The Government of Odisha issued a Press Brief, purporting to be the enunciation of the policy governing the mineral sector. A Resolution dated 9th January 2015 was issued by the Steel & Mines Department, which was published in the Extraordinary Odisha Gazettee dated 12th January 2015. It more or less converted the Press Brief into an order, i.e. an executive instruction in exercise of the powers of the Governor. On the very same day, i.e., 12th January 2015, the Government of India in the Ministry of law & Justice promulgated the Mines & Minerals (Development & Regulation) Amendment Ordinance, 2015, indicating that it shall come into force at once.
The consequence of decision-making events is perplexing. The Mines & Mineral (Development & Regulation) Act, 1957 was a subsisting statute in exercise of powers under Entry-54 of list-I to Schedule-VII of the Constitution of India. In view of this, the powers of the State legislature under Entry 23 of list-II to Schedule Schedule-VII was a legislative field “occupied” by the Union Parliament and was no more available to the State legislature. …………. of Article 152, subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws. The legislative field covered by the MMDR Act, 1957 therefore not available to the State legislature. Sequentially, the executive power of the State was also not available in the same sphere. The State Executive was, thus, bereft of any power to issue instructions in the manner it did vide its Resolution of 9th January 2015 published in the Extraordinary Odisha Gazettee on 12 January 2015. Ironically, the Ordinance No.3 of 2015 came into effect on 12th January 2015, making the exercise in the hands of the State Government futile and nugatory.
The above deserves analysis as a sample case to test whether we are functioning under a system of good governance. It is desirable that responsibility is fixed on those who caused the issue of the Press Brief, and the State Government Resolution caused corresponding loss to the exchequer leading to a burden on the taxpayer, added to the nonproductive litigations and tarnish of the image of the ability of the
Acquiring power and appropriate exercise of power in conformity with Rule of law are distinct but related concept. If one analyses the intention and objects underlining the efforts of the State Government and the Ordinance issued by the Central Government with Presidential approval, one would discern the classes and groups that each one wants to protect or favour. For example, the State Government did not wish that a new policy framework would cover the cases recommended by it for grant. The Central Government, on the other hand, has by alteration of law, chose to legitimise the long period that a large number of lessees enjoyed the obnoxious deeming provision in Rule 24(A)(6) of the Mineral Concession Rules, 1960. The priorities that the two documents disclosed have inherent discordant notes. The expression emanating from the State Government and the Central Government do not indicate any coordination, coherence or true decisional participatory deliberations.
We are now faced with clashing agendas of a regional party enjoying a brute majority and a national party attempting to expand its sphere of influence to the States where its presence is not significant, though it may enjoy a comfortable majority in the Parliament. The “auction” method is the outcome of the directions of the Supreme Court. Neither the State nor the Centre can take credit in this regard. But the rest of the procedural mechanics relating to presently of tenure and renewal of different licences has been conditioned not necessarily by national public interest.
The unusually protective favours shown to the public sector undertakings would provide adequate cover to conceal their efficiencies and uneconomic methods of function. In this scenario, the real dialogue is between the captains of industry and the decision makers at New Delhi. Nothing is wrong in that. It may be relevant to sufficient consultation. Public participation through different representative bodies of citizens has not federated to effectively participate in this very crucial sphere of the national economy.
The resources we are dealing with are nonrenewable and limited. There is no linkage between the statutory framework governing mineral fields and the requirements of the national economy in this sphere, so as to ensure that “Make in India”, a call given by the Prime Minister. The Ordinance does not really ensure that the dreams shall be fulfilled. The State Governments, if they differ from the policy underlying the present Ordinance, should particularise their criticism and perhaps amendments in a creative manner by their own drafts, which are again to be formulated on the basis of a consultative process of all the stakeholders. This requires a restructuring of the decision-making process. This is also vital to a State like Odisha endowed with a favourable quantum of mineral deposits.
Towards this objective, the youth power must start gearing its mind and muscle. A disadvantage can be converted into an opportunity. The present Ordinance has to see itself through the two Houses of Parliament. let Odisha lead with the proposals of amendment with an appropriately-articulated and pronounced socioeconomic objective of those suggestions!
This is an opportunity of the people and the Government of Odisha to show that the State could provide leaders, who would indicate what deserves to be done merely say that sufficient help and cooperation are not forthcoming. There is a national design of some parties to ensure a decline in influence of regional parties. The present situation provides a meaningful opportunity of a regional party to be nationally relevant than be reminded of its limited priorities and spheres of influence. We as a people have to respond. And this concerns us all!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor and a former Advocate General of Odisha. jayantdas@hotmail.com)