The Fall Guy? The Merits Of A Raja’s Defence

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In court, the former telecom minister has trained his guns on his Cabinet colleagues. Ashish Khetan assesses his arguments

Photo: AFP

THE TELECOM scam, now infamously known as the 2G scam, is not only extremely complex and multi-layered, it also involves a spectrum of dimensions—ethical, governmental, political, technical and what will eventually matter in the court, the legal and evidentiary dimensions. More often than not, the discourse on the 2G scam—as debated in the media, in political circles and in coffee houses—is a mish-mash of all of the above, leaving the man on the street angrier and more confused.

Both the BJP and CAG have claimed that the 2G spectrum should have been auctioned and had it been done so, the exchequer could have been richer by Rs 1.76 lakh crore. The incumbent telecom minister Kapil Sibal has, on the contrary, asserted that there had been zero loss from the allocation of 2G spectrum done during the UPA regimes.

This week the disgraced former telecom minister and lynchpin of the scam, A Raja, gave yet another dimension to the ongoing 2G case by dragging in the prime minister, finance minister and the attorney general in the telecom muck, claiming that the scandalous telecom policy had consensus within the government and he is just the fall-guy. Raja called the Comptroller and Auditor General (CAG) Vinod Rai, who had sensationally pegged the scam at the mindboggling figure of Rs 1.76 lakh crore, as a legal illiterate. He accused the CBI of being selective and vindictive.

He also suggested that companies like Tata and S-Tel, which also made windfall gains from the spectrum allocation done by his ministry, have been spared.

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The opinion board

Some more assessments of A Raja’s allegations

Rajeev Chandrasekhar
MP, Rajya Sabha

On the complicity of big names

“Since the CBI hasn’t completed its chargesheeting, it is difficult to comment on its selectiveness. It is clear from documents that there are many other big actors whose complicity in the scam can be proved. Government decision-making and checks and balances would not have permitted any rogue action like Raja’s to be invisible to the Cabinet, law officers and the senior bureaucracy”

Prashant Bhushan
Senior Lawyer & Petitioner, 2G PIL in the SC

On the CBI being selective

“Yes, it has been selective. In fact, we have filed an affidavit regarding the solicitor general’s role. In my mind, Goolam Vahanvati is clearly involved in this conspiracy”

Paranjoy Guha Thakurta
Senior Journalist & Petitioner, 2g pil in the sc

On the CBI being selective

“The investigation is not over; more chargesheets will be filed, and therefore, I would like to believe that the CBI will not be selective in its investigations and would investigate the role of everybody concerned in the 2G scam”

KTS Tulsi
Senior Lawyer

On the possible involvement of P Chidambaram

“These things depend on the fine print. Only after the court examines the evidence, will it be in a position to decide on anyone’s involvement. It is not possible to say anything at this stage”

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As the 2G narrative gets more muddled, what is the unadulterated truth? Is there any merit in Raja’s arguments? Is he being made the fall guy? Has the CBI been selective in collecting and interpreting the evidence, adopting a policy of pick and choose while arraigning the accused, nailing the expendables and covering up for the powerful?

Or is Raja obfuscating the facts?

The moot question before the nation today is whether Manmohan Singh and Chidambaram should also be made co-accused with Raja? After all, as the Opposition has argued, the 2G scam happened right under the nose of the PM and the buck stops with his office. Also, should Attorney General Goolam E Vahanvati be arraigned as hinted by Raja? And should companies like Tata be booked for making staggering profits by way of dilution of equity at astonishing prices to foreign telecom players, just like Swan and Unitech?

As always, the devil lies in the details.

What’s the evidence, if any, against Manmohan Singh and Chidambaram?
In the chain of letters exchanged between Manmohan Singh and Raja in November and December 2007, just around the time when Raja was giving final touches to the alleged scam, Raja had repeatedly assured the prime minister that all his decisions were completely transparent and there was not a single deviation or departure from the established procedures.

From the exchange between Singh and Raja, it becomes clear that the PMwas concerned about the policies and procedures with regard to new licences. He listed a host of telecom-related issues and asked Raja to ensure fairness and transparency in dealing with them. Two issues in particular were emphasised by the PM: How to process a large number of applications against the backdrop of inadequate spectrum? And, how to determine the correct price of the 2G spectrum while keeping in mind the interest of the common man?

Singh, in his letter dated 2 November 2007, wrote, ‘In order that spectrum use efficiently gets directly linked with correct pricing of spectrum, consider introduction of a transparent methodology of auction, wherever legally and technically feasible, and (ii) revision of entry fee, which is currently benchmarked on old spectrum auction figures.’ The same day, Raja wrote back that auction of the 2G spectrum would be ‘unfair, discriminatory, arbitrary and capricious’ as it will not give new players a ‘level playing field.’

Since everything that Raja did is now viewed with suspicion, the final choice he made of not going for open bidding and instead opting for a first-come-first-served (FCFS) policy has been dubbed a scam.

The question is: was Raja’s decision of FCFS grounded in sound reasoning and justifiable facts?

The licensing and spectrum allocation policy has been guided by the National Telecom Policy of 1999, which was approved by the Union Cabinet during NDA’s tenure. One of the key features of this policy was that the Telecom Regulatory Authority of India (TRAI) was empowered to determine the entry fee and the basis of selection of additional operators.

When this policy was formulated in 1999 there were only two players in each telecom circle (the country is divided into 22 such circles). The new policy opened the doors for new players.

The licence fee was divided into two components—one was entry fee and the other was annual licence fee and spectrum usage fee which was a fixed percentage of adjusted gross revenue (AGR) earned by each player. As per this policy, existing players migrated to what came to be called as revenue sharing regime. Government PSUs MTNL and BSNL were made the third operator in each circle.

For the entry of the fourth operator in each circle, bidding was carried out in 2001 for determining the upfront entry fee. The annual licence fee and spectrum usage charge were to be determined separately, based upon AGR.

Since the telecom sector was still in nascent stage in India, in a few circles like Bihar, Odisha, West Bengal, and Assam, no bidders came forward or very few did. After the auction, Rs 1,658 crore emerged as the entry fee for a pan-India licence.

From then till March 2007, the DoT continued to issue new mobile phone licences at the 2001 prices on the FCFS basis. The total number of licences issued between 2003 and 2007 were 51 as against the 122 licences that Raja granted in 2008 in one fell swoop (Raja had processed 332 applications, out of which 110 were rejected while 122 were approved).

In 2007, there was an avalanche of new applications; basically spurred by the realisation in the industry that spectrum was a scarce resource and soon there would be no spectrum up for grabs.

On 28 August 2007, the TRAI recommended auction as the route for allocating 3G spectrum but in the 2G bands (800, 900 and 1800 MHz), it said, ‘the allocation through auction may not be possible as the (existing) service providers were allocated spectrum at different times of their licence and auctioning might raise the issue of level-playing field.’

In the view of this clear TRAI recommendation, the CAG’s calculation, pegging the scam at Rs 1.76 lakh crore, becomes deeply problematic. CAG’s calculation was primarily based on the revenues earned by the government from 3G auction. The DoT has time and again argued that the CAG had no locus standi to object to the government’s stated policy of not auctioning the 2G spectrum, which was devised to enhance competition among telecom companies so that, consequently, call tariff could be drastically reduced.

That’s the single biggest reason why CAG’S calculation of the staggering notional loss arising out of the 2G scam has been discarded by the CBI.

While rejecting the proposed auctioning of 2G spectrum, the TRAI, however, had recommended revision of the existing entry fee which at the time was based on 2001 auction price.

Between 2001 and 2007, the adjusted gross revenue of telecom companies had increased by 3.5 times. The CBI in its chargesheet has noted: ‘The telecom sector had undergone tremendous growth and parameters like teledensity and AGR had undergone phenomenal rise since 2001.’

The CBI has thus charged Raja with not revising the entry fee and thus causing a loss to the exchequer to the tune of Rs 30,984 crore.

The PM in his letter dated 2 November 2007 had clearly asked for revision of entry fee to be considered as an alternative to auction. So, why did the PM later did not press Raja for revising the entry fee? What did Chidambaram in his capacity as finance minister do to stop the scam? Clearly, the licence and spectrum pricing involved wider financial implications and as per the Government of India (transactions of business) rules, the matter came under the purview of the finance ministry.

Actually, the finance ministry under Chidambaram sent Raja’s ministry a strongly worded letter dated 22 November 2007 asking for an immediate review of the entry fee. Moreover, Member (Finance) working within the telecom ministry, also endorsed the finance ministry’s contention. But Raja obstinately overlooked all these suggestions and went ahead with his scheme of things.

Even in his written replies to the PM, Raja, while ruling out the auction route remained suspiciously quiet on the PM’s alternative suggestion that entry fee should be revised.

