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Supreme Court upholds BALCO disinvestment
By J. Venkatesan
NEW DELHI, DEC. 10. The Supreme Court today upheld the disinvestment of 51 per cent of the equity shares of the BALCO in favour of Sterlite Industries for Rs. 551.50 crores, stating that the correctness of the Government's `disinvestment policy' could not be gone into by court.
A three-Judge Bench, comprising Mr. Justice B.N. Kirpal, Mr. Justice Shivaraj V. Patil and Mr. Justice P. Venkatarama Reddi, dismissing a batch of petitions observed that ``courts are not intended to and nor should they conduct the administration of the country''.
It said that courts would interfere only if there was a clear violation of Constitutional or statutory provisions or non-compliance by the State with its Constitutional or statutory duties and none of these contingencies had arisen in this case.
Speaking for the Bench, Mr. Justice Kirpal said that ``in the case of a policy decision on economic matters, the courts should be very circumspect in conducting any inquiry or investigation and must be most reluctant to impugn the judgment of the experts who may have arrived at a conclusion unless the court is satisfied that there is illegality in the decision itself''.
He made it clear that ``wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution''.
``It is not for the courts to consider the relative merits of different economic policies and consider whether a wiser or better one can be evolved and for testing the correctness of a policy, the appropriate forum is the Parliament,'' the Bench observed and pointed out that ``here the policy was tested and the motion was defeated in the Lok Sabha on March 1, 2001''.
It held that the allegations of lack of transparency or that the decision was taken in a hurry or there had been an arbitrary exercise of power were without any basis.
Chattisgarh Govt. criticised
Criticising the Chattisgarh Government for making such allegations, the Bench said ``It is a matter of regret that on behalf of the State such allegations against the Union of India have been made without any basis. We strongly deprecate such unfounded averments which have been made by an officer of the State''.
On the State's contention that it was not consulted in the disinvestment process, it said ``it is not possible to believe that during the entire process, the State Government was oblivious of what was happening. Wide publicity was given at various stages in connection with the disinvestment of the BALCO, which took place over a period of two years''.
``The issue was debated by members in the Lok Sabha. There was nothing to prevent the State at any stage prior to the selection of the strategic partner, either to forward its views or a representation or even to make an offer of buying 51 per cent of the shares which were being sold.''
The Bench said the land was validly given to the BALCO a number of years ago and today the Chattisgarh Government could not make a somersault and challenge the correctness of its own action. Furthermore, even with the change in management the land remained with the BALCO to whom it had been validly ``given on lease''.
Referring to the price fixed by the Government for the sale of 51 per cent shares to Sterlite Industries, it noted that the offer of the highest bidder had been accepted. This was more than the reserve price which was arrived at by a method which was well recognised and ``therefore, we have not examined the details in the matter of arriving at the valuation figure''. The Bench emphasised that ``valuation is a question of fact and the court will not interfere in matters of valuation unless the methodology adopted is arbitrary''. Every matter of public interest or curiosity could not be the subject matter of a PIL.
``In a democracy it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court,'' it said.
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