Project of ‘National Importance' Isn't Immune to Judicial Review: What the Calcutta HC Said on Great Nicobar Projects
New Delhi: On Friday, May 8, the Calcutta High Court rejected the union government’s objections to Public Interest Litigations pertaining to the Great Nicobar projects, according to a report by LiveLaw. The Court instead said that the PILs are maintainable and need to be heard, and that just because a project is of ‘national importance’ it does not become immune to judicial review.
Per LiveLaw, the court was hearing three linked PILs filed by retired IAS officer Meena Gupta, including one about the reduction of eco-sensitive buffer zones around national parks, and another alleging violations of the Forest Rights Act by the procedures being undertaken to push through several infrastructure projects on the Great Nicobar Island in the Andaman and Nicobar archipelago.
Government objects, petitioner defends
The Union government, represented by the Additional Solicitor General, had claimed that petitioner lacked locus standi (the legal right or capacity of a party to initiate a lawsuit or appear before a court). The government argued that Gupta, the petitioner, was a permanent resident of Hyderabad and not the Andaman and Nicobar Islands – suggesting that she was not a directly aggrieved party.
The petitioner objected to this and referred to her long association with tribal welfare and the Andaman and Nicobar Islands (including the fact that she had spent part of her childhood in the islands), as per LiveLaw. The Court noted her arguments that she had served as Secretary, Ministry of Tribal Affairs, participated in finalisation of the Forest Rights Bill before it became law, and was instrumental in replacing the expression “Primitive Tribal Groups” with “Particularly Vulnerable Tribal Groups (PVTG).”
Court rejects government objections
The Division Bench of Chief Justice Sujoy Paul and Justice Partha Sarathi Sen of the Calcutta high court, observed that there can be “no thumb rule” regarding locus standi in PILs and that courts must permit genuine public causes concerning vulnerable communities to be raised even by persons not directly affected, LiveLaw reported.
The court noted that as per Rule 56 of the FRA, if a person or class of persons by reason of poverty, helplessness or disability or socially or economically disadvantageous positions is unable to approach to Court for relief, for redressal of their grievance, any member of the public can approach the Court.
Per LiveLaw, the Court said that PILs are meant to secure justice for disadvantaged communities that are unable to access courts themselves.
The Union government quoted a previous Calcutta high court ruling that dismissed a PIL filed by Delhi-based petitioners against West Bengal's sand policy. However, the bench on May 8 held that this judgment could not be applied “in a mechanical manner” because the petitioner Gupta had demonstrated a substantial and longstanding connection with the subject matter.
‘Not immune to judicial review’
Per the LiveLaw report, the Union government had also argued that the project involved infrastructure of “great national importance,” at an estimated cost of Rs 72,000 crore, and that the tribal communities for whose benefit the PILs were filed were not parties before the Court and that the sovereign right of the State to execute strategic projects must prevail.
To this the court said that merely because a project involves enormous expenditure or national importance, it does not become immune from judicial review.
“A project involving huge expenditure must proceed in accordance with governing laws holding the field and it is not beyond the scope of judicial review on permissible parameters,” LiveLaw quoted the bench as saying.
Final hearing on June 23
In the two other linked PILs challenging the reduction of buffer zones around Galathea National Park and Campbell Bay National Park that the Court heard on the same day, LiveLaw reported that the Union Government argued that the petitions were barred by principles analogous to Order II Rule 2 of the Code of Civil Procedure and res judicata (or “matter judged”, a legal doctrine that prevents parties from reviving litigations that have already received a final judgment).
The court rejected these objections, holding that each petition arose from separate notifications and distinct causes of action.
All three matters have now been listed for final hearing on June 23.
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