Does the act of PM and FM of not prevailing upon Raja to revise the entry fee make them criminally culpable?

The prime minister has the power to call for any file from any department and set up an EGoM, as Raja has correctly argued in court. But eventually, as the PM has said in his defence, he reposed his faith in Raja’s good conscience. The CBI has blamed Raja for misleading the PM and breaching his trust.

 

Certainly, both Singh and Chidambaram were acutely conscious of the wider financial implications involved in the matter and should have done more to prevail upon Raja to revise the entry fee.

While one could make a case of moral responsibility against the duo, the investigation so far has not thrown up any evidence which would suggest that they, by any act of omission or commission, facilitated the scam.

Legal experts will tell you that most crimes have two cornerstones —mens rea (criminal intent) and actus reus (criminal action). That is, the evidence of both criminal intent and criminal action are required to prove a person guilty of a crime.

THE CBI in its chargesheet has documented a body of evidence against Raja to establish that his actions were motivated by a criminal intent, which was to provide wrongful and illegal gains to Swan and Unitech (till date only these two mobile companies have been charged while the investigation against other players is still on) and thus willfully and illegally made such decisions which benefited these companies and therefore his actions become criminal actions.

According to the case built by CBI, Raja manipulated the priority list of new applicants and cut-off dates in a way that Swan and Unitech could jump the queue and get licences and spectrum ahead of others. As part of the conspiracy, Swan and Unitech had already been alerted about the new priority criterion (which was in principle made public only on 10 January 2008) and had accordingly kept the demand drafts ready. Swan had got the draft made in early November 2007, while Unitech had kept it ready since October 2007.

To prove its point, the CBI has recorded statements of several key DoT officials who have testified that Raja and his Personal Secretary RK Chandolia took unwarranted interest in the applications of Swan and Unitech and passed illegal oral and written orders to favour them.

While Swan and Unitech attracted FDI on the strength of licences, it was not a criminal act

Raja even defied the then Law Minister HR Bhardwaj’s suggestion dated 1 November 2007 which is duly recorded on file, to refer the issue of new telecom licences and cut-off date to an empowered group of ministers. He instead brushed aside Bhardwaj’s suggestion, calling it as being ‘totally out of context.’

Also, Raja violated several key TRAI recommendations, including not capping the number of new telecom players. Besides, the applications of Swan and Unitech were in violation of several UASL guidelines and ought to have been rejected but Raja deliberately blinked.

Based on a body of direct and circumstantial evidence, the CBI has built a strong case of criminal intent and criminal action against Raja, Swan and Unitech. Several key DoT officials, in written statements to the CBI, have condemned Raja. Reams of DoT files, which now form the bulk of material evidence in the case, have Raja’s notings and signatures. All go to show that it was Raja who was in the driving seat of decision-making and implementation. What further strengthens the CBI case is the money trail of Rs 200 crore which Shahid Balwa’s companies routed to DMK-promoted media company Kalaignar TV. The money, the CBI claims, was a kickback given to DMK in the guise of a business loan.

The question which now arises is: can a similar case also be made against Manmohan and Chidambaram? Could it be argued that Manmohan and Chidambaram were also in league with private telecom players? Or could it be proved that in the very least, Manmohan and Chidambaram had acted in conjunction with Raja as facilitators in the conspiracy? Is there a money trail between the telecom players and Manmohan and Chidambaram or for that matter the Congress Party? So far, the answer is clearly no. As much as the moral and final responsibility rests with the PM, the two basic elements of a criminal conspiracy—criminal intent and criminal action—are absent in Singh’s case and as well as that of Chidambaram.

Major headache: PM Manmohan Singh has been targeted by Raja
Major headache: PM Manmohan Singh has been targeted by Raja, Photo: AP

Does dilution of equity by new entrants to foreign players constitute a crime?
Swan, Unitech and many other new players raised fresh capital by diluting their respective equities to foreign players. Swan raised around Rs 3,600 crore by offloading 49 percent equity to Dubai-based Etisalat Telecom. Similarly, Unitech offloaded 67 percent equity in favour of Norway-based telecom major Telenor and raised an investment of Rs 6,120 crore. The Prime Minister had once remarked that new entrants needed fresh equity infusion to expand their businesses.

The media has often dubbed this FDI as ‘windfall gains’ made by new telecom players. However, the facts of the case tell a different story.

