The CBI has been shifting position on Mulayam Singh Yadav’s disproportionate assets case, based on the UPA’s political cues. With the presidential election on the horizon, this case could become pivotal. Ashish Khetan tracks the curious political game
IT IS common knowledge — and the country’s misfortune — that successive governments at the Centre, led by both the Congress and the BJP, have misused the Central Bureau of Investigation (CBI) to serve their own political ends. However, this story could count as one of the most stark and egregious misuses of the CBI by the ruling Congress regime. Defying every notion of fair play, rule of law and constitutionality, for the past five years, the UPA has kept the CBI probe against Mulayam Singh Yadav’s alleged disproportionate assets in a limbo, alternatively reviving and burying it to suit its changing political needs. Since 2007, each time the UPA has wanted to arm-twist the Samajwadi Party into submission or required the support of its MPs to save the government (most famously during the 2008 trust vote over the Indo-US nuclear deal), the CBI has raised the spectre of prosecuting Mulayam and his family for amassing allegedly illegitimate wealth. And in every instance, once the UPA’s political ends were served, as a flagrant quid pro quo, the CBI gave just enough relief to Mulayam and his family so their political careers were not irredeemably derailed. At the same time, the agency left enough ambivalence in the matter so that, if required, the case could be easily revived.
In a sense, Akhilesh Yadav owes a lot to the Congress for becoming Uttar Pradesh’s chief minister. Had the CBI, acting at the behest of the UPA government, not filed a scandalous application before the Supreme Court in 2008, reversing its earlier stand of wanting to initiate criminal proceedings against the Yadav family, Akhilesh in all probability would have had to face criminal proceedings. This could have rendered it politically untenable for him to hold the CM’s office.
With Mulayam now interested in becoming the Vice- President of India, or in a best-case scenario for him, the President, his future once again hinges on the stand the CBI would take in the ongoing disproportionate assets case against him and his family before the Supreme Court. On the one hand, the UPA needs Mulayam not only for the substantial votes the Samajwadi Party will bring to the electoral college that elects the new President, it also needs his 21 MPs in the Lok Sabha to impart much-needed stability to a tottering government. On the other hand, Mulayam needs the CBI to take a soft stand on the pending petition against his alleged disproportionate wealth. Any adverse move by the CBI in the pending DA case would mean a death knell for the veteran’s ambitions. The upshot is both the UPA and Samajwadi Party need each other for their individual political goals.
Looking at the history of the misuse of the CBI in Mulayam’s case, it would not be unreasonable to assume that the Congress would once again use the suspended CBI probe against the Yadavs to secure the best possible political deal for itself. Former Samajwadi Party general secretary Amar Singh — famously close to Mulayam for years and now equally famously estranged — revealed to TEHELKA that both Mulayam and he first thought of supporting the UPA over the nuclear deal only because they saw it as an opportunity to get the Yadavs off the hook in the ongoing CBI probe. “Both Mulayam and I were of the view that if we wanted any kind of relief in the CBI case, then we’d have to change the party’s anti-Congress stand,” he says. “But we also realised that if the impression went around that we were backing the UPA only to get relief in the disproportionate assets case, then it would hurt the party’s image. So the party gave the statement that the nuclear deal was in national interest and that’s why we were in favour of it.”
Vishwanath Chaturvedi, the man behind the PIL that initiated the case against Mulayam, told TEHELKA that two senior Congress ministers had approached him twice with an offer to withdraw the petition. At one point, Chaturvedi was close to the Congress leadership but has now fallen out with the party. “This government has played a dirty game by using my PIL for its ulterior motives,” says Chaturvedi.
This then is the disturbing story of how a case of immense public interest — which involved serious allegations of corruption against one of the most prominent political families of the country and involved important questions of probity and accountability of those holding positions of power — has been reduced to an instrument of political blackmail.
“In this case, the CBI has done the greatest disservice to its own reputation. The premier investigating agency can’t decide whether they want to go left or right,” says senior Supreme Court lawyer KTS Tulsi, who has also been the counsel for the petitioner in this PIL.
Besides the CBI, the office of the Solicitor General of India (SG) has also allegedly been misused by the UPA regime to serve its political agenda. The seemingly dodgy role played by the then SG and present Attorney General Goolam Vahanvati raises serious questions about the decline in integrity of the office of the SG and AG under the UPA regime. The CBI’s brazen flip-flops in this case were clearly assisted by an erroneous and untenable legal opinion given by Vahanvati.
