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Part II

seven

The Judicial Implementation of
Environmental Law in India

Dhvani Mehta *

The previous chapters in this volume have critically analysed the manner in which the Indian judiciary has articulated and applied environmental rights and key environmental principles. These analyses have demonstrated that environmental rights and principles have often been vaguely defined, and their scope and application are unclear. On occasion, they have been used to mask the court’s own sociopolitical leanings; in other instances, they have merely supplemented existing enforcement mechanisms. This inconsistency and a lack of rigour in reasoning have meant that Indian environmental jurisprudence, for all the Supreme Court’s widening of locus standi and expansive interpretation of Article 21 of the Constitution, has remained substantively thin.

For a fuller understanding of the import of judicial activity (and activism) in environmental law, and in order to truly grasp the work that environmental principles have performed, it is critical to examine the manner in which courts have tried to implement them. This chapter attempts to do this by analysing the various implementation mechanisms employed by the courts, in particular the Supreme Court and National Green Tribunal (NGT). The methods that courts consider necessary to give effect to environmental principles are likely to provide an additional clue about the meaning and weight that they attach to these principles, thereby complementing the analyses of environmental judgments in the previous chapters.

This focus on judicially-developed implementation mechanisms also highlights another theme that runs through various chapters—the use of the courts to compel the executive to discharge its duties towards the environment. For instance, in Vellore Citizens’ Welfare Forum v. Union of India and Ors,1 Bandopadhyay in Chapter 3 points out that the principle of sustainable development was used to require executive and administrative authorities to give due regard to existing policies in their decision-making processes. Indian Council for Enviro-legal Action v. Union of India and Ors,2 one of the leading cases on the polluter pays principle, is important not only for the imposition of remedial costs by the Supreme Court, but also for its orders directing the closure of polluting factories, a power ordinarily exercised by State Pollution Control Boards (SPCB).

The analysis in this volume, therefore, demonstrates that an important way in which courts use environmental rights and principles is to define the role of executive authorities, and to demand that they take steps to remedy their improperly exercised discretion or inaction. Given this function, studying their implementation is also important from the point of view of the legitimacy of judicial institutions. If courts are routinely stepping in to address executive failure, then the successful implementation of their own orders becomes almost indispensable to the operation of environmental law. When even judicial directions go unimplemented, this has a negative impact on the credibility of the courts and raises important concerns of institutional competence.

These concerns have already been raised in an extensive body of literature that addresses judicial activism, particularly in the context of public interest litigation (PIL).3 The Supreme Court, in particular, has been criticised for playing policymaker while resolving complex, polycentric issues that it does not have the technical expertise to tackle.4 The potentially paralysing effect that this role of the courts might have on other institutions has also been discussed.5 This chapter makes a contribution to the existing literature by critically examining the various tools of implementation, used by courts in environmental cases, as indicators of the functions that courts are performing. Therefore, one of the questions that this chapter addresses is the extent to which judicial orders and directions stand in for executive actions, and the extent to which they reflect the exercise of judicial powers.6

In order to provide context to this distinction between executive and judicial functions, the next section of this chapter discusses compliance and enforcement mechanisms under existing environmental laws and rules. Conceptual differences between compliance and enforcement on the one hand, and the implementation of judgments on the other, are also discussed in this part, with brief references to the manner in which these concepts are treated in regulatory theory and international law. The section that follows provides an overview of the different implementation mechanisms used by the Supreme Court and High Courts, focusing for the most part on cases that have been discussed in previous chapters. Where particularly innovative mechanisms have been used by the courts, these are discussed in greater detail. The analytical questions that accompany the description of mechanisms in this section are: What do these mechanisms tell us about the ways in which courts interpret environmental principles? To what extent are the courts straying into the executive realm by employing these mechanisms?

Since one of the concerns of this chapter is the legitimacy of the courts, the succeeding section attempts to determine the extent to which some of the judicial orders and directions described in the third section have actually been implemented. In essence, this assesses the effectiveness of implementation mechanisms developed by the courts. The enquiry in this section is a limited one—it does not assess the effectiveness of implementation mechanisms by asking whether they have had a tangible impact on the environment. Establishing the link between judicial pronouncements and improved environmental quality is beyond the scope of this chapter; proving even a correlation of this sort would require extensive and rigorous evidence-gathering. Instead, it is restricted to following the progress of some of the key judgments discussed in this volume. Even this exercise is court-centric, in as much as I focus on the manner in which the courts themselves monitor the implementation of their own orders and directions, and the consequences that are attached to non-implementation.

In the penultimate section, the analysis undertaken in the preceding two sections is replicated for the NGT. The objective of this section is to determine the impact of the creation of a specialised environmental tribunal like the NGT. One of the reasons for the creation of the NGT was to address some of the concerns about the lack of competence of the High Courts and Supreme Court in environmental matters. It is therefore important to compare the success or the failure of the NGT in securing the implementation of its orders and directions with these other judicial institutions. The concluding section discusses the implications of the preceding analyses for the legislative and institutional reforms that are required to strengthen Indian environmental law.

Compliance and Enforcement Mechanisms
in Indian Environmental Law

A later part of this chapter demonstrates that courts have developed implementation mechanisms, at least in part, as a response to the failure of the executive to enforce environmental laws and rules effectively. In order to appreciate the courts’ role fully, it is therefore important to have an idea of the means available to executive authorities to secure compliance with the law and to guarantee its effective enforcement. These means may then be compared with those employed by courts to secure the implementation of their judgments.

However, before describing these tools of compliance, enforcement and implementation, it is necessary to clarify the manner in which these three concepts are employed in this chapter, especially since compliance and enforcement mechanisms are used with reference to one institution—the executive—and implementation mechanisms are used with reference to another—the judiciary.

Conceptual Understanding of Compliance, Enforcement and Implementation

Compliance and enforcement are concepts that are commonly used in regulatory literature in general,7 as well as in international environmental law,8 and they are used here in similar ways in the context of Indian environmental law.

Neil Gunningham describes two broad types of enforcement strategies used by regulators—deterrence strategy, which focusses on ‘the sanctioning of rule-breaking behaviour’, and compliance strategy, which attempts to ‘advise and persuade’.9 This suggests that enforcement is a broader concept than compliance—while compliance mechanisms refer to the measures used by regulators to ensure adherence to rules, enforcement mechanisms encompass both preventive measures to secure compliance, as well as measures that punish wrongs.

There is much less clarity about the manner in which implementation is understood. One of the reasons for this is that it can be applied to a range of institutions and actors. It could refer to steps that are required to be taken by those on whom the law imposes obligations; it could refer to measures that public authorities must take in order to give effect to a law or measures that States must take to give effect to international agreements. It has also been used interchangeably with enforcement measures taken by the executive.

None of these uses of the term is discounted. However, since this volume focusses on environmental cases, I discuss implementation from the point of view of the courts, although it may be used in different senses even in this context. In empirical studies,10 on the role of Indian courts in realising socioeconomic rights, implementation is viewed as one end of a spectrum of judicial effectiveness, the other end of which assesses the impact of courts on broader legal and policy changes in these areas. As mentioned earlier, it is difficult to prove the direct or indirect impact of judgments on environmental quality. Therefore, implementation is not used synonymously with impact or effectiveness in this chapter.

