Supreme Court of India
SUBRAMANIAN SWAMYversusA. RAJA
- Citation
- 2012 INSC 352
- Decided
- 24 August 2012
- Disposal
- Rejected
- Bench
- G S SINGHVI
Holding
The Supreme Court held that the record does not disclose any conspiracy, abuse of position, or corrupt advantage by Finance Minister P. Chidambaram, and therefore no case exists to make him an accused.
Summary
Dr. Subramanian Swamy filed a criminal complaint alleging that former Finance Minister P. Chidambaram conspired with Telecom Minister A. Raja in the 2G spectrum scam, seeking to make Chidambaram an accused under the Prevention of Corruption Act. The Special Judge, after examining the material, found no evidence of Chidambaram’s participation in any criminal conspiracy and rejected the prayer to investigate him. On appeal, the Supreme Court examined whether the record showed a conspiratorial agreement, misuse of official position, or pecuniary advantage by Chidambaram. Relying on the lack of any substantive proof beyond ministerial meetings and official discussions, the Court held that mere meetings or policy disagreements cannot be equated with criminal conspiracy. Consequently, the petition to reopen the case against Chidambaram was dismissed and the order of the Special Judge upheld.
Issues considered
- Whether P. Chidambaram conspired with A. Raja in fixing the 2G spectrum price at the 2001 level, constituting criminal misconduct under the PC Act.
- Whether Chidambaram obtained any pecuniary advantage for himself or others by corrupt or illegal means.
- Whether Chidambaram deliberately allowed dilution of equity in Swan Telecom and Unitech at the expense of the exchequer.
- Whether the alleged acts fall within the ambit of Section 13(1)(d) of the Prevention of Corruption Act.
- Whether the material on record is sufficient to infer a criminal conspiracy under the PC Act.
Legislation cited
- Code of Criminal Procedure, 1973s. 200
- Indian Penal Code, 1860s. 1208, s. 120B, s. 409, s. 420, s. 468, s. 471
- Prevention of Corruption Acts. 13(1)(d)(i), s. 13(1)(d)(ii), s. 13(2), s. 5(3)
- Telecom Regulatory Authority of India Act, 1997
Subjects
2G spectrum scamcriminal conspiracyPrevention of Corruption Actministerial liabilityspectrum pricingevidencepublic interest litigationcriminal law
Judgment
[2012) 11 S.C.R. 873
SUBRAMANIAN SWAMY A
v.
A. RAJA
(Special Leave Petition (Crl.) No. 1688 of 2012 etc.)
AUGUST 24, 2012
B
[G.S. SINGHVI AND K.S. RADHAKRISHNAN, JJ.]
SCAM:
2G Spectrum Scam - Complaint by the appellant before C
Special Judge CBI to set in motion provisions of Prevention
of Corruption Act, against the then Telecom Minister - During
examination u/s. 200 Cr.P.C.,the appellant made a/legation
that the then Finance Minister and the Telecom Minister were
jointly and severely responsible for the scam - Prayer for
making the Finance Minister an accused and for carrying out D
investigation against him - Special Judge held that the
Finance Minister had no role in the subversion of the process
of issuance of LOI and UAS Licences and allocation of
spectrum in the year 2007-2008 and that there was no
evidence that he was acting pursuant to criminal conspiracy E
- Prayers for making him accused and initiating investigation
against him rejected - Special Leave Petition - Contentions
intera/ia that the Finance Minister conspired with the Telecom
Minister and thus committed criminal misconduct and that he,
by illegal means, obtained pecuniary advantage - Held: The F
materials available on record do not lead to the conclusion ·
that the Finance Minister conspired with the Telecom Minister
or that he attempted to hide the illegalities in the award of the
licences - Meeting of two ministers by itself would not be
sufficient to infer the existence of a conspiracy - Criminal G
conspiracy cannot be inferred on the mere fact that there were
official discussions between the officers of Ministry of Finance
and that of Department of Telecom and between the two
873
874 SUPREME COURT REPORTS [2012] 11 S.C.R.
A Ministers - A wrong judgment or an inaccurate or incorrect
approach or poor management, by itself cannot be said to be
a product of criminal conspiracy - In view of the materials on
record, it cannot be said that Finance Minister had misused
his position or conspired or colluded with the Telecom
B Minister so as to fix low entry fee by non-visiting spectrum
charges fixed in the year 2001 - No materials were made
available even for a prima facie conclusion that the Finance
Minister had deliberately allowed dilution of equity .of the two
companies - There is also no material made available to
C conclude that the Finance Minister abused his official position
or used any corrupt or illegal means for obtaining any
pecuniary advantage for himself or for any other person - No
case is made out against him.
Centre for Public Interest Litigation and Ors. etc. v. Union
0
of India and Ors. (2012) 3 SCC 1- referred to.
lndo China $team Navigation Co. v. Jasjeet Singh 1964
(6) SCR 594;State of Maharashtra v. Hans George 1965 (1)
SCR 123; R.S. Joshi, Sales Tax Officer, Gujarat and Ors. v.
E Ajit Mills Ltd. and Anr. 1977 (4) sec 98: 1978 (1) SCR 338
- cited.
Case Law Reference:
1964(6) SCR 594 Cited Para 7
F
1965 (1) SCR 123 Cite.<! Para 7
1978 (1) SCR 338 Cited Para 7
(2012) 3 sec 1 Referred to Para 8
G
CRIMINAL APPELLATE JURISDICTION: Special Leave
Petition (Crl) No. 1688 of 2012.
From the Judgment & Order dated 04.02.2012 of the
H
SUBRAMANIAN SWAMY v. A. RAJA 875
Sepcial Judge CBI (04) (2G Spectrum Cases), New Delhi in A
CC. No. 01 (A)/11.
WITH
I.A. No. 34 in Civil Appeal No. 10660 of 2010.
B
Subramanian Swamy (In-Person), H.P. Raval, ASG, P.P.
Rao, K.K. Venugopal, S. Wasim A. Qadri, Arijit Prasad, D.S.
Mahra Anirudh Sharma, Harsh N. Parekh, A.K. Sharma for the
Appearing parties.
The Order of the Court was delivered by c
ORDER
K.S. RADHAKRISHNAN, J. 1. Common questions arise
for consideration in both these applications, hence they are D
being disposed of by a common order. SLP (Crl.) 1688 of
2012 arises out of an order dated 04.02.2012 in CC No.01(A)/
11 passed by the Special Judge, CBI (04) (2G Spectrum
Cases), New Delhi. I.A. No. 34 of 2012 has been filed by the
appellants in Civil Appeal No. 10660 of 2010 claiming almost E
identical reliefs.
2. Dr. Subramanian Swamy, the petitioner in special leave
petition filed a criminal complaint on 15.12.201 O before the
Special Judge, CBI of Central/Delhi to set in motion the
provisions of Prevention of Corruption Act (for short 'the PC F
Act') against A. Raja, the then minister of Telecommunications
and to appoint him as a prosecutor under Section 5(3) of the
PC Act. The complaint was numbered as CC No.1 of 2010 and
was heard on several occasions. The case was later
transferred to the Special Judge, CBI (04)(2G Spectrum G
Cases), New Delhi. CBI, after investigation, filed a charge sheet
in that complaint on 2.4.2011 regarding commission of
·offences during 2007-2009 punishable under Sections 120B,
420, 468, 471 IPC and also punishable under Section 13(2)
read with Section 13(1)(d) of the PC Act, against A. Raja and H
876 SUPREME COURT REPORTS [2012] 11 S.C.R.
A others. Special Judge took cognizance on 2.4.2011. CBl's
further investigation disclosed that the monetary involvement
was much· more and charge was laid. Special Judge took
cognizance of the aforesaid charge sheet on 25.4.2011. Both
the charge sheets were clubbed together vide order dated
B 22.10.2011 under Section 1208 read with Sections 409, 420,
468 and 471 IPC and day to day trial began from 11.11.2011.
Dr. Subramanian Swamy's complaint case No.CC 0112011 was
also taken on file and renumbered as CC.No.1 (A)/2011.
C 3. Dr. Subramanian Swamy, the petitioner, herein, while
he was being examined under Section 200, Code of Criminal
Procedure in CC No. 01(A)/11 had deposed on 17.12.2011
as well as on 07.01.2012 that Shri A Raja, the first accused,
could not have alone committed the offences alleged against
him, but for the active connivance of Shri P. Chidambaram, the
D then Finance Minister. So far as the various charges were
concerned, it was alleged that both Shri A. Raja and Shri P.
Chidambaram were jointly and severely responsible. Reference
was also made to documents including Ext. CW 1/1 to CW 1/
28 with an emphasis that all those acts were done by the
E accused - Shri A Raja in connivance, collusion and consent of
Shri P. Chidambaram and hence Shri P. Chidambaram was
also guilty of commission of the offences under the P.C. Act
for which Shri A. Raja was already facing trial. Further, it was
also pointed out that Shri P. Chidambaram was also guilty of
F breach of trust on the question of national security for not
disclosing that Etisalat and Telenor were black-listed by the
Home Ministry. Further, it was pointed out that there was
enough incriminating materials on record for carrying out the
investigation against Shri P. Chidambaram and for making him
G an accused in the case. Further, it was also alleged that Shri
P. Chidambaram had played a vital role in the subversion of
the process of issuance of Letter of Intent (for short 'LOI'),
Unified Access Service (for short 'UAS') Licences and
allocation of spectrum in the year 2007-08. Further, it was also
H alleged that Shri P. Chidambaram was also complicit in fixing
SUBRAMANIAN SWAMY v. A. RAJA 877
[K.S. RADHAKRISHNAN, J.]
the price of the spect~um licence at 2001 level and permitting A
two companies, which received the licence that is Swan Tele
Communication (P) Ltd. (for short 'Swan') and Unitech (T.N.)
