From reports published or telecast in all sections of the print and electronic media, it would seem that the Finance Minister, Mr Pranab Mukherjee, has sent a detailed four-page note to the UPA Chairperson and Congress President, Ms Sonia Gandhi, and the Prime Minister, Dr Manmohan Singh, seeking to explain the character and complexion of the now famous Office Memorandum (OM) of March 25, with which the Department of Economic Affairs (DEA) of the Ministry of Finance (MoF), had enclosed for the information of the Prime Minister's Office (PMO) “a copy of the basic facts on allocation and pricing of 2G spectrum”.

Although the full and authentic text of Mr Mukherjee's explanatory letter is yet to be made public, I am taking as reliable the almost identical versions, attributed to “official” sources, that have appeared in the media, paraphrasing its contents.

The first significant point to note is that it does not disown the fateful OM nor deny its contents. Which means that even after all the controversy the OM has generated on the role played, and the stand taken, by Mr P. Chidambaram, who was Finance Minister during the period covered by it, Mr Mukherjee does not consider it necessary either to take back or tone down portions of the narrative which seemingly put a question mark on the manner of handling the issue by Mr Chidambaram.

LEFT IN THE LIMBO

Mr Mukherjee has not disagreed, for instance, with the tell-tale comment at the heart of the imbroglio, as recorded by the OM, that “in case the MoF had stuck to the stand of auctioning the spectrum”, it was possible to have the licences cancelled by the Department of Telecommunications (DoT), “by invoking clause 5.1 of the UAS (Unified Access Service), providing for modification at any time of the terms and conditions of the licence if, in the opinion of the Licensor, it is necessary or expedient to do so in public interest or in the interest of security of state or for the proper conduct of the telegraphs”.

In fact, the “chronology of basic facts” records a number of instances where the actions proposed by top MoF/DEA officials to safeguard the interest of the Government and avert the drain on public exchequer were left in the limbo without being followed up.

The more crucial of them that fell by the wayside were: The directive of the Cabinet at its October 31, 2003 meeting to MoF and DoT to jointly finalise the spectrum pricing formula; the suggestion that spectrum pricing should be included as a term of reference for the Group of Ministers (not doing so, as the enclosure to the OM says, precluded the role of MoF); and the DEA's objection to the grant of cross-over licences by DEA in 2001 at rates determined in 2001.

QUANTUM LEAPS

Coincidentally or otherwise, all these omissions took place after the Finance Minister and Telecommunications Ministers had mutually agreed on the methodology followed by DoT, with the Finance Minister expressing his readiness not to revisit “the current regimes for entry fee or revenue shares” and to treat all 4.4 MHz spectrum allocations made in the past by Mr Raja as “a closed chapter”.

Mr Mukherjee's latest explanatory note, as the “official” sources would have it, does not question or rebut any of these impressions. So, for all the effort made by the principal dramatis personae — Mr Mukherjee and Mr Chidambaram — to keep up appearances, the damage done by the OM remains.

In the explanatory note, Mr Mukherjee reportedly takes the stand that the “chronology of basic facts” attached to the OM of March 25, 2011, was actually “an inter-Ministerial background paper, prepared with the help of several departments, to ensure that different government representatives, summoned to give evidence on the 2G spectrum allocation issue, would adopt a common position”.

Further, since the Cabinet Secretariat, the PMO, Ministries of Finance, Telecommunications and Law had all participated at different stages of its preparation, it was not a note emanating from the Finance Ministry, which only finalised it after receiving inputs from all those departments. And for all these reasons, it could not be used as evidence in a court of law.

Each one of these arguments represents breath-taking quantum leaps in prevarication. If it is an inter-Ministerial background paper, that fact, as also the names of the Ministries/Departments participating in the exercise and their having seen it and agreeing to its issue ought to have been mentioned on the body of the OM. Secondly, an inter-Ministerial paper is to be distributed to all the participants for their record, whereas the OM and its enclosure were clearly sent only to the PMO.

INDISPUTABLE

Actually, calling it an inter-Ministerial paper only makes matters worse for Mr Chidambaram! It implies that, in undertaking their retrospective review of the events during his time, all the participant Ministries/Departments are united in forming the adverse opinions briefly mentioned earlier in this column and that, together, they represent their “common position”.

Finally, there can be nothing more untenable than the observation that it cannot be used as evidence in a court of law. Under the Evidence Act, any official document which throws light on the facts relevant to a case is admissible, and this paper is explicitly titled “Chronology of basic facts related to allocation and pricing of 2G spectrum”.

Its evidentiary value is indisputable in a case in which such allocation and pricing have become matters of criminal investigation and trial.

comment COMMENT NOW