Column : Drain inspector?s report

Sibal as well as his colleagues in the Congress Party may revel that the Justice has stuck to his brief?to look into the appropriateness of the decisions taken since 2001 till 2009 and if any deviations took place from the stated policies?and, in the process, found flaws with Arun Shourie-Pradip Baijal combine. However, for any objective follower of events in the telecom sector, the entire report is nothing but a compilation of why somebody spoke to someone on the phone instead of exchanging written notes or why a meeting was convened at a day?s notice instead of the usual practice of seven days? notice. After all, what more does one expect from the honourable justice when the history of nine years in a complex sector like telecom has to be compiled within a span of six weeks!

Since Justice Patil has delved into history and given suggestions for future so as to not repeat the mistakes of the past, it calls for the famous historian EH Carr?s observations on facts. Carr, in his monumental work What is History?, contested the commonly held wisdom that facts speak for themselves. He said that facts are like sacks and do not stand up unless something is put inside them. Meaning that there are no objective facts, it all depends on the historian to look for them and arrange them in order of his preference to suit his study. Therefore, it is now widely held that ?study the historian? before ?studying the history written by him?. The principle is equally valid for economics or literature and now even for judicial reports. While commenting on any act of a minister or a bureaucrat, it is very important to understand the context. Shorn of the context, the fact becomes irrelevant. It?s here that Justice Patil?s report is found wanting. While page after page enumerates events like someone spoke to somebody over phone when the norm is to exchange written notes, it fails to capture the context of the time and relate the action taken with them.

Two brief instances from the report will prove the point. One, where the report highlights the fact that former telecom minister Arun Shourie in 2003 had sought a note on awarding licences from the then Trai chairman Pradip Baijal on phone. It has even commented on the decision finally taken, which Shourie has contested, but for the moment let?s concern ourselves with the observation on the mode of communication, which has been found inappropriate. Is it of any consequence on how the communication between the two took place when the final product to be commented upon is available? Further, the decision finally taken by the minister as a result of this verbal communication, was it challenged by anybody then? The answer is ?no? in both the cases. In a contentious sector like telecom where operators don?t think twice before rushing to courts, if Shourie?s decision was not contested by any player, the obvious conclusion is that no grave impropriety was committed.

Coming to the second instance, the report says that during the time of DS Mathur as telecom secretary, only a day?s notice was given to the members of telecom commission to discuss the Trai recommendations on no-capping, when the norm is of seven days? notice, and Mathur as chairman of telecom commission should have done something about it. Since it is well known that Raja was not listening to Mathur?s counsel?that Mathur had refused to sign any files later relating to licences?that the decision to advance the cut-off date was procured in Mathur?s absence through proxy; can one not understand the circumstances in which the secretary was functioning and the kind of leeway he must have had? Should Mathur be judged by his final action or whether he used blue ink when red was required?

To be fair to Justice Patil, he?s castigated Raja and his former aides like Siddharth Behura for all the tweaking they did to benefit operators of their choice to get licences on favourable terms. But one wishes the honourable justice did not fall into the political trap laid for him by Sibal to provide an intellectual response to Raja?s crime.

How devoid is the report of the context also comes out when at one point it highlights how proper office procedures were not followed while granting additional 1.8 Mhz spectrum to some operators in 2003. Any observer of the telecom sector knows pretty well that way back in 2003 spectrum was not a scarce resource it has become since 2006. Take an arbitrary decision on spectrum allocation today and there will be a hue and cry. Nothing of that sort happened in 2003. What purpose do such references then serve other than political?

Members of the judiciary should ideally form a code of conduct to accept to head any enquiry committee after retirement only when there?s a political consensus on his/her name. At least, in that circumstance, their reports will be revered much more than what they are done now. There are scores of examples of reports produced by retired justices that only serve political purpose and nothing else. How else does one explain that what Sibal was parroting all along, the same appeared in the final report?

?rishi.raj@expressindia.com