“The Constitution lays down that the qualification required for both the AG and SG is the same as that required to become an SC judge. The implication is that the AG and SG would work with the same integrity and impartiality as expected from an apex court judge. The AG and SG are supposed to uphold the rule of law and not subvert it,” says a former SG on the condition of anonymity.
A PIL alleging that Mulayam had misused the office of UP chief minister and other public positions held by him since 1977 to amass illegitimate wealth was filed in the Supreme Court in December 2005. On 5 March 2007, following an SC order, the CBI registered a preliminary enquiry (PE 2(A)/2007/CBI/ ACU-IV) against Mulayam and his family. The objective of this exercise was to ascertain if prima facie there was any substantial evidence in the allegations levelled in the PIL. On 26 October 2007, the CBI filed an interloculatory application (IA) before the apex court stating that the agency had concluded its enquiry and now wanted to “proceed further in the matter without any reference to the Union government or state government”.
The IA said, “It is submitted that the CBI has concluded its enquiry and is willing to place the status report before this Hon’ble Court for perusal if necessary.” It further added, “It is submitted that in the event a preliminary enquiry undertaken by the CBI discloses commission of offences by the persons concerned, a regular case is registered and investigation in accordance with law is undertaken.” Para 8 of the IA said the CBI is “approaching this Hon’ble Court for an order/direction enabling the applicant to proceed further in the matter”.
A plain reading of the CBI’s IA left no doubt in anyone’s mind that it had discovered prima facie commission of offences punishable by law and was now seeking the court’s permission to prosecute Mulayam and his family.
The CBI’s application had come in the midst of a deepening crisis within the UPA-1 over the Indo-US nuclear deal. This was the time when the communist parties were threatening to withdraw their support to UPA-1 over the contentious deal. In July 2007, after months of sticky negotiations, India and the US had announced the finalisation of the nuclear deal. On 3 August, the text of the pact was released. Five days later, the CPI and CPM slammed the pact and asked the government to jettison it. On 11 August 2007, Prime Minister Manmohan Singh refused to give in to the communists and dared them to withdraw their outside support. On 17 August, Nicholas Burns, the main US negotiator, issued a statement that the deal could not be renegotiated.
On 18 August 2007, the communist parties warned of “serious consequences” if the government went ahead with the deal. But in October, the Congress started striking conciliatory notes with the Left parties, making it clear that it would prefer the survival of the UPA-1 over the nuclear pact. By November, it was agreed between the Congress and the Left that the deal would be shelved.
IT WAS around October-November 2007, when in the wake of the CBI application, a possible criminal prosecution hung over Mulayam’s head like the sword of Damocles, that the Congress approached the Samajwadi Party for a political deal. At the time, the SP had 36 MPs (however, two of its MPs had already joined the Congress) in the Lok Sabha, a number that was not enough to compensate for the Left’s 59 MPs, but still substantial enough to bolster the UPA’s chances of survival in the eventuality of a no-trust or trust motion.
As the negotiations between the Congress and SP were still on, on 10 March 2008, the CBI filed another IA before the SC for the purpose of seeking expeditious disposal of its prior IA filed on 26 October 2007. “It is submitted that while the stipulated time of four weeks has already elapsed, no reply/counter affidavit has been filed by any of the parties. In these circumstances, this Hon’ble Court may kindly be pleased to consider disposal of the said application or pass appropriate order/directions.” By filing this IA, the CBI further demonstrated its eagerness to prosecute the Yadavs.
On 8 July 2008, the Left withdrew its support to the UPA- 1 reducing the government to a minority. On the same day, Mulayam announced his support to the ruling coalition. “We welcome the nuclear deal and back Manmohan Singh’s decision to go ahead to the IAEA for the next step in the deal. If there is a vote in Parliament, we will support the prime minister and the nuclear deal,” Mulayam told the media.
On 22 July 2008, the UPA won the trust vote with 275 votes in favour and 256 against. Thirty-one MPs of the Samajwadi Party voted for the UPA-1 (Three MPs defied the party whip and voted against the motion, while two MPs — Beni Prasad Verma and Raj Babbar — had already joined the Congress).
In the meantime, Akhilesh’s wife Dimple Yadav made three representations before the Department of Personnel and Training, the ministry under which the CBI functions. One representation was made six days before the trust vote and the other two on 18 September 2008 and 29 October 2008 respectively. These representations were primarily about the wealth and income tax returns of the Yadavs. However, the matter before the CBI was not whether the Yadavs had paid their income tax or wealth tax, but the issue under investigation was the source of their stupendous wealth.
