LEADLawEnvironment and

DevelopmentJournal

VOLUME

6/3

IMPLEMENTATION OF ENVIRONMENTAL JUDGMENTS IN CONTEXT: A COMPARATIVEANALYSIS OF DAHANU THERMAL POWER PLANT POLLUTION CASE IN

MAHARASHTRA AND VELLORE LEATHER INDUSTRIALPOLLUTION CASE IN TAMIL NADU

Geetanjoy Sahu

ARTICLE

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The Managing Editor, LEAD Journal, c/o International Environmental Law Research Centre (IELRC), International EnvironmentHouse II, 1F, 7 Chemin de Balexert, 1219 Châtelaine-Geneva, Switzerland, Tel/fax: + 41 (0)22 79 72 623, info@lead-journal.org

This document can be cited asGeetanjoy Sahu, ‘Implementation of Environmental Judgments in Context: A Comparative

Analysis of Dahanu Thermal Power Plant Pollution Case in Maharashtra andVellore Leather Industrial Pollution Case in Tamil Nadu’,6/3 Law, Environment and Development Journal (2010), p. 335,

available at http://www.lead-journal.org/content/10335.pdf

Geetanjoy Sahu, Assistant Professor, School of Habitat Studies, Tata Institute of Social Sciences (TISS), Mumbai.Email: geetanjoy@tiss.edu

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License

* This paper is a marginally modified version of my postdoctoral research work on Implementation of Environmental Judgementsat the Grassroots Level carried out at the Centre for Interdisciplinary Studies in Environment and Development (CISED), Bangaloreduring 2008-2009. I thank Sharachchandra Lele, Arvind Susarla and M V Ramana for their comments and suggestions on theearlier version of the draft. Special thanks to the LEAD reviewers for their invaluable comments.

ARTICLE

IMPLEMENTATION OF ENVIRONMENTAL JUDGMENTS INCONTEXT: A COMPARATIVE ANALYSIS OF DAHANU

THERMAL POWER PLANT POLLUTION CASE INMAHARASHTRA AND VELLORE LEATHER

INDUSTRIAL POLLUTION CASE IN TAMIL NADU

Geetanjoy Sahu*

TABLE OF CONTENTS

1. Background 337

2. Theoretical Perspectives 3392.1 Nature and Level of Judicial Activism 3392.2 Resource Capacity of the Parties Involved in Litigation 3402.3 Effectiveness of Environmental Regulatory Authority 341

3. Methodology 3423.1 The Case Selection: Dahanu Thermal Power Plant Pollution

(Maharashtra) and Vellore Leather Industrial Pollution (Tamil Nadu) 342

4. Selected Environmental Judgments: An Overview 3424.1 Dahanu Thermal Power Plant Case 3424.2 Vellore Leather Industrial Pollution Case 343

5. Ground Realities 344

6. Factors Determining the Implementation of Environ-mental Judgments 3456.1 Judicial Activism in the Implementation Process 3456.2 Resource Capacity of the Petitioner 3466.3 Political Economy Factor 350

7. Conclusion 352

1BACKGROUND

The role of Indian Supreme Court in resolvingenvironmental disputes has contributed immensely tothe evolution of environmental jurisprudence principlesin India. These include: recognising right to healthyenvironment as a part of fundamental rights, directingpolluters to follow the environmental norms andregulations, ordering the implementing agency todischarge their constitutional duties to protect andimprove the environment, determining compensationfor the affected people, taking suo moto action againstthe polluter, entertaining petitions on behalf of theaffected party and inanimate objects, expanding thesphere of litigation, introducing environmentalprinciples such as polluters pay principle, precautionaryprinciple, absolute liability and public trust doctrine forenvironmental safety and protection as well as well-beingof people.1

While in a series of cases the Court2 directions havebeen implemented, there are a large number of caseswhere judicial directions have not been implemented orpartially implemented. For instance, in the Oleum GasLeak case,3 the Court has evolved the doctrine of absoluteliability, clarifying the principle of strict liability whichwas developed in Rylands v. Fletcher.4 It has also developedthe principle of claiming compensation under the writjurisdiction by evolving the public remedy. But ultimately,the victims of gas leak have been left to the ordinaryrelief of filing suits for damages. In the Bichhri villageindustrial pollution case,5 regarding the contamination ofground water, the Court, after analysing all the provisionsof law rightly found that compensation can be recovered

under the provisions of Environment Protection Act.However, the assessment of compensation, its paymentand the remedial measures have still not been compliedwith.6 The Court directions in the Ganga river pollutioncase7 have also not been implemented in its strict sense.The tanneries continue to operate even though strictaction has been ordered by the Court against the pollutedindustries of Kanpur. It is found that both the sewagetreatment plants (STPs) and Common EffluentTreatment Plant (CETP) have failed to treat wasteadequately.8 In the case of S.Jagannath v. Union of India,9concerning destruction of coastal ecology by intensiveand extensive shrimp farming, the Court has directedclosure of shrimp firms and payment of compensationon polluter pays principle as well as cost of remedialmeasures to be borne by the industries. But after thejudgment, firstly the Court itself stayed its owndirections in review and thereafter, the Parliament hasbrought a legislation overruling the directions given inthe said judgment. Therefore, neither any compensationhas been paid to the farmers and the people who losttheir livelihood nor the damage done to the environmenthas been remedied. In the M.C.Mehta v. Kamal Nath case,10

fine was imposed by the Supreme Court on Span Motelfor affecting ecology of the river Beas. The Court heldthat the Motel shall pay compensation by way ofrestitution of the environment and ecology of the area.It was later clarified by the Court that no fine can beimposed under writ jurisdiction and it requiresadjudication under the provisions of EnvironmentProtection Act of 1986. An attempt to recovercompensation for the loss caused to the environmentin the case of dumping waste oil by various importersalso failed.11

