The government also filed a petition today suggesting that the judiciary is getting involved with policy-making, a prerogative of the government. In its verdict that nullified Mr Raja's decisions, the court had ruled that spectrum and other natural resources cannot be allotted on a first-come-first-serve basis, because that guideline is "fundamentally flawed." The court then ordered the new telecom licences to be sold on the basis of an auction. The government's review petition today said policy involves the balancing of "different values and considerations." This job, it stressed, belongs to the executive and "it is not permissible for the court to take this exercise upon itself... both for the reason that it is not its role to do so and it does not have the expertise to do so."
The government has been at pains to make clear that it is not challenging the cancellation of the 122 licences. But it contented today that that there cannot be a flat rule that in all cases, natural resources must go to the highest bidder. In the case of telecom licences in 2008, it said, the government was focusing on making cellular services available at the cheapest rates for Indians in not just cities, but semi-urban and rural areas.
Earlier this week, Tata Teleservices filed an appeal in the Supreme Court against the cancellations of its licences in three circles; several other telecoms are expected to follow suit.
Another petition filed yesterday by the government explains that the process of reallocating the cancelled licences will likely take 400 days. In its order, the court had told the government to complete the process within 120 days or four months. The Supreme Court's order makes the 122 licences invalid starting June 2. The government in its petition filed yesterday states that because an auction cannot be held by then, nearly 70 million cellphone subscribers will be left in the lurch (Customers who have been with an operator for more than 90 days are entitled to switch immediately to a different mobile company).
The government also wants the Supreme Court to reconsider another verdict it delivered recently related to the telecom scam. On January 31, the court said that the Prime Minister's office was wrong to have kept Subramanian Swamy waiting for 18 months when he asked for permission for the prosecution of Mr Raja on corruption charges. Because Mr Raja was then a union minister, the Prime Minister's consent had to be sought for proceedings against him. Mr Swamy is Janata Party president; his different petitions on the telecom scam have been partly responsible for the mammoth investigation that has been launched into how licences were fraudulently allotted.
The Supreme Court ruled in Mr Swamy's favour and said that Parliament should consider introducing a four-month deadline for any request seeking sanction of the prosecution of a government servant. In its review petition, filed yesterday, the government has said that sanction cannot be given before a court takes cognizance of the charges against the government servant in question. So the government is seeking review of the court decision upholding the right to get sanction for prosecution of public servants even before a complaint is filed.
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