a Full Bench of Madras High Court comprising Justices R Mahadevan, V Parthiban and P T As
Kudos to the Law Lords for Telling the Citizens what they needed to know on Environment Protection!
Narasimhan Vijayaraghavan
On 7th Oct,2021, a Full Bench of Madras High Court comprising Justices R Mahadevan, V Parthiban and P T Asha, in P Karthikeyan v. Principal Secretary, TN Home Department-reminded the citizenry of its elevated status but with concomitant responsibilities, as a core component in all things environmental. How?
The landmark judgment in decades-old Ram Janmabhoomi-Babri Masjid title suit was ‘unanimous, yet anonymous’ wrote a commentator. The case, in which the first petition was filed 72 years ago, was brought to a conclusion by a five-judge Supreme Court Constitution bench led by Chief Justice Ranjan Gogoi. Other judges on the bench included CJI-designate Justice SA Bobde, Chief Justice of India Ranjan Gogoi, Justice DY Chandrachud and Justice S Abdul Nazeer.
Surprisingly , the author of 1024-page judgment remains a mystery. As per the tradition, the SC verdicts rendered by a bench mention the name of the judge who penned the verdict. But in this case, the SC bench decided to depart from the norm and keep the identity of the judge hidden.This is highly unusual and in a departure from convention.
Why this unusual preamble. For a reason. We know. But actually we better not know. Academicians, scholars, practitioners and discerning citizens have been on a guessing game as to who wrote the verdict or who contributed which portion. But the mystery does not end there. The last para of the main judgment says that while the judgment is unanimous, one of the judges on the bench had recorded separate reasons on: Whether the disputed structure is the birth-place of Lord Ram according to the faith and belief of the Hindu devotees. The reasons of the learned judge are set out in an addendum – “It is thus concluded on the conclusion that faith and belief of Hindus since prior to construction of Mosque and subsequent thereto has always been that Janmaasthan of Lord Ram is the place where Babri Mosque has been constructed which faith and belief is proved by documentary and oral evidence discussed above.”
Motilal Setalvad, independent India’s first Attorney General said that “ Corridor talks in courts, are almost always 95% right.” And Fali S Nariman, doyen jurist added, “ Experience tells me that it is not gossip. It is almost always true”. “ One is unwilling to share the identity of the law lords who authored the base verdict and the addendum but it is a give away to those in the know of past verdicts authored by them”, as an academician mused. Let us leave it there for the speculation to continue, as it makes for an interesting pastime.
When one read the verdict dt. 7th Oct,2021, in P Karthikeyan v. Commissioner, Coimbatore Corporation, honestly, one did not have to look to – which of the three judges penned it. Start to finish the stamp of class of Justice V Parthiban was ‘written all over it’. Even earlier in lending teeth to the Human Rights Commissions in Abdul Sathar v. Principal Secretary to TN Government, Home Department, dt. 6th Feb,2021, Justice V Parthiban wrote the magnum opus, all of 517 pages plus of leading judgment with but a fleeting opener from a brother judge, on the Full Bench. For this one, he has gone solo for the bench.
One is sure that his brother and sister justices on the bench would not complain over such a reference to the ‘author’ of the pronouncement. After all the order is one. It is unanimous. Came about from three heads putting them together. The very salutary principle behind such larger benches. And then, one among them taking up or being vested with the ‘authorship’. Judgment, however, belongs to the bench, which my friend Parthiban ( poetic licence on the politically incorrect plane. Trust it is not seed for cancel culture, in these polarised times) would readily concede.
In the early days, judgments were written seriatim in order of seniority. Chief Justice Marshall in 1800s in the Supreme Court of United States ‘cajoled, coaxed persuaded and at times brow beat his colleagues for unanimity’ as a biographer said. The Judicial Committee or Privy Council, at the apex of our jurisdiction before we sent the colonists packing, always rendered a ‘ unanimous advice with no dissent from the four justices as it was meant to be counsel to the monarch with no place for a dissent’ . And Justice R F Nariman (Retd) in his recent two volume ‘Discordant Notes’ quotes an instance from Gajendragadkar’s memoir that Justice M R Jayakar, from the pulpit of Judicial Committee was impelled to write the ‘unanimous’ verdict despite his dissent and reservations over it.
Well Justice V Parthiban faced no such compulsions. As one can see. He wrote what he felt and what he reasoned as plausible. His brother/sister in arms were ad idem, as they signed, quiet willingly, one would deduce. They would be as proud of this rare jewel of a judgment, seemingly the first or only one of its kind, in any democratic ethos, giving thumbs, heads, legs up and shout out to all things on climate change and environmental concerns but with a uniquely innovative ‘public interest tweak’ as this writer would call it. ‘Lovely, fascinating construct, to strike a beautiful balance where none seemed possible’ as Chief Justice Earl Warren alluded to his own SCOTUS in 1950s.
