The Union government on Thursday approached the Supreme Court with a presidential reference on various issues relating to its recent judgment in the 2G spectrum scam. The apex court, meanwhile, would take up the government's review petition tomorrow.
The presidential reference, under Article 143 of the Constitution, and the review petition raise similar issues. The main concern of the government is the perceived interference of the judiciary in the executive territory and the court's insistence on auctions to distribute natural resources like spectrum.
The Cabinet had on April 10 cleared the telecom ministry's proposal to seek the court's opinion on issues highlighted by the February 2 judgment. The court had cancelled 122 licences issued on a first-come-first-served policy since 2008. It had also observed auction was the best-suited route for allocating natural resources.
Among the eight questions referred to the court include whether all other telecom licences given under the first-come-first-served basis before 2008 should be declared illegal and cancelled.
A more fundamental issue is whether the judgment lays down auction as mandatory for allocation of all natural resources across all sectors and in all circumstances. Any view on this could have an impact on various other sectors, including mining leases, land allocations and auction of coal and oil blocks.
The government has also asked whether the allotment of spectrum could be made only to a licencee who was successful in an auction process, and whether no allotments could be made from time to time. Another issue was whether no ceiling on the acquisition of spectrum could be placed according to the recommendations of the Telecom Regulatory Authority of India, even if it is to avoid dominance in the market. It also asked whether auctions would be the only legitimate mode of allocation of spectrum, even for bands where there was inadequate competition or no competition at all, like the CDMA in 800 Mhz.
The government also raised concern on the implication on foreign direct investment if the executive decision was cancelled by a judicial order.
Under Article 143 of the Constitution, the government can make a presidential reference to the Supreme Court on matters of law or facts of “public importance”. Last week, the Supreme Court had dismissed review petitions of leading telecom companies, whose licences, issued when A Raja was the telecom minister, were cancelled by the court judgment. These were dismissed in chambers by a bench headed by G S Singhvi.
In a rare instance, the government's review petition has been listed in open court. The case would be heard by Singhvi and K S Radhakrishnan.
Opening a third front, the government has also filed a clarificatory petition, asking for directions on the auction timeline in 400 days, along with other issues.