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ENVIRONMENTAL LAW
P. Leelakrishnan*
I INTRODUCTION
DURING THE year 2000 courts in India adopted different methods for solving
the problems of protection and improvement of environment. Constitutional
issues were raised and decided; doctrines evolved in the past were explained;
practices usually adopted in environmental processes were examined; limits of
judicial review in the area were demarcated; contours of coastal zone
management were looked into; widening horizons of protection of forest and
wild life were probed into; and vexed questions of pollution control were
examined. Amidst all other cases, stands tall the Narmada dam case with
divided opinion among judges on the modes of environmental clearance. Perhaps
in the days to come these pronoucements would afford opportunities for more
juristic exercises and dialogues on development projects vis-a-vis rehabilitation
at a massive scale. As it ought to be, the idea of sustainable development is
very much in the minds of courts whenever they embark upon resolution of
controversial issues.
Constitutional mandate
In M.C.Mehta v. Kamal Nath,A the Supreme Court held that a notice for levy
of pollution fine issued in pursuance of one of their earlier orders was without
reference to any laws and hence was neither valid nor justified on the ground
of doing complete justice under article 142 of the Constitution. Article 142 with
all its potentialities cannot be used to build a new edifice by ignoring express
statutory provisions dealing with a subject and to achieve something indirectly
which cannot be achieved directly. However, the court ordered for a fresh notice
for the levy of exemplary damages from the respondents. Referring to
constitutional provisions in articles 21, 48A and 51A(g), the court made it clear
that "any disturbance of the basic environmental elements, namely, air, water,
and soil, which are necessary for life', would be hazardous to iife' within the
meaning of article 21 of the Constitution".
In M/s. Chandmari Tea Co. v. State of Assam5 the Gauhati High Court
sought strength from the directive principles and fundamental duties to justify
deprivation of privileges of persons and plantations for protecting the habitat of
wild animals. In Kenchappa v. State of Karnataka6 the Karnataka High Court
examined acquisition of lands surrounding a residential village for industry siting.
The court referred to articles 47, 48A and 51A(g) of the Constitution and held
that it was the duty of the state to protect the lands and the fundamental right
of the villagers to have access to the land reserved for greenbelt around their
village. In Nature Lovers Movement v. State of Kerala1 the Kerala High Court
laid emphasis on the constitutional concepts, such as, environmental protection,
agricultural production and excellence in all spheres of individual and collective
activity. Interestingly, this was done to make valid a seemingly eco-unfriendly
act, namely, rendering of titles to 'settlers' and 'encroachers' in forest.
that in a federal set up like India whenever any such inter-state project is approved
and work undertaken the states involved have a responsibility to co-operate with
each other,
11 AP Pollution Control Board v. M.VNayudu, AIR 1999 SC 812 and Vellore Citizen's Forum v.
Union of India, (1996) 5 SCC 647.
12 Supra note 3.
13 Id. at 3803, 3804.
14 Id. at 3804.
impact is well known does not ipso facto make the project environmentally
benign.
Problems
In Narmada Bachao Andolan v. Union of India,15 the petitioners challenged
implementation of Sardar Sarovar Project (SSP) on several grounds:
Environmental clearance was given without application of mind, the height of
the dam as planned at full reservoir level (FRL) of 455 feet would submerge a vast
region under water, oustees would not be suitably rehabilitated and the changes in
situation would lead to violation of fundamental rights under article 21.
In the battle for exploitation of Narmada water the award of the inter-state
water tribunal in 1979 was a turning point. The Supreme Court considered the
award as binding on all three states of Gujarat, Maharashtra and Madhya Pradesh.
The court emphasized the dire need of the nation to augment water supply in the
following words:16
Environmental clearance
It is in Narmada that the Supreme Court for the first time went into the
requisites of environmental clearance though in a few cases in the past the court
had asked an expert agency or committee to study the ins and outs of a project.
What are the essentials of an environmental impact assessment (EIA)? Can it be
done on modes other than set out by administrative instructions or regulations
framed under law?
