Smoke Without Fire

The Delhi excise policy case will go down in history as the most pernicious attempt to pull down a government and a political party after Independence. It will one day figure in the legal textbooks used to train prosecutors and police on how not to investigate crimes, appreciate evidence or file charge sheets.

The Narendra Modi-led government, and its minions, who have been working round the clock to undermine democracy in the Capital, must take a bow for this achievement! On the debit side is the pusillanimity of investigating agencies, civil servants and the judiciary, who have betrayed the constitution as well as their professions.

For an entire decade, the Central government has distorted criminal investigations and prosecutions to send innocent common folk, journalists and activists (young and old), academics and politicians to jail. Misuse of authorities like the Central Bureau of Investigation, Enforcement Directorate and the Income Tax Department has severely damaged professional practices built up by them over decades.

Their reputation is in shreds and noone-citizens, courts or the media-cares a fig for their press releases and documents placed before judges.

The reaction of the judiciary to all this has been shocking. Judges of many Delhi tribunals have made brave pronouncements on bail pleas and retreated from the brink of delivering justice.

Even though they know that a person can be jailed before conviction only for the brief period needed to collect evidence. Knowing too that bail cannot be denied if proof is not produced to show that the released person will abscond or tamper with documents and intimidate witnesses.

Individuals are in jail in the Delhi excise policy case for long periods without investigating agencies meeting any of these conditions. Courts dither, contradict themselves and give judgments inconsistent with the rule of law.

The highest court in the country betrayed the key judicial principle of fair and equal legal treatment for all individuals when it released the Chief Minister of Delhi on the sole ground that he is a campaigner in an ongoing election.

It should have instead looked at the real issue-why many individuals are in custody for long periods without investigation being completed, particularly when there is no proof that they will flee or tamper with evidence.

But, the Supreme Court has now been shown up by a junior vacation judge, aptly named Nyaya Bindu (you cannot make this up!), who applied principles taught in her law school to the bail application of Arvind Kejriwal and discovered that there are no grounds to keep him in jail, nor even to prosecute the excise case.

The case exemplifies every investigative excess. Each month a new accused is added. Some are on bail while others languish behind bars, no one knows why. Charges are altered and delayed, but investigation continues.

Will the truth be ever known or will it be dragged out till we no longer care or remember? We are told that the accused are corrupt; there can be no smoke without fire.

The intention is to ensure that the stench of criminality hangs around the political party and its leaders even after the matter is decided and the horror over.

But, when institutions and experts fail and the raucous din of trolls clouds the air, when there are selective leaks of bad data and name calling: Khalistani, terrorist, urban Naxal, we must trust our inborn sense of justice and our knowledge of legal principles to decide if crimes have been committed and who are the criminals.

Excise on liquor is the largest source of revenue under the full control of States (even one like Delhi which is severely constrained by the Lieutenant Governor's oversight), now that GST has been converted into a tax run together by States under Central guidance.

Naturally, the AAP, which was swept into power with an overwhelming mandate for a clean government resolved to reform this hotbed of corruption.

State excise is not only a source of revenue. It is a tool to incentivise proper alcohol consumption, by penalising excessive use. This means making unadulterated liquor safely available throughout Delhi and spending the tax receipts for the welfare of its citizens.

The new excise policy was carefully prepared to open sales outlets in every locality (particularly in areas where adulterated liquor was being sold by local mafias creating serious health hazards) through reliable commercial networks. The well-calibrated plan was also expected to substantially boost State revenues.

But, the Lt. Gov. who had endorsed the policy, introduced a last minute condition that sale points must also be approved by the Municipal Corporation of Delhi (MCD) and the Delhi Development Authority (DDA), which were then under the Bharatiya Janata Party (BJP) government.

Realising that such approvals would be withheld in the prevailing atmosphere of political hostility, the Delhi government had no option but to scrap the policy, refund payments made by contractors and continue with the existing system.

The BJP leaders of Delhi have accused AAP of causing loss to the State by reverting to the old policy, although investigating agencies are not laying much stress on the charge.

This is evidently a specious accusation on several counts. Every elected government, Centre or State, (even one with diminished powers like Delhi) has the authority to make and change its policies.

The right place to debate the matter is the State Assembly, which BJP MLAs who are few in number avoid. The Delhi government could not implement its new policy because of extra conditions laid down by the LG so that "loss" of revenue was inevitable.

The irony is that the "loss" is being computed with reference to the new policy of AAP, not in comparison with what was earned by every previous government.

There is also a rumour that the Lt. Gov’s referral to the CBI was based on a letter written by the Chief Secretary. The details of the letter are shrouded in mystery.

It can become evidence only if it is validated by the CBI, ED et al. These agencies are, however, struggling to tie up the awarded excise contracts to bribe payments made to AAP and its ministers and leaders.

The challenge is that money on the move must be proved to have left some pockets and entered others. But there is no evidence. Not in the personal accounts of the CM, Deputy CM, MPs and their associates. Nor in party accounts used to fight elections in Goa and Gujarat.

The agencies have, therefore substituted hard accounting data about fund flows with oral statements from arrested “suspects” who are freed as soon as they become approvers. Unfortunately, such doctored evidence has led even commentators like Yogendra Yadav to hedge their bets and declare that excise contracts can never be free of corruption.

Which is pretty cynical for an early proponent of the idea of alternative politics-politics that uses every paisa of public money for the benefit of citizens.

It is becoming clearer every day that there is no fiery scam at the core of the excise case. Several ugly questions behind the smokescreen are now, however, becoming visible.

Can the mafia running illegal liquor outlets in Delhi, displaced by the new excise policy, be so powerful as to provoke lethal action by so many Central agencies and departments? Why is an elephantine national party fearful of the stings of ant-sized common people?

Is the BJP’s hold on Gujarat and Goa that fragile? How far will Delhi bureaucrats and police officials bend to the dictates of the Lt. Gov. and Home Minister?

What explains the many ways in which simple concepts of justice are interpreted by different courts? Above all, must we permanently submit to the fallacy that government and its excise officials can only and forever be corrupt?

Renuka Viswanathan retired from the Indian Administrative Service. Views expressed here are the writer’s own.