Opinions

DTE sought the comments of legal luminaries and journalists on some issues that emerged out of this analysis. The individuals whose opinions appear here are P N Baghwati, former Chief Justice of India, A M Singhvi, additional solicitor general of India; Rajeev Dhawan, lawyer, Supreme Court (SC); Raj Panjwani, lawyer (SC); Sanjay Parikh, lawyer (SC); and Rakesh Bhatnagar, legal correspondent (The Times of India, New Delhi)

 
Last Updated: Sunday 28 June 2015

Opinions

Whether the SC passed the correct executive orders
The mum are not equipped to deal with environmental issues. They do not have the expertise, the material on the basis of which they can judge the effects of what are alleged to environmentally disastrous activities.
- P N BHAGWATI

Normally , the judiciary should not be taking direct executive decisions. But when one limb of a democratic system gets crippled, the judiciary extends its support. This, however, is not a long-term solution, ban a short-term catalyst.
- A M SINGHVI

The judiciary is net taking executive decisions. It is simply telling what the executive is supposed to do. The executive is bound and obliged under law to perform its duties. If it does not do its work well, then it is committing a breach of law. And it is the duty of the judiciary to haul it up.
- RAJ PANJWANI

Whether the SC is a place of last resort, or that of first
In disputes, the ton trial action should not be before the SC but a tribunal. The SC is to be approached when all other venues of justice have been exhausted. When it becomes the first place of appeal, there will be a feeling that either of the parties haw not been heard adequately. Each party has to be heard, before a decision, is taken.
- P N BHAGWATI

The term 'judicial activism' is a misnomer. The judiciary is merely discharging its duties. But when the judicial notoriousness is shocked beyond a point, it steps in to ensure that the law of the land is implemented. This happens when them is a gross abdication on the part of the executive, or when the judiciary steps in to support the executive, which has been failing to discharge its duties, for some, reason.
- A M SINGHVI

One view is that the judiciary will now raved to its normal neutral self, and that the swashbuckling activity of the past few years is enough to activate government agencies who are responsible for environmental protection.
- RAJEEV DHAWAN

There is a basic misconception here, as Article 32 of the Constitution gives right to every citizen of India to approach the SC in case of violation of fundamental rights. So we cannot any that the SC is becoming the forum of first choice. It is the choice of the people. But, in traders that involve particular states, the SC can say that the states are in a better position to deal with them and refer or pas on the any to the concerned High Court(HC).
- RAJ PANJWANI

It is a disinformation campaign. The law minister say, there are three crore cases pending in all courts in the country!...The minister's ire is directed against PILs. PILs can only be filed in HCs and the SC, and do not affect the pending cases in lower courts. As for the SC, only 12,000 cases are pending now. And only about six judges, out of a total of 26 in the SC, handle PILs. The 20 other judges cam get busy with the other pending cases.

Let me give you an example of the significance of open access to the court. In the '80s, during the Bhagalpur blinding incidents in Bihar, a citizen wrote to the SC, about the ghastly act in a postcard. The mud accepted it as a writ petition and the state was asked for an explanation. It is a very important right of the citizen under Article 32 of the Constitution to seek legal redressal from the SC when his/her fundamental rights are in question.
- RAKESH BHATNAGAR

Whether tribunals am a better way of dealing with issues
I had recommended in one of my judgments that the government most set up an environment tribunal and an environment commission. Disputing parties could approach the tribunal which could ask the environment commission to prepare a brief for it. This brief would contain at relevant details of the case, based on which the tribunal could take its decision. And if a party was not satisfied with the decision, they would have the option of approaching either the HC or the SC. I do not understand why the government has not responded that directive. Maybe there is pressure, from industry, or some other pressure I do not understand.
- P N BHAGWATI

Certainly, as the intended composition would have offered balanced judgments.
- RAJEEV DHAWAN

There have been various court directives for the setting up of a specialist body. But the ministry of environment and forest (MEF) has so far failed to comply.
- SANJAY PARIKH

Several judgments have pointed out the need for specialised environmental comes. Kuldip Singh once said that if nothing comes up, courts should at least set up 'green benches'. HCs can also be effective as they have vast powers under Article 226 of the Constitution.
- RAKESH BHATNAGAR

On the long-term effects of the SC's judgements
The danger of the courts taking executive decisions is that they tend to act directly, without getting the proper material. The danger is that government agencies may get careless, and may believe that the people would go to the courts in all instances. The court's action should be to make the agencies accountable and transparent. I entirely blame the government for the SC becoming the place of first resort, rather than a place of last resort.
- P N BHAGWATI

The disadvantage of such judicial action is that often these decisions lack long-term audit, because there is no social or economic statistics that measure the success or failure of such action. For example, in Delhi, there is no way of assessing the extent to which pollution loads may have reduced since the judiciary expressed interest in the subject. In substance, nothing happens, and this amounts to a wasteful futility.
- A M SINGHVI

A mixture of soft and harsh directives to government agencies is often seen as a workable formula by the judicial system. The justification offered is that institutions responsible for environmental protection had failed to discharge their duty, which necessitated strong action by courts.
- RAJEEV DHAWAN

What the SC had been trying to do was to make the MEF and other agencies such as pollution control boards work. People have to be aware of their rights and duties. If the government or concerned agencies fail to do their duty, they have to move the court .
- SANJAY PARIKH

Nothing happened for 50 years. Now everybody is worked up. The SC orders reflect this growing impatience.
- RAKESH BHATNAGAR

On any other point
While I have the highest regard for NEERI and Dr Khanna (its director), I feel that a pool of institutions to examine instances and provide data to the courts, rather than a single one, would inspire confidence in the public. I am not in favour of one body or organisation being made responsible for technicalities in environmental cases.
- P N BHAGWATI

It would be wrong to expect this form of judicial action to . the environment. Fifty judges cannot improve the environment of Delhi, just as 500 judges cannot save the environment of India. It is the executive that has to do its duties. Only then can we aspect long-term benefits.
- A M SINGHVI

There exists a belief that the judiciary is convinced that 'soft' (mandamus) orders will not do in cases concerning PILs. Hence the strong decisions they take when a PIL is submitted in their courts. Usually, the way in most ordinary cases is to issue soft orders, directing the concerned authorities to do their job.
- RAJEEV DHAWAN

In a petition filed by the Goa Foundation against Zuari Chemicals and Fertilisers in Mumbai, the petitioner had agreed to pay the cost for an environmental impact assessment (EIA). NEERI was chosen as the consultant, but it pushed its fee up to Rs 10 lakh, which obviously the petitioner could not afford. But they were in fee as the court had directed NEERI to conduct a study. I had to later argue in court for triples in a different agency, which the SC eventually allowed. The court has often sought the help of various Indian Institutes of Technology and other bodies for EIAs. What is important is the reliability of the agency concerned... As for judgments that would involve shifting of industries, there needs to be sensitivity towards the rights of the workers.
- SANJAY PARIKH

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