2G mess: Sibal can do a Shourie or a Shakuni on policy
The proposed presidential reference on spectrum issues lobs policy questions into the Supreme Court's lap. What is Kapil Sibal trying to do?
The Supreme Court’s summary rejection of the 2G review petitions filed by various companies whose licences were cancelled on 2 February should bring home one point: under SH Kapadia, the top court has become a no-nonsense arbiter of justice, and efforts by various parties to seek court indulgence on flimsy grounds will be blackballed.
A casual look at recent Supreme Court orders confirms this. The government’s Vodafone judgment review was thrown out. A Raja’s plaint against the 2G verdict got short shrift. Essar Oil’s review plea on Rs 6,300 crore of sales tax dues payable to Gujarat went out of the window. The army chief’s age review request was withdrawn when the court indicated what it would do. A public interest petition against Sebi chief and the finance minister was rejected since it was just making allegations without raising constitutional issues.
The only petition the Supreme Court has been willing to entertain is the limited government one seeking to claim back its right to make policy in the spectrum case. The government wisely did not challenge the cancellation of 122 licences, and only wants the court to withdraw its comments that transgress into the policy-making domain. While the 2 February judgment said auctions were the best way to sell scarce natural resources, including spectrum, the government (correctly) claims that the court cannot decide how a government should farm out its natural resources – as long as the process is not vitiated by opaqueness and fraud.
However, Kapil Sibal & Co have managed to shoot themselves in the foot on this one too.
After claiming the right to keep the court out of the policy domain, the government wants to invite it right back by asking it questions that are directly about policy through a presidential reference.
Attorney General Goolam Vahanvati is said to have cleared some points in Kapil Sibal’s presidential reference that should normally fall in the policy domain.
According to The Economic Times, the presidential reference will ask seven main questions. Among them: will the 2 February judgment affect telecom licences given in 1994 – that is, retrospectively? What happens to those promoters who were issued dual technology licences (Reliance, Tata Teleservices)? What about the 3G spectrum given to those whose licences were cancelled? Should all spectrum allocations of the past be reworked? Should telecom companies be charged more for spectrum allocated in the past, and from what date?
The presidential reference also asks the court questions on how much can the court interfere in policy decisions, and whether auctions are the best method to hand out natural resources?
One is truly flabbergasted by the sweep and nature of this presidential reference. Planning Commission Deputy Chairman Montek Singh Ahluwalia has clearly pointed out that there is no point in it, and the Union cabinet should send it to the dustbin when it comes up for sanction.
The ridiculousness of the presidential reference is this: Should a government that has sought to claw back the right to make policy from court be asking the same court for directions on how it should be going about making policy?
This shows the bankruptcy of the government’s political thinking. What is it trying to achieve by making such a detailed reference when the Supreme Court cannot have all the answers? Despite its general observations on the importance of auctions, can any court rule that it is the best way? Can any human being, however wise, assert that auctions are right in all circumstances?
Let’s take each issue and see how the question contradicts what the government is trying to achieve with the 2G review petition, which will be heard on 13 April.
Question: Should the 2 February judgment affect telecom licences given in 1994 – that is, retrospectively?
The Supreme Court has not extended its judgment to those licences. It is up to the government to reopen the old cases if it so wants. Why should the court answer this question?
Question: What happens to those issued dual technology licences? What happens to the 3G spectrum given to those whose licences were cancelled?
The government has to chart a pathway from licence cancellation to reissue/rebids. It is not the court’s job to tell the government what and how policy should be reframed in the light of its judgment.
Question: The presidential reference also asks whether the courts can interfere in policy decisions, and whether auctions are the best method to hand out natural resources.
When the government is challenging precisely this right of the court in the 2G review petition, what is the logic in making a presidential reference for the same? It will get its answer with the review petition.
UPA and Sibal are upto no good in trying to lob questions back to the court when it is their job to evolve a policy and get telecom out of the mess it has landed in.
Under the NDA, when the government messed up by allowing Mukesh Ambani a backdoor entry into mobile telephony by announcing a wireless in local loop policy, Arun Shourie cleaned up the confusion by directly talking to the affected players and working out an effective policy compromise, thereby avoiding a court-delivered policy.
Sibal is trying to do the opposite and with confused intentions: he is both asking for policy making rights and asking the court to help him decide on policy.
India’s messed up telecom sector needs a problem-solver like Shourie, not a problem-creator like Sibal. He has the option of playing Shourie, or Shakuni, the trouble-maker of the Mahabharat.
The solutions have to be found through compromise, technocracy and honest political intent. Sibal is heading in the wrong direction.
The full text of the Supreme Court views on the Presidential Reference regarding the cancellation of the 122 2G licenses.