The Supreme Court has spoken. If only it had been able to speak earlier, and not only in the same voice, but also the same tenor, the Indian nation and society could have been avoided an enormous sense of perceived loss, and abject loss of confidence in the system. India could have cut less sorry a figure in the international world order. Yet, that is a price society pays to be a democracy, with different institutions playing their respective roles, and with those at the helm of each doing what they believe, is the outcome of the best of their abilities.
In what would be music to the government's ears, the court has issued an opinion on a reference made by the President of India comprehensively dealing with various aspects of how to deal with natural resources. The court has elaborately discussed what the larger "common good" would mean, how it could indeed question the considerations for which the government adopts a certain process, but it has made it clear that there is no hard and fast rule that the government may only adopt auctioning and maximizing revenues as an exclusive means of allocating natural resources in society. The court has said that the potential for abuse is not a barometer for judging the legality of a method, whether there has been abuse is indeed subject matter of permissible scrutiny.
After a bench of the Supreme Court had ruled on the public interest litigation in the "2G Scam" case, it was widely believed that any method other than an auction, and any objective other than maximizing revenue, would be regarded as unconstitutional. The government made a reference to the Supreme Court in its advisory jurisdiction to opine and clarify what the law should be.
The petitioners in the 2G Scam case objected vehemently that a final decree of the Supreme Court was being sought to be negated in the garb of a reference under the Indian Constitution, which allows for questions of law to be referred by the President of India to the Supreme Court for an opinion. The court is not obliged to give its opinion on such a reference, but when it does, its opinion goes a long way in giving precision and certainty to the questions in issue. The answer from the Supreme Court in this case does exactly that.
The apparent fraud that took place in the telecom ministry when allocating 2G spectrum has been subject matter of investigation by investigating agencies for a while now. Even while investigations were pending, the public interest litigation, initially triggered by the refusal of the government to probe the telecom minister A. Raja, the litigation in court overtook even the trial of telecom minister himself (who eventually did get investigated when matters went out of hand). In parallel, the Comptroller and Auditor General ("CAG"), which conducts probity audit of the government's functioning, estimated the losses occasioned at a fantastic sum of Rs 1,76,000 crores, adopting models that are not immune to question.
Ruling in the 2G case the Supreme Court had held that the process adopted by the telecom ministry was tainted by illegality, and had quashed the spectrum allocation that the government had done. Thus, the due process that Raja would get in his trial stood permanently jeopardized (once the Supreme Court has ruled that actions were illegal, there is no hope for an accused to get an acquittal from the juniormost minister of the judicial system conducting his trial). However, the perception of loss suffered, has led the entire Indian society, including even those well educated in law, to think of such suspension of the rule of law as purely academic.
However, the 2G Scam judgement resulted in much wider implications. If it were to be suggested that the only option for government is auction natural resources and to maximize revenue, the government would be unable to meet any of its other objectives that conflict with revenue maximization. For example, one could argue that land allocated years ago at an inexpensive price to a hospital now making reasonable profits, was a scam, while without the inexpensive availability of land, the government may not have been able to cajole the hospital into being set up. Any involvement of any non-governmental entity into any space of social conduct by the government could have become frozen if such an approach were to have been adopted.
The CAG has continued with its questionable methods of estimating losses suffered, and investigating agencies do adopt the CAG's statements as basis to initiate investigations. The CAG is only doing its job. It is doing it creatively. It is the rest of the system that is manhandling the CAG's findings and is not able to let the envisaged role of the CAG run its course - Parliamentary debate on the CAG's findings and taking note of the comments made by the government before the Parliamentary Committee designated for the purpose. The next "scam" looming is the findings on allocation of coal.
Whatever the Supreme Court has now said will still not apply to the 2G Scam case. In fact, dealing with the objections to the reference being considered, the court took note that the government was not seeking to disturb the ruling in that case at all. In short, although the court is of a view that is contrary to the outcome in the 2G Scam case, those affected by that ruling would have to suffer that ruling. Not for nothing the adage that good law and good justice are not necessarily companions.
The price we have paid for democracy is expensive, but the alternative could only be a regime of dictatorship, where no one would even be able to raise any of the questions the 2G spectrum controversy raised.
(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.)