Information War on Citizenship Act

In the past couple of weeks, the kind of reporting we have seen in Indian and in world media backed by several motivated academicians and politicians on the recent amendment to Indian’s Citizenship Act, can only be described as an Information War, that has been unleashed on the Indian state. It is well known that the ruling Bhartiya Janata Party is seen as a right-wing nationalist party. In India it is seen as a party with primarily Hindu voter base. In international media it is often described as a Hindu nationalist party which in their eyes is a negative portrayal. The ideological opposition to BJP is well entrenched in the left leaning English media in India and also in similarly inclined western media. In general, western media has a negative view of India as a result of cold war dynamics of the past, but off late with the political rise of BJP in India, they have a particularly negative view about India under BJP government.

Various reasons can be attributed to this entrenched opinion. Political positions viewed as right wing are automatically disliked by self-described left liberal media. Influence of Christian evangelical organizations on western and even local Indian media is another factor, since these organizations see the BJP as a less conducive to their evangelical project in India. Similar motive can be attributed to media organizations under influence of Islamic evangelical organizations and Islamic countries. When such motivations are at play then its is almost impossible to expect reasonable analysis of events in India from these media organizations. Their criticism however is often cloaked in the language of liberalism, pluralism, women’s rights, democratic values etc.

There is also a set of Indian urban population which has primarily grown cut off from the civilizational ethos of India under the influence of an education system that specializes in turning the mindset of people away from anything that is culturally Indian in general and Hindu in particular. There is a belief in this population that being less Indian, less Hindu is somehow being more modern. This population has long considered itself to be the guardian of “Indian secularism”. A term which is as difficult to define if not more, than the term Hindutva or Hindu-ness which BJP espouses. In this scenario those who consider themselves anti-Hindutva also consider themselves to be the sole guardians of secularism in India. This group is most turned off by the “Hindu nationalist” image of BJP and views every action by BJP with suspicion. They are also most easily influenced by the western media being English speaking themselves. Many among them consider themselves global citizens who happen to hold an Indian passport.

This urban Indian population especially students of humanities discipline in Indian universities have been under influence of certain ideological groups namely Ambedkarites, extreme Marxist, Islamists and to a lesser degree evangelical Christian groups. The influence of last of these is most subtle since it is not explicitly in Christian fundamentalist terms in most Indian universities but instead in the language of western universalism. This student population has seen BJP as antitheses of what they understand should be the future direction of India. With rise of BJP and loss of political space in electoral democracy to these ideologies they have chosen to combine forces in campus politics by projecting their most extreme form on impressionable college students who are easier to mould towards these ideologies due to a fertile ground created by absence of civilizational knowledge and cultural awareness. In short due to a lack of emic perspective in the humanities education in India these students are most prone to be turned towards these ideologies that are often described as breaking India forces (read Breaking India by Rajiv Malhotra, Aravindan Neelakandan) since they see the cultural underpinnings of India and the mainstream culture as oppressive and worthy of being thrown out.

Some of the recent political decisions by the BJP government like the law banning Muslim practice of triple divorce, curb on foreign funding of Indian NGOs which either work for evangelical purposes or influencing Indian political process, the revocation of article 370 which gave a separate constitution to the J&K state and the judicial decision on Ayodhya Ram temple case which went in the favour of Hindus, left these ideological groups completely shattered. It was unexpected by them that these important issues on which they had staked their entire existence had gone out of their hands completely. They were confident that no Indian government will be able to change the constitutional status of J&K, that their case on Ayodhya Ram temple was undefeatable and that no government will be able to touch the Muslim personal laws. They considered these issues to be the touchstone of Indian secularism and set back on these issues hurt their cause greatly.

Under this back drop one must see another issue that these forces see as important which is the status of illegal Bangladeshi immigrants in India. Whether you look at the liberal left, or the Islamist both see that inaction by GOI in the problem of illegal Bangladeshi immigrants is the happy state of affairs. No government in past had been able to deal with this problem even when there was a widespread movement in Assam to deal with this problem of forced demographic change in north eastern states especially Assam. One of the reasons for this inaction was the difficulty of dealing with this problem without also affecting the Bangladeshi Hindu population which had come to Indian since the 1971 genocide of Bengali Hindus. It is now well known that 80% of the 10 million refugees of the Bangladesh war that came to India were Hindus so were the approximately 3 million victims who were killed in East Pakistan by the Pakistani army. It would not be wrong to say that it was genocide particularly of Bangladeshi Hindus which is easy to see if one compares the census figures of Bangladesh from the pre and post war periods. 

