Colin Gonsalves[1]
Law and policy relating to environmental protection has to meet two
distinct but interrelated objectives. The first is the scientific objective of
environmental conservation: to ensure the preservation of all ecosystems,
species and genes, and of associated biological processes. The second is the
ethical objective of conserving and protecting the environment: to ensure a
just and equitable distribution of the costs and benefits of environmental
protection among human beings and between human beings and other species.
In order to meet the above twin requirements law and
policies have to gear itself to the threats facing environmental conservation
as well as provide spaces for peoples’ rights.
Law has to develop mechanisms to counter the increasing internal as well
as external biotic pressures such demands of urbanization, biopiracy,
livelihood demands etc. However,
developing a strong regulatory framework would not suffice given the new and
vigorous emphasis on equity and justice forcing the governments the world over
to relook at democracy and its laws. Thus in the change scenario environmental
laws have to deal with newer threats arising out of patent laws, biopiracy and
genetic swamping, among others while at the same time protecting the human,
cultural and environmental rights of the affected people.
This implies that
polluters should internalize the cost of pollution, control it at its source
and pay for its effects. Including remedial or cleanup costs, rather than
forcing other states or future generations to bear such costs. This principle
has been recognized by the Supreme Court as a "universal" rule to be
applied to domestic polluters as well[2].
Precautionary Principle
Intra - generational equity refers to the fairness in the
utilization of resources among human members of the present generation, both
domestically and globally. It is contended that intra-generational equity as
manifest in “distributive justice” has become the de facto legal principle for
developing countries and in general by the industrialized countries.
The principle of intra-generation equity demands that the
benefits of environmental conservation and protection should be shared in an
equitable manner. Therefore, any strategy for conservation of environment in
the interest of the nation cannot be justified by excluding the interests of
those dependent on the natural environment for their survival. Thus the larger
'public interest' of environmental conservation should not suppress the local
interest. The application of this principle would imply that the livelihood
requirements of communities living in and around the conservation areas must be
fully taken care of by recognition of local rights through legal and
institutional means.
Inter generational equity
Intergenerational equity
calls for the fairness in the utilization of resources between human
generations: past, present and future. This requires that a balance be attained
between meeting the consumptive demands of existing societies and ensuring the
adequate resources are available for the future generations.
Among the scholars who
have considered environmental rights and obligations two who have enunciated valuable guiding principles
are Edith Brown Weiss and Joshep Sax. Weiss has recommended three basic
principles of intergenerational equity
First: each generation should be required to conserve
the diversity of the natural and cultural resource base, so that it does not
unduly restrict the options available to the future generations in solving
their problems and satisfying their own values and should be entitled to a
diversity comparable to that of the previous generations.
Second: each generation should be required to maintain
the quality of planet so that it is passed on in no worse condition than the
present generation received it, and should be entitled to a quality of planet
comparable to the one enjoyed by previous generations.
An innovative domestic
court decision on inter generational equity is a 1993 Philippine Supreme Court
case: Minors Oposa V. Secretary of the
department of environment and Natural resources. The case addressed inter
generation equity in the context of the state management of public forest land.
In a novel situation under Philippine law, the Supreme Court permitted Class
action brought by Filipino children acting as representatives for themselves
and future generations. The petitioners wanted to halt timber cutting by
government licensees of the remaining natural forests. Plaintiffs alleged that
the present and continued logging violated the right to a healthy environment
under the Philippine Constitution and would entail irreparable harm to them and
the future generations of the nations. The court considered the issue of
intergenerational responsibility and decided that the petitioners had locus
standi i.e were qualified to sue, on behalf of present and future generations
in the Philippines.
The bold step by the
Philippines Supreme Court by using intergenerational consideration as the basis
for its decision regarding natural resources exploitation indicated that rights
and interests of future generations are being treated as legal issue.
It was in the another landmark case is the G.R Simon Vs union of India[5]
where the Court recognized that “ wild life forms part of our cultural
heritage in the same manner as other archeological monuments such as paintings,
literature and every animal has a role in
maintaining ecological balance and the contention (of the petitioners) that
certain animals are detrimental to human life is misconceived.
Further the Court stated that:
“ Wildlife is an asset and heritage to be preserved for
future generations”
The courts have
recognized the principle in India, although to a lesser extent.
The notion
that the public has a right to expect certain lands and natural areas to retain
the natural characteristics is finding its way into the law of the land. The
ancient Roman Empire developed a legal theory known as 'the doctrine of public trust'[6].
It was founded on the idea that certain common properties such as, rivers,
seashores, forest and the air were held by the government in trusteeship for
the free and unimpeded use of the general public. … the public trust doctrine
imposes the following restriction… first property subject to the trust must not
only be used for a public purpose, but it must be held available for use by the
general public, second, the property may not be sold, even for a fair cast
equivalent; and third, the property must be maintained for particular types of
uses…
The Supreme
Court of California summed up the powers of the state as trustee in the
following words:
… the public
trust is more than an affirmation of state power to use public property for
public purposes. It is an affiliation of the duty of the state to protect the
people's common heritage of streams, lakes, marshlands and tidelands,
surrendering that right only in rare cases when the abandonment of that right
is consistent with the purpose of the trust…the state has an affirmative duty
to take the public trust into account in the planning and allocation of water
resources, and to protect public trust uses whenever feasible…
MAJOR DEVELOPMENTS IN THE FIELD OF PUBLIC INTEREST
LITIGATION
There has
been a spate of litigation concerning the environment. An analysis of the major
case law brings about certain interesting conclusions:
·
In terms of the development of
Constitutional law, the area of environmental law that has benefited the most
form judicial activism is noise pollution. The Courts in a number of judgements
have held that the right to a noise free environment is part of the right to
life under article 21. The spate of
judicial decisions ultimately led to the enactment of the Noise Pollution
(Regulation and Control) Rules, 2000 by the Ministry of Environment and
Forests. In the Om Birangana[7]
case it was held that "the freedom of speech and Expression guaranteed under
Article 19 (1) (a) by necessary implication, means freedom not to listen and
/or remain silent. One cannot exercise the right at the total deprivation of
others rights". In PA Jocob case[8]
the Court restricted the use of loud speakers. In the case the Court stated
that
" the recognition of the right of speech and
expression is recognition accorded to the human faculty. A right belongs to a
human personality and not to a mechanical device. One may put his faculties to
reasonable use. But he cannot put his machines to any use he likes…..a computer
or a robot cannot be conceded the right under Article 19. No more, a loud
speaker"
·
The Forest (Conservation) act, 1980 has
been made more stringent. The scope of the Act has been enlarged to include
private owned forests and other categories under the purview of the Act.
·
There has been a greater recognition of
the fact that local communities should have the first say in deciding the
resource use of the area. This has been aided by the enactment of laws giving
statutory and constitutional rights to the communities to manage their
resources. This is especially true in the scheduled areas of the Constitution.
·
In matters relating to pollution,
although the courts were vigorous n their drive to close down polluting industries,
stop the use of polluting fuels etc. however rarely are their potential impacts
considered. This has further created a cleavage between the right so of the
people affected and the need for environmental protection.
·
The petitioners in most cases have
tended to adopt the "NIMBY" (Not in my Backyard) approach, whereby
the activists are preoccupied in protecting a specified areas, It is this
approach that results n the shifting of polluting industries from the urban
areas to rural areas and in the disposal of wastes in landfills located outside
the city.
·
Further in bulk of the cases, the
petitioners have rarely relied on international law whether these are case
precedents or global conventions.
·
International conventions to which India is a
signatory have not in most instances translated into laws. The Biosphere
reserve under the MAB programme, the Ramsar sites and the World heritage sites
are mere policy documents with no legal status.
·
The Government and even NGO’s rarely take
International Environmental Conventions seriously. Very little debate takes place and no proper preparation for the
meetings takes place.
Unlike
the earlier international laws which were merely directives to the nations to
follow, the post Rio international environmental law put obligations on the
ratifying nations to amend the national laws so that they are in harmony with
what is being ratified. Unfortunately, India has till date not meaningfully
participated in the drafting of the existing laws or set the international
agendas for which protocols are required. The sad truth is that the not only
has India to pay the cost for protecting the global environment but also bear
the consequences of any environmental catastrophe.
·
Inappropriateness of Indian Environmental Laws: A
major criticism of the Indian environmental law is that it is generally
irrelevant to Indian circumstances. Most of the acts are not comprehensive.
Thus while the main statutory provisions relate to air and noise pollution they
are generally of secondary concern to local communities. The most estranged
conflicts n India o not concern pollution, but rather resource degradation and
resource access, including systematic problems of soil erosion, declining water
tables and "non point" sources of pollution such as pesticides. The
plethora of environmental law rarely covers these issues. Further the laws have
no mention as to who are in first charge of the natural resources rather it is
"Public interest" and "public good" which seems to
determining the use of natural resources.
·
Further the laws confer very limited or no rights
to local communities. Most of the so – called rights are merely “privileges”
and “concessions” and nor “Right” in
the legal sense.
·
The link between environmental issues and human
rights is rarely appreciated. Yet the
fact is that environmental damage is often worst in countries and in areas with
human rights abuse. Where human rights are weak, citizens groups are not able
to raise environmental concerns effectively. Right to know, access to justice,
freedom of speech and expression are critical for the success of the country's
environmental movement. Human rights and environmental abuse takes place at
different levels. Activities of the private business as also of the government
are increasingly contributing to human rights abuse and environmental
degradation, often at the same time. For instance, big corporations often expel
local people from their lands. Provide no alternatives and fail to install
pollution control measures. Further, they often make use of the government
machinery to suppress the voice of dissent by environmental activists. Further,
human rights violation and environmental damage are often perpetuated in the
name of development. No where is the linkage between environment and human
rights more visible than in the plight
of India's environmental refugees: a
term very rarely used in common discourse yet a reality in almost every urban
area. The environmental refugees comprise of tribals, small peasants,
pasturalist and others, uprooted from their homes and forced by circumstances
to live in slums and eke out a living. Eduardo
Galeno[9]
(1989) writing about the experiences in Latin American countries states that
ecological/environmental refugees "sell newspaper they cannot read, sew
clothes they cannot wear, polish cars they will never own and construct
buildings where they will never live".
It
is irony that these environmental refugees are further displaced due to actions
of urban environmentalist fighting for a cleaner and greener urban landscape.
Although a lot of focus has been on visible sources of
pollution it is the invisible pollutants however, which often creates the greatest
danger to the planet and its denizens. Pollution from agro – chemicals is one
such deadly pollutant. It was the
Centre for Science and Environment (CSE) who in their landmark report “Homicide
by Pesticide” (1997) drew the nations attention to dangerous health imapct
pesticides.. Pollution from pesticides is the most difficult to control. Being
a “non- point source” of pollution, modern pollution control devices are
incapable of controlling its run off to rivers and streams. Further, even the
best of treatment facilities cannot do much.
The level of
contamination , which is present in
food, water and soil, is glaring. In a
study conducted by All India Co–ordinated research project on Pesticides
Residue sponsored by the Indian Council of Agricultural Research showed 60 % of
the food commodities contaminated with pesticides, of which 14 % showed
contamination over the maximum tolerance limits.
Earlier in 1993 a report
based on a 7 year study on pesticides
by ICMR shocked both Parliament and the media.
