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Notice (8): Undefined variable: urlPrefix [APP/Template/Layout/printlayout.ctp, line 8]latest-news-updates/put-transparency-first-mj-antony-13863.html"/> LATEST NEWS UPDATES | Put transparency first-MJ Antony | Im4change.org
Resource centre on India's rural distress
 
 

Put transparency first-MJ Antony

Unlike in some countries as the US, the judges of the Supreme Court of India sit in some 13 Benches and deliver judgments. Each judgment is taken as that of the court. One Bench might take a harsh view on a subject while another may be lenient.

This was evident from two judgments delivered by two different Benches on the simmering issue of the “first-come, first-served” (FCFS) policy. One dealt with FCFS in the context of the 2G spectrum scam. The other referred to the allotment of residential plots in Bhubaneswar. Even as the 2G judgment stated that the FCFS policy was totally unacceptable, the Bhubaneswar decision pointed out how the policy could be made legal with sufficient riders in the terms of the tenders.

The government is still reeling from the impact of the 2G ruling. Not confident of the outcome of the review petition it has filed, it is fiddling with the idea of making a presidential reference to the Supreme Court. Both are desperate measures that involve risks. Review petitions are normally dismissed in chambers by the same Bench that delivered the original judgment, unless there is some “error apparent on record”. It is difficult to show the judges that they have made gross mistakes.

The presidential reference also carries hazards since the court can return it without giving an answer. The court is not bound to respond to every question. When the president referred questions involving religion and history in the Ayodhya case, the court declined to go into them.

The 2G Bench shut the door to the FCFS policy. It said, “Everything was stage-managed to favour those who were able to know in advance the change in the implementation of the policy.” There is a fundamental flaw in the policy, and it has dangerous implications. “Any person who has access to the power corridors may be able to obtain information from the government files and he would immediately make an application and would become entitled to stand first in the queue at the cost of all others who may have a better claim.” (CPIL vs Union of India)

The judgment delivered by a co-equal Bench of two judges a day earlier, Bhubaneswar Development Authority vs Adikanda Biswal, agreed with that view but stated that the FCFS policy can be salved by adding certain conditions in the tender. No multinational corporations were involved here, but only allottees of 45 residential plots in the state capital. Thus, the case did not make waves.

The allotment was done according to the FCFS policy. On the first day itself, 58 applications with full payment was received, a sure sign that the policy had been leaked out at the department level or in the advertisement sections of local newspapers. Soon the policy was assailed in the media, dubbing it as a “millennium deceit”. The state government then cancelled all allotments, returned the deposits to the aspirants and called for new applications under a “lottery scheme”. This led to litigation in the high court and the Supreme Court. The main question was whether the FCFS policy was proper.

The judges were, of course, suspicious of the FCFS policy. But they said: “We are not taking the extreme stand that in all situations the FCFS method be not followed, but sufficient safeguards have to be taken.”

They gave one example in which the policy could be approved with conditions. The Haryana Urban Development Authority followed the FCFS policy with a rider. The terms were as follows: “All applications received within a block of one month shall be treated at par. However, submission of application will not entitle an applicant for allotment of industrial plot. The allotment shall be made after due assessment of the project report and the financial viability and usefulness of the project and other merits of the applicant as decided by the committee constituted for the purpose.”

Such conditions will make the process transparent and preclude any charge of favouritism, the Bhubaneswar judgment said. Therefore, the FCFS policy is not beyond redemption. The judgment in the 2G scam, which came a day later, read as if the FCFS should be totally avoided. This led to muddled responses from the government, asserting freedom to adopt any method it thought was appropriate to distribute natural resources.

If the government is adamant on the FCFS policy, the least it can do to save its face is to hedge the offer by conditions that would be transparent and legally sound. The government has a variety of such options like auction, lottery or even private negotiations in exceptional, urgent cases.

The government should also take heart from several judgments that assured that the court would not interfere with its freedom in such matters unless there was blatant discrimination in the selection process. It is well to remember, before rushing to the court with review and references, that bad cases are said to make bad law.