Referring to the non-implementation of Supreme Courtdirections Justice S.P.Bharucha pointed out that,

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1 For more details, see Geetanjoy Sahu, ‘Implications of IndianSupreme Court’s Innovations for EnvironmentalJurisprudence’, 4/1 Law, Environment and Development Journal(2008), available at http://www.lead-journal.org/content/08001.pdf.

2 All instances of the term ‘the Court’ refer to the SupremeCourt of India.

3 M. C. Mehta and Others v. Union of India, AIR 1987 SC 965.4 Rylands v. Fletcher is a landmark English case in which the

Court of the Exchequer Chamber first applied the doctrineof strict liability for inherently dangerous activities.

5 Indian Council for Enviro-Legal Action v. Union of India (Bichhrivillage industrial pollution case), AIR 1996 (3) SCC 212.

6 See Sanjay Parikh, Development of Environmental Law: ACritical Appraisal (Paper presented at the NationalConsultation on Critiquing Judicial Trends on EnvironmentalLaw organised by the Human Rights Law Network in NewDelhi, from 23 to 24 February 2008).

7 M. C. Mehta v. Union of India, AIR 1988 SC 1115.8 Praveen Singh, ‘Bridging the Ganga Action Plan: Monitoring

failure at Kanpur’, XLI/7 Economic and Political Weekly 590,592 (2006).

9 S. Jagannath v. Union of India and Others, AIR 1997 (2) SCC87.

10 M.C. Mehta v. Union of India, AIR 1997 (1) SCC 388.11 See Parikh, note 6 above.

‘This Court must refrain from passing orders that cannotbe enforced, whatever the fundamental right may be andhowever good the cause. It serves no purpose to issuesome high profile mandamus or declaration that canremain only on paper. It is counter-productive to havepeople say, the Supreme Court has not been able to doanything or worse. It is of cardinal importance to theconfidence that people have in the Court that its ordersare implicitly and promptly obeyed and it is, therefore,of cardinal importance that orders that are incapable ofobedience and enforcement are not made’.12

Theoretically speaking, however, in any given case oncethe judgment is passed it is left to the administration toimplement the judgment so as to give effect to it. In thejudgment, though the Court issues directions to theagencies of the state as to how its decision has to beimplemented, it will not be there to oversee its actualimplementation. Nor would the Court examine theextent of its implementation and the nature of itsimpact. The enforcement agencies, in a number ofinstances that involve serious environmental problemsand public interest, are found to have taken advantageby postponing or not implementing decisions, under oneexcuse or another, notwithstanding great environmentaljudgments.13 This promoted the Court in recent times,to come up with an innovative method: continuingmandamus.14 The application of this tool suggests thatinstead of passing a judgment and closing the case, theCourt would issue a series of directions to theadministration or appoints a monitoring committee, toimplement within a time-frame, and report back to Courtfrom time to time about the progress in implementation.

This, in a way, is an attempt to ensure the implementationof Court orders.

Current debates on the role of judiciary in theimplementation of its environmental judgments pointto the dangers of judiciary replacing the environmentalregulation authority as the nodal agency of implementingenvironmental rules and regulations. Given the failureof implementing agencies in discharging its duties forvarious reasons, judiciary is stepping in to respond tothe needs and demands of the pollution affected people,especially the poor and marginalised sections ofsociety.15 Pointing to this emergent trend, social scienceanalysts caution that unlike MoEF and implementingagencies, there are no mechanisms by which judiciarycan be made accountable to the people it serves, andsuggest that a need for strengthening the existingenvironmental governance mechanism is necessary tobest protect and improve the environment.16 The debateon the role of judiciary in governance in general andenvironmental governance in particular remains trappedwithin an atheoretical framework of policy adjudicationversus policy implementation and policy making, inwhich the believer of separation of powers warn of theincreasing intervention of judiciary, and civil societygroups herald the same as a step toward ensuring rightsof the people against the democratic majoritarianism.

Though scholarly attention has focused on the increasingrole of judiciary in implementing its direction as agovernance issue, systematic exploration of the factorsthat determine the variation in the enforcement ofenvironmental judgments has not been area of primaryemphasis. In this paper, I have examined theimplementation of environmental judgments at thegrassroots level. In doing so, I have attempted to explorethe factors that determine the variation in theenforcement of environmental judgments and havesuggested the strategies required to ensure the effectiveimplementation of environmental judgments at thegrassroots level.

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12 Justice S.P. Bharucha’s Inaugural lecture at Supreme CourtBar Association’s Golden Jubilee’s Lecture Series (2001) onSupreme Court on Public Interest Litigation.

