Tuesday, February 7, 2012

Clean chit that raises questions

(First published in The Pioneer)


After a series of setbacks in the Supreme Court on various matters, the Congress finally found something to celebrate when a Delhi trial court on Saturday dismissed a petition to make Union Minister for Home Affairs P Chidambaram a co-accused in the 2G Spectrum scam case. While the party’s desperation to be happy is understandable, the various justifications that trial court Special Judge OP Saini has offered to extend relief to Mr Chidambaram is not that easy to understand. Since the petitioner, Mr Subramanian Swamy, will be challenging the verdict in the Delhi High Court, the grounds on which Mr Chidambaram has been let off will be explored in detail and contested in that court. We have to wait and see how that legal battle plays out. For now, we have Judge Saini’s ruling and his logic to comment upon.

Four things are well established over which there is no dispute. They form the basis for the allegations and counter-allegations that have been exchanged between those who believe Mr Chidambaram is accountable for the 2G Spectrum scam as much (or more or less) than A Raja, who presided over the loot as the then Union Minister for Telecommunication, and those who hold that Mr Chidambaram is not culpable in any way. The first point is that Mr Chidambaram had all along been aware of the fraud that Raja was indulging in. The second is that, as the then Union Minister for Finance, Mr Chidambaram could have prevented the licences (and the spectrum that came bundled with it) from being distributed at throwaway rates. Third, he made no effort to spike the deal which clearly would lead (and later did) to a massive loss to the national exchequer. And, fourth, not only did he did not prevent the fraud from taking place, he actually endorsed Raja’s action before the Prime Minister subsequent to several meetings that he had with the now incarcerated former Minister on the issue.

Mr Swamy has relied on and placed before the court a number of documents that substantiate the issues raised above. In the process, he has questioned Mr Chidambaram’s role in failing to take preventive measures that were well within the latter’s domain. But neither the Central Bureau of Investigation nor the Government accepts the interpretation. While not denying any of the four facts mentioned above, they have maintained that nothing in them proves Mr Chidambaram’s mala fide intent, and that being a party to a wrong decision does not automatically mean being criminally complicit or culpable. Judge Saini has gone by the latter argument which is nothing but a game of convoluted reasoning.

But, before we get to the relevant portions of the verdict, here is a question: How does one determine the action — bona fide or mala fide — of a person unless that action is investigated? We can, for a moment, set aside the contention by Mr Chidambaram’s opponents in the present case that he is criminally liable over his endorsement of an act for which Raja stands accused, and assume that criminal liability is far from proved as of this date. Even so, his action remains questionable and, hence, it should have been probed, if only to determine the presence or absence of his culpability. Not to even allow for such an elementary inquiry is tantamount to short-circuiting the process of natural justice.

That Judge Saini did not see anything wrong is evident from paragraph 67 of his verdict. Having earlier accepted the material on record to show that Mr Chidambaram had endorsed Raja’s decision on awarding licences to companies without having an auction, the judge said, “A decision taken by a public servant does not become criminal for simple reason that it has caused loss to the public exchequer or resulted in pecuniary advantage to others.” This begs the question: If causing loss to the public exchequer is not a criminal act, why is Raja behind bars? By Judge Saini’s logic, the former Minister has not indulged in any criminal act.

The judge then proceeded to build upon this bizarre premise when he explained, “There is no evidence that he (Mr Chidambaram) obtained any pecuniary advantage… There is such incriminating material against other accused persons, who stand charged and are facing trial.” Well, if there is incriminating material against those persons who face trial, it is because these people were probed into by the Central Bureau of Investigation. They did not willingly present incriminating material against themselves to the authorities. This is not to say that Mr Chidambaram is guilty of a criminal act, but such possibilities can be effectively ruled out only through an investigation and not because somebody believes that a bunch of documents does not serve to implicate him.

In paragraph 68, Judge Saini relied on a happy coincidence to boost his belief that Mr Chidambaram is in the clear. He observed, “There is no evidence on record to suggest that there was an agreement between him (Mr Chidambaram) and Raja to subvert telecom policy…” One has to be extremely na├»ve to expect ‘evidence on record’ — in the form of a notarised agreement, perhaps, between the two? — which points to a shady deal.

In the same paragraph, he then observed what the media has latched on to as a quotable quote: “A bit of evidence here and a bit there does not constitute prima facie evidence for showing prima facie existence of a criminal conspiracy.” We all stand corrected. We always thought that even a ‘bit of evidence’ against a person is good enough reason to investigate the charges against him or her, without in any way concluding straightaway that the person is guilty or has engaged in a criminal act or been part of a criminal conspiracy. Just an inquiry by the appropriate agency — is that too much to seek?

Judge Saini tied himself up in knots in the process of delivering the verdict in favour of Mr Chidambaram. Take these observations made in paragraph 65 of the judgement as an instance: “In a case of criminal conspiracy, the court has to see whether two persons are… acting together in pursuit of an unlawful act. One may be acting innocently and other may be actuated by criminal intention. Innocuous, inadvertent or innocent acts do not make one party to the conspiracy.” Judge Saini should have elaborated on how Mr Chidambaram’s act of endorsing a decision of the then Telecom Minister to gift 2G Spectrum licences to firms without an auction was an act of ‘innocence’.

The learned judge also ought to have told the country what was so “innocuous, inadvertent and innocent” in Mr Chidambaram’s refusal to scuttle Raja’s elaborate loot even when his own then Finance Secretary had strongly objected to the manner in which the licences were being doled out.

For that matter, Mr Chidambaram backed Raja on the matter even though some senior officials in the Department of Telecommunication and the Telecom Regulatory Authority of India had objected to Raja’s wrongdoings.

Finally, there are really two key issues that need to be understood: First, an allegation has been made that Mr Chidambaram is criminally culpable in the 2G Spectrum scam; and second, because it’s just an allegation it needs to be investigated so that the matter is brought to a closure either way.

It is hoped that the higher courts will settle these two issues in the coming days.

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