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A PRESIDENTIAL REFERENCE, YOUR HONOUR

If the new advertisement campaign of a mobile company, whose license was recently cancelled by the Supreme Court of India (“Court”), is anything to go by, then the coming days are sure to witness protracted litigation with telcos attempting all possible legal remedies to secure their investments and ongoing operations. A few mobile operators have already filed a review petition against the 2G judgment and the majority shareholder of another mobile company is believed to have invoked its bilateral investment treaty alleging India to have breached its obligations under the treaty. But these telcos are not alone in the fight. Having expressed its inability to meet the four month deadline for fresh auction of 2G airwaves, the Government has moved both a clarification application and has also filed a ‘limited review’ of the 2G judgment. Amongst all of this, there is continued talk of a presidential reference to seek the opinion of the Court on how to implement its 2G judgment. While all reviews are limited by their inherent nature and the Government may well be contemplating to seek the Courts opinion generally on the issue of allocation of national resources, it is difficult to comprehend a presidential reference to seek the Courts opinion on implementation of its 2G judgment. Here’s why.

Article 143 of the Constitution, confers a discretionary function on the Court to give its opinion on any question of law or fact which is of public importance that may be referred to it by the President. Upon a reference being made, the Court gives notice to the Attorney-General forIndiato appear and take directions from the Court on the institutions or persons who should be parties to such special reference. The hearing of a reference is conducted before at least five judges, where all parties are heard, in a manner akin to regular court proceedings, but the hearing is restricted to the questions on which the reference was made and the Court has no power to either substitute the facts or formulate/supplement questions not mentioned in the reference.

Upon conclusion of hearing, no judgment, decree or order is passed. An opinion of the majority of the judges is prepared, which is then forwarded to the President in a report. The powers conferred under the said Article are not part of the Courts administration of justice, but part of the Courts advisory functions contemplated to assist the President with his executive duties. Thus, while there are conflicting views on whether the opinion of the Court under Article 143 is law as defined under the Constitution, it is fair to say that even the advisory opinion has high persuasive authority and is relied upon by the High Courts. In fact, 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 the Government shall accept the same as binding as regards the questions on which the opinion is sought. It is, however, pertinent to note that between an opinion given under Article 143 and a contested case, the law declared in the contested case takes priority.

Notably, the Court has the discretion to decline to give 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 one occasion the Court declined to answer a presidential reference and returned the same. 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 to give speculative opinion on hypothetical questions. Hence, so far presidential reference has been made on matters relating to constitutionality of an enactment and of a pending bill, on questions of law involved in the implementation of an international agreement with Pakistan and to seek opinion on interpretation of constitutional provisions.

Remarkably, so far an opinion of the Court under Article 143 has not been sought in regards implementation of a judgement of the Court. This may be because the Court has previously opined that the jurisdiction under Article 143 cannot be used to reconsider any of the Courts earlier decisions and the Court does not enjoy appellate jurisdiction over itself. It is settled law, that what cannot be done directly cannot be achieved through indirect means either. Hence, 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 given 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 review under Article 137. The Constitution vests no authority or appellate powers in the President, while seeking the opinion of the Court under Article 143, to also ask for a review of an earlier decision of the Court.

Thus, if a presidential reference cannot be sought and review petitions have limited success what are the options before the Government? While it’s both difficult and inappropriate to speculate, one expects the Government to take benefit of a decision of the Court that “to prevent abuse of its process and to cure gross miscarriage of justice, it (Court) may reconsider its judgment in exercise of its inherent powers.” Such reconsideration can happen even after dismissal of a review petition, but only in the rarest of rare cases, where palpable injustice is brought to the attention of the Court. In fact the inherent powers of the Court, provided under Article 142, are wide, unlimited and empower the Court to make any order as is necessary for doing complete justice in any cause or matter pending before it. The powers under this Article were deliberately undefined and are intended to address situations that cannot be tackled by existing provisions of law. But these inherent powers must be used to supplant substantive laws applicable to a case and cannot be used to ignore express statutory provisions dealing with a subject and can definitely not be invoked contrary to any provision of a statute.

Exceptionally, if there is glaring injustice, the Court can even exercise its powers under this Article suo-motu i.e. on its own. But given that the powers under this Article are curative in nature, they often take shape of a Curative Petition. A Constitution Bench of the Court laid down the mechanism for such petitions and it is notable that a Curative Petition is first to be circulated to a bench of three senior-most judges of the Court, asides from the judges who passed the original judgment, if available, totalling five judges. It is only when a majority of these judges conclude that the matter needs hearing that such petition is then listed before the same bench that originally heard the case to pass appropriate orders.

And while the inherent powers of the Court for doing complete justice include looking into equitable considerations for passing orders, the Courts extraordinary jurisdiction cannot be exercised on sympathetic ground and most certainly not where granting a relief would amount to perpetuating an illegality.

At this stage, the burden of proof, to show that the 2G judgment is causing or will cause grave injustice, is on the parties aggrieved by the decision and seeking its reconsideration. One clear ground for relief would be if the judgment affects rights of parties who were not before the Court, and were therefore not heard, but whose interests are adversely affected by the judgment. And till such time that such gross injustice is established, its not just the telcos who have their wires in a knot, but the customers, employees, service providers, foreign investors and collaborators, financial institutions and even the regulator who is watching with baited breath which way the judicial wave blows.

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