SHANKAR SHARMA and Devina Mehra made a pilot’s error when they invested in TEHELKA. One small step of an investment led to a giant leap into a downward spiral of police raids, interrogations, endless litigation, courts, and yes, even jail. This was no moonwalk. Shankar Sharma’s and Devina Mehra’s lives turned on them. All their branch offices closed down, their properties were attached, their home and offices were raided 26 times, their computer hard disks and servers were seized. They were banned from trading on the stock exchange, which was their livelihood, their bank accounts were frozen. They were physically detained three times, Shankar went to jail for nine weeks without bail under a law that had been repealed a year and a half earlier by Parliament, and within the year, they received over 300 summons for personal appearances from various departments and agencies of the government. The Income Tax Department, the Enforcement Directorate (ED), the Excise Department, the Department of Company Affairs, and the Reserve Bank of India all investigated Shankar and Devina. The Income Tax Department raided them 15 times. Twenty-two cases were filed against them under the Companies Act, plus one FERA case and five FERA civil proceedings. Shankar’s passport was confiscated and it took him a year to retrieve it. Devina got a stay order against her passport being impounded, which required yet more appearances in court.
Who then are Shankar Sharma and Devina Mehra? Not exactly household names, even after the TEHELKA exposé. Shankar and Devina both come from what would be termed ‘humble backgrounds’ in Hinglish. They graduated from institutes of management and incorporated First Global Stockbroking Pvt Ltd in 1994. They are both directors of the company. Shankar looks at trading research and Devina into fundamental research. In the course of seven years, First Global became one of the largest securities companies in India. They work sitting next to each other and say they experience separation anxiety if they are not with each other all the time. They bounce ideas off each other, and when Shankar was in jail, being out of touch was the most difficult aspect. Both say they can guess what the other will say and function in complete tandem. Before the TEHELKA chapter, they had 18 branches and employed over 300 people. They have offices in London and New York that trade internationally. The First Global Group is the first Indian company admitted to membership of the London Stock Exchange. It was rated among the three top brokerage houses in India by Asia Money magazine. In January 2001, the Securities and Exchange Board of India granted First Global the status of a deemed Foreign Institutional Investor. This enabled First Global to raise money from overseas. The trading turnover of the First Global Group in the year 1999- 2000 was Rs 7,432 crore. Devina Mehra and Shankar Sharma were individually among the top taxpayers in India. During their 10 years of doing business, they had never been hauled up for any tax or legal infringement.
Their success story crashed when First Global was forced to close down in April 2001. Shankar Sharma and Devina Mehra are a couple that in many ways exemplify the new, emerging India, but now, if anything, their story also exemplifies what is wrong with India. Their Rashomon of what happened to them after TEHELKA, exposes the perdition that simmers under the sanitised, orderly veneer of an investigation. There’s no inherited money here. No special contacts or godfather politicians. Their families are solidly middleclass who believed that education was the best they could give them. Devina won eight gold medals during college and broke a 60-year record for the highest aggregate marks in her undergraduate course at Lucknow University. At the Indian Institute of Management in Ahmedabad, Devina was a gold medallist and had scholarships for both years. Shankar received an MBA from the Asian Institute of Management in Manila, where he made it to the Dean’s list. Devina worked with Citibank after she graduated, but her interests lay more in research. She said the biggest kick she got in life was learning new things in her field. She had got admission in 1990 to the University of California, Los Angeles, for a PhD but realised there was not much she could do with a PhD in finance. When the markets in India opened up to foreign investments in 1993, research into industries and companies became relevant to the stockmarket. That is when Devina joined Shankar’s business…
DESPITE THE fortune they made, the two have lived a low-key, simple life with no garish cars or opulent homes and offices, and have stayed away from the vacuous party scene. Shankar switched from cigars to bidis in jail and continued smoking them for a while. Devina is a surprise. She has a shock of thick, wavy unruly air, no make-up apart from lipstick occasionally, and clothes that show a complete oblivion of style. She tends towards plumpness but is working it off. She is not beautiful in a conventional sense, but after you’ve spent time with her and listened to her, you understand why Shankar, unashamedly, unequivocally adores her. They work together, live together, built their company together, were virtually destroyed together, and are now fighting for their survival together. Often they answer together, using the same words and just as often complete each other’s sentences. Yet, both are very different from each other. Shankar is tall, good looking in the boynext- door mode, and at first glance they seem an odd couple. Shankar’s language is more impulsive and macho, peppered with ‘yaar’, ‘f**king’, and ‘boss’. Devina has yet to use any such words in my presence. She is more aware of who she is talking to and the consequences her words will have, particularly in print.
