International Journal of Law and Policy Review (IJLPR)
BALANCING OF PRIORITIES: A CHRONICLE OF JUDICIAL REVIEW OF PUBLIC POLICY ON GROUND OF ARBITRARINESS Rahul Mohanty*
ABSTRACT Through this article the Author proposes to analyse the recent trend of judicial review in cases where governmental policies are involved. In light of the recent Coal-Gate judgement, and previous natural resources allocation judgements like 2G, this assumes great importance. In this paper, the author has scrutinised the judicial treatment of policies in two parts. In first part, the judgements relating to natural resource allocation are examined and in second part, the cases involving competing public policies, through case study of environment-development jurisprudence is surveyed. The author concludes that judiciary has usually shown greater deference, which author believes to be the appropriate response, considering the separation of power doctrine and checks and balances principle. However certain conclusions emerge regarding this judicial response. First, as per the Courts are reluctant to question a ‘policy objective’ which is an executive prerogative and cannot be questioned unless it is manifestly and patently against Constitution. However counts have sought to examine individual decisions of government as to whether it is in accordance with stated governmental policy. Second, the means adopted in pursuance of such objective are ‘presumed’ to be valid and Government must be given a ‘wide margin of appreciation’ (to use the term) and Court should not ordinarily substitute its views on how best to achieve public interest in place of executive. So this is liable to only a thinner judicial review looking at patent irrationality (Wednesbury principle). Third, when competing public interests are applicable, such as public trust doctrine vis-à-vis state discretion in allotment policy or environment vis-à-vis development, Court should adopt a more flexible role, which would examine the policy in greater detail, but still not substitute its own views and give Government the benefit of doubt (margin of appreciation) apart from initial presumption.
KEYWORDS: Judicial Review; Arbitrariness; Article 14; Public Policy; Separation of Powers; Wednesbury Review
*
IVth Year, B.A.LL.B (Hons.),
[email protected].
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Mohanty / Balancing of Priorities: A Chronicle of Judicial Review of Public Policy on ground of Arbitrariness
I. INTRODUCTION Judicial Review of Macro-level Policies and their implementation, especially on touchstone of Article 14 and arbitrariness has been always highly controversial and debated. Especially when the policy or state action involves ‘balancing’ of competing public interests or rights, battle-lines become drawn between those who want judicial interference in such policy and those to passionately oppose it. It then becomes a larger debate on judicial activism. In recent times, this debate has reared its head again after the ruling of Supreme Court in M.L. Sharma v. Principal Secretary, 1 on August 25th, 2014, popularly called ‘Coalgate’ judgement. In this light, it is important to examine the history of judicial review on touchstone of arbitrariness and irrationality. I will further see the Indian Supreme Court response to ‘arbitrariness’ in policy affairs, in two instances—one, allocation of natural resources and two, policies requiring balancing and ‘proportionality’ between competing public interests such as environment and development; labour and capital and the like.