Strangely, the ICMR study was later withdrawn and redone by stating that
the data and analysis were faulty!
Many scientific and
research have reveled the fact that pesticides have adverse health effects
in humans and animals. Pesticides have
become a potential health hazards to manufacturers, consumers and the
environment. Air, water and food have become contaminated with pesticides as a
result of extensive misuse of pesticide. The risk involved to human and animals
may be long term or short term depending on the exposure period to these
chemicals. The main groups of pesticides of concern are insecticides,
herbicides, fungicides and soil fumigants. The classic example of the misuse of
pesticide was that of Agent Orange: a
herbicide which is a mixture 2,4-D and 2,4, 5-T, used extensively as a
defoliant in the Vietnam war in the late sixties. People, who at the time were
residing around the sprayed area and the children till suffer from adverse
health effects from the herbicide. The contamination is thus not confined to
the natural environment rather it’s in
a highly mobile form ultimately effecting the human populations. Thus the
movement of the contamination if from what has been termed as “farm to folk”. Mothers give either still births or babies without
limbs or spastics. The present state of affairs calls for a multi disciplinary
integrated approach involving toxicology, epidimiology, physiology, ecological
and behavioral sciences for proper assessment of environmental and health hazards related to agro chemical
overuse.
MEGA
PROJECTS
The
global debate about large dams is at once overwhelmingly complex and
fundamentally simple. It is complex because the issues are not confined to the
design, construction and operation of dams themselves, but embraces a range of
social, environmental and political choices on which the human aspiration for
development and improved well being depends. Dams fundamentally alter rivers
and the use of natural resources, frequently entailing a reallocation of
resources of benefits from local riparian users to a new group of beneficiaries
at a regional or national level. At the heart of the dam debate are issues of
equity, governance, justice and power - issues that underline the many problems
faced by humanity.
According
to the Report of the World Commission of Dams, there can no longer be any
justifiable doubt about the following:
·
Dams have made an important and significant
contribution to human development, and the benefit derived from them have been
considerable.
·
In too many cases an unacceptable and often
unnecessary price has been paid to secure those benefits, especially in social
and environmental terms, by people displaced, by communities downstream, by
taxpayers and by the natural environment.
·
Lack of equity in the distribution of benefits has
called into question the value of many dams in meeting water and energy
development needs when compared with the alternatives.
In assessing the performance of large dams, The World Commission on Dams
concluded that:
·
Large dams display a high degree of variability in
delivering predicted water and electricity services - and the related social
benefits.
·
Large dams have demonstrated a marked tendency
towards schedule delays and significant cost overruns.
·
Large dams designed to deliver irrigation services
have typically fallen short of physical targets, did not recover their costs
and have been less profitable in economic terms than expected.
·
Large hydropower dams tend to perform closer to,
but still below targets for power generation, they generally meet their
financial targets but demonstrate variable economic performance relative to
targets, with a notable under and over performance.
·
Large dams have a range of extensive impacts on
rivers, watersheds and aquatic ecosystem - these impacts are more negative than
positive and in many cases, have led to irreversible loss of species and
ecosystem.
·
Efforts to date to counter the ecosystem impacts of
large dams have met with limited success owing to the lack of attention to
anticipating and avoiding impacts. The poor quality and uncertainty of
predictions, and the difficulty of coping with all impacts and the only partial
implementation and success of mitigation measures.
·
Pervasive and systematic failure to assess the
range of potential negative impacts and implement adequate mitigation,
resettlement and development programmes for the displaced, and the failure to
account for the consequences of large dams for downstream livelihoods have led
to impoverishment and suffering of millions, giving rise to growing opposition
to dams by affected communities worldwide.
·
Since the environmental and social costs of large
dams have been poorly accounted for in economic terms, the true profitability
of these schemes remain elusive.
·
Perhaps of most significance is the fact that
social groups bearing the social and environmental costs and risks of large
dams, especially the poor, vulnerable and the future generations, are often not
the same groups that receive the water and electricity services, nor the social
and economic benefit from these.
Struggle against mega projects is not a recent occurrence. Anti-dam
struggles in India date back to the early part of this century when Senapati
Bapat led the agitation against the Mulshi hydroelectric project in the Western
Ghats. There have been several other instances, thus the Hirakund Dam, which
was the first multipurpose dam project completed in Independent India, provoked
opposition from local politicians and bureaucrats as well as people to be
evicted. In fact thirty thousand people marched against the proposed dam in
1946[10].
In 1970, some 4,000 oustees from the Pong dam site in Himachal Pradesh demanded
land for resettlement. Work was stopped for more than two weeks[11].
An interesting recent development has been the emergence of struggles of
people affected by dams built years ago. It is now acknowledged that most of
the oustees of the dams built in the last few decades are yet to be properly
resettled. For example, in case of Ukai
dam, which came up in 1972 in Gujarat, thousands of tribals who were
"rehabilitated" by the government are yet to get legal ownership of
the land they were allocated. Worse as the plots fall in the forest area, the
Forest Department is allegedly imposing fines on them for using the land.[12]
Now encouraged by the success of the recent dam struggles, the oustees
of the existing dams are organising themselves against the injustice
perpetuated against them years ago. Examples are the Barghi Bandh Visthapit Avan Prabhavit Sangh (completed in 1990 on
Narmada river), Koyna Jeevan Hakka
Suraksha Sangathan (completed in 1964 on Koyna river), the organisation of
the oustees of the Tawa dam (completed in 1975 on the Tawa river).
To challenge mega projects in the courts have been a rather tough
battle. The response of the courts has been far from encouraging. However in
respect to mega projects, Courts should not be regarded as the only resort.
Whereas the courts have generally favoured large projects, it is still the
people's mobilisation and a well-planned movement that can succeed in stalling
some potentially disastrous mega projects.
The most recent and landmark example is the scrapping of the Rathong Chu hydroelectric power project
in Sikkim. It was the faith and
reverence of the people of Sikkim for their sacred land -Yuksom[13]
- where the project was to come up, which led to its scrapping. The protest
against the Rathong Chu project was novel in more ways than one.
Firstly,
it was the first time that the people in any part of the country demanded the
halting of a project due to spiritual and religious reverence for the place
where the project was to come up. Secondly, It was one of the rare
instances where the monks and Lamas of Sikkim came out of their religious
hibernation and demonstrated against the project.
The Government also appointed a one-man committee under Prof. P.S
Ramakrishnan to consider the viability of the project. The final report of the
committee stated that "although the Rathong Chu may be viable on
biophysical-environmental consideration, on socio-cultural and religious
consideration, alone, keeping the strong sentiments of a large cross section of
the Sikkimese society in mind, the Project should not be implemented.
Although the government still refused to stall the project it was the
sustained agitation by the Lamas and monks together with the tribals that
ultimately forced the government to stall the project.
The
M.C.
Mehta Vs. Union of India [AIR 1988 SC 1037] also known as the Kanpur
Tanneries or Ganga Pollution case is among the most significant water
pollution case. The opening part of the
judgment discusses the various legal provisions and the legal duties of
municipal bodies and pollution control boards.
The Court then goes on to appreciate the evidence of the level of
pollution. It is important to note here
one of the effective strategies adopted by M.C. Mehta which seems to be
deciding factors for his success. All
the cases involve detailed scientific investigations and the reports are
produced before the Court as evidence.
M.C. Mehta work is pain-staking, his research and scientific study
meticulous. The results of
investigations are displayed in self-explanatory tabular form to highlight the
magnitude of environmental damage. So
well employed is his use of facts and figures, which the Court is struck by the
severity of the problem and feels compelled to interfere. Another noteworthy strategy
adopted in these cases is offering the Court feasible alternatives, which
balance preservation of the environment with development of industries. These strategies often employed by M.C.
Mehta are recommended to activists.
In the case following the
alarming details given by M.C. Mehta about the extent of pollution in the river
Ganga due to the inflow of sewage from Kanpur only, the Court came down heavily
on the Nagar Mahapalika (Municipality).
It Court emphasised that it is the Nagar Mahapalika of Kanpur that has
to bear the mayor responsibility for the pollution of the river near Kanpur
city.
“The conflict in these cases, is the
conflict of yesterdays and a few day - the conflict of the lifestyle of a lotus
eyed leisurely day gone by, and the exacting demands of today on material resources”
being the landmark judgement of Attakoya Thangal Vs. Union of India [1990(1)
KLT 580]. Lack of adequate
ground water resources, potable water and large scale withdrawals with electric
or mechanical pumps which can deplete the water sources, causing seepage or
intrusion of saline water from the surrounding Arabian Sea was the reason for
the Petitioner to approach the Court.
The local administration had initiated a scheme to augment water supply,
by digging wells and by drawing water from those existing wells to meet
increasing needs. According to the
Petitioners, action of the administration amounts to an invasion of he rights
under Art. 21 of the Constitution, and sought restraint of the administration
from implementing the scheme, by the issuance of appropriate writs or
directions. Amongst other reports, the Petitioners relied heavily on “Strategy for an Integrated Development of
Lakshadweep” by Prof. M.G.K. Menon, then Scientific Advisor to the Prime
Minister of India and Member of the Planning Commission. The Court appointed a team comprising of
V.C. Jacob, K. Rajagopalan, D.S. Thambi, K.M. Najeeb & K. Raman to study
the problem and submit a report. The
team accordingly made a very detailed study of various aspects, and submitted a
report to the Court. The experts
appointed by the Court considered and investigated the physiography, climate,
soil, agriculture and irrigation, hydrogeological aspects, tidal and water
level fluctuations, hydrology infiltration studies, aquifer characteristics,
hydrochemical studies, resources evaluation, recharge potential, water
management concerns and other relevant matters. According to the report, other means of augmenting water supply,
mainly by harvesting rainwater, desalination and reserve osmosis would be more
appropriate in the circumstances of the case. Similar recommendations also came
from NEERI and CESS. The Court held
that “The right to life is much more than
the right to animal existence and its attributes are many fold, as life
itself. A prioritisation of human needs
and a new value system has been recognised in these areas. The right to sweet water, and the right to
free air, are attributes of the right to life, for, these are the basic
elements which sustain life itself”.
The Court held that a scheme, viable technically and meeting the
requirements as nearly as possible has to be evolved and directed the
administration not to proceed with the existing scheme.
The
judgement is crucial in its identification and segregation of rights of the
human beings. In the present day, when
activists are fighting for equal rights to animals, one has to see whether the
judgement is right in laying down and highlighting the superiority of the human
species. While the right to life is
important enough, it is right to say that it supersedes animal existence. Does it mean that animals have no life? These are certain unanswered questions that
have to addressed by the Courts.
A
situation of total apathy of the Government in the city of Cuttack, which had
led to a very acute water pollution problem was dealt by the Court in the case
of M.C.
Mehta Vs. State of Orissa [AIR 1992 Ori 225]. The city of Cuttack was under the grip of a
severe problem of water pollution ranging from sewage water clogging, direct
inflow of sewage into the river to non-existence of a sewage treatment plant,
thereby contaminating water and resulting in various types of water borne
diseases. During the course of the
hearing of the petition the Court noticed that not a single Department of the State
Government was willing to take any responsibility in the matter and were
conveniently shifting the burden to another department. A startling revelation during the course of
the hearing was the fact that there was a report culminating from a survey conducted
earlier by the State Pollution Board, which had declared water in the city not
fit for human consumption. Further
reports that were obtained during the pendency of the petition revealed that
the water was not even fit for bathing.
