Why High Court Should Reverse Trial Court’s Judgment on Subramanyam Swamy’s Petition to Investigate Chidambaram’s role in 2G Scam

Dr. Veena Srivastava

That 2G license allocation was unconstitutional  and   based on favouritism has been observed by the apex court leading to apex court ordering cancellation of 122 ,2G licenses. The apex court had taken this with so much seriousness that it ordered monitoring of the CBI investigation of the entire scam to be monitored by the Chief Vigilance Commission.  Obviously  the apex court could not show adequate confidence to deliver justice to CBI investigation without direct monitoring and supervision by the CVC. The proportion of scam is such that any mistake in documentation, evidence gathering could result in miscarriage of justice without separating monitoring and supervision of 2G scam investigation away from the Home Ministry. 

Who was the architect of the scam of such mammoth loss. The court trial against former Telecom Minister Mr. Raja, MP Ms Kanimozy, several bureaucrats and business magnates is already ongoing because the mala-fide intent, pecuniary benefits were in evidence through CBI raids.

Swamy’s case aims  at nailing  Chidambaram as co-accused in the 2G scam in the same way as Raja has been implicated. Swamy’s petition is not aiming to prove that Chidambaram is guilty. But prima facie evidence submitted by Swamy to apex court, thereafter passed on to trial court of Justice Saini, is recognized as valid documentary proof. The documents reveal that 2G license allocation decision was not exclusively the decision of Mr. Raja. It was a joint decision. The trail of memos between Ministry of Telecom, Ministry of Finance and PMO and direct one-to-one meetings between Raja and Chidambaram resulted in the implementation of 2G licenses. But the trial court has observes that merely meeting and sheer agreement with another colleagues need not amount to connivance for treating Chidambaram as co-accused in the absence of any incriminating evidence of indirect or direct pecuniary benefit.

Miscarriage of justice is in the following manner:

Firstly, meetings between two central ministers specially between Finance Minister and other ministers cannot be other than for formal business at least. This cannot be simply a pastime for socials. The business between these two ministers obviously must have been in the then prevailing context of 2G licensing even if the meetings were one-on-one. Further, it is not sheer coincidental agreement with the Telecom Minister on 2G allocation licensing. The intriguing question is why he did not disagree? When agreement is an aberration of thought, disagreement is as much an aberration.  What is left unexamined in depth in this case is why Chidambaram did not disagree with Raja when Finance Ministry officials had time   and  again opposed Raja’s proposal and the officials instead preferred the auctioning route. It is disagreeing with the officials – some of whom are experts in economy, revenue and expenditure, and agree with Raja only when there has been whistle-blowing in the media.. Even Law Ministry had opined otherwise against Raja’s proposed licensing policy. Why did Chidambaram seal his approval on the implementation of Telecom Ministry ‘s decision when Chidambaram finally wrote that “the chapter should be treated as closed.” Chidambaram, as Finance Minister acted against his role as custodian of Govt. of India’s funds by over-ruling his juniors repeated assertions to the contrary and agreed to go along with his seal of approval to Raja’s policy.   Such coincidence of meetings and joint decisions are not honest agreements, but smack of negotiated, strategically planned moves in politico-legal governance affairs.

Third, if the above details do not smell of accusation of criminal connivance for pecuniary or other benefits, at least this is a dereliction of duty. Knowing well that Chidambaram is a seasoned lawyer, politician, and minister of long experience, and not a novice in law, politics and Govt affairs, it cannot be fathomed that Chidambaram’s agreement with Raja was  an error of judgment, innocent unmindful decision, or an act of miscalculation of proportion of loss to the exchequer.

Fourth, Chidambaram, a seasoned minister, could not have allowed himself to be a victim of sweet bonhomie of political brotherhood of alliance partnership to let himself into a media attack by well-crafted strategic moves and safeguards.

Fifth, mala-fide intent and scope of pecuniary advantage come from the fact that Raja took the advice of Chidambaram to allow dilution of equity of the firms who were allotted 2G licenses and thereby allow windfall gain to such private parties. A company is allowed to dilute its equity by selling to other parties, indeed under corporate law. But this was not the matter of corporate law independent of spectrum allocation. A national asset like 2G spectrum being licenses to some allottees    without any re-sale of equity lock-in stipulated as one of the conditions of licensing. The logic of causing pecuniary gain to someone else by way of not fixing a lock-in period and thereby causing windfall gain to several motivated private parties is adequate logical explanation of criminality. For example, if Government of Haryana allotted   a piece of land to native of Haryana, but this allotment goes with certain stipulations that house construction must be taken within a period of time, that the land cannot be transferred without prior approval of the Govt body. Like rail ticket is non-transferable, all such asset transfers of public property are always subject to such stipulations. Could the minister Chidambaram not read the motive of windfall gain to allottees…..? If the licensees insisted, then,    their licenses could have been cancelled. These licensees were not social service institutions, had no past experience in telecom, therefore only likelihood was the windfall gain by selling  their shares  at ten times more prices.  The intent is very questionable.

The author is a free-lance writer and human rights   activist ,  Secretary,  [W.B.] All India Human Rights Association ,Delhi , and Director (India) World Peace Elite Association, Hong Kong.

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