Passing on the green baton

Whether the tribunal can achieve what the SC did is a moot question

An important chapter in environmental jurisprudence came to an end last week when the Supreme Court delivered three judgments that touched upon mega industries, hilltop deities and even lowly animals (as named in one of the judgments) - wild pigs, peafowl, dugong and wild buffalo. Hereafter, the National Green Tribunal, which was set up recently, will take up such issues. The Court has 66,000 cases on its files, including 750 constitution bench matters.

For nearly three decades, despite Parliament passing a few laws on environment, the Supreme Court was evolving the principles in this field. In fact, the Court gave teeth to the laws. It cautiously started to intervene in environmental matters around 1985 when a lawyer M C Mehta filed a public interest litigation, pointing out violations of environmental laws, which were mere paper tigers.
 

The statutory bodies under the air and water laws were not set up, and there was no sense of urgency over the deteriorating environment. However, the M C Mehta cases - some 50 of them - emphasised the right to life aspect under the Constitution. Since the right had been expanded in several judgments earlier to include dignified life and clean environment, not "mere animal existence", courts had no choice but to hear those cases.

Over the decades, the Supreme Court has laid down several doctrines to protect environment, such as the "precautionary" and "polluter pays" principles, absolute liability, sustainable development and inter-generational equity. Though these sound like jaw-breaking canons, the results have been evident in cities, and have trickled down to villages and forests.

For instance, in one of those cases, the Delhi public transport was compelled to use a comparatively clean fuel - compressed natural gas or CNG. It involved a struggle against the lobbies of traditional fuels but, ultimately, the capital's air became cleaner. Unfortunately, the rest of the high courts have not taken the cue.

The ghost of the Bhopal gas disaster had not been interred before there was another industrial gas leak in the capital. The matter was taken to the Supreme Court and it laid down the "absolute liability" principle. It stated that compensation to the affected citizens should be proportionate to capacity of the industry to pay and not the status of the victims. Later, the capital was cleared of thousands of unauthorised polluting units operating in residential colonies.

Prawn farms with huge foreign investment threatened to play havoc in the coastal region in the east, but the Court applied the "precautionary" principle, following which the project was abandoned. Coastal zone regulations were brought in and the Court insisted on implementing them. Leather units were moved out of Kolkata and several such units in Tamil Nadu set up effluent treatment plants. The Court saw to it that coastal zone regulations were implemented not only to keep away industries polluting water, but also to regulate tourism, as in Goa. A motel in the Himalayan foothills, run by a Cabinet minister, was asked to compensate for diverting a river, applying the "polluter pays" principle.

Other areas where the Court's long arms reached are: solid waste management in cities, protecting Taj Mahal from air pollution (units emitting chemical fumes were relocated to distant places) and privacy of indigenous tribes in the Andamans. In last week's judgment in the case Centre for Environment Law vs Union of India, the Supreme Court said, "We are also inclined to highlight the necessity of an exclusive parliamentary legislation for the preservation and protection of endangered species."

Polluting industries received the worst cut. In last week's parting judgments, the Court started with the remark: "What should be the appropriate contours of this Court's jurisdiction while dealing with allegations of systematic plunder of natural resources by a handful of opportunists seeking to achieve immediate gains? This is the core question that arises in the present proceeding in the context of mining of iron ore and allied minerals in Karnataka."

In another judgment of last week, the gram sabhas were handed over power to decide the fate of a mega project of Vedanta. The judgment in the Orissa Mining Corporation case said: "The gram sabha is free to consider all the community, individual as well as cultural and religious claims, over and above the claims which have already been received. Any such fresh claims be filed before the gram sabha within six weeks."

Since the Supreme Court has enormous constitutional powers, it could enforce its orders in the face of executive resistance. However, the new tribunal is a quasi-judicial body, and it started with severe teething troubles. The Supreme Court had to help it find a seat and accommodation for the members. Whether it can perform as effectively as the Court is a moot point, which activists and industrialists will watch with anxiety in the coming months.