The recent change to the citizenship act which was done by the BJP can be seen as an attempt to solve this conundrum. How to protect the population of religious minorities from Bangladesh living in India from any legal action for deportation back to Bangladesh, where they are vulnerable, but at the same time be able to act on the illegal economic migration from Bangladesh, which has changed the demographics in North eastern states in particular, but has also led to creation of settlements of Bangladeshi populations in several cities in rest of India? This law which provides a faster path to Indian citizenship to religious minorities from Afghanistan, Pakistan and Bangladesh and prevents their deportation on grounds of illegal entry or lack of valid documents of entry is a safety net to protect this population for any future state action against illegal economic migrants living in India. A vast majority of such migrants are Bangladeshi.

This distinction between refugees escaping religious persecution a majority of whom happen to be Hindus and the illegal economic immigrants a majority of whom happen to be Muslims does not go down well for the self-described liberal secularists in India. Thus, the Citizenship Amendment Act and the expected national register for citizens which would follow was seen as the final nail in the coffin of secularism by them. They first argued that the CAA is not permitted in Indian constitution which is secular. When it is pointed out that the same constitution permits special consideration to religious minorities when its comes to freedom of operating their educational and religious institutions which Hindus don’t get, or how it is permitted for the state to provide special scholarships and run state funded educational institutions which provide reservations based on religion, how it can run a special minorities affairs ministry and can tolerate separate personal laws, these inconvenient questions are completely avoided by them. The question of legality of this law has been challenged by them in the courts, which has for now refused to stay the act and given the central government one month to respond to the objections.

Without waiting for the court decision to arrive they immediately cried foul of the motive of the government in bringing the CAA in conjunction with yet to be announced pan India National Register for Citizens. While their concern is that with the difficulty of Bangladeshi Hindu refugees being resolved by CAA the illegal Bangladeshi economic migrants now become vulnerable to state action in any future NRC, they chose to project the CAA and NRC exercise being somehow against Indian Muslims. Their weird argument was that Hindus and other religions except Muslims are protected by CAA safety net in any future NRC. Which is completely wrong since CAA is for foreign refugees not for Indian citizens. No Indian will ever choose to apply for naturalization using the CAA route just because his or her name is missed in any future NRC due to lack of any required documents. Naturalization is a longer process and will require clearance by intelligence agencies etc. If such an application is rejected that this person will be left in the lurch despite being an Indian citizen for several generations. It would be utterly foolish for an Indian national to do this rather than produce a community certificate or witnesses from the community in lieu of government issued ID. This was also clarified by spokesperson of the home ministry.

On this rumour that NRC+CAA combine will disenfranchise Indian Muslims in particular they ran a nation-wide campaign against CAA. In this media war the central government of India was projected as being of fascist intent that wishes to put Muslims in detention camps also called in some circles as concentration camps. Such absurd claims and hijacking of the movement by radical Islamists lead to large scale rioting in several urban centers of the country with higher concentration of Muslims. The international media outlets have carried front page articles, editorials and oped criticizing the Citizenship Amendment Act as a “Muslim ban”. When the reality is that it simply provides a faster path and easier process for naturalization to persecuted religious minorities from 3 Islamic countries in the subcontinent. It does not take away any opportunity for anyone no matter what their background on seeking Indian citizenship by naturalization etc by the existing process. What they have described as an action being taken by India for the first time is also not correct. While there was no law as such, it has been the policy of GOI to give special consideration to religious minorities from Pakistan in particular for providing then Indian citizenship by registration or naturalization. It has been seen a commitment by post partition India to provide a refuge to people escaping the Islamic state created in India after partition. This was provided specifically to the non-Muslim communities coming from Pakistan. One is not able to fathom how the executive action remains in the realm of secularism even if favours a particular religion but a legislative action is suddenly a threat to the secular principles of the state.

