2 G Scam – Tale of Two Verdicts by Pavithran

Full texts of two judgements of OP Saini – CBI Vs Raja and ED vs Raja are here in the two links:

http://www.thehinducentre.com/multimedia/archive/03217/CBI_Vs__A__Raja_an_3217296a.pdf

http://www.thehinducentre.com/multimedia/archive/03217/ED_Vs__A__Raja_and_3217297a.pdf

Earlier Nation was shocked by 2G Scam, when it came to light.

Now, after the verdicts of OP Saini – CBI Special Court Judge acquitting Raja – then Telecom Minister of 2G Scam Fame, Nation was again shocked.

Due to the shock, some remarked: This verdict is a bigger scam than the scam. 

Others were this to say: justice is blind; pity those in her sway, shocked to discover she is also deaf.

Whatever may the nation’s mood and shock, judgement is a
judgement and all should respect the judgement till it is
changed by a higher court. Satyameva Jayathe – though delayed – will never be denied, if what we want is really Satyam. 

Nation believes that a lie can travel halfway around the world while the truth is putting on its shoes but ultimately sooner or later, truth always triumphs!

Supreme Court proposed, Lower Court Disposed – is the genesis of the two verdicts.

On the writ petitions filed by the Centre for Public Interest Litigation and then Janata Party President Subramanian Swamy – now in BJP and others seeking the cancellation of the spectrum licenses, the Supreme Court Bench of Justices G.S.Singhvi and A.K. Ganguly on February 2012  ruled that the allocation of 2G spectrum of 122 telecom licences to 11 companies on or after January 10, 2008 (scam date) during the tenure of the former Telecom Minister Andimuthu Raja (A.Raja) of the then United Progressive Alliance government was ‘illegal’ and wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality and therefore quashed.

SC Justices observed: ‘Spectrum was a natural resource and such natural resources are vested with the government as a matter of trust in the name of the people of India and it is the solemn duty of the state to protect the national interest and natural resources must always be used in the interests of the country and not private interests. 

While Etisalat, Unitech and Tatas who were benefited by a wholly arbitrary and unconstitutional action taken by the DOT (Department of Telecom) for grant Unified Access Services (UAS) licences and allocation of spectrum in the 2G band and who off-loaded their stakes for many thousand crores in the name of fresh infusion of equity or transfer of equity shall pay cost of Rs.5 crore each, others viz. Loop Telecom, S-Tell, Allianz Infratech and Shyam Telelink shall pay cost of Rs.50 lacs each because they too had been benefitted by the wholly arbitrary and unconstitutional exercise undertaken by the DOT.’

The following further observations of the Supreme Court are more relevant and to be noted, as OP Saini, CBI Trial Court Judge, had dealt this aspect in detail in his judgement: ‘There was a fundamental flaw in the first-come, first-served (FCFS) principle, inasmuch as it involves an element of pure chance or accident. 

In matters involving award of contracts or grant of licence or permission to use public property, the invocation of the first-come, first-served principle has inherently dangerous implications. 

The moment you change the criterion and distort the policy, it ceases to be FCFS policy. If you insist on making payment at the last minute after changing the cut-off date, then it is not FCFS, it is out-of-turn policy.’

OP Saini – CBI Trial Court Judge had given on 21-12-2017 a verdict of ‘not guilty’ and ruled that accordingly, all accused are entitled to be acquitted and are acquitted.

A portion of Saini’s final wordings of judgement runs thus:

“One of the first media reports was a news item dated 08-11-2007 in Economic Times captioned “Jarring Call: Grabbing precious spectrum for a song” was rightly denied by the DOT as factually incorrect, but, on account of the various actions and inactions of the officials, as noted above, nobody believed the version of DOT and a huge scam was seen by everyone where there was none. These factors compelled people to conjecture about a big scam. Thus, some people created a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.

The lack of clarity in the policies as well as Guidelines – though the Guidelines were framed by the DOT itself – also added to the confusion. Equally filing system in the DOT, the highly illegible handwritten officials’ notings in the margins, recording of highly technical and layered language can conveniently be used for finding fault with the superior authorities for agreeing to or disagreeing from it, as the case may be.   

Thus, the genesis of the instant case lies not so much in the actions of Sh. A. Raja but in the action/inaction of others. There is no material on record to show that Sh. A. Raja was mother lode of conspiracy in the instant case. There is also no evidence of his noholdsbarred immersion in any wrongdoing, conspiracy or corruption.

