Details of CAG report on 2G Spectrum Scam

The Supreme Court of India has rapped the premier investigating agency, Central Bureau of Investigation (CBI), for conducting a slipshod investigation into the 2G Spectrum Scam. The Apex court took the CBI to task by stating that the agency was dragging its feet in the investigation.

The SC is hearing two petitions in the matter. The first was filed by an NGO, Centre for Public Interest Litigation (CPIL), and the second filed by Janata Party chief Subramanian Swamy. Swamy had challenged the Delhi High Court order that rejected his plea to direct the PM to grant sanction to prosecute Telecom Minister A Raja.

CPIL has placed before the Supreme Court two draft reports of the Comptroller and Auditor General (CAG), which pointed out that the 2G scam has caused a loss of over 1 lakh crore to the exchequer. Canary Trap brings you some important extracts of the CAG draft reports, which directly points a finger of suspicion towards Raja for alleged irregularities and favoritism in the allotment of spectrum.

  • Despite all agencies having full knowledge of scarcity and under pricing of spectrum, the entry fee for issue of licenses continued to be pegged at 2001 rates even in 2007 without delinking and independently pricing spectrum through a market mechanism, when the entire scenario in the telecom sector had transformed in the meanwhile.
  • Ignoring the advice of the Prime Minister, and the Law Ministry, Raja went ahead with arbitrarily deciding that the cut-off date for issue of LoI would be advanced to September 25, 2007 and the applications received would be decided on first-come-first-serve (FCFS) basis.
  • The CAG report states that “it was amply demonstrated between September 2007 and December 2008 that its (spectrum) demand in view of its scarcity was at its peak and thus would have fetched the market determined price at a much higher level than that of 2001 entry fee. If price is calculated at 3G rates, which also be taken as one of the indicators for assessing the value of 2G spectrum allocated to UAS licensees in 2008, the value works out to Rs 111,511 crore against Rs 9,012 crore realised by DoT. Similarly, for spectrum allocated under the dual technology as referred in earlier para the value would have been Rs 40,526 crore, as against Rs 3,372 crore collected. The total difference in value worked out to Rs 139,652 crore.”
  • It was evident that at the time of applying for UAS licence the substantial equity of M/s Reliance Telecom Ltd in M/s Swan was 10.7%. Since M/s Reliance Telecom Ltd. were operating in all the service area for which M/s. Swan Telecom Ltd. has applied for USAL, their application was not in conformity with clause 8 of UASL Guidelines, and hence was not eligible to be considered. DoT did not have any mechanism to verify the correctness of the shareholders pattern of the applicant and hence the matter should have been referred to the Department of Company Affairs as was advised by the Finance Wing of the Department. No Reference, however, was made to the Department of Company Affairs and instead M/s Swan Telecom was given an opportunity to resubmit a revised stake holding pattern in December 2007 i.e. 9 months from their date of application which declared that M/s Reliance Telecom had divested their entire stakes. This was accepted by DoT and M/s Swan Telecom was given the benefit of seniority form the date of their initial application i.e. March 2007. As M/s Swan did not meet the eligibility criteria on the date of application, its application, its application should have been rejected by the department and the company should have been asked to apply afresh. Even if it is was to be considered eligible on the basis of its old application, the date of priority based on FCFS basis should have been revised from March 2007 to December 2007 in order to ensure fairness. Had it been so, the company would have been out of the race as the department processed only those applications which were received up to 25.09.2007.
  • It was noted that the priority list was adjusted in Punjab and Maharasthra service areas to give under advantage to M/s Swan Telecom Pvt. Ltd. in allocation of spectrum. In Punjab service area, 15 MHz GSM spectrum was available in September 2008 which was sufficient to meet the demand of only first three applicants in the priority list i.e. M/s HFCL, Idea Cellular Ltd. and Unitech Wireless Pvt. Ltd. The request of M/s Idea Cellular Ltd. who was at the second place in the priority list was, however, not considered on the grounds of its merger with M/s Spice who were offering service in Punjab service area. By keeping out M/s Idea from the priority list, spectrum was allocated to M/s Swan Telecom who was at the 4th position on the priority list. In identical situation in Maharashtra service area, M/s Spice Communications was not allocated start-up spectrum citing its merger with M/s Idea Cellular Ltd. Here too, the resulting beneficiary was M/s Swan Telecom Pvt. Ltd.
  • Deviation from a Cabinet decision should normally be with the approval of Cabinet. However, in the present case, such a crucial decision to permit service providers to offer access services using combination of technologies (CDMA, GSM and/or any other) under the same license with the dual spectrum allocation was taken without the matter being referred to Cabinet.
  • DoT has given a list of operators who could attract foreign investments, consequent to the grant of UAS licenses in January 2008 as in the Table below (Table not included in the post). Out of the above six, three companies viz M/s Swan Telecom, M/s S Tel and M/s Unitech were new entrants in the telecom sector. The fact that these operators could draw huge foreign investment, even before establishing a foothold in the Indian Telecom market would suggest that acquiring UASL and with it, allotment of 4.4 of GSM spectrum for rollout, was the main factor which attracted the foreign investment.
  • The Unitech Wireless Services, claimed in their letter to DoT on November 4, 2008 that M/s Telenor was partnering with them at a stage when about 6 months of effort and Rs 2,100 crore expenses had already been put in and the entity’s value was not only that of spectrum. However, considering that Telenor is an established international provider of a high quality telecommunications, data and media communication services and one of the Norway’s largest companies owned 54% by the Norway Government what they would have required to run their business in this country was, primarily access to the spectrum. Considering its trained manpower strength in 12 countries, its long standing technical expertise and international experience of dealing in telecom business, it can be convincingly concluded that, the high value paid by them was primarily for the spectrum and not for other inputs claimed to have been infused by Unitech. Such huge equity infusion by the investor company was a price that they paid for 2G spectrum which was allocated to Unitech, a company with no experience in telecommunication sector, at a throw away price DoT. The value which should have accrued to the new licensees in the form of huge capital infusion for enriching their business.
  • The entire process of spectrum allocation was undertaken in an arbitrary manner. The Hon’ble prime Minister had stressed on the need for a fair and transparent allocation of spectrum, and the Ministry of Finance, and the Ministry of Law and Justice had sought for the decision regarding spectrum pricing to be considered by an EGoM. Brushing aside these concerns and advices, the Development of Telecommunications, in 2008, proceeded to issue 122 new licenses for 2G spectrum at 2001 prices, thus flouting all rules and procedures to be followed for spectrum allocation was also unfair, considering the fact that DoT introduced in artificial cap, arbitrarily changed the cut-off-date for receipt of applications post facto and altered the conditions of the FCFS procedure it had been following, thus creating an environment which cannot be perceived as transparent and fair.
  • Dual Technology was introduced by DoT in a manner, which was in contravention of the Cabinet decision of 2003, resulting in additional spectrum being allotted to certain operators at 2001 price. Also by introducing unfair adjustments in the priority list, DoT favoured certain operators. Given its scarcity value and increasing demand, a comprehensive evaluation of available spectrum was required which was not done. With the UAS policy and its subsequent amendments being implemented in a weak and indeterminate manner and with the reluctance on the part of DoT to address the issue of pricing of 2G spectrum, it was only natural that 2G spectrum was allocated at much below its value.
  • The Hon’ble MoC&IT for no apparent logical or valid reasons ignored the advise of Ministry of Law, and Ministry of Finance, avoided the deliberations of the telecom Commission to allocate 2G spectrum, a scarce finite national asset at less than its true values on flexible criteria and procedures adopted to benefit a new operators. TRAI, the regulator also stood by as a helpless spectator when its recommendations were being either ignored or misused.

