The Telegraph
Since 1st March, 1999
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Cell firms not privy to files
- Supreme Court partially stays telecom tribunal order

New Delhi, April 25: The Supreme Court today partially stayed an order of the Telecom Dispute Settlement and Appellate Tribunal (TDSAT) directing the Union government to submit files and notings on the government decision allowing wireless-in-local-loop (WiLL) services.

Issuing an interim stay order, a division bench comprising Justices Y. K. Sabharwal and H. K. Sema said that since the government claimed “privilege” over the files and file notings, the copies could not be given to other cellular operators as parties to the case and that the TDSAT could alone peruse them to decide the case.

“We stay the direction of the tribunal to the extent that it required the Government of India to give copies of the records, in respect of which it had claimed privilege, to the opposite parties,” the apex court said.

On April 17 the government had challenged the TDSAT order which directed it to give cellular operators copies of certain sensitive documents relating to the contentious WiLL issue and said disclosure of such papers would harm public interest.

Of the three documents, on which the government had sought privilege, two were internal notings and the third consisted of minutes of a meeting of secretaries.

The issue before the Supreme Court was “whether disclosure of secret notings in government files, for the perusal of adjudicating body is adequate or disclosure be made to the litigating business rivals” also.

“The TDSAT rejected the Union of India's claim of privilege without considering the fact that the documents in question belong to a class of documents, disclosure of which would injure public interest,” the petition said. The Centre said its appeal against the TDSAT order was filed on a “point of principle so as not to set a precedent that may harm the administration and policy making subsequently in all departments and ministries of government”.

Its contention is that once this is made a precedent, then in all other cases involving government’s policy decisions and administration, files and notings relating to the disputed subject would continue to be summoned by an adjudicating authority.

“The Union of India claimed no such privilege to prevent a court of law or an adjudicating authority to look into the records,” Centre’s application said.

In its order, the TDSAT had made it clear that at a time when allegations of extraneous considerations or mala fide had been made against the government decision to allow WiLL much to the infringement of “level playing field” of other cellular operators, it was “appropriate” that any claim of privilege, even if there was one, should be waived and that the files relating to the award of WiLL should be submitted for the proceedings so that they would be made available to other parties also like in any case.

The cellular operators had also given an undertaking that they would not seek inspection of the files of the tribunal containing records on which the government had claimed privilege.

The documents relate to the decision making process of DoT after the National Telecom Policy 1999 was announced by the government. The cell operators have claimed that DoT had stated in September 1999 that basic operators could not offer mobile services of any kind limited or unlimited.

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