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The Infamous 2G Scam Case - A Critique

by Shiva Kant Jha

THE Hindu, of Feb 2, 2012, came out announcing the effect of the great decision by our Supreme Court (Coram: Justice G.S. Singhvi, and Justice Asok Kumar Ganguly):

“Declaring the allocation of 2G spectrum by the Congress-led United Progressive Alliance (UPA) government “illegal” and an example of the arbitrary exercise of power, the Supreme Court on Thursday cancelled all 122 telecom licences allotted on or after January 10, 2008 to 11 companies during the tenure of the former telecom minister, A. Raja.”

The Questions considered and answers stated

2. The important questions, which arose for consideration before the Hon'ble Court , were these:

(i) Whether the Government has the right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the Constitution?

(ii) Whether the recommendations made by the Telecom Regulatory Authority of India (TRAI) on 28.8.2007 for grant of Unified Access Service Licence (for short ‘UAS Licence') with 2G spectrum at the price fixed in 2001, which were approved by the Department of Telecommunications (DoT), were contrary to the decision taken by the Council of Ministers on 31.10.2003?

(iii) Whether the exercise undertaken by the DoT from September 2007 to March 2008 for grant of UAS Licences to the private respondents in terms of the recommendations made by TRAI is vitiated due to arbitrariness and malafides and is contrary to public interest?

(iv) Whether the policy of first-come-first-served followed by the DoT for grant of licences is ultra vires the provisions of Article 14 of the Constitution and whether the said principle was arbitrarily changed by the Minister of Communications and Information Technology (hereinafter referred to as ‘the Minister of C&IT'), without consulting TRAI, with a view to favour some of the applicants?

(v) Whether the licences granted to ineligible applicants and those who failed to fulfill the terms and conditions of the licence are liable to be quashed?

After articulating questions, the Hon'ble Court closely deliberated over each of them, and stated reasons for its decision. It is worthwhile to appreciate the cogency of the judicial reasons:

3. Question No.1:

The Hon'ble Court held:

(i) that, as the ‘natural resources' constitute ‘elements having intrinsic utility to mankind' providing ‘economic and social services to human society, the “Natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value” ;

(ii) that “like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources”;

(iii) that, when considered in the light of international conventions, customary international law, common law and national constitutions, “ the State is deemed to have a proprietary interest in natural resources and must act as guardian and trustee in relation to the same” ;

(iv) that ‘Spectrum has been internationally accepted as a scarce, finite and renewable natural resource which is susceptible to degradation in case of inefficient utilization' but it ‘has a high economic value in the light of the demand for it on account of the tremendous growth in the telecom sector' ; and

(v) ‘that natural resources are vested with the Government as a matter of trust in the name of the people of India, thus it is the solemn duty of the State to protect the national interest and natural resources must always be used in the interests of the country and not private interests'.

4. The Hon'ble Court articulated the following two juristic propositions in the light of which it considered the problems presented:

(a) “In India, the Courts have given an expansive interpretation to the concept of natural resources and have from time to time issued directions, by relying upon the provisions contained in Articles 38, 39, 48, 48A and 51A(g), for protection and proper allocation/distribution of natural resources and have repeatedly insisted on compliance of the constitutional principles in the process of distribution, transfer and alienation to private persons.”

(b) “As natural resources are public goods, the doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources. In this regard, the doctrine of equality has two aspects: first, it regulates the rights and obligations of the State vis-à-vis its people and demands that the people be granted equitable access to natural resources and/or its products and that they are adequately compensated for the transfer of the resource to the private domain; and second , it regulates the rights and obligations of the State vis-à-vis private parties seeking to acquire/use the resource and demands that the procedure adopted for distribution is just, non-arbitrary and transparent and that it does not discriminate between similarly placed private parties.”

5. On appraisals of facts and law, the Hon'ble Court concluded that “ the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good.”

