The capital’s grapevine is buzzing. The Supreme Court has delivered a deadly blow to the credibility of the second UPA government on the 2G spectrum scam.
The fundamental significance of the judgment lies in the confirmation by the court that there indeed was a scam.The court found the whole process unconstitutional and implicitly mala fide.Obviously, this has led to the cancellation of all 122 licences and to the government being directed to auction the licences and the spectrum that will have to be vacated by companies which were clearly beneficiaries of the government’s illegal act.
This was truly a landmark judgment. It not only confirmed that which had come to be universally accepted, that there was a scam, but it went furtherand laid bare that it was not just the criminal conduct of then telecom minister A Raja that resultedin this huge loss to the public exchequer.The court clearly spelt out that it was the first-come-first-served (FCFS) policy and the pricing of spectrum carried out in 2008 at 2001 levels that were jointly responsible for this outrageous loot.
Spokespersons of the Congress and the government have been working overtime after the order.They have claimed that since the FCFS policy was not being put into use for the first time, the UPA government could not be blamed for it. This is a preposterous argument.Even a cursory reading of our Constitution will establish beyond any shred of doubt that policy formulation at any point in time is the exclusive prerogative of the government of the day.
It is quite strange that the same spokespersons, having accepted that it was policy failurealong with Raja’s complicity thatled tothe most outrageous scam in free India, go onto argue that the courthas not indicted either the prime minister or the then finance minister for the unconstitutional actions of the government.This is turning rationality upside down — accepting that a murder has been committed, yet refusing to accept responsibility for the factors that led to the crime.
In fact, the court has recorded the official policy of the government that enjoined both the finance minister and the telecom minister to jointly decide the pricing of spectrum.There is not an iota of evidence available to show that the finance minister acted against the criminal inclinations of the telecom minister to manipulate and selectively benefit some of his corporate cronies.
If anything, it is now well known that earlier the ministry which Chidambaram headed had raised serious objections on FCFS and preferred the auction route.The ministry had also raised questions about the pricing at 2001 levels. These objections were recorded in the form of a formal letter written by the then finance secretary who is now governor of the Reserve Bank of India. With theevidence available of a consultation between Chidambaram and Raja, together with an absence of Chidambaram’sdisagreement, how can anyone claim that the Supreme Court has given him a clean chit?
Now, with the dismissal by the trial court of Subramanian Swamy’s demand for making Chidambaram a co-accused in the 2G case, the legal battle is likely to be protracted. But there is no way the former finance minister can be absolved.
The Supreme Court also pointed out thatthere was a suggestion from the then law minister to set up an empowered group of ministers (EGOM) to deal with the issue oflicence and spectrum allocation. But that course of action was not adopted. The government’s business rules would suggest that such a decision is the exclusive prerogative of the prime minister.Who stopped him from exercising that prerogative? Dr Manmohan Singh owes an answer to the people.In fact, evidence shows, and some of it has been reproduced by the apex court in its order, that Raja did keep the prime minister informed about what he did.The court, of course, has not stated in its order what the prime minister did to stop Raja.Therefore, it would be the people’s right to seek an explanation from the prime minister.
Justice Ganguly and Justice Singhvi must be complimented for doingwhat they did. They did not just indict the policy or specific actions of the government; they elevated and expandedthe scope of the order to greater heights.They brought in the larger question of what is a natural resource.Pointing out that there is no precise definition of ‘natural resource’ in our statute books, they went on to lay down certain indicative criteria.
Further, they pointed out that there is no policy or legal frameworkto determinehow‘natural resources’ should be managedby the state, as it holds these resources in trust on behalf of the people.
The two illustrious judges went on to refer copiously from international law and earlier case orders to evolve what they termed the ‘public interest doctrine’. They rightly pointed out that public interest alone would be the guiding principle for managing natural resources.
No policy that selectively benefits certain corporations by thegrant of concessional rights is acceptable.
Finally, the point — as some of us from the Left have been pointing out so vociferously — is that the current spate of scams is not just a moral aberration.It is more aboutrewriting policiestohand overournatural resourcesto corporationsto facilitatethe accruing ofsuper profitsthrough theircommercialuse.
Bravo! Justice Ganguly and Justice Singhvi must be congratulated for batting on behalf of the people.They have established that the natural resources of this country belong to the people — and the people alone.
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