Wednesday, October 17, 2007

Supreme Court and Precautionary Principle

An aspect of Supreme Court's functioning which intrigues everyone is the role of the Law Clerks, and whether the secrecy over their functioning is justified. A comparison of the institution of Law Clerks in the U.S. and in India may bring out some interesting facets. In the U.S. it is highly politicised, whereas in India the secrecy surrounding it is justified purportedly to ensure Judiciary's effective functioning. In any case, this is one area which requires further research.

But the reason why I mentioned the role of Law Clerks here is to raise the extent of their probable involvement in the writing of judgments. Are Judges alone responsible for their Judgments, in case if there are glaring factual and other flaws? As an analogy, I can cite the example of the Government suspending two ASI officials for allegedly misrepresenting the Government's intention in the affidavits in the Ram Setu case. In Judiciary, we cannot definitively say whether the Judges have received appropriate research assistance from competent people, and whether there is scope for improvement, because of the secrecy surrounding the institution of Law Clerks, and the very practice of writing Judgments. Is such secrecy justified? Well, I don't have any answers immediately.

But the answers are important, as I realised when I was reading the judgment delivered on September 11 by Justices Arijit Pasayat and Kapadia in the case concerning the dismantling of the hazardous Blue Lady ship at Alang (Research Foundation for Science T.N.R.P. vs. U.O.I.) The Judgment, written by Justice Kapadia, introduces a new concept of balance and principle of proportionality, in order to dilute the well-known Precautionary Principle governing the environmental jurisprudence all these years.

To my dismay, I could not find any basis for this new principle, beyond Lord Goldsmith's lecture reported in Stanford Law Review (Vol.59) and Justice Pasayat's own judgment in K.M.Chinnappa (T.N.Godavaraman Thirumalpad v. U.O.I.) in 2002. Both these, relied upon in the Sep.11 Judgment, are entirely irrelevant to justify Justice Kapadia's new thesis. To my surprise, I found that he also referred to Amartya Sen's book Development as Freedom, which he claimed, gives importance to the concept of balancing. Having purchased the book, published in 2000, especially to understand this judgment, I could not find any helpful references by Sen to the new concept.

The paragraph cited by Justice Kapadia is as follows:
It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship.”

In that case, the petitioners wanted the Court to restrain the Kudremukh Iron Ore Company Limited from carrying out mining activity in the vicinity of Kudremukh National Park. After a lengthy discussion about the merits of giving primacy to environmental concerns in any project, Justice Pasayat, (who was a member of three-Judge Bench then) observed: The aesthetic use and the pristine glory cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for public good and in public interest to encroach
upon the said resources.

The paragraph cited by Justice Kapadia comes after this. Indeed, these are the only two paragraphs in that lengthy judgment, which supports the so-called concept of balance. The three-Judge Bench in that case allowed the Kudremukh Iron Ore Company Limited to continue mining in the reserved area till 2005 in accordance with the recommendation of the Forest Advisory Committee, not on the ground of concept of balance, but on the plea that the committee was a statutory body, and that the Court should not interfere with its advice to the Government. In other words, Justice Pasayat’s observation in that case as carried in these paragraphs was just an obiter and they were not relevant to the Bench’s decision.

The larger question that the Sep.11 judgment raises is whether the Court has reversed the key milestones set by the Court earlier in environmental jurisprudence by diluting the precautionary principle, without any basis. The Court permitted the dismantling of Blue Lady on the specious reasoning that development and livelihood concerns take precedence over environmental principles, and with necessary safeguards, we could prevent damage to environment, without abandoning a project meant to provide livelihood. In other words, the Court has approved taking risks that could seriously endanger environment, with just a hope that human intervention would honour the commitments to fulfil the necessary safeguards or conditions, to minimise the risks.


Dilip said...

J. Kuldip Singh, in Vellore Citizens’ Forum case, while mentioning the precautionary principle, allowed the tanneries to operate so long as they instituted pollution control devices in their respective units and compensated those affected by it (the ‘polluter pays’ principle). In that case, as well as in T.N. Godavaraman Thirumulpad v. UOI (2002), the Court spoke of sustainable development and the precautionary principle together. In the latter case, the Court, in a separate paragraph, though as pointed out in this post was not germane to the ultimate conclusion, amplified its understanding of this notion in a manner that does not appear to be inconsistent with its views in the Vellore case:

“Progress and pollution go together.  As this Court observed in M.C. Mehta and Anr. v. Union of India and Ors. (AIR 1987 SC 965), when science and technology are increasingly employed in producing goods and services calculated to improve the quality of life, there is certain element of hazard or risk inherent in the very use of science and technology and it is not possible to totally eliminate such hazard or risk altogether. We can only hope to reduce the element of hazard or risk to the community by taking all necessary steps for locating such industries in a manner which would pose least risk of danger to the community and maximizing safety requirements.

J. Kapadia’s judgment, in the Research Foundation case, notes all the risk prevention/control/alleviation measures suggested by the TEC (Technical Experts’ Committee) and infers that undertaking them would be sufficient to meet the conditions of sustainable development under this new concept of ‘balance’. Further, in the final para, the Court reiterates its view that every potential hazard has been addressed by the committee and the TEC’s opinion that its norms have been complied with:

“…Recycling is a key element of sustainable development. The Committee has examined each and every aspect concerning recycling and dismantling of the ship 'Blue Lady'...Taking into account the contours of TEC report dated 10.5.2007 and the opinion of TEC that the recycler M/s Priya Blue Industries Pvt. Ltd. has complied with the norms regarding dismantling and recycling, we accept the report of the TEC dated 10.5.2007 and we accordingly grant permission to the said recycler to dismantle the said ship "Blue Lady" as recommended by TEC…”

It appears from these that the precautionary principle has not been understood in any of these cases to imply that environmental dangers trump other considerations in granting consent. This is at variance with the classical notion of this principle but it must be noted that there have been various interpretations in commonwealth jurisprudence, one of them being to treat it as merely a cautionary principle requiring only that in decision making, careful evaluation of potential risk and damage be made and prescriptions developed to tackle them within the framework of a cost-benefit assessment. I doubt however, that the balancing principle has changed anything since, even in its absence, the Court could still have come to the same conclusion by similar application of precedent.

V.Venkatesan said...

Dear Dilip,
Thanks for reading the judgments cited, before posting the response. I also understand that you agree with my criticism of the poor reasoning adopted in the judgment to justify the new principle of balance, which has no basis in international or domestic law.
It is debatable, however, whether there has been careful evaluation of potential risk and damage, and adequate cost-benefit analysis. The casual manner in which the Bench refers to the presence of radioactive substances on board the ship, and other hazardous substances is disturbing. The TEC was chaired by a bureaucrat, and it is doubtful whether independent opinion was obtained before the Court was satisfied with the recycler's competence and ability to fulfil all the safety requirements. I requet you to visit the petitioner's blog,, to get a full picture of this controversy. If there are indeed precedents for diluting the precautionary principle, why has not the Bench cited even one of them - whether in Commonwealth or Indian jurisprudence?

ravi srinivas said...

I guess blogger has eaten up my comment :).Let me post it again later.