13 See M. K. Ramesh, ‘Environmental Justice: Courts andBeyond’, 3/1 Indian Journal of Environmental Law 20, 37(2002).

14 In Vineet Narrain v. Union of India and Others, Supreme Courtof India, Judgment of 18 December 1997, 1997 (7) SCALE656, popularly known as the Hawala case, the Supreme Courtadopted this technique which enabled it to closely monitorinvestigations by Government agencies, in respect of seriousaccusation made against prominent personalities. Accordingto the Court, the innovation was a procedure within theConstitutional scheme of judicial review to permitintervention by the Court on the complaint of interia bythe Central Bureau of Investigation and to find solution tothe problems.

15 See P. Leelakrishna, Environmental Law in India (New Delhi:LexisNexis, 2005).

16 For more details, see O.P. Dwivedi, India’s Environmental Policies,Programmes and Stewardship (Great Britain: Macmillan PressLtd., 1997). See also Kuldeep Mathur, Battling for CleanEnvironment: Supreme Court, Technocrats and PopularPolitics in India (New Delhi: Working Paper, Doc. No. JNU/CSLG/WP/03-01, 2001).

2THEORETICAL PERSPECTIVES

The factors determining the successful enforcement ofenvironmental judgments at the grassroots level areexplained in many ways. However, three of them arequite prominent in the literature on jurisprudence andenvironmental governance. Broadly, they could beclassified as (a) the nature and level of judicial activism(b) resource capacity of the petitioner, and (c) theeffectiveness of environmental regulatory authority.

2.1 Nature and Level of JudicialActivism

At the theoretical level, the advocates of the theory ofseparation of power between legislature, executive andjudiciary argue that the Court should not have any rolein the implementation of its own decisions. Its functionis confined only to the adjudication of laws and policies.The implementation of its judgments solely dependsupon the implementing agencies of the state. TheCourt’s intervention in the implementation of itsjudgments would violate the principle of separation ofpower and go against the spirit of democracy.17 Thequestion then arises as to how the orders made by theCourt in environmental litigation can be enforced. Theorders made by the Court are obviously not self-executing. They have to be enforced through stateagencies, and if the state agencies are not enthusiasticin enforcing the court orders and do not activelycooperate in that task, the object and purpose of theenvironmental litigation would remain unfulfilled. Theconsequence of the failure of the State machinery tosecure enforcement of court orders in environmentallitigation would not only be to deny effective justice tothe affected people of pollution on whose behalf thelitigation is brought, but it would also have ademoralising effect and people would lose faith in thecapacity of environmental litigation to deliver

environmental justice. The success or failure ofenvironmental litigation would necessarily depend to theextent to which it is able to provide actual relief to thepollution affected people and restore the damage doneto environment at the grassroots level. If Court orderspassed in environmental litigation are to remain merelypaper documents, then the innovative method ofallowing Public Interest Litigations (PILs) for resolvingenvironmental problems by the Supreme Court wouldbe robbed of all its meaning and purpose. It is, therefore,absolutely essential to the success of the PIL that amethodology should be found for securing enforcementof Court orders in environmental litigation. It is in thissituation that the Court has introduced anotherinnovative method to ensure the implementation of itsdirections through Court-Appointed MonitoringCommittee.

The case on point is the one concerning forestconservation in the T.N. Godavarman v. Union of India. Itstarted in 1996 as a case seeking directions from theApex Court for stopping felling of trees in Nilgiris forestand to regulate indiscriminate cutting of timbers in theNilgiris Forest. The case is yet to be finally decided.Instead, a series of orders passed by the Supreme Courtthat concern protecting forest, wildlife, preservingbiodiversity, National Parks, evicting encroachersincluding tribal, is still in different stages ofimplementation.18 The Court adopted a novel methodin making the administration work. It made thegovernment create a think tank like Central EmpoweredCommittee, make preparations for implementation ofdirections and report at every stage the progress madein achieving the objective. It was indeed an effort by theCourt to assist, partner and guide the administration inprotecting the forest across the country and present amodel for the rest of the county to emulate. In this

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17 For more details on the role of judiciary in Indian democracy,see S. P. Sathe, Judicial Activism in India (New Delhi: OxfordUniversity Press, 2001). See also Upendra Baxi, ‘The Avatarsof Indian Judicial Activism: Explorations in the Geographiesof [In] Justice’, in S.K. Verma ed., Fifty years of Supreme Courtof India: Its Grasp and Reach (New Delhi: Oxford UniversityPress, 2000).

18 Some of the significant orders issued by the Court are thefollowings: the Order of 12 December 1996 clarified certainprovisions of the Forest (Conservation) Act, 1980 and alsoextended the scope of the Act. The Court held that theword ‘forest’ must be understood according to the dictionarymeaning; all ongoing activity within any forest in any statethroughout the country, without the prior approval of theCentral Government, must cease forthwith; the Court orderof 9 May 2002 constituted an Authority at the national levelcalled the Central Empowered Committee and assigned itthe task to monitor the implementation of the Court orders,removal of encroachment, implementations of working plan,compensatory afforestation plantations and otherconservation issues.

process of implementation and in its enthusiasm topresent such a model, however, the Court has got itselfmired in the complexities of a problem that was at oncemanaged by the bureaucracy, local institutions andthrough traditional form of forest management.19

Few would argue today that court should not intervenein the implementation process. Instead, today’s debatesfocus on how legitimate is court’s intervention? Whytoday’s court is engaged in implementing its owndirections to such an extent is also in heated debate. Yetgenerally there is an agreement that court is not singularlyresponsible for the alleged intervention in theimplementation process. Other governmentalinstitutions and society in general, share responsibilityfor the marked increase in judicial activity.

