Courting reason

The Supreme Courts opinion on a presidential reference,following from its order to cancel a set of telecom licences in February,is a well-considered and much-needed intervention. So far,the debate on how natural resources should be allocated has all too often veered towards cacophony,and several crucial lines have been blurred. An assortment of bodies has begun to usurp the role of policy-making in economic affairs. The court restores that power clearly to the executive. It says that the courts lack the necessary expertise to decide the methodology for the disposal of natural resources,which is an economic policy. Consequently,it says,the judiciary must respect both the mandate of the executive to frame policies on how to allocate natural resources and its wisdom in such matters. According to the court,the auction of resources is,then,only one of the principles by which resources can be given out it cannot become a constitutional issue.

The courts opinion could well become the determining principle for crucial aspects of economic policy-making by the Indian state. Even as it asserted the supremacy of the executive,however,it has also laid out the limits. The single-judge bench of Justice Kehar Singh has kept open for the courts the right to test the legality and constitutionality of the methods adopted. The courts,he notes,are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless,the judiciary cannot and will not compare which policy is fairer than the other unless a law is patently unfair,falling foul of the fairness requirement of Article 14 of the Constitution.

This opinion does not disturb the validity of the judgment in the 2G case,including the cancellation of the telecom licences. But tomorrow,for instance,the government can decide on how to deal with the excess spectrum beyond 6.2 mghz,treating it as a policy issue. It can auction the airwaves,but it can consider other methods too. Notably,the courts opinion is likely to limit the CAGs remit as well,in terms of suggesting policy alternatives. As the arena of enterprise becomes wider,and the race for resources speeds up,this setting out of the rules of engagement by the apex court will ensure that the government can act more confidently,fearing only the penalties of violating due procedure,not kangaroo judgments.