Govt Think Tank Hand-Picked SC Rulings To Probe Judicial Activism

10 Jun 2021 9 min read  Share

The Niti Aayog wants to review the economic impacts of Supreme Court rulings on environmental-law violations. Its officials are supposedly not investigating ‘judicial activism’. Files we obtained using right-to-information laws show that is indeed what they are doing.

Niti Aayog CEO Amitabh Kant/NITI AAYOG

New Delhi: The government think tank Niti Aayog funded a study on the economic impact of judicial activism, overruling a warning from a top official that it served no purpose, according to documents accessed under the Right to Information (RTI) Act, 2005.

The RTI records reveal the Niti Aayog commissioned the study in January 2020 to examine five judgements of the Supreme Court and National Green Tribunal, including an order that had particularly irked the think tank’s CEO, Amitabh Kant.

Kant broke a bureaucratic covenant of not expressing partisan opinion and wrote an op-ed against a March 2019 apex court judgement, which criticised the Goa government, the union government and the National Green Tribunal.

According to the RTI records, CUTS International, a non-governmental organisation (NGO), suggested the study, which in effect makes a case against “judicial activism”. The proposal gained traction in the Aayog after CUTS International secretary-general Pradeep Mehta met Kant on 10 January 2019. The same day, the NGO mailed a proposal to Niti Aayog to do research “highlighting the economic impact of two Supreme Court decisions”.

Email correspondence shows CUTS head Mehta met Niti Aayog's Kant on 10 January 10 2019.

One of these Supreme Court decisions was on the manufacture and sale of vehicles that did not meet Bharat Stage-IV emission standards. This had wide implications for public health because of vehicular air pollution. The other was a February 2018 judgement in a case called The Goa Foundation vs M/s Sesa Sterlite Limited & Others, related to unchecked, large-scale illegal mining in Goa.

A year later when CUTS was nominated, without inviting competitors through an open tender, to do the research for Rs 24.8 lakh, they were tasked to look at three more judgements, including one on environmental clearance to Mopa airport in Goa, an order that Kant believed was erroneous.

Mehta told Article 14 he had had “several meetings with Shri Amitabh Kant to discuss many issues around economic governance in our country”.

“It is in the remit of the Niti Aayog and our mandate to find solutions to problems,” said Mehta.

Article 14 sought comment from Kant over email and WhatsApp but received no response.

CUTS International’s unsolicited proposal to study two Supreme Court judgements moved up the bureaucratic ladder but hit a hurdle in February 2019: the second- highest-ranking bureaucrat at Niti Aayog raised doubts over the purpose of the study.

“I am unable to see what actionable policy or implementation issues NITI can take forward if it were to have the benefit of these two studies under the research scheme,” wrote Yaduvendra Mathur, additional secretary at the Aayog.

Mathur's file noting dated 13 February 2019.

Mathur asked for the views of Niti Aayog consultant Desh Gaurav Sekhri, a sports lawyer who was appointed from the private sector in 2017. He was the first on record to push the study.

Citing the example of how judicial orders on illegalities in mining had the “potential to restrict the Indian economy significantly while at the same time possibly deterring investment”, Sekhri said: “the situation is quite serious and must be rectified before the cost to the Indian economy becomes completely unsustainable”.

Sekhri said, “…therefore it would be helpful from a policy perspective to understand the required impact of these judgments to the population. Accordingly, policy can be framed in future.”

Sekhri did not reply to Article 14 requests for comment.

Criticising The Supreme Court

By the end of February 2019, Kant cleared the movement of the proposal to the Aayog’s Research Evaluation Committee for Consultancy by Nomination, an in-house research committee, comprising the Aayog vice chairman, CEO and other officials.

On 1 March 2019 the Supreme Court ruled that Goa’s second airport was illegally granted environmental clearance. The airport is being constructed by GMR Goa International Airport Limited in a joint venture with the state government.

The Supreme Court said that to secure environmental clearance there was “patent and abject failure” on the part of the Goa government in disclosing facts and “serious flaws in the decision-making process” of the Centre that cleared the project by “excluding relevant materials”.

The Court held that the National Green Tribunal, which initially heard the arguments, “failed to carry out a merits review”, and “did not discharge an adjudicatory function”. The SC asked for a review of environmental clearance.

A few days later, Amitabh Kant wrote in The Economic Times: “The Supreme Court has stepped in to retrospectively put a stop to a key infrastructure project”.

This was inaccurate because the Supreme Court had only asked for a review of the licence granted. The Court did not stop the project, though it could have under the Environment Protection Act, 1986, which allows penalties for illegal projects. The apex court had asked merely for a review of the green licence by the authorities.

“The Mopa airport verdict is another example of the increasing uncertainty and cost of doing business in India due to interventions by the judiciary after statutory approvals,” Kant wrote. “It’s a dangerous precedent to set.”

While Kant focussed on business interests, the Supreme Court judgement dealt with violations of environmental law.

Contrary to his own past arguments and the nature of the study that the Aayog sponsored, Kant in recent public statements has said protecting natural ecosystems as being not a “choice” but an “imperative”.

“The pandemic calls for a New Development Model giving environment a larger share in the growth paradigm,” Kant tweeted on 5 June 2021. On 16 January 2020, the Supreme Court, in a fresh judgment, allowed construction for Goa’s airport to proceed. “In the proceedings that followed the judgment of this Court, the project proponent sought to remedy its failure by taking into account additional information on significant aspects of the environment,” said the Supreme Court.

