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Justice!

The general impression one gets about scams is this: the big fish always crashes through the net while the small ones get caught and perish. Perhaps there is something fundamentally wrong with our jurisprudence. Or the investigating arm of the government is weak and not long enough to get to the root of criminal cases.

The acquittal of Arif Mohammed Khan, a former Union minister and highly respected citizen, by Delhi Judge V B Gupta, goes to strengthen this belief. However, this is not to cast any aspersion on the Central Bureau of Investigation, which has filed cases against scores of politicians, bureaucrats and the three Jain brothers in the infamous hawala case on March 4, 1995.

Hawala has been a time honoured mode of money transaction in India, especially among business people. It is all done on trust. Hardly any record is kept that will stand the scrutiny of law, of section 34 or the Evidence Act. Obviously, the act has loopholes that the deft hawala operators use to full extent. It is on this technical flaw that many of the accused -- 34 so far -- have been let off the hook.

Was the CBI aware of the vital flaws when it registered cases against the accused? Or was it banking upon collecting further evidence that could corroborate entries in the Jain dairies, which mentioned payments to the tune of Rs 65.47 billion to 115 people between 1988 and 1991?

In Arif Mohammed Khan's case, the CBI found a connection between the clearance of a long pending power project and the flow of large sums of money from a foreign source into a new account opened by the Jain brothers. The project of the National Thermal Power Corporation had been pending since 1986. Khan took charge as energy minister on December 6, 1989. On January 23, 1990, the project was cleared to be executed by a French firm. The clearance was done in just one meeting. According to Judge V B Gupta, "For reasons best known to Khan, he cleared the award of contract in favour of Alsthom Export of France in just one meeting on 23/1/1990."

In February 1990, large sums of money started flowing into the new Jain account, totalling $ 5.3 million by September. During the same period, Khan was allegedly paid Rs 65.4 million by the Jains. According to the CBI, Khan received payment from the French company through the hawala channel. Only the diary entry speaks of such payment.

One file pertained to the NTPC power project, the one that Khan cleared in just one day. One is not sure if this could be taken as corroborative evidence. Perhaps not. More importantly, the CBI could not prove conclusively that Khan did indeed receive the slush money. Perhaps the other arms of the central government's investigating agencies such as income tax, revenue intelligence etc could have helped in piecing together clinching evidence to secure conviction. Perhaps they did. Perhaps they did not. But Arif Mohammed Khan, as also others including Union Home Minister L K Advani and former Union minister V C Shukla, got away for lack of what is called legal evidence.

We are back to square one now. Years of excitement, media exposure and a sudden upsurge of some kind of verve for probity all looks farcical. Enormous amount of money has been spent on this farce. Was it worth it? Can the country afford it?

We proudly claim that our jurisprudence is based on the maxim that innocents shouldn't be punished even if it means letting criminals escape. But it is those people who get away thus that make life miserable for the average Indian.

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