Now suddenly the CBI, which was until now extremely eager to “proceed further” and had filed two back-to-back applications before the apex court seeking direction to move ahead in the case, developed serious doubts about its own findings. “There were divergent views within the CBI as to whether at this stage the representations so received could be looked into. Therefore, the matter was sought to be referred for legal opinion of a high-ranking law officer of the Government of India,” reads one of the subsequent applications filed by the CBI in the court.
On 7 November 2008, the matter was referred to the then SG (and the current AG) Goolam Vahanvati.
On 21 November 2008, in a seemingly scandalous legal opinion, Vahanvati argued that the ongoing CBI probe against Mulayam should be closed. In what would qualify as legal obfuscation of facts, Vahanvati mixed up the standard of proof required to convict a person with the standard of proof that is required to initiate a criminal investigation. He cited several Supreme Court judgments to argue that there was no case against Mulayam and his family. Some judgments were about the established fact of law that the onus of proving that somebody was a benami property holder on behalf of a public servant was always on the prosecution. But in the case of Mulayam’s alleged illegitimate assets case, the prosecuting agency had not even begun a criminal investigation. Still, Vahanvati confused the process of investigation, which is meant to collect oral, documentary and other kinds of evidence, with the process of successfully proving the charge of corruption, the stage that arises once the investigation is completed.
Then Vahanvati went on to cite the judgments, which said that the property earned by the relatives of a public servant from legitimate sources of income cannot be clubbed with that of the public official in question. But again, in the case of Mulayam, this was exactly what was required to be investigated, which is whether the family members of Mulayam had independent and legit source of income to justify their vast amount of wealth or were they benami holders of Mulayam. But Vahanvati concurred that because Dimple Yadav had submitted that since all four Yadavs had been filing individual tax returns, their wealth could not be clubbed together.
But was that the issue before the CBI? The answer is no. The issue was not whether Mulayam and his relatives had evaded the tax on their wealth (the evasion of tax is a civil offence). The issue was the source of their income, i.e., how has the wealth come into existence in the first place (a matter of criminal investigation). In a way, Vahanvati prejudged the case in Mulayam’s favour when the investigation had not even begun.
TEHELKA spoke to many senior Supreme Court lawyers and asked them about their views on Vahanvati’s legal opinion. They were all unanimous in their conclusion that the opinion was legally unsound and erroneous to say the least. A senior lawyer said on the condition of anonymity that Vahanvati’s opinion could have serious repercussion for future corruption-related investigations.
“Every time a public official is accused of holding benami properties in the name of his relatives, he could show the IT and wealth tax returns and rely on the AG’s opinion and ask for the case to be quashed. If Vahanvati’s absurd proposition is followed, then the whole Prevention of Corruption Act would be defeated,” says an SC lawyer with more than 25 years of practice.
The opinion given by Vahanvati was so absurd that it even violated the basic principles of the PC Act. For instance, he had opined that Dimple Yadav could not be prosecuted under PC Act because she was not a public servant. This when, in various judgments, the apex court has already laid down that non-public servants found guilty of abetting corruption can be sentenced under the PC Act. A well-known judgment in this regard is P Nallamal vs state (the case of Jayalalithaa’s alleged illicit wealth) in which the SC had ruled that “the offence under Section 13(1) (e) of the PC Act can be abetted by non-public servants. The only mode of prosecuting such offender is through the trial envisaged in the PC Act.”
It is too well-known that corrupt politicians and bureaucrats often amass wealth in benami names or in the name of family members. An agency that is asked to probe whether a public servant has amassed disproportionate assets would be failing in its duty unless it also investigates whether such public servant has also held benami property.
TEHELKA sent a detailed questionnaire to Vahanvati raising all the above-mentioned issues and repeatedly followed up with his office for a point-by-point response. But the highest law officer of the country chose to remain silent on the issue which, according to TEHELKA, is of immense public interest and needs to be debated and resolved.
ON 6 DECEMBER 2008, armed with Vahanvati’s legal opinion, the CBI once again moved the court and said, “In view of the legal advice and directions of the Union of India, the IA filed by the CBI (the one that had prayed for orders to proceed further in the case) may be allowed to be withdrawn.”
In the meantime, the Yadavs also filed review petitions against the court order that directed the CBI to start a preliminary enquiry in the case.
While the Yadavs’ review petitions were heard in the court, Vahanvati appeared on behalf of the Union of India and argued that the SC judgment ordering a CBI in Mulayam’s case was incorrect. He also raised doubts about the integrity of the petitioner who had filed the PIL. In essence, he argued that the case should be closed.
At one point, an infuriated court even commented that the CBI was acting at the behest of the Centre and termed its conduct “very unusual and surprising”.
