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Case Comment: T.N. Godavarman Thirumulpad v. Union of India, MANU / SC / 0028 / 2014 by M.Sakthivel

About the Author: Asst. Prof. M Sakthivel is an Assistant Professor at University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, New Delhi

 Environmental Law is one of the important areas in which the Supreme Court of India has contributed a lot for the protection of all the spheres of environment by creating new jurisprudences which inter alia includes “Absolute Liability Doctrine”[1], Even the international aspects of the environmental laws such as precautionary principle, polluter pays principle and sustainable development[2] have also been incorporated. Even though these developments have been done by the Indian Judiciary, the real contributors are the non state actors such as NGOs[3], private organisations[4] and obviously the common man too. In this context, it is noteworthy to quote that T.N. Godavarman  Thirumulpad’s contribution for the protection of environment in this country is immense. By filing a considerable number of Public Interest Litigations (PIL), the green man intervened in various projects and ensured that proper balance is achieved in between the utilization of resources and the preservation of the same especially in the conservation of forest resources.[5]

In this regard, his new effort in the realm of forest conservation before the Supreme Court has resulted in a major blow to the central government’s decision to provide hasty clearances to the projects that are connected with environment. The Government of India has constituted a ‘Cabinet Committee on Investment’ last year for the purpose of exclusively dealing with the projects worth more than Rs.1000 crore.[6] The Idea behind the formation of this committee is to act as a single window facility which would facilitate the investors to obtain all types of clearances which would be required for beginning such a mega project including environmental clearances within a short span of time. However, it may not be a  decisive solution hereinafter because of the Apex Court’s direction to appoint a regulator so as to monitor and approve the environmental impact assessment (hereinafter, “EIA”) at the central as well as state level. Let us discuss the case in detail.

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This interim application was filed to clarify certain points of the Apex Court in Lafarge Umiam Mining Private Limited v. Union of India.[7] As per the section 3(2)[8] of the Environment (Protection) Act, 1986(hereinafter, “The EPA, 1986”) the Central Government has the power to take necessary measures so as to protect and improve the environment. In order to execute the legislative directions stated in the section 3 (2) of the EPA .1986, the Central Government may appoint an authority if it is warranted. The same is very evident from the section 3 (3) of the EPA 1986, which reads as follows:

The Central Government may, if it considers it necessary or expedient so to do for the purpose of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise and powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures”.

From the above provision, it is possible to be concluded that it is the Central Government’s discretion to appoint an authority if necessary subjected to a condition that such authority would discharge its duties under the central government’s control. Even though, the statutory language provides discretionary power to the central government, in Lafarge Umiam Mining case, the Supreme Court emphasized the need for having a regulator at the national as well as state level for ensuring the proper utilisation of natural resources. In addition to this, the Court formulated some guidelines to be followed with respect future cases.

In the present case, the issues before the court includes:

  1. Whether the guidelines which include appointing a regulator at the national level along with state level subordinates are advisory or mandatory in nature?
  2. Whether section 2 of the Forest (Conservation) Act, 1980(hereinafter “FCA,1980”) should be read with section 3 of the  EPA ,1986  and the Forest Policy, 1988?

With respect to the first issue, as state above, while reading the statutory provision i.e., section 3 of the EPA, 1986, one may come to a logical conclusion that it is the duty of the Central Government to appoint an authority under section 3(3) for the purpose of discharging the duties envisaged in section 3(3) of the Act. Sub section 2 of section 3 is having many dimensions. Environmental Impact Assessment is one among them and important aspect too. In Lafarge Umiam Mining case, the Supreme Court of India noticed the lacunae in the existing EIA mechanism as notified in 2006[9] and directed the Central Government to have an efficient system to be put in place for the future approvals. While holding the view, the Supreme Court expressed the inability of the adjudicating forums to look into all the spheres of the problems comprehensively. However, it is very well possible, if there would be a regulator with a special mandate for the same. Therefore, the Supreme Court directed the Central government to appoint an authority i.e., a regulator. The same reasoning is extracted here as follows:

(i.2.) The difference between a regulator and a court must be kept in mind. The court/tribunal is basically an authority which reacts to a given situation brought to its notice whereas a regulator is a proactive body with the power conferred upon it to frame statutory rules and Regulations. The regulatory mechanism warrants open discussion, public participation and circulation of the draft paper inviting suggestions.