II. RATIONALE FOR EXCLUSION OF POLICY MATTERS FROM JUDICIAL REVIEW For long has been policy matters excluded from judicial review. For instance in Bennett Coleman, dealing with validity of newsprint import policy, the Supreme Court refused to adjudicate upon it holding that “Court cannot be propelled into unchartered ocean of governmental policy”2and refused to adjudicate upon policy matters unless it was arbitrary, capricious or mala fide. 3 This dictum has been followed in cases such as policy of granting permission of starting schools, 4 wherein it was held that the question of policy is essentially for state and such policy is will depend upon overall assessment of requirements of particular area and if overall assessment s arrived at after a proper classification on reasonable basis, it cannot be interfered with. In RC Cooper, the Court held that it is not the forum where conflicting policy claims may be debated. 5 It held that Court cannot consider the 1
Manohar Lal Sharma v. Principal Secretary& Ors., (2014) 9 SCC 516. Mathew J. in Bennett Coleman & Co. and Ors. v. Union of India and Ors., (1972) 2 SCC 788. 3 Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106. 4 State of Maharashtra v. Lok ShikshanSanstha, AIR 1973 SC 588. 5 RC Cooper v. Union of India, (1970) 1 SCC 248. 2
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relative merits of the different political theories or economic policies or whether the policy propounded by the government may reasonably achieve national objectives. Similarly in RK Garg,6 Supreme Court held that in light of the complexity of economic problems which lack doctrinaire or strait-jacket solutions and the impracticability of testing efficacy of economic policies except through trial and error, the court must show greater judicial deference towards a law relating to economic activities, than say a law relating to civil rights. Similarly in Premium Granite,7 Court held that it is not in domain of the court to embark upon unchartered ocean of public policy and the evaluation of relative merits of different public policy must be left to the discretion of the executive and legislature. The Court must confine itself to testing the validity of policy to touchstone of fundamental rights.8 In BALCO case the Court addressed the question of institutional incapacity and incompetency of Courts to deal with questions of efficacy of a policy because it lacks the necessary expertise.9 Courts cannot strike down an economic policy/law for being arbitrary unless it is demonstrably so violative of constitutional or legal limits on power or so abhorrent to reason that Courts have to interfere. 10 In Narmada Bachao Andolan-I, it held that judiciary cannot engage in an evaluation or comparative analysis over the fairness, logic or scientific basis, or wisdom of a policy and court cannot substitute its views for the Government and strike down state action merely because it feels that another decision or policy could have been fairer, wiser or more scientific. The Courts’ repeated refusal to deal with policy matters can be seen in catena of cases ranging from economic policies, import policy, admission policy, and excise policy and so on.11 The rationale behind this exclusion can be many and are indeed well-known. First, Courts are not best equipped to deal with policy matters which often require vision, foresight and involve business of weighing between several choices and interests, often contradictory to each other. The institutional role of court is not adequate for this. Second, the separation of power and checks and balances system that is seen inevitable and desirable in any constitutional scheme will indeed be jeopardised if Courts arrogates itself 6
R.K. Garg v. Union of India and Ors., (1981) 4 SCC 675. Premium Granites & Anr. v. State of T.N. & Ors, (1994) 2 SCC 691. 8 Delhi Science Forum & Ors. v. Union of India & Anr., (1996) 2 SCC 405. 9 BALCO Employees Union v. Union of India, (2002) ILLJ 550 SC. 10 Peerless General Finance and Investment Co. Ltd. & Anr. v. Reserve Bank of India, (1992) 2 SCC 343; M/s Prag Ice & Oil Mills & Anr. v. Union of India, [1978] 3 SCC 459. 11 M/s. Ugar Sugar Works Ltd. v. Delhi Administration and Ors., (2001) 3 SCC 635; Dhampur Sugar (Kashipur) Ltd. v. State of Uttranchal and Ors., (2007) 8 SCC 418; Delhi Bar Association v. Union of India and Ors., (2008) 13 SCC 628. 7
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the powers and functions of other organs and supervise over each and everything. This has propensity to lead to a constitutional judicial feudalism in place of democracy.
