After Jogi case, CBI had asked Govt to plug loopholes in defection laws

CBI’s plea of being hamstrung by the inadequacy of laws came after the agency sought the advice of Additional Solicitor General Gopal Subramaniam. The plea was submitted in December 2006.

However, Law Ministry officials say the agency went a step beyond the technical loopholes pointed out by the ASG and in their summary of the case pointed out how their cash-for-MLAs probe “brought out the inadequacy of existing laws in dealing with the situation in hand which has a very serious bearing on the democratic electoral process”.

The CBI’s opinion, available with The Indian Express, also notes how “the evil of political defection has been a matter of national concern. Lure of office and political expediency have played an important role in inducing the elected representatives to shift their loyalties from one political party to another”.

The CBI has argued that the anomalous situation existed despite the 1985 Constitutional amendment (52nd amendment). The agency noted: “It is, however, observed that despite this Constitutional amendment, attempts to engineer defections have not stopped…in the instant case the investigation has succeeded in establishing the factum of payment. However, detailed examination has not found any provision of law which covers this kind of attempt made to engineer defections prior to formation of the Government after the election process was over.”

The agency approached the Law Ministry to “consider ways and means to plug loopholes in existing laws to bring such an attempt (at defection) under the ambit of law”.

A year later, Law Ministry officials say, what the CBI had pointed out as a pressing need, remained a matter under “active consideration”.

The ASG’s opinion in the case points to “unsatisfactory” evidence collected by the CBI. The ASG opined, “On the evidential value of the cassettes, the material gathered is somewhat unsatisfactory. It is strange that the originals have not been seized by the CBI… that the copies have been found to be tampered with. Thus, the audio cassettes, the primary evidence available with the CBI, are also of suspect quality.”

On law points, the ASG said since the elected members of the Chattisgarh Legislative Assembly had not been administered their oath (when they were offered bribes), they could not be described as public servants. His conclusion: “On account of the technical interpretation of the criminal law… I must form the opinion that an offence is not made out against any of the accused persons.”