Court:Sans 2G, Presidential Reference Maintainable

The Supreme Court on Thursday held that the actual Presidential Reference in the actual 2G case would be maintainable as long as its decision on allocation of spectrum licences was untouched.

A Constitution Bench headed by Chief Justice S.H. Kapadia said: “What has been enunciated in the actual 2G case as a proposition of law cannot strike at the actual root of the actual maintainability of the actual Reference. Consequently, we reject the actual preliminary disapproval as well as keep that this Reference is maintainable.”

Appearing for the actual Centre for Public Interest Litigation, senior counsel Soli Sorabjee, Shanti Bhushan as well as Prashant Bhushan had argued that the actual Reference would amount to overruling the actual 2G judgment.

After a thorough analysis of the actual verdict, the actual Bench said: “The recommendation of auction for alienation of casual resources was never intended to be taken as an absolute or blanket statement applicable across all resources, yet [was] simply a end made at initial blush over the actual attractiveness of a method like auction. the actual choice of the actual word ‘perhaps’ suggests that the actual learned judges considered situations requiring a method other than auction as conceivable as well as desirable.”

“Moreover, if the actual judgment is to be peruse as holding auction as the actual only permissible means of disposal of all casual resources, it would direct to the actual quashing of a large number of laws that prescribe methods other than auction, e.g., the actual MMRD Act.”

On Janata Party president Subramanian Swamy’s submission that the actual Reference was an unnecessary exercise as the actual government had accepted the actual Chawla Committee recommendations that all casual resources be auctioned, the actual court said “since it [panel report] is pending acceptance by the actual government, it would be inappropriate for us to place judicial reliance on it.”

The Bench said the actual state’s action “has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy contest as well as equitable treatment. It should conform to the actual norms which are rational, informed by reasons as well as guided by the actual public interest, etc. All these principles are inherent in the actual basic conception of Article 14. Such being the actual constitutional intent as well as effect of Article 14, the actual question arises — can auction as a method of disposal of casual resources be declared a constitutional mandate under Article 14? We would unhesitatingly response it in the actual negative since any other response would be completely contrary to the actual scheme of Article 14.”

The court said: “Auctions may be the actual greatest way of maximising income yet income maximisation may not always be the actual greatest way to subserve public good. Where income maximisation is the actual object of a policy, being considered qua that resource at that point of time to be the actual greatest way to subserve the actual general good, auction would be one of the actual preferable methods, though not the actual only method. Where income maximisation is not the actual object of a policy of distribution, the actual question of auction would not arise. income considerations may assume secondary consideration to developmental considerations.”

On the actual contention that a method other than auction was likely to be abused, the actual Bench said: “A potential for abuse cannot be the actual basis for striking down a method as ultra vires the actual Constitution. It is the actual certain abuse itself that must be brought before the actual court for being tested on the actual anvil of constitutional provisions. In fact, it may be said that even auction has a potential for abuse, like any other method of allocation, yet that cannot be the actual basis of declaring it an unconstitutional methodology either.

Welcoming the actual judgment, Attorney-General G.E. Vahanvati said, “It is a well-reasoned assessment as it has dealt along a few issues head-on. multiple uncertainties will be resolved.”

In his separate opinion, Justice Khehar said: “For agree of a mining lease in respect of an area containing coal, the actual provision leaves no room for any doubt that decisions would be made through auction by competitive bidding. No process other than auction can therefore be adopted for a coal mining lease. division 11A of the actual MMDR Act as well as defines the actual zone of eligibility, for participation in such competitive bidding. To be eligible, the actual contender must be engaged in production of iron as well as steel, or generation of power, or washing of coal obtained from a mine, or an activity notified by the actual Central government. Only those satisfying the actual legislatively prescribed zone of eligibility are permitted to compete for a coal mining lease.

“The policy of allocation of casual resources for public fine can be defined by the actual legislature. Likewise, the actual policy for allocation of casual resources may as well as be determined by the actual executive. the actual parameters for determining the actual legality as well as constitutionality of the actual two are exactly the actual same. There can be no doubt approximately the actual end recorded in the actual ‘main opinion’ [of the actual Constitution Bench] that auction which is just one of the actual a few price restoration mechanisms, cannot be held to be the actual only constitutionally recognised method for alienation of casual resources. That should not be understood to mean that it can never be a authorized method for disposal of casual resources. No portion of the actual casual resource can be dissipated as a matter of largesse, charity, contribution or endowment for private exploitation. Each bit of casual resource expended must bring back a reciprocal consideration. the actual consideration may be in the actual nature of earning income or may be to ‘best subserve the actual general good’. It may well be the actual amalgam of the actual two.”
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