Given the trial court’s judgment absolving A Raja and other accused in the 2G scam, various telcos who had their licences cancelled are looking to sue the government, and are using various newspapers to test the waters. But given that the trial court verdict cannot possibly be seen as superior to the Supreme Court (SC) which also ruled on this, in 2012, it is not clear what these telcos are hoping to achieve. The trial court verdict will be challenged in the high court and, eventually, may even find its way to SC. In essence, therefore, the 2G companies are hoping SC will dilute its own judgment.
The trial court’s verdict, keep in mind, was not so much about the illegality of Raja’s actions, it was about the criminality, and in such cases, the standards of proof are such that benefit of doubt goes in favour of the accused. Even so, the judgment, as this newpaper pointed out (goo.gl/6ZnJnz), was full of holes. So, the Trai chief Nripendra Misra was made out to be a hero, but no attention was paid to his argument that Raja was ‘cherrypicking’ his recommendations. The telecom secretary who tried to stop Raja was deemed to be “obstructive and dithering” and the law minister who said the matter should be examined by an EGoM was said to be acting “against all established canons, discipline and protocol of Government working”. Indeed, while the `200 crore that was given to Kalaignar TV was rejected as not being proof of Raja’s criminality, one of the reasons for this advanced by the court was that the money was paid after Raja cleared the licences!
If these telcos are serious about suing the government, they would be well advised to read the SC judgment again. SC came down heavily on Trai and said “its recommendations became a handle for the then the Minister of C&IT … who virtually gifted away the important national asset at throw away prices”. Unlike the trial court that was so impressed with Trai, SC said “we do not find merit in the reasoning of TRAI that the consideration of maintaining a level playing field prevented a realistic reassessment of the entry fee”. SC examined the arbitrary changes in the cutoff dates and said “the exercise undertaken …under the leadership of the then Minister of C&IT was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality”. SC also said “the meeting of the full Telecom Commission, which was scheduled to be held on 9.1.2008 to consider issues relating to grant of licences and pricing of spectrum was deliberately postponed on 7.1.2008 so that the Secretary, Finance and Secretaries of three other important Departments may not be able to raise objections against the procedure devised by the DoT for grant of licence and allocation of spectrum by applying the principle of level playing field”. In view of all this, SC was so incensed, after cancelling the licences, it levied a fine of Rs 5 crore each on Etisalat DB, Unitech and Tata Teleservices—the fact that Tata was fined is interesting since it was not even part of the 122 licences that were cancelled but was part of the 35 dual-technology licences that were not the subject of the appeal, but which also benefited. A fine of Rs 50 lakh each was put on firms like Loop and Shyam Sistema for benefitting from the arbitrary action. The other danger of the telcos going to court is that Raja’s perfidy, and their role in it, could become the subject of another trial.