Can a serving bureaucrat criticise judgement of the Supreme Court?

Niti Aayog CEO Amitabh Kant criticises SC for asking government to review green nod to Goa's second airport

The article has been updated

On March 29, the Supreme Court suspended the environmental clearance to build Goa's second airport. In a rarity, one of the government's top bureaucrat, Niti Aayog's Chief Executive Officer, Amitabh Kant wrote an opinion piece in a newspaper on April 15 criticising the Supreme Court for its judgement (https://economictimes.indiatimes.com/blogs/et-commentary/the-need-to-mope-about-mopa/). He said the Supreme Court had stepped in to retrospectively put a 'complete stop' to a key infrastructure project. By doing so, Kant said, the court set a dangerous precedent. He concluded that the judgement would come at a significant cost to doing business, wrongly interfered in government’s policy decision and wrongly treated economic development and environment as binaries.

Kant got some facts of the case and the judgement wrong. He missed acknowledging several other vital ones.

The Goa state government which applied and secured the clearances in 2015, signed up GMR Goa International Airport Limited as the concessionaire in 2016. After a series of litigations on environmental issues starting in 2017 in the National Green Tribunal and the Bombay High Court, in 2019 the appellants approached the Supreme Court against orders of the NGT in favour of the project.

The 93-page judgement by Justice D Y Chandrachud in these cases did not 'completely stop' the Mopa airport project. It asked the Union environment, forests and climate change ministry’s expert appraisal committee to "revisit the recommendations made by it for the grant of an" environment condition in light of concerns brought to fore in the judgement. It gave the committee one month to do so.

It did so after it found the project developer – at that stage, the Goa state government - had concealed material facts while seeking the clearance. It said, there was "patent and abject failure of the State of Goa as the project proponent in failing to disclose wet lands, water sources, water bodies, biospheres, mountains and forests within an aerial distance of 15 kilometres,” as required by law. It found several other legal lapses by the state government in how it provided incomplete information while seeking the green nod.

The court found the Union government's expert appraisal committee also failed to adhere to its legal mandate and approved the project without a detailed scrutiny of the proposal citing 'peculiar circumstances' of the project, which it did not list down. Court held it to have 'considered circumstances extraneous' while clearing the project. The court also criticised the National Green Tribunal for rejecting an appeal against the clearance saying the tribunal had failed to discharge its adjudicatory functions in simply going by what the government claimed.

The judgement was, unlike what Kant suggests, not on a policy of the government. It was a judicial review of an environmental clearance granted in violation of particular provisions of the Environment Protection Act, 1986. The court found specific serious violations and suppression of material facts, which under law permits the court to cancel the clearance in entirety. The court did not do so and actually gave the project an easy way out by asking the same committee of experts to review the clearance in light of the new information emerging during the case.

Kant did not mention these facts in his opinion pitching it as a debate over a balance between development and environment. Business Standard sent detailed queries to Kant asking if he was aware of the apex court finding such illegalities on the part of the state and union government in the case. He did not answer the specific questions and instead replied, “I have expressed merely my personal views on the judgment in the opinion piece. I have read the judgement in its entirety and I am fully convinced of my views. I have no further comments to make on this.” He later posted an ‘unedited’ version of his comment on his website in response to the queries. The unedited version had the same thrust as the published version.

How does one view a top government functionary commenting on an on-going case (the case has not yet been closed by the Supreme Court) before the courts where specific violations of law by governments have been determined? Particularly when the government functionary fails to acknowledge (whether in agreement or not) that such illegalities were the basis for the judgement.

The Central Civil Services (Conduct) Rules, 1964 states that officials cannot publish or say anything or write anything “which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government.” Expression of views is permitted on subjects and issues that do not pertain to the government’s actions or policies. The conduct rules are silent on whether they can criticise the judiciary or not. But a senior official in the department of personnel and training says, “If one were to follow the rules strictly, a comment on judicial orders and judgement too can be seen as a comment on the government as the Constitution provides these to be the equivalent as the law of the land. But, it is at the discretion of the government to act on these rules as it is considered the terms of contract between an employee and an employer.”

Kant did not respond to the question about the propriety of commenting on a judicial pronouncement, particularly as the case has not reached its logical conclusion. Once the environment ministry’s expert appraisal committee reviews its decision by end May the Goa state government to seek instructions from the apex court on the future of the project.

In the past, ministers and other members of the political executive in various governments have criticised the judicial orders or interventions – very often on ground of judicial overreach – but the bureaucracy criticising the judiciary in public domain opens up a new arena all together.

NITI Aayog CEO Amitabh Kant responds:

The entire premise of the article is that a serving bureaucrat should not critique a Supreme Court judgement. Besides the obvious fact that a fair critique of a judgement is well within any citizen’s right, the writer is wrong in saying that I am a serving bureaucrat. 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”. So, a piece that attacks me personally and is based on a completely untrue premise is ironical to say the least.

The implication appears to be that I am not entitled to share my objective personal opinion on a judgment that I feel is adversely impacting the predictability and consistency of economic policies and has an adverse bearing on economic development and infrastructure creation in the country. 

I am fully aware of Sustainable Development Goals and I am personally entirely committed to environmental regulations. The purpose of writing the article was that once a project has started implementation after getting all statutory environmental approvals as well as clearance of NGT and High Court, it is far from ideal that the Hon. Supreme Court steps in and bans further implementation of the project, that too retrospectively. This would create total chaos and uncertainty and it would become impossible for the country to attract private sector investment, which I am sure most would agree is necessary for our economic growth to be enhanced. Let me clarify that I was not criticizing the Supreme Court, I was merely laying out the impact that judgments may have when developmental projects are halted after all approvals have been received and after work in full steam has begun on ground.

The article completely ignores the economic impact, which the writer will know by reading the NGT judgement and past judgments of the Supreme Court, is a directive that the Court has laid out for the judiciary as a whole on a number of occasions, many of which I cited in my unedited article. 

I can understand a fair critique of my piece, but personally attacking me and my point of view is neither fair nor in accordance with journalistic ethics.