A Raja

What Vinod Rai's book proves: History will not be kind to Manmohan Singh

India's PM Singh speaks during India Economic Summit in New DelhiVivek Kaul


In January 2014, towards the end of his second term, Manmohan Singh spoke to the media for the third time in a decade. On this occasion he said “I honestly believe that history will be kinder to me than the contemporary media.”
While speaking to the media Singh also said “I feel somewhat sad, because I was the one who insisted that spectrum allocation should be transparent, it should be fair, it should be equitable. I was the one who insisted that coal blocks should be allocated on the basis of auctions. These facts are forgotten.”
If that was the case then why did the allocation of 2G(second generation) telecom licenses and coal blocks end up in a mess? This Singh did not elaborate on during the course of his interaction with the media in January, earlier this year. Neither has he chosen to elaborate on these points since then.
Vinod Rai, the former Comptroller and Auditor General (CAG), analyses both these issues and the role Singh played in them, threadbare, in his new book Not Just an Accountant—The Diary of the Nation’s Conscience Keeper. In this piece we shall look at the mess that the issuance of 2G telecom licenses ended up in and leave the discussion on what came to be called coalgate, for sometime later this week.
Rai in his book through a series of documented evidence shows how Singh was fully aware of what was going on, but still chose to not to do anything about it. Instead, he even went to the extent of distancing himself from the decisions made by the communications minister A Raja.
As Rai writes “You [Manmohan Singh] engaged in a routine and ‘distanced’ handling of the entire allocation process, in spite of the fact that the then communications minister A Raja, had indicated to you, in writing, the action he proposed to take. Insistence on the process being fair could have prevented the course of events during which canons of financial propriety were overlooked, unleashing what probably is the biggest scam in the history of Independent India.”
Before we get into the details of what probably led Rai to make such a strong statement, we need to take a brief look at how the Indian telecom sector evolved from the 1990s.
The telecom sector was opened up to the private players in a phased manner after the announcement of the National Telecom Policy (NTP) in 1994. Licenses were initially allotted to private companies in 1995, through the competitive bidding route. These licenses allowed private companies to launch mobile phone telephony in India.
The policy was revised in 1999 and existing mobile phone operators were allowed to migrate to a revenue sharing regime with the government. “The upfront payment was an entry fee, with the annual license fee to be paid separately. The entry fee was fixed on the basis of the highest bid received in the 2001 auction of licenses. It was Rs 1,651 crore for pan-India licenses,” writes Rai. The then prime minister Atal Bihari Vajpayee constituted a group of ministers on telecom in September 2003. The recommendations of this group were added to the National Telecom Policy of 1999. The existing system of issuing licenses were replaced by an automatic authorization regime.
A Raja took over as the communications minister in May 2007. He decided to continue with the first-come-first served(FCFS) policy for allocation of licenses to telecom companies. On September 25, 2007, a press release was issued and applications were invited for telecom licenses. The last date was set to October 1, 2007, a week later.
In total 575 applications for 22 service areas were received by the communications ministry. This led to the ministry of communications writing to the law ministry and sought its opinion on how to deal with the situation of so many applicants. The law ministry suggested that the issue be referred to the empowered group of ministers(eGOM). Raja did not like this suggestion and on November 1, 2007, wrote a letter to Manmohan Singh.
In this letter Raja complained that the suggestion of the law ministry “is totally out of context”. He then went on to coolly inform the prime minister that he had decided to advance the cut off date for licenses to September 25,2007, the date on which the press release was issued for the allocation of licenses, instead of October 1, 2007.
Raja further told Singh that “the procedure for processing the remaining applications will be decided at a later date, if any spectrum is left available after processing the applications received up to September 25, 2007.”
The rules of the game were changed after it had started. Singh responded immediately on the same day. In his letter, Singh seemed to be concerned over the fact that a large number of applications for new licenses had been received. Given the fact that the spectrum was limited, it would not be possible to give spectrum to all of them, even over the next few years, Singh wrote. He further pointed out that the National Telecom Policy of 1999 had specifically stated that the new licenses be issued subject to the availability of spectrum.
