Courting green

When the executive fails, people seek redressal from courts. In some cases, the courts have merely put the seal of approval on the actions of citizens' pressure groups. In others, the remedies have only addressed the problems in part. The earth still bleeds in Bichhri, the waters still run red in Patancheru and the executive is yet to be penalized

By Max Martin, Rajat Banerji
Last Updated: Sunday 07 June 2015 | 21:11:47 PM

Courting green

-- ON FEBRUARY 10 this year, Machu Dandavate, the deputy chairperson of the planning commission, underlined the reason behind a phenomenon which has lately taken the country by stem. Judicial activism - the intervention of the judiciary to stem the rot, especially in the field of environment and its protection - is the byword today. Addressing a seminar in Vellore Engineering College, Tamil Nadu, Dandavate squarely blamed the 'non-activism' of the executive and the legislature for forcing the judiciary to step in.

From the oil one fills in his or her car to the attempts to save the Taj from air pollution - the long hand of the judiciary has been reaching out everywhere, shaking the very foundations of the nation in the process. The year 1996 had seen a rush of environmental judgements (see box. Boiling point). May be it was not entirely coincidental that Justice Kuldip Singh's (the 'green judge') term as a judge in the apex court expired at the end of the year. In his final year in office, the learned judge was particularly active in meting out punishment to environmental 'goons'. In fact, a section of environmental lawyers believes that the courts betrayed a distinctly pro-industry attitude before Singh appeared. Colin Gonsalves, a Mucabai High Court advocate who has been involved in environmental litigation for several years, says, "There is no guarantee that the courts will not revert to their earlier industry-friendly attitude. Unfortunately, such inclination of the courts is almost entirely dependant on the judge involved."

The Indian officialdom's apathy is legion. Despite being armed with information and powers that could lead to immediate action, agencies entrusted with ensuring that the country's rivers, lakes, coastlines and forests were protected have repeatedly failed in their duties. Now, besieged by directives from the courts, then agencies and departments have been rudely awakened from their stupor and pushed into a hitherto unheard of arena: that of accountability. In Bichhri, for instance, the Rajasthan pollution control board had failed to bring to public notice that effluents from the units producing m-acid, a chemical, had poisoned the groundwater and the aquifer. With the courts showing a sudden interest in environmental issues, such agencies had no option but to make public their findings. None has been spared; in a use involving import of hazardous wastes, N R Krishnan, the then secretary, ministry of environment and forests (MEF), was severely rebuked by the apex court.

The reaction has been predictable. The highest offices in the land have initiated steps to put an end to the citizen's approach to courts. But the judicial juggernaut troubles on, shattering the popular belief that in the contest between environment and employment, the latter always wins. The courts have been understanding, though; most of their orders have carried directives that workers be adequately compensated. At the same time, the messsage to polluting industry has been clear: shape up, or shut down.

There have been instances, though, when many have felt that they got a raw deal from the courts. "There have been murmurings of dissatisfaction," says Rajeev Dhawan, a senior Supreme Court (SC) advocate involved with environmental litigations for some years. The manner in which some decisions were arrived at often reminded one of a swashbuckling entity." Also, the belief that the SC had become a first resort rather than being the last, has grown. Former Chief justice of India, P N Bhagwati, agrees: "In disputes, the first trial action should not be before the SC, but a tribunal. Mass orders arrived at by the SC leave many of the affected parties with the feeling that they have not been heard."

While there is no doubt that the orders passed were all to good effect, the decisions taken have left a lot to be desired. Most importantly, the courts seem to have let off the pollution monitoring agencies very lightly. The present situation of a grossly threatened environment has come about as these agencies, charged with ensuring that industry operated within the prescribed rules, had abdicated their duties. And the courts seem to have almost missed the point in not directly addressing this failure. Also significant is the question whether the courts art qualified to take decisions that executive agencies should have taken. Shouldn't these very executive agencies he the ones to be penalised first fur failing to do their duty? In the following pages, Down To Earth examines four representative cases - Bichhri (Rajasthan), Patancheru (Andhra Pradesh), the Delhi ridge and the Span Resorts in Kullu (Himachal Pradesh) - to study the efficacy of court decisions in environmental litigation.

