A Raja has filed a petition in the Supreme Court to review the order cancelling 122 2G-licences which contained certain seriously indicting observations about his actions. Raja has argued that such observations violate principles of natural justice and judicial norms of fairness in as much as he was not given an opportunity to be heard. This, Raja asserts, is bound to prejudice his defence in the ongoing trial in the Special CBI court.
Under Supreme Court Rules 1966, a review petition is, as far as practicable, circulated to the same Bench of judges who delivered the order. Since Justice Ganguly has retired, Justice Singhvi will most likely be hearing this review petition with another judge.
At the outset, it may be useful to understand the vital difference in the nature as well as the purpose of the two proceedings. The primary question before the Supreme Court in the constitutional matter was whether licences granted by the DoT were so granted in an arbitrary and unconstitutional manner making them subject to cancellation. On the other hand, the question before the Special CBI court in the criminal proceeding is whether Raja and the other individuals who were a part of the licence issuance process can be convicted for various criminal offences, primarily under the Prevention of Corruption Act 1988 (POCA). Therefore, the Supreme Court’s focus was on the executive decision, whereas the Special CBI court’s focus is on the executors of that decision.
To practically explain this distinction, it is possible that the Special CBI court could acquit A Raja of all criminal charges brought against him despite the fact that the Supreme Court has cancelled all 122 licences issued by the ministry he headed if the prosecution fails to prove beyond doubt that it was Raja who committed actions amounting to a conviction under various criminal offences he is being tried for. What has muddied this distance between the respective scopes of the two proceedings, however, is the Supreme Court’s affirmation of certain actions allegedly committed by Raja, some of which are being examined by the Special CBI court in the ongoing trial.
One of the five questions put before the Supreme Court by the petitioners – Question (iv) – was whether the first-come-first-served principle was arbitrarily changed by Raja with a view to favour some of the applicants. A juxtaposition of this question with Section 13(d)(i) and (ii) of POCA under which Raja is being tried in the Special CBI court reveals the overlap in the scope of examination. The substance of Section 13(d)(i) and (ii) is whether (i) by corrupt or illegal means, or by abuse of position as minister, (ii) Raja obtained for himself or for any other person (applicants), (iii) valuable thing or pecuniary advantage (license and spectrum).
Was this question on individual actions of Raja absolutely vital to effectuate cancellation of 122 licences and impose a penalty on some licensees who benefited due to the DoT’s exercise? The answer is, no. Even if this question was included, and a petitioner before a court has every right to do so, could the SC have refrained from answering this question and, yet, arrive at its conclusion of cancelling 122 licences? The answer is, yes.
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If the Supreme Court refrained from passing any order on Subramanian Swamy’s plea to ask the CBI investigate Chidambaram lest it may prejudice Special CBI court’s decision on sanctioning prosecution against Chidambaram, it could have refrained from answering this Question (iv) as well on the same grounds. Moreover, government departments are widely known to take arbitrary decisions without a sound rationale or a fair procedure against which constitutional remedies are often granted to affected parties. The two decisions — arbitrarily shifting the cut-off date and granting spectrum to ineligible applicants — were sufficient to conclude the inherent arbitrariness and unfairness in allocation of spectrum licences under Article 14 of the Constitution of India to justify cancellation and imposition of penalties.
Since the Supreme Court had to opine on the illegality of the two decisions, a question may well arise on whether these two decisions can be sufficient to conclude applicability of Section 13(d)(i) and (ii) given that these actions also resulted in a pecuniary benefit to the licensees. The answer is in the negative since an additional requirement under Section 13(d) is to establish corrupt or illegal means or abuse of position by the decision maker.
As it turns out, this is precisely what the Court ended up doing. In answering Question (iv) in Paragraph 77 of the Order, the Court basically affirmed that (i) all of Raja’s actions were “stage-managed” in order to deliberately favour some licensees; (ii) those who had access to Raja could extract benefits from the process; and (iii) DoT officers followed his orders lest they may incur his wrath. In affirming these allegations as established facts to answer Question (iv), the Supreme Court has, perhaps unwittingly, established abuse by Raja of his position as a minister. In addition to focusing on the executive decision, the Supreme Court also focused on the primary executor of the decisions, a job better left to a trial court where the executor has opportunities for cross-examination.
Indeed, if the Supreme Court was confident that such allegations were now established facts despite pendency of the trial in the Special CBI court, it should have asked Raja to present his defence. Justice Ganguly has explained that on Devil’s Advocate stating that Raja’s actions as a minister were defended by the law officers of the Government of India.
However, there is a vital difference here in the two capacities Raja held during the entire duration of this matter. Until November 2010, Raja was the Minister of Telecom, and, thereafter, a private individual facing criminal trial. Till the time he continued to be a minister in the UPA government, the Attorney General was obligated to, and, indeed, did, defend Raja’s actions known at that point of time. For example, the Attorney General continued to defend the DoT’s decision to advance the cut-off date as neither arbitrary nor unconstitutional. Once Raja was no longer a part of the government, and allegations of abuse of power came to light, the law officers could not have possibly defended Raja when the same government was simultaneously prosecuting him for those very actions.
Lastly, can it be argued that since this matter lasted for several months, Raja should have defended himself instead of waiting for the Supreme Court to pass this order? Though this argument is compelling, plausible answers to it are that: (i) it could not be incumbent upon him to be aware of the contents of the petition since he was not made a Respondent in that matter, and (ii) he could not have assumed that the Supreme Court would have affirmed such allegations as facts in an Order concerned with cancellation of licenses without waiting for the Special CBI court to establish them as facts. How Justice Singhvi and his brother Judge deals with the review petition remains to be seen. Notwithstanding the fact that the media and the nation have pronounced Raja as guilty, in a democracy governed by the rule of law, it is a court of law which has the final say. Raja’s review petition has strong grounds which can possibly put a hold on the ongoing trial till the Supreme Court rules on the review petition.
To criticise government policy through judicial activism is one thing, often welcomed when the government is found asleep. To affirm allegations yet to be established as incontrovertible facts in a trial court is quite another. The Supreme Court has given Raja something to cheer about, albeit only temporarily.