The Supreme Court on Friday agreed to examine the Union government's petition seeking a review of the 2G spectrum judgment that quashed spectrum licences and directed issuance of fresh ones on the basis of auction.
A Bench of Justices G.S. Singhvi and K.S. Radhakrishnan issued notice the Centre for Public Interest Litigation and Janata Party president Subramanian Swamy, on whose petitions the licences were cancelled.
“We do not want to question the order on the cancellation of licences,” Additional Solicitor-General Indira Jaising said at the outset. “What is of concern for us is the question of law. Some of the questions require revisiting.”
Justice Singhvi told her “it is because of the apprehension of the government.” However, Ms. Jaising said the review petition was not due to any apprehension but certain questions should be clarified.
When senior counsels Harish Salve and Mukul Rohatgi, appearing for telecom companies pleaded for notice to the companies, contending that they should be heard as they were vitally interested in the matter if the government was to cancel the licences, Justice Singhvi said: “If we feel it appropriate, we will hear you.”
May 1 hearing
The Bench, while posting the matter for hearing on May 1, made it clear that issuance of notice would not mean that there was stay on the judgment insofar as cancellation of licences was concerned.
The Centre, in its review petition, said it was only questioning the conclusion of the judgment that all national resources should be auctioned. It claimed that absurd results would follow from the conclusion, as it (the government) was bound to implement auction policy in distribution of all natural resource/national wealth in all circumstances and would be precluded from following any other policy. The government could only formulate a single policy for distribution of any natural resource/national wealth, irrespective of any reasons to the contrary.
It said, “Auction of 2G licences would adversely affect and hamper the objective of promoting tele-density in semi-urban and rural areas. As new entrants would be burdened with very high acquisition costs for licence and spectrum, it was unlikely that they would penetrate new markets and offer services at a competitive cost to consumers in terms of urban and rural areas. The government said the judgment would adversely affect competition in telecom operations.”
“Policy not flawed”
It disagreed with the observation that the telecom policy was flawed, saying the policy decision was not open to judicial review. Having travelled beyond the limits of judicial review and entered the realms of policy-making, the court did not apply its mind to the considerations of promoting growth, affordability, penetration of wireless services in semi-urban and rural areas and maintaining a level-playing field, the petition said.
The court came to the conclusion that the only method of maximising revenue for the state was through holding of public auction, without applying its mind in the facts of whether this was the case. Had the court applied its mind, it would have considered that in the prevailing facts and circumstances at the time the first come, first served (FCFS) policy was adopted was more advantageous to the state in maximising revenue in the long-term rather than short-term by promoting growth and penetration of wireless services in semi-urban and rural areas.
Contending that the FCFS policy had the twin objective of a level-playing field and providing affordability, the Centre sought a direction to review the February 2 verdict.