The 2G Judgment of December 2017: What Was It About?

The judgment provides a critique of how no proper evidence was presented on existence of an FCFS policy and its improper implementation.

Shyam Ponappa 

  |   January 4, 2018

The recent 2G judgment raises perplexing questions about the case, with pointers in the judgment to issues of concern that we need to address going forward.
 

This preliminary analysis highlights questions that arise from select issues covered in the judgment of over a thousand pages: Can government policy itself be prosecuted as alleged wrongdoing, as the charge sheet apparently tried to do? The judgment states that the FIR alleged in item 1 that the licence fee in 2008 was Rs 16.58 billion as in 2001, and licences were issued on a first come, first served (FCFS) basis without competitive bidding.¹

a. These are factual statements in accord with prevailing policies, and licences could be applied for at the fee set in 2001. The charges question the appropriateness of the policies as there was no competitive bidding or auction.² Arguments for changing the policy to adopt auctions, or to increase fees, appear unconnected with proving wrongdoing.

b. Regarding the FCFS policy, the charges are twofold. One is whether or not there was in fact an established FCFS policy. Another is alleged malfeasance in policy implementation.

Was there an FCFS policy?

The judgment finds that the FCFS policy has been misrepresented in the claim that only one application was processed at a time.3 This is analysed and contradicted in detail. The judgment gives several contrary examples provided by the defence, such as later applicants being processed earlier when there was a problem with compliance by the earlier applicant, of successive applicants given letters of intent (LOIs) on the same day, and applicants with LOIs seeking repeated extensions before letting them lapse. The judgment states that no evidence was presented of a systematic FCFS process for the issue of LOIs and spectrum allocation/assignment in the case of 51 prior licences issued. The finding is that because there was a single applicant at a time earlier, a sequential process was followed, but that this was not a conscious policy. Also, that the evidence from the Wireless Planning and Coordination Wing (WPC) is that priority for spectrum allocation was from the date of application for spectrum, and not from the application for the unified access services (UAS) licence (LOI). The judgment concludes that there was no evidence to prove that there was an FCFS policy in the form as alleged in the charge sheet. The sense one has from the instances cited is that there was a loose policy with no standard operating procedure.

Possible malfeasance & evidence

Another allegation in the charge sheet is that the FCFS policy, such as it was, was implemented in a manner that resulted in wrongful gains. From press reports at the time, one expects that this statement of possible malfeasance is the sort for which evidence might be available and presented. So, was such evidence presented?

The FCFS process changed from the date of application for a licence in the order in which it was received to actual compliance with terms of the LOI. This meant submitting all requisite information, documentation and clearances together with bank drafts and guarantees. Earlier, the FCFS criterion was the completed application (as in the instance of a later complete application being processed before an earlier incomplete application). The judgment records that consideration of the proposed change to LOI compliance was publicly known well beforehand and was even published in the press.

The counter is that because of a large number of applicants, the criterion was established for serious applicants who complied with the conditions of LOIs, including all clearances and payments. All applicants were apparently well informed of impending developments at the Department of Telecommunications (DoT). The judgment notes: “Everything was leaking in DoT. There was no secrecy or sanctity… In such a situation, no blame can be cast on any of the accused alone.” However, one is left with a sense that this area has not been conclusively explored.

Some questions remain

A broad question: Is there a way to deliver justice while avoiding the infructuous path of dealing with the several hundred thousand pages of documents over seven years and the opportunity cost so far for all involved in just this case? If so, how do we change course going forward? The charges appear to have conflated the questioning of policy with allegations of improper implementation and culpability. Might separating the questioning of policy from establishing wrongful implementation and culpability be more constructive? Could defining narrower culpable allegations, focused on evidentiary material, obtain conclusions beyond reasonable doubt?

* The judgment provides a scathing critique of how no proper evidence was presented on the existence of an FCFS policy. What is the explanation for a weak case by the prosecution?

* The charges sought to prove that there was a conspiracy of all the 17 accused, and that the first indication of it was the letter from the DoT to the solicitor general regarding LOIs for pending applications. Could the charges have targeted other events and activities based on likely availability of evidence, and if so, what might they have found? Examples: Bringing forward the deadline for applications from October 1, 2007 to September 25, 2007, or the lack of orderly standard operating procedures adopted in changing the priority of applicants from the date/time of application to LOI compliance.

* Regarding wrongful gains, there is no indication if forensic methods were used in tracking transactions and if so, what the methods and findings were.

* What explains the rough-and-tumble process that applicants had to go through in complying with LOIs related to the case?

For the New Telecom Policy in 2018, we must hope to learn from and avoid such adverse situations. One way is to facilitate collaborative and transparent implementation.

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Shyam(no space)Ponappa at gmail dot com

1. Delhi District Court judgment: Cbi vs . (1) A. Raja (A1); on 21 December, 2017.pdf

https://indiankanoon.org/doc/17920655/

2. The Trai (Telecom Regulatory Authority of India) recommended auctions in August 2007 for all spectrum except “2G bands”, but not for licensing. Acceptance by the DoT would have made this the policy, but this recommendation was not accepted.

3. (Ibid) Page 524, Paragraph 753

Hard Changes for Better Times

It's time to work together for what we need.