In this scenario, Singh suggested that the communications ministry consider the introduction of a transparent methodology of auction, wherever it was legally and technically feasible. This needed to be done in order to ensure that spectrum was used efficiently.
Also, the entry fee for these licenses was the same as in 2001, i.e. Rs 1,651 crore. Hence, Singh suggested that the entry fee be revised. This was a logical suggestion to make given that six years had passed since 2001 and if not anything at least inflation had to be taken into account.
Raja responded within hours of receiving this letter from Singh. He ruled out an auction stating that “the issue of auction of spectrum was considered by TRAI[the telecom regulator] and the telecom commission and was not recommended as the existing license holders..have got it without any spectrum charge.” Raja went on to add that the holding an auction would thus be “unfair, discriminatory, arbitrary and capricious”.
Meanwhile, Kamal Nath, wrote to Singh on November 3, 2007, and suggested that a group of ministers should be asked to comprehensively study all the issues facing the telecom sector. Raja responded to this on November 15, and said that the Indian telecom industry was doing very well and was adding seven million new customers every month. The shares of the telecom companies listed on the stock market were also doing very well. And given these reasons the suggestion of Kamal Nath of setting up a group of ministers was again “out of context,” as had been the case with the law ministry earlier.
Singh responded on November 21, by sending what former CAG Rai calls a “template response”. In this letter Singh acknowledged that he had received Raja’s recent letter on the recent developments in the telecom sector. Raja wrote to the prime minister again on December 26, 2007. Singh again responded with the same templated response on January 3,2008.
All that has been discussed till now raises a series of questions. As Rai writes “[Manmohan Singh] failed to direct his minister[i.e. A Raja] to follow his advice…Why under what compulsion, did the prime minister allow Raja to have his way, which permitted a finite national resource [i.e. the telecom spectrum] to be gifted at throwaway price to private companies—private companies that, going by the minister’s own admission, were ‘enjoying the best results […] which was also reflected in their increasing share prices?”
Also, why was the entry price fixed at Rs 1,651 crore, which was a price set way back in 2001. As mentioned earlier this price should have at least taken inflation into account. The telecom market had also expanded since 2001. The National Telecom Policy of 1999 had set a teledensity target of providing 15 telephone connections per 100 of population. The teledensity in 2001 had stood at 3.58. In September 2007, a teledensity of 18.22 had been reached. “Was this data not available with the government..to counter Raja’s consistent and constant refrain?” asks Rai.
Further, even if increasing teledensity was the main goal, given that the spectrum is finite, didn’t it call for a “balance between revenue generation and achieving social objectives?” In fact, the tenth plan document clearly mentions this, when it comes to spectrum allocation: “pricing needs to be based on relative demand and supply over space and time in a dynamic manner, [with] opportunity cost to reflect relative scarcity of the resource in a given situation.”
Also, why was the cut-off date for the last date to receive applications arbitrarily advanced from October 1, 2007 to September 25,2007? As Rai writes “Though Raja clearly indicated this to the prime minister in his letter of 2 November 2007, the PMO chose not to object. Why it chose not to, remains unclear.”
Interestingly, thirteen applicants seem to have known of this change in date, in advance. How else do you explain the fact that certain applicants appeared with demand drafts amounting to thousands of crore, which had been issued even before the press release inviting applications for telecom licenses was put out on September 25, 2007.
Then there is the question of first-come-first served. It essentially means those who applied for a license first, would be given a license first. But that wasn’t the case. “One would be surprised to learn that even this procedure, which was repeatedly reiterated to the prime minister by Raja, was given the go-by, and all applications submitted between March 26 and 25 September 2007 were considered together,” writes Rai.
Pulok Chatterjee, a bureaucrat known to be close to the Gandhi family, was an additional secretary in the prime minister’s office at that point of time. In a note that was presented to prime minister Singh on January 6, 2008, Chatterjee concluded that “ideally in a situation where the spectrum is scarce it should be auctioned”. But by that time the licenses had already been issued.
Joint secretary Vini Mahajan recorded that the prime minister wanted Chaterjee’s note to be only “informally shared within the Dept”. She further noted that the prime minister “does not want a formal communication and wants PMO to be at arm’s length.” As Rai asks “How can the office of the prime minister distance itself from such major decisions? Arm’s length from the action of his own government?”
