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Circumventing Institutions: Did Chidambaram Subvert the Foreign Investment Promotion Board?

Jai Bhatia (jai_bhatia@soas.ac.uk) is a PhD student at the School of Oriental and African Studies, University of London. Advait Rao Palepu (advait.palepu@gmail.com) is an independent researcher.

The raids on premises connected to former Union Finance Minister Palaniappan Chidambaram and his son Karti Chidambaram have attracted attention because of the allegations by the Central Bureau of Investigation, the Enforcement Directorate and Bharatiya Janata Party Member of Parliament Subramanian Swamy that the functioning of the soon-to-be defunct Foreign Investment Promotion Board was sought to be subverted. One major accusation against Chidambaram is that he manipulated the working of the FIPB to help the former Communications Minister Dayanidhi Maran in the Aircel–Maxis case. The EPW presents for the first time how this unusual deal was structured in a convoluted manner using preference shares.

The authors acknowledge receipt of an unpublished draft report of the Comptroller and Auditor General of India that was provided by a whistleblower to the editor of the EPW.


By World Economic Forum [CC BY-SA 2.0], via Wikimedia Commons

 

On 16 May, the Central Bureau of Investigation (CBI) conducted search and seizure raids in four cities on the homes and offices of former Finance Minister Palaniappan Chidambaram’s son Karti Chidambaram. These raids were related to a probe by the CBI on a foreign investment approval granted to the Peter and Indrani Mukherjee owned INX Media by the Foreign Investment Promotion Board (FIPB). This clearance, it has been alleged by the CBI and others, was illegally obtained by the company. Comparable allegations have also been made about the clearance that was given by the FIPB for the acquisition of India’s Aircel by Malaysia’s Maxis in 2006. In both cases the principal allegation is that Chidambaram misused the power of his office as union finance minister while granting FIPB approvals for foreign investments in Indian companies. It has further been alleged that Chidamabaram’s son Karti benefited from these companies, allegedly for his ability to facilitate the grants of FIPB clearances. An unpublished report drafted in the office of the Comptroller and Auditor General, (CAG) available with the EPW, traces the corporate structure of Maxis’ acquisition of Aircel in 2006, and details how existing rules and procedures were allegedly violated by the finance ministry while approving that investment. Chidambaram has repeatedly denied these allegations in the media.

In 2006, the Malaysia-based Maxis Group acquired a 99.3% financial stake in Aircel Limited in violation of the 74% upper limit on foreign direct investment (FDI) applicable to the telecommunications sector at the time. The investment amounted to a total of ₹3,514.45 crore. Under the then prevailing foreign investment rules, for investments in excess of ₹600 crore a review was to be conducted by the FIPB and its recommendations were to be forwarded to the Cabinet Committee on Economic Affairs (CCEA) for a final decision. However, in this case, the Ministry of Finance, headed by Chidambaram, received the FIPB’s recommendations and approved the investment. The file never went to the CCEA. The approval was also delayed for an unusual length of time, on the basis of which the Bharatiya Janata Party (BJP) raised a ruckus in Parliament in May 2012. Its Member of Parliament Subramanian Swamy alleged that the Aircel–Maxis deal received the requisite FIPB approvals only after Chidambaram’s son Karti’s company received a 5% equity stake in Aircel Ltd. That is, the clearance for the foreign investment was allegedly delayed by Chidambaram so that his son stood to gain from an investment deal as an Aircel shareholder.

A comparable but technically different caseis that of INX Media—a company formerly owned by Peter and Indrani Mukherjea. The company had sought the approval of the government to receive a tranche of foreign investment to the tune of ₹4.62 crore, and a further amount to the tune of 26% of the company’s issued and outstanding equity share capital in order to make a “downstream” financial investment in subsidiary companies. However, the FIPB approved only the ₹4.62 crore, turning down the proposed downstream invest­ment. However, as per the first information report (FIR) that forms the basis of the CBI’s investigation, INX in fact received foreign investment in excess of ₹305 crore violating the FIPB’s ­order. It went on to make the downstream investments.