2.2 Resource Capacity of theParties Involved in Litigation

The theory of resource capacity is based on the premisethat those who don’t have access to resources(knowledge, power, capacity to negotiate) fail in everyforms of activity, especially when different types ofpower structures are involved in the litigation process.‘Powerful players’, or those possessing greater resourcesin terms of wealth, experience and rapport with thepolitical groups on account of powerful players, are morelikely to influence the judicial direction than ‘powerlessgroups,’ or those possessing lesser amounts of theseresources.20 For instance, Songer and Sheehan foundthat ‘upperdogs’ (e.g., state, federal government andbusiness groups) fare better than ‘underdogs’ (e.g.,individuals and community) in the U.S. Courts ofAppeals.21 Since environmental problems caused by theindustry and state are powerful actors, the people getaffected by the pollution have not enough resources tomake the polluter follow the prescribed standards for

the protection of environment. While the resourcecapacity theory is more concerned about the judicialdecision-making process, it can also be applicable to theimplementation of judicial directions, especially onenvironmental cases in Indian context. Generally,environmental cases involve complex scientific andtechnical issues which require expertise to deal with. Inmost of the cases, the polluter is a private party or stateitself which has access to all resources to justify itsactivity as subscribing to the established environmentalnorms and regulations. On the other hand, the affectedpeople or the environmental groups have to mobiliseresources to prove that the activity of the industrial unitsis violating the existing environmental laws and affectingtheir livelihood. There has been a commonunderstanding that the state is more powerful as far asaccess to resource is concerned than have businesses orother organisations and that businesses have been morepowerful than community or affected party. It isunderstandable that superior resources allow the ‘haves’to put pressure on the implementing agencies, interferein the implementation of judicial decisions, and so forth,which may delay the chances of implementation ofjudicial decisions or justify their activity as environmentalfriendly.

In addition to the resource capacity of the state toinfluence the implementation of court judgments,research has also demonstrated that implementation ofcourt judgments is often contingent upon the role playedby the convincing capacity of the petitioners and theircontinuous involvement in the litigation.22 It is arguedthat the role of petitioner does not end with filing thepetitions and getting the decision in his/her favour ratherhe/she has some responsibility to keep monitoring theimplementation of judicial decisions. The environmentalgroup which has initiated the environmental litigationand secured the order of the Court providing a wide-ranging remedy to the pollution affected people shouldtake the necessary follow-up action and maintainconstant pressure on the state authorities or agencies toenforce the court order. If it is found that the Courtorder is not being implemented effectively, it mustimmediately bring this fact to the notice of the Courtso that the Court can call upon the state authorities oragencies to render an explanation. It is said to be believed

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19 For a more detailed analysis of the case, see ArminRosencranz, Edward Boenig and Brinda Dutta, TheGodavarman Case: The Indian Supreme Court’s Breach ofConstitutional Boundaries in Managing India’s Forests(Washington DC: Environmental Law Institute, 2007).

20 See Marc Galanter, ‘Why the ‘Haves’ Come Out Ahead:Speculations on the Limits of Legal Change’, 9/1 Law andSociety Review 95, 160 (1974).

21 See D.R. Songer and R.S. Sheehan, ‘Who Wins on Appeal?Upperdogs and Underdogs in the United States Courts ofAppeals’, 36/1 American Journal of Political Science 235, 258(1992).

22 This inference is made based on the discussion withenvironmental lawyers of Supreme Court of India namely,Ritwick Dutta, Sanjay Parikh, and Raj Panjwani.

and given greater powers. The Environment (Protection)Act, 1986 (EPA), was passed, to act as an umbrellalegislation. The Act also vested powers with the centralgovernment to take all measures to control pollutionand protect the environment. The Environment(Protection) Rules, 1986 were subsequently notified tofacilitate exercise of the powers conferred on the Boardsby the Act. The EPA identifies the MoEF as the apexpolicy making body in the field of environmentprotection. The MoEF acts through the CPCB and theSPCBs. The CPCB is a statutory organisation and thenodal agency for pollution control. The EPA in 1986and the amendments to the Air and Water Acts in 1987and 1988 furthered the ambit of the Boards’ functions.24

However, an analysis of the environmental regulatoryauthority in India suggests that Central and stategovernments and the CPCB and SPCBs have adopted asoft attitude towards polluting industries and have donelittle more than issuing warnings. The result is thatenvironmental laws are practised more in violation thanconformity and a large number of industries operatewithout proper safety and pollution control measures.There are many factors that explain the failure ofimplementing agencies in environmental pollutioncontrol and prevention. These include: enforcementmeasures are found to be inadequate; monitoringconducted by the PCBs is also far from effective andnot consistent; the PCBs are very poorly staffed andpredominance of non-technical members in most ofthe Boards, the lack of professionals in the compositionof the Boards, the tendency to not fill vacancies of PCBs,lack of funds to discharge its duties, inadequateinfrastructure in terms of laboratories, monitoringequipment, and regional offices, and increasing politicalinterference in the powers and functions of PCBs.25

Thus, both motivationally and in ability, the PCBs areill-structured to ensure the effective implementation ofenvironmental laws and policies.

