2G telecom verdict unwarranted, AG tells SC

The Supreme Court on Tuesday began hearing the government argument on the Presidential Reference regarding its earlier verdict in the 2G telecom spectrum case, with Attorney General G E Vahanvati telling the five-judge bench the order in question was “completely unwarranted”, cutting across the entire gamut of natural resource distribution.

The AG’s stand was countered by senior counsel Soli Sorabjee, also a former AG, and by Prashant Bhushan. The arguments are to continue tomorrow. The February 2 verdict, cancelling 122 licences, was “totally contrary to the public law doctrine”, Vahanvati declared, for ruling that an auction was the only route for disposing natural resources. “It would lead to irrevocable consequences,” the AG contended.

He requested the bench, headed by Chief Justice S H Kapadia, to, in that case, also specify the natural resources which can be given away, and the mode of distribution. According to the government, the court needs to clarify whether mineral resources, oil, gas and other scarce commodities should be only auctioned and no other method should be adopted.

‘First come, first served’ the method struck down by the SC in its verdict on the licences, was a method adopted worldwide, said the AG, one that helped create maximum revenue for the government. Auction is not always a clean mode, as cartelisation is a big problem, he added.

In reply to a question from the bench, he said the government was for transparency and accountability in disposing of natural resources, but what the court had done was to put it in a straitjacket, by insisting on auction alone.

Counter view
The government stand was vigorously resisted by senior counsels Soli Sorabjee and Prashant Bhushan, who opposed the presidential reference as a devious measure to reargue issues already settled by the court. They represented the Centre for Public Interest Litigation, which had moved the original petition in which the court cancelled the licences.

Sorabjee told the court that when it passed a judgment, it should be taken as the final word on the subject. There are remedies if the judgment is wrong. It can be reviewed, clarified or modified. The government had filed a review petition and then withdrew it. The review petitions moved by the telecom companies had been dismissed. The government cannot take a round-about route and approach the court again, arguing that the court must clear doubts on various consequences of the judgment. If this practice is allowed, important judgments like that in the Vodafone case might be brought back to the court through the backdoor, counsel said.

Bhushan stated the 2G judgment was binding on all courts, whereas the opinion given by the SC in the presidential reference was not. The courts and the government can ignore the opinion. More, the government cannot use the advisory jurisdiction of the court, through the reference, to overrule the judgment. Bhushan said the court must take note of the fact that there was rampant corruption in disposal of minerals and other scarce resources. The Union comptroller and auditor general, for one, had written extensive reports on the issue. He urged the court to return the reference, saying it was a “wholly mala fide exercise” on the part of the government.