The CBI’s FIR also alleges that Karti’s firm Chess Management Services was hired by INX to “resolve” the issues before the FIPB and received ₹3.5 crore for its services. Subsequently, another FIPB approval was granted, which regularised the entire amount that INX Media had received as foreign investment. According to the FIR, INX Media reached out to Karti in order to resolve the problem by “influencing the public servants of the FIPB unit of (the) Ministry of Finance by ­virtue of his relationship with the ­Finance Minister.”

How is it that in the case of both companies, INX Media and Aircel–Maxis, the total foreign investment received was in excess of the quantum of investment ­approved? How did the companies receive foreign investment in excess of the approved quantum? Did the companies have special ways and methods to bypass procedures or subvert the existing system?

An unpublished report of the CAG sheds light on this area of foreign investment regulations and transparency norms. The CAG report looks specifically at the Aircel–Maxis case, and illustrates the detailed corporate structure of Aircel Ltd prior to its acquisition by the Maxis Group. The report also highlights how a loophole in the regulations enabled the Maxis Group to get away with acquiring a financial stake to the extent of 99.3% in Aircel, while having received FIPB approval only for an equity investment worth 74% of Aircel. The report states that the Finance Ministry, the Department of Telecommunications (DoT), and the Department of Industrial Policy and Promotion (DIPP) repeatedly failed to enforce the prevalent FDI and telecom licensing rules, despite being well-aware of the regulations relating to foreign investment approvals.

Aircel–Maxis: A Legal History

The CBI filed a charge-sheet on 9 December 2016 against Dayanidhi Maran, his brother Kalanithi Maran, Ralph Marshall, T Ananda Krishnan, Sun Direct TV Pvt Ltd, Astro All Asia Networks Plc, UK, Maxis Communications Berhad, Malaysia, South Asia Entertainment Holdings Ltd, Malaysia, and against the then ­Additional Secretary (Telecom), the late J S Sarma. They were charge-sheeted for alleged offences punishable under section 120-B (criminal conspiracy) of the Indian Penal Code (IPC) and under relevant provisions of the Prevention of Corruption Act. The Maran brothers were accused of accepting kickbacks to the tune of ₹740 crore through the Aircel–Maxis deal by allegedly “arm-twisting” Aircel’s former chairman C Sivasankaran to sell the company.

In a separate but related money laundering case, the Enforcement Directorate (ED) charge-sheeted the Maran brothers, Kalanithi Maran’s wife Kavery, the Managing Director of South Asia FM Ltd (SAFL), K Shanmugam and Sun Direct TV Pvt Ltd (SDTPL), as the accused under provisions of the Prevention of Money Laundering Act (PMLA). The ED’s Special Prosecutor N K Matta stated that the total proceeds of the crime amounting to ₹549.03 crore and ₹93.55 crorewere received by SDTPL and SAFL respectively—companies allegedly controlled by Kalanithi Maran, through a slew of Mauritius based entities (Business Standard 2017).

What is of interest in the proceedings of the case so far is the absence of T Ananda Krishnan—Chairman of Maxis Communications Berhad, Malaysia—and Augustus Ralph Marshall, a senior Maxis executive, before the special CBI court set up to handle cases related to the 2G (second generation telecom spectrum) scam. Noting their absence, the Supreme Court on 6 January 2017 reprimanded both and issued summons to them—ordering their appearance before the special court on 3 February 2017—failing which, the court was ready to consider the cancellation of Aircel’s 2G licences. The two foreign nationals did not appear in court that day. The Chief Justice of India J S Khehar said that the company (Maxis Berhad) “cannot use the national resources of the country and evade the process of law” (Soni 2017). As the case progressed over the following months, neither did the prosecution provide any definite evidence that convinced the court of wrongdoing allegedly committed by the accused nor have Krishnan and Marshall deposed before the court in India.

