2G spectrum allocation case: Telecommunications

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Contents

How the 2G case unfolded

2007-11

May 12, 2012: rediff.com

2007

May 2007  : Raja takes over as telecom minister Aug DoT starts process of 2G spectrum allotment, UAS licences

Sept 25  : Telecom ministry fixes Oct 1, 2007 as application deadline

Nov 2  : PM writes to Raja directing him to ensure allotment in a fair and transparent manner and to properly revise licence fee. Raja rejects many of his recommendations

Nov 22  : Fin min writes to DoT raising concern over the procedure adopted by it. Demand for review rejected

2008

Jan 10, 2008 : DoT decides to issue licences on first-come-first served basis, brings forward the cut-off date to Sept 25. Says those who apply between 3.30pm and 4.30pm would be issued licences in accordance with the said policy Swan Telecom, Unitech and Tata Teleservices sell off a part of their stakes at much higher rates to Etisalat, Telenor and DOCOMO

Nov 29 : Subramanian Swamy makes representation to PM, seeks sanction to prosecute Raja under Prevention of Corruption Act

2009

May 4, 2009 : NGO Telecom Watchdog files complaint to CVC on illegalities in spectrum allocation to Loop CVC directs CBI to probe allocation of 2G spectrum

July 1 : Delhi HC holds advancing of cut-off date illegal

Oct 21 : CBI lodges FIR against unknown persons, including DoT officials, under IPC and Prevention of Corruption Act

2010

Mar 31, 2010 : CAG reports large-scale irregularities

May 6 : Telephonic conversation between Raja and Niira Radia made public NGO Centre for Public Interest Litigation moves Delhi HC seeking either SIT or CBI probe

May 25 : Delhi HC dismisses the petition

Aug 10 : The NGO moves SC

Aug 18 : Delhi HC refuses to direct PM to decide on Swamy’s complaint seeking sanction to prosecute Raja

Sept 13 : SC asks Centre, Raja to reply in 10 days to three petitions of CPIL and others on allegation there was a Rs 70,000 crore scam

Sept 24 : Swamy moves SC seeking direction to the PM to sanction Raja’s prosecution

Nov 10  : CAG report says the scam caused a loss of Rs 1.76 lakh crore to the exchequer Nov 11 DoT files affidavit in SC saying CAG did not have the authority to question policy decision on 2G licences

Nov 14  : Raja resigns as telecom minister

Nov 30  : SC questions CVC P J Thomas’s moral right to supervise CBI’s probe into the scam as he himself was telecom secy at that point of time

Dec 8 : SC favours probe into spectrum allocation since 2001

Dec 8 : SC orders setting up of a special court to try 2G spectrum scam

Dec 8 : ED submits report. Says money trail covers 10 countries, including Mauritius

2011

Jan 10, 2011  : SC notice to Centre on a plea seeking cancellation of 2G licences

Feb 2 : Raja, ex-telecom secy Siddartha Behura and Raja’s former aide R K Chandolia arrested

Feb 8 : Shahid Usman Balwa, promoter of Swan Telecom, arrested

Apr 25 : Kanimozhi, Sharad Kumar & Karim Morani summoned

May 20 : Court rejects bail pleas, orders arrest of Kanimozhi and others

Aug 23 : Swamy moves SC for making Chidambaram accused

Sept 15 : Swamy moves special CBI court to make Chidambaram a coaccused

Sept 22 : CBI defends Chidambaram in SC, blames DoT

Oct 10  : SC reserves order on Swamy’s plea for a probe into Chidambaram’s alleged role

Oct 22 : Special court frames charges against Raja and 16 others

Nov  : Barring Raja and Behura, 12 others get bail

Dec 12  : CBI also names Essar, Loop promoters as accused

Jan 31  : SC says filing complaint under the PC Act is a constitutional right and the competent authority should take a decision on giving sanction within four months

Feb 2 : SC cancels 122 licences granted during Raja’s tenure, leaves it to the special court to decide on Chidambaram

2007-17: a graphic

2007-17: How the 2G case unfolded
From A. Subramani, December 21, 2017: The Times of India


See graphic:

2007-17: How the 2G case unfolded


CAG draft report nails Raja role in 2G scam

Josy Joseph

Times of India

New Delhi: The Comptroller and Auditor General has submitted damaging details of communications minister A Raja’s involvement in the controversial 2G spectrum allocation of January 2008. It has found his approval and signatures in almost all key decisions — from the one-hour window to operators to submit highvalue drafts to cutoff dates allegedly to suit select companies — resulting in nine companies getting spectrum.

The case concerns allegations that spectrum was allocated at vastly undervalued prices and some companies seemed to have an inside track on developments. CAG’s draft report and key documents are now with Raja’s ministry, awaiting explanations before the audit report can be finalized.

The documents were sent to the ministry in the third week of July. The ministry, quick to respond to CAG’s initial observations, has now sought six weeks to reply.