The Court held that the city of Cuttack, with its historic heritage, was
in the centre a huge water pollution crisis on account of the inaction of the
State in setting up of a waste treatment plant and the sewage water directly
doing into the river causing a serious health and sanitation problem. After going into the constitutional
provisions, and the recommendations of the State Pollution Control Board which
had made stark revelations about the conditions of drinking water and health in
the city, the Court directed the State to immediately take necessary steps to
prevent and control water pollution and to maintain wholesomeness of water
which is supplied for human consumption.
In
Vineet
Kumar Mathur Vs. Union of India [(1996) 1 SCC 119], the Court took note
of the continued violation of the State, as well as industries by continuing to
pollute water by discharging effluents and also in not setting up of common
effluent treatment plants. The Court
initially directed the officers of the State Pollution Board to visit the
polluting industrial establishments and make a fresh inspection of the Effluent
Treatment Plants installed in the said establishments and of their
working. After inspection, if it was
found that the treatment plants are deficient in any respect or the deficiency
pointed out earlier still continues, the Board will give reasonable time for
the industries to cure the deficiencies.
However, the time so given should not extend beyond the deadline set up
by the Court. The Board was directed to
file its report within fifteen days. The Court further held that if the
industries do not obtain the consent of the State Pollution Board for running
their units, before 31-3-1993, the industries will stop functioning after
31-3-1993. Other Municipal Boards where
there were no treatment plants, were directed to install the Effluent Treatment
Plant and obtain a certificate from the State Pollution Board that the plant
installed is up to the standard and its working is satisfactory. In the subsequent hearing, the Court held
that running of the plant between 7-4-1993 and 11-4-1993 by Mohan Meakins prima
facie amounts to violation of this Court’s order dated 15-1-1993. Accordingly, notices were issued to the
Managing Director of Mohan Meakins, and to the Chief Executive Officer, to show
cause why they should not be proceeded against for contempt of this Court. However, it was noticed that the Board had
given its consent to the Company, which was not originally disclosed, to the
Court. It was only after the Court
imposed costs and the Court held two hearings that the Company disclosed that
consent had been given. As the consent was given in violation of the Court
order, the Court issued contempt notice against the Member Secretary of the
Board. In his reply, the Member Secretary
disclosed to the Court that he had issued consent under pressure. The Court held that in the circumstances the
officers were in clear contempt of court and accepted their apology and made
the violation a part of their service record.
Although
the Court was very stringent in its approach to the problem, pardoning the
officers by merely recording such observation in the service records leaves
much to be desired. It is essential for
the Court to award such punishment as required so that the officers of the
Board do not succumb to pressure.
In
M.C.
Mehta Vs. Union of India [1997(2) SCC 411], the Court was concerned
about the discharge of untreated effluents into the river Ganga by tanneries
located in Calcutta. According to the
Court the scope of the direction issued to the city of Kanpur was enlarged to
include various cities located on the bank of the River Ganga.
The
Court was particularly concerned about the pollution caused by the tanneries.
The Court stated that “It should be
remembered that the effluent discharged from a tannery is ten times more
noxious when compared with the domestic sewage water which flows into the river
from any urban area on its banks.” And noted alarmingly that the
authorities who were supposed to check the same were totally apathetic to the
problem.
The
Court directed relocation of the tanneries to a complex and also directed the
pollution control board to examine the possibility of setting up of common
effluent treatment plants for the Calcutta tanneries in the four areas and
indicate the cost for the same. The
Court also directed the Government to acquire land for setting up a tannery
complex. In a subsequent hearing the
Court felt that the State Government and the Minister concerned were still
working at a snail’s pace and directed the Minister in charge to file an
affidavit in the Court and directed the State Government to assess the need of
the tanneries. In a subsequent order
the Court directed the owners of the tanneries to bear the cost of setting up
the CETP as well as the cost of relocation.
The Court actually spent a lot of time to monitor the progress of the
tanneries and to see whether the tanneries could function. However, as there
was a total lack of seriousness from the side of the tanners, the Court set a
deadline and directed that all the tanneries had to stop working as of that
date even if the relocation process is not complete. The State Government was asked to assess the cost of loss caused
to the environment by the tanneries and lay down the compensation that had to
be recovered from the polluters. The
compensation was to be recovered and utilised for restoring the environment.
The workers of the tanneries were given a choice to either relocate after
getting a shifting allowance or receive retrenchment compensation as per the
rules as well as an additional six years wages as compensation.
Following an alarming
news paper report which was brought to the notice of the Supreme Court in M.C.
Mehta Vs. Union of India and others
[(1997) 11 SCC 312], the court took note of the fact that the ground
water was decreasing, and therefore, issued notices of the appropriate
municipal bodies. The Court also
directed NEERI to file its report.
NEERI filed its report (Water
Resources Management in India, Present Status and Solutions Paradigm). According
to the Ministry of Water Resources, who responded to the NEERI’s report, the
main reason for decline in the level of ground water is over exploitation. The
Ministry went on to say that in the absence of any law, the administrative
measures do not prevent affluent farmers from constructing wells in critical
areas. The Court after hearing the
matter and perusing NEERI’s report was of the prima facie opinion that an
authority Central Ground Water Board, under Section 3(3) of the Environment
(Protection) Act, 1986, must be constituted in the entire country and directed
the Ministry of Water Resources to examine the viability of the same. The Ministry however, informed the Court
that the Board, though in existence would not be able to take the additional
burden. The Court after hearing the parties held that “The Central Government
in the Ministry of Environment and Forest shall constitute the Central
Groundwater Board as an Authority under Section 3(3) of the Act. The Authority so constituted shall exercise
all the powers under the Act, necessary for the purpose of regulation and
control of groundwater management and development. The Central Government shall confer on the Authority the power to
give directions under Section 5 of the Act and also powers to take such
measures or pass any orders in respect of all the matters referred to in
Sub-Section (2) of Section 3 of the Act.
The Board was also given powers to resort to penal measures under
Section 15 to 21 of the Act. It further
held that the main object for the constitution of the Central Ground Water
Board as an authority is the urgent need for regulating the indiscriminate
boring and the withdrawal of underground water in the country. The Court hoped that Authority so
constituted shall apply its mind to this urgent aspect of the matter and shall
issue necessary regulatory directions with a view to preserve and protect the
underground water.
In
Ambuja
Petrochemicals Vs. A.P. Pollution Control Board [AIR 1997 AP 41], one
of the industries covered by the Patencheru belt of treatment plants was served
with a notice for violating the Water (Prevention and Control of Pollution)
Act. The industry replied to the
notice. The Board however, not
satisfied with the reply of the industry, directed its closure. The same was challenged in the High Court.
In
the show-cause notice issued by the Board, the Board had stated that, the
effluents treatment plant is not in operation fully. It is further alleged that partially treated effluents are being
discharged outside the factory premises, which are ultimately joining “Dhosani”
Tank resulting in danger to public life.
It is further alleged that effluent sample collected at the outlet of the
factory premises discloses that the values are in excess of the standards
prescribed by the Board. It is also
alleged that the petitioner was not lifting the effluents to M/s PETL for final
treatment and disposal. The Company
belonged to one of the 17 categories of high pollution potential industries and
was generating waste water to the tune of 70 M3/day (i.e. 70,000 liters) by
producing 614 T/M of Pohallic Anhydride and 16T/M of Fumeric acid. The untreated/partially treated effluents
from Aeration Tank is flowing into unlined (Kacha) earthern pits in the plant
premises and the overflow from those ponds is flowing outside the premises of
industry and joining “hosani tank” and thereby causing water pollution. The Court held that the Board is under the
statutory and legal obligation to take all such effective measures to prevent
water pollution and for this purpose the Board is empowered to give appropriate
directions to any persons, officers or authority including the power to direct
closure of offending industry. It
further held that while the Court had the powers to review the action of the
Board when an illegality was pointed to it, it could not sit in appeal over the
same in view of technical aspects involved.
The
High Court dismissed the petition of the industry observing that under the Act,
the Board had a mandate to take action against an erring industry. The High Court could not sit in appeal
against the action of the Board considering the expertise of the Board in these
aspects. The High Court observed that it was open to the industry to comply
with the direction of the Board and make a representation which the Board would
consider and if satisfied allow the industry to operate.
One of the aspects to be
observed here is that the industry had raised all sorts of pleas including that
it was a sick
industry etc. which was
not appreciated by the High Court.
The problem of effluent
treatment is highlighted in the Indian Council for Enviro-Legal Action and
others Vs. Union of India [1998(1) SCALE (SP) 5]. 72 industries are members of Patencheru
Envirotech Limited (PETL) at Patancheru.
These industries send their effluents to the Patancheru plant for
treatment. It was noticed that the plant was not functioning properly due
to various reasons including the fact that the industries who were discharging
effluents were sending effluents which was beyond the capacity of the
PETL. The Court set out parameters and
directed that the PETL would not accept any effluent which did not come within
those parameters. The Court also held
that all those industries, which were exceeding those parameters, had to stop
production. This direction was also
made applicable to 25 industries who were the members of the CETP at Bollaram.
In Re:Bhavani River - Shakti Sugar
Mills Ltd [1997(11)SCC 312] the issue was pertaining to pollution
of river Bhavani from the effluents discharged by the industry. The Board under Section 33-A of the Act had
issued directions, which were aimed at ensuring proper storage of the effluent
in lagoons and for proper treatment and disposal of the treated effluent. The Supreme Court held that the violations
of pollution law by the industry were serious, and the same was posing a health
hazard. The Court directed that the
industry be closed and also directed the Board to submit a compliance report
within ten days. The Court also
directed NEERI to conduct an inspection of the industry and submit a report
stating if pollution control devices have been fixed by the industry and proper
steps are taken to control pollution in accordance with the provisions of the
Act. NEERI was directed to examine the
surrounding area and inform the Court the cost of restituting the area
ecologically.
THE
SUPREME COURTS RESPONSE TO DEFORESTATION.
The Forest (Conservation)
Act, enacted in 1980, was meant to stop
the diversion of forest land for non forest purpose and to stop further
deforestation in the country. Although the act was successful to the extent
that the amount of land diverted for non forest purpose showed a drastic decline,
yet it provided for enough loopholes for
forests to be cut down. The Supreme Court decision in the TN Godavarman
case was landmark it made the Act applicable for the purpose for which it had
been enacted.
In its first order dated
12th December 1996, the Supreme
Court stresses that the FCA was enacted with a view to check further
deforestation which ultimately results
in ecological imbalance. Further the
court noted that the provisions made therein for the conservation of forests
must apply to all forests irrespective of the nature of ownership or
classification thereof. The term “forest Land’, occurring in Section 2, will
not only include “forest” as understood in the dictionary sense but also any
areas recorded as forests in the Government record irrespective of the
ownership. This is the way it has to be understood for the purpose of section 2
of the Act.
The Supreme Court ordered that in accordance with section 2
of the Act, all ongoing activity within any forest in the state throughout the
country, without the prior approval of the Central government, must cease
Further the Court issued
the following important directions:
Ř
All ongoing activity within any forest in the state
throughout the country, without the prior approval of the central government
must cease.
Ř
In the tropical forests of Tirap and Chaglang in
the state of Arunachal Pradesh, there would be a complete ban on the felling of
any kind of trees in view of the of need to preserve biodiversity.