The Supreme Court has not acted on its threat. Instead, on 3 Februrary, the Court agreed to hear the plea of a consortium of 12 banks led by the State Bank of India (SBI), all of whom have lent money to Aircel. Members of the consortium included SBI, Punjab National Bank, Bank of Baroda and Canara Bank. SBI, in its plea to the Supreme Court, stated that it would be “severely” affected if the Court restrained its revenue stream by cancelling Aircel’s 2G license. The Attorney General of India Mukul Rohatgi, representing the banks, told the Court that the financial exposure of the banks was in excess of ₹20,000 crore and that, “any order on 2G airwaves could have an impact on the creditors.” The banks assuaged concerns of the Court that “there [was] no occasion for any benefit being passed on to (majority Malaysian stakeholder) Maxis or any persons as all amounts are to be deposited with SBI for benefit of lenders.” The banks added that “no payments by way of dividends, profits or otherwise can be made to any of the shareholders of Aircel or Maxis unless all debt servicing obligations are met.”

Aircel–Maxis owes banks like SBI ₹12,627 crore and has foreign currency debts worth ₹595 crore, and bank guarantees and letters of credit worth ₹3,232 crore. Any revenue generated by Aircel through the use of its 2G licenses is the creditor’s “principal security,” which means that Aircel–Maxis’ 2G licenses are the primary means by which SBI and other banks, as well as foreign lenders, can have their investments or debts serviced. Although the Court has subsequently barred the transfer, or sale, of Aircel–Maxis’ 2G airwaves to a third-party, it has sent instructions to the DoT, to firstly ask Aircel to notify its 40 million customers to provisionally switch to another telecom operator, and secondly asked the DoT to prepare for a re-auction of the same spectrum in case an adverse order such as one recommending the cancellation of Aircel–Maxis’ 2G licenses is issued. Given that the case has not concluded and a final order is awaited, it is difficult to anticipate how the court is likely to act with regard to its earlier threat of cancelling licenses.

However, on the day that the Supreme Court was hearing the arguments of the consortium of banks, the special court hearing the two cases pertaining to the Aircel–Maxis investment—one filed by the CBI in 2011 and another filed by the ED in 2012—dropped all the charges against the accused in both cases. The Special CBI Judge O P Saini, stated that there was no concrete evidence to prove the allegations of wrongdoing against the Marans, and that “contradictory oral statements” given by witnesses in the case were not acceptable legally. He said in his order: “This is a dangerous trend. If such practice is followed, anybody and everybody in government can be made to face prosecution” (Economic Times 2017).

The ED subsequently moved the Supreme Court, challenging the order of the special court that dropped all the charges levied against both Kalanithi and Dayanidhi Maran. However, the ED chose not to file a proper appeal with the apex court. Instead, the Special Public Prosecutor (SPP) Anand Grover moved the Court hoping that the bail bonds for the Maran brothers would not be executed and that the attached properties of the accused would not be released. A procedurial issue was raised by the court. The bench asked the SPP why he did not approach the Delhi High Court with a revision petition. But Grover contended that based on earlier orders of the apex court, his understanding was that only after the final order in the 2G cases was passed could either of the litigating parties approach the high court. Until the final court order, all the interim orders pending completion of the trial would have to be dealt with by the Supreme Court, according to Grover (Press Trust of India 2017a). However, the Court refuted Grover’s argument stating that “this is the final order and it can be said trial is closed.” The bench headed by Chief Justice Khehar was not in agreement with the SPP, stating that the discharge of the accused meant that this case was not related to money laundering as alleged by the ED. The court stated that “the simple logic is that this money (₹742.58 crore), considered to be that of laundering, is not found to be that of the proceeds of the crime.” A questionnaire was sent by the EPW to the SPP in the Aircel–Maxis case. Anand Grover, in his response, chose not to comment, stating “unfortunately as I am in the matter and the matter is sub-judice I am not at liberty to discuss these issues with the press.”

On 8 February 2017, SPP Grover withdrew his plea challenging the special 2G court’s order discharging the Maran brothers and others in the Aircel–Maxis case. Two days later, on 10 February, BJP MP Swamy moved the Supreme Court seeking a probe into the role allegedly played by Chidambaram in the Aircel–Maxis deal. When the application was brought before the chief justice, he gave Swamy two weeks to furnish concrete material. Justice Khehar said “show us material indicating that the then finance minister was privy to the new investment rule. We are ready to issue notice to the smallest and also the biggest person, but there must be material to support such claims.” (Mittal 2017)

In his application to the Court, Swamy submitted that FDI of over ₹600 crore into Aircel by Maxis, was approved of by the then Finance Minister Chidambaram, through clearance from the FIPB. However, since any FDI investment of over ₹600 crore required approval from CCEA and not the FIPB, he argued that there is prima facie evidence of wrongdoing. Further, Swamy contended that no foreign company could hold more than 74% equity stake in an Indian (telecom) company at the time the deal took place in 2006. “A non-telecom company was created to get the remaining 26% stake in Aircel so that Maxis could directly/indirectly get 100% equity in Aircel,” Swamy told the Court (Mittal 2017).

