Environment and Art. 21, Custody of Minor, Government and Delay

Dear Reader,

Today I will be analysing 2 judgements and one order.

JUDGEMENT

HANUMAN LAXMAN AROSKAR (APPELLANT)

VS

UNION OF INDIA

RAINBOW ASSOCIATION

VS

UNION OF INDIA

(The Supreme Court)

In this judgement the Supreme Court suspended the Environmental Clearance granted for development of Greenfield international airport at Mopa in Goa.

The Expert Appraisal Committee (EAC) from the SEIA gave the airport an EC after conducting an Environmental Impact Assessment.

However the first appellant in this case filed a petition with the National Green Tribunal (NGT) seeking to have the EC withdrawn. However the NGT affirmed it.

The second appellant in this case appealed the NGT’s decision in this court. The Supreme court held that the EAC did not follow the entire procedure while conducting the EIA and hence the Environmental Clearance should not have been given. Therefore the Supreme Court suspended the EC.

Leftist Analysis

Leftism is an ideology which places economic welfare as superior to economic growth. Economic welfare includes preservation of the environment. In fact the modern day environmental movement which began in the 1960s (often informally called the Green Movement) was created by leftists. Leftists believe that the State should have environmental regulations on industrial, commercial and governmental activities.

This Court could have ignored the procedural irregularities and affirmed the EC. But it held that “There can be no gambles with the environment.”

This judgement supported the leftist view that environmental protection cannot be compromised with in the pursuit of development.

Therefore, we can say that this judgement supports the left wing ideology,

Rightist Analysis

Rightism is an ideology that places economic growth as superior to economic welfare. Therefore right-wingers believe that development should be favoured over environmental preservation. They do not believe that the State should have environmental regulations on industrial, commercial and governmental activities.

The Union of India, through the Ministry of Environment and Forests argued that the procedural irregularities ought to be overlooked by the court because the state of Goa was in great need of a second airport as the first did not have the capacity to conduct more flights. The government believed that a cursory environmental impact assessment was enough to warrant a clearance by the SEAC.

The Supreme Court in its judgement it relied on the Case Law of Lafarge Umiam Mining Pvt Ltd v Union of India which laid down that one of the principles to be followed in the judicial review of environmental matters was “Is the decision consistent with the principles of sustainable development”. In the Court’s view the decision to give an Environmental Clearance was not consistent with the principles of sustainable development. Therefore the Court suspended the order.

This shows that while the Court agrees with the right on the need for development it believes that development should be sustainable, which is not a rightist position.

Therefore, we can say that this judgement neither supports or opposes the right-wing ideology.

Authoritarian Analysis

Authoritarianism is an ideology that believes that the State should not place regulations on the activities of the Government. It supports placing environmental regulations on private companies but not on the government.

The EIA notification places regulations on both governmental and private activities that effect the environment. The Supreme Court upheld this notification.

Authoritarians also believe that procedural irregularities on the part of the government ought to be overlooked by the judiciary. This judgement disagrees with this.

Authoritarians believe that the State should be allowed to violate the right to life granted under Article 21 of the Constitution if it comes in the way of governmental projects. The Supreme Court completely went against this belief.

Therefore, we can say that this judgement completely opposes the authoritarian ideology.

Libertarian Analysis

Libertarianism is an ideology that the State should not place any regulations on the activities of private entities, but that it should place regulations on the activities of public entities. This includes environmental regulations.

The EIA notification places regulations on both private and public entities. This judgement upholds this notification.

Libertarians also believe that procedural irregularities on the part of the government should not be overlooked by the judiciary. This judgement agrees with this belief.

Libertarians believe that the government should never violate the right to life under Article 21. They also interpret Art. 21 to only include the right to a physical life, and to not include other rights that contribute to a good life. This judgement supports the libertarian instinct to protect the right to life, but does not support its interpretation of Art. 21.

Therefore this judgement neither supports nor opposes the libertarian ideology.

My Analysis

I am a believer in sustainable development. I therefore support the left’s belief in environmental preservation but also the right’s belief in development. I think that both can be achieved without sacrificing the other. I believe this judgement supports this goal of sustainable development.

I also support the Supreme Court expanding the interpretation of Article 21 to include environmental health because poor environmental health causes poor personal health which threatens the life of the individual.

Therefore I support this judgement of the Hon’ble Supreme Court.

ORDER

THE STATE OF BIHAR & ORS (PETITIONER)

VS

DEO KUMAR SINGH & ORS (RESPONDENT)

In this case the State of Bihar filed an appeal with the Division Bench against the order of the single judge after a delay of 367 days. The Division Bench did not condone the delay. The government after a delay of 728 days filed a special leave petition seeking to have the delay condoned.

The Supreme Court in this judgement did not condone the delay.

Leftist Analysis

Psychologically speaking leftists/liberals favour mercy over punishment. They therefore believe that a court should condone a delay in filing any petition.

