‘No intention to seek change of 2012 SC ruling, only to inform court’

The government through its latest application did not have any intention of seeking a change in the Supreme Court order of 2012, which ruled that frequencies had to be auctioned as they were a national resource, a senior official said.

“We just wanted to keep the court informed. That purpose is served. There was no prayer to change the judgement,” the official said.

The Supreme Court registrar last week didn’t accept the government’s plea for allowing the administrative allocation of spectrum in some special cases.

The registrar said the government was seeking a review of the 2012 order in the 2G case “in the guise” of seeking clarifications and said the move was “misconceived”, adding that there was no “reasonable cause” for entertaining the plea and that too after a lengthy period of time.

“I refuse to receive the present miscellaneous application (MA), as it does not disclose any reasonable cause for being entertained,” Pavanesh D, registrar, judicial listing, said in the order that ET has seen. “Accordingly, it is declined to be received under the provisions of Order XV Rule 5 of the Supreme Court Rules, 2013.”

The statement elaborated on the reasons for this.

“From a perusal of the prayer made in the MA, it is clear that the applicant intends to seek for review of the order passed by the SC in the guise of filing the present application,” it read.

“When the application is considered keeping in mind the principles laid down by this court, supra, it is clear that the same is not maintainable and it does not disclose any reasonable grounds to be entertained,” the statement said.

The registrar also cited the interval since the 2012 ruling.

“Applicant is again attempting to obtain rehearing of the matter in open court after a long lapse of time, in the guise of filing the present application with a similar prayer which was already made in the review petition filed by the applicant,” the registrar said in the nine-page order. “In any event, the prayer sought for by the applicant in the present form cannot be permitted.”

The registrar pointed out that a review petition had been withdrawn at the time.

“I am of the considered view that the application is misconceived and liable to be declined to be received,” the registrar said. “The emphatic pronouncement in the judgment of February 2, 2012 does not entitle the applicant herein to file an application of this nature seeking clarification of the judgment… more so, when the review petition filed on behalf of the Union of India seeking review of the law (laid) down by the SC was withdrawn on May 10, 2012.”

The court has said that applications in the guise of a review cannot be countenanced.

“Post-exercise of constitutional remedy against the SC judgment and withdrawing the review petition does not now entitle the applicant to file the present application, which has no mandate in law,” the statement read. “The application, in the nature of clarification, in effect, seeks review of the judgment after lapse of over 11 long years, which is impermissible in law.”

Review and curative petitions filed by the Centre and companies including Tata Tele, Sistema Shyam, Idea Cellular, Unitech Wireless, Etisalat DB Telecom as well as former telecom minister A Raja were dismissed by the Supreme Court in 2012 and 2013.

The government had, in its application filed in December, stated that the assignment of spectrum was required not only for commercial telecommunication services, but also for non-commercial use for the discharge of sovereign and public interest functions such as security, safety and disaster preparedness, and spectrum for space communications.

In the new telecom bill, the government has said that spectrum to be used for satellite communications will be assigned administratively, or without auctions.

“Issue appropriate clarifications that the government may consider the assignment of spectrum through administrative process if so determined through due process in accordance with law, and if such assignment is in pursuit of governmental functions, or public interest so requires, or auction may not be preferred due to technical or economic reasons,” the application had stated.

Auctions as the exclusive mode of distribution of this crucial infrastructural asset may create some issues in assignment in cases of captive use, radio backhaul or one-time or sporadic use, it added.

The government’s plea had come in the wake of a 2012 verdict by the apex court and a presidential reference that had prescribed competitive auctions for distribution of natural public-owned resources such as spectrum.

In 2012, the top court had set aside the 122 spectrum 2G spectrum licences that were allotted on a first-come-first-served basis. It held that for spectrum and all natural resources, auctions would be the only method for allocation that would fulfil the constitutional requirements of fairness, equality and transparency guaranteed under the Right to Equality enshrined in the Constitution of India.

The 2G scam, which rocked the Manmohan Singh-led UPA government in its second term, involved an alleged loss of Rs 30,984 crore and a presumptive loss of Rs 1.76 lakh core in the allocation of 122 2G licences to telecom companies.