Ravi Shankar Let off Easy over Yamuna Violation by NGT

The AOL case shows no lessons have been learnt even after the 1984 Bhopal gas tragedy, writes Alok Prasanna Kumar.

The National Green Tribunal is by far one of the most powerful quasi-judicial bodies in India. Its powers are almost at par with a high court when it comes to environmental matters. It is also a tribunal that has not shied away from testing the limits of the range and extent of its powers through some of the orders it has passed.

It has stopped the plying of tourist vehicles in Rohtang Pass, shut down unsafe water packaging units, restrained the police from using a firing range and taken ten year old diesel vehicles off the roads. In some cases it has no doubt gone above and beyond its jurisdiction in seeking large-scale implementation of its orders. But the fact remains that at the very core, its purpose is to not just hear appeals against the decisions of Governments on environmental matters – it is also empowered to take necessary action to prevent environmental damage from taking place.

Is Imposing a Fine Enough?

Yet, when it found that the Art of Living Foundation’s “World Culture Festival” was being organised with none of the relevant environmental clearances, the Tribunal hesitated. When presented with a fait accompli by the organisers of the “World Culture Festival”, the Tribunal blamed the applicant for “delay and laches” and was content to let the construction and event continue, imposing a “fine” of Rs 5 crore on the organisers.

It has also simultaneously imposed fines on the regulatory authorities who failed to stop it in the first place, namely the Delhi Pollution Control Committee and the Delhi Development Authority. While the Tribunal does leave the ultimate liability of organisers open ended, it will take years to properly restore the floodplains of the Yamuna (if that is even possible) and assess the full extent of the damage caused by construction and the event.

In the absence of pinning specific responsibility of individual officers, it is hard to see the benefits of imposing fines on government bodies. At the end of the day, it is the taxpayer who will most likely foot the bill for the fines imposed by the Tribunal on the DPCC and the DDA. The deterrent effect of the fine on the government bodies is likely to be minimal, if at all. It is curious to note that the Delhi Government and the Central Government, while at loggerheads on most issues, came together in a rare bipartisan way, to allow the Art of Living Foundation to blatantly violate environmental laws.

Fixing Accountability

• Imposing fines on government bodies not enough since the taxpayers will foot the bill.
  
• NGT’s order is, in some ways, akin to “blood money” that environmental polluters can pay and get away with the damage that they’ve caused.
  
• The Bhopal Gas Tragedy had revealed the Indian legal system’s inability to seriously enforce accountability for environmental degradation.
  
• Court has allowed a blatant and brazen violation of environmental laws under its watch by slapping a monetary fine.
  

Beyond the Bhopal Gas Tragedy

The NGT’s order is, in some ways, akin to “blood money” that environmental polluters can pay and get away with the damage that they’ve caused. It reminds one, to some extent, of the Supreme Court’s judgment blessing the “settlement” between the Union Carbide Corporation and the Central Government regarding the Bhopal Gas Tragedy – still India’s worst environmental disaster. It must be remembered that the case itself came up to the Supreme Court on the limited question of whether interim compensation should be paid by Union Carbide while the trial for compensation was going on.

Ultimately though, Union Carbide was able to walk away from the proceedings, civil and criminal, through the payment of a sum “settling” all the cases with the rest of the compensation to be paid by the Government of India. The Supreme Court sanctified this settlement and it was only much later that criminal charges against Union Carbide’s officers were restored.

What the legal proceedings in the Bhopal Gas Tragedy revealed was the Indian legal system’s utter inability to seriously enforce accountability for environmental degradation. Much of the present architecture of laws covering the environment, such as the Environment Protection Act, 1986, and the Public Liability Insurance Act, 1991 were put in place subsequent to the monumental failure of the Indian legal system to ensure just compensation and fair prosecution in the Bhopal Gas Disaster. Even these legislations though, are rendered hollow when courts refuse to do the right thing.

Message from the Green Bench

As Geetanjoy Sahu has argued in his book, courts in India have had a mixed track record when it comes to protecting the environment through judicial action.  There have been some successes – the green bench of the Supreme Court helping stave off the destruction of India’s forests, and the Supreme Court’s directions to use CNG for public transport in Delhi, for instance. But there have also been several serious failures – such as the cleaning of the Yamuna, which the Supreme Court has overseen for the last two decades with no visible impact on the ground.

However, when environmental challenges have been thrown up to large-scale construction works, Courts have rarely, if ever, put a halt to the construction itself for purely environmental reasons. They have largely allowed the project to go ahead, whether it was in the Narmada Dam case, the UP memorials park case or the CWG village case (also built on the Yamuna floodplains), attempting to limit the damage by imposing conditions. In the rare case where such construction has been stopped, such as Vedanta’s Bauxite Mine in the Niyamgiri Hills, it has usually been for other reasons, such as tribal rights.

While the NGT has threatened to cancel the permission for event if the payment is not made by Friday, the fact remains that it has allowed a blatant and brazen violation of environmental laws under its watch with only a monetary slap on the wrist for the violator. It bodes ill for India’s environment that all the regulators and the judicial authorities refuse to use their powers, but stand by and allow such destruction unabated.

(Alok Prasanna Kumar is a Senior Resident Fellow at Vidhi Centre for Legal Policy. With inputs from Dhvani Mehta, also a Senior Resident Fellow at Vidhi)

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