Press Statement on National Judicial Appointments Commission (NJAC) Judgement

Today’s Judgement delivered by the Hon’ble Judges of the Supreme Court of India striking down the National Judicial Appointments Commission (NJAC) as constitutionally ultra vires and invalid raise our respect and gratitude for the Judges as defenders of the constitution our panoply of human rights and democracy has gone up sky high. The nation owes them its heartfelt gratitude.

I am glad I was on the right side of this controversy but our forensic success is mainly the achievement of my colleagues Fali Nariman , Rajiv Dhawan , Anil Divan , Arvind Datar and many assisting juniors. We are all enjoying the success and are proud of it.

Now some comment for which I alone am responsible. This must bring some shame and remorse to the Prime Minister and his advisors. His crime serious enough is ignoring leaders of the Bar and well known constitutional experts in the field of law practitioners and teachers and preferring mediocrities with no distinguished record of protection of civil liberties and the core India’s constitution. To atonefor this grave crime against the nation the Prime Minister and those who made him adopt this horrid piece of legislation must resign office.

The Prime Minister of course has a very plausible double defence of being a constitutional ignoramus and busy with world jaunts of course of no value to us at all. Democracy will have its revenge if you continue to weaken its foundations.

Antrix Devas Scam continues: What I predicted in 2013 has happened.

I learn from the newspapers that an international arbitration court has directed Antrix, the commercial arm of Indian Space Research Organisation (Isro), to pay $672 million, (Rs 4,435.20 crore), in damages to Devas Multimedia for "unlawfully" cancelling a contract four years ago, and unanimously ruled "that Antrix is liable for unlawfully terminating the Devas-Antrix agreement in February 2011."

The tax payer of India is being mowed down yet again with another huge financial liability, a payment unwarranted and unnecessary, made possible only due to intentional collusion by the top brass of ISRO and Antrix with Devas, clearly blessed by criminal misdemeanour and corruption of the previous regime and its dispensation in the Space Department. But what is shocking is the inability of the present regime to have rectified it, even though the arbitration proceedings were on going for a good one year after it took charge.

I have been writing about this scandal ever since it came to light, more so, because it was happening right under the nose of the then Prime Minister, who was also the Minister for the Space Department and ISRO. I had predicted the fate of the Arbitration way back in 2013, after witnessing the completely anti-national and corrupt decisions being taken in the Department of Space.

Let me recall to my readers the history of this scam. On 24 December 2004, Madhavan Nair, Chairman of Antrix Corporation, a public sector undertaking under the Department of Space, approved a contract with Devas Multimedia at a board meeting, leasing 90% of S-band transponder capacity of two geostationary satellites to be produced and launched by ISRO, for 12 years. On 28 January 2005, the same Madhavan Nair, in his capacity as Secretary of Department of Space approved the contract. He then submitted the proposal for production of GSAT to the Space Commission, of which also he was chairman, not disclosing that in his capacity as chairman of Antrix, he had already concluded a deal with Devas in December 2004 or that Antrix was committed to giving away 90% of the transponder capacity of GSAT 6 without factoring in the launch and spectrum costs in the financial estimate. Having the approval of the Space Commission, Nair now put on his fourth hat as chairman of ISRO and commenced the process of production of GSAT 6. So a private player, Devas, walked away with a financially succulent contract, the burden of which is now being borne by the taxpayer. It later emerged that Devas was a company comprising of former ISRO employees who managed to pocket precious S-band spectrum for a song for their company.

However, it is said that this innovative Antrix Devas scam soon became a reference point for Raja’s own 2 G scam, and it wasn’t long that the media soon got a whiff of it. What followed was public outrage pertaining to a Department falling directly under the Prime Minister at having violated all financial and administrative procedures before taking this decision. By now, Dr K Radhakrishnan had become Secretary, Space Department and Chairman, Space Commission, consisting of the MoS in the PMO, Principal Secretary to the PM, National Security Adviser, Cabinet Secretary, Finance Secretary, and other eminent space scientists.