Ř
The felling of trees in all forest is to remain
suspended except in accordance with the working plans of the state government.
Ř
There shall be a complete ban on the movement of
cut trees and timber from any of the seven north eastern states to any other
state in the country either by rail, road or water ways.
Ř
State Governments were to constitute an expert
committee to identify areas that are “forests”, degraded lands, and
plantations.
In its order the Court
made many specific recommendations such as the in the case of Himachal Pradesh
and the hill regions of UP and West Bengal the ban will not affect felling in
any private plantations comprising of trees which are not forests. Further the
ban will not apply to permits granted to the rights holder for the bonafide
personal use in Himachal Pradesh.
The Supreme Court order
forced the government to act with respect to controlling the diversion of
forest land for non forest purposes. In particular it was concerned about the
condition of forests in the northeastern states. In its order dated March 4th
1997[14]
the Court constituted a High Powered committee to oversee the implementation of
the orders of the Court in the Northeastern region. The committee was to
oversee the preparation of an inventory of all timber in all forms.
In the mean while there
were protests in many of the states mostly in the northeast against the
restriction on cutting down of trees. The state of Meghalaya in its affidavit
had stated that the rural tribal population in the state required a significant
quantity of timber. Further there has been a loss of revenue to the state also
on account of the Courts restriction.
In its order the Court
also clarified that the orders of the court shall apply to all autonomous Hill
Councils in the North Eastern States as well as Union Territories.
In its order dated
January 15, 1998 the Supreme Court noted that although the proliferation of
wood based industries ahs been the main cause of degradation of forests in the
North eastern states, however considering the dependence of the local people on
the fores6t resources in the region, it is neither feasible, nor desirable to
ban completely either the timber trade or running of the wood based industries.
However their number and capacities need to be regulated. …they are also
required to be relocated in specified industrial zones. Most importantly the court stated that
“industrial requirements have to be subordinated to the maintenance of
environment and ecology as well as bonafide local needs.” [Para 3]
Further in view of the
fact that a huge amount of felled timber was decaying the Court ordered that no
fresh felling in the forests belonging to the Government, District Council and
regional council till the disposal of their existing stocks and illegal timber.
In terms of institutional
set up the Court stated that in view of the multi dimensional issues impinging
upon forest protection, fool proof institutional arrangement need to be put in
place, and made functional under the strict supervision of the North – Eastern
Council (NEC).
In its detailed order the
Court listed out the series of measures to control the massive incidence of
deforestation in the Northeastern region. Of particular significance are
·
The State Governments shall formally notify
industrial estates for locating the wood based industrial units in consultation
with the Ministry of Environment and Forests [Para 6]
·
Number of wood based industries shall be determined
strictly within the quantity of timber which can be felled annually on
sustainable basis as determined by the approved working plans from time time.
If its is found that units after relocation in industrial estates have excess
capacity then their capacities shall be reduced pro rata to remain within the
sustainable levels.
·
To ensure protection of the forest wealth the
forest officers in the North Eastern States may be empowered with the authority
to investigate, prosecute and confiscate on the lines of the power conferred on
the forest officers in many other states in the Country. [Para. 21]
·
Working plans of all forest division shall be
prepared by the State Governments and got approved from the Government of
India. Forest working shall be carried out strictly in accordance to an annual
felling programme approved by the MoEF. [23]
·
The forests under the District regional and Village
Councils shall be worked in accordance with the working schemes, which shall
specify both the programme for regeneration and harvesting and whose period of
shall not be less than 5 years. [Para. 24]
·
The states shall identify ecologically sensitive areas
in consultation with leading institutions such as the Indian Council of
Forestry research and Education, wildlife institute of India, North Eastern
Hill University, North Easter Regional Institute of Science and Technology
leading NGOs etc.
In the meanwhile a number
of incidence of violation of the Courts order came before the Court. In its
order dated January 7, 1998 the Supreme Court appointed a committee to inquire
into the incidence of illegal mining activity taking place in Doon valley. Even
the Union Environment and Forest secretary personally informed the Court of the
continuation of illegal mining.
The Scope of the T. N Godavarman case got
expanded with whole range of issues relating to the cutting of timber whether
legal or illegal came before the bench.
A very shocking event was
that of the Madhya Pradesh Forest department, which in the garb of removing
infected Sal trees (Shorea robusta),
non infected trees were also being cut. Even more the Court restrained the
State government of Madhya Pradesh and its functionaries to cut any of the
trees thereafter, even if in the opinion of the state government, the
particular tree or trees are considered to be diseased[15].
Following the hardship
caused by the people of the people of hill areas, on account of ban on felling of trees, the Court clarified that
nothing in the orders of the Court prevents the UP Forest Corporation from
directly undertaking the exercise of collecting forest produce including fallen
wood (but not any felling or cutting of trees or timber) to the extent strictly
necessary[16].
The Supreme Courts
intervention in the conservation of forests had the positive impact of the
Government constituting authorities for the protection of forests. Thus in
exercise of the powers conferred by sub – Section 3 of Section 3 of the
Environment (Protection) Act, 1986, constituted an authority for Auranachal
Pradesh called the Arunachal Pradesh Forest Protection Authority. It was for
the first time that the Environment (Protection) Act, 1986 was used to create
such a protection authority. The Supreme Court was of the view that the
feasibility of such an Authority both at the state level and at the national
level is thought of[17].
The various orders of the
Court did make the State Government to act, however many of the state
governments were in search of loopholes to the orders of the Court (similar to
the one adopted by Madhya Pradesh). Nagaland found a loophole in the earlier
order where the court which after taking into account of the proliferation of
wood based industries is the main cause of degradation of forests in the North
– Eastern States, ordered that the wood based industries be located only in
specified industrial zones formed on the basis of consultation with the
Ministry of Environment and Forests. The states were directed to identify
industrial estates within 45 days of the date of the order and to develop the
industrial estates within six months thereafter. In a blatant misuse of its powers the Government of Nagaland
designated the whole of the whole foothill areas of Nagaland and all areas within 1Km of National and
State Highways state roads as Industrial Estates for locating wood based
industries. Further the State government had not even consulted the Ministry of
Environment and Forests while notifying the industrial estates.
The Supreme Court issued
a show cause notice to the Nagaland chief Secretary. Similarly, Assam had
notified certain Town Areas/ Municipal Corporation Areas as Industrial Estates
for locating wood based industrial units. According to the Court, the
Notification of the Government of Assam does not comply with the requirements
as stipulated by the Court.
The fact that the forest
(Conservation) Act, 1980 does not put a blanket restriction on the cutting of
trees, but only transfers the power to allocate land for non-forest purpose the
Central government became clear in the
IA filed by the National Minerals Development Corporation (NMDC)[18].
NMDC had acquired six leases in forestland for mining purposes. The central
government had given permission for the same.
The Court clarified that “ ….as far as this Court is concerned, it had
prohibited the carrying on of any non-forest activity in a forest area without
the permission of the Central Government. Now that the Central Government has
granted permission subject to the conditions which may be imposed, the
applicant would of course be at liberty to operate on the said mines” The Court
further stated that “……what was prohibited by the Court was illegal cutting of
trees and cutting of trees without the permission of the Central government. It
is nobody’s case. …that the cutting of trees in carrying on the mining
operations in the present case would be environmentally hazardous or contrary
to any law especially in view of the fact that an obligation has been cast on
the applicant to carry out afforestation ….”
A very important order
which was a point of debate by human rights and adivasi groups was the
order passed by the Court on an
application filed through the Amicus Curie praying for clarification that the
order dated 12th December, 1996 contained a ban against the removal
of any fallen trees or removal of any diseased or dry standing tree from the
areas notified under Section 18 or 35 of the Wildlife (Protection) Act, 1972[19].
The Court issue notices to all the respondents. In the meantime it restrained
the Government from ordering the removal of dead, diseased, dying or wind
fallen trees, driftwood and grasses, etc. from any National Park or game
Sanctuary or forest. Further the Court stated that if any order to this effect
has already been passes by any of the respondent – states, the operation of the
same shall be immediately stayed.
In its order dated September 8, 2000[20]
was an important order.
In this order the procedure for dereservation of land was
analysed by the Court in particular the procedure whereby the applicant
deposits money with the State government and the State government is required
to carry out the afforestation work.
The Court was of the opinion that in order to ensure
reforestation by release of reserved forests, the primary responsibility of
carrying out the afforestation should be of the applicant concerned i.e.
the party which is going to use the dereserved land.
Th Court went a step further and stated that while granting
permission (under the FCA) the Central Government must specify the period
within which the afforestation must commence and be completed. Furthermore,
there should be a requirement of environmental audit in order to ensure that
after the sapling have been planted the survival rate is high. Besides, the
Government might consider requiring each applicant who is under an obligation
to carry out the afforestation to publish the results of the environmental
audit every year in a newspaper and forward the same to the Central government.
It should be specified that if the survival rate of the trees planted is not upto a specified percentage, the
permission which is granted shall be automatically cease and the
non-forest activity will have to be
stopped. In other words, the applicant is not only responsible for planting
trees but it should be its responsibility to look after and maintain the same
and ensure its survival and growth. Besides, the Court desired that the Central
Government before granting permission to dereserve the forest should be
satisfied that the applicant to whom the permission is ultimately granted is
such whom will be in a position to carry out the afforestation as prescribed.
In the landmark decision
the Supreme Court in its order dated 7 – 5 – 2002 put to a halt the destruction
of natural forests in the Andamans and Nicobar Islands. The Court accepted the
recommendations of the Shekhar Singh Commission appointed by the court in the
Intervention application filed by the Society for Andaman Nicobar Ecology
(SANE), Bombay Natural History Society (B.N.H.S) and Kalpavriksh, with the
support of the Environmental Justice Initiative and the Human Rights Law
Network.
The court order has very
important implications in terms of environmental justice since it aims at
protecting the interests of the tribals of the Andaman and Nicobar Islands like
the Onges and the Jarawas and others whose existence were been threathened by
the timber operations as well as other activities being carried out by the
"settlers" in the island. It is also very important since the court
has recognised the "rights of the few tribals'" over the
"greater common good" which has been the general trend in policy and
decision-making.
The Supreme Court stated
that the Andaman & Nicobar Islands is one of the hot spots and is in the
eco-fragile area and has, therefore, the eco-diversity thereby has to be
preserved. For this, it is essential that the natural forest is protected and
re-generation allowed to take place.
The Supreme Court
extended the scope of the intervention beyond Andaman and Nicobar Islands. The
Court in its earlier order has asked the chief secretaries of all states to
file affidavit on the extent of plantations in their respective states.
The main highlights of the Court order were:
·
All felling of trees from the forest of little
Andamans Islands, the national park and sanctuaries, the tribal reserves and
all other areas shall stand suspended.
·
The Union Territory of Andaman & Nicobar
Islands on instructions informed the Court that there is no social forestry in
Andaman & Nicobar Islands. The wood which is being cut is from the natural
forest and plantation of teak etc. has taken place in the forest, which had
been worked and approximating 40,000 cubic metres of wood is cut from the
forest annually for the purposes of the small mills the total logging of wood
being approximately 1,30,000 cubic metres per year. In the last two years, this
figure has come down but the fact remains that instead of resorting to social
forestry and thereby providing employment to the people in growing forest at
the present moment the natural forests are being cut and the timber sawn
.
