Exclusive: Chidu faces 2G pincer attack as Bhushan files PIL in SC

Home Minister P Chidambaram now faces a double-barrelled attack for his role in allegedly aiding and abetting Andimuthu Raja’s 2G spectrum scam. Even as Janata Party President Subramanian Swamy moved the Supreme Court on Thursday to challenge a trial court order that declined to make Chidambaram an accused in the scam along with Raja, Prashant Bhushan’s Centre for Public Interest Litigation has filed a parallel complaint in the highest court seeking a thorough investigation by the Central Bureau of Investigation (CBI) into the former finance minister’s culpability. Using documents that are already in the public domain, the petition seeks to show that Chidambaram, when he was finance minister, overruled his own ministry to let Raja sell spectrum at 2001 prices and also allowed Swan Telecom and Unitech to sell “spectrum” at huge profits. The public interest litigation (PIL) asks for a court-monitored probe into Chidambaram’s role in the scam. The PIL specifically asks the Supreme Court to “direct the CBI to conduct a thorough investigation/further investigation into the role of the finance ministry under the then finance minister in the 2G spectrum scam…under the close supervision of this Hon’ble Court, assisted by the Central Vigilance Commissioner and the senior Vigilance Commissioner."[caption id=“attachment_224340” align=“alignleft” width=“380” caption=“In legal trouble. Image courtesy PIB”]  [/caption] The PIL makes it clear that it is not challenging Special Judge OP Saini’s order in the Subramanian Swamy case, where he concluded that even though Chidambaram was party to Raja’s decisions, he could not be prosecuted for lack of “any other incriminating act on his part.” In his order, the Judge Saini said: “In the end, Mr P Chidambaram was party to only two decisions, that is, keeping the spectrum prices at 2001 level and dilution of equity by the two companies (Swan and Unitech). These two acts are not per se criminal. In the absence of any other incriminating act on his part, it cannot be said that he was prima facie party to the criminal conspiracy.” Prashant Bhushan’s PIL hopes to overcome some of the gaps in Swamy’s petition by bringing in more documents on the decision-making process during 2007-08 in which the finance ministry is first shown to be backing the idea of auctions or market-based pricing for spectrum, and then being forced to change gear after Chidambaram changes his stand. The Bhushan PIL makes the following points: • That Chidambaram overruled his own officers on pricing, and helped Raja perpetrate his scam. Swan and Unitech were allowed to make windfall profits from stake sales. • Chidambaram, despite initially asking that spectrum above the “free” 4.4 mhz limit and upto 6.2 mhz be charged for, revised his position “in no time”. • The then FM knew “full well” that it was possible to auction spectrum even though Raja had jumped the gun and issued licences on 10 January 2008. But he allowed Department of Telecom’s views to prevail. •  Chidambaram’s decision to allow Swan and Unitech to sell their stakes to foreign partners without ensuring that government got its share of the “spectrum” premium was in violation of his own agreement with Raja entered into on 30 January 2008. • The finance minister did all this even though he knew that Raja was manipulating the licensing process, and many irregularities were taking place. Continues on the next page •  Chidambaram “took contrary public positions, gave misleading explanations and did not disclose true facts,” thus leading to a conclusion that he had much to hide. The Bhushan PIL, while staying clear of the Saini verdict, however seeks to reopen the issue by asking the Supreme Court for a further probe since the “documents and evidence that have emerged present multiple contradictions and raise several questions, all of which remain irreconcilable or unanswered, and have a serious impact on the quality, direction, and outcome of the investigation". If the Supreme Court takes up the PIL, however, it will have implications for the Swamy appeal against the Saini verdict, too. This is what Judge Saini said in his verdict: “There is no material on record to show that Mr P Chidambaram was acting malafide in fixing the price of spectrum at the 2001 level or in permitting dilution of equity by the two companies. These two acts are not per se illegal…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. Merely attending meetings and taking decisions therein is not a criminal act. It must have the taint of use of corrupt or illegal means or abuse of his official position by public servant for obtaining pecuniary advantage by him for himself or for any other person or obtaining of pecuniary advantage by him without any public interest”. Bhushan’s PIL essentially seeks to ask the court whether the substance of these “meetings and taking decisions therein” can be considered prima facie malafide and hence worthy of another court-monitored CBI probe. Following are some of the documents submitted by Centre for Public Interest Litigation in the Supreme Court in the 2g case against Home Minister P Chidambaram: 2007-11-22 stay order by FS to Dot Sec 2007-11-29 DoT Secretary to Finance Secretary saying they have no say 2008-01-09 Telecom War Note by DEA 2008-01-15 Finance Minister note to Prime Minister 2008-01-30 Finance Minister and MOC meeting gist 2008-2-8 DoT Secretary Approach Paper to Finance Secretary 2008-2-11 DEA detailed note spectrum charges & pricing 2008-4-7 Finance Secretary note 2008-4-8 DEA OM to DoT Sect 2008-4-10 Apology by DEA to Finance Minister 2008-4-21 P Chidambaram Non Paper to A Raja 2008-4-29 Finance Secretary note to Finance Minister 2008-5-28 Brief note for Finance Minister 2008-7-4 Note After Meeting With Prime Minister 2008-11-7 Press Release by DoT 2008-11-7 Telecom Commission Note 2009-10-21 CBI FIR Continues on the next page 2011-2-16 PM Press Conference 2011-3-5 Finance Secretary statement to CBI 2011-3-25 Finance Minister to Prime Minister Chronology 2012-2-4 OP Saini order extracts 2012-2-16 The Hindu article 2012-2-18 Reply of P Chidambaram to The Hindu article Read the application against Chidambaram here: