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Legalising Illegality

The interpretation of the principle of proportionality by the Indian Supreme Court in cases relating to post facto clearances can put environmental rule of law in jeopardy. The Court has overlooked the application of its own jurisprudence on proportionality and the structured four-part proportionality test, says TARINI MEHTA

TARINI MEHTA | New Delhi |

India is the 5th most polluted country in the world (World Air Quality Report, IQAir, 2019). Its natural resources and biodiversity are fast dwindling. Weak environmental governance is the primary reason behind this. This is exemplified by the issue of post-facto clearances which the Ministry of Environment and Forests has attempted time and again to allow, with the objective of giving industries leverage to operate, despite violations of the laws of the land. The 2020 Draft EIA Notification continues down this trajectory. In decisions relating to post facto clearances, the Supreme Court has overlooked principles it has applied in other cases.

Polluting industries in Ankleshwar industrial area, Gujarat, operating for about a decade without an Environmental Clearance (EC), were ordered by the National Green Tribunal to close and their ECs were revoked. The Tribunal declared that the Circular of the Ministry of Environment and Forests on the basis of which the attempt had been made to legalise their operations was “void, ab-initio.” It further declared, “we have no hesitation in holding that ex-post facto process of obtaining ECs…was just a farce, stage managed, wrong and impermissible under the Law and suffered from illegality, which is incurable in any manner.”

The Supreme Court in its decision on the case (Alembic Pharmaceuticals, judgment delivered on 1 April 2020), agreed with the NGT’s assessment, also stating that “the administrative circular is contrary to the EIA Notification 1994, which has a statutory character. The circular is unsustainable in law.” It, however, gave a clean chit to the defaulting industries, doing so through a questionable application of the principle of proportionality.

Proportionality is intended to be a ‘principle of justice,’ to serve as a check on administrative actions and ensure that they do not excessively violate fundamental rights. When infringement of rights outweighs the interests intended to be pursued by an administrative or legislative measure, it can be considered excessive and unconstitutional. This principle, with foundations in the Aristotelian concept of justice, has become the mainstay of the protection of human rights across the world. A particularly rich and well-articulated jurisprudence on the principle has emerged from courts in Europe.

The interpretation of the principle of proportionality by the Indian Supreme Court in cases relating to post facto clearances can put environmental rule of law in jeopardy. The Court has overlooked the application of its own jurisprudence on proportionality and the structured four-part proportionality test, grounded on Justice Barak’s conceptualisation and the formulation used by the German Federal Constitutional Court: A measure restricting a right must serve a legitimate purpose and be a suitable means for furthering it. There must not be any less restrictive but equally effective alternative and the measure must not have a disproportionate impact on the right-holder. The legitimate goal must “be of sufficient importance to warrant overriding a constitutionally protected right or freedom and also that such a right impairs freedom as little as possible” (Aadhar case, 2018).

In its role as guardian of fundamental rights, the Supreme Court has time and again recalled its long history of employing a proportionality analysis in cases dealing with the right to life and other fundamental rights, even when not calling it as such. Indeed, in an environmental context, where people’s life and health are at risk, a review of impacts on the fundamental rights to life and health guaranteed by the Constitution is a key aspect of proportionality. Local communities, the first sufferers, have to live with serious impacts of pollution and environmental degradation, very often across generations. Further, as pollution and environmental harm does not remain confined to manmade borders, impacts are often felt across state and international borders as well, with thousands, even millions, being affected. These are some of the impacts that an Environmental Impact Assessment is meant to address, in order to mitigate adverse consequences as far as possible, and put in place remedial measures including an Environmental Management Plan.

Ankleshwar, where the industries under scrutiny in Alembic Pharmaceuticals are located, is a highly polluted area. The Central Pollution Control Board’s Comprehensive Environmental Pollution Index report reveals that water, air and soil parameters in and around the Ankleshwar industrial area are among the most critical. Pollution from Alembic Pharmaceuticals alone impacted crop production by up to 50 per cent and contaminated the only source of drinking water. This was corroborated by the Gujarat Pollution Control Board when it tested the water in the area nine years after the unregulated operation of the plant. It also found that the industry did not have a functioning effluent treatment plant.

A decade later when the case reached the Supreme Court, it acknowledged the unlawful establishment and operation of the industries. Compensation was ordered, which was in no way commensurate to the harm done to the environment and the local population. To achieve sustainable development, stringent and deterrent measures need to be taken against polluters, as well as administrative authorities that enable industries to operate unlawfully. Environmental Impact Assessments are a key mechanism by which adverse impacts on the environment can be minimised, managed and addressed. They must be properly conducted. Environmental Clearances should be granted only after a full review of EIA Reports and the Environmental Management Plan.

The future of environmental governance looks bleak: The 2020 Draft EIA Notification intends to allow post facto clearances. This growing pattern of post facto clearances will reduce the environmental clearance regime to a mere rubber stamp.

The writer is Assistant Professor, Environmental Law and Director, Environmental Law and Science Advocacy Forum, Jindal School of Environment and Sustainability, O P Jindal University.