Given the level of misinformation that is being spread on this issue in India as well as world over, one is struck by the vulnerability of the Indian state to information war of this kind. No matter how many clarifications are given by several quarters, whether state institutions or private individuals, the rumour and the fear mongering around it refuses to die. Riots and protests by university students against the CAA continue unabated. Several lives have been lost, corers of rupees of public property has been damaged and India’s reputation abroad is tarnished in the campaign which has flimsy factual grounds. While one would have understood the academic disagreement on the approach or the legal questions raised on the Law which could have been discussed and resolved in rational manner, the irrational public outrage at display has every marking of an information war that the Indian state needs to better prepare itself for and be able to pre-empt and counter in future, through appropriate communication strategy. The grip of combined breaking India forces on Indian universities is also a cause for worry and the long-term security risk for India that needs to be solved by introducing the emic perspective in Humanities education and making it the mainstream perspective rather than the fringe perspective it currently is. It is only though giving primacy to civilizational knowledge systems in humanities education can this be done. Which is of course another battle ground for the “secularists” who will resist it at every level in the name of it being Hindu.

Citizenship Amendment Act 2019

We have witnessed a sea change in the approach of National Democratic Alliance government since the 2019 election towards addressing issues that have been long in the election manifesto of BJP, compared to the previous five years. Many people were expecting that 2019 general elections will produce a much reduced mandate in the backdrop of the state assembly results in Madhya Pradesh, Chattisgarh and Rajasthan which were held just before the general elections. But the mandate received by the NDA was much bigger than last term. We have seen that not just in Lok Sabha but also in Rajya Sabha NDA has been able to muster a majority with the help of parties which are not in formal alliance with BJP, like Biju Janata Dal and AIADMK.

With this stronger mandate from the people of the country, BJP has found itself in a position to implement the long held promises in its manifesto. We have seen the long awaited scrapping of Article 370 which was seen as unexpected in terms of the swiftness with which it was executed. While the dust had not yet settled on Article 370, NDA went ahead and addressed another difficult problem of what to do about the crores of refugees from neighbouring states who have been living stateless in India for decades. Since partition of India in 1947 and the further splitting of Pakistan in 1971 after a mass genocide of East Pakistan population by Pakistani Army and its supporting militias, an overwhelming majority of whom were Hindus, there have been several waves of immigration of religious minorities from Pakistan into India.

There is almost daily news on the persecution that religious minorities face in the self declared Islamic countries of Pakistan, Bangladesh and Afghanistan. There are hardly any Sikh and Hindu citizens left in Afghanistan since the advent of Taliban. The Population of religious minorities has seen a steady decline in Pakistan and Bangladesh. Even in the population which was left after the initial population exchange at the time of partition, there has been reduction of more than 50% among the Hindus in these countries. It is no body's case that religious minorities enjoy any semblance of religious freedom in these three Islamic countries. Abduction of Hindu, Sikh and Christian minor girls and forced conversion after marriage is a common occurrence in Pakistan's Sindh province where majority of Hindu population of Pakistan lives. In Bangladesh also restrictions on Durga Puja, destruction of temples and forced occupation of property of Hindus is very common. All these of these countries are constitutionally Islamic states which discriminates against religious minorities by Law.

Religious minorities from these three countries in the subcontinent are estimated to be close to 2 crores and are living in India stateless for decades. India has given citizenship to such refugees in past via executive orders. Some of these instances have been cited during the parliamentary debate over the citizenship amendment bill. While the refugees from Pakistan have been absorbed as citizens in batches, the most contentious issue has been about the twin problem of refugees and illegal economic immigration from Bangladesh. It is no body's case that the majority Muslims from these countries can claim state oppression based on religion. The qualitative difference has to be understood that while some citizens who happen to be Muslims may face oppression because of political activism or other reason but the religious minorities face discrimination by state and by the community in large simply for "existing".

Government of India has an obligation towards its citizens to secure its borders and keep a check on illegal immigration. However it is well known fact that over the years GOI has been terribly lax in this effort. Out borders are porous and movement of people and smuggling of goods takes place with impunity. This is a result of a weak state with lopsided priorities. The primary function of the state is internal and external security, but India's spending on this is woefully low. While the socialist welfare state spends its resources and energy in running inefficient loss making public sector companies in areas where the state should simple not operate like running airlines. As a result of this lack of attention wilful or otherwise the borders have been left unsecured and a huge population of illegal migration primarily from Bangladesh has resulting in change of demographics primarily in the norther eastern states, but also in several other parts of the country.

