Page 22 - The Mineral Development and Regulation Framework in India (English Version)
P. 22
Discussion Paper
Appendix 2: Excerpt from Supreme Court sections, etc. Having regard to the basic
Judgment dated August 25, 2014 in nature of Article 39(b), a narrower concept
Writ Petition (Crl.) No. 120 of 2012 of equality under Article 14 than that
discussed above, may frustrate the broader
98. In Natural Resources Allocation Reference, the concept of distribution, as conceived in
Constitution Bench said that reading auction as a Article 39(b). There cannot, therefore, be
constitutional mandate would be impermissible a cavil that “common good” and “larger
because such an approach may distort another public interests” have to be regarded as
constitutional principle embodied in Article 39(b). In constitutional reality deserving actualisation.
the main judgment, with reference to Article 39(b),
the Court stated as follows: 119. The norm of “common good” has to
be understood and appreciated in a holistic
113 “…The disposal of natural resources is manner. It is obvious that the manner in
a facet of the use and distribution of such which the common good is best subserved
resources. Article 39(b) mandates that the is not a matter that can be measured by any
ownership and control of natural resources constitutional yardstick—it would depend on
should be so distributed so as to best the economic and political philosophy of the
subserve the common good. Article 37 Government. Revenue maximization is not
provides that the provisions of Part IV the only way in which the common good can
shall not be enforceable by any court, be subserved. Where revenue maximization
but the principles laid down therein are is the object of a policy, being considered
nevertheless fundamental in the governance qua that resource at that point of time to
of the country and it shall be the duty of the be the best way to subserve the common
State to apply these principles in making good, auction would be one of the preferable
laws. Therefore, this Article, in a sense, methods, though not the only method. Where
is a restriction on “distribution” built into revenue maximization is not the object of a
the Constitution. But the restriction is policy of distribution, the question of auction
imposed on the object and not the means. would not arise. Revenue considerations
The overarching and underlying principle may assume secondary consideration to
governing “distribution” is furtherance of developmental considerations.
common good. But for the achievement of
that objective, the Constitution uses the 120. Therefore, in conclusion, the submission
generic word “distribution”. Distribution that the mandate of Article 14 is that any
has broad contours and cannot be limited disposal of a natural resource for commercial
to meaning only one method ,i.e., auction. use must be for revenue maximization, and
It envisages all such methods available thus by auction, is based neither on law nor
for distribution/allocation of natural on logic. There is no constitutional imperative
resources which ultimately subserve the in the matter of economic policies—Article
‘common good.’ 14 does not predefine any economic policy as
a constitutional mandate. Even the mandate
115. It can thus be seen from the aforequoted of Article 39(b) imposes no restrictions on
paragraphs that the term “distribute” the means adopted to subserve the public
undoubtedly, has wide amplitude and good and uses the broad term “distribution”,
encompasses all manners and methods of suggesting that the methodology of
distribution, which would include classes, distribution is not fixed. Economic logic
industries, regions, private and public establishes that alienation/allocation of
22 JANUARY 2015
Appendix 2: Excerpt from Supreme Court sections, etc. Having regard to the basic
Judgment dated August 25, 2014 in nature of Article 39(b), a narrower concept
Writ Petition (Crl.) No. 120 of 2012 of equality under Article 14 than that
discussed above, may frustrate the broader
98. In Natural Resources Allocation Reference, the concept of distribution, as conceived in
Constitution Bench said that reading auction as a Article 39(b). There cannot, therefore, be
constitutional mandate would be impermissible a cavil that “common good” and “larger
because such an approach may distort another public interests” have to be regarded as
constitutional principle embodied in Article 39(b). In constitutional reality deserving actualisation.
the main judgment, with reference to Article 39(b),
the Court stated as follows: 119. The norm of “common good” has to
be understood and appreciated in a holistic
113 “…The disposal of natural resources is manner. It is obvious that the manner in
a facet of the use and distribution of such which the common good is best subserved
resources. Article 39(b) mandates that the is not a matter that can be measured by any
ownership and control of natural resources constitutional yardstick—it would depend on
should be so distributed so as to best the economic and political philosophy of the
subserve the common good. Article 37 Government. Revenue maximization is not
provides that the provisions of Part IV the only way in which the common good can
shall not be enforceable by any court, be subserved. Where revenue maximization
but the principles laid down therein are is the object of a policy, being considered
nevertheless fundamental in the governance qua that resource at that point of time to
of the country and it shall be the duty of the be the best way to subserve the common
State to apply these principles in making good, auction would be one of the preferable
laws. Therefore, this Article, in a sense, methods, though not the only method. Where
is a restriction on “distribution” built into revenue maximization is not the object of a
the Constitution. But the restriction is policy of distribution, the question of auction
imposed on the object and not the means. would not arise. Revenue considerations
The overarching and underlying principle may assume secondary consideration to
governing “distribution” is furtherance of developmental considerations.
common good. But for the achievement of
that objective, the Constitution uses the 120. Therefore, in conclusion, the submission
generic word “distribution”. Distribution that the mandate of Article 14 is that any
has broad contours and cannot be limited disposal of a natural resource for commercial
to meaning only one method ,i.e., auction. use must be for revenue maximization, and
It envisages all such methods available thus by auction, is based neither on law nor
for distribution/allocation of natural on logic. There is no constitutional imperative
resources which ultimately subserve the in the matter of economic policies—Article
‘common good.’ 14 does not predefine any economic policy as
a constitutional mandate. Even the mandate
115. It can thus be seen from the aforequoted of Article 39(b) imposes no restrictions on
paragraphs that the term “distribute” the means adopted to subserve the public
undoubtedly, has wide amplitude and good and uses the broad term “distribution”,
encompasses all manners and methods of suggesting that the methodology of
distribution, which would include classes, distribution is not fixed. Economic logic
industries, regions, private and public establishes that alienation/allocation of
22 JANUARY 2015
