SC issues notices on presidential reference on natural resources

May 11th, 2012 - 1:54 pm ICT by IANS  

New Delhi, May 11 (IANS) The Supreme Court Friday issued notices on the presidential reference seeking clarification whether the natural resources could only be allocated by auction.

An apex court constitution bench headed by Chief Justice S.H. Kapadia issued notices to all states, the Centre for Public Interest Litigation (PIL), Janta Party president Subramanian Swamy, FICCI (Federation of Indian Chambers of Commerce and Industry) and CII (Confederation of Indian Industry).

The court said the notices will be served within two weeks, within one week from the service of the notice the respondents will file their Vakalat-Nama, and within three weeks from the date of the receipt of the notice the parties will file their set of arguments.

The court slated the hearing of the matter for July 10.

The government had moved the presidential reference to seek clarity on several issues that arose from the apex court’s Feb 2 verdict, cancelling the 122 licences granted by the then communications minister A. Raja. The court had held that the policy of first-come, first-served 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 had 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 asked 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 asked what would be the fate of earlier licences granted in 1994 and 2001 and between 2003-2007 on the basis of first-come, first-served 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 licences and how that should be dealt with.

Another question 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 terms of any licence to ensure a level playing field among all existing licences.

Another question is whether in the wake of 2G verdict, the government should withdraw the spectrum allocated to all the existing licences 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.

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