Not quite in order

Patancheru: water woes

Agricultural land in Patancher AN INDUSTRIAL estate in Andhra Pradesh's (AP) Medak district, Patancheru lies just off the Hyderabad-Pune highway. Save the electricity lines that snake across the undulating landscape and the unhurried public transport, the region seems untouched by the 20th century. But an insidious by-product of industrialisation has wreaked havoc on the lives of inhabitants of neighbouring villages. Untreated industrial effluents from the estate let out into the Nakkavagu drain have poisoned the groundwater, affecting not just hundreds of acres of agricultural lands but also the drinking waters of about 15 hamlets.

According to the Status of Environment in Andhra Pradesh, Citizen's Report, 1990, published by the Academy of Gandhian Studies, Hyderabad, groundwater pollution due to effluent discharge from industries in places such as Patancheru has led to an increase in diseases, including cancer. "In Sultanpur (the affected village closest to Patancheru), there were deaths due to brain tumour, which is abnormal in these parts," notes the report. 'Since its inception, the work of the Andhra Pradesh pollution control board (APPCB) has been more on the lines of pollution-promotion, than controlling it. Most of the time, it (the APPCB) pursues loosely structured, sham legal cases," it adds.

Following the filing of a PIL in 1990 by lawyer M C Mehta on behalf of Delhi's Indian Council for Enviro-Legal Action, the SC directed the district judge of Medak to inspect the location and submit a report. This report, submitted in November 1995, concluded that over 100 industries were responsible for causing groundwater pollution in the region.

The judgment
In an interim order on May 10, 1996, the SC
asked the AP government to deposit Rs 1.5 crore with the High Court (APHC) towards final compensation; the compensation amount was meant to cushion the agricultural loss, calculated at Rs 1,000 per acre (0.405 ha) per year;

asked the guilty industries (instead of closing them down) to reimburse the AP government the entire amount deposited with the APHC;

ordered upgradation of the existing effluent treatment plant (ETP), and asked the APPCB to establish a common ETP (CETP); and,

ordered the government to ensure that affected villages received treated municipality water.

... and its impact
ON ENVIRONMENT: The colours of the Nakkavagu's waters remain unchanged; a brownish-red liquid flows in the drain which skirts Sultanpur's water tank. "We do not drink this water any longer. Some years ago, even our cattle had perished drinking this water," says Vijaya Lakshmi, sarpanch (head of the panchayat) of Sultanpur. Farmers say that the burn-rate of the seedlings they sow in their fields is high, and yields have dropped. Says Butchappa of the same village, "Our yields have come down so much that for most of the year, young men from these villages have to seek employment in the town (Hyderabad)." It is a tale which is echoed by all affected villages.

ON THE POOR: Following the sc directives, water-tankers have become a common enough sight in the villages. When a tanker rumbles to a stop at the village square, women and children, most of whom have been in queue for over an hour, immediately get into the business of filling their buckets and other utensils. The water is from a municipal supply system at Patancheru.

Villagers claim that 'officers' visit their villages quite often, taking notes and making the appropriate noises. But little else follows. "The factories still seem to be releasing their dirty water (effluents) into the Nakavaggu drain," say villagers. Children, who develop rashes and skin irritations after they bathe or swim in the tanks or ponds, suffer the most. These tanks and ponds are fed by the groundwater of the area.

ON GOVERNMENT AGENCIES: At Patancheru, the APPCB has upgraded the ETPs and is monitoring some 150 units, besides recovering the Rs 1.5 crore (paid by the state) from the polluting units. The APPCB claims to be working hand in other regions too. "in the first week of February (1997), we had shut down the S 0 L Pharmaceutical Industry at Jeedimetla, Hyderabad, as it was discharging untreated effluents into an open drain, . states V P Jauhari, member secretary, APPCB. "It is not that the APPCB is not doing its duty," he adds. He claims that the city municipality had spent Rs 15 crore to divert two drains from emptying into the Hussainsagar lake. "All corrective measures take time and money, and the effort to cleanse this city of pollutants is certainly on."

However, officials cannot provide any satisfactory answer as to why such a situation arose in the first place; clearly, they failed in their duty, which is to ensure that an unit begins operations only after getting the necessary clearances.

What the law missed
The interim order has taken care of important issues such as treated drinking water for affected villages, and compensation for loss in agricultural yields. The court directives avoided harsh steps such as closure of the polluting units which would have compromised the livelihoods of the employees. By ordering installation of the CETP, the court had given a chance to limit the damage caused by polluting units.