CAG has sent its entire set of key documents that allegedly prove Raja’s direct involvement in the decisions. The communications ministry, meanwhile, has got a law ministry opinion saying CAG could not question policy decisions.

Key BlackBerry meeting

Union home secretary G K Pillai is slated to meet a BlackBerry team on Monday to decide whether its messenger and enterprise services should be blocked after August 31. BlackBerry’s encypted services have stoked security fears. P 10 ‘Spectrum allocation at ’01 rates not justifiable’

New Delhi: The 2008 2G spectrum allocation ‘scam’ is unravelling. The Comptroller and Auditor General (CAG) has found communications and IT minister A Raja’s involvement in virtually all key decisions on allocation. While issues like first-come, first-served can be said to be policy decisions, this may not be enough for Raja to defend himself if details of the CAG audit accessed by TOI are anything to go by. Raja was not available for comment, despite calls and text messages to his phone from TOI. Raja’s approval to almost all controversial decisions of the 2G spectrum allocation include:

Personally approving issue of the now infamous press release on January 10, 2008, on first-come-first-served basis for allocation of licences, and giving operators just an hour’s window to deposit demand drafts between 3.30 and 4.30pm. The press release also advanced the cutoff date for submission of applications to September 25, 2007.

Instruction to issue the controversial press release was given on the same day, January 10. Raja approved and cleared the noting for the allocation of 2G spectrum to all nine companies.

Raja personally decided on various cutoff dates in 2007, and later in January 2008, which favoured select companies. First-come, first-served was never DoT policy for granting licences, contrary to Raja’s claims. It was policy only for release of spectrum after licences were granted.


In its own sober style, the CAG audit deepens the taint on allocation of 2G spectrum. The auditor has found that operators who benefited were able to arrange and submit high-value demand drafts within 45 minutes of the press release being uploaded.

Some of the drafts were made in Mumbai, showing that they seemed to have prior information about Raja making his ministry issue the controversial press release giving just an hour to potential bidders. In the normal course, they couldn’t have arranged such high-value drafts in such short time.

The CAG audit found the decision to alter 2007 TRAI recommendation that there be no cap on number of licences was never sent back to the regulator for approval.

TRAI chairman Pradip Baijal on the scam

The Times of India

Neeraj Chauhan

May 26, 2015

Ex-PM Manmohan Singh told me to go along on 2G: Baijal

In a self-published tell-all book, former Telecom Regulatory Authority of India (TRAI) chairman Pradip Baijal has alleged that the then Prime Minister Manmohan Singh warned him of "harm" if he didn't cooperate in the 2G case.

Baijal, who was probed for several years for his role in the 2G scam and disinvestment of properties (he was disinvestment secretary when Laxmi Vilas Palace Hotel was sold to Bharat Hotels in 2002), claims UPA II ruined his reputation to divert corruption charges against its coalition government.

Baijal writes that bureaucrats like him were "damned if you do, damned if you don't". "I had warned many in UPA II that all enquiries against me and others, would lead back to the PM, as he had indeed approved the actions of ministers and ministries in his government. This is precisely what was proved later. The actions of Dayanidhi Maran/(A) Raja/coal minister were approved by him, and he is equally culpable for all the losses computed by the CAG," says Baijal in his book 'The Complete Story of Indian Reforms: 2G, Power and Private Enterprise - A Practitioner's Diary', exclusively accessed by TOI.

In a chapter titled 'How the problems began', Baijal claims that he expressed his misgivings in 2004 to the then PM over Dayanidhi Maran being appointed as telecom minister as it was a clear case of conflict of interest since Maran was a broadcaster and TRAI had been appointed as a broadcasting regulator in 2004. ".......the PM dismissed the concerns with the specious argument that there was no conflict of interest since TRAI was an independent regulator and I&B and telecom were separate ministries," states Baijal, adding that "Singh appointed two committees in his office - one headed by him and the other a subordinate committee, headed by principal secretary to PM. Maran protested against these committees, and directed his officers not to attend them".

Baijal claims Maran told him that he was "Prime Minister, Telecom" and would take all decisions on telecom. "He warned that I would come to severe harm if I did not comply with his instructions. He was proved right, since I did face severe hardships later," says Baijal.

On Maran allegedly instructing Baijal at their first meeting after taking over not to submit the Unified Service Licensing recommendations of the previous NDA government, Baijal writes, "...The PM also told me to cooperate with my minister in the coalition government he headed, since non-cooperation could compromise his government".

In a separate chapter, Baijal refers to the alleged warning from Singh: "They (CBI) had warned me in each case (cases related to 2G scam and disinvestments) that I would be harmed if I didn't cooperate. Incidentally, this was exactly what the eminent economist Prime Minister (Manmohan Singh) had told me would happen if I did not cooperate in their scheme of things in the 2G case."