The new players made windfall gains by not paying the requisite and justifiable entry fee. The dilution of equity is a common business practice followed globally by businesses in need of investments required for expansion.

In fact, the issue of dilution of equity doesn’t figure among the list of criminal offences laid out by the CBI against Swan and Unitech.

So, as far as Chidambaram approving the issue of fresh equity raised by Swan and Unitech is concerned, the same doesn’t fall under the purview of any conceivable offence.

But the CAG bracketed the FDI as windfall gains. Businesses are driven by the objective of maximising profits. It’s the illegality in any profit-making deal that would qualify as an offence, not merely the fact that a company’s net worth was enhanced by virtue of spectrum allocation.

So while it’s true that Swan and Unitech could attract foreign investment only on the strength of licences and spectrum allocated to them and as a result their net worth went up, it didn’t involve any criminal offence.

Thus, the criminal conspiracy was not about raising fresh equity, which every commercial venture needs to expand its business; it was about not raising the entry fee and fraudulently allocating the licences and spectrum to a chosen few.

Swan was allocated spectrum in cash rich circles like Delhi by distorting the existing procedures and shortchanging the eligible telecom companies. Unitech too got spectrum ahead of other qualifying companies. It’s this fraudlent spectrum allocation that lies at the core of the conspiracy.

Was the attorney general Vahanvati working in conjunction with Raja?
The role played by the then solicitor general GE Vahanvati’s reeks of suspicion and malicious intent, as senior Supreme Court advocate Prashant Bhushan has argued before the apex court.

The press release prepared by Raja, which Vahanvati approved, had three main elements: putting a cap on the number of entrants (which was a violation of TRAI guideline); arbitrarily advancing the cutoff date from 1 October 2007 to 25 September 2007 and; changing the FCFS basis. Raja made a small amendment in the press release approved by Vahanvati but all the intrinsic elements were retained. The fuss made by the CBI around this change seems more a stratagem to clear Vahanvati than to make a substantial charge against Raja.

The fuss made by the CBI seems more a stratagem to clear Vahanvati than to charge A Raja

The essence of the press release was retained. Raja deleted just two lines and then signed and stamped it himself. For the CBI to say that Raja forged the press release and hoodwinked Vahanvati sounds specious. No wonder Raja is exploiting the lacunae in the CBI investigation as far the role of Vahanvati is concerned. In court, Raja raised a seemingly credible question: What stopped Vahanvati over the last three years from objecting to the minor change made by Raja? It was in the public domain. In fact, the evidence suggests that Vahnavati had full access to DoT files.

The fact of the matter is that Vahanvati had approved all the major decisions of the DoT under Raja, as Bhushan has claimed in the affidavit to the Supreme Court. The complete file (File No.20- 100/2007-AS-I) relating to allocation of 2G licences was sent to Vahanvati for his approval on different occasions. Vahanvati in his statement to the CBI has admitted as much. Bhushan has argued, ‘From the said file it is clear that Vahanvati was clearly aware that a reference for law officer’s opinion was sent by Raja to Law Ministry, and the fact that Ministry had rejected the reference and instead asked that matter be referred to EGoM.’

Roles questioned: P Chidambaram, then finance minister, and legal eagle GE Vahanvati
Roles questioned: P Chidambaram, then finance minister, and legal eagle GE Vahanvati, Photos:Shailendra Pandey, Fotocorp

Vahanvati was also aware that the very basis of FCFS had been changed and was made in compliance with LoI conditions. Also Vahanvati must have been aware that while the DoT had proposed to put no cap on the number of new telecom players, it had simultaneously decided to fix a cutoff date.

Despite knowing all this, Vahanvati went out of his way to write on the file on 7 January 2008 that what was proposed was ‘fair and reasonable’ and cleared the press release as it ‘makes for transparency’.

The fuss made by the CBI seems more a stratagem to clear Vahanvati than to charge A Raja

What raises further stink on Vahanvati is the fact that he gave a clean chit to Swan. He had noted on the file related to Swan that he had examined the matter and there was no violation of clause 8 of UASL guidelines by Reliance, and thus Swan was eligible. He had also stated that there is no need to refer the matter to the Ministry of Corporate Affairs.

The Supreme Court is now seized of the application moved by Bhushan against Vahanvati. Its outcome may answer the question of CBI’s selectiveness in its investigation, at least in the case of the top law officer of the government.

Ashish Khetan is Editor, Investigations with Tehelka.
[email protected]

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