The Supreme Court on Friday sought the assistance of top law officers, that of the attorney general or the solicitor general, in hearing a petition against the opening of the multi brand retail sector to foreign direct investment (FDI).
Without issuing notice to the Centre, a bench of justices RM Lodha and AR Dave asked the petitioner to serve the copy of the petition to attorney general (AG) GE Vahanvati or solicitor general (SG) Rohinton Nariman saying it needs some necessary clarification on the issue.
The bench, which posted the matter for hearing on October 12, directed the petitioner to delete the name of the Prime Minister as a party in the petition.
While seeking the assistance of top law officers, the bench said, "We just want to have little clarity on the issue" as some link is missing.
During an hour-long hearing, the bench said opening the retail sector to FDI is a policy matter and "policy is exclusively in the domain of the government of the day. Some may say it is good and some may say it is bad but nothing is ultra vires."
"These are matters dealt with exclusively by ministries," the bench further observed.
The court was hearing a Public Interest Litigation (PIL) petition filed by advocate ML Sharma who has alleged that the notification was issued without the authority of law as approval of neither the President nor the Parliament was secured.
The bench, however, observed that "this assumption that the policy has to be in the name of the President is flawed and unfounded."
While seeking the assistance of law officers, the bench told the petitioner that "there may be some provisions which you are unable to show."
"Do one thing, for little clarification serve this writ petition to the attorney general or the Solicitor General," the bench said.
During the hearing, the bench also wanted to know from Sharma whether subsequent to the government's circular on the issue of FDI in retail, any follow up circular was issued by the Reserve Bank of India (RBI) as there is some missing link in the petition.
The advocate said the RBI has not issued any regulation after 2008.
After hearing his submissions, the bench said it was concerned whether the circular issued by the government on the FDI in retail sector will have legal sanction.
The advocate contended that the recent FDI policy decision was not in consonance with the RBI regulations under the FEMA.
When the advocate submitted that the opening of FDI in retail sector will affect the livelihood of 35 crore families as they were self-employed in kirana, food, vegetables and other small businesses and more than 20 crores people were trading on footpaths, the bench asked him to refrain from making these submissions.
"Do not bring all these submissions. The government perspective is different from your perspective. They feel differently and think that it will give more livelihood. Your concept may not be correct. We are on the legality and constitutionality of the policy," the bench said.