“Not proven”

In Scotland, courts have the option of picking from three possible verdicts: Guilty, Not Guilty, and Not Proven.

It is this third verdict that the CBI special court actually pronounced today at the conclusion of the prolonged hearings into the 2G scam, some seven years after a report by then Comptroller and Auditor General Vinod Rai rocked Parliament, gave wings to the BJP’s anti-corruption plank, and led to the then UPA government fighting a losing battle at the polls.

Only, since it does not have the third option available to it, the court acquitted.

Special judge O.P. Saini said, “I have no hesitation in holding that record is not sufficient and the prosecution has miserably failed in proving charges. All accused are acquitted.”

Cue triumphalism by Congress leaders; condemnation of the verdict by the likes of S Gurumurthy, and calls for the government to immediately appeal the verdict by the likes of Subramanian Swamy. For its part, the CBI says it will “study the verdict” and then decide what steps it wants to take.

Meanwhile, the damage is already done. The credibility of the CAG is effectively undermined; the already non-existent credibility of the CBI hits a new low; and the anti-corruption credentials of the BJP government, which fought this case, is now null.

The full judgment is not out at the time of writing this and absent a close reading, any “analysis” is premature. Here, though, is a point of reference that might be worth keeping front and center when you finally get to read the judgment: the governments, then and now, played a considerable role in ensuring that the court could not rule any other way.

Back in July 2013, when the UPA was still in power, the government took the decision to call Anil Ambani as a witness for the prosecution (which, among other things, took the younger Ambani off the hook as far as his own role in the scam was concerned).

Normally, when the prosecution makes such a decision, it is a call based on the fact-based belief that the ‘approver’ has knowledge pertinent to the case, and this knowledge is vital to proving its case. Yet, just a month later, the same prosecution was asking the court to declare Ambani a “hostile witness” — the reason why is explained at length in this piece by the Wire from earlier this year.

If, therefore, the CBI is right in its original assumption that Ambani had knowledge pertinent to the case, the question becomes: what deal was struck with him at the time? After all, you don’t call someone as a witness without first knowing, from the person concerned, what he will testify to. Ergo, Ambani’s subsequent loss of memory strikes you as nothing more or less than a clever shell game: He escapes prosecution on the pretext of aiding the prosecution, and then he delivers a huge hammer blow to the prosecution case by effectively not testifying to anything. (You would expect that when that happened, the prosecution could well have told Ambani that if he was going to dig his heels in, then all bets would be called off — after all, there are two sides to every bargain, and if one party fails to live up to the terms, the other can also rethink).

In the meantime, though, the government of the day has changed. And at no time does the CBI, now under the control of the successor government, do a rethink about Ambani’s status, and his usefulness to the prosecution.

The 2G scam is associated with then Minister for Telecommunications A Raja, and then Rajya Sabha MP Kanimozhi. But it is worth remembering who else was accused:

The other accused were Raja’s ex-private secretary R.K. Chandolia, Reliance ADAG Group managing director Gautam Doshi, its senior vice president Hari Nair, group president Surendra Pipara, Swan telecom promoter Vinod Goenka, Unitech Ltd managing director Sanjay Chandra, Essar Group promoters Anshuman and Ravi Ruia, its director (strategy and planning) Vikas Saraf, Loop Telecom promoters Kiran Khaitan and her husband I.P. Khaitan, along with Loop Telecom Pvt. Ltd, Loop Mobile India Ltd and Essar Tele Holding.

Reliance Telecom Ltd, Swan Telecom Pvt. Ltd and Unitech Wireless (Tamil Nadu) Pvt. Ltd were also facing prosecution before the court of special CBI judge O.P. Saini.

That is a sizeable group of business bigwigs, who would all have fallen along with Raja and Kanimozhi had the CBI prosecuted its case successfully. Therefore, when the court says the CBI failed to prove its charges, the question that occurs to you is, cui bono? Who benefits? (In passing, this Wire story on Ravi Ruia might be of interest).

One thing though is clear — the judgment has gone a long way to providing oxygen to the Opposition in general, and to the Congress in particular. The BJP, led by Modi, will now struggle to make the “Congress is corrupt” case (remember that the Commonwealth Games fraud is now effectively buried; remember too that for all the huffing and puffing the government has not been able to bring home to Robert Vadra the various acts of corruption the BJP accused him of during the 2014 election cycle; remember also that Aadhar and MNREGA, both termed a national disgrace by none other than Modi himself, are now pet projects of this government).

What is even more interesting is that it is the Congress that can now make a credible case that the Modi government favours corruption. Because, on the first day of the Winter Session of Parliament, this happened.

There was no proposal to make Aadhaar linkage mandatory for property transactions, Parliament was informed today.

In a written reply in the Lok Sabha, Union Minister of State (Independent Charge) for Housing and Urban Affairs Hardeep Singh Puri, however, said the rural development ministry had advised the states and union territories to explore the possibilities of using consent-based Aadhaar authentication for registration of properties under the provisions of the Registration Act, 1908.

The comments assume significance in the backdrop of Puri reportedly stating last month that seeding Aadhaar to property transactions was a great idea and as the government was linking Aadhaar with bank accounts, it might take some additional steps for the property market also.

In an earlier piece on Demonetization, I had made this point:

Remember (watch from 31:05)? In Goa, Modi set up the gold and diamond merchant as a villain and spoke of how he had vanquished them with a law making the PAN card mandatory for the purchase of jewelry in excess of Rs 2 lakh. It was, he suggested, a masterstroke in the battle against black money – and yet, just 11 months later, the Modi government reversed its earlier notification when it decreed that no PAN or other identity proof was needed for jewelry purchases in excess of Rs 50,000. (Ironically, gold imports are now surging, indicating that with the shackles removed, people are converting black money into gold.)

In August this year, an Indian Express report suggested that Aadhar would be made mandatory for property transactions — which, along with gold, is another major hole into which black money is poured.

That hope, that the government would make it harder to convert black money into land, has now gone pfffft!

How, now, does the BJP continue to make the case that it is fighting corruption? While on this, here’s Kanchan Gupta — by no means a liberal, a Congress-supporter — on the news story cited above:

PostScript, 4.30 PM: The judgment in the 2G case apparently runs into over 1500 pages. Haven’t read it yet, and it’s going to take a while to read and annotate and compare with stories from back then. But here is what jumped out at me, from a story by The News Minute:

“…for the last about seven years, on all working days, summer vacation included, I religiously sat in the open Court from 10 AM to 5 PM, awaiting for someone with some legally admissible evidence in his possession, but all in vain. Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings.” (sic)

The prosecution was initiated by the UPA government. For the last three and a half years, it has been continued by the NDA government.

Related, I notice that Mukul Rohatgi has hailed the 2G verdict. This is interesting. Rohatgi had appeared for one of the accused in the 2G case. On June 19, 2014, the then newly-installed Modi government named him Attorney General of India, a post he held till June 18, 2017, by which time the hearings-in-chief in the 2G case had concluded. As such, he would have been the person guiding the prosecution in the case.

All of this merely confirms my belief that as far as big-time corruption is concerned, it is in nobody’s interests — not the Congress, not the BJP, not anybody — to see cases being successfully prosecuted.