2G spectrum allocation case: Telecommunications
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CAG draft report nails Raja role in 2G scam
Josy Joseph
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
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]
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
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.”
How the case unfolded
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