The total transaction in the Aircel–Maxis deal, Swamy stated, was about ₹3,500 crore or $800 million. Justice Khehar then asked “was he [the former finance minister] aware of the fact that the deal was over ₹600 crore and he had to send it to the CCEA?” Swamy retorted saying that the “fact of the matter is no minister can claim he did not know ... The matter is before the CBI, they have examined and had filed sealed cover reports before this court in 2015. The CBI should now tell this court what progress has been made” (Rajagopal 2017).

In an email response to a questionnaire sent by the EPW, Chidambaram stated, “FIPB consists of five secretaries to the Government of India. There are rules and guidelines. Every case of FDI that requires approval is scrutinised by the FIPB and recommended for approval or rejection to the competent authority. Applying the rules and guidelines, it is the FIPB that decides whether the competent authority in a given case is the ­Finance Minister or the CCEA.” Further, with regards the Aircel–Maxis case, the former finance minister stated that the “FIPB decided to submit the case for approval to the Finance Minister as the competent authority. The file indicated that the competent authority to grant approval in the case was the Finance Minister. Accordingly, I granted approval in the normal course.”

It is important to understand here that although the laid-down procedures stated that only the CCEA could, at the time, approve of foreign investments worth over ₹600 crore, the FIPB appeared to have on its own volition decided that the finance minister was the final and competent authority with regard to approving Maxis’ investment in Aircel. However, it is unclear how many investment proposals worth over ₹600 crore were treated in the same manner—that is, the FIPB declaring that the finance minister’s approval was sufficient and that there was no need to refer the proposal to the CCEA.

On 18 February 2017, the CBI and ED announced their intention to move the Delhi High Court challenging the order of the special court discharging the Maran brothers and their associates in the case pertaining to alleged bribery and money laundering in the Aircel–Maxis deal.

Corporate Structuring

The unpublished CAG report, with the EPW, illustrates how financial transactions were undertaken by the Maxis Group so as to achieve a complex corporate structure that would actually acquire 99.3% of Aircel—even though FDI in telecom was capped at 75%. The report compares the Aircel group’s corporate structure between December 2005 and March 2006 in order to highlight the substantial changes to the group’s structure post acquisition (see Figure 1).

Before December 2005, the Aircel Group consisted of Aircel Televentures Ltd (ATVL), which had three wholly owned subsidiaries: Aircel Ltd, Aircel Cellular Ltd (ACL) and Dishnet Wireless Limited (DWL). On 29 and 30 December 2005, Aircel procured all the issued and paid-up equity of ACL and DWL respectively from ATVL—making ACL and DWL wholly-owned subsidiaries of Aircel. The paid-up capital of Aircel in December 2005 was ₹180 crore.

On 6 January 2006, Global Communication Services Holdings (GCSH), a Mauritius-based company that is a wholly-owned subsidiary of the Maxis Group, bought 26% of Aircel for ₹1,261.4 crore, which raised the total paid-up capital of Aircel to ₹243.4 crore. On 20 March 2006, the FIPB approved of GCSH’s intentioin to increase its shareholding in Aircel from 26% to 73.99%. GCSH, at this point, directly owned 65% of Aircel and indirectly held an 8.99% stake in the company through Deccan Digital Networks Private Limited—an Indian company incorporated on 16 January 2006. Deccan Digital had a paid-up capital of ₹46 crore and redeemable preference shares worth ₹1,634.4 crore adding up ₹1,680.46 crore.