Ltd. (for short 'Unitech') and to dilute their shares even before
roll-out of their services.
B
4. Learned Special Judge, after referring to the various
documents, produced found no substance in the allegations
raised against Shri P. Chidambaram and found that he had no
role in the subversion of the process of issuance of the LOI,
UAS Licences and allocation of spectrum· in the year 2007-08. C
Learned Judge concluded that there was no evidence on record
that he was acting in pursuant to the criminal conspiracy, while
being party to the two decisions regarding non-revision of the
spectrum pricing and dilution of equity by the two companies.
Consequently, the prayer made for carrying out the investigation
against Shri P. Chidambaram and to make him an accused D
was rejected vide order dated 04.02.2012, against which SLP
(Crl.) No. 1688 of 2012 has been filed.
5. Dr. Swamy appeared in person and elaborately referred
to Annexure P-1 Final Report dated 03.04.2011 submitted by E
CBI before the Special Judge especially Para E, charge
dealing with "Cheating the Government Exchequer by Non-
Revision of Entry Fee•. Reference was also made to the
. summary of his arguments raised before the Special Judge for
carrying out investigation against Shri P. Chidambaram and to F
array him as an accused in the pending criminal case.
Reference was also made to the meetings that Shri P.
Chidambaram had with Shri A. Raja on 30.01.2008,
29.05.2008, 12.06.2008 and later with the Prime Minister on
04.07.2008 and submitted that in those meetings both of them G
conspired together for a common object and purpose in fixing
the pricing of spectrum at the year 2001 level and permitting
distribution equally by two companies Swan and Unitech.
Further, it was also pointed out that Shri P. Chidambaram was
fully aware, at least, on 09.01.2008 as to what Shri A Raja was H
878 SUPREME COURT REPORTS [2012) 11 S.C.R.
A planning to do on 10.01.2008. Referring to several documents
placed on record, it was pointed out that in fact Shri P.
Chidambaram did not pay heed to the opinions expressed by
the officials of his owrr Ministry and abeted to commit various
illegal acts.
B
6. Dr. Swamy referred to various ingredients of Section
13(1 )(d)(iii) of PC Act and pointed out that a bare reading of
the above mentioned provision shows that mens rea or criminal
intent was not an essential ingredient of that Section. Reference
C was made to the judgment of this Court reported in lndo China
Steam Navigation Co. v. Jasjeet Singh [1964(6) SCR 594],
State of Maharashtra v. Hans George [1965 (1) SCR 123) and
R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills
Ltd. and Another [1977 (4) SCC 98) and submitted the ratio
of above judgments indicate that certain criminal offences
D imposing punishment of incarceration need not require mens
rea instead strict liability as enumerated in the statute itself. Dr.
Swamy pointed out that the above mentioned statutory
provision would indicate that the emphasis is on "obtains' and
"public interesr. Dr. Subramanian Swamy submitted that the
E learned trial judge had failed to notice those vital aspects and
has wrongly rejected the prayer for conducting investigation
against Shri P. Chidambaram and to array him as an accused.
7. Shri Prashant Bhushan, learned counsel appearing for
F the applicants in I.A. No. 34 of 2012 has indicated the necessity
of conducting a thorough investigation by the CBI into the role
of the then Finance Minister Shri P. Chidambaram in the matter
of fixing the spectrum pricing and allowing the sale of equity
by Swan and Unitech. Learned counsel pointed out that in that
G process, Shri P. Chidambaram had over-ruled the officers of
his own Ministry who favoured auction I market-based pricing
of spectrum and instead allowed varipus companies to make
windfall profits. Further, it was also stated that he had allowed
the above-mentioned companies to sell off their shares without
H charging any Government's share of its premium on account
SUBRAMANIAN SWAMY v. A. RAJA 879
[K.S. RADHAKRISHNAN, J.)
of spectrum valuation and without enforcing his own agreement A
with the then Telecom Minister.
8. Learned counsel made specific reference to para
2.1.2(3) and submitted that the Group of Ministers (GoMs) had
in their recommendation dated 30.10.2003 stated that the 8
Department of Telecom (DoT) and the Ministry of Finance
(MoF) would discuss and finalise spectrum pricing formula
which would include incentive for efficient use of spectrum as
well as disincentive for suboptimal usages. Learned counsel
pointed out that the above recommendation would clearly C
indicate that MoF officials were fully aware that unless such
'concurrence' based on discussion and finalization of spectrum
pricing formula between the DoT and the MoF had been
established, the DoT could not have moved ahead and
spectrum could have been allocated at 2001 rates in the year
2007-08. D
9. Learned counsel also referred to the "Position Paper on
Spectrum Policy" prepared by the Department of Economic
Affairs (revised on 03.01.2008) which was forwarded along
with covering letter dated 09.01.2008. The Telecom E
Commission meeting which was to take place on 09.01.2008
was postponed to 15.01.2008. Further, it was pointed out that
before the scheduled meeting of the Telecom Commission on
15.01.2008, DoT had already issued 122 LOls for UAS
licenses on 10.01.2008 and that LOls were converted into F
licenses during 27.02.2008 to 7.3.2008 and the spectrum
allocation was started from 22.4.2008 and completed
6.5.2009. Learned counsel pointed out that, the then Finance
Minister had enough time to stop the scam, since the price was
not fixed by the DoT and MoF as authorized by the GoMs G
(2003).
10. Further, it was also stated that before the Telecom
Commission could meet, then Finance minister made a note
on 15.01.2008 to the Prime Minister of India pointing out that
the note did not deal with the need, if any, to revise entry fee or H
880 SUPREME COURT REPORTS (2012] 11 S.C.R.
A the rate of revenue share, and also indicated the said note dealt
with spectrum charges for. 2G spectrum. Further, it was also
stated by Shri Prashant Bhushan that then Finance Minister and
Shri A Raja had met on 30.01.2008 to discuss the issue of
licensing and spectrum pricing. In that meeting, then Finance
B Minister had announced the issue of revising entry fee of 122
LOls already issued by DoT and that they were not seeking to
revisit the current regimes for entry fee or for revenue share.
11. Shri Bhushan ·also referred to the approach paper by
C Department of Teleccm Commission, which was forwarded by
the Secretary, DoT to the Finance Secretary, MoF, which would
indicate that the officials of Finance Ministry were keeri to stop
the allocation of spectrum of 4.4 MHz and were suggesting the
allocation of spectrum by way of auction.
D 12. Learned counsel also referred to the sequel note to the
Department of Economic Affairs dated 11.02.2008 which
according to the learned counsel, would indicate that the MoF
had deferred from the position of DoT and stated that there was
no contractual obligation to allot a start-up spectrum of 4.4 MHz
E to every licencee free of cost and that the entire range of the
spectrum allotted should be priced and that the issue of level
playing field could be addressed by charging the price even
on existing operators. Learned counsel pointed out that in spite
of objection raised by the officials of Ministry, the Finance
F Minister acted in connivance with Shri A Raja and Shri A Raja
went ahead and issued 122 licences which could have been
prevented by Shri P. Chidambaram, had he stood with the
views of his officials.
13. Learned counsel a.lso referred to note dated
G 07.04.2008 sent by the Finance Secretary after discussion with
the Finance Minister wherein it was noticed that DoT was
agreeable for pricing of spectrum beyond 4.4 MHz but wanted
that to be deferred till auction of 3G and WIMax was completed.
Reference was also made by the learned counsel to the note
H dated 03.04.2008 of the Additional Secretary (EA) and pointed
SUBRAMANIAN SWAMY v. A. RAJA 881
[K.S. RADHAKRISHNAN, J.]
out that then Finance Minister had agreed that spectrum usage A
charge should be increased reflecting the scarcity value of
spectrum as indicated in their note dated 11.02.2008. Further,
the note also indicated the Finance Minister's view that they
should insist, in principle, on pricing spectrum beyond 4.4 MHz
although details could be worked out after the auction of 3G B
spectrum.
14. Shri Prashant Bhushan also referred to the Office
Memorandum, MoF dated 8.4.2008 prepared by Shri Govind
Mohan, Director which, according to the learned counsel C
reflected the MoF's original position of 11.2.2008 on the issue
of subjecting the entire spectrum to specific pricing. Learned ·
counsel alleged that the note issued was later withdrawn and
the officer was reprimanded and a fresh Office Memorandum
was issued by the same Director. Learned counsel compared
the original Office Memorandum dated 08.04.2008 and the new D
Office Memorandum and submitted that the original Office
· Memorandum had required the entire range of spectrum to be
specifically priced and the revised Office Memorandum which
was prepared on 9.4. 2008 had presented with a date of
8.4.2008, specifically sought to exclude start-up spectrum upto E
4.4 MHz from being specifically charged, ensuring the entry fee
of 2001 that was fixed by the then Telecom Minister in 2008,
was not revised. Shri Bhushan submitted that the officer had
to apologize for his deeds and on 16.04.2008, the then Finance
Minister accepted the apology of the officer. · F
15. Learned counsel also referred to letter dated 21.4.
2008 sent by the then Finance Minister to Shri A Raja and
submitted that the spectrum issue "non paper" was silent on the
issue of entry fee for start-up spectrum for 122 licences already G
issued and the discussion mainly concentrated on the charging
for spectrum beyond 4.4 MHz. Reference was also made to the
Finance Secretary's updated note dated 29.04.2008 which,
according to the learned counsel, reflected the same position
preferred by MoF. Both Shri A Raja and Shri P. Chidambaram H
882 SUPREME COURT REPORTS [2012] 11 S.C.R.
A met on 29.05.2008 as well as on 12.06.2008. Learned counsel
also pointed out that on 4.7.2008, the then Finance Minister,·
Shri A Raja along with Finance Secretary met the Prime
Minister. By the time, LOls were already issued which were
converted to licences, allocation of start-up spectrum was
B started. Learned counsel also made reference to the CAG
report and the pointed out the reference made to Shri P.
