Probing questions

Print edition : February 02, 2018

AMONG the many questions that have arisen from the 2G spectrum scam judgment, the most significant ones pertain to the manner in which the two investigating agencies, the Central Bureau of Investigation (CBI) and the Enforcement Directorate (E.D.), probed the case and how their lawyers argued it in court. Soon after the verdict, which acquitted all the accused, the Aam Aadmi Party’s national convener Arvind Kejriwal tweeted: “2G scam is one of the biggest scams. It rocked the country and was one of the reasons for the UPA’s [United Progressive Alliance] downfall. Today everyone goes scot-free. Did CBI mess up the case? Intentionally? People need answers.”

Bharatiya Janata Party leader Subramanian Swamy, who took the 2G case to the Supreme Court, criticised the lawyers who appeared for the investigating agencies in the Special CBI Court. “In paragraph 1812, the judgment states that counsel of the CBI and the E.D. were totally lackadaisical, not serious. He [the judge] could not figure out what they were trying to prove. This is a very big condemnation of the government conducting the case,” he told reporters.

What triggered the questions about the investigating agencies was the strong criticism made by Special CBI Judge O.P. Saini about the investigating agencies and their counsel. Discussing the allegations made by the CBI and the E.D. against prominent politicians, senior corporate executives and government officials, the judge stated: “There is no evidence on the record produced before the court indicating any criminality in the acts allegedly committed by the accused persons relating to fixation of cut-off date, manipulation of first-come first-served policy, allocation of spectrum to dual technology applicants, ignoring ineligibility of STPL and Unitech Group Companies, non-revision of entry fee and transfer of Rs.200 crore to Kalaignar TV (P) Limited as illegal gratification. 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.”

He pointed out that the charge sheet was based on “some oral statements made by witnesses during investigation” which were not “owned up” by them in court. He stated: “The end result of the above discussion is that, 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.”

While the portions from the judgment quoted above are the Special Judge’s overall observations, elsewhere in the judgment he makes scathing comments about the agencies’ apparent inability to collect evidence to prove specific charges. For instance, the CBI had alleged that former Telecommunications Minister A. Raja knew top DB Group officials Shahid Balwa and Vinod Goenka from when he was Union Environment Minister and that he facilitated the grant of licences to the DB Group’s Swan Telecom Pvt. Ltd. The charge is that in return for this favour, Rs.200 crore was transferred from Dynamix Realty to Kalaignar TV (P) Limited as “illegal gratification”. Raja’s then personal secretary informed in court that 20 meetings happened at the Ministry between the Minister and the company executives. However, the CBI could not produce any documentary evidence to prove this. The judge remarked: “How is it that prosecution could not collect even a single appointment chart or a visitor’s register in which the visit/meeting of the three accused with the Minister would have shown? The investigating officer could not collect any evidence, oral or documentary, from the Ministry of Environment and Forests regarding the meetings of accused.”

It appears that the charge sheets filed by the CBI and the E.D. had many such flaws. In what has perhaps become the best known quote from the lengthy judgment, Judge Saini remarked: “I may also add that for the last about seven years, on all working days, summer vacation included, I religiously sat in the open court from 10 a.m. to 5 p.m., waiting for someone with some legally admissible evidence in his possession, but all in vain. Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings.” This portion of the order, which was shared widely on media platforms, appears to have provoked strong criticism against the investigating agencies.

The CBI responded thus: “It appears that the evidence adduced to substantiate the charges by the prosecution has not been appreciated in its proper perspective by the Learned Court.” It added that the agency would file an appeal. CBI spokesperson Abhishek Dayal told Frontline: “As per law, we will file an appeal in the Delhi High Court within 60 days [from December 21].” On its part, the E.D. confirmed that it would file an appeal against the judgment. In its official response to the judge’s criticism, the agency stated: “The L’d Special Court has appreciated the material evidence qua offence of money laundering at the time of framing of charges against the accused persons but the same material appears to have not been considered while deciding the prosecution complaint under PMLA [Prevention of Money Laundering Act] and the accused persons have been acquitted from the offence of money laundering only on the basis of no commission of offence and not the occurrence of criminal activity.”

The court’s criticism about the investigating agencies’ inability to produce legally admissible evidence has been interpreted in multiple ways in political circles. That the judgment also mentions the prosecution’s initial “enthusiasm and ardour” in pursuing the case and subsequent “highly guarded and cautious” attitude that caused the quality of prosecution to “deteriorate” and become “directionless” and “diffident” has prompted many to read between the lines.

This is significant because even during the previous UPA regime, members of the Joint Parliamentary Committee on Telecommunications had criticised the CBI’s 2G investigation. The popular expectation, in view of the Narendra Modi administration’s strong anti-corruption rhetoric, was that with a change in government the country’s premier investigating agencies would be more effective in bringing the corrupt to justice. The judgment proves that such expectations were in vain.

Former Cabinet Secretary T.S.R. Subramanian’s comment in his 2014 book India at Turning Point: The Road to Good Governance perhaps captures the prevailing perception about the CBI and its investigations aptly. He writes: “The senior echelons of the Central government, in particular the Prime Minister and his office, and the party in power treat the CBI as an instrument of governance—to suspend a ‘Damocles sword’ over persons who could be potential allies or enemies, and dangle it with appropriate finesse at the right time to meet short-term and long-term needs; as also to critically alter the pace, substance and direction of investigations into alleged wrong-doings by those in authority or opposed to it. If in the early stages of investigation critical documents are allowed to be destroyed, ‘disappeared’ or handled strategically—also evidence ‘planted’ judiciously where appropriate—these can impact the progress of the investigation in a definitive way. This can be used to ‘kill’ a case or create a suspicion where none is possible or open a case and keep it hanging to ensure continuing support. All of these with finite variations are deadly games that are played all the time.” How the 2G case fares in higher courts will tell us whether T.S.R. Subramanian’s comment is relevant for the future or belongs to the past.

Akshay Deshmane

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