But it is worthwhile to note that the water in Nakkavagu drain is still coloured, the groundwater still smells and it still remains brackish. While the APPCB claims that efforts to "cleanse industrial pollutants is on", the orders so far have not pulled up the board for its lackluster efforts. it remains to be seen whether the final decision of the court pins the responsibility on the guilty industry.

Delhi ridge: a lifeline in danger

In Vasant Kunj (south-central< (Credit: Amit Shanker / cse)THE ridge in Delhi (the capital's 'lungs') has been mired in controversy for the past two decades for its rampant abuse. This rump of the Aravalli hills, a discontinued sparse forest of kikar, babul, shisham, neem and eucalyptus, has always absorbed pressure from a metro that is bursting at its seams. It has provided space for housing, mining and other temporal and spiritual demands - petrol pumps, schools and places of worship, The officialdom has chipped off its bit, carving out permanent camps for paramilitary forces, an army shooting range, a polo ground and the odd office building.

Encroachment of the ridge was put on the judicial agenda with a case filed by environmental lawyer M C Mehta in 1985. Mehta contended that since the ridge was notified as a reserved forest (RF) under the Indian Forest Act (IFA), 1927, all encroachments on it in violation of the IFA provisions would be 'illegal' - irrespective of the government's permission. Records show that 796 hectares (ha) of northern and central ridge were demarcated as RF in 1913, while in 1980, by a notification under the IFA, 20 sites in northern, central and south-central ridge were demarcated as protected forests. The plea was to apply all provisions relating to RF to the ridge.

The Bhatti mines
One of the specific regions Mehta drew the court's attention to were the Bhatti mines. Quarrying of red and started in the Bhatti hill area (southern ridge) in 1959. In the '60s, skilled labourers from Rajasthan, Haryana and Punjab migrated to the area to work for private quarrying companies. As private operators repeatedly flouted safety norms, the Delhi State Industrial Development Corporation took over the mines in 1975. Planned settlement of the mine workers took place in three colonies (Sanjay Colony, Indira Colony and Balbir Nagar) and they were recognized as permanent residents of the area. In May 1990, seven labourers died when a quarry caved in. The quarries were shut down as a result. In 1991, the area that included the quarry and the settlements was declared part of the Asola wildlife sanctuary.

The judgment
The court
ordered that all encroachments in the notified ridge area be removed, including the three settlements housing around 30,000 people; the deadline for the removal was October 31, 1996 which was extended till March 31, 1997 and again, for another three months;

set up a supervisory committee for the settlement of claims of all those who have to be removed from the area.

The Vasant Kunj hotel complex
The Vasant Kunj case is part of the main ridge case. An affidavit was filed by S Subramaniam, member of Citizens for South-Western Lake Wilderness and other citizens' groups in September 1996. On June 17,1995, the Delhi Development Authority (DDA) had issued a notification increasing the allocation for commercial development in a certain south Delhi area from eight ha to 65 ha. The main ingredient of this development plan was a proposed complex of 11 hotels and a wide road to be built over a green tract near Vasant Kunj - a geographic extension of the south-central ridge.

The judgment
The SC directed
that the government constitute an environment impact assessment (EIA) authority (for the national capital region) under the Environment Protection Act (EPA), 1986, headed by a retired High Court (HC) judge, which would look into - and issue directives on - such environmentally sensitive projects. The authority would include experts in environment protection and pollution control appointed by the Central government. Construction of the complex was stayed till the committee cleared the project.

To this effect, an urban EIA body has been set up by the ministry of environment and forests (MEF) under the chairpersonship of R K Shukla, retired judge of Allahabad HC. The committee is yet to give its final report.

... and its impact
ON ENVIRONMENT: In Bhatti, it is still unclear how the villagers' eviction will benefit the sanctuary. According to Iqbal Malik, NGO activist and member of the committee for management of Asola and Bhatti, the sanctuary cannot survive without the villagers, who have proven to be a check on illegal quarrying in the region.

In the Vasant Kunj case, legally, action on the project cannot be taken until the urban EIA body gives the go-ahead. Citizens and environmental NGOs feel that they have been left out of the decision-making process. Aggrieved NGOs had moved court for the inclusion of independent experts in the panel, but the court reportedly refused to tackle such details. Meanwhile, a group of NGOs including Srishti, Kalapavriksh and Citizens for the Preservation of Quarries' Wilderness has come up with an alternate EIA for the area.