The CAG draft report also mentions a note (Dated: January 15, 2008) sent to the PM by the Finance Ministry, which says that the “previous issues of licences be treated as a closed chapter and henceforth price of spectrum be discovered through an auction process.” This reveals the casual approach within the UPA Government towards this mega-scam, which resulted in a loss of Rs 139,652 crore to the exchequer.

Despite mounting evidence (from CVC, CAG, CBI) of blatant corruption A Raja still presides over the Telecom Ministry. While Prime Minister Manmohan Singh — heading one of the most corrupt governments in our country post-Independence — seem helpless in taking action against Raja because of the electoral considerations for the assembly polls in Tamil Nadu due to take place in 2011.

Welcome, President Obama

BY MALOY KRISHNA DHAR

Welcome to a dazzling and sparking Deepavali, Mr. President. India will make a best presentation of its festival of lights despite several dark threads inter-winding our bilateral relationship and our approaches to various international problems; especially the problems in our immediate neighborhood and in the region. We are not exactly sailing in the same boat, yet we are compelled by history and destiny to sail in parallel direction by the effect of same jet stream. We are stable practicing democracies and are grateful for America’s support for early freedom from British yoke. You played the role France had played in respect of the Northern America, for breaking away from the shackles of British servitude. As the first non-white American President having his roots partially in Asia, we welcome you with heartiest oriental warmth.

Obviously, India and the United States will talk about issues of mutual concern like terrorism, jihad next door and global threat from Islamist terror groups. With the end of the Cold War, the Pan-Islamist forces have imposed a new cycle of fascist Warm War on the civilized world. This is reminiscent of Islamist hoards overrunning the North African, European and Asian civilizations. As the frontline custodian of global peace, the United States of America has a global responsibility to fight this fascist Warm War; India will be ready to support you.

Besides the freezing ambiance of the Cold War period and India’s perceivable leaning towards the USSR it must be admitted that Washington had never blessed the non-aligned movement and rather interpreted it as a front for Communist advancement in Third World countries. The myth is not yet busted. Somewhere, in some corners of American policy-outlook, India’s sovereign thinking towards global strategic situation and our policy approach towards countries ‘not so friendly to the U.S.’ are still suspected by policymakers in Washington. This reflects the post WWII hegemony hangover of the United States. Please help the U.S. to get out of this hangover. We have every right to frame independent foreign policy approaches to countries like Venezuela, Panama, Cuba, Nigeria and Russia.

However, American assistance in capacity-building in traditional counter-terrorism was started in the early 1980s during the administration of Ronald Reagan, when some officers of the Intelligence Bureau (IB) and the Research & Analysis Wing (R&AW) were sent initially to the UK and then to the US for training in matters like dealing with hostage situations.

The U.S. in 2001, during the administration of George Bush, started certain capacity-building assistance to India. Cyber security was the initial area of US assistance. This was extended to maritime security in ports and container vessels, prevention of catastrophic acts of terrorism involving the use of weapons of mass destruction material etc.

Mutual legal assistance in the investigation and prosecution of terrorism cases was started during the second term of Ronald Reagan when the assistance of the Federal Bureau of Investigation (FBI) was sought by India for the investigation of the assassination of Gen. A. S. Vaidya, retired Chief of the Army Staff (COAS), by some Khalistani terrorists in Pune in 1985. The co-operation declined during the administration of Bill Clinton. The U.S. agencies were only partly helpful when their assistance was sought in the investigation and prosecution of the Mumbai blasts of March 1993. The co-operation had improved under the George Bush and Barack Obama Administrations. Under the Obama Administration, the FBI was helpful in the forensic examination of the intercepts during the 26/11 terrorist strikes. For the first time, FBI officers testified before the trial court through video-conferencing. In the past, the FBI’s policy was not to allow its officers to testify before an Indian court.

