The Supreme Court's judgment upholding the location of the Commonwealth Games and rejecting the objections does not come as a surprise. What surprises is the form that the judgment has taken.
The high court took a very long time over the PIL on this issue, and must take a part of the blame for making a decision difficult in the end. However, after prolonged hearings during which all the relevant points were argued and a good deal of documentation submitted, the high court, instead of pronouncing a final judgment, ordered the establishment of an expert committee to examine the proposed constructions, for impact on river ecology and compliance with the conditions of environmental clearance. The DDA and a cluster of government departments and ministries appealed to the Supreme Court against that order.
What were the options before the Supreme Court? It could have upheld the high court's order; or it could have allowed the expert committee to be set up, but ordered that this should not affect the work on the Games, and that remedial measures, if any, recommended by the committee should be implemented after the Games; or it could have simply set aside the order for the establishment of a committee. In the last case, the high court would have had to proceed without the report of a committee and pronounce final judgment. Of course, an appeal could then have been made to the Supreme Court against the (putative) final judgment of the high court.
What the Supreme Court actually did was to go beyond the question of a committee and into the merits of the matter, set aside the high court judgment in toto, and give a clearance for the construction work on the site for the Commonwealth Games to proceed. Why did it do this? One presumes that the governing consideration was the urgency of the matter. If that were the case, the Supreme Court could have said "This matter has become very urgent and will brook no further delay. The time for argument is over. We are therefore bringing finality to the case by rejecting objections and allowing construction to proceed".
However, that is not what the learned judges have done. They have said that the area in question is not riverbed or floodplain. That question had been gone into at great and learned length by both the judges (Justice Sikri and Justice Rekha Sharma) in the high court judgment. Their treatment of the subject was persuasive. However, the Supreme Court brushes it aside and comes to its own conclusion. The expert opinion it relies on is that of government bodies which cannot be expected to be objective and which tend to provide convenient opinions to the powers that be.
The basis for saying that the area is not in the floodplain of the Yamuna is that it now stands protected by the embankment built to protect the Akshardham temple complex. This was the argument in the high court, and it had been dismissed as fallacious. The high court had questioned the manner in which NEERI and the ministry of environment and forests had changed their positions. It is that disingenuous and discredited argument that the Supreme Court has accepted as an expert finding.
It is a curious argument. If areas protected by embankments technically cease to be floodplains, it is possible to narrow the floodplains progressively by building embankments closer and closer to the river. The culmination of this process would be two walls very close to the river on either side; we can then say that the river has no floodplain. Did the Supreme Court consider this reductio ad absurdum?
Besides, the important point is not whether the area in question is riverbed or floodplain or neither. Though the high court had discussed the riverbed/floodplain issues, its order does not talk about these. It refers only to the impact that the proposed constructions will have on the ecology of the river. It is to determine this that it orders the setting up of an expert committee. The Supreme Court's ex cathedra pronouncement that the area is not riverbed or floodplain commits two errors: it sets aside the high court's order on the basis of a wrong understanding of the order; and it leaves the crucial question of impact unanswered.
What the judgment reveals is a certain way of thinking prevalent not merely in government but in society in general, and now evidently in the judiciary as well. The Commonwealth games are important; the Yamuna is not. The environment minister can take the Yamuna off his agenda.