Also, it needs to be noted here that Raja suggested that TRAI was against auction of telecom spectrum. This is untrue. In August 2007, the telecom regulator had clearly stated that: “In today’s dynamism and unprecedented growth of telecom sector, the entry fee determined in 2001 is also not the realistic price of obtaining a license. Perhaps it needs to be reassessed by a market mechanism.”
The companies which got these licenses cheap, cashed in on it almost immediately. “In case of Unitech, which had no previous experience in the telecom business, Telenor, a Norwegian company, agreed to acquire 67.25 per cent stake for Rs 6,120 crore. Tata Teleservices sold 27.31 per cent stake to NTT Docomo at a value of Rs 12,924 crore. Even Swan Telecom sold 44.73 per cent stake to Etisalat International at Rs 3,217 crore. Is that not clearly indicative of the value the market attached to the 2G spectrum license. Even a cursory back-of-the-envelope calculation will indicate that licenses which could have fetched between Rs 8,000 to Rs 9,000 crore were priced at Rs 1,658,” writes Rai.
On February 2, 2012, the Supreme Court cancelled all the licenses that had been issued by A Raja.
On a slightly different note, Rai also points out it was a ruling party MP (Rai does not give out his name in the book) who seems to have first suggested that losses that the government faced from giving out licenses cheaply, needed to be calculated.
As Rai puts it “He [i.e. the MP] went on to reiterate that it was obvious how much the government of India could have secured by transparent bidding and asserted that even a section officer in the government would be able to make this computation.” In a recent interview Rai revealed that the name of the MP was KS Rao, who has since quit the Congress protesting against the bifurcation of Andhra Pradesh and joined the BJP.
Rai writes that this was one of the reasons why the CAG decided to compute a loss figure arising out of the 2G telecom licenses being issued cheaply. As he writes “Now if an MP, and of the ruling party, makes such a strong assertion, obviously the audit department has to take cognizance of that parameter for computation.”
The CAG used various methods to compute a loss figure and arrived at a four numbers ranging from Rs 57,666 crore to Rs 1,76,645 crore. All this could have been avoided only if Singh had chosen to respond differently and instead said to Raja that “I have received your letter…Please do not precipitate any action till we or the GoM[group of ministers] have discussed this.”
To conclude, on an earlier occasion I had written that if he wants history to treat him kindly, Singh needs to write his autobiography and put forward his side of the story as well. Whether he does that or not, remains to be seen. But Vinod Rai’s thoroughly researched book makes me now believe that whatever Singh might do, history will not be kind to him, his hopes notwithstanding.
The article appeared originally on www.Firstpost.com on Sep 15, 2014

(Vivek Kaul is the author of the Easy Money trilogy. He tweets @kaul_vivek)

What Manish Tewari is trying to do is confuse us – like Sibal


Vivek Kaul
The urdu poet Bashir Badr once wrote “dil ki duniya purani dilli hai, job hi guzra hai usne loota hai.” (Loosely translated which means that the heart’s world is like Old Delhi, whoever has passed through has looted it).
The politicians who run the current United Progressive Alliance (UPA) operate out of New Delhi, and like the chieftains of the yore who robbed Old Delhi, they continue to rob New Delhi and in the process India.
One such robber politician is A Raja who sold 122 telecom licenses at Rs 9,200 crore in 2008, a price which was significantly lower than the price the government could have got if it had auctioned the licenses. The Comptroller and Auditor General(CAG) made four estimates of the losses on account of this. These losses worked out to Rs 57,666 crore, Rs 67,364 crore, Rs 69,626 crore and Rs 1,76,645 crore.
As is wont in such cases the media ran with the highest figure and put the losses on account of shenanigans of Raja at Rs 1,76,000 crore. But even a loss of Rs 57,666 crore was no small number.
The Supreme Court canceled these licenses. The government recently tried to auction these licenses again.  Its aim was to raise Rs 40,000 crore from these auctions. It managed to raise only Rs 9,407 crore.
