'What was the case about?'

The verdict in the 2G spectrum licence allocation case, pronounced after six years, has come as a surprise as it virtually exonerates the accused in the high-profile corruption case on which the Bharatiya Janata Party (BJP) built its entire campaign against the United Progressive Alliance (UPA) government ahead of the 2014 Lok Sabha elections. Rebecca John, Senior Advocate, Supreme Court, and counsel for the Unitech group of companies and Kanimozhi, spoke to Frontline on why the judgment was sound and based on the evidence brought before the court. The Central Bureau of Investigation (CBI), she emphasised, had abandoned its own theory of loss. Excerpts from the interview:

What is the logic of the verdict? The CBI court found no criminality in the spectrum allocation and observed that there was lack of clarity in the policies and guidelines that added to the confusion. The Supreme Court did cancel 122 licences. Was this an erroneous decision?

I think this is based on a complete wrong understanding of the jurisdictions under which both the courts operated. The Supreme Court was looking at the case of cancellation not from the angle of any individual criminality but at the impropriety in the grant of licences. There is a difference between impropriety and criminality in law. Things can be improper and therefore there can be civil consequences. Things can be culpable and therefore people who are directly involved with that criminal offence must be punished in criminal law. The jurisdictions are completely different. This attempt to overlap the decision of the Supreme Court on the decision of the special CBI civil court is completely erroneous and based on a wrong understanding of different jurisdictions under the law. The order of the Supreme Court did not at any point enter into the question of whether there was any criminal conspiracy to commit an offence to distribute licences to the different licence applicants or whether A. Raja had in a criminal manner distributed these licences. That was not an issue before the Supreme Court at all. In fact, the last line of the Supreme Court judgment very clearly said that the observations made in that order would have no impact on the criminal trial pending before the special court.

The judgment deals especially with the alleged ineptitude of the prosecuting agencies, the kind of questions asked and the way the witnesses were examined—for example, the observation that the prosecution was hesitant to ask questions, kept beating about the bush. Dr Subramanian Swamy has more or less alleged that law officers were responsible for the acquittal and that honest law officers could have made a difference. Also, the acquittal of Jayalalithaa by the Karnataka High Court and the subsequent conviction by the Supreme Court is being made a case in point to illustrate that the case can be taken up at the highest court.

The case of Jayalalithaa is quite different from that of the 2G case. Theoretically, it is quite possible that an order passed by a sessions court is overturned by the High Court and the order by the High Court is then overturned by the Supreme Court. But again we cannot impose the facts of one case on another case. In Jayalalithaa’s case, there were very elementary arithmetic errors made by the High Court and these were corrected by the Supreme Court. I don’t think this is a case of parity at all. I do not want to personally respond to anything that Dr Swamy has said. But I want to highlight the fact that everything as far as the case was concerned was monitored by the Supreme Court. The Special Court was appointed by the Supreme Court; the charge sheet before it was first submitted to the Supreme Court, which is unprecedented in law as the charge sheet has to be filed only before the trial court. But in this case the Supreme Court saw the charge sheet before it was filed. The Special Public Prosecutor was appointed by the Supreme Court. I may have a problem with the manner in which the CBI conducts itself in most of the cases, but I as an officer of the court would never say that there was anything dishonest in the manner in which law officers conducted themselves. What is the dishonesty involved? They argued a case; they lost it; we argued a case; we won it.

Of the two Special Public Prosecutors appointed in the case, one has become a judge of the Supreme Court and the other is a counsel of great eminence. One can criticise the CBI, but to criticise the officers who conducted the trial and personalise it is a bit too much.

The judgment raises many doubts—whether there was a scam at all or not, whether there was a loss to the exchequer or not, and whether the wrong persons were implicated.

Whether there was a scam or not is something that Judge Saini has said almost towards the end of his order. It is a nearly 1,500-page order in which more than 1,450 pages are devoted to extracting the evidence brought on record, that is extracting statements of witnesses and correlating them with the documents of the DoT which the CBI itself brought on record and then marshalling that evidence, one comes to a finding. Judge Saini did not make that finding out of thin air. He went by the evidence brought on record by the prosecution agency, and files which were part of the DoT. I have been hearing all kinds of strange statements by CBI officers that their evidence was beyond reproach and only the evidence of the accused was considered. What the court considered were the files, the contemporary records of the DoT, which were created as the files were moving at a time when there wasn’t even a whiff of a scam, that is 2007-08—they were all spontaneous file notings—and compared them with the statements of the CBI’s witnesses, who were also cross-examined by the defence.

What is the CBI’s allegation about how the court went about addressing the case? The observations made by the judge in the last paragraphs of the order are based on the evidence that was placed before it. The judge went about it in an unimpeachable manner. He has not put any personal opinion there. His finding is based on the evidence presented before him. It is not a personal, arbitrary, fanciful, opinionated finding. He said from this material, “I cannot sense a scam.” That is perfectly legitimate.

There were multiple allegations of the ineptness of the prosecuting agencies: of the CBI not asking the right questions and that the witnesses were evasive and the prosecutor was hesitant to ask a question.

