Call it a reversal of roles: The department of telecommunications, which had rejected a law ministry suggestion in November 2007 that a ministers? panel finalise the criteria for granting new telecom licences, has now written to the same ministry seeking ?friendly? legal advice to help it shield from a possibly adverse CAG report. Interestingly, the friendly legal advice is being sought by two officers of DoT who were themselves involved in advising Raja on the controversial method for allocating the licences.

The note from the legal advisor in the department of telecommunications (DoT) to the law secretary says that bodies like CAG and Central Vigilance Commission (CVC) have no power to challenge policy decisions. The law ministry has, however, not accorded approval to the ministry note so far.

In his note, DoT?s legal advisor Santokh Singh painstakingly makes a case to this effect: ?…In view of the above, if approved, we may answer the reference in the negative, and opine that CAG has no duty or power to challenge policy decisions taken by the government.? The draft CAG report on the spectrum allocation is heavily critical of the method of 2G licence and spectrum allocation. The final report is expected to be submitted shortly.

In fact, HR Bhardwaj, who was law minister during the spectrum allocation in January 2008 had suggested that a ministers? panel be set up to finalise the criteria for granting licences, which Raja had rejected outright. The law ministry?s differences with Raja in this regard are well-documented.

Asked about the soundness of the advice tendered by Singh to the law ministry, former law minister and BJP leader Arun Jaitley said: ?This is pure humbug. Suppose a particular policy of the government causes losses to the government or has been done for a collateral reason, why shouldn?t the CVC or the CAG have a view on it? I don?t agree with this advice at all.?

Singh, whose parent cadre is the law ministry, is on deputation to DoT for several years as a legal advisor. He was instrumental in advising the department on granting the controversial licences. Apart from CAG, there is also a CBI investigation into the spectrum allocation.

Documents in possession of FE indicate that the move to bail out Raja was initiated by the minister himself. After CAG?s harsh draft report on 2G spectrum case came in, DoT official AS Srivastava moved a note that the minister (Raja) wanted law ministry opinion on the powers and duties of the CAG. Singh?s note to the law ministry is based on this reference. Srivastava, currently DDG Access Services in DoT, was himself involved in the entire 2G licensing matter and has been interrogated several times by CBI under the ongoing investigation.

Officials explained that since DoT deals with a large number of cases, a legal advisor in the rank of a joint secretary is posted there from the law ministry. However, in important policy matters on licensing, auctions or any matter related to the empowered group of ministers, the law ministry?s opinion is initiated, vetted and finalised by law ministry officials rather than the DoT legal advisor.

Drawing from several court judgments, Singh has concluded that CVC has not been assigned any functions or powers to issue directions relating to any policy matters but has been constituted to inquire or cause inquiries to be conducted into offences alleged to have been committed under the prevention of corruption, act by public servants.

On CAG, his conclusion is that its duties and powers are related to audit of accounts and that it has no powers to question the wisdom of the policymakers or law makers as policy decision may involve trial and error.

?CAG, CVC and other watchdogs no doubt play a very significant role in any democracy but they being constitutional/statutory functionaries cannot exceed the role assigned to them under the Constitution/law. Even the courts refrain from questioning the wisdom of government in policy matters unless the policy decision is patently arbitrary, discriminatory or malafide,? he has noted.

Officials said that in the 2G spectrum licensing case, the CAG and CVC have nowhere questioned policy but have raised questions over irregularities in its implementation, leading to losses for the exchequer. Besides, the Delhi High Court has already struck down as illegal Raja?s move to advance the cut-off date to entertain applications for considering allocation of licences and spectrum.