Briefly discusses the immediate fallout of Judge OP Saini's order in the 2G spectrum license case.

1. Vinod Rai’s Report & Judge OP Saini’s Order - Some Thoughts
A few things about Vinod Rai’s 2G report and CBI Judge OP Saini’s order of Dec 21, 2017:
1. Rai’s report nowhere used the Rs. 1.76 lakh crore figure of loss. This was derived by
politicians and the media by adding the highest figure in Rai’s ranges of notional losses owing to
low tariffs, free spectrum and gain in equity of bidders at the post-license stage.
2. The loss of tariff was computed as afterthought and after the 3G auction took place. No
distinction was made between 2G and 3G although the latter then, was a piggyback service. Yet
the 3G auction collection of Rs. 70000 crore was multiplied by a factor of 1.50 on some vague
‘international’ norms and motivated surmise. In effect, Rai was standing in the present but
judging the past. Why would anyone do this?
3. From this figure Rai reverse calculated the price of 1.8 Mhz spectrum that was offered by DoT
as a free bundled offer to attract players in a zero supplier market that was the constitutional
prerogative of the State. This added another about Rs. 35000 crore to the Rs. 1.05 lakh crore
notional tariff loss
4. Again by comparing stock prices of successful bidders before and after they were awarded
licenses, Rai worked out another notional figure of about Rs. 36000 crore. Was such trading
legal? Yes, it was. Then whose case was Rai arguing in his report? The hand points toward
existing service providers that would have been the biggest losers with new competition, some of
them from cash-rich countries with established track records like Telenor and Etisalat.
5. Another related issue. 3G auctions bankrupted MTNL and BSNL without any improvement in
the quality and reach of their services. In turn, this laid open the cellular market to mercies of
private service providers. That is why Jio found the going so easy in recent times while TRAI
has simply remained a passive bystander.
6. Rai’s tenure in Dept. of Financial Services from Jt. Secy. to Secy. for 4-5 years coincided
(2003/4-2008 when he became CAG) with the expansion of cellular infrastructure in India. This
prompted the sanction of loans by PSBs flush with funds to providers. Then the 3G auction ate
away whatever these providers had earned in boom time, just as it bankrupted MTNL & BSNL.
More loans were doled out and today the telecom sector accounts for Rs. 5-6 lakh crore of NPAs.
Ironically, the GOI has recently doubled the time for payment of license fees due from providers
for 2G/3G spectrum from 8 to 16 years that has hit the public exchequer the most. Interesting
isn’t it that Rai’s report should have shielded existing cellular operators from license to loans?
7. The audit of DoT by Rai’s officers took less than six months. Should it have taken more? Yes,
since locating the files would have consumed huge time. Instead the auditors were reportedly
given file numbers and pages to scrutinize. Few Indian Audit & Accounts Service officers knew
what was going on even at the apex level. It is but travesty that one of these officers is making
baseless allegations of ‘conflict of interest’ in newspaper articles and the e-media today even
though he was one of those near to the epicenter of the 2G report. It was as if Rai was providing
a reverse audit cover to a private report that already existed and he alone was privy to it. Sounds
fantastic doesn’t it? But Rai’s report itself was fantastic wasn’t it?

2. 8. The centerpiece of Rai’s report was that malfeasance had occurred because bidders who
submitted their demand drafts as earnest money deposit had got them made the day before the
tender was opened. The SC also bought Rai’s reporting on this issue in its order of 2012. Was
this sufficient to nail the accused? Evidently not!
9. Was auction of public resources the best or only option? No. The SC too in J. Khehar’s
judgement did not say so either. Of course, this required transparency to be maintained that was
certainly not done. And it is here that hanky-panky probably took place, something that never
will be proved by documentary evidence.
10. Journalists, indeed many others, are ‘outraged’ by the Judge Saini’s order. They believe that
malfeasance happened and must be punished. A leading light even says that Rai’s report is
‘remarkably’ well-documented. But then so was the CBI’s charge sheet at 80000 pages with
evidence of another 3-4 lakh pages! And, like Rai’s report the charge sheet was junked by the
learned judge. I wonder how many journos have personally read Rai’s coal and 2G spectrum
reports before making their wisecracks.
11. Coming to the CBI and ED, let us not forget that both operate with huge quantitative and
qualitative personnel shortages. White collar crime needs services of highly trained and paid
forensic professionals, not babus. When often outrageous surmise replaces hard evidence, that is
when the babu investigator falters or cannot understand the way to go. He ends up with an
80000-page charge sheet and thousands of sacks of meaningless evidence, much of which the
babu would never have seen himself. I say this from personal experience of over three decades.
So long as there is a govt.-appointed favorite policeman/men in these organizations, nothing will
change. Investigation and police is not the same cup of tea, they are as different as chalk from
cheese. And that is what Judge Saini was indirectly driving at in his order, several times over.
13. Finally, was there corruption in 2G, etc.? Rai’s motivated reports on coal, 2G and many more
in two years preceding 2012 (when it was apparent that UPA was coming back to power) had
open elements of manipulation in each of them. It saddens me to see that a 200-year old
institution like the CAG should have been hijacked by one person to suit his own nefarious ends.
And no one talks of him? Why?
14. If there was corruption, why is it that CBI officers did not turn up in court with evidence?
Were they told to do so? If so, by whom? Why did the lack of evidence continue to plague this
case since May 2014 when there was a change of guard on Raisina Hill? The then CAG and his
officers, the investigative agencies and their top officers must answer for their failure and
negative motives. Have the assets of the officers named above been ascertained? A Vasant Vihar
floor with full terrace rights on a 1500 sq. yd. plot should not be cheaper than Rs. 30-35 crore.
15. Was the CBI’s prosecution deliberately weakened by GOI itself? This evening NDTV’s
Sunethra Choudhury reported on the 9 pm news that an SP level IPS officer, Vivek Priyadarshi,
who was the Investigating Officer in the 2G case was also assigned the Vyapam case in MP. For
the last year or two this officer has been almost whole time working out of Bhopal. His superior,
a DIG, Rastogi, also an IPS officer was apparently harassed and charged with leakage of
information on the 2G case. So much so, this officer sought premature repatriation to his parent
Maharashtra cadre. That left the prosecution headless that Judge Saini has repeatedly emphasized