That is at a later stage. He looks at the case against each of the 17 accused persons, and that is the structure of the judgment. There were many issues before the court: Whether the licences were issued in an improper or criminal manner; whether there was any conspiracy between the public servants and private players; whether the cut-off date was tweaked to help any private player; whether the first come, first served policy was tweaked to benefit some players as against other players; whether the companies were eligible to get the licence in the first place; and, lastly, whether there was any loss caused. Judge Saini looked at each issue and the evidence placed in each case and concluded that the charges were not justified on each count. He looked at the charges against each of the accused and at the end of it he found that he could not uphold that there was any scam.

In February 2012, the Supreme Court cancelled 122 licences observing that the then Telecom Minister wanted to favour some companies and the way LoIs [letters of intent] were granted to applicants left no room for doubt that everything was stage-managed to favour those who had advance information. Basically, this pointed to favouritism.

What the Supreme Court did in the cancellation of licences in a writ petition was attributing civil liability and enforcing a civil wrong against people. What the Supreme Court itself did by appointing O.P. Saini as a special court judge to try the offence was to say, “Now find out whether the charges are justified.” The ultimate conviction of these people would depend on a criminal wrong. These were two different areas completely. It is arguable that a stray observation here and there may be looked at. Clearly it was looked at, but a civil court decision cannot overpower a criminal court. Why have a criminal trial at all? That’s the end of the matter. Everyone would go to prison after the cancellation of licences if it were as simple. The Supreme Court’s cancellation of licences happened years ago. If that was the end of the matter, why did the court ask the CBI to file a charge sheet, appoint a special court to hold a criminal trial, and go through the exercise for six years? Not only that, Raja and others should have been taken into custody forthwith. That is not the scope of jurisdiction. The lie that is being perpetrated by senior people is that the matter ended with the Supreme Court’s cancellation of licences. That is never the law.

The evidence placed before the CBI court was not placed before the Supreme Court. The Supreme Court was looking at it in a very prima facie manner. There were no 15,000 documents or 50,000 pages of evidence before the Supreme Court. It was not required at that stage. But whatever be the merits of the Supreme Court’s decision, a criminal case is not predicated on the findings of a civil court. The Supreme Court by cancelling the licences was acting in a civil jurisdiction.

The judgment overruled the possibility of any conspiracy and found no criminality in the acts committed, including those relating to the “first come first, served policy”, stating there appeared to be a lack of clarity in the policies and guidelines that added to the confusion. Was this also the defence’s line of argument?

As officers of the law, we work according to the evidence brought on record by the prosecuting agency. I don’t have any special skills to see whether there was a conspiracy or not. From the evidence brought on record, the CBI miserably failed to prove a conspiracy of any kind. The CBI’s own documents had a counter-argument that went to the defence of the accused. It said that the Unitech group of companies made its application for an LoI on September 24, 2007, and that Raja’s ultimate cut-off date of September 25 was designed to favour Unitech. The company was able to prove that its application was moved on September 21 and it was not the last group to apply.

The last to apply was Shyam Saxena, which was not prosecuted for reasons best known to the CBI. Two companies in fact, Shyam Saxena and Selene Infrastructure, filed their applications post the Unitech application. We did not create any records; they are all DoT records. The allegation that the cut-off date was tweaked to suit the Unitech group of companies fell flat. In this way, almost every allegation has a counter-argument based on DoT records. People cannot be held culpable on the basis of random charges. The other charge was that the Unitech company had prepared a demand draft way back in October, indicating that it had advance knowledge of what the Department was going to do in January. Companies that made the demand draft right at the end were the ones with insider knowledge. The company that does it right at the end is out of the scope of any investigation. If one had inside information, one would make the demand draft on January 8, not in October. One loses interest on that amount. Many of the allegations were devoid of any basic merit.

One agency that needs to be prosecuted is the CAG [Comptroller and Auditor General of India]. The CAG report said the notional loss amounted to Rs.1,76,000 crore, while the CBI gives a different figure, Rs.22,000 crore. The CAG report was never placed on record before the court. Not a single prosecution witness talked of loss. The then RBI Governor, the then Secretary to the DoT, the head of TRAI, were witnesses in the case; none of them spoke of a loss suffered by the Government of India. The theory of loss was abandoned by the CBI. No one came to testify. Someone has to come to court and say that someone caused grievous injuries! Criminal trials are based on evidence. Someone has to say that the Government of India suffered a loss.

What was the case about? They were not able to connect the so-called illegalities with loss, and then the loss was notional; there was no way they could have proved it. They abandoned it perhaps out of a sensible thinking of the case. There was a diametric difference between the public perception of the case and the CBI’s case over six years. Wrong decisions are made all the time. In August 2007, in response to a question by the DoT, TRAI, headed by Nripendra Mishra, came out with a report that said there should be no cap on 2G applications. What did we mean by no cap? There were a huge number of applications. A cut-off date had to be imposed by Raja as there was a flood of applications. First he imposed a cut-off date and then imposed a processing date. Secretary D.S. Mathur sends notes to Raja saying too many applications have come. I can’t conjecture on whether there was any hanky-panky going on.

It appears evident that the order will be challenged and the CBI will go in for an appeal. Without drawing any conclusions at this stage, would it be possible to expect the prosecution to find fresh evidence in order to make the charges stick?

There is no question of anybody finding any fresh evidence. The order has to be challenged on the basis of the existing evidence brought on record. The trial is over. The prosecution has to use the very same evidence to argue that the findings made by the special judge were erroneous. They can’t bring any fresh evidence.