Government files that explained how and why the telecom department changed its policy on limited mobility phones have now become a bone of contention.
What so far was an open fight between cellular operators and those running limited mobility phone services has now become a contest between the government and the cellular operators.
And all this largely because of the controversy over privileges and secrecy surrounding the government files.
The government is against making the relevant files public because that will mean sharing classified information with cellular phone operators, who are now fighting the telecom department over the policy change.
Even the law that guarantees right to information exempts notings and comments of officers on government files from its purview.
The Telecom Dispute Settlement and Appellate Tribunal, however, ruled against the government and ordered that it must make public all the government documents on the issue. The government has decided to file an appeal against the TDSAT order with the Supreme Court.
But the issue here is not just sharing of information contained in those files with cellular operators. The larger and more relevant question is: Should government files and the notings made by officials and ministers on them be treated as classified information, not to be shared with everybody?
Government files have always been freely shared with members of Parliament. Even specific comments made by officials and ministers are discussed by members of Parliament when they scrutinise government action. Government officials are even asked to present themselves before these parliamentary committees to defend or explain their decisions and comments made in the files.
The two joint parliamentary committees that probed the securities scam during the last decade not only used such information contained in official files, but also made it public by quoting from it extensively in their final reports.
The parliamentary standing committees, attached to different central ministries, also follow the same principle.
Many of the issues examined by these parliamentary committees pertain to the response of government officials and ministers to commercial decisions taken by public sector companies or banks. Manmohan Singh was accused of not having initiated prompt action against Harshad Mehta.
Montek Singh Ahluwalia was accused of not having acted quickly on a warning issued by G V Ramakrishna, the capital market regulator at that time. Both Singh and Ahluwalia had to defend themselves and their actions before the parliamentary committee. And all their actions were widely reported and became public.
The government's defence in the current telecom row could be that sharing classified information with parliamentarians is not the same as sharing it with companies, which are challenging a government decision before a quasi-judicial body or a court of law. Parliament obviously is supreme and no one can claim the privilege of classified information when an issue is being examined by one of its committees.
An important criterion that the government might have used to take a view on this issue is the nature of the dispute. Was this a commercial dispute? Was this about one company or a consortium of companies losing a contract to a rival and then seeking a quasi-judicial body to adjudicate the government's correctness in awarding the contract?
If indeed it was a commercial dispute of that nature, then there would be some merit in the government's argument that officials' notings on government files should not be made public.
But if one takes a close look at the ongoing telecom controversy, it would appear that this is not a commercial dispute. The cellular operators are not fighting to regain a contract that they have lost to those who are running the limited mobility services.
In fact, they are simply objecting to the manner in which the government changed the conditions to allow the basic phone operators to obtain licences for providing limited mobility services.
So, it could be argued that this is not a commercial issue. What the TDSAT is looking into pertains to the regulatory framework that should govern the sector. There are technology issues. There are issues concerning the payment of licence fees for obtaining the right to start and operate a service in an area.
The government's actions in 2000 changed the rules of the game that prevailed in 1999. The cellular operators are seeking a verdict on the legal validity of such a change.
The real problem seems to lie in the way the government perceives itself, the telecom regulator and the regulatory system. The government's perception of its role in the changed economic environment also needs to change.
The government should first submit itself to the jurisdiction of the regulator and the regulatory system. Once it does that, there will be no arguments over the confidentiality of the official notings in government files. The focus will be back on whether the change in the policy was correct.
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