3. in his order. The only conclusion that can be drawn is that the prosecution was deliberately
sabotaged from within.
16. Who are the biggest gainers and losers? Losers first, the BJP alone tops the list questioning
the basis of its anti-corruption plank that it rode to power in 2014. The second loser is Vinod Rai
for reasons I have mentioned above and his institution’s top officers that connived with him and
brought the 233-year old venerated institution into irreversible disrepute. Another loser is
Subramaniam Swamy, MP, whose latest letter to PM Modi warns the latter of the fallout of
Judge Saini’s order on the 2019 elections, never mind Arun Jaitley’s logic-less interventions in
the media. The clear winner is the Congress, in particular ex-PM Manmohan Singh, and, by
logical extension, Mrs. Sonia Gandhi. Although Judge Saini’s order does not exonerate the
accused, law presumes the accused to be innocent unless proven guilty. And Judge Saini found
no evidence beyond reasonable evidence to declare any of the dozen accused guilty. Another
winner is the senior bureaucracy that have repeatedly demanded protection for policy makers in
their midst and have their ex-Coal Secy. sentenced to prison term. The last major winner is Rahul
Gandhi who can now start on a fresh slate without taint of corruption of his party. And that is a
big worry for the BJP.
17. What could be the fallout of this order? For one, if elections in four states in 2018, viz.
Chhattisgarh, Rajasthan, MP and Jharkhand go badly for the BJP, as it did in Gujarat, BJP would
need to depend on the AIADMK for its support in the Lok Sabha. DMK will come into play only
if the TN Assembly is dissolved prematurely and the DMK is able to win that election to support
the BJP in govt. formation in 2019. Second, virtually absolved of criminality at least till 2019 (by
which time no appeal to the HC & SC will be decided), the Congress would probably regain its
credibility and once again emerge as the ultimate coalition maker and preserver. In any case,
voting patterns in states and central elections vary widely that the Congress may benefit from.
The coming months will be interesting to watch.
18. Before closing I must make a few more important points. The Union Cabinet must accept
ultimate responsibility for decisions on national resources. Why should they fire the gun from the
bureaucracy’s shoulders forever? Second, GOI needs to realize that the civil service is a most
discontented lot presently for a variety of reasons. To expect them to be party to clearly
commercial decisions is most unreasonable. Neither do they have the training nor the
consequential mindset. Third, brazen blackmail by CAG, CVC, CBI, etc. needs to be stopped in
their tracks instead of selectively using their reportage to propel political advantage as in 2014.
Firing Vinod Rai from all posts and approaching the SC to remove him forthwith from the COA
of BCCI on grounds of singular lack of integrity needs to be taken within this week itself to
contain further damage to the ruling regime and investigate his assets and all loans sanctioned by
PSBs to telcos during his tenure as JS-Secy. in Dept. of Financial Services. Last, investigative
agencies need to brought to book for irresponsible discharge of their duties. Rule 3 of the CCS
and AIS Conduct Rules provides for disciplinary action against all officers for lack of devotion
to duty. Why not invoke this clause to charge sheet ED and CBI personnel and Vinod Rai (who
eve as CAG continued to enjoy the protection of AIS Rules) next week?
In the aftermath of the Shah Commission of Enquiry no political party is willing to walk the
extra mile and bring offenders from rival parties to book, lest the same fate await the ruling
regime at the next hustings. That cannot be stretched to mean that patronage of protection shall
be arbitrarily extended to rivals as insurance in the future, at the expense of the taxpayer and

4. common citizens of this nation. Judge Saini, to his fullest credit, exposed many of the above
points, directly or indirectly, including willful sabotage of the prosecution. He is the knight in
shining armor, just like Ajit Bharihoke, Kamini Lau and few more that deserve out-of-turn
promotion to the SC. Although I have not been able to go through his 1550+ page order, the little
that I have seen is extremely well documented and reasoned. Appeal is not going to be easy
considering CBI & ED’s professional limitations.
The author is a senior public policy commentator and author