Show Timings:
Friday 10:30 pm  |   Sunday 9.30 am
Sunday 11:00 pm  |   Wed 5:30 pm
                             Feedback | thefirm@in.com

Presidential references: The how, why & what next?



Published on Mon, Apr 16 11:54, Updated at Mon, Apr 16 at 13:17
Source : Moneycontrol.com   |   Watch Video :


The 2G case is full of twists and turns - this week barely had the government moved a presidential reference that the Supreme Court - Justice Singhvi's Bench - admitted the government's review petition in the matter as well. So now we've got a review & a reference- wow that's unprecedented! But before we get to the confusion caused by these parallel processes we want to focus on how a presidential reference works.

The President of India has asked the Supreme Court 8 questions of fact and law arising from the 2G judgment. Will the apex court answer these questions? On what grounds can it choose not to do so?  Has it refused in the past? If it does agree to offer advice will that advice be binding on the government? If not binding, then what value does the Supreme Court's advice have? Payaswini Upadhyay looks for answers on the how, why and what next of presidential references.

Telecom Minister Kapil Sibal to CNBC TV18 on 10th April 2012
"Cabinet has approved the question on which reference is to be sought through the President" 

That under Article 143(1) of the Constitution that gives the President power to consult the Supreme Court.

It says 'if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

KTS Tulsi
Senior Counsel, SC
"The key word in Article 143 is when the President considers is expedient. And expediency means how important it is for future policy, for the growth of the country. So if the President thinks that these are important issues which are expedient to be referred to the SC to give its advisory opinion, then it does. These powers are vested in highest authorities in the country and so they don not have to be hedged in under what circumstances they will be used."

Mukul Rohatgi
Senior Counsel, SC
Counsel for Essar in 2G Case
"A dispute arising with a State on one hand and Centre on the other hand, disputes of similar nature relating to environment, life and liberty - some important issues which may arise- the government can seek an advice from the SC."

Such a case of public importance came up as far back as in 1964 in Keshav Singh's case where a presidential reference was sought when the UP legislature attempted to jail 2 Allahabad High Court judges for intervening in Parliamentary procedure. In answering the questions raised in this Presidential Reference, the SC laid down that 'state legislatures in India could not... claim to be the sole judges of their powers and privileges to the exclusion of the courts.'

But it’s not always that the apex court has entertained a presidential reference. In the Faruqui case, better known as the Ram Janmabhoomi dispute, a five-judge Bench of the Supreme Court held that the Presidential Reference was ‘superfluous and unnecessary… and that the Presidential Reference cannot be treated as an effective alternate dispute-resolution mechanism in substitution of the pending suits'.

Mukul Rohatgi
Senior Counsel, SC
Counsel for Essar in 2G Case
"Suppose a reference is made whether Lord Ram was born in Ayodhya- now it is a part of mythology- SC can refuse to answer the reference by saying that it is not possible to really find these facts by which such an answer can be given and therefore reference can be sent back unanswered."

But if the SC answers the questions raised in a presidential reference, would its advice be binding - that question came up in 1978 when a presidential reference was sought to ascertain the constitutionality of the Special Courts Bill. A 7 judge bench of the SC laid down that 'though it is always open to this Court to re-examine the question already decided by it and to over-rule, if necessary the view earlier taken by it insofar as all other courts in the territory of India are concerned they ought to be bound by the view expressed by this Court even in the exercise of its advisory jurisdiction under Article 143(1) of the Constitution'.

But when the same question came up in the Cauvery Waters inter-state river water dispute of 1991- a 5 judge bench left this question open by saying 'No opinion is expressed on the question whether the opinion given by this Court on a Presidential Reference under Article 143 of the Constitution, such as the present one, is binding on all courts…. but at the same time, the apex court also held that 'the advisory opinion is entitled to due weight and respect and normally, it will be followed.'

KTS Tulsi
Senior Counsel, SC
'In advisory jurisdiction, it's the opinion which the Court expresses. Nevertheless, it is entitled to due weight and highest amount of respect by all courts and the Executive as well as the Legislature. The whole purpose of advisory jurisdiction is to be able to avoid problems rather than being confronted with problem and then the Court being brought in to adjudicate the issue. So this preventive power which has been vested in the President and the jurisdiction which has been vested in the SC is to avoid problems in the future which are clearly foreseeable. So the court will normally give it highest priority but i don't think it is binding.'