In July 2010, the Space Commission, directed ISRO (also headed by Radhakrishnan) to terminate the contract. The matter remained shrouded in secrecy until February 2011, when finally, the Cabinet Committee on Security (CCS), based on a Note submitted by Radhakrishnan, decided to direct the Space Department to ‘annul’ the contract, by invoking force majeure. The government had suddenly realised that the spectrum allocated to Devas was required for the nation’s genuine and urgent social and strategic objectives! 

Let me reproduce what I wrote in the Sunday Guardian and the New Indian Express in August 2013. My words hold good as on date:

“ISRO’s confidentiality immunity was unable to contain the public exposure of the scam, and risks for the PM as Minister for Space, were intensifying. Hence, a corresponding process for building an effective firewall around him was set in motion through the standard operating procedures -- setting up inquiries headed by cronies, selecting convincing scapegoats, and most importantly, drawing up an innovative post-facto blueprint for salvaging some of the losses of the aborted deal at the taxpayers’ cost. This hidden post-facto segment of the scam resonates of the Bhopal compensation case, where through deliberate, calibrated errors and omissions, state power conspired with the culprits to appropriate maximum compensation for common benefit, from India’s unfortunate taxpayer.”

Devas had claimed in the Antrix-Devas Contract of January 2005 (Clause 12 b) that it had the ability to design Digital Multimedia Receivers (“DMR”) and Commercial Information Devices (“CID”) and had the ownership and the right to use the intellectual property, viz. SDMB technology, involved in their designs. Allegations regarding the deal started mounting, including to the Space Department Vigilance Officer, who in his preliminary findings submitted to Dr.Radhakrishnan, intimated that the IPR of technology which Devas said will use, was highly suspect. This was in 2009. Perhaps to scuttle this, the ISRO chairman in December 2009 appointed B N Suresh, a senior retired scientist, to report on the technical, legal and financial aspects of the deal, which Financial Advisor G Balachandran was asked to examine in June 2010.

Balachandran’s findings, submitted to the ISRO chairman in January 2011, apart from revealing the absence of due diligence in the scrutiny of the contract, also revealed some shocking new facts. On December 2, 2010, the Financial Advisor had submitted a note to Radhakrishnan, based on the findings of a leading ISRO scientist, which stated, inter alia, that the SDMB technology claimed by Devas in the Antrix-Devas Agreement to be used by it is not a confidential and proprietary technology held by Devas. The note recommended that the ISRO chairman should get this confirmed by Antrix and if confirmed these facts should be intimated to the CCS and the contract should be cancelled on the grounds that Devas had given false information when signing the contract about its ownership and right over the technology and intellectual property. Balachandran reiterated his recommendation twice in January 2011 that this vital fact be incorporated in the Note to the CCS, so that the Contract/Agreement can be terminated on grounds that Devas had acted fraudulently.

This clearly reveals that the contract was induced by fraud and misrepresentation and was void. Stating this as a reason for cancellation would have greatly strengthened the government case against Devas in arbitration and compensation claims.

However, Radhakrishnan disregarded this unimpeachable advice of his Financial Advisor and concealed these facts from the CCS. On the basis of his misleading note, the CCS decided to ‘annul’ the contract in February 2011 and informed the Space Department that in view of the “increased demand for allocation for national needs and having regard to the needs of the country’s strategic requirements, the government will not be able to provide orbit slot in S band to Antrix for commercial activities, including for those which are the subject matter of existing contractual obligations for S Band.”

The government thus manipulated its own record to show that the contract was breached by it for its own needs and without lawful justification. The people of India, who were actually the plaintiffs were converted into defendants by the government. A red carpet was being spread to legally enable Devas’ sure success in the expected arbitration and extract maximum reparation.

The people of India are entitled to seek answers from the Hon’ble Prime Minister, also Cabinet Minister for the Department of Space:-

i) What was the compelling reason for Radhakrishnan to scuttle the vigilance enquiry in the Space Department, and constitute the Suresh Committee?

ii) Is it a fact that Secretary, Space, Radhakrishnan ignored without any credible reason, the advice of his Financial Advisor supported by the note of a senior Space Department scientist, that the DVB-SH/SDMB technology claimed by Devas in the Antrix-Devas Agreement, was not its confidential and proprietary technology?

iii) Is it a fact that Radhakrishnan concealed these facts from the CCS in his note in February 2011, which annulled the deal on a non-existent ground that it had no spare S Band spectrum to offer?

