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2G verdict: The CBI has often failed to deliver evidence in complex financial crimes

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The first-come, first-served policy reeked of arbitrariness, but whether it was against the public interest cannot be subject to not criminal adjudication.

In perhaps the most politically consequential case in India since Bofors, a special court has acquitted all accused in the 2G scam of charges of corruption and criminal conspiracy, after a six-year trial.

The ramifications of the judgment, however, are not limited solely to the political realm. They should, hopefully, echo in what constitutes rule of law in this country. Difficult questions will be asked.

Is an arbitrary policy, which fails the public interest, a crime? The Prevention of Corruption Act says so. The first-come, first-served policy reeked of arbitrariness, allowed profiteering, but whether it was against the public interest can only be subject to democratic correction, not criminal adjudication. However, the constitutionality of a criminal statute that allows a post mortem critique of a policy is pending before the Supreme Court, and should be answered in the negative.

The evidence underlying the case was relied upon by the Supreme Court to cancel the 2G licences in 2012. This administered a jolt to private investment, including from Norwegian and UAE state companies, whose licences were cancelled without compensation, rendering their investments worthless. This was done without establishing the criminality through a trial. A pending BITS arbitration by Telenor for compensation from the Government of India can only be strengthened by the acquittal. The Supreme Court cannot be overruled except by itself. But any international arbitration in such an instance would likely find such decision to cancel licences as being contrary to the rule of law.

The 2G judgment would require analysis based on the evidence submitted. But it is apparent that the special court was unimpressed by the probity, reliability and authenticity of the evidence presented by the CBI. If the finding is indeed that no admissible evidence was presented, then why was the case allowed by the special court to proceed to trial at all? A judge must sift through the evidence sought to be proffered at trial, and determine whether there is a charge to answer at all.

Further, the quality of investigation is apparently being castigated, and such an indictment has been generally true. The CBI has often failed to deliver evidence in complex financial crimes, which are particularly difficult to prove. Despite a special prosecutor being appointed, the investigation is entirely in the hands of the investigating agency — in this case, the CBI — and its discretion is only subjected to legal or judicial scrutiny in a post-hoc case. The charge sheet requires no prosecutorial input.

The appointment of a special prosecutor is simply not sufficient if prosecutors are not given any role in what evidence and charges are brought before court. Such reforms have been recommended numerous times by both the Supreme Court and Law Commissions, but found no resonance in the legislature or the executive. Proper investigations require independence, legal oversight, and the ethics to go where the evidence leads you.

The acquittal should also lead to introspection in the criminal justice system regarding bail. Sanjay Chandra, who spent many months in jail in this case, is one of those acquitted. But he is in jail in a criminal case brought against him for cheating home buyers. As strong as that case seems, without looking at the evidence, in detail, should the courts deny him bail in a case in which he might be acquitted?

This is not his story alone. The vast majority of people in India suffering incarceration have never been convicted of a crime, simply accused. This must change.

Avi Singh is an advocate who specialises in transnational law, and serves as the Additional Standing Counsel for the government of NCT of Delhi.

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