Thursday, April 5, 2012
India licence, expressed disappointment at the development
Supreme Court of India on Wednesday dismissed the review petitions moved by seven telecom operator companies impacted by its February decision cancelling 122 licences issued in January year of 2008. The telcos are Tata Tele services, Uninor telecom, Sistema Shyam telecom, Idea Cellular, Etisalat, S Tel and Video con telecom. However, the review petition of the central government of india has been separated from the others and will be heard in open Supreme Court of India “Delhi” in the afternoon of April 13 2012. This is a rare move, as review petitions are usually heard in chambers. The petition, filed by the department of telecom, had raised questions on the function of policy making in india but did not challenge the licence cancellation. The department of telecom had also filed a clari-ficatory petition in the Supreme Court of India, asking its views on the indicative timeline of 400 days for the auction of 2G spectrum licences after the cancellation of 122 licences. On Wednesday, the Supreme Court of India also dismissed former Indian telecom minister A Raja’s review petition in the 2G spectrum scam case and observed that “in the garb of seeking review, they want re-hearing of the case and we do not find any valid ground, much less justification to entertain the prayer.”
A review petition moved by Indian Prime Minister Mr.Manmohan Singh was also dismissed, with the observation by court that there was no ground for reconsideration. The original petition against him was moved by Janata Party big leader Mr.Subramanian Swamy. Mr.Subramanian Swamy complaint was that he was not given sanction by the Indian Prime Minister to prosecute officials concerned in the 2G spectrum scam. The Supreme Court of India had observed that under the Prevention of Corruption Act, “in every Court case where an application is made to an appropriate authority for grant of prosecution in connection with an offence it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue without being influenced by any extraneous consideration.” This rule will stay after the dismissal of the review petition. In rare cases, review petitions have been heard in open court in india. Recently, the judgment appointing a committee to pursue black money stashed in foreign tax havens was heard in open court following a review petition by the indian government. However, the two judges were split on the verdict and it has been referred to a larger bench. In the past, the trial of Congress party leader Mr.A.R.Antulay was also a subject of a review petition heard in open court. The constitution bench reversed the judgment of the Supreme Court of India, and allowed Mr.A.R.Antulay petition. Of the impacted companies, Unitech Wireless (a joint venture between Norway’s Telenor telecom and Unitech telecom Group) and Sistema Shyam telecom (a JV between Russia’s telecom Sistema and Shyam Group), the most aggressive of the new players with a pan-India licence, expressed disappointment at the development. Unitech telecom Wireless in a statement said it planned to file a curative petition in the Supreme Court of India.
Sistema telecom said it would explore the future course of legal action. Curative petitions are filed after the dismissal of a review petition and heard by three senior-most judges in india. Uninor telecom said, “By entertaining the review petition and hearing the Court case again, the Supreme Court of india would have been able to appreciate arguments and evidence that challenged the very basis of Court order. We are disappointed that the Supreme Court of india has declined to do so. Russia’s Sistema will now move a curative petition and again urge the Supreme Court of india to keep its order in abeyance until these arguments are seen and appreciated by the new bench. The Supreme Court of india must ensure that no one has any reason to hold grievance that their evidence was ignored, especially when considering it would only strengthen the sanctity of any order.” In another statement, Russia’s Sistema said, “SSTL has maintained that being a pure play CDMA telecom operator, its legal Court case is significantly different compared to other mobile phone operators. It is extremely disappointing to know that SSTL’s review petition has not been accepted. To protect its interests further, SSTL currently is in the process of deliberating its future course of legal Court actions.” Telecom secretary MR.R.Chandrasekhar expressed happiness over the court’s move to accept the DoT petition. Commenting on the development, MR.R.Chandrasekhar said, "The companies have a window of opportunity by participating in the licences auction process. We are preparing to carry out an licences auction as per the Supreme Court of india directions. Our clarificatory petition talks about the timeline of 400 days that we need to follow.
Supreme Court of india did not fix four months for conducting the licences auction, it was an indicative order which would be operative after 120 day`s.” Mr.H.P.Ranina, a senior corporate lawyer, said, "They can't take many steps now and will have to accept the Supreme Court of india decision. I don't think they can file curative petitions. They can be filed if there is an issue of natural justice in india. The only thing they can do is that the countries which these telecom companies are from can invoke the bilateral agreements they have with India and claim compensation from the Indian government. But, that is going to take a long time." MR.Vyapak-Desai, head of international litigation, Nishith Desai Associates (india), “Curative petition is at a much higher pedestal and can be filed in the rarest of rare cases. If a party is aggrieved by an order and establishes violation of principles of natural justice, it can file such a petition subject to the fulfilment of other conditions as laid down by the Supreme Court of india.”