With govt asleep, SC was right to wade into 2G policy

In an ideal world, the three pillars of the state - the executive, the legislature and the judiciary - would have their work cut out, and would operate without encroaching on each other’s exclusive domain. The executive would initiate and implement policy; the legislature would make law; and the judiciary would interpret the law in the event of a dispute.

In its review petition filed on Friday before the Supreme Court in the 2G scam case, the government claimed that this constitutional arrangement had been violated by the court’s verdict in the case.

[caption id=“attachment_144866” align=“alignright” width=“380” caption=“If the Supreme Court pulled up the government on matters of telecom policy, it was because the government was asleep at the wheel. AFP”]  [/caption]

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The petition said that the court’s questioning of the wisdom of the first-come-first-served (FCFS) policy of granting telecom licences and its cancellation of the 122 licences issued by former Telecom Minister A Raja - amounted to an encroachment by the court into the exclusive domain of the executive: that of policy-making.

In their landmark judgement on 2 February, Justices GS Singhvi and Ashok Kumar Ganguly had observed:

“There is a fundamental flaw in the principle of first-come-first-served in as much as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served principle has inherently dangerous implications.

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“When it comes to alienation of scarce natural resources like spectrum etc., the State must always adopt a method of auction by giving wide publicity so that all eligible persons may participate in the process.”

Any other methodology for disposal of public property and natural resources/national assets is likely tobe misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values.”

The government is not challenging the cancellation of the licences; it only wants the court’s observations on the matter of policy reviewed on the grounds that a policy decision to allocate spectrum could not have been the subject matter of judicial review.

Yet, even this amounts to an invocation of constitutional niceties, which are valid in an ideal world, to cover up for its colossal failure to protect pubic interests in the sale of telecom licences and spectrum, which facilitated India’s biggest corruption scandal ever.

If the government had not been asleep at the wheel, and had been diligent in doing its job, and if it had been fair and transparent in the way it went about selling national assets, there would have been no need for judicial oversight of a flawed policy and its inept implementation.

As Firstpost has argued earlier ( here ), there is nothing inherently right or wrong about either the FCFS policy or the auction route to raise revenues from telecom spectrum. Every telecom policy and every exercise in revenue mobilisation from the sale of licences and spectrum must be judged against the objectives of those times, and the transparency of operations.

In any case, as lawyer Kartikeya Tanna observed ( here ), the Supreme Court did not categorically state that the FCFS policy is unconstitutional or legally impermissible.

All that the Supreme Court was concerned with was that any policy that was implemented ought to be sound, transparent, discernible to the public and well-defined - and must be implemented fairly, equitably, without discrimination and arbitrariness and in the larger public good.

In fact, as Tanna points out, in its operative portion of the judgement, the Supreme Court cites an earlier judgment in which it had ruled that distributing resources by auction or tenders is one of the methods of securing the larger public interest. And that while an auction or a tender is the ordinary rule, it is not an invariable rule.

In other words, the Court was not encroaching into the arena of policy-making, as the government suggests: it was only establishing that the implementation of any policy ought to meet certain criteria of fairness and transparency. It was only because the government palpably failed on those two fronts, and allowed Raja to hijack the Telecom Policy, that the Supreme Court made those observations.

In fact, the Supreme Court appears to have anticipated this line of argument from the government and made clear the rationale for its exertions. It observed:

“When it is clearly demonstrated before the court that the policy framed by the state or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the court to exercise its jurisdiction in larger public interest and reject the stock plea of the state that the scope of judicial review should not be exceeded beyond the recognised parameters.”

In other words, if the government is asleep at the wheel, and is allowing looters to go unchecked (as was manifestly the case in the 2G scam), it will be hauled up before the courts, even if it gives rise to the perception that the courts are encroaching into the arena of policymaking.

In this instance, the government has only itself to blame. Having colossally failed, it is now seeking shelter in constitutional niceties that were drawn up for an ideal world.