ROLE OF INDIAN JUDICIARY – CONTROLLING/PREVENTING/PUNISHING ENVIRONMENTAL CRIMES

Pradeep Kr. Bakshi Secretary General Asia Pacific Jurist Association ROLE OF INDIAN JUDICIARY – CONTROLLING/PREVENTING/PUNISHING ENVIRONMENTAL CRIMES ECENA 3rd Train-the –Trainer Programme on Environmental Crime November 10 – 12, 2009

INTRODUCTION • M.C. Mehta v. Kamal Nath (River Beas Case) • Dismantling of “Blue Lady” at Alang, Gujarat, India (Ship-Breaking Activity)

M.C. Mehta v. Kamal Nath(River Beas Case) Facts • Supreme Court took notice of an article published in a newspaper, wherein a private company “Span Motels Pvt. Ltd.”, had built a motel on the bank of River Beas on land leased by the Indian Government in 1981. • SMPL, had a direct link to the family of Kamal Nath, a former Minister of Environment and Forests. • SMPL had also encroached upon an additional area of land adjoining this leasehold area and this was later leased out to SMPL, when Kamal Nath was minister in 1994.

SMPL used earth movers and bulldozers to turn the course of the River Beas and create a new channel and divert the river’s flow. • The course of the river was diverted to save the motel from future floods.

Decision • Supreme Court applied the constitutional provisions under Article 21 and 32 of the Constitution of India and Forest Conversation Act , 1980. • SC held that prior approval for the additional leasehold land given in 1994 is quashed and the Government shall take over the area and restore it to original condition. • SMPL to pay compensation to restore the environment and the various construction undertaken on the bank of River Beas must be removed and reversed and shall not encroach upon any part of the river basin.

SMPL shall not discharge untreated affluent into the river. • SC directed SMPL through its management shall show cause why pollution fine in addition be not imposed.

Ratio • Supreme Court based its ruling on the public trust doctrine, under which the Government is the trustee of all natural resources, which are by nature meant for public use and enjoyment. Public trust doctrine is the part of the law of the land. • SC applied the Precautionary Principle and Polluter Pays Principle and held that one who pollutes the environment must pay to reverse the damage caused by his acts.

RFSTNRP v. UoI & Ors.(Dismantling of Blue Lady) Facts • “Blue Lady” ex SS Norway was a passenger liner built in France in 1961. It was a steam turbine driven vessel with a power and rating of 30,000 KW and 40,760 HP. A luxurious vessel during its golden period. • “Blue Lady” beached off the Alang coast on 15 – 16.08.2006. • Alang is located on the western coast of the Gujarat State of India. • Alang is the largest ship recycling yard in the world and the choicest ship-scrapping destination for the ship owners around the world.

SC had laid down norms concerning infrastructure capacity of Alang to handle large volume of ship-breaking activity, safeguards to be provided to the workers who were likely to face health-hazard on account of the incidence of ship-breaking activity, environmental impact assessment and strict regulation of ship-breaking activity. SC constituted a Committee of Technical Experts to submit a report on the said aspects. • In the case of “Blue Lady” the issues before SC and TEC (Committee of Technical Experts) were to examine – • A) Whether pre-conditions for dismantling have been complied with; • B) Whether 80% of the asbestos is reusable as in contended by RFSTNRP • C) What steps have been taken to control the environmental impact of asbestos dust generated in the process of dismantling of “Blue Lady”.

Decision • SC accepted the Report of TEC wherein TEC, approved the Dismantling Plan and Recycling Management Plan and recommended grant of permission for dismantling the “Blue Lady” at Alang in accordance with the Recycling Plan submitted by the Recycler – M/s Priya Blue Industries Pvt. Ltd. • SC observed that recycling is a key element of sustainable development. • SC observed that we do not suggest discontinuing of ship-breaking activity but it deserves to be strictly and properly regulated.

Ratio • SC upheld and applied the principle of precautionary principle, polluter-pays principle, sustainable development and principle of proportionality. • SC held on application of principle of sustainable development, we need to keep in mind the concept of development on one hand and the concepts like generation of revenue, employment and public interest on the other. • Principle of Proportionality – as in case of ship-breaking activity of “Blue Lady” 700 workers would be employed, 41000 MT of steel would be made available. • To that extent, there will be less pressure on mining activity elsewhere.

Remedies & Enforcement • Injunctive Relief to halt the harmful activity; • Damages to compensate for harm suffered; • Orders of restitution or remediation; • Sanctions to punish the wrongdoer and to deter future violations, and • Awards of costs and fees.

Conclusion • Indian Judiciary, as guardian of the rule of law, is uniquely positioned to give environmental law force and effect. • Judges can bring integrity and certainty to the process of environment protection and help to ensure environmental responsibility and accountability within the government and the private sector.

Conclusion • In environmental litigations, the anxiety of Indian Judiciary is to find out appropriate remedies for the environmental protection is given much importance. • Indian Judiciary appears to be ready to deliver judgments that should result in greater environmental protection or reduced environmental harm. • Indian Judiciary has advanced the development of environmental law by its traditional task of interpreting and filling the gaps in the legal texts.

Thank you. Pradeep Kr. Bakshi General Secretary, APJA

ROLE OF INDIAN JUDICIARY – CONTROLLING/PREVENTING/PUNISHING ENVIRONMENTAL CRIMES