Since the past three decades, the Indian judiciary has played a proactive role in the protection of the environmentand impementing environmental norms. While conventionally, it is the executive and legislature that play the major role in the process of governance—including decisions concerning the environment—the judiciary has not been hesitant in resolving environmental disputes, often laying down new principles to protect the environment, interpreting environmental laws and not shying away from judicial activism when the need arose. This has been duly recognised in the international legal sphere and the Indian judiciary has been seen as a pioneer, both in terms of laying down new principles of law and in the application of innovative methods for resolving environmental disputes (Peiris, 1991).
However, despite the presence of well-defined legislations and an active judiciary, environmental norms are repeatedly flouted in India. This can be witnessed in terms of both large and small scale violations. At the highest levels, industries, developers, etc. in open collusion with the government bypass various court directions and environmental norms. On the other hand, even directives meant for the common citizens are often not paid heed to. In the absence of rigorous implementation of orders, the decades of efforts made by judiciary for the development of environmental jurisprudence in India face continual setbacks.
Various judicial and quasi-judicial bodies have been empowered to hear and dispose cases pertaining to the environment. At the highest level, the Supreme Court (SC) can hear appeals from the aggrieved parties and decide accordingly. In this regard, even matters that have earlier been decided by the National Green Tribunal (NGT) can be entertained directly by the SC, provided they are brought under its notice within 90 days from the date of the
NGT order.
The NGT was created in 2010 through the National Green Tribunal Act, 2010¸ in light of the decisions taken at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janerio in 1992, in which India participated. At the UNCED, different countries agreed to provide effective access to judicial and administrative proceedings, including redressal and remedy. Considering the fact that right to healthy environment has been construed, in various SC judgements discussed in the following parts, as a part of right to life under Article 21 of the Constitution of India, it was decided that an NGT be set up to facilitate expeditious and effective disposal of disputes pertaining to the environment. Besides, New Delhi, the principal sitting place, the NGT also holds hearings in Bhopal, Pune, Kolkata and Chennai. The NGT consists of a full time chairperson, judicial members and expert members. Only a judge of the SC or a Chief Justice of High Court can be appointed as a chairperson in the NGT; an existing or retired judge of the High Court is qualified to be appointed as a judicial member. The NGT is empowered to hear all cases brought directly before it under an original jurisdiction.
Besides the SC and the NGT, High Courts of respective states can entertain writ petitions under Articles 226 and 227 of the Constitution.
Environmental Norms | The Environment and the Judiciary
In 1976, Articles 48 (A) and 51A (g) were inserted in the Directive Principles of State Policy and Fundamental Duties, respectively through the 42nd Amendment. While 48 (A) states that the State shall endeavour to protect and safeguard the environment and safeguard the forests and wildlife of the country, 51 A (g) imposes a duty upon the citizens of India to protect and improve the natural environment and confers upon them the right to approach the courts for appropriate relief.
A decade after the enactment of the above articles, the SC, in its judgement in Sachidanand Pandey vs State of West Bengal, held that Indian courts are bound to bear in mind the above principles whenever a problem pertaining to the ecology or environment is brought up before them, thus, setting a precedent for the judgements that followed in the future (Supreme Court of India, 1987). Subsequently, in another judgement in 1991, the SC held that Right to Life under Article 21 of the Constitution includes the right to live in a healthy and clean environment. Therefore, any activity which pollutes the environment was considered as violation of the Right to Life (Supreme Court of India, 1991).
Further, in a string of judgements since the 1980s, the SC has upheld principles such as the Absolute Liability Principle and Polluter Pays Principle. Under Absolute Liability Principle, if an industry or enterprise is engaged in an inherently damaging activity from which it is deriving commercial gain, the said industry is bound to pay compensation to parties that face harm from its activities, regardless of the fact that it had taken measures to check any pollution or damage. On the other hand,the Polluter Pays Principle states that financial costs of preventing or remedying damage caused by pollution shall lie with the undertakings that have caused pollution. When the SC first invoked the Polluter Pays Principle in the case of Indian Council for Enviro-Legal Action v. Union of India (UoI), it was tied in with the Absolute Liability Principle. The SC stated that the principle implies that the absolute liability for harm to environment extends not only to compensate the victims of the pollution but also the cost of restoring the environmental degradation. Since then, the Polluter Pays Principle, as interpreted by the judiciary has been recognised as a fundamental objective of government policy to prevent and control pollution (Sahu, 2008).