Court-driven implementation has also been discussed at length in the literature on PIL; in particular, the innovative remedies developed by courts to overcome the limits of traditionally adversarial judicial processes, and to monitor the implementation of their own orders, have received significant attention.11 The judicial implementation mechanisms described in this chapter are closest to this understanding of implementation. The chapter critically analyses the steps that courts consider necessary to secure compliance with their orders, the judicial equivalent of the enforcement mechanisms used by the executive. However, it attempts to distinguish this analysis from the existing literature on implementation by drawing connections between these implementation mechanisms and the courts’ articulation of environmental principles. Where relevant, it demonstrates the manner in which a particular judicial understanding of an environmental principle influences the methods that courts employ to ensure the implementation of their orders.

The courts’ use of implementation mechanisms is also inevitably influenced by the success or failure of the compliance and enforcement mechanisms used by the executive. A brief overview of the latter is therefore in order.

The Regulatory Tool Box of
Compliance and Enforcement

Inspection remains the principal compliance tool at the disposal of the SPCBs and officials have the power to enter and take samples of emissions or effluents under Section 21 of the Water (Prevention and Control of Pollution) Act 1974 (Water Act) and Section 26 of the Air (Prevention and Control of Pollution) Act 1981 (Air Act). However, the deterrence power of this tool is questionable, with contributing factors being a lack of human and financial resources.12 Given the human and financial resources available to these boards, the frequency of inspections recommended in their guidance manuals has also been termed ‘either too unrealistic or too lenient’.13

Courts have frequently been compelled to order site visits or commission expert reports from bodies like the National Environmental Engineering Research Institute (NEERI), thereby ordering the performance of inspection and monitoring functions that ordinarily ought to have been carried out by the SPCBs.14 For instance, in Bichhri, before apprising itself of the facts of the situation, the Supreme Court requested NEERI to study the pollution caused by H acid–manufacturing industries in and around the Bichhri village and to recommend remedial alternatives, in addition to a report already submitted by the Rajasthan Pollution Control Board.15 This suggests that the court felt it necessary to supplement the Rajasthan Board’s performance.

As the next section will demonstrate, courts therefore often step in to address the failure of regulatory authorities to carry out their compliance-related functions effectively. This judicial regulation, so to speak, has proved particularly necessary, given that reporting requirements under the Environment (Protection) Rules 1986 are not adequate tools for securing compliance. Under Rule 14, industries, operations, or processes that require consent under the Water Act or Air Act must submit an annual environmental statement to the relevant SPCB. This statement must include information on the percentage of variation of the pollutants discharged from the prescribed standards.16 Such self-monitoring requirements ought to assume even more importance, since the severe understaffing of SPCBs prevents them from conducting sampling and analysis on the necessary scale.17 However, such self-disclosed data cannot be used by the regulatory authorities to impose penalties or initiate prosecution; only samples taken by inspectors under the authority of the relevant statute are admissible in legal proceedings.18 This tedious process of admitting legal evidence of pollution might also explain why the higher courts prefer to appoint expert committees directly to gather evidence of pollution or other environmental harm, and to issue directions on the basis of their reports, rather than refer cases to the lower courts to initiate criminal proceedings.

The unavailability of accurate data from third-party audits may also contribute to the preference for court-appointed expert committees. In 1996, under the direction of the Gujarat High Court,19 the Gujarat Pollution Control Board instituted an alternate compliance mechanism that allowed for the third-party audit of plants with high pollution potential. Under this scheme, certified auditors submitted annual pollution readings to the Board, but a field trial conducted by economists threw doubt on the effectiveness of the scheme as a compliance tool.20

SPCBs carry out compliance assistance functions by providing training and technical guidance in the form of workshops and manuals for polluting firms, although the poor rate of compliance by small and medium enterprises in particular suggests that these measures have not had the desired effect.21 In the face of this administrative ineffectiveness, courts have had to step in. It required the sweeping oversight of the Supreme Court over numerous small tanneries in the Kanpur Tanneries22 case to bring them in compliance with minimum effluent discharge standards.23

There is limited use of market-based instruments to secure compliance and, therefore, no real opportunity to assess whether these are likely to be more effective. The metre-based charge on water consumption under the Water (Prevention and Control of Pollution) Cess Act 1977 represented the only really major statutory backing for such economic incentives.

This overview has demonstrated that environmental compliance mechanisms under the Indian regulatory framework are heavily dependent on a large number of technically competent officials carrying out their functions with a high degree of regularity and efficiency. However, SPCBs are thwarted in this because of a shortage of funds, lack of trained personnel, and inadequate guidance and coordination from the Central Pollution Control Board (CPCB). The implementation mechanisms used by courts, and described in the next part, are partly a response to these shortcomings of the regulatory framework.

SPCBs are powerfully equipped under Sections 31A and 33A of the Air Act and Water Act, respectively, to issue any directions in the exercise of their functions, including directions for the ‘closure, prohibition or regulation of any industry, operation or process’, or to stop or regulate the supply of electricity or water or other services. Before such supply is cut off or closure is ordered, boards issue show cause notices to defaulting units, requiring an explanation for non-compliance. Like their inspection record, the performance of SPCBs in converting show cause notices to closure orders is patchy.24

One of the biggest weaknesses of the environmental enforcement framework in India is the lack of flexibility that is available to regulatory authorities. The SPCBs have no power to impose civil penalties under existing laws; imprisonment sentences may be awarded or fines may be imposed only by criminal courts.25 These proceedings are notoriously lengthy and conviction rates are low.26 Although the NGT has the power to award compensation for environmental damage, this fulfills the need for remediation rather than regulation. Most proposals for regulatory reform, therefore, recommend that the Boards be awarded more powers to calibrate their responses to the kind of violation committed,27 and to institute a system of financial penalties and rewards.28

As with compliance-related functions, the lack of sufficient trained manpower also impacts the ability of SPCBs to exercise their enforcement powers. When this is combined with protracted proceedings to impose fines and secure convictions, it is no surprise that proceedings before the higher judiciary or the NGT have proved to be the preferred route for securing the enforcement of environmental law. The nature of claims brought before the Supreme Court and the High Courts has inevitably shaped the implementation mechanisms relied on by them. The next section demonstrates that courts frequently order SPCBs to exercise their powers of closure or order closure of polluting units themselves, thereby driving the enforcement functions of the executive.

From a review of the case law, it appears that Indian courts are more likely to invoke the precautionary principle29 and polluter pays principle30 when dealing with instances of pollution, while in cases where the grant of the appropriate environmental or forest clearance or other authorisation/approval (usually related to certain uses of resources) is challenged, the principle of sustainable development31 and public trust doctrine32 are more likely to be invoked. (These are not, however, watertight categories—for instance, as Chapter 4 mentions, the polluter pays principle was invoked in a case dealing with unauthorised mining and quarrying around a wildlife park.33 Similarly, Chapter 5 discusses the case of A. P. Pollution Control Board II v. Prof. M. V. Nayudu and Ors,34 where the precautionary principle was applied to determine whether a permit ought to be granted to a hazardous industry.) As discussed in the next section, the compliance and enforcement mechanisms used by the courts to deal with these different types of violations also vary.