Baijal claims he didn't listen to Singh and Maran on the report/recommendation (on Unified Licensing). While praising the NDA government for the measures it took to reform the telecom sector in 2003 in the book, he says the Unified License approved by the NDA government increased competition in India, and brought down mobile tariffs. "Had I agreed to their (Manmohan Singh and Maran) suggestions and not given the report, the 2003 special regime would have continued and UPA would have held NDA or TRAI (including me) responsible for the 2G scam. The PM would not have accepted his responsibility, just as he shirked responsibility in Coalgate scam," adds Baijal.

Baijal also talks about a meeting between industrialist Ratan Tata and Maran when he was minister of telecom. "In 2004, after a routine meeting, Ratan Tata told me that he was being threatened by Dayanidhi Maran that unless he accepted the merger of Tata Sky with Sun TV, he would ruin him. Ratan Tata refused to cooperate," claims Baijal.

Baijal also alleges that UPA government removed important files from TRAI and telecom ministry to hide its wrongdoings when scandal hit the headlines in 2009-2010.


SC scrapped all 121 2G permits given by Raja

[ From the archives of the Times of India]

[From the archives of the Times of India From the archives of the Times of India]

TIMES NEWS NETWORK

The Supreme Court scrapped all 121 2G licences issued by him and held the entire process illegal. Not just this, it felt constrained to go beyond the illegalities and decide on the policy of awarding spectrum by saying that the scarce natural resource could only be allocated via open auction.

The verdict has pushed the government into defensive mode ahead of the UP polls as it endorsed that the national exchequer has lost hundreds of crores because of the scam and, as a corollary, rejected the government’s claim that the award of 2G licences caused “zero loss”. The court ruling has sent ripples of concern across the telecom sector as well as to foreign investors.

The court, however, gave a short breather to Union home minister P Chidambaram. The 89-page judgment by Justices G S Singhvi and A K Ganguly refused to decide Janata Party leader Subramanian Swamy’s petition seeking a CBI probe into the allegation of Chidambaram conniving with Raja to award the 2G licences. It left this to the special court dealing with the 2G case. The special court is expected to deliver its order.

At various places in the order, the two justices held that Raja ignored the advice of the PM and did not consult the finance minister or the law minister. This strengthens UPA’s defence that Raja was acting on his own.

Despite strong government resistance, Justice Ganguly, who retired on Thursday, and Justice Singhvi met half way activist-lawyer Prashant Bhushan’s demand to set up a special investigation team of the court to monitor the CBI probe into the spectrum scam. It directed the CBI to share its investigation reports with the CVC which, in turn, would keep the court posted.

To ensure that the existing subscribers of the affected companies are not inconvenienced, the court has laid down a four-month roadmap that will require telecom regulator Trai to suggest a new auction mechanism within two months. The government will then have to hold auction and grant licences by the end of the third month. The existing licences will be extinguished within four months.

The court also fined three firms which benefited from Raja’s decision – Etisalat DB Telecom (Swan), Unitech Wireless Group and Tata Teleservices — Rs 5 crore each on the ground that they “benefited by a wholly arbitrary and unconstitutional action....And who offloaded their stakes for many thousand crores in the name of fresh infusion of equity or transfer of equity”.

‘Auction the only answer’

The SC’s stand on the sale of state-owned natural resources has implications for the future. It has said, “There is a fundamental flaw in the principle of first-come-first serve”. Pointing out that those with access to the corridors of power could use it to their advantage, the court said that for giving out scarce resources like spectrum the government must always auction. It added that “any other methodology for disposal of public property and natural resources/national assets is likely to be misused by unscrupulous people”.

In the words of justices Singhvi and Ganguly

A Supreme Court bench of G S Singhvi and A K Ganguly delivered a hard-hitting and far-reaching judgement on the 2G scam. Petitions were filed by the Centre for Public Interest Litigation (with which Prashant Bhushan is associated) and Subramanian Swamy against the Centre. Here are a few key observations and conclusions made in the verdict:

On TRAI’s role

To say the least, the entire approach adopted by Trai was lopsided and contrary to the decision taken by the council of ministers and its recommendations became a handle for the then minister of C&IT and officers of DoT who virtually gifted away the important national asset at throwaway prices The recommendations made by Trai were flawed in many respects and implementation thereof by DoT resulted in gross violation of the objective of NPT 1999

On first-cum-first-served versus auction

Soon after obtaining the licences, some of the beneficiaries off-loaded their stakes to others, in the name of transfer of equity or infusion of fresh capital by foreign companies, and thereby made huge profits. We have no doubt that if the method of auction had been adopted for grant of licence, which could be the only rational transparent method for distribution of national wealth, the nation would have been enriched by many thousand crores There is a fundamental flaw in the principle of first-come-first-served 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 first-come-first-served principle has inherently dangerous implications. Any person who has access to corridors of power at the highest or the lowest level may be able to obtain information from government files or the files of the agency/ instrumentality of the State that a particular public property or asset is likely to be disposed of or a contract is likely to be awarded or a licence or permission would be given. He would immediately make an application and would become entitled to stand first in the queue at the cost of all others who may have a better claim.

