The 2-G Spectrum Case

(This post first appeared on the Global Anticorruption Blog) 

It all started in May 2009 with a report filed by an NGO, Telecom Watchdog, with India’s Central Vigilance Commission. The NGO claimed that there were gross irregularities, likely due to corruption, in the allocation of licenses to operators for the 2nd Generation mobile communication standard spectrum (2G spectrum for short). By October 2009, India’s premier investigating agency, the Central Bureau of Investigation (CBI), had opened an investigation into the allegations, and in November 2010, the Comptroller and Auditor General of India estimated the losses to the government from the alleged misconduct at a whopping US$29 billion. Indian media called it the “biggest scam in the history of Independent India.” Time Magazine put it just behind Watergate as the second worst case of abusing executive power.

Petitions were filed in the Supreme Court of India pressing for cancelling the allocation and making sure that those behind the corruption would be held responsible. In 2012, the Supreme Court obliged, canceling all 122 licenses and imposing huge fines. The Court declared that the then-Minister for Communications and Information Technology, A. Raja, had used an inappropriate allocation procedure (first-come-first-served rather than an auction) to “favour some of the applicants … at the cost of the exchequer.” In an unprecedented move, the Court also ordered the creation of a “Special Court” to try the cases, and modified regular criminal procedure by curbing intermediate challenges, in order to ensure a speedy trial. The first case was instituted against the former Minister, senior bureaucrats, and prominent businessmen for conspiring to rig the allocation process and cheat the government of revenue.

On December 21, 2017, the Special Court announced its verdict—and it was not what many had expected: The Special Court acquitted all the accused, declaring that “a huge scam was seen by everyone when there was none,” and that “some people created [the perception of] a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.” The Court also found that, notwithstanding the earlier 2010 report (which others had already suggested was methodologically problematic), the actual losses to the government were marginal at most.

Many commentators were stunned and dismayed by the Special Court’s decision, denouncing it as “shocking” and “flawed.” But after reading the Special Court’s decision, I find myself in agreement with the Special Court’s reasoning. While it’s impossible, in a short blog post, to wade through the merits of the Special Court’s analysis for each of its conclusions, here I want highlight some of the most important arguments in support of the Special Court’s controversial decision.

• First, it’s worth addressing the apparent conflict between the Special Court’s ruling and the 2012 Supreme Court decision. The latter had quite clearly ruled that wrongdoing had occurred. But it’s a mistake to say that these two decisions are at loggerheads, for two reasons: For one thing, in 2012 the Supreme Court was dealing with an omnibus petition that put the allocation of 2G spectrum under a cloud and only sought initiation of prosecutions. At that stage, all one needs are grounds for suspicion of wrongdoing (something akin to probable cause). In fact, even the Special Court thought the material presented in to the Supreme Court had created a valid basis for suspicion, as it emphasised in a lengthy order refusing to discharge the cases back in 2012. But suspicion is not proof, and it was only after a careful examination of the evidence that the Special Court came to the conclusion that there was no proof beyond a reasonable doubt to convict the accused persons. Rather than condemn the Special Court’s decision, we should laud the Special Court for confirming that a trial court can function independently in spite of the strong preliminary observations made by the Supreme Court.

• Second, the Special Court’s verdict strongly suggests that the controversial government decisions were mistakenly depicted as corrupt, when in fact the controversy was due to the inefficiency and opacity of the bureaucracy. A review of the official records led the Court to conclude that the decisions allegedly initiated and pushed through by the disgraced Minister had hardly ever been taken by him alone. Other officials, who ended up as key prosecution witnesses, were fully involved in the decision-making process. The record revealed these officials were passive and happy to pass the buck rather than take responsibility at the appropriate time. Further, the Court also faulted badly-drafted government policies, and found that bidders had not acted wrongfully in exploiting gaps that the government had created. Remarkably, the prosecution could not prove that the accused companies were ineligible under the policy governing the spectrum allocation process, despite strong suspicions of this being the case, because none of the government’s witnesses could testify that the relevant words in the policy carried a definite meaning.

• Finally, the Special Court’s decision strongly suggests that the investigators and prosecutors simply botched the case. Some vital records were never collected or produced. For instance, no records of any kind were presented to show the Minister and private persons were meeting very frequently at the Minister’s office, which was a key government allegation in connection with the conspiracy charges. Even more problematic was how witnesses were examined, both by the investigators pre-trial and by prosecutors in court. As the Special Court emphasised (and illustrated with a helpful chart), although the investigation began in 2009, the CBI did not examine the most important witnesses until 2011 or 2012, in some instances doing so merely a few days before filing the dossier in court. Star witnesses often gave deposition testimony that contradicted the official record, which led the Court to reject their testimony as unreliable. The Special Court also lamented the failure of the prosecution to lay proper evidentiary foundations for its main arguments, noting that “arguments alone do not prove a case … For proof, legally admissible evidence is required.”

Once the dust settles, it is highly likely that an appeal will be filed, as acquittals can be challenged under Indian law. Overturning acquittals in appeals carries a tougher standard than challenging convictions, and it will be interesting to see how the government chooses to attack the Special Court verdict. One suspects that the speed of governmental action over the case might hinge on the upcoming national elections in 2019, as the verdict is bound to become an election issue. While ordinarily appeals continue slowly through the Indian judicial system, the government could push for a speedier resolution, and these special circumstances might yet see more twists in the 2G spectrum saga.