Arnab Takes on Former CJI BR Gavai On The Aravalli Verdict

New Delhi: The Supreme Court’s verdict redefining the Aravalli hills has sparked intense political and environmental debate across the country. The ruling, delivered on November 20, accepts a committee-backed definition under which landforms below 100 metres in height are excluded from the Aravalli range, prompting concerns that large areas could become vulnerable to mining activities.

Amid the controversy, Republic TV Editor-in-Chief Arnab Goswami confronted former Chief Justice of India B.R. Gavai, the author of the judgment, in a Super Exclusive interview, questioning the timing of the verdict, the rejection of the amicus curiae’s submissions, and the alleged sidelining of the precautionary principle.

Aravalli verdict under scrutiny

Arnab Goswami: “I have a fundamental disagreement with your judgment which as a citizen of India, I am entitled to have. The Aravallis stood for two billion years, the judgment that has redefined them was delivered three days before your retirement. What was the hurry, Justice Gavai? The judgment was delivered on 28th November and you retired on 23rd November. What was the tearing hurry?”

BR Gavai: “See, I have been monitoring this issue for more than three years. If you go through the judgment we had raised, firstly, judges are not supposed to justify their judgment but since this is an important issue and there is a misconception about the judgment, I agreed to speak to you. If you go through the judgment entirely, the difficulty is that the persons speak about the judgment without even reading them in entirety. So, if you go through the entire judgment, I had given the entire narration as to how the matter arose. There was some issue with regard to the difference adopted by the various states with regard to definition of Aravalli hills and Aravalli ranges. In order to settle those matters, we heard the matter on a number of occasions. Various issues were framed and after hearing the matter, once you hear the matter at length, if you don't decide the judgment, it is like shirking your testimony”.

‘I take offense to that’

Arnab Goswami: “Justice Gavai, may I ask you, how can you pass that comment to me on my program that I have made my judgments on the issue without having gone through the judgment. I would politely completely disagree with this presumption of yours and remind you that I have seen your judgment in entirety. In fact, no, I don't think you can pass a judgment like that, pass a comment like that on my observation, sir. I take offense to that, having said that”.

BR Gavai: “What I have seen on your program is that it has been projected as if we have given a complete license for mining in the Aravalli hills, but that's not correct. If you go through the judgment, we have in fact imposed certain more restrictions on mining in the Aravalli hills and ranges”.

Amicus curiae versus committee report

Arnab Goswami: “Sir, your own judgment makes it clear on paragraph 30 that your final word went against the amicus curiae who is a friend of the court. Very explicitly, Justice Gavai, in paragraph 30 of your judgment, it notes that the amicus curiae had stated in his submission, quote, if the definition as recommended by the committee is accepted, all the hills below the height of 100 meters would be opened up for mining and as a result, the Aravalli hills and the ranges would lose their continuity and integrity. It would totally endanger the environment and equality of the mountains”.

BR Gavai: “Therefore, if you read the further parts of the judgment, we have considered the rival submissions of both the parties. We have accepted the report of the committee, which was consisting of various experts, various representatives of the state governments. And then on a surrender pattern, we have specifically directed that no further mining activities would be conducted”.

FSI definition questioned

Arnab Goswami: “I am quoting from your judgment, Para 27. The FSI had clearly defined the Aravallis in 2010 as under slope over 3 degrees, foothill buffer equal 100 meters, inter hill distance or valley width equal 500 meters, and for the area enclosed by the above defined hills from all sides. What was the need to revisit this definition in the first place? Why did you have to revisit this definition in the first place?”

BR Gavai: “I made a submission that the comments are made without reading the judgment. If you go through the earlier parts of the judgment, the necessity was felt because all the four different states applied different yardstick insofar as the definition of Aravalli hills and definition of Aravalli ranges are concerned”.

Precautionary principle debate

Arnab Goswami: “There is a precautionary principle in law. The precautionary principle applies in this case, doesn't it? The precautionary principle in environmental cases means taking preventive action to protect the environment from serious irreversible harm, even when there is no scientific evidence which is not fully conclusive”.

BR Gavai: “If you read the operative part, it is very much clear that unless the MSRP is finalised by the IPTRE and finalised by the MOEF, no further mining licences would be granted”.

Scope for review

Arnab Goswami: “Now that there is considerable public outrage on this matter and by informed people, not uninformed people, do you believe that if necessary, this matter should be looked at again, reviewed, discussed?”

BR Gavai: “I have always stated that the law has to be static, law has to be developing, law has to be organic. We have on various occasions, wherever we have found that earlier orders are not correct, the courts have always corrected them”.

'Matter not closed, says former CJI'

Arnab Goswami: “Sir, you are saying the matter is not closed?”

BR Gavai: “Matter is not closed, we have directed the MSIP to get the report, the MSIP report will come to the Supreme Court, Supreme Court will find out where in the mining activities are to be permitted and where they are to be prohibited, it is not as if the matter is closed”.

Government report cited

Arnab Goswami: “You have not looked at other cases which were in the public domain, there is a May report by the government, it's titled Detail Action Plan Aravalli Landscape Restoration in brackets Aravalli Green Wall. The irony is this report was published by the Environment and Forests, it's not even an old report, it was published in May 25, just eight months before the Supreme Court redefined the Aravallis. It involved the Forest Survey of India, State Forest Departments of Delhi, Gujarat, Haryana, Rajasthan along with German cooperation for international cooperation”.

