2G scam case judgement: It’s a sad day when finance secretary uses sophistry to hide his views on Raja issue and says revenue sacrifice not same as saying govt suffered a loss.
While pouring scorn over the prosecution for not making its case forcefully, special CBI judge OP Saini’s judgment is decidedly odd. He blames PMO officials like Pulok Chatterjee for misleading the PM and disses Pulok for writing a 5-page note in response to a 2-page letter from A Raja while not even discussing the real issue of why Raja changed the First-Come-First-Served (FCFS) criterion. He then speculates that Chatterjee had given a “go ahead to the DoT for issue of new licences” and says that, had he not done so, the telecom secretary who “was quite new in his job … would not have dared to go against the PMO”. While this suggests Raja’s actions were improper, the tone of the judgment is that Raja did no wrong—and if this was so, why blame Pulok?
While positing that the then telecom secretary was incompetent, Saini says “had (DS Mathur) heeded to the advice of (Trai chief) Nripendra Misra, things would not have gone so bad leading to the registration of instant criminal case…the efforts of …Misra for ensuring proper implementation of TRAI Recommendations deserve appreciation”. If Misra did well to push for ‘proper implementation’ of his advice, how were Raja’s actions right since Misra accused him of cherry-picking?
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Justice Saini is right in saying bureaucrats must be forthright in their commentary and their notes should be clear—the records show, after saying charging the 2001-auction price in 2008 was a bad idea, finance secretary D Subbarao suddenly kept quiet on the issue (the blurb, taken from his testimony in court, exposes his sophistry).
But it is odd when the judge trashes the law minister for saying “it is necessary that the whole issue is first considered by an empowered group of Ministers”. In Justice Saini’s words, “In giving this opinion, the conduct of the Law Secretary and the then Law Minister was against all established canons, discipline and protocol of Government working …the Law Secretary and the Law Minister were working in tandem”. In other words, the honourable judge has bought Raja’s views that he was empowered to make all the changes he did in the FCFS rules and arbitrary changes in the cut-off dates.
Indeed, while dismissing DS Mathur who tried to prevent Raja from giving away the spectrum at throwaway prices, the judge cites a deposition that says Raja’s additional private secretary saw “Raja shouting at and arguing with … Mathur” and seems to give his approval when he says “what a Minister shall do with such an obstructive and dithering Secretary, except to shout at him”? He goes on to say, “A Secretary must realize that as per the constitutional scheme of things, an elected representative has to be at the helms of affairs of a Government department …(he) is responsible to his electorates as well as to Parliament … Mathur was bent upon to not let the Minister do anything”. And quite unmindful of coalition politics that prevented Manmohan Singh from having his way, Justice Saini says Mathur “could have informed the Cabinet Secretariat or the PMO”.
Equally inexplicable is Saini’s insistence on having everything in black and white, and underlined. So he doesn’t accept the money trail of `200 crore to Kalaignar TV—the case’s smoking gun—for a variety of reasons. At one point he says “the prosecution did not put to the witnesses that the above transaction of Rs. 200 crore was a transaction of illegal gratification …only case put to the witnesses is that it was not a bonafide transaction”. The judgment also says “in this case, lack of chronological proximity also creates problem”. The spectrum for Delhi, it says, “was approved by …Raja on 26.08.2008 … however, the first tranche of money of Rs. 10 crore moved only on 23.12.2008”. Given Raja had the power to cancel the licence or not allot spectrum, surely the money didn’t have to be paid upfront for it to be a bribe? And when the prosecution tripped up company officials who claimed this was a kosher transaction —by pointing to holes in the latter’s paperwork—the judgment says “it is a common fact that private businesses in India is not known for immaculate paperwork”.
The judge is right to say the government should have questioned Swan more closely at the time of giving the licence. While the law allowed existing telecom licensees to hold a maximum of 10% in a new applicant’s company, surely the fact that ADAG owned most of Swan’s equity, and that this was disguised through `992 crore being shown as preference capital, should have rung an alarm bell? Instead, the judgment says “nowhere is it mentioned that company is required to give details of promoter’s promoter also, that too on the date of application”.
It is, of course, true that criminal cases require a much stronger level of proof than just wrong-doing that is acceptable in civil cases. But it is odd that the judgment refuses to consider the fact that Raja’s decision to change the cut-off date and give licences based on the date of payment instead of, as in the past, the date of application, benefited only certain companies; or that the decision to allow them to sell before three years allowed them to make huge profits. If the judge refuses to accept any of this as problematic—though at times he suggests it is—and ignores what most would think is a smoking gun, perhaps finance minister Arun Jaitley and law minister Ravi Shankar Prasad need to reexamine the case themselves before going for a review.