Since the SC first used the Polluter Pays Principle, it has become one of the key parts of environmental jurisprudence in India. It is this principal that the NGT, chiefly relies on to decide on punitive damages that a polluter has to pay (National Green Tribunal, 2010).
In light of the above, it clearly emerges that the judiciary, through various judgements,has established clear principles to prevent damage to the environment. However, as discussed in the next sections, problems related to effective implementation often arise, owing to which decades of efforts have come to naught.
The Problems of Implementation-Polluter Pays Principle
As mentioned, earlier the Polluter Pays Principle is the most important principle that effectively puts upon an entity that has caused damage to the environment, the onus to rectify the said damage. The NGT has repeatedly used this principle to deliberate on matters of environmental violations and decide on the cost that is to be incurred by violators. Most notably, in its judgements in The Forward Foundation vs State of Karnataka(2014), S P Muthuraman vs UoI (2015), among others, the NGT has imposed a penalty of 5 per cent of total project cost on the developers who have commenced work without obtaining required permissions and have in turn harmed the environment. Further, in judgements such as Vardhaman Kaushik vs UoI (2018), the NGT took pre-emptive measures to check vehicular pollution in Delhi-NCR by imposing an ‘environment compensation charge’ on vehicles entering the region. The principle has also been used to direct cleanup and prevent pollution of rivers. For instance, in Manoj Mishra vs UoI (2015), the NGT ordered that anyone found guilty of dumping debris in the Yamuna River would be liable to pay a compensation of INR 50,000.
However, in most instances, despite NGT orders collecting fines from the violators has proved difficult. Bhushan et al. (2018) note that despite the fact that NGT has ordered several states to implement environmental fines as preemptive and compensatory measures, actual collection of fines has remained poor. For instance, in the case of Permanand Klanta vs. State of Himachal Pradesh (2015), the NGT had ordered vehicles entering traffic heavy areas in Shimla to pay a compensation of INR 500 to the state authorities. However, the levy has not been imposed till date. In the earlier mentioned case of Manoj Mishra vs. UoI, where the NGT had ordered a fine of INR 50,000 for disposing of debris in the Yamuna, the Delhi Development Authority (DDA) has been unable to prove violations, faced challenges to its authority and been accused of corruption. As such, despite the implementation of strict rules, effective implementation of the order has remained far from being achievable.
Similarly, in cases where the NGT has explicitly ordered a violator to pay a penalty, the violators have abstained from doing so. Under the NGT Act of 2010, the amount to be paid as fine or compensation by a party is to be remitted into an Environment Relief Fund (ERF) within a period of 30 days. However, even in cases where the NGT has ordered a fine on a violator, the payment to the ERF has been recorded in only two out of seven cases (ibid.).
The Open Defiance of the Supreme Court
It is not just the NGT whose orders have often gone unheard by the executive and citizens. Even the SC, the highest court of the land, has witnessed its orders fall on deaf ears. In this instance, two particular cases can throw light on how violations have taken place on the highest and lowest levels.
The first case is related to mining activities in the Aravalli hills. It was in 2002, in the case of M C Mehta vs UoI, that the SC had first passed an order wherein a complete prohibition on mining activities in the Aravalli ranges (in both Rajasthan and Haryana) was to be enforced. However, with collusion of politicians, bureaucrats and the mining mafia, illegal extraction of minerals continues to raze the Aravallis (Chakravartty, 2015).Court orders, passed repeatedly through the years, have failed to bring about any change. Even on October 23, 2018, the Supreme Court, taking note of the fact that 31 of 128 hills in Aravallis had vanished, ordered a complete ban on illegal mining in the Aravalli in Rajasthan. But ground reports from the state (Joshi, 2018) show that no changes have been witnessed even after two weeks from the order.