GCSH set up a wholly-owned investment company in India called South Asia Communications Private Ltd (SACPL), which subscribed to Deccan Digital’s cumulative, non-convertible and redeemable preference shares of ₹1,634.4 crore. Deccan Digital is a joint venture between GCSH (Mauritius) and Sindya Securities and Investment Private Ltd (India) (SSIPL). Out of Deccan Digital’s paid-up equity of ₹46 crore, ₹11.9 crore (25.7%) was contributed by GCSH, and ₹34.2 crore (74.3%) by SSIPL.

The draft report of the CAG points out that although the total foreign equity holding stood at 73.99%, the total financial stake of the Maxis Group through its subsidiaries in Aircel was at 99.3%.

To recap, on 21 March 2016 GCSH bought 39% equity of Aircel for ₹1,868.19 crore raising its holdings in the company to 65%; the remaining 35% equity was procured by Deccan Digital for ₹1,673.41 crore on the same day. As SACPL subscribed to Deccan Digital’s preference shares for ₹1,634 crore, GCSH’s actual investment in Deccan Digital stood at ₹1646.26 crore. This made GCSH’s total investment in Aircel ₹3,514.45 crore on 21 March 2006—effectively owning 99.3% of Aircel while Sindya, the Indian partner, only had a 0.7% holding.

Certain newspapers have reported that as per its application to the FIPB, the Maxis Group on 25 January 2006 wished to only invest around ₹3,600 crore in Aircel. However, the draft CAG report found that the actual money that flowed into India from Maxis owned companies was ₹4,769 crore. This raises the question as to where the balance ₹1,100 crore went? While 74% of Aircel was valued at ₹3,600 crore, the remaining 26% was valued only at around ₹30 crore. The Pioneer has reported that, as per the CAG findings, in 2015 out of the total ₹4,769 crore that came from Maxis into Aircel, around ₹1,200 crore returned India allegedly in the form of “kickbacks” for the deal.

The Loophole: Preference Shares

At the heart of the Aircel–Maxis corporate structure lies a legal loophole that many foreign companies can use to circumvent FDI norms, while attempting to stay within the legal limits of FDI regulations. The status and the treatment of preference shares held by foreign investors is the loophole that the Maxis Group was able to exploit. Preference shares and preference shareholders are those who receive a fixed dividend and have a priority in receiving dividends over equity and/or other shareholders. Preference shares can be of various types: (i) either irredeemable or redeemable in the future or on a fixed future date; (ii) either non-convertible or convertible into equity shares at some point of time in the future or on an exact future date; and (iii) the dividend on these preference shares can be cumulative or non-cumulative. According to the Foreign Exchange Management Act (FEMA), 1999, preference shares are only considered to be equity instruments if they are fully and mandatorily convertible preference shares. Only the purchase of fully and mandatorily convertible preference shares by a foreign buyer would then be count as FDI, and its quantum would then be governed by the FDI limits for the sector.

Preference shares of all other kinds are treated as debt and have to comply with the External Commercial Borrowing (ECB) guidelines under the Foreign Exchange Management (Borrowing and Lending in Foreign Exchange) Regulations, 2000 (AZB & Partners, Advocates & Solicitors 2007). In 2007, the Reserve Bank of India (RBI) issued a circular (RBI/2006-2007/434) dated 8 June that reaffirmed the status of preference shares as debt unless they were fully and mandatorily convertible.

In the Aircel–Maxis case, the Maxis Group used this very loophole to secure a 99.3% financial interest in Aircel, while still abiding by the 74% FDI sector limit. The Maxis Group’s wholly-owned subsidiary, GCSH, procured Deccan Digital’s preference shares that were cumulative, non-convertible and redeemable to the tune of ₹1,634.4 crore. Deccan Digital then had the means to buy a 35% equity stake in Aircel for ₹1,673.41 crore. Given that GCSH invested in Deccan Digital by purchasing preference shares, this investment was treated as debt; therefore the FDI limit of 74% in the telecom sector was apparently not violated by Maxis. However, if the substance over form principle is applied, it can be argued that the Maxis Group deliberately circumvented the 74% FDI limits by using such a complicated and convoluted corporate structure that allowed it to ultimately have a 99.3% financial interest in Aircel.

