The 1,500-page judgement by a trial court acquitting all 19 accused, including former telecom minister A Raja and DMK MP Kanimozhi, in the 2G spectrum scam cases, overtly ignores the incriminating remarks of the Supreme Court (SC) in its ruling of 2 February 2012, in which Justices GS Singvi and AK Ganguly had cancelled all the 122 telecom licences at one stroke, thus indicting A Raja in the case.
“The exercise undertaken under the leadership of the Minister (A Raja) was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of the equality...The material produced before the (apex) court shows that the Minister (Raja) wanted to favour some companies at the cost of public exchequer,” said the verdict delivered by the SC.
The SC ruling came in response to a PIL (public interest litigation), filed by Subramanian Swamy and Prashant Bhushan, seeking answers to whether the government had the right to distribute natural resources in a manner that was not ‘fair and transparent’. Evidence was submitted by them and by CBI (central bureau of investigation) and enforcement directorate (ED). The SC went on to say, “Arbitrary action of the Minister (Raja) though appears to be innocuous was actually intended to benefit some of the real estate companies who did not have any experience in the dealing the telecom services.”
Keeping in view SC’s observations, it is intriguing how a trial court judge’s verdict claims that the evidence provided was insufficient to prove the criminality of the accused. If the same documents convinced the SC, how is it that they failed to convince the trial court?
Delivering the judgement, the trial court judge, OP Saini, cleared all the accused of all charges. He also declared that there is no convincing evidence against the accused.
Judge Saini’s observation is in contrast to what he had observed in his own judgement on 4 February 2012. He had then said that he “has enough evidence to prosecute Raja.”
This assertion was made on the petition by Mr Swamy to prosecute then finance minister P Chidambaram for engaging in conspiracy with Mr Raja in price fixing and approving the licences. In that judgement, the trial court judge had given a clean chit to Mr Chidambaram, saying that Mr Swamy had failed to prove the criminality of Mr Chidambaram, but he had conceded that there was enough evidence to prove the criminality of Mr Raja.
The judgement agreed that the documents provided by Mr Swamy showed that Mr Chidambaram and Mr Raja, together, fixed the base price for the controversial allotments of the 2G spectrum.
The moot question is: How has a set of evidence to establish Mr Raja’s criminality as detailed in the 4 February 2012 judgement by Judge Saini became so unconvincing that the same judge acquitted Mr Raja of all charges, about six years later. The trial court not only ignored SC’s ruling and evidence, but vent ire against the prosecution.
Being a regular visitor to the 2G court, I have witnessed Judge Saini praising the SC-appointed special public prosecutors (SPPs) UU Lalit and Anand Grover on many occasions. He had even agreed to add charges under breach of public trust against Mr Raja and other accused on the recommendation of Mr Lalit.
Mr Lalit led the prosecution till August 2014, after which he was elevated as an SC judge. Mr Grover took charge from September 2014 and led the final arguments. I have often witnessed the judge fully agreeing with and appreciating the arguments and evidence put forward by Mr Lalit and Mr Grover.
I have seen the appreciation by Judge Saini on deposition of star witnesses, like the 2G scam whistleblower Aseervatham Achary and then TRAI chairman Nripendra Mishra, (currently principal secretary to prime minister Narendra Modi).
Considering this, it is shocking to read his observation that he “waited all these years for evidence.” The phrase is very similar to a dialogue by a judge in the movie Jolly LLB which exposed the dirty underbelly of our judicial system.
It is interesting to note that Judge Saini says in the judgement that Mr Mishra proved that Mr Raja violated the TRAI Act.
What Did Nipendra Mishra Prove?Mr Mishra proved during his deposition that among the 122 licences allotted, 85 belong to new companies, including the shell entities of real estate companies owned by accused like Shahid Balwa, Vinod Goenka and Sanjay Chandra. As per the TRAI Act (Telecom Regulatory Authority of India), a new firm requires mandatory TRAI clearance to operate in telecom sector. This violation was the crux of SC’s judgement.
This was the major evidence cited in the CAG (Comptroller & Auditor General) report and CBI’s charges. Judge Saini says, in his order, that Mr Mishra, the then TRAI chairman proved this in his deposition. Then, how is it that he acquitted all by complaining about the lack of evidence?
The judgement also ignores the deposition of whistleblower Aseervatham Achary to give a clean chit to Mr Raja and Ms Kanimozhi. The Judge says as Mr Achary had political ambitions, his deposition cannot be taken at face value. Is having political ambition a crime? How can one ignore that CBI had corroborated Mr Achary’s deposition?
Basics of 2G Scam and Evidence Provided
1. Mr Raja allotted telecom licences in 2008 at a price fixed in 2001 by violating the Cabinet decision of October 2003 and TRAI recommendations. In 2001, there were only three million mobile users and, in 2008, the number of mobile users surged to 360 million. So he caused a gross loss to the exchequer by indulging in favouritism.
2. Mr Raja preponed the last date of application from 1 October 2007 to 25 September 2005. On 10 January 2008 (scam day) at 2.30pm, the telecom department issued a press release on this controversial decision. The press release also said all operators have to pay the licence fee ranging up to Rs1,658 crore in demand draft between 3.30pm and 4.30pm on the same day! How can you make high value demand drafts in an hour and rush from banks to the department of telecom?
3. The CBI and CAG found all these demand drafts were made well in advance and, by some companies, a week earlier. This clearly shows that all the preferred companies were given information in advance. If this is not criminal conspiracy, what is criminal conspiracy? Mr Achary, in his deposition, corroborated the evidence saying the accused players were in touch with Mr Raja regularly before 10 January 2008.
4. The CBI and ED provided crystal clear evidence of bank transaction showing Rs200crore kickbacks to DMK MP Kanimozhi-controlled Kalaignar TV by Swan Telecom owners through circuitous transactions. The money transferred between 2008 and 2009 was all of a sudden returned through banking channels, hours after CBI summoned Mr Raja in December 2010. Is this not an evidence of kickbacks? What more proof can the CBI and ED provide? Let me only say that it is a bad judgement.
The government, the CBI, the ED and chief prosecutor Anand Grover should immediately challenge this judgement by filing an appeal in the Delhi High Court. There should be a well-coordinated strategy in filing appeal to bring justice in this grand loot of 2G scam.
(J Gopikrishnan has won several awards for his exposé of the 2G scam. He was one of the initial complainants against the 2G scam to CBI, and deposed before the Public Accounts Committee of Parliament. This column first appeared in The Pioneer and is published with permission; it has been edited for length.)