I may add that many facts recorded in the charge sheet are factually incorrect, like Finance Secretary strongly recommending revision of entry fee, deletion of a clause of draft Letter of Indent (LOI) by Sh. A. Raja, Recommendations of Telecom Regulatory Authority of India (TRAI) for revision of entry fee etc.

The end result of the above discussion is that, I have absolutely no hesitation in holding that the prosecution has miserably failed to prove any charge against any of the accused, made in its well choreographed charge sheet.”

Two verdicts are at two different poles – Higher Court ruled Raja – guilty, but, Lower Court ruled Raja – not-guilty, clean and non-corrupt.

It is a fact that the Supreme Court, while instituting the CBI court, had given an unfettered power by its clarification which reads thus: ‘Investigation and the criminal trial will not be affected by its order of cancellation of licenses.’ 

It seems that OP Saini had taken too much liberty on SC’s clarification and had ignored many vital verdicts of the SC in his findings and rulings. Reading of Saini’s verdict may lead one to surmise that SC was totally blind and wrong in its verdict.

In 2G scam, there were two angles – one illegality and other criminality. 

Supreme Court had found there was ‘illegality’ in 2G spectrum allocation and doubted about ‘criminality’ and hence it wanted to know whether the accused persons had indulged in any ‘criminal’ actions – scam, corruption and even money laundering.  

OP Saini had taken a stand that there was no illegality and no criminality and hence no scam. 

Judgement is a judgement and all should abide by its verdict till a revised verdict was pronounced by the High Court on appeal.

Some of the observations in Saini’s verdict sounds like ‘Sermon’ and not ‘judgement’ and the judge was seen as support voice to the accused – A.Raja.

D.S.Mathur was the Secretary in A. Raja – retired on 31-12-2007 (On 01-01-2008, Siddharth Behura from the Ministry of Environment – Raja’s previous ministry – took over as Secretary, DOT) – Mathur was criticized in the judgement in a most uncharitable way – Learned Judge Saini said: ‘The record bears out that D.S.Mathur was largely responsible for the mess in the DOT. He was perhaps awaiting his impending retirement on 31-12-2007. He could have awaited his retirement in a more graceful manner.’

Judge, in the course of his observations, had accused that Mathur was on tour on many important occasions and A.Raja was reported by the same Judge to have taken many such important decisions by calling them at odd hours and one could understand thereby the minister wanted others to fall in line with him or otherwise his wrath. 

Saini had failed to note that meaningful discussions and decisions could be taken in the regular office atmosphere rather than in other places – perhaps officials standing before Minister in discussion and deciding such far reaching policy decisions affecting the national revenue and wealth were worst form of administration one could ever think of.

Just read the narration as reported by Saini:

A bare perusal of the aforesaid material shows that the attitude and behaviour of Sh. D. S. Mathur was 
casual and wholly irresponsible. He had no sense of 
responsibility towards official work. He was putting up 

objections 

after objections in the   matter   of   deciding   of   policy   for   the   processing   of applications   without   suggesting   anything   worthwhile   of   his own. It is he who was largely  responsible for changing the policy of first­come first­served through redrafted LOI as noted above. It is his 
actions which led to the confusion in the policy in the DoT 
and led to the registration of the instant case.

Though the deposition of Sh. Aseervatham Achary 
does not inspire confidence, yet at least on one point he appears to be truthful.  He deposed that in December 2007, 

he saw Sh. A. Raja shouting at and arguing with 
Sh. D. S. Mathur. 

What a Minister shall do with  such an obstructive 

and dithering Secretary, except to shout at him? 

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.   A   Minister   is   a hard   core   politician, who   is responsible to his electorates as well as to Parliament. He 
has also to retain the faith of the Prime Minister to stay 
in council of Ministers. He has to perform to the maximum 

within the time at his   disposal.   

Every   Minister   wishes   to   be   seen   to   be   doing something as opposed to be doing nothing. If a Minister does not perform, he risks eclipse of his political career. 

However, as noted above, Sh. D. S. Mathur was bent 
upon to not let the Minister do anything.  

If Sh. A. Raja was working against the policies of 
the Government, he could have informed the Cabinet Secretariat or the PMO. Nothing of this sort was done by 

Sh. D.S. Mathur. A Secretary is a Secretary to the 

Government of India and not to his Ministry alone.’

It was quite strange that Judge justified that Minister’s quality could be a hard core politician and not a good administrator and that Politician could always be a Hard Core Politician even after becoming a Minister under oath under constitution and as per Saini having the liberty to shout at senior officials under his ministry in order to safeguard his political career – note – not his constitutional responsibility! 

