Read more below

By The Telegraph Online
  • Published 10.01.11

It is not usual for a minister to get into an argument with a statutory authority; the convention is that instruments of Constitution should be left free to carry out their duties. The comptroller and auditor general submits numerous reports to Parliament. All of them point out deficiencies in the government’s performance. Some of them make news for a day or two, and are then forgotten. If Kapil Sibal has chosen to take issue with the CAG’s performance audit of the issue of second-generation licences for spectrum, the explanation must be sought in three factors. First, the Supreme Court has chosen to take interest in the issue of the licences, and has in the process implicitly indicted Mr Sibal’s predecessor in the ministry of communications, A. Raja. Second, the Supreme Court’s investigation of Mr Raja’s questionable activities has raised questions about the inexplicable inactivity of the prime minister while Mr Raja ruled the roost. Finally, Mr Sibal happens to be a lawyer of some experience. The prime minister’s last encounter with the Supreme Court, when he used executive privilege to defend a possible error, was not very astute; a more expert response was called for.

This context also explains the line taken by Mr Sibal. It would have been futile to confront the Supreme Court. It is well aware of the separate spheres of responsibility of the executive and the judiciary. The awareness has led it often before not to look too closely into the misdoings of the executive. But, in this case, it has decided to get to the bottom of the matter; no argument is likely to lead it to desist. It would also have been unwise to defend Mr Raja’s performance. The quid pro quo for his arbitrary allocation of spectrum is still unknown; if it turns out to be greater than zero, he would become indefensible. Once these options were ruled out, the best strategy was to attack the arithmetic of the CAG.

If, however, the CAG’s figures were questionable, so are those of Mr Sibal. It would be futile to correct them because both involve conjectures, and conjectures are by definition inaccurate. Both implicitly agree on the objective; both assume that it was right to get as much money as possible out of licensees. This common objective defines the correct method, which was to auction the spectrum. So, while Mr Raja’s method undersold the spectrum, so would have the method of Mr Sibal if he had had a chance. The only difference arises from the fact that a difference between the maximum price of the spectrum and the actual price accrues to operators as an unearned surplus, and is available for sharing with the minister, bureaucrats of the department of telecommunications, and others in power. There is a presumption that some of the surplus went to Mr Raja, and a certainty that none went to Mr Sibal who was not even in the picture.