Image Source- https://bit.ly/2YQODPz

This article is written by Rangita Chowdhury of Symbiosis Law School NOIDA. It analyses the judgement given by the National Green Tribunal in the Art of Living Foundation case, which was in news for alleged environmental degradation caused by the foundation during an international event held in March 2016 and also analyses the inconsistencies of the judgement of the tribunal. 

Introduction 

Human activities impacting the environment are ever-increasing. It is happening all over the world including India. The benefits that nature provides us are so enticing that we often fail to assess the price that the environment has to pay for them. Complete suspension of development activities, in today’s world, is perhaps an impossible idea as the economy outweighs all other considerations.  Thus, the concept of environmental compensation has gained ground to address the issue.

Facts 

  1. Founded in 1981 by Shri Shri Ravi Shankar, The Art of Living Foundation is a Non-Governmental Organization working on humanitarian and educational matters.
  2. In March 2016, this organization staged a three-day cultural event – the World Cultural Festival from 11th to 13th March, at the Yamuna floodplains in New Delhi.  It was organized to celebrate 35 years of the organization since its inception. 
  3. The Yamuna banks are considered to be ecologically very fragile but the arrangements for the festival were stupendous. A 7-acre stage, claimed to be the largest in the world, and capable of accommodating 35,000 musicians and dancers, was set up. New dirt tracks were built, in addition to 650 portable toilets spread over a thousand acres of area. According to the organizers, the event was attended by 35 lakh people and over 20,000 international guests.
  4. A petition was filed on 8th February 2016 before the National Green Tribunal, Principal Bench, New Delhi, being Original Application (OA) No 65 of 2016 by Sri Manoj Mishra, a retired officer of the Indian Forest Service against the Delhi  Development Authority (DDA). Several miscellaneous petitions were clubbed with this OA and the respondent parties, other than DDA, was the Art of Living (AOL) Foundation, the Ministry of Environment & Forest and Climate Change.

Shri  Mishra had earlier filed a written complaint against the respondents to the Lt. Governor of Delhi on 11th December, 2015 and later filed the present application before the NGT.

Issues  

  1. Whether the Yamuna floodplains and wetlands have been and are being destroyed ecologically, environmentally and biologically by the Art of Living Foundation. 
  2. In the event of such adverse environmental impact and consequence, if any, whether the organizers are liable to pay any compensation or fine for such damage and restore the venue to its pre-existing condition.

Relevant laws 

  1. Section 33A of the Water Prevention and Control of Pollution Act (1974)
  2. Section 6 of the Environmental Protection Act (1986)
  3. Section 15 of the National Green Tribunal Act (2010) 
  4. Section 17(3) of the National Green Tribunal Act (2010) 
  5. Section 17 of the National Green Tribunal Act (2010)
  6. Section 2(c) of the National Green Tribunal Act (2010)
  7. Section 26 of the National Green Tribunal Act (2010) 
  8. Article 21 of the Constitution of India 
  9. Article 48A of the Constitution of India 
  10. Article 51A(g) of the Constitution of India 

Arguments by both the sides

Arguments made by the petitioners 

It was prayed in the OA that the event be stalled as it would be an environmental disaster and set a dangerous precedent for the future. It was further prayed that the respondent no 3 (The Art of Living Foundation) be fined heavily for degradation of the environment and be instructed to restore the entire venue to its pre-existing condition.

Arguments made by the respondents

Respondent no.1, the Delhi Development Authority (DDA), argued that the area did not fully come under its jurisdiction. 

Respondent no. 2, the Ministry of Environment Forest and Climate Change, argued that river Yamuna, being a tributary of river Ganga comes under its jurisdiction but since the constructions being done on the floodplains were small and temporary, it did not require the Ministry’s permission. It further took the plea that the task of protecting the floodplains lies with the Ministry of Water Resources. 

Respondent no. 3, the Art of Living Foundation, argued that it had taken all the necessary approvals and clearances from different regulatory bodies and then only it started the construction works. AOL further said that it was not bound by the tenets of the Yamuna Judgement because it was not a party to the said judgement and hence, it cannot be held liable for the destruction of the floodplains. It was further claimed by respondent no 3 that the floodplains had already been destroyed long ago by agricultural activities, dumping of debris and by other activities. 

