Telecom firms readying for legal battle

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A battery of legal luminaries has been hired by affected telecom firms, many of whom have tied up with international giants, to chart the next course of action after the Supreme Court ordered the cancellation of 122 telecom licences. But top lawyers see slim chance of a reversal of the judgment.

If Tata Teleservices and Allianz Infratech (P) Ltd had hired Harish Salve to give his counsel during the high-profile hearings, Idea had retained C.S.Vaidyanathan, while Loop had roped in Aryama Sundaram.

These senior advocates apart, some legal firms were also advising companies such as Hammurabi and Solomon, Amarchand Magaldas, J. Sagar and Associates and Karanjawala and Company, as per information available with the legal fraternity.

"We will study in detail the Supreme Court judgment and explore all possibilities to protect our investment," said a statement from Idea, a part of the Aditya Birla Group, adding it has been penalised just because it was issued licences 18 months later.

A similar statement was issued by the Norwegian telecom operator, which has a stake in Indian entity Uninor: "Telenor Group wants to be clear that the Uninor operations are continuing. Our intention is to fight to protect our lawful investments in the country."

But some legal experts feel the Supreme Court is unlikely to reverse its judgment.

"Review petitions have a very slim chance of succeeding, since 99.99 percent of such pleas are decided through circulation. On many occasions, they don't even come up for hearing," Vaidyanathan told agencies.

"As far as a curative petition (a plea filed after the rejection of a review petition) is concerned, that lies only when you have a ground that you were not given the chance of a due hearing and your right to natural justice has been violated," he added.

"That is not the situation in this case. So the best way forward is to participate in the due process (auction of airwaves) as desired by the honourable court to be decided by the regulator within two months."

Senior counsel K.T.S. Tulsi also shared the views expressed by Vaidyanathan. According to him, the Supreme Court judgment restrained itself from expressing or passing any adverse comments against the firms that hold these 122 licences.

"Approaching the court again may end up in drawing such comments that can affect the proceedings in the trial court," he said referring to the ongoing hearing in the Special Trial Court of the Central Bureau of Investigation (CBI).

Voicing reservation with some aspects of the 2G judgment, senior counsel Rajiv Dhawan said telecom companies that lost the licences may not participate in the fresh auction but seek to match the highest bid since they already hold those licences.

Another alternative, says Dhawan, could be that the government could fix the price of 2G licences and spectrum and let the telecom operators pay the difference between the price they have already paid and the new price.

But he also expressed his reservations with the judgment.

"It is jurisdictionally weak both on public interest doctrine and judicial review. In the past, judges have been much more rigorous in approaching the seminal questions which go to the root of the court's jurisdiction."