By Anmol Gulecha
This post is part of our NNHRR Toogdag 2024 Blog Series. It is based on a presentation given on 27 June 2024 for the Human Rights and Climate Crisis Working Group Panel on the occasion of the Toogdag 2024: NNHRR Annual Conference, hosted this year by the Netherlands Institute of Human Rights (SIM) and Utrecht University Law School. The topic of this year’s conference was 'Resilient Rights - Tools for Inclusion and Justice'.
Introduction: The Supreme Court of India does not shy away from science
The Indian Supreme Court (the Court) is renowned for adjudicating complex policy issues that have significant societal implications through public interest litigation cases (PIL cases) where, as per the national Constitutional framework, the Court can only admit PIL cases where the claim refers to an alleged fundamental rights violation. For instance, the Court has ruled on PIL cases filed to oppose the construction of nuclear power plants in India. In this PIL case the petitioner claimed nuclear energy posed a risk to human life, thus endangering the fundamental right to life under Article 21 of the Constitution of India. More recently, the Court has been called upon to adjudicate climate change related issues. For instance, in another policy-related PIL case, the Court is reviewing the feasibility of installing underground and overhead electric lines to produce solar energy and combat climate change within the habitat of the Great Indian Bustard, which could potentially endanger the bird.
While these PIL cases address different policy fields, they share a common feature: the Court becomes a forum for the interplay between science and the protection of human rights. In the case challenging the construction of nuclear power plants, the Court sought to educate itself on whether nuclear energy poses any risk to human rights. Similarly, in the case concerning the production of solar energy, the Court is seeking scientific evidence and advice to determine strategies for protecting the bird’s habitat while wanting to promote the production of solar energy to combat climate change.
The Court has explicitly stated its intention to rely on scientific evidence in making decisions in such PIL cases, indicating that it does not shy away from using scientific advice in judicial decisions. However, this does not mean the Court has the expertise to review all available scientific evidence to establish sound science and filter out junk science. In light of the Court venturing into scientifically policy oriented PIL cases, this blog post aims to answer the question: How does the Court tackle the scientific aspects of PIL cases where scientific evidence becomes the basis for decisions protecting human rights? The blog post will not focus on the normative aspects of these PIL cases but the procedural aspects of how the Court goes about reviewing scientific evidence.
The methodological innovation: In the name of protecting human rights
Given the inevitable necessity for the Court to use scientific evidence to issue decisions in complex PIL cases, the judicial decision-making process requires innovative approaches for the Court to be able to review the evidence, as noted, for instance, by Chowdhury and Thayyil. While examining the judicial decision-making process before the Court in such cases, it becomes clear that the Court has self-introduced methodological innovations to tackle the issue of expertise. These innovations involve employing court-appointed third-party experts, such as amicus curiae, expert committees, and commissions, to review scientific evidence. This judicial methodology allows the Court to tackle its lack of expertise by delegating the scientific aspects of PIL cases to trained individuals who understand the science.
The term "amicus curiae," meaning "friend of the court," refers to a well-reputed lawyer appointed to assist the Court by reviewing evidence and advising on equitable decisions. In landmark PIL cases, the Court used the amicus curiae to navigate complex scientific issues. Essentially, the Court delegated to the amicus curiae the task of reviewing the evidence and of making advice on possible equitable decisions. However, functional issues have been raised about the Court's use of amicus curiae, who is often a lawyer and may not have the expertise to review scientific evidence. In some PIL cases, the Court has appointed expert committees composed of individuals with professional and educational backgrounds in relevant scientific fields. These committees examine the scientific evidence and provide expert advice on potential decisions. This type of expert allows the Court to outsource the technical aspects of evidence review to those with the necessary expertise, thereby enhancing the quality and reliability of the judicial process. Finally, the Court has also utilised commissions, typically comprising former public officials with prior experience in policy making. These commissions are often employed to independently gather and review scientific evidence, supplementing the information provided by the parties involved in the case. The insights from these commissions enable the Court to make more informed decisions based on comprehensive and unbiased evidence.
The primary advantage of involving third-party experts is that it allows the Court to rely on individuals trained in scientific evaluation. This methodological yet, above all, procedural approach is innovative as it acknowledges the Court's limitations and demonstrates its willingness to seek expert advice when necessary. By doing so, according to the Court itself, the judges ensure that its decisions are based on sound science rather than unqualified interpretations. Additionally, expert advice, admitted by the Court itself, helps the judges understand the evidence clearly and comprehensibly, facilitating more accurate and just decisions. Finally, in PIL cases where opposing parties present conflicting scientific evidence—creating a "battle of the sciences"—the use of court-appointed experts provides an independent review, enabling the Court to resolve these scientific disputes. The use of such independent Court-appointed experts will be particularly handy when the Court has to review human rights claims regarding (contested) climate science such as risk posed by climate change or even attribution science.
