2G scam verdict reflects systemic failure at large

In a sensational and shocking order, a special CBI court exonerated all 17 accused, including former communications minister A Raja and Rajya Sabha MP Kanimozhi, the daughter of DMK chief M Karunanidhi, in the infamous 2G spectrum case. Special Judge O P Saini while clearing them said, "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."

It is not just that Raja and all other accused have been acquitted, but the manner of acquittal and the judge's stinging criticism which accompanied his ruling are causes for serious concern. The verdict must be seen first and foremost as a failure of our bureaucratic process, a severe indictment of country's premier investigating agencies and a failure of the government's prosecutors to make out a winning case in court.

After all, the judge poured scorn on almost every arm of the government that played a role in the 2G scam. Even the Prime Minister's Office during the UPA regime did not escape blame about its manner of dealing with Raja's letter explaining the changed criteria for licence allotment.

It was not just a jolt to the government, the prosecution agency CBI also came under scathing attack for its sloppy investigation. Questioning its ways of collecting evidence, the special judge quoted a Supreme Court (SC) verdict of 2004: "A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy".

In other words, the court indicted the agency for relying on "conjectures and speculations alone". Its lawyers, too, earned the wrath of the special judge for not being able to substantiate what investigators claimed in the charge-sheets.

The scam had rocked the telecom industry in 2011 and cost the UPA dearly in the 2014 Lok Sabha election, just as the Bofors scandal led to the defeat of the Rajiv Gandhi government in the 1989 election. However, beyond political implications, the baffling nature of the judgement does little to justify the changed norms under which the licences were given in an orchestrated "first come-first served" basis and flies in the face of what the SC itself said about the case in 2012 while cancelling 122 licences which were issued illegally. Moreover, the serious issue of whether the former prime minister was misled by the then communications minister was not even considered by the court simply because no material was placed on record.

Judge Saini's outright dismissal of the prosecution case as nothing more than "rumour, gossip and speculation" goes to the very heart of the infirmities that have come to overload our public institutions. His elaboration that "public perception has no place in judicial proceedings" is a bracing slap on the face of many in the superior judiciary who tend to work "national conscience" and similar perceptual constructs into their judicial reasoning. The common man might even see the apex court's cancellation of 2G spectrum licences as a blatant case of overreach.

Notional reality

The issue shows the failure of successive governments and institutions at large. It is a moot point whether the verdict is a total vindication of the UPA government because, subsequent to the court's cancellation of licences, a fresh auction process was held which brought in substantial revenue to the government. It would be fair to conclude that there was a loss to the exchequer due to the questionable methods of allocation. But what has not been proved is whether the graft actually reached the politicians or bureaucrats, who are not blameless as a reading of the verdict indicates.

A war of words is still going on between UPA and NDA partisans over the verdict and its political ramifications. That war among politicians will continue and will further intensify till 2019. But there are significant lessons to learn for all those who preside over our institutions. Former CAG Vinod Rai's twisted logic produced a figure of Rs 1.76 lakh crore loss to the national exchequer. This was only a notional loss but it lodged itself in the national imagination as an act of ethical wrongdoing on a large scale.

Arguably, the process was abused by the politician-bureaucratic axis, but CAG, too, didn't play his card well. He subjected the polity to great convulsions; in the process, the nation got a bad name globally, resulting in huge unquantifiable losses in terms of business and investment. Now, the acquittals by the special court has further muddied the waters. In such a grim situation, the CBI's appeal against the verdict needs to do much better than the shoddy investigation it conducted in the past six years.

The Centre has declared that it will appeal the verdict, but politically, it is now on the back foot. It is also crucial to remember that in 2012, the SC cancelled 122 licences of eight telecom companies on the basis that the process of allocation was flawed.

The telecom sector has seen massive upheavals since then, with several firms exiting the business, thousands of jobs lost and tens of thousands of crores worth of assets stuck. Who is to be held responsible for this? The big question of whether there was indeed a revenue loss to the government needs to be decided and this can be clarified only if the latter chooses to appeal in a higher court.

Over and above, the more pressing task in front of the government right now, particularly in view of its crusading anti-corruption stance, is to fix the flaws that have been exposed in the bureaucratic policy and decision-making process, and to comprehensively overhaul its investigative agencies, especially the CBI, in order to avoid facing similar embarrassment in the future.

(The writer is an advocate at Delhi High Court and Supreme Court)