The biggest scandal of political corruption in recent times, the 2G spectrum allotment of 2008 came to be seen as a symbol of what was wrong with the United Progressive Alliance government, and of crony capitalism and corporate greed. But on December 21, CBI Special Judge O.P. Saini declared that there was no evidence of corruption and acquitted all accused in the case.
Saini in his judgment said the prosecution had started the case with great ardour, but became highly cautious, and was not even being clear about what it wanted to prove. “By the end, the quality of prosecution totally deteriorated and it became directionless and diffident,” he said.
The CBI, which started investigating the case in 2009, had said in its FIR that two of the accused companies—Swan Telecom and Unitech Wireless—had paid Rs 1,537 crore and Rs 1,658 crore, respectively, to get the Uniform Access Services (UAS) licence. Swan offloaded 45 per cent of its equity to Etisalat of the UAE for Rs 4,200 crore and Unitech offloaded 60 per cent of its equity to Telenor of Norway for Rs 6,100 crore even before the rollout of services. On pro rata basis, the estimated loss for all 122 UAS licences issued in 2008 was more than Rs 22,000 crore, said the FIR. In its charge-sheet, the CBI added that Adjusted Gross Revenue (AGR) per MHz of spectrum per year between 2002 and 2007 grew by 3.5 times. It said this would have led to additional revenue of around Rs 22,535.6 crore in respect of entry fee of new UAS licences, and fee paid by dual technology users would have fetched the government Rs 8,448.95 crore.
The charge-sheet said A. Raja, the telecom minister who granted these licences, knew Swan Telecom’s promoters Shahid Balwa and Vinod Goenka (also the promoters of DB Realty), and Unitech Wireless’s Sanjay Chandra (also the managing director of the real estate company Unitech Ltd) when he was environment minister. But the judge said the investigating officer “could not collect any evidence, oral or documentary,” from the environment ministry to prove that they had met. “There is no material on record to show that A. Raja was mother lode of conspiracy in the instant case. There is also no evidence of his no-holds-barred immersion in any wrongdoing, conspiracy or corruption,” Saini said in his 1,552-page judgment. Vijay Agarwal, the lawyer of Swan Telecom promoters, said the CBI case was a mountain made out of molehill and ended up like Bofors.
The judgment might have come as a shocker for the common man, but it was not completely unexpected for the prosecution team. Saini had kept special public prosecutor Anand Grover and his team on their toes—questions were asked and explanations sought. The CBI probe heavily hinged on the alleged money trail of Rs 200 crore from a subsidiary or associated company of Swan Telecom and DB Realty through several intermediaries to Kalaignar TV, a television network promoted by DMK patriarch Karunanidhi’s wife Dayalu Ammal and daughter Kanimozhi, MP. The court said the CBI had failed to establish quid pro quo.
Said former home secretary G.K. Pillai: “When witnesses were called to the witness box, they were not once asked whether the money in question was a bribe or not. The judge has taken note of this in his judgment. He said not a single witness has said it was a payment of illegal gratification or quid pro quo. So, while the agency may have established a money trail to Kaliagnar TV, there is no proof of a bribe.”
Pillai said it was for the first time that the statement of the then solicitor general, G.E. Vahanvati, was dismissed by a trial court. The court disapproved of Vahanvati’s “change of stance” during his deposition. “It is unfortunate that he is one of those witnesses whose testimony has been rejected in toto for being contrary to the official record,” said the court.
Vahanvati had approved the Department of Telecom changing the cut-off date for applying for spectrum from the ‘date of application’ to the ‘date of payment’. “However, in the witness box he tried to wriggle out of the same. It is the change of stance by Vahanvati which led to unnecessary controversy,” said the judgment. It was accused that Raja changed the dates to benefit select companies.
D. Subbarao, who was finance secretary in 2007 and 2008, had deposed before the court that there was “no loss” to the exchequer but only some sacrifice of the revenue. “When the finance secretary himself is telling the court that there is no loss, then where is the scam? That is something that weakened the CBI’s case,” said Pillai.
The court in its judgment noted that Subbarao was the only witness examined from the ministry of finance and he “displayed the quality of a sterling witness by remaining reasonable and objective in his deposition”.
The CBI was left red-faced when the court observed that many facts recorded in the charge-sheet were factually incorrect, such as the finance secretary strongly recommending revision of entry fee, deletion of a clause of draft by Raja, and recommendations of TRAI for revision of entry fee. “I have absolutely no hesitation in holding that the prosecution has miserably failed to prove any charge against any of the accused made in its well choreographed charge-sheet,” said the judge.
Former CBI director A.P. Singh, who oversaw the investigation, was shocked by the court’s observations. “If what the judge is saying is correct, then that is a very serious charge,” he said. “But the CBI is very meticulous in these matters. So I doubt these observations are entirely correct. I am sure without proper documentation it is not possible for the CBI to mention these issues in the charge-sheet.”
Singh was director of the CBI from 2010 to 2012. He was succeeded by Ranjit Sinha, who was barred from supervising the 2G case by the Supreme Court at the fag end of his tenure in 2014 on charges of helping the accused in another high-profile corruption case. Sinha now feels vindicated. He said he had noticed glaring omissions in the investigation and tried to bring them to the notice of the special public prosecutor. “I wanted to give a report and incorporate my findings in the status report. But my findings were never incorporated,” he said.
But former CBI special director M.L. Sharma dismissed Sinha’s claims and said the 2G investigation had enough evidence to nail the accused, and Saini could well have taken an opposite view. In 2016, as per the Supreme Court’s directions, Sharma conducted an inquiry into Sinha’s informal meetings with some of the accused in the coal block allocation scam.
Special public prosecutor Grover, who was harshly criticised by the court, said the judge could have stemmed the embarrassment and damage done to the judicial institutions. “It is Judge Saini who framed the charges after hearing both the parties. The charges are only framed once the judge is convinced in the case of the prosecution. The accused could have been discharged at that time itself if the charge-sheet was orchestrated,” he said.
Grover said the attempt to make the prosecutor a “scapegoat” was improper and would damage “the institutional integrity of the court and the judicial system”. To say that the 2G case was no scam, he said, is contrary to records, facts and logic.
