By- Shreya Bhukhmaria, BA.LLB(H)
Table of Contents
“Sustainable development is the pathway to the future we want for all. It offers a framework to generate economic growth, achieve social justice, exercise environmental stewardship, and strengthen governance.”
As we proceed towards the age of development and growth at an exponential rate, it becomes pertinent to steer our progress in directions that lead us towards modernization in a sustainable fashion. Ensuring the above shall guarantee economic growth accompanied by ecological sustainability and social welfare. The air pollution uprising in the country, especially in the national capital has caught everyone’s attention. It was apparent on the part of the judiciary to interfere having noticed the irresponsible behaviors of governments and its utter inability to restore what’s lost. Addressing the same, the Supreme Court, at the start of the week passed a slew of directions. The court's order came out while dealing with a case namely, MC Mehta v. Union of India. The bench comprising of Justice Arun Misha and Justice Deepak Gupta has passed several directions to deal with serious issues like stubble burning to vehicular emissions and construction dust.
The case in hand pertains to the large-scale problem of environmental pollution. The court in its order dated 4 th November 2019, recognized the level of pollution in the Delhi NCR region and its sharp rise at certain times of the year and the inaction of authorities concerning the same. The act of stubble burning carried by the farmers in the states of Haryana, Uttar Pradesh, and Punjab, a major source of pollution is taken up. Further, concerns regarding the Odd/Even scheme in Delhi were raised. Various other overwhelming factors such as construction and demolition activities, garbage burning and disposal, dust, etc. were noted by the Court. In the order dated 6th November 2019, financial support of Rs 100/- per quintal was directed to be given to farmers to achieve zero stubble burning. The absence of a proper garbage disposal system was also noted by the court. In its order dated 13 th November 2019,
the Court takes up the grave concern of smog and enquires into the feasibility of smog towers. The amalgamation of the above-mentioned aspects of pollution led to this petition.
i. In pertinence to ecological protection, whether the directive principles of state policy
(DPSPs) are enforceable through fundamental rights under Article 21 of the Indian
ii. Whether penalty can be dealt out through the preventive approach principle under the
public trust doctrine?
In light of the abovementioned facts and issues, which were posed before the court, the arguments primarily circumvented mainly concerning enforcement of the DPSPs and re- affirmed the importance of the public trust doctrine in a preventive approach manner.
The DPSPs and the fundamental duties mentioned in articles 47, 48, 48A, and especially 51A(g) which confers obligation upon both the government and the citizens to guard nature, were put at stake due to problems of governance and administration. The usage of better
machinery and scientifically-advanced procedures of agriculture directed much earlier in 2018 could not have been implemented due to a lack of state funds. But this was effectively countered by the court which held that the protection of the environment was not only a
matter of the DPSPs or a duty but a fundamental right of every individual, which has presently taken the shapes of air pollution and water pollution control statutory acts, the enforcement of which cannot be stayed based on the grounds of the problem of governance. It was also reiterated in Municipal Council Ratlam v. Vardhichand and Others wherein it was promulgated that the state-created bankruptcy cannot be a ground for the staying of performance of these statutory obligations under Article 21.
Furthermore, the allegations of the centre upon the state concerning implementation and vice versa with respect to the framing of schemes have been seriously disparaged. This triggered the debate towards the fight between sustainability and development which further underscored the need for the application of a complete ban on construction activities and allow it at partial times. While the court agreed to the same, however, the ban was lifted partially and there were strict directions to the pollution control board to look that the air quality is not getting degraded. In addition to the above, it has been held in Vellore Citizens’ Welfare Forum v. Union of India and Others that the imposition upon states to procure new machines & technologies and to look for the benefit of the small and marginal farmers and to help them procure advanced infrastructure in pursuit to achieve sustainable development, which has been characterized as the precautionary principle and the public trust doctrines enshrined in articles 48A and 51A(g).
The second conflict arose concerning the preventive approach adopted by the court with regards to the farmers burning the stubble/ straw to prepare the field for the next season. This was held to be castigatory for the small and marginal farmers, who rarely have access to modern machinery and will have to resort to stubble burning and thereafter pay the fine of Rs. 100 per quintal of crop burnt. This was denied by the court as a valid ground as agriculture being the backbone of the nation has to be sustained at all costs and the
government holds an obligation to ensure that all prerequisite facilities are provided on time despite a paucity of funds.
The direction of ensuring the growth of public transport and shunning of the odd/even scheme in Delhi pretty well reflects the concern of the court to prevent the hastening of pollution in Delhi and further levy hefty penalties for the same. Moreover, the fact that
outdated vehicles were asked to be predisposed of at the earliest and the use of kerosene as fuel to be stopped exemplifies the gravity of the deteriorating atmospheric conditions prevailing in Delhi. In line with this approach, the court went a step further by taking judicial
notice of the conditions in the rivers and the water pollution issues at hand. In addition to the above, the governments of Punjab and Haryana, U.P. and Rajasthan were asked to showcase their functioning with respect to pollution control measures, which is a clear reflection of the precautionary approach, whereby the court takes suo moto judicial cognizance of the disconcerting and dreadful situation of the polluted cities and rivers of India.