Perhaps because Shankar so uninhibitedly praises her worth, she has an inner confidence that precludes the need to prove herself. She is unquestionably strong, yet is not above breaking down and crying. Her pain when she recalls the time Shankar spent cold winter nights in Delhi’s freezing jails is obvious. But that does not stop her from laughing uncontrollably when recalling that his sisters broke down after visiting Shankar in jail, crying: “he doesn’t even know how to fold his clothes.” Devina and Shankar both come across as financial and business intellectuals. Testimony to this is to be found in their many articles published internationally. Even more so it lies in their perspective of the cauldron of problems created by the TEHELKA connection. The clearest example, of course, is Devina’s Kafkaesque statement in one of their long conversations with me.
Devina Mehra: Now you realise that anybody out there is only there because nobody wants you inside. Any time somebody wants you inside [jail], you can be inside.
It is so much easier to identify and write about overtly totalitarian regimes. In India, as is our culture, cruelty is rarely practised openly. It is insidious, carefully orchestrated so as to appear that whatever is happening is a matter of course and the law is being impeccably observed. Much like the stereotypical venom filled mother-in-law, who spends her days in prayer, while being covertly mean when not observed by men. When the Secret Auto Destruct System (SADS) is activated, no instructions are given in writing. Often, not even over the phone. Just come and see me. The drift of the destruction is given face to face with no witnesses. It is far worse than in any openly totalitarian regime…
WHEN SHANKAR first spoke to Tarun Tejpal on the morning of March 13, 2001, his only concern was that Tarun was going to blow his financing away and forestall his forthcoming exit plans out of TEHELKA. Though he believed at that time that Tarun could have waited until Subhash Chandra invested in TEHELKA, in hindsight, knowing what the government was capable of, Tarun had no choice.
Shankar Sharma: When you’ve done a sting operation, probably your cover getting blown by these goons would mean that you would end up behind bars for spying, some s**t like that. Imagine, if this had not become public and these guys had caught hold of Mathew Samuel or somebody, they would have just thrown him away, called him an ISI spy or some Mujahideen guy smuggling…
Madhu Trehan: When was the first time that you felt the repercussions of investing in TEHELKA?
SS: That happened when the planted stories started coming in The Economic Times in Delhi. From March 15, weird tales started coming out. The reporters were Sanjeev Sharma and PR Ramesh. That sort of told us that something is brewing. Then Jana Krishnamurti [the new BJP president, who succeeded Bangaru Laxman when the latter resigned] comes out and says it’s a conspiracy. Somebody else comes out with that it’s a Congress conspiracy.
DM: BJP takes out a morcha in Bangalore saying we have to find out who is behind TEHELKA.
SS: Questions were being raised about the source of the financing of TEHELKA. We started getting more than a little scared. We held a press conference on March 16, 2001, in Mumbai. We gave all the records of our transactions. We said, go and chew over this, guys. And even if it’s me saying so, in our 10 years in business we had built a sterling reputation…
On the night [of the press conference] they flew to New York for their NASDAQ accreditation interviews… On the flight they talked about possible harassment they could expect and were quite calm about it. Shankar said, “We thought the worst the government can do is income tax raid ho sakta hai, woh sab ho sakta ha [income tax raid is possible, all that is possible], but if they don’t find anything, what are they going to do? Every business house in India lives with this thing that sooner or later these guys will land up. It’s not the end of the world by any stretch of the imagination.”
Shankar and Devina planned to stay in the United States till the first week of April, but a call from their Mumbai office jettisoned their schedule. Income tax officer AA Shankar spoke from First Global’s office phone and abruptly told them that the Income Tax Department had sealed the Sharma/Mehra home. AA Shankar curtly asked them to return immediately and open the apartment, as they had the keys. Shankar and Devina caught the next flight out and were received by a friend at 4 am. They went straight to their apartment in Colaba, but had to check into a hotel close by. SS: I remember it was a very, very weird feeling. You’re outside your home. You’re not allowed to sleep in your own home. It made me very angry. I can’t enter my own home, yaar.
DM: The irony of it was that in the previous year we had paid over Rs 20 crore in tax. Then what’s the point, if you do not even buy immunity from this kind of stuff after paying so much tax?
They called up the Income Tax Department the following morning and about a dozen officers arrived at noon to open their home. The officers then began to pull the place apart, going through their clothes, examining underwear, reading letters, rifling through cupboards. Shankar and Devina were shocked when they turned on Star News and watched a story that reported they had been arrested at the airport. Devina said,
“Of course it was planted. All kinds of wild stuff was getting printed. We were thinking, suppose somebody in the family sees it, they will panic.” Shankar added, “It’s also about your repute, yaar. Getting arrested, getting raided is not something … You get used to all this shit later when nothing fazes you any more. But then, it was like a big thing.” They called their families to tell them they were at home. Shankar then called Raj Roy at Star News and demanded, “What the hell are you running? I am sitting at home.” Roy told Shankar that this report must have come from Delhi and it was corrected in the 9 o’clock bulletin.The income tax raid continued until midnight.