Nevertheless, it is essential to mention that the Court's use of these experts varies depending on the specifics of each case. For instance, in a PIL case involving the review of executive forest policies, the Court has employed amicus curiae and expert committees but not commissions. Conversely, only expert committee advice has been utilised in cases concerning nuclear energy. In the Right to Food case, the Court relied solely on a commission to review policies related to quantities of food subsidies to be distributed to vulnerable populations.
The limits of PIL: litigating in a procedural vacuum
The variation in the Court's use of experts across different PIL cases highlights the absence of a standardised judicial procedure for such litigation. The reason for variations lies in the legal procedure in PIL cases. In India, PIL cases differ significantly from civil, criminal, and administrative litigation as they aim to protect human rights, and thus become results-oriented. This means the Court is more focused on remedying the alleged human rights violations rather than strictly following a standard procedure due to the distinct nature of each case that a different procedure to address the specific human rights violation.
Another distinction between PIL cases and other cases is, the former always requires urgent remedies to possible human rights violations. Given the urgency of protecting human rights, the Court has held that procedural rules do not strictly apply to PIL cases, allowing for judicial discretionary choices or for the Court to use any means necessary to ensure justice. This discretionary power is derived from the broad ranging Article 142 of the Constitution of India, which grants the Court broad judicial authority to take necessary actions to secure justice.
The broad judicial discretion afforded to the Court has had mixed results in both the protection of human rights in complex policy PIL cases and the Court's engagement with evidence. For instance, this discretion allows the Court to appoint experts based on the judges' assessment of necessity. While it is beneficial for the Court to have the freedom to appoint experts, as noted by Rajamani, this judicial discretion lacks formal safeguards beyond those imposed by individual judges. Essentially, the discretionary choices are shaped by the preferences of the judges handling the case. Consequently, Fowkes observed that judges often adopt a command and control strategy to determine what evidence the Court should gather and how to review it. The Court's command control strategy includes appointing experts to review scientific evidence on its behalf. This approach was intended to ensure that judicial decisions are informed by sound science and effectively protect human rights. However, the absence of formal safeguards for judicial discretion has led to issues with due process.
Conclusion: Is the Court taking its methodological innovation too far?
The Indian Supreme Court's innovative use of court-appointed experts in complex PIL cases ensures that scientific evidence is effectively reviewed without procedural obstacles. However, this practice is not without controversy. Desai and Muralidhar have noted that the Court's practice has made judges utterly reliant on these experts. At times, the Court only gathers and reviews evidence provided by experts, disregarding evidence presented by the petitioners, whom the Court has labelled as non-experts. This judicial practice of sole reliance on experts for engaging with scientific evidence has led Bhuwania to conclude that the Court has pushed the petitioner, who initiated the PIL, out of the judicial decision-making process.
In conclusion, a judicial process, those with specialised expertise are expected to be better equipped/trained to conduct scientific reviews for the Court; whilst, the petitioner may not have all the necessary expertise. Nevertheless, by making complex PIL cases the domain of expert-driven judicial decision-making, the Court has marginalised the petitioners and the public, whose human rights it aims to protect in PIL cases. The pushing of the petitioner out of the PIL proceedings is a danger to due process. For instance, pushing the petitioner out of the PIL case might mean that the party who can report on the respondent’s human right violations would not be arguing before the Court, leading to the Court being unaware of any violation. This danger seems to materialise due to the lack of safeguards to the judicial discretionary in PIL cases but the Court does not seem to take issue with such a danger.
To further investigate this controversy and find solutions, future research should focus on the Court's use of individual experts, exploring these forms of experts in depth to better understand the dynamics between the Court's engagement with science and the need for a more transparent judicial decision-making process. Furthermore, as the Court is about to embark upon the adjudication of the first climate change related PIL case, it will be an opportunity for the Court to address the procedural vacuum in which they have been functioning up until now and reflect on the use of experts when engaging with scientific evidence. The effects of this will not only have an impact on the case at hand but will also have implications on the application of human rights, which is the substantive focus of all PIL jurisprudence regardless of policy area.
Bio:
Anmol Gulecha is a PhD researcher examining the various strategies courts employ to review scientific and empirical evidence in public interest litigation cases. Additionally, she serves as the Managing Editor of the International Organizations Law Review.