Normally it is viewed that shouting which is the sign of anger is a bad manner, but, to Saini, it is the way of getting things done. 

Strange findings indeed and he is a learned Judge!

In this juncture, the readers’ attention is sought to the political scene of UPA-II wherein even then PM had to succumb to the pulls and pressures of Coalition Dharma and the Congress’s Power Mongering attitude to accommodate any pressure to stick to the power. 

Actually in November 12, 2010, Government of India defended Telecom Minister Raja in court stating that ‘it cannot force the DMK to sack Raja because of the co-dependence that is embedded in any coalition. We have to respect coalition dharma.’  

One more incident is equally relevant to quote. TRAI Chief Pradeep Baijal approached PM Manmohan Singh for help after Maran threatened him. Manmohan did not help, instead said “You must listen to the Minister else you may get into trouble.”

It is an open secret that Raja was brought into Telecom Ministry by M.Karunanidhi who was earlier accused as ‘a master of scientific corruption’ by Sakaria Commission and being a true disciple of MK, what better quality and character one can expect from such politician. 

But, alas, Saini was quite concerned and worried about his political career and not about his character or to make Raja to profess the philosophy of ‘Caeser’s wife should be above suspicion’.

The same Aseervatham Achary – who was found to be truthful in respect of his observation about Raja’s anger towards Mathur as above by Saini – was quoted as unreliable and false, when Achary deposed about Raja’s meetings many accused in this case.

Exact Saini’s words in his judgement are extracted here:

Achary remained additional PS to A. Raja till 29-10-2008. Naturally, he is an important witness and is expected to know many facts. However, his statement under Section 161 CrPC was recorded by the IO on 24-03-2011, after a long gap and only about a week before filing the charge sheet and the witness suddenly became a goldmine of information. This long delay in recording his statement alone is good enough to destroy the evidentiary value of his deposition.

As per Saini, due to delay in coming forward to dispose in the case, Achary’s truthfulness became suspect and hence not to be relied upon. 

Goldmine Witness was disposed of as Sand Mine! 

Perhaps Acharya was Gold, while referring to Raja’s shouting at Mathur, but, became Sand in his own disposition about Raja’s frequent meetings with accused.

If Saini had stopped with this, it would have been better. But, as to Saini, as per his own words in the judgement, Raja’s statements appeared to be cogent, truthful and as such acceptable. 

When Raja’s anger in shouting to his senior most in the verge of his retirement was taken as a sign of ‘good and efficient and time bound’ administration, I leave it to our readers to judge the mental outlooks of the accused Raja and the Judge.

Let me quote what Saini to say about Acharya’s witness statement about Raja’s associations with some accused by frequently meeting them: Acharya – Additional P.S. to Raja – who maintained his schedule testified in Court that Raja met other accused 20 times.

Saini said Achary evidence was inadmissible because CBI recorded this evidence in 2011 i.e. 6 months late. 

Further Saini observed: Acharya had political ambitions and hence his disposition could not be taken at face value.

While Raja’s political ambitions were permissible and even admired by Saini, his Political PA belonging to the same party as that of Raja was looked down by Saini. 

Different yard sticks for the same issue – Was it impartial justice?

Some valid points raised by the prosecuting agencies were not taken serious note by the Court. 

Let me briefly mention them.

1. The meeting of the full Telecom Commission, which was scheduled to be held on 9.1.2008 to consider issues relating to grant of licences and pricing of spectrum was deliberately postponed on 7.1.2008 (Scam Date: 10-01-2008) so that the Secretary, Finance and Secretaries of three other important Departments may not be able to raise objections against the procedure devised by the DoT for grant of licence and allocation of spectrum by applying the principle of level playing field.

2. On January 10, 2008 – which is scam day – at 2.30 pm  the telecom department issued a controversial press release – All operators have to pay the license fee ranging upto Rs.1658 crore in demand draft between 3.30 pm and 4.30 pm on the same day.

3. Rs.200 crore kickbacks to Kanimozhi by Swan Telecom through money laundering method.  Money transferred between 2008 and 2009 was returned through banking channels hours after CBI summoned Raja in December 2010.

4. Swan and Unitech – in real estate business – which were dealing with Raja, when he was in the Ministry of Environment, were accommodated. To help such companies, TRAI’s recommendation dated 27^th August 2007 of ‘Any proposal of permission of Merger & Acquisition (M & A) should not be entertained till 3 years’ – was changed by Raja in 22-04-2008 by cleverly dropping the word ‘Acquisition’ and because of this, Swan and Unitech could sell its stakes in September/October 2008 getting windfall profits – without themselves creating any infrastructures – just sold their licences without themselves in the telecom business by ‘acquisition’ clause – courtesy Raja.  When questions raised in the Parliament, Raja could not answer whether TRAI’s permission was got to change ‘M & A’ to ‘M’ only – by just dropping Acquisition for his ulterior motives. This is nothing but old system of Permit – Licence Raj.