Problems in intelligence sharing

Intelligence sharing is the most unsatisfactory aspect of Indo-US counter-terrorism co-operation. Before 26/11, the U.S. had hardly ever shared with India any worthwhile preventive intelligence. However, in 2008, during the Bush Administration, the FBI was reported to have passed on to Indian agencies three fairly specific bits of information about the plans of the Lashkar-e-Taiba (LeT) to launch a sea-borne attack on some seafront establishments in Mumbai including the Taj Mahal hotel. This is what probably Headley had shared with the FBI/CIA. Now it is known that David Coleman Headley had been planning an attack on India in collaboration with the ISI and the LeT for a long time. This was known to the U.S. authorities. Perhaps they could have tackled Pakistan to restrain their spy agency.

All U.S. administrations have, as a matter of policy, refrained from sharing with India intelligence relating to terrorism in Jammu & Kashmir. The U.S. agencies are allowed to share with India only preventive intelligence relating to planned acts of terrorism by jihadi organizations in Indian Territory outside J&K. Here too, the agencies are required to share the intelligence in such a manner as not to implicate Pakistan and not to add substance to India’s case against Pakistan for the sponsorship of terrorism in Indian Territory. There have been exceptions to this such as the reported U.S. warning to India about a planned terrorist strike against the Indian Embassy in Kabul by terrorist elements instigated by the Inter-Services Intelligence (ISI).

As long as the U.S. continues to attach importance to counter-terrorism co-operation from Pakistan for dealing with the situation in Afghanistan, its intelligence-sharing with India and co-operation with India against Pakistan will be half-hearted. Mr. President, in case you are keen to fight terrorism in Pakistan and Afghanistan, India should be the most trusted ally and not Pakistan. America is feeding a demon in Pakistan and expects the same demon to devour all terrorists. Would you like the world to believe in such American naiveté? Sorry, even a common street-walker laughs at such foolish U.S. policies.

Another highly unsatisfactory area of co-operation is U.S. keenness to protect Pakistan from the consequences of its using state terrorism against India. It was reported that after the U.S. troops entered Kabul in 2001, the U.S. response to Indian requests for the interrogation of some suspects and for the examination of some documents relating to the Kandahar hijacking of 1999 was unsatisfactory. So was its much-delayed response to Indian requests for the prompt interrogation of Headley of the Chicago cell of the LeT who had visited India five times for collecting, targeting information for the Pakistan-based terror group. The recently reported disclosures of two ex-wives of Headley — one living in the US and the other in Pakistan — about their alerting an FBI Task

Force in New York and the U.S. Embassy in Islamabad regarding Headley’s terrorist links with the LET could have embarrassing legal consequences for the U.S. Government. The LeT was designated by the State Department as a Foreign Terrorist Organization (FTO) under U.S. laws in 2000. It is criminal for any U.S. national to maintain contacts with an FTO or to assist it in any way. The alerts of the two ex-wives showed that Headley had violated U.S. laws relating to contacts with an FTO. He should have been immediately detained, investigated and prosecuted. The FBI did not do so. He continued to maintain his contacts with the LeT and we have an instance of an American national helping an FTO in killing some U.S. nationals in Mumbai without the FBI taking any action to stop this. If the relatives of the Americans killed in Mumbai take the State Department, the U.S. Embassy in Islamabad and the FBI to court for this, they could face difficulty in defending themselves.

During their meeting in London in January 2000, Jaswant Singh, the then Indian Foreign Minister, and Strobe Talbot, the then U.S.

Deputy Secretary of State, agreed to set up an institutional mechanism in the form of the Joint Working Group on Counter-Terrorism. This was followed by the setting up of an Indo-U.S. Cyber Security Forum as suggested by Armitage in 2002. The forum ran into controversy following Indian suspicions that the CIA had misused it for penetrating the National Security Council Secretariat. During Prime Minister Manmohan Singh’s visit to Washington DC in November last year, the two countries launched what was described as a Joint Counter-Terrorism Initiative to strengthen counter-terrorism cooperation in different fields such as forensics, megacity policing etc. This was formalized into a Memo of Understanding in July 2010. It is not clear which institution co-ordinates and monitors its implementation. The Headley case illustrates deficiencies in its implementation.

The trust level between the Indian and U.S. agencies leaves much to be desired. The U.S. anxiety to protect Pakistan adds to the distrust. Dear President, the U.S. intelligence edifices, the Pentagon, the NSA etc are painfully aware that out of 5 global terror plans, terrorists of Pakistan origin are involved in three cases. Pakistan has become a terror manufacturing country.

Pakistan: Terror factory

Besides, LeT, there are outfits like Markaz ud Dawa (please ask FBI to show you the interrogation report of Headley), Jaish-e-Mohammad, Harkat-ul-Jihad al Islami, Hizbul Mujahideen, Sipaha Sahaba, Lashkar-e-Zhangvi, Tehrik-e-Taliban Pakistan etc.

Certain terrorist forces were created and trained by the ISI specially to fight against India (please ask CIA to produce the interview excerpts of self-exiled Gen. (Retd) Parvez Musharraf.)