6. Question No.2 :

Although, while making recommendations on 28.8.2007, TRAI itself had recognized that spectrum was a scarce commodity, it made recommendation for allocation of 2G spectrum on the basis of 2001 price by invoking the theory of level playing field. Although TRAI had itself assessed that ‘the existing system of spectrum. allocation criteria, pricing methodology and the management system suffered from number of deficiencies' which called for ‘an urgent need to address the issues linked with spectrum efficiency and its management', ‘yet it decided to recommend the allocation of spectrum at the price determined in 2001.' The Hon'ble Court noted the plea that TRAI did all this “ in the name of growth, affordability, penetration of wireless services in semi urban and rural areas, etc' but faulted this approach as it ‘completely overlooked that one of the main objectives of NTP 1999' to the effect that the object was ‘that spectrum should be utilized efficiently, economically, rationally and optimally and there should be a transparent process of allocation of frequency spectrum'. After noting a number of omissions, the Hon'ble Court found that “the entire approach adopted by TRAI was lopsided and contrary to the decision taken by the Council of Ministers, and its recommendations became a handle for the then the Minister of C&IT and the officers of the DoT who virtually gifted away the important national asset at throw away prices by willfully ignoring the concerns raised from various quarters including the Prime Minister, Ministry of Finance and also some of its own officers.”

7. The Hon'ble Court made three observations for which it is surely entitlef for three cheers: these observations are ---

(i) The Hon'ble Court comprehended facts, giving rise to the issues, in their broad spectrum: taking into account the abnormal ascent in price fetched on subsequent transfer only after a short interval, the Hon'ble Court said:

“This becomes clear from the fact that soon after obtaining the licences, some of the beneficiaries off-loaded their stakes to others, in the name of transfer of equity or infusion of fresh capital by foreign companies, and thereby made huge profits.”

And the Hon'ble Court was led to hold:

‘We have no doubt that if the method of auction had been adopted for grant of licence which could be the only rational transparent method for distribution of national wealth, the nation would have been enriched by many thousand crores.'

(ii) The Hon'ble Court has doused the intellectual hubris of the techno structure and so-called expert bodies by telling them that on no account such bodies can ‘make recommendations overlooking the basic constitutional postulates and established principles' as was done in the case by making “recommendations which would deny people from participating in the distribution of national wealth and benefit a handful of persons.”

(iii) The Hon'ble Court exercised its constitutional jurisdiction to evaluate the plea advanced TRAI, and “ found no “merit in the reasoning of TRAI that the consideration of maintaining a level playing field prevented a realistic reassessment of the entry fee.”

8. Question Nos.3 and 4:

The Hon'ble Court reiterated what it has said several times “that wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition.” And hence the Hon'ble Court held that there “is a fundamental flaw in the first-come-first-served policy inasmuch as it involves an element of pure chance or accident.” With an extraordinary insight into the administrative process, the Hon'ble crisply said:

“ In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served policy has inherently dangerous implications. Any person who has access to the power corridor at the highest or the lowest level may be able to obtain information from the Government files or the files of the agency/instrumentality of the State that a particular public property or asset is likely to be disposed of or a contract is likely to be awarded or a licence or permission is likely to be given, 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.”

9. The crescendo of the judicial exposition culminates in para 77 of the Judgement which must make us hang our head in shame. The Hon'ble Court said:

“The exercise undertaken by the officers of the DoT between September, 2007 and March 2008, under the leadership of the then Minister of C&IT was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality. The material produced before the Court shows that the Minister of C&IT wanted to favour some companies at the cost of the Public Exchequer and for this purpose, he took the following steps:…”

10. On the consideration of the totality of the facts and circumstances that emerged before the Hon'ble Court, it held “that the mechanism evolved by TRAI for allocation of spectrum and the methodology adopted by the then Minister of C&IT and the officers of DoT for grant of UAS Licences may have caused huge loss to the nation.” It seems the judicial conclusion has a measure of evident logical and juristic inevitability. It is clearly supported by the Principle of Probability. ‘By probability is meant the likelihood of anything to be true, deduced from its conformity to our knowledge, observation and experience' (Sarkar on Evidence p. 58). It was held by our Supreme Court in Chaturbhuj v. Collr. AIR 1969 SC 255 that in ‘assessing the value of the evidence Judges are bound to call in aid their experience of life and test the evidence on the basis of probabilities'. What the Hon'ble Court deduced from the facts presented the proceedings is justly warranted.


