New Delhi: The Modi government has for the last two years delayed in launching a full-fledged appeal against a special CBI court order in late 2015 that discharged the accused in the 2002 additional telecom spectrum allocation case.
The delay, according to court documents, has curiously occurred even though the special public prosecutor (SPP) and senior CBI officials unanimously agreed as long ago as January 2016 that a revision petition challenging the merits of the discharge order ought to be filed.
A short note filed by senior advocate and SPP Anand Grover in January 2018 before the Supreme Court indicates that the decision to refer the matter to the law ministry and any refusal to go ahead with a full-fledged appeal could be in violation of the apex court’s order that mandated the insulation of “government intervention in 2G matters”.
With the imminent exit of Grover as SPP – and the consequent appointment of additional solicitor general Tushar Mehta, who has at least once expressed the government’s reluctance to file a revision petition due to an opinion give by the attorney general – it remains to be seen whether the appeal process will be given the go-ahead by the Modi government.
And, more importantly, if it doesn’t, whether the Supreme Court will intervene and force it do so.
Pramod Mahajan case
The ‘additional or excess spectrum allocation case’ is shorthand for an alleged criminal conspiracy that took place during the NDA-1 government’s tenure in 2002 and allegedly caused a loss of over Rs 800 crore to the public exchequer.
While the controversy is obviously separate from the main 2G spectrum scam, it has since 2012 been considered part of a group of legal cases arising from the allocation of 2G spectrum and has consequently been monitored by the Supreme Court along with four other main cases.
In December 2012, the CBI filed its chargesheet in the additional spectrum case, booking former telecom secretary Shyamal Ghosh and three telecom firms – Hutchison Max Telecom Pvt Ltd (now known as Vodafone India Ltd), Bharti Cellular Ltd (part of the Airtel group) and Sterling Cellular Ltd (now known as Vodafone Mobile Service Ltd).
In its chargesheet, the investigation agency alleged that the telecom companies were “given additional spectrum beyond 6.2 MHz at a lower price which cost the exchequer nearly Rs 846 crore.” Crucially, the CBI believed that the operators should have paid at least 2% of their revenue as licence fee for additional spectrum based on a subscriber-linked criteria. They were charged only 1%.
The chargesheet also alleged that the-then telecom minister, the late Pramod Mahajan, and Ghosh had shown “undue haste” in clearing the proposal in early 2002 even though a technical committee report at the time had said the operators would not need more than 6.2 MHz of spectrum until mid-2004 at least.
Two years after the trial started, special CBI judge O.P. Saini issued his judgement in October 2015, which stated that the CBI had filed a “false and fabricated” chargesheet against the accused.
“I am reading out the last paragraph of the order. It’s a false and fabricated charge sheet and there is no incriminating evidence against any of the accused so they are discharged. The charge sheet is full of distorted facts and an attempt has been made to mislead the court,” the judge had said.
Saini also made strong statements against the CBI officials in charge of the case and asked the agency’s director to conduct an inquiry against the “erring officials” for filing such a charge-sheet.
Appeal and CBI
Confidential court documents – a letter, a short note and a 23-page legal opinion all prepared by Grover – show that two months after Saini’s order, the CBI requested the SPP to give an opinion on whether any “legal proceedings should be filed to challenge the said order of discharge.”
After this was given, Grover was allegedly informed that “all of the officers of the CBI were unanimously of the opinion that a revision petition ought to be filed making a substantive challenge on merits to the order of discharge”. The petition would also challenge the deprecating remarks made by Saini with regard to ‘erring officials’.
A letter that Grover wrote to the-then chief justice J.S Khehar in December 2016 points out that the CBI director had verbally agreed with the legal opinion that Saini’s judgement should be challenged and that the SPP was “orally informed” of the same in January 2016.
While the letter doesn’t name the director, the CBI chief at the time was Anil Sinha, who stepped down only at the end of 2016.
“Accordingly, the SLP cum revision was drafted in the office of the SPP and settled by him. However, when the CBI went to file the same, the central agency refused to file the same unless the Law Ministry had approved,” a note filed by Grover in January 2018 states.
According to Grover’s letter, he was informed that the CBI had sent the revision petition to the law ministry and was informed that it was “under process” in the ministry.
After nearly 12 months passed, in December 2016, Grover wrote a letter to Khehar, informing him that “despite waiting for reasonable and sufficient time for petition to be filed, it has still not be done” and that he wished to bring these developments to the notice of the court.
In February 2017, however, the CBI moved the Delhi high court, seeking the “expunction of adverse remarks against officers of the CBI”. Or in other words, the agency sought to challenge the censure of the CBI court – in particular Saini’s remarks that an inquiry must be ordered against the officials who played a role in constructing the charge-sheet.
“It appears that the law officers of the government gave a legal opinion advising the CBI to file a petition… on the limited issue of expunction of adverse remarks against officers of CBI. That was done. But the issue arises as to why a substantive petition ought not to be filed,” Grover’s note before the apex court in January 2018 states.
Senior members of the CBI’s legal team also pointed out to The Wire that it was odd that the agency would challenge Saini’s adverse remarks but not choose to challenge the merits of the judgement that discharged the accused.
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“One follows the other. How can you challenge the remarks that some officials should be pulled up for filing an allegedly fabricated chargesheet but not challenge the fact that the court believes that the chargesheet and accusations itself were fabricated,” one senior prosecutor, who declined to be identified, told The Wire.
In January 2018, one month before Grover requested the apex court to relieve him of his responsibilities, the matter of filing a full-fledged appeal was brought up in the Supreme Court as part of a status update on all 2G cases.
At the time, additional solicitor general Tushar Mehta – who at the time had not been appointed as the new special public prosecutor – claimed that an appeal had not been filed because the attorney general had given an opinion against it. Mehta, however, pleaded for another “10 days or two weeks to deal with it”.
It is unclear at the moment when the issue will come up for a hearing next before the Supreme Court.
Was it appropriate for the law ministry to seek an opinion from the attorney general? Grover’s legal note indicates otherwise.
“It is well-settled law that when there is no difference of opinion amongst officers of a central investigative agency, there is absolutely no question of seeking the legal opinion of the Attorney General of India,” the note states, while making reference to a Supreme Court judgement on the Taj Corridor scam case.
“The SPP submits that there was no role to be played by the Central Government in revision and therefore referring the decision for appeal to the ministry of law and justice is not called for and revision only on the deprecating remarks is not sufficient in the interest of justice. More so in this particular case when this Hon’ble Court directed insulation from government intervention in the 2G matters”.
Jaitley and Ghosh
It is no secret that ministers within the Modi government and senior BJP leaders believe that the additional telecom spectrum allocation case is a conspiracy concocted by the UPA-I and UPA-II governments.
Hours after Saini pronounced his judgement in October 2015, finance minister Arun Jaitley stated that “there is no doubt that the chargesheet was filed at the behest of Kapil Sibal, the telecom minister in the UPA government.”
Jaitley has also been steadfast in his defence of former telecom secretary Shyamal Ghosh, the main accused according to the CBI chargesheet. Before the controversy broke out in 2002, Ghosh was allegedly being considered for the position of Comptroller and Auditor General of India.
After his discharge by the CBI court in 2015, Ghosh has come out of retirement and currently serves in a quasi-government role. In February 2017, he became the new chairman of the Telecom Equipment and Services Export Promotion Council (TEPC). The TEPC was set up by the commerce and communications ministries to “promote the export of telecom equipment and related services”.