Majority opinion
Before adverting to what the majority judges held on the question of
environmental clearance, it may be mentioned that the United States is one of
the countries where EIA is subjected to a hard look in judicial review. The
National Environmental Policy Act, 1969 (NEPA) makes it necessary to have an
EIA before a major federal project having significant impact on human
environment is accepted for implementation. There were occasions when the
15 Supra note 3.
16 Id. at 3786.
U.S. Supreme Court stopped construction of a work on the ground that the project
did not follow NEPA requirements. In the Snail Darter case,17 the court relied on
the provisions of the Endangered Species Act and stopped construction of a dam
feared to cause extermination of a particular species of fish living in the river.
The majority judgement in Narmada held that U.S. decisions were not yet
applicable because Indian laws are not modelled on the U. S. pattern. EIA under
a legal framework was introduced only in 1994 when the EIA notification was
formulated and issued under EPA. This notification is clearly prospective and is
not applicable to the clearance of 1987 as till then there was no statutory obligation
for assessment and clearance was essentially administrative. Endorsing the
clearance, the court observed:18
The court examined the events that happened after clearance to find out
whether the conditions were fulfilled. It found that impoundment was much less
than the catchment area treatment. Compensatory afforestation was almost
complete. In the court's view construction of dam would result in more regulated
and perennial flow into the river with an overall beneficial impact. Until major
work was completed, there was no question of adverse impact including the
fishing activity. Efforts were made to re-site important monuments. With the
construction of dam, water availability and soil moisture would increase and this
will support varieties of plants and animals and reduce the alleged impacts on
health. The MoEF had not abdicated its responsibility. The Narmada Control
Authority had to consider all recommendations of the environmental sub-group.
In case of difference of opinion the matter was to be referred to a review
committee in which Minister of Environment is a member. The majority was of
opinion that there could not have been a more effective mechanism than the
arrangement.
The dissent
On environmental clearance the dissenting judge had an entirely different
view. Even in 1987 it was found necessary by the Government of India to
rigorously assess the environmental impact of river valley projects. Moreover,
the order issuing environmental clearance had sought for details from project
authorities on several matters such as rehabilitation, catchment area treatment,
compensatory afforestation, command area development and survey on flora
and fauna. The condition that the rehabilitation plans were required to be "so
drawn as to be completed ahead of reservoir filling" showed clearly that
before water was impounded in the reservoir, catchment area treatment and
rehabilitation programmes would be completed. The fact that Prime Minister
gave clearance did not make any difference at all. Under the* guidelines, the
Government of India was bound to give environmental clearance only after
all necessary data had been collected and assessed and safeguards and cost
worked out.21 The judge held that until such a clearance was given further
construction work on the dam should cease. It could restart after the grievance
redressal authorities certified that all oustees had been satisfactorily
rehabilitated. This process should be repeated for every successive proposed
five meter increase in the dam height.22 The dissenting judge made it absolutely
clear that the committee of experts as envisaged under EIA notification of
1994 should carry out surveys, assess the environmental impact and so doing,
consider that the construction of the dam and other work had already
commenced.
Sustainable development
Effective rehabilitation of project affected people is (PAPs) one of the
significant indicators of sustainable development. In the Narmada case the judges
21 Id. at 3776-81.
22 Id. at 3771.
Obviously, the majority probed how the project struck a balance between
developmental needs and environmental values. They found the project had
built-in safeguards and satisfied the goal of sustainable development.
It was found that compared to other similar projects SSP had the least
ratio of submergence to the area benefitted (1.97% only). The PAPs to FRL
455 ft were being resettled with better amenities and health care. Rehabilitation
agencies were satisfied with the resettlement when they cleared the dam
height in the year 1999. The canal affected people are benefitted with more
agricultural output; they cannot be equated with PAPs. Resettlement as a
community does not mean rehabilitation in homogenous groups or resettlement
on the basis of tribes, sub-tribes, groups or sub-groups. The objective was to
fully integrate the displaced people in the community in which they were re-
settled. This is easily achievable if they were re-settled in the command area
which is more productive than the affected land. This was what the tribunal's
award had stipulated. The court concluded that the tribunal award is final
and the NCA is an independent authority as envisaged by the tribunal and
there is no reason why there is grievance against the grievance redressal
mechanisms presided over by retired judges. Acquisition for all lands required
for FRL was not made in one go. The court gave several reasons. Money
need not be blocked. Trespass can be avoided. Land need not be kept fallow
for long period. Sizable amount would be saved if weeds are not to be
removed.26 Whether these are really serious and acceptable reasons for the
delay in acquisition is a debatable point.
