|Name of the case||Centre for Public Litigation v. Union of India|
|Citation||(2012) 3 SCC|
|Year of the case||2012|
|Appellant||Centre for Public Interest Litigation & others|
|Respondent||Union of India|
|Bench/Judges||G.S. Singhvi, Ashok Kumar Ganguly|
|Acts Involved||Article 14, Article 39, Public Trust Doctrine|
In India, anyone can file a Public Interest Litigation (PIL) suit on behalf of a group of people who are threatened by their rights, usually one of the community’s weaker segments. The PILs are brought against state or public bodies in a high court that, by some act or omission, have caused a public wrong or injury. The person who files the PIL must not have a financial interest in the suit.
India wanted to usher in the 2G spectrum zone of the telecommunication as telecommunication is one the most important field in today’s world and everything now depends upon it. And spectrum, like any other natural resource is finite and scarce. There its allocation must be done carefully. The 2G spectrum case has emerged mainly due to the change in government and call for fresh applications was made by the new government for the allotment of licenses for 2G spectrum.
2-G Spectrum, Constitution, Litigation, License
The 2G spectrum case was an alleged scam that the politicians and private officials under the United Progressive Alliance coalition government in India were accused of committing. The PIL emerged in January 2008 from the Ministry of Communications and Information Technology’s misallocation of licenses / radio spectrum to provide 2 G services. The licenses issued to the private respondents were found unlawful and quashed, and subsequent allocation of spectrum to the licensees. Directions for fresh licensing and spectrum allocation for 2 G services were given based on fresh recommendations from TRAI.
Background of the case
The case Centre for Public Litigation v. Union of India (2012) 3 SCC 1 is a high-profile case whose judgement was given by the honorable Supreme Court of India. The division bench consisted of Hon’ble Justice G.S. Singhvi and Hon’ble Justice Ashok Kumar Ganguly.
Centre for Public Interest Litigation is a registered society formed by a farmer Supreme Court Justice V. M. Tarkunde that assists in conducting matters of litigation far public interest. In this case, Centre for Public Interest Litigation fought for the justice on behalf of the public. 2-G is the short form for “Second Generation” and 2-G Spectrum is the Wireless Telephone Technology for the use of Mobile Phones in India. In the year 2008, the Telecom Ministry under Mr. A. Raja issued 122 Licenses of the 2 G Spectrum to 85 companies including many new Telecom Companies with little or no experience in the telecom sector, at a price set in the year 2001. Due to limited availability for civil use and increased telecom operators, telecom firms were willing to pay a price of around Rs.11, 000crore for acquiring pan India telecom licenses. This was very evident when Vodafone bought a 67% stake from Hutch for a price of Rs.75, 000. Even if we consider the spectrum cost to be 15%, it would amount to Rs.11, 250 crore.
As of October 2007, there were 575 applications for telecom license. In spite of increase in the market value to Rs.11, 000 crore, the then Telecom minister A. Raja decided to sell in for the same price as of 2001. In this mean time, many organizations opened fake new firms for getting licenses, and these include Swan Telecom, Loop Telecom, Datacom solutions Pvt. Ltd, etc. A total of 18 companies were issued 122 licenses by DoT on First Come First Served (FCFS) basis. A lot of them in turn sold their licenses foreign players for a much higher rate. On the date of applying for licenses, many applicants were there so a notice was issued on January 10th 2008 stating that license will be given only to those who applied before 25/09/2007, on First Come First Serve Basis. Many of the operators who were friends with A. Raja were aware of this announcement and had already arranged for funds to get their licenses. In this way, the most famous 2G scam came into picture.
- Whether the policy of first-come-first-served followed by the DoT for grant of licenses is ultra vires the provisions of Article 14 of the Constitution and whether the said principle was arbitrarily changed by the Minister of Communications and Information Technology without consulting TRAI, with a view to favour some of the applicants?
- Whether exercise undertaken by Department of Telecommunication from September 2007 to March 2008 for grant of UAS Licenses to private Respondents in terms of recommendations made by TRAI was vitiated due to arbitrariness and malafides and was contrary to public interest?
- Whether the Government has the right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the Constitution?
- Whether the licenses granted to ineligible applicants and those who failed to fulfil the terms and conditions of the license are liable to be quashed?
- Public Trust Doctrine: The Public Trust Doctrine relies largely on the principle that some resources, such as air, sea, waters and forests, are of such great value to the people as a whole that making them a matter of private interests would be utterly unjustified.
- Article 14 of Constitution: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
- Article 39 (b) of Constitution: The State shall, in particular, Direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good.
1. Govt. of India v. Cricket Assn. of Bengal
Facts – The context evidence that contributed to the Supreme Court ‘s landmark 1995 judgment India on the airwaves relate to an information ministry dispute and broadcasting and the Bengal Cricket Association (CAB) on whether or not the Cricket organization had the right to grant a private agency exclusive television rights instead of on Doordarshan. In responding the dispute over the facts of the case, courts at various levels had to examine the larger issue of whether or not the Government or government-related agencies like Doordarshan could enjoy a monopoly over the creation of terrestrial signals and sole discretion over telecasting or not telecasting them. This conflict began in the early days of economic liberalization, which saw private media joining an arena that hadn’t been monopolized until then.