In this way, I will try to demonstrate that how the failureof environmental regulatory authority in implementingenvironmental judgments can be seen as an importantreason for increasing judicial intervention triggered by

that the consistent engagement of the petitioners andtheir resource capacity to draw the attention of judiciaryand other implementing agencies in the post-judgmentscenario is crucial to ensure the implementation of courtdirections.

2.3 Effectiveness of EnvironmentalRegulatory Authority

India has employed a range of regulatory instrumentsto protect and improve its environment. Across thecountry, government agencies wield vast power toregulate industry, mines and other polluters to ensurethe effective implementation of environmental laws andregulations. The process of environmental regulationwhich started effectively in the early 1970s hassubsequently become comprehensive and stronger, inpart, by the spate of fresh legislation passed after theBhopal gas leak disaster of December, 1984.23 Theycover hitherto unregulated fields, such as noise, vehicularemissions, hazardous waste, hazardous micro-organisms,the transportation of toxic chemicals, coastaldevelopment and environmental impact assessment.Equally significant, in the environmental regulationprocess is the creation of a number of regulatorystructures to implement these laws effectively. Theenactment of the Water (Prevention and Control ofPollution) Act, 1974 provided for the institutionalisationof pollution control machinery by establishing Boardsfor prevention and control of pollution of water. TheseBoards were entitled to initiate proceedings againstinfringement of environmental law, without waiting forthe affected people to launch legal action. The WaterCess Act, 1977, supplemented the Water Act by requiringspecified industries to pay cess on their waterconsumption. With the passing of the Air (Preventionand Control of Pollution) Act, 1981, the need was feltfor an integrated approach to pollution control. TheWater Pollution Control Boards were authorised to dealwith air pollution as well, and became the CentralPollution Control Board (CPCB) and the State PollutionControl Boards (SPCBs).

The Bhopal Gas leak disaster of December 1984precipitated the tightening of environmental regulation.In 1985, the Department of Environment was changedto the Ministry of Environment and Forests (MoEF)

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23 See Shyam Divan and Armin Rosencranz, Environmental Lawand Policy in India (New Delhi: Oxford University Press, 2001).

24 For more details, see Sanjay Upadhyay and Videh Upadhyay,Handbook on Environmental Law: Forest Laws, Wild Life Lawsand the Environment (New Delhi: LexisNexis, Volume 1, 2002).

25 See Atiyah Curmally, ‘Environmental Governance andRegulation in India’, in Sebastian Morris ed., IndiaInfrastructure Report-2002: Governance Issues for Commercialisation96 (New Delhi: Oxford University Press, 2002).

the environmental spirited groups and how the activeand consistent involvement of environmental groupsand the process of interaction between Court-Appointed Committees and environmental groups is oneof the crucial factors in determining the effectiveenforcement of environmental judgments at thegrassroots level.

3METHODOLOGY

3.1 The Case Selection: DahanuThermal Power Plant Pollution(Maharashtra) and Vellore LeatherIndustrial Pollution (Tamil Nadu)

I selected these two cases as it was important to havesome variation in the implementation of environmentaljudgments at the grassroots level. Variation in theimplementation of environmental judgments at thegrassroots level allows us to examine the factors thatdetermine the successful enforcement of court ordersin one case than the other case. I have considered thesetwo cases both in terms of similarity in the implementingagency and nature of environmental problems (both areindustrial pollution cases). I have also chosen these casesbecause they are filed by two different NGOs such asDahanu Environmental Protection Group and VelloreCitizens’ Welfare Forum as PILs and also the natureand level of activism of these NGOs vary. The approachadopted in this paper is more concerned with processesof implementation, and how these are contextdependent and politically conditioned. I conducted myfield research during 2008-2010 in Dahanu and Vellore,and some time in Mumbai, Chennai, and Delhi. Giventhe heterogeneity of actors involved in theimplementation of environmental judgments at thegrassroots level and part of environmental litigationprocess, I included a broad spectrum of people at local,state and national levels in my interviews to examinewhy the implementation of environmental judgmentsvary from case to case and what factors determine this.My interviews included pollution affected people(farmers, fishermen, adivasi, women and other peoplefrom different class, caste and religion background),polluters (industrial owners), state functionaries

(members from Pollution Control Board, Court-Appointed Monitoring committee members), activists,lawyers, judges and academicians. In addition tointerviewing the actors involved in the implementationprocess, I used information from Court judgments, draftpetitions filed by NGOs and reports submitted by theCourt Appointed Monitoring Committees. Acombination of personal interviews and analysis ofvarious legal and official documents helped to examinethe factors that determine the implementation ofenvironmental judgments at the grassroots level.

4SELECTED ENVIRONMENTALJUDGMENTS: AN OVERVIEW

4.1 Dahanu Thermal Power PlantCase

Dahanu is situated 120 km. north of Mumbai, in theThane district of Maharashtra, and is one of the lastgreen belts along the country’s rapidly industrialisingwestern coast. In 1989 the State Government ofMaharashtra approved a proposal of the BombaySuburban Electricity Supply Company (BSESC), to setup a coal-based thermal power plant in the DahanuTaluka26 of Thane District. On 29 March 1989, twolocal environmental activists: Nergis Irani and KityamRustom (Members of the Dahanu Taluka EnvironmentProtection Group) along with Bombay EnvironmentalAction Group filed writ petitions first in the BombayHigh Court and then in the Supreme Court challengingthe decision of the Central Government to build thepower plant.27 They lost the case, with the Court citingthe necessity of energy to power the city of Mumbai asstrong grounds to sanction the project. To allaypetitioners’ apprehensions of environmental damage,the Court directed that the condition requiring the

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26 In the Indian governance structure, Taluka refers anadministrative division at the district level.

