Musings of a green judge
A JUDGE on the Green Bench would often feel that, though being called upon to decide and pronounce upon something squarely within the arena of law, his prime concern and task, week after week, for an umpteen number of dockets landing on his desk, appears to be of striking a balance between the two most competitive concepts of the present-day world – environment and development – and that too at a belated stage. Neither the concern nor the task depend upon the stage of the proceedings; they remain consistent during the hearings – admissional, final or intermittent.
A judicial forum presupposes a question which requires adjunction. A green bench is no exception. But the fact that its role commences at a late stage circumscribes its jurisdiction. Something obligatory has not been done, something which stands prohibited has happened. A belated initiation of legal action follows a delayed recognition. The knock at the door is to sound an alarm. The green bench remains busy studying the situation and searching for solutions.
The functioning of a green bench reminds of the character and significance of the duties of a chastising class teacher. Regardless of the stage of hearing or the juncture of the events, immediate measures are ordered with a view to arrest further damage and salvage the situation. Fines are imposed and cash deposits or bank guarantees ordered to ensure the improvement and, thereafter, the maintenance of consistent good behaviour. Errant industrial units are subjected to en masse closures. Experts are invited for scientific study, opinion and advice on specified issues to seek solutions and make requisite arrangements, either interim or final.
The subjects for the study and solutions presented before a green bench are fairly varied. Notifications declaring forests, parks, sanctuaries, CRZ and green belts have not been translated into maps. Model industrial estates are devoid of safe effluent discharge systems. The common effluent treatment plants falter. Huge quantities of hazardous wastes are dumped on the land belonging to others or earmarked for other purposes. Industrial units function without pollution consents. Reverse boring is taken as a ready substitute for incineration. River and well waters are found to be polluted. Cesspool and soak pit percolation get mixed with underground potable water sources. Thousands of workers suffer from occupational health hazards. Rag pickers are found collecting and transporting biomedical waste in the absence of disposal systems. The entire city is found enveloped by gaseous smells, emanating from unknown sources.
There are reasons for this methodology or pattern under which the judge has to function. The statute law governing the field is inadequate. The comparatively recent enactments for containing air and water pollution and for the management and disposal of hazardous waste and protection of environment do not constitute a complete rule book and are found wanting while answering the questions or meeting the challenges emanating from eventualities, either novel or unforeseen thus far. This is more apparent in the older legislations enacted for the conservation of forests and the protection of wildlife.
Judge-made law is scanty, rarely travelling beyond the facts, aiming at a just solution on the facts and circumstances of the case. Executive orders and actions prove to be incomplete and often create a backlash. Industry, trade and the developmental race do not merit a good behaviour certificate. Experts differ. The consents given by pollution control boards are valid for a specified time frame, and extensions depend upon the performance of the industry.
A green bench is also associated with the establishment of various projects meant for containing pollution and conservation of environment and ecology. Sewage plants, river cleansing projects, common effluent treatment plants, pipelines for discharge of effluents in estuaries and on the high seas, and potable water schemes are presented before the green bench for all-pervasive study, directions, installation and supervision. Air pollution caused by automobiles also demands study, collection of data qua the pollutants and wide-ranging directives to the state, the traffic police, schools and hospitals. Removal of hazardous industrial units from within the industrial zones and their relocation at safe sites are part of the agenda of a green bench.
The proceedings regarding such projects, though at times adversarial, are sought to be converted into a conciliatory frame. The green bench is obliged to hear the parties and understand the points of dispute and agreement so that ultimately a consensus could be reached. The process is dialogical, delicate and time consuming. The green bench is required to pass a detailed order, but much depends upon the cooperation of lawyers and the approach of the bench.
The green bench hears and decides a large number of public interest litigation (PIL) cases. The PILs help in drawing the attention of the bench to unattended situations; they furnish important and relevant data and suggest required measures. But the bench often feels that the PILs take too long a time for final settlement. Issues not really vital to the problem are projected. Personal interests are agitated in the guise of public interest. Corporate warfare is found to be lurking behind. The bench expects a PIL to be genuine, honest, and bringing forth real and relevant issues with the necessary data so as to ensure a speedy decision.
Corporate warfare, which annihilates the public interest, should be conducted before forums other than the green bench. The NGOs which bring a large number of PILs before the green bench are often unprepared. If only their actions were initiated after a detailed study, research and collection of relevant data, they would be better equipped and able to assist the court in a meaningful manner. The parties should ensure that the proceedings do not become issue joined and, consequently, adversarial. The PIL must proceed towards a final decision without undue delays and not allowed to slip into hibernation. The green bench expects this as essential to the survival of the institution of public interest law.
The enormous complexity of the issues involved, as also that these issues are likely to be with us in the future, obliges a green bench to earnestly desire concerned and conscious action from the involved parties. The first priority must be comprehensive legislative action. The prevailing environmental laws require to be studied afresh with the help of experts so that amendments could be made. The scheme of the enactments needs to be widened so as to cover the emerging issues. The enactments pertaining to forests, wildlife, marine parks and sanctuaries require to be updated, and systems for declaration, promulgation, maintenance and safeguard incorporated.
The green bench is often faced with rival contentions by the state and local bodies like corporations, municipalities and panchayats regarding their jurisdiction and accountability. Comprehensive changes in the laws and rules defining their role is an imperative.
