The Judiciary and the State's Own Obligation

Why it matters. It is the answer to the plea of poverty by a public body, and it is the case the University's question about the obligation of the State is written around.

The three techniques a court uses

One, mandamus with a timetable. The court does not merely declare the duty; it fixes dates and requires compliance reports. Ratlam, although it arose from a magistrate's order under section 133 of the Code of Criminal Procedure rather than from a writ, is the model of the time-bound order; the Ganga and Delhi cases are the largest.

Facts. In M.C. Mehta v. Union of India (the Ganga Pollution, Kanpur Tanneries case), AIR 1988 SC 1037, an advocate petitioned about tannery effluent and municipal sewage entering the Ganga at Kanpur. Held. The Court ordered tanneries that had not set up primary treatment plants to be closed, holding that financial capacity is irrelevant to the obligation, just as an industry that cannot pay minimum wages has no right to exist, and said that the case against the municipal bodies would be taken up next. The second judgment. On 12 January 1988, in the same petition, the Court turned to the Kanpur Nagar Mahapalika and gave directions about sewage, the waste of the city's dairies, public latrines and the practice of throwing bodies into the river. Why it matters here. One petition reached a private industry and then a public authority, in two judgments less than four months apart.

Two, the public trust doctrine. The State is treated as a trustee of natural resources and not as their owner, so a transfer of a river bank or a beach to a private person is examined as a breach of trust.

Facts. In M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, a private motel on the bank of the Beas had been permitted to occupy forest land and had used earth movers to divert the course of the river to protect itself. Held. The public trust doctrine is part of the law of India; certain resources such as air, sea, waters and forests are of such importance to the people as a whole that it would be wholly unjustified to make them the subject of private ownership; the State as trustee is under a legal duty to protect them; the lease was quashed, the Government was directed to take over and restore the area, and the motel was to pay compensation by way of the cost of restitution. Why it matters here. It converts the State's obligation from a policy aspiration into a fiduciary duty a court can enforce.

Three, structural supervision. Where the duty is a programme, the court keeps the case alive, appoints committees and monitors compliance. This is continuing mandamus, and it has a chapter of its own.

Worked example

The municipal corporation of a coastal city has for eleven years discharged untreated sewage into a creek. It has a sanctioned scheme for a treatment plant, no land and no money. The State Pollution Control Board has issued three show cause notices and done nothing else.

Against whom does a petition lie? Both. The corporation for breach of its obligatory duty to provide drainage and to dispose of sewage, and the Board for failing to exercise its statutory powers.

Can the corporation plead want of funds? No, on the authority of Ratlam. It can, and should, ask for time and for a phased programme, and it will normally get one.

What will the court order? Not a fine. A timetable: land to be identified by a date, tenders by a date, commissioning by a date, with affidavits of compliance. It will very likely direct the State Government to release funds and may appoint a committee to monitor.

What if the corporation simply does not comply? Contempt lies against named officers, and courts have used it. In practice the more effective sanction has been environmental compensation levied by the National Green Tribunal on the municipal body itself.

Distinctions

What it does NOT mean

It does not mean a court will run the service. It will fix a timetable and supervise it. Where courts have gone further, the criticism of overreach becomes serious and is dealt with separately.

It does not mean want of funds is never relevant. It is not a defence to the duty. It is highly relevant to the time allowed, and every well-drawn order takes it into account.

It does not mean the officer is personally liable. He is liable in contempt for disobedience of the court's order, which is not the same thing.

Limits and criticism

The strongest criticism is institutional. A court that directs a municipal budget is allocating public money, which is a function of an elected body, and it does so without the information a budget requires. Money spent on a court-directed sewerage plant is money not spent on something else that no one has argued about.

The answer usually given is that the court intervened only after a decade of default, and that the alternative to an imperfect judicial allocation was no allocation at all. Both propositions are true and neither disposes of the objection, and a good answer says so.

Quick revision

• The State's environmental obligation comes from Article 48A, Article 21 and specific statutory duties.
• Ratlam (1980): a statutory body cannot plead want of funds against a mandatory public duty.
• Kanpur Tanneries (1987): financial capacity is irrelevant to the duty to treat effluent.
• Kamal Nath (1996): the State is a trustee of natural resources, not their owner.
• The three techniques are mandamus with a timetable, the public trust doctrine, and structural supervision.
• The special difficulty is that the polluter and the regulator are often the same government.

Test yourself

1. A municipality says it cannot build drains because it has no money. What is the answer? That want of funds is not a defence to a mandatory statutory duty owed to the public, which is what the Supreme Court held in Municipal Council, Ratlam v. Vardhichand. A body constituted to preserve public health and given powers to raise finance cannot escape its principal duty by pleading poverty. Lack of funds may shape the scheme and the time allowed, and in Ratlam the Court approved the cheapest scheme before it and expressed its confidence that the State would make loans or grants available, but it is never a defence.

2. How does the public trust doctrine change the position of the State? It changes the State from owner to trustee. As owner the State could deal with a river bank or a beach as it pleased, subject only to the ordinary law. As trustee it holds those resources for the public, cannot convert them to private ownership without justification, and its dealings with them are examinable by a court as a question of breach of trust. That is what M.C. Mehta v. Kamal Nath decided.

3. Why is a case against a State polluter harder than one against a factory? Because the usual remedies do not fit. The State cannot be closed, its duty is general rather than owed to the petitioner, its resources are public and constrained, the remedy required is a programme rather than a prohibition, and the regulator who ought to have enforced the law is frequently part of the same government. The court's answer to all five is the same: a mandamus with dates, supervised until it is complied with.