Why had it not been possible for the U.S. to pressure Pakistan to dismantle 45 jihadi training camps in Pakistan occupied Kashmir and other places? America has pumped in more than $12 billion to Pakistan economy (in civil and military). Washington has not carried out an audit of the development works carried out so far. The Pakistan Army has even declined to assure that weapons and armaments supplied by the U.S. would not be used against India. Pakistan’s nuclear stockpile is increasing and the world is not sure that these deadly nukes would not be exploited by unscrupulous Generals like Musharraf or by al Qaeda and related terrorists.

Now additional two billion will only strengthen the hands of General Kiyani, the favorite boy of Pentagon and Hillary Clinton. The more billions you pump into Pakistan for fighting terrorism more instability is created in the region. Part of the money goes to strengthening the armed forces, part goes to the jihadi forces created by the ISI and the some part goes to al Qaeda and Taliban. It is painful to see that the U.S. finances its own enemies through the most unreliable ally: Pakistan. How can India trust the U.S. with this kind of disastrous foreign policy, which is supposed to be the anchor of democracy in Islamist-chaos ridden world? We are perplexed by such policy naiveté of the White House.

Mr. President, your government is painfully aware that China is gradually increasing its stranglehold on Pakistan. In rural India there is a saying that a snake charmer can smooch a snake as well as a mongoose. No doubt President Yahya and Z. A. Bhutto had built a bridge between the U.S. and China. However, Washington overlooked reports of supply of Chinese and North Korean missiles to Pakistan. Pakistan’s so-called Ghouri missiles are nothing but Chinese workhorses redesigned by Pakistani scientists with Chinese collaboration. It is not unknown to Washington that there was no Islamic bomb; it was Chinese bomb refabricated by Pakistani scientists. The nuclear thief and proliferator Dr. A. Q. Khan was a Chinese collaborator. The CIA and NSA were aware of the whole sordid Chinese-Pakistani collaboration but the hangover of Kissinger-era visceral hatred towards India had compelled Washington.

Right from Johnson, Carter, Bush, Clinton etc era the bias against India continued unabated. Perhaps, the 9/11 attack on the very heartland of the States sent a shockwave. Washington realized that its favorite satellite in South Asia had turned rouge; but it could not say bye to the rogue beauty. A kind of forced cohabitation still continues. It’s like a Nawab of Oudh visiting a courtesan in the night, regretting it in the day, and again allured to visit and lavish the beauty with gifts. Fortunately, India is rugged unlike the beautiful and charming Pakistan.

China’s expansionist policy

Ambiguity of U.S. policy over Chinese presence in Pakistan and gradual Chinese advancement in regions of Nepal, Myanmar, Bangladesh and attempts to bolster bondages with Cambodia, Thailand and Vietnam have started worrying the strategic thinkers in Asia-Pacific region. The Japanese have already started talking about a new Chinese policy of ‘greater lebensraum’-greater living space. Recent Chinese talks about Okinawa being a part of China has added to the expansionist design of China. The lebensraum policy of Hitler had resulted into the WWII. Would we face WWIII in another 25/30 years because of Chinese lebensraum policy?

Have your policy soothsayers been looking into the magic ball? What do they advise you? Please enlarge the American global vision beyond Dollar and Yuan equation, trade and commerce and correlate China with its expansionist designs.

While India shares concerns of Asia-Indian Ocean-Asia Pacific Rim countries’ concerns, we are more worried about Chinese occupation of a vast area of Jammu and Kashmir, gifted by Pakistan to it in violation of the UN mandate. This has given China continuous land connectivity between Aksai Chin and the Karakoram areas ‘temporarily ceded by Pakistan pending solution of

Kashmir dispute with India.’ Besides illegal occupation of Aksai Chin areas of the Leh region of J&K, China has obtained dominating position in Kashmir region. The CIA briefing reports must have presented to you Chinese muscle flexing on Kashmir matters in favor of Pakistan. To any future negotiated settlement, China has been made a party by Pakistan by its action of ceding the territory. This causes serious concern in India.

Your government is aware of presence of Chinese troops in Pakistan numbering about 15,000. A Pakistani spokesman pleaded that they were there to help in flood relief work. In a country that is totally dependent on the army, is it not ridiculous to invite the Chinese Army to help in flood relief work?

What causes concern is presence of unspecified Chinese workers and PLA elements in Gilgit-Baltistan areas in road construction works and construction of hydro power projects. India has launched formal protest as legally the whole of Jammu and Kashmir (including areas occupied by Pakistan) had acceded to India. In addition, Chinese presence in Balochistan and other areas of Pakistan are not unknown to the CIA.

Amid concerns by India and the U.S., Pakistan claimed that it had inked a deal with China to build two nuclear reactors in 2009 itself, even as the two countries signed six agreements during the visit of President Asif Ali Zardari to cement their all weather bilateral ties. It is understood that China and Pakistan are on the anvil of reaching a series of understandings on nuclear activities and development of IRBM and ICBM. Why does Pakistan require ICBM? To hit remote parts of eastern and southern India or Israel?

Hopefully the American snoopers will divert their telescopes towards Pakistan once in a while from Iran and try to understand what is cooking up inside the vanguard of Islamic jihadist country.