III. JUDICIAL REVIEW ON GROUND OF ARBITRARINESS Judicial Review on the Ground of Arbitrariness has existed in public law and especially administrative law long before it was adopted in India into doctrine of equality under Article 14. One of the earliest and most important cases regarding this is the Associated Picture Houses Ltd. v. Wednesbury Corporation, 12 where Lord Greene held that apart from the procedural meanings of unreasonableness viz—procedural impropriety (violation of principle of natural justice) and illegality (exceeding of jurisdiction) it had a substantive content as well which is now called irrationality. Wednesbury irrationality is defined as a decision of decision maker that is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it” then that decision can be reversed on by judicial review. 13 In Wednesbury Corporation case local authority, imposed a condition that no children under the age of 15 years should be admitted while granting a licence for running cinemas on Sunday. The Picture House argued that the imposition of the condition was unreasonable and ultra vires the corporation’s powers. The Wednesbury Corporation argued that there were no limits on the conditions which could be imposed in the statute. Lord Greene held that the several grounds of attack on an administrative decisions such as bad faith, dishonesty, paying attention to irrelevant circumstances, disregard of the proper decision making procedure are encompassed within the umbrella term of ‘unreasonableness’. He held: Although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. In India, since 1970s after evolution of arbitrariness doctrine as test of equality under article 14 in cases like EP Royappa,14 and Maneka Gandhi,15 the administrative principle of Wednesbury irrationality has found backdoor entry to Constitutional law, even though it is not acknowledged as such. This test has been adopted for evaluating irrationality (in terms of Article 12
Associated Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 KB 223. Council of Civil Service Unions v. Ministry of Civil Service, [1985] AC 374, 410. 14 EP Royappa v. State of Tamil Nadu, AIR 1974 SC 555. 15 Maneka Gandhi v. Union of India, AIR 1978 SC 578. 13
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14) of administrative decisions. However it is a different ball game altogether when not just an administrative act but the entire policy behind such act is challenged on benchmark of Article 14. Here the court is keener to adopt judicial deference. It is only in rare instances that Court has struck down policies, one example of which could be striking down of policy of extending reservations to un-aided educational institutions.16 Especially in cases where there is no glaring violation of Article 14 or some other fundamental right and the challenge is solely on ground of arbitrariness (due to unreasonability etc.) Courts have been much more deferential and unwilling to strike down policies. Instance may be given of Tata Cellular v. Union of India,17 wherein Court held that judiciary’s attempt has always been to strike a right balance between administrative discretion to decide policy and the need to remedy unfairness. Thus judicial review does not involve reviewing merits of decision but the decision making process itself. Court should keep this restriction of judicial review, or else under guise of preventing abuse of power it itself will be guilty of usurping a power which does not belong to its domain and therefore Court should not determine whether a policy or a decision in pursuance of such policy is fair. It observed that modern trend is towards judicial restraint in administrative action and court does not sit over appeal but merely reviews manner of decision making (due to court not having necessary expertise to correct such decisions) and laid down that that only grounds on which judicial review are allowed are procedural impropriety, illegality and irrationality (Wednesbury tests). In GB Mahajan, 18 Court opined that doctrine of reasonable exercise of power must be reconciled with doctrine that court must not usurp discretion of public authority vested with such power. Discretion should be genuinely free discretion and once decision is reasonable its merit cannot be questioned. In this respect ‘reasonableness’ does not mean the standard of ‘man on the Clapham omnibus’ used in tort cases but is concerned with proper and improper execise of power. For this purpose is the principle of Wednesbury Unreasonableness applied, which allows for latitude for range of differing opinions.In this context unreasonableness would include sheer absurdity, caprice, decision based on oblique motives and irrelevant considerations and mis-directions. Similarly in BALCO Employees’ Union case, 19 the court reaffirmed the long standing dictum of judicial non-
16
P.A. Inamdar and Ors. v. State of Maharashtra and Ors. AIR 2005 SC 3226; T.M.A. Pai Foundation and Ors. State of Karnataka and Ors. AIR 2003 SC 355. 17 Tata Cellular v. Union of India, (1994) 6 SCC 651. 18 G.B. Mahajan v. Jalgaon Municipal Council and Ors., AIR 1991 SC 1153 19 BALCO Employees’ Union (Reqd.) v. Union of India , (2002) ILLJ 550 SC.
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intervention in policy decisions and Court should see if the system works in the way it was envisaged.
