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Somnath on 2G: Canít interfere with policy decisions

Feb. 3: If the political establishment is shell-shocked by the 2G verdict that by the Supreme Court’s own admission addressed policy issues, few are saying so in public.

UPA leaders did not want to play with fire a day before another court decides if home minister P. Chidambaram should be investigated to establish if he had played any role in the telecom scandal.

BJP leaders familiar with the finer points of law expressed the fear in private that the verdict could have worrying consequences for the separation of powers.

Foreign investors sounded the alarm and analysts forecast investment worth billions could be lost. Cries of foul play also arose with some of the affected operators saying other players are trying to poach their |customers.

But few would speak out on the larger issues — barring Somnath Chatterjee, the former Lok Sabha Speaker who had repeatedly spoken out against judicial activism if it threatened to undermine the legislature and the executive.

Chatterjee, who is also a lawyer, said in response to a question that the Supreme Court could not interfere with the policy decisions, not even in the name of public interest.

“Trying to appropriate executive powers can be very tempting. Well, the Supreme Court is supreme. But it cannot interfere with executive policies and decisions, even by justifying that larger public interest is involved. It has to be kept in mind that nobody is above the Constitution,’’ Chatterjee told The Telegraph from his Santiniketan residence this afternoon.

“Unfortunately, such things are happening these days. I cannot support it,’’ the former Speaker added.

(On Saturday, Chatterjee conveyed to The Telegraph that an earlier version of this article had given rise to a wrong impression. The former Lok Sabha Speaker said he had not said the Supreme Court could not interfere in executive decisions. What he said was confined to policy decisions and he had pointed out that court itself has held that it will not interfere ordinarily with government’s policy decisions nor will it substitute such policy with a policy formulated by the court.)

The two-judge bench had yesterday cited public interest and larger public good to justify its intervention while conceding that it had been held the court should not “ordinarily interfere with the policy decisions of the government in financial matters”.

The court had also said that when “it is clearly demonstrated that the policy framed by the state… is contrary to public interest or is violative of the constitutional principles, it is the duty of the court to exercise its jurisdiction in larger public interest”.

According to Chatterjee, the court’s position raises the question why spectrum licences issued between 2003 and 2008 when the public interest litigation was filed were not cancelled. The 122 licences cancelled yesterday were issued in 2008.

“Since 2003, licences were issued on a first-come-first served basis. If the apex court is so concerned about public interest, why didn’t it cancel those licences? Why did it act only against those who got them when Raja was telecom minister? If natural resources were being wasted then, why didn’t the Supreme Court take cognisance of that?’’ asked Chatterjee.

According to the judgment, senior counsel Harish Salve had contended that all licences should be cancelled if the court found that the process violated institutional integrity. But the court did not accept the argument, saying that “those who have got licence between 2001 and 24.9.2007 are not parties to these petitions and legality of the licences granted to them has not been questioned before this court”.

Chatterjee, however, said: “During the NDA government’s rule, the same first-come-first served policy was used. There was no auction… only selection. But not a single voice was heard….”

The former Speaker also raised doubts about the Supreme Court’s assertion that its verdict would not influence the ongoing 2G trial in a special court. “This spectrum matter is pending before a CBI court. But the SC is saying its ruling will have no impact on the outcome of the CBI court’s verdict. How can that happen? I have my doubts,’’ he said.
Chatterjee wondered whether courts had similarly gone beyond their jurisdiction when a ruling was issued to determine the age at which schools can admit children.

“I don’t know what special qualifications a judge can have to decide what should be the correct age for admitting children to schools… whether it’s three or three and a half. But we are witnessing such things. Can the Supreme Court or high court interfere in this regard? I find their intervention in executive decisions unnecessary,’’ Chatterjee added.