“The special court seems to have lost sight of the corruption issue, to the extent that the issue of criminal misconduct under the PCA was ignored, its judgement is incomplete.”
Since a Central Bureau of Investigation (CBI) court pronounced its verdict in the 2G scam case on 21 December, we have read and listened to assorted columnists, journalists, politicians and even commoners on social media terming it a bad judgement by Justice O P Saini. However, not many could convincingly explain why it is so.
Former IAS officer Dilip Kotia, recently writing in the Indian Express, has outlined the biggest flaw in the 2G judgement: the court didn’t examine the corruption under the prevention of corruption act (PCA). Kotia calls this act of the special court “puzzling”. “Despite its relevance to the case, the PCA provisions did not even find a mention in the 1,552-page judgement, and the special court is silent on the matter of criminal misconduct by the public servants (that is the minister and officers),” Kotia writes.
“The special court judgement is also silent on the issue of “public interest”, which is an essential ingredient of corruption under clause (iii) of section 13(1)(d) of the PCA. The issue of public interest should at least have been discussed by the special court. But the special court seems to have lost sight of the corruption issue, to the extent that the issue of criminal misconduct under the PCA was ignored, its judgement is incomplete,” Kotia adds.
There are two big issues with the judgement. First, as pointed out by Kotia, the issue of criminal misconduct by public servants under the PCA was not examined. Second, the court didn’t hold A Raja, the minister at the helm of affairs in Department of Telecom at the time, responsible for all the misconduct that was taking place under his watch but merely reprimanded and blamed the low level babus for initiating all the proposals that eventually led to 2G fiasco. Raja, it ruled, was simply signing on the proposals he received from his ministry and had no role in framing the dubious procedures and policy.
Apart from these glaring omissions, the most shocking thing in the 1,552-page judgement is the fact that the court dedicated only two pages while dealing with the biggest charge against the telecom upstarts Unitech Group and Swan Telecom. And out of those two pages, one page details the charge of prosecution and the defence’s counter-argument.
Prosecution had alleged that after getting the spectrum, these two companies offloaded their shares. Etisalat (Mauritius) Limited subscribed to 112,994,228 shares of STPL for a whopping amount of Rs 3,228 crore. Genex Exim Venture Private Limited subscribed to 13,317,245 shares of STPL for Rs 380 crore. Telenor Asia Private Limited infused extra equity in Unitech group of companies for a majority 66.5 per cent stake making the promoters richer by Rs 2,342 crore.
But the judge concluded that “offloading of shares or issue of fresh equity was not prohibited by any rule or guideline. There was no lock-in period prescribed at that time by any rule or guideline.” This reasoning is shocking to say the least. First, the defence argued that the spectrum was given to these upstarts at throwaway prices for public benefit so that they don’t charge consumers much thus benefiting the consumers. However, when they got the spectrum, they went on a wealth accumulating spree for themselves instead of focusing on public service. But the court sadly focused only on the technicality of whether they were legally allowed to offload shares in the manner they did, no matter how shady it looked.
However, even the legality of the matter is as black and white as the court assumed. Investigating officer Vivek Priyadarshi when asked if the infusion of funds in a company by way of issuance of fresh equity was tantamount to sale of equity, he answered, it wasn’t, but “beyond a point if the fresh equity issued exceeds the equity held by its promoters, it may tantamount to transfer of control and is governed by the applicable DoT and FDI guidelines. These guidelines have been issued by DoT from time to time on the basis of TRAI recommendations.” The fact of the matter is, via infusion of fresh equity, as much as 66.5 per cent stake was offloaded. If this doesn’t amount to sale, what does? The court dismissed the charge finally saying “the investigating officer could not point out any specific guidelines preventing offloading of shares” and “at the relevant time, there were no guidelines which prevented infusion of fresh equity by off-loading of shares.” If the investigating officer couldn’t point out to guidelines, did the court approach someone well versed in corporate or legal affairs to determine if the offloading of share in this manner was kosher? One can’t say given that Judge Saini has dedicated only a page in 1,552-page judgement to dealing with evidence at hand.
Here is another flaw in the way court behaved which was also pointed out by Kotia in his Express column: the judge has wide powers to get evidence under the Evidence Act and also under the Code of Criminal Procedure and he cannot simply act as "a silent spectator like an umpire in cricket match, who is assigned the task of raising his finger and pointing to the faults in the game. A judge is an active participant in a trial proceeding.” He should have explored every way possible to determine the legality of the deals and not just go by what the investigating officer told at the court.
Those feeling disheartened after the 2G judgement should take solace in Kotia’s words: “the special court seems to have lost sight of the corruption issue, to the extent that the issue of criminal misconduct under the PCA was ignored, its judgement is incomplete.” (emphasis mine)