Mountain out of a Molehill: It’s Time to Introspect the 2G Case

After prosecution’s case falls apart in 2G case, it’s time for introspection into the false narrative that was built around ‘presumptive loss.’

(Photo: Rahul Gupta/ The Quint)

All lawyers will always remain students of law. I have had the opportunity to observe at a distance the proceedings emanating from RC 45 (A) 2009, popularly referred to as the 2G case, for the past seven years.

The 2G saga, which culminated in the decision of 21 December 2017, demonstrates the best and worst of the Indian legal system – it holds a mirror to the profession of journalism asking it to introspect and showcases itself as an example of the effects of puffery, and demagoguery and blind rhetoric in public discourse.

Political and Media Narrative on 2G Saga

It is important to now reflect and examine the three narratives which were put forth regarding the 2G saga.

The political narrative was simple. Helped by the Comptroller and Auditor General (CAG), the narrative was that the government of the day had looted the exchequer of the now famous figure of Rs 1.76 lakh crore. The figure bandied about was mind numbingly large and infuriated a bewildered electorate.

The media narrative was to support the CAG’s report which was premised on the assumption that a finite national resource could not be gifted to private individuals at throwaway prices, and that a balance would be required between revenue generation and achieving social objectives.

How the Prosecution’s Case Fell Apart

The narrative of the prosecution can be gleaned from the decision of 2 February 2012 of the Supreme Court, where apart from cancelling the 122 licences which had been granted by the accused minister of communication (A Raja), the Court found the said minister(s) leadership to be “arbitrary, capricious and contrary to public interest.”

Post the judgment of the Supreme Court, it became clear that all the accused would have to face the rigour of a full trial.

The case of the prosecution was that the “first come first served policy” was a defined policy which was manipulated by the accused minister in order to benefit certain private parties.

After exhaustively considering the evidence, the Judge comes to the conclusion that the policy of first come first served was an abstract proposition whose “details were not clear to anyone.” The Judge goes on to find that the policy, as defined by the CBI, had been violated at least five times during the tenure of Arun Shourie and three times during the tenure of Dayanidhi Maran.

The fact of the matter was that the Department of Telecom was using this proposition out of necessity, but there was no evidence which provided the material particulars of the policy in order for the court to come to the conclusion that deviation from the same had been established.

The second limb of the prosecution case was that through various noting and addendum, the accused minister had changed the policy and had, along the way, hoodwinked the office of the Prime Minister, senior law officers, and bureaucrats. However, upon examining the official record (most of which has been reproduced in the judgment) the Judge finds that rather than the minister it is the officials of the Department of Telecom at the relevant time who were introducing “changes” to the policy.

It is telling that the Judge records at the conclusion of the judgment that he spent seven years from dawn to dusk on all working days waiting for any additional evidence. He goes on to criticise the conduct of the prosecution which started with gusto, flagged and then became a perfunctory fulfilling of the motions.

Premise of the Case Based on a Hunch

The findings arrived at by the District Judge eviscerate all the above three narratives. If one were to read the judgment, which is nearly 1,600 pages, it would become amply clear that the political narrative of widespread, unbelievable loot was pure puffery.

It also calls into question the narrative of the media in placing reliance on the report of the CAG without understanding the rationale behind first come first served, and without questioning the violation of the policy in earlier tenures.

Finally, it is evident that the narrative of the prosecution was premised on a hunch, the evidence being marshalled by the prosecution in a manner reflective of trying to fit a square peg in a round hole.

‘No Room for Perception and Bias in a Court’

Let us look at the impact of the 2G Saga.

A District Judge, who is known for his credibility and integrity, spends seven years of his tenure listening to a single case. Considering judicial pendency, we can only imagine the opportunity cost.

122 licenses are cancelled and the Government of India is facing multiple claims under various bilateral investment treaties – claims which just got a shot in the arm after the decision.

The public believes that a huge loot of the exchequer took place, its confidence in elected representatives shattered.

It is time for all of us to introspect and realise the value of measured, reasoned and rational discourse – both public and private.

It is time for us to realise that as the Judge points out, there is no room for perception and bias in a court.

It is also a time for all of us to realise that, however imperfect, the system does work.

(The writer is an advocate practicing at the High Court of Delhi and the Supreme Court of India. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)