The Constitution bench headed by the outgoing CJI Mr. SH Kapadia has answered the presidential reference in a manner that appears to partially vindicate the claim of the government that the right of framing policies are indeed vested with the executive and no one can trespass in to this domain. A chorus of I said so has emanated from the ruling party quarters led by Kapil sibal who is believed to be one of brains behind this idea of seeking Presidential reference( the other being Mr.P Chidambaram) even though PM and his close buddy Dr.Montek Singh Ahuluwalia were not at all enthused by the idea after the scathing judgment in 2G allotment resulting in cancellation of 122 or so licences issued by the ex Telecom Minister A Raja. Kapil in his usual way cited this as a vindication of his and thereby his party’s stand and constitutional fun ctionaries ( read CAG) should hereafter be careful while commenting on policy issues of the government.

In  fact BJP was taken aback by this friendly judgment for they were expecting the SC to dismiss the reference itself as being in fructuous as claimed by Dr.Swamy and Soli Sorabjee as they felt the judgment in 2G has unequivocally stated that auction of natural resources are the only way to ensure transparent sale and allocation of scarce resources.  The bench however said that auction may not be the sole way to allocate natural resources, maximization of revenue need not be the sole criteria of any public policy and that the said judgment mandated  auction as being the sole way of allocation as it were attractive with the prices. Any way the judgment said that it is prerogative of the executive to allocate natural resources in whatever way it can provided there is overriding public consideration.  

Arun Jaitley later on commented that post retirement considerations could have been a reason for such judgments without actually referring to the issue and to the particular judge who delivered it. This was ofcourse uttered out of frustration for he has taken the position that he agreed that allocation of natural resources fall with in the domain of executive but the manner should be transparent. In his article in Indian Express however he feels the presidential reference was in fact filed to derail the ongoing 2G trial and over turn the earlier judgment.

The judgment has however clarified that judiciary has no role in policy formulation an d this applies equally to other functionaries as well. While dismissing a PIL on overreach of CAG, the court observed that CAG is not a munim but can comment on policy matters. But to decide if CAG overstepped its mandate, it will be Parliament which will have to take the call.

This is surely a great reprieve for a government battered on all fronts in the issue of corruption.