Possibly the longest preamble going, before getting into the judgment proper. It was deservingly worthy for one does not get to read such orders very often. It comes but rare and attracts encomiums for its ‘unconventional yet uncontentious reasoning not by verbal jugglery but by logical means’ as Louis Brandeis was once praised for.
The three justices may have gotten on the side of environmental issues, to be politically correct. But have balanced the equities by reminding the citizenry that they too have a role to contribute and not merely seek and insist that it was for the State alone. Citizens cannot absolve themselves of their responsibilities and must be willing to take a bit of the impact if they are to enjoy the best of a clean environment within practical possibilities.
That is where the craftsmanship lies in the authorship of the verdict- a win win for all with a please all wordplay of substance. Kudos to the Justices with an add on to the author- Justice V Parthiban.
Read this, you would agree with no demur. The Full Bench said, “ When every citizen is a waste generator, he/she cannot expect his/her waste to go somewhere else… The right to disown the waste generated by every citizen is no more available and such luxury is not to be made available any more in this era… Decentralisation of processing of waste is a civic imperative due to the alarming shrinkage of urban space.”
Authoring the verdict for the Bench, Justice Parthiban wrote: “It cannot be the case of the citizens or the people that no matter what the development going all around them and yet, no waste disposal facility to be made available nearer to them. Such attitude ought to change with the times we live in and whole-hearted participation of all citizens will only make the solid waste-management policy successful.”
The first Division Bench, led by Chief Justice Sanjib Banerjee, had referred the case to a Full Bench (comprising three judges) for an authoritative pronouncement, since other Division Benches of the court had taken contradictory views on the issue of permitting Municipal Corporations, Municipalities, town panchayats and other local bodies to establish micro compost yards in small spaces inside public parks.
After analysing the issue threadbare, the Full Bench, in its 390-page judgment, concurred with the apprehensions of resident welfare associations that there was always the possibility of parks or play areas sliding and degenerating into squalid places if micro compost yards were not maintained properly. There would always be issues in the implementation of the Solid Waste Management policy, they said.
However, the visionary and futuristic policy could not be discarded apprehending faulty implementation, the Bench added. It directed the government to constitute committees at the State, district, municipal and panchayat levels, including local residents to ensure the proper upkeep and maintenance of the compost yards. The committees must be empowered to intervene and take remedial action, the Bench said.
“ If there is any negligence on the part of the officials towards the proper upkeep and maintenance of micro compost yards, stern disciplinary action should be initiated against them,” the judges said, directing the government to issue a comprehensive circular, incorporating all guidelines for the effective functioning of the committees and the sincere implementation of Solid Waste Management Rules, 2016. A little bird chimes in the ear that the powers that may be are comfortable with this compost/composite order.
A scan across the judicial terrain suggests that this verdict is one of a kind. A stand alone. Obviously, the first of its genre, a shiny beacon for others to follow the leader. Not only Pan India but across east, west, north, south, all over the world.That alone is not its distinctive feature.
Justice Felix Frankfurter famously said, “No office in the land is more important than that of being a citizen”.Kudos to the learned judges for reminding the proverbial R K Laxman common man, that he was not a forgotten entity. He had a throne which he better recognise as his own and not merely pursue the rights that come with it but perform the duties that are intertwined with it as well- as Mahatma Gandhi said.
Well, after authoring the 517 page judgment in Abdul Sathar on 5 Feb,2021 and this 390 page verdict in P Karthikeyan on 7th Oct,2021, Justice V Parthiban is entitled to feel good but possibly tired.
One cannot resist reminding him and the three in the bench, individually and in tandem, of this Upendra Baxi poser- What if the 13 Judges Bench in the case of Kesavananda Bharati established the basic structure doctrine in some 10 to 20 pages instead of producing a hefty judgement of around 1000 pages? What if the pronouncement on the decriminalisation of Section 377 of IPC, the case of Navtej Singh Johar v. Union of India, was not as long as 500 pages? It would have been delightful, isn’t it?
The legal world would have become a lot more approachable and easier to avail by the masses. The lawyers would be at a huge relief for a great deal of time invested in sorting and researching would be saved. The law students would be exempted from the struggle of reading these lengthy, lengthy judgements just so as to ace academically.
Here is mine. Mi lords, did it actually require the 390 pages to reach the succinct message you got to ? Or you allowed Hon’ble Mr. Justice Vasudevan Parthiban ( to be politically correct at least this once) the licence to go big with his literary skills and free run as a writer ( in compete to the likes of me), he may have always wanted to be.
(Advocate is practising in the Madras High Court and author of Constitution and its Making, 2020 and Constitution and its Working, Musings, Anecdotes,Episodes,2021, OakBridge).