Weakness in the System

The draft CAG report states that the DoT did not conduct any due diligence on Aircel to ascertain whether the prescribed eligibility criteria for obtaining Unified Access Service (UAS) licences (the type of license which Aircel held which enabled it to bid for the 2G spectrum) were complied with. The Maxis Group’s filings with the Malaysian Stock Exchange clearly specified that it owned 99.3% of Aircel—the CAG report notes this disclosure by Maxis to the Malaysian financial authorities and wonders why the DoT never questioned this discrepancy. In addition, the report also indicates that the DoT was aware of the quantum of investment (₹3,514.45 crore) proposed by GCSH and had even recommended the proposal to the finance ministry for FIBP approval, on 7 March 2006.

Did the finance ministry under Chidambaram overstep its bounds by approving Maxis’ investment of ₹3,514.45 crore, given the fact that requests for approval of foreign investments greater than ₹600 crore fell under the purview of, and had to be referred to, the CCEA? Furthermore, the letter provided by the finance ministry, dated 20 March 2006, that granted the FIPB approval, did not specify the total quantum of investment the Maxis Group would be permitted to invest in Aircel. The draft CAG report also states that in the 74 meetings of the FIPB bet­ween 2007 and 2014, the Aircel–Maxis investment deal stands out as the sole exception. The report claims that the finance ministry’s approval for this investment was not a result of lack of oversight or due to errors, but that the investment approval was given in spite of knowledge that Maxis would be acting through its Mauritius-based subsidiary, GCSH.

The question of Chidambaram’s role in the violation of FIPB rules was raised in the Rajya Sabha in May 2012 by BJP MPs, to which he responded that the discrepancies in the valuation of shares needed to be addressed within the purview of the law. The Hindu on 7 January 2017 reported that the Supreme Court gave an assurance that it would look into Chidambaram’s role in allegedly violating the FIPB rules with regard to the ­Aircel–Maxis investment. (Hindu 2017)

As per the draft CAG report, following the initial failure of the finance ministry and the DoT to verify that Aircel met the eligibility criteria prescribed for UAS ­licenses in 2006, they failed again when Aircel was permitted to participate in the auction for 3G (third generation) and Broadband Wireless Access (BWA) spectrum in May–June 2010—despite submitting an Ownership Compliance Certificate bearing the same ownership details (equity shares) as it had submitted in 2006. In September 2013, the report states, the Finance Ministry defended itself by pointing out that FDI was a subject matter of the DIPP and companies were required to comply with its directions.

India Today reported on 22 May that CBI is investigating the imvolvement of Karti Chidambaram in the INX Media case. It hopes to start questioning the former finance minister as well as those secretaries who are alleged to have abused their position at the FIPB (Khan 2017). CBI sources say that some FIPB officials may have entered into a criminal conspiracy with Karti. It is alleged that Karti’s companies Chess Management Services and Advantage Strategic Consulting were paid “consultancy” fees by INX ­Media in exchange for him influencing the FIPB approvals. A similar modus operandi is noticed in the Aircel–Maxis case, where some have alleged that these very same companies received kickbacks or “consultancy” fees from Maxis in exchange for FIPB approval. CBI, according to the Times of India, has enough documentary evidence to show that Karti received large sums of money to facilitate the FIPB approval (Chauhani 2017). Responding to these allegations in the social media after a to London, Karti said that in this “corruption case, there are no details about which government official was bribed, they have just mentioned some unknown officials. I know how to handle this legally.” Further, he denied allegations of conspiracy levelled against him in the INX Media case by stating that his only connection to the company was that his friend was its auditor (Press Trust of India 2017b). “A friend of mine is the auditor of that television company and it is the only connection I have with that firm,” Karti claimed.

The next hearing in the Aircel–Maxis case is scheduled for 29 August. When the Maran brothers and their associates will have to respond to the CBI’s plea before the Delhi High Court. The court’s Justice S P Garg issued notices to the accused in the Aircel–Maxis case after the trial court found that “no prima facie case warranting framing of charges against any of the accused is made out” on the basis of the materials placed on record before it. The CBI challenged the order of the trial court, dated 2 February, that dropped all the charges brought forth by the CBI and ED. The Delhi High Court had sought responses from the Maran brothers and their associates earlier, on a separate plea filed by the ED challenging their discharge in a Aircel–Maxis deal related money laundering case (IANS 2017b).

