The government is veering towards the idea of making a Presidential reference to the Supreme Court to seek clarity on the implications of its judgment cancelling mobile licences granted by former telecom minister A Raja in January 2008.
Under Article 143 of the Constitution, the government can make a Presidential reference to the Supreme Court on matters of law and public importance. The SC, after hearings, reports its views to the President.
Sources in the department of telecommunications said the idea has gained currency because at a recent meeting telecom minister Kapil Sibal had with senior officials, the idea of filing a review or a curative petition on the matter did not find favour. ?The majority view was to make a Presidential reference,? a source present at the meeting said.
A curative petition is generally filed by an aggrieved party which feels there was an error on the part of the court; so it requests the court to have a relook. Similarly, in a review petition, an aggrieved party may feel that some of its arguments were not considered by the court and, therefore, requests it to consider. Officials said Sibal was advised that it would not be proper for the government to resort to these two options. If private sector companies affected by the order opt for these routes, the government may become party to it.
However, the issue of Presidential reference becomes important as there are several issues on which the government needs to seek clarity from the court. One, the court has not specifically mentioned that 122 licences granted by A Raja be cancelled.
The Court has said that all licences/spectrum granted after January 10, 2008 should be cancelled. This complicates the matter as Tata Teleservices was given dual technology licences after that date. Even some other companies granted licences prior to 2008 were allocated spectrum after January 10. ?We need clarity on these issues,? the official said.
The other issue is the court criticism of the first-come first-served policy of allocating licences. Before Raja, 56 licences were granted during 2004-2007 through this policy. The whole migration of fixed line operators into united access service licences (UASL) happened without auctions and the 35 dual technology licences granted by Raja in 2007 were also without auctions.
The government also hopes to seek clarity on the methodology for allocating natural resources in other areas, since the court said auctions were the best way to allocate natural resources.
Officials said as per the SC order, licences must be cancelled in four months. ?What should we do? Do we stop affected companies from acquiring subscribers in the interim or let them go on with their pitch? Can there be a gap between the cancellation of their licences and holding of the auctions? These are questions on which clarity can come only through a Presidential reference,? the official said.