M.P.SINGH - (1.) THE petitioners in different writ petitions have questioned the power of the Central Government to grant licences to different non-Government Companies to establish and maintain Telecommunications System in the country and the validity of the procedure adopted by the Central Government for the said grant.
(2.) IN February 1993, the Finance Minister in his Budget speech announced Government's intention to encourage private-sector involvement and participation in Telecom to supplement efforts of Department of Telecommunications especially in creation of internationally competitive industry. 13/05/1994 National Telecom policy was announced which was placed in the Parliament saying that the aim of the policy was to supplement the effort of the Department of Telecommunications in providing telecommunications services. Later, guidelines for induction of private-sector into basic telephone services were announced and a Committee was set up to draft the tender documents for basic telephone services under the Chairmanship of G. S. S. Murthy. Ministry of Communications published the 'Tender Documents for Provision of Telephone Service.' It specified and prescribed the terms and conditions for the basic services and it also conceived foreign participation but as a joint venture prescribing a ceiling on total foreign equity so far the INdian Company was concerned was not to exceed 49% of the total equity apart from other conditions. Pursuant to the notice inviting tenders, tenders were submitted for different circles, but before licences could be granted by the Central Government, writ petitions were filed in different High Courts as well as before this Court. All writ petitions filed before different High Courts were transferred to this Court to be heard together. Telecommunications has been internationally recognised as a public utility of strategic importance. The variety of Telecommunications services that has become available globally in the last decade is remarkable. It is being realised that economy is increasingly related to the way this Telecom infrastructure functions for purpose of processing and transmission of information, which has acquired central stage in the economic world today. The special aspect about Telecommunications is interconnectivity which is known as 'any to any requirement.' Because of the economic growth and commercial changes in different parts of the world, need for inter-connectivity means that communication system have to be compatible with each other and have to be actually inter-connected. Because of this, there is a demand even in developing countries to have communication system on international standards. Even after several decades of the invention of the telephone system, in almost all countries Telecommunications was the subject of monopoly supplied with the public network operator normally being the State owned Corporation or Government Department. Then it was not thought due to different considerations that such right could be granted to private sectors denuding the right of the monopoly of the Government to maintain and run the system of Telecommunications. The developed countries first took decision in respect of privatisation of Telecom which amounted to giving up the claim of exclusive privilege over such system and this led to the transition from monopoly to a duopoly policy in many countries. India, although a developing country also faced a challenge in this sector. By and large it was realised that this sector needed acceleration because of the adoption of liberalised economic policy for the economic growth of the country. It appears that the policy makers were faced with the implications for public welfare vis-a-vis the sector being capital intensive. How the network is well maintained so as it reaches the largest number of people at a price to be paid by such users which can be held as resonable? This issue was also inter-related with the defence and national security of the nation. Different committees and bodies constituted from time to time examined the Telecom policy which could be adopted by the nation from different aspects and angles.
(3.) THE counsel appearing in some of the writ petitions questioned the validity and propriety of the new Telecom Policy itself on the ground that it shall endanger the national security of the country, and shall not serve the economic interest of the nation. According to them, telecommunication being a sensitive service should always be within the exclusive domain and control of the Central Government and under no situation it should be parted with by way of grant of licences to non-Government Companies and private bodies. THE national policies in respect of economy, finance, communications, trade telecommunications and others have to be decided by the Parliament and the representatives of the people on the floor of the Parliament can challenge and question any such policy adopted by the ruling Government. In the case of R. K. Garg etc. etc. v. Union of India (1982) (1) SCR 947 : (AIR 1981 SC 2138), a Constitution Bench of this Court said : "Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes. J. that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or straight jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has be allowed to the legislature. THE Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved." In Moery v. Dond, (1957) 354 US 457, Frankfurter, J said: "In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. THE legislature after all has the affirmative responsibility. THE Courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events-self-limitatiion can be seen to be the path to judicial wisdom and institutional prestige and stability." What has been said in respect of legislations is applicable even in respect of policies which have been adopted by the Parliament. THEy cannot be tested in Court of Law. THE courts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the country any such national policy should have been adopted or not. THEre may be views and views, opinions and opinions which may be shared and believed by citizens of the country including the representatives of the people in the Parliament. But that has to be sorted out in the Parliament. But that has to be sorted out in the Parliament which has to approve such policies. Privatisation is fundamental concept underlying the question about the power to make economic decisions. What should be the role of the State in the economic development of the nation? How the resources of the country shall be used? How the goals fixed shall be attained? What are to be the safeguards to prevent the abuse of the economic power? What is the mechanism of accountability to ensure that the decision regarding privatisation is in public interest? All these questions have to be answered by a vigilant Parliament. Courts have their limitations-because these issues rest with the policy makers for the nation. No direction can be given or is expected from the Courts unless while implementing such policies, there is violation or infringement of any of the Constitutional or statutory provision. THE new Telecom Policy was placed before the Parliament and it shall be deemed that Parliament has approved the same. This Court cannot review and examine as to whether said policy should have been adopted. Of course, whether there is any legal or Constitutional bar in adopting such policy can certainly be examined by the Court. The primary ground of the challenge in respect of the legality of the implementation of the policy is that Central Government which has the exclusive privilege under Section 4 of the Indian Telegraph Act, 1985 (hereinafter referred to as the 'Act') of establishing, maintaining and working telegraphs which shall include telephones, has no authority to part with the said privilege to non-Government Companies for the consideration to be paid by such companies on basis of tenders submitted by them: this amounts to an out and out sale of the said privilege.;