The report of the Comptroller and Auditor General on the 2G spectrum deals, submitted in November 2010, revealed a presumptive loss caused to the Central government of about Rs.1.76 lakh crore. This is the largest single instance of corruption in monetary terms in India's political history. Furious indignation among the media and the public, and the demands of the Opposition parties, led to the resignation of Telecom Minister A. Raja. Human Resource Development Minister Kapil Sibal now holds additional charge of the Telecom Ministry.
On December 31, 2010, the Telecom Minister appointed a one-man committee comprising Justice (retd) Shivraj V. Patil “to examine the appropriations of procedures followed by the Department of Telecommunications in [the] issuance and allocation of spectrum during the period 2001-09.”
Justice Patil submitted his report on January 31, 2011. It was put on the website of the Department of Telecommunications (DoT) on February 10. In the report, material covering the eight terms of reference is examined separately in each chapter.
As the committee was appointed mainly to study the appropriations followed by the DoT and to give suggestions to streamline policy regarding the future sale of spectrum, it did not go into past losses incurred by the government in the sale of spectrum. However, the terms of reference required the committee to “identify the public officials responsible in the cases of ‘deficiencies' and ‘shortcomings and lapses.” Accordingly, the report provides particulars of names and designations of the officials involved in taking decisions, responsible “for deviations in formulation of procedures” in 17 paragraphs of Chapter 6, and of the officials “responsible for lapses,” in 20 paragraphs of Chapter 7.
In 36 of the 37 paragraphs, the report lists the names and designations of officials, from the Secretary downwards. Invariably every paragraph concludes with the remark: “The officers named above appear to be responsible for the deviation,” or “for the lapses,” as the case may be.
In these paragraphs dealing with officers taking decisions, the Telecom Minister is associated with the officials in the following paragraphs (given here without the names and designations of the officers):
Para 6.1(ii): “The decision was taken on the basis of note put up (by 10 officials) and approved by the then Minister.”
Para 6.1(iii) is about the recommendations of the Telecom Regulatory Authority of India that were not placed before the Telecom Commission. It states further: “This was endorsed by 2 officials and approved by the Minister.”
Para 6.1(iv) refers to the DoT seeking the legal opinion of the Attorney-General/Solicitor-General through the Ministry of Law and Justice on the procedure to be followed for the grant of new Unified Access Service Licences (UASLs). The Law Minister gave the opinion that in view of the importance of the case, it was necessary that the whole issue be first considered by an Empowered Group of Ministers. However, based on a note by two officers of the DoT, “the Minister took the view that the opinion of the Minister of Law and Justice was out of context and decided [that] the procedure for grant of new UASLs formulated earlier be continued.”
Para 6.1(vi): “Said decision was based on the contents of the letter of the Minister dated 26-12-2007 addressed to the Prime Minister. On the basis of [a] note by 3 officers and [as] approved by the Minister, [a] decision was taken to treat the contents of the said letter of the Minister as the policy of DoT.” Peculiarly, about the decision to issue a Letter of Intent (LoI) to amend the UASL on payment of additional fee, Para7.1(xiii) states: “This is in deviation from the practice followed which accords priority on the basis of date of application and not on the date of compliance of LoI. This decision was taken by the Minister on 17-10-2007.” In this case, no officer is noted as having been involved in making the decision. In all fairness and according to the principles of natural justice, it should have been noted that the Minister alone was responsible for this deviation. But no such comment has been made about his act of deviation.
It is difficult to accept the conclusion that the officers who prepared the drafts were responsible for the ‘deviations' or ‘lapses'; some of them were approved by the Minister himself. In particular, as per Para 6.1(vi), the decision was taken in the presence of the Minister to treat the contents of his letter to the Prime Minister as the policy of the DoT, which is stated in the paragraph to have been approved by the Minister himself. In this case also, the paragraph ends with the remark: “The officers referred herein above appear to be responsible for this deviation.”
It appears that there is a conspiracy to make the officials of the Ministry responsible and punishable for the actions of the Minister.
We should take note of the basic concept of ministerial responsibility, which is the prime tenet of a Cabinet system of government as developed in Westminster and adopted by the Constitution of India.
There are four principal features of the Cabinet system of government. One is that the Cabinet is a single unit accountable to the elected legislature. On every important piece of policy and performance, all members of the Cabinet stand and fall together. The second feature is that, in the presidential system the head of the executive, the President — apart from impeachment procedures — is answerable normally to the electorate, either directly or through a system of electoral college. But in the parliamentary system, the Cabinet, led by the Prime Minister, is immediately answerable to the elected House. The third feature is that, while all members of the Cabinet are collectively responsible to the legislature, there is also individual responsibility for each Minister with respect to the performance of the Department or Departments under his charge. The fourth feature is that, although all members are equal and responsible for every decision taken collectively in the Cabinet, the Prime Minister represents the ‘keystone of the Cabinet arch' and occupies a position of exceptional accountability on the performance of the Cabinet on the whole.
About the dual responsibilities of a Minister, Ivor Jennings stated: “The Cabinet is a general controlling body. It neither desires nor is able to deal with all the numerous details of the government. It expects a minister to take all decisions which are not of real political importance. Every minister must therefore exercise his own discretion as to what matters arising in his department ought to receive Cabinet sanction. The minister who refers too much is weak; he who refers too little is dangerous.” (Page 233-234, Cabinet Government, Third Edition, 1980)
Jennings also stated that the minister is fully responsible for the decisions of his civil servants. He wrote: “All decisions of any consequence are taken by ministers, either as such or as members of the cabinet. All decisions taken by civil servants are taken on behalf of ministers and under their control. If the minister chooses, as in the large Departments inevitably he must, to leave decisions to civil servants, then he must take [the] political consequences of any defect of administration, any injustice to an individual, or any policy disapproved by the House of Commons. He cannot defend himself by blaming the civil servant. If the minister could blame the civil servant, then the civil servant would require power to blame the minister. In other words, then the civil servant would become a politician. The fundamental principle of our system of administration is however that the civil service should be impartial and, as far as possible, anonymous.” (Page 149, The British Constitution, Fifth Edition, 1971)
If a civil servant is found by an impartial enquiry to have exceeded or misused his authority or power to secure personal gain or advantage to other individuals or organisations, he should be duly punished under the law.
If, in the case of the 2G spectrum deals, the Minister had acted on his own to issue licences, he comes under his individual ministerial responsibility to be accountable for the huge loss and the consequences of the unprecedented scale of corruption.
Mr. Raja had claimed that the procedures he adopted in the allocation of spectrum licences had received the stamp of approval of the Prime Minister, as his letter of December 26, 2007 had been acknowledged by the Prime Minister in a reply thus: “I have received your letter of December 26, 2007 regarding developments in the telecom sector.” If this assumption by Mr. Raja is acceptable, then the entire policy and procedures adopted in the grant of 2G licences will become a matter to be considered under the collective responsibility of all members of the Cabinet.