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Brijesh Kalappa
Tuesday , September 27, 2011 at 14 : 00

2G case is crumbling


Lawyers appearing in the Special Court trying the accused in the 2G Scam and those appearing for various parties in the Supreme Court affirm this truth - the issues of criminality and culpability in the 'most gigantic scam' that struck India is crumbling. Day after day, arguments raised by Counsel in the Criminal Court presents a bleak future for the fanciful case presented by the CBI on the guidelines set by the CAG. Vinod Rai's image itself has taken a beating with it becoming apparent that he was pushing his own agenda when he pulled an incredible figure of Rs 1,76,000 crore out of his magician hat.

Consequently what began with a bang is now slowly ending with a whimper. It is now well established by an investigation carried out by a newspaper that one of the senior officials in the office of the CAG and the man who headed a team that conducted the audit on the allotment of spectrum and licences, was of the opinion that the loss could not at all be quantified. Singh had opined that the price used for 3G spectrum couldn't be used to calculate the losses because "charging for 2G spectrum was never recommended by TRAI or the government has never contemplated any charges for the spectrum other than entry fee."

In the absence of support from his senior subordinate who is the expert on the issue, the generalist CAG Vinod Rai personally took it upon himself to report four figures as possible presumptive (or notional) losses arising from the way the government chose to allot spectrum to companies in 2008: Rs. 67,364 crore, Rs. 57,666 crore, Rs. 69,626 crore and Rs. 1.76 trillion (which figure has been bandied about by an over-eager Opposition).

Singh's team, however, did finally venture to put a number to the losses to the Government, a measly Rs. 2,645 crore, which arises exclusively from inflation. Meanwhile TRAI has told the CBI that the allocation of 2G spectrum has earned profit between Rs 3,000 crores and Rs 7,000 crores for the Government.

In addition, Singh's team is also said to have found nothing improper in the investments by foreign companies in Swan Telecom and Unitech Wireless because these were in fresh shares and not shares of the promoters. Indeed, this is one of the arguments being made by the defence in the ongoing case before the Special Court. It wrote to the CAG headquarters that the investments "did not transgress the UASL guidelines" and "to attribute the foreign investments completely to UASL may not be appropriate because one of the major factors an investor would consider before venturing into any market would be its size; finance ministry has concurred that it is a case of dilution of equity and not sale of equity by promoters."

Kapil Sibal has earlier been on record to state "that is exactly what we wanted to do; spread tele density, ensure that there is money in the pocket of the consumer, that the cost of telephony is much less for the consumer, there is greater competition in the market, the cost of having a mobile phone is less. All these objectives are for public welfare. Ultimately remember this, technology is not for revenue earning; technology must reach people and reach people at a cost that helps in their welfare. Raja allowed licenses to come in 2007 and the cost to the consumer in 2007 in telephone was Rs 275 per month. Between 2007 and 2010, that cost came down from Rs 275 to Rs 111. If you look at it in revenue terms, it is benefit to the consumer to the extent of Rs 2 lakh crore almost."

He later provided the following analogy to explain the fanciful figure of loss given by the CAG, "If you build a highway, you give land free, land free that is a big cost to the state. Why do you do it? Why because if you start auctioning land for education the cost of the poor student would be lakhs of rupees."

Vinod Rai's predilection for embarrassing the Government of the day, resulted in his own embarrassment on another issue when another leading English newspaper recently carried an expose' stating that the "CAG which has severely criticised the government for showing "undue haste" in concluding the 50-Boeing aircraft deal for Air India in its latest report, had said the exact opposite in 2005-06: it had then urged the national carrier to "firm up its future fleet composition at the earliest".

The main Opposition party too is presently seeking the scalp of the Home Minister for his 'involvement' in the 2G scam. The BJP had earlier insisted on the constitution of a Joint Parliamentary Committee on the scam. The BJP has often directly or indirectly through their various avatars like Baba Ramdev and Anna Hazare attacked Chidambaram and Sibal.

In fact, when DMK supremo M Karunanidhi's daughter Kanimozhi was first arrested, the BJP welcomed the arrest on 20th May, 2011. Senior party leader Jaswant Singh has since gone on record to say that both A Raja and Kanimozhi ought to have been given bail. He is said to have stated on 1st July 2011: "I personally feel I am not a jurist/lawyer either by training or by preference. There are too many lawyers in Parliament. I feel that if somebody has been charged and that charge is not of a heinous nature like robbery, murder or any such thing and when trial is on, then that somebody should not be kept in the prison because you can't permanently deny bail. Bail by itself is a citizen's right unless he is charged with such a crime that it must not be permitted." Yashwant Sinha too voiced the same opinion on 3rd July 2011.

After having disrupted an entire winter session in 2010 seeking the constitution of a JPC, the BJP is on record to state that the JPC serves no useful purpose. In the words of Jaswant Singh, it has become 'redundant'. He further said "We really don't understand what spectrum is. We are punishing a colleague (A Raja and Kanimozhi) of ours really for our inability to understand the dimensions of spectrum."

The statement of Jaswant Singh that a JPC was redundant was made after the Union Cabinet was expanded on 12th July 2011. DMK did not suggest a replacement for Dayanidhi Maran. The two vacancies of the DMK continue to remain unfilled. It must be remembered that it was the report of the CAG that damned Raja compelling an investigation by the CBI, with the supervision of the Supreme Court of India and sent him to jail, followed by Kanimozhi.

BJP by shrill posturing first raised the subject of the loot of Rs 1,76,000 crore by attempting to rub the nose of the DMK to the ground for allying with 'the enemy'- the UPA. This has to be seen in the background of the DMK having been a constituent in the NDA till 2004. A B Vajpayee had even given a certificate of competence to A Raja, who was then an MoS. Now that the DMK is seen to be desperately seeking respite, leaders like Jaswant Singh and Yashwant Sinha will show magnanimity and a little mercy. Does this not amount to exerting pressure on a former constituent of the NDA to reconsider its decision to ally with the UPA by a process of political intimidation?


More about Brijesh Kalappa

Brijesh Kalappa, an advocate in the Supreme Court, is the Additional Advocate General, Haryana. A former journalist, he has a wide range of interests including reading and travelling. He has worked with several legal luminaries on subjects of importance in civil, criminal, water and electoral laws and has individually represented governments, eminent individuals and major industrial houses. Gifted with the prowess for distinctive sharp-edged analysis, he has been working closely with several leaders of the Indian National Congress.