The impact of public interest litigation on large infrastructure projects can be seen with reference to cases on river valley projects, thermal power plants, mining projects, railway projects, privatisation in Pakistan, tourism infrastructure and roads and highways especially in India.
Over the last two decades, a very large number of public interest petitions were filed to challenge large infrastructure projects, including primarily dams, power and mining projects. The grounds of the challenge had included adverse environmental impacts, safety aspects, inadequate Environment Impact Assessment and Environment Management Plan, extraneous financial considerations, forced displacement and inadequate resettlement and rehabilitation measures arising therefrom.
It would be seen that most of the challenges to such projects have been mainly because all such projects require acquisition of substantial areas of land and consequential displacement of a large number of people and also involve substantial impact on the environment and ecology of the regions. This is because large infrastructure projects will invariably have a large impacts.
The general response of the courts to public interest litigation against large infrastructure projects has been conservative and the court has not ordered the scraping of any project or even any significant restructuring of a project in the face of such challenges.
It is not possible to hold that the Government of Pakistan has not applied its mind to all possible ramifications of the project. The case brings forth intricate questions relating to science and engineering, and the court does not possess the requisite expertise to deal with it.
It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decisions. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of the policy making process and the courts are ill equipped to adjudicate on a policy decision so undertaken.
The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and the people's fundamental rights are not transgressed upon, except to the extent permissible under the Constitution. Even then, any challenge to such a policy decision must be before the execution of the project is undertaken.
Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after it's execution has commenced, should be thrown at the very threshold on the ground of latches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a Public Interest Litigation does not mean that ordinary principles applicable to litigation will not apply. Latches is one of them.
For any project which is approved after due deliberation, the court should refrain from being asked to review the decision just because a petitioner in filing a public interest litigation alleges that such a decision should not have been taken because an opposite view against the undertaking of the project, which may have been considered by the government is possible. When two or more options or views are possible and after considering them, the government takes a policy decision, it is then not the function of the court to go into the matter afresh and, in a way, sit in appeal over such a policy decision.
In respect of public projects and policies, which are initiated by the government, it was also held that the court should not become an approval authority. Policy decisions are taken by the government after due care and consideration and if a considered policy decision has been taken, which will not be in the public interest, to require the courts to go into and investigate, those areas which are the function of the executive seems wrong. The observations of the Supreme Courts on the stages of an infrastructural project and the limits of judicial review in each of those stages are worth quoting in full here:
"There are three stages with regard to the undertaking of an infrastructural project. One is conception or planning, second is decision to undertake the project and the third is the execution of the project. The conception and the decision to undertake a project is to be regarded as a policy decision. While there is always a need for such projects not being unduly delayed, it is at the same time expected that as thorough a study as is possible will be undertaken before a decision is taken to start a project.
Once such a considered decision is taken, the proper execution of the same should be taken expeditiously. It is for the Government to decide how to do its job. When it has put a system in place for the execution of a project and such a system cannot be said to be arbitrary, then the only role which a court may have to play is to see that the system works in the manner it was envisaged".
The delay in the filing of a public interest petition has been a critical factor while challenging large infrastructure projects. The fact that the petitioner organisation had sought to challenge an environmental clearance granted to a dam in 1987 by way of public interest litigation in 1994 weighed heavily in deciding the fate of the Narmada Bachao Andolan case.
The court observed in that case 'when such projects are undertaken and public money is spent, individual or organisations in the garb of public interest litigation cannot be permitted to challenge the policy decision taken, after a lapse of time'. When such projects are undertaken and hundreds of crores of public money is spent, individual or organisations in the garb of public interest litigation cannot be permitted to challenge the policy decision taken after a lapse of time.
It is against the national interest and contrary to the established principles of law that decisions to undertake developmental projects are permitted to be challenged after a number of years during which period public money has been spent in the execution of the project. See Narmada Bachao Andolan v Union of India AIR 2000 SC 3751, para 47.
When a petition is filed as a public interest litigation challenging the award of a contract by the government or any public body to a particular tenderer, the court must satisfy itself that the party which has brought the litigation is litigating bonafide for the public good.
The public interest litigation should not be merely a cloak for attaining the private ends of a third party or of the party bringing the petition. The court can examine the previous record of public service rendered by the organisation bringing in the public interest litigation.
