by Kartikeya Tanna

As it rarely fails to do so, a legal judgment in a high-profile case has led to several interested parties interpreting it the way they desire. Special CBI Judge O. P. Saini’s Order of February 4, 2012 not proceeding against Chidambaram for his alleged criminalities in the 2G scam has resulted in the UPA claiming vindication, the NDA wanting Chidambaram to nonetheless resign in failing to check Raja, and Swamy, the incessant fighter, vowing to appeal this Order in higher courts. Several confusions have emerged due to diverse reactions on the Order and it is useful to review the Order elaborately.

Firstly, it is important to understand the two separate legal proceedings brought by Swamy against Chidambaram. The first was a petition in the Supreme Court (an appeal from the order of the Delhi High Court rejecting Swamy’s petition) asking the Court to order the CBI to probe Chidambaram’s role on the basis of evidence collected by Swamy, mainly in the form of exchange of letters between Raja and Chidambaram. This request was for a constitutional remedy called mandamus which gives the Court the power to issue directions to an entity like the CBI. Since the Supreme Court was taking time in adjudicating on this petition, Swamy moved the Special CBI Court, which was already hearing the criminal case against Raja, to include Chidambaram as a co-accused under the Prevention of Corruption Act, 1988 (“POCA”). Dr. Swamy has clarified this through his Tweet . The plea before Judge Saini was to initiate prosecution against Chidambaram as a co-accused in the criminal trial.

As we know, the Supreme Court refrained from passing any order on the request to have CBI probe Chidambaram’s role to avoid prejudicing, influencing or jeopardizing the matter in the Special CBI court. And, on February 4, the Special Judge O. P. Saini rejected Swamy’s plea concluding that the evidence submitted by Swamy did not, prima facie, attract any criminal charges brought against Chidambaram.

Contradictions

While Swamy cannot be considered to have lost this battle, his visible agitation leads to two important contradictions in his statements that touch upon the legal issues:

- Swamy tweeted lamenting that Judge Saini should have at least ordered a CBI investigation once Swamy showed joint decision-making by Chidambaram and Raja in the issuance of 2G licenses. However, in an interview to CNN-IBN Swamy aggressively stated that Judge Saini did not have the powers to order a CBI probe. Moreover, in his own plea before the Special Judge, i.e., Swamy has asked to straight away prosecute Chidambaram as co-accused. Even if he so desired, Swamy could not have expressly asked the Special Judge to order a CBI probe since a similar request was pending before the Supreme Court.

- Some press reports indicate that Swamy will file an appeal in higher courts with more evidence. However, in the same interview to CNN-IBN, Swamy categorically stated that he is confident of the material he has and will appeal to higher courts with the same material. This relates to the vital role a CBI probe could have played, as I point out towards the end.

Facts, questions and the law

While the Order has been criticized because it seems to prevent persistent anti-corruption efforts, it is important to understand the contents of the plea submitted by Swamy in order to objectively understand the Order.

Swamy accused Chidambaram of two criminal offences, namely, that Chidambaram is guilty of (a) conniving, colluding and consenting to all acts done by Raja which are primarily offences under the POCA (“the conspiracy charge”); and (b) committing breach of trust on question of national security because Etisalat and Telenor, to whom spectrum was sold at 8-9 times the purchase price by Swan and Unitech, were black-listed by the Home Ministry (“the breach of trust charge”).

Interestingly, the Court did not at all deal with the breach of trust charge. That is a cogent ground for appeal already.

On the conspiracy charge, a gist of the offence of criminal misconduct under Section 13 of the POCA alleged against Chidambaram is as follows:

(a) whether, by corrupt or illegal means or by abusing his position as a public servant, he obtained for himself or for anyone else any valuable thing or monetary benefit;

(b) whether, while holding office as a public servant, he obtained for anyone a valuable thing or monetary benefit without any public interest; or

(c) whether he or anyone else on his behalf was found in possession of monetary resources or disproportionate assets which cannot be satisfactorily accounted.

On review of the evidence put before the court, Judge Saini concluded that the only two acts which could be attributed to Chidambaram and which were supported by evidence were: (i) fixing the price of the spectrum license at 2001 prices and (ii) permitting Swan and Unitech, which received the license, to dilute their shares before roll-out of their service. Judge Saini held that both these acts, were not per se illegal or in violation of any law at that time.

Many questions arise at this stage.

Why are such acts not illegal since Raja is being prosecuted for commission of these very acts? The Order clearly answers this question by stating that the two acts, which also saw Chidambaram’s involvement, would not by themselves be sufficient to prosecute Raja. Taken in isolation, these two acts were considered by the Judge to be permissible policy decisions. They may not have made sense and it may have been reasonable to foresee that one of them, fixing spectrum price at 2001 levels, may have presented a significant opportunity cost to the exchequer. But, the question before a criminal court judge in a criminal trial is whether anything in any law at that point of time prohibited the two actions as being illegal. Therefore, in distinguishing Raja’s actions from that of Chidambaram, the Judge held that what makes Raja’s actions illegal in totality is that, in addition to the two acts, he committed further acts of subverting the established policy and procedure for grant of licenses (arbitrarily fixing cut-off date, accepting ineligible companies etc.) and allegedly received bribes.