·
No felling of tree (under the working plan or
otherwise) shall be permitted for meeting any raw material requirements of the
plywood, veneer, black board, match stick or any other wood-based industry.
·
In drawing up the new working plans the Government
shall formulate a Committee with one Ecologist who is proficient with the
ecology of Andaman.
Andaman
& Nicobar Islands, shall file every month an affidavit about progress of
eviction of encroachments.
·
The process of issue of identity cards to all the
residents shall be completed within a period of six months.
·
The extraction of sand shall be phased out @
minimum 20% per year on reducing balance basis to bring the sand mining to the
level of 33% of the present level of
mining within a maximum
period of 5 years.
·
The approvals accorded by Ministry of Environment
& Forests under the Forest (Conservation) Act, 1980, shall be reviewed by a
Committee consisting of Secretary,
Environment
& Forests, Director General of Forests and at least one non-official member
of the Forest Advisory Committee constituted under the Forest (Conservation)
Rules to restrict the approvals to the barest minimum needed to serve emergent
public purposes. Felling of trees shall commence only after the process of
compensatory afforestation has actually been undertaken on the ground. In
future, the proposals shall be considered for approval only after detailed
Environmental Impact Assessment has been carried out through an independent
agency identified by Ministry of Environment & Forests.
CONCLUSION
The T.N Godavarman case has included within its ambit a
whole range of issues other than the illegal feeling of trees. It has dealt
with mining, protection of National parks and sanctuaries, violence against
forest officials etc. Further it has through its various orders made policy
initiatives that aims at systematic change in the forest acts aimed at
biodiversity conservation.
It has been controversial to some extent also. The initial
order of the Court which banned the movement of timber from the North eastern
region was severely criticised by the many of the political leaders of the
region on the ground that it would deprive many tribals of their livelihood.
How genuine was the concern of the leaders is doubtful since it is a known fact
that the group to benefit the maximum from the tree felling are timber traders
from outside. Further, most of the export of timber is in round log form and
very minimal value addition is taking place in the region.
Further there was an urgent need for putting to an immediate
halt the unrestricted deforestation that was taking place in the areas under
the control of the District Councils and other such tribal institutions. The
District Councils and other tribal institutions, as also private owners did not
follow any systematic plan for harvesting of timber and this had resulted in
massive ecological damages in the region.
The Supreme Court allowed only timber extraction that is in accordance
with an approved working plan. Thus for the first time not only the Forest
department but also the other managers/ owners of forests were required to prepare
a Working Plan.
The Court also looked critically at the whole procedure that
is followed by the Government in granting clearance for diversion of forestland
for non-forest purposes. It also suggested that a new approach towards
compensatory afforestation be worked out given the dismal survival rate of
trees at present. It right observed that the present system whereby the
responsibility is of the Forest Department to carry out compensatory
afforestation has to give way to a system whereby it is the responsibility of
the project proponent to carry out the afforestation.
The order of the Court directing that the removal of
dead/decaying trees be banned from National Parks and Sanctuaries was also
looked at as something that would have a drastic impact on those dependent on
forests. How much was the impact of the order is yet to be ascertained. Yet in
terms of biodiversity conservation this was a landmark order for it highlighted
the need to even protect dead trees and dry grasses given their importance for
the ecosystem.
It can be said the effect of the various orders were fold: (i)
the ecological impact of the
order and (ii) the impact on the forest dependent people (iii) impact on
Industry ; (iv) Impact on the Forest department and Government.
MEGA PROJECTS
In Tehri Bandh Virodhi Sangharsh Samiti and others Vs. The State of U.P.
and others, [JT 1990 (4) SC 519)], a petition was filed in public interest by
the Tehri Bandh Virodhi Sangharsh Samiti before the Supreme Court, seeking a
restraint order against the construction of the dam. The objection of the Petitioners was that the appropriate
authorities had not taken into consideration that safety aspect as the project
posed a serious threat to the life, ecology and environment of the entire
northern India as the site of the dam is prone to earthquakes. Dismissing the petition the Supreme Court
held that the Court did not posses the requisite expertise to render any final
opinion on a technical matter and the Court could only investigate and adjudicate
the question as to whether the Government was conscious to the inherent danger
as pointed out by the Petitioner.
Unfortunately the Court did not appreciate the fact that though the
Court itself did not have the expertise, it could have called upon experts to
review the project and check the safety aspects as it was affecting a large
number of people. The Court also failed
to consider that the international covenants have now laid down a precautionary
principle and in an area such as seismic knowledge, which is in its inception,
no particular agency or individual is an expert on the actual cause of
earthquakes. Hence, the Court should have stalled the project. It is also ironic that a devastating
earthquake did occur in the area and the dam itself, which was supposed to have
used the shell material in its construction, has developed a huge crack.
Environmentalists
were accused of being unduly apprehensive in Dahanu Taluka Environment
Protection Group and another Vs. Bombay Suburban Electricity Supply Company
Limited and others [1991(2) SCC 539].
The Petition filed was an appeal against the decision of the Bombay High
Court whereby the High Court had upheld the sanction granted to the Company for
setting up a thermal power plant. The Company had sought to set up various
thermal power plants at various sites in Maharashtra, and Dahanu was one of
them. An Appraisal Committee was established to check the viability of the
project at Dahanu. The Appraisal
Committee was of the opinion that Dahanu was not suitable for setting up of the
plant. The government however gave its approval without disclosing any reason
for rejecting the Appraisal Committee's report. The Court while rejecting this contention held that views of the
Appraisal Committee do not represent the decision of the government and the
same cannot be binding on the Central Government. As far as the second objection of the Petitioners regarding the
fact that the approval was contrary to the Environmental Guidelines for Thermal
Power Plants, 1987, the Court held that the guidelines (this was regarding the
argument that the plant was not outside the specified distance from the sea and
the forest) are only intended as a safeguard against possible pollution effects
and cannot be treated as rigid and inflexible irrespective of local
conditions. The third argument raised
by the environmentalists was regarding the Coastal Regulation Zone (CRZ)
guidelines as the project was in flagrant violation of that as well. The Court
rejected this argument on the same ground that it had rejected its earlier
arguments as the CRZ notification was considered while giving the clearance.
The
petitioners also argued that the Company after starting the unit will start
violating all the stringent conditions laid down as it had already applied for
exemption from the installation of FGD. The Court held that the Company had to
adhere to the conditions laid by the Government and if any of the conditions
are waived at a later stage the same have to be tackled at that stage. However, the Court held that if the
Government considers the application for exemption of installation of FGD the
Government must give its decision after hearing the petitioners.
The
judgement throws out a lot of questions for an activist inasmuch as it brazenly
allows violation of the guidelines of the Government of India. This judgement like the earlier judgement of
the Tehri Dam makes it sufficient that the Government must prove that it has
considered an aspect. The question of
malafides of the Government which is normally the case whenever a mega project
is cleared, and the non-application of mind by the Government is not
appreciated. The Court also does not
consider the fact that if the Government constitutes an expert body (the
Appraisal Committee in the case), how can the Government overrule the same.
In Goa Foundation Vs. Konkan Railway [AIR 1992 Bombay 471], the
petitioner challenged the construction of the rail line passing through the
Konkan region and in particular in Goa, in view of its disastrous ecological
impact. The petitioner contended that no proper EIA was carried out, nor was
there a proper Environmental Management Plan (EMP). According to the petitioner, although the ecological damage due
to the proposed project will not be immediately visible, the damage will be
gradual and will lead to the deterioration of the land quality effecting a
large number of people. In particular
the project would have a disastrous consequence on the low lying Khazan paddy
fields. The Khazan fields lie below the
sea level and have a unique natural biological eco-system of mangroves and fish
life. The Khazan lands are among the most fertile nurseries of fish life.
The Court sadly, chose to underestimate the claims of the
petitioner. According to the Court
"no development is possible without some adverse effect on the ecology and
environment." Further the Court
wrongly interpreted the meaning of Central Government in the Forest
(Conservation) Act, 1980.
Since the project is approved by the Central Government and the Railway
Ministry is carrying out the project, the Corporation can use forest land for
non-forest purpose. It is a known fact
that Central Government as mentioned in Forest (Conservation) Act, 1980 means
the Ministry of Environment & Forest and not any other Ministry. The Court
also held out that the project cannot be challenged on the ground that it
violated the provisions of the EPA. The reason being that Section 11 of the
Railway Act, 1989 allows the Railway Administration to construct over any lands,
hill, valley stream etc. According to
the Court the wide ambit of the provision of Section 11 and the non obstante
clause makes it extremely clear that the provisions of the environment acts do
not bind the construction or maintenance of a railway line.
The worry of the case, is that despite being so pro-project, the Court
sought to justify the project on the ground that it lead to prosperity of the
common man. One loses count of the number of such lines where the Court allows
for big development projects on the reasoning that it will benefit the poor and
marginalised.
In Gramin Sewa Sanstha Vs. State of M.P. [1986 (Supp) SCC 578],
the Supreme Court was called upon to consider the aspect of arbitrary nature of
the Government in providing alternate land to displaced people. This is a case where owing to the
implementation of Hasdeo Bango Dam Project in Madhya Pradesh, a large number of
tribals were to be displaced. The Court held that the resettlement policy should
be such as to enable the tribals to continue with their lifestyle unaffected.
The petitioners took a serious objection as the Government was allotting the
land to the displaced tribals which actually belonged to some others and who
were having legal possession of the land.
The State Government had taken an objection that the project was not
covered by the Madhya Pradesh Projects Displaced Persons (Re-settlement) Act,
1985 and therefore there was no statutory obligation for the Government to
provide re-settlement and rehabilitation to the displaced tribals of this
project. The Court refused to accept
this argument and directed the State Government to examine why this project
cannot be a part of the Act. The Court
also directed the Government to allot land after ensuring that there were no
encumbrances.
One of the most controversial judgement form the activists' point of
view that was rendered by the Supreme Court of Narmada Bachao Andolan Vs.
Union of India and others [2000(7)
SCALE 34]. The Court (2:1)
dismissed the public interest petition filed by an activist group and upheld
the Government decision. The judgement
draw a lot of flak from various corners as being a totally biased and
anti-people judgement. Even if one were to divorce oneself of the anti-people
argument and also not go strictly by the NBA arguments, the judgement appears
to be biased inasmuch as the entire judgement gives an impression of the whole
issue having been prejudged and the judgement itself being a formality for
natural justice. It is sad that while
the majority judgement has rejected every argument of the Petitioners, the
minority judgement without agreeing with all the arguments advanced had found
in favour of the Petitioner with respect to non-compliance of the basic
requirements by the Government.
In order to appreciate the judgement, it is important to give an outline
of facts as detailed in the judgement.
It is also important to reflect the facts as the Narmada project is more
than fifty years old and the primary purpose as has been reflected in the
judgement was not provision of drinking water.