Even when the stay order was on, construction of a particular hotel had been reportedly going on at the controversial area. Also, the DDA went ahead with its scheduled plan of inviting architects to submit designs to develop the area.

ON THE POOR: In Bhatti, eviction Orders to the hapless resettled workers were issued by the Delhi forest department as the sc case on ridge conservation progressed. The orders incorporate the prospect of relocation to another village, Joanapur. Says Anita Soni, a social worker functioning in the region: "The axe fell on the innocent poor settlers, leaving out massive ecologically harmful encroachments by the rich." She points out that in the southern ridge, sprawling farmhouses and luxury week-end resorts of the rich and the famous have proliferated over the last 20 years.

The Delhi unit of the National Alliance of Peoples' Movements (NAPM), a loose network of various peoples' movements, is trying to move the court regarding the rights of the settlers. NAPM activists claim that the proposed shifting of the workers' settlements is economically unviable. According to an affidavit submitted by the Delhi government before the SC, the shifting would cost more than Rs 20 crore. Activists say that the workers may not be the beneficiaries, going by the government track record in evicting and resettling people. Also, it might not be the most ecofriendly act either. Points out Vimal, an NAPM convenor: "Situated five kin away from the present settlements, Joanapur also is a ridge area."

ON GOVERNMENT AGENCIES: NGOs feel that while the issue should be dealt with in totality the cases are being handled in a piecemeal manner. Too many agencies are taking care of the ridge, with little coordination.

In the case of Vasant Kunj, the DDA's plans for development do not seem to have taken into account the water scarcity in the area. The alternative EIA prepared by NGOS shows that there will be major water crises in the area once the project comes up. The hotel complex and the upcoming golf course would require six to seven million litres of water daily-, the Delhi administration has not, till now, been able to reduce even the existing demand-supply gap.

What the law missed
The court orders in the ridge cases have handled only the proverbial tip of the iceberg. "The legal action often failed to see things in totality," points out Ravi Agarwal of Srishti, a Delhi-based NGO involved in drafting an alternate ridge management plan. Tubular vision affected the court judgments. Often, the orders hit the wrong target; a case in point is that of Bhatti's poor migrants, who will have to make way for the sanctuary, while vu, farmhouses go untouched.

"What we badly needed was a more eco-friendly land use pattern for Delhi," Agarwal points out. But the court orders could not meet this need. instead, conservation at the judiciary's behest helped to vest more powers with the kaleidoscopic set of official agencies which now have jurisdiction over the ridge.

Span Resorts: motel mayhem

A view of the Beas river:crati THE September of 1995 left its mark on the Kullu-Manali valley in Himachal Pradesh (HP) in more ways than one, While unprecedented rains and an angry Beas river caused widespread havoc in the hills, the aftermath was marked by the exposure of a tale of alleged corruption and nepotism. On February 25, 1996, the Indian Express reported that Span Resorts, owned by Span Motels Pvt Ltd (SMPL), had 'diverted' the Beas - after the floods - by creating a new channel. The report indicated that Kamal Nath, as the Union minister of environment and forests, was instrumental in regularizing forest land encroached upon by SMPL. It also disclosed that Nath's relatives were the promoters of SMPL.

A public interest litigation (PIL) followed. On December 13, 1996, the SC ordered the cancellation of forest land ]eased to the motel, directed Nagpur's National Environmental Engineering Research Institute (NEERI) to assess the damage caused by SMPL and issued a show-cause to SMPL as to why it should not pay for the damages, But SMPL's direct responsibility for the damages remains debatable (Down To Earth, Vol 5, No 18).

The judgment
In delivering its ruling, the SC laid down the principle of 'doctrine of public trust' which implies that all natural resources were common property, held by the government in trusteeship for the free use of people. Declaring that the Himachal government had committed patent breach of public trust by leasing an ecologically fragile land to the hotel management, the SC

quashed the deed of 27.2 bighas (2.22 ha) of forest land leased to SMPL in December 1993 by the state forest department; the HP government executed the order on February 25, 1997;

directed NEERI to "inspect the area and if necessary, give an assessment of the cost which is likely to be incurred for reversing the damage caused by the motel to the environment and ecology of the area"; NEERI estimated the cost to be Rs 4.645 crore;

concluded that the motel was to pay compensation for the restitution of the area's environment;

directed the motel not to discharge untreated wastewater into the river, and asked the government to inspect other hotels in the area to prevent similar discharges.