This gordian knot which is as complex as or perhaps even more complex than article 370 had to be cut and it has been cut by the twin actions of Citizenship Amendment Act(CAA) and the Nation wide register of citizens. This nation wide NRC is already part of the Citizenship Act which was added to the act in 2003 in article 14A of the act but it has not been implemented yet. The CAA 2019 essentially provides a one time amnesty to the illegal migrants who have been persecuted in these three Islamic countries in the subcontinent on the bases of their religion and form a minority population their. As has already been mentioned before there isn't much data required to be presented to prove this the religious census in these countries clearly establishes the dwindling populations of religious minorities there, in contrast with flourishing population of religious minorities in India. In fact the population of Hindus is in steady declined in India under the twin pressures of relatively slower birth rate and mostly unethical targeted religious conversion which is directed primarily towards the Hindu population. In Bangladesh in particular there has been large scale targeted persecution of Hindus. It has been established by other sources which I cite here 80% of the 10 million refugees who came to India in 1971 and 80% of estimated 3 million killed in the genocide perpetrated by Pakistan army in then East Pakistan were Hindus.

Under this backdrop of 71 genocide and the partition of the country on religious lines which left a number of religious minority populations in these Islamic states it was and continues to the be responsibility of Indian state to provide refuge to these people who were stuck on the wrong side of the border for no fault of theirs. While it is not in the interest of the Indic civilization that Indic population goes extinct in these states which were once flourishing centers of the civilization. But at the same time India cannot turn its back on these populations who have sought refuge in India and are living here as stateless and send them back to their source countries. There has been recent news of how 500 Hindus who were deported from Rajasthan to Pakistan were en-masse converted to Islam.

In treatment by the Indian state in grant of citizenship or otherwise they should not be considered at par with the illegal economic migrants. While both have entered India illegally one group has entered under threat of persecution based on religious lines and the other for economic benefit. It has been reported in 2014 that as much as 6% of the GDP of Bangladesh is the amount of remittance that the Bangladeshi workers send back home from India. They prefer India because of ease of entry and low cost of migration since they don't need to procure "Passport" etc to come to India. This number is four times of the remittance they receive from Saudi Arabia. This clearly points to the enormity of the problem of illegal immigration from Bangladesh and loss of employment opportunity to own  population in the low end labour market of India.

CAA makes this clear distinction by giving these refugees twin guarantee that they would not be deported if they belong to 6 religious minority population of Afghanistan, Pakistan and Bangladesh as defined in the Act and by reducing the wait time for their naturalization from 12 years to 6 years of aggregate period of stay in India. This is all that the act does it gives a fast track process for application of citizenship of India by registration or naturalization by these refugees and protection against deportation. It does not take away any right from any one else whether Indian Citizen or a foreign national applying for the citizenship of India or seeking asylum on any grounds. It has to be understood that the refugees need to apply for citizenship. So it is possible that their application may be rejected and they may be denied citizenship. But my interpretation of the CAA 2019 is that they will still enjoy protection from deportation if they belong to religious minorities from these 3 countries as defined in CAA 2019.

Many arguments have been made that this act is against secular principles. Claims are being made that it is unconstitutional. The fundamental logic that such arguments don't answer is that if Indian state can give special rights to religious minorities in India,w can it not give special rights to the religious minorities of these countries in the process of seeking citizenship of India. How can one act be secular but other cannot be secular. The definition of word secular it self is not very well defined. Indian state regularly interfears in the matter of religious activities of Hindus who happen to be national majority but not necessarily regional majority in every state of India. So I do not quite understand how this act fails the secularism test. The individual Muslims from Af-Pak and Bangladesh can still apply for Indian citizenship via the normal process. That right has not been denied to them, only a certain section of population from these countries has been given easier process as against the usually more complex process of acquiring Indian citizenship. Various aspects of the legality of this act have been mentioned by lawyers like Harish Salve.

Some people have argued that a combination of CAA and nation wide NRC is discriminatory towards Muslim Indian citizens since compared to say a Hindu who is rejected in NRC and a Muslim who is rejected in NRC the Hindu will not be expelled but a Muslim would. This is far from the truth and stems from incorrect understanding of Citizenship act and the process of naturalization after CAA and the process of national ID both of which are part of the Citizenship act. As has been explained by home minister several time the NRC process will not look at religion of a person at all. CAA will look at religion only for foreign nationals who apply for naturalization under the new process because of religious persecution in these 3 countries. It would be a weird argument to make that a Hindu who gets excluded in NRC will not be expelled if found to be a foreigner. Only a foreigner from these three countries will logically apply for naturalization under CAA. Why would a Hindu Indian citizen whose several generations have lived in the territory of India claim to be Pakistani and then claim persecution for claiming naturalization? Why would he risk his application being rejected and ending up being truly stateless? This logic is beyond belief. But this is the main argument made by the people who oppose CAA and protest on streets.