When it comes to alienation of scarce natural resources like spectrum etc., the State must always adopt a method of auction by giving wide publicity so that all eligible persons may participate in the process. Any other methodology for disposal of public property and natural resources/national assets is likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values

On Raja & DOT’S Role

The exercise undertaken by officers of DoT between September, 2007 and March 2008 under the leadership of the then minister of C&IT was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality. The material produced before the court shows that the minister of C&IT wanted to favour some companies at the cost of the public exchequer The manner in which the exercise for grant of LoIs to the applicants was conducted on 10.1.2008 leaves no room for doubt that everything was stage managed to favour those who were able to know in advance (of the) change in the implementation of the first-come-first served principle

On SC’S right to intervene in this case

There cannot be any quarrel with the proposition that the court cannot substitute its opinion for the one formed by experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of framing policies. However, when it is clearly demonstrated before the court that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the court to exercise its jurisdiction in larger public interest

On CAG & others

But for the vigilance of some enlightened citizens who hold important constitutional and other positions and discharge their duties in larger public interest and non-governmental organizations who have been constantly fighting for clean governance and accountability of the constitutional institutions, unsuspecting citizens and the nation would never have known how (a) scarce natural resource spared by the Army has been grabbed by those who enjoy money power and who have been able to manipulate the system

On dealing with national assets like spectrum

What needs to be emphasized is that the State and/ or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism

SC:accused should not be in jail indefinitely

It is not in the interest of justice that accused be in jail indefinitely: Supreme Court

[ From the archives of the Times of India]

Dhananjay Mahapatra TNN

SC restores primacy of ‘bail not jail’

In granting bail to five corporate biggies in the 2G scam, the Supreme Court restored primacy of the 33-year-old “bail is the rule and jail an exception” judicial philosophy, which had been clouded by a stringent approach by courts in a maze of high value economic offences that hit the country since the 1990s.

A bench of Justices G S Singhvi and H L Dattu said the object of bail was neither punitive nor preventive but was meant to secure presence of the accused during the trial while ensuring that he did not tamper with evidence or attempted influencing witnesses, an argument that was repeatedly advanced by criminal lawyer Ram Jethmalani before the Supreme Court during arguments on bail pleas.

Justice Dattu, authoring the 63-page judgment for the Supreme Court bench, said, “The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.” The bench reiterated the principle authoritatively laid down in four 1978 judgments of the Supreme Court. It also reiterated that when there was a delay in trial, bail should be granted to the accused as “it is not in the interest of justice that accused should be in jail for an indefinite period”. The Supreme Court’s disapproval of the present judicial trend of keeping undertrial accused in prolonged judicial custody could come as a balm to many an accused who have been consistently denied bail in big-ticket cases relating to white collar crime.

The bench said facts and circumstances in some cases necessitated keeping the accused behind bar but reminded itself that from the earliest times, it had been held that keeping an accused in custody till the completion of trial could be a cause of great hardship and violation of personal liberty. “In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances,” it said. It said right to bail was not to be denied merely because of the sentiments of the community against the accused as the primary purpose of bail in a criminal case was to relieve the accused of imprisonment, to relieve the state of the burden of keeping him and to ensure that he remained committed to attend the trial by submitting to the trial court’s jurisdiction. Jethmalani hailed the judicial principles enunciated by the apex court in its judgment. He told TOI, “I am glad the Supreme Court has corrected the distortion which had crept into the bail jurisprudence some time ago.” The court said, “When the under-trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial.”

 CBI Judge’s judgement

Highlights of the 2017 judgement

December 21, 2017: The Times of India


HIGHLIGHTS

In his 1,552-page judgement in the CBI's case involving Raja and others, Saini also noted that rumour, gossip and speculation created the public perception about the cases

I have absolutely no hesitation in holding that the prosecution (CBI) has miserably failed to prove any charge against any of the accused, made in its well choreographed chargesheet: Judge


Special CBI Judge OP Saini ruled that despite having "religiously" devoted seven years to 2G scam cases, no "legally admissible evidence" was placed before him by the CBI.

The judge made the remark in his verdict acquitting former telecom minister A Raja, DMK MP Kanimozhi and several others, including top corporate honchos, in three separate cases probed by the CBI and the Enforcement Directorate (ED).

"I may also add that for the last about seven years, on all working days, summer vacation included, I religiously sat in the open Court from 10am to 5pm, awaiting for someone with some legally admissible evidence in his possession, but all in vain," Saini said in his 1,552 page verdict in the CBI's case involving Raja and others.

The court of the special judge had come into being on March 14, 2011 in pursuance of a Supreme Court order for exclusively hearing all the cases arising out of the 2G scam probe.

In his 1,552-page judgement in the CBI's case involving Raja and others, Saini also noted that rumour, gossip and speculation created the public perception about the cases but this has no place in judicial proceedings. "Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings," the court said. 'CBI's well-choreographed chargesheet had incorrect facts'

The special judge said that in the CBI's chargesheet filed against former telecom minister A Raja and others, incorrect facts were recorded and they were entitled to be set free. "The end result of the above discussion is that, I have absolutely no hesitation in holding that the prosecution (CBI) has miserably failed to prove any charge against any of the accused, made in its well choreographed charge sheet," the court said.