Chidambaram. Reference was also made to the briefing made
by the Prime Minister, to the Media on 16.2.2011 and also the
address made by the Prime Minister in Rajya Sabha on
c 24.2.2011.
16. Learned counsel also pointed out that there was no
justification, in any view, in allotting the start-up spectrum 4.4
MHz to every licensee free of cost and submitted that the entire
range of spectrum allotted should have been priced. Learned
D counsel pointed out that one price of spectrum between 4.4
MHz and 6.2MHz and different price for spectrum between
beyond 6.2 MHz would be non-transparent and illegal. Learned
counsel pointed out that in fact the MoF had initially objected
the above stand of DoT but subsequently yielded after the
E meeting Shri P. Chidambaram had with Shri A Raja.
17. Learned counsel pointed out all those facts which
would clearly indicate that Shri P. Chidambaram the then
Finance Minister was also equally responsible. Non-revision of
F spectrum price though specifically recommended by the GoMs
in the year 2003 would indicate, according to the counsel, that
Shri P. Chidambaram colluded up with Shri A Raja in non-
auctioning of the spectrum and went on for allotment of first
come first served basis at 2001 rates. Further, it was also
G pointed out that Shri P. Chidambaram had not revised his
position from giving away 4.4 MHz of spectrum at 2001 prices
and giving away 6.2 MHz of spectrum at 2001, thus causing
huge loss to the exchequer. Further, he was also instrumental
along with Shri A. Raja for allowing companies like Swan and
H Unitech to sell off their shares without charging any
SUBRAMANIAN SWAMY v. A. RAJA 883
[K.S. RADHAKRISHNAN, J.]
Government's share of its premium. Counsel therefore prayed A
for a direction of CBI to conduct a thorough investigation I further
investigation into the role of Shri P. Chidambaram in 2G
spectrum scam under the close scrutiny of this court.
18. We heard Dr. Subramnian Swamy, appearing in
person and Shri Prashant Bhushan, learned counsel at length. B
Arguments raised give rise to the following questions:
(1) Whether Shri P. Chidambaram has conspired with
Shri A Raja in fixing the price of the spectrum at
2001 level thereby committed the offence of criminal c
misconduct.
(2) Whether Shri P. Chidambaram by corrupt and
illegal means obtained for himself or for Shri Raja
any valuable thing or pecuniary advantage.
D
(3) Whether Shri P. Chidambaram has deliberately
allowed dilution of equity by Swam Telecom Pvt.
Ltd. and Unitech Wireless (Tamil Nadu) Ltd. at the
cost of public exchequer.
(4) Whether Shri P. Chidambaram has conspired with E
Shri A. Raja in fixing one price of spectrum
between 4.4 MHz and 6.2 MHz and another price
for spectrum beyond 6.2 MHz for unlawful gain, for
benefiting the licensees.
F
(5) Whether the above mentioned acts fall within the
scope of Section 13(1)(d)(i) to (ii) of the P.C. Act
and the materials on record are sufficient to
conclude so.
19. Shri P. Chidambaram was the Finance Minister of the G
Union of India from 22.5.2004 to 31.11.2008. Brief reference
to facts prior to 22.5.2004 has already been made by this Court
in its judgment in Centre for Public Interest Litigation and
Others etc. v. Union of India and Others (2012) 3 SCC 1 and
hence not repeated, but reference to few facts is necessary to H
884 SUPREME COURT REPORTS [2012) 11 S.C.R.
A appreciate and understand the alleged involvement of Shri P.
Chidambaram in the 2G Scam
20. The Telecom Regulatory Authority of India (for short
'TRAI'), a statutory authority constituted under the Telecom
Regulatory Authority of India Act, 1997 (for short "1997 Act"),
8
had made certain recommendations on 27.10.2003 on UAS
Licence for the allocation of spectrum under Sections
11(1)(a)(i), (ii), (iv) and (vii) of the 1997 Act. Para 7.30 of the
recommendations emphasized the necessity of efficient
utilisation of spectrum by all service providers and indicated that
C it would make further recommendations on efficient 'Utilisation
of spectrum, spectrum pricing, availability and spectrum
allocation procedure and that the DoT might issue spectrum
related guidelines based on its recommendations.
D 21. A GoMs was constituted on 10.9.2003 with the
approval of the then Prime Minister to consider various issues
as to how to ensure release of adequate spectrum for the
telecom sector, including the issues relating to merger and
acquisition in the telecom sector and to recommend how to
E move forward. GoMs made detailed recommendations on
30.10.2003. Para 2.1.2(3) of the recommendations reads as
follows:
"(3) The Department of Telecom and Ministry of
Finance would discuss and finalise spectrum pricing
F formula which will include incentive for efficient use of
spectrum as well as disincentive for sub-optimal usages.·
Para 2.1.2(4) stated that the allotment of additional
spectrum would be transparent, fair and equitable, avoiding
G monopolistic situation regarding spectrum allotment usage.
Para 2.4.6(ii) of the recommendations reads as follows:
"(ii) The recommendations of TRAI with regard to
implementation of the Unified Access Licensing Regime
for basic and cellular services may be accepted."
H
SUBRAMANIAN SWAMY v. A. RAJA 885
[K.S. RADHAKRISHNAN, J.]
22. The recommendations of the GoMs were accepted by A
the Council of Ministers on 31.10.2003, the meeting of which
was chaired by the then Prime Minister. The then Minister of
Communications on 24.11.2003 accepted the
recommendations that entry fee for new UAS licensees would
be the entry fee of the fourth cellular operator and where there B
was no fourth cellular operator, it would be the entry fee fixed
by the Government for the basic operator. A decision was also
taken by the then Minister for Communications for the grant of
spectrum licenses on first-come-first served basis. Shri
Dayanidhi Maran became the Minister for Telecommunications c
on 26.5.2004.
23. TRAI later made comprehensive recommendations on
13.5.2005 on various issues relating to spectrum policy i.e.
efficient utilisation of spectrum, spectrum allocation, spectrum D
pricing, spectrum charging and allocation for other terrestrial
wireless links. On 23.2.2006, the Prime Minister approved the
constitution of a GoMs consisting of the Minister of Defence,
Home Affairs, Finance, Parliamentary Affairs, Information and
Broadcasting and Communications, to look into issues relating E
to vacation of spectrum. Deputy Chairman, Planning
Commission was a special invitee. The Terms of Reference of
GoMs, inter alia, suggested a spectrum pricing policy. Shri
Dayanidhi Maran, the then Minister of Telecommunications
wrote a letter dated 28.2.2006 to the Prime Minister indicating
that the terms of reference of the GoMs would impinge upon F
the work of his Ministry since wider in scope and requested that
they be modified in accordance with the draft enclosed along
with his letter. The draft forwarded by the Minister, however, did
not contain any formula for spectrum pricing. However, on
7.12.2006, the Cabinet Secretary conveyed the approval of the G
Prime Minister to the modified terms of reference which did not
contain any formula for spectrum pricing.
24. DoT, later, vide its letter dated 13.4.2007 requested
TRAI to furnish its recommendations under Section 11 (1 )(a) of H
886 SUPREME COURT REPORTS (2012] 11 S.C.R.
A the 1997 Act on the issues of limiting the number of access
providers in each service area and for the review of the terms
and conditions in the access provider licence mentioned in the
letter. Shri Dayanidhi Maran had by the time resigned on
14.5.2007 and Shri A. Raja became the Minister for
B Telecommunications on 16.5.2007.
25. TRAI made its recommendations on 28.8.2007. One
of the recommendations made by TRAI was that in future all
spectrums excluding the spectrum in 800, 900 and 1800 MHz
c bands in 2G services should be auctioned. Para 2.73 of the
recommendations is of some importance and hence extracted
hereunder:
"2. 73..............The Authority in the context of 800, 900
D and 1800 MHz is conscious of the legacy i.e. prevailing
practice and the overriding consideration of level playing
field. Though the dual charge in present form does not
reflect the present value of spectrum it needed to be
continued for treating already specified bands for 2G
E services i.e. 800, 900 and 1800 MHz. It is in this
background that the Authority is not recommending the
standard options pricing of spectrum, however, it has
elsewhere in the recommendation made a strong case for
adopting auction procedure in the allocation of all other
F spectrum bands except 800, 900 and 1800 MHz.'
Paras 2.74, 2.75, 2.76, 2.77, 2.78 and 2.79 are also
relevant for determining the various issues which arise for
consideration in this case and hence given below for ready
G reference:
"2.74 Some of the existing service providers have
already been allocated spectrum beyond 6.2 MHz in GSM
and 5 MHz in CDMA as .specified in the license
H agreements without charging any extra one time spectrum
SUBRAMANIAN SWAMY v. A. RAJA 887
[K.S. RADHAKRISHNAN, J.]
charges. The maximum spectrum allocated to a service A
provider is 10 MHz so far. However, the spectrum usage
charge is being increased with increased allocation of
spectrum. The details are available at Table 8.
