2G case: Uninor counsel explores basis for review petition

Excerpts from India Business Hour on CNBC-TV18 Watch the full show »

CNBC-TV18's Shereen Bhan spoke to Ajay Bahl of AZB Partners and counsel for Uninor on the Supreme Court's order on the 2G licenses and what the trial court had to say when it dismissed Subramanium Swamy's plea against Chidambaram's alleged role in the 2G scam.

She asked him about the changes in the Supreme Court order with relation to the time period for TRAI to come up with its recommendations. Bahl says there are two separate issues - What is responsible for the alleged loss to the nation is the FCFS and the TRAI recommendations which were accepted by the Government of India.

Below is an edited transcript of his interview. Watch the accompanying video for more.

Q: There was a two month period stipulated. However the order on the Supreme Court's website does not have that anymore but it does say that the SC order will be operational in four months?

A: There was a change, we all heard it in court, so we were not very clear on why and what was the reason for the change, but the hope is that the process that TRAI has to follow will be completed within the two month process which is the expectation.

Q: If it is not then these licenses stand quashed at the end of the four month period. What happens then?

A: I guess we are all expecting that something will need to be done. We are all preparing ourselves for having to approach the Supreme Court.

Q: What could be the grounds for a review petition at this point in time?

A: Very importantly, we have to understand very quickly the four reasons that the Supreme Court held what it did and that will give you the basis you will see for yourself where the grounds of review will emerge. The first thing they did was they said that the TRAI recommendations of August 2007 are unsustainable, lopsided, arbitrary, did not take into account that they themselves had decided about the need for spectrum efficiency.

Actually, if you read the TRAI report it is well-founded. You may disagree with it, but it gives very good reason for why they decided affordability, rural density, level playing fields, so they gave their reasons.

Importantly, it's nobody's case that TRAI was in anyway influenced by the applicants. The then TRAI is not accused of anything. So, they gave this objectively and that is the basis on which this happened. Second is the FCFS, that it was in place and therefore it was arbitrary, fundamentally flawed. That has been continuing and licenses have been granted under that as late as 2007.

So, when we talk about 2001 prices, its not really 2001, those prices have continued till 2007. Third they said that Mr Raja the minister did not take the consent of the ministry of finance because he knew that the finance secretary had objected and they make a reference to a letter from the finance secretary.

Q: And that's not what Judge Saini's order says?

A: That's exactly the point, and this was not before the Supreme Court. Judge Saini says that he has evidence which he has examined which suggests that around late January which is before the licenses were granted, the then FM approved the rates. So, that fundamental - if that is true it was certainly not before the court.

So, the LOIs, just in terms of dates January 10 LOI, licenses were granted only at the end of February. So, there was enough 45 day window for government to have re-examined everything and EVEN if the government wanted to pull the LOIs they could have done so.

Q: Which was Subramanian Swamy's case anyway.

A: Now comes the fourth issue. The tweaking, the implementation, change in the cut-off date and the manner in which the FCFS was implemented - that you come and pay the money and you will get the license. It's very important to separate them into two parcels. What is responsible for the alleged loss to the nation is the FCFS and the TRAI recommendations which were accepted by the Government of India.