V JUDICIAL REVIEW
Laches
The petitioners were agitating against the dam from 1986. They challenged
the clearance given in 1987 only in 1994. No wonder the majority found 'laches'
on the part of the petitioners. It was in 1979 that the inter-state water dispute
tribunal determined the height of the dam. This remained unchallenged till 1994.
Despite this lacuna, the court entertained the petition only because the case
involved rehabilitation schemes concerning the fundamental rights of oustees.30
The dissenting judge did not agree on 'laches'. According to him public interest
is so demonstrably involved in the case that it would be against public interest
to decline relief on laches.31
VI ECOLOGICAL PRESERVATION
27 Supra note 3.
28 Id. at 3825.
29 Id. at 3828.
30 Id. at 3782-84.
31 Id. at 3771.
Ltd. v. Union of India.32 One of the projects, the bulk receiving station, planned
to be set up near BEST sub-station was held to be only a feeder plant supplying
electricity to the station which with its underground facilities and infrastructures
was in existence prior to the year 1991. New development is permissible according
to the CRZ notification in a developed area in CRZ II. The Bombay High Court
held that the larger public interest, namely, the need for the bulk receiving
station in the locality "got more weight when two public interests compete with
each other.33 In respect of other two projects the court had a different view. The
construction of helipad in the region surrounded by human habitat was without
clearance either from the Ministry of Environment and Forest(MoEF) or from
the Coastal Zone Management Authority(CZMA) in the state. The other project
for change of user from garden or playground to housing in CRZ was also
without clearance from CZMA. Both these projects were found to be violating
CRZ regulations.
Reservation of forest
Reservation of forests will affect the rights of the forest dwellers to a large
extent and the state should take protective measures when they declare the
reservation. This does not mean that the forest dwellers are entitled to any
exemption. The Madras decision in Padavettai v. State of T.N40 is an example.
Petitioners' joint family migrated to the private forest more than 60 years ago
and had been carrying out agricultural operations ever since with the benefit of
adverse possession. The petitioners refused to receive the copy of the reservation
notification and also did not respond after it was published on the notice board
of the panchayat and by beat of drum. Rejecting their claim for agricultural
lands in the region, the court held that once notification for reservation is made
and objections are not filed within the stipulated period no argument for exception
for agricultural lands from reservation can ever be accepted. In the circumstances
the pleas such as utter disregard of the rights of the citizens, violation of law and
equity and infringement of equality clause in the Constitution should fail.
Regularization of encroachment
Growth of population pushes people to move on to new and unoccupied
regions in search of shelter and livelihood. In Nature Lovers Movement v. State
of Kerala41 the question was whether the government decision to give title to
such occupiers in forests was valid under section 2 of the Forest (Conservation)
Act, 1980 (FCA) which requires prior sanction of the central government for use
of forest for non-forest purpose. The court relied on sustainable development
and adopted a super deferential attitude towards development and planning
decisions of government. According to the court, the conditions for regularisation
of encroachment are sufficient guarantee for development of agriculture, trade
and industry and for reconciliation between preservation of environment and
augmentation of economy.42 The state government took a policy decision on
11.3.1992 to assign forest areas which had been in possession and enjoyment of
the encroachers prior to 1.1.1977. Evidently, the assignment relates to lands
occupied before FCA came into being. The court said FCA does not operate
retrospectively; it checks all 'further' deforestation. No prior approval is needed
for past encroachment. Compensatory afforestation cannot be insisted on as a
condition precedent to prior approval. The government made the decision on
regularization after taking into account needs of agricultural advancement as
well as imbalance on environment. The advisory committee also had considered
all conditions including afforestation before they recommended for prior approval.