Legislative action should be followed by clear state action. All notifications and orders should be in complete consonance with the situation created by the acts and rules. The notifications declaring forests, parks and sanctuaries should be translated in maps which should be provided not only to the concerned departments of the government but also the people of the affected areas, NGOs, industry and labour organisations. These changes must be reflected in the revenue, forest and park records. The boundaries of the rivers, creeks, seashores, beaches, irrigation reservoirs, dams and tanks must be ascertained, put on record and access to them made transparent. CRZ lines, especially pertaining to seashores and coastal areas, should be clearly specified.
Rivers, tanks and reservoirs providing potable and irrigation water, along with creeks, estuaries and open lands, both marsh and arid, have been made the recipients of industrial and domestic effluents, treated and untreated. The obligation of the local bodies is, at present, limited to ensuring filtration of the effluents. Their concern is how to increase the capa-city of treatment plants. The existing mechanism is both inadequate and faulty, resulting in large scale pollution. The local bodies will have to be made aware and accountable for their functioning. All large local bodies like corporations will have to ensure that untreated effluents are not released in water bodies and that the odourless treated effluents are utilised for agricultural purposes. The state shall have to discharge the obligation of providing required tracks of wastelands for this purpose.
Worn out pipelines for sewage discharge and supply of potable water have proved to be a major factor in contaminating the water bodies. The cesspools and soak pits freely resorted to in the areas not equipped with drainage facilities have proved to be the main source of percolated contaminated elements, resulting in large scale incidence of disease and death. Adequate statutory and implementing measures need to be taken to check this; it cannot be ensured by judicial action alone.
A large number of existing industrial estates and townships remain under the supervision of the pollution control boards of the state government. Their functioning has come under increasing scrutiny of the green bench. The attention of the bench has remained drawn to their working as many units are found evading the prescribed norms. Often, the individual and common effluent treatment and discharge plants are found to be non-functioning even when under the supervision of the pollution control boards. Their working requires to be placed under greater executive discipline. The coming up of an industrial estate should, as a condition prior to their commencement, have effective effluent treatment and discharge facilities, both unit wise and collective. Industries that generate effluents and hazardous waste require a separate legislative and executive regime. They need to be located in specified areas for effective management of pollutants.
Small hospitals, maternity homes, laboratories, blood banks and clinics, in both urban and non-urban areas are devoid of mandatory facilities for the disposal of biomedical waste. The big hospitals have also failed to set up and manage effective disposal systems. This has led to epidemic-like situations in these environments, as also a growing illegal trade in biomedical waste. The present methods of disposing unclaimed dead bodies, including those of still-born children, are not only ineffective but also against the norms of human dignity. Judicial intervention cannot be the sole remedy. All green benches would wish for a comprehensive legislative framework, encompassing all forms of waste and pollutants, and effective implementation thereof.
Poverty, coupled with lack of awareness, drives a large part of our labour force into work situations that induce high rates of morbidity and mortality. Legislative action is required to identify and subject such industries to a strict regime of preventive and protective rules and methods. Medical relief centres with adequate diagnostic and curative facilities are found non-existent even in large industrial units. Nor do these units provide workers with adequate protective gear or necessary training about its utility.
Air and noise pollution have reached their peak in our urban and industrial centres. Automobiles, crude combustion devices, sub-standard or substitute fuel, and the so-called innovations tampering with automobile engines have been noticed as prime factors behind increased air pollution. In the absence of any comprehensive legislation, the judge-made law has had to intervene and issue elaborate directions, but they have not been implemented in full measure. Only comprehensive legislative measures and their implementation can provide some relief.
The green bench is conscious of the fact that its duty does not end with the resolution of the immediate issues before it. Industry and trade will continue to expand; new issues demanding urgent attention of the bench will arise. Even resolved situations are likely to come up before the bench in the same or altered forms, just as interim and final arrangements will require periodic modifications. And sanctioned projects would require a fresh examination. Changes appear imperative. Relief measures for the affected people, including labour, shall have to be continued and improved. An expanding industry and trade would require repeated attention and direction. With new forms of technology, eventualities unknown and unforeseen are bound to arise. The tasks of the green bench are, therefore, likely to be more complex; the validity of the institution is unlikely to diminish.
A green bench wishes and expects all this from its experience and an awareness that judicial action alone is not sufficient. Only if these measures are accomplished, we may be able, for the present, to strike a working balance between the desire for development and the need to protect our environment.
But what about the future? A green bench would like to pause and look back with a view to draw up a balance sheet of gains and losses. It may be comparatively easy to measure our economic and developmental gains. But what about the loss to the environment and our habitat? The state and the Union will have to find out how cultivable land has been lost to non-agricultural uses, the marshlands gone, the extent of so-called wasteland that could have been reclaimed, and the state of our forest and natural resources.
The state shall have to furnish reliable data on the land acquired, how much of it has been submerged by large dams, the number of tribal and peasant families uprooted and how and where they have been rehabilitated. The state must study the impact on families which are forced to migrate and resettle. We need to know about the type of plant, animal and bird life that has either become extinct or is endangered. We should know about the types of occupational diseases and their morbidity and mortality rates.
The state will need to discuss with citizens plans for the future and the intended measures, in the absence of which no meaningful discussion about our collective sustainable futures is possible. Is this mere wishful thinking on the part of a judge of the green bench?