2G Case: Leave Alone The Scam, Even The Acquittal Reeks Of UPA

The 2G verdict by the Central Bureau of Investigation (CBI) judge, OP Saini, has attracted a lot of attention for the way the accused have been let off, even though the 2G scam was considered to be real enough and that the Supreme Court (SC) had actually cancelled 122 licences of telcos in 2012.

The judgement by CBI court judge Saini seems poorly argued and one that does not appreciate vital evidence. In one instance, it even seems to rule against the SC decision on the same issue. Some of these instances have been hotly debated in the media and on social media since the judgement was delivered by judge Saini on 22 December. This post attempts to structure some of the issues arising out of the judgement.

What did the Modi government do after 2014?

An argument has been made that the chargesheet was filed in 2011 and that it was primarily this inadequate chargesheet and faulty prior investigation that allowed the accused to be let off. However, others have asked what the Modi government has done after 2014 if this was indeed the case.

The 2G case was being monitored by the SC, including appointment of prosecutors.  The investigation work was completed in 2010-11 and chargesheet was filed in 2011.  The CBI between 2011 and 2014 had built its entire case, with filing of evidence and other documents. It is important to remember that no new investigation was ordered in 2014 when the government changed. For the trial court,  it was a continuing case since 2011 and not a new case with new investigation or with evidence discovered from scratch. The change in the political party leading the government meant nothing for the trial court since ostensibly it was dealing with a government agency in continuum. This has an important bearing on what happened after 2014.

Between 2011 and 2014, the CBI had filed multiple documents and evidence and at various junctures. Now it is a settled judicial doctrine that the prosecution must in advance reveal to the accused the charge they are making so that the accused have an opportunity to prepare their defence. In exceptional circumstances, additional documents or evidence or supplementary chargesheet can be brought in. However, it cannot be an endless practice and the SC has ruled as much. Why is that so? So as not to prejudice the defence of the accused by endlessly filing new material and compromising their defence. Now for the trial court, a lot of material had already been filed by 2014. Hence, when the government changed and it sought to file fresh material, the court frowned but allowed only once in August 2014. When the government tried again in February 2015, the court expressly refused. So, essentially, the trial was entirely based on material evidence collected and framed before 2014.

Below are extracts from the 2G judgement affirming the same.

There is an additional point of note here, which pertains to the material and conduct of CBI before 2014. Ashwani Kumar was CBI chief from 2 August 2008 to 30 November 2010. This was a crucial period as it was during his tenure that the initial investigation was delayed, the court has recorded in its judgement. From 30 November 2010 to 30 November 2012, A P Singh was the CBI chief.  It was during his tenure that the end of investigation was done but in a manner that the court has now decided not to consider that evidence. Also, the chargesheet was filed and initial documents and evidence produced during Singh’s tenure. From 3 December 2012 to 2 December 2014, Ranjit Sinha was the CBI chief. Now, all of these names are important. How?

Kumar was made governor of Manipur and Nagaland after his retirement as CBI chief. The next chief, A P Singh, is now an accused himself and facing CBI probe in a case of corruption along with meat exporter Moin Qureshi. And what about Ranjit Sinha? He was in fact barred by the SC from the 2G case in November 2014 because of allegations of an attempt to scuttle it.

So, every CBI chief under UPA era, during the time frame of the 2G case, has some suspect antecedents. As for what Modi government did in the 2G case after taking over, remember, the only time it was allowed to file any fresh documents was in August 2014. At that time, Sinha was still the CBI chief. Just two months later, the Supreme Court asked him to keep off the case for trying to scuttle it. After Sinha’s retirement, when the CBI tried to file fresh material in 2015, the CBI judge disallowed it.  So essentially, as the case stood, all the material and evidence on the basis of which the 2G judge ruled, was from the UPA era and in tenures of people with suspect antecedents.

Faulty investigation and how it compromised evidence

We have already seen the kind of CBI chiefs that were there while the UPA was in power. But what impact would evidence collected (or not collected), and the process followed in that period, would have on the judgement? Just one example would suffice. Additional P S to Raja became an important witness in the case and he testified in court (and not in front of police) that Raja used to meet the other co-accused in the conspiracy, some of them as many as 20 times and more during the months that the scam was perpetrated. But what did the CBI judge do with this testimony? Read the extract from the judgement below and why the court said his testimony is of no value. We have seen the antecedents of both the CBI chiefs during this period when the delay took place.

Questionable findings by 2g judge

The crux of the charge against Raja was that he changed the cut-off date for 2G licence application from 10 October 2007 to 1 October 2007 to benefit one company. The SC had already ruled on this in 2012 and found it arbitrary and capricious.  Curiously, the 2G judge now has found that there were good reasons for this change. This seems rather strange, for a trial court to rule on a subject matter already decided by the SC ! Below is an extract from the judgement of the trial court.

However, the SC judgement in 2012, in which it had cancelled the 2G licences, had clearly ruled that this exercise was capricious and with the intent to benefit one company. Below are extracts from SC judgement in 2012.

The role of the PMO, Manmohan Singh and an “Unknown Hand’

The 2G court of judge Saini has made scathing remarks against Manmohan Singh’s PMO officials – Pulok Chatterji and TKA Nair. The court has found that Raja was very clear what he wanted to do, but Chatterji deliberately misinformed Singh so that the scam could take place. In essence, Raja had written letters to Singh informing him that licences would be issued to those who made DD payments by the cut-off date (and cut-off date was arbitrarily brought forward so that those who were aware of it in advance could comply while the rest were unable to do it). This was the crux of the scam. However, as per the court,  Chatterji misinformed Singh, therefore allowing the scam to take place, and only when the scam became national news did he go into damage control. Below are extracts from the court’s findings.

Now, who is Pulok Chatterji? He has a long history of association with the Gandhi family, serving in the PMO of Rajiv Gandhi and then in Rajiv Gandhi Foundation and then as an officer on special duty to Sonia Gandhi. The media has consistently described Chatterji as a family loyalist, when he was appointed as additional secretary in UPA-I and when he became principal secretary in UPA-II.  So the question is, whose loyalty and interests was Chatterji serving when he concealed information from Singh, as the CBI court judge has found? And if Singh was actually misled or was completely unhappy with the events of 2007-08, why did he allow Chatterji to return in 2011 at an even higher grade, this time as head of the PMO?

What Happens Now?

The CBI has already come out with a statement that it will appeal the case. When the case will go for appeal, the government/CBI will have the liberty to argue the case from the start (not trial but fresh arguments without history of previous arguments under the UPA). The CBI will also have independence to appoint a new prosecutor. Evidence of eyewitnesses and approvers discarded by the 2G judge for mere technicality, will be argued again. The fact that the trial judge has apparently ruled against the SC finding will surely be noted in appeal. All this makes a strong case for appeal and possible overturning of the judgement. And finally, the light thrown by the CBI judge on the role of the PMO can also be looked at.

This piece was first published on Akhilesh Mishra’s blog and has been republished here with permission.