When justice is put on hold

Ever since the Supreme Court delivered its judgment in the matter on December 17, there has been much churning in the telecom sector as the ...

Ever since the Supreme Court delivered its judgment in the matter on December 17, there has been much churning in the telecom sector as the newly emerging wireless-in-local-loop WLL operators and the already established cellular operators have been competing intensely in offering ever more attractive deals to customers. Given the timing of these bonanzas, one may give credit for this to the apex court judgment, especially because that was interpreted as a victory by both the cellular and WLL operators. By the same token, one may also blame the court for the unseemly controversy that ensued over inter-connectivity between the two kinds of operators and the unresolved question of what constitutes a level playing field between them.

To be sure, the cellular operators have claimed victory as the Supreme Court allowed their appeal against a decision of the Telecom Disputes Settlement and Appellate Tribunal TDSAT and directed the tribunal to reconsider it.

The basic or fixed service providers who have been licensed to operate WLL feel no less triumphant because the court, at the same time, declined to interfere with the TDSAT8217;s main finding that the government8217;s decision to allow WLL with limited mobility was in order. Further, the bench headed by the then chief justice of India, Justice G.B. Pattanaik, turned down the plea of the cellular operators to stay all WLL operations till the TDSAT reconsiders its decision. The only restriction the court put is that, regardless of whatever they do in the mean time, the WLL operators will be bound by the TDSAT8217;s 8216;ultimate decision8217;.

If all this sounds confusing, it is because the court verdict itself is unclear despite the enormous financial stakes. The lawyers involved in the case are divided on what will be the scope of the TDSAT8217;s 8216;ultimate decision8217;. While the counsel for WLL operators say that the decision will be limited to determining the level playing field, their opponents appearing for cellular operators say that the TDSAT will also have to reconsider their contention that the government should not have permitted the basic service providers to operate WLL, even if it is only with limited mobility. The counsel for cellular operators give this expansive interpretation of the TDSAT8217;s task mainly on the basis of what the Supreme Court judge, Justice S.B. Sinha, enumerated as issues that had been overlooked by the tribunal.

In his separate but concurring judgment, Sinha said that the TDSAT failed to notice that the government8217;s decision to allow WLL led to 8216;encroachment8217; by the basic service providers in an area meant to be 8216;within the exclusive privilege8217; of the cellular operators under the National Telecom Policy of 1999 and the licences issued to them.

More pointedly, Sinha said that the TDSAT failed to address the allegation that in a prime telecom market like Delhi, the WLL phone 8212; despite its stated limited mobility 8212; will have a range covering the entire National Capital Territory and can therefore easily substitute the cellular phone.

If the TDSAT goes by Sinha8217;s judgment, when it holds its hearings from February 24, the marketing blitzkrieg made, for instance, by Reliance Infocomm, may seem premature as the very decision to allow WLL will be reviewed. But the counsel for WLL operators rule out the possibility of the TDSAT reopening such issues because, in their opinion, the only judgment that counts is the main one written by Justice Pattanaik and signed also by Justice K.G. Balakrishnan. And this judgment set aside the TDSAT decision only on the issue of level playing field. But then the two-judge verdict did not categorically limit the TDSAT8217;s review to any particular aspect. All it said was that the tribunal should consider the matter 8216;with special emphasis on the question of level playing field8217;.

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But even if the TDSAT chooses to confine its review to the level playing field issue, there is little guidance in the judgment of Pattanaik and Balakrishnan on how exactly the tribunal should make amends. The judgment says that the 8216;main grievance8217; of the cellular operators was the tribunal did not consider 8216;several materials placed before it on the question of level playing field8217;.

The judgment takes at face value the arguments of legal luminaries P. Chidambaram and C.S. Vaidyanathan, who represented the cellular operators. The judges did not deem it necessary to specify the materials that are alleged to have been overlooked even though that is the sole ground on which the TDSAT decision has been set aside.

The court instead brushed aside the counter argument of equally eminent advocates, Attorney General Soli Sorabjee, Ashok Desai and Abhishek Singhvi. It said these lawyers 8216;strenuously urged by spinning some words from different parts of the tribunal8217;s order to contend that the issue of level playing field has been considered and answered8217;.

The closest it comes to substantiating this sarcastic remark is where it holds that 8216;the bald assertion of the tribunal that the cellular operators have already been compensated in various ways8217; cannot settle the issue of level playing field. The irony is the court also seems guilty of making bald assertions.