... and its impact
ON ENVIRONMENT: The judgment concerned itself with only a one-km stretch of the Beas. The floods and monsoons had ravaged the entire river bed. The river's fury can also be ascertained from the manner it devastated a cluster of pine trees near Manali. Apart from a few municipalities like Patlikhul which made revetment works on the river-banks and undertook repair work of the national highway, little else has been done. Interestingly, the local population carries on its ecologically destructive practices on the river's slopes. Only a few trees remain, and these too are fast disappearing due to local demand for firewood.

ON GOVERNMENT AGENCIES: The state forest department has taken over the 27.2 bigha-plot of land which had been leased to SMPL. The basis of quashing the lease deed to SMFL Was the fact that the land - classified as 'banjar IIIrd class' (a classification of infertile land) - had been encroached upon by the motel. As directed by the SC., the HP pollution control board has conducted a study of Kullu and Manali towns, and has asked all hotels not to discharge untreated sewage into the Beas.

What the law missed
In its judgment, the court held SMPL responsible for having degraded the environment by its "illegal constructions and callous interference with the natural flow of the Beas". While SMPL may have carried out bank protection work and planting of trees before obtaining appropriate clearances, the conclusion that this was responsible for degrading the environment could be a hasty one. Central pollution control board (CPCB) and NEERI teams, entrusted with preparing a report, failed to draw similar conclusions. "The works executed (by SMPL) in 1993 were bank protection works, not so as to change the regime or the course of the river. A medium flood occurred in 1994. Partly due to the protection works, no appreciable damage occurred during this flood. The main current still continues on the left bank," noted the CPCB report. The bank protection work had commenced after the 1988 floods. SMPL insists that it had obtained verbal permission from the state government at the time. The court dismissed SMPL's efforts to protect its work (especially the bank protection work) as the company had commenced this work well before it had procured clearance from the divisional forest officer, Kullu.

The work SMPL had undertaken while 'encroaching' on forest land - planting trees - also needed to be seen more pragmatically. There is difference between felling trees and planting them; SMPL deserved to be castigated and penalised if it felled trees, but perhaps not for tree-planting. SMPL could have been asked to go ahead with the planting of trees, without being granted a lease deed.

In fact, the then minister of environment and forests, Kamal Nath, can be held guilty of treating the regularisation of SMPL's tree-planting exercise as an isolated incicdent - one in which he had a personal interest. Instead, he should have treated this as a policy issue and changed forest regulations in such a way that not just SMPL but anybody could plant trees on government forest lands without facing prosecution. Today, the laws are such that a rural community or villager can be prosecuted if he or she dares to plant trees on deforested government land. The laws of the land should prevent tree-felling, not tree-planting. Here, the SC failed to take into account this ludicrous dimension of the current governance of India's forest estate.

Thus, the PIL failed to ascertain the following things:
Whether the river had indeed been diverted;

Whether this alleged diversion had indeed damaged local environment;

Whether the penalty imposed by the state forest department was inadequate or in contravention to the Forest (Conservation) Act, 1980; and

Whether there was cause for concern over the manner in which the forest lands had been regulansed.

There were some other issues which both the PIL and the judgment failed to notice. For instance, who was to be blamed for the extensive damages the Beas and the monsoons of 1995 had caused on the remaining course of the river? Also, neither the SC nor the CPCB or NEERI took into account the fact that the slopes along the river had been systematically denuded by the locals, a practise that could well have been a cause for the river banks to be easily washed away.

The verdict

WHILE the courts have played their role by increasing awareness against environmental degradation and ensuring that executive agencies respect the environmental laws of the land, the results have left more questions unanswered. In Bichhri, for example, the Courts had an opportunity to penalise the polluters with exemplary Cities and resolve the issue of compensation speedily, which would have put the fear of god into other erring industry units.

In the Span Resorts case, by holding the motel responsible for environmental damage caused by a rampaging river, without enough evidence of the same, the court's ruling merely highlights the fact that the SC needs to be better equipped with technical know-how while dealing with such cases; the SC as an institution is not specialised in environmental issues.

Also questionable is the court's dependence on single institutions such as the NEERI, making it the sole technical consultant in most of the cases. While the NEERI has a qualified brain-bank, the manner in which it arrives at conclusions is not open to examination by independent agencies; nor is it open to public querrying.

