Senior advocate Harish Salve stated that the court had to clarify on the timeframe specified for TRAI as the 2G licences are valid only for four months and stressed that the 400-day timeframe was unfeasible.
He also explained that the government had to reconsider the 400-day timeframe which was not feasible for telecoms. Salve also pointed out that a few companies like Tata and Sistema would stay and examine every recourse available as their was not even considered.
Below is an edited transcript of his interview on CNBC-TV18. Also watch the accompanying video.
Q: The telecom companiesí review petitions stand to have been dismissed. The governmentís petition has now been listed for hearing on April 13. What does this mean for the government?
A: Itís obvious the Court felt that the reading of the order circulated by the media had a slightly different conclusion when it said that there will be three months for TRAI and one month for the government.
The official version of the judgment which the registry made available did not contain the three-months provision for TRAI. It just said that TRAI will make a recommendation and then mentioned the one month provision for the government.
Now does it mean that itís open ended for TRAI or does it mean that TRAI must make it within three months? Because the licences are valid for only four months. So obviously the court needs to clarify this.
The government has to consider the opposition to the 400-day timeframe by telecom operators because no telecom can afford to be in limbo 13 months and wait for this exercise to be over. Thereís a lot of uncertainty and this is not going to be as easy as the government thinks it is going to be.
Q: Though the telecom secretary R Chandrasekhar said that he hopes TRAIís final recommendations will be out in about two weeksí time there is no clarity on when the final guidelines will be issued. What will happen, in your opinion, if there is a 400-day window or not?
A: It canít be 400 days. It is absurd that the licences lapse in four months while the government takes another nine months to conduct the auctions. You night as well cancel the licences today.
I donít think any company is going to hang around for 13 months to see what goes on. This request for 400 days is not going to be something which is going to go through that easily.
I donít think that telecom companies will walk away, especially companies like Sistema or even Tata. These companies want to examine the further recourse if they have by way of curative petition or something else because their case was not really considered.
Q: Thatís exactly the statement thatís been put out by one of those telecom companies that have been affected. Uninor has said that it will file a curative petition because evidence has not been recorded.
A: I wonít like to comment on Uninorís case because I am not familiar with Uninorís case. The two cases I have been associated have serious procedural issues. For the Tatas its not the money, not a question of Rs 5 crore.
But they have been branded as a defaulter and the suggestion that Docomo invested because Tata got the licences for Jammu & Kashmir and the North-East is simply not true.
And the CAG recommendation is not against the Tatas, so their application was dismissed by default. They have not even been heard in the review, so they have a point in asking to be heard before being penalised.
Sistema has said that since they were not even in the queue, there was no question of jumping the line. The other problem facing the government is huge bilateral investment treaty claims.
Q: Companies like Telenor and Sistema have said that they will appeal and go for international arbitration by invoking those bilateral investment protection treaties.
A: Absolutely, I am not surprised.
Q: Would it be fair to say that the government has got its foot in the door?
A: The government has surely got its foot in the door. Now whether that foot is squeezed out of shape or whether that foot helps it open the door is what we have to see.
It is the government, which has invited the trouble. Itís the government, which has brought the roof down on its head by complete inaction.
The government is now trying to politically resolve it by blaming the DMK or other allies. They are not coming forward with any proactive solutions.
So, the investment community has indicated that if this how the government behaves, we will retaliate in the bilateral investment treaty claims.
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