SS: They ordered food. You get angrier and angrier. You feel violated. Very, very violated. Somebody comes into your home and goes through all your stuff.
DM: Of course, on an individual level, they were all saying this is all because of TEHELKA.
SS: They were saying, [what can we do, we’ve got orders from Delhi. We are forced to do it. It’s nothing personal but we have to do it. I said, okay, bastards, let them do it].
DM: Very soon they knew there was nothing to be found at home. Our office guys were laughing, what will they find in the raid? They know precisely how much jewellery she will have. [They both laughed easily.] Obviously, there was nothing. There are mostly books at home, nothing else.
SS: The only thing we are proud of is our library; that’s about it.
SHANKAR AND Devina were interrogated for nine days for up to 12 hours at a time. The income tax officer told them unofficially that the raids were in connection with the TEHELKA issue and not to uncover any undeclared income. He said that a case relating to TEHELKA had to be built up. He also said that the Finance Ministry was “looking for a Taj Mahal in Delhi, while it is actually in Agra”. SEBI officers assured them that they had nothing to worry about as they were net buyers on the day and so could not be connected to the stockmarket crash of March 2, 2001, the ostensible purpose of the investigation…
Following that, a series of summons, about 230, were sent to them to appear at the Income Tax Department office to answer questions. On some days, they were summoned to appear at 11 am at three different places…
Their life became cocooned in a dense smog of fear. For three nights a white Maruti van was parked outside their home, observing every move. Shankar and Devina laughed as they said that the first thing they did was to go out and buy books on ‘Search and Seizure’. They studied enough to be aware of an Indian citizen’s rights…
During the income tax raid at their office, they confined a 25-year-old staff member in a room for 24 hours without food and water and continually threatened him. Neeraj Khanna, who worked as a consultant for First Global, was interrogated through the night, not allowed to sleep, while various officers took turns snoozing and interrogating him. Khanna was threatened that his licence would be cancelled if he did not sign a statement against Shankar Sharma and Devina Mehra. They kept other staff there for 36 hours at a stretch. When Shankar and Devina started quoting sections from the Search and Seizure Act, the officers got even more upset with them. The first questions they asked were all related to TEHELKA. When Shankar informed them that the statute says that a citizen has only to answer questions relating to assessment of income, the officers were furious. They threatened to file criminal prosecution against them under Section 179 of the Indian Penal Code. Shankar still refused to answer questions that did not fall within the purview of the income tax laws. From April 3, 2001, right up to April 17, 2001, Shankar and Devina were questioned, principally about TEHELKA. The only correspondence that was seized related to TEHELKA. No questions were asked about any other First Global investments, while in the context of their entire business, TEHELKA was probably their smallest investment. Harassment also began from the Reserve Bank of India (RBI), an institution one would tend to believe is above such pettiness. RBI asked on April 9, 2001 for the Annual Performance Report (APR) of First Global’s subsidiary in London, which was not due until July 31, 2001. The RBI threatened to refer the matter to the ED if the APR was not filed. The APR was filed in time. On April 17, Shankar received a call from an income tax officer saying he should appear before them the following morning. When Shankar protested that he had organised meetings, the officer insisted that he show up. When they arrived in Deputy Director R. Laxman’s office at 11 am next morning, there was a man sitting with a note pad and pen in the room. Laxman told Shankar they were going to start recording his statement. Shankar asked him how could he start recording a statement if he hadn’t given him a summons? Laxman said they didn’t need a summons, to which Shankar replied that he had read the law and knew it was essential. This argument continued for an hour and a half and at 12.30 pm, Laxman served Shankar a perfunctory summons. Shankar then demanded to know who was the man sitting in the corner and asked that he identify himself. The man did not move and did not say a word. Laxman said he did not have to identify anybody in the room, while Shankar insisted that he would not record his statement in front of someone he did not know. In an amazing coincidence, in the 17th sentence of The Trial by Franz Kafka, the ‘hero’, Joseph K. utters virtually the same sentence in uncannily similar circumstances. Joseph K. says, “I will neither stay here or be talked to by you unless you tell me who you are.”
SS: I said, fine, we’ll sit here all day long and waste time but you are not getting anything out of me. He would not disclose the identity of that person. Finally, that guy had to leave. I think he was from the IB or something. He looked like a weird, weird, spook…
After the unidentified man left, Laxman began to record the statement.
