The scam that never was

From terror cases to murder of public intellectuals to scams, the Indian state has no capacity to deliver justice

The process of distributing spectrum by former prime minister Manmohan Singh’s government is referred to as the 2G Scam. A judge who has examined the material presented by the state says there was no scam.

The papers will be full of details but a couple of points must be visited. Judge O P Saini says “there is no evidence on the record produced before the court indicating any criminality in the acts allegedly committed by the accused persons.” And, also that “the charge sheet of the instant case is based mainly on misreading, selective reading, non-reading and out-of-context reading of the official record”.

Was there hanky-panky in the distribution? Our instinct before the verdict would have been to say that there indeed was. It is a shame that the acquittal happened on the basis of the state’s incompetence. This was a case that was too important to bungle, but bungle it we have. 

A little over 20 years ago, as a sessions court reporter, I was approached by an advocate named Shyam Keswani. He said he was one of the lawyers representing Iqbal Mirchi, accused of smuggling narcotics, whom the Indian government was trying to extradite from the UK. The extradition hearing was happening soon, Mr Keswani said, would I like to have a look at that charge sheet? I said I did and took the 200-or-so-page document he gave me home.

I spent the night reading it and it was a case against a few other individuals: There was no mention in it of the man the government was seeking to extradite till the absolute last page. One line on that page read: “Also wanted in the case, one Iqbal Memon alias Mirchi”.

The case was thrown out of course and Mirchi remained in London. The state in India is weak and lacks capacity as we all can observe but one area where it is uniformly poor is in matter of investigation, particularly forensic investigation, whether into white-collar (i.e., financial) crime, such as the 2G non-scam (will journalists be required to rename it now?) or even regular crime. 

We have a very poor conviction ratio, under 50 per cent, and this rate collapses when one looks at appeals and particularly at serious crimes and trials where the accused are not poor.

Illustration by Binay Sinha

The British left behind a policing process that reflected its priorities, those mainly being law and order, and also reflected the limitations of its budget.

 A few years after the Mirchi episode, some of us gathered in Mumbai to discuss the Godhra episode at a round table called by Asghar Ali Engineer (now no longer with us, alas). At that meeting the former IAS officer Harsh Mander said that the state in India was designed with the capacity to end public violence like riots of any scale inside 24 hours.

This it was still able to do — the fact that some governments instruct the police to step aside while the majority avenges itself is another matter. But what it was not able to do, perhaps because the design itself lacks it, is the investigation bit.

Police stations carry photographs of the usual suspects in the neighbourhood and investigations into household theft begin with a ritual thrashing of the servants. Of late, we have added rubbish, like “narco-analysis” – essentially drugging people and recording their hallucinatory mumblings – that would not be accepted as evidence anywhere in the civilised world.

Beyond that we have not developed either method, science or structure. Any crime that does not involve immediately identifiable benefit (“cui bono?” in the words of Cicero) will likely remain unsolved.

The highest profile murders of our time – M M Kalburgi, Narendra Dabholkar, Govind Pansare, Gauri Lankesh – remain not only unsolved but actually clueless in the sense that the police have no workable clue. Lankesh was a friend of mine (she used to bring over people like Kanhaiya Kumar and Jignesh Mewani to build the resistance to our violent and damaging religious nationalism). A couple of hours after we heard of her assassination, another friend called from the spot: Anyone was being freely allowed access to the crime scene.

It is not surprising that we’re still in the dark there.

The Union government controls the Central Bureau of Investigation, which as the Aarushi trial shows is an incompetent and malicious body, the Intelligence Bureau, the Enforcement Directorate, and the National Investigation Agency, which has shamed India by smearing Kashmiri leaders and then producing no charges.

The state governments control the police. The rot runs through it all. No party is exempt and even our most lauded chief ministers have failed here, and even in their most important tests. I’ll close with an example.

On 24 September 2002, six months after the Godhra riots, two men with assault rifles murdered over 30 Gujaratis and security personnel in Ahmedabad’s Akshardham temple. The two killers, apparently Pakistanis, though we are not sure, were shot dead. However six Indian Muslims were picked up and tried. 

Acquitting all the men, the Supreme Court said: “Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and imposed the grievous charges against them which resulted in their conviction and subsequent sentencing” (page 280).

Of Prime Minister Narendra Modi’s role as home minister (a portfolio he held throughout his stint as Gujarat’s chief minister, with Amit Shah as minister of state) in approving the charges, the court said the case showed “clear non-application of mind by the home minister in granting sanction” (page 109).

The thing was put together so shoddily that the Gujarat police had a handwriting expert who verified the Urdu handwriting of the accused, while admitting he knew no Urdu and could not tell it from Arabic or Persian.

From terror cases, to murders of our public intellectuals to “scams”, which robbed us of nearly Rs 2 lakh crore, the Indian state has no capacity to ensure the delivery of justice. There is no grand plan to change this and there is not even recognition of failure. The bumblers carry on, and often are rewarded.