Can it nonetheless be argued that Chidambaram conspired with Raja for commission of the two acts which then caused a serious loss to the exchequer? An examination of the offence of criminal conspiracy is necessary to answer this question. Under section 120-A of the IPC, the offence of criminal conspiracy is committed when two or more persons agree to either do (i) an illegal act; or (ii) an act which is not illegal by illegal means. For (ii) to be proved, it is necessary that an overt act of deployment of illegal means be shown. Since the Order held that the two acts evidenced to bear Chidambaram’s involvement were not illegal, it was necessary to prove that such acts were done overtly and by illegal means deployed by Chidambaram. Without going into a detailed dissection of the law of conspiracy (those interested must read Para 54 of the Order), Judge Saini concluded that nothing in the evidence submitted by Swamy showed any element of conspiracy by Chidambaram in his involvement in those two acts. There was nothing incriminating in either the role played by Chidambaram, or the circumstances in, and the intention with, which he took decisions.

Therefore, from among the list of offences, (a) could not be proved. Nor could (c) be proved since nothing undeclared was found in Chidambaram’s possession or with anyone else he may have been acting on behalf of.

In that case, under (b), couldn’t he be accused of awarding a valuable thing, i.e., spectrum at throwaway prices, for the licensees while holding office as the Finance Minister? This is where the wording of that particular section is important. It requires that Chidambaram, while holding office as the Finance Minister, obtained for the licensees a valuable thing or monetary benefit without any public interest. It has been clearly held that absence of public interest is a crucial requirement. The problem with this wording is that almost any act performed as a matter of government policy can be shown to be in some discernible public interest. For example, awarding spectrum at 2001 prices can be said to have the public interest of further expanding the telecom market. Similarly, allowing foreign investment by Etisalat and Telenor can be said to have the public interest of bringing in more foreign investment in India. This made it difficult for the Court to conclude Chidambaram’s alleged commission of this particular offence.

Therefore, did Chidambaram collude with Raja in the other acts of subversion of policy and receipt of bribes? Not only did Judge Saini not find any evidence of Chidambaram’s active collusion on these acts, Swamy hadn’t even made any allegations in that respect.

Lastly, could it be argued that Chidambaram’s mere knowledge of these subversive acts by Raja was enough? This is the tricky part. Swamy has deduced, on the basis of evidence submitted by him, that Chidambaram had to be in the know of these subversive acts. However, the Judge could not deduce knowledge by Chidambaram of these subversive acts to sustain, even if only prima facie, a charge of conspiracy against Chidambaram. This is another area which may find resonance with the Delhi High Court if Swamy can produce more circumstantial evidence. Indeed, Swamy would still have to prove that the offence of conspiracy can be established on evidence of mere knowledge by Chidambaram of such subversive acts.  

The big take-away from this Order

The biggest and most important take-away from this Order is the need for compelling and sufficient evidence rather than deductions through coincidences or gut-feelings. In laying criminal charges, the trial judge walks on a very tightrope. Even the act of setting into motion criminal process against an individual has serious ramifications, particularly against the country’s Home Minister. That is why criminal law requires a higher threshold, even at the stage of deciding whether to initiate prosecution. On top of that, a charge of conspiracy is even more sensitive. As the Privy Council observed in an English case, “in a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against other.” Therefore, while it may be tempting to conclude that birds of a feather flocked together, there must be cogent and convincing evidence against each accused.

In conclusion, Swamy’s efforts in the Special CBI Court suffered from a lack of “prosecutable evidence”, a phrase widely heard in the separate context of SIT’s conclusions on Modi’s culpability (a matter which, interestingly, has many procedural parallels with this case against Chidambaram). A strategic error that Swamy may have made is in pursuing his war against Chidambaram in two courts at once. The evidence submitted by Swamy was held to be insufficient for initiating prosecution against Chidambaram in a criminal proceeding, but that same evidence may well have propelled the Supreme Court to order the CBI to inquire further through a constitutional remedy. The CBI may have either performed a lackadaisical investigation or gathered some solid “prosecutable evidence”. In either situation, Chidambaram would have had to resign as the Home Minister.

There may be no winners in this saga unlike what the UPA claims, nor has the persistent Dr. Swamy lost. There is no doubt that he will fight harder in the appeal stage. But there is one definite loser – impatience. Whether Swamy may have succeeded in getting the Supreme Court order a CBI probe had he pursued that route single-mindedly will go down as perhaps the biggest legal “what if” in this battle between him and his Harvard pupil.

Kartikeya Tanna is a Partner at Tanna Associates Advocates, Ahmedabad.

Paginate