Looking forward

According to Dan Twining (Foreign Policy, October 19, 2010), The Centre for a New American Security had drawn up a policy paper that broadly outlined the U.S. attitude towards emerging India. In his words, “The stakes are high: the United States has a compelling interest in facilitating democratic India’s emergence as a global power to help shape a world order conducive to our common interests and values.” More particularly, as the report notes, U.S. interests in strengthening ties with India are premised on:

  • Ensuring a stable Asian and global balance of power
  • Strengthening an open global trading system
  • Protecting and preserving access to the global commons
  • Countering terrorism and violent extremism
  • Ensuring access to secure global energy resources
  • Bolstering the international nonproliferation regime
  • Promoting democracy and human rights
  • Fostering greater stability, security and economic prosperity in South Asia, including in Pakistan, Afghanistan, Nepal, Bangladesh and Sri Lanka

How should the United States act to advance these interests with India? In order to chart a more ambitious U.S.-India strategic partnership, we believe that the United States should:

  • Commit, publicly and explicitly, to work with India in support of its permanent membership in an enlarged U.N. Security Council
  • Seek a broad expansion of bilateral trade and investment, beginning with a Bilateral Investment Treaty
  • Greatly expand the security relationship and boost defense trade
  • Support Indian membership in key export control organizations, a step toward integrating India into global nonproliferation efforts And liberalize U.S. export controls, including the removal of Indian Space Research Organization (ISRO) subsidiaries from the U.S. Entity List

Of course, strategic partnership is a two-way street, and India lately has disappointed American friends who had hoped for more progress on nuclear liability, defense cooperation, and trade and investment. India has an equal responsibility to help move the relationship to a higher level.

Mr. President, you will honor us by addressing the joint session of the Parliament. We shall eagerly wait your pronouncements on regional and strategic security in South, Southeast Asia and the Asia Pacific Rim region. Your visit to India and Indonesia offer you unique opportunity to initiate a security garlanding system in the India Ocean region, countries around China and its enteric ally North Korea, and present an infrastructure that can withstand the dream of lebensraum of China. While applauding its economic surge, the U.S. may also like to begin a campaign that democracy and people’s participation are more important than producing cheaper goods through bonded labors. If America could undertake a mission Saddam for restoring democracy why should it shy away from putting pressure on the pseudo-communist giant? Perhaps a time has come to conceive a fresh axis in this vast fluid region which is unstable and which can counterpoise Chinese muscle-flexing. Mr. President, if America fails this historic opportunity it will do so only at the cost of its rating as a top global power. The British Lion does not roar today. The American Bison should not sacrifice its horns in a mock fight with Chinese papier-mâché lion.

With all humility and pride, we in India want to welcome you and submit that we want to prosper as an equal partner and not as a client state as Pakistan is. You will find in India a stronger spine against Chinese expansionism, Islamic jihadism and a rapidly progressing democracy in the Asian continent.

(Maloy Krishna Dhar retired as a Joint Director of India’s internal intelligence agency, Intelligence Bureau. He is a guest writer with Canary Trap.)

China’s great game in Nepal

The Maoists on Wednesday showed black flags and even hurl a shoe at the vehicle of the Indian Envoy to Nepal, Rakesh Sood. As they step up their anti-India campaign, the Nepal Maoists tried to block the road as Sood was on his way to inaugurate an India-assisted project at Salleri in Solukhumbu district.

The anti-India rhetoric of Maoists has increased in recent times and sources in the Indian Government attribute it to the rising Chinese influence in Nepal. A recent media report about alleged telephone conversation between a senior Maoist leader (Krishna Mahara) and a Chinese man about use of $6.75 million to bribe members of parliament to elect a Maoist PM clearly points to China’s increasing interference in Nepal.

In this context, Canary Trap has decided to reproduce here a letter written to the Ministry of External Affairs on the issue of rising Chinese influence in Nepal.

(Note: The letter, marked confidential, was written on September 25, 2009 and may contain certain things which may be dated. The identity of the person who wrote the letter has not been revealed at his request.)

Confidential

Shri S M Krishna
Minister for External Affairs
South Block
New Delhi 110011

Smt Preneet Kaur
Minister of State for External Affairs
South Block
New Delhi 110011
preneet@sansad.nic.in

Dr Shashi Tharoor
Minister of State for External Affairs
South Block
New Delhi 110011
tharoor.shashi@gmail.com

Smt Nirupama Rao
Foreign Secretary
Ministry of External Affairs
South Block
New Delhi 110011

25 September 2009

Dear All,

Namaskar. I would like to meet you and discuss some serious issues confronting our nation, including strategic security interests, foreign and economic policy.

A highly sensitive and most disturbing development has been reported. It has been suggested the during the attempted resolution of the conflict between differing perceptions of the Ministries of Home, Defence, External Affairs and the PMO, it was proposed that pursuing and furthering the Peace Proposal with Pakistan has become imperative because we are not in a position to engage in a war with Pakistan.

Reportedly, this lack of preparation referred to both, logistic deficiencies as well as the undermining political and strategic influence of Pakistan’s deep covert, subversive and criminal penetration of our economy and society.

If reports reaching us are correct, and it is very difficult to discount them, then territorial concessions in Jammu and Kashmir upto the Chenab are being contemplated, because of the necessity to further the engagement with Pakistan, without letting the situation escalate into a war!

Reports of the kind detailed above have forced me to seek an engagement with your ministry and the Government of India and offer some added contributions, which I hope could prevent conceding such a walkover to anti-India forces. At a time like this, all patriotic Indian forces need to work together.

In the light of the above mentioned inputs, it is necessary to add that, situational assessment is the basis of policy. And situational assessment is the product of the awareness, exposure, access, penetration of the issue, the understanding of the subject and the acumen of the assessors. It appears that the present government of India team could use some help.

