“The petitioners have argued at length as to why the present case calls for a heightened judicial review… We are compelled to wonder as to what could be the circumstances, if at all any, wherein the Court not only surpasses the boundaries reserved for its oversight in the Constitution but also provides it an express recognition by acknowledging a heightened review,” said Justices A M Khanwilkar and Dinesh Mheshwari, who formed the majority in a three-judge bench that green lighted the two projects.
“Would it be justified for the Court to innovate and elevate the standard of review after a decision has already been taken by the executive in accordance with the procedure established by law, in pursuance of a policy,” they asked.
Rejecting the petitioners’ plea, Justice Khanwilkar said, “there is absolutely no legal basis to ‘heighten’ the judicial review by applying yardstick beyond the statutory scheme and particularly when the Government has accorded no special status to the project and has gone through the ordinary route of such development projects as per law.” The court said such a proposition (heightened judicial review) for select projects is “fraught with unforeseen consequences and replete with uncertainties”.
The SC said, “Once the Government decides to construct a new space for its sitting or to construct a highway or water dam or school or university and follows the procedure prescribed under law commensurate with the nature of project, then the Court cannot act as a multiplier of regulations and add its own notion as to what ought to be additional essential procedure for going ahead with a particular project.”
“In a democracy, the electors repose their faith in the elected Government which is accountable to the legislature and expect it to adopt the best possible course of action in public interest. Thus, an elected Government is the repository of public faith in matters of development,” it said.
“Some section of the public/citizens may have another viewpoint if not complete disagreement with the course of action perceived by the elected Government, but then, the dispensation of judicial review cannot be resorted to by the aggrieved/dissenting section for vindication of their point of view until and unless it is demonstrated that the proposed action is in breach of procedure established by law or in a given case, colourable exercise of powers of the Government,” it said.
“Therefore, it is important for the Courts to remain alive to all the attending circumstances and not interfere merely because another option as in the perception of the aggrieved/dissenting section of public would have been a better option,” Justices Khanwilkar and Maheshwari said.