The Supreme Court on Thursday asked why no action was taken on a letter from Prime Minister Manmohan Singh to his then telecom minister A. Raja on award of airwaves and felt that the severity of the case in question otherwise could have been different.
Hearing the bail pleas of two corporate executives accused in the second generation (2G) spectrum case, Justice G.S. Singhvi and Justice H.L. Dattu also observed that the gravity of the alleged crime could have been different if action had been taken on the letter.
The letter written on November 3, 2007 had raised several questions on the manner in which Raja was proposing to allocate the precious airwaves to telecom players and had also conveyed the industry's apprehensions in this regard. The letter favoured auction of airwaves.
But a reply the next day from Raja, now in judicial custody as the prime accused in the case, clearly said he will not change the policy of first-come-first-served to allocate the scarce resource but assured full transparency in the process.
Both the Bharatiya Janata Party (BJP) and the Communist Party of India-Marxist (CPI-M) said the apex court's observations were serious and demanded a full explanation on the matter from the government.
Appearing for the prosecution, Additional Solicitor General Haren Rawal sought to draw a line of distinction between the action of Raja and the suggested inaction on the content of the letter written by the prime minister, which had favoured transparent auction.
"The charges of criminality would have still remained because of the decision taken by then telecom minister," he said, seeking to suggest that it was Raja who decided not to change his policy stand and decided to allot spectrum than to go for an auction.
The court, which was specifically hearing the bail pleas of Swan Telecom's Vinod Goenka and Unitech Wireless' Sanjay Chandra, also asked the prosecutors why it was opposing the bail please of the 14 accused, which includes Rajya Sabha member Kanimozhi.
The hearing resumes on Friday.
The other accused in judicial custody include Raja's former personal secretary R.K. Chandolia, former telecom secretary Siddhartha Behura and Swan Telecom's Shahid Usman Balwa.
Also named co-accused and in custody are Reliance Group's Gautam Doshi, Surendra Pipara and Hari Nayar, Kalaignar TV's Sharad Kumar, Cineyug Film`s Karim Morani and the directors of Kusegaon, Asif Balwa and Rajeev B. Agarwal.
During the hearing on Thursday, Additional Solicitor General Haren Rawal also sought to clarify on some remarks by Law Minister Salman Khurshidm, over which the apex court had taken exception a day earlier and wanted to know the correct position.
Khurshid had said investments in India were suffering since businessmen were behind bars but Rawal sought to clarify that the minister's remarks were not specific to the present case and were a general observation.
"He did not refer to the present case in any way. Whenever the government wants to take a stand, it does so through an affidavit or its counsel. The minister's remarks were a result of a spontaneous response to questions from the media," Rawal said.
"We just wanted to know if it is correct or not (Khurshid's statement). We have already said nobody can influence us," the apex court bench observed.