What led to shocking 2G verdict?

Backed by a clinching deposition by then TRAI chairman Nripendra Mishra, currently Principal Secretary to the Prime Minister, the prosecution had conclusively established in the 2G scam that provisions of the TRAI Act were violated in granting licences to new companies. Pointing out gross violation of the TRAI Act, Mishra deposed that then Telecom Minister Raja was the final authority in granting licences. But Special Judge OP Saini’s Thursday verdict chose to shift the blame on DS Mathur, who had retired as Telecom Secretary before the allocation took place.

While cancelling the licences in its February 2, 2012, ruling, the Supreme Court had cited the violation of the TRAI Act as the main ground for its decision. Among the 122 licences allotted by Raja, 85 belonged to new companies owned among others by accused like Shahid Balwa, Vinod Goenka and Sanjay Chandra.

As per the TRAI Act Section 11 (1) (a) (i) and (ii), it is mandatory to get TRAI approval for allowing new companies in the Telecom Sector. In a clear violation of the TRAI Act, none of the 85 licences granted to nine companies were cleared by the Regulator. It is intriguing that while agreeing that Mishra had proved his points on violations in the TRAI Act,

Judge OP Saini concluded that there was no wrong-doing by A Raja.

“PW (Prosecution Witness) 11 is Mishra, who was Chairman, Telecom Regulatory Authority of India (TRAI), from 22.03.2006 to 22.03.2009. He has deposed about functions of TRAI. He further deposed that through letter dated 13.04.2007, Ex PW 11/A, Government of India sought TRAI recommendations on various issues mentioned therein and the recommendations dated 28.08.2007, Ex PW 2/DD, were sent by TRAI to the Government through letter Ex PW 11/C. He has also proved correspondence exchanged between TRAI and DoT in order to clarify legal requirements under Section 11 (1)(a)(i) and (ii) of TRAI Act regarding seeking recommendation of it before licence to a new service provider is given. He has also proved various documents/ letters beginning from Ex PW 11/A to 11/W,” says the judgment (Page 112).

In dealing with the same issue, Justices GS Singhvi and AK Ganguly of the Supreme Court pointed out that the TRAI Act was violated in blatant ways in awarding licences to new companies without mandatory approval of the TRAI.

“The principle of first-come-first-served was manipulated by the Minister to favour some of the applicants including those who were not even eligible. Shri Bhushan pointed out that out of 122 applications 85 were found ineligible and those who got the information from the Minister or the officers about the change of the criteria for implementing the principle of first-come-first-served got advantage and acquired priority over those who had applied earlier,” said the Supreme Court judgment.

It is interesting that OP Saini’s judgment absolved Raja of charges of violations in allotting licences and price fixation and overlooking the TRAI recommendation. Judge OP Saini preferred to put the blame on Telecom Secretary DS Mathur, who appeared as Prosecution Witness. At one point, the judgment also noted that Nripendra Mishra deposed that in allowing licences the Telecom Minister was the final authority.

Interestingly, while Mathur has been blamed for the violation, he had already retired on December 31, 2017, ten days before Raja allotted the licenses on January 10, 2008, when the accused Siddharth Behura became new Telecom Secretary.

While agreeing with Nripendra Mishra on many points, the Judge observed that there was no clear proof that the TRAI chief had recommended auction for awarding licences. Incidentally, a Cabinet decision of October 2003 had said that auction and base price would be fixed by the Telecom Minister and the Finance Minister. This crucial point was never considered in the judgment, which slammed the Prosecution for not providing clinching evidences. In fact CBI had submitted these evidences and Prosecutor Anand Grover many times pointed out this during trial and Final Arguments.

“Even if the version of Sh Nripendra Misra is accepted that revision of entry fee was recommended, there is no material on record that anyone understood these Recommendations in this manner. There is absolutely no evidence, oral or documentary, that anyone understood that TRAI had recommended revision of entry fee,” said the judgment, ignoring the voluminous evidences submitted by CBI on this regard.

The initial reading of the judgment gives an impressing that the verdict harped on the failures of Telecom Secretary DS Mathur, even though he had opposed Raja. The judgment mentions that on at least five times Nripendra Mishra asked the DoT to follow the TRAI Act and recommendations. Instead of blaming the final authority, A Raja, the Judge preferred to blame Mathur, who did not allow Raja to grant licences during his period. 

Slamming Mathur, Judge Saini said, “The record reflects the earnestness and commitment of Sh Nripendra Misra, with which he was seeking the implementation of the Recommendations. Had Sh. DS Mathur heeded to the advice of Sh Nripendra Misra, things would not have gone so bad leading to the registration of instant criminal case. The efforts of Sh Nripendra Misra for ensuring proper implementation of TRAI Recommendations deserve appreciation. The record bears out that Sh DS Mathur was largely responsible for the mess in the DoT. He was perhaps awaiting his impending retirement on 31.12.2007. He could have awaited his retirement in a more graceful manner.”

While judge OP Saini says that Mathur never got along with Raja, his boss, but he also termed him as “fickle-minded and timid person.”