The Indian government has filed a review petition in the Supreme Court in response to the Court’s verdict in the 2G spectrum allocation case, asking the court to only review the part of the order where it had deemed the ‘ first-come-first-serve’ spectrum allocation policy of the government flawed, and had directed theGovernment to follow an auction based policy. The Government has not asked for the review of the order cancelling the licences.

The Supreme Court in its verdict had said that the Government’s ‘first-come-first-served’ policy for distribution of natural resources (allocation of spectrum in this case) was flawed and had directed that ‘auction’ should have been the only method for transferring national resources, and had cancelled all licences granted to telcos on or after 10th January 2008.

In its review petition:

– The Government has said that this directive is beyond the jurisdiction of Courts, and that the Indian Constitution has made policy making an exclusive domain of the Executive.  It has also said, that the Court’s judgement that the state is bound to conduct a public auction for natural resources, is contrary to various legislations including the Mines and Minerals Act of 1957, which directs the government to follow a ‘first come first serve’ method for granting mining lease.

– The Government has also cited several other Court orders where the Courts had refused to come up with a judgement since it came in line with the legislature, deferred them to legislative judgements. It has also quoted various judgements which granted the state freedom to choose the method it desired for allocation of resources, and stated that the Court’s version of public interest was different than that of the Government, wherein it gave cheaper telecom services and level playing field more weightage over state revenue.

– The government also cited a clause from one such order where the Court had said that every legislature particularly in economic matters was essentially empiric and based on trial and error, and could not provide for all situations and abuses.

– It has also cited another case – Delhi Science forum Vs Union of India, where the Court stated that ‘awarding licenses and contracts by the state does not depend merely on competitive rates offered by parties’ and that the grant of telecom licences was a policy matter adopted by the state and the Court can neither express any opinion on the same or test it.

– The review petition also points out that the auction policy directed by the Court might also have flaws, and that the Court should review its earlier order.

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