Millennium Post

Spectrum, public interest and policy-making

In March 2012, the Wireless Planning and Coordination [WPC] wing of the Ministry of Communications and IT [MoCIT] released an order which in effect, hiked spectrum fees for community radio by more than 400 per cent. Until then, community radio stations were paying Rs 19,700 per annum. After the hike, they were to pay as much as Rs 93,000 per annum.

In spite of many letters of protest from representative associations, individual stations, and from government officials from the Ministry of Information and Broadcasting [MoIB], there continued to be a mysterious silence from MoCIT.

It soon became apparent that the silence of the MoCIT was not because of any internal issue, but in fact there was a larger freeze in the government. No one wanted to make any move on spectrum until the Supreme Court gave its opinion on the presidential reference in the context of the 2G case.

In February 2012, the Supreme Court had responded to the petitioners Centre for Public Interest Litigation and others, by saying, ‘In other words, while transferring or alienating the natural resources, the state is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.’

If uncontested, then it could be easily interpreted that all spectrum should be allocated only through the method of auction. This would be irrespective of the purpose for which spectrum would be allocated, and would definitely weaken the power of the legislature in policy-making.

Taking cognisance of this concern, the then president, filed a reference in April 2012, with a list of eight questions for the Supreme Court. Of these a five-member bench of the Supreme Court considered five questions. The first of these five questions is quite relevant:

Whether the only permissible method for disposal of all natural resources across all sectors and in all circumstances is by the conduct of auctions? The Court gave an informed opinion on this question, on the 27 September 2012, and this opinion can be considered a landmark one, since it reposes faith in the legislature to decide on the method of allocation of natural resources, and also reminds the government that the actual method of distribution, if for welfare or developmental purposes, should be within the framework of equality and common good, as enshrined by clauses in the Constitution.

The Court has three major lines of argument – it clarifies and interprets the 2G verdict; invokes and interprets Article 14 with respect to the intention of alienating natural resources and finally invokes and interprets Article 39 [b] with respect to the method of distribution of natural resources in order to further common good.

Firstly, let us consider the clarification on the 2G verdict. The Court points out that while the judgment of the Supreme Court is binding and counts as ‘law declared’ it is in fact only the ratio decidendi of the judgment which is law declared. Clearly the paragraph about auctions perhaps being the best method does not find a mention in the ratio of the judgment but only serves as a repository for the ratio.

The court also points out the use of the word ‘perhaps’ in the said paragraph to state that the Court never intended it to be taken as a blanket statement applicable across all natural resources, but simply a conclusion made at first blush over the attractiveness of the method.

Secondly, on Article 14, the Court recognises that the said Article is couched in negative terms, and does not directly confer on any rights to any individual, unlike Article 19. It is instead, an admonishment to the State to not deny anyone equality before the law. When the Article is an injunction to the state against taking certain kinds of action, it would be wrong to invoke the Article to command the state to take particular steps. Thus reading the mandate of auction into the scheme of Article 14, would be completely contrary to the intent of the said Article.

Thirdly, on Article 39[b], the Court notes that the Article is, in a sense, a restriction on ‘distribution’ built into the Constitution. However, the restriction is imposed on the object and not on the means of distribution. The underlying principle governing ‘distribution’ is the furtherance of common good.

The Court clarifies that auctions may be the best way to maximise revenue but revenue maximisation may not always be the best way to subserve common good. It has also been noted that where revenue maximisation is not the object of policy of distribution, the question of auction would not arise. Revenue considerations may be considered secondary to developmental considerations.

It is worth noting that the very next day, on 28 September, the Department of Telecommunications, through Press Information Bureau, announced that the spectrum fee for community radio stations has been waived off completely. This meant that now community radio stations pay nothing at all for either a licence from MoIB or spectrum from MoCIT.

This is just one immediate instance of how the Court opinion can be interpreted positively by the legislature to ensure that distribution of natural resources [in this case – FM spectrum] to further the common good. It is critical that the citizens of the country pay a lot more attention to this opinion of the Supreme Court, because it gives another option for people to imagine. So far, the notion of loss to the exchequer has dominated the imagination with respect to the alienation of natural resources. However, the Court reminds us that we should look at the stated policy objective when it comes to distribution of natural resources.

Seen in this perspective, there is an urgent need to relook at stated policy objectives of all media and communication policies of the Union government. The National Telecom Policy 1994, 1999, and 2012, all mention that one of the key objectives is to promote access to remote, rural and hilly areas. Clearly this is a welfare and developmental consideration, and not revenue maximisation.

The objective of the Broadband Plan is to promote development, growth, livelihood etc. The objective of the community radio guidelines is to promote development of communities. Almost every media and communication policy is welfare or developmentally oriented.

The Court’s opinion has come as a reminder not just for the government but also for the people – policies should be seen in terms of their objective, and they must respect Article 14 and Article 39 [b], without depending on the reductionist motive of revenue maximisation.

Ram Bhat is the vice-president of the Community Radio Forum.
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