The tsunami created by the 2G spectrum judgments of the the Supreme Court last week has almost mopped up the ripples they made in the legal sphere. However, they deserve respectful consideration for their discussion on two hot issues that have been agitating public mind in recent years.
The first is the nature and ownership of natural resources, like air waves and spectrum, that belong to people and how the government should distribute them equitably. The second is how far the courts can exercise their power of judicial review to interfere in the administrative functions of the state when these issues are involved. The judgment in the case, Centre for PIL vs Union of India, discusses these aspects extensively and carries the law forward, albeit by a small step.
There is no universally accepted definition of natural resources, and no law has been passed to encompass it comprehensively or establish a framework to protect them. The existing environmental laws touch only on specific resources like air and water. The court described natural resources in broad terms: “They are generally understood as elements having intrinsic utility to mankind. They may be renewable or non-renewable. They are thought of as the individual elements of the natural environment that provide economic and social services to human society and are considered valuable in their relatively unmodified, natural, form.”
Natural resources belong to people, the court emphasised. The state legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the state benefits immensely from their value. The state is empowered to distribute natural resources.
“However, as they constitute public property/national asset, while distributing natural resources, the state is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest,” the court stated, and added that “like any other state action, constitutionalism must be reflected at every stage of the distribution of natural resources.”
Spectrum is a scarce, finite and renewable natural resource that is susceptible to degradation in case of inefficient utilisation. It has high economic value in the light of the demand for it on account of the tremendous growth in the telecom sector.
The directive principles of state policy in the Constitution like Article 39(b) underline that the ownership and control of the material resources of the community should be so distributed as to best subserve the common good.
The Supreme Court has given an expansive interpretation to the concept of natural resources in view of the directive principles. In the case, Secretary, Ministry of I& B vs Cricket Assn. of Bengal (1995), the court said: “There is no doubt that since the airwaves/frequencies are public property and are also limited, they have to be used in the best interest of society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including private agencies.”
By its judgment, M.C. Mehta vs Kamal Nath (1997), it prevented a motel of the minister diverting a river in the Himalayan foothills to private use. The offender was made to pay for the restitution.
In another notable case, Reliance Natural Resources Limited vs Reliance Industries Limited (2010) the court stressed the public trust doctrine. “This doctrine is part of Indian law. It is thus the duty of the government to provide complete protection to the natural resources as a trustee of the people at large.”
The power of judicial review was also reiterated in the 2G judgments. Though the government cited decisions to emphasise that the power should be exercised with great care and circumspection and the court should not ordinarily interfere with policy decisions of the government in financial matters, the court had a subtly different take on this.
“There cannot be any quarrel with the proposition that the court cannot substitute its opinion for the one formed by experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of framing the policies. We are also conscious of the fact that the court should not interfere with the fiscal policies of the state,” the court conceded.
“However, when it is clearly demonstrated that the policy framed by the state or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the court to exercise its jurisdiction in larger public interest and reject the stock plea of the state that the scope of judicial review should not be exceeded beyond the recognised parameters.” Thus, the court has stretched the power of judicial review to more areas and opened the door to wider scrutiny in future controversies involving distribution of natural resources.
