November 24, 2001


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Arvind Lavakare

Tehelka, Take Three

Dear Justice Venkataswami

At the outset, I must explain why, contrary to Indian convention, the prefix 'Honourable' doesn't appear before 'Justice' in the above salutation. You see, milord, I believe that 'Honourable' is synonymous with 'Justice;' it is the antonym to 'oxymoron' of Jaswant Singh fame. It's like in cricket --- the sport of which you, as an Indian, must surely be a fan. Those who believe that cricket is a noble game have an aversion for the phrase 'neutral umpires;' how, in the name of W G Grace, they ask, can cricket's umpires be anything but 'neutral.' It's the same logic of those pure souls that prevents me from qualifying a justice of the courts with the adjective 'Honourable.' That is just, isn't it?

Contrast that with how our free press is being less than fair to you. They go on saying that your Commission has ruled that the Tehelka tapes were not doctored. That sweeping statement doesn't do justice to your mature and calibrated ruling given on October 12, 2001. In that order, you stated at the end that 'no prima facie case about the doctoring etc has been made out at all.' I quite like your emphasis on the prima facie factor.

One must also admire the desire you have shown now to come out with your findings quickly enough and thereby pre-empt the cliché criticism of justice delayed being justice denied. Your Commission is nearing the end of its first four-month extension for its original tenure and therefore it is but just that you do not let extraneous issues bog you down from expediting justice. That is how I view the second part of your above order that says 'it is inappropriate at this juncture to refer the unedited tapes in the custody of the Commission to a panel of experts.'

I fully endorse your implied assertion that such a panel of experts should have been assigned the job much earlier -- almost as soon your Commission got its offices and staff, its counsellors and cars some time in April this year. However, for some strange reasons, Tehelka, the modern titans of India's investigative journalism, submitted their tapes to you only in the first week of May -- they were probably too busy with too many other issues to find the time for delivering the explosive stuff in sanitised sealed boxes. Hence, your inability to at all appoint a panel of experts now or earlier must be understood and sympathised with, isn't it, milord?

But look at the reaction of The Times of India. On the front page of its Mumbai edition of October 31, 2001, it splashed a four-column story, with two pics, bearing the headline 'A tehelka in Tehelka tapes?' Holding centre stage there was one Milin Kapoor, described as an expert on 'digital editing technologies.' Though his evidence had been refuted by the arguments in your above order, The Times permitted him to voice, before thousands of readers, his opinion that 'the Commission did not have the requisite expertise to examine and arrive at a definitive conclusion about the veracity of the tapes.'

The newspaper also disclosed that Kapoor is garnering support from film makers and television producers, including the redoubtable Shyam Benegal, to challenge your Commission's order in which it was held that the equipment used by Tehelka pre-empted the insertion of audio without affecting the visuals. The two photographs in The Times showed, to thousands of people, the stark 'doctored' difference in the transcript as shown on television and as they were revealed by Kapoor's analysis.

The Tehelka people rebutted Kapoor's analysis immediately --- no delay whatsoever in that. But since their explanation carried by The Times on the next day did not refute the contrast in the two photographs of the previous day, it only added fuel to the controversy.

The question then arises as to whether the above publicised attitude of the paper and Milin Kapoor constitutes a blatant challenge to your October 10 verdict.

In the last seven months or so, you issued so many notices to so many people, scrutinised and investigated the many affidavits received from interested parties, viewed hours and hours of the Tehelka tapes, pored over innumerable notings on innumerable files of our defence ministry besides conducting those hearings in which so many lawyers must have argued so much bla bla before you. Is that long labour to be now confronted by some demand for going back to square one? Is that quixotic demand?

When you were appointed for the task, you with your Supreme Court experience were reported in the press as saying that the allotted period of four months seemed sufficient to finish your assignment. Now, even as your Commission's first four-month extension is ending, you have, one hears, asked for a second extension. Yet, Kapoor & Co does not think 'it is inappropriate at this juncture to refer the unedited tapes to a panel of experts.' Are those blokes being unjust to the noble Tehelka cause of 'exposing government corruption,' milord? Are they doing infinite injustice to you too?

In fact, do you think that The Times, Kapoor, Benegal & Co are committing acts that are calculated to bring your Commission to disrepute and therefore -- under Section 10A of The Commissions of Inquiry Act, 1952, -- liable to punishment with six months simple imprisonment for up to six months, or with fine, or both? Tehelka's advocates and admirers would surely consider that as infinite justice -- and never mind if deciding upon that penalty itself consumes another four months of your Commission's life.

In the context of punishing The Times or any other media involved in the Tehelka storm, there is a Constitutional provision which, as a former Supreme Court judge, you must certainly have at your finger tips, but which needs to be cited here.

There is the widespread belief in our country that the Constitution of India provides for an exclusive 'freedom of the press' and that, therefore, our media can resort to impersonation or use of any means to poke its nose anywhere -- like the way Tehelka did, you know. The truth is otherwise because, unlike the First Amendment in the US Constitution, our Constitution does nowhere contain a specific clause permitting freedom of the press.

In fact, on page 527 of his book, Indian Constitutional Law (Wadhwa & Co, Nagpur, Fourth Edition, Reprint 1994), M P Jain says, 'In India, freedom of the press is a part of the freedom of speech and expression guaranteed by Art. 19(1)(a). The freedom of the press is regarded as a species of which freedom of expression is a genus. Thus, being only a right flowing from the freedom of speech, the freedom of the press in India stands on no higher footing than the freedom of speech of a citizen, and the press enjoys no privilege as such distinct from the freedom of the citizen.'

In other words, your honour, if any media person has, in your Commission's opinion, committed any offence under any law of our land, your Commission is entitled to recommend punishment to him or her or them.

Then there are those acts being reportedly planned by the Samata Party lawyers. They have analysed the Tehelka tapes into some statistics pertaining to the tapes screened on Zee TV vis-a-vis the transcripts thereof certified as true by Tehelka. Those stats that may be placed before you are as below.

1. Wrong names/designations in transcripts/tapes…………………………………… 12
2. Numbered pages missing from certified true transcript document………………… 7
3. Pages in transcript where people speak under the influence of liquor……… 50
4. Persons listed in certified true transcript but missing on televised tapes…………… 4
5. Persons listed as been paid money but missing from televised tapes……….. 3

Another facet that might be flaunted before you, your honour, is the opening statement in Tehelka's certified true transcript proclaiming that their Operation West End is the story of how they 'managed to sell' non-existent fourth generation hand-held cameras to the Indian defence establishment. The truth it would seem is that they did not in the end succeed in getting in their hands even the preliminary 'evaluation letter' -- that despite the certified true transcript making the claim of having paid Rs 10,8000 to 33 persons and two, non-assessed gold chains to two persons.

A conspicuous statistic of these payments is that while the total of 33 cash payments is shown as Rs 10,8000.00 (sic) in the certified true transcript document of Tehelka, the actual addition of these 33 payments on a pocket calculator gives an aggregate of Rs.10,15,000.00!! The difference of Rs 9,07,000.00 (sic) is evidence of very, very slip shod work which, moreover, is certified to be as true before a statutory commission of inquiry. Truth to tell, your honour, such investigative journalism doesn’t quite seem to add up.

If raising all the above issues seems, to use your words, 'inappropriate at this juncture' of your Commission's tenure, it is only because we, the people of India, expect you, milord, to give us a report that reveals the truth, the whole truth and nothing but the truth that conforms to the sacred law of evidence et al. We expect you to mete out justice, infinite justice.

Arvind Lavakare

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