1 week ago
162
The Supreme Court on Monday agreed to hear an application from the Union government to allow the administrative allocation of “certain class” of spectrum, rather than by competitive auctions.
In ‘administrative allocation’ of spectrum, the government decides the method for selecting operators to distribute airwaves, considered a scarce resource.
The oral mentioning was made before Chief Justice of India D.Y. Chandrachud by Attorney General R. Venkataramani, appearing for the Centre.
The application filed by the Union government said spectrum was assigned not only for commercial telecom services but also for discharge of sovereign and public interest functions such as security, safety, disaster preparedness,etc.
“There are also sui generis categories of usage owing to the characteristics of the spectrum, or the nature of use, or international practices, etc, in respect of which are auctions are not technically or economically preferred or optimal [eg: in the case of captive, backhaul or one time/sporadic use],” the Centre submitted in its application.
The top law officer said none of these instances were covered in the court’s February 2012 judgment in the 2G spectrum case. He said the government wanted a “clarification” of the Supreme Court judgment.
The February 2012 judgment had held that spectrum could only be alienated via auction.
“When it comes to the alienation of scarce natural resources like spectrum, etc, the state must always adopt a method of auction by giving wide publicity so that all eligible persons may participate in the process,” the apex court had declared 12 years ago.
On Monday, the Union said it had always assigned spectrum for distinct non-commercial usages administratively at determined prices. Its application said that after the February 2012 judgment, the administrative assignment of non-commercial spectrum had been on a purely interim basis, subject to the government’s final decision on pricing and policy.
The government said it was now time to “firm up a spectrum assignment framework, including methods of assignment of spectrum, other than auction, in suitable cases to best subserve the common good”.
During the oral mentioning, advocates Prashant Bhushan and Cheryl D’Souza, who had appeared for the Centre for Public Interest Litigation (CPIL), one of the lead petitioners in the case, said the 2012 judgment had used the word “must” to show that auction was mandatory in the allocation of spectrum and no other methods could be allowed.
Chief Justice Chandrachud said the court would consider this aspect. “When the case comes up, we will see what it is,” the CJI said, agreeing to list it soon.
Months later, in September 2012, a Constitution Bench, deciding a Presidential Reference based on the 2G spectrum case judgment, had refused to disturb the judgment.
“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 on the Reference.
However, the five-judge Bench had acquiesced that natural resources, excluding spectrum, could be alienated through alternative methods other than auction for public good. That amounted to a policy decision, an executive prerogative.