2.75 The Authority has noted that the allocation
8
beyond 6.2 MHz for GSM and 5 MHz for CDMA at
enhanced spectrum usage charge has already been
implemented. Different licensees are at different levels of
operations in terms of the quantum of spectrum. Imposition
of additional acquisition fee for the quantum beyond these C
thresholds may not be legally feasible in view of the fact
that higher levels of usage charges have been agreed to
and are being collected by the Government. Further, the
Authority is conscious of the fact that further penetration
of wireless services is to happen in semi-urban and rural
areas where affordability of services to the common man D
is the key to further expansion.
2.76 However, the Authority is of the view that the
approach needs to be different for allocating and pricing
spectrum beyond 10 MHz in these bands i.e. 800, 900 and E
1800 MHz. In this matter, the Authority is guided by the
need to ensure sustainable competition in the market
keeping in view the fact that there are new entrants whose
subscriber acquisition costs will be far higher than the
incumbent wireless operators. Further, the technological F
progress enables the operators to adopt a number of
technological solutions towards improving the efficiency of
the radio spectrum assigned to them. A cost-benefit
analysis of allocating additional spectrum beyond 10 MHz
to existing wireless operators and the cost of deploying G
additional CAPEX towards technical improvements in the
networks would show that there is either a need to place
a cap on the maximum allocable spectrum at 10 MHz or
to impose framework of pricing through additional
acquisition fee beyond 10 MHz.
H
f
/
·-
888 SUPREME COURT REPORTS [2012) 11 S.C.R.
A The Authority feels it appropriate to go in for
additional acquisition fee of spectrum instead of placing
a cap on the amount of spectrum that can be allocated to
any wireless operator. In any case, the Authority is
recommending a far stricter norm of subscriber base for
B allocation of additional spectrum beyond the initial
allotment of spectrum. The additional acquisition fee
beyond 10 MHz could be decided either administratively
or through an auction method from amongst the eligible
wireless service providers. In this matter, the Authority has
c taken note of submissions of a number of stakeholders
who have cited evidences of the fulfillment of the quality of
service benchmarks of the existing wireless operators at
10 MHz and even below in almost all the licensed service
areas. Such an approach would also be consistent with the
D Recommendation of the Authority in keeping the door
open for new entrant without putting a limit on the number
of access service providers.
2.77 The Authority in its recommendation on
"Allocation and pricing of spectrum for 3G and broadband
E wireless access services" had recommended certain
reserve price for 5 MHz of spectrum in different service
areas. The recommended price are as below:
Service areas Price (Rs. in million)
F for 2 MHz x 5 MHz
Mumbai, Delhi and 800
Category A
Chennai, Kolkata and 400
G Category B
Category C 150
The Authority recommends that any licensee who
H seeks to get additional spectrum beyond 10 MHz in the
SUBRAMANIAN SWAMY v. A. RAJA 889
[K.S. RADHAKRISHNAN, J.]
existing 2G bands i.e. 800,900 and 1800 MHz after A
reaching the specified subscriber numbers shall have to
pay a onetime spectrum charge at the above mentioned
rate on prorata basis for allotment of each MHz or part
thereof of spectrum beyond 10 MHz. For one MHz
allotment in Mumbai, Delhi and Category A service areas, B
the service provider will have to pay Rs. 160 million as one
time spectrum acquisition charge.
2.78 As far as a new entrant is concerned, the question
arises whether there is any need for change in the pricing
methodology for allocation of spectrum in the 800, 900 and C
1800 MHz bands. Keeping in view the objective of growth,
affordability, penetration of wireless services in semi-urban
and rural areas, the Authority is not in favour of changing
the spectrum fee regime for a new entrant. Opportunity for
equal competition has always been one of the prime D
principles of the Authority in suggesting a regulatory
framework in telecom services. Any differential treatment
to a new entrant vis-a-vis incumbents in the wireless sector
will go against the principle of level playing field. This is
specific and restricted to 2G bands only i.e. 800, 900 and E
1800 MHz. This .approach assumes more significance
particularly in the context where subscriber acquisition east
for a new entrant is likely to be much higher than for the
incumbent wireless operators.
F
2.79 In the case of spectrum in bands other than 800,
900 and 1800 MHz i.e. bands that are yet to be allocated,
the Authority examined various possible approaches for
pricing and has come to the conclusion that it would be
appropriate in future for a market based price discovery G
systems. In response to the consultation paper, a number
of stakeholders have also strongly recommended that the
allocation of spectrum should be immediately de-linked
from the license and the future allocation should be based
on auction. The Authority in its recommendation on H
890 SUPREME COURT REPORTS [2012] 11 S.C.R.
A "Allocation and pricing of spectrum for 3G and broadband
wireless access services" has also favored auction
methodology for allocation of spectrum for 3G and BWA
services. It is therefore recommended that in future all
spectrum excluding the spectrum in 800, 900 and 1800
B bands should be auctioned so as to ensure efficient
utilization of this scarce resource. In the 2G bands (800
MHz/900 MHz/1800 MHz), the allocation through auction
may not be possible as the service providers were
allocated spectrum at different times of their license and
c the amount of spectrum with them varies from 2X4.4 MHz
to 2X10 MHz for GSM technology and 2X2.5 MHz to 2X5
MHz in CDMA technology. Therefore, to decide the cut off
after which the spectrum is auctioned will be difficult and
might raise the issue of level playing field."
D 26. The Internal Committee of DoT considered the above
recommendations made by TRAI and its report was placed
before the Telecom Commission on 10.10.2007. The Finance
Secretary and other three non-permanent members were not
informed of that meeting, but attended only by the officials of
E DoT and the report of the Internal Committee was approved by
the Telecom Commission. Shri A. Raja accepted the
recommendations of Telecom Commission. Consequently, the
recommendations of TRAI dated 28.8.2007 stood approved by
the Internal Committee of DoT, Telecom Commission and DoT.
F DoT, it may be noted, did not get in touch with the Ministry of
Finance to discuss and finalise the spectrum pricing formula
which had to include incentive for efficient use of spectrum as
well as disincentive for suboptimal usage in terms of the
Cabinet decision of 2003.
G
27. Above facts would indicate that neither Shri P.
Chidambaram nor the officials of MoF had any role in the
various decisions taken by TRAI on 28.8.2007, decision taken
by the Internal Committee of DoT and the decision of the
Telecom Commission taken on 10.10.2007.
H
SUBRAMANIAN SWAMY v. A. RAJA 891
[K.S. RADHAKRISHNAN, J.]
28. DoT then went ahead to process applications received A
for UAS licences. Between 24.9.2007 and 1.10.2007, over 300
applications were received. The Member (Technology},
Telecom Commission and ex-officio Secretary to the
Government of India sent a letter dated 26.10.2007 to the
Secretary, Department of Legal Affairs, Ministry of Law and B
Justice seeking the opinion of the Attorney General of India/
Solicitor General of India for dealing with those applications for
licences. The Law Secretary placed the papers before the
Minister of Law and Justice on 1.11.2007 who had
recommended that the entire issue be considered by an c
Empowered GoMs and, in that process, opinion of the Attorney
General of India be obtained. When the note of the Law Minister
was placed before Shri A. Raja, he recorded a note on
2.11.2007 calling for discussion. Shri A. Raja, however, on the
same day, ordered the issuance of Lois to new applicants as D
per the then existing policy and authorised Shri R. K. Gupta,
ADG (AS-1) for signing the Lois on behalf of the President of
India. Shri A. Raja had also ordered for the issuance of Loi to
the applicants whose applications had been received up to
25.9.2007 and also sent a letter bearing DO No. 20/100/2007-
AS-I dated 2.11.2007 to the Prime Minister and took strong E
objection to the suggestion made by the Law Minister by
describing his opinion as totally out of context.
29. The Prime Minister, however, vide his letter dated
2.11.2007 had requested Shri A. Raja to give urgent F
consideration to the various issues raised with a view to
ensuring fairness and transparency and requested him to inform
the Prime Minister of the position before taking any further
action. On the same day, Shri A.Raja sent a reply to the Prime
Minister brushing aside the suggestions made by the Prime G
Minister pointing out that it would be unfair, discriminatory,
arbitrary and capricious to auction the spectrum to new
applicants as it would not give them a level playing field. The
relevant portion of Para 3 of Shri A. Raja's letter is extracted
below: H
892 SUPREME COURT REPORTS [2012] 11 S.C.R.
A "3. Processing of a large number of applications
received for fresh licenses against the backdrop of
inadequate spectrum to cater to overall demand
The issue of auction of spectrum was considered by
B the TRAI and the Telecom Commission and was not
recommended as the existing licence holders who are
already having spectrum upto 10 MHz per Circle have got
it without any spectrum charge. It will be unfair.
discriminatory, arbitrary and capricious to auction the
spectrum to new applicants as it will not give them level
c playing field.
I would like to bring it to your notice that DoT has
earmarked totally 800 MHz in 900 MHz and 1800 MHz
bands for 2G mobile services. Out of this, so for a
D maximum of about 35 to 40 MHz per Circle has been
allotted to different operators and being used by them. The
remaining 60 to 65 MHz, including spectrum likely to be
vacated by Defence Services, is still available for 2G
services.