A project was started as early as in 1946. This was in the form of a proposal. The proposal was that due to under-utilization of the Narmada
River, a multi-state project needed to be initiated primarily for the purpose
of providing water for irrigation, hydropower, flood control and extension of
navigation. It is interesting that the
preliminary studies were with these objectives and there was no provision of
drinking water as is being advocated by the State of Gujarat now. Engineers and geologists inspected the
project site. After about 15 years from the date of initial surveys, the State
Governments of Gujarat and Madhya Pradesh entered into an agreement. This
agreement was largely on the status of power sharing and operational
expenditure. State of Maharashtra was also a beneficiary of the project and
certain costs were to be met with by that State. The Madhya Pradesh government however, did not ratify this
agreement. The matter was referred to a
High Powered Committee. The committee
gave its report. It is essential to note that even at this stage, the thrust
was on irrigation and power with priority in that order and not for providing
drinking water. As these recommendations were also not acceptable to all the
States, a dispute was raised under the Inter-State Water Disputes Act, 1956 and
the disputes were referred to a tribunal headed by a retired judge of the
Supreme Court. Following initial
technical objections, appeals and settlement, the Tribunal gave its award. As
per the award:
·
The height of the Sardar Sarovar fixed at 455 ft.
·
The Geological and Seismological aspects of the dam
site was accepted as per the recommendations of the Standing Committee.
·
Relief and rehabilitation had to be provided
entirely by the State of Gujarat as
required by the oustees with proper civic amenities also taken care of. The
submergence must not happen unless rehabilitation is completely done.
·
Distribution of the Narmada water amongst the four
states, Madhya Pradesh, Rajasthan, Gujarat and Maharashtra was also specified.
·
The decision of the Tribunal was reviewable only
after 45 years.
Following
the tribunal award, a Narmada Control
Authority was constituted which planned the project. The Sardar Sarovar Dam, was one of the four
major dams proposed which was to be built in Gujarat. As per the plan, the
Sardar Sarovar was to cater to irrigation, drinking water, power generation,
flood protection and development of fisheries directly and employment as
ancillary. The Government of Gujarat
obtained loan from the World Bank for Power project and the water delivery and
drainage projects. The Union Government
subject to certain conditions granted the environmental clearance. One of the major aspects of this clearance
was that environmental safeguard measures must go pari passu with the
progress of work with due notice to the department. As regards forest diversion and submergence, it was suggested
that a separate approval be taken. (It is important to note that in 1990 the
Ministry had held that in view of the fact that the deadline for the completion
of studies was not met, the clearance was supposed to have lapsed). The
construction of the dam was started in 1987. Through the intervention of a
letter petition, the Supreme Court gave a direction in 1991 to constitute a
committee to monitor the rehabilitation aspects of the dam. Around this time,
the Narmada Bachao Andolan intervened and started their agitation against the
construction of the dam. An expert committee was constituted to hold dialogue
with the NBA who submitted its report.
The recommendations of the report were not accepted by the State of
Madhya Pradesh. The Court directed that
the committee give a detailed report on issues relating to height, hydrology
and resettlement. One of the members opted out due to personal reasons and the
other four submitted their report. The
recommendations were not unanimous and the members were equally divided in
their recommendations. However, on
relief and rehabilitation, the majority of the members were of the opinion that
the relief and rehabilitation must precede
submergence.
The
arguments of the Petitioner before the Court (NBA) were on general issues,
environmental issues, relief and rehabilitation and the question of reviewing
the tribunal's award (in view of the tribunal recommendation that the award
would be reviewed only after a period of 45 years). The State of Madhya Pradesh argued with the petitioners as far as
the height of the dam was concerned.
As
regard the height of the dam, the Court held that as the tribunal had decided
on the height of the dam, it was not open to the NBA to raise any question on
that.
As
regards the argument with respect to large scale ousting of tribals and the
submergence of agricultural land and the consequent violation of international
covenants, the Court held that the rehabilitation package offered was better
than the existing conditions of the tribals. It further held that in view of
the acute shortage of water, it was important that dams are constructed in
order to augment the supply of water, generate power and restrain flood. The
Court also considered the cost-benefit argument of the World Bank. It is
interesting to note that the Court appreciated the argument of the Government
that the Sardar Sarovar Project actually had positive impact on the
preservation of ecology.
On the
Environmental issues:
·
Whether the execution of a large project having
diverse and far reaching environmental impact, without the proper study and
understanding of its environmental impact and without proper planning of
mitigative measures is a violation of fundamental rights of the people
guaranteed under Article 21 of the Constitution of India:
·
Whether the diverse environmental impacts of the
Sardar Sarovar Project have been properly studied and understood?
·
Whether any independent authority has examined the
environmental costs and mitigative measures to be undertaken in order to decide
whether the environmental costs are acceptable and mitigative measures
practical?
·
Whether the environmental conditions imposed by the
Ministry of Environment have been violated and if so, what is the legal effect
of the violations?
In support of it's contentions, the NBA relied amongst others on the
fact that the Ministry of Environment had declared it's clearance as having
lapsed. They also heavily relied on an independent study commissioned by the
World Bank which had said that
"......... We think that the Sardar
Sarovar Projects as they stand are flawed, that resettlement and rehabilitation
of all those displaced by the projects is not possible under the prevailing
circumstances, and that the Environmental impacts of the projects have not been
properly considered or adequately addressed. The history of environmental
aspects of Sardar Sarovar is a history of non-compliance. There is no
comprehensive impact settlement. The
nature and magnitude of environmental problems and solutions remain
elusive."
It further argued that there were no pari passu resettlement and
the studies if any done were further argued and extremely poor.
Refuting these contentions, the Court held that the Environmental
clearance of 1987 showed that some study, though incomplete had been done.
After giving a detailed account of the internal notes, correspondence between
various Ministries and the PMO, the Court held that it was satisfied that
sufficient safeguards were taken before giving the Environmental
clearance. It is interesting to note
that the Court did not reject the argument of the NBA with respect to the
lapsing of the clearance in 1990 in view of the incomplete studies. The detailed account given in the judgement
only reflects, back and forth correspondence and meetings held. Even assuming
these meetings could be held as constructive environmental discussions, the
final clearance in this regard was of June 1987 that had made the clearance
conditional and asked the parties to obtain separate clearance with respect to
diversion of forests. The judgement
also does not answer the effect of the clearance itself having lapsed. In fact, it was admitted by the Respondents
that in 1992, as there the conditions imposed were not followed, there was a
recommendation from the Ministry of Environment that a notification be issued
to revoke the clearance. The Court however observed that no notification was
issued. It however, is the fact the
Ministry of Environment had recommended revocation of the clearance. The Court
also rejected the recommendations of the Morse Committee report as having been
rejected by the World Bank itself.
One of the glaring aspects of the judgement is that the Court has
rejected scientific arguments advanced by the activists’. As there was genuine apprehension in the
minds of the people that the benefits that were being proposed were actually
not going to be beneficial, the Court accepted the Government argument that
committees were being set up to monitor these aspects and therefore the same to
be set up and independent experts called to examine the recommendations of the
Narmada Control Authority.
|
NBA ARGUMENTS |
JUDGEMENT |
|
·
Catchment area treatment not done pari
passu as required in the environmental clearance |
·
After recording that the catchment area
was filling up since 1994, the Court
held that the Minutes of the Environmental sub-group as on 28.9.1999 stated
that catchment area treatment work was nearing completion, though Madhya
Pradesh had some problems and overall works by an large were on schedule and
therefore the work was effectively done. |
|
·
Compensatory afforestation was carried outside
the project impact area and the land that was being utilised was of a poor
quality and therefore afforestation will be of lesser quality. |
·
If afforestation was taking place on waste
land, it did not necessarily follow, that the forests would be of lesser
quality or quantity. |
|
·
Downstream impacts of the project would
include not only destruction of downstream fisheries but will also result in
salt water ingress. |
·
The argument is based on the Morse
Committee report. The report given by
M/s H.R. Wallingford in 1993 shows that there are no downstream impact
assessment. The construction of dam
would result into more regulated and perennial flow into the river with an
overall beneficial impact. .....
Petitioner's assertions in this regard are ill conceived. |
|
·
Impact on flora and fauna would be very
severe. |
·
No centrally or state protected cultural
sites were located. The important
monuments are being moved to a higher level. |
|
·
There will be severe impacts on health. |
·
Public health was not being neglected and
the Government had conducted various studies. |
|
·
Functioning of the Environmental sub-group
was not upto the mark and the studies were being accepted without proper
verification. |
·
The Secretary, Ministry of Environmental
and Forests head the group and its work cannot be belittled on the basis of
conjectures and surmises. |
On the legal
arguments
|
NBA ARGUMENTS |
JUDGEMENT |
|
·
Precautionary principle as laid out in
earlier judgements show that the onus of providing that a project will not
harm the environment is on the person who is proposing to change the
environment. |
·
Precautionary principle will apply in a
case of polluting or other project or industry where the extent of damage
likely to be inflicted is not known..... The dam is neither a nuclear
establishment nor a polluting industry. The construction of a dam undoubtedly
would result in the change of environment but it will not be correct to
presume that it will result in ecological disaster. ......There has been an ecological upgradation with the
construction of dams. |
|
·
In an US case, an injunction was granted
even though a dam construction was already in progress as the authorities had
not complied with the requirements of National Environmental Policy Act. |
·
At the time of the environmental clearance
no obligation to obtain any statutory clearance. The clearance of 1987 was
merely administrative having regard and concern of the environment in the
region. Change in environment does not per se violate any right under Article
21 of the Constitution...... |
|
·
In an American decision, during the time
the dam was under construction, a statute came to be enacted and it was held
by Appeals Court and the Supreme Court that the statute was applicable and
prohibited the authority for further impounding the river. |
·
The case is not applicable as there is no
such act in our country. |
|
·
In another American decision it was held
that the NEPA (Environmental clearance) was applicable even for projects
which are started before the statute came into force but was in progress at
that time. |
·
The Section 3 notification was prospective
and cannot be regarded to have retrospective effect. |
On relief and rehabilitation, it was argued that the official figures
were an under-estimated one as in each village there are many persons left out
and incorrect surveys have been conducted.
There was another major lacunae, as the three States have different
packages. The master plan for rehabilitation was extremely defective as it had
not taken inter alia the community relocation in its consideration. Besides this the land that was being given
was also of a poor quality with various problems. The authorities were also
violating the guidelines of the B.D. Sharma's judgement which had made it
mandatory for resettlement at least six months prior to the submergence. There
was also a need for independent monitoring as the same body that is building
the dam is executing the relief and rehabilitation and is also monitoring it.
The Court held that the Sardar Sarovar has the least ratio of
submergence to the area benefited as against other similar project. The tribals who are affected are those who
have never had the benefit of civilization.
The tribals have responded positively to the resettlement package
offered by the State of Gujarat. Resistance for relocation has been made by
large landholders. There is no material
on record to show that proper surveys were not carried out to determine the
number of affected families. There is
no need for uniform packages by all the States. In any case the packages were definitely better than the award of
the Tribunal and the scope of the package was also extended. Certain problems
posed (e.g. grazing) are a problem faced by other people as well and is not
peculiar to these people. There is no
need for an independent agency to monitor the relief and rehabilitation. The Tribunal's award is final and binding on
all the States. The States of Gujarat
and Madhya Pradesh had also set up a grievance redressal authority, the State
of Maharashtra has set up a local committee to examine the claims of the
affected families. The Court however,
did note that suitable steps were taken by Gujarat for rehabilitation. Maharashtra had given an undertaking that it
would be in a position to provide adequate rehabilitation. Whereas Madhya Pradesh had not provided
adequate rehabilitation and was not even making proper progress in this
direction. It is important to note that
Madhya Pradesh has the largest number of oustees.
