All Petitions are Equal, But Some Petitions are More Equal Than Others?

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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On October 5, 2019, a Division Bench of the Bombay High Court delivered judgment in Vanakshakti v Union of India. The Petitioners had asked for a declaration that – among other things – the Aarey Colony be declared as a reserved forest or a protected forest under the Indian Forest Act, and a prohibition upon any development, construction or other non-forest work in the colony. The Division Bench dismissed the petitions on procedural grounds: it found that the two legal questions before it were pending adjudication in different forums. The question of whether the Aarey Colony was to be declared a forest, following the principles laid down in Godavarman’s Case, had been answered in the negative by the Bombay High Court in a judgement on 26th October, 2018. The Bombay High Court’s judgment had been carried in appeal to the Supreme Court, where it was pending. And a related issue – that of declaring the Aarey Colony as an eco-sensitive zone – was pending consideration before the National Green Tribunal. Notably, while dismissing the petition, the Division Bench also specified the procedural route that was open to the Petitioners. It noted in paragraph 25 that:

… pertaining to the issue of the area to be declared as a reserved forest or a protected forest since the proceedings before the Supreme Court are pending in T.N.Godavarman’s case (supra) petitioners should file an application before the Supreme Court and concerning the eco-sensitive zone Notification dated 5th December 2016 an application should be filed before the National Green Tribunal.

Subsequently, on 5th October, a public interest petition was moved before a separate Division Bench of the Bombay High Court. According to the petitioners, when the previous bench had rejected the Aarey Petition, an oral request had been made for a stay of the order – and thus, a restraint upon the cutting of any trees – until the petitioners could move the Supreme Court. This request had been rejected, but the Court had expressed an expectation that the Mumbai Metro Rail Corporation [“MMRC”] would not proceed with cutting trees. Perhaps unsurprisingly, the Division Bench refused to act upon the oral understanding, and rejected the petition.

Meanwhile, the MMRC – that had earmarked the site for the construction of a Metro rail shed – went full steam ahead with cutting the trees. There were widespread protests, arrests were made, various celebrities tweeted against the tree-cutting, and some political parties issued statements. Then, on the evening of the 6th of October, the Vacation Officer of the Supreme Court issued a notice stating that:

Take Notice that a Special Bench has been constituted to hear the matter tomorrow, i.e., 7th October, 2019 at 10.00 AM on the basis of a letter dated 6th October, 2019 addressed by Shri Rishav Ranjan with regard to feeling of trees in Aarey Forest, State of Maharashtra which has been registered as a Public Interest Litigation. (Emphasis Supplied)

As the concluding part of this story, today morning, the vacation bench of the Supreme Court passed an order stating that:

Shri Tushar Mehta, learned Solicitor General appearing for the State of Maharashtra has stated that they are not going to cut any further trees till the next date of hearing. In the circumstances, the statement is quite fair …  As prayed for jointly by the learned counsel for the parties, list these matters before the Forest Bench on 21st October, 2019, as the said Bench is hearing the matter pertaining to the similar issues in T.N. Godhavarman’s case. As undertaken, status quo be maintained till the next date of hearing with respect to cutting of trees.

 

Now in view of the fact that Shri Tushar Mehta, learned Solicitor General, was also heard to have said in Court that “whatever has to be cut is cut”, and in view of the fact that a destroyed forest cannot really be restored by a judicial order, it is unclear what precisely will be the impact of the hearing on 21st October, even if the petitioners were to succeed. That apart, however, the manner in which the Special Bench was constituted, and the hearing in question, raises some serious procedural concerns. The Supreme Court here acted in exercise of its “epistolary jurisdiction”, which basically translates to converting letters (“epistles“) to the Court into petitions, on the basis that it would facilitate justice in a country where not everyone is in a position to approach the Court with formally perfect pleadings. Now, leaving aside for a moment whether this was a fit case for the exercise of epistolary jurisdiction, the core problem is that the Supreme Court effectively registered – and then heard and passed orders on – a public interest litigation against a judicial order of a High Court. This, however, is entirely improper: public interest petitions are not – and cannot be – maintainable against judicial orders. To start with, public interest litigation must demonstrate a prima facie infringement of a fundamental right to be maintainable – and it has been settled at least since the days of Mirajkar that judicial orders, by definition, cannot violate fundamental rights. Therefore, Article 32 petitions (of which PILs form a subset) cannot be filed against judicial orders. The Vacation Bench was presumably bound by Mirajkar (a nine-judge bench judgment), but in issuing notice and directing status quo upon a PIL against a judicial order, it appears to have entirely ignored binding precedent.