In a densely populated state, to find out equal extent of non-forest land is not
at all possible; the only way is to reafforest degraded forest. This is being done;
requirements of sustainable development are met. No wonder the court was
reluctant to review the wisdom of the executive in evolving a methodology of
their own to implement compensatory afforestation programme.43 The court
accepted the views expressed in an inquiry report and held it impossible to evict
and rehabilitate lakhs of people who had occupied the land with tacit consent of
the government for promotion of cultivation. The issue raised human problems
which have social and economic dimensions.44
According to the court, the attempt of public spirited enthusiastic people to
dislodge fair opportunity to the victims of threatened eviction is only to be
disdained. These remarks do not seem to be relevant in view of the court's
recognition of the petitioners' locus standi on behalf of the lovers of environment
as well as its awarding of the cost to the petitioners.45 According to the court the
formidable and remarkable defence of the state for regularisation of title deeds
had removed the vacuum in argumentation of those who were not parties to the
investigation. Obviously, the court approved the petitioners' plea that 'there was
environmental degradation in de-reserving the forest land or using it for non-
forest purposes by occupants/encroachers affecting the environmental
equilibrium.46 The compensation collected by the government from the settlers
is to be spent for afforestation programme. When forests are used for non-forest
purpose a dialogue on social cost and benefits in relation to environment has to
take place on more serious plane. The cost is too great to be compensated and
the gap too wide to be bridged by such a small fund.
Illegal timber
The Godavarman cases had their impact during the year under review. In
T.N.Godavarman Thirumulkpad v. Union of India,41 the Supreme Court ratified
the action of officers of the MoEF in detaining railway wagons containing
illegal timber. So doing the court went on to lay down the law. No court will
have jurisdiction to entertain any complaint with regard to the timber already
seized. MoEF has power to suspend licences, disconnect electricity to delinquent
units, sell the illegal timber and keep the sale proceeds in a separate bank. Inter-
state movement of timber can be allowed only if the collectors in the districts
of entry certify that the movement is inter state. Earlier orders were modified
with regard to three cable factories in the State of Madhya Pradesh. Eucalyptus
and mango tree wood can be transported to these factories provided the collectors
in the districts* where the factories are situate certify that the wood will be used
for making cable drums only. Cable drums are necessary to protect the cables.
Cutting of trees is permitted for that purpose. Will this not help sustainable
development to a little extent?
46 Id. at 174.
47 AIR 2000 SC 1636.
48 AIR 2000 Mad 163.
the sanctuary and the limited duration of movement of vehicles between 6 a.m. and
6 p.m. were held to be not arbitrary. However, the court found two other conditions
unreasonable. One is that which empowered the deputy director to cancel permit
without assigning reasons. The other is that in emergency, the permit holders should
get permission of deputy director whose office is located 30 kilometers away.49
Can the extent of a wild life sanctuary be reduced in order to exploit mineral
resources available in the territory? Can such a reduction be valid if it is made
by the legislature enacting a law? Should not the legislature, if it can do so,
consider all relevant aspects relating to sanctuary? Consumer Education and
Research Society v. Union of India50 raised these questions when the Gujarat
legislature by a resolution, and the government by an order executing the
resolution, reduced the area of Narayan Sarovar Chinkara Sanctuary from 765.79
square kilometers to 444.23 square kilometers. The high court held that for
about 1200 chinkaras the reduced area was enough and the economic development
of the area is of immense benefit to the people. On special leave appeal, the
Supreme Court agreed with the petitioners that the legislature should have better
consideration and taken relevant factors into account. Nevertheless, the legislature
took the decision after deliberating upon the materials available to them. By
section 26-A(3) of the Wild Life Protection Act the power to take decision for
reduction of the notified area was given to the legislature which consists of
people who know the requirements of the area. The court observed:51
Even when it is found by the Court that the decision was taken by the
State Legislature hastily and without considering all the relevant aspects
it will not be prudent to invalidate its decision unless there is material
to show that it will have irreversible adverse effect on the wild life and
the environment.
