2G judgment went beyond limits of judicial review: Govt

The government on Friday gave its analysis of the Supreme Court's 2G judgments saying it "travelled beyond" the established limits of judicial review and entered the exclusive domain of the executive when it held that the policy of first-come-first-served was flawed.

A presentation by the department of telecommunication before the Joint Parliamentary Committee examining the 2G issue contented that the apex court view on the policy was flawed on the ground that the court disagreed with the weight attached by the executive to the different factors underlying the decision.

"The judgment, in respect of the policy, is directly contrary to the settled law as laid down by the Supreme Court that the essence of policy-making and governance is the weighting and balancing of different values and considerations, which is the role of the executive, and it is not permissible for the court to take this exercise upon itself and engage in policy making, both for the reason that it is not its role to do so and does not have the expertise to do so," the DoT said in the presentation.

The committee was told that the judgment erred in holding that the policy was "flawed" and "lopsided" on the ground that in the view of the court, the considerations of promoting the growth, affordability, penetration of wireless services in semi-urban and rural areas, as well as maintaining a level-playing field between the existing and new licences for 2G spectrum, were outweighed by the considerations of maximising short-term revenue for the state.

Government contended that the judgment also erred in finding that the policy of first-come-first-served also involves "an element of pure chance or accident" without considering that there is a risk that any policy, including sale by public auction, may be wrongfully implemented.

It cited earlier judgments of the Supreme Court in four cases, including the R K Garg Vs Union of India 1981, Balco employees vs Union of India 2002 and Bombay Dyeing vs Bombay Environmental Action Group 2002, to show that the current judgment went against these verdicts.

The presentation on the impact and implications of the recent apex court judgments on February 2 in which 122 2G licences were cancelled also listed the legal steps taken by the government.

These included filing of interim application, placing on record the proposed auction schedule (400 days) and proposed filing of a review petition in which the government is not seeking the review of the direction quashing of the licences.

The review petition will have a prayer to reconsider direction that appears to confine government policy to auction as the only method for allocating all natural resources.

Besides, it will contend that the judgement raises questions of contravention of established principles of segregation of functions between the executive and the judiciary, especially in respect of formulation of policies.

Among the actions proposed include process of examination of legal issues, and options are still continuing including obtaining legal opinion on the further steps to be taken by the DoT.

A reference has been made to Telecom Regulatory Authority of India for making recommendations on auction of spectrum.

The department is also taking preparatory actions, pending TRAI recommendations for auction, to minimise the time to complete the auction, the presentation said.