11. It was pleaded by the Attorney General , on the authority of some precedents that ‘the power of judicial review should be exercised with great care and circumspection and the Court should not ordinarily interfere with the policy decisions of the Government in financial matters.' The Hon'ble Court accepted that ‘Court cannot substitute its opinion for the one formed by the experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of framing the policies.' But it tersely stated the limitations to which this doctrine is subject, and it pointed out the ambit of the constitutionally permissible judicial review. The Court stated with remarkable brevity:

“However, when it is clearly demonstrated that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognized parameters When matters like these are brought before the judicial constituent of the State by public spirited citizens, it becomes the duty of the Court to exercise its power in larger public interest and ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will and who, as any other citizen, enjoy fundamental rights and, at the same time, are bound to perform the duties enumerated in Article 51A.”

12. The Hon'ble Court referred to the judgment of the three Judge Bench headed by Chief Justice Kapadia in Centre for P.I.L. v. Union of India (2011-TIOL-26-SC-MISC-LB). The judicial view is in tune with what our Supreme Court said in Raja Ram Pal vs. Hon'ble Speaker, Lok Sabha & Ors (Case No.W. P.(civil) of 2006). In Raja Ram Pal the Court said: “That the Constitution is the Supreme lex in this Country is beyond the pale of any controversy. All organs of the State derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. This includes this Court also which represents the judicial organ.' In Ram Jethmalani's case (2011-TIOL-57-SC-PIL), our Supreme Court had aptly observed:

“Modern constitutionalism … specifies that powers vested in any organ of the State have to be exercised within the four corners of the Constitution, and further that organs created by a constitution cannot change the identity of the constitution itself”.

13. In my considered view, the judicial conclusion is clearly based on the following assumption: I can spell out the core assumptions in the judicial reasoning

  • The Sovereignty of the Republic of India is essentially a matter of constitutional arrangement which provides structured government with powers granted under express constitutional limitations.
  • The Executive does not possess any “hip-pocket” of unaccountable powers”, and has no carte blanche even at the international plane.
  • The executive act, whether within the domestic jurisdiction, or at the international plane, must conform to the constitutional provisions governing its competence.
  • The direct sequel to the above propositions is that the Central Government cannot enter into a treaty which, directly or indirectly, violates the Fundamental Rights or the Basic Structure of the Constitution; and if it does so, that treaty must be held domestically inoperative.

Sometime back, the Hon'ble Delhi High Court appreciated these assumptions which I had advanced in course of my arguments in Shiva Kant Jha v. Union (2009-TIOL-626-HC-DEL-IT):

‘ “….. insofar as the fundamental question of any act of the Government in pursuance to an international treaty resulting in violation of any provision of the Constitution or not satisfying the test of being in compliance with the doctrine of basic structure is concerned, the respondents do not even dispute the said position and have drawn our attention to their counter affidavit where while dealing with the treaty making power of the Union executive and the Parliament it has been stated in para 1 “it is humbly submitted that the Government of India can only enter into a treaty in conformity with the constitutional provisions laid down in the Constitution of India”.

14. The Constitution is supreme whether the Executive Governments acts at the international plane or within the domestic jurisdiction. There are better Constitutional reasons under our Constitution than under the U.S Constitution. In the USA The Supreme Court held in Reid v. Covert [ILR 24 (1957) p. 549] 1 ‘held the provisions of certain treaties unconstitutional' (Oppenheim p. 77 fn.). It deserves to be noted that our Constitution puts on the exercise of the ‘executive power' some specific riders:

(a). The exercise of the ‘executive power' would be ultra vires if exercised fraudulently,

(b) The exercise of the ‘executive power' must not transgress the constitutional limitations in order to be constitutionally valid,

(c) The exercise of the ‘executive power' must not breach the mandatory norms of our Administrative Law as judicially interpreted,

(d) The exercise of ‘executive power' is subject to the constitutional discipline whether it is exercised domestically or at the international plane,

In effect, the position under our Constitution is no different from what the U.S. Supreme Court said in Reid v. Covert [ILR 24 (1957) p. 549] 2 Justice Black observed in that case:

“There is nothing in this language which intimates that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. ….It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V.”

