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Did Chidambaram Subvert the Foreign Investment Promotion Board?

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Did Chidambaram Subvert the Foreign Investment Promotion Board? ISSN (Online) - 2349-8846 Circumventing Institutions: Did Chidambaram Subvert the Foreign Investment Promotion Board? JAI BHATIA, ADVAIT RAO PALEPU Vol. 52, Issue No. 24, 17 Jun, 2017 Jai Bhatia ([email protected]) is a PhD student at the School of Oriental and African Studies, University of London. Advait Rao Palepu ([email protected]) 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. By World Economic Forum [CC BY-SA 2.0], via Wikimedia Commons ISSN (Online) - 2349-8846 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 An unpublished report drafted in the office of the Comptroller and Auditor General, (CAG) available with the EPW, traces the corporate structure of Maxis’ acquisition of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 ISSN (Online) - 2349-8846 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 ISSN (Online) - 2349-8846 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.
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