Column : The Raja jalebi

Written by Sunil Jain | Updated: Dec 22 2010, 09:32am hrs
Congress leaders may well be talking to DMK chief Karunanidhi to get rid of telecom minister A Raja to reduce the Opposition pressure now that the CAG has said that Raja caused a loss of Rs 1.76 lakh crore to the exchequer, but theres little in government action to suggest it is concerned with anything other than a cover up.

Take, for instance, the latest affidavit filed by the government in the Supreme Court in the public interest litigation on the spectrum scandal. The affidavit repeats the old arguments Raja has been making. So, it argues, among others, the telecom ministry was following existing policy, that comparing 2G and 3G spectrum (as the CAG has done) is stupid, that no new licensee had sold its existing equity ... While it is true both Swan and Unitech issued fresh equity, the only reason why Etisalat and Telenor bought this was that the firms had cheap spectrumso there is little doubt Swan and Unitechs promoters benefited from the cheap spectrum Raja gave them.

The affidavit then goes on to say the matter does not call for an interference from this Honble Court. The legal position is well settled that courts will not interfere with or monitor investigations except in rare and extraordinary circumstances, where the material on record would clearly establish that (for example) witnesses are being threatened, evidence is being destroyed ... It then goes on to add, It is respectfully submitted issue of allotment and pricing of spectrum falls squarely in the domain of executive policy making, and in which the scope for judicial review is highly restricted.

Apart from being ridiculous, whats interesting is that this is the exact stand the government took when one of the companies which applied for licences, STel, did not get all the licences it had applied for thanks to the arbitrary cutoff date imposed by Raja, and went to court. The Attorney General had represented the government on the matter and the High Court decided in favour of STel. The government appealed before the division bench but lost again, and so went in appeal to the Supreme Court. The day before the case was to come up, the government asked STel to stop operations in the areas it had licences in, so STel told the court it didnt want the new licences any more!the court, however, refused to overturn the high court judgement. So the courts have already rejected this argument but the government has once again gone and repeated them!

So heres the trick being played by the government: Congress spokespersons as well as officials like parliamentary affairs minister PK Bansal say the matter is sub judice, but the case in the court can't move ahead because the CBI which reports to the prime minister refuses to move on its case more than a year after it first filed the FIRit is because of this that the SC judges had lost their cool and asked the government counsel if the CBI would require a decade to complete the investigation. And, just in case all else fails, the government affidavit points out that the court really has no jurisdiction in policy matters.

Normally, since any affidavit is filed by the line ministry, in this case the telecom ministry which reports to Raja, this can be discounted and the argument can be made that the affidavit is essentially a case of Raja supporting Raja. But, as telecom secretary R Chandrashekhar confirmed to The Financial Express, the affidavit was cleared by the governments law officer, in this case, either the Attorney General or the Solicitor General. Chandrashekhar said that while, in many cases, affidavits are settled by lower-rung officers, in high profile cases such as this one, the affidavits are cleared by the AG or the SG.

Nor is it just the courts that, the telecom ministry believes, have no jurisdiction. In September, the ministry sent a legal opinion made by its law officer Santokh Singh to the law ministrythe opinion was based on the note of AK Srivastava, one of the officers who was interrogated in the CBI HQ, when it was investigating the matter. The ministrys position was that the CVC and the CAG had no locus standi to investigate the matter and it wanted the law ministrys assent. The ministrys note said that while the CAG could look into government accounts, the CAG Act nowhere provides that he has any duty or power to question the wisdom of the policy/lawmakers as policy decisions may involve trial and error theory. In the case of the CVC, the note said as per Section 8 of the Central Vigilance Commission Act, 2003, CVC has not been assigned any functions or powers to issue directives relating to policy matters. The law ministry gave its assent to this opinion on September 7 and, accordingly, Chandrashekhar wrote to the CAG saying the law ministry had opined that the CAG had no duty or power to challenge policy decisions taken by the Government.

Interestingly, the affidavit also deals with the CAGs other allegations in a cursory manner. The CAG had given detailed explanations as to why various firms that were given licences did not even meet the specified criterionif the dates by which these firms conformed to the norms were to be taken as their application dates, as these should, few of them would have qualified for the licence. The CAG says 85 of the 122 licences issued fall in this category. The affidavit, cleared by the highest law officer in the government (who does not report to A Raja) says these firms had given an undertaking that if the information given by them was found to be incorrect, the licence shall be cancelledso any misrepresentation by an applicant cannot be construed as indicative of mala fide on the part of DoT. If any misrepresentation of facts is brought to notice at a later date necessary action can be taken as per due procedure under the relevant rules. Thats itthe CAG points out major flaws in how licences were issued and the DoT ducks saying it cannot be held responsible. And more than three years after this, it still hasnt taken back any licence for misrepresentation of facts.

Its not just Raja who has created a complicated jalebi of fact and fiction to defend himself, various arms of the government have ably assisted him every step of the way.

sunil.jain@expressindia.com