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.
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