Can you step into policy-making,govt asks Supreme Court

Courts can neither don the role of a policy maker nor be expected to have any expertise in it,the petition said.

Written by Express News Service | New Delhi | Published: March 3, 2012 1:51 am

Questioning the authority of the Supreme Court to insist that the only way to transfer a natural resource is by auction,the Centre wants the court to re-consider whether it had not encroached into government territory by declaring the first-come-first-served (FCFS) policy as “per se flawed”.

In a review petition filed by the government against the February 2 verdict quashing the grant of 122 UAS licences and allocation of 2G spectrum in 2008 by the A Raja-run telecom ministry,the government said a policy decision to allocate spectrum could not have been the subject matter of judicial review.

The petition said the essence of policy making — the weighing and balancing of different values and considerations — is in the exclusive jurisdiction of the government.

Courts can neither don the role of a policy maker nor be expected to have any expertise in it,the petition said.

“When it comes to alienation of scarce natural resources like spectrum etc.,the State must always adopt a method of auction by giving wide publicity so that all eligible persons may participate in the process. Any other methodology for disposal of public property and natural resources/national assets is likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values,” a Bench of Justices GS Singhvi and AK Ganguly had held.

The government asked if courts can go beyond the settled laws of judicial review and enter the realm of policy-making.

The court had said the government was duty-bound to adopt the method of auction while alienating natural resources and gone on to declare that FCFS policy was violative of Article 14 (right to equality) of the Constitution,the petition points out.

“We have no doubt that if the method of auction had been adopted for grant of licence which could be the only rational transparent method for distribution of national wealth,the nation would have been enriched by many thousand crores,” the judgment had said.

In the petition,the government raised the query as to whether the court can,on it own,come to a conclusion that one particular policy was better-suited in public interest than the other.

In the judgment,the court had attacked the FCFS policy,saying there was a “fundamental flaw in the principle of first-come-first-served inasmuch as it involves an element of pure chance or accident”.

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