It could get worse for the telecom arbiter before it gets better. The three-member Telecom Disputes Settlement and Appellate Tribunal (TDSAT), which is the adjudicatory body for mobile operators on disputes with the government, among themselves or with the regulator, has been functioning for the last one year with just two members. With a split verdict recently on the 3G intra-circle roaming issue, the government galvanised itself into action and now says the third member is in the final stages of being appointed. However, the fact is that its chairman justice SB Sinha is set to retire in November and the other member, PK Rastogi, superannuates in February.
Considering that the body has been without the third member since July 2011 when GD Gaiha retired, one can easily expect the tribunal to be without its full quorum for at least another one and half years. In fact, it?s quite possible that for some months the tribunal is without a chairman and would function with just one member. This would mean either delayed verdicts on sectoral issues or split verdict-like situation, which doesn?t really help anybody?s case. The best-case scenario would be a few months ? between the appointment of the new member and retirement of the chairman ? which can be described as the golden period as whoever gets a verdict during this time would be the fortunate ones.
Analysts say that the reasons for the delay is just a lack of prioritisation on the part of the government. ?It doesn?t act on time on the selection process, or why else do such delays not take place in the case of selection of either members or chairmen of the Telecom Regulatory Authority of India?? asked an analyst.
Sources in the government say that such delays in appointments in crucial bodies signifies that paralysis from the policy domain has now shifted to pure administrative measures also. ?Such delays in appointments would only increase the burden of the Supreme Court because matters which could have been settled at the tribunal level would increasingly go to the SC,? said a retired government official.
A clear-cut process is laid down for the appointment of TDSAT members. There is a selection committee headed by the chairman of the TDSAT, with the secretaries of the departments of telecommunications (DoT) and personnel and training, and the vice-chancellor of Delhi University as members. An applicant needs to have the requisite experience and expertise in the field of technology, telecommunications, industry, commerce or administration. If from the government, the applicant needs to have served at least two years as secretary to the government of India. Generally, retired secretaries have been members of the tribunal.
The appointment of the chairman is done by the government in consultation with the Chief Justice of India. The person needs to be a retired Supreme Court judge or a high court chief justice.
The 3G intra-circle roaming issue is an apt illustration of the kind of uncertainty and paralysis a split verdict can cause when the tribunal is short of its quorum.
Operators like Bharti Airtel, Vodafone and Idea had entered into pacts to provide services in those circles where they did not have 3G spectrum, which the government ruled illegal. The operators moved TDSAT and obtained a stay order. After a few months there was a split verdict with the chairman saying such pacts are legal and the other member categorising them as illegal. Now the operators interpret the split judgment to mean that they can carry on with their roaming services, while the government is of the view that it is fully in the right to stop them. Files have been moving back and forth between the DoT and the law ministry to have some sort of consensus and legal backing on the matter, with no final decision till now.