E
Therefore, there is enough scope for allotment of
spectrum to few new operators even after meeting the
requirements of existing operators and licensees. An
increase in number of operators will certainly bring real
competition which will lead to better services and
F
increased teledensity at lower tariff. Waiting for spectrum
for long after getting licence is not unknown to the Industry
and even at present Aircel, Vodafone, Idea and Dishnet
are waiting for initial spectrum in some Circles since
December 2006."
G
30. Shri P. Chidambaram, it is seen, had no role in the
exchange of those communications or the expression of
opinions of the decisions taken between Shri A. Raja and the
Prime Minister's Office, a situation created by Shri A. Raja and
H the officials of DoT. Neither Shri P. Chidambaram nor the
SUBRAMANIAN SWAMY v. A. RAJA 893
[K.S. RADHAKRISHNAN, J.]
officials of the MoF did figure in those communications and A
hence the allegation of involvement of Shri P. Chidambaram
in the 2G Scam has to be examined in that background.
31. The Secretary, DoT made a presentation of the
spectrum policy on 20.11.2007 to the Cabinet Secretary. 8.
Finance Secretary, Dr. Subbarao, who had witnessed the
presentation sent a letter dated 22.11.2007 to the Secretary,
DoT to know whether proper procedure had been followed with
regard to financial diligence. The operative portion of the letter
reads as follows:
c
"2. That purpose of this letter is to confirm if proper
procedure has been followed with regard to financial
diligence. In particular, it is not clear how the rate of
Rs.1600 crore, determined as far back as in 2001, has
been applied for a license given in 2007' without any D
indexation, let alone current valuation. Moreover, in view
of the financial implications, the Ministry of Finance should
have consulted in the matter before you had finalized the
decision.
E
3. I request you to kindly review the matter and revert
to us as early as possible with responses to the above
issues. Meanwhile, all further action to implement the
above licenses may please be stayed. Will you also kindly
send us copies of the letters of permission given and the F
date?"
32. DoT replied to the Finance· Secretary vide letter dated
29.11.2007. the operative portion of the same reads as follows:
"As per Cabinet decision dated 31st October, 2003, G
accepting the recommendations of Group of Ministers
(GoM) on Telecom matters, headed by the then Hon'ble
Finance Minister, it was inter alia decided that "The
recommendations of TRAI with regard to implementation
of the Unified Access Licensing Regime for basic and H
894 SUPREME COURT REPORTS [2012] 11 S.C.R.
A cellular services may be accepted. DoT may be authorized
to finalize the details of implementation with the approval
of the Minister of Communications and IT in this regard
including the calculation of the entry fee depending on the
date of payment based on the principle given by TRAI in
B its recommendations ...... ."
33. DoT also pointed out in that letter that the entry fee was
also finalised for UAS regime in 2003 based on the decision
of the Cabinet and it was decided to keep the entry fee for the
UAS license the same as the entry fee of the fourth cellular
C operator, which was based on a bidding process in 2001.
Further, it was also pointed out that the dual technology licenses
were licenses based on TRAI recommendations of August
2007 and that TRAI in its recommendations dated 28.8.2007
had not recommended any changes in entry fee/ annual license
D fee and hence no changes were considered in the existing
policy.
34. Shri A. Raja then sent a letter dated 26.12.2007 to the
Prime Minister, Paras 1 and 2 of that are extracted below:
E
"1. Issue of Letter of Intent (LOI): DOT follows a policy
of First-cum-First Served for granting LOI to the applicants
for UAS licence, which means, an application received first
will be processed first and if found eligible will be granted
LOI.
F
2. Issue of Licence: The First-cum-First Served
policy is also applicable for grant of licence on compliance
of LOI conditions. Therefore, any applicant who complies
with the conditions of LOI first will be granted UAS licence
G first. This issue never arose in the past as at one point of
time only one application was processed and LOI was
granted and enough time was given to him for compliance
of conditions of LOI. However, since the Government has
adopted a policy of "No Cap" on number of UAS Licence,
H a large number of LOl's are proposed to be issued
SUBRAMANIAN SWAMY v. A. RAJA 895
[K.S. RADHAKRISHNAN. J.l
simultaneously. In these circumstances, an applicant who A
fulfils the conditions of LOI first will be granted licence first,
although several applicants will be issued LOI
simultaneously. The same has been concurred by the
Solicitor General of India during the discussions."
DOG (AS), DoT, after a few days, prepared a note B
incorporating therein the changed first-come-first-served
policy to which reference was made in the letter addressed
to the Prime Minister.
35. We have no information as to whether the PMO had C
replied to the letter dated 26.12.2007 sent by A. Raja. After
brushing aside the views expressed by Dr. D. Subbarao in his
letter dated 22.11.2007, views expressed by the Minister of
Law and Justice on 1.11.2007, as well as the views expressed
by the Prime Minister on 2.11.2007, A. Raja and the officials
0
of DoT went ahead in implementing the policy of first-come-
first-served basis for the grant of UAS licenses for which it is
seen, no further objection had been raised by the Prime
Minister's Office.
36. Telecom Commission meeting was then scheduled to E
be held on 9.1.2008 to consider two important issues i.e.
performance of telecom sector and pricing of spectrum but the
meeting was postponed to 15.1.2008. But, on 10.1.2008, a
press release was issued by DoT stating that TRAI on
28.8.2007 had not recommended any cap on the number of F
access service providers in any service area. Further, it was
also stated that the Government had accepted the
recommendations of TRAI and that DoT had decided to issue
Lois to all the eligible applicants on the date of application who
applied up to 25.9.2007. Further, it-was also stated in the press G
release that DoT had been implementing a policy of first-come-
first-served for grant of UAS licences under which initially an
application which was received first would be processed first
and thereafter if found eligible would be granted Loi and then
whosoever complied with the conditions of Loi first would be
granted UAS licence. H
896 SUPREME COURT REPORTS (2012] 11 S.C.R.
A 37. Another press release was issued on 10.1.2008 by
DoT requesting the applicants to submit compliance with the
terms of Lois. Soon after obtaining the Loi, three of the
successful applicants offloaded their stakes for thousands of
crores in the name of infusing equity, the details are as under:
B
"(i) Swan Telecom Capital Pvt. Ltd. (now known as
Etisalat DB Telecom Pvt. Ltd.) which was incorporated on
13.7.2006 and got UAS Licence by paying licence fee of
Rs. 1537 crores offloaded its 45% (approximate) equity
c in favour of Etisalat of UAE for over Rs.3,544 crores.
(ii) Unitech which had obtained licence for Rs.1651
crores offloaded its stake 60% equity in favour of Telenor
Asia Pie. Ltd., a part of Telenor Group (Norway) in the
name of issue of fresh equity shares for Rs.6120 crores
D between March, 2009 and February, 2010.
(iii) Tata Tele Services transferred 27.31% of equity
worth Rs. 12,924 crores in favour of NTT DOCOMO.
E (iv) Tata Tele Services (Maharashtra) transferred
20.25% equity of the value of Rs. 949 crores in favour of
NTT DOCOMO."
38. Materials made available would not indicate any role
F played by Shri P. Chidambaram on the steps taken by Shri A.
Raja and DoT, reference of which have elaborately been made
in the previous paragraphs of this judgment. The views
expressed by Dr. D. Subbarao in his letter dated 22.11.2007
were already brushed aside by A: Raja and DoT officials and
G a communication dated 29.11.2007 was already sent to Dr.
Subbarao followed by a letter to the Prime Minister on
26.12.2007.
39. MoF then sent a letter on 9.1.2008, following the letter
of Dr. D. Subbarao dated 22.11.2007 as well as the reply
H
SUBRAMANIAN SWAMY v. A RAJA 897
[K.S. RADHAKRISHNAN, J.]
received from DoT on 29.11.2007, which was prepared and A
sent as instructed by Shri P. Chidambaram for presentation in
the meeting of the Telecom Commission which was held on
10.1.2008. Note referred to the recommendations of GoMs for
discussing and finalizing the spectrum pricing formula by DoT
and Ministry of Finance. Paras 6.3 and 8.4 of the note which B
was prepared as instructed by Shri P. Chidambaram are
relevant and hence are extracted hereunder:
"6.3 Given the fact that there are reportedly over 575
applications pending with DoT (including 45 new C
applicants) there is a case for reviewing the entry
fee fixed in 2001. This is an administratively fixed
fee. Therefore any change should be governed by
transparent and objective criteria applicable
uniformly to all new entrants.
D
8.4 The most transparent method of allocation of
spectrum would be by auction. However, there are
two caveats to the auction method.
(a) The ways in which the existing licensees in E
GS,M and CDMA would be eligible to participate
in the auction vis-a-vis the new entrants; and
(b) The advantages and disadvantages of the
method itself. A detailed table is placed at
Annexure V." F
40. Shri P. Chidambaram, following the views expressed
by the Ministry of Finance on 9.1.2008, on his instructions, also
sent a note lo the Prime Minister on 15.1.2008 on spectrum
charges. Noticeably, this letter was sent at a time when Finance G
Secretary's view was rejected by Shri A Raja and the officers
of the DoT and that Shri A. Raja's views were not overturned
even by the Prime Minister's Office. Therefore, the allegation
that the attempt of Shri P. Chidambaram was to hide the
illegalities in the award of licences is unfounded. On the other H
898 SUPREME COURT REPORTS [2012) 11 S.C.R.
A hand, Shri P. Chidambaram was advocating the fact that the
most important method of allocating the spectrum would be
through auction. Shri P. Chidambaram also made a reference
in the note of the recommendations made in the year 2003 by
TRAI and GoMs and stated that the recommendations note did
B not deal with the need, if any, to revise entry fee or the rate of
revenue share, but dealt with the spectrum charges for 2G
spectrum. Para 10 of the note sent by Shri P. Chidambaram
reads as follows:
"10. Spectrum is a scarce resource. The price for spectrum
c should be based on its scarcity value and efficiency of
usage. The most transparent method of allocating
spectrum would be through auction. The method of auction
will face the least legal challenge, if Government is able
to provide sufficient information on availability of spectrum,
D that would minimise the risks and, consequently, fetch
better prices at the auction. The design of the auction
should include a reserve price."
