CII counsel argues that it is maintainable, but Soli Sorabjee sticks to his stand

The Union government on Wednesday crossed the initial hurdle on the maintainability of the Presidential Reference on the 2G spectrum case judgment, with the Supreme Court deciding on Wednesday to hear the matter on merits.

When arguments began on July 10, a Constitution Bench of Chief Justice S.H. Kapadia and Justices D.K. Jain, J.S. Khehar, Dipak Misra and Ranjan Gogoi told Attorney-General G.E. Vahanvati to confine his arguments to the maintainability of the Reference.

Senior counsel Soli Sorabjee and counsel Prashant Bhushan, appearing for the Centre for Public Interest Litigation, opposed the Reference, contending that it was not maintainable because it sought to overrule the judgment. Janata Party president Subramanian Swamy also argued that it was not maintainable.

At the end of five days of arguments, the Chief Justice told Mr. Vahanvati: “We will hear the matter on merits … We will decide the Reference, including the initial objections on its maintainability.”

Accordingly, Mr. Vahanvati will begin his arguments on Thursday on the merits of the Reference.

Earlier, senior counsel Harish Salve, appearing for the Confederation of the Indian Industry (CII), contended that the Reference was maintainable. When the Chief Justice asked him “can we go to the extent that the 2G judgment is not the law declared,” he replied: “As a proposition of law, the 2G judgment can be looked into in a reference. Don’t touch it insofar as ‘spectrum’ is concerned, as that is concluded.”

“If this Reference is only to overrule the 2G judgment, can this court refuse to answer the Reference,” the Chief Justice asked. To this, Mr. Salve said: “There must be compelling reasons for the court to refuse to answer the Reference. What we are saying is we have accepted it insofar as spectrum is concerned. We are asking you to find an answer for other resources.”

Appearing for the Federation of Indian Chambers of Commerce and Industry (FICCI), senior counsel C.A. Sundaram backed the Centre’s stand, saying: “The President wants to know from the Supreme Court what is the law on other natural resources. The auctioning of spectrum is not revisited. The court’s involvement in policy-making and the scope thereof are the questions raised in the Reference for which the President wants an answer.”

In his reply, Mr. Sorabjee, however, maintained that the Reference was not maintainable. “While deciding on the validity of the allocation of the 2G spectrum, this court did examine the validity of the manner in which the government disposes of the natural resources. The government has clearly understood the judgment.” If the court were to answer the questions by expressing its own doubts about the propositions of law, he said, that would amount to following a course alien to Article 143.

Mr. Sorabjee said, “The 2G judgment evolves and lays down a general principle, which is applicable to all valuable and scarce natural resources given for commercial exploitation, as the basis to hold the award of spectrum in that case void. This general principle of law was specifically invoked by the petitioner as a basis for voiding the spectrum allocations. The argument of the other side [the Centre and others] that though this court cannot overturn an operative part of the judgment while exercising advisory jurisdiction, but can overturn the propositions of law laid down, is entirely without merit.”

Quoting the decision in the Cauvery Reference case, he said: “It was authoritatively laid down in the Cauvery judgment that this court, in a non-binding opinion, cannot answer a question if the said question of law has already been answered in an adjudicatory judgment.”

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