DM: What used to happen in our normal statement also was, we’d record one page, this guy would go out, go to his boss, proudly fax the page to his boss, who would then call back and say, these are the questions you must ask. So it was actually, each page was going all the way to Delhi and back…
At 9.30 pm on April 18, Shankar got a call from the office that there was a fax without a letterhead but it appeared to be from SEBI. They left their dinner and rushed to the office. Shankar said the fax looked weird, it had no letterhead, no signature, and looked incomplete. They thought it could be a hoax. It was an order to First Global offices to stop their business pending an investigation, under Section 11B of the SEBI Act. No board has to consider and approve this decision. A single man has the licence to stop a listed company’s business. It was SEBI Chairman DR Mehta who took the decision under Section 11B of the SEBI Act that enables the SEBI chairman to debar a broker pending an investigation. This Act is supposed to be used in an emergency situation, so the SEBI chairman stretched the Act to its extreme. Shankar and Devina then dashed to SEBI’s office where a guard told them that all the officers had just left. Shankar got the home phone number of an officer they had met earlier. Shankar said, “He was really nice. He asked, ‘Order mil gayah aap ko [have you received the order]?’ I asked him, ‘Why has this been done?’” He answered, ‘If there was a reason, I would tell you.’ We asked to meet him. He said, “I feel so ashamed, I can’t meet you. It is the worse thing I have done in my career. As it is an interim order, it cannot be challenged and it is impossible to get immediate relief to run your business.”’ Shankar and Devina began to discuss the inevitability of firing 300 employees and shutting down their branches….
COINCIDENTALLY, ALL this happened when First Global was going through the process of getting their NASDAQ membership. The NASDAQ team from the US was visiting India and they questioned First Global about their own regulator shutting them down. The NASDAQ team examined all the First Global papers with a fine toothcomb and concluded that Shankar and Devina were being railroaded for no reason based on their trading. They did mention that if NASDAQ had done this kind of thing in the US, they would have been sued and taken to the cleaners. Shankar and Devina were in a panic that morning, frantically talking to lawyers, figuring out what they should do next. At 3 pm, three police sub-inspectors in civilian clothes arrived in Shankar’s cabin. They asked whether he had fought with someone in the Income Tax Department the day before. When Shankar answered in the negative, they insisted that that is what they had heard. The cops then told Shankar that an income tax officer had filed a First Information Report (FIR) against him and asked Shankar to accompany them to the Tardeo police station to record his statement. Shankar agreed to go with them as he felt the whole thing was so far-fetched that there shouldn’t be any problems. In the car, one of the cops sitting with Shankar informed him that he was being arrested and charged with threatening to kill an income tax officer. Shankar couldn’t believe what he was hearing. Devina, who had met lawyers for the first time in her professional life that morning, had no idea which criminal lawyer to call. The ‘couldonly- happen-in-India’ part of the story is: the cops did not come in their own car. The car they were being driven to the police station belonged to Shankar’s friend Jai. Near Kala Ghoda, a man on a motorcycle was run over by a water-tank truck. Jai decided to give chase and stopped the car in front of the truck and forced the driver out. The driver started running and the cops jumped out to chase him. What were Shankar and Devina doing when all this was happening? Sitting in the car and waiting for the cops to return. The cops then called officers in the Colaba police station. Constables then arrived and arrested the driver. Shankar was taken to Tardeo police station and Devina called up (following the suggestions of friends) Girish Kulkarni, a criminal lawyer, begging him to do something. The cops in the car had already told Shankar and Devina that the income tax commissioner had called the police commissioner and said that Shankar Sharma must be arrested that day under any circumstance. Shankar said that the cops were really good with him and assured them that there was no reason for him not to get night bail. They told Devina, he would have dinner with her at home that night. The police took him to the magistrate’s house to apply for night bail. The police did not oppose it but the magistrate rejected it and insisted that Shankar would have to remain in jail.
MT: What did you feel when you walked in?
SS: Scared. Bizarre. Depressing. They took me behind, up the stairs, into the lock-up area. Straggly bunch of guys there. Junkies, pimps, I don’t know. Three or four of them. The light was very dim. I didn’t go to the loo. The floor was stone, all broken. Three walls and the bars and mesh on one side. There was a window very high. You couldn’t look out. In all jails the ceilings are very, very high. The walls were dirty; quite pathetic. There was no fan. Then they just lock you in. I sat down on the floor.
MT: What were your first thoughts?