Like SPCBs, the record of the Ministry of Environment, Forest and Climate Change (MoEFCC) in monitoring compliance with conditions attached to environmental and forest clearances is poor.35 A recent report of the Comptroller and Auditor General of India records that the MoEFCC does not have a database of violations of the conditions attached to environmental clearances; the report also notes that the MoEFCC, in its reply to a Parliamentary question in July 2016, stated that no penalty had been imposed for violating these conditions for the preceding two years.36 The Supreme Court appeared to have recognised the limitations of the MoEFCC in this regard when it recommended the appointment of a national regulator to enforce environmental conditions and impose penalties on polluters.37 Rather than directing the MoEFCC to carry out monitoring functions, in some cases,38 the NGT has ordered the constitution of expert committees to monitor conditions attached to environmental clearances and to submit monitoring reports to the Tribunal. This suggests that the MoEFCC is unable to discharge its duties fully, perhaps prompting courts to develop their own compliance and enforcement mechanisms.

This section has described the regulatory tools available to the authorities to secure compliance with and enforce Indian environmental law, and described the limitations of the authorities in utilising these tools. This creates the context for the next section, which describes the different implementation mechanisms developed by courts.

Implementation Mechanisms Developed by the Courts

In this section, we focus on the orders and directions of courts that follow the articulation of legal principles. The objective is two-fold: First, to analyse whether these orders and directions that aim to implement environmental rights and principles tell us anything about the courts’ understanding of the rights and principles themselves; second, to examine the extent to which these implementation mechanisms represent an exercise of executive or judicial functions. I have identified three broad objectives that judicially-developed implementation mechanisms in environmental cases serve—evidence-gathering, monitoring, and prevention of environmental damage and remediation.

Different kinds of mechanisms can fulfil one or more objectives. Judicial inspections and the appointment of commissioners or committees primarily serve the objective of obtaining expert opinion, although they could also be used to monitor the implementation of court orders, and their findings might form the basis for directions for remediation. The continuing mandamus is the centrepiece of monitoring mechanisms employed by courts, often supplemented by the appointment of authorities under Section 3 of the Environment (Protection) Act 1986 (EP Act).39 Mechanisms for prevention of environmental damage and remediation include injunctions that courts use to stop environmental damage, as well as directions issued to restore the environment. Awards of compensation also fall within this third category. The following paragraphs describe the various mechanisms across these groups, using examples from cases analysed in the previous chapters.

Evidence-gathering Mechanisms

These are among the most commonly employed implementation mechanisms, with courts using them to give effect to most environmental principles in different ways that are explained here. The term ‘evidence-gathering’ mechanism is being used to refer to: a) those used by courts to ascertain the state of the environment; and b) those used to provide technical expertise to courts. The first type of mechanism, which is more of a fact-finding exercise, is more commonly understood as part of the judicial function—for example, fact-finding powers are vested in civil courts while trying a suit under the Code of Civil Procedure 1908. These include the power to summon and enforce the attendance of persons, require the discovery and production of documents, and issue commissions for the examination of witnesses and documents.40 In the exercise of their writ jurisdiction under Articles 32 and 226, the Supreme Court and High Courts have developed similar fact-finding mechanisms—spot visits by judges41 and inspections by Pollution Control Boards,42 independent expert committees43 or institutions like NEERI,44 court-appointed Commissioners,45 and even amicus curiae.46

As the cases in footnotes 41–46 demonstrate, these fact-finding mechanisms have been employed by courts at various stages. In some instances, they are used to determine the existence of violations or the extent of environmental damage.47 When used in this manner, in cases relating to the public trust doctrine, such mechanisms are used to inform final orders and directions that require the restoration of the environment.48

These mechanisms are also used to give effect to the polluter pays principle. Experts are appointed to assess the damage and estimate the costs of restoration. In Kamal Nath, the Supreme Court ordered NEERI to prepare a report on the costs that would be incurred in restoring the environment, after damage was caused to the river banks of the Beas due to construction activities by a motel.49 This report was then used as the basis of a show cause notice issued to the motel, demanding why it ought not to bear the costs of reversing damage to the environment, and why an additional fine ought not to be imposed.50 A NEERI report was used in a similar manner as a show cause notice to polluting industries in the Bichhri case, proposing an amount required for remedial measures.51 However, as Chapter 4 on the polluter pays principle demonstrates, there is no consistency as regards the body appointed to conduct such fact-finding. In Deepak Nitrite v. State of Gujarat,52 the Supreme Court directed the Gujarat High Court itself to determine whether there was any damage to the environment, and if so, to lay down the norms that it ought to apply in determining the appropriate amount of compensation.

Fact-finding mechanisms may also be used to determine whether a particular environmental principle can meaningfully be applied. In Intellectuals’ Forum v. State of Andhra Pradesh, the Secretary, Ministry of Water Resources, was directed to constitute a Committee of Experts to determine whether two historical tanks in Tirupathi could still be utilised for water harvesting, which, it was argued the public trust doctrine would have required.53 Another important use of such mechanisms is to assess the degree of compliance with the court’s orders and directions, but these are more usefully discussed in the next section on monitoring mechanisms.

The second type of evidence-gathering mechanisms are those where expertise is used to inform judicial decisions substantively, in the sense that courts balance environmental interests against other concerns using expert evidence, or frame directions on the basis of expert recommendations.

One of the first cases in which the Supreme Court balanced developmental interests against ecological concerns, Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh and Ors,54 is a good example of the manner in which the Court has used expert evidence—it often relies on multiple authorities,55 but does not appear to have developed consistent criteria to evaluate and give weight to different kinds of evidence. While the Court may rely heavily on expert recommendations to frame its directions;56 it may also overrule the recommendations of expert committees without providing supporting reasons.57 The failure of courts to develop uniform standards governing the use of such evidence has meant that evidence-gathering mechanisms have lost some of their credibility. Instead, they appear to be substitutes for the exercise of legal reasoning by the courts.

In Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Company Limited,58 rather than engage in evaluating the comparative merits of a set of expert reports on the one hand, and the recommendations of an Expert Appraisal Committee (EAC) appointed by the central government on the other, the Supreme Court used judicial deference to approve the environmental clearance granted by the central government to a thermal power plant.59 Other authors have also remarked on this non-engagement with expert evidence, especially when it is contrary to the government’s development agenda, as some of the litigation on large dams demonstrates.60

Like fact-finding mechanisms that are used to inform the courts’ orders and directions, expert evidence is also relied on extensively to frame remedies. This can take several forms—making illegal tree felling a cognisable offence on the recommendation of a court-appointed Commissioner,61 ordering the preparation of an eco-restoration plan as recommended by a committee appointed under Section 3 of the EP Act,62 enforcing a recommendation in a NEERI report to make the commencement of mining operations contingent on approval by a designated authority,63 and demarcating the zone within which certain polluting activities can be carried out.64

Just as courts have relied on a range of actors to perform fact-finding functions, the kind of expert evidence used by the courts also varies. The courts may rely on Government-appointed committees,65 independently appoint individual experts or institutions,66 or use a combination of both.67 The strict rules regarding the admissibility of evidence in traditional adversarial processes are relaxed, leaving the courts open to the charge of cherry-picking expert evidence that best aligns with the sociopolitical views of the judges. An analysis of the ‘expertisation’ of environmental adjudication argues that the Supreme Court ‘seems to have moved on a continuum from deference to defiance of executive fiat without any apparent reasons for differentiating between these cases’.68

This overview of evidence-gathering mechanisms suggests that they serve either as triggers for the application of environmental principles, or as tools to give effect to these principles, once they have been applied. For instance, fact-finding mechanisms have been used quite effectively to help establish the fact of environmental damage as well as the kind of remediation required, both of which are essential for the operationalisation of the polluter pays principle and public trust doctrine. When the precautionary principle and principle of sustainable development are invoked, this is usually followed by a judicial review of decisions taken by the executive assessing environmental risk or balancing environmental interests against others. Such forms of judicial review are likely to be aided by expert evidence.

