Govts and People Must Come Together to Preserve the Environmental Gains of the Lockdown

“A time will come when it’s too late.
A time we kill, we fumigate.
We had our chances to change our ways.
To enjoy, clear, beautiful days.
Now much time has come to past.
The Earth has soured, no riches last.
I cry out in sleepless nights.
Don’t kill my planet, please help me fight”
-Melvina Germain

The coronavirus pandemic which has lead to unprecedented lockdowns on a global scale has had a clear and visibly positive effect on the environment. There are clear blue skies with air quality index (AQI) of 45 – considered to be in the range of ‘good’ – that was previously unimaginable in the city of Delhi, and a far cry from AQI 360+ following Diwali due to stubble burning in the neighbouring states.

Perhaps Delhi had bid goodbye to good quality air somewhere in the mid-1970s. Pictures of clear and clean water flowing in the Yamuna, which was hitherto a dismal image of a filthy drain which no amount of governmental effort or Supreme Court intervention was able to contain, have emerged. Indisputably, human intervention was the sole reason for the state of environmental pollution be it air, water or greenhouse emissions. When the world emerges, after the lockdown, stringent efforts need to be made, including the repeal and amendment of certain laws to preserve the gains and carry forward the momentum nature has now reset for humanity.

The Supreme Court has come a long way as one of the foremost defenders of the environment. For the past nearly 33 years, judgments from the Supreme Court have impacted all aspects of environmental protection starting with the Oleum gas leak, discharge of effluents into the Ganga by tanneries, prevention of water pollution in Ganga, pollution in Delhi from the increasing number of vehicles, ecology, health and medical aid as a fundamental right for workman employed in the asbestos industries, restrictions in the coastal regulation zone, ecological fragility and compliance with antipollution laws, duty to protect the green belt, shifting of hazardous and heavy industries, falling of groundwater level, protection and conservation of forests, freedom from noise pollution, restriction on the use of loudspeakers, solid waste disposal, city sewerage management, construction of dams, dumping of hazardous waste, prohibition on the sale of fireworks, and so on.

In fact, a number of these issues are still pending before courts.

The Supreme Court in its quest for a clean environment had accepted and adopted the principle of polluter pays, and applied it in several of the cases mentioned above. This principle was first introduced as a guiding principle for international economic aspects of environmental policies by the Organisation for Economic Cooperation and Development (OECD) way back in May 1972 and was subsequently reiterated in the Rio Declaration in 1992 and incorporated in it as principle 16. The concept of polluter pay essentially translates into damages to be paid by the person who has polluted the environment. While polluter pay, as a principle, may work as a deterrent to some extent, the damage to the environment is almost irreversible. Therefore, active and stringent measures are immediately needed.

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In India, there is no paucity of statutes protecting the environment. But on the number of laws that govern the subject, the most important by far is the Environment (Protection) Act, 1986, which provides for the protection and improvement of environment and for matters connected therewith. This Act in particular needs a severe relook.

While the Act confers immense powers on the central government to take measures to protect and improve the environment, with the power to give directions, and to frame rules to regulate environmental pollution. Nevertheless, the Act falls short when it comes to the emission or discharge of environmental pollutants, the handling of hazardous substances and procedural safeguards, and with respect to furnishing information to authorities.

In all these areas, the compliance for the same depends on the polluter. This approach has clearly failed. The time has now come for a stringent enforcement regime from the authorities rather than the expectation of compliance. The Act stipulates that industries shall not allow the emission or discharge of environmental pollutants in excess of the standards prescribed. As has been often found, and is evident by the number of judgements delivered by the Supreme Court, industries may not have any incentive to ensure compliance with the Act, especially when turning a blind eye to the non-functioning of an effluent treatment plant results in cost savings on a number of parameters such as water, electricity, manpower and maintenance of the plant.

Similarly, the expectation for persons handling hazardous substances to comply with procedural safeguards has proved to be, by a number of judgements, delusional. As a sequitur to the above two, it is indeed utopian to expect that the polluter himself will furnish information to the authorities as expected under the Act. If the government is serious about actual prevention, control and treatment of environmental pollution the time has come to amend these provisions and enforce a compliance regime which naturally would entail a dedicated and separate government department for this purpose.

Instead of expecting the polluter to prevent the emission or discharge of environmental pollutants, the government or its agency needs to set up its own effluent treatment plants that would mandatorily be connected to every industry, operation etc. akin to the sewage connection provided by and with the permission of the municipal authorities. Needless to say, there will be capital investment outlay for this purpose, however, the same will be minuscule in comparison to the continuous and repetitive outlay as seen in the Ganga Action Plan.

Also read: Air Pollution Is No Longer a Priority for the Government

Payment of damages on the principle of polluter pays has not been able to achieve the goals it had set out to. An apathetic polluter would be happy to pay the graded damages imposed without any concern for the environment. This clearly has stopped holding any deterrent value. The ‘doctrine of public trust’ developed as a legal theory by the ancient Roman Empire whereby it was believed that, since time immemorial, people across the world had made efforts to preserve and protect natural resources like air, water, plants, flora and fauna and that a majority of people still considered it to be their sacred duty to protect these. Therefore the Supreme Court held that this doctrine enjoins the government to protect the resources for the enjoyment of the general public rather than permit their dues for private ownership or commercial exploitation to satisfy the greed of a few.

The state governments of Punjab and Haryana also need to reexamine their legislations with respect to the exploitation of groundwater permitted to farmers. Both the state governments had enacted the preservation of subsoil water act, variously called, Punjab Preservation of Subsoil Water Act, 2009 and the Haryana Preservation of Subsoil Water Act, 2009. The purpose of these statutes was to prohibit the sowing of nursery of paddy and transplanting paddy before the dates were notified thereof.

Under the Haryana Act, the restriction was that no farmer was allowed to sow nursery of paddy before May 15 and was not permitted to transplant the paddy before June 15. The primary motivation behind these pieces of legislation was the conservation of groundwater just before the intense summer months. However, the fallout has been that paddy, which is transplanted much later than what the practice was earlier due to the exploitation of groundwater, has naturally extended the harvesting season that now roughly coincides with the festival of Diwali.

In the rush to prepare the field for the rabi crop, farmers resort to stubble burning which releases smoke all over the farmlands. This coincides with a slow-moving north-west wind which carries the smoke to Delhi and beyond, resulting in smog and severe deterioration of the air quality and visibility. This has also been the subject matter of previous analysis, however the same is falling on deaf ears of the authorities concerned. Even the serious view taken by the Supreme Court on stubble burning and the general state of pollution during these months has had little effect.

Also read: The Many Absurdities of the Supreme Court Judgment on Goa’s New Airport

This is not a wish list but a constitutional mandate under Article 48 A with respect to protection and improvement of the environment and safeguarding of forests and wildlife and also Article 51A(g) as a part of the fundamental duties to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures, all of which have been read into as part of Article 21 the right to life. After all, the constitution exists for the common man, the butcher, the baker and the candlestick maker!

S.S. Ray is a practising advocate at the Supreme Court of India.