SC: Justice Bhuyan criticises ruling; CJI Gavai refuses to give rejoinder

NEW DELHI: While dissenting with CJI B R Gavai on the court's recall of the May 16 judgment of the SC authored by Justices A S Oka and him directing demolition of all structures which were granted post-facto environmental clearance, Justice Ujjal Bhuyan trained his criticism on the CJI and said the majority opinion of the court had overlooked the very fundamentals of environment jurisprudence.

It was natural of Justice Bhuyan, who was part of the bench that penned the May 16 judgment, to defend the sanctity of that verdict in the face of many errors pointed out by CJI. But his statement that the CJI's judgment was "an innocent expression of opinion" overlooking fundamentals of environment jurisprudence raised many eyebrows, as it is widely known that Justice Gavai, as head of the green bench, has passed many judgments for the protection of environment and forests while advocating the concept of 'sustainable development'.




In his 97-page counter to the CJI's 84-page recall judgment, Justice Bhuyan said, "Precautionary principle is the cornerstone of environmental jurisprudence. 'Polluter pays' is only a principle of reparation. Precautionary principle cannot be given a short shrift by relying on the polluter pays principle. The review judgment is a step in retrogression."

After pronouncing his judgment, CJI Gavai recalled that there was a precedent in Court room no. 1 for a dissenting judgment to criticise that of the CJI and the CJI responding to the dissenting view (as happened between Justice S R Bhat and CJI D Y Chandrachud in the same-sex marriage issue).

"I am departing from tradition. I have not changed a single word in my judgment even after receiving the dissenting judgment (of Justice Bhuyan)," CJI Gavai said.

When Justice Bhuyan skipped reading paragraphs in his judgment criticising the CJI's view and said he "didn't want to read certain undercurrents", Justice Gavai encouraged him to read it and said, "Anyway this would be in public domain. So read it."

But Justice Bhuyan was not persuaded.

Justice K Vinod Chandran said he had written a separate judgment concurring with CJI only because "the (Justice Bhuyan's) opinion rejecting the review denounces the one permitting it." Justice Chandran said dissent is part of a healthy judicial process, but it must be practised by distancing oneself from an overbearing allegiance to one's own beliefs of right and wrong.

Giving a step-by-step counter to Justice Bhuyan's judgment, Justice Chandran said, "The judgment under review, with due respect did not look into the aspects of the power conferred under the Environment Protection Act and the legal principles regarding an undertaking given in derogation of the statutory provisions."

He added, "I fully concur with the opinion of the Learned Chief Justice of India and find the review to be not only warranted, but imperative and expedient."
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