2G: Why the court refused to make Chidambaram an accused

In a huge relief to Home Minister P Chidambaram and to the United Progressive Alliance government, a Delhi court on Saturday threw out a plea to make him an accused in the 2G case.

The court held that he did not indulge in any criminal conspiracy or derive any pecuniary advantage in the decisions taken with former telecom minister A Raja.

Giving a clean chit to the finance minister at the time of the controversial allocation of the 2G spectrum in 2008, Special Central Bureau of Investigation Judge O P Saini said Chidambaram was party to only two decisions -- keeping spectrum prices at 2001 level and dilution of equity by two companies -- which "are not per se criminal".

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Apart from being a matter of relief personally for Chidambaram, today's verdict is also the first good tidings for the UPA government, which has been battered by a series of judicial pronouncements in the recent days in 2G and other issues.

The Special Court said that in the absence of any other incriminating act on his (Chidambaram) part, it cannot be said that he was acting in pursuit of the criminal conspiracy.

"There is no evidence on record that he was acting in pursuit of the criminal conspiracy, while being party to the two decisions regarding non-revision of the spectrum pricing and dilution of equity by the two companies," said the court.

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"Accordingly, I do not find any sufficient ground for proceeding against P Chidambaram. The plea is without any merit and the same is dismissed," the judge said in his 64-page order rejecting the private criminal complaint filed by Janata Party President Subramanian Swamy.

While the verdict was hailed by the Congress and various ministers, Swamy expressed "dissatisfaction", saying the judge has made an "error" and he would challenge it in higher courts.

The judge said there is no evidence on record to suggest that there was an agreement between Chidambaram and Raja to subvert telecom policy and obtain pecuniary advantage for himself or for any other person.

"There is no evidence of any substantive act being committed by him," the court said.

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"A bit of evidence here and a bit there does not constitute prima facie evidence for showing prima facie existence of a criminal conspiracy. Anybody and everybody associated with a decision in any degree cannot be roped in as an accused," the judge said while dismissing Swamy's complaint.

The special judge, who was left by the Supreme Court on Thursday to decide the plea to try Chidambaram in the case, distinguished his role from that of Raja's.

The court said Chidambaram did not act in a malafide manner in the fixation of spectrum price at 2001 rate and in permitting the dilution of equity, as alleged by Swamy.

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"There is no material on record to show that P Chidambaram was acting malafide in fixing the price of spectrum at the 2001 level or in permitting dilution of equity by the two companies. These two acts are not per se illegal and there is no further material on record to show any other incriminating act on the part of P Chidambaram," the court said.

Swamy's complaint against Chidambaram had claimed that along with Raja, the then finance minister deliberately fixed lower entry fees for the spectrum licenses and he was culpable along with Raja for allowing dilution of equities by Swan Telecom and Unitech Ltd to foreign firms.

"In a case of criminal conspiracy, the court has to see whether two persons are independently pursuing the same end or they are acting together in pursuit of an unlawful act. One may be acting innocently and other may be actuated by criminal intention. Innocuous, inadvertent or innocent acts do not make one party to the conspiracy," the court said.

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It also referred to a Cabinet note of October 31, 2003 on a decision of spectrum pricing, which said that Chidambaram had told Raja that there was no need to "revisit" the price fixed in 2001.

"A decision taken by a public servant does not become criminal for the simple reason that it has caused loss to the public exchequer or resulted in pecuniary advantage to others. Merely attending meetings and taking decisions therein is not a criminal act. It must have the taint of use of corrupt or illegal means or abuse of his official position by public servant for obtaining pecuniary advantage by him for himself or for any other person or obtaining of pecuniary advantage by him without any public interest," the court said.

It said Swamy could not bring evidence on record to show that Chidambaram was acting with "corrupt" and "illegal" motive and the case against him was distinguishable from other accused who are facing trial in the 2G case.

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