(i.3.) The basic objectives of the National Forest Policy, 1988 include positive and proactive steps to be taken. These include maintenance of environmental stability through preservation, restoration of ecological balance that has been adversely disturbed by serious depletion of forests, conservation of natural heritage of the country by preserving the remaining natural forests with the vast variety of flora and fauna, checking soil erosion and denudation in the catchment areas, checking the extension of sand dunes, increasing the forest/tree cover in the country and encouraging efficient utilisation of forest produce and maximising substitution of wood.

(i.4.) Thus, we are of the view that under Section 3(3) of the Environment (Protection) Act, 1986, the Central Government should appoint a National Regulator for appraising projects, enforcing environmental conditions for approvals and to impose penalties on polluters.

(i.5.) There is one more reason for having a regulatory mechanism in place. Identification of an area as forest area is solely based on the declaration to be filed by the user agency (project proponent). The project proponent under the existing dispensation is required to undertake EIA by an expert body/institution. In many cases, the court is not made aware of the terms of reference. In several cases, the court is not made aware of the study area undertaken by the expert body. Consequently, MoEF/State Government acts on the report (Rapid EIA) undertaken by the institutions who though accredited submit answers according to the terms of reference propounded by the project proponent. We do not wish to cast any doubt on the credibility of these institutions. However, at times the court is faced with conflicting reports. Similarly, the Government is also faced with a fait accompli kind of situation which in the ultimate analysis leads to grant of ex post facto clearance. To obviate these difficulties, we are of the view that a regulatory mechanism should be put in place and till the time such mechanism is put in place, MoEF should prepare a panel of accredited institutions from which alone the project proponent should obtain the Rapid EIA and that too on the terms of reference to be formulated by MoEF.

 

From the above judicial pronouncement, it becomes evident that the Supreme Court gave a mandatory direction to the Central Government to appoint a regulator for the purpose of EIA. The same view has been re-affirmed with a time frame for appointing the regulator. The Full Bench, while upholding the same view, stated that it is the power of the central government with a mandatory duty to appoint an authority under the same provision. Therefore, the central government has been directed to appoint an authority/ a regulator at the national level having offices at as many states possible. This shall be complied before 31st March, 2014.

With respect to the second issue, in Lafarge Umiam Mining case, the Supreme Court held that section 2 of the FCA, 1980 which says that the prior approval of the central government is required for converting the forest land for the non forest purpose, should be read with section 3 of the EPA, 1986 in the light of National Forest Policy, 1988. Due to this observation, the central government’s power under section 2 of the FCA, 1980[10] has been restricted because the power is very wide than other environmental legislations. Under section 3 of the EPA, 1986, the Central Government has the power to appoint an authority for EIA clearances whereas in section 2 of the FCA, 1980, the Central Government itself will give the clearances. This has been brought to the kind notice of the Apex Court in the present case and it has been clearly held that the authority/regulator appointed under section 3(3) of the EPA, 1986 can only discharge its duties with respect to section 3(2) of the EPA, 1986. The regulator shall not step into the power conferred on the central government under section 2 of the FCA, 1980[11].

The Full Bench has rightly exercised its power to interpret the section 3(3) of the EPA, 1986 by saying that there is a power coupled with a duty to appoint a regulator for the purposes of EIA, and that is mandatory for ensuring proper mechanism to be put in place. This decision has to be appreciated because of the fact that this decision will help to bring out more transparency in the environmental decision making process and the project clearance process too. If we look at this decision from the ongoing coal allocation and other mining issues context, it is one of the important decisions to ensure more transparency in future allocations and clearances.

Likewise, as far as the second issue is concerned, the court rightly has restricted its interpretation and held that section 2 of the FCA, 1980 is different from section 3 of the EPA, 1986. By this interpretation, the court has ensured a space for the political executives with respect to the clearances for forest land conversion.

