The court had ealier castigated TRAI on the same grounds that the JPC uses to defend the UPA

The controversial JPC report, which is expected to lead to a major confrontation in the Parliament next week, makes several observations that contradict the Supreme Court’s orders and findings relating to the 2G scam.

The report absolves Prime Minister Manmohan Singh of any wrongdoing, while simultaneously attempting to destroy the Comptroller and Auditor General’s loss calculations by citing the recommendations of the Telecom Regulatory Authority of India against auctions to defend the decision giving spectrum in 2008 at 2001 prices. It states, “The committee notes that the consistent stand taken by the TRAI for non-revision of licence fee and not favouring auction of spectrum is in conformity with the policy prescriptions laid down in NTP 99 and the 10th 5-year plan document that treats telecom sector as an infrastructure sector for the decade commencing from 2002.”

The SC, in its judgment of February 2, 2012 cancelling the 122 licences, castigated the TRAI on the same grounds that the JPC uses to defend the UPA. The SC ruled, “We have no hesitation to record a finding that the recommendations made by TRAI were flawed in many respects and the implementation thereof by DoT resulted in gross violations of the objectives of NTP 99 and the decision taken by the Council of Ministers on 31-10-2003.”

On the issue of advancing the cut-off date – which resulted in a cap of only 122 of the 575 applications being granted 2G spectrum, the JPC report finds this to be a mere “procedural infirmity.” On the issue of placing the cap, it declares, “The decision may not be termed inconsistent with the broad intent of NTP 99 or the spirit of the recommendations of TRAI.” Here again, the SC found otherwise. In its judgment of March 12, 2010, in the S-Tel matter, it upheld a finding of the Delhi High Court which had not only found the arbitrary advancement of the cut-off date as illegal and struck it down, but in fact ruled that the cap placed on the number of operators by virtue of the cut-off date, was an action “contrary” to the “recommendations of TRAI.”

While attacking the CAG for calculating one of the loss estimates based on “sale of equity” by Swan and Unitech to Etisalat and Telenor respectively, the JPC report concludes, “Loss calculation and determination of the value of licences and spectrum on basis of legitimate infusion of FDI by means of fresh equity by telecom companies is untenable.” Swan and Unitech’s lawyers have already attempted to pull off the same argument in the SC, without any success. Contrary to the JPC findings, the SC, in its judgment of February 2, 2012, wrote, “This becomes clear from the fact that soon after obtaining licences, some beneficiaries offloaded their stakes to others in the name of transfer of equity or infusion of fresh capital by foreign companies and thereby made huge profits.”

In a further attack on the CAG for using auctions or increase in entry fee for calculating losses, the JPC report concludes, “The committee, therefore, is of the considered view that the very move for calculation of any loss on account of allocation of license and spectrum is ill conceived.” The SC disagreed. In its February, 2012 order finds, “We have no doubts that if the method of auction had been adopted for grant of licences which could be the only rational transparent method for distribution of national wealth, the nation would have been enriched by many thousand crores.”

The view taken in the JPC report, that any question against “the sanctity of the decisions taken by the internal Telecom Commission is ill founded,” also contradicts the SC’s judgment. The internal Telecom Commission excludes four Secretaries, including the Finance Secretary, who form a part of the full Telecom Commission. The SC described ex-Telecom Minister, A Raja’s actions, including of circumventing the full Telecom Commission — where TRAI recommendations are concerned — as “wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality.”

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