In conclusion, the Court held that conception of a project is of the
Government and only thing that a Court can do is to ensure that the system
works in the manner envisaged. In
respect to public projects, the Courts should not become an approval authority.
In a democracy, welfare of the people has to be the concern of a responsible
Government. It also held that experience of the past had shown that a properly
drafted relief and rehabilitation would improve living standards of the
displaced people. As examples, Bhakra
Project, Tehri Project* is
quoted.
The Court finally
disposed the matter with a few directions.
The judgement throws out certain unanswered questions. It was an
admitted fact that the relief and rehabilitation had to precede submergence.
The Court took note of the fact that the State of Madhya Pradesh was extremely
lax in its progress, and a large number of people affected were from that State
but yet directed the completion of the project as per the tribunal's
award. It has not issued any time bound
direction to the State of Madhya Pradesh to complete its relief and
rehabilitation program. The legal
arguments have been completely turned contrary to all other decisions and leave
it to the government; it is also a fact that the same Court has directed
ousting of tribals from the forest areas on the ground of protection and
preservation of forests. Similarly, the
same Court has set up a committee to monitor solid waste management and make
recommendations. The judgement also does not answer the issues of precedents
cited before it. The decisions cited by
the NBA, even the decisions from abroad were broadly to advocate a
principle. The facts and circumstances
of each case differ, but the principle applies. That is the basis behind citing an earlier decision. It is sad that these decisions have not been
appreciated under these accepted practices. The judgement also contravenes
every other guideline that has been set out and advocated for an activist
before it goes to Court. Even if it is
accepted that the NBA were merely making a bald assertion without any basis, the
Court, as has been done earlier, could have examined the whole aspect in view
of the controversy raised. The fact of
the water being supplied to the drought prone areas has been taken and accepted
on the averments and contentions of the Government without really examining the
authenticity of the same. The Court also has not examined the cost-benefit
analysis of the project in the way an analysis of this nature has to be done
which was mandatory in view of the tremendous delay in the project.
Minority Judgement
The Minority judgement basically disapproved the project in view of the
discrepancies in the way the environmental clearance was granted. It has taken serious objection for having
vested the decision making in this regard with the PMO rather than the Ministry
of Environment and Forests. After going through the details of the
correspondence between the departments, it has also noted why the environmental
clearance had been given at a premature stage without sufficient information. This is extremely important especially in
view of the fact that the conditions imposed in the clearance assume greater
importance, as they were the only safeguards for environmental management. At
that time, the relevant authorities as well as the World Bank felt it was mandatory
to have more and proper studies done in respect to wildlife, protected areas
(National Parks, Sanctuaries, reserved forests etc.) and the carrying capacity
of the surrounding areas where the wildlife from the submergence area will
disperse. It is startling to note that
in the minority judgement, the fact that in the internal noting preceding
clearance, there was an observation to the effect that environmental loss is
colossal was reflected. The judgement further
notes that no studies on any aspect were complete on the date of the
conditional clearance. It is in this
judgement that the non-compliance of any of the environmental guidelines has
been noted. The judgement also notes
the pace at which the States has undertaken the relief and rehabilitation work.
An interesting part of the judgement is that even though on facts, this
judgement has stated nothing in view of a long account given in the majority
judgement, the minority refuses to agree with anything stated in the majority
judgement. The directions issued with respect to conducting an EIA, a committee
of experts be constituted to gather the necessary data and a stay of further
work till such time all these data were made available.
Precautionary principle, polluters pay, natural justice, welfare of the
people, social justice are some of the issues that the Court addresses and has
been addressing in order to check the government apathy. There seems to be a great deal of aberration
from all these principles.
In BSES Limited Vs. Union of India [AIR 2001 Bombay 128], the
petition was directed against the order of the Dahanu Taluka Environmental
Protection Authority (DTEPA), an authority under the Environmental (Protection)
Act, 1986, requiring the petitioner, the BSES Limited which has a thermal power
station at Dahanu, to install a Flue Gas Desulphurisation (FGD) Plant. The
installation was essential to control the level of pollution as a result of the
functioning of the thermal power plant.
The Court refused to go into the merits of the order of the DTEPA since
according to the Court these are highly technical matters on which the courts
cannot express its opinion. The Court relied on the decision taken in the BEAG
case (AIR 1991 Bombay 301) wherein it stated that "....in matters..... involving
diverse pros and cons, technical and other wise, the courts should be extremely
slow to interfere unless inevitable".
Further the Court stated that since the petitioners themselves have set
up the thermal power plant with a clear understanding that they would set up
FGD Plant, the mere fact that another view is possible, inasmuch as presently
there is no imminent threat to the environment, is no ground for interfering
with the order of the DTEPA. The Court stated that the "setting up of the FGD Plant is a preventive measure and the
petitioner cannot insist that the setting up of the FGD Plant must be insisted
on only after it is established that the emission from the thermal power plant
have adversely affected the environment of the Dahanu region".
In Centre for Social Justice Vs. Union of India [AIR 2000 Guj 71],
the petitioner challenged the manner in which notifications issued by the
Government of India under the Environment (Protection) Act, 1986, in the matter
of granting of environmental clearances were not followed in letter and
spirit. Besides the petition was also
directed against the environmental clearance given by the State Government to
the Thermal Power Plant of the Gujarat Electricity Board, on the ground that no
public hearing was held.
The Court considered in detail the Environment Impact Assessment
Notification of the Ministry of Environment and Forests, Government of
India. The Court laid down the
following guidelines to be followed in the Public hearing procedure of the
Environment Impact Assessment.
·
The venue of the public hearing be as near as
possible to the site of the proposed project and no further than the sub
district (taluka) headquarters;
·
The state pollution control board should publish
notice of the public hearing in at least two newspaper widely circulated in the
region, one of which should be in the vernacular language;
·
The first public hearing should be held at least 30
days after the newspaper notice;
·
There should be a summary of the EIA Report in the
local language and the EIA report be made available to the concerned citizen;
·
The quorum of the committee conducting the public
hearing would be half its membership and the representatives of the Pollution
Control Board, state department of environment and one of the three senior
citizens nominated by the Collector, would have to be present for a valid
public hearing.
·
The minutes of the public hearing be supplied to
citizens on demand; and
·
The gist of the environmental clearance be
published in the newspaper in which notice of the public hearing is given.
A landmark and historic
judgement which reassured the constitutional rights of the tribals on the
tribal land is the Samata Vs. State of A.P. and others [1997 (8) SCC 191]. A writ petition was filed by Samata, a
social action group working for the rights of tribals in the High Court of
Andhra Pradesh in 1993 on the ground that the government was also a 'person'
and hence does not have the power to grant lease in a scheduled area to non tribals
for mining purpose. The A.P. High Court
dismissed the writ petition. Then a Special Leave Petition was filed before the
Supreme Court where by full bench judgement Court decided in favour of the
tribals and held that :
·
Government lands, forest lands and tribal lands in
the scheduled area cannot be leased out to non tribals or to private
industries;
·
The issue which started as non settlement of lands
in reserve forest enclosures in Borra Panchayat was addressed by the bench by
directing the State Government to immediately issue title deeds to tribals in
occupation of these lands and ruled that government has no right to grant
mining leases in these enclosure lands belonging to tribal people;
·
Government cannot lease out lands in schedule areas
for mining operations to non tribals as it in contravention of the Fifth
Schedule of the Constitution;
·
Mining activity in scheduled area can be taken up
only by Andhra Pradesh State Mineral Development Corporation or a cooperative
of tribals and that too if they are in compliance with the Forest
(Conservation) Act 1980 and the Environment (Protection) Act 1986;
·
The Court recognised the 73rd
Constitution Amendment Act and the Andhra Pradesh Panchayat Raj (Extension to
Scheduled Areas) Act by stating that the Gram Sabhas shall be competent to
safeguard and preserve community resources and thereby reiterated the need to
give the right of self governance to tribals;
·
If necessary, the Court felt that the Chief
Secretary of Andhra Pradesh State should constitute a committee consisting of
himself, Secretary (Industry), Secretary (Forest), Secretary (Social Welfare)
to have the factual information collected, and consider, whether, it would be
feasible to permit the industry to carry on mining operations. If the committee so opines, the matter may
be placed before a Cabinet Sub Committee consisting of Minister for Industries,
Forest and Tribal Welfare to examine the issue whether licenses could be
allowed to continue or whether expedient to prohibit further mining operations;
·
In cases where similar Acts in other states do not
totally prohibit grant of mining leases on the lands in scheduled areas,
similar committee of Secretaries and State Cabinet Sub Committee should be
constituted and decision taken thereafter. Before granting leases, it would be
obligatory for the State Government to obtain concurrence of the Central
Government by constituting a sub committee headed by the Prime Minister and
other union ministers.
·
The Court also felt that it would be appropriate to
constitute a conference of chief ministers and concerned union ministers to
take a policy decision so as to bring about a suitable enactment for a
Consistent scheme throughout the
country in respect of tribal lands and exploitation of mineral wealth;
·
The State Government was, therefore, directed to
stop all industries from mining operations;
·
The Court opined that since the Executive is
enjoined to protect social, economic and educational interests of the tribals,
when the state leases out the lands in the scheduled areas to the non tribals
or industries for exploitation of mineral resource, it transmits the above
correlative constitutional duties and obligation to those who undertake to
exploit the natural resources. The Court directed, that at least 20% of the net
profits should be set apart as a permanent fund as part of industrial/business
activity for establishment and maintenance of water resources, schools,
hospitals, sanitation and transport facilities by laying roads, etc. This 20% allocation would not include the
expenditure for reforestation and maintenance of the ecology.
The Convention on
Biological Diversity was inspired by the world community's growing commitment
to sustainable development. India ratified the Convention on 5th of
June 1992. The Convention came into force in December 1993. It represents a dramatic step forward in the
conservation of biological diversity, the sustainable use of its components,
and the fair and equitable sharing of benefits arising from the use of genetic
resources.
The Convention on
Biological Diversity, was inspired by the world community's growing commitment
to sustainable development. India ratified the Convention on 5th of
June 1992. The Convention came into force in December 1993. It represents a dramatic step forward in the
conservation of biological diversity, the sustainable use of its components,
and the fair and equitable sharing of benefits arising from the use of genetic
resources.
THE KYOTO PROTOCOL
The Kyoto
Protocol is the latest step in the ongoing worldwide attempt to combat global
warming. The Protocol was made necessary by the impending failure of the
Convention to obtain tangible results by its year 2000 deadline. The Protocol
will not enter into force until 90 days after it is ratified by at least 55
nations, including a sufficient number of Annex I parties so as to account for
55 percent of the 1990 emissions levels for all of those parties.
Greenhouse
gases covered by the Protocol include such common gases as carbon dioxide,
methane and nitrous oxide, as well as the less common (but believed to be more
potent) hydroflourocarbons, perflourocarbons and sulphur hexaflouride. The
heart of the Protocol, Article 3, dictates emissions reductions of these gases.
Each of the 38 industrial countries listed in Annex I to the Convention is
required, either individually or jointly, to ensure that its aggregate
anthropogenic emissions of greenhouse gases does not exceed the individual
limits (expressed as a percentage of the 1990 baseline) assigned to it.
