Spectrum order runs counter to Mines Act, says industry

The Federation of Indian Mining Industry argued before the Supreme Court on Tuesday that the second generation (2G) spectrum judgment was not binding on all natural resources, and in fact ran counter to the provisions of the Mines and Minerals Act.

Senior counsel for the industry, T R Andhyarujina, stated the Presidential reference seeking clarification on various issues arising out of the 2G verdict, including whether auctioning of natural resources across all sectors was mandatory was maintainable, as the judgment had gone beyond the issues earlier before the court.

The court had used “wide and general terms” to include not only disposal of spectrum but also all other natural resources, Andhyarujina said.

If the 2G judgment is allowed to stand, no government will be able to lay down an economic policy. It will especially nullify Section 11A of the Act and take away the government’s choice of method to distribute natural wealth.

A five-judge Constitution Bench of the court, headed by Chief Justice S H Kapadia, on Tuesday resumed hearing on the maintainability of the Presidential reference.

The Centre for Public Interest Litigation, represented by senior counsel Soli Sorabjee and Prashant Bhushan, argued last week that the judgment of the Supreme Court was final in the matter and questions decided by the court should not be reopened in the garb of a Presidential reference.

Senior counsel Harish Salve, representing the Confederation of Indian Industry (CII), started his argument, stating a judgment of the Supreme Court was binding only on the courts below, but not on the apex court itself.

Issues decided by the Supreme Court can be reconsidered at a later time. The constitutional power of the court to give advice to the President, when she puts definite questions to it, is not limited by decisions of the court itself. Even declarations outside the issues made by the court can be matters of doubt in the mind of the President and it may be answered. His arguments will continue tomorrow.

Earlier, Attorney General G E Vahanvati concluded his arguments defending the maintainability of the reference. He said there would be far-reaching consequences if the judgment covers all natural resources.

He pointed out that even US President Barack Obama has recently doubted the country’s policy of discouraging foreign direct investment. This judgment would send a wrong signal to foreign investors. The chief justice then observed that Obama’s opinion cannot be a ground to argue in favour of the Presidential reference.