Worried over the negative impact of the US $672 million arbitration award in favour of Devas Multimedia and its shareholders and against ISRO’s marketing arm Antrix Corporation, the NDA government is learnt to have decided to rope in senior advocates K K Venugopal and Gourab Banerjee to represent the Department of Space and ISRO before Delhi High Court.
Simultaneously, the government has also decided to nudge the Central Bureau of Investigation (CBI) to speed up the ongoing criminal investigation in connection with the Antrix-Devas S-band deal. The government is of the view that the investigation will help it to counter any claims that Devas makes before the Delhi High Court, where its matter is listed for hearing on Friday. Devas is likely to seek a high court order for execution of the multi-million dollar award secured by it from the three-member ICC Tribunal.
The government hopes to prove in court that the deal was scrapped by the previous UPA government due to illegalities and irregularities in the contract between Antrix and Devas. It is also likely to involve senior lawyers in the two other international arbitrations — under Bilateral Investment Treaties — filed against ISRO and Antrix.
In March, the CBI had registered a case against K R Sridhara Murthi, the then executive director of Antrix Corporation Limited; R Vishwanathan and M G Chandrasekhar, both of Forge Advisors LLC, USA and M/s Devas Multimedia Pvt Ltd, Bengaluru and other unknown officials of Antrix Corporation for criminal conspiracy.
The CBI is also investigating whether information regarding the agreement between Antrix and Devas was suppressed from the Cabinet and “wrong information” regarding utilisation of satellite capacity was given to the Cabinet. The January 28, 2005 agreement was annulled by Antrix, as per a decision dated February 17, 2011 of the Cabinet Committee on Security.
However, perusal of the official record by The Indian Express and interactions with officials associated with the matter shows the shoddy and lackadaisical manner in which it was handled.
The lack of proper legal representation and failure of the government to intervene in the arbitration proactively and neglect of the established standard operation procedures are being cited as reason for the adverse award. Senior government officials also admitted that, to be begin with, the response of Antrix was “very weak” and that there was “never any hope for a different order”. Lawyers are learnt to have told the Prime Minister’s Office that unless a “clear case of malafide” can be made out against Devas, the Antrix case for annulment of arbitration award will be weak.
A senior government functionary also pointed to the legal opinion given by then Law Secretary T K Viswanathan in 2010 to the Department of Space on whether the Antrix-Devas contract could be annulled invoking any of the provisions of the contract. In his opinion, Viswanathan had categorically said that since the government was not a party to the agreement, it “would not be advisable to terminate the agreement directly by it”.
“Action for annulling or termination of the agreement, if any, has to be taken by the parties to the agreement and in this case it is Antrix Corporation,” the opinion said. Viswanathan had also suggested a way out: “The Central Government/ISRO is not duty bound to provide orbit slot to Antrix for commercial activities, when there is strategic requirements. When the Central Government/ISRO deny the orbit slot to Antrix in exercise of its sovereign power and function, such event may fall under the category of ‘Force Measure’ as contemplated in Article 11 (of the contract).”
“It seems either nobody in the previous government read the opinion or they ignored it,” said a government functionary.