The ban on usage of firecrackers, first introduced by the SC in 2017, provides the second case in point. In October 2018, paying due consideration to right to livelihood of manufacturers and vendors and right to life of citizens, the SC ordered a partial ban on the sale and usage of firecrackers throughout the country. As per the order, only low emission firecrackers could be burst between 8 to 10 pm and vendors were allowed to sell only ‘green’ firecrackers (with 30-35 per cent lower emission of particulate matter and 35-40 per cent lower emission of sulphur dioxide and nitrogen oxide). However, on November 7, the day of Diwali celebrations, the order was openly violated, as reports stated (Halder, 2018). Consequently, Delhi witnessed a surge in air pollution levels, as PM2.5 levels peaked at 450 µg/m3—the worst air quality recorded in the city in 2018. The Air Quality Index also worsened from 281 (poor) on Diwali to 400 (severe) on the next day (Central Pollution Control Board, 2018). It may be mentioned in
this regard that the burning of stubble has also added to the long list of polluting agents in the national capital.
Environmental Norms | Industrialisation/Urbanisation vs Environment
A large number of instances of violations of environmental norms can be found in cases where industries are concerned. In 1994, by the powers vested to it under the Environmental Protection Act, 1986, the central government introduced the Environmental Impact Assessment (EIA), a procedure that gauges the potential environmental impact of an economic project so as to allow measures to minimise the likelihood of damage or pollution of the environment. Under the EIA all industries are bound to submit an environmental assessment report, environmental management plan and the details of a public hearing (where concerns are raised by people) conducted in the vicinity of the project to the Ministry of Environment, Forests and Climate Change (MoEFCC). A modification to the procedures was made in 2006 and State level Environment Impact Assessment Agencies (SEIAA) were authorised to oversee small scale projects while the MoEFCC continued to regulate large scale projects. Besides this decentralisation of powers, State Pollution Control Boards (SPCBs) were given the responsibility for conducting the public hearing, taking it away from project proponents with vested interests (Chowdhury, 2014).
However, a large number of cases testify to the fact that the EIA as a procedure exists only on paper. Most recently, the tragic incident of Thoothukudi comes to mind, when residents who had gathered to protest the operation of the Vedanta Resources owned Sterlite copper plant, were gunned down. A total of 13 people lost their lives in the event.
In 1998, two years after the setting up of the plant, the National Environmental Engineering Institute (NEERI) found that the effluent treatment plant installed by Sterlite was inefficient. Further, an order by the Tamil Nadu Pollution Control Board (TNPCB), pertaining to the development of a green belt of 25 m around the plant, was not adhered to. On these grounds, the Madras High Court ordered a shutdown of the plant. Yet, in what soon became a pattern, the plant resumed operations within a few days (Jayaraman, 2018). Again, in 2013, the SC found Sterlite guilty of violating norms set down by the TNPCB and as such imposed a fine of INR 100 crore on the plant to rectify the harm. On the day of the shooting, when Sterlite’s operations first attracted national attention, only INR 7 crore of this amount had been utilised by the State authorities. It was not just the fact that Court orders had not been followed in this instance—under the EIA, industries that are setup inside an industrial park are exempted from undergoing the process of public hearing. While Sterlite does operate inside an industrial park, the said park itself does not have a green clearance. In 2008 and 2013, when Sterlite floated the proposal for expansion, this fact was overlooked by the government. No public hearing was conducted during the expansion, clearly pointing towards the negligence of
the TNPCB.
