Conspiracy of circumstances

Kapil Sibal
Kapil SIbal, File Photo

The CAG earned laurels for the sensational Rs 1.76 lakh crore alleged presumptive loss to the treasury following the 2G spectrum allocations based on the administered price mechanism. The BJP reaped a rich political harvest, riding on the public outcry that followed. The party’s propaganda machine worked overtime. The media contributed in convincing the public of the UPA’s culpability. The allegations of taint stuck. The result: The BJP rode to power, the then CAG was and continues to be handsomely rewarded by the party, the Anna Hazare phenomenon paved the way for Arvind Kejriwal to enter politics despite his public denials and the Congress saw its worst performance since Independence, having been reduced to 44 seats in the Lok Sabha in 2014. One would have thought the CBI Special Court’s judgement would have had a sobering impact on the BJP. But, though on the back foot, it continues to be unabashedly remorseless.

All the accused have been acquitted. There is not a whiff of the loss or taint that had sullied the UPA’s reputation. The first-come, first-served policy, advancing the date for considering applications from October 1 to September 25 for those seeking licences, was found to have been taken with no intent to favour any entity, as alleged. A. Raja was not found to have manipulated either the policy or advancing of the date with any alleged ulterior motive. The court found that all decisions in this regard were made bonafide upon the recommendations of the telecom department. Having stepped into the witness box, Raja’s answers were found by the judge to be consistent with the official records produced by the CBI in support of their case.

No worthwhile cross-examination shook the veracity of Raja’s testimony as recorded by the judge. The judge also found that no evidence was produced that could substantiate the charge of conspiracy to benefit any applicant for a licence. That letters of intent (LOI) were granted consistent with the policy in place and the grant of LOI did not entitle the applicant to any priority in the grant of a Unified Access Service Licence (UASL); that the procedure that was followed in the grant of UASL licences was consistent with extant practice.

The genesis for prosecuting Raja and others was the charge of conspiracy to benefit applicants for licences and the alleged manipulation of the first-come, first-served policy in fixing a cut-off date by advancing the date for considering applications to favour certain applicants. This Supreme Court-directed prosecution, the court having appointed a particular Special Public Prosecutor, was to ensure it was uninfluenced by government. Yet, it failed miserably. This is the danger when the highest court, instead of acting as a court of last resort, comes to prima facie conclusions without a thorough investigation. Without following the normal processes of law, if the Supreme Court chooses to launch prosecutions, it runs the risk of destroying reputations, including its own. Every such case should start with an investigation pursuant to an FIR, which may result in a closure report or a chargesheet. In the event of a chargesheet, the case goes to trial, after which the aggrieved party files an appeal. Finally, after exhausting all available appellate remedies, the matter reaches the Supreme Court. Then alone can the court appreciate the nature of culpability, if any. When the Supreme Court reverses the procedure and acts as a court of first resort, through a public interest litigation, it could, as in this case, jeopardise reputations. Such a procedure is violative of Article 21, especially when the Supreme Court finds prima facie evidence to launch prosecution. Imagine the pressure on the Special Court in a matter in which the Supreme Court finds prima facie evidence to launch and monitor the prosecution. It is a rare judge who has the courage to acquit the accused under these circumstances.

The judgement of the Supreme Court was a milestone for yet another reason. It directed the government to auction the spectrum instead of allocating it at the administered price. Its intent was to enrich the treasury. That may be a laudable objective from the court’s standpoint. But that may not be the rationale behind the policy of the government in allocating spectrum at the administered price. The fundamental issue is whether the court should interfere in matters of economic policy. For any constitutional infirmity it may set aside a decision of government, but it should not direct the government to deal with a public resource in a particular way consistent with its own notions of justice. Such a direction of the court had economic consequences that it may not have even contemplated. Such decisions are left best to government with the caveat that the court must act swiftly if there is a whiff of corruption in the decision-making process or the decision itself. But that, too, after the investigation is over, not through unique proceedings inconsistent with established procedures of law.

Had the CAG not sensationalised the issue, none of this would have happened. The fault lies at the doorstep of the then CAG and, of course, the opposition that exploited the issue for political gain. It was emboldened by the prosecution launched pursuant to the judgement of the Supreme Court. The resultant political ramifications opened a new chapter in the future politics of India. Such was the impact of this judgement, its tremors are felt to this day. There are lessons to be learnt: For future CAGs and the Supreme Court and, if I may add, the media. This conspiracy of circumstances cost the Congress party its credibility. With this judgement, the Congress may claim a moral victory but it cannot reclaim what it lost.

No one from the Congress party was an accused, yet the UPA II paid the price for a scam that never was.

The writer, a senior Congress leader, is a former Union minister.

Courtesy: This article is published in The Indian Express on dated 27/12/17

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