The Doctrine of Judicial Restraints

15. I consider it worthwhile to examine the following two issues of the greatest importance in this phase economic globalization promoting neoliberal agenda. The issues are: the reach of the Doctrine of Judicial Restraints in matters pertaining to; (i) the fiscal and economic matters, and (ii) matters pertaining to issues bearing nexus with the agreements, or understanding at the international plane either in bilateral or multilateral situations

16. The Doctrine of Judicial Restraints boils down to one point: what is the role of our Judiciary under our Constitution. I had the opportunity to discuss the nature of judicial role with Dr. Bernard Schwartz, when he had come to Kolkata to deliver his Tagore Law Lectures in Kolkata. He had insightfully said:

“The Warren-Frankfurter difference in this respect ultimately came down to a fundamental disagreement on the proper role of judge in the American system.”

17. The realities of our days have made the Holmes-Frankfurter conflict on judicial role wholly stale and otiose. The changes wrought by Time have to be recognized. In this phase of Economic Globalisation, human rights run the risk of becoming meaningless unless our superior courts freely intervene in the economic realm, and management. Now the political realm stands subjugated to the economic realm. I must say that the view of judicial restraints that our Supreme Court had adopted in R. K. Garg vs Union of India is now anachronistic. The courts have treated TIME as a distinguishing factor in the matters of interpretation. Lord Buckmaster said so suggestively in Stag Line Ltd. v. Foscolo Mango & Co. Ltd .

“It hardly needed the great authority of Lord Herschell in Hick v. Raymond and Reid to decide that in constructing such a word it must be construed in relation to all the circumstances, for it is obvious that what may be reasonable under certain conditions may be wholly unreasonable when the conditions are changed..”

And in McDowell's Case , Justice Chinnappa Reddy referred to the observations of Lord Roskill in Furniss v. Dawson :

“The error, if I may venture to use that word, into which the courts below have fallen is that they have looked back to 1936 and not forward from 1982.”

I have always considered that our superior courts have ample jurisdiction to ensure that, in exercise of the executive powers, our Government is not competent to transgress constitutional limitations. .

18. While pursuing the PILs before the High Court and the Supreme Court, I noticed a maddening craze on the part of our Government for foreign exchange and foreign investments for which passionate paeans were sung by the Attorney General and the Solicitor General with a refrain that without these our country would be trapped in financial crisis. I had pleaded before the Delhi High Court that the Income-tax Act, 1961, was to collect revenues for our Consolidated Fund, not to facilitate obtaining foreign exchange etc. The Delhi High Court saw through the game, and rejected that dressed-up pleas. The Delhi High Court found as a matter of fact:

“Having regard to the globalization of economic policy adopted by India relaxation on regulations and controls on direct foreign investment took place in 1992 wherefore guidelines have been announced. The said Convention, as would appear from its preamble, was entered into “for the encouragement of mutual trade and investment in India and Mauritius ”.

It rejected the Government's contention, and observed in pregnant words:

“It is contended by the learned Solicitor General that by reason of the said treaty a political arrangement has been made. The same, in our opinion, would run counter to the provisions of Section 90 of the Indian Income-tax Act. Political expediency cannot be ground for fulfilling the constitutional obligation.”

