This article is written by Sayan Chandra and Raghu Pratap, students of GNLU, Gandhinagar. In this article, the authors try to explain the approach of the courts, where the approach is shifting from state-centric responsibility regime to public centric responsibility.

Introduction

The recent judgment of M. C. Mehta v. Union of India (see here), delivered in 2019-2020 over a series of orders, the latest being the one delivered on 13th January, 2020, illustrates the dedication of the apex court to improve the pollution ridden condition of the capital of the country. It has suggested several drastic steps which include technological up-gradation as well as penalties for violations of directions and for commission of activities that can potentially lead to pollution. The judgment is not only relevant and important with regard to the Delhi pollution issue, but it also deals with certain important questions of enforcement of Directive Principles of State Policy and the Fundamental Duties. The judgment goes at length to say that the DPSPs, can be enforced under the aegis of Article 21, as the right to a pollution free environment is a basic fundamental right. This has been backed by the practical application of the preventive approach against both the public and the state coupled with the sustainable development issues. The main question arose with the penalty being asked to pay by small and marginal farmers and their inability to buy technological devices. 

The case commentary deliberates on that point and identifies these two clash points and tries to explain the approach of the courts, where the approach is shifting from state centric responsibility regime to public centric responsibility. However, in that approach as well, the assistance of the state and their responsibility is present as well, as it is also the duty of the state to promote agriculture and not take away the source of livelihood of the farmers. Henceforth the questions of sustainable development become an imperative and probing question, assuming utmost importance.

The case of M.C. Mehta v. Union of India (see here) pertains to the large-scale problem of environmental pollution. The Court in its order dated 4.11.2019, recognises the level of pollution in the Delhi NCR region and its sharp rise at certain times of the year and the inaction of authorities with respect to the same. The issue of stubble burning by farmers in the states of Haryana, Uttar Pradesh and Punjab, a major source of pollution is taken up. Further, concerns regarding the Odd/Even scheme in Delhi were raised. Various other overwhelming factors such as construction and demolition activities, garbage burning and disposal, dust, etc. were noted by the Court. In the order dated 6.11.2019, financial support of Rs 100/- per quintal was directed to be given to farmers in order to achieve zero stubble burning. The absence of a proper garbage disposal system was also noted by the Court. In its order dated 13.11.2019, the Court takes up the grave concern of smog and enquires into the feasibility of smog towers. The amalgamation of the aforementioned factors of pollution has led to this petition.                       

Issues

1. In the context of environmental protection, whether the Directive Principles of State Policy are enforceable through Fundamental Rights under Article 21 of the Indian Constitution?
2. Whether penalty can be meted out through the preventive approach principle under the public trust doctrine?

Discussion in the Judgment

In light of the aforementioned facts and issues, which were posed before the court, the discussion revolved mainly with respect to enforcement of the Directive Principles of State Policy [DPSP] and the re-affirmed the importance of the public trust doctrine in a preventive approach manner.

The DPSPs and the Fundamental Duties laid down in articles 47, 48, 48A and especially 51A(g) which confers duty upon both the Government and the individuals to protect nature, was put to stake due to problems of governance. The use of better machinery and scientific methods of agriculture, directed much earlier in 2018 could not have been implemented due to paucity of state funds and the problem of governance. But this was effectively countered by the Court which held that the protection of environment was not only a matter of the DPSPs or a duty but a fundamental right of every individual, which has now taken the shapes of air pollution and water pollution control statutory acts, the enforcement of which cannot be stayed based on the grounds of problem of governance. It was also reiterated in Municipal Council Ratlam v. Vardhichand and Ors (see here) that state-created bankruptcy cannot be a ground for the staying of performance of these statutory obligations under Article 21. Furthermore, the allegations of the Centre upon the State with respect to implementation and vice versa with respect to the framing of schemes has been seriously looked down upon.

This leads the debate towards the fight between sustainability and development. This took shape when there was an application to lift the complete ban on construction activities and allow it at partial times. While the court agreed to the same, but the ban was lifted partially and there were strict directions to the pollution control board to look that the air quality is not getting degraded. Additionally, it has been held in Vellore Citizens’ Welfare Forum v. Union of India and Ors (see here) that the imposition upon states to procure new machines and to look for the benefit of the small and marginal farmers and to help them procure these machines, all point towards the growing concern of sustainable development, which has been linked to the precautionary principle and the public trust doctrines enshrined in articles 48A and 51A(g).