The use of such mechanisms per se by the courts does not necessarily involve the exercise of executive functions. Courts ought to have the flexibility to gather the facts relevant to the adjudication of environmental disputes, which are inherently polycentric. However, it is the use of these mechanisms by the courts as proxies to take policy decisions about the environment and development that encroach on executive functions. The use of such mechanisms, especially in their fact-finding form, highlights the failure of executive authorities to perform their crucial functions of inspection and monitoring, prompting the judiciary to take over. More evidence of this kind of executive failure is demonstrated in the next section on monitoring mechanisms.

Monitoring Mechanisms

One of the defining procedural innovations in Indian PIL is the continuing mandamus, which allows courts to monitor the implementation of their orders and directions regularly. Vineet Narain v. Union of India69 is one of the first cases in which this mechanism was employed by the Supreme Court to monitor the discharge by the Central Bureau of Investigation of its statutory duty. The rationale advanced by the Supreme Court for the use of this tool was the need for a permanent solution to the continuing inertia of the agencies in question.70 A one-time mandamus directing the agencies to perform their duties was deemed insufficient; instead, it was considered more expedient to issue directions from time to time, requiring the agencies to report to the Supreme Court and thereby allowing the court to monitor the progress made.71 The continuing mandamus is therefore conceived of as an implementation mechanism designed to tackle systemic failure by executive authorities in carrying out their functions. Given the general failings of environmental regulatory authorities (briefly described in the previous section), it is no wonder then that the continuing mandamus has proved to be a popular tool in environmental cases.

The simplest and most direct way in which the continuing mandamus is employed by the courts is by issuing it to the agencies or authorities responsible for implementing judicial orders and directions. Usually, such bodies are required to submit progress reports on implementation at intervals that are specified by the courts. The continuing mandamus is a device that allows courts to impose accountability on the executive, while also allowing it the flexibility to modify its orders and directions, a much-needed requirement in typically polycentric environmental cases. For instance, in the Delhi Vehicular Pollution case,72 although the Supreme Court ordered all government vehicles to run on compressed natural gas (CNG), it was persuaded by groups opposing this order to issue a direction to an expert committee, to determine whether other fuel types might constitute more acceptable options, both environmentally and economically.73

This example also shows that the use of the continuing mandamus allows courts to become sites for the exchange of opinions, or a sort of policymaking by relevant stakeholders in PIL cases. This exchange of views often takes place more formally, through a court-appointed expert committee or task force. In a Delhi High Court judgment on the allocation of cycle rickshaw licences (which also dealt with questions of road traffic and air pollution), a continuing mandamus was issued in order to constitute a special Task Force, which would examine all aspects of vehicular movement, invite views from interested parties, and make proposals. 74

However, the flexibility afforded by the continuing mandamus has also allowed courts to greatly overstep their role and engage in micromanagement. One commentator describes in detail the manner in which the Supreme Court used the continuing mandamus to transform public interest litigation into ‘a perennially unstable and fundamentally malleable jurisdiction’.75 In addition to monitoring, the continuing mandamus permits courts to ‘take up fresh causes of action’.76 One of the consequences of passing interim orders rather than a reasoned judgment is that ‘some of the most far-reaching impacts of PIL [public interest litigation] take place through—what is effectively—pure judicial fiat’.77 This implementation mechanism, rather than shedding light on the courts’ reasoning, has had the effect of diluting it. This is evident from the minimal judicial engagement with the statutory and regulatory framework.78

Courts often appoint other bodies to monitor the implementation of their judgments. These could take the form of committees79 or statutory authorities.80 In Banwasi Sewa Ashram v. State of Uttar Pradesh,81 a Board of Commissioners was appointed to monitor the directions of the Supreme Court regarding the resettlement and rehabilitation of Adivasis who were displaced by the construction of a thermal power plant. This Board also comprised a representative of the Adivasis. Another prominent example is the Environment Pollution (Prevention and Control) Authority, appointed in pursuance of the Supreme Court’s directions in the Delhi Vehicular Pollution case,82 which included independent experts and officials from Delhi’s municipal corporations. The Authority has been vested with the power to take up matters suo motu, or on complaints made by individuals or organisations regarding the violation of air quality or emission discharge standards. It can also issue directions under Section 5 of the EP Act in respect of such violations. In the Aravalli Mining case,83 apart from Government officials, the Supreme Court also appointed three ‘representatives of the public’ as members of the Monitoring Committee that would inspect mines, although these representatives were also experts, rather than laypersons or local residents.84

Like the courts’ use of evidence described in the previous section, there is no consistency in the manner in which they have appointed monitoring committees, although there appears to be a similar privileging of technical and official expertise over laypersons or civil society groups in the use of these implementation mechanisms.

In some instances, monitoring mechanisms are not limited to overseeing the implementation of the courts’ orders and directions. The Central Empowered Committee (CEC) was appointed by the Central Government,85 in pursuance of the orders of the Supreme Court in the Godavarman case, to monitor and ensure compliance with its orders. It was also empowered to issue guidelines for the location and functioning of saw mills and to regulate their capacity for sustainability, besides being vested with broader powers to protect and manage forests and wildlife under the applicable laws and rules.86 In the exercise of these functions, the CEC has made a wide range of recommendations. It initiated a significant change in the policy of valuation of forests by recommending the adoption of the Net Present Value,87 was involved in the framing of rules governing the disbursal of compensatory afforestation funds between the Centre and the states,88 has issued directions for the demolition of all fish tanks within a wildlife sanctuary,89 and has suggested that environmental clearances, granted to mining leases within 10 km of national parks and wildlife sanctuaries in Goa, be suspended until a proper assessment is made of the adverse impact of mining on flora and fauna.90

Although the Forest Advisory Committee constituted under Section 3 of the Forest (Conservation) Act 1980 is the statutory body vested with the power to make recommendations to the Central Government regarding the diversion of forest land, the recommendations of the CEC are frequently sought. This requires the CEC to balance environmental interests against developmental concerns regularly.91 Evidently, the CEC functions as a sort of supra-regulator in the field of forest conservation. As one body, it performs all three functions of government—legislative, executive, and judicial. As the examples given earlier demonstrate, it is a fact-finding and monitoring body, as well as one that has the power to frame general guidelines and recommend sweeping policy changes. From the general, it can go back to the particular, as it makes complex balancing decisions regarding specific instances of diversion of forest land. In the exercise of all these functions, the CEC is accountable only to the Supreme Court, which often reproduces the recommendations of the CEC verbatim in its orders. The breach of the principle of separation of powers that CEC’s functioning entails, and the conflict created with other statutory authorities, has been criticised for creating ‘faulty jurisprudence’.92 However, it should also be noted that the Supreme Court has dismissed a challenge that was made to the credibility of the CEC,93 clarifying that orders are passed on the basis of the recommendations of the CEC only after the satisfaction of the Court. In any case, since the transfer of more than 300 cases to the NGT from the Supreme Court in 2015,94 the role of the CEC has diminished.