     

5. Manmohan Singh’s statement on February 2011: Who got the licence .. how FCFS was implemented .. this was never discussed with me nor was it brought to the cabinet. That was exclusively telecom minister’s decision. This will nail Raja and if not, Manmohan Singh will be answerable.

6. Saini’s damaging statement that PMO Officials – Pulok Chatterji and TKA Nair might have withheld vital information conveyed by Raja to PM allowing the scam to take place could explode into a major controversy – even dragging Manmohan Singh and the unknown powerful hand’s controversial advice – which was found noted in the file – of ‘Wants PMO to be at arms length’ – These, if further probed, may even involve UPA Chair Person – viz. Sonia Gandhi. 

It was admitted that the prosecution failed to convince the CBI Court because it focused on the revenue loss, not the crime. It is something like speculating on the net worth of a murder victim instead of focusing on the crime itself. Another failure noticed is that the charge sheet filed in 2011 was primarily inadequate and faulty that allowed the accused to be left off.

CBI and ED had not done their investigations in a systematic and scientific manner so as to fix the accused without any loopholes and the reasons might be due political interference or political compulsions due coalition politics.

Further there were three CBI Chiefs who handled the investigations as under:

1.       Ashwani Kumar – CBI chief – from 2-08-2008 to 30-11-2010 – investigation delayed during this period. Kumar was made governor of Manipur and Nagaland after his retirement as CBI chief.

2.      AP Singh – CBI Chief – from 30-11-2010 to 30-11-2012 – the evidence provided was said to be of no value – charge sheet filed and initial documents and evidence produced during this period. AP Singh – is now an accused himself and facing CBI probe in a case of corruption along with meat exporter Moin Qureshi

3.      Ranjit Sinha – from 3 December 2012 to 2^nd December 2014. The fact that the CBI Director Ranjit Sinha, handpicked by the Congress, superseding the two candidates in line for the post, was indicted by the Supreme Court for colluding with accused in the Coalgate scam, shows the investigative agency was severely compromised. Ranjit Sinha – was barred by the SC from the 2G case in November 2014 because of allegations of an attempt to scuttle it.

Hence every CBI chief under UPA era, during the time frame of the 2G case, has some suspect antecedents.

But, What Modi government has done after 2014? – is a valid question.

2 G case was monitored by the SC – that means appointment of prosecutors to be approved by SC. Investigation completed in 2010-11 and charge sheet filed in 2011. Only in exceptional circumstances, additional documents or evidence or supplementary charge sheet can be brought in. Before Modi Government a lot of material filed. With Ranjit Sinha as CBI, Modi could file a fresh evidence in August 2014 and after his exit, fresh documents when CBI tried to file in February 2015 – 2G Court disallowed it.

The court observation for not accepting fresh documents: 

Application dated 15-04-2015 said to contain documents accompanied by proper certification of banking and other authorities on the ground that the earlier documents were lacking in proper certification not entertained – quoting documents contained about 15,000 pages.

Hence the trial was entirely based on material evidence collected and framed before 2014.

Now, because of the trial court’s judgement, CBI in the appeal case in the High Court will have the liberty to argue the case from the start – not trial but fresh arguments without history of previous arguments under the UPA – and note that the CBI will also have independence to appoint a new prosecutor.

Evidence of eyewitnesses and approvers discarded the 2G judge can be argued again.

And above all, SC judgement cancelling the licenses will find a prominent place in the appeal.

One more point: PMO role as revealed by Saini will be brought to notice.

The trial court’s verdict, keep in mind, was not so much about the illegality of Raja’s actions, it was about the criminality, and in such cases, the standards of proof are such that benefit of doubt goes in favour of the accused. Even so, the judgment was found to be full of holes and chances of success in the High Court are very bright.

Further, the heart of criminal liability is the gain made by the decision making public servant. If there is proof of bribe or gain, even right decision taken by public servant cannot save him from the punishment. Equally, if there is no bribe or gain, even wrong decision would not attract punishment.

Anyhow, Modi Government has taken a decision to go in for appeal against OP Saini’s verdict with care and diligent and is quite confident of its success.

Hope that Nation’s shock will soon be Nation’s Happiness.

THINK INDIA THINK.

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