is open to question. All that is really required is for sufficient material to be placed before the Supreme Court for it to order an independent investigation by the appropriate government agency under the court's supervision and the assistance, if required, of an amicus curiae.
The Truth will out eventually - although demonetisation might carry away Modi before that happens, as the people of India ask themselves whether the man they elected as Prime Minister deserved the 31% minority vote he got.
(Mani Shankar Aiyar is former Congress MP, Lok Sabha and Rajya Sabha.)
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