New Delhi: The Supreme Court on April 23 agreed to hear the Narendra Modi government’s application seeking modification in the 12-year-old judgment that made it compulsory for the Union government to allocate public resources like telecom spectrum through auction. The Union government’s application, which was filed in December 2023 but came up for hearing this week, has asked the Supreme Court to make exceptions to such a process and allow administrative allocation of resources.
The February 2012 SC judgment had come on the heels of the so-called 2G allocation scam, where the then Manmohan Singh-led Union government’s decision to sell 122 2G licences to telecom operators in 2008 on a first-come-first served basis was alleged to have resulted in losses worth thousands of crores to the state’s exchequer.
The apex court had cancelled the licences and ruled that the government is “duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.”
The BJP had hailed the judgment and used it to amplify its anti-corruption campaign against the Congress.
However, after 10 years in power at the Union government, the Modi government has moved an application seeking to modify the terms of the judgment to be able to allocate spectrum through an administrative process if “pursuit of governmental functions, or public interest so requires, or auction may not be preferred due to technical or economic reasons”, LiveLaw reported.
The Union government’s application was drafted after it passed the new telecom law in December, 2023. The new law provides for 19 exemptions to the SC order, including those for which it has moved the SC now. Both the new law and the Union government’s application in the SC have included spectrum for space communication within the ambit of administrative allocation.
Also read: The Alarming Provisions of India’s New Telecommunications Act
Curiously, despite the 2012 SC ruling, the Union government had been assigning spectrum through administrative decisions for national security and public infrastructure requirements.
The Union government’s application, orally mentioned by Attorney General for India, R. Venkataramani, before a bench headed by Chief Justice of India D.Y.Chandrachud for urgent listing, argued that the spectrum has to be allocated not only for commercial telecom services but also for “sovereign and public interest functions such as security, safety, disaster preparedness and so on”. Venkataramani went on to say that exemption from the auction rule was being sought only for non-commercial purposes like satellite communications for use by defence forces and PSUs.
The application also said that in a scenario where demand is lower than supply in non-commercial operations, auctioning may not work, and thus the Union government needed to use different methods to assign spectrum.
“Such non-commercial use would squarely fall within the scope of subserving the common good,” the application said, adding that it will stick to the auction method for all commercial purposes like allocation of 4G or 5G services.
“The Union therefore seeks the issuance of clarifications that allow the Centre to carry out the assignment of spectrum with administrative fairness. a) Issue appropriate clarifications that the Government, may consider the assignment of spectrum through administrative process if so determined through due process in accordance with law, and if such assignment is in pursuit of governmental functions, or public interest so requires, or auction may not be preferred due to technical or economic reasons,” the application stated.
It further states that without the modification, most of the government’s administrative decisions to allocate spectrum in national security or public infrastructure matters “will not be treated as final, but purely interim and provisional; subject to government’s final decision on pricing and policy in the matter.”
The CJI agreed to hear the matter, even as advocates Prashant Bhushan and Cheryl D’Souza representing the Centre for Public Interest Litigation (CPIL), one of the lead petitioners of the case, objected to the Union government’s application. Bhushan said that the 2012 judgement has used the word “must” to make auction mandatory in spectrum allocation.
However, agreeing to list the matter soon, Justice Chandrachud said, “When the case comes up, we will see what it is.”
It may be recalled that months after the February 2012 judgment, a Constitution Bench in the SC had refused to modify the judgment in September 2012. “Spectrum, which according to the law declared in the 2G case, is to be alienated only by auction and no other method,” the Constitution Bench had held in its judgment. However, the five-judge Bench agreed that other natural resources, excluding spectrum, could be allocated through alternative methods like executive or policy decisions for public good.
