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Did the 2G judge give Chidambaram a clean chit?

Author: Kartikeya Tanna
Publication: Firstpost.com
Date: February 20, 2012
URL: http://www.firstpost.com/politics/did-the-2g-judge-give-chidambaram-a-clean-chit-218469.html

The retired Supreme Court judge Justice Asok Kumar Ganguly, who delivered the landmark judgment cancelling 122 2G licenses issued by A Raja, has now stirred up a hornet’s nest with his statements indirectly exonerating P Chidambaram from any blame in the 2G license issue. In an interview to Karan Thapar on his show Devil’s Advocate, Justice Ganguly was asked the question about whether anyone other than Raja shares any blame in the 2G process. He answered in the negative.

What is it with judges, having held significant positions in the judiciary, whose statements seem to contradict and muddle more than elucidate?

In the 2G case even though the Court order cancelling 122 licenses was widely interpreted as entirely invalidating the first-come-first-serve (FCFS) policy per se, Justice Ganguly clarified that the judgement did not make any “absolute propositions” and that each decision on allocation of natural resources must be reviewed in its specific context. This confirms an earlier analysis on Firstpost though it would have been desirable had this clarification been expressly stated in the judgement itself.

On more than one occasion, Justice Ganguly told Karan Thapar that he was not here “to defend the judgement”. By agreeing to be on Devil’s Advocate, he ended up doing just that. To be fair, he resisted many questions on the nitty gritty of the judgement. On the most critical question of responsibilities of others in the government for the 2G scam, however, which includes Chidambaram, Justice Ganguly ended up explaining the judgment and, in the process, absolving all others from blame.

Did Justice Ganguly really have to answer on individual responsibilities in the unconstitutional and illegal grant of 2G licenses?

The answer, quite clearly, is no.

The question before the Supreme Court in that matter was whether the licenses granted by the Department of Telecom were arbitrary and unconstitutional and, consequently, subject to cancellation. Therefore, in determining this, the Court had to arrive at the conclusion that the grant of licenses was vitiated due to certain arbitrary and wrongful decisions taken by the Department of Telecom (for example, arbitrarily shifting the cut-off date, granting spectrum to ineligible applicants etc.). It is rather obvious that the Court could not have arrived at such a critical decision without elaborating the deficiencies in the process of granting licenses and the resulting invalidity of that executive decision.

Importantly, however, this exercise is not the same as holding Raja (or anyone else) criminally culpable on an individual basis. While it is true that the deficient and arbitrary process was led by Raja – and to that extent the examination by the Special CBI Court Judge and the Supreme Court would overlap – the Court’s decision to cancel licenses was merely concerned with the process and the invalidation of the executive decision rather than individual criminality.

In other words, the Supreme Court’s focus was on the executive decision and its constitutional validity whereas the trial court’s focus is on the executors of that decision (ie Raja and other officials) guilty of criminal wrongdoing.

Justice Ganguly did clarify this vital difference. In the first half of the interview, Justice Ganguly specified that the decision to issue licenses was a “decision of the government” which was defended by the government’s law officers in Court hearings.

Yet, towards the end of the interview, Justice Ganguly, visibly pushed by Karan Thapar, ended up making statements that may, in all likelihood, lead to usage of words much loved by the media – the “clean chit”. Karan Thapar rather cleverly conflated the question on collective responsibility with the question on individual blame and Justice Ganguly ended up agreeing that no one else is to blame for the 2G scam.

In an interview to Outlook, Justice Ganguly, clearly irked by retired judges making comments on pending cases, asserted that retired judges should desist from doing so. Yet, he has ended up doing exactly that. Admittedly, the case against Chidambaram under the Prevention of Corruption Act is not pending in so far as Subramanian Swamy has not filed an appeal yet, even though there is every indication that Swamy would be filing an appeal.

Justice Ganguly’s appearance on Devil’s Advocate comes on the heels of former High Court judge H Suresh appearing on NDTV and making unsolicited statements and conflating double hearsay as evidence . Even though Justice Suresh wasn’t pressed as much as Justice Ganguly was, he nonetheless volunteered to make scandalous disclosures, albeit legally insignificant, on Modi’s role in the 2002 riots.

Though Justice Ganguly’s opinions do not have a bearing on Indian courts anymore, his statements have the capacity to add to the ferment outside the courtroom, particularly in media reports, and particularly since Swamy has vowed to pursue his fight against Chidambaram till the final stage.  But what Devil’s Advocate showed is how our judges perform once they are the ones being cross-examined.

The result is not comforting.
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