Cancellation of 122 telecom
licenses by the Supreme Court
The Supreme Court of India, in
its judgment dated 02-02-2012 in Centre
for public interest litigation and others Vs Union of India, quashed 122 telecom licenses granted in 2008 along
with consequent allocation of spectrum, after declaring them illegal. These 122 licenses thus quashed are—( a)Uninor=22;
Sistema Shyam(MTS)=21; Loop Telecom=21; Videocon=21; Etisalat=15; Idea(Idea and
Spice)=13; S-Tel=6; Tata Teleservices(DoCoMo)=3. (Note---the telecom
operators have to take license for each circle separately and hence if 22 licenses
are cancelled, it means in 22 circles the license of the company is cancelled)
Same illegality involved in the case of another 51 telecom licenses
But the same illegality was involved in the granting of a total 51
licenses and spectrum during the period 2002 to 2007. In this, 26 licenses were
granted by the NDA Government during 2004 January to May and 25 were granted by
the UPA government during June 2004 to March 2007.
Reasons for cancellation of the 122 licenses issued in 2008
The Supreme Court has quashed the 122 licenses and consequent spectrum
allotment, on the following grounds:
a)
The State should follow
constitutional principles including the doctrine of equality and larger public
good while allocating the natural resources like spectrum.
b)
The First –Come- First-
Served(FCFS) policy for allocating the licenses and spectrum lacks transparency
and provides scope to the person having the access to the Minister/Officers to
know in advance and apply immediately and thus gain undue advantage. Allotting
natural resources like spectrum in this manner is against the constitutional
principles including the doctrine of equity and larger public good.
c)
The allotment of spectrum
in 2008 was done without consulting the Finance Ministry, on the basis of the
price decided in 2001. It was violation
of the decision of the Council of Ministers taken on 31-10-2003, as per which
the price of the spectrum has to be decided by the DoT in consultation with the
Finance Ministry.(Note—in 2001, on the basis of bidding, the 4th
cellular operators were allotted pan India spectrum for Rs 1651 crore entry
fee)
d)
Such consultation with the
Finance Ministry for deciding the price of the spectrum was absolutely
necessary as per the Government of India
(Transaction of Business) Rules, 1961.
e)
Even this wrong policy of
First-Come-First-Served was further changed by the then Communications Minister by announcing the change in the last
date for receipt of the applications for licenses from 1-10-2007 to 25-9-2007,
on 10-1-2008. This enabled some of the applicants who had access to the Minister
or the DoT officers to get the eligibility conditions for the license fulfilled
in advance and thereby getting the seniority in the First-Come-First-Served
system for grant of license and spectrum.
The illegalities involved in
the issuing of 51 licenses and linked spectrum during 2004 to 2007
It is to be noted that the same
illegal principle of FCFS (First Come First Served) was followed in allotting
the 51 licenses and the spectrum during the period 2004 to 2007 and the entry
fee found by auction in 2001 was decided as the entry fee for these licenses
also. It was decided without consulting the Finance Ministry, which was
violation of the Council of Ministers decision dated 31-10-2003 and violation
of the Government of India (Transaction of Business) Rules, 1961 as per which
such consultation was absolutely necessary. Therefore these 51 licences along
with allotment of spectrum deserve to be cancelled due to their illegality.
The issue of the illegality of these 51 licenses was not
questioned before the Supreme Court
But the Supreme Court did not
cancel these 51 licenses because no body questioned about these licenses before
the Court. In fact, the Supreme Court, in its judgment dated 2-2-2012
observed, “The argument of
Shri Harish Salve,
learned senior counsel,
that if the Court finds that the exercise undertaken
for grant of UAS Licenses has resulted in
violation of the
institutional integrity, then
all the licences
granted 2001 onwards should be
cancelled does not deserve acceptance
because those who have got license between 2001 and
24.9.2007 are not parties to these petitions and legality of the licences
granted to them has not been questioned before this Court.”
Brief on the facts establishing the illegality
To understand this issue further, it is necessary to look at the fact that while allotting the license to
the 4th Cellular Operator in 2001, the procedure of bidding was
followed and the price of pan India spectrum was discovered as Rs 1651 crore on
that basis. Subsequently the question of allotting further licenses and
spectrum came up for discussion. The TRAI, in its recommendations dated
27-10-2003 has recommended for multi stage bidding procedure for issuing further
licenses, as was done in the case of 4th cellular operator
licenses and based on the recommendations. On 31-10-2003 the Cabinet decided that
the DoT and Ministry of Finance would discuss and finalize the spectrum pricing
formula. As per the Government of India (Transaction of Business) Rules, no
Department shall issue any orders which may, inter alia, involve any
abandonment of revenue or otherwise have a financial bearing whether involving
expenditure or not. Therefore consultation with the Finance Ministry for
deciding the spectrum price was absolutely necessary. It is to be noted that as per the provisions
of the Constitution of India, vide Article 14, 19(g) and 21, any procedure
adopted for issuance of licenses should be fair, transparent, in public
interest and thee selection criteria must be free from ambiguity.
Violation of the statutory provisions and Constitutional obligations
But ignoring all these statutory requirements and procedures, the DoT,
during the regime of NDA, decided in November 2003 to issue licenses and allot
spectrum based on the illegal FCFS principle with the entry fee kept at the
level of the price discovered in the bidding held in 2001 and ignoring the
statutory obligation of discussion with the Finance Ministry for deciding the
price. Even these decisions were not made public by any notification.
Original sin committed by NDA and it was continued by UPA
Thus the original sin was committed by the NDA regime lead by the BJP
and it was continued further with more distortion, by the UPA regime lead by the
Congress Party. Now the Congress and the BJP are blaming each other as the
thief. The fact is that both are responsible for these irregularities and
illegalities. It is to be noted that although they blame each other as
responsible for thee illegalities in the issuing of telecom licenses and
spectrum, they never demanded for cancellation of these illegal licenses and
spectrum allotments. It is because both of them represent the interests of the
big capitalists of India who are increasingly collaborating with the foreign
big capitalists to loot India. It is also to be noted that the media owned by
the big capitalists never projected this demand for cancellation of these
illegal licenses.
Cancel the 51 licenses also in addition to the 122 licenses
There cannot be two sets of criteria for cancellation of licenses.
Since these telecom licenses and spectrum issued after 2001 and before 2008
suffer from the same illegalities as those issued in 2008, all these licenses
deserve to be cancelled.
Nationalization is the only solution
Even if all these licenses are
cancelled and the spectrum thus available has to be auctioned, it may be
possible for the private telecom operators to form a cartel to see that the
price discovered in the auction would be very less. Whatever may be the method
of allocation, the big capitalists will find the way to see that they pay very
less for the spectrum. The only solution is nationalization of the private
telecom companies.
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కామెంట్ను పోస్ట్ చేయండి