Do we need to appeal to God?

“He can appeal in the High Court, in the Supreme Court and in the end he can appeal to God.”  That was Kapil Sibal offering generous advice to Subramaniam Swamy with the usual smirk on his face. But what does that imply? Has Kapil Sibal concluded that Swamy cannot get justice in the courts of India, only God can provide him justice? Is it not a poor reflection on the integrity of judges and courts in India?

The occasion? The CBI trial court did not find sufficient grounds for proceeding against P Chidambaram. How did it not find sufficient ground?

This is how.

·         Swamy alleged that along with A Raja, P Chidambaramwas also a party to the decision of allotting spectrum at 2001 price. The judge agrees. (Para 69 of the judgement)

·         Swamy alleged that Swan and Unitech, the beneficiaries of low priced Spectrum diluted their stake by offering fresh shares to Etisalat and Telenor at astronomical valuation before rolling out services and that PC allowed the dilution. The judge agrees. (Para 69)

·         Both the above caused huge loss (ranging from Rs. Zero to Rs. 1.76 cr) to the nation. The judge agrees.

·         Both Swan and Unitech profited from the spectrum allotment and subsequent dilution of equity. No dispute.

·         Raja needs to be prosecuted for the above. The judge agrees.

·         PC needs to be prosecuted. The judge disagrees.(Para 70)

Why? Because PC did not “abuse” his position to cause the loss. Because PC ‘s action did not result in profit to Swan and Unitech “without public interest.”

What are these “abuse” and “without public interest”? These are the requirements of Sec 13 (1) (d) (ii) and (iii) respectively of Prevention of Corruption Act.

PC initially felt that spectrum should be auctioned. Later he changed his views and decided “not to revisit the entry price” issue and to treat the same as “closed chapter.” Why this change of heart? Does this change of heart require investigation? The judge does not think so.

His reasons are:

·         There is no evidence against Mr. P. Chidambaram to the effect that he played any role in the subversion of the process of issuance of letters of intent (LOI), UAS Licences and allocation of spectrum in the years 2007-08…… All these incriminating acts were allegedly done by the Minister/ officials of Department of Telecommunications, Ministry of Information and Broadcasting, Government of India and by private persons.(Para 59) (Subsequently when PC agreed not to revisit the entry price, he was aware of all the above. As Arun Shourie points out even if PC had read the news papers he would have been aware of the above. Knowing fully well the subversion, he allowed the price to remain at 2001 level.)

·         The competent authority is always at liberty to decide in its discretion to not to revise the prices or fee for any goods or services.” (Para 61).

·         Same is the case with dilution of equity by a company. It is not per se illegal nor was it prohibited at the relevant time. (Para 61)

·         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.(Para 67)

·         Anybody and everybody associated with a decision in any degree cannot be roped as an accused. (Is the Finance Minister of the country “anybody and everybody”?)

PC, as a Finance Minister (read Public Servant in the context of Sec 13 (1)(d)(iii) of PCA) decides not to revisit the entry price and to allow dilution of shares. This results in profit (read pecuniary advantage) to Swan and Unitech. For the purpose of Sec 13 (1)(d)(iii) it is not the competence of the public servant to take a decision that is relevant; whether it resulted in pecuniary advantage and whether public interest was compromised are the relevant factors. Also personal benefit to the public servant, illegal means or culpable state of mind are not relevant for Sec 13(1)(d)(iii).

Even if they are relevant, the same can be established only during the trial and that too after investigation and that is what Swami was praying for- substance of his complaint is that ‘please investigate PC’s role.” Is it proper to dismiss at the admission stage itself?

It appears that Swami’s complaint has not been understood or addressed. I am not sure of Kapil Sibal; but Subramaniam Swami definitely has faith in the higher courts and will be approaching them soon.

For the time being, possibility of his inclusion in the 2G case hangs like an albatross around PC’s neck.

PS: Vinod Sharma, the enlightened editor of Hindustan Times argued again and again during debates in NDTV for the appointment of a spokes person by the courts to interpret their judgements. He embarrassed Dushyant Dave also with this question. One has every right to be stupid. Does he need to profess his stupidity?