Justice A.K. Ganguly on Wednesday observed that it was not proper for the former Communications Minister, A. Raja, to have ignored the advice of Prime Minister Manmohan Singh in allocation of the 2G spectrum licences.
“There is more to it than what meets the eye,” orally observed Justice Ganguly, sitting with Justice G.S. Singhvi, hearing the petition filed by the Centre for Public Interest Litigation.
Justice Ganguly pointed out to Solicitor-General Gopal Subramaniam a series of incidents to find fault with Mr. Raja. He said: “Look at the background. The Minister sends the file to the Law Ministry. The Law Ministry wanted it to be referred to the EGoM [Empowered Group of Ministers] and also to take the advice of the Attorney-General. Then the Prime Minister writes a letter to him expressing reservations. Then comes the letter from the Finance Secretary.”
The judge said: “When the Prime Minister made his reservations clear, this letter was not treated with the respect it deserved. These are requirements of collective responsibility. When the PM [Prime Minister] has expressed concern, overruling, by-passing or brushing it aside is not proper. This has weighed with the Comptroller and Auditor General [CAG], whose report is replete with such instances.”
Referring to two press releases on January 10, 2008, one in the morning and the other at 2.45 p.m., and giving prospective licensees only 45 minutes to submit documents and demand drafts and stating that only those who gave DDs would be given Letters of Intent, Justice Ganguly wondered whether the government acted through telepathy to convey to them the impending allocation within 45 minutes. Justice Singhvi asked the Solicitor-General “does it not appear to be unusual.”
Justice Ganguly asked Mr. Subramaniam: “Is this not an arbitrary way of functioning of a government department. Do you consider it a reasonable way of functioning.” The Solicitor-General responded by saying: “I agree that there is something suspicious. More transparent procedure would have been appropriate.”
Senior counsel T.R. Andhyarujina, appearing for Mr. Raja, submitted before the Bench that “he [Mr. Raja] feels condemned as the villain of the piece,” prompting Justice Singhvi to say that he need not feel so.
Mr. Andhyarujina said: “My [Mr. Raja] stock is so low today, that whatever I say now, nothing can redeem my reputation. I [Raja] stand condemned. I am charged, tried and convicted in the eyes of the media as if I am responsible for the loss of Rs 1.76 lakh crore. My silence has been taken as admission of guilt. The impression is: I am responsible for the loss of enormous amount which is mindboggling. But the fact is it is a presumptive loss which is speculative.”
He said: “The CAG report is ‘a subjective opinion' which will not bear judicial scrutiny to the extent that it says that the Department of Telecom failed in its duty to assess the realistic values of licences.”
Counsel regretted that the draft CAG report had been the subject matter of discussions even before the final report was placed before Parliament. Defending the 2G spectrum pricing policy followed by Mr. Raja, counsel said he only followed in 2008 what his predecessors, Dayanidhi Maran and Arun Shourie, had followed and granted 52 licences. The same policy approved by the Telecom Regulatory Authority of India in 2003, 2005, 2007 and 2010 was followed by Mr. Raja.
Mr. Andhyarujina said the CAG followed a principle of accounting which was never used for calculating value. Parameters followed by the CAG were presumptive and speculative. He said Mr. Raja resigned “because under political compulsion you have to take a stand for the party's considerations.”
Justice Ganguly told counsel: “Pointing out financial implications is inherent in the auditing by the CAG, which is not a disciplinary authority. The CAG is not bound by what the government says is right.”