This judgement shows no mercy towards the petitioner.

Therefore, this judgement does not apply the left-wing ideology.

Rightist Analysis

Psychologically speaking rightists/conservatives favour punishment over mercy. They therefore believe that a court should not condone a delay in filing any petition.

This judgement punishes the petitioner by having it pay a penalty.

Authoritarian Analysis

Authoritarians believe that the government’s activities are more important than those of private citizens and so, the judiciary should not punish it for any delay in the judicial process in the same manner that it would punish a private citizen.

This judgement punishes the State in the same manner as a private citizen would be.

Therefore this judgement opposes the authoritarian ideology.

Libertarian Analysis

Libertarians believe that the government’s activities are not more important than those of private citizens and so, the judiciary should punish it for any delay in the judicial process in the same manner that it would punish a private citizen.

This judgement punishes the State in the same manner as a private citizen would be.

Therefore, this judgement supports the libertarian ideology.

My Analysis

I believe that government officials must be held to the same standard as private citizens, especially in a democracy. This judgement supports this view.

Therefore, I support this judgement.

JUDGEMENT

TEJASWINI GAUD AND ORS. (APPELLANTS)

VS

SHEKHAR JAGDISH PRASAD TEWARI AND OTHERS (RESPONDENTS)

This case is an appeal against a judgement of the High Court of Bombay.

These are the facts: The case deals with the custody of a minor. The mother (Zelam) of the child was diagnosed with breast cancer during her pregnancy. After she gave birth the child (Shikha) was with her father while Zelam was undergoing treatment. The father (the respondent) was later hospitalised. While he was undergoing treatment, Tejaswini Gaud-one of Zelam’s two sisters - and her husband (the appellants) took Zelam along with Shikha to their residence.

Zelam succumbed to her illness. Shikha continued to be in the custody of the appellants. The father was denied custody and approached the High Court by filing a writ petition seeking custody of the minor. The High Court adjudicated that the custody of the child should be given back to the father.

The appellants appealed against this judgement. The Supreme Court in this judgement upheld the High Court’s judgement.

Leftist Analysis

Leftism proposes that the State should make laws that change traditions. Leftists believe that this improves the society by making it more modern.

The Hindu Minority and Guardianship Act supports the tradition of the father being the natural guardian of a minor and not the mother’s relatives.

The Supreme Court has relied on this Act to justify its judgement.

Therefore this judgement does not support the leftist position.

Rightist Analysis

Rightism proposes that the State should make laws that protect traditions. Rightist believe that this keeps society stable by not making it more modern.

The Hindu Minority and Guardianship Act supports the tradition of the father being the natural guardian of a minor and not the mother’s relatives.

The Supreme Court has relied on this Act to justify its judgement.

Therefore this judgement supports the rightist position.

Authoritarian Analysis

Authoritarianism advocates for State intervention in the affairs of the family. It also supports the idea of parens patriae — that the State is responsible for the welfare of all the children in the country. It also believes that when a conflict between legislation and the welfare of the child occurs in custody disputes, the court must favour the legislation because it is the written will of the government.

This judgement relies on the aforementioned Act which allows the State to intervene in the affairs of the family.

It also supports the idea of parens patriae.

It favours the welfare of the child over the legislation in custody disputes. It uses the precedent set in the case of Dr. Veena Kapoor v. Varinder Kumar Kapoor to justify itself.

Therefore this judgement supports and opposes authoritarianism in greater and lesser proportions respectively.

Libertarian Analysis

Libertarianism advocates for the non-intervention of the State in the affairs of the family. It does not support the idea of parens patriae because it does not believe that the State is responsible for the welfare of the children in the country. It also believes that when a conflict between legislation and the welfare of the child occurs in custody disputes, the court must favour the welfare of the child as that protects the individual against State power.

This judgement relies on the aforementioned Act which allows the State to intervene in the affairs of the family.

It supports the idea of parens patriae.

It supports the welfare of the child over legislation in custody disputes.

Therefore this judgement supports and opposes libertarianism in lesser and greater proportions respectively.

My Analysis

I believe in the idea of parens patriae, despite being a right-wing libertarian.

As far as custody disputes go I believe that a balance must be struck between legislation and the welfare of the child, because the legislation protects the rights of the parents, and if we support either the former or the latter, than either the parent’s or the child’s rights will be infringed upon. Therefore I support a middle ground between libertarians and authoritarians on this issue.

As far as the ideological battle between tradition and modernity goes I favour tradition. I only favour legislation that changes a tradition if that tradition is unpopular or violates one of the fundamental rights.

This was the analysis of these judgements and order.

Thank you for reading

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360 Degrees

360 Degrees

This is a blog titled 360 Degrees. It examines the legislative, legal and political issues of the day from all perspectives of the political compass.