Soli Sorabjee
Senior Counsel, SC
Former Attorney General
"5 judges of the SC solemnly sit and answer questions and that opinion is what - only for academic discussion? It is to be framed? Of course; in a way it is binding. By convention now it is binding and it is regarded as binding. It is joke if we're saying it's for putting in textbooks. To my mind, in effect, today it will be a binding judgment."

Mukul Rohatgi
Senior Counsel, SC
Counsel for Essar in 2G Case
"The Constitution says that this is advisory jurisdiction. By its very nature, an advice is something which is proffered to a person who seeks it. It is not a decision between two warring groups and a Court is expected to rule thereupon in which case it is binding and the last Court is the SC. So the Constitution says that any decision or law declared by the SC shall be binding on all Courts and all authorities including the government. But as you know, this is not a dispute between two parties; its an advise. So if you go by simple, layman terms, an advice can't be binding on someone who has neither sought it nor got it. As far as Courts are concerned, it will certainly carry great weight. But in my submission, Cauvery is the right view."

Binding nature aside, the presidential reference approved this week by the Cabinet has sought answers to 8 questions arising from the 2G judgment – from the legality of telecom licenses not granted through auction to auction process design and whether they are mandatory for the allocation of all natural resources

Soli Sorabjee
Senior Counsel, SC
Former Attorney General
"What you have to remember is that Presidential Reference cannot be sought to make the Supreme Court exercise its appellate jurisdiction over its own judgment or a judgment of its Bench. Whole question here is that the government is dissatisfied with the Division Bench judgment. Alright; it has filed a review. Let's see what happens in the review. But whatever happens, it is impermissible to use a Reference route and in effect make the Reference Bench an appellate Bench over the judgment of the Division Bench which has cancelled licenses and made other observations." 
 
KTS Tulsi
Senior Counsel, SC
"I think Presidential Reference is warranted in this case because a momentous issue of the facts- manner is which the policy is adopted, manner in which the policy is implemented, arise in this case and they will arise in hundreds of cases in the future and the government would like to know whether auction is the only route that is available and all other options are closed, government will also what happens to the licenses that were granted before 2008 on a similar policy if this policy is flawed, the physical impossibility of being able to implement the auction route within the time which is permitted- the whole purpose is to have a clear understanding what are there limitations."

Mukul Rohatgi
Senior Counsel, SC
Counsel for Essar in 2G Case
"I don't think a reference is warranted at all. The government- if it is dissatisfied with the verdict of the SC- has the right through Parliament to pass a law by which it can annul the judgment of the SC by what is called 'removing the basis of the judgment'. So it can pass a law to say, notwithstanding any order/decree of any Court, any auction which may have been done in the field in which the government decides that there shall be auction or no auction shall be valid. Everyday validating laws are passed."

Most senior counsels and several former judges I spoke to told me that in their living memory, it's the first time a presidential reference is being sought on a SC judgment. Now may be the government is doing it because it genuinely needs clarity for policy matters or it could well be a case of getting the Supreme Court to take a call on the fate of existing and future licenses… soon a yes or a no from the apex court will tell us if the government becomes successful in passing the buck.

In Mumbai, Payaswini Upadhyay

More Stories
  Companies Act: How Will Life Change ...
  India Inc. 'CAG'ed! Telecom & Who E ...
  CCI Order: Third Party Appeals?
  Companies Act, 2013: NBFC Fundraisi ...
  Schott Glass Case: COMPAT Strikes D ...
  Disputes Relating To M&A Transactio ...
  The Ashok Chawla Interview
  APAs: Great Debut!
  Antitrust Regulation Of M&A Transac ...
  FDI Pricing Restriction To Go!
Copyright e-Eighteen.com Ltd. All rights reserved. Reproduction of news articles, photos, videos or any other content in whole or in part in any form or medium without express written permission of moneycontrol.com is prohibited.