A Fine Balance
Mining votaries who were trying to pick holes into the legal provisions on mining and the Shah Commission Report through their counsels in the Supreme Court were in for a rude shock last week. The Supreme Court came down heavily on attempts to rationalize violations and asserted that governance, public interest and rights to life have to take precedence over economic interests and profits while simultaneously assuring miners the protection of the law for legal activity.
Continuing to elucidate the meaning of right to life as constituting clean air, water and environment, a precedent it set years ago, it told the counsels sternly that even if there is no notification of wildlife sanctuaries and buffer zones, the State government is obliged under Article 21 (right to life) of the Constitution to protect life including the environment and that mining companies cannot exploit within the area and mine within one kilometer of the sanctuaries.
In the context of total failure of governance while regulating mining, the apex court asserted that when it comes to mining, it is the obligation of the State under Article 21 to act on behalf of the environment and therefore the people and it has to prevent exploitation of the forest areas and wildlife. Calling for peaceful coexistence of the mining industry with nature, the Court questioned the wisdom of the state in allowing mining within one kilometer of wildlife sanctuaries and reminded the state to act on behalf of the people.
The apex court also called on mining lessees to use “common sense” when counsels presented the rationalization that their activity was legal since they had valid environmental clearances and were operating under a mining plan approved by the Indian Bureau of Mines. The point made by lawyers for mining firms that they cannot be labelled as having been “illegal” retrospectively in view of the above was taken by the apex court. More interesting was the manner of operation of the bureaucracy which was also exposed when the apex court came down heavily on the Collector for excluding leases from sanctuaries under the claim that they were preexisting.
The Supreme Court acknowledged that the Collector was acting under instructions from the political bosses while promising to “go after” the bureaucrat. In a way, this is a sad acknowledgement that the bureaucracy is so politicized that it is unwilling and/or incapable of taking independent decisions and give honest, lawful advice to the political executive. When they are overruled by the political masters, the bureaucracy is duty bound to take the orders in writing.
All the vitriol against the Shah Commission prior to the hearings of the case was dismissed by the Supreme Court when it held that the Commission was duly appointed and that it did not have any vested interest. Its report was held to have been in the nature of a fact-finding exercise taking on board concerns of the environment, the mining affected and intergenerational equity and thus the legality of the Shah Commission Report was not in any doubt.
The mining sector has over the past decade become the backbone of the State’s economy, along with tourism, so violations in these sectors have been ignored by officials acting under the executive and that is what has led to the current scenario. Nobody is against extraction industries per se apart from extreme environmentalists but the industry is doing itself no favours by ignoring the changing international and national environmental regimes, good governance templates that need to have stakeholder concerns addressed, the need for inter-generational equity, and the need to steer clear of crony capitalism ~ it has only led to giving a bad name to the free market and legal mining, and has been no good for inclusive growth either.