27 Dahanu Taluka Environment Protection Group v. Bombay SuburbanElectricity Supply Company Ltd. with Bombay EnvironmentalAction Group v. State of Maharashtra and Others, Supreme Courtof India, 1991 (2) SCC 539.

installation of a Flue Gas Desulphurisation (FGD)28

plant should not be relaxed without a full considerationof the consequences.

It is also important to mention that Dahanu was‘notified’, or classified, under the Indian CoastalRegulation Zone (CRZ) by the MoEF on 19 February,1991.29 The CRZ bans any new construction anddevelopment activities within 500 metres of the hightide line. Dahanu was also declared ‘eco-fragile’ by agovernment notification of 21 June 199130 (Notificationunder the Environment Protection Act, 1986, restrictsthe development of industries, mining operations andother development in the region). Even though Dahanuhad been declared an ecologically fragile area, politicaland industrial interests continued to bring forwarddevelopment projects in Dahanu Taluka, sidelining boththe eco-fragile notification and the CRZ notification ofthe Government of India. This led environmentalistBittu Sehgal to file a writ petition in the Supreme Courtin 1994, asking the Court to implement the notificationsin Dahanu Taluka.31 The Supreme Court then appointedthe National Environmental Engineering ResearchInstitute (NEERI) to investigate the issues set forth inthe petition. Based on the NEERI report, the SupremeCourt upheld the Dahanu Notification prohibiting anychange of land-use in the region and ordered that acommittee of experts be formed under Section 3 ofthe Environmental Protection Act of 1986 to ensureimplementation of the environmental laws protectingDahanu’s eco-fragility. The MoEF appointed the DahanuTaluka Environmental Protection Authority in 1996under the chairmanship of retired Mumbai High Courtjudge Justice C. S. Dharmadhikari and supported by ateam of eleven expert members.32 The Authority isempowered to ensure the implementation of Courtdirections as well as the eco-fragile notification of 1991.

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4.2 Vellore Leather IndustrialPollution Case

The Vellore Citizens Welfare Forum filed a publicinterest petition under Article 32 of the Constitutionof India against large-scale pollution of the soil andwater caused by a number of tanneries and otherindustries in the State of Tamil Nadu. According to thepetitioner, the entire surface and sub-soil water of theriver Palar has been polluted resulting in non-availabilityof potable water to the residents of the area. Consideringthe vital importance of the leather industry to generaterevenue for the state and employing thousands ofworkers, the tanneries and other polluting industries inthe State of Tamil Nadu were persuaded for many yearsto control the pollution generated by them. They weregiven option either to construct common effluenttreatment plants (CETP) for a cluster of industries orto set up individual pollution control devices. The TamilNadu Pollution Control Board had prescribed standardsfor the discharge of effluents and the CentralGovernment had offered substantial subsidy for theconstruction of CETPs. But the progress was slow,forcing the Court eventually to pass closure orders onseveral industries. The Supreme Court noted thatalthough the leather industry is a major foreign exchangeearner for India and provided employment, it does notmean that this industry has the right to destroy theecology, degrade the environment or create healthhazards.33

The Court directed the Central Government to takeimmediate action under Section 3(3) of India’sEnvironment Protection Act, 1986 to control pollutionand protect the environment. The Court ordered theCentral Government to establish an authority to dealwith the situation created by the tanneries and otherpolluting industries in the State of Tamil Nadu. Thisauthority shall implement the precautionary principleand the polluter pays principle and identifies the loss tothe ecology/environment; and individuals/families thosewho have suffered because of the pollution, and thendetermine the compensation to reverse thisenvironmental damage and compensate those who havesuffered from the pollution. The Collector/DistrictMagistrates shall collect and disburse this money. The

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28 A Flue gas de-sulphurisation unit performs the importantrole of reducing the sulphur di-oxide emissions from thethermal power plant.

29 For more details, see Government of India, Ministry ofEnvironment and Forests, Notification dated 19 February1991.

30 See Government of India, Ministry of Environment andForests, Notification dated 20 June 1991.

31 See Bittu Sehgal v. Union of India, Supreme Court of India,W.P. (Civil) No. 231 of 1994.

32 For more details, see Government of India, note 29 above.33 Vellore Citizens’ Welfare Forum vs. Union of India, AIR 1996

SC 2715.

Court also directed the Special Bench- ‘Green Bench’-of the Madras High Court to monitor theimplementation of its judgments.

