Rex is Lex PDF Print E-mail
Wednesday, 19 January 2011 00:00
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The 2G scam is getting a lot more interesting, with the government coming out with a new formulation with each passing day. When he was still minister, A Raja and the law ministry said CAG was not entitled to examine ‘policy decisions’—the act of giving licences in 2008 at 2001 prices was ‘government policy’. The same ‘policy decision’ argument was also made by Raja, again after being cleared by the law ministry, to the courts, to argue that they had no locus standi. The courts rejected this argument when telecom firm STel appealed against Raja’s decisions in the Delhi high court and won the case; the government unsuccessfully repeated the argument before the division bench of the Delhi high court and the Supreme Court. This never stopped telecom minister Kapil Sibal from repeating the same point, that the CAG couldn’t examine ‘policy decisions’.

And now the government has come out with another argument, on the related case of the CVC, PJ Thomas. Thomas has been in the eye of the storm since the Supreme Court asked how he could possibly monitor the CBI probe into the 2G scam since he was a former telecom secretary and also as the Kerala government wanted to prosecute him in the palmolein import case. Instead of letting Thomas defend himself, as he has to file a reply as to why he should be allowed to remain in the post, the government has told the Court that the “question of suitability of a candidate is squarely the domain of the appointing authority … the argument about suitability of a candidate cannot be raised in judicial proceedings”—in other words, it’s a ‘policy decision’, so back off.

It remains to be seen how the Court feels about this, but there can be little doubt Thomas has a problem as the Court has asked the CBI to investigate the role of DoT officials—in the year Thomas was in the ministry, he took no action against companies that did not, as per the licence, roll out their networks; he even moved the note to tell the CAG to back off. Whether the government is technically right that its ‘policy decisions’ can’t be questioned will be decided by the Court, but surely it realises the inconsistency in what it is saying. The CAG can’t question ‘policy decisions’, nor can the courts—indeed, the Court can’t even question the suitability of candidates. So who can monitor the government’s actions? The government has already said there’s no need for a JPC since the Court was monitoring things—the same Court that can’t examine ‘policy decisions’! Rex (the king) is truly Lex (the law).


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