DISEQUILIBRIUM: Are we really underlings?

In school, one had to memorise Julius Caesar and one got pretty good at it. The one quote that has always stood out for its perfection in an imperfect world is when Cassius appeals to Brutus to stop the powerful Julius Caesar. The plot to kill Caesar is predicated on these two lines — “The fault, dear Brutus, is not in our stars, But in ourselves, that we are underlings.” This comment unleashes a chain of events which results in Roman noblemen collectively assassinating Great Caesar. The morning that judge OP Saini gave his long awaited and oft postponed verdict in the 2G spectrum case, my memory recesses reverberated with these two lines. Having covered the scam and written and mouthed several stories on it, I was stunned, simply because malafide had already been established by the Supreme Court in a seminal judgment five years ago.

Criminality could not be established by the CBI in the seven years that it worked on the case and as Saini himself stated, “I waited seven years for evidence to roll in, and none came. I could only describe it as a tease.” And even as one waited for the CBI to file a review petition challenging the verdict, news flowed in last week that the public prosecutor in the 2G case — Anand Grover — told the SC that the CBI had not followed his recommendation to challenge a 2015 special court order acquitting all the accused in the excess spectrum case. Three times in a row, the CBI has egg on its face — first in the Aircel Maxis case, everyone got away scot free, then the Allahabad High Court overturned the CBI trial court judgment in the Arushi murder case and now this unmitigated disaster which is going by the name of 2G. In all three cases, it doesn’t say much about India’s premier investigating agency. Again in the Aircel Maxis case like in 2G, another probe agency, ED, has also got it completely wrong. In February last year, the Patiala House Court acquitted former telecom minister Dayanidhi Maran and his brother Kalanithi Maran and others in the Aircel-Maxis deal case filed by the CBI. Special judge OP Saini, who presided over the hearing was actually scheduled to pass the order on the framing of charges had deferred the hearing to February 2017. The ED had alleged a scam of over Rs 700 crore.

If one were to do a quick touch point analysis between the 2012 SC judgment, which struck down the licences as arbitrary and illegal and Saini’s acquittal, some pertinent points are raised:

Excerpts from the judgment delivered by Supreme Court Justices GS Singhvi and AK Ganguly during 2012 cancelling the licences allotted by A Raja on a first come first served basis:

“The exercise under taken under the leadership of the Minister (A. Raja) 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 (Raja) wanted to favor some companies at the cost of public exchequer.”

The apex court judgment went on: “Arbitrary action of the Minister (Raja) though appears to be innocuous was actually intended to benefit some of the real estate companies who did not have any experience in the dealing with the telecom services.”

“The manner in which the exercise for grant of LOI (letter of intent) to the applicants was conducted on January 8, 2008, leaves no room for doubt that everything was stage managed to favour those who were able to know in advance change in the implementation of the first-come-first-served principle.”

Excerpts from judgement delivered by CBI special trial court judge OP Saini on December 21, 2017 acquitting A Raja and others:

“There is no material on record to show that Raja was mother of conspiracy in the instant case. There is also no evidence of his no-holds-barred immersion in any wrongdoing, conspiracy or corruption. I have no hesitation in holding that record is not sufficient and the prosecution has miserably failed in proving charges. All accused are acquitted.”

The court has also raised questions on the charge sheet filed by the CBI and called the facts recorded therein “factually incorrect.”

The judge has said that 2G scam was all about “public perception, created by rumour, gossip and speculation” and that these can’t be relied in judicial proceedings.

“A huge scam was seen by everyone when there was none. These factors compelled people to conjecture about a big scam. Thus, some people created a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels,”

Judge Saini stated that the “prosecution has failed to prove the case miserably.” He holds that the chargesheet of the instant case is based mainly on “misreading, selective reading, non-reading and out of context reading of the official record.”

The special CBI judge also says that “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.”

Positions as opposite as north and south pole surely. Phantasmagoric chimera. The case falls off the cliff when it comes to establishing criminality. Truth be told, the same special judge OP Saini on November 4, 2011, while framing charges against A Raja in a 29 page outline of the conspiracy stated several things. The sentence began on page 2 and went on and one like a monologue,  with a full stop only on page 30. It explained the charge of conspiracy against Raja and others. There were 12 other charges, each one of them set in single sentences. They were set out in just five pages. In the same case in November 2011, Saini had, when everyone expected him to grant bail to Kanimozhi, the daughter of DMK supremo Karunanidhi, shocked everyone by dismissing the plea. The bail plea was on the grounds that Kanimozhi was a woman, and had been in jail for several months already. But Saini argued that she was an influential politician, and he could not risk witnesses getting intimidated if she was released.

Significantly, in late October 2011, the same judge had given us a peep into what was coming six long years later. The special court did not charge former communications minister A Raja and former telecom secretary Siddarth Behura with causing a loss to the exchequer by selling mobile licences below market rates in 2008, marking a major shift in the trajectory of the case. Judge OP Saini in his 500-page order remained silent on the alleged losses to the exchequer and instead shifted the primacy of the case to “criminal breach of trust and cheating,” which if proved, could lead to life imprisonment. “A bare look at Section 13(1)(d) PC Act makes it clear that loss to the state exchequer is not a necessary condition for prosecution of accused person for these offences, judge Saini’s orders said. His order further said that “loss or quantification of loss in exact terms was not the essential requirement of offence of criminal conspiracy to cheat or to commit criminal misconduct.” 

The order also added that it “may not be possible to determine (the loss)” or “to say that any pecuniary loss has been caused to state exchequer, though it may be apparent that undue pecuniary advantage has been gained by a public servant or private person due to misuse of office or due to corrupt or illegal means.”  The principal focus of the 2G scandal, associated with large-scale loot of state owned natural resources in public perception, was that Raja and other public servants caused huge losses to the exchequer by awarding mobile licences to ineligible firms at throwaway rates without using a market discovery mechanism. The case was sensationalised after CAG said that the swindle caused losses of up to 1.76 lakh crore to the exchequer. Media then hotwired it. The CBI, in its chargesheet filed earlier, had stated that the loss to exchequer was Rs 30,000 crore. CAG’s assumptions on numbers can be questioned for different models were used for these calculations and the end figure could have been over the top, but no one can deny the jiggery pokery that Raja and gang indulged in by repeatedly changing goalposts.

Safe to say that like no one killed Jessica or Arushi, justice may have been denied, more so if the sum of political arithmetic in the south has to be arrived at. But the BJP’s main plank of large scale corruption by the UPA is coming unstuck. After all, we are all underlings.

Sandeep Bamzai