Senior jurist Soli Sorabjee, activist lawyer Prashant Bhushan and Janata Party chief Subramanian Swamy on Wednesday urged a Constitution Bench of the Supreme Court hearing a Presidential reference on the auction of natural resources to return the clarity-seeking note without answering the questions. The trio concluded its arguments against the maintainability of the reference to the apex court, following which Attorney General G E Vahanvati will reply to them.
Sorabjee, who is counsel for a non-governmental organisation, said the government should not use a Presidential reference for clarification of judgments — in this case, the five-month-old 2G spectrum case verdict that called for auction while allocating natural resources in all sectors. Permitting it would flood the court with such references from the executive, he noted. A Presidential reference is meant to clarify doubts, but there was “no whisper” of these in the questions put before the court, Sorabjee said, while arguing for the Centre for Public Interest Litigation (CPIL).
Chief Justice S H Kapadia, who heads the five-Bench hearing the matter, observed that even hypothetical decisions can be answered in a reference, going by certain foreign decisions. The logic, Judge D K Jain added, stands valid even if the questions are vague.
Prashant Bhushan, who also argued for CPIL, said disposal of scarce and valuable natural resources could not be done on a first-come-first-served basis, though that method “is good enough for selling cinema tickets”. When the government does not mention its doubts, the court cannot assume these and assure their clarification, he added.
Judgee Dipak Misra remarked that the 2G case, moved by CPIL, pertained only to spectrum. “Can all natural resources be put in one basket and a general order of auction-only policy be ordered?” he asked. Bhushan replied that the February 2 judgment had included all resources. A Supreme Court judgment on law is binding on all courts, he added.
Moreover, the government-constituted Ashok Chawla committee has recommended that auction is the best method for disposal of all natural resources. The government, though, kept the report under wraps and has now come up with a presidential reference, he added.
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Bhushan said no advisory opinion given in the reference was binding on the high courts. It is the court’s judgment that the subordinate courts had to follow. In this case, the government was moving the court with mala fide intention, he concluded.
Swamy stated that if the reference was answered negating the judgment, it would have a “deep impact” on the trial courts, where some of the cases relating to the spectrum scam are pending. The reference jurisdiction should be “used rarely” he added. In this case, the government had first moved a review petition against the spectrum judgment, then withdrawn it and now “outsourced” the problem through a reference, Swamy said. There was “no public auction”, but “there was private auction behind the doors, by dilution and transfer of shares of companies,” he added.