Arnab Goswami: “This report was in the public domain and the nation wants to know from you, Justice Gavai, as the former Chief Justice of India, would you see it the other way that this report had very much established the threat to the Aravallis. Eight months before your judgement, your new definition allows for leeway by the mining players to exploit an already depleting resource.”

BR Gavai: “Mr Arnab Goswami, it is firstly not the definition provided by the court, it is the report of the committee, of the experts, the court found that the report was liable to be accepted subject to the further requirement regarding”.

Court relying on expert report

Arnab Goswami: “So you don't completely agree with the government's version which the government says we are only going by what the Supreme Court says, you are saying you are only going by what the government told”.

BR Gavai: “We are going by what the report of the experts of which the FSO is also a party. We only accepted that and in addition to acceptance, we imposed certain stringent conditions which would protect the mining activities unless the MACBP is finalised, no further mining will be permitted”.

‘I have read every word’

Arnab Goswami: “You have seen the affidavit out here of the government which was filed in this case because I have gone through it in detail. You say I have not seen the reports but I have read every word of the 2323 additional affidavit filed by the Ministry of Environment. Sir, I am very detailed in my work”.

Arnab Goswami: “The fact of the matter is the government is trying to institutionalise mining as a core objective, not as an exception, by formally designing a framework whose purpose is to enable exploitation, mining inside the Aravallis”.

BR Gavai: “No, no, but then we have not accepted that we have specifically stated that unless and until MSAP, the Management of Sustainable Development Plan is finalised, no further mining leases would be granted in Aravallis”.

Public outrage and review

Arnab Goswami: “Now that there is considerable public outrage on this matter and by informed people, not uninformed people, do you believe that if necessary, this matter should be looked at again, reviewed, discussed?”

BR Gavai: “No, no, I have always stated that the law has to be static, law has to be developing, law has to be organic. We have on various occasions, wherever we have found that earlier orders are not correct, the courts have always corrected them”.

BR Gavai: “So therefore, I was not inclined to speak to you because the matter may come in review and normally the author of the judgment should not speak about the judgment. But since you insisted that this is an important issue pertaining to environment, if the subsequent benches find that something more stimulant, it is always permissible”.

Can the matter come up again?

Arnab Goswami: “So, it can come up for review?”

BR Gavai: “I mean, your view is given, I am sure you have kept track of the public discussion on this matter, Sir, over the last few days and the amount of attention it has got. If the court subsequently finds that something more needs to be done, something needs to be corrected, the courts can always do it”.

Arnab Goswami: “And the government should be open to review as well, given all the expert opinion, others, it can be put through review again, this decision, this definition?”

BR Gavai: “No, I can't comment on what the subsequent, because I can't be a part of the bench now, I am out of the system. Whatever the matter is brought before the bench, the bench will always take into consideration all the aspects”.

Environment vs mineral potential

Arnab Goswami: “Sir, is the Supreme Court adjudicating mineral potential or environmental protection?”

BR Gavai:“It is considering environment protection and if you go through the various orders which preceded this order, this order is not passed in a day, it is passed over an exercise which was undertaken for the last more than one and a half years, in so far as Aravalli is concerned”.

Government narrative questioned

Arnab Goswami: “The government is portraying this as a Supreme Court-mandated environment protection as an economic loss, building a grievance narrative to reopen mining on revenue. My point is, sir, you are the author of this report, I have read every word of the report. Of the judgment”.

BR Gavai: “I believe there needs to be some balance. I have always been advocating the concept of protection of environment, protection of ecology and the sustainable development”.

BR Gavai: “So wherever there is a conflict, a balance has to be given, the environment has to be protected, ecology has to be protected. I must have authored around 18 to 20 judgments in the last three years over the protection of the environment”.

Not a suo motu case

Arnab Goswami: “But this was a suo moto as well”.

BR Gavai: “This was not a suo moto, if you go through it, the concerns were raised by the various states that there is no consistency insofar as the definition of Aravalli hills and ranges is concerned”.

Fear of redefining nature

Arnab Goswami: “What stops anyone from redefining? Sir, tomorrow somebody will define the Ganges, tomorrow somebody will redefine the Himalayas.”

Arnab Goswami: “The Supreme Court of India did not create the Himalayas or the Aravallis”.

BR Gavai: “I have already told you it was necessary in order to protect the illegal mining activities which were going on”.

Final exchange

Arnab Goswami: “The nation is angry, 80% of the people feel there should be a revisiting of the judgment. What is your view on revisiting the judgment?”

BR Gavai: “I cannot make any comment on that because any comment by me may be prejudging the issue because I am out of the system”.

Arnab Goswami: “I’ll appreciate your coming on air tonight because I got a chance to put some straight questions”.

BR Gavai: “I again say that you have not read the judgment completely”.

Arnab Goswami: “I have read every word of the judgment from the first to the last page”.

BR Gavai: “No, I am not trying to convince you”.

Arnab Goswami: “Anyway, we are not here to convince each other”.

BR Gavai: “Thank you very much”.

ALSO READ: Unnao Rape Survivor Speaks to Arnab, Heads to Central Delhi to Protest Against Delhi HC Verdict on Sengar’s Sentence