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Friday, 22 December 2017

2G Trial Court Verdict: First Impressions


2G Trial Court Verdict: First Impressions

Written by Dr. Seshadri Kumar, 22 December, 2017


Abstract

The verdict of the special CBI trial court on the 2G spectrum allocation criminal trial is out, and it is unambiguous: there was no wrongdoing by the accused. All the accused have been acquitted by the trial court.

The verdict clearly shows that the basic premise on which the BJP has been winning elections for the last 4 years, viz., the perception that the Congress Party and its allies, especially the DMK, were corrupt — is in fact fundamentally flawed.

The verdict clearly vindicates both former PM Dr. Manmohan Singh and his telecommunications minister, Mr. A. Raja, and establishes their innocence.

The verdict also demonstrates that despite the fact that the charges were leveled against it, the UPA government of 2009-2014 was more diligent in prosecuting the case than the Modi government which made such a big hullabaloo about it when in the opposition.


A Nation of Laws and Judicial Processes

Many of my friends are expressing opinions that, despite the trial court verdict on the 2G spectrum case that was announced on 22 December 2017, they think there was a scam, etc. The purpose of this post is to respond to such views, and to explain what the trial court verdict says and implies.

The first thing to remember is that we are a nation of laws and systems, however imperfect. A verdict is a verdict, and it means something in our country. If it says you are innocent, then you are. If it says you are guilty, then you are. Both can be reversed by a higher court, but until that happens, the original verdict stands. One's suspicions, however well-founded, cannot overrule the judgment of a court where arguments for and against, and actual evidence, have been considered by the judge before giving a verdict. This is to be remembered by those who want to say things like, “But … what about Tata? What about Niira Radia?” And many more statements of that ilk. We have to base our trust on something, however imperfect — otherwise we have no basis for any discussion. Some others point to the weakness of India's legal systems by pointing to incidents like the 1984 riots investigation, for which no significant political leader was found guilty, in sharp contradiction to eyewitness reports. While there have doubtless been failures to convict the guilty due to political interference, our imperfect justice system still remains the best hope to hang our hats on. So yes, if our justice system says that Narendra Modi was not guilty of orchestrating the 2002 Gujarat riots, then, sorry to disappoint my fellow-liberals, he was not. And if the same justice system says that nobody in the UPA government was guilty of any crime in the 2G spectrum sale, then nobody was. What is good for the goose is good for the gander.

Some have even expressed the (wrong) opinion that the verdict only disagrees with the presumptive loss proposed by the then-CAG, Mr. Vinod Rai (now Padmabhushan, thanks in no small part to his now-(in)famous report that pegged the loss to the exchequer from the 2G spectrum sale at Rs. 1.76 lakh crores), but still holds that those accused committed some wrongdoing. I want to set things clear here, on the basis of what I understand is contained in the verdict, from news sources. I have not yet read the verdict myself, but will do so at some point. This is an interim assessment, based on the news reports on the verdict from the Times of India, Times of India (another report), Times of India (yet another report), Financial Express, Business Today, and NDTV.

Summary of the Verdict and Its Implications

The summary of the verdict is:

  1. No wrongdoing happened. Period. (Nothing has been proved, which is the same thing as nothing having happened, in a nation governed by laws and a judicial system.)
  2. Prosecution seemed uninterested in proving the case in the latter stages of the case (i.e., during Modi sarkar.)
  3. Raja clearly communicated his intentions to the PM in a letter, but some concealment/misrepresentation of that information seems to have happened as it was forwarded to the PM. The guilty seem to be PMO officials Pulok Chatterjee, TKA Nair, and BVR Subramaniam, not former PM Manmohan Singh.
  4. There seems to have been much confusion in the DoT guidelines, suggesting that confusion and incompetence in spectrum allocation, rather than malfeasance, was the source of the problems.

All this suggests that there was no case at all, as the judge clearly states in the verdict.

This is a landmark verdict, because the entire foundation for Mr. Narendra Modi's 2013-2014 election campaign for the Lok Sabha, and several other state elections as well, is that the Congress was corrupt and looted the country — and the centerpiece of his allegations is the so-called “2G scam.” Yesterday's verdict means that the foundation for Mr. Modi's campaigns and election victories, from 2013 to today, is wobbly, and that the Congress is not the corrupt party he has so far successfully projected them to be. Mr. Modi claimed that there was incontrovertible proof that the Congress and its ally, the DMK, had their hands dirty with the 2G scam, and the Congress was soft-pedaling the investigation against the accused, using its control of the CBI (which was referred to as the “caged parrot”), and more generally using its control of the machinery of power, both in the central and state levels.

But this verdict comes at a time when the Congress is in no position of influence in the country at all. The central government and most state governments are under the control of the BJP, as are the CBI and all government officials. Nobody has an incentive to soft-pedal the case against the Congress and the DMK to favor these parties that are out of power. Even if the chargesheet filed by the Congress, for argument purposes, had been weak, prior judgements have held that the charges can be modified at any time prior to the final judgement. So if the Modi sarkar and its eminent lawyers, like Ravi Shankar Prasad, felt that the charges filed by the CBI under Congress rule were not strong enough, they could have revised them.

If we are expected to believe that the Congress had control over the prosecution of the guilty, and could be blamed for the fact that Raja et al. were not convicted, then we should believe the same about Modi. The “caged parrot” is now under Modi's control.

That leads to one of only three conclusions:

  1. There was no scam, as the court concluded. Modi and the BJP tried their best to prove their stand that the UPA regime was a corrupt one, but there was no evidence.
  2. There was evidence, but Modi hushed it up. After all, the court concluded that there was no scam because no evidence to support a scam had been presented. This begs the question of what the motive for hiding such evidence might be — whether people or companies friendly to the BJP would have been implicated had it been presented.
  3. Modi and his government are incompetent. Even though there was a mountain of evidence, they could not bring it to the attention of the court to get a conviction.

