Chidambaram Case: Can’t crack corruption if govt controls everything

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Published: August 22, 2019 7:23 PM

If FDI was allowed freely, there would be no need for an FIPB approval or a bribe for it ... If Modi really wants to rid India of corruption, he has to eliminate govt permissions, free up the economy

The larger issue, and this is not specific to the Chidambaram case (which still needs to be proved), is that it is government restrictions that are at the root of most corruption. (AP Photo)The larger issue, and this is not specific to the Chidambaram case (which still needs to be proved), is that it is government restrictions that are at the root of most corruption. (AP Photo)

Given the track record of India’s investigative agencies in securing convictions – something the Chief Justice of India also spoke of recently – it remains to be seen whether the CBI will finally be able to prove its case against ex-finance minister P Chidambaram; keep in mind that, while the evidence against UPA telecom minister A Raja also appeared very strong, the trial court threw it out, and the CBI is now appealing that. So, if the charges against Chidambaram are to stick, not only do the investigating agencies need to show the clearances given by the Foreign Investment Promotion Board (FIPB) were bad in law, they have to prove that the six secretaries to the Government of India on the FIPB gave clearances to INX Media because Chidambaram asked them to, and they have to show the money trail going to Chidambaram or his son Karti; the money trail also seemed quite straight forward to the lay person in the Raja case, but the trial court didn’t seem to think so. This is not to say the trial court got it right, or wrong, in the Raja case; just that proving charges isn’t necessarily simple.

While the courts will take a call on the merits of the allegations – Chidambaram’s main defence is that six secretaries to the government took the decision in the FIPB – and a final decision can take decades since the case will, eventually, be heard by the Supreme Court, there are several important issues that deserve attention.

Certainly, it is odd that the CBI was not willing to wait for two days till the Supreme Court disposed off Chidambaram’s bail plea; after all, he is a former finance minister and hasn’t been a flight risk all this while, so it is difficult to believe he would be now. But it is equally shocking that the former FM went into hiding for one day after the High Court denied him bail; indeed, given his stature, once he didn’t get bail, Chidambaram should have surrendered to the CBI. If the image of the CBI and Delhi Police scaling the walls of Chidambaram’s house to arrest him remain etched in your mind as a sign of excessive use of force, it has to be kept in mind that, after Chidambaram returned home following his press conference, the security guards were instructed not to open the gates; why else would they not allow the CBI in?

Certainly the Delhi High Court judgement that denied Chidambaram bail seemed excessive since, instead of taking a call on whether the ex-FM was a flight risk, the judge seemed to have decided on the case already when he said “pre-arrest (bail) is not meant for high profile economic offenders” and that “Parliament (must) suitably amend the Law to restrict the provisions of pre-arrest bail and make it inapplicable to economic offenders of high profile cases”; but isn’t bail a natural right? That the CBI should want custody of Chidambaram seems like the idea is just to harass him, as his son Karti alleges, but as the Supreme Court said in CBI vs Anil Sharma “we find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order (like a pre-arrest bail)”.

Given the widespread allegations of corruption during the UPA regime – the purchase of planes by Air India are, for instance, being investigated – it is important not just that the government/agencies follow due process, but be seen to be allowing the accused every opportunity to prove their innocence.

As part of this process, it is critical that a detailed charge-sheet be filed at the earliest; Chidambaram’s son Karti said, after Chidambaram was arrested, that though he had been raided four times, appeared for over 20 summons – each session lasted 10-12 hours – and was arrested for 12 days, there was still no charge-sheet against him. This is a big lacuna since it allows investigation agencies to go on wild-goose chases; courts must ensure that charge-sheets are filed at the earliest.

The larger issue, and this is not specific to the Chidambaram case (which still needs to be proved), is that it is government restrictions that are at the root of most corruption. If foreign investment was freely permitted without a cap, why would government permissions via the FIPB even be required? In which case, why would any bureaucrat or minister need to be bribed? Since India doesn’t allow FDI in multi-brand retail, you have foreign money coming in either as FPI – portfolio investors are allowed to buy up to 10% of an Indian retail firm – or as ‘marketplaces’ in the case of ecommerce firms; it is possible that, in the future, someone could argue that this was illegal, but what if the policy freely allowed FDI in multi-brand retail? There were several allegations of illegality when the government restricted the amount of FDI that could come into telecom, and all manner of permissions were required, but all of this disappeared once all restrictions were removed.

None of this is to absolve Chidambaram – if it is proved money was, in fact, paid for the FIPB clearances – but if the government hadn’t put the restrictions, usually to benefit local players by keeping away bigger global competition, there could have been no corruption; if Air India wasn’t a PSU, a Praful Patel couldn’t even have been accused of influencing its decision on buying aeroplanes. While prime minister Narendra Modi has promised that those who had looted India would have to return each rupee, he will only win the war against graft when he eliminates the discretionary power the government has.

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