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Odd, even & beyond: India’s courts carve out environmental jurisprudence

Smoke and the judicial mirror
Smoke and the judicial mirror
The Delhi high court yesterday (Monday) declined to interfere with the Delhi administration’s trial to restrict private non-commercial four-wheelers on Delhi's roads on alternate days to cut pollution.

The National Green Tribunal (NGT) confirmed that Delhi’s air-quality has been at least 2.5 times more harmful than “prescribed limits”, but all evidence points to a combination of man-made factors that contribute to pollution levels, including trucks, two-wheelers, diesel combustion, industries and power plants on the periphery of the national capital, garbage burning, coal tandoors

The effect of the administration's odd-even policy on overall pollution levels may be uncertain and the serious lack of last-mile public transport infrastructure to replace personal cars is worrying, but the Delhi high court bench of chief justice G Rohini and Justice Jayant Nath said that the “power of judicial review cannot be extended to determine the correctness of such policy decision or to find out whether there could be more appropriate or better alternatives”.

But in this case at least, legislature and judiciary have been mostly aligned in spirit. Judges have been some of the most sympathetic towards environmental causes in recent years, developing a young environmental jurisprudence.

Take Chief Justice of India (CJI) TS Thakur, for instance, who quickly announced his support of the odd-even policy after his appointment and even voluntarily carpooled with his colleague Justice AK Sikri despite being exempt from the restriction.

And when Prime Minsiter Narendra Modi announced the Swachh Bharat initiative, judges in several high courts symbolically picked up brooms and photo opportunities.

But the judiciary's support is more than just personal.


“With the 42nd constitutional amendment in 1971 – when Article 48A and 51A were inserted in the constitution - a duty was cast on not just the state but on every citizen to improve the natural environment,” explained J&S Chambers partner Parinay Deep Shah. “And then the Supreme Court broadened the right to life, to include to the right to a wholesome environment.”

In 2001, Shah said, that the Supreme Court passed a milestone in India’s environmental jurisprudence by banning cigarette smoking in public spaces – reasoning that non-smokers should not be subjected to passive smoking.

“The present government can take a leaf out of that judgment - broader public interest takes precedence over the interest of a few and the environment takes priority over revenue-earning,” said Shah, but cautioned that “any limitation on legal rights of the citizens should qualify the test of Article 14 (Right to life), Article 19 (Right to livelihood) and Article 21 (Right to life).”

Paperless tiger

When the National Green Tribunal (NGT) was formed after the NGT Act was passed in 2010, environmental jurisprudence was given another shot in the arm.

“With ... the constitution of the NGT the courts have become very active (with environmental litigation) and the Supreme Court has also started taking everything very seriously,” commented Priyanka Sinha, a Jharkhand government counsel before the NGT.

Cases such as the MC Mehta petition on the Ganga river basin’s pollution, which Mehta filed in 1985 but rotted in the judicial backlog for years, have now been taken up again, demonstrating that courts are far more pro-active now, said Sinha.

And in August 2015 the NGT took up an environmentalist’s plea against the government’s “half-hearted” attempt at saving the ecology of the Okhla bird Sanctuary in Delhi.

“A few years earlier no [residents welfare association] complaining about environmental harm from garbage dumping would be taken seriously. Now pending before the tribunal is the ‘green belt of Delhi’ case – plantation needs to be done around Delhi, you cannot dump waste anywhere. So the judiciary is taking [the environment] very seriously,” she said.

However, penalising provisions are still lacking in Indian environment law.

In a mining matter in which Sinha appeared before the NGT, compensation was asked for environmental harm caused by mining 14 years ago. The NGT said that it could not award compensation because there was no legal provision for it, said Sinha.

She noted that, in contrast, in international jurisprudence there exists far greater codification of penalty and compensation provisions.

Everything’s fine

That said, the NGT can penalise the flouting of its orders with fines of up to Rs 20 crore and jail for three years, through the NGT Act 2010.

“The NGT definitely has teeth which it is using more often now and it is clearly hurting the violators,” commented Luthra & Luthra environment and regulatory practice managing associate Nawneet Vibhaw.

