The Presidential Reference which, in effect and substance, seeks to question the correctness of the judgment in the 2G spectrum allocation case, was entirely impermissible and not maintainable, the former Attorney General and senior counsel, Soli Sorabjee, argued in the Supreme Court on Tuesday.

Appearing for the Centre for Public Interest Litigation, Mr. Sorabjee told a five-judge Constitution Bench comprising Chief Justice S.H. Kapadia and Justices D.K. Jain, J.S. Khehar, Dipak Misra and Ranjan Gogoi that doubts about the correctness of a judgment of this court “which has attained finality cannot be the subject matter of reference under Article 143 of the Constitution.”

Mr. Sorabjee said such reference would be plainly ultra vires of Article 143 and not maintainable. The Supreme Court, under Article 143, was not invested with appellate or review jurisdiction in respect of a judgment which had attained finality.

The CJI told Mr. Sorabjee, “We have no doubt about the correctness of the verdict on the spectrum [2G]. It only says if you adopt first-cum-first-served (FCFS) policy, there is no transparency. In order to avoid such things in future and to ensure transparency and accountability, the judgment says auctioning is the best method.”

The CJI asked Mr. Sorabjee “if the judgment is extended to cover other natural resources [other than spectrum] don't you think there is a case for reference. If the President wants answer on some other natural resources which are not dealt with in the judgment and when there is a doubt as to the interpretation, are we not entitled to answer them?”

Mr. Sorabjee replied: “In no Presidential Reference under Article 143 made hitherto have answers been sought to questions which, according to the reference itself, have been authoritatively answered by the Supreme Court ‘in a catena of decisions.’ If the law is authoritatively settled by this court as stated in Government of India’s submissions ex-hypothesi, no question of any doubt could arise which would warrant a reference under Article 143.”

He argued that this court’s reference jurisdiction could not be invoked to seek its opinion about the correctness of a judgment of this court, against which a review petition was filed but was subsequently withdrawn and which had attained finality. He asserted that the President “can refer a question of law only when this court has not decided the question of law. In the present case, this court should decline to answer the questions because (a) having regard to the terms of the reference, (b) the questions posed and (c) the proposed answers the reference in effect and substance seeks to question the correctness of the judgment of this court dated February 2, which has attained finality and review filed against it was subsequently withdrawn. Further, questions in the review petition viz. B to F are the same in the present reference. Constitutional short-cuts are not permissible and entertaining the present reference would set an unhealthy precedent and moreover will be clearly contrary to the judgment of this court in the Cauvery Water Disputes Tribunal case.”

The Supreme Court could not be treated as a Government of India’s counsel to whom a case for opinion was sent and answers were sought to the queries raised in the case for opinion in the light of the proposed answers, Mr. Sorabjee said.

Counsel Prashant Bhushan, appearing for the CPIL, endorsed Mr. Sorabjee’s argument. He said it was a mala fide reference made by the government. He said when there was no ambiguity in the judgment, a larger Bench could not overrule the judgment in a reference.

Earlier, Attorney General G.E. Vahanvati made it clear “we are not seeking review of the judgment.” He said the judgment insofar as it directed that all natural resources should be auctioned was completely unwarranted and would lead to unworkable consequences. He said auctioning would go directly in conflict with the public interest doctrine. Geological resources such as minerals and gas could not be auctioned.

To a question from the CJI whether auction was not the best method, he said: “The disposal would depend upon the nature of the resource. In appropriate cases when you want to ascertain the value auction could be the best method.”

Keywords: 2G case

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