India - Official asked law ministry for advice on CAG's proposed audit of spectrum "scam"

[times of india] Less than a month before he became CVC, P J Thomas had, in his earlier avatar as telecom secretary, signed a note seeking law ministry's opinion on whether CAG can audit 2G spectrum scam on the ground that it was all about policy formulation.

The note dated August 12, along with the response it evoked from the law ministry the very next day, exposes Thomas's conflict of interest in his new office. For, his predecessor in the CVC, Pratyush Sinha, had referred the same scam last year to CBI for criminal investigation, evidently convinced that the spectrum allocation on first-come-first-served basis involved more than just policy decisions.

In contrast, the note signed by Thomas said that telecom minister A Raja had asked for the law ministry's opinion on whether the proceedings initiated by CAG to audit the licensing and allocation of 2G spectrum were "legally in order". The burden of the two-page note, in possession of TOI, is that the draft performance audit report sent by CAG in July had "challenged" several policy decisions taken by the government.

In its seven-page response on August 13, the law ministry implicitly accepted the telecom department's attempt to portray all questions about the 2G spectrum allocation as an interference with the government's prerogative to lay down the policy. As a corollary, the law ministry held that the 2G spectrum controversy was beyond the jurisdiction of not only CAG but also the CVC.

Thus, when Thomas was its secretary, the telecom department questioned the legality of the CAG probe into the 2G spectrum scam on the basis of the law ministry's opinion that the CAG Act 1971 did not provide it with "any duty or power to question the wisdom of policy/law makers as policy decision may involve trial and error theory".

Significantly, the exercise of consulting the law ministry has also prepared the ground for the telecom ministry to challenge the legality of the ongoing CBI investigation prompted by the CVC's recommendation. "CAG, CVC and other watchdog (sic) no doubt play a very significant role in any democracy but they being constitutional/ statutory functionaries cannot exceed the role assigned to them under the Constitution/law," said the law ministry's opinion, signed by its joint secretary Santokh Singh.

The opinion obtained by Thomas said that CVC, empowered to probe corruption complaints against babus, "has not been assigned any functions or powers to issue directions relating to any policy matters." If he retains this view as the new head of CVC, it will put a question mark on the CBI probe in the course of which the telecom department had already been raided.

Did Thomas try to stop spectrum scam investigation?