The authority so constituted would invoke theprecautionary principle and the polluter pays principle. TheAuthority should determine the compensation to berecovered from the polluters as cost of reversing thedamaged environment. The Authority should direct theclosure of the industry owned/managed by a polluterin case he evades or refuses to pay the compensationawarded against him. A fine of Rs.10,000/- each on allthe tanneries in the districts of North Arcot, Ambedkar,Erode Periyar, Dindigul Anna, Trichi and ChengaiM.G.R. was imposed. The said fine was directed to bepaid before 31 October, 1996. The Chief Justice of theMadras High Court was requested to constitute a specialbench ‘Green Bench’ to further monitor this case. TheMinistry of Environment & Forests, Government ofIndia constituted the Loss of Ecology (Prevention andPayments of Compensation) Authority in the year 1996and appointed Justice P. Bhaskaran, as it’s Chairman.The Authority after detailed studies and deliberationsdelivered its award on 12 March, 2002. Accordingly, 547tanneries in the District of Vellore to pay a compensationamounting to Rs.26.82 crores to 29,193 families aspollution damages and three crores to restore theenvironment.

5GROUND REALITIES

A survey of the above two selected industrial pollutionareas and collection of data from different sourcesreveals that the implementation of environmentaljudgments varies from case to case. While the SupremeCourt orders in the Dahanu Power Plant case has beeneffectively implemented, the implementation of itsorders in the Vellore leather industrial pollution casehas not been carried out effectively. In the Dahanu PowerPlant case, the Supreme Court allowed the BSESC toset up the power pant on certain conditions includingto install FGD. Therefore, it was mandatory for thecompany to install FGD as directed by the Authority.The thermal power plant was taken over from BSESCby Reliance Energy Ltd (REL) in 2002. As per the

DTEPA order and REL’s own schedule FGD wassupposed to be installed in February 2005 but was finallyinstalled in October 2007. When contacted about thedelay, the Dahanu Power Plant Manager34 said that ‘thecompany has been keeping all the emission parameters well belowthe most stringent standards without the installation of FGD.So why is there a need for FGD’? It is also confirmed by theChairperson35 of the DTEPA that the FGD has beeninstalled and the Dahanu power plant is operating asper the orders of the Indian Supreme Court.

The Court orders in the Vellore leather industrialpollution case have, however, not been effectivelyimplemented. No doubt, as per the Court orders all theindustries in the Vellore District are either part of CETPor have effluent treatment plant to treat the waste watersand also many polluted industries were closed down fornot setting up effluent treatment plants. However, asurvey of industrial units and information gathered fromCommon Effluent Treatment Plants, it is found thatindustries with treatment plants are not following thestandards as prescribed under the Water Pollution(Prevention & Control) Act of 1974.36 It is also foundthat untreated effluents continue to be discharged tonearby water bodies in many places in the Vaniyambadiand Ambur Taluks, thousands of hectares of farmlandremained unfit for cultivation, farm yields were at theirlowest, people suffered from ailments and potablegroundwater was irreversibly lost. As far as distributionand collection of compensation amount from pollutedindustries is concerned, there has not been any seriousattempt to follow the orders of the Court. It is foundthat compensation amount is distributed fully in fewTalukas like Arcot, Tirputtur of Vellore district and notin all affected villages of other Talukas and alsocompensation amount is not given as per the Courtorders.37 Only 347 industries out of 547 paid the

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34 Interview with Prasad Rao, Dahanu Thermal Power StationHead by Geetanjoy Sahu on 23 September 2008.

35 Interview with Justice C.S. Dharmadhikari, Chairperson ofDTEPA, by Geetanjoy Sahu on 28 September 2008.

36 Information collected from the Vellore unit of the TamilNadu Pollution Control Board (TNPCB).

37 Interview with members of Vellore EnvironmentalMonitoring Committee in January 2009.

compensation amount and a total amount of Rs. 22,97, 41787 was collected till October 2008.38

6FACTORS DETERMINING THEIMPLEMENTATION OF ENVIRON-MENTAL JUDGMENTS

A comparative analysis of the implementation ofenvironmental judgment in both the Dahanu PowerPlant Case and Vellore leather industrial pollution case,it is found that there are three crucial factors thatdetermined the variation in the effective implementationof Supreme Court orders between the Dahanu PowerPlant Case and Vellore leather industrial pollution case.

6.1 Judicial Activism in theImplementation Process

In recent years, the Indian Supreme Court has not onlyresolved environmental disputes through invokingvarious statutes and constitutional provisions but hasalso made serious attempts to ensure the implementationof its orders. One such attempt involves the appointmentof monitoring committee consisting of multi-disciplinary background experts to implement the courtorders. In a series of environmental judgments, theIndian Supreme Court has directed the Ministry ofEnvironment and Forests to appoint monitoring

committee to implement its directions.39 While theCourt Appointed Monitoring Committees havesucceeded in selected cases, the outcomes in a numberof cases have not made any significant differences inthe effective implementation of Court orders throughsuch monitoring committees rather created problemsfor environmental regulation.40 This section highlightshow the post-judgment judicial activism through Courtappointed monitoring committee in the Dahanu PowerPlant Case has ensured the effective implementation ofCourt orders and failed in Vellore Leather IndustrialPollution Case.

Analysing the role of Court Appointed MonitoringCommittee in both the Dahanu Power Plant Case andVellore Leather Industrial Pollution Case, it is found thatthe Dahanu Taluka Environmental Protection Authorityhas been quite open to ideas and viewpoints of differentstakeholders in dealing with various environmentalissues. The Dahanu Taluka Environmental ProtectionAuthority has conducted regular meetings and publichearings giving sufficient notice to each and every partyto the dispute. In this way, the local communities fromdifferent sections have found their voice with regard toany development issues in Dahanu through theirparticipation in the DTEPA meeting and public hearing.The Authority has responded to all public appeals withina stipulated time-frame. There is no discrimination inthis regard.

