Crooked argument

The government’s defence of its 2G spectrum allocation policy in its petition for a review of the Supreme Court judgment which struck it down last month is totally unconvincing.

Immediately after the judgment it had in fact accepted that the first-come, first served policy followed by A Raja was faulty and had blamed the NDA government for framing it. But it now thinks that the court  exceeded its jurisdiction by judging a policy that lies in the executive realm. There is some tight-rope walking here. It has not challenged the cancellation of the 122 licences wrongly granted by Raja through manipulation of policy and procedure to favour some firms. The problem here is that while seeming to accept the natural corollary of the court’s view, it is questioning the basis of the judgment.

The court’s view that allocation of natural resources should be done by auction is based on a sense of fairness and natural justice. The government itself took the auction route to allocate 3G spectrum in 2010. The argument that the first-come, first-served policy helped to keep the telecom tariffs low and resulted in the wider spread of mobile telephony is faulty because it is the companies that did not benefit from Raja’s largesse that expanded the most after the spectrum allocation.

There is no doubt that policy-making is the prerogative of the executive. But there are cases where the policy is inherently unfair and implementation is almost impossible to be separated from its basic structure. A subjective element, arbitrariness and  the possibility of manipulation is built into the idea of the first-come, first-served system. Safeguards against its misuse are not easy to institute and a clever tweaking of the rules can always hurt public interest, as it happened in the 2G scandal.

It is true that judiciary has overreached itself on many occasions while judging government decisions and actions and prescribing solutions to problems. But in the 2G case the issues are entirely different. The court was only invalidating a policy which was impossible to be implemented fairly. The auction route to allocate resources is accepted all over the world as the best and most efficient method to promote public interest and to maximize the value of resources. Fairness and justice are built into it. To split legal hairs and to bring in the issue of the separation of powers between the executive and the judiciary in this case is to be disingenuous.