IV. ALLOCATION OF NATURAL RESOURCES: SPECTRUM SAGA AND BEYOND The saga of judicial intervention in allocation of natural resources in India has to be understood in the backdrop of the political and economic context. The decisions of the Court in the Spectrum allocation cases came in a context of a government beset by corruption charges and an increased public awareness of issues of corruption and a spate of scams such as the alleged massive 2G spectrum scam and Coal Gate scam completely captured public imagination leading up to litigation in Supreme Court and its consequent intervention. Hearing these petitions, the Supreme Court held that the allocation of 122 2G Spectrum licences was arbitrary and cancelled them. The procedure adopted by the government was to allocate spectrum to telecommunications companies on a first-come-first-serve basis. However, even then there were certain irregularities such as arbitrary advancement of the deadline for applications. The challenge to this process of allocation of natural resources was made in the case of Centre for PIL and Subramaniam Swamy v. Union of India.20 And asked the court to judge the standards generally applicable to government’s alienation, transfer or distribution of natural resources— something that is a clear question of policy. The Court held that the public trust doctrine was applicable to allocation and transfer of natural resources therefore the administrative act in question could be subject to greater degree of scrutiny and state was to act in consonance with principles of equality and public trust, reflecting constitutionalism and mandate under Article 39(b) to distribute resources to achieve common good. Regarding the First Come First Serve policy the Court held that the fundamental flaw of such policy is the element of pure chance and accident and it has dangerous implications because persons having greater access to corridors of power may be informed beforehand about impeding allocation and hence apply early and get the allocation over worthier candidates. 21 Therefore it held that state was bound to adopt a rational method for such allocations and especially in cases of alienation of scarce natural resources like spectrum the state has burden to ensure that a non-discriminatory method is adopted for protection of national/public interest. So far so good. 20
Centre for PIL and Subramaniam Swamy v. Union of India, Writ Petition Nos. 423 of 2010 and 10 of 2011. 21 Id ¶ 76.
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But court raised the storm when it held that, “while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process”.22 The Court rejected the argument of Attorney General that since this was a policy matter, especially one relating to fiscal policy of state court cannot interfere. It held that if the policy framed by the State is contrary to public interest or is violative of the constitutional principles, “it is the duty of the Court to exercise its jurisdiction in larger public interest.” 23 This observation practically meant that the government no longer had any discretion in deciding the policy and mode of allotment of natural resources and it must in all cases follow the method of public auction. This created a storm as the critics pointed out that revenue maximisation is not the only objective of resource allocation and other important considerations like generating development and employment by allocation at lower prices and reducing prices to the ultimate consumer, thereby achieving public welfare came to a naught. Indeed, if this is not policy matter, then it is question begging that what is. Issues have been raised (I think rightly) about the institutional competency and institutional legitimacy of Judiciary to adjudicate upon such policies. As Gautam Bhatia rightly observes, the Court here has substituted its own vision of public welfare in place of state and hence has concluded that only method that could achieve public interest is auction.24 According to him one issue is that the government is bound by standards of equality, public trust and the common good. However the Court has taken upon itself role of “determining the content of those standards, as well as their enforcement”. He rightly observes that state ought to do many things which may be better achieved through electoral politics, social movements but not through courts. This is clearly evidenced through existence of Directive Principles of State Policy in Constitution which shows that the policy makers laid down broad parameters for policy making by future governments, however kept the same non-justiciable to avoid judicial interference in policy matters. This is because courts are structurally not equipped and do not have the resources to handle such policy questions—institutional incompetency. Further as unelected body, and only one of the three limbs of the State, Courts have limited jurisdiction to interpret laws and protect rights and that they cannot usurp the function (like
22
Id ¶ 76. Id ¶ 79. 24 Gautam Bhatia, Competence and legitimacy: The Supreme Court’s opinions on the distribution of natural resources, July 3, 2014,Available at: http://blog.mylaw.net/ competence-and-legitimacy-the-supreme-courts-opinions-on-the-distribution-of-natural-res ources/ (Last visited on: 10-09-2014). 23