18. In the context of the ‘justiciability' of the WTO Treaty, three eminent jurists of our country [V R Krisna Iyer, O Chinappa Reddy, D A Desai, (all the former Hon'ble Judges of the Supreme Court); and Rajinder Sachar (the then Hon'ble Chief Justice of Delhi High Court)] stated the ambit of the judicially manageable standards while considering the transgressions and infarction of our Constitution. On their well-known Report, Peoples' Commission Report on GATT, they observed:

“There may be something in the nature of treaty, something about the manner in which it is negotiated, something about the inevitable consequences and something about the inevitable consequences and something about its impact on governance that may call for interference. At one level, the judicial power may simply ordain lifting secreacy or providing for consultation. At another level, it may be legitimate to ask whether the treaty offends fundamental rights or puts at risk the very principles of governance on which the Constitution rests. These are all judicially manageable standards.”

‘One of the questions raised is whether there are judicially manageable standards to review the exercise of executive power in so far as it relates to Treaty making. No doubt, judges are not expected to examine the desirability of entering into a particular treaty obligation. That is another matter altogether. But, if the direct and inevitable effect of a treaty is that it will infringe fundamental rights, the judiciary has a constitutional obligation to interfere. Again, if the treaty making power subverts the principle of accountability (which is in many ways the cornerstones of democratic governance) to a point that adherence to such principles has become a mere sham and their observance has become illusory, courts will pass necessary orders to restore the norms of accountability. Not can the judiciary stand by to witness a treaty simply riding rough shod over the very basic structure of the Constitution including democracy, sovereignty and social justice.

“There can be no hard and fast rule that treaty making power can never be subject to judicial review. There may be something in the nature of treaty, something about the manner in which it is negotiated, something about the inevitable consequences and something about the inevitable consequences and something about its impact on governance that may call for interference. At one level, the judicial power may simply ordain lifting secrecy or providing for consultation. At another level, it may be legitimate to ask whether the treaty offends fundamental rights or puts at risk the very principles of governance on which the Constitution rests. These are all judicially manageable standards.”

The legal exposition applies, a fortiori, even to the exercise of the Executive powers trespassing on the constitutionality and legality of actions. Hence, it can be assertively stated that the Hon'ble Court adopted right constitutional perspective in appraising the fact-situations which came up in the 2-G Scam.

Judicial Activism

19. After declaring the allocation of 2G spectrum by our Government “illegal” and “arbitrary”, the Hon'ble Supreme Court ‘declared illegal' and ‘quashed' the licences granted to the companies on or after 10.1.2008, and directed how our natural resources are to be transferred. It said in para 77 of the Judgement:.” while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.”

20. It is unwise to consider this mandatory judicial guideline as an act of impermissible judicial activism. In fact this judicial direction does ‘complete justice' on the facts and circumstances of this case. The Hon'ble Supreme Court has the inherent ample jurisdiction to do justice in a case before it.

21. Great judges of our times do not feel cribbed and confined by the narrow perception of Judicial Role cut to the Procrustean bed of the maxim "Judicis est jus dicere - non Dare, which pithily expounds the duty of the court: it is to decide what the law is, and apply it, and not to make it." Limits within which the judicial technique works are judicially determined in many well-known cases. Lord Scarman rightly its frontiers in Furniss v Dawson [1984] 1 All ER p. 533] by observing:

"Difficult though the task may be for judges, it is one which is beyond the power of the blunt, instrument of legislation. Whatever a statute may provide, it has to be interpreted and applied by the courts: and ultimately it will prove to be in this area of judge-made law that our elusive journey's end will be found."

Judges are artists with moral vision. They administer justice with materials more malleable than 24-carat gold. This puts on them great responsibility. Whilst many mortals stand before their bar as the suppliants, they themselves stand before the Bar of 'We, the People. Prof. Schmitthoff analyzed Lord Denning's judicial approach with crispness and clarity thus ( Manitoba Law Journal , VOL-VI, (1979) pp. 1-19):

"His approach is technological. He thinks of the result before he considers the legal reasoning on which it has to be founded. If the result to which established legal doctrine leads is obviously unfair or out of touch with what ordinary people would expect to be the law, he will examine first principles in order to ascertain whether they really compel an unjust solution and often this method will enable him to arrive at an answer which is more adequate to modern needs."

