Forget the Presidential Reference

It is difficult to understand why such an option is even being contemplated

The 2G verdict of the Supreme Court of India (Court) has added to the woes of an already ailing UPA. The Government has expressed its inability to meet the four month deadline for a fresh auction and has filed a clarification petition setting out how it seeks to implement the decision. Concurrently, it has filed a limited Review Petition where it has very tactfully not sought review of the cancelled licences, but clarity on matters like the future course for allocation of natural resources. Amidst all this, serious consideration is being given to a Presidential Reference to seek the Court’s opinion on whether allocation of spectrum through an auction is the only legitimate process and whether the licences, granted until 2007, are legal, and if not, what steps the Government should take to correct its folly. Notably, the questions on which the Court’s opinion has been sought have been judiciously crafted to ensure that the Presidential Reference doesn’t end up being a second review of the judgment. But even by doing so, it is very difficult to comprehend a Presidential Reference being made, which may explain the Cabinet’s hesitation. Here’s why.

The Court has opined that a Presidential Reference under Article 143 cannot be used to reconsider any of the Court’s earlier decisions and the Court does not enjoy appellate jurisdiction over itself. So, is seeking a Reference an indirect way of trying to address what it cannot directly? The President can seek a reference only when the Court has not decided on a particular question of law and not where the Court has made its decision and there exists no doubt about that question. Consequently, if a matter has previously been decided, the appropriate way for it to be re-examined is by seeking a review under Article 137. The President’s powers under Article 143 are consultative in nature, to assist the President in the discharge of his/her executive duties and cannot involve adjudication of a dispute between parties. The President, under the garb of a Reference, has no authority or appellate powers, while seeking the opinion of the Court to also ask for a review of an earlier decision. That may explain why no president has so far sought the opinion of the Court with regard to implementation of a verdict.

Then why is the Government even contemplating a Presidential Reference and not waiting for the outcome of the Review Petitions? Difficult to say, but Reviews are always heard by the same bench that decided the original controversy and are entertained only in very limited circumstances where there is either an error on the face of the record or where the Court has overlooked a material fact brought to its attention in the course of the hearings. Reviews are decided in chambers, by circulation, and there is no fresh public hearing. In contrast, hearings of Presidential References are conducted in open court and are heard by at least five judges. Thus, aside from the inherent advantage of numbers, a Presidential Reference is a full blown hearing, and various institutions or persons likely to be affected by the opinion are given an opportunity of being heard. But since opinions under Article 143 are non-binding, on rare occasion the Court prior to giving its opinion has asked the Attorney-General to give an undertaking that its opinion will be honoured and accepted as binding.

Notably, the Court has the discretion to decline giving its opinion if the question referred to it is purely political or entirely academic, or where it otherwise has no constitutional significance. Exercising this right, on a few occasions the Court declined to answer a Presidential Reference, but even such refusal is after a long-drawn hearing and lapse of time. And in the handful of references made and answered so far, the Court has unequivocally stated that it would be inconvenient, inexpedient and contrary to principle for it to give speculative opinions on hypothetical questions.

Thus, if a Presidential Reference is not befitting and Review Petitions have limited success, is the Government really without options? Not really, depending on the outcome of the Review Petitions, and even if they are dismissed, the Government can file a Curative Petition. But Curative Petitions are entertained only in the rarest of rare cases and only to prevent a gross miscarriage of justice. In such petitions, the Court exercises its inherent powers under the Constitution to ensure that complete justice is achieved. For now, it’s really wait and watch. And it’s not just the Government and telecom firms that have their wires in a knot. Numerous customers, employees, service providers, foreign investors and collaborators, financial institutions and even the regulator are watching the 2G drama unfold and trying to gauge which way the final judicial wave may blow.

Satvik Varma is an advocate & corporate counsel and founder of Independent Law Chambers in New Delhi. Contact him at svarma@indlawchambers.com

2GPresidential ReferenceSupreme Court of India