The Court appointed a special body to oversee compliance “with the directions cumulatively issued by this Court”.

How Kant’s ‘Personal Views’ Became An Official Study

A 1 May 2019 column in another business daily, Business Standard, questioned Kant’s right as a government servant to castigate the Supreme Court and argued that he ignored the facts to allege that judicial activism was hurting investor sentiment.

The column pointed out that Kant’s article overlooked key aspects of the case as he argued solely from the private sector’s point of view.

In a response to the same article, published as a rejoinder, Kant defended himself: “I am a retired bureaucrat presently re-employed on contractual basis who has written this article in my personal capacity. The article clearly states that views are personal”.

Kant was wrong because even contract employees are required to follow the government's service rules. Public servants are not allowed to comment on government policy without clearances from higher authorities, though the rules are quiet about public servants commenting on the judiciary.

By now Kant had publicly absolved Niti Aayog of criticising the judiciary by claiming these were his personal views. Soon, these “personal views” seeped into the research commissioned by the Aayog.

In a meeting to discuss the CUTS International proposal, according to the files, Kant said: “There are many judgements of the National Green Tribunal also that need to be analysed in terms of their economic impact.”

Niti Aayog decided that the NGO would suggest more cases for the study.

Minutes of the meeting of Niti Aayog's in-house research committee held on 19 August 2019.

The revised list of cases for study included NGT’s ban on sand mining in the Yamuna in Uttar Pradesh’s Gautam Buddha Nagar, a ban on construction in Delhi and the National Capital Region, the Supreme Court’s decision to reject the reopening of Vedanta’s Sterlite copper plant in Thoothukudi, the ban on iron ore mining in Goa and the Mopa airport judgement, which was Kant’s personal irritant.

The records do not show how the Aayog or the NGO decided if anyone in the public besides Kant viewed it as a fit case of “excessive judicial activism”.

But by now, a “non-solicited” research proposal had been classified on record as “solicited” or one that Niti Aayog had sought from the NGO.

“The criterion for selection of cases was that they were decided after the Supreme Court's order in the Shivashakti Sugars case in May, 2017 where the court held that economic impact of orders should be borne in mind before any order is passed so that overall justice is done,” said Mehta, the head of CUTS International.

“Only six cases were selected (by the NGO) where environment was a common thread, so that a representative study could emerge,” said Mehta. “Mind you, many of our development projects get stymied due to environmental concerns and a cost benefit exercise can show the best way forward.”

‘Training Judicial Officers’

More than a year later, in February 2021, CUTS International put out a brief on the draft report it had submitted to the Aayog.

“Some of the recent judgements/orders of the Supreme Court of India (SC) and the National Green Tribunal (NGT) indicate that the economic impact analysis of judicial decisions is yet to gain broader acceptance,” said the CUTS brief. “The absence of ex-ante analysis of the economic costs associated with a decision is further exacerbated when judicial activism by courts and tribunals is also in play”.

The brief said the expected outcome of the study was, “initiation of a building of a narrative supporting better sensitivity of economic impacts of judgements by the judiciary”. It said the research “will serve as useful training inputs for the training of judicial officers.”

Screengrab of the project brief CUTS had uploaded to its website.

Experts and environmentalists were quick to criticise the brief, which later disappeared from CUTS International website.

“There was some maintenance work being done by our IT staff,” Mehta said. “Hence it (the brief) may have disappeared for a while like some other info”.

When Article 14 checked the CUTS website days after sending its queries to Mehta, the brief had returned.

The Print on 9 February reported NITI Aayog’s clarification to CUTS, “that the purpose of the study is not to imply ‘judicial activism’, as its brief stated.” It quoted an unnamed NITI Aayog official: “The study is to be an objective cost-benefit analysis to holistically examine the economic impact, if any, of these judgements.”

“The study does not assume or believe that there is any judicial overreach,” the anonymous official said.

Building A Case Against ‘Judicial Activism’

A review of documents indicates confirmation bias among the Aayog’s top officials, who used the study as a prop to build a case against aggressive jurisprudence.

NITI Aayog member Ramesh Chand, in a meeting on 19 August 2019 said: “Undertaking such studies may be desirable only in cases where there is public perception of judicial activism.” He suggested more cases be included.

Vice Chairman Rajiv Kumar agreed: “Cases will have to be selected carefully”.

Email correspondence between CUTS and Niti Aayog officials on 30 August 2019 showed the cases were based on “substantive economic impact” and “judicial activism”.

Niti Aayog refused to share the draft report and other details of the research under RTI because, according to them, CUTS International denied permission to do so.

The Aayog did not respond to Article 14’s queries.

Mehta said they had denied access as it is “work-in-progress”.

Under the RTI Act, neither is Niti Aayog required to ask its contractor for permission to share a government commissioned report nor is “work-in-progress'' a legally permitted excuse to deny information.

Mehta defended the purpose of the study. “The study is important so that the judiciary sees value in audit of their orders in terms of its economic impact with the hope that in future orders are passed keeping overall justice in mind,” said Mehta.

“There is no presumption that the (Supreme Court) orders are bad but whether the best remedy was prescribed,” said Mehta. “Furthermore, the study doesn't question the right and duty of the judiciary to engage and adjudicate in such matters of public importance.”

(Shreegireesh Jalihal is a member of
The Reporters’ Collective, a journalism collaborative that publishes in multiple languages and media.)