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Environmental Jurisprudence in India
Geetanjoy SahuAssistant Professor
School of Habitat StudiesTata Institute of Social Sciences (TISS),
Deonar, Mumbai400088Email id: geetanjoy@tiss.edu
No dearth of environmental laws in India
• Around 200 environmental laws
• Multiple Regulatory Authorities
• However, implementation has been ineffective
Some Facts....
Water Pollution
* 150 polluted rivers
* Ground Water: 122 districts are affected by salinity, in 66 districts by chloride, in 224 districts by fluoride, in 35 districts by arsenic and in 368 districts by nitrate
* SPCBs are yet to develop a comprehensive plan
Contd...
Air Pollution* 95 cities identified as nonattainment with
respect to national ambient air quality standards (NAMP Data of CPCB)
* 20 cities in India are world's most polluted (WHO 2014) and New Delhi has the world's dirtiest air out of 1600 cities
WHO 2016
Contd...
Solid Waste Management* No system of treating so far only collected and
dumped (Deonar is one example)* 70% is collected and dumped in an unsanitary
manner* Landfill sites are not available (NIMBY)
Contd...
Coastal Zone Management* States are yet to develop integrated coastal
management plan* No Mapping of coastal areas at the state level
SE
A
Low Tide Line High Tide Line
C R Z
500 Metres
L A N D
Coastal Regulation Zone
Forest Degradation
Unprecedented rate of clearance (200711, 11th FYP)
8,284 projects granted forest clearance and 2.04 lakh hectare (ha) of forest land diverted 25 per cent of all forest land diverted for development projects since 1981.
In one single year – 2009 – as much as 87,884 ha of forest was cleared
Trend of forest land diverted:19802011 (CSE, 2014)
Changes in the Land Holding Pattern
Other Major Concerns...
Displacement of people: 60 million people, of which 40% are tribal
Agricultural Land holding pattern has come down to 1.6 ha in 2011 and 0.38 for marginalised farmers from 2.28 ha in 1971 (2014 Agri Census Report)
Common Property Resource has come down by 26% to 63% from 1950 to 1995 (Grazing land, village water bodies)
Fast and Furious Process
The Minister of Environment, Forest and Climate Change (“MoEFCC”), had cleared over 2000 projects worth 10 lakh crore₹ over the last two years, and had brought down the weighted average time for granting environmental clearances (“ECs”) from 599.29 days to 192.59 days. The Minister also claimed that this speed had been achieved without compromising environmental norms, which he stated had been applied even more stringently.
MoEF Report2016, Prakash Javadekar's Statement
Regulatory Capacity and Resource Mobilisation
• SPCBs are dominated by state bureaucracies (WB and AP are exceptional)
• Frequent replacement of chairpersons (For example: UP has changed 24 chairpersons in the last 24 years)
• Staff crunch (KPCB had 60 % vacant positions)
• Non-technical staff dominate the boards
• Workload has increased, while the number of sanctioned posts has gone down
• Time spent on inspection and monitoring is inadequate
(TISS Environmental Regulatory Report: July 21, 2013, The Hindu)
Ground Reality…
• Implementation Failure
• Variations in enforcement
• Poor Monitoring
• Staff crunch
• Lack technical skills
• Inadequate funding
• Political interference
When Implementation Fails?
• Resistance/Dialogue
• Electoral Politics
• Legal ActionJudiciary
Legal Framework
• Legislature, Executive and Judiciary
• Decline and Fall of Parliamentary Sovereignty
• Assertive Judiciary Judicial Activism
Judicialisation of Environmental Governance
• Ratlam to Aravali Judgment (221 environmental judgments) of Supreme Court from 19802010
• 102 judges were part of various environmental judgments
Supreme Court Cases (19802010)
Types of Cases
• Industry (Private Party) vs. Environment
• State vs. Environment (Micro structure vs. environment, Macro structure vs. environment)
• Community vs. Environment
20
Questions
• What has been the process of judicialisation?
• How Green is the Indian Judiciary?
• What has been the impact of its greenness ofEnvironmental Governance?
Process of Judicial DecisionMaking
Contd..
Amicus Curiae
Spot Visit
CourtMonitoring Committee
Green Bench
Not Confined to Legal Framework
Right to healthy environment is a part of fundamental right to life (Article 21)
Introduction of Environmental Principles
Public Interest Environmental Litigation
Writ Petition (Article 32 & 226) & PIL
Subject not identity of the petitioner is important
Majority of the cases are filed by individuals
Contd..
For Example: In the Ganga Pollution Case, the Court held that “the petitioner before the Court was no doubt not a riparian owner. He was a person interested in protecting the lives of the people who made use of the water flowing in the river Ganga and his right to maintain the petition could not be disputed. The nuisance caused by the pollution was a public nuisance, widespread in range and indiscriminate in its effect, and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large.”
