Trust Andimuthu Raja to keep pulling rabbits out of his hat. The prime accused in the 2G scandal, whose trial in the Special CBI Court of Judge OP Saini in Patiala House is half-way through, has now moved the Delhi High Court claiming his trial is unconstitutional and illegal.
In his petition, Raja says the charges framed by the Saini court against him are unfounded and untrue and hence they must be quashed.
Of about 122 witnesses, the Central Bureau of Investigation (CBI) has already paraded more than half of them. These witnesses were examined and cross-examined. The CBI is expected to finish prosecution arguments by December 2012.
Raja, in his petition, says that he wants the trial stopped because no court can prosecute him without obtaining sanction under Section 197 of Criminal Procedure Code (CrPC).
The petition rolls out Raja’s version of the truth, which, he says, was not appreciated by Judge Saini. He listed out reasons, numbered from A to Z, and going even further from AA to RR, why he is a wronged man.
Raja was a public servant at the time the UAS (unified access service) licences were issued. “The Learned Special Judge has specifically held that the petitioner (A Raja) was discharging statutory functions while allocating spectrum. Having so held, he has erred in failing to appreciate that no prosecution could be commenced without obtaining sanction under s. 197 CrPC… Thus, the requirements of section 197 are clearly fulfilled, and even cognisance could not have been taken in the absence of sanction. At any rate, the proceedings cannot continue in the absence of sanction.’’
This is the 'technical and tactical' defence. Raja then goes on to explain how absurd it is when the central government is maintaining that the loss on spectrum sales at 2001 prices was zero and yet he and 17 others were named as accused in 'one' conspiracy!
What charges does the court hold against Raja? The allegations pertain to non-revision of entry fee/non-auction of spectrum, fixation of cutoff date, alleged violation of the First-Come-First-Serve Policy, allocation of spectrum, and receipt of investment/loan by Kalaignar TV Pvt Ltd.
A Raja moves 10 major arguments in his defence:
- Raja says he allotted and priced 2G spectrum fully in conformity with the consistent policy of the Department of Telecom and the government. Successive governments have chosen to allocate telecom licences and spectrum on a basis other than revenue maximisation. “During 2003-2007, a total of 51 licences were issued by DoT. These were issued on the same terms and conditions as those issued by the DoT under the petitioner (Raja) in 2008.’’
- Raja has merely followed the decisions of his predecessors in this regard. If the petitioner has to be charged with cheating, then each and every communications minister since 2003 also must face the same charge. “In fact, it is to be noted that these were not decisions of the MoCIT (minister of communications and IT) alone but were backed by successive cabinets.’’
- Section 420, under which he has been charged, deals with wrongful loss being caused to a party on the basis of a misrepresentation being made by the accused person. “The central government, who is the alleged victim of the cheating, has consistently maintain in public and in parliament that the loss caused by the so-called 2G scam is nil.’’ If this is so, how can section 420 be imposed on him?
- Judge Saini has failed to appreciate that the public gained due to Raja’s move. In March 2007, rural teledensity was about 6 percent and total teledensity was about 18 percent. And Raja brought up rural teledensity to 28.46 percent and total teledensity to 61 percent. Not only this, it skipped the attention of Judge Saini that “the government has collected about Rs 77,938 crore under the revenue share regime,’’ in the telecom sector.
- Raja quotes present Communications Minister Kapil Sibal as saying: “Government policy over the years, while abandoning revenue maximisation, has yielded benefits…The average tariff came down from almost Rs 17 per minute in 1999 to about Rs 3 per minute in 2004 and by March 2010 this became as low as 57 paise per minute while today it has reached a level of 30 paise per minute. This is a direct and tangible benefit. The benefit of this reduction in tariff is estimated at over Rs 1,50,000 crore per annum to consumers.’’
- “Thus, the truth of the matter relating to spectrum pricing is that loss to the government is nil, and the gain to the public is to the tune of Rs 1,50,000 crore per year. It is indeed unfortunate that having implemented such a policy, the petitioner (Raja) is being accused of having ‘cheated the exchequer.’” Raja also claims he tried to break the cartel in the telecom sector. Nobody objected to the pricing issue till the cartel continued to get benefits of the telecom licences. “The moment the cartel was broken by issuing licences to new entrants, all these objections have been taken.’’
- Judge Saini doesn’t appreciate that telecom operations require huge investments and thus companies like Swan and Unitech bring in strategic foreign partners to bring in money. “If Swan and Unitech are to be charged because of the equity infusion into their companies, then the prosecution (CBI) has to explain why it has not charged Tata Teleservices Ltd, Sistema Shyam Teleservices, and S Tel, which also had infusion of foreign equity of much greater amounts.’’
- “The prosecution (CBI) theory of one conspiracy among all accused is ex-facie absurd.’’ Swan had already applied for a licence in March 2007, before Raja became the telecom minster. It had no reason to conspire with him. Plus, Unitech and Swan were direct rivals. They would never conspire with each other. “Unitech never got spectrum in Delhi circle and Swan did not get it in some other districts. There is no evidence at all to suggest a common conspiracy between Swan and Unitech.’’
- Judge Saini should not have started the trial in the 2G case, when the investigation is still pending. “As it turned out, subsequent events in this case have had a material bearing on the case against the Petitioner (Raja)…’’
- A flurry of applications for telecom licences led DoT to propose that there should be a cutoff date and Raja approved the proposal. A total of 575 applications were received till the cutoff date. Raja took the law ministry’s opinion and he had also apprised Prime Minister Manmohan Singh about his decision.
If the country’s Prime Minister was aware of what Raja was doing, the trial against him will amount to “an abuse of the process of the court’’ and thus the high court should intervene and set aside the trial and charges against Raja.
The high court, as the law demands, has issued a notice to the CBI for its reply.
Senior CBI officials investigating the 2G scam say they see two loopholes in Raja’s arguments. One, did he not manipulate the cutoff date? And second, did he not misguide the PM and the entire nation by forging the law ministry’s advice? According to the CBI, these two questions make are key to the edifice of conspiracy that Raja laid.