Trial Court vs Supreme Court – Who is right in 2G scam judgment?

The decision by a trial court in Delhi’s Patiala House complex to dismiss charges of corruption and conspiracy against former telecom minister and others in the 2G scam case has created a curious legal imbroglio as the order seems to fly counter to the Supreme Court’s verdict in the 2G scam case.

The special court of Judge OP Saini has not yet made its full order available, but the judge read out three-lines that said that the CBI had failed to prove its charges.

“There is no evidence on the record produced before the Court indicating any criminality in the acts allegedly committed by the accused persons relating to fixation of cut-off date, manipulation of first-come first-served policy, allocation of spectrum to dual technology applicants, ignoring ineligibility of STPL and Unitech group companies, non-revision of entry fee and transfer of Rs 200 crore to Kalaignar TV (P) Limited as illegal gratification,” the CBI court is reported to have noted in today’s judgment.

“The chargesheet of the instant case is based mainly on misreading, selective reading, nonreading and out of context reading of the official record. Further, it is based on some oral statements made by the witnesses during investigation, which the witnesses have not owned up in the witnessbox. Lastly, if statements were made orally by the witnesses, the same were contrary to the official record and thus, not acceptable in law,” it added.

In other words, the judge does not seem to dispute that changes were made to the allocation procedure by A Raja (and even that some companies may have benefited from these changes). However, the judge seems to hold that there is no proof that these changes were intended to benefit the companies or that these companies compensated A Raja or Kanimozhi for the benefit they obtained (if any).

The CBI had alleged that A Raja and others had obtained illegal gratification in return for manipulating the way in which licenses were being issued to push these applicants to the ‘front of the line’.

SUPREME COURT JUDGEMENT EXCERPT

Even as the judge holds that CBI could not prove conspiracy, the relevant judgment of 2012 by the Supreme Court in the 2G scam case held that the events were ‘stage managed’ to favor the companies.

In February 2012, the Supreme Court of India has held that the way A Raja went about allocating the said 2G licenses to companies like Unitech, DB Realty and others was “wholly arbitrary, capricious and contrary to public interest” as well as “stage managed” to favor certain entities with inside information.

“..within few hours of the receipt of the suggestion made by the Prime Minister in his letter dated 2.11.2007 that keeping in view the inadequacy of spectrum, transparency and fairness should be maintained in the matter of allocation of the spectrum, the Minister of communication and IT (A Raja) rejected the same by saying that it will be unfair, discriminatory, arbitrary and capricious to auction the spectrum to new applicants because it will not give them level playing field,” noted the Supreme Court in its order canceling 122 2G licenses in 2012.

“He (Raja) simultaneously introduced cut off date as 25.9.2007 for consideration of the applications received for grant of licence despite the fact that only one day prior to this, press release was issued by the DoT fixing 1.10.2007 as the last date for receipt of the applications.

“This arbitrary action of the Minister of C&IT though appears to be innocuous was actually intended to benefit some of the real estate companies who did not have any experience in dealing with telecom services and who had made applications only on 24.9.2007, i.e. one day before the cut off date fixed by the Minister of C&IT (communication and IT) on his own.

“The cut off date, i.e. 25.9.2007 decided by the Minister of C&IT on 2.11.2007 was not made public till 10.1.2008 and the first-come-first served principle, which was being followed since 2003 was changed by him at the last moment through press release dated 10.1.2008.

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“This enabled some of the applicants, who had access either to the Minister or the officers of the DoT, to get the bank drafts etc. prepared towards performance guarantee etc. of about Rs.1600 crores.

The manner in which the exercise for grant of LoIs [letters of intent] to the applicants was conducted on 10.1.2008 leaves no room for doubt that every thing was stage managed to favour those who were able to know in advance change in the implementation of the first-come-first served principle…” the court noted.