NITI Aayog Studying How Judges Can Help Economics Beat Environmental Concerns

News click, February 13, 2021

The government think-tank has commissioned a study to examine the “unintended economic consequences” of certain verdicts in order to review “if the objective of the judicial decision was (has been) met” through the orders.

Whose interests is the Narendra Modi government trying to protect in its attempt to rein in the judiciary from issuing verdicts that result in an adverse economic impact for the business sector? The Centre’s policy think-tank, the NITI Aayog, has commissioned a study to examine the “unintended economic consequences” of certain verdicts in order to review “if the objective of the judicial decision was (has been) met” through the orders.

The results of this study will not only be used as training input for judicial officers but will also initiate a “narrative supporting better sensitivity of economic impacts of judgments by the judiciary”.

CUTS International, a Jaipur-based non-governmental organisation, has been commissioned for the study by the body. The NGO has, in turn, selected five verdicts, including three from the Supreme Court and two issued by the National Green Tribunal (NGT), for the purpose of research. The matter came to light last week when the NGO wrote to certain stakeholders in the cases it had selected and sought their inputs as part of its research.

On February 5, the NGO wrote to award-winning environmental activist, Vikrant Tongad, seeking his inputs on how –  through a landmark order in August 2013 –  a ban imposed by the NGT on sand mining activity in Gautam Buddh Nagar caused “severe and avoidable losses to the sand mining industry, leaseholders, trade, truck owners, employment and income of mine workers, and bank financial loan liabilities, workers employed, service providers, infrastructure, and cement companies, amongst other things”. Tongad, who is based in Greater Noida, has been selected as a stakeholder apparently because of his campaigns against illegal sand mining and illegal construction on the Yamuna floodplains in the area.

“While the decision was intended to address illegal sand mining, the decision of the NGT may have had an adverse impact on the mining leaseholder with relevant approvals,” the letter issued by the NGO to Tongad stated.

When contacted, Tongad said the objective of the study does not address concerns of local communities affected by illegal sand mining in Gautam Buddh Nagar.

“Large-scale illegal sand mining in Gautam Buddh Nagar has reduced to a considerable extent ever since the NGT issued the ban order. Local communities suffer the most, both directly and indirectly, on account of illegal sand mining activity. These activities not only affect farming by way of soil erosion but also pollute the local environment thereby causing health hazards for local communities. Illegal transportation of sand creates pressure on existing road infrastructure. Unscientific mining depletes the underground water table, again exerting pressure on the farm economy. Local vegetation, crucial for environment and livelihood support, is also affected by illegal sand mining,” said Tongad.

It has also been alleged in the past that illegal sand mining has resulted in shifting of the course of the River Yamuna thereby inundating farmlands and putting lives of residents along the Noida-Greater Noida Expressway at risk.

The project brief of the NGO clearly states that “there is a need to create a public discourse among key policymakers, members of the judiciary, and academia for promoting an economically responsible approach by the judiciary while deciding cases.” It begins with the assertion that “judicial decisions have far-reaching economic impacts which are often not taken into account at the time of decision making.”

However, is it constitutional for the judiciary to consider the possible economic consequences of verdicts, even when they are issued to stop activities undertaken in gross violation of the laws of the land?

A query sent to the NITI Aayog on behalf of Newsclick asking – among other questions – whether judicial officers will be trained to bypass laws extant in the country in order to protect economic interests for certain stakeholders, is yet to elicit any response. The article will be updated when it responds to queries.

Legal experts and senior bureaucrats told Newsclick that the only role of the judiciary is to interpret the provisions of the Constitution of India and subject decisions made by the executive to tests that would determine if they are consistent with the letter and spirit of the law.

“It is certainly not the role of the judiciary to analyse the economic consequences of a verdict at the time of decision making.  The job of a court is to ensure the rule of law and the enforcement of law. If judicial officers decide upon cases keeping economic consequences in mind, it might as well result in compromising the Fundamental Rights of citizens or other provisions of the Constitution of India,” senior Supreme Court advocate Prashant Bhushan told Newsclick.

Activists working on social and environmental issues said the study conducted by NITI Aayog, with funds taken from the public exchequer, is inconsequential because there is hardly any instance in which courts have halted projects despite brazen illegalities or irregularities.

“As a matter of fact, there is a need for a study on how misinterpretation and the balancing act by courts and tribunals have led to instances where the nation’s environment has been compromised which has ultimately impacted the economic health of the nation. This study is totally misplaced and conveys its bias against environment protection which is perhaps led by vested interests,” said Manoj Misra, a former Indian Forest Services (IFS) officer-turned-activist.

According to reports, Rajiv Kumar, the Vice-Chairman of NITI Aayog, has said that the study is purely an economic exercise intended to analyse the cost and benefits of certain judicial decisions.

However, senior bureaucrats said that the Centre earlier used to analyse the net benefits of any large public investment project vis-à-vis its social and environmental costs much before granting it the stamp of approval. A practice like this could save the government from the rigors of training judicial officers to analyse unintended economic consequences of their own verdicts before they are pronounced.

The Planning Commission of India, which was dissolved by Prime Minister Narendra Modi soon after he came to power in Delhi in order to make way for the Aayog, had a highly professional group of experts constituting a Project Appraisal Division. This division used to carry out socio-economic analyses of large public investments by studying their costs and benefits in order to provide inputs for the purpose of decision-making at the highest level. The division used to provide inputs to another body, the Public Investment Board, which was headed by the secretary of the Department of Expenditure. If it found a net benefit in any proposed public investment, the department used to recommend it to the Union Cabinet for its approval.

Former bureaucrat EAS Sarma, who headed the Project Appraisal Division as well as the Public Investment Board of the Planning Commission at different points in a 35-year-long career, said that judicial decisions cannot be subjected to narrow interpretations of economic development.

“The three dimensions of economic, social and political development of citizens, as enshrined in the Constitution of India, are interrelated and it will be misleading to look at any one of the dimensions in isolation, independent of the other two,” Sarma told Newsclick. He added that the concept of “economic development” as interpreted by the NITI Aayog in the terms of reference of its study differs significantly from the concept of economic development as enshrined in the Constitution of India.

“The latter looks at development from a wide range of genuine public concerns in a democratic system such as equity, sustainability, human rights of individual citizens, welfare of the people, especially the disadvantaged groups, the federal balance between the Union and the States and the concept of compensatory discrimination that is necessary to protect the interests of those that have been victims of continued discrimination over generations. When the apex court interprets the Constitution of India, these are the concerns that stand out prominently and not the narrow considerations of a limited economic evaluation,” added Sarma.

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