"I may add that many facts recorded in the chargesheet are factually incorrect, like Finance Secretary strongly recommending revision of entry fee, deletion of a clause of draft LOI (letter of intent) by A Raja, recommendations of TRAI (Telecom Regulatory Authority of India) for revision of entry fee etc," Saini said.

The court also recorded its "deep appreciation" for the lawyers for their assistance in the complex case.

"I also record my deep appreciation for advocates for both parties for the hard work put in by them during the trial of this voluminous, technical and complex case, the record of which runs into about threefour lac pages," the judge said.

Focus was on faulting the prosecution, not seeking truth

Dhananjay Mahapatra, 2G judge focused on finding fault with prosecution over seeking truth, December 25, 2017: The Times of India


The judgments running into 2,183 pages in the 2G scam case, chargesheet in which was filed by the CBI after a Supreme Court monitored probe, is a must read for all budding judges. It will educate them on a crucial issue — how not to appreciate evidence.

A trial judge’s cardinal duty is to give a fair trial to the accused. At the same time, he must appreciate evidence with the sole aim of arriving at the truth. A seasoned trial judge knows the difficulties in gathering evidence in a crime after a time lapse, especially when committed by high public functionaries like ministers. He must know how to separate the chaff from the grain to arrive at the truth.

The 2G trial judge appeared to have been distracted by the volume of chaff to lose the grain and acquitted all the accused. The grain in the 2G case was not the proceeds of crime, which again is not of critical importance in a case under Prevention of Corruption Act. It is a crime under PC Act if a public servant, even without taking a bribe, awards a contract to a person if he knows it will cause loss to the exchequer.

The 2G judgment is strewn with irrelevant remarks resulting from misplaced stress on inconsequential incidents. Take for example the trial judge’s remark on witness Aseervatham Achary’s statement about the then telecom minister shouting at the secretary.

The judge justified it, saying, “What a minister shall do with such an obstruction and dithering secretary, except to shout at him?” The trial judge goes further and says, “A secretary must realise that as per the constitutional scheme of things, an elected representative has to be at the helm of affairs of a government department. A minister is a hardcore politician, who is responsible to his electorate as well as to Parliament. He has also to retain the faith of the prime minister to stay in the council of ministers.”

Was the trial judge examining whether political compulsions and electoral accountability were valid grounds for a minister to shout at his secretary?

The trial judge’s constant refrain was lacunae in prosecution and non-examination of witnesses. While being caustic on the prosecution’s faults, the judge forgot his powers under Section 311 of the Criminal Procedure Code to summon any witness to get to the bottom of a case? Under this provision, he also had the power to recall or order re-examination of a witness, if he thought a particular witness was not examined properly. Why did he not order his reexamination? Sadly, as he confessed, he waited for years thinking that important evidence will be brought into his court by the CBI.

The judge made extra efforts to form opinions on Nripendra Misra, D S Mathur, A Raja, Pulok Chatterjee, T K A Nair and many others. Did he give them a chance to defend themselves? If he could form an opinion on their conduct from documents, how could he miss the conduct of the accused from the same documents?

The trial judge wrote a scathing commentary on law ministry’s insistence to send the 2G spectrum allocation policy matter to an empowered group of ministers. He says, “If the law minister felt so strongly about the matter to be referred to the EGoM, he should have written either to the prime minister or to A Raja, instead of recalling from department of telecom a reference which had already been returned. Law ministry had no business to surreptitiously recall the file in this manner. It was also equally uncalled for the law minister to give a wholly contrary opinion.”

Really? If the trial judge thought it was correct on part of the then telecom minister to shout at a secretary because the minister as an elected representative was answerable to Parliament and must be seen to be doing something to retain his place in the council of ministers, would the same principle not apply to the law minister for insisting that the 2G policy be sent to the EGoM?

The trial judge has some years to go before retirement. He would do well to read two Supreme Court judgments on how to appreciate evidence.

In C Muniappan vs Tamil Nadu [2010 (9) SCC 567], the SC had said, “There may be highly defective investigation in a case. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in criminal justice administration would be eroded.

“Where there has been negligence on the part of the investigating agency or omissions etc which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors (other than) such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.”

In Dalbir Singh vs Haryana, the SC on May 15, 2008, had said, “Even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. However, where large numbers of other persons are accused, the court has to carefully screen the evidence. It is the duty of court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons.”

The 2G scam judgment is a vivid example of chaff getting the better of the grain.

