After the judgment of the CBI special court in 2G scam case acquitting all the accused, many questions have been raised. The first is whether there was a scam at all. To answer this, one has to delve deeper to understand the layers of this complicated issue.
Let’s begin with understanding the meaning of the word “scam”. The word in the case of 2G entails two aspects. First, whether the policy of granting licenses under then telecom minister A Raja was arbitrary, unreasonable and hence, bad in law. Whether a certain form of policy passed the standard reasonable test and did it fetch the required revenues for the public exchequer. Did it cause “losses”, which means was national resource sold at a sub-standard rate? The Supreme Court judgment of 2012 deals with the first aspect.
This means that despite the order of the CBI special court, the UPA policy of allocating spectrum was illegal and arbitrary.
Now comes the second aspect. Was there a criminal intention behind this shoddy policy which led to the payment of bribes and alleged kickbacks? Was a criminal conspiracy hatched by A Raja in connivance with Kanimozhi and the corporates to loot the national resources? Were some private companies preferred over the others because they paid bribes to the telecom minister?
The judgment of CBI special court deals with the second aspect. Enforcement Directorate and the CBI could not prove the criminal conspiracy. They could not prove that the entire policy was a sham to benefit certain private companies and individuals and very interestingly, Judge OP Saini rips into the case of CBI and ED.
The judge begins by highlighting how the handwriting of the officials of the department of telecom (DoT) “illegible” and so poor that one can't understand. The officials mostly made their notes outside the margins, so the court couldn't really understand or trace how a policy decision was taken.
The judgment also highlights that DoT does not know how to keep their files in order. There are no chronological records as to how a decision is taken, hence very difficult to establish how and when a policy decision was influenced.
Much to the shame of DoT, the court notes that the policy of department was written in such a technical language that it wasn't understood by the officers themselves. The court was of the view that when the officials don't understand the policy, why private companies should be prosecuted for it.
Further is a fierce criticism of the CBI and the special public prosecutor. The court notes that nobody was ready to sign the documents furnished by the CBI and the undertakings. The special public prosecutor even did not sign the written submissions given to the court despite repeated efforts.
Also, the court very explicitly notes that then Prime Minister Manmohan Singh wasn't kept in the loop at the right time. His secretary didn't inform him about the 2G spectrum allocation problems and he only got to know about them when the controversy broke out.
Though a deeply disappointed court goes on to question whether there was scam at all, but even at the worst, one finding stands consistent between the trial court and of the Supreme Court that the 2G spectrum policy was vague and full of anomalies. The trial court goes on to say that the DoT knew about the vagueness and arbitrary nature but did nothing to cure it. DoT officials turned a blind eye despite knowing the faulty nature of their policy.
It is in the vagueness and arbitrariness of policy that scams breed. This is what the Supreme Court had said. But in a criminal trial, to prove a criminal intent one requires to prove the guilt beyond reasonable doubt. The politically convenient allegations of quid pro quo are very difficult to prove in a criminal trial.
The 2G case is a classic example of a scam that happened but yet there never was one. CBI and ED have questions to answer.