The Department of Telecommunications? (DoT) strategy to help the sector revive after the Supreme Court?s verdict in the 2G spectrum case has been put on the fast track.
DoT had identified a three-pronged game plan in this regard and a government group had broadly approved of its suggestions.
As part of the proposed strategy, DoT had said that the government ought to file a review petition; a presidential reference should be taken to gain clarity on the legal implications of the judgment and a clarification petition covering operational issues should be filed.
While it had already filed a clarificatory petition and a review petition on the verdict, the Union Cabinet, which had viewed the proposal, could not reach a concensus as to whether a Presidential reference was required.
So, the Cabinet had approached the Attorney-General of India for his opinion on this subject.
Now, according to reports, Attorney-General Goolam Vahanvati is in agreement with the government filing a presidential reference in this context.
Further, it is believed that the presidential reference approved by Vahanvati would ask the Supreme Court to explain whether licences obtained in 1994, as well as those bagged after 1994 and before 2007 would fall under the purview of the verdict.
The reference may also touch upon dual technology licences, whether the spectrum held by the companies facing licence cancellation ought to be taken back, whether incumbents will have to shell out a particular amount for the spectrum in a retrospective manner, the extent to which courts can take a policy-related decision and whether an auction is the best means to allocate spectrum.
Meanwhile, DoT?s proposal to file a review petition broadly entails the government requesting the Court to reconsider its decision pertaining to the first come, first served policy. The Court had said that the policy was invalid under the Constitution.
In this context, DoT had argued that the Court?s findings encroached upon the executive?s jurisdiction to frame policies.
Its suggestion to file a review petition stemmed from its opinion that the Supreme Court?s judgment overlapped with the area of policy-making. So, the Court contradicted the principles of separation of powers and extended beyond the limits of judicial review defined in several of its own judgments.
Regarding its recommendation that the government opt for a presidential reference, DoT had argued that the court had considered only the 122 licences issued on or after January 10, 2008 and had not mentioned the other licences granted under a similar policy. In this context, therefore, the legality of the licences issued earlier came into question.
DoT added that it was unclear whether, as per the judgment, the dual technology licences issued in 2008 were illegal or not.
Also, it said that in view of the judgment, it should be clarified whether any priority could be given to the Telecom Regulatory Authority of India?s (TRAI) recommendations pertaining to spectrum, even at a price determined at the auctions.
Thirdly, DoT said that an opinion ought to be taken on whether a ceiling on spectrum acquisition, as recommended by the regulator, is required.
DoT also said the four-month time limit stipulated by the Court for auctions to take place was very short and it would take 400 days at a minimum. In this regard, it recommended that the government file an appropriate application to the Supreme Court.
DoT also mentioned several operational issues in this regard, for which it has been advised to obtain a legal opinion. For instance, the judgment is unclear on whether the companies facing licence cancellation should be informed of the termination or whether they should be permitted to continue to net subscribers in the four-month intervening period.
