The Telegraph
Wednesday , August 8 , 2012
Since 1st March, 1999
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Govt doublespeak on resource auction: Swamy

New Delhi, Aug. 7: Janata Party leader Subramanian Swamy today accused the government of adopting double standards on the issue of auctioning scarce natural resources.

He accused the government of, on the one hand, taking a policy decision to auction all resources in the future and, on the other, of contesting the “auction was a must” rule laid down in the 2G judgment.

Narrating the sequence of events, Swamy contended that the Centre had constituted a very high-level administrative committee “well before the 2012 (2G) judgment of this court”, comprising 12 secretaries, and sought a considered opinion on this very policy issue. It was headed by former finance secretary, Ashok Chawla.

This report, unanimously recommending that auction was the only viable and transparent method for the government to alienate major natural resources for commercial sale, was submitted to the government in May 2011, he said in his written submissions to a five-judge bench headed by S.H. Kapadia, which is hearing the presidential reference.

Then an empowered group of ministers headed by the finance minister, a group authorised to take decisions on behalf of the full cabinet, accepted the report on October 14, 2011, he claimed.

“The AG ought to have placed the report and the minutes of the EGoM proceedings…. It is surprising that he did not do so. That he did not means that he has come before this court with unclean hands, because the Union of India has already accepted that which is an inevitable consequence of the (2G) judgment.”

The government, Swamy contended, should not have unnecessarily sent in this reference on the same points after having got the answers from the high-power committee.

Swamy urged the top court to return the presidential reference without examining the issues raised in it. The government has raised the issue of whether courts had the power to lay down policy prescriptions for the government in view of the separation of powers between different wings of governance enshrined in the Constitution.

Not only can the courts set aside any mala fide or illegal policy decision, they can also direct the government that the only policy for disposal of its natural resources for commercial exploitation that meets the constitutional principle of transparency and Article 14 was auction, he argued.

He also claimed that any opinion expressed by the constitution bench even obliquely on the 2G judgment would have severe collateral damage on the ongoing trial in the special court trying the 2G spectrum scam cases.

He drew the court’s attention to the fact that the government had failed so far to implement the February 2 2G judgment for one reason or another.

“None of the licences have been cancelled formally as yet. The government is merely seeking adjournments. Two have already been granted. One more extension of time is slated for end of August. Therefore, any opinion expressed by (the court) will likely delay further the implementation of directions and would also lead to delays in the trial court proceedings.”

He cited the example of the Ayodhya reference, which the top court had refused to answer on the ground that the government, through the President, was outsourcing its responsibility to the court and that the court apprehended that its opinion was intended “to create a public climate for negotiations”.

This court then held that giving any opinion on Ayodhya would compromise its credibility, Swamy pointed out.

In this case too, Swamy argued, if the court was convinced there was a shadow of doubt that this reference was an outsourcing of executive duty as in the Ayodhya matter, or an outcome of a hidden agenda about matters that have become final, the reference must be returned without tendering an opinion.