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The strange case of Justice Phukan
May 06, 2005
Imagine that you are driving down an empty highway. You are in a hurry, so you decide to race away at 80 km per hour. A policeman catches up with you, and grimly informs you that the speed limit on the road was 60. You try to wriggle out by protesting that you did not know of the limit. He tells you that ignorance of the law is no excuse and you end up paying the fine.
You can play this scenario in any number of different ways. You can claim that you failed to understand all the intricacies of the tax laws, or that you didn't know that smoking in public is illegal, or any of dozens of crimes and misdemeanours. The result, however, shall always be the same -- if you do the crime, you do the time! Which brings us to the strange case of Justice Phukan.
S N Phukan's biography is distinguished. An advocate since 1962, he has served in the Meghalaya Board of Revenue, taught at Shillong Law College and the North-Eastern Hill University, and been on the bench in three high courts before being raised to the Supreme Court itself. Can anyone accept that anyone with such a sterling record could possibly claim ignorance of the letter and spirit of the law?
That makes it all the harder to believe that Justice Phukan did not know that he was stretching his powers to the limit when he asked the defence ministry to provide him with a special aircraft. Some would argue that he was, after all, then conducting an investigation into the Tehelka tapes at the behest of the Government of India, which was thus honour bound to provide him with every facility necessary to complete the task. Possibly, but by the same token he could have been given tickets on a passenger airline. And in any case, I refuse to believe that it was in the line of duty that Shirdi, Ajanta, and Ellora featured on his itinerary, or that his wife accompanied him for secretarial purposes.
Now, a blot over Tehelka probe
You can, of course, make too much of the incident. I am sure that no judge, whether sitting or retired, would be swayed by such a silly thing as a free holiday. (Although the threshold of corruption in India is very low, so much so that many people thought that Jaya Jaitly, then president of the Samata Party, was guilty when she had been offered 'only' two lakh rupees!) But the problem is that this is not the first time that a judge probing the Tehelka case has been accused of, shall we say, bad judgment.
Justice K Venkataswami, then recently retired from the Supreme Court, had been appointed as the chairman of the Tehelka Commission in March 2001. At the time he told the media that he hoped to complete the enquiry within four months. In November 2002, with the enquiry still in progress, he was appointed chairman of the Authority on Advance Rulings of Excise and Customs. That latter appointment had, we were told, been made on the advice of the Chief Justice of India. Nevertheless, the news raised such a stink, both in Parliament and outside it, that an embarrassed Justice Venkataswami told Prime Minister Vajpayee that he was quitting both posts. It was scarcely a happy augury for the Phukan Commission.
Both the decision to provide Justice Phukan with a special plane and the decision to appoint Justice Venkataswami to a new post could have been taken with absolutely pure intentions. That, however, is not the point. It leaves us with a bad taste in the mouth, a sour suspicion that something was wrong. And I fear that at some point such commissions of enquiry will come to be regarded with the same cynicism that accompanies normal police investigations.
It is not just the perks which seem to accompany the job, it is also the sheer length of time that is taken. I have already mentioned that Justice Venkataswami had gone well above the four-month limit set for him by the time he resigned. But what about the seemingly never-ending Jain Commission which was looking into the death of Rajiv Gandhi? The Congress leader was assassinated on May 21, 1991; by 1997 only the 'Interim' Report was ready. (By way of comparison, the Warren Commission Report into the murder of President Kennedy was delivered in ten months!)
Despite all the sound and fury there is still no proof that there was any wrongdoing in any deal undertaken by the defence ministry, which is how the whole saga of the Tehelka tapes began. But the tapes -- and I have only seen the bits that were aired publicly -- do indicate that certain politicians were not above taking money. (They also indicate a certain carelessness coupled with pomposity!)
I don't think any Indian will be surprised at the allegation that politicians take money, but why not leave them to the police and the courts? But the whole system of judicial commissions seems to be falling apart -- more, perhaps, than the defence procurement systems.
Please, let us not have another commission to investigate that!