The second clash appeared with respect to the preventive approach taken by the court with respect to the farmers burning the stubble to prepare the field for crops. This was held to be punitive for the small and marginal farmers, who rarely have access to modern machinery and will have to resort to stubble burning and thereafter pay the fine of Rs. 100 per quintal of crop burnt. This was denied by the court as a valid ground as agriculture being the backbone of the nation has to be sustained and it is the obligation of the governments to ensure that facilities are provided on time despite a paucity of funds.

The direction of ensuring the growth of public transport and shunning of the odd/even scheme in Delhi confirms the concern of the court to prevent the acceleration of pollution in Delhi and further levy penalties for the same. Moreover, the outdated vehicles were asked to be disposed of at the earliest and the use of kerosene as fuel to be stopped. In line with this approach, the court went a step further, to take judicial notice of the conditions in the rivers and the water pollution issues at hand. This particular ordered, additionally asked the governments of Punjab and Haryana, U.P. and Rajasthan to showcase their functioning with respect to pollution control measures, which is a clear reflection of the precautionary approach, whereby the court takes suo moto judicial notice of the unsettling and dire situation of the polluted cities and rivers of India.

The Legal Principles

The case at hand reflects the preventive approach, precautionary approach of the judiciary under the public trust doctrine. The prevention principle is the basis of major environmental legislations which seeks to curb the actions which can lead to pollution. It has been held to be the basis of international conventions as well as statutes like the Solid Waste Management Rules, 2016, which in this instance was to be strictly followed by all State Governments. This approach has been followed by this court in previous instances in the case of M.C. Mehta v. Union of India (1997) (see here) of environmental pollution as well, for example, with respect to pollution leading to the degrading of the Taj Mahal, the court accepted the plea to setup preventive remedial measures and directed the government accordingly. In a landmark case in State of M.P. v Kedia Leather and Liquor Pvt Ltd. (see here), the court had even linked issues of pollution with public nuisance under s. 133 of The Code of Criminal Procedure (CrPC) which has been held by this court to be a preventive and penal provision. The court in this case also has obtained a similar approach by imposing penalties for not following the preventive measures and direction given with respect to the working of the civic bodies.

Besides, even the precautionary approach has found enough reference in this judgment. The Precautionary Principle has already been held to be a part of substantive law, which is reflected through the environmental legislations. This court in the case of Arjun Gopal and Ors v Union of India (UOI) and Ors (see here) has defined this principle saying that the very word “’precautionary’ indicated that, such a measure was taken by way of precaution which could be resorted to even in absence of definite studies.” This is based on the proposition that the lack of systematic study should not hamper the environment. In this case as well, even before the arrival of the reports by the chief secretaries, the court had given particular orders to prevent activities like stubble burning, construction activities and vehicular issues, which can be the cause of pollution.

Both these approaches flow from the public trust doctrine expressed in articles 47 and 48A, wherein the state is to act as a trustee for the public and has to maintain the nature for the benefit of the public and in utmost good faith. This benefit of public is not to mean the benefit of an individual but all the public collectively and hence the concept of sustainable development is intrinsically intertwined with the public trust doctrine. 

Summary of the Judgement 

The Court issued several directions. With respect to the prevention of stubble burning, it ordered for a comprehensive plan to be placed before the Court including the action taken. It further asked for a final decision with respect to incentive and disincentive of Rs 100/- per quintal. The Court also directed the Central Government, State Governments of Punjab, Haryana and U.P. to prepare a scheme for making available Combine Harvesters, Happy Seeders, Hydraulically Reversible MB Plough, etc., dedicated to small and marginal farmers to be made available either free of charge or on nominal rental basis. 

The Court also directed the Government of NCT of Delhi/NCR Region and concerned Governments of Haryana and U.P. to file reports with respect to identified hotspots and steps to be taken for their management. The Court, in accordance with the Delhi Government’s proposal, ordered that the Smog Tower be completed within three months. It further directed that smog guns be used in Delhi and NCR region at certain pollution-prone locations.