Further, para 13 of the note reads as follows:
E
"13. This leaves the question about licensees who hold
spectrum over and above the start up spectrum. In such
cases, the past may be treated as a closed chapter and
payments made in the past for additional spectrum (over
and above the start up spectrum) may be treated as the
F charges for spectrum for that period. However,
prospectively, licensee should pay for the additional
spectrum that they hold, over and above the start-up
spectrum, at the price discovered in the auction. This will
place old licensees, existing licensee seeking additional
G spectrum and new licensees on par so far as spectrum
charges are concerned."
Shri P. Chidambaram had indicated his mind in the note
sent to the Prime Minister.
H
SUBRAMANIAN SWAMY v. A. RAJA 899
[K.S. RADHAKRISHNAN, J.]
41. Prime Minister's Office, it is seen, had not taken any A
contrary view to that of Shri P. Chidambaram and, in any view,
no materials were also made available when this Court was
dealing with the case relating to cancellation of licences,
wherein Union of India was a party. In such circumstances, it is
difficult to conclude, on the materials available, that P. B
Chidambaram had conspired with A. Raja in subverting the
process of issuance of Loi, UAS Licences and allocation of
spectrum.
42. Shri P. Chidambaram met Shri A. Raja on 30.1.2008
for discussions on spectrum charges and one has to appreciate C
the discussions held in the light of the facts discussed above.
Meeting was held at a time, it may be noted, when Shri A. Raja
and DoT officials had already brushed aside the views
expressed by Dr. D. Subbarao in his letter dated 22.11.2007,
the views expressed by the Department of Economic Affairs D
in the note dated 3.1.2008 and in the absence of any response
from PMO on the note dated 15.1.2008 sent by Shri P.
Chidambaram. Meeting dated 30.1.2008 and subsequent
meetings Shri P. Chidambaram had with Shri A. Raja on
29.5.2008, 12.6.2008 and with the Prime Minister on 4.7.2008 E
have to be appreciated in the light of the facts already
discussed.
43. Shri P. Chidambaram, it is seen under the above-
mentioned circumstances, had taken up the stand in the
meeting held on 30.1.2008 that the Finance Minister was not F
seeking to revisit the current regimes for entry fee or for revenue
share and for the regime for allocation of spectrum, however,
it was urged that the following aspects had to be studied:
"(i) The rules governing the allocation of additional G
spectrum and the charges thereof, including the
charges to be levied for existing operators who
have more than their entitled spectrum.
(ii) Rules governing trade in spectrum. In particular,
how can Government get a share of the premium H
900 SUPREME COURT REPORTS (2012] 11 $.C.R.
A in the trade?
(iii) The estimate of the additional spectrum that may
be available for allocation after taking into account:
(a) the entitlement of entry spectrum of fresh
licenses; (b) the spectrum that needs to be
B withdrawn from existing operators who do not have
the subscriber base corresponding to the spectrum
allotted to them; and (c) the spectrum that may be
released by Defence.
c (iv) We also need to check the current rules and
regulations governing withdrawal of spectrum in the
event of: (a) not rolling over; (b) merger and
acquisition; (c) trading away spectrum."
Salient points discussed in the meeting held on 30 .1.2008
D are given below:
"2. pectrum Usage Charges for Initial allotment of
spectrum of 4.4 MHz.
2.1 Secretary (Finance) was of the opinion that auctioning
E
is legally possible for initial allotment of spectrum of 4.4
MHz. Secretary (DoT) explained that auction of spectrum
of 4.4 MHz though may be legally possible but it would not
be practical proposition to auction or fixing a price for 4.4
MHz spectrum due to following:
F
2.1.1 As per clause 43.5 (i) of UAS License, which
provides that:
___"initially a cumulative maximum of up to 4.4 MHz +4.4 MHz
G shall be allocated in the case of GSM based systems ... ."
It implies that when a service provider signs UAS
License he understands that and contractually he is eligible
for initially a cumulative maximum of 4.4 MHz subjeCt to
availability.
H
SUBRAMANIAN SWAMY v. A. RAJA 901
[K.S. RADHAKRISHNAN, J.]
2.1.2 20 Lois have been issued and the Department is A
contractually obliged to give them start up spectrum of 4.4.
MHz under UASL.
2.1.3 As auctioning does not assure the operators to get
initial spectrum of 4.4 MHz as per UAS License provision, 8
auctioning and the clause 43.5 (i) of the UASL are
contradictory.
2.1.4 If the new entrants get spectrum by auctioning, they
may be paying more as compared to the existing players. C
Hence (a) auction will not ensure level playing; (b) also, as
the cost to the new entrants would be more, they may not
be able to offer competitive tariff.
2.1.5 Also 4.4. MHz is a part of the license agreement; no
spectrum acquisition charge is proposed to be levied. D
Even if it is priced, it will also disturb the level playing field
and the present LOI holders, who have already paid entry
fee, are likely to go for litigation. Initial entry fee for license
may be construed as the defector price of initial spectrum
i.e. Rs.1650 crore approximately for pan-India license." E
Para 3 of the Approach Letter deals with the spectrum
usage charges for additional spectrum of 1.8 MHz beyond 4.4.
MHz. The relevant portion of para 3 is extracted below:
F
"3. Spectrum Usage Charges for additional spectrum
of 1.8 MHz beyond 4.4 MHz
The issue of levying price for additional spectrum of 1.8
MHz beyond 4.4 MHz including auctioning was also G
discussed. Secretary (Finance) desired to know whether
this additional spectrum can be priced I auctioned and if
not then why.
3.1 The issue of levying price for additional spectrum H
902 SUPREME COURT REPORTS [2012] 11 S.C.R.
A of 1.8 MHz would not be practical due to following:
3.1.1 As per clause 43.S(ii) of UAS License which
provided that "Additional spectrum beyond the 4.4 MHz
may also be considered for allocation after ensuring
B optimal and efficient utilization of the already allocated
spectrum taking into account of all types of traffic and
guidelines I prescribed from time to time. However 6.2 +
6.2 MHz in respect of TOMA (GSM) based system shall
be allocated to any new Unified Access Services
c Licensee".
3.1.2 It implies that an operator is eligible for
consideration of additional 1.8 MHz spectrum (making total
of 6.2 MHz) after ensuring optimal and efficient utilization
of the already allocated spectrum taking into account all
D types of traffic and guidelines I criteria prescribed from time
to time.
3.1.3 The matter was internally discussed with
Solicitor General, who opined that he is defending the
E Government cases in various courts, where one of the
main contentions is that auction would lead to reduction
of competition and will not help in reducing the tariff and
hence it would be against increase of teledensity and
affordability. These being public interest concerns, it would
F be difficult to change the track at this juncture.
3.1.4 It is, however, proposed to price the spectrum
of 1.8 MHz beyond 4.4 MHz upto 6.2 MHz. The TRAI in its
report of August 2007 has recommended that any licensee
G who seeks to get additional spectrum beyond 10 MHz in
the existing 2G bands, i.e. 800, 900 and 1800 MHz after
reaching the specified subscriber numbers shall have to
pay a onetime spectrum charge at the below mentioned
rates on pro-rata basis for allotment of each MHz or part
H thereof of spectrum beyond 10 MHz ...... ."
SUBRAMANIAN SWAMY v. A. RAJA 903
[K.S. RADHAKRISHNAN, J.]
Para 4 of the Approach Paper deals with the price of A
spectrum beyond 6.2 MHz. Relevant portion of para 4
reads as under:
"4. Price of spectrum beyond 6.2 MHz
The UASL does not explicitly provide any provision B
or spectrum beyond 6.2 MHz and upto 10 MHz, however
the UASL clause 43.5(iv) provides that "the Licensor has
right to modify and I or amend the procedure of allocation
of spectrum including quantum of spectrum at any point of
time without assigning any reason". Hence the spectrum C
beyond 6.2 MHz should be properly priced keeping in mind
the market value of spectrum.
4.1 Auction Path:
Since we are not auctioning startup spectrum of 4.4 D
MHz and only pricing additional allocation of 1.8 MHz as
explained earlier, therefore, we can take 6.2 MHz as
threshold for consideration for auction as this also falls
beyond the provisions of the license agreement. The
following points are brought out: E
2G GSM Spectrum bands are 890-915 MHz paired
with 935-960 MHz, 1710-1755 MHz paired with
1805-1890 MHz i.e., 2.5 MHz is available in 900 &
75 MHz band is available in 1900 MHz band F
making a total of 100 MHz. Out of this more than
37 MHz stand allocated to the GSM service
providers in different service areas. Remaining 63
MHz, major portion of the spectrum in 1800 MHz
band is being used by Defence. G
120 LOls have been issued and startup spectrum
is to be allotted to them as well as for the growth;
existing operators should be given 6.2 MHz, subject
to availability.
H
904 SUPREME COURT REPORTS [2012] 11 S.C.R.
A After this allotment, hardly any identifiable free
spectrum will be available, which is a pre-requisite
for auction.