There is a serious need to fully evaluate and assess the Chinese role behind all moves perceived to be breeding anti-India hostility in our neighbourhood. The Sino-Pak axis and the more comprehensive Sino-Wahabi axis are elemental sponsors of the manifest anti-India resentment in our neighbourhood. Despite this, no serious effort has been made to initiate engagements/interventions which are capable of modulating/neutralising Chinese policy/governmental behaviour in our interest. It appears that there is just a total absence of self-belief in our policy/diplomatic teams, that we can tame the Chinese.

There is a pressing need for foreign policy mandarins in South Block to re-evaluate history with liberal doses of analytical Chinese self appraisal from honest philosophers like Hu Shih (one time ROC Ambassador to the US from 1938 to 1942), who admitted, “India conquered and dominated China culturally for 20 centuries without ever having to send a single soldier across her border.” This must be the basis of government of India’s renewed foreign policy for our immediate neighbourhood. I would like to develop this with you and your colleagues at the MEA.

Often non-government people-to-people and cross-border people-to-government initiatives achieve significant progress, while official government-to-government communications tend to start rambling and get bogged down by issues of propriety, precedence or sheer personal limitations of the individual interlocutors.

Over the last one year my engagements in neighbouring Nepal on various occasions, including the dismantling of the Maoist-led government and the installation of the Madhav Kumar Nepal led government, despite the perceived initial reservations of the Indian embassy in Kathmandu, is an example of what can be achieved with a little sensitivity, and a correct appreciation of our security requirements at any given point of time.

I had to intervene once again in July 2009 to nullify the Maoist threat to mobilise on the streets. Though it was a private individual effort without the support of, or acknowledgment from the government of India, it was my way of serving my country by keeping hostile elements at bay.

(If the Ministry, in its evaluation of the impact of the previous Foreign Secretary Menon’s interaction with Nepalese Leader of the Opposition Pushpa Kamal Dahal, was surprised by success beyond expectation and even beyond parameters laid out, it is just possible that this surprise could be explained by the Ministry’s refusal to factor in my meetings with the same gentleman on 21 & 22 July, 2009: this would have explained the Maoist retreat in July-August 2009. Any disconnect perceived, vis-a-vis expectation as per briefings, during the current Foreign Secretary’s visit earlier this month, can also be similarly explained. See Annexure: TOI Report datelined14/09/2009)

Since I have already addressed the Nepal situation as a case in point, I might as dwell upon it a little more in this letter, in the light of current developments which are threatening all the painstaking pro-India lattice that we have erected over the last one year. I am reproducing below, inputs sent by me to the Government of India a few days ago which, sadly, have failed to elicit any response as yet:

Nepal is again at a crossroad. The option is between (1) Madhav Nepal led governance and keeping the Maoists at bay till the end of the tenure of the present CA, and (2) involving the Maoists and attempting to write a constitution.

While the first option may not contribute to lasting peace in that country, it is likely to yield us some more time to defang the Nepali Maoists. The problem is, that even when we have the time (as we had over the last few months) we do nothing but procrastinate.

Engaging with the second option will keep us relevant over a longer period, otherwise we risk being swept away. But in this case also, we are on a continually weakening/worsening wicket.

The actual solution is covert operational engagement with a view to keeping our security interests intact. But are there any takers?

Apparently, Chinese infiltration of Nepali speaking (Chinese agents passable for Nepali origin) populace has crossed 25 lakh people.

I would like to recount two stories I heard in Nepal.

1. A former Minister told me how he received an invitation to attend the Chinese National Day celebrations. He conveyed his greetings but expressed his inability to attend given that he no longer goes out and is no longer active politically. Thereafter the Chinese Ambassador called to renew the invitation personally. Thus persuaded, he went to attend. There were over 10,000 guests at the celebrations, much more than at any comparable function in the Indian embassy. Since the Minister did not identify most faces present, he made his way in, a bit and then decided to come back because there was hardly room to walk. As he was coming out, a Nepali called out to him (in Nepalese) by name with the respectful suffix Dai and led him in. Then he was greeted by the Ambassador and a few other Chinese diplomats. Two days later, the former Minister received a personal invitation from the Chinese Ambassador to vist him at the embassy. After meeting the Ambassador, as the former Nepalese Minister made his way out, he again spotted the Nepalese gentleman who had first identified him at the National Day celebrations. When the former minister asked this Nepalese “how come, you are here?” he learnt that the gentleman was working in the Chinese Embassy. Since the Minister presumed that the gentleman must be from his area to be so well disposed to him, he asked him which district and anchal did he come from? Thereupon the clarification came that the culturally well adapted and linguistically fluent (in Nepalese) gentleman was a Chinese! The former Nepalese Minister admitted his inability to spot the difference until the truth was specified to him. Since then, the former Minister has been wondering about those 10,000+ guests attending the Chinese National Day celebrations whom he could not identify as known faces despite the small town atmosphere of Kathmandu: how many of them were Nepalese speaking Chinese?

2. In the marketplace three toughs (including one Karate Black Belt) belonging to the leading Kathmandu trouble gang tried to get fresh with three ordinary looking girls selling Chinese goods on portable hand-carry Khoncha type tray shops. Bystanders tell us that as soon as the tough put his hands on one of the girls, the next thing people there were aware of was that all the three toughs were on the floor, the Karate Black belt had a broken arm and leg, another had a broken jaw and the third had myraid smaller injuries; and the girls disappeared during the commotion which followed. Everybody who saw the operation is convinced that the girls could not be just ordinary salesgirls.

Another report informs us that the PLA is recruiting 10 million teenaged girls to train as escorts/call girls who are to be placed across national capitals for political subversion!”

God help us!