This prompted Manish Tewari the newly appointed minister for Information and Broadcasting to ask “Mr CAG, where is the Rs 1.76 lakh crore?”
Tewari went on to add that “I think it is time for some serious introspection. It’s time the CAG introspects on his processes and it is high time that the BJP and some of the other opposition parties, which had made this their holy-grail and swansong of politics over the last two years, should publicly apologise.”
The comment is along the lines of Kapil Sibal’s famous zero loss theory on the CAG’s estimates of the losses to the government on account of Raja’s shenanigans. “The logic underlying this estimate is completely flawed. Government policy is formulated with a view to maximising public welfare, and not merely to maximise Government revenues. The pricing of different natural resources is often done in a manner that meets this objective,” Sibal had said justifying the decision of the government to sell telecom licenses in 2008 at the same price as they had sold in 2001. “No loss at all. Zero is the loss…It (the calculation made by CAG) has embarrassed the government, it has embarrassed the nation.”” Sibal declared.
But how does the government explain the fact that Unitech, a company which got the license in 2008, went around and sold 60% of its stake to Telenor for Rs 6,120 crore even before it had constructed a single tower to launch a mobile phone service. It had paid only Rs 1651 crore for the telecom licenses. Shouldn’t this money have realistically flown into government coffers?
So what can safely be said was that Sibal was essentially trying to complicate the issue in order to confuse the nation. As a recent profile on Sibal in the The Carvan magazine puts it “There was a method to Sibal’s madness. This was his opening statement before the court of public opinion, and he had unquestionably taken the strongest possible line in his client’s defence. That few seemed to believe him was beside the point. His audacity had muddied the waters just enough to introduce doubts in what had looked like an open-and-shut case, demonstrating that a sufficiently strenuous and elaborate defence of the indefensible could perhaps make it defensible after all.”
Manish Tewari is working along similar lines and trying to complicate the issue or as The Caravan puts it in Sibal’s case “muddle the water just enough”.
We need to understand a few things here to basically look through Tewari’s statement. CAG used various methods to arrive at the loss estimates that it did. For the estimate of Rs 1,76,645 crore, CAG used the prices that companies paid when the 3G licenses were auctioned in 2010. The logic being that if the telecom licenses had been auctioned in 2008 and companies had paid the same prices that they did for 3G licenses in 2010, the government could have made Rs 1,76,645 crore more than it actually did.
Similarly other ways were used to arrive at other loss estimates. Another loss estimate of Rs 69,626 crore was based on the price at which Unitech sold 60% of the stake in its telecom business to Telenor immediately after getting the telecom license in 2008.
So, yes, there was a loss to the government and the nation when A Raja sold off 122 telecom licenses for Rs 9,200 crore. There is no beating that irrespective of what Tewari now and Sibal earlier had to say.
Let’s come back to the recent telecom auction and the inability of the government to raise much money from it, something that prompted Tewari to ask “Mr CAG, where is the Rs 1.76 lakh crore?”
Just because the government couldn’t raise as much as it was expecting to from this auction does not mean that the way the government went around selling telecom licenses in 2008 was correct. Second, much has changed between 2008 and 2012. The finances of the Indian government are in a mess. Inflation and interest rates are high. And economic growth is stagnating. Hence, telecom companies are no longer in the mood to pay the high prices that they did for 3G spectrum in 2010. Also, if the government raised the kind of money that it did with the 3G auction in 2010, imagine the kind of money it could have raised had it decided to auction telecom licenses in 2008 when the financial crisis had not yet broken out, instead of giving them away on a first come first serve basis.
But Tewari is working along expected lines. He is a lawyer by qualification who was expected to muddle up things as a spokesperson for the Congress party. And he is working along similar lines after taking over as the minister for information and broadcasting, a post from which he can hope to effectively control opinion.
As Noam Chomsky, the world’s foremost living intellectual, points out in How the World Works “Ultimately, the governors, the rulers, can only rule if they control opinion…This is true of the most despotic societies and the most free… If the general population won’t accept things, the rulers are finished.”
In this day and age of the internet where it is very difficult to totally control opinion that is going around, the best a ruler can do is muddle the opinion and that is what Tewari is trying to do in this case.
