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Why Did the Assam CM Appoint an Enquiry Officer to Look Into a Bribery Case Already Under CBI?

The decision come in spite of the Gauhati HC having ordered the probe to be shifted. What's more, Himanta Biswa Sarma himself was in charge of the government division involved in the scam.

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New Delhi: In spite of the Central Bureau of Investigation probing the multi-crore Louis Berger corruption case in Assam since 2017 as per a Gauhati high court order, the Himanta Biswa Sarma-led Bharatiya Janata Party government – in an unusual move – has appointed an ‘enquiry officer’ to look into the case at the state level. 

The ‘enquiry officer’ is to submit a report on the “alleged complaint” on the matter within a week’s time. Notably, the state government press release issued on February 5, mandating the officer to submit the report within a week (by February 12), named only the funding organisation, Japan International Cooperation Agency, that was to assist the commissioning of a water supply project in Guwahati which never took off.

The press note stayed away from mentioning the name of the controversial consultancy firm assigned the project, United States-based Louis Berger International. LBI’s involvement had led to the ‘alleged complaints’ against the project – and later an admission by a top official of the firm under oath in the US – of them bribing Indian government officials and an unnamed minister to corner the job. 

In Assam, the water supply plan is not familiar the way the Sarma government mentioned it in its press release – “JICA assisted project”. Instead, people are familiar with the “Louis Berger controversy,” one of the first multi-crore scams in the north-eastern state. 

Paban Kumar Borthakur.

The ‘enquiry officer’, named by the Sarma government to probe the ‘alleged complaints’ is Paban Kumar Borthakur. An IAS officer of Assam-Meghalaya cadre from the 1989 batch, Borthakur serves as additional chief secretary in Assam government and reports to Sarma. 

Significantly, when the alleged scam in Assam had surfaced in mid-2015, Sarma’s name had come to light as he was the minister in charge of the Gauhati Development Department (GDD) in the Tarun Gogoi-led Congress government which had granted the consultancy for the JICA assisted water supply project to the New Jersey firm LBI.

Local media reports, quoting then Guwahati Municipal Development Authority chairman Dhiren Barua, had said that the authority “was not involved” in the selection of consultants, and it was only “done by GDD.” Baruah had said that when Louis Berger was selected as a consultant, “Himanta Biswa Sarma was the GDD minister and Ashish Kumar Bhutani was the GDD secretary. The selection took place between 2008-2009.”

The project in Assam was worth Rs 1,452 crores. 

In the run-up to the 2016 assembly elections in Assam, the BJP had made a hue and cry against that scam, as by then, the US Department of Justice had sued LBI for bribery to corner government contracts, not just in India, but in several other countries. 

As per a report of the Stanford University’s Foreign Corrupt Practices Act monitoring cell, citing US court documents, James McClung, the then senior vice-president of LBI in charge of India and Vietnam, had admitted to the court that the consultancy and management firm along with several consortium partners had paid a total bribe of US $ 976,630 to unknown government officials in India to either obtain or retain their business.

“From about 2000 until about April 2010, McClung made and concealed corrupt payments to foreign officials in India and Vietnam in order to obtain and retain contracts with government entities in those countries and to enrich LBI and co-conspirators, including McClung himself,” the university cell had noted. 

According to a PTI report, “McClung cooperated with the US government’s investigation by identifying other executives at LBI who had knowledge of bribery.” Quoting court documents, the report also says that both McLung and the other senior official found guilty, had, from 1998 through 2010, “orchestrated 3.9 million dollars in bribe payments to foreign officials in various countries in order to secure government contracts.”

In July 2016, McLung was found guilty of violating FCPA and sent to jail for one year and one day with a fine of US $ 200.

However, the Modi government’s onslaught on the Tarun Gogoi-led Assam government when it came to that scam began in mid-2015 itself, after the US Department of Justice filed a case in the district of New Jersey on July 17, 2015. By then, as the Digambar Kamat-led Congress government in Goa made way for a BJP government, an enquiry by the state crime branch was announced against charges of bribery by LBI and its consortium partners to that government as well, to corner yet another JICA-assisted water supply project. 

In mid-July, the BJP government in Maharashtra also announced a probe on several infrastructure projects handed over to LBI  by the previous Congress government.

The BJP’s proactive approach on the case was to send out a message to the voting public then that Modi’s party and his government were opposed to the corruption by the Congress governments. 

Going by that script, in July 2015, the BJP published a booklet in New Delhi on the alleged water supply scam in Goa and Assam and termed Sarma a ‘key suspect’. As per a report in Assam Tribune then, the BJP parliamentary board released the booklet titled Water Supply Scam 2010 in Goa and Guwahati. That meeting of the BJP MPs, which included then junior minister from Assam, Sarbananda Sonowal, was attended by Modi too. 

The news report had said, “Though the American Court did not name the Indian minister involved in taking bribe, the time of this scam and department under which it did occur make Himanta Biswa Sarma the prime suspect in this entire scandal, the BJP charged.”

Quoting an unnamed Assam BJP leader, the report also added, “The charges today have literally put an end to the efforts of BJP to woo Himanta Biswa Sarma, underscoring the need to split the Congress ahead of the (2016) Assembly polls.” Reporters from Assam in New Delhi were briefed about the BJP Parliamentary Board meeting by Sonowal and Kiren Rijiju – also a junior minister then from the Northeast. However, then BJP Assam president Siddhartha Bhattacharjee, who later became the key person to bring Sarma to the party, was also present.

Soon after Sarma joined BJP, then BJP president Amit Shah, refused to give him a clean chit in the scam. Responding to a media query at a press conference in Guwahati, Shah had said, “”I said all charges of corruption will be probed. Without probe how can I give a clean chit? Everyone will be probed.”