The accused

A. Subramani, December 21, 2017: The Times of India


BUSINESSMEN:

SHAHID BALWA: The flamboyant businessman is accused of concealing/ furnishing false information to DoT regarding shareholding pattern of Swan Telecom on the date of application. Accused of providing Rs 200 cr to Kalaignar TV. Accused of bribing public servants, and causing loss to the exchequer

KARIM MORANI: Cineyug Films

ASIF BALWA (Shahid’s younger brother) and RAJIV AGARWAL: Kusegaon Fruits and Vegetables directors SHARATH KUMAR: Kalaignar TV MD

SANJAY CHANDRA: The Unitech executive accused of working with Raja and Chandolia to obtain licences for his company. Charges are same as Balwa’s

GAUTAM DOSHI, HARI NAIR, SURENDRA PIPARA: The Reliance ADAG executives are accused of concealing the shareholding pattern of Swan Telecom as on date of application and passing on an ineligible company to

Balwa and Goenka knowing it was ineligible on date of application. Also accused of abetting the duo from Swan Telecom. Charged with corruption, criminal conspiracy, forgery, abetment and cheating

RAVI RUIA AND ANSHUMAN RUIA: Essar group promoters

VIKASH SARAF:Essar group director (strategy and planning)

IP KHAITAN AND KIRAN KHAITAN: Loop Telecom promoters

POLITICIANS:

A RAJA: The 54-year-old former telecom minister is the main accused, charged with cheating, criminal conspiracy etc

KANIMOZHI: DMK chief M Karunanidhi’s daughter incorporated Kalaignar TV with other promoters after leaving Sun TV network. She and other directors of Kalaignar TV are accused of receiving Rs 200 cr from Cineyug. Charged with criminal conspiracy, corruption, criminal breach of trust by a public servant, cheating and forgery

BUREAUCRATS:

SIDDHARTH BEHURA: The former telecom secretary is accused of being part of a conspiracy to benefit certain companies. Faces charges of cheating, criminal breach of trust by public servant and corruption R K CHANDOLIA: Raja’s private secretary faces similar charges as his boss and Behura

Why the 2G case collapsed

December 22, 2017: The Times of India


A CBI court acquitted all the accused, including former telecom minister A. Raja and DMK Rajya Sabha member Kanimozhi, of corruption and money laundering charges in the 2G spectrum allocation cases+ . It was a shock verdict. Here are five reasons the case against the accused may have collapsed:

1. The CBI couldn't prove that Raja, along with telecom ministry officials, manipulated the cut-off date for bids in the first-come, first-served policy for allocation of 2G spectrum.

2. The CBI failed to establish that Raja had prior familiarity with two of the accused, DB group promoter Shahid Balwa and Managing Director of Unitech Ltd Sanjay Chandra.

3. Documentary evidence and witness testimony couldn't prove that the accused ignored the ineligibility Swan Telecom and Unitech group companies, which were alleged beneficiaries.

4. The CBI couldn't link Raja to the money transfer of Rs 200cr to Kalaignar TV by Dynamix Balwas group, which was critical to establish if it was 'illegal gratification' or bribe in exchange for telecom licenses.

5. There were lapses in the CBI's probe and "deteriorating" prosecution in the latter stage of the trial, after the appointment of Anand Grover as special prosecutor by the Supreme Court.

 Clean chit is contrary to SC findings

Dhananjay Mahapatra, Clean chit contrary to SC findings, December 22, 2017: The Times of India


Raja Wanted To Favour Some Firms At Cost Of Public Exchequer, SC Said

A trial court’s unexpected clean chit to all accused in the 2G spectrum scam case runs counter to the Supreme Court’s February 2, 2012 judgment cancelling all 122 licences after finding the allotments illegal and imposing a fine of Rs 17 crore on seven undeserving beneficiaries.

The SC, through then judges G S Singhvi and A K Ganguly, had a lot to say on the involvement of the then telecom minister in the “arbitrary” allotment of 2G spectrum. “The exercise undertaken by the officers of the department of telecom between September 2007 and March 2008, under the leadership of the then minister of communications and information technology, was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality,” it had said.

After hearing the counsel for all accused and telecom companies, the SC bench had said, “The material produced before the court shows that the minister of communications and information technology wanted to favour some companies at the cost of the public exchequer.” The SC had listed nine grounds for reaching the conclusion.

Surely, somebody had to be responsible for all these illegalities. However, on Thursday, the trial court found no one responsible for the ‘arbitrary and capricious’ distribution of scarce natural resources. The SC had said the then communications minister was “very much conscious of the fact that the secretary, finance, had objected to the allocation of 2G spectrum at the rate fixed in 2001, but did not consult the finance minister or the office of the finance ministry”.

The bench had said, “The minister of communications and IT brushed aside the suggestion made by the minister of law and justice for placing the matter before the Empowered Group of Ministers. Not only this, within few hours of the receipt of the suggestion made by the PM in his November 2, 2007, letter that keeping in view the inadequacy of spectrum, transparency and fairness should be maintained in the matter of allocation thereof, the minister of C&IT rejected the same by saying it will be unfair, discriminatory, arbitrary and capricious to auction the spectrum to new applicants because it will not give them level playing field.”