Even when a public interest litigation is entertained, the court must be careful to weigh conflicting public interests before intervening. Intervention by the court may ultimately result in delay in the execution of the project.
The obvious consequence of such a delay is price escalation. If any re-tendering is prescribed, the cost of the project can escalate substantially. What is more important, ultimately the public would have to pay a much higher price in the form of delay in the commissioning of the project and the consequent delay in the contemplated public service becoming available to the public.
If it is a power project which is thus delayed, the public may lose substantially because of shortage in electric supply and the consequent obstruction in industrial development. If the project is for the construction of a road, or an irrigation canal, the delay in transportation facility becoming available or the delay in water supply for agriculture being available, can be a substantial set back to the country's economic development.
Where the decision has been taken bonafide and a choice has been exercised on legitimate considerations and nor arbitrarily, there is no reason why the court should not entertain a petition under its Constitutional jurisdiction. Hence before entertaining a Writ Petition and passing any interim orders in such petitions, the court must carefully weigh conflicting public interests.
Only when it comes to a conclusion that there is an overwhelming public interest in entertaining the petition, the court should intervene. The courts do not usually question the locus standi of the petitioner in a public interest litigation, filed on large infrastructure projects.
This is because such cases raise substantive issues that affect a large number of people. Besides, they have been generally filed by mass-based organisations and not individuals. A review of all the major cases shows that the standing of petitioner has not been considered as a threshold technical question before addressing arguments on merits in cases reported as Tehri Bandh Virodhi Sangharsh Samiti v State of Uttar Pradesh (1992) Supp 1 SCC 44; Narmada Bachao Andolan v Union of India AIR 2000 SC 3751; AIR 1999 SC 393. Dahanu Taluka Environment Protection Group v BSES (1991) 2 SCC 539.
As against this, in a number of other cases, especially on mining projects and on large dams, the courts have relied upon the reports of independent expert committees appointed by it for the specific purpose. In all the major public interest litigation on mining, large dams, and thermal power projects the courts have articulated the need to strike the necessary balance. Reliance placed on Tehri Bandh Virodhi Sangharsh Samiti v State of Uttar Pradesh (1992) Supp 1 SCC 44.
It is not for the courts to evaluate these scientific, technical, technological or ecological considerations again as against the evaluation already done by the government. It is enough to state that we are satisfied that the relevant matters have received attention, before the government decided to launch the project. The scope for interference with such policy decision of the government, should, in the nature of things be limited.
Since long, the people of Pakistan and India have been deriving the benefits of the river valley projects. For example, residence of villages around Bhakra Nagal Dam, Nagarjun Sagar Dam, Tehri, Bhillai Steel Plant, Bokaro and Bala Iron and Steel Plant and numerous other developmental sites in India are better off than people living in villages in whose vicinity no development project have been established.
So far a number such river valley projects have been undertaken in all parts of India. In Pakistan Public Interest Litigation involving certain projects in Punjab have been taken up by our Supreme Court.
When the challenge to a dam or a river project on the ground of displacement of persons and lack of proper rehabilitations of the ousted is taken, the courts have in several cases given various directions including ensuring that the displaced persons get a proper opportunity to establish and claim their rights.
In some cases, the Supreme Court issued directions to ensure that the oustees get an alternative land of equal quality or employment in lieu thereof. In other cases, the courts have stayed the involuntary displacement of the oustees and hence the construction of the project until the court's directions regarding rehabilitation of the oustees are complied with.
In a relatively lesser known case the Supreme Court issued directions to ensure that the displaced get an alternative land of equal quality or employment in lieu thereof. In one case, land was acquired by the government of Indian Gujarat for submersion for the construction of a dam across river Karajan.
A public interest litigation was filed in protest against which the court ordered an interim stay on the land acquisition. In an appeal for vacation of the stay order, the court observed that though the land had been acquired for an important public purpose, the human problem, arising out of is placement of large number of tribes and other persons belonging to weaker sections on account of acquisition of land, could not be overlooked.
It is primarily for the government concerned to consider the importance of public projects for the betterment of the conditions of living of the people on the one hand and the necessity for the preservation of social and ecological balances, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and to strike a just balance between these two conflicting objectives.
