O my lord – inconsistency is thy name!

There is a famous proverb “show me the man I will show you the law”. When decisions are made on the basis of conscience rather than on the basis of written down law then it is likely that conscience of different judges and even of the same judge on a different day, may manifest differently. This way of deciding matters “on case by case basis” rather than on principles of consistency, renders any commercial business activity vulnerable to great uncertainties and throws the Ease of Doing Business out of the window.

There have been many Supreme Court judgments, which state that renewal of a lease/license is akin to a fresh lease. Likewise, in the Presidential reference on allocation of natural resources it has been clarified by the apex court that auction is not the only way. It is interesting how the SC has taken note of these previous judgments but have actually given the ratio a go by, probably getting their “conscience” to play.

The other bothersome issue is about judicial review of policy decisions. If the judiciary is to decide things on the basis of its understanding of public interest and social purpose, why do we have public voting in elections to choose by who and how they want to be governed. We have now seen the adverse economic consequence of tumultuous reversal of policy decisions in the spectrum and coal matters.

Let’s see the recent Supreme Court order where the honourable court has considered the extension of leases in Goa as invalid; whereas under the same rules of Mining and Mineral (Development & Regulation) Act it has been allowed in Odisha. To understand the same, lets read the section 8-A (6) of the MMDRA. It says:  “(6) Notwithstanding anything contained in sub-sections (2), (3) and sub-section (4), the period of lease granted before the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 (10 of 2015), where mineral is used for other than captive purpose, shall be extended and be deemed to have been extended up to a period ending on March 31, 2020 with effect from the date of expiry of the period of renewal last made or till the completion of renewal period, if any, or a period of fifty years from the date of grant of such lease, whichever is later, subject to the condition that all the terms and conditions of the lease have been complied with.”

This is the section, which defines the renewal of leases in Goa and Odisha both. The same bench of the court heard both the cases. However, Odisha got a favourable order and Goa received a jolt that has now created a havoc in the state where 20 per cent of the population is left with no alternative of livelihood.

In Common Cause Vs Union Of India (W.P. 114 of 2014) the Hon’ble Supreme Court held that the cases in which no fresh mining Lease deeds were executed by the state government, in such cases the term of the mining lease was extended up to 2020 as per provisions of Section 8-A(6). However in Matter filed by Goa Foundation, the same bench of the honourable court did not give the benefit of Section 8-A(6) to the mining lessee’s in Goa as they had done in the Odisha mining matter.

Now, let us see another case where the apex court has allowed transportation of mined coal in Meghalaya. However, in Goa Bombay High Court stopped even mining of the iron ore that was extracted till the last day of ‘legally’ mined iron ore.

The High Court of Bombay while hearing a writ petition filed by Goa Foundation passed an interim order prohibiting transportation of Ore which was extracted and stacked at various locations till March 15, 2018 which was the last date for mining operations stipulated by the Supreme Court itself.

The Recently notified Minerals (Other than Atomic and Hydrocarbons Energy Minerals) Concession Rules, 2016 itself mentioned that the Mining Lessee after paying due royalties, rents and rates payable under the Act shall be granted a period of six or three months as the case may be for evacuating all ore excavated during the currency of lease which in this case shall be March 15. The Relevant provisions have been given under Section (gg) and Section (hh).

Despite the above provisions the High Court ordered stoppage of ore transported before March 15, 2018. The situation can be juxtaposed with that in Meghalaya wherein despite stoppage of all mining activities the state of Meghalaya w.e.f. 2014 the Supreme Court on March 28 itself upon an application of State Government allowed the transportation of coal, which was extracted prior to the imposition of Mining ban for a further period of two months. Though later on the Supreme Court provided the relief and allowed transportation of iron ore in Goa. However, what created the havoc for few days was the Bombay High Court order, which just took cognizance of petition filed by activists again suspecting government of a wrong deed.

Growingly this has been a trend in India. As someone describing the regulatory landscape in India to a foreigner, conceded that judges in the top courts/Supreme Court administer the country. Now a day it is getting scary where executive and judiciary rather than working as check and balance over each pillar of democracy, there is a raging battle over the supremacy of one arm over another.

The person further added that in India the citizen is always treated as a prima facie suspect by the Executive (Government). Similarly, the judiciary is extremely suspicious of the Executive. That is the sad state of affairs.

(The writer is founder and managing partner, Chase Legal LLP)