LEGAL PRINCIPLES & CONCEPT ASSOCIATED
The case at hand imitates the preventive approach, precautionary approach of the judiciary under the public trust doctrine. The prevention principle qualifies to be the basis of major environmental legislations which seek to curb the actions which have the potential to cause pollution. It has been held to be the foundation of international conventions as well as statutes like the Solid Waste Management Rules, 2016, which herein was religiously incorporated by all state governments. A similar approach has been followed by this court in previous instances in the case of M.C. Mehta v. Union of India (1997) of environmental pollution as well, for instance, with respect to pollution leading to the degrading of the Taj Mahal, the court accepted the plea to setup preventive remedial measures and directed the government consequently. In a landmark case in State of M.P. v Kedia Leather and Liquor Pvt Ltd., the court had even connected issues of pollution with public nuisance under section 133of CrPC which is considered to be a preventive and penal provision.
Besides, even the precautionary approach has found enough reference in this judgment, the precautionary principle has already been held to be a part of substantive law, which can be reflected through the environmental legislations. This court in the case of Arjun Gopal and Others v Union of India (UOI) and Others has promulgated the above principle saying that the very word “’ precautionary’ indicated that, such a measure was taken by way of precaution which could be resorted to even in absence of definite studies.” This is based on the proposition that the lack of systematic study or research should not hamper the environment.
Both these approaches arise from the public trust doctrine expressed in articles 47 and 48A, wherein the state is to act as a trustee for the public and has to maintain nature for the benefit of the public and in utmost good faith. This benefit of the public is not to mean the benefit of a single individual but all the public collectively and hence the notion of sustainable development is fundamentally entwined with the public trust doctrine.
The following directives were issued by the court:
Concerning the prevention of stubble/straw burning, it ordered for a comprehensive proposal to be placed before it describing the action taken with regards to the same. The court also directed the central government, state governments of Punjab, Haryana, and
i. To prepare a definitive outline to facilitate the availability of combine harvesters, happy seeders, hydraulically reversible MB plough, etc., dedicated to small and marginal farmers to enable them to have a substitute/alternate to straw-burning and modify agriculture.
ii. to file reports concerning identified hotspots and steps to be taken for their management.
The court further, in accordance with the Delhi Government’s proposal, ordered the establishment of the smog tower is completed within three months. It further directed that smog guns be used in Delhi and the NCR region at certain pollution-prone locations.
The court directed the Governments of NCT of Delhi, U.P., Haryana, and Rajasthan, to identify dumped plastic, industrial, and other wastes and to ensure that waste is not burnt and is used for processing/incineration. The Pollution Control Boards of Delhi, Haryana, Rajasthan, and U.P. are further directed to monitor the industrial areas stringently.
Right to life under Article 21 includes nature and the environment in its conception without which life cannot be enjoyed. The right to life and liberty includes the guarantee of a pollution-free environment. Thus, it has been held in the case of M.C. Mehta v Kamal Nath
that any disturbance of the basic environmental elements such as air, water, and soil that are necessary for life, would be hazardous for life within the meaning of Article 21.
The DPSPs deliver that protection and improvement of the environment is a responsibility enjoined on the shoulders of government as observed in the case of Tata Housing Development Co Ltd. v Aalok Jagga and Others as Article 48A under the DPSP lays down that the state must endeavor to protect and improve the environment. Moreover, under Article 51(A)(g) of the Constitution, it is the fundamental duty of every citizen of India to protect and improve the natural environment. The aforementioned articles are in consonance with Article 21, therefore, need to be looked at together Collectively, the articles illustrate “The Precautionary Principle”, now recognized as a law of the land. “The Precautionary Principle” makes it obligatory for the state government to anticipate, prevent and attack the causes of environmental degradation.
Furthermore, the “Polluter Pays Principle” evolved by the Supreme Court in M.C. Mehta v. Kamal Nath, applies in the case in hand wherein damages may be awarded not only for the restoration of ecological balance but also to the victims of these disturbances.
The judgment in its second part addresses certain questions with respect to preventive principles and sustainable development.
51A(g) with the precautionary principle and held to be an essential duty of the citizens which should come supplementary to their right to a pollution-free environment under Article 21. Hence, even the concept of sustainable development should be included in form of legislation with a proper procedure of calculating the required balance between preventive approach and sustainable development.
Supreme Court initiated some positive steps, concerning intense air pollution due to stubble burning in the Delhi-NCR region. The Court on 13 th January 2020 emphasized that unable to breathe good quality air is an affront to the right to life guaranteed by Article 21 of the Indian Constitution, 1950. It noted that the inadequacy of the state machinery to check air pollution, and the inability to sufficiently lift garbage and waste has also majorly contributed to the pollution. It directed the Governments of NCT of Delhi-NCR, Haryana, and UP to prepare a scheme to alleviate the need for stubble burning amongst small farmers, and if need be, to
provide the necessary farming equipment to them free of cost or on a nominal rental basis. It also directed inter alia that smog towers and anti-smog guns be installed in the Delhi-NCR region and the same shall be updated by filing relevant status reports.