P Chidambaram had indicated his mind in the note sent to the Prime Minister. Prime Minister’s Office, it is seen, had not taken any contrary view to that of Shri P Chidambaram and, in any view, no materials were also made available when this Court was dealing with the case relating to cancellation of licences, wherein Union of India was a party. In such circumstances, it is difficult to conclude, on the materials available, that P Chidambaram had conspired with A Raja in subverting the process of issuance of LoI, UAS Licences and allocation of spectrum.
Shri P Chidambaram met Shri A Raja on 30.1.2008 for discussions on spectrum charges and one has to appreciate the discussions held in the light of the facts discussed above. Meeting was held at a time, it may be noted, when Shri A Raja and DoT officials had already brushed aside the views expressed by Dr D Subbarao in his letter dated 22.11.2007, the views expressed by the Department of Economic Affairs in the note dated 3.1.2008 and in the absence of any response from PMO on the note dated 15.1.2008 sent by Shri P Chidambaram. Meeting dated 30.1.2008 and subsequent meetings Shri P Chidambaram had with Shri A Raja on 29.5.2008, 12.6.2008 and with the Prime Minister on 4.7.2008 have to be appreciated in the light of the facts already discussed.
Shri P Chidambaram, it is seen under the abovementioned circumstances, had taken up the stand in the meeting held on 30.1.2008 that the Finance Minister was not seeking to revisit the current regimes for entry fee or for revenue share and for the regime for allocation of spectrum, however, it was urged that the following aspects had to be studied:
“(i) The rules governing the allocation of additional spectrum and the charges thereof, including the charges to be levied for existing operators who have more than their entitled spectrum.
(ii) Rules governing trade in spectrum. In particular, how can government get a share of the premium in the trade?
(iii) The estimate of the additional spectrum that may be available for allocation after taking into account: (a) the entitlement of entry spectrum of fresh licenses; (b) the spectrum that needs to be withdrawn from existing operators who do not have the subscriber base corresponding to the spectrum allotted to them; and (c) the spectrum that may be released by Defence.
(iv) We also need to check the current rules and regulations governing withdrawal of spectrum in the event of: (a) not rolling over; (b) merger and acquisition; (c) trading away spectrum.” guidelines/prescribed from time to time. However 6.2 + 6.2 Mhz in respect of TDMA (GSM) based system shall be allocated to any new Unified Access Services Licensee”.
3.1.2 It implies that an operator is eligible for consideration of additional 1.8 Mhz spectrum (making total of 6.2 Mhz) after ensuring optimal and efficient utilization of the already allocated spectrum taking into account all types of traffic and guidelines / criteria prescribed from time to time.
3.1.3 The matter was internally discussed with Solicitor General, who opined that he is defending the Government cases in various courts, where one of the main contentions is that auction would lead to reduction of competition and will not help in reducing the tariff and hence it would be against increase of teledensity and affordability. These being public interest concerns, it would be difficult to change the track at this juncture.
3.1.4 It is, however, proposed to price the spectrum of 1.8 MHz beyond 4.4 Mhz upto 6.2 Mhz. The Trai in its report of August 2007 has recommended that any licensee who seeks to get additional spectrum beyond 10 Mhz in the existing 2G bands, i.e. 800, 900 and 1800 Mhz after reaching the specified subscriber numbers shall have to pay a onetime spectrum charge at the below mentioned rates on pro-rata basis for allotment of each Mhz or part thereof of spectrum beyond 10 Mhz”
Shri P Chidambaram and Shri A Raja met on 29.5.2008 and 12.6.2008 for resolving the then outstanding issues relating to the allocation and pricing 2G and 3G spectrums. Meeting of two Ministers would not by itself be sufficient to infer the existence of a conspiracy. Even before those meetings, as instructed by the Finance Minister, the Finance Secretary and Telecom Secretary had already met on 24.4.2008, had agreed that it might not be possible to charge operators already having allocation upto 6.2 Mhz and the principle of equity and level playing field would require that the operators who get fresh allotment of spectrum up to 6.2Mhz for GSM too should not be charged for Spectrum upto 6.2 Mhz for GSM. Therefore, the allegation that Shri P Chidambaram had over-ruled his officers’ views and had conspired with Shri A Raja is without any basis.
Criminal conspiracy cannot be inferred on the mere fact that there were official discussions between the officers of the MoF and that of DoT and between two Ministers, which are all recorded. Suspicion, however strong, cannot take the place of legal proof and the meeting between Shri P Chidambaram and Shri A Raja would not by itself be sufficient to infer the existence of a criminal conspiracy so as to indict Shri P Chidambaram. Petitioners submit that had the Minister of Finance and the Prime Minister intervened, this situation could have been avoided, might be or might not be.
We are of the considered view that materials on record do not show that Shri P Chidambaram had abused his position as a Minister of Finance or conspired or colluded with A Raja so as to fix low entry fee by non-visiting spectrum charges fixed in the year 2001. No materials are also made available even for a prima facie conclusion that Shri P Chidambaram had deliberately allowed dilution of equity of the two companies, i.e. Swan and Unitech. No materials is also available even prima facie to conclude that Shri P Chidambaram had abused his official position.
We are, therefore, of the considered opinion that no case is made out to interfere with the order dated 4.2.2012 in C.C. No. 01 (A) / 11 passed by Special Judge CBI (04) (2G Spectrum Cases), New Delhi or to grant reliefs prayed for in I.A. No. 34 of 2012. Special Leave Petition (Crl.) No. 1688 of 2012 is, therefore, not entertained, so also I.A. No. 34 of 2012 in Civil Appeal No.10660 of 2010 and they are accordingly stand rejected.
Excerpts from the order of Justices G S Singhvi and K S Radhakrishnan, Supreme Court, on August 24, in Special Leave Petition (Crl) No. 1688 of 2012 and IA No. 34 of 2012 in Civil Appeal No. 10660 of 2010; Subramanian Swamy Petitioner/Appellant(s) versus A Raja respondent