At any given time one or two operators will be
B eligible for beyond 6.2 MHz based on the
subscribers linked criteria. Hence if an auction is
to be held, competition would be limited.
Hence auctioning may not be successful in
providing optimum value due to (a) limited
c availability of spectrum & (b) limited competition.
TRAI has also not recommended for auctioning of 2G
spectrum in view of the following:
Service providers were allocated spectrum at
D
different times of their licenses and the amount of
spectrum with them. Therefore, to decide the cut off
after which spectrum is auctioned will be difficult and
might raise issue of level playing field.
E Penetration of mobile service is to happen in semi
urban and rural areas, where affordability of the
services to the common man is the key for further
expansion:
In view of all these factors, auction 2G spectrum at this
F
juncture does not appears to be viable solution."
4.2 Fix Price for spectrum beyond 6.2 MHz
The following two options were considered:
G
Option 1
For this purpose it may be desirable to index, the entry fee
of Rs.1650 crores in the year 2003-04 (for initial 4.4 MHz)
i.e. Rs.375 crore per MHz, for inflation, potential for growth
H of tele-density and revenue etc. appropriately. If we take
SUBRAMANIAN SWAMY v. A. RAJA 905
(K.S. RADHAKRISHNAN, J.)
an inflation of about 5% per year for 4 years upto 2007- A
08, which would mean about 20% compounded inflation
till 2007. Therefore, additional charges can be levied at
20% of Rs.375 crores for one MHz of spectrum i.e. Rs.425
Crores.
B
This option is not favoured in view of the low value of
spectrum.
Option 2
The service area wise AGR figures per MHz for the years c
2003-04, and anticipated figure were calculated and is
given at Annexure 1. It may be seen that there is an
increase of about 3-5 times, if the figures of 2007-08 with
2003-04 is compared.
It is for consideration to charge 'x' times of base price of D
Rs.375 crore/MHz, where 'x' is to be decided. This will be
charged to existing as well as new entrants. Those who
decide not to pay may be asked to surrender the excess
spectrum beyond 6.2 MHz."
E
Para 6 deals with the Merger and Acquisition (M&A) is
also relevant and the same reads as under:
6. Mergers and Acquisition CM&Al
In the context of intra-circle merger and acquisition, F
TRAI in their report of August 2007 have considered
various factors, namely Definition of Market Assessment
of Market Power criteria and Methodology, Determination
of minimum number of access service providers in a post
merger scenario and spectrum cap of the merged entity. G
The TRAI Recommendations had been eonsidered by
Telecom Commission. Some of the issues have been
referred back to TRAI for consultation. In view of very large
number of new players, it is expected that consolidation
is likely to take place in the industry in future. H
906 SUPREME COURT REPORTS [2012] 11 S.C.R.
A 6.1 In view of this, we need to have clear guidelines relating
to M&A. We also need to consider fees on account of
transfer of spectrum to the merged entity. In the event of
M&A the transfer charge to the Government has not been
considered by TRAI in their recommendation of August
B 2007. This is a complex issue requiring detailed
deliberation and consultation. Therefore, the issue of
quantum of fees which the Government would get on
account of transfer of spectrum during M&A needs to be
referred to TRAI. Based on the Recommendations of TRAI
c on the above issue, DoT will take appropriate decision with
a specified time period and issue clear and transparent
guidelines for M&A including transfer charges for
spectrum."
44. The Secretary, DoT then vide letter dated 8.2.2008,
D forwarded the Approach Paper with regard to the meeting held.
Minister of Finance vide note dated 11.2.2008, acknowledged
the note dated 8.2.2008 which was the summary of the four
rounds of discussion they had and a Sequal note setting out
the then existing position regarding telecom fees and charges
E and pricing of spectrum and the issues for decision were high- ·
lighted. •
Paras 16 to 18 of the Sequal note read as under:
"Auction of Spectrum
F
16. Auctioning spectrum suggests itself is as a clear first
choice. It has several merits.
(i) Best method of discovering price
G
(ii) Is more transparent and provides a level
playing field
(iii) Promotes competition
H 17. However, it will be problematic for us to adopt the
SUBRAMANIAN SWAMY v. A. RAJA 907
[K.S. RADHAKRISHNAN, J.)
auction route at this late stage mainly for 'historical legacy' A
reasons. A number of operators have already been given
spectrum free of charge. The spectrum available for
auction, therefore, will be quite limited (DoT has .not been
able to indicate the precise quantum of spectru!li that will
be available for allotment). Efficient price discovery B
becomes possible only if the supply is large and there are
a number of potential buyers: a thin market has clear
limitation in signalling a price. It may turn out that the
'discovered price' is either too low or too high. In its August
2007 report (para 2. 79), TRAI too advised against c
auctioning of spectrum on the ground that it will trigger
issues of level playing field.
18. Auction will be viable if we can increase the quantum
of spectrum available. This can be done by withdrawing
the spectrum already allotted to existing operators and D
putting all of it on auction. Both existing and new license
will then bid on a clean slate. This is evidently an extreme
measure, and has significant practical and legal
implications."
E
On the subject of market based price determination, the
MoF in paras 19 & 20 stated as follows:
"Market Based Price Determination
19. If auction is ruled out, what are the alternatives for F
determining an appropriate market based price for
spectrum?
20. The value of spectrum embedded in the entry fee
provides a possible reference frame for pricing spectrum. G
Currently, 4.4MHz of spectrum is allotted at the entry level
on payment of an entry fee of Rs. 1650 crores for pan-India
operation. This translates to an embedded price of Rs.375
crores/MHz. This price was discovered in 2001 and fixed
in 2003/04. Using this reference frame price, there are two H
908 SUPREME COURT REPORTS [2012] 11 S.C.R.
A options for determining the current price of spectrum.
On the question of pricing of spectrum beyond 4.4 MHz,
the views expressed by the Ministry of Finance in the above
letter read as follows:
B 28. DoT is of the view that it is not advisable I possible to
price the start-up allocation of a 4.4 MHz on the following
argument. Allocation of 4.4 MHz spectrum is part of the
licence Agreement. This start-up spectrum was given free
of cost in the past. The new entrants who were given
c licenses in January 2008 paid the entry fee on the
understanding that they would get this start-up spectrum
would be a breach of this understanding. It will also disturb
the level playing field between the existing operators and
the new licencees. This may also trigger litigation.
D
29. DoT is agreeable to pricing of spectrum beyond
4.4MHz. However, they have suggested a differentiated
pricing regime. According to them, there should one price
of spectrum between 4.4 MHz and 6.2 MHz (1.8 MHz), and
E another price for spectrum beyond 6.2 MHz. In August
2007, TRAI recommended a price for licensees who seek
spectrum beyond 10 MHz. DoT wants to apply this price
for spectrum between 4.4 MHz and 6.2 MHz for spectrum
beyond 6.2 MHz, DoT is agreeable to using the price
determined as at paragraph 22 above.
F
30. Ministry of Finance differs from the above position of
DoT. There is no contractual obligation to allot a start-up
spectrum of 4.4 MHz to every licensee free of cost. The
entire range of the spectrum allotted should be priced. The
G issue of level playing field can be addressed by charging
this price even on existing operators.
31. Moreover, the differentiated pricing suggested by DoT,
viz. One price for spectrum between 4.4 and 6.2 MHz and
a different price for spectrum beyond 6.2 MHz will be
H
SUBRAMANIAN SWAMY v. A. RAJA 909
[K.S. RADHAKRISHNAN, J.]
clumsy, non-transparent and legally questionable. It will be A
neat and transparent to fix a single circle-specific price for
spectrum across the entire bandwidth.
On Merger and Acquisition (M&A), the views expressed
by the Finance Minister read as follows: 8
"32. It is likely that the market will see considerable M&A
activity over the next few years. It should be Government's
endeavour to ensure that this consolidation happens in an
efficient and healthy manner. One question that arises is
whether the Government should get a premium out of an C
M&A transaction. Since spectrum has not been auctioned
but priced juristically, it is likely that the rent, if any, involved
in the price of spectrum will form part of the M&A
transaction which would typically involve a host of other
assets and liabilities, is a complex task. TRAI is best D
positioned to think through and advise on this issue. The
ToRs to TRAI in the regard should be: (i) What should be
guidelines for M&As between UASL operators? (ii) Should
Government get a premium out of M&A activity? And (iii)
if yes, how can this premium be determined? E
45. Ministry of Finance (Department of Economic Affairs)
also prepared a note on 7.4.2008 after discussing the matter
with the Minister of Finance, which shows that the Minister of
Finance had also agreed that spectrum usage charges should
be increased reflecting the scarcity value of spectrum as F
indicated in Ministry's note dated 11.2.2008. On pricing of
spectrum, the Ministry of Finance was of the view that they might
insist in principle on pricing spectrum (beyond 4.4. MHz)
although details could be worked out after the auction of 3G's
spectrum. G
46. Mr. Govind Mohan, Director, Ministry of Finance had
prepared a detailed office memorandum on 8.4.2008, wherein
after referring to the DoT letter dated 29.1.2008, the following
amendments were suggested: H
910 SUPREME COURT REPORTS [2012] 11 S.C.R.
A "4.0 Union Cabinet, in its meeting on October 31, 2003
had, inter alia, decided that spectrum pricing would need
to be decided mutually between DoT and MoF so as to
provide incentive for efficient use of spectrum as well as
disincentive for sub-optimal usage. In the context of this
B decision, the following amendments are being suggested
in Pricing of Spectrum, its allotment among Access
providers and Spectrum Usage Charges:
1. Any Allotments of Spectrum to access
subscriber licensees under UASL regime
c may henceforth be specifically priced and
charged for. The charge may be determined,
circle wise, by adopting the Entry Fee, fixed
for that circle in 2003-04, and thereafter
inflating it by the multiplier, which represents
D the growth in aggregate AGR per MHz
between 2003-04 and 2007-08; hence, for a
Pan India operator, the Circle fee fixed in
2003-04 (Rs.375 crore per MHz) would be
inflated by a multiple of 3.5 (which represents
E the growth in AGR/MHz between 2003-04
and 2007-08) to yield the new spectrum price
of Rs.1,312 Crore per MHz (approximately);
2. The price determined as above may be
F made applicable to both the new and existing
operators; moreover, the entire range of
spectrum allotted may be charged, for both
new and existing operators; such operators
who do not intend to pay the new charges
may be given the option of surrendering the
G
Spectrum allotted to them; ................... :
47. Letter, it is seen, was issued with the approval of the
Minister of Finance.