Coming back to the issue which I had raised in the communication quoted above, “The option is between (1) Madhav Nepal led governance keeping the Maoists at bay till the end of the tenure of the present CA, and (2) involving the Maoists and attempting to write a constitution.” This time to choose has once again come to a head; I would really appreciate a clear communication from the Ministry on the choice that we are making.

Recent developments including meetings between the Party leaderships of the Big Three are sending signals which are impossible to ignore. The Maoist declaration of bringing a No-Confidence Vote on 7 September cannot be ignored. One way or the other, it must be addressed. Finally, G P Koirala’s “Message on the occasion of Vijaya Dashami-2066” portends change which we must evaluate and react to.

The Nepal example/case study apart, we also need to take urgent decisions on the core issue of China policy if we are to address the roots of the problems rather than be forever engaged in inefficient fruitless reactive and symptomatic firefighting.

I earnestly request you and your colleagues in the Ministry of External Affairs, government of India to evaluate brief non-controversial, non-surgical, seamless peace initiatives, which could solve the problems facing the country and shift the balance of the equation squarely in our favour.

Looking forward to hearing from you at an early date, I am,

Yours sincerely,

XXXXX XXXXX

Six corrupt CJIs named by Prashant Bhushan

Prashant Bhushan recently submitted a supplementary affidavit in the Supreme Court of India where he has submitted evidence to back his allegations that “half of the last 16 Chief Justices have been corrupt.”

Bhushan has admitted that getting documentary evidence of corruption in the higher judiciary is difficult. Despite this, his historic affidavit throws light on blatant corruption in the top echelons of the Indian judiciary.

The affidavit also lists instances of how impeachment motion could not be brought against some CJIs. The reason, Bhushan states, is the reluctance of MPs to sign an impeachment motion against a sitting judge of the Supreme Court or a sitting Chief Justice of a High Court (despite documentary evidence of serious charges of misconduct). This is because of a fear of judicial backlash against the MP or his political party, most of whom have cases pending in the courts.

The excerpts from Prashant Bhushan’s affidavit are reproduced below.

Justice Rangnath Mishra
Tenure: September 25, 1990 – November 24, 1991

Chief Justice Rangnath Mishra as a judge of the Supreme Court presided over a Commission of Inquiry on the genocide of Sikhs in 1984.

He conducted the inquiry proceedings in a highly biased manner and went on to give a clean chit to the Congress party, despite there being considerable evidence implicating senior leaders of the Congress party.

The evidence against the Congress leaders and party has come out in subsequent official inquiry reports as well as in the subsequent CBI investigations.

He went on after his retirement to agree to become a Rajya Sabha MP of the Congress party.

K N SinghJustice K N Singh
Tenure: November 25, 1991 – December 12, 1991

Chief Justice K N Singh who followed Justice Rangnath Mishra, passed a series of unusually benevolent orders in favour of Jain Exports, and its sister concern Jain Shudh Vanaspati.

Several of these were passed during his 18 day tenure as Chief Justice, and many of these cases were ordered to be listed before him by oral mentioning.

This became such a talked about scandal in the corridors of the Court that eventually in a hearing on 9th December 1991, the counsel for the Union of India was forced to object to the manner in which the cases came to be listed before Justice K N Singh’s bench. He was forced to give a labored explanation about how and why he ordered the matter to be listed before him when it was before another bench.

All these judgments came to be reviewed and reversed later by a series of subsequent benches, in some of which, the review petitions were heard in open court, in a departure from the normal procedure.

A M AhmadiJustice A M Ahmadi
Tenure: October 25, 1994 – March 24, 1997

Chief Justice A M Ahmadi who succeeded Justice Venkatachalaiah went on to quash the charge of culpable homicide in the criminal case arising out of the Bhopal Gas leak.

Seven benches were changed during the hearing of this case, the only common judge in all these benches was Justice Ahmadi who was Chief Justice and constituting the benches.

This judgment of quashing the charge of culpable homicide before the trial, not only delayed the trial, but led to such miscarriage of justice, that the Supreme Court has thought it fit to issue notice on a curative petition filed by the CBI even 14 years after that judgment.

Justice Ahmadi’s house in Kant Enclave is completely illegal and in violation of the Supreme Court’s judgments as well as the Forest Conservation Act has now been emphatically stated by the Supreme Court itself in its order dated 14/5/08 on the clarification application on behalf of Kant Enclave.

The Centrally Empowered Committee of the Court has found the violations of those who constructed their houses in Kant Enclave so egregious, that they have recommended the demolition of these constructions which includes that of Justice Ahmadi in their report dated 13/1/09.

Justice M M Punchhi
Tenure: January 18, 1998 – October 9, 1998

The Committee on Judicial Accountability had prepared an impeachment motion against Justice M M Punchhi, which had been signed by more than 25 members of the Rajya Sabha. The motion did not get the requisite number of signatures since he went on to become Chief Justice of India.

The six extremely serious charges in the impeachment motion against Justice Punchhi are detailed below:

1. That as a Judge of the Supreme Court, while deciding an appeal of Shri K N Tapuria against a judgment of the Bombay High Court dated 10.12.93 by which he was sentenced to two years rigorous imprisonment, Justice Punchhi allowed the Appeal and acquitted Shri Tapuria on thebasis of a purported compromise entered into between Shri Tapuria and the alleged representative of M/s Turner Morrison & Co., and thereby remitted his prison sentence. This was done despite the fact that the offence of criminal breach of trust for which Shri Tapuria had been convicted cannot be compounded in law and thus could not have been allowed to be compromised by the complainant. In fact, the order acquitting Shri Tapuria dated 25.4.95 passed by Justice Punchhi was on extraneous considerations.

