Kerala solar scam: Commission report on sticky wicket for anomalies in probe, lack of credible evidence

The report on ‘solar scam’, which involved an educated couple, who duped nearly three dozen people of Rs 6.5 crore by offering ‘alternative’ solar solutions in early 2010s, has raised eyebrows in legal and political circles in the state.

The 1073-page report by the Justice G Sivarajan Commission, appointed by the previous Congress-led United Democratic Front (UDF) government in 2013, points fingers at 74-year-old former chief minister Oommen Chandy and 21 others, including two central ministers, three state ministers, MLAs, an MP and many top Congress leaders.

The report tabled in the Assembly by Chief Minister Pinarayi Vijayan on Thursday said Chandy and his colleagues had aided a dubious company floated by Biju Radhakrishnan and his live-in-partner Saritha S Nair to cheat people by accepting illegal gratification in the form of money and sexual favours.

The scam that rocked the UDF government in the run-up to the 2016 Assembly elections, which it lost badly, may continue to echo in the political scene in the state for a long time. The Left Front government has appointed a special investigation team under a Director General of Police to probe the charges listed by the judicial commission, while the opposition UDF is gearing up to challenge the commission report in the court.

The UDF has already sought expert legal opinion to file a petition in the high court for quashing the report. A major point of the petition would be the jurisdictional breach committed by the judicial commission headed by the retired high court judge. The former chief minister, who faces both graft and sexual abuse charges, said that the commission dragged many of his party men into the scam by going outside its terms of reference.

“The commission was asked to look into the solar scam and allied financial transactions raised on the floor of the Assembly and outside. But it has virtually reproduced all the allegations contained in a letter purported to have been written by prime accused Saritha, and the statements she gave to the commission without verification. This was against the commission’s brief,” Chandy argued.

He has questioned the genuineness of the letter itself. The original letter, which is claimed to have been written on 24 July, 2013, contained 21 pages but the one she produced before the commission has 25 pages. Prisons chief Alexander Jacob, who read the letter before it was handed over to her advocate, testified before the commission that the name of the former chief minister had not figured in it.

However, Chandy’s name figured prominently in the letter which was included in the report, with the allegation that he had oral sex with Saritha several times in the chief minister’s official bungalow, Cliff House. Denying the charge, Chandy said that he was ready to end his political career if there is even a shred of evidence to link him to the sexual allegation.

Senior high court advocate Mohammed Shah said that a case cannot be registered on the basis of the report since the judicial commission had not made any independent inquiry about the allegation. Though the panel pointed out allegations in several quarters that Saritha was flaunting names of VIPs with the objective of blackmailing them, it included them in its findings and sought them to be treated as illegal gratification under the Prevention of Corruption Act.

“Gratification involves consent. This means Saritha had given sexual favours with her consent. If so evidence is needed to support the allegation. But in this case, Saritha has only mentioned some names and places. She has not given any other details, including date and time. Such an allegation cannot stand before law,” the lawyer told Firstpost.

He said this could be the reason why the government went back on its decision to register cases against Chandy and others. The original decision was taken on the basis of the legal advice given by the advocate general and Director General of Prosecution. It changed track after it got a second opinion from a retired Supreme Court judge, Justice Arijit Pasayat, who has reportedly ruled out the scope for pursuing the sexual abuse cases.

The lawyer said that the commission findings on financial transactions too were without corroborative material. It has lapped up Saritha’s allegations that she had coughed up more than Rs seven crores in the form of bribe to many Congress leaders for their support to her firm’s projects without any logic.

“The commission has made the findings based on her letter and statement. It has neither verified the allegation independently nor collected any supporting evidence. The panel has reproduced what Saritha said without even considering her credibility, which was questioned at least by two high court judges and a magistrate before,” Shah said.

Justice Kemal B Pasha of the high court had dismissed her plea for a CBI probe into her sexual allegation against the former chief minister saying that a person making such claims should have credibility in order to claim unfairness or malafide investigation. The judge added that a person accused in 33 cases for allegedly squeezing crores of rupees from investors cannot claim any such credibility.

Shah said that there are several other anomalies in the report, which came after three-and-a-half years of inquiry and spending more than Rs seven crores. Curiously, the panel has put this amount among the government’s losses due to the scam.

The report, however, is silent on any direct loss caused to the exchequer. It is also silent on the question whether any of the leaders named in the report extended favours or benefits to Saritha and her company. The lawyer said that the UDF has a strong case to challenge the report in a court of law.

Political commentator Sunnykutty Abraham wondered how the commission could arraign anybody without specifying the favours they have given to the solar firm. He told Firstpost that the half-baked report may not serve any purpose except giving a political weapon in the hands of the ruling coalition to pin it down in the coming Lok Sabha election.

Writer and retired IAS officer, NS Madhavan, who served as finance secretary during the previous LDF government, has also come down heavily on the solar scam commission for trivialising issues instead of exposing the organised loot of public and private funds that serves the public interest. He wrote on Twitter:

“The Commission put Saritha’s letters before the government and asked for an enquiry. However, without verification, these scurrilous appendices are an attack on reputations. Is Justice Sivarajan apprenticing for yellow press?” Madhavan said.