This is not a hyper-technical point: there is a process by which High Court judgments can be challenged before the Supreme Court (following from a certificate of leave to appeal granted by the HC, through a Special Leave Petition etc.), and that process is extremely important if we are to preserve the judicial structure that presently exists. Allowing effectively anyone to challenge a High Court judgment in collateral PIL proceedings before the Supreme Court not only further dilutes the authority of High Courts, but also raises the potential of floodgate litigation, where just about anyone can show up with a PIL before the Supreme Court, on the basis that they are unhappy with a High Court judgment. In 2019, in the days of ambush PILs and serial PIL filers, this concern is a real and immediate one. And in this case, the use by the Supreme Court of its “epistolary jurisdiction” is particularly surprising, because the October 4 High Court judgement itself had provided the procedural path that had to be followed: recall once more that the Division Bench did not decide the case on merits, but because it was bound by the coordinate Bench decision from October 2018 – and that the correct way, therefore, was to file an application in the pending Godavarman case, where precisely this issue – declaring land as forest land – is being argued. If the urgency of the situation merited it – and I agree that it did – what was to stop the Supreme Court from immediately reconstituting the Godavarman bench, and hearing the matter as an urgent application?

Now of course, the argument will be that the situation was so pressing and so urgent, that these little procedural niceties must fall by the wayside, in order to achieve the overriding goal of saving the Aarey Forest. Unfortunately, in 2019, that position reflects a dangerous naïveté about judicial power and arbitrariness. The dilution of procedural constraints that limit the concentration of power within the higher judiciary, precisely on the basis of such ends-justify-means logic – is what has given us (for example) the destructive NRC process in Assam. Examples could be multiplied, but again, in 2019, one really shouldn’t need to.

There is, of course, a second rather large Kashmiri stag in the room (see above). As this blog post is written, the communications lock-down in the State of Jammu & Kashmir (a continuing threshold violation of Article 19(1)(a)) has entered into its sixty-second day, and multiple detentions remain un-adjudicated. When these issues were pressed before the Supreme Court, the Chief Justice retorted that the ongoing Ayodhya hearings left him with no time to hear the Kashmir petitions. Apart from the fact that the Supreme Court has thirty-four sitting judges, the Aarey Case shows that when the Supreme Court thinks that a matter is urgent enough, it does have time, Ayodhya notwithstanding: it has time enough to convene a special bench through its “epistolary jurisdiction” during the Dussehra Vacations, which sits at 10 AM (recall that the normal sitting time is 10 30 AM), ignores a nine-judge bench precedent, and passes status quo orders when (one wonders whether the undoubted “national interest” served by the Bombay Metro need not be “balanced” against environmental concerns?).

This is not some kind of a “gotcha” argument: rather, what this entire scenario shows, of course, is a deeper systemic problem that comes along with the expansion of judicial power, without the rigorous establishment of judicial standards to guide and – when necessary – check that judicial power. In the absence of those standards, what we get is – effectively – the rule of (mostly) men, rather than the rule of law. Aarey is urgent enough to merit a special vacation bench and status quo orders, but Kashmir is not: and the difference between the two rests solely in the discretion of the individual who, at the time, happens to be occupying the office of the Chief Justice. This is not a sustainable situation.

Nobody likes to see the environment damaged, and the MMRC’s undue haste in chopping down trees is indefensible. But I doubt very much whether weakening procedural constraints even further, and handing over even greater powers to the Supreme Court (and, in this case, in the Office of the Chief Justice) will end up doing very much for the cause of the environment in the future. Indeed, the history of environmental PILs warns us otherwise – but it is a history that appears to have gone largely unheeded.