This criticism that the CEC has attracted ought to be contrasted with the praise that has been conferred on a similar authority, the Dahanu Taluka Environment Protection Authority,95 appointed by the Ministry of Environment and Forests (MoEF) (as it was previously known), under the orders of the Bombay High Court. It was charged with protecting the ecologically fragile area of the Dahanu Taluka, implementing the precautionary and polluter pays principles, and ensuring compliance with expert recommendations made by NEERI, the notifications issued by the MoEF, and the orders issued by the Bombay High Court and the Supreme Court.96 As part of these duties, the Authority ordered the installation of a particular technology within the thermal power plant, obtained a Rs 300 crore bank guarantee from the company taking over the plant, successfully resisted the construction of an international port in the Dahanu Taluka,97 and required pre-afforestation schemes as conditions precedent to the grant of clearances for development projects.98 The openness of the Authority to local viewpoints and effective leadership have been cited as factors for its success,99 despite erratic financial assistance from the MoEF and hostility from the Maharashtra government.100 However, it could be argued that another factor is the narrow circumscribing of its functions when contrasted with the enormous ambit of the CEC. Monitoring mechanisms like court-appointed authorities are likely to function more effectively when dealing with a particular case and operating within a limited jurisdiction, as in Dahanu, rather than when they are vested with sweeping powers to govern, like the CEC.

The use of the continuing mandamus favours the passing of interim orders, which in turn offer less scope for the courts to expound on the meaning of the environmental rights and principles that they apply. In several cases, the Supreme Court has either failed to cite Constitutional provisions or environmental principles101 while passing orders, or has failed to engage in a discussion of the relevant statutory framework.102 Just as the evidence-gathering mechanisms discussed in the previous section allowed courts to take technical decisions without actually appearing to do so, the use of monitoring mechanisms, especially the appointment of authorities, has allowed courts to exercise legislative and executive powers through a substitute. Like public interest litigation in other spheres, the use of such mechanisms is partly an attempt by the judiciary to step up in the face of executive inaction or failure.103 However, the more the courts deploy these mechanisms, the more this appears to rob other branches of government of the initiative to take action on their own to protect the environment.104

Mechanisms for Prevention of Environmental Damage and Remediation

Environmental cases brought before Indian courts ask for broadly two kinds of relief—either to prevent activities or projects that have the potential to cause environmental damage, or to halt activities or projects that have already caused such damage, and seek remediation for damage caused (if any). Naturally, the kind of implementation mechanism used by the courts is influenced by the kind of case brought before them. Preventive mechanisms are usually used in cases that challenge an approval (such as, an environmental or forest clearance) granted to a project by the regulatory agency concerned. Quite frequently, the challenge might also be about the fact that the project had commenced without obtaining the necessary clearance.105 In such cases, courts may require project proponents to apply for the clearance, quash the clearance already granted106 (although this function is now performed in the first instance by the NGT), or order a fresh assessment of the potential benefit and harm of the project.107

It is not necessary that this fresh assessment be restricted to scientific, technical, or ecological considerations. Religious and cultural considerations may also play a role in the granting of approvals, as the Niyamgiri Mining case108 demonstrates. In this case, since the mining was proposed to be carried out in the Niyamgiri Hills sacred to the Dongria Kondh tribe, the Supreme Court ordered the MoEF to take a final decision on approving a bauxite mining project only after the local Gram Sabhas affected by the project had made their own determination regarding its desirability.

Courts may also go beyond the mere upholding or setting aside of environmental clearances. In G. Sundarrajan v. Union of India,109 while upholding the environmental clearance granted to the Kudankulam nuclear power plant as part of the country’s national policy, the Supreme Court passed several additional directions to ensure safety and security in the operation of the plant—periodic inspections by the MoEF and the Atomic Energy Regulatory Board (AERB), the development of a surveillance and monitoring programme for spent nuclear fuel, training courses for state government officials and other stakeholders, and the discharge of its corporate social responsibilities by the Nuclear Power Corporation of India Limited (NPCIL). In such instances, the courts, in an attempt to accommodate the interests of different stakeholders, appear to be venturing beyond their traditional judicial function of reviewing the clearance.

Unlike the grant of environmental and forest clearances, the grant of the consent-to-operate by SPCBs under the Water Act and Air Act, does not appear to have been frequently challenged before the Supreme Court and the High Courts. However, the NGT now examines the grant of such consent by SPCBs.110 Before such consents came to be challenged before the NGT, appeals were made to courts to stop pollution by units that may validly have been granted the consent-to-operate, but were now violating their permits or prescribed environmental standards, Vellore being a case in point. The implementation mechanisms employed by the Supreme Court in this case are set out in greater detail later. More recently, the Supreme Court directed that the consent-to-operate would only be granted to industries with functional effluent treatment plants, and also set up strict implementation mechanisms for its order, fixing accountability on the member secretaries of SPCBs and the secretaries of environment departments within state governments, besides requiring data analysis by the Central Groundwater Authority, followed by submission to the relevant bench of the NGT.111

In Vellore, the Supreme Court ordered the central government to appoint an expert authority under Section 3(3) of the EP Act, headed by a retired judge of the Madras High Court.112 The authority was directed to implement the precautionary and the polluter pays principles,113 although the Court only gave more detailed directions regarding the implementation of the latter principle. The authority was given the power to assess the environmental damage, identify the individuals/families affected by it, and determine the compensation after devising a just and fair procedure. This amount was to be forwarded to the Collector/District Magistrate of the area concerned, to collect it as arrears of land revenue from the polluters.114

The Supreme Court clearly intended the authority to take over some of the functions of the SPCB, given that the authority was conferred with the power to direct the closure of an industry in case of failure to pay compensation,115 as well as the power to frame schemes in conjunction with expert bodies to reverse the damage caused to the environment.116 Even the power to permit the reopening of the polluting tanneries was transferred to the authority rather than requiring the consent of the SPCB.117 The authority was also conferred the power to review the cases of all tanneries operating within a certain area and to order their permanent closure or relocation.118 The judicial mechanisms employed in the Vellore case are a good combination of mechanisms for prevention and remediation, the effectiveness of which are discussed in the next section.

Injunctions are another example of mechanisms for prevention and remediation. While they may be used to prevent environmental damage, such as the irreversible pollution of drinking water reservoirs,119 they may also be mandatory injunctions that direct entities to take steps to reverse environmental damage, as the chapters on the polluter pays principle (Chapter 4) and the public trust doctrine (Chapter 6) demonstrate. Injunctions require the balancing of competing considerations, especially when determining whether to allow potentially environmentally damaging activities to continue. The Supreme Court, however, has been far from consistent as regards the metric that it applies for such balancing, both while reviewing environmental or forest clearances, and while determining whether to halt certain kinds of activities.