None of these conclusions is flattering to the Modi government.

Specific Details from the Verdict

The main points of the verdict (mostly taken verbatim from the news sources listed above; passages in inverted commas are Judge Saini’s comments, quoted verbatim):

  1. CBI could not prove that A.Raja, along with telecom ministry officials, manipulated the cut-off date for bids for the first-come, first-served policy for allocation of spectrum.
  2. CBI failed to establish that Raja had prior familiarity with Shahid Balwa and Sanjay Chandra during his stint as UPA environment minister.
  3. Documentary evidence and witness testimony couldn't prove that the accused ignored ineligibility of Swan Telecom and Unitech group companies.
  4. CBI couldn't link Raja to the money transfer of Rs. 200 crores to Kalaignar TV by Dynamix Realty (Balwa’s group), which was critical to establish if it was “illegal gratification,” or bribe, in exchange for telecom licenses.
  5. Lapses in CBI probe and “deteriorating” prosecution in the latter stage of the trial after special prosecutor Anand Grover appointed by the Supreme Court took charge of the case. (Note: This happened immediately after the Modi sarkar took over, in August 2014, when the previous special prosecutor, UU Lalit, was appointed as an SC judge.)
  6. No criminality or conspiracy in spectrum allotment.
  7. Some people created a scam by “artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.”
  8. “A huge scam was seen by everyone where there was none.”
  9. Judge Saini said that he had “absolutely no hesitation in holding that the prosecution miserably failed to prove any charge against any of the accused, made in its well-choreographed chargesheet.
  10. “There is no material on record to show that Raja was mother lode of conspiracy in the instant case.”
  11. “Prosecution gave up its case in its entirety during the examination of witnesses as not a single question was put to any witness suggesting that Rs 200 crore was paid as bribe or reward by DB group for grant of UAS licences. There was no single question that illegal gratification was dressed up as a loan.”
  12. CBI could not prove that Loop Telecom was a company of Essar group or was substantially controlled by it. As a result, the charge of cheating was dropped.
  13. Prosecution was unsuccessful in proving any of the ingredients, either of the offence of conspiracy to cheat DoT or of the substantive offence of cheating.
  14. Prosecution had “totally deteriorated” and had become “directionless” towards the end of the trial.
  15. CBI started with “great enthusiasm and ardour” but at the final stage of the trial, SPP and CBI prosecutor moved in “two different directions without any coordination.” (Note: this is an interesting point, given that the case started during the UPA regime and ended during the Modi sarkar.)
  16. “Statement of controversial corporate lobbyist Niira Radia was of no use and her testimony lacked any significance.”
  17. “For 7 years ... I religiously sat in open court ... waiting for someone with some legally admissible evidence in his possession, but all in vain.”
  18. In the court's view, the lack of clarity in the policies as well as spectrum allocation guidelines also added to the confusion. The guidelines, it said, were been framed in such technical language that meaning of many terms are not clear even to Department of Telecom (DoT) officers. “When the officers of the department themselves do not understand the departmental guidelines and their glossary, how can they blame companies/ others for violation of the same?” noted the court. (Note: This suggests that rather than a “scam,” what really happened was confusion.)
  19. “The charge sheet of the instant case is based mainly on misreading, selective reading, non reading and out of context reading of the official record.”
  20. “The charge sheet is based on some oral statements made by the witnesses during investigation, which the witnesses have not owned up in the witness box.”
  21. Key officials in the Manmohan Singh PMO — secretary Pulok Chatterjee and principal secretary TKA Nair — suppressed the relevant and controversial part of A Raja’s letter to Manmohan Singh.
  22. “In the beginning, the prosecution started with the case with great enthusiasm and ardour. However, as the case progressed, it became highly cautious and guarded in its attitude making it difficult to find out as to what prosecution wanted to prove.”
  23. “However, by the end, the quality of prosecution totally deteriorated and it became directionless and diffident. Not much is required to be written as the things are apparent from the perusal of the evidence itself.”
  24. The court also took strong note of behaviour of CBI and its SPP, saying several applications and replies were filed on their behalf but, in the final phase of the trial, no senior officer or prosecutor was willing to sign these documents. “When questioned, the reply of the regular senior PP would be that the Spl. PP would sign it and when the Spl. PP was questioned, he would say that CBI people would sign it,” the judge noted. “This shows that neither any investigator nor any prosecutor was willing to take any responsibility for what was being filed or said in the court,” the court said.
  25. “Not only this, the most painful part is that Spl. PP was not ready to sign the written submissions filed by him,” the court said, asking, “What is the use of a document in a court of law, which is not signed by anyone? When questioned as to why the Spl. PP was filing unsigned written submissions, his reply would be that some defence advocates had also not signed the written submissions.” The court said that despite its persuasion, Mr Grover refused to sign the CBI's written submissions. (Note: Keep in mind that all this happened during the Modi sarkar.)


Disclaimer: All the opinions expressed in this article are the opinions of Dr. Seshadri Kumar alone and should not be construed to mean the opinions of any other person or organization, unless explicitly stated otherwise in the article.

1 comment:

  1. Yes, the verdict stands. No one is suggesting Raja and others be thrown into jail despite the verdict. But laws don't control our minds. And they shouldn't. Not entirely anyway. The awkward facts, the loans to Karunanidhi's company, the manipulation of the bidding norms, these can't be brushed under the carpet. So, even if the evidence doesn't meet the rigorous legal standard, it meets the standards set by commonsense and inference.

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