The special court verdict on the 2G scam came as a surprise to many, especially since the Supreme Court (SC) had cancelled all 122 2G licences in 2012. The SC gave nine reasons and held that the “exercise undertaken by the officers of the DoT (Department of Telecom) between September 2007 and March 2008, under the leadership of then Minister of C&IT, was wholly arbitrary, capricious and contrary to public interest” and the minister wanted to “favour some companies”. However, the SC also made it clear that the Special Judge, CBI, shall decide the matter uninfluenced by its judgment. Justice G.S. Singhvi, who led the two-judge bench that cancelled the licences, recently said that the issue before the SC was that of the allocation of spectrum without auction and whether there was a conspiracy in spectrum allocation and that the issue of corruption was not before us and “that was for the CBI court to decide”.
The CBI special court, however, held there was no criminal conspiracy and the minister alone cannot be held responsible. But most surprisingly, despite the CBI having filed the chargesheet under the Prevention of Corruption Act (PCA) as well, the special court did not examine the issue of “corruption” by the public servants under the PCA. This act of the special court is puzzling.
Clause (ii) of section 13(1)(d) of the PCA provides that a public servant is said to commit criminal misconduct if he abuses his position to obtain any valuable thing or pecuniary advantage for himself or for any other person. Clause (iii) goes even further to say that even without abuse of power or personal gain, a public servant’s actions constitute criminal misconduct if he obtains for any other person any valuable thing or pecuniary advantage without any public interest. The punishment prescribed for such an offence is imprisonment for a minimum of one year which may extend to seven years.
Criminal conspiracy (under IPC provisions) and corruption (under the PCA) were separate and independent considerations before the special court. In particular, criminal conspiracy is not a prerequisite for an offence under section 13(1)(d) of the PCA. However, in its voluminous judgment, the court only discusses the former. Despite its relevance to the case, the PCA provisions did not even find a mention in the 1,552-page judgment, and the special court is silent on the matter of criminal misconduct by the public servants (that is the minister and officers).
The special court judgment is also silent on the issue of “public interest”, which is an essential ingredient of corruption under clause (iii) of section 13(1)(d) of the PCA. The issue of public interest should at least have been discussed by the special court. But the special court seems to have lost sight of the corruption issue, and to the extent that the issue of criminal misconduct under the PCA was ignored, its judgment is incomplete.
In its judgment on the coal scam case (CBI vs. M/S Kamal Sponge and Power Ltd. And others), the special court dealt extensively with both the issues of criminal conspiracy and the offences under 13(1)(d)(ii)(iii) of the PCA leading to convictions. This was a similar case with the same prosecutor, involving similar economic and legal issues, and was preceded by the SC’s cancellation of coal licences. What is puzzling is not that the respective courts reached very different conclusions but their approach varied significantly.
The judge has wide powers to get evidence under the Evidence Act and also under the Code of Criminal Procedure. In State of Uttarakhand Vs. Tilak Seth, the high court observed that, “The court cannot be a silent spectator like an umpire in cricket match, who is assigned the task of raising his finger and pointing to the faults in the game. A judge is an active participant in a trial proceeding.”
In Ram Chander vs. the State of Haryana, the SC held that, “The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire. If a criminal court is to be an effective instrument in dispensing justice… (the judge) must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.”
The 2G special court ought to have looked at criminal misconduct by public servants under the PCA before concluding that “a huge scam was seen by everyone where there was none”.