It is worth noting that the ₹675 crore investment of the Maxis Group in the Maran family’s Sun TV Group, after ­being cleared by the FIPB was sent to the CCEA in January 2007 (Gopikrishnan 2017). As we have noted, in the complex corporate ownership structure of Aircel-Maxis, the total investment in Aircel was ₹4,769 crore, while there was an FIPB approval for a foreign investment of only 3,600 crore.

The Aircel–Maxis and INX Media cases are a reminder of the existence of crony capitalism in India. The manner in which the Aircel–Maxis case has played itself out, its abrupt and more likely than not, temporary end, and the fumbling ways of the prosecution and investigation agencies, exposes the way the country’s justice delivery system works, or does not work.

Conclusions

While it is not known what the CBI found in its search and seizure raids in the INX Media case conducted in May 2017 at the homes and offices of Karti and his father while investigating Karti’s role in the Aircel–Maxis case the ED claims it found incriminating evidence. A joint raid conducted by the ED and the Income Tax ­department in August 2014 found money flows worth around $200,000 from Maxis’ three subsidiary companies to Karti’s company, Chess Management. The raid also allegedly found information about 21 “secret” foreign bank accounts belonging to the younger Chidambaram as well as companies with assets such as hotels, vineyards and farm houses in 14 countries. Further, Swamy has claimed that “Karti has got 21 illegal bank accounts abroad and he has built many houses in several countries. He has got financial activities undeclared in 18 countries. So, money laundering has to be there” (Times of India 2017). After the raids conducted by the CBI, Chidambaram addressed the media saying that “the government, using the CBI and other agencies, is targeting my son and his friends ... the government’s aim is to silence my voice and stop me from writing, as it has tried to do in the cases of leaders of opposition parties, journalists, columnists, NGOs and civil society organisations.” What the truth is will have to be determined by courts of law.

The prosecution needs to prove culpability and corruption beyond a reasonable doubt—which it has not been able to do so far. The CBI, according to various news reports, fell silent after it filed a charge-sheet and did not provide ample evidence against the accused. The special court’s judgment is based on the fact that the CBI apparenly failed to prove the alleged “arm-twisting” of Aircel’s promoter C Sivasankaran by the Marans. Further, to establish allegations of corruption, that is, receiving kickbacks in lieu of regulatory and ministerial approval for foreign investments, a money trail needs to be unearthed. Further, documentary proof needs to be provided to establish biased and outside “influence” in a court of law. Whether the prosecution will be able to conclusively prove the charges against the accused persons, remains to be seen.

References

Aulakh, Guvleen (2017): “CBI opposes Plea in Supreme Court seeking Attachment of Aircel Shares, Assets,” Economic Times, 9 January, http://economictimes.indiatimes.com/news/economy/policy/cbi-opposes-plea-in-supreme-court-seeking-attachment-of-aircel-shares-assets/articleshow/56409356.cms.

 

AZB & Partners, Advocates & Solicitors (2017): “Preference Shares: Capital or Debt? An Indian Perspective,” Mint, 18 June, http://www.livemint.com/Money/t1gkPobMJOxtkOWoPY8kTK/Preference-shares-capital-or-debt-An-Indian-perspective.html.

 

Business Standard (2017): “Aircel-Maxis Cases: All Charges Dropped against Maran brothers,” Business Standard, 3 February, http://www.business-standard.com/article/companies/aircel-maxis-cases-all-charges-dropped-against-maran-brothers-117020300047_1.html.

Chauhani, Neeraj (2017): “CBI has Enough Proof to nail Karti: Sources,” Times of India, 22 May, http://timesofindia.indiatimes.com/india/cbi-has-enough-proof-to-nail-karti-sources/articleshow/58780861.cms.

Economic Times (2017): “2G Case Verdict: Urgent need for Government Decision-Making to Become Digital,” 5 February, http://blogs.economictimes.indiatimes.com/et-editorials/2g-scam-case-verdict-urgent-need-for-government-decision-making-to-become-digital/.

