The Supreme Court Friday issued notice on the presidential reference seeking its clarification whether natural resources across all the sectors and in all circumstances could only be allocated by auction.
A constitution bench of Chief Justice S.H. Kapadia, Justice D.K. Jain, Justice J.S. Khehar, Justice Dipak Misra and Justice Ranjan Gogoi issued notice to all states, the Centre for Public Interest Litigation (PIL) and Janata Party president Subramanian Swamy, as also to FICCI (Federation of Indian Chambers of Commerce and Industry) and CII (Confederation of Indian Industry) representing the industry.
The court said the notice will be served within “two weeks by ordinary process as also by dasti, email, fax or courier or even through a messenger of the Union of India”.
“Within one week of the service of notice, vakalatnama shall be filed on behalf of the above parties seeking to appear in this matter,” the court said.
The court further said that within three weeks of the service of notice, the parties will file statement of “facts and arguments”.The court said that each of the parties would file 30 copies of their statement of “facts and arguments” to the central government for being served on all the other parties, who have entered appearance.
The court slated the hearing of the matter for July 10.
The government had moved the presidential reference to seek clarity on several issues that arose from the apex court’s Feb 2 verdict, cancelling the 122 licences granted by the then communications minister A. Raja. The court had held that the policy of first-come, first-served was “flawed” and an auction was the only route for allocating natural resources.
The reference was received by the apex court April 12.It is not mandatory on the apex court to answer the presidential reference and it can decline to give its opinion as it had done in the case of Ayodhya reference. Also, the apex court’s answer is not binding on the government.
At the outset of the hearing, Attorney General G. Vahanvati told the court that the notice be issued to the state governments and the original petitioners in 2G matter, the Centre for Public Interest Litigation and Janata Party president Subramanian Swamy, on the first five questions of the reference.
He told the court that there was no need for issuing notice to others on these five questions as it concerned a policy decision. He told the court that the answer to the first question whether auction was the only way of allocating all the natural resources was the “most important”.
At this, the court told him: “Your case is first, we pronounce our order on the first question and then proceed for answering the remaining question of presidential reference.”
The question was if the allocation of natural resources in all the sectors and in all the circumstances could only be done by auctions and if so, was it not contrary to the several judgments of the apex court including that of larger benches.
Another issue that the attorney general wanted to be addressed by the court was “whether the enunciation of broad principles, even though expressed as matter of constitutional law (by the court), does not really amount to formulation of a policy and has the affect of unsettling the policy decision taken by the successive governments over the years for the development of various sectors of the economy”.
On the remaining two questions, the reference has sought the court’s opinion on the “permissible scope of interference by the courts with the policy making by the government including the method of disposal of natural resources”.
Finally on the fifth question, it sought court’s answer, “whether, if the courts holds, within the permissible scope of the judicial review, that a policy is flawed, is the court not obliged to take into account, investments made under the said policy including investments made by foreign investors under multilateral/bilateral agreements”.
Vahanvati said that the these questions were crucial for answering the presidential reference as answers to the remaining three questions with their ten sub-parts flowed out of it.
At this, counsel for CPIL, Prashant Bhushan asked the court that before taking up the presidential reference, the question of its maintainability should be decided.
Objecting to the issue of maintainability being raised by Bhushan, Vahanvati told the court that “no preliminary objection could be raised at this stage”.
As the court sought to limit the number of parties who could be issued notices and allowed to intervene in the hearing, Bhushan said that some of the experts should have the liberty of intervening in the hearing.
As the court said that hearings could not be made an open-ended affairs, Bhushan said that there should be a window for allowing some people to implead as interveners. The court said that such intervention had to be restricted.