Speeding up Goa Mining Case

By Prabhakar Timble
03 July 2013 06:45 IST

Your chapter of sins are over and now the God strikes back! This was how the well-meaning people and legal critics took the sagacious and sacrosanct interim order of the Supreme Court delivered by Justice Aftab Alam suspending all iron ore and manganese mining operations in Goa. Otherwise, an ex-parte order for closure of the total economic activity associated with mining was unbelievable due to its ramifications. This interim stay was exclusively based on the recommendations in the report submitted by Justice M. B. Shah, former judge of the Supreme Court.  Needless to say, the findings and recommendations of such Commissions are largely to lead legislative and executive action as opposed to judicial orders.

The Goa Foundation petitioned on the rampant illegalities in mining and the apex court was pleased to grant the interim ban on mining operations like “shoot at sight” order issued by a magistrate to disperse unruly mobs on the rampage.  No motives or malice can be attributed to the order as the report of Justice Shah Commission was not challenged by any authority. The central government accepted the report. The Government of Goa itself directed closure of mining operations as if there was competition between the executive and the judiciary to win the track-and-field event race. The Goa government also announced setting up of another Commission powered under the chairmanship of a retired judge of the high court to examine the recommendations of the Justice Shah Panel and action the same. This could have been a failed attempt to keep the mining operations within the control of the state government by stealing the thunder from the Supreme Court.

Confirm or vacate

No sooner the stoppage orders were issued, the noise against mining which had reached a crescendo during the recently concluded elections to the newly formed Goa Assembly and the formation of the new government suddenly changed into mourning and grief. To score political points and play out to the gallery, days were lost in a battle of words and wits between different stakeholders and more so between the state and union government.

Once an interim stay is given for whatever reasons it cannot be allowed to rot without challenge. This care has to be taken particularly in matters which involve investment and employment of the scale as in the mining industry of Goa. In the instant case, the relief was given to the petitioner without due hearing. Hence, it was expected that the same would be challenged immediately. However, the government took over three months to file its reply. A change in the ruling party cannot be a ground for the delay in response or for the absence of material records with concerned departments to satisfy the court. In fact, the delay by the government created grounds for maintaining the stay. The failure of the government machinery and the regulatory authorities to answer and defend largely on account of unavailability of data speaks of the collapse of public administration with reference to the mining industry.

Understanding and acknowledging the gamut of issues involved in the matter and the functioning of our courts, the final disposal and determination of the issue could take pretty long. At the same time, nobody should be held hostage by ex-parte interim orders. The apex court should not remain silent to the suffering of those who are not heard in the matter. Whatever be the final outcome of the petition, the interim stay on mining operations should have been determined much earlier either by an order vacating or confirming. The Supreme Court concluded on similar matters of Karnataka and Orissa states. It was improper and unjust to keep the Goa matter on hold, more specifically on the issue of interim stay. The tragedy is that the judge who heard the matter on the Forest Bench (SC) has retired. The new bench would mean a new hearing and the judicial bureaucracy all over again. People of the stature and esteem of judges should evolve a code for themselves to finally dispose critical and significant matters which they have heard before their date of retirement.

A similar judicial tragedy can hit in the matter of disqualification of Mr. Caitu Silva, the MLA from Benaulim constituency, whose disentitlement has been sought on the ground of Portuguese nationality. Such issues are extremely important and need to be accorded that level of priority.  It would not serve either the petitioner or the defendant if the verdict comes at a time when the term of the MLA is almost to expire. Further, it would be a travesty of elections and representative democracy, whatever is the final outcome of the petition. The Goa High Court is yet to decide whether it can adjudicate on the matter of citizenship or whether the matter requires to be decided solely by the Central Government in terms of section 9 of the Citizenship Act 1955.

Assertive v/s Hostage

India is fortunate to have an independent and assertive judiciary. In a very recent PIL for the rescue of people on account of the Uttarakhand floods disaster, the Supreme Court directed the Centre and the Uttarakhand government to step up rescue operations to evacuate people caught in flash floods. The governments whilst answering the worst natural calamity had to also answer the apex court through action taken reports.

The same assertiveness should be shown in respect of grave issues before the Supreme Court so that they do not culminate into a judicial “hostage-crisis” on account of ex-parte interim orders. Almost a yearlong impasse wherein the issue involves life, livelihood and employment of those dependent on mining and of those who are also victims of the activity cannot be continued further. This stalemate, if perceived as judicial arrogance or sadism would not win laurels for the Indian judiciary. The “feel-good” factor experienced by some due to the blanket ban is short lived.

If mining is a legal activity and a key industry, the Supreme Court should come to the final determination of the petition in the shortest time. The government and the regulatory mechanisms should avert the further crisis. The industry and the exporters also need to seriously introspect on the damage and work with concern for natural resources, ecology, environment and people.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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