LexRE: SPECIAL REFERENCE N0.1 OF 2012 versus --
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L [2012] 9 S.C.R. 311 RE: SPECIAL REFERENCE N0.1 OF 2012 A [Under Article 143(1) of the Constitution of India] SEPTEMBER 27, 2012 [S.H. KAPADIA, CJI, D.K. JAIN, JAGDISH SINGH KHEHAR, DIPAK MISRA AND RANJAN GOGOi, JJ.) B CONSTITUTION OF /NOIA, 1950: Art 143(1) - Power of President to consult Supreme Court - Scope of - It is not necessary that the question on which the c opinion of Supreme Court is sought must have actually arisen - The President can make a reference even at an anterior stage, namely, at the stage when the President is satisfied that the question is likely to arise - The satisfaction whether the question meets pre-requisites of Art. 143(1) is essentially a 0 matter for the President to decide - Upon receipt of a reference under Art. 143(1), the only discretion Supreme Court has is either to answer the reference or respectfully decline to send a report to the President - In the instant Reference, Question no. 1 involves interpretation of a constitutional principle E inherent under Art. 14 of the Constitution and it is of great public importance as it deals with allocation/alienation! disposal! distribution of natural resources. Art. 137 and 143(1) - Review and Reference - Difference between - Explained - Held: Merely because a review of the F judgment of Supreme Court in a case had been filed and withdrawn and in the recital of Reference, the narration pertains to the said case, the same would not be an embargo or impediment for exercise of discretion to answer the Reference. G Art. 143 (1) - Presidential Reference - Notice - Practice and procedure. Art. 143(1) - Presidential Reference subsequent to decision of Supreme Court in "2G Case" - Maintainability of 311 H 312 SUPREME COURT REPORTS [2012] 9 S.C.R. A - Held: The Reference is maintainable, notwithstanding its effect on the ratio of 2G Case, as long as the decision in that case qua tis inter partes is left unaffected - By the Reference, Court's opinion is sought on the limited point of permissibility of methods other than auc.tion for alienation of natural B resources, other than spectrum - It has been stated on behalf of Government of India that it is not questioning the correctness of directions in 2G Case, in so far as a/location of spectrum is concerned and, in fact, Government is in the process of implementing the same, in letter and spirit - As long c as the decision with respect to allocation of spectrum licenses is untouched, the Court is within its jurisdiction to evaluate and clarify ratio of the judgment in 2G Case. Art. 141 - Law declared by Supreme Court - Held: The 'law declared' in a judgment, which is binding upon courts, is D the ratio decidendi of the judgment - It is the principle culled out on the reading of a judgment as a whole in the light of the questions raised upon which the case is decided - ln"2G case" the Court was not considering the case of auction in general, but was specifically evaluating the validity of the methods E adopted in the distribution of spectrum during the relevant period - The recommendation of auction for alienation of natural resources was never intended to be taken as an absolute or blanket statement applicable across all natural resources - The choice of the word 'perhaps' suggests that the F Court considered situations requiring a method other than auction as conct;ivable and desirable - Observations in 2G Case could not apply beyond the specific case of spectrum, which according to the law declared in 2G Case, is to be alienated only by auction and no other method - Precedents. G H Art. 14 - Disposal of natural resources by State - Auctions - Held: Auctions are not the only permissible method for disposal of all natural resources across all sectors and in qi/ circumstances - Auction, as a method of disposal of natural resources cannot be declared a constitutional mandate under RE: SPECIAL REFERENCE N0.1 OF 2012 313 Art.14 - Auction despite being a more preferable method of A alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitarion for alienation of all natural resources and, therefore, every method other than auction cannot be struck down as u/tra-vires the Constitution - Market price, in economics, is an index of the value that a B market prescribes to a good - However, this valuation is a function of several dynamic variables; it is a science and not a law -
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