From restricting itself to assessing whether the government had taken into account relevant and material considerations,120 to adopting the ‘reasonable person’s test’ to determine the risk of harm to the environment or human health,121 the Supreme Court has applied widely differing standards as triggers for the application of mechanisms for prevention.122 It has been particularly inconsistent about the acceptable level of harm, as Chapter 5 on the precautionary principle has already demonstrated. The confusion in the Court’s reasoning is especially apparent in Lafarge Umiam Mining Pvt. Ltd v. Union of India,123 where the Court claims to apply the principle of proportionality and the doctrine of margin of appreciation while reviewing the clearance granted to a mining project, although it effectively ends up applying the same standards of unreasonableness that a more traditional judicial review would have entailed.124 This kind of inconsistency makes it difficult to learn more about the Courts’ understanding of environmental principles, even from legal tests used to determine whether mechanisms for prevention ought to be applied.

While negative remedies like injunctions fall squarely within the ambit of judicial functions, mechanisms for remediation, which require positive steps, tend to be used by courts to bypass executive authorities. As the deployment of evidence-gathering and monitoring mechanisms in the previous sections has demonstrated, this in turn is a reflection of the failure of SPCBs to perform their statutory duties. However, it might also be a reflection of the limited powers at the disposal of SPCBs to take restorative steps, which is discussed again in the concluding section of this chapter. First however, the success or failure of the implementation mechanisms described here are analysed in the context of some of the cases discussed in previous chapters in this volume.

Effectiveness of Implementation Mechanisms

There is no doubt that the Supreme Court has made an important contribution to Indian environmental jurisprudence through the incorporation of international environmental legal principles and concepts, some of which have been modified for the Indian context, like the public trust doctrine and the standard of absolute liability.125 However, as this volume demonstrates, much of the Court’s reasoning is unsatisfactory, setting up a weak foundation for its orders. For the Court to retain its legitimacy, it becomes all the more important to evaluate the success with which these orders are implemented. This section tracks some of the prominent cases that have been discussed in other chapters, not just to gain an accurate sense of the degree of implementation, but also to uncover the different factors that might contribute to successful implementation.

Vellore is a good case to assess for implementation because all the environmental principles discussed in this volume, except for the public trust doctrine, feature prominently in the Court’s judgment. Additionally, as the previous part demonstrated, the Supreme Court gave fairly detailed directions regarding the manner in which the Loss of Ecology Authority was to function. However, the Authority has not performed well in one of its primary tasks, that is, awarding compensation. A study found that compensation had been distributed only in a few talukas, and only 347 out of 547 industries had paid the compensation amount.126

The method used by the Authority to assess damage and calculate compensation has also been criticised. The Authority is alleged to have used only data furnished by the Revenue Department and the Tamil Nadu Pollution Control Board (TNPCB), without interacting with a single farmer affected by the discharge of untreated effluents by the tanneries, and apparently without taking into account a scientific study assessing the loss of ecology that the authority commissioned the Tamil Nadu Agricultural University to prepare.127 The Authority appears not to have lived up to its name—rather than assess the loss of ecology, its award, according to the Vellore Citizens’ Welfare Forum, assesses loss only in terms of loss of agricultural production, and even then, takes into account ‘only the loss of crop and not the deterioration of the value of land’.128

This unsatisfactory implementation of the Court’s orders is aggravated by the extraordinary delay in their implementation. It took two years to constitute the Loss of Ecology Authority, despite its prompt notification in the wake of the Court’s order, and more than three years to examine representations from the various parties before the final award of the Authority was made in 2001.129 Finally, in 2016, 20 years after the Supreme Court’s order, the Madras High Court ordered130 the winding up of the Authority and the transfer of the 28,000 claims that were pending before it,131 to the NGT. It remains to be seen whether the NGT will be more effective in disposing of this huge volume of claims.

Some of the reasons that Geetanjoy Sahu identifies for the failure of the Loss of Ecology Authority are: inability to decentralise its decision-making process, the lack of capacity of the Vellore Citizens’ Welfare Forum to keep up its activism in the years following the Supreme Court’s judgment, and political and market factors that encourage small-scale leather industries that have a ‘relatively high pollution-to-production ratio’.132

Factors like these that affect the implementation of orders in environmental cases will inevitably vary from case to case, and it is difficult to point to a common set of social, political, or economic circumstances that determine the implementation of a judgment. In Bichhri, a pollution case similar to Vellore, there has been comparable delay in awarding compensation despite the smaller number of industries involved,133 although the reason for this appears to be stubborn non-compliance and delaying tactics by the respondent industries.134 Some of the industries also claimed to have closed down.135 The monitoring mechanisms employed by the Supreme Court in this case, that is, quarterly progress reports to be filed by the Government, do not appear to have had the desired effect. Factors that are not within the court’s control obviously play a crucial role in determining the successful implementation of its orders, there are equally a host of ways in which courts themselves can influence the manner in which their orders are implemented.

Of these internal factors, so to speak, the language used by the courts, as well as the type of action required, may have some influence on implementation, although this may often be subverted by external factors that have nothing to do with the courts. The language used by the court refers to the degree of authority in its orders: are they in the nature of binding directions or does the court couch them in the form of softer recommendations?136 This affects the manner in which orders are interpreted by the entity to whom they are directed. In Lafarge, the Solicitor General argued that the delay in compliance with the Court’s direction, to set up a national regulator for the environment, was because the Government had understood it as a recommendation rather than a mandatory requirement.137

Sometimes, however, the gravity of the issue under consideration might mean that even a recommendation is acted upon. In the Oleum Gas Leak case,138 the Supreme Court ‘requested’ the government to take necessary steps to regulate hazardous industries, and also ‘impressed’ upon it the need for a national policy to locate such industries in places with scarce populations. In response, the Manufacture, Storage and Import of Hazardous Chemicals Rules were notified in 1989. In 1990, the government approved the Second Master Plan for Delhi, identifying category ‘H’ industries that were large and associated with hazardous emissions, and required to shift out of Delhi within three years.139 The government’s response to these recommendations must also be understood in the context of the Bhopal gas tragedy and the legal questions surrounding the liability of Union Carbide, of which the Supreme Court was also seized.140

Like the government, the offending industry in the Oleum Gas Leak case complied with the orders of the Supreme Court without ‘complaint or demur’.141 This ought to be contrasted with the aggressively litigious strategy adopted by the industries in Bichhri to evade compliance. It is difficult to point to the reasons for effective implementation of the Court’s orders in the Oleum Gas Leak case, as opposed to Bichhri. In both cases, the industries were denied permission to restart operations until they complied with the court’s orders. In both cases, the Court also appointed expert committees to monitor the implementation of its orders. However, as mentioned earlier, the Oleum Gas Leak case was coloured by the events in Bhopal, and the consequent weight of political pressure determined not to let another polluter off lightly. Perhaps the financial pressures that compelled compliance by the industry in this case, appear not to have been as much of a threat in Bichhri, evident from the ease with which one of the Bichhri units pleaded bankruptcy to avoid paying costs, while simultaneously investing Rs 3 crores in a new plant in Vapi.142

Delay in implementation, however, appears to be a perennial feature of environmental cases. In the previous example, the attitude of the respondents and the prevailing political atmosphere both played a role in determining whether the Supreme Court’s directions would be implemented speedily or not. As mentioned earlier, another factor that influences the speed with which directions are implemented might be the kind of action that the courts require government or other entities to take. For instance, a direction to constitute specialised environmental courts,143 which will require legislation to be drafted and resources to be invested in creating new judicial machinery, is likely to take far more time than, say, framing a policy to regulate the use of ecologically fragile areas. In environmental cases, courts have required a wide range of actions, including the enforcement of existing legislation,144 the implementation of existing guidelines,145 drafting and implementing new rules,146 framing a new policy,147 constituting a new executive or judicial authority,148 introducing new technical standards in industries,149 or conducting public hearings.150 The investment of time, money, and administrative resources that each of these directions requires is likely to play a role in determining the manner in which they are implemented.

