Earlier the Union Cabinet had cleared the reference on April 10. The reference seeks opinion of the apex court under Article 143(1) of the Constitution on various issues arising out of the judgment that said that the auction was best suited route for allocating natural resources.
The reference has raised eight questions, including whether auctioning of natural resources across all sectors is mandatory under all circumstances and if so, then does this broad proposition of law not run contrary to the Supreme Court judgments including those of larger benches.
The queries raised in the Presidential reference would be debated in the open court only after Chief Justice SH Kapadia sets up a 5-judge constitution bench.
The government wants clarity on whether the enunciation of a broad principle does not really amount to formulation of a policy and has the effect of unsettling policy decisions formulated and approaches taken by various sucessive governments over the years for valid considerations, including lack of public resources and the need to resort to innovative and different approaches for the development of various sectors of the economy.
Besides, what is the permissible scope for interference by courts with the government policy making, including methods for disposal of natural resources, the reference has sought to know.
The queries also include whether the telecom licences granted in 1994, 2001 and between 2003-07 would be affected as they were not auctioned, whether the government can take any action to alter the terms of licence to ensure a level-playing field among all exisiting licensees and whether dual technology licences granted in 2007 and 2008 would be affected.
The reference also seeks clarification on whether it was necessary for the government to withdraw the spectrum allocated to all existing licensees or to charge for the same with retrospective effect, and if so, on what basis and from what date.
The government also wants to know the impact of the judgment on 3G spectrum acquired by some telecom companies whose licences have been quashed by the February 2 judgement.