The over 1,500 pages judgment by a trial court on Thursday acquitting all 19 accused, including former Telecom Minister A Raja and DMK MP Kanimozhi, in the 2G spectrum scam cases, overtly ignores the incriminating remarks of the Supreme Court in its February 2, 2012 ruling, in which Justices GS Singvi and AK Ganguly had cancelled all the 122 telecom licences at one stroke thus indicting Raja in the case.

“The exercise undertaken 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 the equality...

“The material produced before the (apex) court shows that the Minister (Raja) wanted to favour some companies at the cost of public exchequer,” said the verdict delivered by the SC.

The SC ruling — which came in response to a Public Interest Litigation, filed by Subramanian Swamy and Prashant Bhushan, seeking answers to whether the Government had a right to distribute natural resources in a manner that was not “fair and transparent”, and evidence submitted by them and by CBI and Enforcement Directorate (ED) — went on to say, “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 the telecom services.”

Keeping in view the SC observation, it is intriguing how come a trial court judge’s verdict simply claims the evidence provided were insufficient to prove the criminality of the accused. If the same documents convinced the SC, then how is that they failed to convince the trial court?

Delivering the judgment, the trial court judge, OP Saini, cleared all the accused of all charges. Also, he declared that there is no convincing evidence against the accused.

Saini’s observation is in contrast to what he had observed in his own judgment on February 4, 2012. He had then said he “has enough evidence to prosecute Raja”. This assertion was made on the petition by Swamy to prosecute then Finance Minister P Chidambaram for engaging in conspiracy with Raja in the price fixing and approving the licences. In that judgment, the trial court judge had given a clean chit to Chidambaram, saying that Swamy had failed to prove the criminality of Chidambaram, but he had conceded that there was enough evidence to prove the criminality of Raja. The judgment agreed that the documents provided by Swamy showed that Chidambaram and Raja together fixed the base price for the controversial allotments of the 2G spectrum.

Was it Swamy’s job to prove Chidambaram’s criminality? It would have been fair if the judge or the apex court ordered the CBI to verify Swamy’s charges against Chidambaram.

Anyway it is an open secret that courts won’t so easily go against top sitting powerful Ministers after the landmark Allahabad High Court judgment against then Prime Minister Indira Gandhi led to the imposition of Emergency.

Now, the moot question is how the set of evidence to establish Raja’s criminality as detailed in the February 4, 2012 judgment by Saini became so unconvincing that the same judge acquitted Raja of all charges about six years later. Moreover, the trial court not just ignored the SC ruling and evidence, but it vent ire against the prosecution.

Being a regular visitor to the 2G Court, I have witnessed Judge Saini praising the SC-appointed Special Public Prosecutors (SPP) UU Lalit and Anand Grover on many occasions. He had even agreed to add charges under Breach of Public Trust against Raja and other accused on the recommendation of Lalit.

Lalit led the majority part of prosecution till August 2014, after which he was elevated as a SC Judge. Grover took charge from September 2014 and led the final arguments. Many times I have witnessed the Judge fully agreeing to and appreciating the arguments and evidence put forward by Lalit and Grover.

I have seen the appreciation by Judge Saini on deposition of star witnesses, like the 2G scam whistleblower Aseervatham Achary and then TRAI chairman Nripendra Mishra, currently Principal Secretary to Prime Minister Narendra Modi.

Considering all these, it is shocking to find his observation that he “waited all these years for evidence”. This catchphrase looks similar to the dialogue of the Judge character in the famous sarcastic movie on judicial system — Jolly LLB.

It is interesting to note in the judgment, Judge Saini says Nripendra proved that Raja violated the TRAI Act.

What was proved by Nripendra?

He proved during his deposition that among the 122 licences allotted, 85 belong to new companies, including the shell companies of real estate companies owned by accused like Shahid Balwa, Vinod Goenka and Sanjay Chandra. As per the TRAI Act, it needs TRAI’s mandatory clearance to allow a new firm to operate in telecom sector. This violation was the crux in the SC judgment.

This was the major evidence cited in the CAG report and CBI’s charges. And during his deposition also then TRAI chairman Nripendra proved it, says Judge Saini in his controversial judgment. Then how is that he acquitted all by complaining about the lack of evidence?

