If the Supreme Court found fault with the “arbitrary and unconstitutional” allotment by former Telecom Minister A Raja to cancel 122 spectrum licenses, the judgment of the 2G scam Special Court on Thursday raised questions on the validity of the said decision by holding no fault with the Government’s decision to change the policy from first-come, first-served to first-pay, first-served.
While this arbitrary change of policy formed the fulcrum around which a two-judge bench of Supreme Court in February 2012 cancelled the entire lot of 122 licenses awarded on January 10, 2008, judge OP Saini had reasons to differ. The trial judge found no material on record to show that it was A Raja who unilaterally advanced the last date of filing spectrum applications from October 1, 2007 to September 25, 2007. Further, judge Saini noted there was no uniform precedent followed by Department of Telecommunications (DoT) showing the “first come first served” policy being applied to spectrum allotments.
This argument dealt a death blow to the prosecution case set up by the Central Bureau of Investigation (CBI) that Raja did not follow the first come first served policy and that he arbitrarily advanced the cut-off date to benefit certain corporate players who had applied for spectrum licenses. The CBI alleged that Raja acted in concert with the beneficiaries of licenses by allowing the same to be granted to those players who pay the license fees by the revised cut-off date of September 25, 2007. As a quid pro quo, CBI alleged that Raja's party Dravida Munnetra Kazhagam (DMK) received a windfall of Rs 200 crore from DB Reality, which staked claim for licenses in the name of Swan Telecom.
Banishing the entire conspiracy, the trial court held, “The concept of priority from time/date of payment was introduced by the officers of DoT and not by Raja.” Backing the revised criteria of DoT to award licenses to those who show up with the money, the judgment said that if first come first served was to apply, a “non-serious player who had no financial resources would block the way of a serious player by claiming early mover advantage. This was the main disadvantage of determining seniority by date of application and as such it was injurious to the interest of serious players, who had the financial resources to execute the telecom project.” This argument tuned the SC judgment on its head as the decision to cancel licenses was founded on the premise that first to pay criteria amounted to changing the rules midway.