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policy making) of other organs of state—the argument of institutional illegitimacy. In my opinion, the separation of power doctrine can be used to understand the exclusion of policy from judicial review as outlined above. The reason policy is kept in domain of the government is because the democratically elected government is supposed to evaluate different and contesting policies to achieve a certain policy objective. These important polices include the government’s vision for a country’s future. As long as this vision is not against the letter and spirit of the Constitution the Court does not have any legitimacy to substitute its vision for the vision of the democratic State. Not only Policy Objectives, but also manner of achieving those objectives is a policy decision. Admittedly there is a thin line between a policy decision which is not susceptible to judicial review and a policy decision which crosses the line to become so irrational as to fall foul of article 14. I endeavour to find this thin line in the course of this article. This decision was also subject to severe criticism for increasing judicial intervention in pure policy questions and judiciary was under pressure for intervening so blatantly in a policy matter. Close to the heels of the 2G judgement, the rattled executive requested consideration of the issue through Presidential Reference. The Court issuing advisory opinion in Re: Special Reference 2012, toned down the aggressively interventionist approach indicated by court in 2G Case.25 The Constitution in this case relied on word “perhaps” in the 2G case to hold that its decision was limited to its facts relating to allocation of spectrum and was not applicable as a general principle. Examining the scope of Article 14 and the arbitrariness doctrine evolved by Court since EP Royappa, the Bench held that Therefore, a State action has to be “fair, reasonable, non-discriminatory, transparent, noncapricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment” to be valid as per Article 14 and that it should confirm to rational, reasonable and public interest promoting norms. Relying upon the negative language of Article 14, Court held that state was under an obligation to avoid procedures which are arbitrary, unreasonable, capricious or discriminatory but it does not mandate the state to follow particular actions like auction. Especially keeping in mind the absoluteness of Constitutional Principles and flexibility needed in case to case adjudication, the bench held that auction could not be held to be an absolute constitutional requirement to allocate natural resources. 26 Relying on Article 39 (b) it held that Auctions may be the best way of maximizing revenue but it need not sub-serve public good. And ‘common good’ is sole guiding factor in allocation of natural resources. 25 26
Re: Presidential Special Reference, 1 of 2012, (2012) 10 SCC 1. Re: Presidential Special Reference, 1 of 2012, (2012) 10 SCC 1, ¶ 108-115.
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It is interesting to note the Court’s observations regarding Court’s intervention in policy. It quoted from Bennett Coleman that “the only norm which the Constitution furnishes for distribution of material resources of the community is elastic norm of common good”27 and observed that Court did not evolve economic criteria of its own to achieve the goal of ‘common good’ and that this policy would depend on the economic and social philosophy adhered to by the government of the day. In this context the revenue consideration is may not be primary but at times may assume secondary position to developmental considerations. Commenting upon previous case where methods other than auction had been upheld on basis of Article 14, it said that when object of policy is different from revenue maximisation the executive has adopted methods other than auction. It held that alienation and allocation of natural resources (and means adopted for them) being a policy decision, they are executive prerogatives. They will face the ‘wrath of Article 14’ only is such a policy decision is not backed by a social or welfare purpose, and is made to serve commercial pursuits of private entrepreneurs. Notice that the above formulation in 2G Advisory opinion seems to confirm to the ‘thinner conception of judicial review’ as per the Wednesbury principle which gives the executive extensive discretion in administrative and policy matters while maintaining a level of judicial review to the extent of being able to correct blatant, manifest, on-the-face-of-record irrationality and unreasonableness. So the Supreme Court makes it clear that it will not be aggressively interventionist and will seek to review only those decisions which are manifestly absurd or patently irrational, keeping in mind the objectives of the policy. In other words, the objectives behind a policy will still be done exclusively by Government and the Judiciary will content itself with a ‘thinner review’ of whether the method or policy adopted achieves that objective in rational way. It is also interesting to note that the approach of the Supreme Court herein seems similar to traditional reasonable nexus and intelligible differentia tests of Article 14.28 Thus if the policy objective is revenue maximisation, the method adopted must be auction or some other competitive method, for in that case First Come First Serve will not have any reasonable nexus with the policy objectives. However where the objects of the policy are different, the method may be different, as long as it has reasonable nexus with the same. The most recent case worthy of consideration in this discussion is M.L. Sharma v. Principal Secretary, 29 relating to challenge to Coal Block 27
