According to Goolam E. Vahanvati, the Attorney General of India, foreign players cannot invoke the bilateral investment treaties (BIPA) against the government of India.
Vahanvati is of the view that constitutional system cannot be displaced by broad principles of international law. He has declined to change his views that the foreign telecom players cannot invoke BIPA, as the decision to cancel 2G licences was made by the Supreme Court and not the government.
Earlier, the Ministry of External Affairs and Commerce had opposed the legal opinion given by the Attorney General of India, on invoking BIPA while dealing with foreign players. The Ministry was of the view that in the international court, the Indian State is seen as a single entity, which includes the judiciary.
Vahanvati has, however, said that the claim of damages by foreign players from government is based on a complete misunderstanding of the prevailing constitutional position. According to him the Constitution of India clearly demarcates the respective jurisdictions of the various organs of the State. It recognises the principle of separation of powers. The judiciary exercises powers within its own sphere and under the constitution set up, the executive exercises no control over the judiciary. As such Government of India cannot be responsible for judgement of the courts.
The Department of Telecommunications had sought the Attorney General of India?s opinion after several foreign players, including Telenor, Sistema and Axiata, issued notices to the Indian government, claiming protection of their investments under the various BIPAs. These operators claimed that their telecom businesses were severely impacted following the cancellation of their licences by a Supreme Court order in February, 2012.
