Verdict in Chidu case may make it harder to nail crooks

The burden of proof required to nail a public servant for favouring private parties may have gotten harder after the Chidambaram order

R Jagannathan February 08, 2012 06:07:10 IST
Verdict in Chidu case may make it harder to nail crooks

Judge OP Saini’s verdict on P Chidambaram last Saturday closes one can of worms, only to open another.

The verdict, which dismissed Subramanian Swamy’s petition to implicate Chidambaram in Andimuthu Raja’s dubious telecom capers of 2007-08, establishes one thing: that Chidambaram and Raja were, in fact, party to the decision to fix spectrum prices at 2001 levels and they allowed Swan Telecom and Unitech Wireless to offload equity to foreign partners without rolling out services.

The reason why the judge let off Chidambaram, then finance minister, was for lack of “any other incriminating act on his part” in Raja’s more controversial moves.

Said the judge’s order: “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. 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.”

Verdict in Chidu case may make it harder to nail crooks

Judge OP Saini’s order is more than fair to P Chidambaram, but may make it harder to catch any public servant for misconduct. Vijay Verma/PTI

This is, of course, strictly legal and sensible. This is where Special CBI Judge Saini, who is trying all 2G cases, is closing one can of worms – to huge sighs of relief in the Congress camp.

But the arguments he used to close the chapter – which is by no means closed, given Swamy’s bulldog tenacity – will surely raise eyebrows. In fact, they may make the burden of proof required to catch other crooks harder.

After quoting several Supreme Court and other judgments to see whether Chidambaram and Raja entered into any conspiracy to sell underpriced spectrum, Judge Saini starts by acknowledging that Conspiracy is hatched in private or secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.”

Even so, Judge Saini then goes on to demand a higher burden of proof on Chidambaram’s alleged guilt. “…The relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard.”

Is the judge implying that Swamy added up “irrelevant facts” to beef up his case against Chidambaram? Or did the facts become irrelevant because the judge is demanding more proof at the preliminary stage?

Swamy’s case is that Chidambaram knew what Raja was upto and hence, by agreeing with him both on spectrum prices and the Swan and Unitech stake sales, he was a participant in Raja’s criminal conspiracy.

Let’s hear what Judge Saini has to say on criminal conspiracy. “A man (may) join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.”

The big question is: Did Chidambaram not know about Raja’s conspiracy when he agreed both to underpricing spectrum and the stake sale?

Even when Raja was arbitrarily changing the cutoff dates for his first-come-first-served (FCFS) policy, every newspaper was writing about it in 2007 – before the licences were issued. Chidambaram as Finance Minister had his own economic intelligence agencies to tap for information on what was going on. The Prime Minister, a little while after Raja issued his licences, but before the spectrum was allotted to the licensees, said he wanted to be kept “at arm’s length” on telecom spectrum issues. Both the PM and Chidambaram could have stopped the issue of spectrum after Raja had issued the licences unilaterally on 10 January 2008.

So we now have both a passive attitude to an existing conspiracy (not stopping Raja after he issued the licences) and an overt act with possible knowledge of conspiracy (agreeing to the stake sale without rollout of services). Judge Saini appears to suggest that the former may not be enough to establish criminality, but the latter may be, since an “overt act with knowledge of the conspiracy is guilty.”

The crucial point, of course, is whether Chidambaram had knowledge of the conspiracy. Prima facie, this figleaf holds the key to the verdict. Commonsense tells us that no finance minister can be so dumb as not to suspect Raja’s actions from the way he hijacked the policy. And Chidambaram is an intelligent man.

But there’s more to Judge Saini’s judgment, since it also deals with whether Chidambaram can be accused of misconduct under the Prevention of Corruption Act.

Judge Saini first talks about the dictionary meaning of 'Misconduct in office.’ Black’s Law Dictionary defines misconduct as “Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the fact of an affirmative duty to act.'' (Italics ours)

If at all Chidambaram can be faulted, it can only be in the last bit – failure to act in the fact of an affirmative duty to act. Was he not duty-bound to stop the spectrum allocation if he knew Raja was playing ducks and drakes with the rules?

The judge also quoted P. Ramanatha Aiyar's Law Lexicon, where the term 'misconduct' has been defined as “wrongful intention, and not a mere error of judgment.”

In Chidambaram’s case, he is not claiming error of judgment. Judge Saini says there is no apparent wrongful intention. But doesn't Chidambaram have  to explain why he went along with Raja’s actions? His ministry wanted market-based pricing for spectrum, but he went along with Raja. After it was all over, in mid-January 2008, Chidambaram still advocated auctions for the future. So clearly, he did not do what he believed in when he had the power to stop Raja.

Why did he change his mind?

Under the Prevention of Corruption Act, criminal misconduct is said to happen if “a public servant abuses his position and obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.

The key words are without any public interest. In other words, if some act is claimed to be in public interest, giving pecuniary or other advantages – at the cost of the exchequer and which will explicitly favour a private party – is not a crime.

But consider the obverse side of the coin. What is the message going out to public servants,  ministers and babus? Giving benefits to private parties may not be a crime if a broader policy is claimed to be in public interest. And no proof is required upfront to claim something as being in public interest.

Says Judge Saini in conclusion: “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.”

The word to look for is malafide. If Chidambaram, and the Prime Minister, both believed in auctions or market-based pricing, why did they give in to Raja? Was it coalition compulsion? And in this case, if this is what convinced them to go along with Raja, can it not be construed as malafide action? Is political pressure not a malafide reason for doing the opposite of what you believe in, and which caused a loss to the exchequer?

It’s also pertinent to note that no file – at least those in the public domain - ever mentions Chidambaram or Manmohan Singh talking about pricing spectrum at 2001 prices in public interest. In fact, they argue that transparency and market-based pricing of a scare resources is in the public interest. It is only Raja who claims underpricing spectrum is in public interest - and much later.

Every crook – and perhaps Raja himself – can now wrap himself in the argument that his flawed policy was in public interest. The fact that some private parties benefited from it is not reason enough now to suspect wrongdoing. Few crooks anyway are going to be so careless as to leave evidence of their dirty work in plain sight.

Judge Saini’s order, while being more than fair to Chidambaram, may just have made the task of catching any public servant for misconduct harder.

Updated Date:

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