He said that the NGT’s recent imposition of heavy fines on erring parties is similar to the trend in other jurisdictions like the US where millions of dollars have been recovered as damages in cases of environmental violations like oil spills.

The year 2015 began with the January order of the NGT fining a company Rs 25 crore for damaging Mangrove forests in Maharashtra. In July the NGT fined the Agra Municipal Corporation Rs 1 lakh for dumping waste into the Yamuna, and announced a fine of Rs 5,000 on individuals spotted throwing garbage into that river. Rs 5,000 was also the fine announced in December 2015 for entities spewing waste into the Ganga.

December 2015 also saw the tribunal ordering that builders who dump construction wastes on road will be fined Rs 50,000. In July 2015 the NGT slapped Rs 76 crore on seven builders for unauthorised construction across the country. Illegal felling of trees attracted Rs 15 lakh in fine for a district forest officer in July 2015.

However, actual future enforcement of most of these rules is often minimal and difficult.

The NGT Act 2010 does not put an upper cap in terms of how much fine is to be imposed. It depends on the extent of damage caused which is for the NGT to ascertain on a case-by-case basis, depending on the information provided to it, explains Vibhaw.

He said that the NGT has followed the international trend of heavy-duty fines in environmental jurisprudence.

The principle is that the polluters have to pay, and the NGT is making them pay to the extent that it hurts and has a deterrent effect. He also pointed out that in treating government departments and private entities equally, the NGT is sending out a strong message about its stringency and fairness.

Inventive and crafty?

The Aam Aadmi Party's odd-even rule was not the NGT’s invention, though it was certainly inspired by it. The tribunal had merely, softly, pointed out in its November 2015 order in the case of Vardhaman Kaushik, that “reduction in traffic load of Delhi would certainly have positive impact on the ambient air quality of Delhi”.

2015 saw other creative NGT orders containing several other self-coined formulas for environmental protection: it ruled that not more than 1,000 vehicles per day should be allowed to pass through Rohtang – 600 petrol driven, 400 diesel; and held that Delhi University student union was to conduct a “paperless” election without posters and flyers.

But there can be resistance to such creativity. In November the NGT banned the registration of diesel vehicles in the Delhi region and ordered more than 10-year-old diesel vehicles effectively phased out. The auto-makers affected by the ban, promptly, on the same day, appealed it in the Supreme Court terming it “ridiculous”.

“(Measures) introduced in (NGT) orders are not born out of the judges’ brains but are the recommendations of bodies formed by government officers to conduct studies (on the problem at hand),” commented Kolkata advocate Preeta Dhar, who works mostly at the NGT.

“Moreover, there is already a lot of existing codification – for example, emission norms – and most of the time the NGT is not devising new corrective measures but just doing the job of ensuring [the laws’] real time implementation. It is checking for compliance, asking for the 'action-taken report', checking if a 'monitoring committee' has been formed,” Dhar added.

The NGT Act 2010 in fact clearly mentions in Section 14 that if the non-implementation of one of the statutes listed in the Act, is giving rise to “civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved”, the NGT has power to admit such a case.

However the jurisprudence is “slippery”, cautioned Dhar: “[The NGT] justified diesel-vehicle registration ban on the ground of ‘public emergency’ but there are cases in which an equally severe problem has come up and the courts have said that one cannot impose an ‘unfair burden’ [on the actor].

“For instance, for a thermal power plant in Tamil Nadu the green tribunal was of the view that the plant needs to do a ‘cumulative impact assessment’. The Supreme Court stayed the tribunal’s order, ruling that this was unfair burden on the company and that we cannot ‘be paranoid’ about air pollution.”

Car-makers who had appealed to the Supreme Court against the NGT’s diesel-ban order were of the opinion that they were not heard before the NGT.

Dhar commented that since the NGT is not a writ court (that is to say, it does not examine the violation of individual citizens’ constitutional rights), it should not deal with metrics such as “the number and kind of vehicles which should be allowed on Delhi’s roads”.

“That question is within the domain of government policy,” she said. The Delhi high court very much agreed with that yesterday.

This article was first published in Mint. Mint's association with LegallyIndia.com will bring you regular insight and analysis of major developments in law and the legal world.

Picture by Wikimedia

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