While we are still recovering from the shock verdict in the 2G Scam, arguably one of the crudest examples of crony capitalism in independent India, the former Minister of Telecommunications, Mr A Raja, who was acquitted by the Special judge Mr O P Saini of all criminal liability in the case, has now come out with his own version of events in his just released prisoner’s diary ~ 2G Saga Unfolds.
He has accused the former Prime Minister, Mr Manmohan Singh ~ whose advice he had blatantly ignored at the crucial juncture ~ of silence, and has levelled no-holds barred allegations against the former CAG, Mr Vinod Rai. Mr Raja’s former ministerial colleague, Mr Kapil Sibal, has also joined the fray, demanding an apology from Mr Rai.
Another former colleague, Mr Manish Tewari, has gone one step further, declaring that the verdict has established that “Rai and the then officers of CAG were possibly in the hands of forces which were inimical to the UPA government”, a serious allegation against the integrity of officers of the institution of CAG, one that he must be asked to prove.
It bears recall that Mr Tewari had once said that Mr Anna Hazare was steeped in corruption from “head to toe. He has also demanded that all reports tabled by Mr Rai require to be “revisited by an independent body”. He has called for an independent audit of the 2G report submitted by Rai.
So we now need another public audit institution to audit the CAG reports! It is no wonder that Mr Raja’s version is no different from the ruling of the Special Judge. In a veiled reference to the presumptive loss of Rs 176,000 crore caused to the exchequer as stated in the CAG report and highlighted by the media ~ a stigma that had branded the previous regime as one of the most corrupt in India’s history, Special Judge Saini had said, “some people created a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels” and “a huge scam was seen by everyone where there was none”.
Mr Raja echoed much the same in his comments against the former CAG, though in a decidedly abusive manner beyond the bounds of civility and decorum in public discourse. He has trashed Mr Rai’s actions as “malicious vigilantism that makes a mockery of his constitutional responsibilities; disgraceful purchase of self-promotion at the cost of truth and integrity; wanton sacrifice of national progress… corrupt commercialism couched in moral rhetoric… reports of auditors like Shriman Vinod Rai are mere trash… It is my contention that the sanctity of the CAG was severely compromised… Mr Rai clearly had ulterior motives in overreaching the bounds of his constitutional function.”
Mr Raja could not mention any such motive though, being probably unaware of the multi-layered processes that every CAG report has to pass through to inoculate them from the kind of errors Mr Raja associates them with. In indicting the CAG, he has actually indicted the institution, an institution towards which all governments have shown unconcealed contempt and annoyance, and which has only enhanced the credibility of the institution.
Maligning institutions is in the DNA of all Governments; it was a hallmark of the UPA also, in which Mr Raja had an intimidating presence, riding roughshod over the decisions of his seniors and often ignoring their sensible advice with utter disdain in order to distribute favours to his crony friends.
The case involved the allegations of Mr Raja misleading the Prime Minister; fixing of an arbitrary cut-off date; violation of the First Come First Serve policy in issuing Letters of Intent; granting of Unified Access Service Licences to two ineligible companies, Unitech and Swan Telecom; and payment of Rs 200 crore bribe to Kalaignar TV Pvt. Ltd, promoted by the family of DMK patriarch Mr Karunanidhi.
The judge lamented that public perception was “created by rumour, gossip and speculation”, that “for the last about seven years, on all working days, summer vacation included, I religiously sat in the open court from 10 am to 5 pm, awaiting for someone with some legally admissible evidence in his possession, but all in vain… Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings.”
The least the judge could have done was to wake up from his stupor of seven years and ask for the evidence that was not placed before him, which was his bounden duty. As pointed out by Dhananjay Mahapatra quoting a Supreme Court judgment, while giving a fair trial to the accused, a judge must “appreciate evidence with the sole aim of arriving at the truth. A seasoned trial judge knows the difficulties in gathering evidence in a crime after a time lapse, especially when committed by high public functionaries like ministers. He must know how to separate the chaff from the grain to arrive at the truth.” Mr Saini has miserably failed in this job.
Defective investigation and shoddy prosecution case is not uncommon at all, especially where the CBI is involved. But again, as observed by the Supreme Court (C Muniappan vs Tamil Nadu, 2010), “defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in criminal justice administration would be eroded.”
Therefore, in such cases, “there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.”
Mr Saini probably has no knowledge of this judgment nor of his obligations that follow from it to gather and weigh evidence in an important case that has far-reaching implications on the institutional probity and personal integrity of public officials occupying high positions.
Let us try to separate chaff from the grain and facts from fiction. The institution of CAG is not a criminal investigating agency, its job is also not to question Government policy, but to examine and point out any procedural lapses and other deviations in implementing the policy, and whether it was applied in fairness.
To probe and establish criminal intent in any action of the executive is not CAG’s job, neither does it fall within his mandate. That is the job of the CBI and other law enforcement agencies; their failure to do so does not reflect upon CAG’s findings in any way. And unlike what Mr Raja would have us believe, CAG is not a colonial ruler presiding over a colonial empire that gives him unfettered powers over his reports; these reports follow a robust laid down procedure, passing through several stages before reaching the final stage when they are signed by the CAG, at which there is hardly any scope for altering them fundamentally.
The process ensures this, and that is what gives the CAG’s report so much of respect and credibility among the public. The process also ensures that credible and acceptable documentary evidence exists to support even the most trivial of observations, which is testified by the fact that in the 150-plus-year-old history of the institution, the evidence presented in its reports were never found to be false, fabricated or concocted. So let us first see what the CAG report says.
The writer is a commentator and the views expressed are personal.