Lessons From The 2G Verdict By Abhishek Singhvi

It punctures the main plank of the election campaign Modi ran on in 2014

The 2G verdict by the special CBI court, as it stands today, punctures the main plank of Modi’s election campaign on
the back of which BJP stormed into power in 2014. Its ravings and rantings about ‘astronomical corruption’ during the tenure of UPA government, repeated ad nauseam, has collapsed like a house of cards. The heart of Modi’s anti-corruption edifice has crumbled. If political opponents have treated the initiation of 2G criminal proceedings as a badge of dishonour for years, they have to be ready to treat it as a badge of honour when the initiation fails. The 1,552 page judgment provided closure to an over six-year long trial which extended beyond the courtroom, into vociferous TV studios turned kangaroo courts, followed by eyepopping headlines in national media. Large sections of the media, barely concealing their stand as a partisan participant, egged on by an irresponsible opposition and a sundry group of opportunistic activists, converted the propaganda into such a powerful mind machine that the public started to associate the Congress party with everything that seemingly went wrong in the country.
The judge noted, “a huge scam was seen by everyone where there was none.Some people created a scam by artfully
arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.” This is a damning indictment of CAG’s Rs 1.76 lakh crore figure attributed as a ‘presumptive loss’, generating one of the greatest mysteries of the universe as to how an institution like CAG could subvert due process and aid sensationalism. A
nonexistent auction standard was adopted as the gold standard and 3G figures used instead of 2G valuations.
The prosecution failed to prove any of the main allegations against the 20 accused: that ex-telecom minister A Raja
favoured Unitech and Swan Telecom; that the cut-off was changed to favour these two companies; that the first
come first served (FCFS) policy was subverted; that the entry fee was deliberately charged at low 2003 rates to benefit particular companies; and that a Rs 200 crore bribe was paid to Kalaignar TV.

The judgment found no evidence of criminal intent; assuming the FCFS policy not to be the best does not make it criminal. Here is a lesson for every stakeholder. Every error is not a crime though every crime is erroneous. Every faulty policy or its slipshod/ poor implementation is not a crime. Courts quash administrative decisions, eg grant of tender, selection of employee, allotment of land, daily. If every such quashing and declaration of invalidity was accompanied with criminality, governance would become impossible and the country would be an open jail. To read the Supreme Court quashing of licences in 2012 as indicating criminality, is to deliberately distort legal principle and obfuscate elementary
jurisprudential rules.
Equally comic is the syllogism which proceeds like this – SC did declare the grant of licences arbitrary and illegal, hence Raja being the minister must be guilty; Kalaignar TV did receive Rs 200 plus crore from Balwa companies; ergo, the directors of these companies, including Kanimozhi, must be guilty. (Incidentally, the Rs 200 crore
was judicially found to be a loan to the recipient and repaid to the giver within a few weeks.) Such approaches to crime would make first year law students blush and legal philosophers weep. Not one of the above establishes that even a crime has been committed, much less proving beyond reasonable doubt that Raja or Kanimozhi committed it.
The media has to learn that press hysteria does not establish criminal intent. The then opposition owes it to the electorate and to the accused not to unleash a crescendo of unmanageable proportions, making fair trial difficult,
apart from misleading the nation.
The judiciary has to possess nerves of steel to do objective justice, uninfluenced by fear or favour, because otherwise
India would be no different than its south Asian neighbours, where the ruins of constitutionalism litter the
legal landscape. The ruling party (then Congress) has to equally learn that kneejerk or panic reactions not only cause irreparable harm to the party but engender grave injustice to its cadre, office bearers and allies who may feel bereft of a sense of ownership of the party in difficult times.
When logic is suspended and trigger happy lynch mentality promoted, one has the strange spectacle of Congress,
which ironically was neither an accused nor had any Congressman as an accused, being held guilty vicariously
and by association (both anathema to criminal law) with the accused who were, to boot, not even convicted! The
public lapped up the propaganda and turned vindictive. The telecom industry, then a sunrise sector, went turkey. The country’s investment climate soured, influenced by the prevailing atmosphere. A decade of high growth fell by the wayside. Needless to add, it is too much to expect any of the erstwhile high constitutional office holders or guardians of our liberties, to own up or apologise. The biggest threat to free thinking, free speech and free decision making is not external but our individual and collective internal compulsion to conform. That is why we frequently
end up saying and doing what is perceptionally proper, not what is right.
That is why the 2G judgment is a victory for law and justice, for sober and robust judgment in a debilitating ambience. The enormous waste of time and resources based on hype is, however, a national tragedy with many lessons to be learnt.

The writer is National Spokesperson, Congress; he appeared as senior counsel for several principal 2G accused. Views are personal

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