People are rioting, op-eds are being written, placard wielding students including law student are protesting over this supposedly unequal treatment that Muslims will get since they cannot claim this illegal way of getting citizenship by naturalization and a hypothetical hair brained Hindu can. Any such attempt will only make the case weaker for such a person and the process more complicated since it will trigger more scrutiny by Intelligence Bureau and may result in a rejection of claim when a perfectly legal way of resolving this issue of lack of documents could be found if not via the executive branch of the government then by approaching judiciary.  IB director had told the JPC on Citizenship Amendment Bill that the immediate beneficiary of this act will be around 31,000 refugees who have already applied for citizenship based on religious persecution. But any future claim while not disallowed will require enhanced enquiry by both Internal and External Intelligence agencies of India.

Now that some groups have challenged the act in court we await the judgement of the Supreme court of India to see whether the Act stays as is, parts of it are struck down or all of it is struck down. But the series of violent riots that have taken place across the country and the student protest in certain colleges where they have blocked normal functioning of the colleges shows that these people are not in line with the principles of constitutional democracy and the duty of a citizen to remain peaceful during public demonstrations etc. These actions also amount to putting pressure on the courts which are hearing this matter currently. Such activities should be avoided and court should be allowed to make a judgement on all aspects of this law.

Personal Tragedy V/S National Tragedy

When a man commits an illegal act and gets caught, it is no doubt a personal tragedy for him and his family. I am sure most people regret that they erred in their judgement. They would certainly not like to be in jail and would wish that the past act would never have taken place. Unfortunately the legal process in our country has its own pace. The under trial has to go through a long trial in the courts. For an innocent person such a trial can itself be the punishment on the other hand for the guilty it may even be an act of buying time. The Bombay blast case has gone one for 20 years. The victims of the blast have waited 20 years for justice which is still elusive because the masterminds of the blast are still beyond the reach of law.

Sanjay Dutt was convicted by the supreme court for illegal possession of banned weapons and sentenced to the minimum sentence prescribed by law. Then he along with some other accused punished for similar crime were given 1 month to surrender. Today Sanjay Dutt got another reprieve to surrender after another 4 weeks. He wanted to finish his films before going to jail to serve his sentence for which he wanted 6 months reprieve. So the court in supposedly "humanitarian grounds" gave him 4 weeks with no further extension and he accepted. All in all this whole episode gives the appearance of a bargain for delay rather than humane gesture. If the producers have money locked in on Sanjay Dutt then the question here is of money not of "humanitarian grounds". A mother who has a child appearing for his school exams probably deserves more humanitarian gesture for month delay rather than a movie actor who wants to finish his films so that he and his producers do not suffer a loss.

Whatever be the real truth, in the end this case gives an impression of deliberate delay to keep a rich, politically connected celebrity out of jail for as long as possible, rather than one of delivering justice where justice is due. Mr Dutt's claiming suffering due to inordinate delay does not cut the bill; after all Mr Dutt did not spend his years out of jail, since he was first arrested, doing national or social service to deserve a reprieve. He was busy making money, living the good life and working for entertainment of his movie loving fans. It does not quite cover for the loss that the victims of the 93' Bombay blast had to suffer. Given the circumstances under which he has been found in illegal possession of banned weapons, he has knowingly or otherwise been linked with the entire bombing episode which he should have certainly avoided.

Whatever be Sanjay's personal tragedy it does not cover for the national tragedy which people of India have collectively suffered. The court seems to have erred, but people are not pleased and the politicians along with the government of Maharashtra should be forewarned, not to act on Sanjay's mercy plea in a way which will lead to dissatisfaction among the people of Bombay, because they are in no mood to forgive.

What You Should Know About the Supreme Court Judgement on Auctions

On 27th September 2010 a Supreme Court(SC) bench comprising of 5 judges pronounced its judgement on a presidential reference filed by the government to seek clarity on the decision of SC in 2G case. It should be recalled that 2G case decision was pronounced by SC in Feb 2010 in which all 122 licences which were granted by government in a first come first serve allocation process were cancelled since the process was found to be illegal.