However, the kind of action required is obviously non-determinative, and even when the subject at hand is something as uncontroversial as the introduction of environmental education in schools and colleges,151 there can be serious delays in implementation. In the Environmental Education case, the first order was passed in 1991, but the writ petition was disposed finally only in 2010, with a gap of nearly 12 years between the first and second orders. A possible reason for delay in this case might have been the many different authorities involved in its implementation—apart from the MoEFCC, there was also the Ministry of Human Resources Development (MHRD), University Grants Commission (UGC), the different state boards of education, National Council of Educational Research and Training (NCERT), All-India Council for Technical Education (AICTE), and National Council for Teacher Education (NCTE). In one obvious instance of overlap, the NCERT duplicated work when it framed a syllabus in compliance with the Court’s order,152 and then soon after, made an application to revise it, in light of the MHRD’s creation of the National Curriculum Framework (NCF).153 In contrast, the direction to constitute National and Coastal Zone Management Authorities in the CRZ Notification case,154 which might be presumed to have taken more time, was implemented relatively quickly (two-and-a-half years from the Court’s order), perhaps because the Court was merely ordering the implementation of an obligation that already existed in the CRZ Notification and also because the court was dealing only with the constitution rather than the functioning of the authorities.

The conclusion to be drawn then, from tracking prominent environmental cases over the past three decades, is that there is perhaps no conclusion that can be drawn about the factors that make the courts’ implementation mechanisms successful in some instances but not in others. However, general trends suggest that the courts’ monitoring mechanisms are likely the most effective in ensuring that its orders are implemented. Although the deadlines set by the courts might not always be met by the executive, the spectre of a court-appointed body overseeing the time-bound implementation of the court’s orders is an important factor in guiding the executive’s response. The Delhi Vehicular Pollution case stands out as an example of a case in which the Supreme Court closely prodded the executive to frame and implement policies to regulate public transport and curb air pollution, and continues to do so. (The wisdom of the policies themselves is open to question, but is an issue distinct from the implementation of the court’s orders.) In this case, the Supreme Court repeatedly issued notices to the relevant authorities, regularly required status reports from them, and recruited experts as well as Delhi citizens to monitor the implementation of its directives. This stringent monitoring might not have been sufficient to ensure timely implementation; without it, however, there might not have been implementation at all. More recently, the Supreme Court directed compliance with the 1 April 2017 deadline, to bar the sale and registration of vehicles non-compliant with Bharat Stage-IV standards.155

As for the external factors that have influenced judicial implementation mechanisms, organised interest groups appeared to play a particularly important role in the Niyamgiri Mining case, through local tribes, as well as non-governmental organisations (NGOs), both local and international, that grew into powerful civil society movements exerting pressure on the government to implement the orders of the Supreme Court.156 Similarly, public and political opinion seems to have been a driving force behind the government’s implementation of the Supreme Court’s directions in the Oleum Gas Leak case.157

However, organised interest groups can work in the opposite way as well, to delay implementation. Examples include corporate pressure in the Niyamgiri Mining case,158 and the auto industry, truck lobbies and bus operators in the Delhi Vehicular Pollution case.159 When influential and organised interest groups are pitted against each other, the political stand of the party in power is likely to prove crucial in determining implementation, as was evident in the Niyamgiri Mining case.160 When there are organised pressure groups on either side, other factors that are likely to tilt the balance one way or the other are the financial and technical resources at the disposal of the State. For example, in the Oleum Gas Leak case, although the government enacted rules to regulate hazardous processes in the face of public and political opinion, it was unable to implement them effectively because of a lack of funds, infrastructure, and personnel.161

The response of the bureaucracy is also vital in determining whether the Supreme Court’s orders will be implemented well or poorly. It is this body which is responsible for framing policies, implementing rules, coordinating the actions of relevant government ministries and departments, and conducting public hearings. The more inclusive and transparent the bureaucracy is, the better is the implementation.

Clearly, courts cannot control many of the factors that influence implementation and that have been described in this part. However, the factors that do appear to be within its power are the use of non-ambiguous language in framing its orders and directions; the deployment of strong supervisory mechanisms to oversee implementation, especially when there are multiple and complex directions requiring compliance over a particular time period; and the consistent use of expert advice to frame directions that are of a technical nature. The next section considers whether the NGT has eliminated some of the weaknesses in the implementation of judicial orders in environmental cases.

Implementation under the NGT

The Supreme Court highlighted the need for specialised environmental courts in Nayudu162 and the matter was subsequently taken up the Law Commission of India in 2003 in its 186th report.163 The National Green Tribunal Act (NGT Act) was passed in 2010, but it was not until the Supreme Court issued directions164 and the Government was directed to find premises for, and appoint members to, the Tribunal, that it could commence functioning. In addition to judicial members, the NGT is to consist of no less than 10 and a maximum of 20 expert members.165 If necessary, the Chairperson may also invite persons of ‘specialised knowledge and experience’ to assist the NGT in particular cases.166 It was felt that a specialised environmental tribunal would use its expertise to take into account the polycentric and interdisciplinary nature of environmental cases, to pass realistic orders and directions. This would ease the burden on the higher judiciary, which in any case, was experiencing an erosion of legitimacy as it continued to pass orders and directions that were not being implemented. The NGT is also explicitly required to apply the principles of sustainable development, the precautionary principle, and polluter pays principle while passing its orders, decisions, and awards.167 The previous chapters have demonstrated that the Supreme Court and the High Courts have not clearly articulated the meaning of these principles; given the expertise of the NGT, it might be expected that the content of these principles, particularly complex balancing exercises or the assessment of irreversible damage, will be undertaken with greater rigour.

