Sunday, January 29, 2023

The Greening of the Court

Recent and past judgments by the apex court shows that environmental matters are being taken up with the seriousness they deserve, with the top court acting on them decisively.

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By Devender Singh Aswal

In June, 2021, when the Ministry of Environment, challenged the order of the National Green Tribunal (NGT) finding faults with a government notification of 2017 diluting effluent discharge norms for sewage treatment plants, the Supreme Court chastised the ministry, telling it to “act like a Ministry for Environment”. The apex court bemoaned the fact that environmental standards had been constantly diluted in the recent past and refused to grant a stay on the NGT order. In another landmark judgment passed on August 31, 2021, the Court refused to interfere with the judgment of the Allahabad High Court, directing the demolition of twin towers constructed by real estate major Supertech in Noida, in contravention of environmental and other building bye-laws.

The objective of environmental laws is basically to conserve, sustain and manage the environment so that life remains sustainable. The Constitution casts an obligation on the State to protect and improve the environment, to protect and improve the natural environment, including forests, wildlife, rivers and lakes, and also have compassion for living creatures.

Prior to the 42nd Constitution Amendment, forests and wildlife were on the State List. With the enactment of the Amendment, the subject was included in the Concurrent List. Article 48A, a Directive Principle of State Policy, and Article 51A, both inserted by the 42nd Amendment, cast an obligation on the State as well as on citizens to endeavour to protect and improve the natural environment, water bodies and to safeguard forests and wildlife.

Parliament has enacted laws for protection and conservation of environment, wildlife, and prevention of water and air pollution. Yet, despite a wide array of environmental laws and India’s declared commitment to sustainable development made as early as 1992 at the Rio Conference, there are wide gaps, omissions, contraventions and inadequacies in environmental governance, leading to protracted agitations and litigations to conserve and preserve the environment.

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In MC Mehta vs Union of India (1984), the Supreme Court issued a series of directives, banning coal-based industries in the immediate vicinity of the Taj Mahal. Directions were also issued for ensuring traffic management and creation of a tree belt to insulate the Taj from pollution. In 1985, in MC Mehta vs Union of India, the apex Court directed polluting industries/tanneries to install sewage treatment plants at their own cost and discharge treated water in the river. In yet another case by MC Mehta, the top court ordered relocation of hazardous and noxious industries operating in Delhi and directed mandatory conversion of conventional fuel by compressed natural gas (CNG). In Subhash Kumar vs State of Bihar (1991), the apex court held that the right to get pollution free water and air is a right under Article 21. Public health and ecology were held to be priorities under the Article 21 of the Constitution. In TN Godavarman Thirumulkpad case (1995), the Supreme Court passed orders to the effect that no forests, national park or wildlife sanctuary can be de-reserved without its explicit permission and that no non-forestry activity will be permitted in a national park or wildlife sanctuary. It also imposed a complete ban on movement of cutting trees and timber from the north eastern states and felling of trees in the hill states of Uttarakhand, Himachal, J&K and the hilly areas of West Bengal. In MC Mehta vs Kamalnath (1996), the Court held that leased forest land, which was situated on the banks of the River Beas, was fragile and should not be converted into private ownership. The Supreme Court quashed the lease and passed orders for compensation for restitution of environment and ecology of the area.

 In Indian Council for Enviro-legal Action Etc case (1996), the top court held that the industries producing chemicals like Oleum and Sludge Phosphate which caused damage to nearby villages were responsible for the damages on the principle of “polluter pays”. In Vellore Citizens Welfare Forum case (1996), the apex court observed that the river Palar was the main source for drinking and bathing for the people nearby and granted relief sought by the petitioners.

The Supreme Court also underscored the need for maintaining an ecological balance in Narmada Bachao Andolan vs Union of India (2000). In KM Chinnappan and TN Thirmalpad vs Union of India (2002), the apex court ruled that the “the State and the citizens are under obligation to protect and improve the environment, including forests, lakes, rivers, wildlife and to have compassion for living creatures”.  The same court in its judgement in Research Foundation for Science Technology National Resource Policy vs Union of India and Another, read procedural guarantees into Article 21, that is, the right to information and community participation for protection of environment and human health.

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Almitra H Patel & Ors vs Union of India & Ors comprises a series of a petitions made before the Supreme Court in 1996.  It is due to this case that rules were evolved for the management and handling of hazardous wastes. The handling of hazardous materials has improved as a result of this, though much remains to be done. In MC Mehta vs Union of India, the same court passed an order in December 2015 regarding diversion of commercial vehicles coming from the adjoining states to bring down pollution levels in Delhi and also directed that all manner of commercial taxis run on CNG, contributing significantly to reduced vehicular emissions in Delhi.

All these judgments have fostered an encouraging environmental jurisprudence by broadening the horizon of the right to life and evolving sound principles like the polluter pays, the precautionary principle, inter-generational equity, and the public trust principle, among others. With the dangers of climate change dangerously evident, saving the environment is becoming a global priority, In that sense, Supreme Court has been ahead of the curve.   

 —The author is ex Addl Secretary, Lok Sabha, and member of the Delhi Bar Council

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