Apart from Sterlite, bypassing of the EIA was witnessed in 2009 when clearance was granted to the Adani Waterfront Development Project in Mandra, Kutch in the state of Gujarat. The matter was brought before the erstwhile National Environment Appellate Authority—a forum that was dissolved after the formation of the NGT—on the grounds that the development of the project had begun even before the clearance was issued. The due process provided under the EIA had not been followed by the Adani Group which was therefore found guilty of violating environmental norms. But, despite the instances of violation on record, the MoEFCC held that as large scale development of the project had already taken place when the matter had come to notice, it would have been neither feasible nor prudent to halt operations (MoEFCC, 2018). By this decision, the MoEFCC clearly gave preference to the interests of an industry that had been found to be violating environmental norms by a judicial body.
River Ganga in Kanpur suffers the brunt of pollution from the tannery effluents. The situation is worsened by the fact that the installed capacity to treat the water is far short of the requirement, concomitant to which the dumping of domestic wastes, those from temples and other materials into the river and its banks have aggravated the situation. Similar experiences of the pollution of Ganga basin have been reported even after the implementation of the INR 20,000 crore (200 billion) flagship programme ‘Namami Gange’. Many instances of flouting of environmental laws are evident in cases where wilderness is affected by the non-compliance of driving norms on National Highways that cut through the densely forested areas (Mazoomdar, 2018) and even in the resettlement drive in the Tarangambadi shelters 350 m away from the shoreline flouting the coastal regulation zone (CRZ) requirements of keeping a buffer of minimum 500 m.
Endnote
While the judiciary has played a proactive role in developing a cohesive body of environmental norms, in the absence of rigorous implementation by the executive and the involvement of citizens in following these, the harm to environment that has occurred in the recent past by a gamut of activities has neither been prevented nor mitigated. The rising levels of pollution in the post-Diwali period, the destruction of the Aravalli and the flouting of norms by industries has followed as a result. In this scenario, protecting an increasingly degrading environment has become a difficult task even for the judiciary.
References
Bhushan C., S. Banerjee , I. Bezbaora and A. Shankar , 2018. Green Tribunal, Green Approach: The Need for Better Implementation of the Polluter Pays Principle, Centre for Science and Environment, New Delhi, Available at: https://bit.ly/2DAvbhx
Central Pollution Control Board, 2018. Air Quality Index on Nov 08, 2018 @ 4 PM, Available at: https://bit.ly/2DkovmO
Chakravartty A., 2015. Aravallis razed, Down to Earth, June 7.
Chowdhury N., 2014. Environmental Impact Assessment in India: Reviewing Two Decades of Jurisprudence, IUCN Academy of Environmental Law Journal,5(1): 28-33.
Halder R., 2018. Delhi air quality turns foul again as SC firecracker ban goes up in smoke, The Times of India, November 8.
Jayaraman N., 2018. History of Sterlite in Thoothukudi: A story of betrayal by crony regulators, The Newsminute, March 26.
Joshi H., 2018. Ground Report: Illegal Mining in Aravali Has Not Stopped Despite SC Ban, The Wire, November 8.
Mazoomdar J., 2018. How do roads impact wildlife, and why should anyone bother? Available at: https://indianexpress.com/article/explained/wild-animals-safety-bandipur-tiger-reserve-karnataka-night-traffic-ban-national-highway-5292919/
Ministry of Environment, Forests and Climate Change (MoEFCC), 2013. Report of the Committee for Inspection of M/s Adani Port &Sez Ltd., Mundra, Gujarat, Available at: https://bit.ly/29ioeBZ
National Green Tribunal, 2010. National Green Tribunal Act, 2010, Available at: https://bit.ly/2QEnE4r
Peiris G. L., 1991. Public Interest Litigation in the Indian Subcontinent: Current Dimensions, International and Comparative Law Quarterly, 40(1): 66-90.
Sahu G., 2008. Implications of Indian Supreme Court’s Innovations for Environmental Jurisprudence, Law, Environment and Development Journal, 4(1):3-19.
Supreme Court of India, 1991. Subhash Kumar vs State of Bihar, 1991 SCR (1) 5, Available at: https://bit.ly/2J9VrSi
Supreme Court of India, 1987. Sachidanand Pandey vs State of West Bengal, AIR 1987 SCR (2) 223, Available at: https://bit.ly/2T9x7Cu