iv) Why was the real reason, that the Antrix-Devas contract had been induced by fraud and misrepresentation, excluded from our case as a ground for terming it null and void?

iv) What action is proposed to fix the responsibility on the then Secretary, Space Department for concealing the crucial and vital facts from the CCS, the consequences of which are going to cost the taxpayer several billion dollars in the near future.

v) Devas demanded around $2billion in damages and Deutche Telecom, which purchased a good chunk of the Devas shares after its Antrix contract separately demanded another $1 billion, amounting to Rs 19,500 crore (@Rs.65/USD) that the country would have to shell out, if the government lost the arbitration, a highly likely eventuality, judging from the government’s actions.

I had asked the then Prime Minister to appoint a panel of legal experts to put the Department of Space on the right legal track to safeguard national interest and the taxpayers’ money. Legal amends could still have been made to save the nation and the taxpayer from being robbed of the damages which were sure to come by way of the Arbitration Award. But, of course, nothing happened.

Well, the Arbitration Award of $672 million, (Rs 4,435.20 crore) has been ordered, just as I had predicted. Because the Space Department, still under direct charge of the Prime Minister, did nothing to rectify the wilful fraud on the people of India, regarding the closure of the contract, even though it could have.

More so, I learn that Antrix did everything possible not to win the case.

i) Even after Space Commission directed in July, 2010 that the contract be terminated, Antrix continued to write to Devas about the preparatory steps that are being taken to get the satellites ready for handing over to Devas. Radhakrishnan was Chairman of Space Commission and Antrix. How is it his right hand and left hand were taking different directions?

ii) Again, Antrix even failed to nominate an arbitrator to the arbitration tribunal and to have a say in fixing the terms of reference. Rather, it chose to petition the Supreme Court to commence a separate arbitration against Devas, an appeal that failed. In June 2011, when Devas commenced arbitration seeking specific performance of the agreement or a claim of damages, Antrix refused to participate. On August 19, 2011, when the ICA announced its decision to go ahead with the arbitration, Antrix did not send its nomination, which forced the ICA to nominate, on its own, Justice A S Anand. Who was responsible for this deliberate sabotage? 

May I ask the Prime Minister what action he plans to take on those who were at the helm of affairs both in the Department of Space and the PMO, for their misrepresentation to the Cabinet Committee on Security for terminating the Antrix Devas Contract in a manner that has caused this great financial loss to the nation? And against those who allowed the Arbitration to proceed in a manner which spelt sure failure for the Government?

The present NSA is a person of unimpeachable integrity and patriotism. How did he allow affairs to drift to this stage, so that the corrupt intentions of his predecessors were allowed to bear fruit, at the cost of India’s tax payer?

My second set of questions to the Hon’ble Prime Minister.

Dear Reader, I know the Hon’ble Prime Minister is busy with Bihar elections and is devoting a part of his time to Bihar elections.

He is concerned the whole world is waiting to have a glimpse of him and Bihar elections involve a great sacrifice on his part. He has a brilliant galaxy of ministers and beaurocrats making his stay in India wholly dispensable.

My questions are primarily intended to allow him to stay far away from home. A few minutes about two per question should be enough; of course that is feasible when the answer is nothing but plain truth. Concocting plausible lies does take some time even for the unusually bright Prime minister of India.

In this set of questions I am concentrating on the gross misfeasance of the Prime Minister, his colleagues and the Party as a whole with our Army jawans, again a case of cruel breach of faith insulting and hurtful to those who lay down their life for the security and survival of India as a Vibrant free Nation.

Question 1: Since when in the history of India has the demand popularly summarized as ‘One Rank One Pension’ been vociferously raised by the brave jawans of India? Surely long before you thought of being India’s Prime Minister an unusual raise from a one State Chief Minister of Gujarat to the Prime Minister of 29 States constituting the Indian Nation. Is it not true that all that this demand of India’s defenders and their widows is just a few thousand crores in Indian Currency.

Question 2: When you decided to wage an almost impossible battle for becoming India’s Prime Minister, you did realize the importance of the votes of our jawans and their pending demands?