Also having been in the party for too long Tewari has now tasted real power and is trying to do a Sibal. The Caravan in its recent profle of Sibal wrote “Among the country’s chattering classes, his innumerable television appearances and indefatigable zeal for defending the indefensible have made him a favourite target for mockery and derision—in which he typically appears as a caricature combining the worst qualities of lawyers, politicians and out-of-touch elites. But Sibal is well aware that his prominence within the party depends on these over-the-top performances, and it could be argued that no other politician has taken better advantage of the present age of around-the-clock television shoutfests and exaggerated sound-bites.”
This could have easily been written for Tewari as well.
The article originally appeared on www.firstpost.com on November 19, 2012.
(Vivek Kaul is a writer. He can be reached at [email protected])

Sibal jumped the gun: SC may well see Coalgate as a scam


Vivek Kaul
Gyan Chaturvedi, a famous Hindi writer of this era, makes a very interesting point in the introduction to his 2004 book Marichika . He writes “jungle ke apne niyam hote hain aur wahan kissi tark ka koi sthan nahi hota (a jungle has its own rules and there is no space for any reasonable arguments to be made there).”
Nobody understands this much better than politicians operating in the jungle of politics. They rush to save their own skin and keep justifying what they had said earlier, despite evidence to the contrary. “My position is right because I had said so in the past,” is the logic with which they operate. There is no scope for a “reasonable argument” there.
The Telecom Minister Kapil Sibal’s reaction to the Supreme Court’s “opinions” on the government reference to it asking for broad-sweep clarifications on its policy of allocating natural resources is a very good example of the same. “We welcome the Supreme Court(SC) opinion. SC has confirmed what the government has been saying,” Sibal said yesterday.
This comment came after a five judge bench of the Supreme Court answered the questions it had been asked by the government of India through a Presidential reference on April 12,2012. Among other things the government had asked the Supreme Court to clarify on “whether the only permissible method for disposal of all natural resources across all sectors and in all circumstances is by the conduct of auctions.”
This question had arisen in light of the Supreme Court judgement cancelling the licenses given to 122 telecom companies in 2008, when A Raja was the Telecom Minister. The government had given out these licenses on the basis of “first come first serve” principle rather than auctioning them as they had done in the past and thus causing a huge loss to the exchequer.
In response to the government’s question the Supreme Court clarified “Auctions may be the best way of maximising revenue but revenue maximisation may not always be the best way to subserve public good. Common good is the sole guiding factor under Article 39(b) for distribution of natural resources. It is the touchstone of testing whether any policy subserves the “common good” and, if it does, irrespective of the means adopted, it is clearly in accordance with the principle enshrined in Article 39(b).”
This paragraph in the suggestions made by the Supreme Court perhaps got the politician in Sibal gloating and into the “I had told you so” mould. The government has maintained that auctioning natural resources is not always the best possible way to operate because it tends to drive up prices. For example, if coal is auctioned to the highest bidder, then power prices will go up. Hence, in lieu of the “common good” natural resources cannot always be sold to the highest bidder.
Let’s see how strong this argument holds in case of the coalgate scam. Between 1993 and 2011, the government gave away 195 coal blocks with total geological reserves of 44802.8million tonnes free to private and government companies. An estimate of the total amount of coal present in a block is referred to as geological reserve. Due to various reasons including those of safety, the entire reserve cannot be mined. The portion that can be mined is referred to as extractable reserve.
Of these 115 blocks were given to companies which would use coal that they produced from these captive blocks for the manufacture of cement and iron and steel, conversion of coal to oil and commercial mining. These blocks have geological reserves amounting to 20526.9 million tonnes of coal.
The manufacture of cement and iron and steel or commercial mining operations are “for profit” operations and cannot be termed as “common good”. Hence there was no reason for the government to give away these coal blocks for free. That is a clear interpretation that one can draw out of what the Supreme Court said.
Eighty coal blocks were given to companies for the manufacture of power. Of these 80 coal blocks, 53 blocks were given to companies for captive dispensation of power. These blocks had 10621.4 million tonnes of geological reserves of coal.
