The Hindu Business Line : Pathak panel probe

The conclusions of the Justice R. S. Pathak Inquiry Authority in the oil-for-food scandal suffer from inner contradictions. The report could have been more convincing and thorough than it actually is, says B. S. RAGHAVAN.

As per the Finance Minister's statement in Parliament, in November 2005, Mr Pathak did not want the full range of powers of the Evidence Act, so as to enable him retain a greater measure of flexibility and discretion.

"For us in the Government truth is of utmost importance. We are determined that truth must prevail in this matter. Our government believes in maintaining high standards of probity and transparency in public life and I can assure the House that no one who is guilty will go unpunished... "

— The Prime Minister, Dr Manmohan Singh's assurance in Parliament announcing the setting up of the Mr Justice R. S. Pathak Inquiry Authority

There is one point that needs to be made clear at the very outset about the task entrusted to the Justice R. S. Pathak Inquiry Authority: Its term of reference confined its scope exclusively to the references to Mr Natwar Singh and the Indian National Congress in the report of the Paul Volcker Committee appointed by the Secretary-General of the UN on the oil-for-food scandal.

Mr Pathak was by deliberate intent of the Government kept out of the purview of the Volcker findings on the 135 Indian companies which had also participated in the oil-for-food transactions, paying back to the Saddam Hussein regime a part of the proceeds under cover of various charges which, whether they knew it or not, were tantamount to kickbacks.

This knocks out the point raised by the CPI(M) General Secretary, Mr Prakash Karat, about the report being silent on the oil allotments obtained by Reliance Petroleum.

In any case, Reliance, Tata, Cipla and some other Indian firms figuring in the Volcker report have already admitted to securing the quantities of oil mentioned in the Volcker report and having paid the "commission" thinking in good faith that it was legitimate.

`Opinion', not judgement

It must also be added that the Government, apparently choosing its words with meticulous precision, asked Mr Pathak to give only his "opinion" and not his judgment or findings based on a sifting of all facts and evidence.

In point of fact, Mr Pathak made it explicit in the procedure adopted by him that "Technical rules of the Evidence Act, as such, do not govern the recording and admissibility of evidence before the Authority" and that he would only be "broadly guided by the fundamental principles of fairness, equity and justice as required by the circumstances."

Thus, there was no examination-in-chief, cross-examination or re-examination of deponents nor were there any regular, formal, full-scale court proceedings as there would have been if he had been designated as a Commission of Inquiry under the Act of that name.

As per the statement of the Finance Minister, Mr P. Chidambaram, in Parliament in November 2005, Mr Pathak himself did not want the full range of powers of the Act to be made applicable, in order to enable him to retain a greater measure of flexibility and discretion in regulating the proceedings.

Powers curbed

But this act of self-abnegation has affected their sanctity in a material fashion. Absence of powers under Sections 8B and C of the Commission of Inquiry Act has meant that he could not issue notices for cross-examination of the person or entity whose conduct is being inquired into or whose reputation was likely to be damaged.

The Congress Party, in the result, escaped being subjected to a rigorous grilling of its role by way of its representatives being put on the stand and obliged to tender evidence under oath (with the attendant consequence of being charged with perjury in case of making false statements).

The Authority did not also have power under Section 166 A of the Criminal Procedure Code to issue a letter of request to international agencies through the Indian courts to collect evidence, both documentary and oral (by interrogatories), outside the Indian territory. This must have acted as a great handicap in tracing with any degree of finality the money trail which, in the case of the entry concerning Mr Natwar Singh stopped with Messrs Andaleeb Saigal and Aditya Khanna, and in the case of the Congress Party included in Volcker's list of non-contractual beneficiaries, could not be picked up at all.

Both the failure to cross-examine the representatives of the Party under Sections 8B and C, and the unexplained omission to vest the Authority with the power under Section 166A of the Cr.P.C. considerably dilutes the force of the Inquiry Authority's opinion that there was "not a shred of evidence" to link the Congress party to these transactions, that no wrong can be attributed to the Congress party, that there was "no evidence that the Congress party was involved in the contract and that it derived any benefit at all from the contracts," that "indeed, there is nothing to show that the Indian Congress Party had anything to do with the contracts" and that "the reference to the Indian Congress party with respect to Contract No M/10/57 is not justified at all."

The impression left in an average reader's mind is that the Authority, by its repeated asseverations to the above effect, wanted to drive home the innocence of the Congress Party beyond all ambiguity or misunderstanding, although this seemingly contradicts its opinion that the sources, materials and documents collected by Volcker were "authentic and reliable".

Another incongruity

There is yet another incongruity as well: Of the four from India named by Volcker report as non-contractual beneficiaries (meaning that they had no obligation to supply food or humanitarian goods to Iraq), Reliance Petroleum and Prof Bhim Singh had already corroborated the entries about them, with the former maintaining that the allocations were handled as a regular commercial transaction, and the latter, that an offer of the allocation of the specified number of barrels was indeed made to him but not accepted as a matter of principle.

This lends a semblance of credence to the information put together by the Volcker Committeee and this should have led the Inquiry Authority to apply its mind with much sharper focus than is evident in respect of the Congress Party.

The difference in weighing the available material in respect of the Congress Party is in marked contrast to the way the Authority arrived at its opinion in regard to Mr Natwar Singh.

All that it had to go upon in his case were the mention of his name in the Volcker report and the three letters purportedly written by him introducing Messrs Jagat Singh, Andaleeb Saigal and Aditya Khanna to the Iraqi oil authorities.

Ms Sonia Gandhi too wrote a similar letter commending Mr Natwar Singh and the team accompanying him to Saddam Hussein.

As stated by Mr Natwar Singh and not conclusively denied by Mr Pathak, he himself, as the Chief Justice of India, had written to high judicial authorities in the UK putting in a good word for Mr Jagat Singh.

In this background, it does seem rather unfair that the three letters of Mr Natwar Singh (who has raised a question about their existence and authenticity) should be given undue importance and deemed to weigh against him in the formation of the Authority's opinion that he was a beneficiary "...insofar that the role by him in influencing and facilitating the procurement of the contracts had fructified," although, as the Authority itself has emphasised "there was no material to show that Natwar Singh had derived any financial or other personal benefits from the contracts."

In all these respects, the conclusions of the Authority suffer from inner contradictions. One certainly expected that a report prepared by a former Chief Justice of India and, to boot, a former Judge on the International Court of Justice to be more convincing and thorough than it actually is.

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