Ghoshal, Arkadev (2017): “Aircel-Maxis Deal Scam: ED moves SC after Special Court dropped Charges against Brothers Dayanidhi and Kalanithi Maran,” International Business Times, 3 February, http://www.ibtimes.co.in/aircel-maxis-deal-scam-court-drops-charges-against-brothers-dayanidhi-kalanithi-maran-heres-why-714666.

Gopikrishnan, J (2017): “Caged Parrot Refuses to Speak,” Pioneer, 14 February, http://www.dailypioneer.com/columnists/oped/caged-parrot-refuses-to-speak.html.

Hindu (2017): “Aircel-Maxis deal: Will look into Chidambaram’s Role, Says Court,” Hindu, 9 January, http://www.thehindu.com/news/national/aircel-maxis-deal-will-look-into-chidambarams-role-says-court/article17001162.ece.

IANS (2017a): “SBI, other PSU banks to Intervene in Aircel-Maxis case,” Financial Express, 24 January, http://www.financialexpress.com/industry/aircel-maxis-case-sbi-other-psu....

— (2017b): “Aircel-Maxis Case: Delhi HC Seeks Response from Maran Brothers on CBI Plea,” The News Minute, 22 May, http://www.thenewsminute.com/article/aircel-maxis-case-delhi-hc-seeks-response-maran-brothers-cbi-plea-62432.

Khan, Atir (2017): “CBI to Quiz Finance Ministry Officials in Karti Chidambaram–INX Media Ltd case,” IndiaToday, 22 May, http://indiatoday.intoday.in/story/karti-chidambaram-cbi-finance-ministry-inx-media-fipb/1/960152.html.

Kumar, Ashna (2017): “Karti leaves for London while under CBI Scanner, father P Chidambaram says he’ll Return Soon,” IndiaToday, 19 May, http://indiatoday.intoday.in/story/karti-chidambaram-corruption-inx-media-london-cbi-scanner-p-chidambaram/1/957585.html.

Mittal, Priyanka (2017): “Aircel-Maxis Deal: Swamy Moves SC Seeking Probe into Chidambaram’s Role,” Mint, 10 February, http://www.livemint.com/Politics/HG6wWhlgLslZ8Pg38YchgN/AircelMaxis-deal-Swamy-moves-SC-seeking-probe-into-Chidamb.html.

Press Trust of India (2017a): “Aircel-Maxis: SC Questions SSP’s Attempt to Restrain 2G Court Ruling,” Business Standard, 3 February http://www.business-standard.com/article/pti-stories/aircel-maxis-sc-puts-probing-questions-to-ssp-on-his-move-117020300977_1.html.

— (2017b): “Karti Chidambaram Claims Sole Link to INX Media Was Auditor Friend,” Mint, 20 May, http://www.livemint.com/Politics/oSJXU8OcHEVYE8DJIn1OaP/Karti-Chidambaram-claims-sole-link-to-INX-Media-was-auditor.html.

Rajagopal, Krishnadas (2017): “Aircel-Maxis deal nod: Swamy to ‘Prove’ in 2 weeks Chidambaram’s role,” Hindu, 10 February, http://www.thehindu.com/news/national/Aircel-Maxis-deal-nod-Swamy-to-prove-in-2-weeks-Chidambarams-role/article17282736.ece.

Rautray, Samanwaya (2017): “Cloud over Aircel-RCom Deal as Maxis’ Founder Ananda Krishnan’s Absence Irks SC,” Economic Times, 4 February 2017, http://economictimes.indiatimes.com/news/economy/policy/cloud-over-aircel-rcom-deal-as-maxis-founder-t-ananda-krishnans-absence-irks-sc/articleshow/56962131.cms.

Soni, Anusha (2017): “2G scam: Aircel-Maxis Spectrum to be Seized if Accused Don’t Appear in Person, Says Supreme Court,” India Today, 6 January, http://indiatoday.intoday.in/story/2g-scam-aircel-maxis-spectrum-supreme-court/1/850900.html.

Times of India (2017): “Chidambaram’s Illegal Clearances Helped Karti, Says Subramanian Swamy Post CBI Raid,” 16 May, http://timesofindia.indiatimes.com/india/chidambnarams-illegal-clearance....

Updated On : 4th Jul, 2017

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