On 9 February 2009, a bogus CBI report surfaced in the media claiming that the agency has given Mulayam a clean chit. The CBI immediately issued a clarification that the said report was “totally false and fabricated”. The CBI lodged complaints with the Press Council of India and Information & Broadcasting Ministry and also registered a case of criminal conspiracy against unknown persons. But despite the hue and cry, the CBI didn’t do anything substantial to unravel the conspiracy behind the said bogus status report.
This was the time when the Congress and SP were busy negotiating a pre-poll alliance for the upcoming 2009 Lok Sabha elections. After many rounds of talks, the Congress made a final demand of 19 Lok Sabha seats with two seats where it agreed that both SP and Congress could field their candidates. In the remaining 69 seats, the Congress agreed to not contest. But Mulayam refused the offer. “There were internal factors because of which Mulayam Singh ji refused the seat-sharing arrangement offered by the Congress,” Amar Singh told TEHELKA.
With Mulayam refusing the seat-sharing pact, in yet another bizarre coincidence, the CBI once again did a U-turn (It’s a different matter that, in hindsight, Mulayam’s refusal worked in favour of the Congress. The party contested the elections in 54 seats and, surpassing its own expectations, it won 22 seats from UP in 2009).
But three months before the elections, when the talks on a pre-poll alliance went cold, on 30 March 2009, the CBI filed a new affidavit before the SC and this time took a hard stand against the Yadavs. It said that the “CBI faced non-cooperation in collecting documents from the office of the chartered accountant of respondents (Mulayam, Akhilesh, Pratik and Dimple Yadav).” It further said: “The immovable properties, which were the subject matter of the inquiry, were sought to be evaluated through the Valuation Cell of the IT Department and even though the CBI wanted respondents 2 and 3 (Mulayam Singh and Akhilesh Yadav) to be present either in person or through their authorised representative and had given date and time of the evaluation, none from their side were present on two occasions. Therefore, the evaluation work could not be undertaken.”
ONE OF the main allegations in the PIL was that the assets that were officially declared by the Yadavs in their IT returns were grossly undervalued. In the Election Commission’s affidavits also, it was alleged that the Yadavs had shown the value of their properties around one-10th of their real worth. The CBI now claimed that the real worth of the properties could not be ascertained during the inquiry because of the Yadav’s non-cooperation.
The affidavit concluded by stating that, “It is respectfully submitted that CBI stands by its recommendations made in the Status Report of 26.10.2007 as informed to this Hon’be Court vide IANo 12/2007.” The implication was that the CBI now wanted to proceed with the criminal investigation.
On 10 February 2009, the Supreme Court reserved its order on the various IAs filed by the CBI.
On 17 February 2011, the court reserved its order on the Yadavs’ review petitions. As of today, both orders continue to be reserved.
“Such a long delay in disposal of review petitions is unfortunate because that affects the majesty of law. If there is credible evidence then the accused need to be brought to book without any delay,” says lawyer Tulsi.
But delay in passing the orders is not the only shocking factor in Mulayam’s case. Justice (retd) AR Lakshmanan broke down in the open court before scheduled hearing of review petitions filed by Mulayam’s family. Choked with emotion, the judge informed the counsels that he had received a letter that morning accusing him of acting under undue influence. The judge recused himself from the case.
Justice Cyriac Joseph, who replaced Lakshmanan on the two-judge Bench, which after many hearings had reserved the order on CBI’s IAs, has since then retired without pronouncing the order.
“The instance of judges retiring without giving verdicts is an issue of serious concern,” says senior SC lawyer Prashant Bhushan. It is not clear what the compelling reasons were for the retiring judge to not pronounce the order.
As per rules, a new Bench would be constituted and the matter would be heard all over again. (More than two years have elapsed but the Supreme Court has not formed a new Bench for the matter). When the matter comes up again for rehearing, it would be interesting to see the stand that the CBI would then take under the changed political scenario.
Like Vahanvati, the CBI too failed to respond to a detailed questionnaire sent by TEHELKA. Samajwadi Party spokesman Rajendra Chowdhary, however, told TEHELKA that the CBI inquiry is politically motivated. “The case is sub-judice, so it won’t be appropriate for the party to comment on it,” he says. “But I would like to say that Mulayam Singh Yadav is a tall leader who has been in public life for five decades. He has held important offices. Despite that, such a person is being framed in false cases. The CBI case against him is a classic example of the political use of the CBI by the Congress-led UPA government at the Centre.”
Whichever way you look at it, unfortunately, that’s a deduction no one can quite fail to reach.
Ashish Khetan is Editor, Investigations with Tehelka.