Name-calling could hit inter-institutional harmony

NEW DELHI: The cloudburst in Kedarnath left a trail of devastation in the Bhagirathi-Alaknanda basin, the two main rivers which join at Devprayag to form what is known as the Ganga.
As the Kedarnath tragedy warned us of possible disastrous consequences of unregulated construction of dams on Himalayan rivers, the Supreme Court was seized of a petition which challenged environmental and ecological viability and compatibility of nearly 30 proposed hydro-electric projects, alleging that they were sure recipes for such disasters.
Whenever confronted with issues pitting development against environment and ecology, the Supreme Court has always adopted the principle of ‘sustainable development’ to test viability of the projects.
The SC had accepted the Rio Earth Summit declaration and the Bundtland report that broadly defined parameters of ‘sustainable development’ in its judgment in the Vellore Citizens Forum case [1996 (5) SCC 647]. Brundtland report said ‘sustainable development’ meant “development that meets the needs of the present without compromising the ability of the future generations to meet their own needs”.
The court had said in a 1996 judgment, “We have no hesitation in holding that ‘sustainable development’, as a balancing concept between ecology and development, has been accepted as a part of Customary International Law though its salient features have yet to be finalized by international law jurists.”
“Some of the salient principles of ‘sustainable development’, as culled out from Brundtland report and other international documents, are inter-generational equity, use and conservation of natural resources, environmental protection, the precautionary principle, polluter pays principle, obligation to assist and cooperate in eradication of poverty and financial assistance to developing countries. We are, however, of the view that the ‘precautionary principle’ and the ‘polluter pays’ principle are essential features of sustainable development.”
In examining the sustainability of the over two dozen hydro-electric projects on the Alaknanda-Bhagirathi river basin, it decided to adopt the principle enunciated in Vellore Citizens Forum case and asked for a review of these projects by experts. The experts gave an 11-2 view against the projects. The government did not accept it and decided to conduct a fresh review.
The court on August 12 asked the environment ministry to apprise it of the report on each of these projects after two months. The ministry failed to submit the desired exhaustive report. The SC called the Union government ‘Kumbhakarna’, the brother of Ravana who loved to sleep for long periods, and Rip van Winkle, the 19th century story character who shirked hard work.
Democracy functions at its best when there is harmonious synchronization in work between the legislature, executive and judiciary, with occasional stand-offs on issues to test the strength of the constitutional institutions in dynamic situations.
Should there be calling of names? Well, judiciary has been groaning under the demonic workload of nearly 3 crore cases for more than a decade. The average lifespan of a civil case is 15 years and that of a criminal case is around 10 years. No doubt, the judges are overburdened. But a litigant, who spends a frustratingly long time in courts and spends a lot of money, could think the courts are the real ‘Kumbhakarna’ and ‘Rip van Winkle’.
Imagine the political, social and administrative fallout if the government calls the judiciary ‘Kumbhakarna’ and ‘Rip van Winkle’? Each institution has been provided a specific task without injecting inter-institutional mistrust.
And in a democratic framework like ours, where the SC has the final say on the legality of an issue, it must ensure that the adjudication process adheres to the constitutional test and not the perceptional test. The limitation of the courts was succinctly pointed out by the apex court in State of Gujarat vs Ambica Mills case [1974 (4) SCC 656].
It said, “The courts have only the power to destroy but not to reconstruct. When to this are added the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events, self-limitation can be seen to be a path to judicial wisdom and institutional prestige and stability. We must be fastidiously careful to observe the admonition of Justice Brandeis, Justice Stone and Justice Cardozo that we do not ‘sit as super-legislature (dissenting opinion in Colgate vs Harvey 296 US 404, 441].”
These golden words advising restraint has stood the test of time and strengthened inter-institutional respect. Occasional aberrations, as in the Alaknanda case, would not do great harm to it.