The SC had found that the variation of cut-off date and change of first-come firstserved policy “enabled some of the applicants, who had access either to the minister or the officers of DoT, to get demand drafts, bank guarantee etc prepared in advance for compliance of the conditions of the letters of intent, which was the basis for determination of seniority for grant of licences and allocation of spectrum”.

The SC had said, “The manner in which the exercise for grant of LoIs to the applicants was conducted on January 10, 2008, leaves no room for doubt that everything was stage managed to favour those who were able to know in advance the change in the implementation of the firstcome first-served policy.”

In the concluding part of the February 2012 judgment, the SC had imposed a cost of Rs 5 crore each on Etisalat DB Telecom Pvt Ltd (Swan Telecom Ltd), Unitech Wireless Group and Tata Teleservices Ltd, who “benefited at the cost of public exchequer by a wholly arbitrary and unconstitutional action taken by DoT” to grant licences and allot spectrum in 2G band. These three companies had offloaded their stakes for many thousand crores in the name of fresh infusion of equity or transfer of equity. The SC had also ordered Loop Telecom Pvt Ltd, S-Tel, Allianz Infratech and Sistema Shyam Tele Services Ltd to pay Rs 50 lakh each as cost because “they too had been benefited...”

SC found that the variation of cut-off date and change of first-come, first-served policy enabled applicants who had access to Raja or DoT officers to get demand drafts, bank guarantee etc prepared in advance for compliance of the conditions of the LoI, which was the basis for determination of seniority for grant of licences and spectrum allocation

==Fin Secy had noted, ‘No loss, only some sacrifice of revenue’ December 22, 2017: The Times of India


No loss, only some sacrifice of revenue, said Subbarao

A CBI court has said that the finance ministry’s queries to the telecom department (DoT) were not based on sound reasoning and noted that the then finance secretary D Subbarao has deposed that there was “no loss to the exchequer but only some sacrifice of revenue”.

The former finance secretary’s comments are crucial as Kapil Sibal, telecom minister in UPA-II, had held the view that the loss of up to Rs 1.76 lakh crore estimated by the Comptroller and Auditor General was notional.

The Supreme Court, while cancelling 122 licences granted during A Raja’s stint as telecom minister, had cited the finance ministry’s objections to the 2007 award based on prices fixed in 2001. But special CBI judge noted that the finance ministry went into “silence mode” after creating a controversy.

How the perception of a scandal was created

‘Ex-telecom secy, former law mantri created row’, December 22, 2017: The Times of India


While giving A Raja a clean chit, the special CBI court came down heavily on senior officials of the UPA government, including the then law minister H R Bharadwaj and former telecom secretary D S Mathur, making a case that the perception of a scandal arose from a lack of policy clarity, and unnecessary questions from different ministries and functionaries of the government.

Special judge O P Saini held officials guilty of “artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels”, while observing that the “actions and inactions of officials” created a perception of a huge scam “where there was none”.

At one point, the order described the law ministry’s suggestion of referring the issue of processing of licence applications to a group of ministers as “wholly outlandish” as this was in the department of telecom’s (DoT’s) domain.

While he blamed lack of clarity in policies and the technical language of guidelines, judge Saini said agencies such as DoT, law ministry, finance ministry and the PMO raised “unnecessary questions and objections”, and “unwarranted suggestions” were made. “None of these suggestions were carried to logical conclusion and were left unaddressed in between. These were used by others to create unnecessary controversy,” the court said.

While it was critical of several DoT officers — former member (finance) Manju Madhavan, A K Srivastava and Nitin Desai, among others — the court had the toughest words for Mathur, blaming him for the “mess” in the department as he awaited his retirement, which the court said could have been “more graceful”.

“The attitude and behaviour of D S Mathur was... wholly irresponsible. He had no sense of responsibility towards... work. He was putting up objection after objection 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 first-come, firstserved through redrafted LoI (letters of intent). It is his actions which led to confusion in the policy in DoT and led to the registration of the instant case,” the order said.

The court observed that Mathur often gave conflicting views on the same issue and was on tour when crucial decisions were taken. “Every minister wishes to be seen to be doing something as opposed to be doing noting. If a minister does not perform, he risks eclipse of his political career. However, as noted above, D S Mathur was bent upon to not let the minister do anything. If 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 D S Mathur. A secretary is a secretary to the government of India and not to his ministry alone,” the court said.

Top PM Officials Misled Singh, Gave Nod To DoT

Raja spared, all else draw court fire, December 22, 2017: The Times of India


Congress’s celebration over the 2G verdict may be tempered by the CBI special court’s observation that key officials in the Manmohan Singh PMO — secretary Pulok Chatterjee and principal secretary TKA Nair — suppressed the relevant and controversial part of A Raja’s letter to Singh.

Special judge O P Saini said Raja, the DMK nominee in the UPA government, had conveyed to Singh what he intended to do but PMO officials presented a partial view to the then PM. “If the words ‘Wants PMO to be at arm’s length’ are read in the context of the case, it is clear that they are aimed at officials of the PMO and not at A Raja,” the judge said.

