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Dec 16, 2012 at 09:17pm IST

CBI has been an unfair whipping boy of everybody, says Manish Tewari

Karan Thapar: Hello and welcome to the Devil's Advocate. Is Walmart becoming an embarrassment for the government? That is one of the key issues I will raise today with the Minister of Information and Broadcasting Manish Tewari. Mr Tewari, let us start with Walmart's own revelation. That since 2008, the company has spent $25 million lobbying for access in four countries, including India. And the opposition believes that much, if not most of this money has been spent on bribing people in India. How can you be certain that is not the case?

Manish Tewari: Well Karan let me start with a counter question, how can you be certain that lobbying automatically into illegal gratification?

Karan Thapar: Let me answer that by giving you two reasons of why the opposition believes that this lobbying is an elemental bribery as well. First of all, in November, Walmart itself put in suspension their chief financial officer and their entire legal team for potential violation of America's Anti-Bribery Act. Isn't that an admission by Walmart that their people were bribing Indian officials and other people?

Manish Tewari: If you allow me to be mischievous, may I very humbly submit, that if at all there is a question of illegal gratification, whom would you give the illegal gratification to? Those people, who are supporting FDI in multi-brand retail, or those people who are opposing FDI in multi-brand retail? And I think the jury is right on that. That is precisely the reason why the government has agreed to an enquiry by a retired judge of the Supreme Court. There is nothing to suggest that the term lobbying is synonymous with illegal gratification. It could be, it equally could not be. Therefore, an enquiry will bring out the facts and the government has increased to an enquiry.

Karan Thapar: I accept your point that lobbying is not bribery most of the time, but when the CFO of Walmart, and the entire legal team in November, just a few weeks before, is put in because of potential violation of America's Anti-Bribery act, that is a clear hint and indication that Walmart itself suspects that these people have involved in bribery in India and that is what the opposition says. That this money, has probably been used to bribe people.

Manish Tewari: I think what you really need to do is to read the Foreign Corrupt Policies Act of the United States of America very closely. Now, it is quite possible that there may be a technical infringement, it is quite possible that it may be more than that, but in the absence of any substantive evidence, even any prima facie evidence emerging, do you think it is fair for the Opposition to subvert and stall Parliament every day?

Karan Thapar: You are talking about absence of substantive evidence. In fact, the Economic Times says that there is a good deal of evidence that suggests that Walmart is seriously worried about bribery in India. To begin with they have frozen their expansion of operations in India and secondly two major wholesale outlet retail outlets to be opened up in Maharashtra and another one in Gujarat have been put in suspension. A company doesn't do that unless it is seriously worried that some wrongdoing has happened.

Manish Tewari: I think equally, a company doesn't do it even if they feel that prima facie they may be in technical violation of a certain provision of a certain law. Therefore, rather than going around in circles, I think it would be fair to let the enquiry play itself out, and if there is any misdemeanour or if there is any illegal gratification the enquiry would bring it out and the law will take its own course. But in the absence of an enquiry, to try and taint by conjecture, to try and insinuate that there could possibly have an illegal gratification, I think is again not be fair. That is the kind of discourse which worries me.

Karan Thapar: You keep talking about technical violations. Let me put it to you that these may be very substantial violations, may be very moral violations, which in facts what bribery amount to. Which is the second reason why the opposition suspects that Walmart's lobbying is tantamount to bribery. When you look at the debate in Parliament last week on FDI in retail, the opposition says that at least three parties and several MPs in their speeches, who were critical on FDI in retail, either abstained, or worse, voted in favour. And the opposition asks, did money change hands?

Manish Tewari: I think what the opposition needs to ask itself and the principal opposition Bharatiya Janata Party in this case, is that do people have problems with their economic position alone, or do people have a problem with their politics. And the answer is very simple. A lot of political parties, in the final analysis, have a problem with BJP's idea of India. And they do not want to be tainted by even with their association. That is the reality.

Karan Thapar: Except for the fact that some of the people who expressed deep reservations about FDI in retail, like the DMK, your allies, have actually been BJP's allies in the past. So they have no problems with association with the BJP. Yet they were ones who spoke against it. They made it clear that they dont like it and then they voted in favour of it. Now, I am not saying they took money, but BJP is asking that did parties like the DMOK, possibly the SP, possibly the BSP, got influenced by some sort of inducement from Walmart? The question they asked is was this lobbying that Walmart admits to is actually bribery?

Manish Tewari: Well I think let us rewind back to 2002. You are right. That DMK was a part the NDA government. But after 2002 Gujarat, a lot of people for uncomfortable with the politics of the BJP. And that is why in 2004, DMK decided to contest in alliance with the Congress and not with the NDA. So, therefore, that answers all the questions pre/post 2004 syndrome. Now coming to the substantial question that you raised about the prima facie import of these allegations. I think that in this point in time there is no empirical evidence to suggest that there is any illegal gratification which may or may not have taken place. So for anybody to suggest, or make that insinuation about a colleague, I think, is most reprehensible and that is something that needs to be avoided. And this is the sort of sensationalism which we saw over the past two years repeatedly.