Bennett Coleman & Co. and Ors. v. Union of India and Ors., (1972) 2 SCC 788. Gautam Bhatia, Supra note 24. 29 M.L. Sharma v. Principal Secretary, Writ Petition [Crl] No. 120 OF 2012 and WP (C) No. 463 of 2012, 515 of 2012 and 283 of 2012. 28
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allocations since 1991, arising out of the ‘Coalgate’ Scam. The court first examines the relevant legislations like MMRDA Act and answers the question as to whether the Central Government has power to allocate Coal mines first under the said legislations and regulations and then grant a mining lease (to be done by State Government) and concludes in negative. However, I shall be focusing here only with the Constitutional issues arising out of it. It held that Screening Committee which allocated the coal mines did so without following any objective criteria for the selection of applicants and the guidelines laid by the Committee in first meeting was very vague and was kept varying arbitrarily later and they blindly relied on information disclosed by applicants and had operated in a non-transparent manner. The decisions of screening committee was manifestly tainted with arbitrariness because in the 36 meetings of the committee it had never followed any fair and transparent procedure, never done any proper application of minds, acting on no material or irrelevant material in many cases, while ignoring relevant factors and guidelines have been often breached with no comparative merits being examined and adopting ad-hoc and casual approach resulting in loss of national wealth, public interest and common good. 30 Therefore it held that the state action in such allocation suffered from the vice of arbitrariness and violated article 14. Thus it can be discerned that the Court did not evaluate the policy or the guidelines in this case (unlike 2G case) but invalidated the state action due to lack of guidelines, say about inter-se merit of applicants and other different aspects.31 However it is important to note that in light of the 2G advisory opinion, it held that for the very fact that the allocation has not been done as per public function does not render it arbitrary and accepted the contention that the peculiar economic conditions existing at time of liberalisation necessitated a policy different from auction. It has hence been rightly concluded that the Court will examine (in context of allocation of natural resources) the process, including whether relevant considerations were taken into account, but it shall not question the policy behind it or the outcome of the process (which will be subjective, and judiciary will most likely show deference towards it unless there is patent irrationality and not adopt strict scrutiny regarding that).32 30
M.L. Sharma v. Principal Secretary& Ors., (2014) 9 SCC 516, ¶¶ 109-154. Gautam Bhatia, Coalgate and Judicial Review of distribution of natural resources,August 31, 2014, Available at: http://indconlawphil.wordpress.com/2014/08/31/coalgate-andjudicial-review-of-distribution-of-natural-resources/ (last visited on: 10-09-2014). 32 Gautam Bhatia, Rigorous scrutiny of process of distributing natural resources: “Coalgate” judgment advances Supreme Court jurisprudence,August 31, 2014,Available at: http:// blog. mylaw. net/ rigorous- scrutiny -of- process –of –distributing -natural31
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Some have commented upon this decision as implicitly adopting the tests evolved in context of Article 356 in SR Bommai,33 which limits the judicial review over fact of existence of material relevant to the consideration about whether government of a state can/cannot be carried on in accordance with the Constitution. However it has no right to question the subjective satisfaction of President over this material. In my opinion, there indeed may be similarities in as much as existence and relevant of guideline is concerned, however it may not be completely analogous to Article 356 scenario where the Governor sends a report on Court examines the material (or lack thereof) contained in such report. However the public policies in issues like allocation of natural resources or balancing of different policy objectives may be based on myriad considerations which may be difficult to be ascertained by court and impossible to be some given sources. So in considering such a policy on grounds of Article 14, it will be a much more arduous exercise than what Court undertakes under Article 356. The Court was spared in Coalgate decision from examining the merits of the guidelines on yardstick of Article 14 or examining whether the guidelines were fulfilled. But in case the propriety of a policy is challenged, as done in 2G decision and 2G advisory opinion, it seems to be settled by the latter case that court will adopt a thinner judicial review, and will not examine the merits of decision but will confine itself to examine whether (prima facie, not in depth) the means adopted by the policy achieves its stated objectives and whether the objectives themselves are in consonance with Constitution.