Cabinet Committee on Investment and the Regulator

As above stated, the central government’s decision to speed up the clearance process for the mega projects would be done by the Cabinet Committee on Investment. However, hereafter those clearances shall be subjected to the regulator to be appointed under section 3 of the EPA, 1986. By doing so, the clearance of the projects, would be based on necessary   established procedures Once these procedures are complied by the regulator, the environmental decision making process would become more and more transparent. However, it may again slowdown the implementation of those mega projects[12]which would be very much essential to keep the economy on a higher growth trajectory.

Even though the regulator shall act as per the directions given by central government from time to time, it is not feasible for the regulator to provide a differential treatment for different projects. Therefore, it is worthwhile to conclude by stating that the appointment of a regulator would add a hurdle for the mega projects but surely would help in bringing more transparency in the environmental decision making process.

[1]. See M.C.Mehta v. Union of India, AIR 1987 SC 1086 (Oleum Gas Leakage Case)

[2]. See Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715

[3]. Like Peoples Union for Civil Liberty, Narmadha Batcho Andolan, etc.,

[4]. Like Vellore Citizens’ Welfare Forum

[5]. See T.N. Godavarman Thirumulpad v. Union of India, AIR 1997 SC 1228, AIR 1998 SC 769, AIR 1999 SC 97, (2006) 1 SCC 1, etc…

[6]. See Constitution of Cabinet Committee on Investment dated 2nd January, 2103. The same can be accessed at  https://cabsec.nic.in/showpdf.php?type=cci_notification (20th January, 2014)

[7]. (2011) 7 SCC 338

[8]. Environment (Protection) Act, 1986, s.3(2) reads: (2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:– (i) co-ordination of actions by the State Governments, officers and other authorities–(a) under this Act, or the rules made there under, or (b) under any other law for the time being in force which is relatable to the objects of this Act;(ii) planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution;(iii) laying down standards for the quality of environment in its various aspects;(iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever: Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;(vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents;(vii) laying down procedures and safeguards for the handling of hazardous substances;(viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;(ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution;(x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution;(xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;(xii) collection and dissemination of information in respect of matters relating to environmental pollution;(xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution;(xiv) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act.

[9]. Environmental Impact Assessment notification, 2006 has been issued by the Central Government u/s 3 & 6 of the Environment (Protection) Act, 1986.

[10]. Forest (Conservation) Act, 1980, s.2 reads: Restriction on the dereservation of forests or use of forest land for non- forest purpose. Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing- (i) that any reserved forest (within the meaning of the expression” reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;(ii) that any forest land or any portion thereof may be used for any non- forest purpose.(iii) 1[ that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.] 1[ Explanation.– For the purpose of this section” non- forest purpose” means the breaking up or clearing of any forest land or portion thereof for-(a) the cultivation of tea, coffee, spices, rubber, palms, oil- bearing plants, horticultural crops or medicinal plants;(b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild life, namely, the establishment of check- posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipeline or other like purposes]

[11]. It was held: The time has come for this Court to declare and we hereby declare that the National Forest Policy, 1988 which lays down far-reaching principles must necessarily govern the grant of permissions under Section 2 of the Forest (Conservation) Act, 1980 as the same provides the road map to ecological protection and improvement under the Environment (Protection) Act, 1986. The principles/guidelines mentioned in the National Forest Policy, 1988 should be read as part of the provisions of the Environment (Protection) Act, 1986 read together with the Forest (Conservation) Act, 1980. This direction is required to be given because there is no machinery even today established for implementation of the said National Forest Policy, 1988 read with the Forest (Conservation) Act, 1980. Section 3 of the Environment (Protection) Act, 1986 confers a power coupled with duty and, thus, it is incumbent on the Central Government, as hereinafter indicated, to appoint an appropriate authority, preferably in the form of regulator, at the State and at the Central level for ensuring implementation of the National Forest Policy, 1988.

[12]. Supra n.1 page no. 2

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