These
individual emission reduction commitments range from a ten percent increase for
Iceland to an eight percent reduction for the European community. The United
States' commitment is a 7 percent reduction below 1990 levels. As a whole, the
reduction targets are designed to reduce, by the commitment period of
2008-2012, overall emissions to 5 percent below levels emitted in 1990.
The
Convention recognizes the importance of preserving and enhancing the earth's
natural ability to remove certain greenhouse gases from the atmosphere by
forests and other carbon stocks, referred to as "sinks"4. The removal by sinks is also a key
component of the Protocol, which allows countries to meet their commitments by
considering the effects of afforestation, reforestation and deforestation since
1990, a provision that is expected to promote cost-effective solutions to
climate change and good forestry practices.
The
Protocol requires measurements of emissions and detailed reporting by each
country. By 2008, all Annex I parties must have in place a national system for
estimating both emissions by sources and removals by sinks.5 The submission of annual inventories by
all the participant countries for review will be required as an additional
compliance measure.
Article 8 contains a procedure
under which intergovernmental teams of experts will perform comprehensive and
technical assessments of all aspects of implementation by the Annex I parties.
The experts will issue reports regarding implementation and compliance. As with
many other aspects of the Protocol, however, much work needs to be done to
identify appropriate consequences for non-compliance, and to establish the
details of reporting and the methodologies for estimating inventories.
Flexibility Mechanisms
The Kyoto Protocol includes
mechanisms such as Emissions Trading, Joint Implementation and the "Clean
Development Mechanism" (or CDM), to allow flexibility in achieving the
required reductions.
The Emission
Trading Provision
The
emissions trading provisions allow countries or companies to purchase less
expensive emissions from countries that have more permits than they need6. But the Protocol's emissions trading
provisions are limited: they contemplate emissions trading only among the Annex
I countries. Moreover, although developed countries are authorized to
participate in emissions trading for the purposes of fulfilling their
commitments, such trading can only be "supplemental to domestic
actions."7 As with most of the
Protocol's provisions, the nations must define the relevant principles,
methods, and rules for emissions trading in future meetings.
The Joint Implementation
The joint
implementation provisions of the Protocol may also provide additional
flexibility in achieving commitments. Article 6, under certain circumstances,
authorizes developed countries to transfer to, or acquire from, other developed
countries emission reduction credits from emission-reducing or
removal-enhancing projects. To qualify, however, projects must provide a
reduction in emissions or an enhancement of removals that is in addition to any
that would otherwise have occurred.
Clean Development Mechanism
The third
flexible mechanism, CDM, is set forth in Article 12 of the Protocol. Unlike the
provisions relating to emissions trading and joint implementation, the CDM
applies to developing as well as developed countries. It will allow companies
in developed countries to invest in projects such as high-tech, low emission
power plants in developing countries while sharing the benefits of the emission
reductions.
The CDM is
intended to encourage the development of low emission projects in developing
countries through voluntary participation. Like the other mechanisms designed
to provide flexibility, however, the CDM provisions are limited. For example,
the CDM provisions do not appear to cover projects that would enhance removal
of greenhouse gases by sinks. And, like most of the Protocol provisions, the
specifics of the CDM program remain to be developed in later discussions.
Climate
negotiations and international climate policy are very recent compared to other
policy issues. Thus, one cannot expect all problems to be solved at once. This
may change in the future, as climate negotiations will go on decades to come
and finally resemble international trade negotiations where small steps taken
at a time finally accumulate in the long run.
It is widely regarded
that though the Kyoto Protocol is the first step towards the reduction of
atmospheric greenhouse gases (GHG), it is a rather too timid one. There happens
to a number of reasons for this point of view.
The Protocol stipulates
GHG reduction of 5.2% in the industrialised world. As relevant reduction has
already been achieved through the economic breakdown of the eastern European
communities, real reductions have to be below this level. As most scientists or
associations recommend that GHG emissions should be reduced by 50% worldwide
and by 80 to 90 % in the industrialised world until 2100, the Kyoto agreement
is considered to be an inappropriate step. Industrialised countries, which are
mainly responsible for GHG emission, should take the first step in reducing
theses. The Protocol is inadequate in this respect.
Major
flaws of the Protocol are:
·
The Kyoto Protocol allows Annex I parties to meet
their commitments without undertaking substantial greenhouse gas reduction in
their own country.
·
Lack of sanction regime in case of non-compliance.
·
An overly long interim period that is not conducive
to early action.
Among the most
problematic part of the Kyoto Protocol is the Clean Development Mechanism (CDM)[21].
As has been stated, CDM is regarded as a mechanism for North - South
cooperation. But in reality it is a clever mechanism devised by the developed
world (read the polluting world) to actually escape from the burden of reducing
green house gases. The ultimate objective being to follow the same ecologically
disastrous path of industrialization.
The main argument for inclusion of CDM
( first put forward by Norway) is that it is cheaper to reduce GHG
emission in developing countries than in developed countries[22].
Thus if a developed country wants to cut GHG emission it could financially
assist a developing country in setting up low polluting industries. But the
credit for reducing GHG would accrue to the country financing such project.
This is however a half-baked argument, for the main reason is not the financial
cost rather the social and political costs involved. The so-called
environmentally conscious citizens of the first world simply do not want to pay
for the higher cost of cleaner fuel and shift to a more sustainable way of
life. Thus the purpose of the CDM is not to help the South but explicitly to
"assist" industrialized countries to meet their commitment to reduce
emissions.
Another basic weakness
with the Kyoto Protocol is its exclusive reliance on the percentage reduction
of GHG in order to determine the compliance of the countries to the Protocol.
Although in theory it all seems to be a positive step, in the sense that
industrilaised countries have to meet certain targets with regard to reduction
to GHG, yet the flexibility mechanism, as embodied in the Protocol undermines
all these. Infact, the flexibility mechanisms defeats the very purpose of
having a Protocol. If reduction commitments stay as weak as they are now, why
is there any need for flexibility at all? The CDM and Emission Trading
provisions means that a industrialized country need not change to clean
production technologies, yet meet its commitment under the Kyoto Protocol.
Besides, Emission Trading
mechanism needs further elaboration for it has the potential to defeat the
whole purpose of having the Protocol. Any emission scheme must guarantee that
traded emission rights are based on reduction for climate protection measures.
GHG reduction from the economic breakdown of Eastern Europe and the erstwhile
USSR should definitely be excluded from any emission rights deal. In fact the
first such deal, post-Kyoto, has been struck between two most likely partners:
Russia and Japan. Japan has to meet a difficult target of six per cent cut from
1990 levels. Russia can easily meet its target of zero percent rise in
emissions because of the shutdown of inefficient industries due to economic
crisis.
Emission trading thus
needs strict and clear verification and monitoring rules.
The
Convention on the Control of Transboundary Movements of hazardous waste and
their
disposal came
into existence in March 1989 upon the signing of 118 nations. The Convention was aimed at primarily being
the instrument to monitor the transboundary movements of hazardous waste rather
than prevent it.
The lack of
preventive approach to waste management has led to the generation of more and
more hazardous wastes especially in the developed countries of the world. However an increasingly concerned and
knowledgeable public in these countries have meant fewer and fewer places to
dump these hazardous and toxic wastes.
The effects of these have been an increasing pressure to export toxic
wastes. However, there is also an
economic pressure to import hazardous wastes by the developing countries from
the developed world. The pressure meant
to be put on industry and governments by the public in the developed countries
has had the unforeseen effect of causing waste generators to seek the export of
the problem to the Third World and eastern European countries. But it must be pointed out that the pressure
could have been contained were if not for the disproportionate levels of wealth
existing in the world today. Due to an increasing debt burden and low income,
less industrialized countries face the terrible pressure to accept trash for
cash.
In 1972, the
Stockholm declaration of the United Nations Conference on the human environment
stated clearly in Principle 21:
“States have ...... the responsibility to ensure that the activities
within their jurisdiction or control do not accuse damage to the environment of
other states or of areas beyond the limits of national jurisdiction.”
The Convention has three key objectives.
·
To reduce the transboundary movement of
the hazardous wastes to a minimum, consistent with environmentally sound
management.
·
To dispose the hazardous wastes as lose
as possible to the source of generation.
·
To minimize the generation of hazardous
wastes in terms of quality and hazardousness.
THE BASEL BAN
Following the adoption in 1989, the Basel
convention was denounced as an instrument that served more to legitimize
hazardous waste trade rather than to prohibit what many felt was a criminal
activity. The African group of countries and other developing countries and
environmental NGOs condemned the Convention for it failed to prevent the
movement of hazardous wastes. In 1994 a unique coalition of developing
countries along with environmental action group Greenpeace managed to pass by
consensus what has come to be known as the Basel Ban. The Basel ban decision
effectively banned as of 1 st January 1998, all forms of hazardous waste
exports from the 29 wealthiest and most industrialized countries of the OECD to
all non-OECD countries.
REFERENCES
1. The Environmental Activists’ Handbook Vol I and II, Socio-Legal Information
Centre, (2000, 2002), Dutta et. Al
2. The Citizens Fifth Report, Aggarwal, Narain.
CSE, 1999, New Delhi.
3. Ecology and Equity, Guha and Gadgil,
4. Kyoto Protocol: Brack et al. 1998
[1] Human Rights Law Network, New Delhi. 65 Masjid Road Jungpura, New Delhi, 110014 [email protected].
[2] The ICELA VS Union of India ( AIR 1996 SC 1446)
[3] AIR 1996 SC 2715
[4] Joseph L. Sax, The search for environmental rights, 6 (1990)
[5] AIR 1997 Del 301
[6] The Supreme Court in M.C. Mehta Vs Kamal Nath and others [1996 (9) SCALE 141]
[7] 1996 100 Cal WN 617
[8] AIR 1993 Ker 1
[10] The Tragedy with the Hirakund is that more than 6,000 families have not received any compensation so far. (Max Martin, 1997, Out of mind and sight, Down to Earth, Pg 57)
[11] The Citizen Fifth Report, CSE, 1999
[12] Indian Express, New Delhi, Nov 23, 1997
[13] Denzong Ney Sol, pryer book of the Sikkimese buddhist, refer to the Yuksom region as the sacred and hidden land. From Yuksom to the peak of the Kanchenjunga is considered as te most sacred and is believed to be the host of 108 hidden sacred lakes.
[14] 1997 (2) SCALE, 435
[15] AIR (3) SCALE 437
[16] 1998 (5) SCALE (SP)
[17] 1998 (60 SCALE (SP) 17
[18] 2001 (1) SCALE 71
[19] 2000 (4) SCALE 163
[20] 2000 (6) SCALE 582
* The oustees of the Bhakra Project are still fighting for their compensation and the land allotted to them are barren land with absolutely no water. A few of these cases are pending in the Supreme Court.
4 Convention , Article 4, P 1
5 Kyoto Protocol Article 5
6 The first such deal,
post-Kyoto, has been struck between two most likely partners: Russia and
Japan. Under the agreement Japanese companies would invest
in 20 Russian power plants and industries to cut greenhouse gas emissions.
These reductions of Russian emissions would be added to the Japanese carbon
dioxide balance sheet.
7 Kyoto Protocol Article 17
[21] Article 12 of the Kyoto protocol
[22] It is argued that the cost to reduce one tonne of GHG would be US$120 in the developed whereas the cost in developing countries would be only US$ 14 - 23,( Janet Kelly reported in Down to Earth, August 1998).