The judgment also simply ignores the deposition of whistleblower Aseervatham Achary to give clean chit to Raja and Kanimozhi. The Judge says as Achary had political ambitions, therefore, his deposition cannot be taken at face value. Is having political ambition a crime? How can one ignore that the facts provided by CBI were corroborated by Achary’s deposition?

What is the basic of 2G scam and evidence provided?

1. Raja allotted telecom licences in 2008 at a price fixed in 2001 by violating the Cabinet decision of October 2003 and TRAI recommendations. In 2001, there were only three million mobile users and in 2008 the number of mobile users surged to 360 million. So he made a gross loss to the exchequer by indulging in favouritism.

2. Raja preponed the last date of application from October 1, 2007 to September 25. How can he prepone? On January 10, 2008 (scam day) at 2.30 pm, the Telecom Department issued a controversial press release on this controversial decision.

3. The Press release also said all operators have to pay the licence fee ranging up to Rs 1,658 crore in demand draft between 3.30 pm and 4.30pm on the same day! How can you make high value demand drafts in an hour and rush from banks to the Department of Telecom.?

4. The CBI and the CAG found all these demand drafts were made well in advance and some companies a week ago. This clearly shows that all the preferred companies were given information in advance. If this is not criminal conspiracy, then what is criminal conspiracy?

Achary in his deposition corroborated evidence saying the accused players were in touch with Raja on regular days before the scam day January 10, 2008.

5. The CBI and the ED gave crystal clear bank transaction evidence of Rs 200 crore kickbacks to DMK MP Kanimozhi-controlled Kalaignar TV by Swan Telecom owners in circuitous transaction. The money transferred between 2008 and 2009 was all of a sudden returned through banking channels hours after CBI summoned Raja in December 2010. Is this not an evidence of kickbacks, then what more proof the CBI and the ED can give? If this is not convincing to a Judge, what more we can say? As the laws on contempt of court implies strong provisions let me limit myself to say this is a bad judgment.

The Government, the CBI, the ED and Chief Prosecutor Anand Grover should immediately challenge this judgment by filing an appeal in the Delhi High Court. There should be a well-coordinated strategy in filing appeal to bring justice in this grand loot of 2G scam. Appeal hearings should be conducted on daily basis to avoid the case being dragged for years.

We have seen frauds committed by then tainted CBI director Ranjit Sinha in mid-2014. He was removed from the 2G scam probe by the SC, and now he is facing investigation in trying to sabotage the coal scam. Most of the accused were caught paying clandestine visits to his home at nights.

There are many such hurdles faced by investigators. ED’s Investigating Officer Rajeshwar Singh is still facing all kind of hardships created by the corrupt politicians and corporates. Many times, the SC has warned the Government on this. Recently also attempts were made to shunt him out from ED as soon as after he attached Karti Chidambaram’s bank accounts in connection with the Aircel-Maxis scam.

We have seen the shunting of CBI Joint Director Ashok Tiwari to Himachal Road Transport Corporation for summoning Chidambaram in December 2014.

It is high time Prime Minister Narendra Modi fixed the investigation and prosecution in high-profile corruption cases where all sorts of unholy nexus work, including judicial fixing.

Niira Radia tapes remind us how some judgments were written by someone outside the judiciary and transferred in pen drives to certain judges concerned. These murky things have to end and it is the responsibility of the Modi-led Government which came to power on the promises to fight against corruption.

The 2G trial court judgment is black chapter in the history of judiciary. This judgment shows how crony capitalism and corrupt lobbies survive and escape prosecution despite foolproof incriminating evidence. There are many factual errors in the trial court’s judgment and I am doing forensic reading of this bad judgment to list it out. I will hand over the list of errors to the CBI, the ED and prosecutor Anand Grover.

I will do this duty as a citizen of this country. Fiat justitia ruat caelum. This famous Latin legal phrase means, “Let justice be done though the heavens fall.”

Let us be optimistic that higher forum of Indian judiciary will do justice and undo the bad judgment of the 2G trial court.

Note: This piece was first published in 'The Pioneer' here. It has been republished here with the full permission from the author.

Image Credits: ANI

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