By Avirook Sen

It's probably the toughest decision that Lt-General (retd) S.K. Sinha will ever have to take as Governor of Assam. On December 29, the Central Bureau of Investigation (CBI) sought his sanction to prosecute Chief Minister Prafulla Kumar Mahanta in connection with the letter of credit (LOC) scam. After going through the CBI's voluminous final report on the scandal for six days, the governor sought a number of clarifications from the agency. These are queries that the CBI is finding difficult to answer, even as it has reportedly clipped its charges against the chief minister from four to three. The charge that is believed to have been dropped is related to the payment of Rs 40 lakh in cash by prime accused R.P. Bora to Mahanta.

The CBI's predicament is hardly surprising considering what went on behind the scenes when the charges were being framed. Documents made available to India Today reveal that on November 24, one file which had been sent by the CBI a month before, moved uncharacteristically quickly in the Law Ministry. Its contents were simple: the CBI, following a "difference of opinion" in its legal cell, had asked the Law Ministry to evaluate whether it could prosecute Mahanta. Faced with a tricky legal problem, the ministry in turn had referred the matter to Additional Solicitor-General of India (ASG) Altaf Ahmad, whose reply came the same day. Though most of his observations were in dense legalese, his conclusion was in plain English: "The records and documents have not been shown to satisfactorily meet these requirements and those of the provisions of Clause b) to e) of Section 13 of the Prevention of Corruption Act". In other words, he was saying there was no case against the chief minister in this respect. And as notings on the file show, Union Law Minister Ramakant Khalap accepted Ahmad's opinion that day itself.

In fact, the Law Ministry had sought Ahmad's opinion on only one count. Its legal officers were of the view that of the four charges listed against Mahanta, only the one relating to the purchase of air tickets merited consideration. Bora had allegedly footed the bill for one of Mahanta's trips to Delhi. What the CBI wanted to know was whether it was necessary to prove that Mahanta was aware that the airfare had come from the pickings of the scam in order to prosecute him under Section 13.

The ASG said it was, and the CBI's legal cell admitted that knowledge on the part of Mahanta (mens rea, in legalese) had not been established. But it had sought the governor's sanction to charge-sheet Mahanta. Though CBI's legal advisers had earlier made it clear there was need for "further investigation" and that "substantial material" had not come up for the prosecution of Mahanta, records show that CBI director R.C. Sharma had insisted on charging the Assam chief minister.

What is noteworthy is that neither Ahmad nor the Law Ministry had been provided the final report on the scam. Ahmad could not get the documents he wanted even when the matter was referred to him a second time, at the insistence of the CBI director. And in a tone of near exasperation, he simply reiterated his earlier views and said that the CBI should examine the documents in that light. Considering that it was the CBI's decision in the first place to approach the Law Ministry, it is not clear why it didn't make the material available.

There is already great pressure on the governor to come to a decision on the issue, which in any case, has been delayed. But no matter which way it finally goes, there will be much political upheaval in the state.

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