SS: I was just saying to myself, where does this thing end? Or where is this thing leading to? How did this happen? It must be some bad dream. It can’t be happening. Then I came out in about an hour’s time. They basically locked me in, as having been there, and then they took me out and took me back to the police station…
On 25 September 2001, Shankar and Devina were at Chennai airport to catch a flight to London. After checking in, they proceeded to the immigration counter. The immigration officer looked at Shankar’s passport and stopped them. He took them into the immigration office and called someone, speaking in Tamil or Telugu. He returned and asked, “Are you the same Shankar Sharma who has invested in TEHELKA?” They asked what that had to do with immigration clearance. He informed them they would have to wait until he received instructions from the Ministry of Finance in Delhi. The officer made them wait for hours and refused to explain anything to them. Finally, he had their luggage off-loaded. There were 15 officers staring at them, whispering in a language neither of them understood and pointing at their luggage. The last international flight had left and the airport was virtually empty as they sat there for four hours. With their passports impounded, not allowed to make phone calls, waiting for instructions from the capital, Shankar and Devina said it was like being in a foreign country. They were also apprehensive of drugs or anything else being planted in their suitcases. Chennai was an alien city to them. Aside from the five staff members in their Chennai office, they knew no one. They had gone to Chennai only to meet their staff. Shankar said they were both so scared that had they had been 15 years older, they would have suffered heart attacks. When Sharma said that they could not wait forever, the officer said they were not going anywhere until he received instructions from the Ministry of Finance. Sharma retorted that he had a valid passport, a valid visa, and an airline ticket so he should be travelling. The officer was impervious. At 3.30 am the senior officer arrived and informed Devina and Shankar that a look-out circular had been issued against Shankar Sharma to prevent him leaving. Such a circular is usually issued to all airports and exit points out of the country to prevent fugitives from absconding from the law. Shankar informed him that he was living in his home in Mumbai leading a normal life, so what was the necessity and high drama to look for him in airports? When Shankar asked the officer to show him the circular, the man refused. At 5 am two income tax officers arrived. They took out their notepads and told them that they were going to question them. When Shankar asked them under what section of the law they were proceeding, they replied that they were from the Income Tax Department and could ask any questions. The income tax officers began their questions by asking them their names.
SHANKAR TOLD them: “If you have to ask my name and then you search me, then there is a disconnect somewhere. You had better know my name before you search me.” When Shankar quoted from the Income Tax Act and demanded to know why he had to answer their questions, they gave up and said they would wait for their boss to arrive. Their boss showed up shortly with a search warrant that said they had information that Shankar and Devina had valuables in their luggage. Shankar asked how they had discovered this when nobody knew they were in Chennai and wondered how they had come to such a conclusion. The officers then searched the baggage, opening out every single garment, turning the bags upside down and even looked under the lining. They found nothing. They searched his laptop computer and again found nothing. At 11 am they signed the panchnama and finally decided to let them go. As they were forced to spend the night in Chennai, in front of the officers Shankar called up the hotel nearest to the airport, which happens to be Trident. They got to the hotel after being awake for over 30 hours. They brushed their teeth, showered, and prepared to sleep, planning to catch the evening flight to Mumbai.
DM: And then this phone rings.
SS: Devina picked up the phone.
DM: Haan, so, may I speak to Shankar Sharma?
SS: In Chennai nobody knows that we had just checked into Trident Hotel. That’s like 10 minutes. Not even our own guys know this.
DM: He said some Pradeep Saxena. I said, who? I had never got the name. So I said, who are you? I am an old friend of his. Sounded very shady. I said, old friend meaning what? How do you know him? No, I know him from college. I said, which college? So it went nowhere. He wanted the room number, because the hotel would not give out the room number. So then finally I put down the phone. After five minutes these 12 people land up at the door saying that we have a search warrant to search the hotel room.
SS: Same people plus some more people. I told this guy that you son of a bitch, you searched me at the airport. I made this bloody booking in front of you and I come here and I am supposed to suddenly sprout valuables in a hotel room I have never ever stayed in before in my whole life. It was…
The officers searched the hotel room and their luggage all over again. This time they had brought a computer expert who examined Shankar’s laptop. Shankar asked them why, since the same laptop had been examined by income tax officers in Mumbai, then again at the airport, it was necessary to repeat the exercise? Shankar said he had little in his laptop since he isn’t really into it. The expert announced there was nothing in the laptop. SS: I had said there was absolutely nothing in it. He was shocked because in their image I am like James Bond. [Laughing] I am carrying my suitcase, my cigarette lighter. Keeping a laptop and nothing is there in the bloody laptop. They said that is not possible.
