Kapil Sibal takes on judges, says let the court allocate spectrum, explain its orders

Written by Maneesh Chhibber | New Delhi | Updated: Feb 26 2013, 16:12pm hrs
On a day when the UPA governments renewed effort to attract bids from telecom companies for the ensuing auction of 1,800 Mhz and 900 Mhz spectrum drew a blank, Union Minister for Communications and Information Technology Kapil Sibal said that if the court were to take upon itself the responsibility of allocating spectrum in the public interest, in whichever manner it deems fit, it may serve us better.

With investor interest in Indian telecom showing no signs of revival, especially after a spate of adverse orders by the apex court affecting telecom companies, Sibal, in an interview to The Indian Express on Monday, said since courts want the government to be transparent while passing orders, it would not be wrong to expect courts to give full reasons for their decisions.

On the apex courts recent order directing telecom companies which were unsuccessful in the spectrum auction or had not participated in the auction process to stop operations forthwith, the telecom minister said: I have gone through the February 15 order. I was puzzled because the court, in its order, sets out the history of the matter; then sets out submissions made on behalf of the Union of India, on behalf of the public interest litigant and the respective private parties. And then, in the penultimate paragraph, the court states that it has considered their respective submissions and issues certain directions. There are no reasons given for those directions.

Elaborating, he added: Courts expect governments to be fully transparent in their reasoning; every noting in the file must reflect some logical process of decision making. Courts scrutinise government files to discover the basis of decision making. If transparency is expected from government, it must follow that courts should give full reasons for their decisions, including a particular direction when being issued. That is a legitimate expectation. However, we are bound by orders of the Supreme Court and must implement them.

Stating that millions of consumers had lost connections in this process, Sibal said: Whether a particular entity participated in a particular auction or not depends on market forces and its model of doing business in India... If it chooses not to participate, it is free not to. There is no law under which a particular entity must participate in an auction. By not participating, no law is infringed. To ask that entity to close down its business impacts consumers negatively. This should be a matter of concern for the court as well. But, as I said, we are bound by court orders. We cant question them. The orders of the Supreme Court have to be implemented.

Asked for his views on the growing perception, voiced most recently by President Pranab Mukherjee, that courts are interferring in the domain of the Executive and the Legislature, Sibal said: I firmly believe that courts are as much concerned with national interest as all of us and courts intentions are bona fide. But, good intentions dont necessarily make good law because the nature of decision-making in court is different from decision-making in government. While courts may have their own perception about a particular policy, those perceptions, when implemented, may not result in sound judicial orders. This is where I think courts have gone wrong. With the best of intentions, courts think that a particular course of action is in the larger public interest, whereas the larger public interest with reference to policy matters is the responsibility of the government.

On the impact such orders have on India, Sibal said: This country is integrated into the global economy and, therefore, global investors are ready to invest in our infrastructure sectors, including telecom. Of late, bona fide global investors are somewhat uncertain about the fate of their investments made with legitimate expectations. If in the course of such uncertainty, these investments take a beating, the Indian economy will be hurt.

He added: India is a good market for FDI and we must all be circumspect that we dont do anything with the best of intentions to stall the Indian growth story. Uncertainty seems to have set in in the telecom sector, which doesnt augur well for us. We are trying to revive a sector that is in debt in excess of Rs 2 lakh crore. We tried to reverse the sentiment. Unfortunately, in the prevailing circumstances, we are bound hand and foot. If the government doesnt have enough free play at the joints to decide on a particular course of action for a sector, then I think we will have to rethink the role of institutions and the contours of their jurisdiction.

While stating that it is the duty of the court to set aside the allocation of any licence with respect to any commodity if it is coloured with acts of corruption, Sibal said: The problem is that whereas the government is accountable, to the legislature, to the people and to the courts, the courts in turn must, while performing their function, also be circumspect that under the scheme of the Constitution, though they are the final arbiters of law, they shouldnt willy-nilly do something beyond the contours of their jurisdiction. This is particularly true when judgements of courts are the final arbiters of the nations destiny. I think we need to introspect that a complex country like India can only move forward if all institutions exercise a level of restraint consistent with national objectives. That applies to everybody. We cant play a fair game of cricket without rules.

Sibal said that while he didnt want to comment on the manner in which courts should decide cases, one thing that is clear is that courts must not get into policy that is the domain of the Executive.

Even the Constitution Bench has, in clear terms, opined that matters of policy must be left to government, especially matters of economic policy. At the same time, government policies must be transparent. The court, in its 2G order, seems to have come to the conclusion that auction is the only way to allocate spectrum. Whether auction is the best way depends on the nature of the frequency to be allocated, the time at which the spectrum is to be allocated and other factors, including, the nascent use of a particular band of spectrum. There are so many variables that decide what mode must be followed. This is a very complex exercise, said Sibal.

There is a perception, which is unfortunately sometimes shared by the courts too, that most government decisions are made on an ad hoc basis. My personal view is that the nature of government is such that it is rare that ad hoc decisions are taken. The ministerial exercises involves all functionaries and different points of view are discussed and deliberated. The final policy prescriptions emerge after about a year or so (of such a process)... The perception that the government invariably acts in an ad hoc manner and its decisions viewed as if there are motives is not an appropriate way of analysing government policies. Where favoritism is writ large, courts must intervene. This may be true in some cases. In most cases, this is far from the truth, he added.