The Judiciary in Curbing Pollution, and in Implementing the Law

Regulation short of closure. Conditions, technology mandates and timetables.

Facts. In M.C. Mehta v. Union of India (the Taj Trapezium case), AIR 1997 SC 734, emissions from foundries, chemical industries and a refinery were damaging the Taj Mahal. Held. The Court applied the precautionary principle, directed 292 industries within the trapezium to change over to natural gas as an industrial fuel or to relocate, and made provision for the rights of the workmen of the relocating industries. Why it matters here. It is the model for an order that regulates rather than prohibits, and it is unusual in dealing expressly with the employment consequences.

Implementing the law: what a court does to the regulator

Compelling a decision. Mandamus to a Board to decide, within a time, by a reasoned order.

Compelling the making of machinery. In Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715, the Court directed the Central Government to constitute an authority under section 3(3) of the Environment (Protection) Act 1986.

Facts. Tanneries in five districts of Tamil Nadu discharged untreated effluent onto agricultural land and into the Palar river. Held. The precautionary and polluter pays principles are part of Indian environmental law; the burden lies on the developer to show that his activity is benign; and the Central Government was directed to constitute an authority under section 3(3) with power to assess loss and to levy the cost of remediation. Why it matters here. It is the clearest case of a court building the administrative machinery the statute had provided for and the executive had not created.

Enforcing the regulator's own instrument. In Indian Council for Enviro-Legal Action v. Union of India, the order of 9 March 1995, the Supreme Court directed that every restriction and prohibition in the coastal notification of 1991 be meticulously followed by all the coastal States, that no prohibited activity be undertaken by any of them, and that the classification and development regulations in the notification's first annexure be strictly observed.

Facts. The petition sought enforcement of the coastal notification, and the Court had before it a site-visit report on breaches by resorts and hotels in Goa. Held. The directions above, with the question of constituting authorities under section 3(3) reserved. Why it matters here. The notification had existed for four years and had been very largely ignored; the order is what turned it into an operative instrument.

Distinctions

Worked example

A creek in Navi Mumbai receives effluent from eleven units. Two are large and identifiable; nine are small and change hands often. The Board has issued notices to all eleven over six years and prosecuted none.

A curbing order. Close the two large units. The creek improves, nine units continue, and in three years two new large units have opened.

An implementing order. Direct the Board to complete inspection of all eleven within eight weeks, to pass reasoned orders on consent, to report compliance, and to place before the court its own record of what it has done since the first notice. Direct the Central Government to consider a direction under section 5 of the Act of 1986 if the Board does not act.

What a well-drawn order does. Both, in sequence. It restrains the immediate harm and it fixes the machinery, and it does not treat the second as optional because the first is more satisfying.

What it does NOT mean

It does not mean implementation orders are always better. A unit destroying a wetland now cannot wait for a Board to be reformed.

It does not mean a court can create machinery the statute has not provided. In Vellore Citizens the Court directed the Government to use section 3(3), which Parliament had enacted. It did not invent an authority.

It does not mean a mandamus to a regulator is easy to enforce. It is not, and this is where contempt, environmental compensation on the authority itself and repeated listing come in.

Limits and criticism

The criticism of curbing orders is that they are ad hoc: they bind the parties, produce no standard, and often shift the activity elsewhere.

The criticism of implementation orders is the opposite: they are slow, they are easily complied with formally, and a Board that files an affidavit saying it has inspected has satisfied the order without changing anything.

The realistic conclusion is that the writ jurisdiction is better at stopping a specific harm than at building an institution, and that the second job needed a specialist body, which is what the National Green Tribunal was created to be.

Quick revision

• Curbing pollution acts on the polluter: closure, compensation, restoration, conditions.
• Implementing the law acts on the regulator: mandamus to decide, to constitute machinery, to enforce its own instrument.
• Dehradun quarries (1985) closure; Bichhri (1996) remediation cost; Taj Trapezium (1997) fuel conversion.
• Vellore Citizens (1996) directed an authority under section 3(3); the coastal order of 9 March 1995 enforced the notification of 1991.
• A curbing order binds the parties; an implementing order reaches everybody the authority regulates.

Test yourself

1. Give one decision that curbed pollution directly and one that made an existing law work, and say what the difference was. The Dehradun quarrying case curbed pollution directly: the respondents were quarry lessees and the order closed their quarries. Vellore Citizens made an existing law work: the respondent whose conduct was ultimately corrected was the Central Government, which was directed to constitute an authority under section 3(3) of the Environment (Protection) Act 1986 that the Act had provided for and the executive had never created. The first stopped a harm; the second built machinery to stop many.

2. Why is the order of 9 March 1995 in the coastal case an implementation order rather than a curbing order? Because it was not directed at any polluter. It required the coastal States to observe every restriction and prohibition in a notification that had been in force since 1991 and had been very largely ignored, and to comply with the classification and development regulations in its annexure. The instrument already existed; the order made the authorities apply it.

3. What is the weakness of each kind of order? A curbing order binds only the parties before the court, produces no general standard, may simply move the activity elsewhere, and can cause hardship that falls on employees rather than owners. An implementation order is slow, can be complied with formally by an authority that files an affidavit and changes nothing, and, if repeated for years, teaches the regulator that its own default will be corrected by somebody else.