Thaindian News

New Delhi, May 10 (IANS) The Supreme Court Friday will take up for hearing a presidential reference whether the court could interfere with a policy decision of the government and could insist on auction as the only route for the allocation of natural resources.

The five judge constitution bench of Chief Justice S.H. Kapadia, Justice D.K. Jain, Justice Jagdish Singh Khehar, Justice Deepak Mishra and Justice Ranjan Gogoi would take up for hearing the presidential reference, made in the wake of the judgment in 2G spectrum case.

The government moved the presidential reference, seeking the clarity on several issues arising out of the Feb 2 apex court verdict, cancelling the 122 licences granted by the then communications minister A. Raja and had held that the policy of first come first serve was “flawed” and an auction was the only route for allocating natural resources.

The reference was received by the apex court April 12.

It is not mandatory on the apex court to answer the presidential reference and it can decline to give its opinion as it had done in the case of Ayodhya reference. Also the apex court’s answer is not binding on the government.

Among the questions raised in the reference is whether the court can set aside a policy decision without appreciating the investments made by foreign entities under multilateral or bilateral agreements.

Of the 12 questions raised in reference for the court’s opinion, the government has asked whether auctioning was the only permissible method for the disposable of all natural resources across all sectors and in all circumstances.

The reference also asks whether following the auction route only for the disposal of natural resources was not contrary to several judgments of the Supreme Court, including those of larger benches.

It also asks what would be the fate of earlier licences granted in 1994 and 2001 and between 2003-2007 on the basis of first come, first serve policy.

The reference further said that in view of the court’s reasoning and finding that the natural resources of the state must be auctioned, doubts have now arisen, regarding the pricing of the spectrum historically granted to the earlier licencees and how that should be dealt with.

Another questions sought to be addressed by the court is whether the enunciation of broad principles by the court did not amount to formulation of a policy that has the affect of unsettling the policy decision taken by the successive governments over the years for the development of various sectors of the economy.

Having raised the legal issues, the reference asks whether in the wake of 2G verdict, the licences granted in 1994, 2001 and between 2003-2007 would be affected, as well as dual technology licences issued in 2007 and 2008.

It also seeks to know whether it is open to the government to take any action to alter the terns of any licence to ensure a level playing field among all existing licencees.

Another question is whether in the wake of 2G verdict, the government should withdraw the spectrum allocated to all the existing licencees or they should be asked to pay for the same price from retrospective effect and if so, then on what basis and from what date.

The court has also been asked to clarify whether the government could make provision for allocation of spectrum from time to time at the auction determined price.

The court has also been asked to consider if there could be a ceiling on the acquisition of spectrum in order to avoid dominance of the market by any telecom operator. It also asked the court to clarify whether it could make provision for allocation of spectrum at auction related prices in accordance with the laid down criteria in bands where there may be inadequate or no competition.

Finally the Presidential reference has sought to know what would be affect of the 2G verdict on 3G spectrum acquired by the entities by auction whose licences have been quashed by the said judgment.