I said that is how it is…
They still took the laptop…
When they arrived in Mumbai on September 26, 2001, they found an order waiting for them that accused them of unaccounted income of Rs 149.35 crore, the tax liability for which was Rs 89 crore. Shankar and Devina pointed out that the allegation was baseless and no demand had been made or notice given in that context. However, the order did impose a requirement to obtain a clearance to travel. The reason was that, according to the order, Shankar had not filed block returns, although that assessment procedure did not come into effect till October 12, 2001. The order also accused Shankar and Devina of attempting to leave Chennai on September 25, 2001 without clearance, although the order to obtain clearance was only issued on September 26, 2001…
On 17 December 2001, which happened to be a holiday for Eid, Enforcement Directorate (ED) officers arrived at their Delhi home at 6 am A sleepy Shankar opened the door to them. The officers then told him they needed to take him in for interrogation. They took him to their Lok Nayak Bhavan office. Shankar’s lawyer, Rani Jethmalani, waited outside since the ED did not allow any lawyers to be present. They proceeded to ask strange questions: “What is the stock market?” “How does it work?” Shankar was kept inside the whole day. The law says that within 24 hours of an arrest, the person has to be produced before a magistrate. In order to prolong the harassment, the ploy is to detain the person without arresting him, and then issue the arrest warrant much later. The officers had tried to send Devina home at 8.00 pm, who was waiting outside the ED office, saying that because of her, the female police officer had to stay and she had children at home. Devina was adamant and was not interested in anybody else’s sob story. They told Devina that they were not allowed to arrest anyone after sunset, so she could go home. Shankar’s arrest warrant was issued at 12.40 am. An arrest memo was handed over that said there was prima facie violation of Section 19 of FERA. This section does not require evidence that gives reasons for suspicion of wrongdoing. The ED officers then decided to hold Shankar for two days, without producing him in court. At that point, Devina lost her cool:
“I really screamed at the whole bunch of them. I said your whole hierarchy is here and not one of you has the guts to say, I will not do a wrong thing. Not one of you has the guts to say I will not put my signature on something I don’t believe in. I told them, you talk about being God-fearing and this is what you do.”
The officers looked sheepish and shifted their eyes away…
SHANKAR WAS then sent to the Tughlak Road police station lockup for the night. The Tughlak Road lock-up is outdoors with just bars. The temperature recorded in New Delhi that night, on December 17, 2001, was 10°C and the wind speed 9mph. He was not given any blanket or quilt, nor allowed any food between the time he was arrested and produced in court. The police said that Shankar was in the custody of the Enforcement Directorate and he would not be allowed food unless permission was granted by the ED. No ED official could be found. Shankar was taken to Patiala House at 3 pm Meanwhile, Devina gave some television interviews, emphasising that he had not been allowed anything to eat. Devina got in touch with lawyer Kapil Sibal and asked him for suggestions. Sibal told her it didn’t matter which lawyer she chose, Shankar would be remanded anyway….
The ED lawyers said they wanted to take Shankar to Mumbai so they could open up his home in his presence. While Shankar was in custody, Devina went underground because friends warned her that she too would be arrested. Shankar’s sister Rita took food for him. One evening when Rita arrived at Lok Nayak Bhavan, the guard informed her that Shankar had already been taken to Mumbai. She saw his clothes lying around and cried uncontrollably, just unable to leave. Rita said it was the worst night of her life. The following morning she caught the first flight to Mumbai. Shankar said there was no question of taking his clothes. They just picked him up, bundled him into a car, and took him to the airport. He arrived in Mumbai at 11 pm and was taken to the lock-up in Azad Maidan Police Station. When Rita arrived at the police station with food for Shankar, they said he would not be allowed home food because the order permitting him home food was a Delhi order and it had no validity in Mumbai… On December 27, while Shankar was in the lock-up and Devina was in hiding, the ED officers opened and raided their Mumbai home again. A couple of staff members from the First Global office were there. No lawyer was permitted. There is no bed or mattress in the lock-up. Shankar spread a few newspapers on the floor to sleep on. On December 31, the ED brought him back to Delhi and Rita tried to see Shankar that evening. They kept her waiting for three hours and then finally told her that no meeting would be allowed that day. Although Shankar had landed in Delhi at 5.00 p.m., they decided to transfer him at 10.30 pm to the Tughlak Road outdoor lock-up. Temperature recorded in New Delhi that night was 8°C and the wind speed 8mph. Devina got word that Shankar was being moved to the freezing lock-up, so she called up her brother and asked him to take some warm clothes for him. He took what he could rustle up.
WHEN DEVINA went to see him the next morning, it was so cold that the fog had a visibility of only two feet. That was the first time Devina saw Shankar since his arrest. He had high temperature and was feeling ill. Shankar was then produced before a magistrate and since the 14 days of remand were over, he was sent off to Tihar Jail. Shankar was in the general barracks for the first four nights. It is one large hall, meant to accommodate about 50 people. There were about 300 prisoners there with only one toilet. Finding space on the floor to sleep was a challenge. Yet Shankar was surprised at the affection and care he received from other inmates. They would console him when he missed Devina and assured him that there was no way they would not be reunited. They had no idea how many years he could be incarcerated…
For the first four days in jail, Shankar was in shock and depression. He had never seen anything like it. He kept his spirits up for the first 14 days of his custody but actually being thrown into a regular jail for criminals shook him.
