If Judge Saini felt the CBI and its prosecutors were “directionless and diffident”, there must have been some reason for it.
Earlier this year, one had intuitively felt that something was going wrong with the 2G trial. I even remember tweeting that the outcome of the 2G case may yet become an election issue in 2019. The basis of my gut feeling simply was that a daily trial by a special CBI court in such a celebrated case – which had become an important campaign issue in the 2014 general elections – should not take six long years to conclude. Something was not going right in the trial process.
More recently, my suspicions were strengthened when Prime Minister Narendra Modi went to Chennai and warmly greeted DMK chief M. Karunanidhi and met his whole family, including some of the accused in the 2G case. Mind you, Modi’s visit was around the time the trial was concluded and the 2G judgement was reserved for early December. Around the same time, The Wire published the full deposition of Anil Ambani, a star prosecution witness, who was supposed to help the CBI establish the nexus between shell companies created by senior executives of Reliance Telecom and some companies owned by the DMK family members.
Of course, Ambani had only one thing to say throughout his deposition – he didn’t remember anything about the various companies created by his top management team, though he admitted having signed the minutes of meetings and other official documents. This had prompted Judge O.P. Saini to remark at one stage, “You are forgetting too much. Try to recall something.”
The special public prosecutor in the initial stages of the trial, UU Lalit, now a Supreme Court judge, had then remarked in the open court that by not answering any of the questions, Ambani had not helped the prosecution’s case. The CBI had also demanded that Ambani be declared a hostile witness at that time.
Given this backdrop, it is hardly a surprise that in the final order, Judge Saini is quite scathing in his indictment of the CBI and the prosecution process. Saini clearly says that the prosecution was full of “enthusiasm and ardour” in the initial stages of the trial but became totally “directionless and diffident” in the later stages. Besides saying the CBI had failed miserably to bring any evidence, the judge also hints that the members of the CBI prosecution team were pulling in different directions. The judge is clearly suggesting that there wasn’t a cohesive approach followed by the CBI prosecution team.
A senior member of the prosecution team told this writer that in the middle of the trial, one senior prosecutor employed with the CBI was even removed and a departmental inquiry launched against him. So there were murky goings-on which the Modi government has to answer for.
The judge says a stage had come when the written submissions by the CBI prosecution team were not being owned by the department itself – no senior member was signing the submissions. A lowly CBI inspector was signing these documents. These are serious questions that have been raised by the judge and hopefully they will be examined by the high court, where the CBI has gone in appeal to salvage its tattered reputation.
Meanwhile, the media debate has shifted to the politics of the 2G scam in which the Congress feels vindicated by the turn of events. An embarrassed ruling party was quick to file an appeal. Interestingly, Mukul Rohatgi, till recently the attorney general of the NDA government and a close friend of Arun Jaitley, endorsed the judgement and strongly argued that policy mistakes need not carry criminality. Rohtagi said this was his personal view. One may recall he was defending the Anil Ambani group companies in the 2G trial before the NDA came to power. So were some top lawyers of the Congress after the NDA came to power. All this is easily explained away as professional services offered by lawyers. But we know there are wheels within wheels when it comes to the nexus between politics and business.
Also read: With the 2G Scam Having Served its Purpose, Will Modi Back His Anti-Corruption Bluster with Action?
The judge goes into the conduct of the prime minister’s office and gives former Prime Minister Manmohan Singh a clean chit. At the same time, he suggests that two top officials at the PMO, T.K.A. Nair and Pulak Chatterjee, kept some of the communications from telecom minister A. Raja away from the prime minister.
The judge says Raja was not the linchpin of the conspiracy, as suggested in the CBI chargesheet. In the end the judge does not find evidence of any criminal conspiracy. So the CBI case is not upheld. Then Saini goes on to argue that since the criminality is not established in the main CBI case, the other case filed by the Enforcement Directorate (ED) also does not stand – the case gives details of how Rs 200 crore moved from Anil Ambani-promoted Swan Telecom Pvt Ltd to Shahid Balwa’s company Dynamix Realty to Kusegaon Fruits and Vegetables Pvt Ltd to Cineyug Films Pvt Ltd and finally to Kalaignar TV, belonging to the Karunanidhi family. Within no time, the same Rs 200 crore begins retracing its path along the same route, back to Dynamix Realty.
Though the ED claims to have established a nexus between Swan Telecom and the series of companies leading up to Kalaignar TV, the CBI judge did not consider this on the grounds that the original act of criminal conspiracy is not established by the CBI. So the Rs 200 crore moving through various companies cannot be treated as “criminal proceeds”.
It is this which the CBI and ED will have to establish as part of their appeals in the Delhi high court. Criminal conspiracy leading to “criminal proceeds” or bribery is what is needed to be proved with evidence. The 2G case had two parts – one was a policy error in not auctioning the spectrum in spite of suggestions from various arms of the UPA government. That error was reversed with the Supreme Court cancelling all licenses and auctioning them.
The CBI and ED therefore had the mandate to establish criminality and bribery if any. The CBI and prosecution have failed do so. The tone of the judgment itself is a terrible indictment of the investigative agencies.
If the CBI and its prosecutors fail in the high court to establish criminality in the nexus between the politicians and businessmen, the BJP will have to face some serious questions in the 2019 elections. So far, in every TV debate the BJP has invoked the 2G scam to put down the Congress. From here on, Modi’s claim of attacking cronyism will sound evermore hollow. If Judge Saini felt the CBI and its prosecutors were “directionless and diffident”, there must be some reason for it. What signals do you send to the investigative agencies if an accused undergoing trial in the 2G case is a promoter of one of India’s largest business groups and is given special permission to travel with the prime minister on a foreign tour? The BJP will have to answer many questions until 2019.