However much Communications and IT
Minister Kapil Sibal may seek to defend the government, the
verdict on telecom licences by the Supreme Court has dealt a
severe blow to the credibility of the government, particularly
when the very edifice of the executive -- that of framing and
executing policies -- has been lambasted.
The two cases before the courts pertaining to the award of
licences for second generation (2G) telecom services and
allocation of requisite spectrum, or airwaves, seek to address two
contrasting issues, albeit on the same subject.
The one in the lower court seeks to ascertain whether or not
former communications minister A. Raja misused his powers when in
office and made personal gains from it. There is also the related
issue of whether the 13 other people accused in the case connived
But the matter before the Supreme Court was different: Whether the
Department of Telecommunications -- during the tenure of United
Progressive Alliance (UPA) government under Prime Minister
Manmohan Singh -- followed the due process in a true, fair and
transparent manner in the award of these 122 licences.
Here the Supreme Court has ruled decisively: No. With regard to
the other matter, a plea asking for its directions to conduct a
probe on the role of Home Minister P. Chidambaram, who was finance
minister then, was left to the lower court. And the lower court
Saturday said no probe was needed.
Thus far, the main defence presented by Minister Sibal is on these
lines: The UPA government merely followed the policy set by the
previous National Democratic Alliance (NDA) government. But that
argument has a major flaw and raises a fundamental question: Can
two wrongs make a right?
This is precisely what the Supreme Court has said, calling the
action taken by the Department of Telecommunications, which
functions under the communications minister, for grant of licences
"arbitrary and unconstitutional".
The fact is: If a policy followed by a previous regime is faulty,
it is for the incumbent government to set it right. There the head
of the government cannot take recourse to the fact that one of his
ministers said the policy was all right, to the extent of even
preventing it from being changed.
The court also observed that the minister "did not bother" to
consider a suggestion made by the prime minister. Now, if that act
of disobeying that suggestion results in losses worth thousands of
crores of rupees, or denies fair play to one set of players, who
is to blame?
This fundamental duty of the head of government cannot change
merely because of the compulsions of coalition politics. Here, one
has started hearing some indigestible reasoning as well, like
separating the Prime Minister's Office from the prime minister in
fixing responsibility or culpability.
Let us take a counterpoint. One of the senior ministers in the
previous regime, Arun Shourie, has argued that it is for the
executive to decide the price of a natural resource. Water, he
says, is a precious natural resource. Can it be auctioned? The UPA
government has also latched on to that. But the matter does not
end there. Fair enough!
But if the minister decided to follow the "first-come-first-served
policy" in the first place, and then advanced the last date for
receipt of applications post-facto, should his bosses (read, the
federal cabinet, presided over by the prime minister) have kept
quiet? Does this act alone not point to unfair practice, if not
indicate some mala fide intentions?
The court has also observed that Raja brushed aside not only
suggestions by the prime minister but also the observations of the
ministries of law and justice, as also the finance ministry. It is
indecision and lack of action after so much of blatant and
arbitrary misuse of powers that raises eyebrows. None can defend
But there is hope. The Supreme Court has given four months to the
regulator and the government to set the house in order. The
customer served by the 122 licencees, somewhat, has been
protected, though the cost of portability to change over to
another service provider, is not an expense that can be imposed
unduly on him or her.
There is also the question of investment -- especially by some
reputed foreign companies which are like our own state-run
enterprises -- into the affected companies. There is the need to
protect it. For them, the approval of their investment
applications and the allowance to operate in these 122 circles
after buying into the firms that were originally awarded the
licences presented enough due diligence and adequate sanction from
In conclusion, therefore, there is no denying that the image of
the government has suffered both within and outside. There is
time, not much though, to effect a course-correction. Collective
decisions -- or for that matter, the failure to act -- among those
who govern tarnishes the image of the executive far more than the
pursuits or a corrupt official or minister. Even more so when
presented with the chance to redeem itself.
Arvind Padmanabhan is
executive editor with IANS. The views expressed are personal. He
can be reached at firstname.lastname@example.org