The NGT initially attracted praise for its ability to stand up to the government as well as corporate groups for their failure to observe environmental laws and rules.168 In particular, it has quashed environmental clearances granted to large development projects for non-compliance with environmental impact assessment and public participation requirements.169 However, some of its later orders have attracted the same criticism as the sweeping directives of the Supreme Court in some environmental cases, although part of this criticism comes from the MoEFCC, against which the NGT often finds itself in opposition.170 For example, its decision to ban all diesel vehicles that are more than 10 years old from entering or getting registered in Delhi has been criticised for arrogating powers of governance to itself, despite being a judicial institution, and for failing to ground its orders in legal reasoning.171

The danger with this is that the NGT risks its own orders remaining unimplemented, in the same way as some of the directions of the Supreme Court have been. An example of this is its imposition of green tax on trucks destined for other states that pass through Delhi.172 The concern with this is that the successful implementation of this kind or order relies primarily on ‘the same administrative set-ups and political machinery they [courts] castigate for lack of inaction to implement these levies and their utilisation for fixing or avoiding environmental damage’.173 Already, there are several NGT orders that have not been implemented effectively. For instance, the ban on the use of heavy machinery for sand mining,174 the enforcement of the Draft National Policy for Management of Crop Residues,175 as well as, interestingly, an order to a State EAC to decide, on merit, the proposals submitted for environmental clearances by mineholders in Sindhudurg, Maharashtra.176

More often than not, information about the non-implementation of the NGT’s orders can be sourced from the follow-up action taken by the Tribunal itself. For example, in Narhari Lingraj v. State Environment Impact Assessment Authority,177 the Pune Bench of the NGT issued a show cause notice to the State EAC for withholding environmental clearance to the mine owners. In other instances, the NGT has ordered civil imprisonment and payment of a fine, by Commissioners of a Municipal Corporation as well as the Corporation itself,178 has required personal explanations for non-compliance from government officials,179 and has imposed exemplary costs for failure to file an adequate response.180 The NGT also has the power, under Section 26 of the NGT Act, to impose imprisonment for a period up to three years, or a fine up to Rs 10 crores, for failure to comply with an order of the Tribunal.

Apart from this explicitly conferred power to take action for non-compliance, the other implementation mechanisms employed by the NGT are largely the same as those already described in this chapter. The NGT regularly appoints expert committees for a variety of functions—to study the impact of construction work in ecologically sensitive areas;181 to perform fact-finding functions such as assessing the extent of diversion of traditional grazing lands to infrastructure, commercial and defence purposes, as well as to attend public hearings in affected villages;182 to assess the damage caused to the environment by certain activities,183 and to monitor pollution.184

Evidently, expert panels appointed by the NGT serve as an all-purpose implementation mechanism for it. The power to employ mechanisms for prevention and remediation has specifically been conferred on the NGT by Section 15 of the NGT Act, which empowers it to award relief, compensation, and restitution. Implementation mechanisms that were employed in ad hoc fashion by the Supreme Court and the High Courts now have a legislative source of authority. However, despite the institutionalisation of these mechanisms, there are sometimes enduring problems with their functioning, as the following examples demonstrate.

In one of the most prominent matters heard by the NGT in recent times—damage to the Yamuna floodplains because of a cultural festival organised by the Art of Living Foundation—an expert committee was constituted to assess the environmental damage caused. In its preliminary report, the committee estimated that Rs 120 crores would be required to restore the environment. The final report, however, avoids mentioning a specific figure, although reports suggest that a couple of members desired the inclusion of a cost estimate, including a penalty.185 The committee submitted that a professional organisation might conduct such an estimate more suitably, and confined itself to listing the works that were required to be done at the site.186 In response, the NGT asked the committee to get this estimate done by an appropriate organisation, although the timeline set by it was too short.187 This was followed by an estimate of Rs 100–120 crores, as compensation for restoration work by a four-member committee, ultimately reduced to Rs 42.02 crores estimated by a seven-member committee.188 The experience of the NGT in this case suggests that it might benefit from developing more consistent procedures regarding the assessment of environmental damage and the quantification of compensation.

In another instance, the NGT even issued bailable warrants against three members of an expert panel constituted by it to study the carrying capacity of the hills in the Shimla region.189 There were several reasons for this, all related to the manner in which the expert panel had conducted itself—all the questions raised by the Tribunal had not been covered in the panel’s report, some pages of the report had not been signed by any of the panel members, and the minutes of one of its meetings had not been recorded.

Jurisdictional clashes with the High Courts might also prove to be an obstacle in the implementation of the orders of the NGT. The Nagpur Bench of the Bombay High Court ordered the National Highway Authority of India to undertake road repairs, after taking suo motu cognisance of a newspaper Article describing the state of a section of a highway between Maharashtra and Madhya Pradesh.190 It permitted tree felling, which was incidental to the repairs. When an environmental organisation filed a petition against the widening of the road before the NGT,191 the NGT ordered a stay on the tree felling, until the authorities were able to demonstrate the authority in law under which the felling was to be undertaken.192 As a result, ‘directly contradictory orders were issued by two judicial authorities, such that obeying the orders of one would have put the concerned authorities in contempt of the other’.193

Like the Supreme Court, the NGT may invite criticism for overstepping its judicial function and for passing unrealistic orders and directions. It should focus instead on the stronger and more effective use of its implementation mechanisms. It has been suggested that both courts and the NGT ‘should lay down strict conditions for the implementation of environmental judgments, identify the executive agency responsible for carrying them out, and ensure the accountability of the agency if it fails to follow directions’.194

Conclusion

It is difficult to draw definitive conclusions about the meaning of environmental principles from analyses of judicial implementation mechanisms. Irrespective of the environmental principle used by the courts, the implementation mechanisms are usually a combination of measures for prevention and remediation, developed with expert inputs, and monitored with external assistance. More often than not, these mechanisms serve as a substitute for functions that ought to be routinely performed by SPCBs, forest officers, regional offices of the MoEFCC, and a range of other executive authorities that are responsible for ensuring compliance with and the enforcement of Indian environmental law.

These implementation mechanisms have had a mixed record, with a variety of social, political, and economic factors usually influencing the manner in which orders and directions are implemented. However, there are also some weaknesses in the manner in which courts themselves have deployed these mechanisms—inconsistency in the manner in which technical expertise is used, vesting court-appointed authorities with sweeping powers, a lack of uniformity in the application of standards of judicial review, and insufficiently deterrent consequences for non-compliance. Courts must be more rigorous about their legal reasoning, more willing to frame their orders and directions with reference to the existing statutory and legal framework, and clearer about the language that they employ.

Even with these changes, however, there are natural limits to the effectiveness of judicial implementation mechanisms. Unless the current environmental regulatory architecture is significantly streamlined and strengthened, the strongest judicial directives are likely to be of limited value. Criminal offences across environmental statutes ought to be rationalised, the possibility of civil penalties ought to be considered,195 uniform methods to assess environmental damage and calculate compensation ought to be evolved, and principled guidance for executive authorities ought to be developed.196 Institutional reform proposals,197 however, appear to focus primarily on the creation of new authorities, prompted in part by the Supreme Court’s direction to appoint a national environmental regulator.198 Such proposals are only superficial attempts to streamline and consolidate existing laws and authorities that do not substantively change the structure of environmental governance in the country, and are positively harmful in as much as they seek to whittle down the powers of the courts. Judicial bodies must be vigilant of such attempts to dilute their authority. It becomes all the more important for them to exercise restraint in their use of implementation mechanisms that stray into legislative and executive functions. This must simultaneously be accompanied by statutory and regulatory reform, to ensure that all three institutions of government play their appropriate roles in securing compliance with and the enforcement of Indian environmental law.