The government will, on Friday, file a review petition challenging the Supreme Court’s verdict on the cancellation of 2G licences issued on or after February 10, 2008 as they were issued on the policy of first-come-first-served (FCFS) basis.
In its February 2 judgment, the Supreme Court held that the policy of FCFS to distribute natural resources is flawed per se. The court also held that “auction” is the only method that should be adopted by the petitioner while transferring or alienating national resources.
Though the review petition will not seek review of the cancellation of 2G licences issued during the regime of former communications minister A Raja, it will challenge the basis on which the licences were cancelled.
In the review petition, the government will argue that policy making is the prerogative of the executive and the Supreme Court cannot take this exercise upon itself.
The review petition will also say that the court has selectively picked up from the recommendations issued by the Telecom Regulatory Authority of India (TRAI) that suits it and rejected others that it disapproves. It has also pointed out that various legislations provide for alternative methods of distributing natural resources, including the policy of FCFS.
“The finding that the policy recommended by the TRAI on August 28, 2007, and adopted by the Department of Telecommunications (DoT) for the allocation of spectrum …was flawed because the court disagreed within on merits, is per incuriam, being contrary to the Constitution and judicial precedent that the court cannot review the merits of a policy decision by the executive,” the draft review petition said.
“”The impugned 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 weighing 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 it does not have the expertise to do so,” it added.
The review petition will also point out that the court ignored the objective of promoting growth, affordability, penetration of wireless services in semi-urban and rural areas, while giving importance to maximising short-term revenue for the state.