In the 2G judgement the SC had mentioned that
"The exercise undertaken by the officers of the DoT between September, 2007 and March 2008, under the leadership of the then Minister of C&IT was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality. The material produced before the Court shows that the Minister of C&IT wanted to favour some companies at the cost of the Public Exchequer.".
The court had also observed the following
"In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first-come-first-served when used for alienation of natural resources/public property are 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. In other words, while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process."

The stricture issued by the court left the government in fix on two fonts one, how to cancel the licenses it had granted to the private parties without a backlash from the foreign government and foreign industry, and second this judgement had in effect put the government in spot with all it previous allocation of natural resources where the process followed was not necessarily transparent and might have resulted in private parties benefitting at the cost of the nation.  It tried to first seek a review of the 2nd Feb Judgement in the SC but when it was questioned by the Judge whether it really was seeking a review for the directive to allocate 2G licenses. The government finding that 2G is perhaps a lost cause withdrew this petition.

Later it filed a presidential reference under article 143(1) of the constitution which is used to seek clarity from the SC "on a question of law which has arisen or likely to arise". Essentially this article is used by the government to clarify any doubt it has on a question of constitutional law and it seeks SC's direct opinion on it in order to formulate its future course of action. The reference that was filed by the government cited the various processes followed in past for granting licences for telecommunication since 1994 and asked 8 question. Question number 1 to 5 dealt with whether auction can be the only process for allocation of  natural resources and question number 6 to 8 dealt with whether the telecom licenses granted in past which did not follow auction should be cancelled and can no telecom licenses be granted in future without auction.
When this reference came before the court it invited petitioners of the 2G case, representatives of Indian industry (FICCI & CII), the government of India and the government of the States to present their arguments.

The petitioners of 2G case argued that this presidential reference was used to by pass the 2G judgement and if the government wanted a review of the judgement they should follow the due process rather than use article 143(1) which according to them is used only when a question of doubt over law has arisen. They argued that the petition is not maintainable and government's intention was malafide.

Soli Sorabji argued that  "the Reference as framed is of an omnibus nature, seeking answers on hypothetical and vague questions, and therefore, must not be answered. if the present Reference is entertained, it would pave the way for the Executive to circumvent or negate the effect of inconvenient judgments, like the decision in the 2G Case, which would not only set a dangerous and unhealthy precedent, but would also be clearly contrary to the ratio of the decision in Cauvery II"
Prashant Bhushan alleged that "the language in which the Reference is couched, exhibits mala fides on the part of the Executive."

The attorney general Vahanvati on behalf of the government presented that the government had accepted the 2G judgement, and the process of auction for the quashed licences was underway. He argued that "WHEREAS while the GoI is implementing the directions set out in the Judgment at paragraph 81 and proceeding with a fresh grant of licences and allocation of spectrum by auction, the GoI is seeking a limited review of the Judgment to the extent it impacts generally the method for allocation of national resources by the State."

In its judgement the Supreme Court first looked at whether the presidential reference was maintainable, and then it had to decide which of the questions it should reply too. The court after reviewing the arguments came to the conclusion that presidential reference was maintainable as long as the decision with respect to allocation of spectrum licenses is untouched. It mentioned "We are, therefore, of the view that as long as the decision with respect to the allocation of spectrum licenses is untouched, this Court is within its jurisdiction to evaluate and clarify the ratio of  the  judgment in the 2G Case."

SC next looked at whether the 2G judgement had in anyway made it mandatory to use auction as the only mode of allocation of natural resources. After going though all the arguments the court in its conclusion mentioned that the stricture for grant of telecom licenses via auction in 2G judgement was limited to spectrum and did not apply to all natural resources. It said "Thus, having come to the conclusion that the 2G Case does not deal with modes of allocation for natural resources, other than spectrum, we shall now proceed to answer the first question of the Reference pertaining to other natural resources, as the question subsumes the essence of the entire reference, particularly the set of first five questions."

While replying to the set of first five questions the court looked at whether as per article 14 (fundamental right to equality before the law) and article 39(b) (directive principal of state policy which states that distribution of resources should be for "common good") of the constitution there was any mandate that auction should be the only(just) policy to be followed.

