The year 2012 was an eventful year for the Supreme Court, as it asserted its supremacy and authority in all spheres, especially by cancelling the 122 cellphone licences and ordering a thorough probe into the 2G scam that covered even the NDA regime.
To protect human rights, the court said the right to life and liberty guaranteed to a citizen under Article 21 of the Constitution could not be taken away without the due procedure of law being followed. It held that a mere apprehension that an accused was likely to be released on bail was not a ground for the authorities to pass preventive detention.
The court deprecated the eviction of Yoga Guru Baba Ramdev and his followers on the night of June 4, 2011. “The present case is a glaring example of trust deficit between the people governing and the people to be governed. Greater confidence needs to be built between the authorities in power and the public at large,” it observed. It all started in January, when the court allowed Vodafone’s appeal against the Bombay High Court verdict, ruling that the Income Tax Department did not have the jurisdiction to levy Rs.11,000 crore in taxes on the overseas deal between Vodafone International Holdings and Hutchison Group. It held that both Vodafone and Hutch were not “fly by night” operators or short-term investors, having contributed Rs. 20,242 crore in taxes to the exchequer between 2002-03 and 2010-11.
The judgment shocked the government, which immediately sought a review, arguing that the ruling suffered from error apparent on the face of the record and left out its case.
The review petition pointed out that the finding that the off-shore transaction, which gave the Vodafone holding company a 67 per cent stake in Hutch-Essar, was “bonafide” and “structured Foreign Direct Investment” in India. The case did not involve any flow of money into India, as was evident from the characterisation of the transaction and the incontrovertible fact that no investment or inflow of money took place.
The court, however, rejected the petition, saying it was devoid of merits.
Then came the cancellation of 122 cellphone licences, which were ordered to be auctioned afresh. Furthermore, the court directed the government to auction all natural resources in future. The ruling prompted the UPA government to seek a Presidential Reference to the Supreme Court, wanting to know whether the judgment made it mandatory to auction natural resources in the other sectors as well, and whether it had retrospective impact.
The Department of Telecom felt that the judgment had far-reaching implications for several other sectors that also followed the first come, first served policy for the allocation of coal and iron ore, among other resources. A specific question in the Reference was what would happen to those licences that were issued post-1994, when an auction was not conducted.
In its advisory opinion, the court clarified that the earlier order on natural resources was limited only to the telecom sector. “It is a matter of huge relief for the government. It is a matter of being vindicated on what we are trying to say again and again,” Telecom Minister Kapil Sibal had said, speaking of the opinion.
“Auctions may be the best way of maximising revenue, but revenue maximisation may not always be the best way to sub-serve public good,” the court said.
The former Telecom Minister, A. Raja, wanted the court to reconsider its 2G order, saying the court had condemned him for alleged illegalities without giving him an opportunity to explain and without making him a party to the proceedings. But the court dismissed his petition, saying it had no merits. “We have carefully perused the averments… and are convinced that there is no valid ground, much less justification, to entertain the prayer…”
The court also rejected Janata Party president Subramanian Swamy’s petition for including Union Finance Minister P. Chidambaram as an accused in the 2G case. A review plea was also discarded by the court.
Since the court is monitoring the 2G probe, the CBI filed a charge sheet against Bharti Airtel, Vodafone India Ltd. and Sterling Cellular Limited for alleged irregularities in the allocation of excess spectrum during the NDA regime. The CBI charged the former Telecommunications Secretary, Shyamal Ghosh, and the three firms with criminal conspiracy that cost the exchequer Rs. 846 crore.
The CBI told the trial court that additional spectrum was allotted on July 17, 2002, to Bharti Cellular Limited (now Bharti Airtel) and Sterling Cellular Limited (now Vodafone Mobile Service Limited) for the Delhi metro area and Hutchison Max (Vodafone India Limited) for the Mumbai metro area. The CBI contended that the Communications Minister of the time, Pramod Mahajan, along with Mr. Ghosh, allotted addition spectrum to the companies in a hurry and in contravention of the telecom policy.
“Investigation has revealed that Mr. Shyamal Ghosh, then Chairman of the Telecom Commission and Secretary, DoT, in conspiracy with the late Pramod Mahajan, … and the accused beneficiary companies…, abused his official position as public person and showed undue favour which caused a loss of Rs.846.44 crore to the… exchequer and a corresponding undue gain to the… companies,” the charge sheet said.
The court dismissed as not maintainable a petition from the former Army Chief, Gen. V.K. Singh, to restore his date of birth as May 10, 1951. He wanted the Defence Ministry to consider May 10, 1951 his date of birth instead of May 10, 1950, which was listed in the Army records. Gen. Singh retired on May 31.
Justice Dalveer Bhandari of the Supreme Court was elected a Judge of the International Court of Justice. He was the first Indian judge chosen for the primary judicial organ of the United Nations after two decades.
Justice Altamas Kabir took over as Chief Justice of India from Justice S.H. Kapadia on September 29. Justices Deepak Verma and Swatanter Kumar retired. Justice Swatanter Kumar took over as Chairperson of the National Green Tribunal.
Justices M.Y. Eqbal, V. Gopalagowda and Vikramajit Sen were sworn in judges of the Supreme Court on December 24.
(To be concluded)