The presidential reference made under article 143 (1) of the constitution to the Supreme Court has to be viewed with extreme suspicion. The ostensible excuse for the reference are the 2G licences that the court has declared null and void and thus not to be acted upon. However the remit of the reference, the text of which is still not available in the public domain, sounds more wide and for that very reason alarming.
The modalities of 2G licensing procedures questioned and decided in the court apart, which the court for good reasons has held invalid, the essence of the reference could be read into three limbs. (i) Whether the court has power to decide disputes that in effect could ‘unsettle’ government policies? (ii) Whether the court has a power to decide on questions of allocation and disposal of natural resources? (iii) Whether the expenses incurred by state and non-state entities, including foreign companies prior to the court arriving at a decision should be a persuasive factor for the court, to not scrap a decision made by the government?
Instead of a presidential reference, what was required is to be a more open process of filing a review, which in fact is in court concerning the 2G cases. The decision upon the reference however, should the court agrees to accept it, has wide ramifications. It is much more than the consolation at offing to the agony of a few companies, for they have already thrown into the gutter of corruption, their money thinking they could force sell their services in India after bribing the country’s corrupt bureaucracy and its government. It is a shame that the president of the country is willing to use her office for this cheap end and the cabinet has asked the president to do it.
In fact companies like Sistema Shyam Telecommunications and Unitech Wireless along with Telenor that have invested billions of shareholders’ money to feed rotten corruption in India for their private gains should have had the elementary prudence to pay some good lawyers to seek advice and verify fundamentally two things: (i) whether practising corruption in an alien territory is a crime that you could get away with and (ii) whether the money spent to commit a crime could be claimed back once the crime gets exposed. Both are questions that neither the president of India nor the Supreme Court should waste time and energy in answering. The court has said repeatedly that its role is not to formulate polices in a review, but to decide upon the legality of it.
So what it at stake in the reference? It is a fundamental issue that does not require a jurist to answer, but one that shows the connivance of the government of India and the cabinet that runs the country like a corrupt corporate house. What is been sought is the approval of the court to limit its authority and thereby rule out situations where the government is embarrassingly exposed of the scams those who run the government hatch and prevent it from being questioned in court.
Take for instance the 2G licensing itself. In the simplest terms the ministers and bureaucrats offered their willingness to be part of a crime, the companies that could afford to shell out the ‘seed money’ to undertake the crime paid, and those who found the crime objectionable questioned it and eventually took the matter to the court. What is sought is the possibility of this from being repeated.
Reading the reference from the contexts of states like Orissa, Chhattisgarh and Madhya Pradesh the proposition that is pitched is alarming. Take for instance the mining and dam building agreements that the state and the union governments are competing to award at literally flee-market prices to private companies. Shame that it is a government policy. But the reference is seeking to fraudulently legalise the impossibility to challenge such decisions. The awarding of licences, in direct violation of the constitutional mandate of the government to protect, promote and fulfil the fundamental rights of people, including those of the indigenous people, could not be challenged should the Supreme Court agrees with the argument of the government, posed as questions in the reference.
The false argument in the reference that “lack of resources” requires the government “to resort to innovative and different approaches for development of various sectors of economy” is nothing less than an insult to the commonsense of the general public. The government that spends the largest amount of money in the world to procure weapons, lacking resources to provide basic services to its people has given up their legal and moral right to continue in office. The innovativeness in the process is in fact, refusal to hold public consultations, deceit and greed-driven policies of those who run the government scripted as state policies at the behest of profit making companies.
Right now in Khandwa district of Madhya Pradesh for instance the government and company representatives — in fact in India the dividing line between what is government and what is private is increasingly becoming gray or is gray already — are collecting signatures on prefabricated affidavits from the illiterate people to justify selling water to people. Indeed it is part of the government policy. The prime minister has spoken and rolled out his ‘vision’ for the country, to make water available to his people at a reasonable price.
A company named Vishwa Private Limited in collaboration with Khandwa Municipal Corporation has obtained the control over the Narmada water supply program for supplying drinking water in the city. The company is making all efforts to control the natural resources by invoking the prime minister’s policy provisions. The affidavit in which the company is obtaining signatures declare that a customer will have no right to take the company or the corporation to court should the services are denied or are of unsatisfactory nature. In essence the company is involved in an illegal exercise of ‘contracting out’. Guess who backs it, none other than the prime minister of the country. The declaration not only tries to take away legal rights of the citizen, but also robs them of their natural and other resources to water. The declaration in circulation transfers the ownership of all private tube wells, open wells, and ponds to the company and to the corporation.
None will get water free of charge and the company shall decide the charge. Water is business and money in India like in many other countries. But here it is also a vision by the country’s prime minister.
The preposterous nature of the prime minister’s proposal is beyond comprehension. Access to clean water, which should be in fact a fundamental right to the people is first blocked, constructing environmentally devastating huge dams, which in the process have evicted hundreds of thousands of people, devastated their villages and have denied them livelihood options for which they are yet to be compensated at least. Then the dams are handed over to private companies that use the water for all purposes, including contaminating it with effluents from industrial usage, which eventually contaminate the ground water. Then a company puts a price on behalf of the government on the water and sell it to the public. The prime minster calls it his vision for his country.
The equations are simple. First loot the people of their resources, and then sell it back to them for a price. Days are not far, where a company will decide who should be a judge, who should vote and who should live in India, if not some of these have already not started happening. The reference seeks the approval of this from the court.
Unfortunately the trust in the country’s justice institutions is also not high for the general public. The Supreme Court judge who decided the case against Vedanda, the mining giant, had the shameless audacity to openly state in the court that he had shares in that company. His judicious mind however did not prompt him to stay away from adjudicating the case in which he had conflict of interest. So the reference could also be a Trojan. The government has sought for a short cut as solution, and it would be a disaster for the court to accept it, which in effect will circumscribe its review powers considerably to the country’s detriment.
Unfortunately the media in the country, some of them self proclaimed as ‘national’, did not have the sense to read in the monstrous nature of presidential reference. Or they have thus far chose to sink their heads in the sand and have chosen to speak about it only to the extent where the issue is at a point of no return, the infamous 2G scam.
The Asian Human Rights Commission urges the civil society in the country to seize the occasion and respond. It is time for the people of India to wakeup from the slumber and perhaps to shout at the height of their voice that the average Indian mind is not dead.
For information and comments contact:
In Hong Kong: Bijo Francis, Telephone: +852 – 26986339
Email: southasia@ahrc.asia
