Before proceeding further, it is important to point out that this criminal case is different from the one in the Supreme Court in response to Prashant Bhushans PIL asking for the licences to be cancelled on grounds they were illegal. That case has been heard, and the judges have reserved their judgment on the matter. Indeed, it has always been this newspapers view that it would be better to concentrate on getting the licences cancelled, since this is what would help the government recover the money it had lostthe criminal case, we said, could take its own course.
The CBI chargesheet to be sure, is strong in parts, and it was the CBI that found the first money trail of R201 crore from the DB group to Kalaignar TVthis was a very vital piece of the trail and shouldnt be underestimated. In other cases, the CBI has reiterated points made by the CAG, and later highlighted in the Justice Patil report, and these look difficult to refute. In the case of Swan, for instance, the CAG first pointed out that Swan was linked to ADAG since thats where the bulk of its capital had come fromsubsequent investigations, such as by the income tax department, have only strengthened this view. This was done to show that Swan was ineligible for a licence under Clause 8 of the licensing conditions on cross-holdings.
In the case of Unitech Wireless, the CBIs charge of conspiracy depends upon the statement given by the DDG (Access Services) AK Srivastava, that he was repeatedly asked by Rajas aide RK Chandolia as to whether Unitech Wirelesss applications had come inand when it had, Srivastava is reported to have told the CBI, Chandolia asked him to close the window for applications. When Srivastava said this couldnt be done, he claims Chandolia asked him to put up a note on advancing the cut off date.
This may help prove the conspiracy case against Unitech Wireless, but what is curious is that the CBI missed out on so many obvious violations of the law. In the case of both Swan and Unitech Wireless, what was critical was not just Rajas change in the cut off datethis, after all, benefitted all the 122 licensees, not just Unitech Wireless or Swan. But only two companies brought in new investors and they were specifically helped by Raja. While Trai had categorically ruled out allowing M&As till all the companies met their rollout obligations, Raja put out new M&A guidelines on April 22, 2008in which he illegally modified the Trai recommendations on acquisition. Without this modification, Swan, Unitech Wireless, Tatas, and S Tel would not have been able to sell. The CBI, however, does not even mention the fact that the M&A norms were modifiedthis would have helped facilitate the very criminal conspiracy that it has pleaded in 17 different places in its chargesheet of April 2, 2011.
Similarly, it is obvious the CBI is on weak grounds since all of Rajas actionsthe advancement of the cut off date and the change in first-come first-served normshad all been okayed by the Solicitor General. But it would have proved its case had it just cited the Delhi High Court judgments and the Supreme Court judgment of July 1, 2009, November 24, 2009 and March 12, 2010, which said all of this was illegal.
There are several other such critical gaps in the chargesheets. Perhaps the CBI will be able to get over these in the trial stage