The Presidential Reference moved by the government to invoke the advisory jurisdiction of the Supreme Court, under Article 143 of the Constitution, is an expedient exercise to overcome inconvenient verdicts such as the ‘2G judgment’, the former Attorney General and senior counsel, Soli Sorabjee, argued on Tuesday.
He was replying to Attorney General G.E. Vahanvati’s justification for the court answering the Presidential Reference on issues arising out of the ‘2G judgment’ including whether auctioning of natural resources across all sectors is mandatory.
Mr. Sorabjee, appearing for the Centre for Public Interest Litigation, told a Constitution Bench that the court should decline to answer the Reference as it was not specific but omnibus in nature and sought answers to hypothetical questions. Having withdrawn its review petition against the 2G judgment, the government should not be permitted to invoke the advisory jurisdiction.
Chief Justice of India S.H. Kapadia asked Mr. Sorabjee: “What is the effect or impact of the 2G judgment on other statutes which had prescribed other mechanism[s] for disposal of natural resources? Cannot the President ask this question to know the impact of the 2G principle on other laws?”
The CJI further asked: “If an economic principle has a number of variables, can we [court] say auction is the best method because there is corruption in other methods?” Could not the court suggest any other method “as long as it satisfies the principle of transparency and fairness? We can always take care of corruption on a case-to-case basis.”
Mr. Sorabjee replied it would depend on the nature of legislation and the nature of the commodity or resource that was sought to be disposed of, and this had nothing to do with the Presidential Reference.
Unnecessary, says Swamy
Janata Party president Subramanian Swamy urged the court to return the Presidential Reference as unnecessary. He pointed out a very high administrative level committee of 12 Secretaries, headed by the former Finance Secretary, Ashok Chawla, had “unanimously recommended that for the major natural resources with the government, auction is the only viable and transparent method to alienate natural resources for commercial sale.”
Dr. Swamy said: “The committee’s report was submitted to the government in May 2011, and that was well before the 2G judgment. The Empowered Group of Ministers headed by the [then] Finance Minister [Pranab Mukherjee], which is authorised to take decisions on behalf of the full Cabinet, accepted the said decision and the report on October 14, 2011.”
The government having already got the answers to the very same questions posed in the Presidential Reference and having accepted the high-power committee report, it was totally unnecessary to send this Reference to the court, Dr. Swamy said.
‘Report not accepted’
However, Mr. Vahanvati said the government had not accepted the report. To this, Dr. Swamy, quoting an official press release, said, “If this not correct, then the AG must file an affidavit.”
Counsel Prashant Bhushan, also appearing for the CPIL, said: “This court, taking notice of the unprecedented loot of natural resources and the accompanying corruption, has passed a salutary landmark judgment in an attempt to remedy a situation that was devastating [to] the basic soul of the Constitution. The 2G judgment covers only those natural resources that are scarce, valuable and are allotted to private entities for commercial exploitation. It is just beginning to show positive effects. If and when a case with concrete facts comes wherein some party is able to show why auction is not possible, then the law laid down may be examined.”
Arguments will conclude on Thursday before the Bench, which includes Justices D.K. Jain, J.S. Khehar, Dipak Misra and Ranjan Gogoi.
