The Supreme Court should return the Presidential Reference on the 2G spectrum verdict as not maintainable since any other decision will have a huge impact on, and cause an impediment to, the ongoing trial, Janata Party president Subramanian Swamy argued on Wednesday.

He made the submission before a Constitution Bench of Chief Justice S.H. Kapadia and Justices D.K. Jain, J.S. Khehar, Dipak Misra and Ranjan Gogoi.

Dr. Swamy said any observation made by the Constitution Bench would have a huge impact on the trial. “If your Lordships do not uphold the 2G judgment, the trial court will see acquittals of the accused.”

“On the face of it, the reference seems to be an outsourcing to the judiciary of a hidden agenda to subvert the judgment and on hypothetical issues,” he said.

He pointed out that a government committee, under the chairmanship of Ashok Chawla, itself favoured auction for sale of all natural resources to commercial parties, but this recommendation had been put in cold storage.

Dr. Swamy said the 2G judgment had held transparency as the highest value, and this could be achieved only through auction and market-determined prices. When the country was governed by the market economy, why the government should object to auction, he asked.

The reference, he said, stemmed from the fact that certain companies had threatened to sue the government. There was no doubt about the issue of natural resources allocation in the judgment, which directed the government to implement the guidelines in four months. But the government did not implement them and sought an extension of the deadline as a new Minister had taken over as head of the Empowered Group of Ministers; it might seek another extension if the court entertained the reference.

Appearing for the Centre for Public Interest Litigation, Prashant Bhushan pleaded that the reference be returned as it was not maintainable. “The current method of allocation of scarce and precious natural resources is opaque, non-competitive, inefficient, arbitrary and full of corruption. This method has been held to be unconstitutional in the 2G case. The basic object of the government in filing this reference is to continue with this opaque, non-competitive, and arbitrary method of allocation of natural resources…to favoured companies at throwaway prices. Therefore, this is one additional reason for which this mala fide reference should be rejected.”

The Chief Justice told counsel: “We can’t reject the reference for mala fide or bona fide reasons. We can only say [that the] reference overrides the 2G judgment.”

To this, Mr. Bhushan said: “From the questions framed in the reference, as well as from the review petition filed by the government and the grounds for review, it is…clear that the government is not in any doubt about the propositions of law laid down by the 2G judgment. It repeatedly says the judgment mandates the distribution of all natural resources, especially minerals, by auction, and this runs counter to the law laid down in several earlier judgments. It thus seeks to overrule the above judgment by invoking the advisory jurisdiction of this court.

“The judgment covers scarce and valuable natural resources, like spectrum, which are given to private companies for commercial exploitation. In fact, the government’s own report [signed by the Secretaries of all important Ministries and published by the Cabinet Secretariat] made much before the 2G judgment has said natural resources [such as] coal, minerals, oil, natural gas, spectrum and land must be given by auction,” he said.

Earlier, senior counsel Soli Sorabjee, continuing his arguments, said: “What are the implications of the judgment cannot be the basis for the reference. Then you are going into the merits and correctness of the judgment which you can’t do.”

Mr. Sorabjee said: “Doubt must arise out of the judgment. When there is no such doubt, why should we tinker with it at the instance of the Executive?” At this, Justice Dipak Misra told him: “Doubts could be expressed or implied. In 2012, when the Supreme Court has travelled thus far, we cannot narrow down the compass of Article 143 of the Constitution. We are not touching the 2G judgment. Can we not give a broader meaning to the expression ‘natural resources’ like spectrum? Shall we move ahead or we remain docile.”

He replied: “You move ahead within the ambit of law. You should not give leeway…the Executive to interfere with the judgment.”

Arguments will continue on Thursday, when Attorney General G.E. Vahanvati will deal with maintainability.

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