Tactical retreat on 2G PDF Print E-mail
Thursday, 10 May 2012 00:00
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Good idea to withdraw petition as it was a weak one
Though withdrawing its review petition against the Supreme Court’s cancellation of 122 2G licences has to be deeply embarrassing for the government, the decision was a good one because the petition was so weak that there was a good chance it would also have been dismissed. The letter withdrawing the petition argues the government is doing this since the SC has only issued a notice on a few of the points raised in its petition, and officials privately argue the withdrawal is irrelevant since the government has a Presidential Reference pending and that makes many of the same points. Neither is quite true since the ‘limited notice’ issued by the SC deals with the major point made by the government, that the Mines and Mineral (Development and Regulation) Act allowed for first-come-first-served and that, by ignoring this, the SC was really saying that mines allocated under an Act of Parliament were illegal. As for the Presidential Reference, the larger point is that if the SC had ruled in the government’s favour on the review petition and said, for instance, that all natural resources didn’t have to be auctioned, this would have been an actionable order. If, on the other hand, a Constitution Bench of the SC (Presidential References are heard by Constitution Benches) said the same thing on the Reference, this would only be an opinion, it is not actionable.
The larger problem with the review petition, of course, was that while it cited the MMDR Act, it never mentioned the fact that, for many years now, the government itself has been trying to get a new MMDR in place to allow auctions for all minerals, and that it has an Ashok Chawla committee report which, after examining all the pros and cons, recommends auctions for all natural resources. Imagine the embarrassment if any of the respondents had brought this up in the SC, or the fact that an amended version of the MMDR Act (signed by the President on September 8, 2010, and gazetted the day after) already allows for auctions for coal mines allocated to captive users like steel and power producers—the new MMDR in Parliament seeks to extend this to all minerals and for commercial mining as well.
What takes the cake, of course, is that while the review petition says the courts cannot examine matters of ‘policy’—this is argued in para G onwards in the review petition on which the SC has not asked for responses—the Presidential Reference invites the SC into precisely these areas. So, it asks if all telecom licences issued apart from those in 1994 ‘may be said to have been granted illegally?’ In light of the fact that various 2G arguments made by the government have been repeatedly rejected by various courts, with the rejection of the Vodafone review petition and now the withdrawal of the 2G review, the government needs to take a good and hard look at the advice it is getting.

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