After a couple of days, he came out of it and began to find it interesting. There was a time when prisoners were differentiated by their class. There used to be a separate section for taxpayers called AClass prisoners. Now, Shankar was with pimps, rapists, drug addicts, murderers, and terrorists. After a couple of days he began to figure out the system in jail. For a couple of hundred rupees he could take a hot bath in the deputy superintendent’s bathroom. To increase meeting time with a lawyer or a relative, Shankar would pay off the guard, otherwise the man in charge would look at his watch and shuttle Shankar away. The guard had to be paid if a legal document was handed over. Devina was in a dilemma about whether she should go to jail to meet Shankar. Various lawyers had advised her not to do so because she could be arrested.
ON THE first day, Devina’s brother and Rita went to see him. When they returned they told Devina that Shankar really wanted to see her. The meeting hall is divided by netting two feet apart. There are plastic glass sheets covering the netting. The visitor and inmate are supposed to communicate using telephones lying next to each chair, behind the plastic sheets. But often the phones don’t work. Soon Devina realised that the glass sheet is only up to waist level. Below the waist, there is nothing. When the phones are dead, everybody squats on the floor beneath the tables and shout across to each other. When they met, the first time since his arrest, they both broke down. Shankar told her that she had to get him out of there somehow. Devina was traumatised. Devina was told that the court that had heard them for 60 days had no jurisdiction over the case and therefore could not grant bail. They stated that Shankar had to be produced in a Mumbai court. Shankar’s lawyers argued for transit bail. Again, the additional solicitor general, argued against Shankar’s bail. Bail was denied and he was not released but taken in custody to Bombay (Mumbai). Sidharth Luthra, who was arguing for Shankar’s bail said, “This was a shocking game they played on the sixty-first day, when they filed a complaint in Mumbai while Shankar was still in jail in Delhi. That day Shankar broke down for the first time in court.” Luthra recalled sadly, “Their story is tragic but shockingly true. I was part of what happened in Delhi and trying to get him bail. I witnessed them breaking down. We were afraid Devina would be arrested. I remember Devina having lunch at my place and then we smuggled her out of there through a back alley.” Shankar recalled that the court dates were quite traumatic. It took the whole day. Prisoners are stuffed into over-crowded buses and the court lock-ups have no water and the toilets are stomach-churning filthy. Prisoners sit on stone slabs all day until their case is called. They are brought back to jail at around 7.30 p.m., by which time Shankar said, “You actually look forward to returning to jail. Your jail cell is your home.” Travelling in the police buses was dangerous. Even if a riot broke out in the bus, it would not stop until it reached the jail. Stabbings are not rare. Shankar figured out a safer way to come to court. He got himself shifted to the high security zone and would travel in a less crowded bus with accused terrorists. There he met all the notorious names he had till then only read about in the newspapers. Devina was with her lawyer when she heard that Shankar had been taken to the lock-up in Vikaspuri. As the jail does not open before sunrise, prisoners are taken to the Vikaspuri lock-up for the night to catch early morning trains. Devina dashed to Vikaspuri but they allowed her to meet Shankar for only five minutes. She was shattered. Shankar was then transported to Mumbai by train, in keeping with the jail budget for travel. He was handcuffed through the night, while the police constables slept. In Mumbai, Shankar was taken to Arthur Road Jail, which he said made Tihar Jail look like the Emirates Palace. He shared a tiny cell with five other prisoners, who were in for smuggling. The food was meagre and disgusting. Prisoners were given a bowl of daal for breakfast and various versions of the same thing for other meals. No outside food was allowed. Whereas in Tihar, visitors could hand over food and clothes, none of that was allowed in Arthur Road. There was an eight feet long room to meet visitors. Netting and plastic glass separated the visitors from the inmates, and there were no phones, so everyone screamed at each other. Visitors were allowed only five minutes, and this could be accomplished only after some bribing. On the 68th day of his incarceration, Shankar was produced in the Bombay sessions court. The prosecution continued to play for time…
As in everything in India, the opposite parallel always runs concurrently. For all the unscrupulous, sabh chalta hai [anything goes] lawyers working the system for their own benefit, there are others who are conscientious to the law and the Constitution. Goolam Vahanvati, was witness to the government churning out the SADS on Shankar and Devina. Vahanvati happened to be advocate general of Maharashtra in 2001 when the market crashed after the budget was announced… In February- March 2004 (when the BJP-led NDA alliance was still in power), SEBI tried to revive the cases against Shankar Sharma and Devina Mehra, after dropping them earlier. Vahanvati spoke about that case when he was called upon by SEBI to represent them.