V. COMPETING PUBLIC POLICIES: ENVIRONMENT V. DEVELOPMENT DEBATE AND ROLE OF JUDICIARY The judicial review over a single policy (such as mode of natural resource allocation, examined above) may still be straightforward, allowing for greater scope for judicial deference. However in cases where a balance has to be struck between two competing public policies. Instance of this can be seen in typical challenge to environmental clearance cases, where myriad issues of environment, development, fundamental rights of people to be affected by project, issues of indigenous communities are involved. In such cases the judicial review becomes very complicated and it becomes difficult for court to distinguish between line where it is just doing a prima facie resources-coalgate-judgment-advances-supreme-court-jurisprudence/ (last visited on: 1009-2014). 33 SR Bommai v. Union of India, (1994) 3 SCC 1. It was held: “Thus the existence of the objective material showing that the government of the State cannot be carried on…Once such material is shown to exist, the satisfaction of the President based on the material is not open to question. However, if …the material before him cannot reasonably suggest …the proclamation issued is open to challenge.”
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examination, or ‘thin’ judicial review and where it is ‘substituting’ its own view in realm of policy. Also the emotiveness and the status of fundamental right given to environment through Article 21 and the grave danger to common humanity posed by destruction of environment invokes question about how long can the judiciary sit on fence on invoking judicial deference and non-intervention in policy and refuse to play a greater role. In a sense, it is true that every environment clearance, to set up any project is a policy decision of government (supposedly) taken after careful weighing of pros and cons and competing public interest in development and ecology and principles of sustainable development. The judicial deference shown towards policy matters in environmental cases is evident from many cases relating to construction of dams, safety aspect of dams and so on. The question of huge public money invested in such project has also weighed heavily with courts. For instance, in Narmada Bachao Andolan-I, 34 Supreme Court held that after hundreds of crores of public money is spent on such projects, individuals cannot be permitted to challenge such policy decisions after such lapse of time through PILs. It further held that it was domain of legislature and executive to decide what kind of infrastructure project to be undertaken and how is it to be executed and the role of court is to see that the execution/system is implemented in the manner it was envisaged. It further observed that the tendency of Court to intervene should not lead it into becoming another approval authority, sitting appeal over public projects and policies and a considered policy of government unless actuated by malafide cannot be examined by court just because alternative view could have been possibly better as per its view. Therefore observing that a hard decision may not be always bad, it refused to look into government policy of building dam to alleviate water scarcity. Similarly in Shri Sachidanand Pandey, 35 Court held that as long as executive is alive to all relevant considerations (and excludes irrelevant ones) and has no mala fides the court cannot intervene. But in cases of protection of ecology keeping in mind DPSPs, Fundamental Rights and Duties Court should not shrug its shoulders and say priorities are a matter of policy and it can at least see if appropriate considerations are kept in mind and in some cases the court may even go further (depending upon facts). It nevertheless added a caveat that in questions involving ‘nice balancing of relevant considerations’ judicial deference may be appropriate.