Shyam Ponappa   |   

September 4, 2014

As the government settles in amid signs that the economy's edging up, fundamental changes in approach would help us fare very much better. Our needs haven't changed: the assumption of law and order as a prerequisite, with a great deal more of basic infrastructure in the form of energy,water and sanitation, transport, communications, and basic health and education services. Beyond these, there are the second-order infrastructure needs of healthcare, education, and financial systems and services. Together, these can facilitate productive and more comfortable living, making every day less of a battle.

However, merely wanting all these is not sufficient, as we know from experience. Good intentions aren't enough to solve problems, nor are public consultations. There are many mountains to be climbed, from individual aspects of discipline, education/skill development, and diligent application, to the collective aspects of organisation, collaboration, applied expertise across many domains, and access to reasonably priced capital. These are where institutional changes addressed seriously can help achieve our priority objectives.

What Must Change?

Attitudes: Contention vs. Solutions  A major weakness in our approach is the high level of dissonance in our society. Is it because of our unwillingness to accept that there's more to know than any one of us does, as individuals? We also seem to operate contentiously, rather than working out solutions that are acceptable to others as much as to ourselves. It's difficult to explain this unwillingness to consider with an open mind, or to accept our limitations. It's almost as though our electoral rights without obligations extend to a tendency to hold opinions without the basis of supporting evidence, domain knowledge, or understanding. This is perhaps why all the good people and good works don't seem to add up - and, despite the many isolated, encapsulated efforts, our disjointed, uncoordinated society seems to border on chaos.

One part of the remedy requires changing our attitudes to the process of engagement itself, from contending against to actively seeking solutions among stakeholders, i.e., seeking resolution. We need to seek solutions and to resolve conflicts and trade-offs, which often have to be eclectic, and usually beyond any individual's capacity, and not to merely demolish other people's ideas. Above all, the effort has to be collaborative and not factional. A tall order, but perhaps worth pursuing.

Standard Operating Procedures (SOPs)  Another essential aspect of the remedy is adopting a systems approach with SOPs of due process followed as a protocol, like an algorithm, a problem-solving routine with a set sequence.

Discipline  A necessary adjunct is discipline as part of the process. This includes educating ourselves to the point of pursuing professionalism and developing respect for it, and for others' professionalism. For instance, suggestions of ideas to be implemented often evoke dismissive comments on why they won't work, or that other countries' experiences are irrelevant. We certainly have to script our own story, but we can definitely learn from others, just as we do in the arts, humanities or sciences. It doesn't matter whether it's from China or Germany, or Malaysia, Singapore, Japan, America, or the Scandinavian countries, or in formulating policies to encourage automobile manufacturing or mass transport, or in using coal or nuclear energy. These principles need to become habits of a collaborative problem-solving approach, of goal-oriented, disciplined SOPs that make for good project management. They are cradle-to-grave practices, to be worked into curricula and nurtured through school and beyond, in adult education.

Sequencing  There is sometimes confusion about the sequence in pursuing changes in policies and regulations. It's logical that objectives in the public interest should shape policies, and these in turn should drive the processes of legislation, rules, regulations, and procedures in that order, with no ambiguity.

Weak Implementation  Our greatest weakness, of course, is in not implementing even reasonable laws and regulations. Going forward, however, this needs to change, and regulations need to be enforced despite the difficulties.

Public-Interest Objectives  The supremacy of objectives in the public interest seems unexceptionable, but if we consider issues like spectrum management, broadband policy, fuel pricing, or urban development, it's not obvious what the objectives are, or how public interest is served in the shaping of policies in these areas. Attempts to provide genuinely beneficial outcomes will be revolutionary in scope and scale.

The Government's Role


There are opposing ideas based on free-market or statist philosophies of whether markets should drive evolution in policies, or if governments should do so. In reality, free-market bastions have resorted to more intervention, as in the Strategy for American Innovation1 premised on building leading physical infrastructure and an advanced IT ecosystem, or the UK's broadband policies. Meanwhile, statists have moved to introduce more market-driven considerations. In India's case, we need to follow methods that serve the public interest without ambiguity, although establishing what that is may be a non-trivial exercise.

Government is certainly an important stakeholder and the ultimate arbiter of policies. More importantly, it can and must provide the leadership and sustained impetus in organising and coordinating stakeholder consultations to define objectives and facilitate convergence based on public-interest considerations. The private sector cannot ordinarily do this on a sustained basis even where markets are well developed. Even in such environments, it is arguably not the best course in the public interest. Because of our colonial legacy, a change in government attitudes to act as a co-participant will be difficult to effect, although it will be of tremendous consequence.

Experienced facilitators can help in converging interdisciplinary consultations to arrive at pragmatic decisions. Such expertise could greatly improve government consultations with other stakeholders. Equally, technical, financial, organisational, and administrative expertise and inputs are required to formulate practicable, viable solutions.

Initiatives such as the Planning Commission's India Backbone Implementation Network2 appear to have begun well, although some links on the web site are not maintained. Case studies on ecotourism3 and a garment manufacturing cluster4, among others, appear promising. Such initiatives need strong, sustained government support to not fall away as yet another "scheme" that has ended in isolation.

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Shyam nospace Ponappa at gmail dot com
1: http://www.whitehouse.gov/administration/eop/nec/ StrategyforAmericanInnovation; 
2: http://www.ibinmovement.in/; 
3: http://ibinmovement.in/wp-content/uploads/Cooperative_Tourism_Development_Project_Yes_Bank.pdf; 
4: http://www.ibinmovement.in/media-centre/case-studies/ogtc/