The Supreme Court will begin on July 10 its hearing on the presidential reference moved by the government on issues that emerged from the court's order to cancel 122 telecom licences issued in January 2008.
A five-bench Constitution bench of the Court on Friday issued a notice to all states and industry chambers Ficci and CII on the presidential reference, regarding the distribution of natural resources by the government. The bench will take up on July 10 four constitutional questions and will not go into the 2G spectrum allotments that were struck down by a division bench of the court. The larger questions with implications for the economy will be decided first.
The bench presided over by Chief Justice S H Kapadia also issued a notice to the Centre for Public Interest Litigation (CPIL) and Janata Party leader Subramanian Swamy, on whose petitions the court had quashed the allotment of licences granted during the tenure of former telecom minister, Andimuthu Raja, now in jail.
CPIL lawyer Prashant Bhushan wanted to raise a preliminary objection against entertaining the reference. According to him, the reference should be returned without answering the questions as the court had done in several cases. The court said the objection could be raised on July 10.
The government had on April 12 moved the presidential reference after the court order on February 2 for the cancellation of licences. It had also filed a review petition on the role of the executive in policy-making and whether the court had moved into the executive’s domain. The government withdrew the review petition on Tuesday.
The reference had raised issues of allotment of telecom licences between 1994 and 2007 on the basis of the same policy that the court called “fundamentally flawed” while giving its order. It also sought clarity on the Supreme Court’s ruling that natural resources needed to be auctioned. The presidential reference also asks several questions of law and facts, including the potential implications for all other natural resources and allocations based on the first-come, first-served method, in the telecom sector and elsewhere.
Besides, the legality of dual-spectrum licences allotted to Reliance Communications and Tata Teleservices Ltd in 2007 has also been talked about in the reference. The reference also sought the court’s opinion on the treatment of 3G spectrum won by telcos that stand to lose their licences because of the order.
The court will take up the four questions in the first phase if the preliminary objection is rejected. After deciding on these, if necessary, further questions arising from the February 2 judgment will be taken up. Some of the questions in the first phase of hearing are: whether auctions are the only permissible method of disposal of natural resources by the government? Is this insistence on the auction route against several judgments of the court itself? Whether the enunciation of the auction principle amounts to formulation of policy by the court and unsettles the long-standing policy decision of successive governments? What is the permissible scope of the court’s interference in policy-making?
There are several other questions in the presidential reference, like the retrospective effect of the February 2 judgment, what follow-up steps should be taken by the government and what should be done with the spectrum available after the judgment. However, the court has clarified that these questions will be taken up in the next phase of hearing, if they have to be answered. The court asked all parties to file their arguments during the summer vacation, which started today.
The government said it preferred a presidential reference over a review petition on the 2G issue in the Supreme Court after taking a “conscious and professional” decision to withdraw it to seek a Constitution Bench order on the matter. “We took a conscious professional decision. We are pleased that the court has entertained the presidential reference and we hope that this will be an absolutely historic judgement,” Law Minister Salman Khurshid told reporters outside Parliament House.
Justifying the government action in withdrawing its review petition from the Supreme Court, Khurshid said, “The presidential reference is something that gives far greater expanse to the Supreme Court to give its advice to the President and, therefore, the government.”
He said, “Any rational person would prefer a presidential reference... The review’s scope is extremely narrow and limited. “It would have been unfair if we had taken it in bits and pieces in the review and not let the entire landscape be available to the Supreme Court. The best way forward in this regard is that of a presidential reference,” he said.
The minister refused to speak on the issue of cancellation of 2G licences, saying they already stand cancelled.