The Court further directs the Governments of NCT of Delhi, U.P., Haryana and Rajasthan, to identify dumped plastic, industrial and other wastes and to ensure that waste is not burnt and is used for processing/incineration. The Pollution Control Boards of Delhi, Haryana, Rajasthan and U.P. are further directed to monitor the industrial areas and to take stringent. For construction and demolition, the Court directed the Governments of NCT of Delhi, Rajasthan, Haryana and U.P. to file a status report regarding compliance with the Construction and Demolition Waste Management Rules, 2016. The Court, with respect to waste burning, ordered that the compliance of the Solid Waste Management Rules, 2016 are to be ensured by the Government of NCT of Delhi and Governments of Haryana, Rajasthan and U.P. 

Analysis

The fundamental right of right to life under Article 21 involves nature and the environment in its conception without which life cannot be enjoyed. The right to life and liberty includes the guarantee of a pollution free environment. Thus, it has been held in the case of M.C. Mehta v Kamal Nath (see here) that any disturbance of the basic environmental elements such as air, water and soil that are necessary for life, would be hazardous for life within the meaning of Article 21. 

The Directive Principles of State Policy (DPSP) provide that protection and improvement of the environment is duly enjoined on the Government as observed in the case of Tata Housing Development Co Ltd. v Aalok Jagga and Ors (see here). Article 48A under the DPSP lays down that it is the duty of the State to make an endeavour to protect and improve environment. Under Article 51(A)(g) of the Constitution, it is the fundamental duty of every citizen of India to protect and improve the natural environment. The aforementioned articles are in consonance with Article 21, therefore, need to be looked at collectively. A collective appraisal would lend favour to the DPSP of protecting the environment to acquire an enforceable character. Collectively, the articles illustrate “The Precautionary Principle”, now recognised as a law of the land. “The Precautionary Principle” makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation.

In the context of the current judgement, Article 21 is the overarching right that is violated. As such, the particular DPSP that is enjoined on the Government makes a case for an obligation. The harmony of Article 48A with Article 21 and Article 51(a)(g), necessitates “The Precautionary Principle” in view of the immense danger of environmental degradation. Furthermore, the “Polluter Pays Principle” evolved by the Supreme Court in M.C. Mehta v. Kamal Nath, applies to the given case. Here, damages may be awarded not only for the restoration of ecological balance but also to the victims of these disturbances.

The judgment in its second part addresses certain questions with respect to preventive principle and sustainable development. Though the preventive approach is not mentioned in specific terms in judgments but all the statutory legislations has been a codification of the same, which also contains penal provisions. These preventive steps were taken here as well with respect to stubble burning by farmers, due to which they were directed to pay a fine if they continue to burn stubble. But the question which the advocate arose for the advocate was the right question in the direction of sustainable development as such a fine would hamper the working of the agricultural sector. In benefit of the small and marginal farmers, the court ordered the state to help them procure necessary machines, which is a step in the right direction. It has been clearly stated in the case of Bahubali Stone Crusher and Ors. vs. Rajasthan State Pollution Control Board and Ors  (see here) that:

“While the State is required to encourage sustainable development of the State, it is equally essential to ensure pollution free environment for the people.”

The same point has been reiterated in the present case. The court took the same step with respect to control vehicular pollution. However, the time is also ripe to make art. 51A(g) enforceable in nature, so that everyone should care about the environment. In this process, the court has linked art. 51A(g) with the precautionary principle and held to be an essential duty of the citizens which should come supplementary to their right to a pollution free environment under art. 21. Though that would in turn take away the livelihood of multiple workers. Hence, even the concept of sustainable development should be included in form of legislation with a proper procedure of calculating the required balance between preventive approach and sustainable development. It is equally the responsibility of the public to use public transport more often, to not pollute rivers or ponds, to use natural gas or diesel cars, only then can such a judgment meet its success. This can also be ensured by the state, but increasing the screening if vehicles, banning outdated ones, making the environment auditing process more rigorous and to choose industrial locations after proper environmental audits. The law or court is not averse to development as seen in the case of Vijay Singh Punia vs. Raj. State Board for the Prevention and Control of Water Pollution and Ors (see here), but while the development meets the standards of the present, they should also be able to sustain the future.

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