Karan Thapar: You certainly don't have empirical evidence that conclusively proves that Walmart has been involved in bribery in India. But if you look at the allegations and the accusations and in fact, even more importantly, the investigations the Walmart faces in Mexico, China and in Brazil, you say it yourself, if there is a similar sort of accusations in India as well, that they may actually be true. That is one another reason why the BJP and the opposition fear that Walmart has been bribing.

Manish Tewari: How does an allegation get established? An allegation gets established after there is an enquiry, that enquiry culminates into a charge sheet and then innocence or guilt is determined by a court of law. Unfortunately what the BJP has done, is reversed a jurisprudence, they make an allegation, then they reiterate it, then they start believing in it and then ultimately they expect the country to convict a person without a trial

Karan Thapar: I accept your point. Don't put the cart before the horse. Let me put this to you instead. The government has put an enquiry. A retired judge of the Indian judiciary will preside over it. A three month time period has been given. If that enquiry establishes that Walmart has been indulging in bribery, whether with officials, or politicians or whether with the people, what steps do you propose to take against Walmart?

Manish Tewari: I think it is best for me to second guess the result of an enquiry. Let the enquiry process play itself out and we shall not put the cart before the horse as you said. We will cross the bridge when we come to it.

Karan Thapar: Could Walmart even be debarred or that is ruled out?

Manish Tewari: Well I don't think it is fair for me to give judgement one way or another. I think everybody should be allowed to present their evidence before the enquiry commission. The enquiry commission be allowed to come to its own independent conclusions and after that we will cross the bridge when it comes to. Let me reverse this question. Suppose the entire process exonerates Walmart completely. Who is going to compensate the individuals, or the associations, or the companies the damage that their reputation has suffered?

Karan Thapar: Walmart would be free if they want to. It can actually take individuals to court and sue them for defamation. That is actually upto Walmart. Let me come back to this enquiry. It has been given three month's time. It is your interest to ensure that this three month deadline is observed. But can you be sure that the judge can produce an outcome in three months or will that linger, if not years and then for months.

Manish Tewari: Let me take you back to another instance. In the wake of the entire 2G affair, the telecommunications minister, Mr Kapil Sibal, had ordered an enquiry, if I remember clearly, it was Shivraj Patil, and you had an enquiry out in time. There are enough instances which lean either way. Coming back to what you were saying, for the BJP, the grapes are sour. They are clutching on to straws, they lost the vote substantially in both Houses of Parliament and now they feel that they can taint it by innuendo and insinuation, which has been their DNA, ever since their inception.

Karan Thapar: You may be right in saying that the BJP is behaving like this because the grapes are sour. But let us come back to Walmart, because the problem for you is that it is not just case of bribery that embarrass you when it comes to Walmart. Walmart is also being investigated by the enforcement directorate for alleged violation of foreign exchange regulations as well as its investment rules. And if established, that would prove that Walmart was investing in FDI in retail even before the government had opened up the sector.

Manish Tewari: First of all, I do not think that when you take a policy decision, it only facilitates only one company coming in. This policy decision will not only bring Walmart. It would bring in a spectrum of companies. Therefore, a policy decision opens up the sector for an entire spectrum of companies to come in. Number two, if at all, any conclusion, does conclude conclusively establish that there has been a violation of the Indian law then obviously the law would take its own course.

Karan Thapar: The allegations and the investments are to check whether the investments by Walmart in 2010, almost two years before FDI in retail was opened up was in fact an infringement of India's regulations and investment rules. And that is a serious infringement.

Manish Tewari: Having been a practicing lawyer, I have a difficulty with allegations. An allegation is an allegation, a charge sheet is at best a narration of facts and events as they are understood by an investigating officer. Guilt or innocence has to be adjudicated. But that unfortunately in this country be pronounced guilty even before the trial begins.

Karan Thapar: But perception in politics is perhaps more important than facts and you know that. And today, in terms of public perception, is Walmart becoming an embarrassment for the government?

Manish Tewari: Well I think today in public perception, one message has gone out very clearly, that the BJP is a bad loser.

Karan Thapar: But I asked you about Walmart. Is Walmart becoming an embarrassment for the government?

Manish Tewari: I don't think this policy decision is specific to a company. If there is a company which has committed any aberrations then the law will obviously take its own course. But this policy decision essentially open up the whole sector and in the final analysis will benefit the farmers and the consumers for whom this policy is intended.

Karan Thapar: Is Walmart giving a bad name to the policy decision of opening FDI in retail? Is the policy itself now being put under a cloud because of Walmart and the perception of Walmart?

Manish Tewari: I don't think that is a fair think to say because a policy decision is not company specific. If at all, there is an aberration has been committed in a particular context, it would be looked at legally and it would be determined judicially.