Goolam Vahanvati: Hmmm. I was briefed. I wouldn’t like to really say this. I am saying this off the record …
MT: Then don’t say anything off the record. Say what you can place on record.
GV: Okay, let’s say for some time I wasn’t appearing for SEBI in between.
MT: Did you refuse to appear?
GV: When this case came I thought it was a continuation of the earlier proceedings. I appeared on the first occasion because obviously I wanted to understand how SEBI was justifying its action and I couldn’t. In the meantime, I made a statement in the court that no action will be taken on the notices. Then I read the papers. My conscience didn’t allow me to continue. So I just said I am not available.
MT: Did you think at any time, when you obviously found that they were being railroaded and the facts that were being presented, were wrong?
GV: No, on the legal principle I thought what they were doing was all wrong.
MT: Did you at any point at that time think that it would be good to say that what you are doing is wrong?
GV: No, I can’t as a lawyer. I can’t do that. As a lawyer I can’t do that. The only option I have, Madhu, is to return the brief… The only thing is that you have to quietly walk away. This is what I did. What happened was, I just made an excuse. I said I am not available and I returned the papers. You must understand that I was holding an office as advocate general of Maharashtra. It is a responsible position. I don’t want to do anything which will appear to be a political thing. I am a non-political person. If I had started making statements and there was a different government over here, it would have looked very bad. So I did what I thought was the only correct thing to do. And incidentally I was walking home and (voice breaks with emotion) — and I feel very strongly about what’s happened to these people. Really, it tears me apart. [speaking in a choked voice] I think, it’s … the entire government goes after some people. I met them [Shankar Sharma and Devina Mehra] on the street. They said, “Are you okay?” I said, “No. I returned the papers. That’s all I could do.” [Trying to control emotion and tears.]
MT: Basically you saw on the inside how they were organising the destruction of First Global?
GV: Yes. I saw it. Please give me a moment to pull myself together. [Turns his face away and tries to control his emotions for a few minutes.] It was clear to me and I was afraid it wasn’t put across the way it should have been. I consider this to be the grossest abuse of powers on entire … how the power of the state was used. You feel so helpless. You can’t do anything. [Tears in his eyes; very upset.]
MT: That must have been very discouraging for somebody in your position.
GV: I couldn’t, I couldn’t agree, I couldn’t. What else could I do? The only thing, having appeared in the case once, the only honourable thing for me to do was to say, “No I won’t appear again”. I met them then and I told them that I am not appearing, because I couldn’t bring myself around to agree to a situation where in law, I am just putting it in law. I didn’t think that I had the power to reopen the cases. So I just quietly said, “No, I am sorry”. I am saying this even though I know the matter will be sub judice today or whatever it is. I am not appearing.
MT: What do you think needs to be changed in the system to prevent this kind of thing?
GV: When the system breaks down then the people who are in charge let it. That’s the problem in our country. We have so many systemic failures.
MT: Invisible orders are given where there is no proof.
GV: There are so many other cases one finds. Footprints. It’s a question of footprints, Madhu. There are never any footprints in a file. I’ve seen that in various cases.
MT: In your memory, has anyone been harassed in the way Shankar Sharma and Devina Mehra were?
GV: I hope not…
MT: Now that you are the Solicitor General, what do you see your job as in the TEHELKA Commission? Earlier, the attorney general and solicitor general took an extraordinary interest in the Commission.
GV: I won’t. I will not take it up. I will not participate in the TEHELKA Commission in any way. Again as a professional I have very strong views in the matter. As I have already explained … I will not get involved in the TEHELKA Commission in any way.
MT: You will not go there?
GV: No, I will not go there, unless I have instructions to the contrary. I will not go to justify anything of this kind. I don’t have to. I am not a political person.
MT: But do you think it is correct? Do you think the Solicitor General should be involved in such proceedings, according to the Constitution?
GV: The Solicitor General position is not a Constitutional post. Each individual has to make what he wants at the office. I would like to set my own standards. I have no right to sit in judgement over anybody, whatever constraints they had. I wouldn’t really like to know. I don’t even know what games they played. I am not interested in knowing.
MT: The previous ones played a very active role.
GV: Yes, I am not interested in knowing. Whether it’s the Gujarat case or whether it’s all the cases which I am inheriting now. I am taking my own view, regardless of what happened before. I think it is not proper and wrong on my part to try and say this was wrong, that was wrong. Because then I am trying to promote myself saying what these people have done, which I don’t think I will ever do. But TEHELKA I will never touch. I will not go to that Commission.