New Delhi: The Supreme Court was told that under the garb of "malafide" Presidential Reference, the Centre was "questioning the correctness" of its 2G spectrum case verdict that natural resources in all sectors should be allocated through auction.

The NGO, Centre for Public Interest Litigation (CPIL), said the apex court should refuse to answer the questions raised in the Reference which was "not maintainable" as the February 2 judgement for the 2G spectrum attained finality and the review filed against it was subsequently withdrawn by the government.

"Under the garb of the Presidential Reference, you (government) are seeking to question the correctness of the judgement and seeking to overrule the judgement which has reached its finality," senior advocate Soli Sorabjee, appearing for the NGO, told a five-judge Constitution Bench headed by Chief Justice S H Kapadia.

However, the bench clarified that it was not on the question of correctness of the judgement and repeatedly said it wanted to know whether it was entitled to entertain the Reference or not if there was any doubt over "interpretation" of law in the judgement.

"We have no doubt about the correctness of the verdict on the spectrum (2G) but if the judgement is extended to cover other natural resources don't you think there is a doubt over interpretation of law in the judgement and are we not entitled to go into the Presidential Reference?" said the Bench, also comprising justices D K Jain, J S Khehar, Dipak Mishra and Ranjan Gogai.

The bench also wanted to know if it was not entitled to answer to the President those aspects of natural resources which have not been dealt with in the judgement and could be allocated in future like pricing of oil and gas.

"If the President wants answer on some other natural resources which are not dealt with in the judgement, are we not entitled to answer them?" the bench asked. While the bench was putting posers, Sorabjee said the February 2 verdict covered all natural resources given for commercial exploitation.

The CPIL's submission questioning the maintainability of the Reference came after Attorney General G E Vahanvati, in his brief opening remarks, said "auction" cannot be the mode of allocation of all natural resources and 'public trust doctrine' has no application outside environment matters.

The AG said the verdict could hit the local interest and gave example of natural resources like fish by saying that if fishing (in Kerala) would be allowed through the policy of auctioning, the local population would suffer.

Advocate Prashant Bhushan, who also argued on behalf of the CPIL, said the Centre has moved a "malafide Reference" and the court should return it without answering it.

Sorabjee commenced the arguments against the Presidential Reference by saying that "the present Reference in effect and substance seeks to question the correctness of the February 2 judgement, which is entirely impermissible under Article 143 of the Constitution.

"Doubts about the correctness of a judgment of this court which has attained finality cannot be the subject matter of a Reference under Article 143. Such a Reference would be plainly ultravires Article 143 and is not maintainable. This court under Article 143 is not invested with appellate or review jurisdiction in respect of a judgment which has attained finality," he said.

He submitted that in no Presidential Reference under Article 143 made hitherto have answers been sought to questions which according to the Reference itself have been authoritatively answered by the Supreme Court "in a catena of decisions".

"If the law is authoritatively settled by this court as stated in Government of India's submissions ex-hypothesis, no question of any doubt could arise which would warrant a Reference under Article 143. The present Reference in effect and substance seeks to question the correctness of this Court's judgement, which is entirely impermissible," he said.

The senior advocate said constitutional short-cuts are not permissible and entertaining the present Reference would set an "unhealthy precedent" and be clearly contrary to the judgment of this court in the Cauvery Water Disputes Tribunal.

Further, he said, the apex court cannot be treated as a Government of India's counsel to whom a case for opinion is sent and answers are sought to the queries raised in the case for opinion in the light of the proposed answers.

The Reference covers various issues arising out of the Apex Court's 2G spectrum case verdict including whether auctioning of natural resources across all sectors is mandatory and whether the verdict in the 2G case can be given retrospective effect for radio waves granted since 1994.

The court had on May 11 issued notices and sought responses also from state governments and FICCI and CII on behalf of the private industries along with those of the NGO, Centre for Public Interest Litigation (CPIL) and Janata Party President Subramanian Swamy.

It was on the petitions by CPIL and Swamy that a bench of justices G S Singhvi and A K Ganguly (since retired) had delivered its February 2 verdict which cancelled 122 telecom licences holding that the first-come-first-served policy was illegal and unconstitutional.


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