The 2G verdict raises fresh questions: Who changed the cut-off dates?

In what has come to be called the 2G spectrum allocation scam, one of the primary charges against A Raja, former Union Communications and Technology Minister, was that he tinkered with the cut-off dates for filling of applications for allotment of 2G telecom spectrum to benefit a few companies.

A Raja was a minister nominated by the Dravida Munnetra Kazhagam, one of the constituent members of the Congress party-led United Progressive Alliance which was then in power at the Centre.

The Central Bureau of Investigation court acquitted Raja and 16 others in the case on Thursday. Judge OP Saini used rather scathing language against the evidence and testimonies produced before it by the prosecution.

As far as the cut-off dates are concerned, Saini’s findings seem to directly contradict the conclusion that the Supreme Court came to in 2012, when it cancelled all 122 licenses awarded in the 2G spectrum allocation.

While the Supreme Court pinned the responsibility of changing the dates on Raja, the CBI court has come to a conclusion that he merely approved a proposal made by the Department of Telecommunication. In other words, the judgement concludes that a policy decision to make crucial changes that had a profound effect on the very allocation of 2G spectrum licenses was made by an official of the rank of a joint secretary, and not Raja.

Further, all through the judgement, the court has made some sympathetic observations on Raja and the purported travails he faced during his stint in the telecom ministry.

Cut-off dates

There are many aspects of the Thursday judgement that raise the obvious question. If no one indulged in a provable illegality, where did the scam disappear? The Supreme Court had been monitoring the case since 2011 and had even appointed a special public prosecutor.

The primary charge against Raja was that he tinkered with cut-off dates for applications to the spectrum licences to help specific companies. The policy of first-come-first-served, which had been followed till that point, was also manipulated to aide companies from which Raja received kickbacks at a later point, it was alleged.

According to the CBI, there was no policy of a cut-off date for receiving applications. The application was a continuous process and licenses were allotted on first-cum-first-served basis on availability of spectrum.

It was alleged that Raja was instrumental in putting in place a cut-off date. He, through his private secretary RK Chandolia, instructed AK Srivastava, a joint secretary in the Department of Telecommunications, to put a note on a policy for cut-off date, thus essentially setting a deadline for applications. This was done specifically to help Swan Telecom and Unitech, who were informed about the policy change beforehand. The deadline acted as an indirect cap.

As Raja’s predecessor, Dayanidhi Maran, also from the DMK, wanted a cap on the number of service providers in each circle. However, the Telecom Regulatory Authority of India disagreed to this proposal in August 2007 and said there could be no cap, which meant that any number of companies could apply for spectrum licenses.

Srivastava said he prepared the note on September 24, 2007 under instructions from Raja via Chandolia, in which it was claimed that 167 applications from 22 companies had already been received and that it would become difficult to process such a huge number of applications. Therefore a cut-off date of October 10, 2007 was proposed, giving 15 days time for applicants. This was endorsed by Telecom Secretary DS Mathur and sent to Raja as required. However, Raja further reduced the cut-off date to October 1, 2007 and said this was being done to discourage speculative players. A press release was later put out.

During his testimony, Srivastava claimed that though the cut-off date was October 1, he was asked not to take applications after Unitech, one of the accused companies, filed its application. Later, September 25 became the deadline whereas Unitech applied on September 24.

Saini completely dismissed these claims in his judgement. The judgement notes that Unitech’s application had been received very early on September 24, while Srivastava had claimed that Chandolia had inquired about the status of the application during the day. When Srivastava checked with the relevant section in the department, he was told the application was yet to be received. This was factually incorrect, the judgement notes.

Essentially, the judgement tells us, while accepting the defence arguments, that a policy decision of such importance was initiated by a joint secretary of the telecommunications department. It is important to note that this matter did not reach an empowered group of Ministers.

However, it is here that the judgement runs in contradiction to a verdict by the Supreme Court in 2012, which had cancelled all 122 2G spectrum licenses issued on first-cum-first-served basis.

In the 2012 judgement, the Supreme Court said:

“The exercise undertaken by the officers of the DoT between September, 2007 and March 2008, under the leadership of the then Minister of C&IT was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality. The material produced before the Court shows that the Minister of C&IT wanted to favour some companies at the cost of the Public Exchequer..

The Supreme Court had put out several points to substantiate how the process was flawed. This included questions on maintaining 2001 prices for the spectrum. Raja was accused of disregarding caution raised by the Union Law Ministry, the Finance Secretary and the Prime Minister’s Office on the pricing. The matter was not referred to an empowered group of ministers, the Supreme Court observed. Raja had claimed in his letter to the Prime Minister that opinion of the empowered group would be out of context.

However, all these have been dismissed by the CBI court citing lack of evidence. The court pointed out that there was no proof to support the claim that the Prime Minister’s Office was misled. No material was brought on record and no witness from the PMO was examined.

In fact, it even refused to accept some fundamentals of the policy that had been followed in spectrum allocation till 2007, including the fact that the first-come-first-served policy was a composite one that encompassed every stage of allocation, including letter of intent and spectrum and wireless licenses.

The question of association

The CBI, in the evidence it produced to prove conspiracy between Raja and beneficiary companies, said that the former Union Minister knew the executives of these organisations from his days as Minister of Environment and Forests. Unitech, for example, was a real estate company and environment clearances were needed for some projects.

A crucial witness in this aspect of the case was Aseervatham Achary, who was an additional private secretary to Raja. Achary testified that Raja had met Shahid Balwa and Vinod Goenka at least 20 times. The two were associated with Swan Telecom, a company that allegedly benefited from Raja’s policies.

The judge tears into the claims made by the CBI. If the meetings were evidence of collusion between the accused, why did the probe agency not take the effort to find and produce the register maintained at Raja’s home and office showing the list of visitors?

Essentially, the court said there was no material evidence to prove Achary’s claims. However, the other reasons the court cited to dismiss Achary were curious. First, it said Achary’s statement was recorded by the investigating officer just a week before filing a chargesheet. This was almost two years after the first information report was filed in 2009. “This long delay in recording the statement alone is good enough to destroy the evidentary value of his deposition,” the judge said. Second, the court added that Achary was contemplating joining a political party. Therefore, it was not safe to rely on his testimony. It is not clear under what precedent this line was taken.

The CBI had presented evidence that Raja’s family members were on the board of a real estate firm for which some services were provided by companies involved in the scandal, and that there was also a transaction for land purchase. But the court dismissed these as “inchoate transactions between two companies”.

However, at a later point, the judgement cites a part of Achary’s testimony as truthful, in which he makes adverse comments on DS Mathur, former secretary of telecommunications. The judgement says it appears truthful that in December 2007, Achary saw Raja and Mathur shouting and arguing. The judge then makes an observation highly sympathetic to Raja.

“What a Minister shall do with such an obstructive and dithering Secretary, except to shout at him? A Secretary must realize that as per the constitutional scheme of things, an elected representative has to be at the helms of affairs of a Government department. A Minister is a hard core politician, who is responsible to his electorates as well as to Parliament. He has also to retain the faith of the Prime Minister to stay in council of Ministers. He has to perform to the maximum within the time at his disposal. Every Minister wishes to be seen to be doing something as opposed to be doing noting. If a Minister does not perform, he risks eclipse of his political career. However, as noted above, Sh. D. S. Mathur was bent upon to not let the Minister do anything.”