Government’s law officer pointed to the need to preserve S-band spectrum for vital strategic, societal applications

The Government of India was advised as early as in July 2010 to take a policy decision in the national interest to terminate the agreement between Antrix Corporation Ltd and Devas Multimedia Private Ltd, that involved a lifetime lease of 90 per cent of the capacity of the S-band transponders of two satellites built by ISRO, it has now been revealed.

According to highly placed sources in the Law Ministry, advice on whether the agreement reached on January 28, 2005 could be annulled was obtained by the Department of Space from a senior law officer of the government.

The legal opinion given by Additional Solicitor-General Mohan Parasaran said: “It is always advisable that instead of the Department of Space taking a decision to terminate [the agreement], it would be more prudent that a decision is taken by the Government of India as a matter of policy, in exercise of its executive power, or in other words, a policy decision having the seal and approval of the Cabinet and duly gazetted as per the Business Rules of the Government of India.”

The opinion noted that after the signing of the agreement, the government had realised that the Antrix-Devas agreement on GSAT-6 and 6A would take away most of the S-band spectrum that was available.

The note further said: “The S-band spectrum is crucial for several strategic and societal services. The Integrated Space Cell of IDS, Ministry of Defence, have projected a need for 17.5 MHz in S Band for meeting the immediate requirements of Armed Forces, another 40 MHz during the 12th Plan period and an additional 50 MHz during the 13th Plan period. [The] Armed Forces have also projected the need to build S-band satellite capacity through GSAT-7S, for national security related mobile communications.”

The law officer pointed out that in view of these emerging requirements, there was an imminent need to preserve the S-band spectrum for vital strategic and societal applications. After analysing the scope of the agreement, he wrote: “It is evident that the two Satellites together, if launched, would require about 70 MHz of the S-band spectrum of 150 MHz allocated to ISRO for satellite orbit. This will result in serious consequences strategically affecting the needs of the defence and other departments concerned with national security, including para-military departments, Indian Railways, etc.”

On the core issue whether justifiable grounds existed for the termination of the agreement, the opinion quoted Article 11 of the contract relating to force majeure (superior force), which includes government authority acting in its sovereign capacity; changes in law and regulations and national emergencies, under which the agreement could be terminated.

The opinion says: “It is noticed that when the agreement was entered into between Antrix and Devas, way back in the year 2005, the circumstance was vastly different than what it is today. The governmental policies with regard to allocation of satellite spectrum has undergone a sea change and there has been a tremendous demand for allocation of spectrum for national needs, including for the needs of the Defence, para-military forces, railways and other public utility services as well as for societal needs. There can be no dispute whatsoever that the Government of India is the owner of satellite spectrum space and any policy taken by the Government of India with regard to allocation and use of S-bandwith, including those which are subject matter of contractual obligations, would fall within the doctrine of force majeure, as envisaged in the very agreement between Antrix and Devas.”

It pointed out that the Government of India terminating the agreement would give a greater legal sanctity to the decision in as much as the contractual provisions expressly stipulate that for the `force majeure' event, to disable one of the parties to perform its obligations under the contract, the act must be an act by the governmental authority acting in its sovereign capacity. Several reasons exist to resort to this sovereign power for preserving national interest.”

Therefore, instead of the Department of Space directing Antrix to terminate the contract, “it will be advisable from a legal perspective that the direction comes from the Department of Space on the basis of a governmental policy decision,” the legal opinion said.

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