New Delhi:
The government today moved the Supreme Court questioning its verdict holding the policy of first-come-first-served in 2G spectrum allocation as unconstitutional while cancelling 122 licences saying it has entered into the exclusive domain of the executive and beyond the limits of judicial review.
The review petition contended the top court's prescription of a single method for distribution of all natural resources, including spectrum, through "auction" route is contrary to the principle of separation of powers embodied in the Constitution.
The government said the February 2 judgement cancelling the 2G licences "is liable to be reviewed since there are errors which are apparent on the face of the record" and there are other sufficient reasons for reviewing the verdict delivered by a bench of justices G S Singhvi and A K Ganguly (since retired).
While pointing out flaws in the policy of auction, the petition said there was error in the judgement that State is duty bound to follow this procedure in all cases, as no reasonable authority could hold that in all cases, natural resources must go to the highest bidder.
The government also questioned the top court for interfering into the policy decision and said the judgement in respect of the policy is "directly contrary to the settled law."
It said the remarks made in the judgement that the policy of first-come-first-served adopted in the 2G spectrum was "lopsided" and "flawed" and was not in public interest needs reconsideration.
Quoting several top court judgements, the petition said "the essence of policy-making and governance is the weighing and balancing of different values and considerations, which is the role of the executive, and it is not permissible for the court to take this exercise upon itself and engage in policy-making, both for the reason that it is not its role to do so and it does not have the expertise to do so."
"For that, the court travelled beyond the established limits of judicial review and entered the exclusive domain of the executive when it held in the impugned judgment that the policy was flawed on the ground that the court disagreed with the weight attached by the executive to the different factors underlying the decision to adopt the policy," the petition said.
The government submitted the Supreme Court had erred in holding the first-come-first-served policy as "flawed" and "lopsided" as the considerations of maximizing short-term revenue for the state outweighed promoting growth, affordability, penetration of wireless services in semi-urban and rural areas, as well as maintaining a level-playing field between existing and new licensees for 2G spectrum.
It said that in holding the policy to be not in public interest, the court's finding was "entirely contrary to the jurisprudence of judicial review, which does not permit a court to hold a policy decision to be flawed only because the court has a different view from that of the executive of what lies in public interest."
Further, the government said that within the limited scope of a judicial review, the court "ought not to have disapproved of the policy on the ground that the state could have earned greater revenue by following a different policy."
The review petition contended the top court's prescription of a single method for distribution of all natural resources, including spectrum, through "auction" route is contrary to the principle of separation of powers embodied in the Constitution.
The government said the February 2 judgement cancelling the 2G licences "is liable to be reviewed since there are errors which are apparent on the face of the record" and there are other sufficient reasons for reviewing the verdict delivered by a bench of justices G S Singhvi and A K Ganguly (since retired).
While pointing out flaws in the policy of auction, the petition said there was error in the judgement that State is duty bound to follow this procedure in all cases, as no reasonable authority could hold that in all cases, natural resources must go to the highest bidder.
The government also questioned the top court for interfering into the policy decision and said the judgement in respect of the policy is "directly contrary to the settled law."
It said the remarks made in the judgement that the policy of first-come-first-served adopted in the 2G spectrum was "lopsided" and "flawed" and was not in public interest needs reconsideration.
Quoting several top court judgements, the petition said "the essence of policy-making and governance is the weighing and balancing of different values and considerations, which is the role of the executive, and it is not permissible for the court to take this exercise upon itself and engage in policy-making, both for the reason that it is not its role to do so and it does not have the expertise to do so."
"For that, the court travelled beyond the established limits of judicial review and entered the exclusive domain of the executive when it held in the impugned judgment that the policy was flawed on the ground that the court disagreed with the weight attached by the executive to the different factors underlying the decision to adopt the policy," the petition said.
The government submitted the Supreme Court had erred in holding the first-come-first-served policy as "flawed" and "lopsided" as the considerations of maximizing short-term revenue for the state outweighed promoting growth, affordability, penetration of wireless services in semi-urban and rural areas, as well as maintaining a level-playing field between existing and new licensees for 2G spectrum.
It said that in holding the policy to be not in public interest, the court's finding was "entirely contrary to the jurisprudence of judicial review, which does not permit a court to hold a policy decision to be flawed only because the court has a different view from that of the executive of what lies in public interest."
Further, the government said that within the limited scope of a judicial review, the court "ought not to have disapproved of the policy on the ground that the state could have earned greater revenue by following a different policy."
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