Why SC judgment on telecom a blow to govt

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Arvind Padmanabhan | 21 Feb, 2012
However much Communications and IT Minister Kapil Sibal may seek to defend the government, the verdict on telecom licences by the Supreme Court has dealt a severe blow to the credibility of the government, particularly when the very edifice of the executive -- that of framing and executing policies -- has been lambasted.

The two cases before the courts pertaining to the award of licences for second generation (2G) telecom services and allocation of requisite spectrum, or airwaves, seek to address two contrasting issues, albeit on the same subject.

The one in the lower court seeks to ascertain whether or not former communications minister A. Raja misused his powers when in office and made personal gains from it. There is also the related issue of whether the 13 other people accused in the case connived with him.

But the matter before the Supreme Court was different: Whether the Department of Telecommunications -- during the tenure of United Progressive Alliance (UPA) government under Prime Minister Manmohan Singh -- followed the due process in a true, fair and transparent manner in the award of these 122 licences.

Here the Supreme Court has ruled decisively: No. With regard to the other matter, a plea asking for its directions to conduct a probe on the role of Home Minister P. Chidambaram, who was finance minister then, was left to the lower court. And the lower court Saturday said no probe was needed.

Thus far, the main defence presented by Minister Sibal is on these lines: The UPA government merely followed the policy set by the previous National Democratic Alliance (NDA) government. But that argument has a major flaw and raises a fundamental question: Can two wrongs make a right?

This is precisely what the Supreme Court has said, calling the action taken by the Department of Telecommunications, which functions under the communications minister, for grant of licences "arbitrary and unconstitutional".

The fact is: If a policy followed by a previous regime is faulty, it is for the incumbent government to set it right. There the head of the government cannot take recourse to the fact that one of his ministers said the policy was all right, to the extent of even preventing it from being changed.

The court also observed that the minister "did not bother" to consider a suggestion made by the prime minister. Now, if that act of disobeying that suggestion results in losses worth thousands of crores of rupees, or denies fair play to one set of players, who is to blame?

This fundamental duty of the head of government cannot change merely because of the compulsions of coalition politics. Here, one has started hearing some indigestible reasoning as well, like separating the Prime Minister's Office from the prime minister in fixing responsibility or culpability.

Let us take a counterpoint. One of the senior ministers in the previous regime, Arun Shourie, has argued that it is for the executive to decide the price of a natural resource. Water, he says, is a precious natural resource. Can it be auctioned? The UPA government has also latched on to that. But the matter does not end there. Fair enough!

But if the minister decided to follow the "first-come-first-served policy" in the first place, and then advanced the last date for receipt of applications post-facto, should his bosses (read, the federal cabinet, presided over by the prime minister) have kept quiet? Does this act alone not point to unfair practice, if not indicate some mala fide intentions?

The court has also observed that Raja brushed aside not only suggestions by the prime minister but also the observations of the ministries of law and justice, as also the finance ministry. It is indecision and lack of action after so much of blatant and arbitrary misuse of powers that raises eyebrows. None can defend it.

But there is hope. The Supreme Court has given four months to the regulator and the government to set the house in order. The customer served by the 122 licencees, somewhat, has been protected, though the cost of portability to change over to another service provider, is not an expense that can be imposed unduly on him or her.

There is also the question of investment -- especially by some reputed foreign companies which are like our own state-run enterprises -- into the affected companies. There is the need to protect it. For them, the approval of their investment applications and the allowance to operate in these 122 circles after buying into the firms that were originally awarded the licences presented enough due diligence and adequate sanction from the government.

In conclusion, therefore, there is no denying that the image of the government has suffered both within and outside. There is time, not much though, to effect a course-correction. Collective decisions -- or for that matter, the failure to act -- among those who govern tarnishes the image of the executive far more than the pursuits or a corrupt official or minister. Even more so when presented with the chance to redeem itself.

(Arvind Padmanabhan is executive editor with IANS. The views expressed are personal. He can be reached at arvind.p@ians.in)