34
Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751. Shri Sachidanand Pandey and Anr. v. The State of West Bengal and Ors., AIR 1987 SC 1109. 35
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Similarly in Dahuna Taluka 36 that it is government’s role to strike just balance between conflicting objectives and court’s role is restricted to examine whether all relevant material aspects have been taken into account and decision is not swayed by extraneous or immaterial considerations. So it can be seen that Courts have interfered with projects but they have done so in cases only where there were glaring violations of relevant laws or nonconsideration of relevant aspects.37 However in recent times the Court have found themselves compelled to examine policies in environmental matters and have applied a ‘thicker’ and higher standard of judicial review than is envisaged by the Wednesbury principle. However it would be wrong to assume that court has usurped discretion of executive in environmental matters. There is still considerable ‘margin of appreciation’ available to the executive. In Lafarge Umiam,38 Supreme Court held that the ‘doctrine of proportionality’ should be applicable to environment matters in judicial review in contradistinction to merit review. 39 The policy decision regarding balancing use of natural resources, sustainable development and inter-generational equity can be tested on anvil of recognised principles like consideration (or lack thereof) or relevant/irrelevant factors. Court has to see whether executive (in this case MoEF) decision is “fair and fully informed, based on the correct principles, and free from any bias or restraint” by looking into the decision making process and once this is done the ‘margin of appreciation’ in favour of decision would operate. The Court further opined that proportionality principle necessarily involves element of balance and this principle is especially relevant in environmental matters where a balance must be struck between developmental and ecological consideration keeping in mind the fact that every development needs some trade-off with ecology and the rights of different people affected by it and just balance should be struck.40 However it must be kept in mind that Court cannot adjudicate fairness of policy. It can be seen that Courts have also refused to go into policy decisions in environmental cases, especially when it is based on expert reports, as evidenced from cases relating to Kudankulam Nuclear Reactor and Tehri
36
Dahuna Taluka Environment Protection Group and Anr. v. Bombay Suburban Electricity Supply Co. Ltd. and Ors. (1991) 2 SCC 539. 37 Athup Lepcha v. State of Sikkim through the Chief Secretary, Government of Sikkim, W.P. (PIL) No. 05 of 2010. 38 Lafarge Umiam Mining Co. Pvt. Ltd. v. Union of India, (2011) 7 SCC 338. 39 See also: MP Patil v. Union of India, through Secretary NTPC, NGT Appeal No. 12/2012. 40 T.N. Godavarman Thirmalpad Vs. Union of India & Ors., reported in : (2002) 10 SCC 606.
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Dam. In Tehri Dam Case,41 Supreme Court held that court should not sit in judgement over expert scientific opinions. Similarly in Kudankulam case, court reiterated that court cannot examine policy and refused to judge over decision of government to set up nuclear reactor in Kudankulam in view of the Indo-Russia agreement and that courts would be slow to interfere with opinion of experts and would generally leave the matter to experts who are more familiar with it. In light of unanimous positive opinion by all expert bodies, Court held that safety and security of the Kudankulam nuclear part could not be questioned. The above cases clearly show that in cases of competing public interests necessitating a balance between the two the judiciary has greater scope to intervene in guise of ‘proportionality’, and unreasonability. However still great judicial deference is shown towards policies of government and is ordinarily not interfered with. This in my opinion, is a welcome position where courts, keeping in mind separation of powers should not take over the functions of all organs of government, else it will be accused of expanding its powers contrary to constitutional limits—thus violating constitutionalism. Despite the recent activism done around environment issues and increased sensitisation about the same, there is really no conceptual reason to believe that judiciary is more suited and more responsible and more capable to respond to these issues than government. As the Spectrum cases have shown, judicial intervention in policies may not be always best and can provide a remedy worse than the disease.
V. CONCLUSION (?)– YET NOT SETTLED Therefore the thin line between a valid policy decision which is not prone to judicial review and an arbitrary policy decision falling foul of article 14 depends on facts and circumstances of each case. However some general principles may be culled out regarding judicial review of policy on anvil of Article 14. First, a policy objective is almost completely an executive prerogative and cannot be questioned unless it is manifestly and patently against Constitution. Second, the means adopted in pursuance of such objective are ‘presumed’ to be valid and Government must be given a ‘wide margin of appreciation’ (to use the term) and Court should not ordinarily substitute its views on how best to achieve public interest in place of executive. So this is liable to only a thinner judicial review looking at patent irrationality (Wednesbury principle). Third, when competing public interests are applicable, such as public trust doctrine vis-à-vis state discretion in allotment policy or environment vis-à-vis development, Court should adopt a more flexible role, which would examine the policy in greater detail, but 41
ND Jayal v. Union of India, (2004) 9 SCC 362.
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still not substitute its own views and give Government the benefit of doubt (margin of appreciation) apart from initial presumption. This in my opinion is a desirable position which would adequately balance interests of judicial check over executive discretion and also would ensure separation of power and that each organ of state is allowed to do what it is supposed to do without unnecessary interference from other. However it may be safely assumed that last word has not been said on this issue and questions relating to Judicial intervention about enforcing a larger policy in individual decisions and decision involving balancing of competing policies are still open to be settled by Court in future.
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