Governance policy class: what is a presidential reference?

Govt seeks clarifications from supreme court on 2G spectrum order

prasanna

Prasanna Mohanty | April 12, 2012



Today, the government has filed a 'presidential reference' with respect to the supreme court verdict in the 2G spectrum allocation. Here is a simple introduction to presidential reference:

What is a presidential reference?
Whenever the government is in doubt about legal issues or matters of great public interest and even disputes involving the states or the states and the union, it takes recourse to a ‘presidential reference’. It means, the matter is refered to the supreme court, which deliberates upon it and sends back its considered opinion to the president.

Why is it called 'presidential reference'?
Since the government functions on behalf of the president, the reference is sent to the president and then submitted to the supreme court under her signature and seal.

Which constitutional provision provides such recourse and what exactly it says?
Article 143 of the constitution provides for presidential reference. It says: “(1) 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 and
(2) The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon”.

Article 131 deals with inter-state disputes and disputes between the union and the states and says the supreme court has the ‘original jurisdiction’ in the matter.

Why has the government sought a presidential reference on the 2G order?
The supreme court had, in its order of February 2, cancelled 122 2G licences granted during the tenure of telecom minister A Raja on the plea that these licences were issued in an ‘arbitrary’ and ‘unconstitutional’ way. The government had filed a review petition challenging the order which the court rejected. The government apparently thinks that certain policy and legal issues arising out of the 2G order need clarity in order to proceed further and re-issue the licences which the court had desired.

What are these policy and legal issues?
The government has sent eight questions to the supreme court. These include: whether the February order makes auctioning of the 2G licences compulsory; whether the order runs contrary to its earlier orders, whether the order is tantamount to intrusion of the court into the domain of policymaking; whether the order makes auctioning of all natural resources compulsory and whether the order is enforceable with retrospective effect, impacting on all the licenses granted on the basis of first-come-first-serve (FCFS) in the past.

Were there such references in the past too?
Yes, there have been several such instances in the past. Some of these are: Dispute between Punjab and Haryana over sharing of river water in 2004, selection of judges after the supreme court orders gave primacy to the judiciary over the executive and whether a Hindu temple existed at the Babri Masjid site after the masjid’s demolition.

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