H 48. Noticing some mistakes in that office memorandum,
SUBRAMANIAN SWAMY v. A. RAJA 911
[K.S. RADHAKRISHNAN, J.]
an amended office memorandum was issued by Mr. Govind A
Mohan, on the same date. The reason is obvious, because the
Finance Secretary D. Subbaroa, had made a note on 7.4.2008
stating that the FM's view was that the Ministry must insist in
principle on pricing of Spectrum (beyond 4.4.MHz), although
details could be worked out after the auction of 3G Spectrum. B
Evidentially it was a bona fide mistake committed by Dr.
Govind Mohan, because the original Memo dated 8.4.2008 was
contrary to the note prepared by the Finance Secretary, and
hence he had to issue a corrected OM the operative portion of
the same reads as follows: c
'4. Union Cabinet in its meeting on October 31, 2003, inter
alia, decided that spectrum pricing would need to be
decided mutually between DoT and MoF so as to provide
incentive for efficient use of spectrum as well as
disincentive for sub-optimal usage. In the context of this D
decision, the issues that need to be decided in respect of
2G spectrum were discussed by Finance Secretary in
three rounds of meetings with Secretary (Telecom) in
February, 2008. Accordingly, the following amendments
are being suggested in Pricing of Spectrum, its allotment E
among Access providers and Spectrum Usage Charges:
1. Any allotments of spectrum to access subscriber
licensees under UASL regime - beyond the initial
"start-up" allocation of 4.4 MHz - may henceforth be F
specifically priced and charged for. Details in this
regard can be worked out;
2. The price determined as above may be made
applicable to both the new and existing operators;
such operators who do not intend to pay the new G
charges may be given the option of surrendering
the spectrum allotted to them;
3. Spectrum Usage Charge, instead of being charged
as a fixed percentage of Adjusted Gross Revenue H
•
912 SUPREME COURT REPORTS [2012] 11 S.C.R.
A (AGR) for different spectrum bands, may henceforth
be charged as a percentage of AGR based on
volume of business categorization, so as to better
reflect and capture the circle specific scarcity value
of spectrum. The revised charges proposed for
B various Circles are as per the table annexed to this
OM and as agreed in the discussions between
Finance Secretary and Secretary, Department of
Telecom;
4. The recommendations of TRAI for revising the
c subscriber base criteria for allotment of spectrum
may be considered for implementation in the
interest of enhancing efficiency of spectrum usage
and encouraging technological innovations.
D 49. Shri P. Chidambaram, wrote a letter dated 21.4.2008
to Shri A. Raja, forwarding a non-paper containing Finance
Minister's views on issues relating to 2G Spectrum and issues
· relating to 3G (Wi Max Spectrum). After discussions, it was
pointed out that the conclusion be presented to the Prime
E Minister.
50. The Finance Secretary, as instructed by the Finance
Minister, met the Secretary DoT on 24th April, 2008 and a hand
written note was prepared by the Finance Secretary on
29.4.2008 on all outstanding issues. The recommendations of
F the MoF were as follows:
"Pricing of Spectrum
3. We may recommend the following principles for
G pricing of spectrum:
(i) The start-up spectrum of 4.4 MHz for GSM (2.5 MHz
for CDMA may be exempted from upfront pricing
both for new and existing operators.
H
SUBRAMANIAN SWAMY v. A. RAJA 913
(K.S. RADHAKRISHNAN, J.]
(ii) Under the UASL Licensing regime, there appears A
to be an implicit, indirect contractual obligation to
allow further allotment of spectrum, beyond 4.4 MHz
for GSM (2.5 MHz for CDMA), and upto 6.2 MHz
for GSM (5MHz for CDMA) after payment of 1%
additional spectrum usage charges and ensuring B
that already allocated spectrum has been optimally
and efficiently utilized. This mall effectivelll l!rotect
012erators who have existing ji!llocations u12to 6.2
MHz for GSM (5MHz for CDMA} from 12allment of
anll other charSf!s, including the "u12 fronr s12ectrum c
12rice. Since it mall not be 12ossible to charge
012erators alreadll having allocations u12to this
range, the 12rinci12le of egui1l£ and "level 12lalling field"
would reguire that the 012erators, who get fresh
allotment of s12ectrum u12to 6.2 MHz for GSM (SM Hz
D
for CDMA} too should not be charged for s~ctrum
u12to 6.2 MHz for GSM ( 5 MHz for CDMA}.
(iii) Spectrum beyond 6.2 MHz in case of GSM (5MHz
in case of CDMA) should be priced. This is
defensible on the following grounds. First, as per the E
terms of the UAS license, there is no contractual
obligation on the part of the Government to
necessarily allot spectrum beyond 6.2 MHz (beyond
5MHz in case of CDMA); and, secondly,
Government retains the sovereign right to modify the F
terms of license as also the procedure for allocation
of spectrum, including quantum of spectrum, at any
point of the time without assigning any reason." ·
(emphasis supplied) G
Issues relating to merger and acquisition have been dealt
with in Paras 16 to 18 and the same read as follows:
H
914 SUPREME COURT REPORTS [2012] 11 S.C.R. .
A "Issues relating to Mergers and Acquisitions
16. DoT have issued a notification on April 22, 2007 on
"Guidelines for intra service merger of Cellular Mobile
Telephone Service (CMTS)/Unified Access Services
(UAS) J,.icensees".
B
17. The guidelines derive substantially from the
recommendations made by TRAI on this subject vide
Report of August, 2007. The guidelines mandate a
"spectrum transfer charges" to be payable as specified by
c Government.
18. DoT may be advised that fixation of "spectrum transfer
charges" shall be in consultation with DEA."
51. Shri P. Chidambaram and Shri A. Raja met on
D 29.5.2008 and 12.6.2008 for resolving the then outstanding
issues relating to the allocation and pricing 2G and 3G
Spectrums. Meeting of two Ministers would not by itself be
sufficient to infer the existence of a conspiracy. Even before
those meetings, as instructed by the Finance Minister, the
E Finance Secretary and Telecom Secretary had already met on
24.4.2008, had agreed that it might not be possible to charge
operators already having allocation upto 6.2 MHz and the
principle of equity and level playing field would require that the
operators who get fresh allotment of Spectrum upto 6.2MHz for
F GSM too should not be charged for Spectrum upto 6.2 MHz
for GSM. Therefore, the allegation that Shri P. Chidambaram
had over-ruled his officers' views and had conspired with Shri
A. Raja is without any basis.
G 52. Criminal conspiracy cannot be inferred on the mere fact
that there were official discussions between the officers of the
MoF and that of DoT and between two Ministers, which are all
recorded. Suspicion, however, strong, cannot take the place of
legal proof and the meeting between Shri P. Chidambaram and
H Shri A. Raja would not by itself be sufficient to infer the •
SUBRAMANIAN SWAMY v. A. RAJA 915
[K.S. RADHAKRISHNAN, J.]
existence of a criminal conspiracy so as to indict Shri P. A
Chidambaram. Petitioners submit that had the Minister of
Finance and the Prime Minister intervened, this situation could
have been avoided, might be or might not be. A wrong
judgment or an inaccurate or incorrect approach or poor
management by itself, even after due deliberations between B
Ministers or even with Prime Minister, by itself cannot be said
to be a product of criminal conspiracy.
53. We are of the considered view that materials on record
do not show that Shri P. Chidambaram had abused his position
as a Minister of Finance or conspired or colluded with A. Raja C
so as to fix low entry fee by non-visiting spectrum charges fixed
in the year 2001. No materials are also made available even
fo( _a prima facie conclusion that Shri P. Chidambaram had
deliberately allowed dilution of equity of the two companies, i.e.
Swan and Unitech. No materials is also available even prima D
facie to conclude that Shri P. Chidambaram had abused his
official position, or used any corrupt or illegal means for
obtaining any pecuniary advantage for himself or any other
persons, including Shri A. Raja. ·
E
54. We are, therefore, of the considered opinion that no
case is made out to interfere with the order dated 4.2.2012 in
C.C. No. 01 (A) I 11 passed by Special Judge CBI (04) (2G
Spectrum Cases), New Delhi or to grant reliefs prayed for in
I.A. No. 34 of 2012. Special Leave Petition (Crl.) No. 1688 of F
2012 is, therefore, not entertained, so also I.A. No. 34 of 2012
in Civil Appeal No.10660 of 2010 and they are accordingly
stand rejected.
K.K.T. SLP & I.A. Rejected.
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