Question 3: Did you at any time either in your election manifesto or oral speeches tell the jawans that you will not accept their demands in full. In fact you promised full satisfaction. Your manifesto amongst ten items under the heading External Security mentioned ‘implement One Rank One Pension’ without any qualification.

Question 4: Did you in your Red Fort Speech on August 15th, 2015 declare that the demand has been accepted in principle?

Question 5: Did you by any clear words even hint that your declared acceptance is subject to veto by the Finance Minster declaring that the cost is too heavy for his Government?

Question 6: Did you use the following words which were heard by one Veteran who was on fast until death- “let me assure all veterans- we are committed and we are in final stages of deciding”?

Question 7: Some veterans were aghast at your lack of complete clarity in one or two sentences and they expressed their resentment. Did you tell them that your demand will be met only if Finance Minister is able to find 10,000 Crores more in his kitty?

Question 8: Do you admit that in a speech delivered by you on September 15th at the Ex-Servicemen Men’s rally in Rewari you proudly proclaimed – “ this land has always created a centenary of martyrdom whether it was the war of Thrissur or of Kargil…No one can imagine this land is of such brave men and heroes!!”

Question 9: Did you then praise and thank god for having given you an opportunity to be in the midst of the jawans: “it is some sign from god” you said.

Are you not embarrassed that now you will cause misery to those great children of India because your Finance Minister can’t find the 12000 crores to pay our defenders?

Question 10: Has not the great social worker and moral leader Anna Hazare complained to you about your unfair dealings with the jawans. In no ambiguous words he has accused the BJP of reneging on the poll promise of implementing the One Rank One Pension. Do you require a more respectable yet polite citizen of India to tender you good advice?

Question 11: Has he not drawn your attention to what even the UPA government at a high level meeting of Defence officials on the 26th February, 2014 decided to accept and implement this demand in full. Did we commit a mistake in substituting you in their place? By the way there are two ministers in your cabinet whose integrity I fully accept. One is Suresh Prabhu our Railway Minister and the other Shri. Manohar Parrikar our Defence Minister. I would like to hear what they have to say on your surrender to a Finance Minister who has allowed (six thousand three hundred ) 6300 crores of black money in cash to be sent out of India through the Ashok Vihar Branch of the Bank of Baroda to a bank in Hong Kong. It all started in July 2014 after Amritsar defeated Arun Jaitley became our Finance Minister. Thanks to your irrational fondness for him. More about this later!!

Open Questions Addressed to the Prime Minister

Dear Prime Minister,

You are now busy capturing the votes of the adult population of Bihar. Your flattering supporters are expecting what they call the ‘Modi Magic’ to capture the votes of Biharis for you. I have experienced Modi Magic once and badly burnt my vitals. I do not wish to repeat the performance. My vote capturing ability has no comparison to yours but it the duty of every citizen even the humblest of them is to declare the truth and share it with the voters. It may bear no fruit but the duty to the nation requires it. I am convinced that if I do not speak up and sink into silence instead, providence and the people will not forgive me. I propose to ask you through the available media some questions every day. I do not mind if your Finance Minister or some other subordinate answers them. But I hope you will speak the truth the whole truth and nothing but the truth.

1. You are doubtless aware that the German Government took an extraordinary step of securing the 1400 names in Liechtenstein Bank of illicit account holders majority of whom were probably Indians by rewarding an employee of the Bank. The German Government offered publicly to share the information with every friendly Government including India without cost or condition. Yet the previous government took no steps to secure the relevant information obviously because it wanted to shield those who controlled it. The German government was wanting to stop the customer confidentiality practices of Banks in notorious tax havens an object fully legitimised by the United Convention Against Corruption signed by India in 2005. Did you ever read the Supreme Court judgment obtained by me and my co-petitioners which rejected the untenable and antinational stand of the Congress government that they could get this information only under the DTAT with Germany as also the contention they made that the secrecy clause of the DTAT prevented disclosure of the identity of the criminals. It is a reasonable expectation of the people of India from your government which made removal of corruption and recovery of Black money stashed in tax havens abroad its main declared objective. You had declared often that you would not only recover this stolen wealth but put 15 Lacs Indian Rupees in the pocket of every poor family of India? How come you did nothing of the kind!!