This dispute occurred in the context of the early days of economic liberalization, which saw the entry of private media into an arena that had till then been monopolized by State-owned media like All India Radio and Doordarshan.
Issue – Does the Government or Government agencies like DD in the present case have a monopoly over creating terrestrial signals and telecasting them or refusing to telecast them?
Can the Government or Government agencies like DD claim to be the host broadcaster for all events, whether produced or organized by it or by anybody else in the country?
Judgement – The Supreme Court held that the right to impart and receive information is a species of the right of freedom the easiest way to reach out and receive data as such is for the purpose of accessing telecommunication. “This ability to use telecasting, however, has restrictions due to the use of the public Land — viz., airwaves — is included in the practice of the right and can be managed and governed by a public authority. This limitation imposed by the nature of the public property involved in the use of the electronic media is in addition to the restrictions imposed on the right to freedom of speech and expression under Article 19  of the Constitution”.
The Supreme Court also stated that the Central Government immediate take steps to establish an independent, autonomous public authority representative of all sections and interests in society to control and regulate the use of the airwaves.
2. E.P. Royappa v. State of Tamil Nadu
Facts – The petitioner was a member of the Tamil Nadu State Indian Administrative Service. When the state chief secretary’s post fell vacant he was selected for the post and was promoted accordingly. Soon the post of Chief Secretary and First Member of the Board of Revenue are under both categories. The petitioner was appointed to that post and was entitled to the same rank and emoluments as admissible to the Chief Secretary but he did not join this post and went on leave. On the petitioner’s return from leave the post of Deputy Chairman was created for one year in the grade of the Chief Secretary and he was approved to that post. Then the Deputy Chairman in the rank of Chief Secretary for a period of more than one year is invalid. Then after that Government created a temporary post of Officer on Special Duty but he did not join it too.
In this case under Article 32 of the Constitution challenging the validity of his transfer from the post of Chief Secretary.
Issue – Whether it was violation of Article 14 and Article 16 of the Constitution of India?
Whether the respondents act in a mala fide manner in transferring the petitioner from his post?
Whether the transfers of petitioner from his job posts to other job posts were contrary to the proviso to Indian Administrative Service (Cadre) Rules, 1954 and of the Indian Administrative (Pay) Rules, 1954?
Judgement –“The Supreme Court held that the two posts were created to discharge functions requiring very large quality and advanced skills and should not be regarded as being less responsible than the top posts chosen for the petitioner. The petitioner’s vast experience in the field of commercial taxes resulted in the Government appointing him as Special Duty Officer”.
There was also no basis for the government to assign bad faith or inappropriate motives to the petitioner. The chief minister cannot be said to have committed acts of violence and coercion on the affidavit evidence, hence the entire affidavit evidence indicates that the charges of the petitioner attributing mala fides against the chief minister were groundless. For these reasons the contentions of the petitioner failed, the petition was dismissed and each party was made to pay and bear the costs.
While doing this both case analysis in the case of E.P. Royappa as “Equality is a dynamic concept with many aspects and it cannot be ‘cribbed, cabined and confined’ within the traditional and doctrinaire limits. On a positivist viewpoint, equality is completely contrary to arbitrariness. Equality and arbitrariness are in fact sworn enemies. Where an act is arbitrary, it means that it is consistent with both political theory and constitutional law and is thus in violation of Article 14”.
And in the case of Govt. of India v. Cricket Assn. of Bengal it was concluded that, we take the view that the State is the legal owner of natural resources as a trustee of the people, and although it is empowered to distribute the same, the distribution process must be guided by the constitutional principles, including the doctrine of equality and the broader public good.
Basically it was concluded that now clearly clear that the government’s act of issuing licenses in the specified manner was very arbitrary and the equality clause referred to in Article 14 of the Constitution was neglected.
The 2G spectrum scam case had left a deep and profound impact upon the economy of India. The 122 applicants who had received the licenses under the allocation scheme had charged the basic price amounts to the government by taking huge loans from India’s banks
On 21 December 2017, the special court in New Delhi acquitted all accused in the 2G spectrum case including prime accused A Raja and Kanimozhi. This verdict was based on the fact that CBI could not find any evidence against the accused in those 7 years. As per the judgement, “Some people created a scam by skillfull arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.
The judgment also had an impact on India’s socio-legal status as the government’s malafide intention was exposed as licenses were allocated that had strong links to the ministers and the telecommunications department and they wanted to make profits by selling their shares at a higher rate to foreign companies.
The above case study of 2 G Spectrum scam shows that spectrum is a natural resource and is finite and sustainable. “Since spectrum is a natural resource, it must be owned by the state, as it is a national asset and is to be used for public purposes. It was also totally arbitrary, because there was no justifiable licensing system. This was done on the first come first serve basis, no matter what the merit was and it was totally random .Therefore, Supreme Court was correct to quash the licenses issued under the 2 G network and also said auction was the only way to distribute 2 G network licenses”. The court also placed severe penalties on all those unfairly benefitting from this allocation style.
In my opinion, the Supreme Court, being the Apex court of our country have the power of judicial review, thus it has plenary powers to review any act of the government.
 1995 AIR 1236, 1995 SCC (2) 161
 (1974) 4 SCC 3