The SC itself has often underlined the need for a special environment tribunal to handle such cases. Former Chief justice P N Bhagwati's recommendations to the government to set up environmental tribunals has not resulted in any significant response. Instead, the judiciary itself has responded with a call to establish 'green benches' (see box. 'Green' benches).

In the Delhi ridge case, the SC has raised the issue of encroachment and its possible environmental impacts. But there has been no effort to streamline the management of the ridge, now in the hands of more than half a-dozen agencies. Environmentalists point out that the ridge can be saved and restored only if it is treated as a single geographical entity, with uniformity in management.

While the final decision is still pending in Patancheru, the issue that comes to mind, as it does in all the above-mentioned cases, is that the regulatory agencies seem to have got away relatively lightly. While it may be argued that exemplary action may not have gone down well with the executive, a blanket pardon has the chances of sending a different message altogether: that regardless of inaction, the executive would be above all law.

What are needed from the courts now are broader outlines for an efficient, accountable, people-friendly executive to handle environmental problems. Courts need to remain the respected last bastion of justice, its last resort. So far, no positive step seems to have been taken on this direction. The courts cannot afford to be ports of first call on environmental issues.

The underlying fact remains that the court's actions in environmental governance have been necessitated by the failure of government agencies and the political leadership, Yet, at the same time, it is imperative to note that the government agencies and other regulatory mechanisms have to be pressurised to deliver. The courts must see to it that they do.

Disbalance in the environment has almost always been accompanied by dissident voices on the way in which resources have been managed, used or abused. The legal structure of a system only assists this effort by ensuring that excesses of any nature are avoided. Courts can, thus, only create the bargaining endowments for activism, through which social and political struggles can be strenghthened.

As DTE had pointed out almost a year-and-a-half back, the need of the hour is to rebuild regulatory systems that uphold the laws. Instead of getting involved in executive decisions, the courts could demand that regulatory agencies such as pollution control boards ensure that ambient pollution levels confirm to the standards set by the government.

By taking direct action and forcing industries to down their shutters, the courts have virtually opened a Pandora's box, bringing out the employment-environment stand-off into the open. While this may have caused immediate relief to the regions concerned, it has exposed the courts' functioning to public ire; large demonstrations were held outside the SC premises.

The chief minister of Jammu and Kashmir, Farookh Abdullah, said in response to the SC ban on non-forestry works in forest lands: "We have poles and wires but no power and the Supreme Court has forbidden us from cutting forests. So if the Kashmiris talk of not staying with India, are they to be blamed?" However irresponsible this statement may be, the question which arises is that if political leaderships could react so strongly, how would people, denied their daily bread, respond?

This, obviously, is not the way. If pollution control authorities are unable to perform their duties, they need to be hauled up for their incompetence and for abetting law-breakers. Regulation of emissions and wastes, effluent treatment methods and fuel quality, vehicle technology and forest policies are the responsibilities of preventive and regulatory authorities, not the courts.


Whether the SC passed the correct executive orders
The mum are not equipped to deal with environmental issues. They do not have the expertise, the material on the basis of which they can judge the effects of what are alleged to environmentally disastrous activities.

Normally , the judiciary should not be taking direct executive decisions. But when one limb of a democratic system gets crippled, the judiciary extends its support. This, however, is not a long-term solution, ban a short-term catalyst.

The judiciary is net taking executive decisions. It is simply telling what the executive is supposed to do. The executive is bound and obliged under law to perform its duties. If it does not do its work well, then it is committing a breach of law. And it is the duty of the judiciary to haul it up.

Whether the SC is a place of last resort, or that of first
In disputes, the ton trial action should not be before the SC but a tribunal. The SC is to be approached when all other venues of justice have been exhausted. When it becomes the first place of appeal, there will be a feeling that either of the parties haw not been heard adequately. Each party has to be heard, before a decision, is taken.

The term 'judicial activism' is a misnomer. The judiciary is merely discharging its duties. But when the judicial notoriousness is shocked beyond a point, it steps in to ensure that the law of the land is implemented. This happens when them is a gross abdication on the part of the executive, or when the judiciary steps in to support the executive, which has been failing to discharge its duties, for some, reason.

One view is that the judiciary will now raved to its normal neutral self, and that the swashbuckling activity of the past few years is enough to activate government agencies who are responsible for environmental protection.

