The order concludes that Chidambaram "agreed" that spectrum in 2008 could be priced at rates discovered in 2001 and also "told Mr. A. Raja that there is no need to revisit the same". This emphatic dissuasion was clearly made after due application of mind. On what grounds can we conclude that it was made innocently and not for collateral advantage? Is it not that the very pricing of spectrum at prices discovered in 2001 was declared to be malafide by the Supreme Court last week? Is it not the reason why Raja is in jail? In Chidambaram's case, such acquiescence in Raja's designs has been dismissed as a classic case of much ado about nothing.
The order observes that a decision taken by a public servant does not become criminal for the simple reason that he has caused loss to public exchequer or resulted in pecuniary advantage to others. That takes us to Clause (d) of Sub-Section (1) of Section 13 of the Prevention of Corruption Act. Accordingly, a public servant is said to commit the offence of criminal misconduct when he, by abusing his position, obtains for himself or for any other person any valuable thing or pecuniary advantage.
Simply put, the moot point here is not how much money is made directly by a public servant, but it is all about allowing someone else to make money by refusing to intervene — i.e., by abusing his position.
In the instant case, the question that remains unanswered even to this date is whether the former FM committed criminal misconduct by abusing his position? Was his reluctance to decisively intervene tantamount to a breach of trust as trustee of national finances? Was dissuading Raja, as explained above, part of a grand design? Interestingly, the order focuses on the issue of conspiracy — a grey area in criminal law, especially in white collar crimes. It is to be noted that these crimes are violations of laws that involve the use of power, influence or breach of trust. One key question remains unanswered: When did the former FM comprehend that it was a fraud on the exchequer, and what did he do once he realised the same?
Those who have been following the 2G scam realise that it unfolded at a glacial pace over a four-six month period beginning November 2007. Several correspondences were exchanged between the Cabinet ministers including Raja and the Prime Minister, including objections from the then Law Minister H R Bharadwaj. Yet, no one from the government deemed it fit to intervene.
Ominously, the order concludes that the decision about pricing spectrum was "subsequently conveyed to the Hon'ble Prime Minister also" [Para 66]. Nevertheless, the order then goes on to conclude that there was no material on record to show that P. Chidambaram was acting malafide.
Needless to emphasise, all these matters can be considered only during trial, including allegations of malicious suppression and planned omissions. Simply put, the question posed to the trial court was whether there was prima facie material to include the former FM "as a co-accused". Given the facts and circumstances of the case, a sweeping conclusion of innocence seems strange to those sceptical of the carefully nurtured aura of rectitude of the Home Minister.
Nevertheless, since the trial court has rejected this plea at the threshold, the matter shifts to a higher court, perhaps even the Supreme Court, which will have to decide whether the former FM was a victim of circumstance or villain of the piece; whether ministers can plead ignorance when one of their colleagues engages in such gargantuan loot, and when it is their constitutional responsibility to take care of the country's finances. Finally, whether the PM too is among those responsible for the sordid affair.