The ‘arm’s length’ noting by BVR Subramaniam, then private secretary to the PM, had said, “PM wants this informally shared with the department... Does not want a formal communication and wants PMO to be at arm’s length please.” The noting was dated January 23, 2008, a fortnight after the 2G spectrum licences were handed out.

Citing cross-examination of the CBI’s investigation officer Vivek Priyadarshi and the 2008 note, the court said Chatterjee spoke to the then telecom secretary Siddharth Behura and “gave (a) go-ahead to DoT”, but later on sought to shift the blame on Raja.

In a separate section dealing with the PMO’s role, the court observed that there was no evidence to suggest the letter written by Raja on November 2, 2007, was examined by South Block. Through the letter, the former minister had informed the then PM about the large number of applications and scarce spectrum, while also highlighting other aspects, including the fact that auction was not recommended either by TRAI or the Telecom Commission headed by the telecom secretary.

The court referred to Raja’s letter more than a month later, which was seen by Singh and he asked Nair to examine it. In January, Chatterjee looked into it and in response to Raja’s two-page letter with a three-page annexure, he put up a five-page note to Nair, which then went to Singh.

“This note discussed only the spectrum related issues as to how much spectrum was available in the country (and related matters)... This note did not consider at all the issue of new licences, which were to be issued as per changed criteria from date of application to date of payment and was also the most controversial one. Thus, this note gave only a partial view of the whole issue and ignored the most important and controversial issue of new licences.” the court said.

While observing that the PM did not have time to read such lengthy notes, it said somebody from the PMO gave a go-ahead to DoT to issue new licences and “most probably” it was Chatterjee since his note referred to a conversation with the telecom secretary.

The court also suggested that it was not clear if the note prepared by Chatterjee, and put up by Nair on January 7, 2008, had been seen by Singh, as it does not bear his signature. “Had the PMO hinted otherwise, the DoT would not have dared to go ahead with the process of issue of LOIs (letters of intent) as secretary (telecom) had only joined on January 1, 2008 and was quite new in his job. He would not have dared to go against the PMO,” the court noted.

On the roles of ministers vis-à-vis bureaucrats

December 22, 2017: The Times of India


HIGHLIGHTS

'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 the council of ministers'

A secretary is a secretary to the Government of India and not to his ministry alone: Court on then telecom secretary


Bureaucrats must realize that an elected representative has to be at the helm of affairs of a government department as a minister is responsible not only to his electorates but Parliament as well, the special 2G court said.

Special judge OP Saini, while noting that if a minister does not perform he risks being "eclipsed of his political career", said that former telecom secretary DS Mathur was "bent upon" to not let then telecom minister A Raja do anything.

He referred to the statements of one of the senior officers of the department of telecom (DoT) who had deposed before the court that he had seen Raja shouting at and arguing with Mathur in December 2007.

"What can a minister 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 helm of affairs of a government department," the court said.

"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 the council of ministers. He has to perform to the maximum within the time at his disposal," it said.

The judge said that if Raja was working against the government policies, Mathur could have informed the cabinet secretariat or the Prime Minister's Office (PMO) about it.

"Nothing of this sort was done by DS Mathur. A secretary is a secretary to the Government of India and not to his ministry alone," the court said.

Former TRAI chairman Nripendra Misra, who is now the principal secretary to Prime Minister Narendra Modi, was applauded by the special 2G court for his commitment in seeking implementation of recommendations of the telecom regulator.

Discussing roles and deposition as witnesses of several high-profile bureacrats, it said Misra's efforts deserve "appreciation".

The special judge said several letters were written by Misra to then telecom secretary DS Mathur but the latter did not send any reply to them.

"This shows the attitude of Mathur towards other government functionaries as well as his official duties. The irresponsible and callous attitude of Mathur is reflected by his conduct in not replying to the letters of Misra, who was also at one time, secretary (Telecom)," the court said.

It said, "On the other hand, the record reflects the earnestness and commitment of Misra with which he was seeking the implementation of the recommendations. Had Mathur heeded to the advice of 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."

Regarding AK Srivastava, the then deputy director general (Access Services) who was a key prosecution witness, the court said his oral testimony was contrary to the official record which was rejected and he was "inconsistent" and "blowing hot and cold at the same time".

"His evidence indicates how a very senior officer endeavoured hard to disown and discredit the official record created by him alone and to malign the minister (A Raja)," it said.

The court said that the record showed that Mathur was "largely responsible for the mess" in the DoT and it seemed that was awaiting his impending retirement on December 31, 2007 and that he could have awaited his retirement in a more graceful manner.

Regarding the then member (Telecom), K Sridhara, the court said his statement was of no use to the prosecution.

It also concluded that Nitin Jain, then director (ASI), deposed contrary to official record and he testified in a hesitant and roundabout manner and his deposition was not trustworthy.

Misra, Mathur, Srivastava, Sridhara and Jain were among the many key prosecution witnesses in the case.

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