Karan Thapar: Let us go back to lobbying itself. Walmart is not the only American company that has been lobbying in India. In fact, the Hindustan Times reveals that in recent time Starbucks, Dow Chemicals, etc have also been lobbying. That being the case. Has the time come in India to create, like the Americans have, a lobbying disclosure, which makes it compulsory for political lobbyists to be registered and secondly which makes it compulsory for periodic disclosures of the amounts spent and how they were spent?

Manish Tewari: If you permit me, may I reply to that question in my individual capacity because a government needs to take its own call before I articulate it. I think that is a fair point that you make.The time has come that we need to put in place a statutory architecture which makes these declarations essential and I will go a step further that even legislators, members of Parliament and people in the executive, if they have, in the past or continue to represent a particular company or group of companies in their professional capacity, that interest must be declared even before the participate in the debate.

Karan Thapar: You said categorically that lobbying is not bribery. Has the time come, for more ministers as you are outspoken today to equally clearly and unequivocally say that lobbying is not bribery. That lobbying per se is legitimate persuasion even done by FICCI, trade unions, NGOs. It is done even by the government and it is done by the MPs in Parliament. Shouldn't someone in the government make that clear so that attitude to lobbying, which is wrong, changes?

Manish Tewari: Well I think you make a fair point that you need to make a clear distinction between lobbying and illegal gratification. If there is any activity, which infringes upon the laws, violates the laws then obviously a criminal offence that needs to be investigated. But if something falls within the realm of what you call genuine persuasion and you do it in a legal and legitimate manner then I don't think anybody should have a problem with it.

Karan Thapar: Let us then take a break. When I come back I want to talk about a particularly talk about a predicament that the government is facing by both the SP and the BSP. Are you in danger of being torn about and pulled in different directions or can you manage this high-wire balancing act? That is in a moment, see you after the break.

Karan Thapar: In an interview with Minister of Information and Broadcasting Mr Manish Tewari. Minister, let us come back to a unique predicament your government is facing. At the moment you depend on the Samajwadi Party and the Bahujan Samaj Party to get your legislation passed. But the press believes that you are pulled in opposite directions by these two parties that simply can't stand each other. Would you accept that this is not an easy, that in fact it is an extremely uncomfortable position for the government to be in?

Manish Tewari: Over the past two decades, you have had plurality of politics in this country. Coalition is a reality. Political parties do have tough positions on several issues and when you have to reconcile these contradictions and yet try and find the golden mean, at times it is difficult, but I think over the past eight years we have managed pretty well.

Karan Thapar: You face the greatest test of finding the golden mean in this week itself because the government is pushing through parliament a constitutional amendment bill creating reservations in promotions, which the SP is vigorously opposed to. Have you got any understanding from Mulayam Singh Yadav that on this issue, he will not withdraw support from the government and equally importantly he will continue to support your legislation which needs to be passed?

Manish Tewari: In the final analysis, as I have earlier said, the real fault line in this country is communalism qua pluralism. Now within that larger parametre or architecture, you will have parties that are on the same side but may have different positions on different issues. But that does not essentially translates in either withdrawing support or or reiterating support. Both the SP and the BSP have been valuable allies. They have supported the government on FDI in multi-brand retail and the reality is that on certain issues you find yourselves into different sides of the fence.

Karan Thapar: You are saying something very interesting that the communal divide in India will continue to ensure that at critical points government will have the support of the Samajwadi Party, but at this instance, have you actually withheld by the Supreme Court who quashed Mulayam Singh Yadav's attempt to stop the CBI enquiring into his assets and now the CBI has the full permission to go ahead as a result of which Mr Yadav might sense that he is vulnerable and he needs to stay in the right side of the government? Has that come to your assistance?

Manish Tewari: I think the Central Bureau of Investigation has been a very unfair whipping boy of everybody who has found itself on its wrong side. The reality is that in a judicially monitored investigation or even the kind of very robust internal processes which the CBI has, even if the some government wants and the UPA has never wanted, it is almost impossible to gerrymander an investigation.

Karan Thapar: I am not saying that the UPA government is using the CBI to put pressure on Mulayam Singh Yadav, I am saying did the Supreme Court, no doubt unintentionally come to your assistance by quashing Mulayam Singh's appeal and ensuring the CBI enquiry continues as a result of which he remains vulnerable and does not want to offend you?

Manish Tewari: I think those are parallel tracks. Criminal investigations, judicial adjudications follow a particular track and politics follows its own tracks and there is no convergence.

Karan Thapar: Do you believe that critical bills like banking, pension and insurance will get passed in the winter session with the support of both the SP and the BSP or is that still uncertain and unlikely?

Manish Tewari: We remain hopeful, optimistic and engaged because those bills are important for the economic development of the country.

Karan Thapar: Is hope the same as confident?

Manish Tewari: Well I think hope is the equivalent of confidence if you have the courage of conviction and conviction of courage in what you are doing.

Karan Thapar: The simple answer that would have been convincing is yes they will be passed and that you did not give.

Manish Tewari: I leave it to your interpretation whether the answer I gave was a yes, an affirmative yes or a mild yes.