2G tape expose: A brazen case of the fence eating the crop

The sensational expose by CNN-IBN of what the CBI acknowledges is _prima facie_evidence of a taped conversation between AK Singh, chief prosecutor in the 2G scam case, and Sanjay Chandra, managing director of Unitech and one of the accused in one of India’s most brazen corruption cases, shows just how deep the rot in the system goes. ( Listen to the tape here .)

Unitech has claimed that the audiotape, in which Singh is shown to be working in tandem with Chandra to weaken the prosecution’s case, is fabricated, and that the voice purporting to be that of Chandra is not his. A statement put out by the company on behalf of Chandra ( details here ) claimed that “he has never met the Prosecutor in the 2G case outside of Court or had any phone conversation with him.” Chandra claimed that “it appears a fabricated voice recording has been sent anonymously to the CBI. Any suggestion that Sanjay Chandra is linked with this recording is nothing but an attempt to malign him and prejudice his defence in the 2G case.”

The final verdict on the authenticity of the tape, which will now be subjected to forensic investigation, must await the completion of that process. Yet, the CBI has been sufficiently swayed by the contents of the tape to initiate a preliminary enquiry naming Singh and Chandra, and has removed Singh as the prosecutor directing the investigation into the case. It has also informed the Supreme Court, which is monitoring the investigation into the case, the Central Vigilance Commission and the Law Ministry of the development.

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[caption id=“attachment_621571” align=“alignleft” width=“380”]  Unitech MD Sanjay Chandra. Reuters[/caption]

And although not enough is known as yet about the circumstances in which the conversation was recorded, or the motives of whoever recorded it, it points to the presence within the system of whistle-blowers who act as a bulwark against efforts by interested parties to subvert the course of justice. Subramanian Swamy, to whom goes the credit for the initiation of the investigation in the 2G scam case in the first place, said on a CNN-IBN panel discussion on Monday that whoever made the recording available was a “patriot”.

As happened in the Radia tape episode, where too an unseen hand with unknown motives clandestinely recorded the conversations between corporate lobbyist Niira Radia and an assortment of politicians, journalists, corporate titans and others, the latest expose lays bare the intricate networks that are working to game the system to their advantage and in a manner that sells India short.

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In the latest instance, the brazenness with which the prosecutor handholds the accused in the case, and shares details of how the prosecution intends to build its case, is galling. This is all the more so because this is one of the most high-profile corruption cases in India, with at least one Union Minister, an MP and several officials in big-name corporate companies, in the dock. The case is being actively monitored by the Supreme Court. Yet, such considerations mattered little to the chief prosecutor as he worked actively and brazenly to wreck the very case he was tasked to win. It’s a classic case of the fence eating the crop: the very official whom the investigating agency reposed trust to secure conviction is seen to be colluding with an accused to torpedo the whole process.

As is well known, even an iron-clad case is only as good as the investigation and the prosecution, and many a seemingly open-and-shut case has faltered at that hurdle. Even in the best of times, money trails in corruption scandals are hard to establish, but in this case the CBI, under the watchful eyes of the Supreme Court, has done commendable work to establish culpability. It would have been a travesty of justice for all that good work to have been wrecked by “one bad apple” - to use the terminology of CBI chief Ranjit Sinha.

If the sting operation that exposed Singh was an inside job within the CBI, it reflects well on the ‘safety mechanisms’ within the agency to subvert sabotage. Yet, Sinha appears to make light of it by suggesting that not much damage had been done to the case by Singh’s breach of trust.

Although the conversation appears to have taken place in September 2012, action against Singh appears to have been taken only recently: the preliminary enquiry report was filed only 6 February. The case has advanced a fair bit since September, and it is hard to establish how badly the case was compromised by Singh’s action.

Swamy himself claims that the latest revelation will in fact come as a shot in the arm for those who are looking to expose the truth in the case, but it is difficult to share his optimism. Even if the expose heightens the possibility that the prosecution - and the accused - will be under greater scrutiny, there still exists scope for mischief.

That’s because, as senior lawyer Prashant Bhushan has argued, this isn’t a stray, anecdotal incident: this is the perverse result of a mechanism built into the system to allow interference into the prosecutorial process - either by politicians or others. As the debate over the independence of the CBI (in the context of a genuinely empowered Lokpal) showed, so long as key appointments - to the CBI or, as in this case, of the prosecutor - are controlled by the government, it keeps open the possibility of interference and undue influence.

Eternal vigilance, it has been well said, is the price of democracy. In this particular case, the brazen effort to subvert the judicial process in one of the landmark cases of corruption in India has been exposed, thanks to the extraordinary vigilance of an unknown “patriot”. But the real fix against abuses of the legal processes can only come from systemic mechanisms, not from the exertions of heroes who happen to be in the right place and at the right time.