Within the next fortnight, the Supreme Court of India will adjudicate and perhaps finally decide on two Writ Petitions and two Special Leave Petitions, on the future governance of mining operations. The context of the two Special Leave Petition (SLP) interventions are related to the decision of the Goa government to renew mining leases, taking shelter of a High Court order, in a petition where the Goa government itself had argued against lease renewals since they would be contrary to the Supreme Court Judgment of WP 435/1 of 2014, known as the historic mining judgment of Goa. The two Writ Petitions (WP) are on the manner in which the government decided to renew leases, post the High Court order, by scoffing, insulting, subjugating, contravening and in utter contempt of the Supreme Court and the MMDR Ordinance, which ruled out any further lease renewals and set a fixed time table for the end of operating leases.
The fallout of the lease renewals (which would be shown as predating the ordinance) would give the lease operators an additional period of six years to operate.
The larger fallout of this shameless orgy of renewals enacted by the Mines Director Prasanna Acharya, who behaved like a controlled puppet of the mining companies, especially the internationally and nationally listed ones, is far more serious. It amounts to a criminal act of handing over the State’s resources, which belong to the people at large, in the hands of private entities for the maximization of their private profit. The act itself goes against the established manner in which public resources should be traded for the maximization of public benefit – auctioning.
Therefore what will be decided in a series of hearings up to December 10, is not just the prayers in the WPs and the SLPs, both filed by the Goa Foundation and activist and Congressman Sudip Tamankar (who incidentally is under severe pressure from the government for daring to take on the all powerful establishment), which have sought for a cancellation of lease renewals. These hearings will also examine whether the Government of Goa has followed the directive of the Supreme Court in the Goa Mining petition. The hearing and the decision expected thereof is expected to settle even more firmly how the State should deal, manage and trade with its natural resources.
The larger issues that need to be settled/re-emphasised are:
1) The State government is the owner of all sub soil minerals including iron ore. This is held in trust for the people, by the government which is constitutionally required to act as public trustee. It is our mineral and does not belong to mining companies.
2) Iron ore is a community asset, one that is owned by all equally, whether rich or poor.
3) When the government sells off one public asset, it is constitutionally bound to create a new asset of equal value. Around the world, this is done by investing in a permanent fund, essentially an endowment or pension fund. This will guarantee that our future generations have new assets in lieu of iron ore.
Keeping the above in mind, it will be advisable to peruse a very crucial fifth opinion of Justice Jagdish Chandra Kehar in the Presidential Reference to the Supreme Court in the matter of auctioning 2 G licenses. The first question posed in the reference by then President Pratibha Devi Singh Patil was, “Whether the only permissible method for disposal of all natural resources, across all sectors and in all circumstances, is by the conduct of auctions?” In his exhaustive 63 page opinion, Justice Kehar, in his mind and in his judgment has made the stand on this explicit. We shall quote some of the most definitive extracts of his opinion, which concurred with the main opinion of Justice DK Jain. 1) “The gist of the first question in the Presidential reference raises whether ownership rights over the national natural resources, vest in the citizens of the country. An answer would determine whether or not it is imperative for the executive while formulating a policy for the disposal of natural resources, to ensure that it sub-serves public good and public interest”, 2) “After all, all natural resources are the nations collective wealth”, 3) “The government must act as a prudent businessman, and that, the profit earned should be for public benefit and not for private gains”, 4) The benefit of a trading agreement should ensure to the State and “not used as a cloak for conferring private benefits on a limited class of persons”, 5) When the State gets less than the full value of its assets, it infers that “the country has been cheated”. 6) “Each bit of natural resource expended must bring back reciprocal consideration” and 7) One set of citizens cannot prosper at the cost of another set of citizens”.
These seven should be taken as commandments by any Government.
And it will be Justice Kehar who will be on the Bench to hear the Writ Petitions and SLP’s of Goa Foundation and Sudip Tamankar
