It has to be more than a coincidence that on the same day the CBI was pulled up by the Gujarat High Court for botching up the investigations into the Haren Pandya murder, CBI counsel UU Lalit told the special CBI court in the 2G scam that the agency had failed to find any evidence of any quid pro quo as far as money changing hands is concerned in the Unitech Wireless case. If it was only Unitech Wireless, it was bad enough, but, without such evidence, the case against many of the other accused also gets weaker. It doesn't help that almost all the accused have cited the statements made by telecom minister Kapil Sibal that there was no loss to the exchequer in the awarding of the licences. Whether the court chooses to drop some of the charges while framing the chargesheet on September 15 remains to be seen, but it is clear the CBI has its job cut out.
Before proceeding further, it is important to point out that this criminal case is different from the one in the Supreme Court in response to Prashant Bhushan's PIL asking for the licences to be cancelled on grounds they were illegal. That case has been heard, and the judges have reserved their judgment on the matter. Indeed, it has always been this newspaper's view that it would be better to concentrate on getting the licences cancelled, since this is what would help the government recover the money it had lost—the criminal case, we said, could take its own course.
The CBI chargesheet to be sure, is strong in parts, and it was the CBI that found the first money trail of R201 crore from the DB group to Kalaignar TV—this was a very vital piece of the trail and shouldn't be underestimated. In other cases, the CBI has reiterated points made by the CAG, and later highlighted in the Justice Patil report, and these look difficult to refute. In the case of Swan, for instance, the CAG first pointed out that Swan was linked to ADAG since that's where the bulk of its capital had come from—subsequent investigations, such as by the income tax department, have only strengthened this view. This was done to show that Swan was ineligible for a licence under Clause 8 of the licensing conditions on cross-holdings.
In the case of Unitech Wireless, the CBI's charge of conspiracy depends upon the statement given by the DDG (Access Services) AK Srivastava, that he was repeatedly asked by Raja's aide RK Chandolia as to whether Unitech Wireless's applications had come in—and when it had, Srivastava is reported to have told the CBI, Chandolia asked him to close the window for applications. When Srivastava said this couldn't be done, he claims Chandolia asked him to put up a note on advancing the cut off date.
This may help prove the conspiracy case against Unitech Wireless, but what is curious is that the CBI missed out on so many obvious violations of the law. In the case of both Swan and Unitech Wireless, what was critical was not just Raja's change in the cut off date—this, after all, benefitted all the 122 licensees, not just Unitech Wireless or Swan. But only two companies brought in new investors and they were specifically helped by Raja. While Trai had categorically ruled out allowing M&As till all the companies met their rollout obligations, Raja put out new M&A guidelines on April 22, 2008—in which he illegally modified the Trai recommendations on "acquisition". Without this modification, Swan, Unitech Wireless, Tatas, and S Tel would not have been able to sell. The CBI, however, does not even mention the fact that the M&A norms were modified—this would have helped facilitate the very criminal conspiracy that it has pleaded in 17 different places in its chargesheet of April 2, 2011.
Similarly, it is obvious the CBI is on weak grounds since all of Raja's actions—the advancement of the cut off date and the change in first-come first-served norms—had all been okayed by the Solicitor General. But it would have proved its case had it just cited the Delhi High Court judgments and the Supreme Court judgment of July 1, 2009, November 24, 2009 and March 12, 2010, which said all of this was illegal.
There are several other such critical gaps in the chargesheets. Perhaps the CBI will be able to get over these in the trial stage?