After going through the arguments the court held that auction is not a constitution mandate to be followed in all cases of disposal of natural  resources. The court mentioned "The disposal of natural resources is a facet of the use and distribution of such resources. Article 39(b) mandates that the ownership and control of natural resources should be so distributed so as to best subserve the common good. ... Distribution has broad contours and cannot be limited to meaning only one method i.e. auction. It envisages all such methods available for distribution/allocation of natural resources which ultimately subserve the “common good”."

The court also mentioned  that "the submission that the mandate of Article 14 is that any disposal of a natural resource for commercial use must be for revenue maximization, and thus by auction, is based neither on law nor on logic. There is no constitutional imperative in the matter of economic
policies- Article 14 does not pre-define any economic policy as a constitutional mandate. Even the mandate of 39(b) imposes no restrictions on the means adopted to subserve the public good and uses the broad term ‘distribution’, suggesting that the methodology of distribution is not fixed. Economic logic establishes that alienation/allocation of natural resources to the highest bidder may not necessarily be the only way to subserve the common good,and at times, may run counter to public good. Hence, it needs little emphasis that disposal of all natural resources through auctions is clearly not a constitutional mandate."

The court went on the clarify that it can however test the legality of such decision of distribution of natural resources based on the fairness principal. The judgement said "When questioned, the Courts 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, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down."

The court did express an opinion that auction is a more preferable method but not a constitutional mandate. The judgement read "In our opinion, auction despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources and therefore, every method other than auction cannot be struck down as ultra-vires the constitutional mandate."

The court concluded that "our answer to the first set of five questions is that auctions are not the only permissible method fordisposal of all natural resources across all sectors and in all circumstances. As regards the remaining questions, we feel that answer to these questions would have a direct bearing on the mode of alienation of Spectrum and therefore, in light of the statement by the learned Attorney General that the Government is not questioning the correctness of judgment in the 2G Case, we respectfully decline to answer these questions."

Justice Jagdish Singh Khekhar provided a detailed explanation of the courts judgement in a separate judgement in which he agreed with the judgement but never the less provided some clarifications he thought were necessary along with several examples. He mentioned that "there can be no doubt about the conclusion recorded in the “main opinion” that auction which is just one of the several price recovery mechanisms, cannot be held to be the only constitutionally recognized method for alienation of natural resources. That should not be understood to mean, that it can never be a valid method for disposal of natural resources ". He concluded that "no part of the natural resource can be dissipated as a matter of largess, charity, donation or endowment, for private exploitation.  Each bit of natural resource expended must bring back a reciprocal consideration.  The consideration may be in the nature of earning revenue or may be to 'best subserve the common good'.  It may well be the amalgam of the two.  There cannot be a dissipation of material resources free of cost or at a consideration lower than their actual worth.  One set of citizens cannot prosper at the cost of another set of citizens, for that would not be fair or reasonable."

That was quite a lot of information that I have lifted ad verbatim from the Judgment. But I feel it was necessary for me to let the reader know what was exactly mentioned in the judgement, to best inform them of the aspects which in my view were important. Now the question before us is whether this judgement means that auctions are dead? Is GOI off the hook on Coalgate? Will GOI now be able to proceed with future allocation of telecom spectrum without auction? Will we never see a transparent process of distribution of natural resources? Will we continue to suffer because of crony capitalism?

I am not student of law let alone a constitutional expert but I can read English and this judgement is in plain English. My understanding is that this judgement does not really sound a death knell to transparency in general or auction in particular. It merely states that governments can make policy decision while staying withing the ambit of article 14 and article 39(b) of the constitution. It goes on to say that auction is a preferable way though not a constitution mandate. It also gave a stricture to the government that it can strike down a patently unfair policy or law.  It is also important to note that for spectrum allocation the court refused to answer the questions raised by government. Thus this judgement needs to be read into as applicable to cases other than telecom spectrum. As far as telecom spectrum goes the defining judgement was the 2G case and continues to stay unchallenged. It requires the government to follow the policy of auction.

The judgment may give a false impression to some governments ministers that they can get away with arbitrary allocation and they have given statements taking a dig at CAG for 'activism'. But it in no way lets the government of the hook as far as corruption and crony capitalism is concerned. I read a great explanation of how this judgement needs to be read in a Hindu editorial 'Auctions are dead, Long live auctions'.