Whose natural resources are they anyway?

Articles of Faith

Amid debates over fundamental rights and federalism, other parts of the Constitution tend to occasionally get short shrift. Not because they are no longer relevant, but because there’s a sort of selective, collective amnesia that lawyers and academics (not to mention politicians and the public) tend to suffer from. I am, of course, referring to the Directive Principles of State Policy -- one of the most problematic parts of the Constitution but also one of its most meaningful. Specifically, I want to focus on the directive principle which talks about natural resources -- Article 39, in specific, clauses (b) and (c) of this Article.

Clause (b) says that the State’s policies should ensure that “ownership and control of the material resources” get distributed “to subserve the common good”. Clause (c) says that the State’s policies should make sure that the working of the economy does not cause the “concentration of wealth and means of production to the common detriment.”

The importance of these two clauses was highlighted in the Constituent Assembly by Purnima Banerjee in her speech on November 24, 1949:

“By the inclusion of these clauses, I personally feel that this Constitution has provided us with the means for changing the structure of society. It will all depend on us whether we are able to establish that sovereign democratic republic, not for the hollow benefit of registering one’s vote and passing legislation, not a democracy which will simply maintain the status quo or which will take upon itself the policy of laissez-faire, but a democracy which will combine with it the healthy principle that the government governs best which governs least, with the principle that it should encourage the active citizenship of the country.”

Banerjee also calls these two clauses the “cornerstone of the Constitution” -- a prescient verdict given the controversies in the years that have followed over the distribution and use of natural resources.

Clauses (b) and (c) have been relied on by governments in the past to push through socialist policies that provided for land redistribution, ceilings on land ownership, controlling monopolies, among other things. There’s a whole book waiting to be written on the litigation battles between governments citing these clauses and citizens citing fundamental rights over radical policies that tried to reduce inequalities and nationalised industries. With neo-liberal economic ideas being in vogue, however, one could argue that these clauses are socialist relics of old and might as well be ignored.

Not quite.

The relationship between fundamental rights and directive principles are not always antagonistic -- they’re supposed to be complementary. Although fundamental rights are enforceable and directive principles are not, courts since the 1980s have held that directive principles can be read into the fundamental rights to make them more meaningful and expansive. One of the interesting ways fundamental rights and directive principles have been read together is when Article 14 (which guarantees equality) was read together with Article 39(b) in the context of natural resources.

The distribution of natural resources by governments have become among the most contentious issues that courts have been called to decide upon, whether it is coal or spectrum. One of the most famous of these (one in which I was involved in professionally) was the dispute between the Ambani brothers over claims to natural gas deposits found offshore in the Krishna-Godavari basin, which later dragged the government into it. Eventually, the Supreme Court in 2010 held that the natural gas belonged to the people of India and that it would be the government (and not the Ambani brothers) who would decide how it would be used. In his judgement in the case, Justice Sudershan Reddy had something caustic and perceptive to say:

“The concept of equality, a necessary condition for the achievement of justice, is inherent in the concept of national development that we have adopted as a nation. India was never meant to be a mere land in which the desires and the actions of the rich and the mighty take precedence over the needs of the people.”

Have governments subsequently taken this message to heart? The news of the last few years suggests otherwise.

It’s not always well understood but what our Constitution tells us is that natural resources are not the personal property of whoever can make a claim over them. They are not even the property of governments to dispose of as they please. They are the collective property of the citizens of the country. Governments only hold and use them as trustees on our behalf. It’s up to us, as citizens, to hold the government accountable for the way our natural resources are used for our benefit.