Failure of the States as Public Trustees of Mineral Resources on the Face of Mining Scams

Abstract

Environmental law has evolved and come to be addressing some of the major environmental concerns of the world. In its approach to address the various issues of the environment and its degradations the law has laid down various principles that help comprehend the intensity, the consequences and the remedies. The principles that dominate the adjudication of environmental law cases are sovereignty over natural resources, principle of cooperation, polluter pays principle, prohibitive action, precautionary principle, principle of common but differentiated responsibilities, sustainable development and last but more importantly the public trust doctrine. The promulgation of the doctrine of public trust finds its roots in the Roman Law which laid down that the natural resources were either owned by no one (res nullious) or by everyone in common (res communious). However in India it finds its judicial recognition in the case of M.C. Mehta v. Kamal Nath . This doctrine envisages that the natural resources like air, sea, waters and the forests are of such great importance to the people as a whole that it would not be wholly justified to make them a subject of private ownership. The said resources being a gift of nature should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit then- use for private ownership or commercial purposes. This doctrine extends to all natural resources of a country be that the water, land, soil, air, minerals or other resources. According to the Indian constitution the ownership of all these natural resources vests with the union. In the federal structure in India, the state governments are the owners of the minerals located within their own boundaries. Although the ownership vests with the state concerned, yet the subject of regulation of mines and minerals development is covered under the 7th schedule of Indian constitution. Thus the state government stands as the public trustee of the mineral resources within its boundaries. According to the doctrine the state is to use the resources only for public purposes. These resources apart from being used by the government itself are also leased to the private undertakings for exploiting it for the public interest. These leases come with the limitations and restrictions imposed by the state government. In pursuance of this the state governments grant mineral concessions in the form of licenses that regulate the time period, the area for mining and for undertaking the operations of winning the mineral. After granting these licenses it is the duty of the state to keep a check on their utilization in the proper, legal and judicious manner and ensure that they are exploited only for public purposes and within the realm delegated to them. It shall also be the duty of the corporate houses vis-a-vis the government to conform to the guidelines of the mining business laid down by the government and pay royalty for carrying on the business. Further if the government fails to control the mining operations in the state by the private sectors it is obvious for the corporate houses that carry on business for gain to work their ways out to increase profits. Even otherwise the undertakings of the government that conducts mining operations if do not work within the prescribed limits and in an arbitrary manner is liable to not only deplete the natural resources faster but also cost the country huge amounts of losses counting in millions. That being the scenario the states of Karnataka, Orissa and Goa have been plundered in their mineral wealth leading to the degradation of the mineral resources they are rich in and defeating the very concept of sustainable development that stands as one of the basic goals of the country. The state being the public trustees of these resources is bound by the law to ensure their proper and judicious utilization which otherwise leads to such dangerous consequences which the country is already witnessing in the present times. And what these mining scams reflect is either a breach by the states of the public doctrine of mineral resources or their failure as the public trustees to hold and administer them effectively for the people at large. With that it is also pertinent to cull out the liability of the corporate sectors in contributing to the crisis the country is facing.