2. Are you aware that Admiral Tahiliani President of the Indian Chapter of Transparency International repeatedly referred to the Indian government’s failure to take the proper and easy course of getting the information by a simple approach to the German government to share the names publicly offered and promised by it ?

3. Did you once ask your two leaders of opposition at that time, whom later you have included in your cabinet , to approach the German government or even its Ambassador in India to provide us this information ?

4. Did you not read my repeated public complaints about the manner in which your election promise was being made to look like an act of deception and fraud on the people. Have you ever had the decency and moral courage to explain this gross misconduct of yourself and your Finance Minister.

5. You are aware that the appointment of CVC has been challenged in the Supreme Court and even though permission was granted by the court to make the appointment at the request of your government the appointment is subject to all the contentions raised which will now be decided by the Hon’ble Court. Do you know that this gentleman went to Paris to do some investigation in the Black Money case. Who made him advisor to the SIT, who sanctioned his visit to Paris, what was he required to do what did he did there, what places did he visit, whom did he contact, whom did he interrogate or question, what did he achieve, what places did he visit, what expenses did he incur and what report did he make on return? Do you know till today any of these things and whether they have relevance to his appointment as CVC? Are you willing to tell the people and me as one of them what did he achieve for the nation and what relevance did his actions have to the port of CVC which he got ,may be by way of reward. It is my duty to tell the people that both the Chairman and Vice-Chairman have told me that all these matters have been done and sanctioned without their knowledge or consent. No report of his activities abroad is available with the SIT. Obviously he did somethings  to secure his appointment as CVC.

6. Are you aware that under orders of the Supreme Court , the then government was ordered to disclose to me as petitioner all the correspondence that had taken place between the government of India and the German authorities. With great difficulty and persistence 17 letters between 27/02/2008 and 18/03/2009 were supplied to me under the Governments letter of 27th May, 2014. All the names of the writers and the addressees have been scored out by indelible ink. The excuse for this criminal behaviour is that this is in accordance with international practice. This is a fraud and a total falsehood. The last letter i.e. 18.03.2009 refers to some information enclosed. That has not been supplied. The correspondence is not with the German Government but a tax office which deals only with honest taxpayers who by the law of two or more countries have to pay tax on the same income. It has nothing to do with the dacoits of Liechtenstein. The blacking out of the names and identity of the writers and addressees of the letters has nothing to do with any international practice. 

These matters have been raised by me more than once. Has your Finance Minster or any one so far salvaged the information enclosed with the letter of 18.03.2009. The CVC appointed by you has everything to do these forgeries and falsehoods. Will you now seek and supply the information?

7. It appears to me that no explanation plausible and truthful is available with you or your Ministry of Finance. No wonder the newly appointed President of the B.J.P, obviously your choice ,has found an easy way to fool the people, “It was all a Jumla an election joke”. You have never repudiated this stunt and you are solemnly using this stunt master to get votes in Bihar. In your place I would have felt insulted if someone seriously lampooned me as a joker. 

8. Do you agree that a whole year has gone by and not a farthing has been recovered from the millions which the employee of the Liechtenstein Bank has disclosed to the German government. You have visited Germany after you became Prime Minister of India and the Hon’ble Chancellor of Germany was with us this week. Have you ever asked her or any other German authority to give you the names furnished by that employee of the Bank. If you don’t know ask Mr. Jaitley or the new CVC. Are you even now willing to make an appropriate and honest request to the government of Germany? Otherwise the people are entitled to conclude that you were party to a criminal conspiracy to defraud the Indian nation which you continue to do without any revolt or revulsion by your conscience. 

9. Lastly I must tell you and the people of India that I have personally been to Germany and was pained to hear that no request of any kind has come from the government of India or even the opposition which you did head at the relevant time. In paragraph 82 of its judgment the Hon’ble Supreme Court of India Held “We have perused the documents in question, and heard the arguments of the Union of India with respect to the double taxation agreement with Germany as an obstacle to disclosure. We do not find any merit in its arguments flowing from the provisions of double taxation agreement with Germany.”

Anyway the DTAT with Germany has nothing to do with the contents of the material supplied by the Liechtenstein employee.

10. You can mend matters by seeking the forgiveness of the people India and getting rid of your Minister of Finance.