Judgment 

The judgment was passed in connection with the petitions filed against the Art of Living Foundation (an international NGO), the Delhi Development Authority and some other government organizations, praying for cancellation of a grand cultural festival to be organized by the foundation from 11th to 13th March 2016 at the Yamuna Floodplains, NCR. It was alleged by the petitioners that the preparations for holding the event had already destroyed and degraded the ecologically fragile environment of the Yamuna Floodplains, and if the event was allowed to be held, it would be an ecological disaster and hence it should not be allowed to be held and the organizations be fined.

The Tribunal passed an interim order on 9th March, 2016, asking AOL to pay compensation of Rs 5 Crore After giving many interim orders, the tribunal passed its final judgement on 7th December 2017. It held the Art of Living Foundation liable for the damages caused to the Yamuna floodplains which are under the limited jurisdictions of the DDA. The foundation would be responsible for restoration/restitution of the floodplains (limited to the area that was allotted to it) to the condition that existed before the event. The sum of Rs. 5,00,00,000 deposited by the foundation as environmental compensation would be used for restoration/restitution of the floodplains. It was also ordered that DDA would be free to recover additional compensation from the foundation if they need to undertake more restoration works and the foundation would be liable to pay it. On the other hand, surplus amounts, if any, would be refunded by DDA to the foundation. The Tribunal, while pulling up DDA for failing to perform its statutory role in the protection of the environment, did not impose any extra fine on the authority, as the tribunal was satisfied that it had already decided to build Biodiversity Parks and to improve the environmental condition of the area from their funds. The court did not find any merit on the objections raised by the foundation regarding the report of the High Powered Committee. 

Interestingly, in its judgement, the tribunal did not decide on the right of the organizers to hold the event, because it felt that the matter did not fall squarely under its jurisdiction. It concentrated on the pollution that resulted from the event and how this issue would be settled in accordance with the law.

Analysis 

Compensation granted by NGT is a matter of study as it is an expert tribunal dealing exclusively on environmental issues. The compensation that NGT orders, helps in environmental restoration and also enables us to study the scientific examination and analysis carried out by the tribunal in determining the amount of compensation. Being an expert body, the tribunal is expected to accurately determine the amount of compensation keeping in consideration the aspect of scientific uncertainty. Thus the common man, environment activists, the aggrieved parties and the polluters, all have the right to assume that the amount of compensation will be more or less proportionate with the quantum of damage inflicted since the tribunal has technically equipped experts to deal with the matter.

The NGT Act has given wide discretion to the tribunal in the matter of awarding compensation This has often resulted in the tribunal giving unprecedented compensation in many cases. No limit of compensation is provided in the act, rather the act requires that the principle of sustainable development, the principle of polluter payment and principle of precaution, all are applied in letter and spirit at the time of awarding compensation. However, an analysis of the orders and judgement passed in the Art of Foundation Case will reveal that there was little scientific approach or objective criteria employed by the tribunal at the time of awarding compensation.

The petition filed in 2016, raised concerns on the destruction of the Yamuna Flood Plains and its impact on the environment. It was stated in the petition that preparations for the event started long back and the flora and fauna of the plain were highly impacted on account of the preparatory activities of the event. 

The initial compensation determined by the Expert Committee of the Tribunal kept the amount at Rs 120 Crore. Later the amount was reduced to Rs 28.73 Crore which the committee calculated as the amount that would be required to bring the compacted soil to its former state. Finally, the Tribunal asked the organizers to deposit an amount of Rs 5 Crore, out of that Rs 25 Lakh would have to be deposited in advance as a pre-condition for hosting the event.

As we will see, there was no scientific approach or objective criteria employed by the Expert Committee in making their recommendation. Further, the first observation was made on “visual assessment” which is the last thing that we should expect from a body of experts dealing with the environment and how it is impacted by pollution and degradation.

The Expert Committee blamed the organizers for the destruction of the entire floodplain and removal of the natural vegetation. It was also stated that the ground is “totally devoid” of water bodies and that, “no plant cover was visible anywhere”. Strangely, the onus was put completely on the organizers when it is a matter of record that illegal agriculture was being practised at the venue for a long time before the event was planned. Thus is it very natural the vegetation of the floodplains was cleared for practising agriculture.