There is a basic misconception here, as Article 32 of the Constitution gives right to every citizen of India to approach the SC in case of violation of fundamental rights. So we cannot any that the SC is becoming the forum of first choice. It is the choice of the people. But, in traders that involve particular states, the SC can say that the states are in a better position to deal with them and refer or pas on the any to the concerned High Court(HC).

It is a disinformation campaign. The law minister say, there are three crore cases pending in all courts in the country!...The minister's ire is directed against PILs. PILs can only be filed in HCs and the SC, and do not affect the pending cases in lower courts. As for the SC, only 12,000 cases are pending now. And only about six judges, out of a total of 26 in the SC, handle PILs. The 20 other judges cam get busy with the other pending cases.

Let me give you an example of the significance of open access to the court. In the '80s, during the Bhagalpur blinding incidents in Bihar, a citizen wrote to the SC, about the ghastly act in a postcard. The mud accepted it as a writ petition and the state was asked for an explanation. It is a very important right of the citizen under Article 32 of the Constitution to seek legal redressal from the SC when his/her fundamental rights are in question.

Whether tribunals am a better way of dealing with issues
I had recommended in one of my judgments that the government most set up an environment tribunal and an environment commission. Disputing parties could approach the tribunal which could ask the environment commission to prepare a brief for it. This brief would contain at relevant details of the case, based on which the tribunal could take its decision. And if a party was not satisfied with the decision, they would have the option of approaching either the HC or the SC. I do not understand why the government has not responded that directive. Maybe there is pressure, from industry, or some other pressure I do not understand.

Certainly, as the intended composition would have offered balanced judgments.

There have been various court directives for the setting up of a specialist body. But the ministry of environment and forest (MEF) has so far failed to comply.

Several judgments have pointed out the need for specialised environmental comes. Kuldip Singh once said that if nothing comes up, courts should at least set up 'green benches'. HCs can also be effective as they have vast powers under Article 226 of the Constitution.

On the long-term effects of the SC's judgements
The danger of the courts taking executive decisions is that they tend to act directly, without getting the proper material. The danger is that government agencies may get careless, and may believe that the people would go to the courts in all instances. The court's action should be to make the agencies accountable and transparent. I entirely blame the government for the SC becoming the place of first resort, rather than a place of last resort.

The disadvantage of such judicial action is that often these decisions lack long-term audit, because there is no social or economic statistics that measure the success or failure of such action. For example, in Delhi, there is no way of assessing the extent to which pollution loads may have reduced since the judiciary expressed interest in the subject. In substance, nothing happens, and this amounts to a wasteful futility.

A mixture of soft and harsh directives to government agencies is often seen as a workable formula by the judicial system. The justification offered is that institutions responsible for environmental protection had failed to discharge their duty, which necessitated strong action by courts.

What the SC had been trying to do was to make the MEF and other agencies such as pollution control boards work. People have to be aware of their rights and duties. If the government or concerned agencies fail to do their duty, they have to move the court .

Nothing happened for 50 years. Now everybody is worked up. The SC orders reflect this growing impatience.

On any other point
While I have the highest regard for NEERI and Dr Khanna (its director), I feel that a pool of institutions to examine instances and provide data to the courts, rather than a single one, would inspire confidence in the public. I am not in favour of one body or organisation being made responsible for technicalities in environmental cases.

It would be wrong to expect this form of judicial action to . the environment. Fifty judges cannot improve the environment of Delhi, just as 500 judges cannot save the environment of India. It is the executive that has to do its duties. Only then can we aspect long-term benefits.

There exists a belief that the judiciary is convinced that 'soft' (mandamus) orders will not do in cases concerning PILs. Hence the strong decisions they take when a PIL is submitted in their courts. Usually, the way in most ordinary cases is to issue soft orders, directing the concerned authorities to do their job.

In a petition filed by the Goa Foundation against Zuari Chemicals and Fertilisers in Mumbai, the petitioner had agreed to pay the cost for an environmental impact assessment (EIA). NEERI was chosen as the consultant, but it pushed its fee up to Rs 10 lakh, which obviously the petitioner could not afford. But they were in fee as the court had directed NEERI to conduct a study. I had to later argue in court for triples in a different agency, which the SC eventually allowed. The court has often sought the help of various Indian Institutes of Technology and other bodies for EIAs. What is important is the reliability of the agency concerned... As for judgments that would involve shifting of industries, there needs to be sensitivity towards the rights of the workers.

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