When babus decide cases

The divide in the TDSAT on this politically sensitive issue between the judicial member and the two non-judicial members seems to vindicate the concerns expressed recently by Chief Justice V.N. Khare in the context of the newly-constituted Competition Commission. Since the Competition Commission is meant to perform quasi-judicial functions as well, Khare slammed the government for its move to appoint a bureaucrat as its chairman. The implication of Khare’s attack was that only a judicial member could be trusted to display independence and the expertise to adjudicate. To be fair, several ex-bureaucrats are reputed to have performed creditably as members of tribunals. But R.U.S. Prasad and P.R. Dasgupta, the TDSAT members who upheld the government’s decision on limited mobility, do not seem to belong to that category. From the viewpoint of judicial rigour, their judgment compares poorly with that of Justice Wadhwa, the verdict they overruled.

Consider the conflicting rulings on what was surely the most fundamental contention of cellular operators. That the licence given to cellular operators was not a largesse. Rather, the licence agreement was a contract that was binding on both sides. Especially because, on the basis of the assurances given to them by the government through the licence, cellular operators invested thousands of crores over the years. So, they alleged that their contractual rights were breached by the government’s subsequent decision to let WLL operators provide the same service under the guise of limited mobility.

Agreeing with the argument that the licence was a contract, Justice Wadhwa ruled that cellular operators had “legitimate

expectations that the licence agreement which is a solemn document would not be breached.” Accordingly, he held that the mobile service granted to WLL operators, “howsoever limited”, was in breach of the government’s licence agreement with cellular operators. Wadhwa also said that the express terms of the licence could not be given “a different meaning by referring to high-sounding words like ‘march of technology,’ ‘fast changing developments in Telecom Sector’.”

How do Messrs Prasad and Dasgupta counter this judicially reasoned finding that the licence was a contract? Simple, they don’t say a word on whether the licence was a contract or not. Instead, treating the licence as a largesse, they ruled that the government had the power to unilaterally modify the terms of the licence. They said this on the basis of an enabling clause which provided that the licence could be modified in the interests of the general public. As a corollary, the two members held that there was “no hard evidence to believe” that the government’s decision regarding limited mobility was against public interest. Thus, in the name of public interest, the TDSAT decided in favour of one private interest glossing over the contractual rights of another.

What is even more dubious about the majority verdict is its attempt to discount Justice Wadhwa’s detailed indictment that the government’s sudden decision was based “on extraneous considerations”. The two members acknowledge “the extraordinary speed of the decision-making.” But then they assert that to establish mala fides, “one has to have more concrete and substantial evidence.” It remains to be seen what the apex court will say on the specious reasoning applied by the TDSAT’s non-judicial members.