Shah, now the Union minister for home, is the person who now has to give the go ahead to the CBI to procure all documents that the US government is willing to share with the Indian government.

In the first BJP government in Assam, Sarma became the GDD minister once again. 

File image of Assam CM Himanta Biswa Sarma at a rally in Assam in December 2019. Photo: Twitter@himantabiswa

In 2015, following legal action against top LBI officials in the US, intellectuals, activists and opposition members in Assam, particularly from the BJP, began demanding a CBI probe into the scam, leading the then Congress government to announce a probe. Like Sarma, Gogoi also had initially ordered a probe to be led by the then additional chief secretary – a move seen by opposition members as a ‘face saver’ to protect his government and Sarma, then considered close to the chief minister. 

However, with the BJP upping the charge of corruption in the Congress regime in the run-up to the crucial 2016 assembly polls, the Gogoi government announced a probe into the allegations by the state CID, which reported to him. The CID registered a case in August 2015. By then, Sarma’s relations with Gogoi had also begun to sour, and rumours rife about him attempting a move to BJP. 

Court

During that uproar in mid-2015, RTI activist Bhaben Handique, along with two others, filed a PIL at the Gauhati high court seeking a CBI probe into the scam. In September 2017, a two-judge bench of the Gauhati high court comprising Chief Justice Ajit Singh and Justice Monojit Bhuyan, ordered the director of CBI, to “to take over the investigation of the case in question from the CID and bring the investigation to its logical conclusion in accordance with law.”

Also read: CBI Takes Over Louis Berger Corruption Case After Gauhati High Court Order

As per the HC order, the reason cited for handing over the case to the CBI was, “It was crystal clear that the investigating agency (CID) has not investigated the case in right earnest and has been conducting the same in a partisan manner.”

Stating that “the mystery of such allegations involving misappropriation of enormous public money must not haunt the people of the state (Assam) indefinitely”, the court’s order had noted that, “criminal investigation department (CID) is under the state government and since high ranking officials are involved in awarding the contract after taking huge amount of bribe, we are of the view that Criminal Investigation Department is not in a position to act independently to bring the investigation to a fair and logical conclusion in accordance with law.”

It further said, “In this background, we are of the view that the investigation of the case should not be conducted by any investigating agency of the state government and there is a need for an investigation by the Central Bureau of Investigation.”  

Sarma government’s recent announcement to institute a probe into the allegations by a state government official may then be construed in violation of that high court observation. 

While Gogoi welcomed the high court’s decision in a tweet in 2017, Sarma had retorted that it was him who had signed on the contract.

CBI

In October 2017, a month after the HC order, the CBI filed a 40-page FIR in New Delhi against unnamed officials of Guwahati Metropolitan Development Authority under the GDD, the firm LBI, and unknown private or public people.

In a statement to Hindustan Times then, the consultancy firm had stated that it would “fully cooperate with the Indian authorities in their investigations.” 

A week after CBI filed the FIR in New Delhi, a team from the central agency visited Guwahati to submit a copy to the HC and the petitioners. Speaking to The Wire then, one of the petitioners, Handique, had said, “Handing over the case to the CBI was our primary plea to the high court. So obviously, I am happy to receive a copy of the FIR from the CBI team and hope that the probe agency brings to light the guilty in this high profile case where public money had been misused.”

Since the HC had made the state CID a party to the CBI investigation, the probe by the CID continued and it was required to brief the court every now and then on the progress of its investigation. 

However, in April 2017, the then special superintendent of police at the CID, R. Rajamarthandan, who was the officer investigating the sensitive case, was suspended by Assam Police on the charge of divulging “classified information” through an RTI reply in the case of a sensational attack on an All Assam Students Union office at Silapathar by pro-Citizenship Amendment Act supporters. 

Also read: Assam IPS Officer Investigating Louis Berger Bribery Case Arrested

Rajamarthandan was ousted from the case at a crucial juncture. As per his affidavit to the HC in January 2017 as the officer in charge of the bribery case, the US authorities, through a letter dated September 16, 2016, to the Modi government, had expressed interest in divulging the details of the alleged bribery by the LBI through a video conference. Though the Gauhati high court had given the CID four weeks’ time to revert after attending the video conference, on February 12, 2017, the state-government-run department told the court in a verbal affidavit that the video conference was going to be delayed. It led the court to extend the time.

Soon, Rajamarthandan was suspended from his job and subsequently removed from the investigation.

Since then, there has not been much movement in the case, which was once the major plank for the BJP to highlight corruption in the Congress regime in Assam and elsewhere.   

Speaking to The Wire about the appointment of the ‘enquiry officer’ by the BJP government to probe the allegations, Handique, now associated with the opposition party Raijor Dal, said, “This move by the Sarma government is a mere eyewash and an example of a Hitler-like attitude of the present government. Importantly, the state government is acting in violation of the High Court order.” He said, “The chief minister must not use officers who report to him to get a clean chit in that sensational case and allow the CBI to conduct the court monitored probe.”    

Leader of opposition at the state assembly and Congress MLA Debabrat Saikia told The Wire, “Though Prime Minister Modi publicly said in 2014 in Guwahati that all corrupt Congressmen in Assam would be enquired into and sent to jail, nothing much has happened till date. No progress is noted in the CBI probe into the Louis Berger case either. The Assam CID which was to contact the US authorities to seek details has also made no progress. The central government should contact the US Justice Department immediately for the information about the bribery and proceed to prosecute the Indian officials and whoever else was involved in the scam as it concerns public money. Justice delayed is justice denied.”  

The Wire has mailed the enquiry officer Borthakur seeking a response on what exactly would be the focus of his seven-day enquiry, and whether the Sarma government’s move is in violation of the Gauhati high court order. If there is any response from the Assam government to the queries, it will be added here.