Surprisingly, the same members of the Expert Committee, after conducting an extensive research on the same floodplain in 2013, had earlier reported that there was no natural vegetation in the area and its biodiversity was already severely compromised. A report of their findings was also submitted to the NGT at that time (“Restoration and Conservation of River Yamuna”). The report categorically stated that the life-supporting potential of the river had already been lost and that “the flowing water, the river bed, the floodplain forest and grassland ecosystems are locally extinct”. The floodplain had thus lost its natural function. While stating in the 2013 report that “there is zero dissolvable oxygen” in the river stretch flowing adjacent to the venue and no fish can live in that portion, the committee recommended to the NGT in 2016 that the organizers will be responsible for the “restoration of the fauna such as fish” in the floodplain. Strangely, the NGT did not take into account this contradiction. If the floodplain was already polluted for such a long time, then why would the organizers be solely held responsible for its destruction? It is hard to understand why the earlier report was not taken into consideration at the time of passing the order.

More so, at the time of submitting its report to the NGT in 2016, the Expert Committee could not quantify the loss of vegetation and biodiversity of the plain stating the same as “invisible loss”. However, the same committee could quantify the loss three years back. Further, the Expert Committee itself admitted that it failed to differentiate between the damage that was already in place before the event and the damage that was caused on account of the event. The NGT thus erred in failing to understand the implication of these inconsistencies.

The Expert Committee while recommending the compensation of Rs 28.73 Crore had stated that the floodplains had been compacted and levelled on account of the event and this amount would be required for undoing the soil compaction. But this finding also appears to be erroneous as neither any pre-event baseline survey or any post-event base-line survey was done. Soil samples before and after the event should have been collected and after that, a scientific assessment of the level of compaction ought to have been done. But the committee relied on visual estimations, which is most unexpected from a pool of experts.

This brings to another very vital question. The NGT is a specialized tribunal which often gives its judgement based on recommendations of experts. But if their experts give their views on visual estimation without any scientific assessment and even contradict their views, then how can the common man have his faith on the tribunal? The Art of Living Foundation thus stated that they were disappointed with the judgement and later, to justify their views, even submitted satellite images of the area that showed that the number of trees before and after the event were the same.

Another lacuna in the order of the NGT is that they did not hold the Delhi Development Authority (DDA) or any other Govt organization accountable for anything. The authorities took permission from several authorities before staging the event. The Tribunal should have penalised them for granting permission, but it did not do so, despite admitting that the permissions were wrongly granted. Further, If the environment of the area was in such a poor state before the event, then why was the DDA or any other government organization not held responsible for the “destruction of all vegetation”.

                   

How the compensation amounts were reduced also goes to show that there is no clear methodology adopted by the tribunal for quantitative assessment of environmental damages. It is also debatable whether the presence of high dignitaries in the event prompted the tribunal to reduce the compensation amount by such a great magnitude.

The NGT has the expertise to quantify environmental damage. But this case shows that it is rather reluctant to use this expertise. Perhaps resorting to such a method would be time-consuming or expensive and hence not resorted to. But such arbitrary decisions are not likely to go down well with the public. People may lose confidence in the tribunal’s ability to effectively adjudicate on environmental issues involving scientific uncertainty, for which the tribunal was constituted.

Conclusion 

The case is interesting and NGT has been heavily criticized for how it dealt with the issue. The tribunal was constituted for giving a concrete shape to the State’s commitment towards our concern for the environment and is perhaps the most important and empowered body to decide cases of environmental issues and damages caused to it. I feel the primary goal of the tribunal is to protect the environment. But in this case, despite being aware that the Yamuna floodplains are severely impacted from an environmental standpoint, it allowed the organizers to go ahead with the event, knowing very well that the condition of the floodplains would become even worse after such a big event. The judgment thus stamped the policy of ‘pay and pollute’ and encouraged the exploitation of the environment. The case has set a bad precedent for the future; it is likely to encourage parties to use the judgement to their advantage and undermine our fight against environmental damage.  

References

 


LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

LEAVE A REPLY