Even before the government could put its seal of approval on the sale of Balco, a public interest litigation (PIL) was filed in the Delhi High Court on Friday seeking prevention of the company's sale. The petitioner, an advocate, BL Wadhera, has pleaded that Balco is a profit-making company which the government was selling for a song. Further, the aluminium produced by Balco is being used for defence purposes.

However, experts feel that the argument is not expected to cut much ice legally, as the Supreme Court, in its judgement in the case of RK Gupta vs the Union of India, 1982, had categorically mentioned that "laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc."

The sum and substance of the judgement in this case, also known as the Bearer Bonds case, is that the courts should look at the iniquities or discrimination and not general economic policy. Later (January 10, 2001), too, in the Union vs Elphinstone Spinning & Weaving Co Ltd & other cases, the apex court had recommended self-restraint. In the Bearer Bonds case, the apex court had said, "The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of Constitutional principles."

Further, "The presumption of constitutionality is indeed so strong that in order to sustain it, the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation." In the Bearer Bonds case, an issue was whether certain immunities and exemptions can be granted to tax evaders to invest their undisclosed money and would that not be injustice to the honest tax payers.

The Supreme Court (SC) said, "The provisions of the Act may thus seem to be putting premium on dishonesty and they may, not without some justification, be accused of being tinged with some immorality, but howsoever regrettable of unfortunate it may be, they had to be enacted by the legislature in order to bring out black money in the open and canalise it for productive purposes." In such a legal context, the PIL is not expected to cause much headache to the government.