Kerala: Judicial probe into Adani port pact winds up hearings even before revised terms are notified

A judicial commission set up last year by the Kerala government to investigate suspected irregularities in an agreement signed in 2015 between the last state government and an Adani Group company to build a port in the state is set to wind up shortly.

The state government had revised the terms of reference for the commission only last fortnight, on July 19. The new terms of reference have not yet been formally notified. But the chairman of the commission, retired Justice CS Ramachandran Nair, said that his report, which will be submitted shortly, will abide by the new terms.

“The commission held its last hearing on July 26 in Kochi,” Nair told Scroll.in. “We will not be holding further sittings. But we will accept written submissions till August 14. We are planning to submit the report to the government within two to three months. We will be filing the report based on the revised terms of reference.”

These developments have been criticised by environmental activists.

One activist maintained that it was illegal to amend the commission’s terms of reference without informing the public. “No one has heard about the revised terms of reference,” said Hareesh Vasudevan, an expert in environmental law. “This has deprived environmental activists of the chance to submit documents.”

Another activist questioned how the commission could wind up its inquiry before collecting evidence based on the new terms of reference. “The commission should conduct hearings and collect as much evidence as possible if it is serious about the inquiry,” said AJ Vijayan, an expert in coastal issues, who has been fighting against the port deal since it was announced. “Otherwise it will turn out to be farce.”

The activists alleged that the terms of reference were revised to shield politicians and officials. “The commission is trying to give a clean chit to people facing corruption charges by surpassing the CAG’s [Comptroller and Auditor General’s] report,” alleged Vijayan.

The Comptroller and Auditor General or CAG report to which he was referring was tabled in the state Assembly in May 2017. It said that the terms of the agreement were not favourable to Kerala.

Vasudevan agreed with Vjayan. “The revised terms of reference have not considered the merits of the CAG report,” he said.

A spokesperson for the Adani Group said the Adani Vizhinjam Port Private Limited has ensured that it is part of every judicial hearing and also facilitated a site visit for the judicial commission members. “In line with our strict adherence to law and corporate governance we will continue to extend all the necessary co-operation to the officials in the future,” the spokesperson said. “The project was awarded through competitive bidding presenting equal opportunity to all.”

The port agreement

The Rs 7,525-crore agreement to build an international seaport at Vizhinjam in Thiruvananthapuram was signed on August 17, 2015, by the previous Congress-led United Democratic Front government and Adani Ports and SEZ Private Limited, an arm of the Adani Group owned by Gujarat businessman Gautam Adani. The plan is to develop the port as a public-private partnership.

During an audit of the project, the CAG pointed to irregularities in the concession agreement or contract. “The interests of the state were not protected adequately while drawing up the concession agreement,” its report said.

On July 18, 2017, the Pinarayi Vijayan-led Left Democratic Front government constituted a three-member commission under the Commission of Inquiry Act, 1952, to investigate the matter. The commission’s terms of reference directed it to look at the irregularities noted by the CAG. The commission was asked to identify the public servants who took decisions against the interests of the state, the factors that influenced their decisions and the financial gains they had earned. It was also asked to suggest ways to initiate legal action and recover the money from them.

On July 19 – a year later, almost to the day – the Kerala government drafted the revised terms of reference for the commission. In addition to asking the commission to look at the findings of the CAG, these new terms permitted the commission to depend on other evidence that “it may deem relevant” to find irregularities in the agreement, if any.

Experts say this is what gives the panel the wriggle room to ignore the findings of the CAG report. “Now the commission will come up with a report giving clean chits to the former chief minister and the officials,” alleged Vasudevan

So far, the judicial commission has held 26 sittings in Kochi and Thiruvananthapuram.

Besides Nair, the other members of the commission are former Union secretary for shipping K Mohandas and former Indian Audit and Accounts Service Officer PJ Mathew.

Earlier this year, the government extended the commission’s term till January 2019.

Asked why the commission had wound up its hearings even before the revised terms of reference were published in the gazette, which would have made the changes official, Nair said: “I don’t know about it. The commission has got a copy of the revised terms of reference. It is not much different from the original document. Only some words have been changed here and there.”

Sceptical about CAG report

In the past, chairman Nair has made several sceptical oral observations about the CAG report. He even defended the government officials who drafted the contract during the commission’s sittings in Kochi.

On March 12, 2018, he stated that there was a procedural lapse in the CAG’s findings and it should not have considered the port project as a public sector entity.

On April 16, he observed that the panel could not find any personal interest in executing the deal as it was executed following studies carried out by three expert agencies and evaluation by an empowered committee.

After hearing the counsel for former Chief Minister Oommen Chandy on June 7, Nair said that investors had been facing many adversities in Kerala and their reputations were often unfairly tarnished.

During a sitting on July 6, Nair observed that the government had attempted to realise the Vizhinjam project honestly. There may have been some shortcomings on the part of the government, he said, but would will not be fair to claim the entire project was the proudct of corrupt practices, he said.

In the commission’s penultimate sitting on July 24, Nair even asked whether the CAG audit was necessary since the entire project was funded by the state government, with the Adani Group only executing the project.

Nair evaded questions on why he made the pointed observations about the CAG report even as the investigation was still going on.

‘Dream project’

A few days after the CAG report was tabled in May 2017, Chief Minister Pinarayi Vijayan said that the port was Kerala’s dream project.

Vasudevan alleged that the Left Democratic Front government did not seem keen on unearthing any corruption in the deal. “The government doesn’t want to disrupt the port project,” he said. “A clean chit by the commission will help the CPI(M)-led government bury the CAG report forever.”