The Federation of Indian Chambers of Commerce (FICCI) and the Confederation of Indian Industry (CII) told the Supreme Court on Tuesday that the 2G spectrum verdict, which made it mandatory for the government to allocate all natural resources only through auction, has caused a lot of uncertainty.
They contended that the February 2 verdict was specific to the spectrum allocation and its conclusion that the first-come-first-served (FCFS) policy was illegal per se needs clarification as it was in conflict with the previous judgments of the apex court.
Senior counsel Harish Salve, appearing for the CII, told a five-judge Constitution Bench comprising Chief Justice S H Kapadia, Justice D K Jain, Justice J S Kehar, Justice Dipak Misra and Justice Ranjan Gogoi that the mode of allocation of natural resources has to be decided on a case-to-case basis and it would not be proper to hold the FCFS policy illegal per se.
“It is dangerous,” Salve remarked, when the Bench referred to the paragraphs in the judgment which termed the FCFS policy illegal per se. He said the FCFS policy was held as illegal in the 2G spectrum verdict as there were reasons to give a finding that the process adopted in allocation of radio waves was not proper.
At one stage, the Chief Justice supported the Centre’s stand and said that revenue maximisation could not be the sole motive behind the allocation of natural resources. Later, senior advocate C S Sundaram, appearing for the FICCI, told the Bench that the Presidential Reference arising out of the 2G spectrum judgment needed to be answered by the apex court.
He referred to Article 48 A of the Constitution (Protection and Improvement of environment and safeguarding of forests and wild life) and said the Article is very clear.
“If there is one judgment, where is the doubt? Where is the question and where is the answer?” Sundaram asked referring to several judgments of the apex court delivered prior to the 2G verdict where the government’s policy with regard to allocation of natural resources was not found to be flawed.
“In the 2G judgment a question arises as to what is the law? The public trust doctrine is embedded in Article 39 (b), 48A. Article 21 (Protection of life and liberty) is on a higher pedestal, he felt.
We need not borrow any doctrine. It is found in our Constitution,” Sundaram stated.
“The matter is of great importance because it has got to do with the policy making of the Executive,” the senior counsel emphasised.
At this, Chief Justice said, “When we say, the 2G judgment is per incuriam (a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant), then also the law is clear.”
The arguments will continue on Wednesday.