The inarticulate idea lying behind the observation is prophetic. It may clear
the way for courts to interfere if the law violates provisions concerning
environment protection in the directive principles of the Constitution. Expert
committees of the Union of India and the Gujarat Ecology Commission considered
that the area as edaphic thorn forest rich in bio-diversity; any reduction in the
area would endanger the diverse species of trees. These facts did not seem to
have weighed with the court when it gave precedence to the legislative and
executive functions to balance economic development with environment. The
court thought it proper to permit restricted exploitation of mineral wealth for a
period of time under observation and direct afterwards for a comprehensive
study. A judicial trend is developing. Contentions of ecological imbalance and
destruction to bio-diversity are being rejected on the ground of sustainable
development. In fact sustainable development brings economic growth without
destroying the resource base. Preservation of bio-diversity is one of its significant
elements. The facts of the case show that experts had already reached the
conclusion that the area was of ecological significance and 'developmental
activities' would affect ecological balance. In such a situation courts can
legitimately adopt a deferential attitude. Deference to what and whom is the
question. Should there be deference to the words of wisdom and expertise towards
sustainable development? Or should it be to what the legislature and the executive
say? There is a silver lining in the judgement. Instead of blindly approving the
development planned for in the denotified area, the court wanted to have an
overseeing expert committee headed by a retired judge and to see periodical
reports on air and water pollution.52
Extension of a sanctuary for providing better habitat for rhinos and corridors
of animals was under challenge in M/s. Chandmari Tea Co. v. State of Assam.53
The petitioners belonged to different groups. One had interest in a tea estate
which was ordered to be closed. Some were people who had the privilege to
graze their cattle in the locality. Some others were men who managed to establish
schools without any authorization in the areas. Still others were flood affected
people allowed to be settled in the area under dispute. The alluvial flood plains
are ecologically suitable habitat for rhinoceros and other associate species.
Inclusion of the area was necessary for protecting wild life, improving environment
and safeguarding the forest. Most of the petitioners were not actual inhabitants
of the area and were people giving headache to the forest authority with
innumerable problems at the cost of precious but endangered wild life. The court
did not find any lapse or defect in the notification for the extension. It held that
genuine claimants would be given compensation and not others.
52 Id. at 979.
53 AIR 2000 Gau 13.
54 AIR 2000 H P 113
of India,55 the Delhi High Court had examined the question of compensation
further. The court held that surrender of animals whose possession and holding
were not legal under the wild life law does not create a claim on the petitioners
for compensation. Nor can it create a liability on the state to pay compensation.
What the petitioners can do is only to apply for ex gratia payment on surrendering
the animals. In respect of animals under valid possession, surrender renders
legitimate claim for compensation.
IX CONTROL OF POLLUTION
Noise pollution
The courts had grave concern on the impact of noise pollution on the health
of people. In Church of God (Full Gospel) in India v. K.K.R.M.C. Welfare
Association,56 dealing with the problem of sound vis-a-vis freedom of religion,
the Supreme Court held that directions of the high court to bring down noise
level were perfectly legal. They were in consonance with the Madras City Police
Act, 1888 and Madras Town Nuisance Act, 1889 and in conformity with the
Noise Pollution (Regulation and Control) Rules, 2000 framed by central
government under the EPA. In a civilized society every person is entitled to
enjoy his natural rights to quietness without being interfered by noise pollution.
