The Supreme Court has done a yeoman’s service to the nation in holding that the observations of the Comptroller and Auditor General (CAG) of India and the pursuant submissions to the effect that the coal block allotments were made through an illegal process of decision-making. The Supreme Court has affirmed that the decision-making process was not in conformity with law and held that all the coal block allotments between 1993 and 2009 are fraught with illegalities. The Supreme Court has, however, fixed a later date for a case-wise analysis and pursuant directions regarding the illegalities and the specific steps to be taken.
This does not absolve the Government of the categorical findings that the process of decision-making was perverse, illegal and contrary to public interest. Now, there cannot be any justification in law to say that the process of decision-making was in any way rational, especially in view of the categorical findings of the Supreme Court.
There is a feeling among the affected parties that their cases will be considered and subjected to scrutiny on a subsequent date fixed by the Supreme Court. later case-specific hearings will relate the infirmities in particular cases of allotment so as to declare them invalid in law or otherwise issue further directions within the framework of law.
At this juncture, the citizen is bewildered. There is ample evidence of allotted coal blocks which have not been exploited without sufficient justification. There are still other peculiar cases like allotting a coal block to a particular Government company. The Government company has gone into an arrangement of a joint venture allocating 74 per cent of the shares of the joint venture company to a private organisation. The Government of India pointed out that any such joint venture would not be permissible; the allotment should continue to be with a Government company; 51 per cent of the shares should at least be in the hands of the allottee Government company. The private company was willing to hold 49 per cent. However, no action was taken by the concerned State Government. When the Central Government rightly indicated that the beneficiary/allottee has to be a Government company in terms of the policy for allotment, they were within their rights to say so. Reliable sources say that both the companies were willing to restructure the share capital arrangements accordingly, but the same was never implemented. When the scandal broke through the report of the CAG, the concerned State Government in a kneejerk reaction cancelled the arrangements without assigning any reason.
These are all maladies of exploitation and utilisation of the money power to control the nonrenewable resources of the country. Under the given circumstances, it is natural to infer that in absence of a regulatory mechanism being in place from 1993 onwards, the allotment of coal blocks executed through committees (about 36 in number) were not in conformity with law. From the days when liberalisation and privatisation were conceived of in 1993, no regulatory mechanism was put in place with the supporting norms and criteria governing the coal block allocations. This having not been done provided a fertile field for the illegalities that the Supreme Court has now confirmed with inter alia on the basis of the report of the CAG.
The Supreme Court has not yet annulled the illogical, illegal and unconstitutional allotments and is going to hear the matter further in terms of specific orders relating to each of the allocations. The deferment of taking care of the impact of the illegal allocations does not justify that Constitutional tenability of the allocations made so far. The Supreme Court is concerned with ensuring justice in each case and avoiding a power crisis. The subsequent hearings and pursuant orders will be case-specific and in conformity with the factual details thereof.
The law settled by the Supreme Court in the above matter is equally applicable to the largess of the State in other spheres, including land, mining, water and other limited resources. The decision of the Supreme Court is, therefore, bound to be the foundational pathfinder for subsequent litigations relating to this arena.
The question that will now be posed is whether the State has been discharging its duties in furtherance of the cause of distributive justice and fair play in action in matters. We are in a situation when the apex court of India has laid down the law, and it is now for the alert citizens to demand and ensure that they get a fair deal and their resources are not hijacked towards crony capitalism. This is quite a responsible task in ensuring distributive justice. And this concerns us all.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)