What the judiciary needs to do is to put the heat on the regulatory and executive agencies of the country and improve the country's environmental governance systems
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.
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