Reviewing Court Must Defer To Scientific Wisdom Of Authorities, Ensure Only Procedural Compliance In Environmental Matters: Kerala High Court

The Kerala High Court on Tuesday (16 December) observed that the role of the reviewing court must be limited to ensuring the procedural compliance by the statutory authority while considering environmental litigation which involves compliance by statutory authority.The court made the observation while upholding the environmental clearance granted to the proposed Anakkampoyil–Kalladi–Meppadi twin-tube tunnel road project in Kozhikode and Wayanad Districts of the State. The Division Bench of Dr Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian, were delivering the judgment in a public interest litigation challenging the environmental clearance, granted by the Union of India in the Ministry of Environment, Forest and Climate Change to the Public Works Department of the Government of Kerala for construction of Twin Tube Unidirectional Tunnel Road. The Court made observations regarding the accountability expected from the statutory regulatory authorities in environmental litigation. The Court noted that there are several instances where the merits of a decision taken by a regulatory authority under the Environment (Protection) Act and Rules can be ascertained by only a scientific expert and in such instances the role of the reviewing court must be limited to ensuring the procedural compliance by the statutory authority. “As for the scientific aspects of the decision concerned, the court has necessarily to defer to the wisdom of the statutory authorities who are persons entrusted with such statutory duties because of their expertise in the respective areas of scientific knowledge. Such deference by a reviewing court, even while it is otherwise exercising a 'heightened scrutiny judicial review' imposes a corresponding 'heightened responsibility and accountability' on the statutory authorities concerned for it is their assurance as regards the merit of their decision and the justification thereof, that persuades a reviewing court to not interfere with their decision in judicial review proceedings.” Court added. The petitioners in the present case have contended that the Environmental clearance was granted in a mechanical manner without due application of mind by the authorities under Environment (Protection) Act and Rules in an ecologically sensitive region which has experienced severe floods and landslides in 2018, 2019 and 2024. The petitioner has also submitted that the proposed tunnel is situated in close proximity to Mundakkai and Chooralmala villages, which were affected in the 2024 landslide and hence they are justified in their apprehension with regard to the proposed project. The petitioner also questioned the categorisation of the project under the EIA Notification and alleged procedural impropriety in the recommendation process.While considering the challenge, the Court noted that while exercising the power of judicial review especially in matters pertaining to balance between human development needs and environmental protection, interference is not called for unless the policy framed is absolutely capricious, unreasonable and arbitrary. The court further noted that the contours of judicial review has expanded with the concept of 'heightened scrutiny' being brought in to check executive action in matters concerning the fundamental rights. It further observed that the judicial review jurisprudence has shifted from a 'culture of authority' to a 'culture of justification' where the citizens are seen entitled to ask not merely whether the decision in question was taken by a person with authority, but to probe further and seek justification for the said decision. “In other words, the court examines whether the extent of deprivation of the fundamental right of a citizen is excessive when compared to the object sought to be achieved through the State action, and ensures that only so much of the fundamental right is deprived as is necessary for achieving the justified object” , the Court said. The Court further observed that the modern day exercise of judicial review is not based on an artificial distinction between cases that do, and do not involve rights, but is preceded by a determination of the justificatory burden cast upon the decision maker while taking a decision that affects the interest of a citizen. “The reviewing court must then decide the extent to which, in its adjudicatory role, it ought to defer to the decision maker's own assessment when deciding whether that burden has been discharged” , the Court added. After briefly dealing with the contours of judicial review, the Court examined the counter affidavits filed by the Central and State Government in the present case and emphasised that environmental clearance involves complex scientific and technical assessments by Expert committees. It further observed that the counter affidavits filed, shows that a detailed assessment was undertaken while considering the application preferred by the project proponents for Environmental clearance...

Reviewing Court Must Defer To Scientific Wisdom Of Authorities, Ensure Only Procedural Compliance In Environmental Matters: Kerala High Court

Anamika MJ

Tags