What this meant was that companies had to use the coal produced from the blocks they had been given to produce power to meet their internal needs. Hence a company manufacturing steel could use coal produce from its blocks to manufacture power needed to produce steel. The “free” coal blocks would allow them to produce power cheaply and thus bring down their costs and thus make higher profits from what they would have made. Again, the end result is a “for profit” operation and this cannot be categorized as “common good”.
Hence, 168 out of the 195 coal blocks with geological reserves of 31148.3 million tonnes were allocated to companies supposedly in “for profit” operations. The remaining 27 blocks with geological reserves of 13654.5 million tonnes were allocated for production of power. Of these seven blocks had been allocated to ultra mega power projects. The companies which were given these blocks could produce power cheaply because they did not have to pay for the coal block. This can be categorized as a “common good”.
Hence, common good is limited to around 30% of the coal reserves allocated under the government’s policy of giving away coal blocks for free. Even this can be questioned given that all the seven coal blocks (with geological reserves of 2607million tonnes) allocated to the ultra mega power projects are in the private sector. And no private sector company is in business to make a loss.
If Sibal had read the suggestions of the Supreme Court carefully enough he would have realised that Justice Jagdish Singh Khehar, one of the judges on the bench, does make the points I just raised above.  “When natural resources are made available by the state to private persons for commercial exploitation exclusively for their individual gains, the state’s endeavour must be towards maximisation of revenue returns. This alone would ensure, that the fundamental right enshrined in Article 14 of the Constitution of India (assuring equality before the law and equal protection of the laws), and the directive principle contained in Article 39(b) of the Constitution of India (that material resources of the community are so distributed as best to subserve the common good), have been extended to the citizens of the country,”Kehar points out.
Given this, it clearly means that 70% of the coal blocks given away for free should have been auctioned because there is clearly no “common good” involved there.
Judge Kehar also pointed out that “No part of the natural resource can be dissipated as a matter of largesse, charity, donation or endowment, for private exploitation. Each bit of natural resource expended must bring back a reciprocal consideration. The consideration may be in the nature of earning revenue or may be to “best subserve the common good”. It may well be the amalgam of the two. There cannot be a dissipation of material resources free of cost or at a consideration lower than their actual worth. One set of citizens cannot prosper at the cost of another set of citizens, for that would not be fair or reasonable.”
Khehar also clearly points out that even though the Supreme Court was saying that the auction of natural resources wasn’t the right way to proceed always, but that did not mean that there should be no auctions at all. “Government should remain alive to the fact that disposal of some natural resources have to be made only by auction…A rightful choice, would assure maximization of revenue returns. The term “auction” may therefore be read as a means to maximize revenue returns,” the Judge said.
The Judge also makes it clear that in several situations giving away coal blocks for free wouldn’t work. “If the bidding process to determine the lowest tariff (of power) has been held, and the said bidding process has taken place without the knowledge that a coal mining lease would be allotted to the successful bidder, yet the successful bidder is awarded a coal mining lease. Would such a grant be valid?… Grant of a mining lease for coal in this situation would therefore be a windfall, without any nexus to the object sought to be achieved,” he said. Thus a power company which is in the business of selling power at commercial rates could get an undue benefit because it had access to free coal blocks.
Another interesting point that the Judge makes is that the man on the street should know why the decision has been taken in favour of a particular party. What this means in terms of the coalgate scam is that the government owes an explanation to the nation as to why relatives of ministers in the government got coal blocks for free? It also needs to tell us is how did dubious companies with no previous experience in any business land up with coal blocks?
Kapil Sibal clearly jumped the gun while making the comments that he did yesterday. Guess by now he would have found time to read through what the Supreme Court had to say in totality. Given this he would understand that the underlying tone of the suggestions made by the Supreme Court is that the UPA government screwed up majorly while giving away coal blocks for free since they came to power in 2004.
(The article originally appeared on www.firstpost.com on September 28,2012. http://www.firstpost.com/business/sibal-jumped-the-gun-sc-may-well-see-coalgate-as-a-scam-471881.html)
(Vivek Kaul is a writer. He can be reached at [email protected])