2. That as a Judge of the Punjab & Haryana High Court, Justice Punchhi heard and dismissed a Writ Petition of the Vice Chancellor of the Rohtak University, Dr. Ram Gopal containing serious allegations of malafides against the then Chief Minister of Haryana Shri Bhajan Lal. That while he decided this case dismissing allegations against Shri Bhajan Lal, two of his unmarried daughters residing with him, Ms. Madhu and Ms. Priya, applied for and got allotment of two valuable house plots in Gurgaon from the discretionary quota of the Chief Minister, Shri Bhajan Lal. The plots were allotted on 1.5.86, the same day Justice Punchhi dismissed Shri Ram Gopal’s Writ Petition against Shri Bhajan Lal. The judgment of Justice Punchhi dismissing the Writ Petition was obviously given on extraneous considerations.

3. That as Inspecting Judge of the Punjab & Haryana High Court, Justice Punchhi made an adverse inspection report questioning his integrity, against Shri K.S. Bhullar, Sub-Judge-cum-Judicial Magistrate of Punjab, for the reason that Shri Bhullar had refused to decide a case before him involving Justice Punchhi’s co-brother in his favour.

4. That as a Judge of the Supreme Court, Justice Punchhi attempted to hear and decide a case involving the validity of section 8 (a) of the Capital of Punjab (Development and Regulation) Act, 1952 though he was personally interested in the outcome of the case.

5. That Justice Punchhi attempted to browbeat officials of the Registry of the Punjab & Haryana High Court when they came to take inventory of items of furniture at the residence of the then Chief Justice of the Punjab & Haryana High Court, Justice V. Ramaswami. He ordered them to mention in the inventory report that all the items had been found in order even when these had not been verified and this was not true. Thereafter, when this matter became subject of the impeachment proceedings was put in issue in Writ Petitions filed in the Supreme Court, Justice Punchhi attempted to hear and decide that case, though in view of his role in the matter, he was clearly disentitled from doing so.

6. That as Judge of the Supreme Court, Justice Punchhi, kept pending with him a matrimonial proceeding involving one Ashok and Rupa Hurra from Gujarat, even after it had become infructuous. The matter was kept pending in order that a fresh Petition to be filed by the husband also come before him. These proceedings were finally decided by him for extraneous considerations in a manner which was contrary to law.

Justice Dr. A S Anand

Tenure: October 10, 1998 – November 1, 2001

During his tenure, evidence of several acts of very serious misconduct came to light and came to the possession of the Committee on Judicial Accountability. As a result of this, an impeachment motion was also prepared by the Committee on Judicial Accountability against Justice Anand which contained four serious charges which are detailed below:

1. That Shri A S Anand, when he was the Chief Justice of the High Court at J& K, heard and passed favourable interim orders in the case of one Krishan Kumar Amla, soon after hehad accepted gratification from Shri Amla in the form of a 2 Kanal plot of land at Ganderbal, Shrinagar. That Shri Anand accepted this gratification from Shri Amla even though he had been as a judge hearing and dealing with the cases of the companies owned by Krishan Amla and his father Tirath Ram Amla. These acts constitute gross misconduct and misbehavior on the part of a Judge.

2. That Shri A S Anand abused his office and influence as a judge and Chief Justice of the J&K High Court to hold on to the ownership of Agricultural land which should have been vested in the government under the J&K Agrarian Reforms Act of 1976.

3. That Shri A S Anand, while he was a judge of the Supreme Court, abetted his wife and mother-in-Law in filing a suit based on false averments in a civil court in Madhya Pradesh. During the proceedings before the Civil Court, he abused his influence and authority to get the revenue authorities to suppress from the trial court the record of the proceedings before the revenue Court. That he subsequently used his influence to get the MP government to withdraw the Special Leave Petition filed by the State against his wife.

4. That Shri Anand abused his office and influence as Chief Justice of the J&K High Court to get from the government of J&K a 2 Kanal plot of land at Gandhinagar in Jammu for a price which was a small fraction of the Market price of that land. That in doing so, he gave a false and misleading affidavit that he owned no land or immovable property in Jammu.

Justice Y K Sabharwal
Tenure:
November 1, 2005 – January 14, 2007

The most serious among the charges against Chief Justice Y K Sabharwal was that he passed a series of orders for sealing commercial properties in Delhi which were operating in residential areas. The immediate consequence of his orders was to force shops and offices to shift to shopping malls and commercial complexes being constructed by builders and developers, which resulted in increasing their prices enormously almost overnight.

At precisely the time when Justice Sabharwal passed these orders of sealing, his sons entered into partnerships with some of the largest shopping mall and commercial complex developers and thus made huge profits by virtue of his orders. Moreover, the registered offices of his sons’ companies were at the official residence of Justice Sabharwal at this time.

Apart from this, Justice Sabharwal’s sons were allotted huge commercial plots by the Mulayam Singh government of Uttar Pradesh in Noida at highly concessional rates, at a time when Justice Sabharwal was dealing with the case of Amar Singh’s tapes, the publication of which he had stayed.

As a result of these transactions, the sons of Justice Sabharwal, who till he started dealing with the sealing case, were small traders having a turnover of less than Rs 2 crores went on to purchase a property of Rs 15.43 crores in Maharani Bagh in March 2007 and more recently a property at 7 Sikandra Road for Rs 122 crores (in partnership with their builder friends) in April 2010.

Read More:

Prashant Bhushan’s Affidavit in SC (December 2009)
Shanti Bhushan’s Affidavit in SC (September 2010)
Prashant Bhushan’s Supplementary Affidavit in SC (September 2010)