The court's role is restricted to examining whether the government has taken into account all relevant aspects and has neither ignored, nor overlooked, any material considerations, nor been influenced by extraneous or immaterial considerations in arriving at its final decision.
The parameters of judicial review of administrative action depends upon the facts and circumstances of each case. Its dimension is never closed and must remain flexible. In a case where the Supreme Court of India was called upon by a public interest litigant to scrutinise the awarding of a contract to development of medium sized oil fields - also known as the Panna Mukta Oil Fields case - the court said that: "The grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(I) ILLEGALITY: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(II) IRRATIONALITY, NAMELY, 'WEDNESBURY' UNREASONABLENESS: It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it. The decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it.
(III) PROCEDURAL IMPROPRIETY." In unusually strong words the Supreme Court said : 'However, condemnable be the nature or extent of corruption in the country, nor all acts could be said to fall in that category. The attempt made by the High Court in this case appears to us to be in the nature of a blind shot fired in the dark without even knowing whether there is a prey at all. That may create sound and fury but not result in hunting down the prey.
The High Court has looked at different circumstances in the case with a jaundiced eye, particularly when we look at the comments made by it in relation to the amount of paper used and standing of the learned Counsel appearing in the case. Naturally when stakes are high, one would not like to take a risk in allowing a matter to go by default. The persons concerned will take all precautions by putting forth every point in their favour and to be represented by the best of counsel they can engage.
Even that circumstance is taken to be against the parties concerned. We think, the High Court has gone too far. We would not have made this comment at all had the High Court given due weight to the rival submissions made by the parties. The High Court has not at all analysed the contentions put forth by either party.
Hardly any reasons are for the coming in the order. What is stated by the writ petitioners and the respondents are summarised. When the High Court steers itself clear of expressing any opinion, one way or the other, even as to whether a prima facie case exists or not and whether there is reasonable suspicion of any crime having been committed, it is difficult to accept the view taken by the High Court. 'See State of Karnataka v Arun Kumar Agarwal & Ors AIR 2000 SC 411, para 15.
The trend adopted by the Indian Supreme Court is now actively followed in Pakistan also. Recently, in a case reported in 2008 S.C.M.R. 446, the Supreme Court in relation to inspection of construction of high rise buildings, appointed a commission to examine if such buildings are constructed under requisite checks and in conformity with laws and regulations governing the subject.
Such construction would become traps for hundreds of innocent persons, besides being an inmeasurable loss to properties. Supreme Court of Pakistan appointed a commission to survey and inspect each and every high-rise building having three storeys or more, and whether such construction or even where construction was complete.
The Commission was to find whether such buildings were constructed after sanctioning of plans for the purpose, in accordance with the law or not. Where plan had been sanctioned, the Commission had to find out whether it had been so done after complying with all the requisite requirements like rules, regulations and laws, governing the subject including taking steps to assess load bearing capacity of soil, availability of necessary infrastructure to cater for impact created by such like buildings and measures to ensure structural stability.
In Pakistan Suo Moto Constitutional Jurisdiction as public interest litigation are exercised under Article 184 (3) of the Constitution of Pakistan 1973. However, recently in 2008 S.C.M.R. 531 at 538 the Supreme Court of Pakistan have observed as under :
"Supreme Court, in exercise of the powers under Article 184(3) of the Constitution, may interfere in public interest litigation only in exceptional cases of public importance relating to the enforcement of fundamental rights enshrined in Part-II of Chapter-I of the Constitution, and, similarly, in case of enforcement of any legal right, the provision of Article 199 of the Constitution can be invoked by an aggrieved person".
That from the aforesaid observations of the Supreme Court of Pakistan, it is very clear and obvious that exercise of Suo Moto jurisdiction for enforcement of and or public interest litigation has been limited by the Supreme Court of Pakistan and that also in exceptional cases of public importance relating to the enforcement of Fundamental Rights. This limited exercise of Public Interest Litigation and enforcement of Suo Moto jurisdiction is contrary to the exercise of such rights by the court of Indian jurisdiction.
It was apparent that in keeping with the spirit of the above observation, that the Suo Moto case pertaining to clash of lawyers, media persons and members of the civil society with Police/Law enforcing agencies outside Supreme Court Building and in front of Election Commission of Pakistan on 29-9-2007 has also been disposed off by the Supreme Court recently as observed in 2008 S.C.M.R. 563.