The Real Problem that we must face: a great Constitutional Question: this craze for FDI

22. It is in the air that this decision of the Hon'ble Supreme Court might hinder the coming of the FDI in our country. I have reasons to believe that not only the MNCs, even our Government's heart bleeds for FDI, even by closing eyes and hears to know how this comes, and with what consequences. The neo-liberal propagandists, and the lobbyists for this neoliberal paradigm, and the agents and the benefactors of the MNCs drumbeat that our country can be salvaged from the present economic morass, and the best days can dawn only with more and more FDI. It is strange that the sublime passion is allowed to hold sway on all the organs of the State, even when that goes counter to our Constitution and the law. It is great to see that in the 2-G case, our Supreme Court stood firm to uphold our Constitution and law. This is surely the right approach, for the following reasons:

(i) Concern to promote the incoming of the FDI should never be in India a ground for departing or over-straining of law and the Constitution. India all the organs of the State has prescribed powers and prescribed role: and all these, without an exception, are subject to our Constitution's limitations. This is the effect of the Articles 53, 73, 245, 246, 253, 265, 363, 368, 372, and 375 of our Constitution. Our Constitution contains no provisions for limitations on national sovereign powers, in the interests of international co-operation, as in the constitutions of Belgium (Art 25bis ), Denmark (Art 20), Italy (Art 11), the Netherlands (Art 92), Spain (Art 93), the Federal Republic of Germany (Art 24), nor it lacks the terms of prohibition as fetters on the Executive's Treaty-Making Power [the absence of such prohibitory terms had led Justice Holmes to sustain the Migratory Bird Treaty Act of 1918] ,

(ii) It is difficult to understand how the craze for foreign investments for promoting private profits can prevail over the claims of our Consolidated Fund. I had reasons to observe in my book On the Loom of Time (p. 362)

“I fail to understand the wisdom to starve our Consolidated Fund meant for welfare of our nation by crafting such terms in the Double Taxation Agreements which facilitate our country's loot, even unmindful of national security issues, thus creating the evident conditions for the emergence of two Indias: one of the common-run of 'We, the People', the suffering millions whose existence is being fast forgotten, and the other, the 'High Net Worth Individuals', corporations, fraudsters, tricksters, masqueraders operating through mist and fog from various tiny-tots of the terra firma and cyberspace.”

(iii) Joseph Stiglitz is of opinion is that FDI is often not good for the country. He said in his Globalization and its Discontents (pp. 71-72):

“There is more to the list of legitimate complaints against foreign direct investment. Such investment often flourishes only because of special privileges extracted from the government. ….The foreign direct investment comes only at the price of undermining democratic processes. This is particularly true for investments in mining, oil, and other natural resources, where foreigners have a real incentive to obtain the concessions at low prices.”

The Hon'ble Court has wisely not got tempted by our Government's alluring plea of the ‘FDI promotion'. The words of Justice Holmes come to mind: he said in his classic dissent in Lochner v. New York (1904) 198 U.S. 45:

“This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I desire to study it further and long before making up my mind.”

1 ‘Although a Status of Forces Agreement may give the sending state a right to exercise jurisdiction the law of that state may not permit it to exercise that right. The conclusion was reached by the U S Supreme Court in relation to the scope of the jurisdiction of US courts martial, which were on constitutional grounds held not to have jurisdiction in peacetime over civilian dependents or employees accompanying members of US forces abroad. (vide Oppenheim p. 1160 fn. 24)

2 ‘Although a Status of Forces Agreement may give the sending state a right to exercise jurisdiction the law of that state may not permit it to exercise that right. The conclusion was reached by the U S Supreme Court in relation to the scope of the jurisdiction of US courts martial, which were on constitutional grounds held not to have jurisdiction in peacetime over civilian dependents or employees accompanying members of US forces abroad. (vide Oppenheim p. 1160 fn. 24)

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