The aged, sick, people with psychic disturbances and children up to six years of
age are considered to be very sensitive to noise. Their rights are to be honoured.57
The evil effects of noise pollution are enormous—interruption of sleep, loss of
efficiency, hearing loss or deafness, high blood pressure, depression, irritability,
fatigue, gastro-intestinal problems, allergy, distraction, mental stress and
annoyance. The extent of damage depends upon the duration and the intensity
of noise and sometimes may lead to serious law and order problem. Further, in
an organized society, rights are related with duties towards others including
neighbours. The court held that there is no ground for permitting noise pollution
caused by voice amplifiers, loud speakers or musical instruments.58
With the rapid industrialization and urbanization, the noise pollution has
become a disturbing phenomenon. This has been examined thoroughly by the
Orissa High Court in Bijayananda Patra v. District Magistrate, Cuttack.59 Noise
causes increase in cholesterol level, makes one prone to heart attack and stroke
and leads to neurosis and nervous breakdown. The court went into the Puranas
and quoted Ramcharit Manas, Sunder Kanda 27/1, to show that "the roar of
Hanuman, while back from Lanka, brought abortion to many a demoness in
Lanka". Concern over noise pollution has led to many reforms: noise proof
motor vehicles, sound barriers on road sides; tunnels instead of fly-overs and
restriction on noisy traffic. Noise is nuisance. When noise from a machinery or
an instrument at defendants' premises materially affects physical comfort of the
occupant of the plaintiff's house, the person causing noise can be restrained by
injunction. Pollution of air, water or atmosphere through noise continues to be
part of, and not severable from, the common law of nuisance despite the enactment
of the new laws on environment whose purposes have been to include the
pollution control measures in the wider conspectus of social justice.60
The judgement is significant by its suggestions: adoption of environment
friendly technology, design of sound-proof machinery, planting trees on both
sides of roads and outside factories, spreading awareness about the evils of noise
pollution and planning flights of aeroplanes to curb noise. The court said, "House
of God should be kept peaceful and noise free as it is rightly said that God is
not deaf. Crossing the danger point, noise like smog is threatening as a slow
agent of death. The court was aware of the urgency of controlling noise. A noise
code should aim at strict enforcement of governmental standards and establishment
of noise control courts to dispose cases quickly. District magistrate should be
empowered under section 144 of the Criminal Procedure Code, 1973 to limit
hours of the use of loudspeakers. Pollution control boards and district
administration should work out modalities of controlling noise pollution.61
60 Id. at 75.
61 Id. at 76, 77.
62 AIR 2000 SC 150.
63 AIR 2000 Guj 33.
board asks the court to take steps. According to the Gujarat High Court, such a
course is nothing but dereliction of duty on the part of the board. It is the
function of the board to take immediate and stringent action against units which
dump hazardous waste and release untreated effluents. If the board waits for a
direction from court, the situation will help nefarious activities to continue under
the pretext that the case is pending before the high court.
Dilemmas of control
Under the Water (Prevention and Control of Pollution) Act, 1974 the state
government can supersede a state pollution control board on two contingencies.
They are (i) when the board persistently defaults in performing its functions, and
(ii) when there are circumstances that make it necessary for the government in
public interest to supersede. The law specifies that in the first instance the board
has to be given an antecedent hearing. The statute is silent on hearing in the
second instance. However, before it goes for the drastic action, in both instances
the state government has to form an opinion. A similar provision is there in the
air Act also.
R.A.Goel v. Union of India65 relates to supersession of the Haryana Pollution
Control Board on the ground of public interest. In order to promote small scale
industries, the Haryana government declared a policy that except the 17 small
scale industries identified by the Government of India as highly polluting
industries and the 19 other industries identified by the board itself as belonging
to this category of polluting industries, consent under the pollution control laws
was not required. In spite of pressures from several quarters, the board took the
position that the government has no right to issue administrative orders contrary
to the water, air and environment Acts and that pollution control parameters
should apply to all industries. On getting adverse remarks from the state industries
department on the behaviour of the board, the government decided to supersede
the board in public interest. Endorsing the action, the Punjab and Haryana High
Court held that no government would tolerate a defiant board throwing to winds
whether the show-cause notice for imposing pollution fine on M/s. Span Motel
Private Ltd. in pursuance of the decision of the court in 199668 was valid or not.
The notice was issued without reference to any provision of law. Nor could it
be justified on the ground of doing complete justice under article 142. Though
the notice for pollution fee was withdrawn, the court held that exemplary damages
could be awarded as detailed in the main judgment and a fresh notice for
exemplary damages in addition to damages was ordered to be issued.69