M C Mehta v. Union of India AIR 1988 SC 1115
Suo Moto
Hindustan Times v. CPCB (2000): Justice S Rajendra Babu
Interlinking of Rivers (2002): Justice B N Kripal
Procedural Flexibility
• M C Mehta v. Union of India (1996): Ganga Water Pollution Case (Justice Kuldip Singh)
• T N Godavarman v. Union of India (1996): Forest Governance Case (Justice J S Verma)
• Almitra H. Patel v. Union of India (2000)
Increasing Importance to Amicus Curiae
• T N Godavarman v. Union of India (19962017)
• Interlinking of Rivers (20022012)
Spot Visit
Ratlam Municipal Council v. Vardhichand (1980): Justice V R Krishna Iyer
RLEK v. Union of India (1985): Justice P N Bhagwati
NBA v. Union of India (2000): Justice S P Bharucha
Implementation of Court Orders
• Green Bench: Vellore Leather industrial pollution case
• CourtAppointed Monitoring Committee: Delhi Vehicular Pollution case, Dahanu Power Plant Case, Central Empowered Committee
Process: MultiPronged Strategies
Section 133 of Criminal Procedure Code (Public Nuisance) Ratlam, Oleum Gas Leak, Almitra Patel
Articles: 21, 32 & 226
Articles: 48 (A) & 51 A (g)
Open & Shut Case: Violation of Environmental Law
(2) Greenness of the Indian Judiciary
Consistently Inconsistent: Who is the Polluter?
* Industrial Pollution (Private Parties) vs. Environment
* Community vs. Environment
* State vs. Environment
Industrial Pollution Cases
Kanpur, Vellore, Patancheru, Vapi, Bichhri Cases
In the Ganga Water Pollution case, the Court emphasised that “ closing down of industries would undoubtedly cause hardships to business group and workmen, but it is a price that has to be paid for protecting and safeguarding the environment”. (AIR 1988 SC 1037)
Theory of Resource Inequality (Marc Galanter) doesn't work
34
Community v. Environment
Slum Dwellers/Forest Dwellers
* City Beautification Questions rights of slum dwellers* Displacement of Tribals (Exceptional case Niyamgiri Hill)* Tiger Conservation is more important
T N Godavarman v. Union of India (1996)WWF v. Union of India (1999)Centre for Public Interest Litigation v. Union of India (2006)
For Example...
In the Centre for Public Interest Litigation v. Delhi Municipal Corporation, in May 2006.
The SC held that “slum dwellers are encroachers and they have no right whatsoever on public land, not even for a minute. Desperation does not mean they will do something illegal by encroaching public land. In India, we have three weather conditions heat, rain and winter. If we accept your argument, ―there will never be an appropriate time to demolish illegal structures standing on public land. The Bench said: "Nobody forced you to come to Delhi. Is there a right to live in Delhi only? Stay where you can. If encroachments on public land are to be allowed, there will be anarchy."
State Being A Polluter
Micro Structures (Municipal Councils)
Macro Structures (Union or State Governments)
37
Micro Structures v. Environment
In the Ratlam Municipal vs. Vardhichand, the Supreme Court stated that “ A responsible Municipal Council constituted for providing basic amenity of public convenience cannot run away from its principal duty by pleading financial inability. Decency and dignity are nonnegotiable facets of human rights and are a first charge on local selfgoverning bodies”. (AIR 1980, SC 1625)
38
Macro Structures v. Environment
Infrastructure Projects & Huge Investment Cases
(Dams, Power Plants, Airports, Flyover, Metro, Commonwealth Game, Akshardham Temple, Art of
Living)
In the Tehri Dam case, the Court clarified that “the case brought forth an intricate question relating to science and engineering and the court does not possess the requisite expertise to deal with it”. (AIR 1992 Supp(1) SC 644)
HandsOff Approach
• Huge Investment Cases (Commonwealth Games, Akshardham Temple)
• Infrastructure Cases (Power Plants, Dams, Railway Network, Flyover, Airport, etc.)
Justification
Policy Matters
Too late to entertain petition
Science and Technical Details
Involves Larger Public Interest
Departure from the principle of social justice
ProEnvironment but tribal, workers, slum dwellers' rights are sidelined
• Tribals are encroachers• Eviction order for slum dwellers• Rights of Fishing Communities sidelined• Workers' rights are ignored
42
Balancing Approach
Environment, Human Rights and Development
In the Oleum Gas leak case, the Court held that “Industries, even if hazardous, have to be set up since they are essential for economic development and advancement of well being of the people. The Court also held that the closing down of industry would create unemployment of 4,000 workers and that such closure would lead to their impoverishment”. (AIR 1987 (1) SCC 395)
But, the balance always tilted in favour of the project proponent/industry in the postjudgment scenario
(3) Impact of Green Judgments
• Environmental Policy & Governance
• Civil Society Initiatives
• Industrial Behaviour
Environmental Policy & Governance
• Evolution of Environmental Principles
Public Trust Doctrine Strict Liability Precautionary Principle Polluter Pays Principle Intergenerational & Intragenerational equity
Contd...
• Enactment of Rules and Acts
Solid Waste Management Rules 2000 Noise Pollution Regulation and Control Rules 2000 Hazardous Wastes Management & Handling Rules 1989 BioMedical Waste Management & Handling Rules 1998 CAMPA2003 & 2016 National Green Tribunal Act 2010
Contd...
• Procedural Changes
EIA Process (Public Hearing, Accreditation Certificate) Annual Environmental Statement Report by the Industry Guideline to Appoint Experts
Civil Society Environmental Groups
• Created space for third party• Encouraged petitioner (Award in terms of cost)• Involved civil society in the implementation process
Industrial Behaviour
Mixed Outcome
• Mandatory to have pollution control mechanism• Procedures to be followed (Forest Clearance,
Environmental Clearance, Land Acquisition)• Environmental Quality Improvement? Weak Regulation
Challenges For Judicial Intervention
• Implementation of orders• Micromanagement of cases (level and extent of activism)• Federal principles ignored (Interlinking of rivers)• Lack of institutionalisation • Selective Approach (PIL) & Inconsistent Approach• Symbolic directions (Paint buses with green colour, kill
2000 animals per day)
Thanks
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