In comparison with this democratic way of functioningof DTEPA, the functioning of Loss of EcologyAuthority in the Vellore Leather Industrial Pollution caseprovides a contrast picture. The Loss of EcologyAuthority was set up in 1996 on Supreme Court ordersto assess the damage caused by industrial pollution inthe districts of Vellore, Dindigul, Kancheepuram,Tiruvallur, Erode and Tiruchi. Assessing damage toecology and loss of livelihood is a task which needs

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38 Information collected from Vellore District CollectorateOffice in January 2009. As per the Loss of Ecology AuthorityReport, tannery pollution has affected 17,170 hectares offarmland in Vellore and Dindigul districts impacting 36,056farmers; and 621 tanners in the two districts have to pay acompensation of Rs.30.75 crores to the affected farmersand Rs.3.98 crores to reverse the damage caused to theecology. However, the polluted industries of Vellore Districtto pay a compensation amounting to Rs. 26.82 crores to29,193 families as pollution damages and 3 crores to restorethe environment. This information is confined to leatherindustries of Vellore district as the paper focuses only onleather industrial pollution in Vellore and compensationcollected from these industries and distributed to people ofVellore district.

39 There are several monitoring committees in differentenvironmental cases to ensure the implementation of Courtdirections, such as Loss of Ecology Authority in the VelloreIndustrial Pollution Case, Central Empowered Committeein the T.N. Godavarman vs Union of India & Ors., W. P. (C)202/1995 before the Supreme Court of India, and BhurelalCommittee in the Delhi Vehicular Pollution Case andDahanu Taluka Environmental Protection Authority in theDahanu Power Plant Case.

40 For more details, see Rosencranz, Boenig and Dutta, note19 above.

making process. What has allowed the independentfunctioning of the DTEPA, despite various problemscreated by the MoEF and state agencies, was its abilityto provide hope and a mode of expression to the localcommunity. The fact that the Court decisions in amajority of cases have not been implemented has notdiscouraged the local community in having faith in thejustice system. Thus, the work of the Dahanu TalukaEnvironment Protection Authority was of value, notnecessarily because of its instrumental success inprotecting Dahanu but also because its multi-disciplinarystructure and highly independent mode of operationcreated a new deliberative space, which was open to thearguments of the local community. Rather than beingvilified as interfering in the affairs of the executive, theDTEPA has shown how useful a multi-disciplinaryenvironmental monitoring committee can be toimplement court directions on environmental issues andto empower local people.44

The very idea of a Court Appointed MonitoringAuthority is to evolve a more decentralised approach toensure the effective implementation of the law. TheDTEPA has proved this and Loss of Ecology Authorityfailed to do so. In this connection, it is also importantto mention that the MoEF has made many attempts toscrap the DTEPA by not providing adequate financialand other resources for the effective functioning of theauthority but the DTEPA has continued to functionwithout these resources and ensured the effectiveimplementation of environmental laws in a democraticand transparent manner.45 It is, therefore, important tomake the process of judicial activism through Courtappointed monitoring committee in the post-judgmentperiod more democratic and transparent to translate theorders of the Court into action.

6.2 Resource Capacity of thePetitioner

Theoretically it has been argued that the resourcecapacity of the parties involved in the litigation is not

careful balancing of various interests. Local farmers andleaders feel that the assessment was done arbitrarily andhaphazardly, as it leaves the affected people worse off.41

This is what has happened in Tamil Nadu’s Velloredistrict, where lakhs of people are bitterly disappointedwith the award given by the Loss of Ecology Authority.The award leaves out two districts (Erode and Tiruchi),several badly hit villages in Vellore district and large tractsof farmland rendered barren, soaked as they were fordecades in tannery effluents. The people affected bypollution caused by tannery units in six districts in TamilNadu are left disappointed by an award that they see ashaving failed to assess the damage to the ecology andto determine ameliorative measures in a fair and sensitivemanner.42

According to Mr.Gajapathy, Member of the VelloreEnvironment Monitoring Committee, none of the threemajor issues - providing compensation, reversing thedamage to the ecology, and preventing further damageto the environment - has been addressed by theAuthority. The Authority, according to Gajapathy, reliedsolely on the data obtained from the Revenuedepartment and the TNPCB. Says Gajapathy: ‘Themembers, in the 42 months of the study, did not interactwith even one farmer in the district’.43 The Authority,according to Gajapathy, has left many affected villagesin the study and also used its discretionary power toinclude or exclude the names of the farmers for thebenefit of compensation. Like Mr. Gajapathy, there aremany other affected farmers also complained that therewas no interaction between the members of the Lossof Ecology Authority and affected farmers and thedecision-making process in assessing the damage toecology and loss of livelihood by the Authority was notdemocratic and transparent.

In this way, while the DTEPA demonstrates how theEnvironment Protection Act can be used to givedecentralised powers to a monitoring committee andensures the implementation of court orders throughdialogue and discussion with various stakeholders,whereas the Loss of Ecology Authority has failed tocreate space for discussion and centralised the decision-

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41 Information collected from interaction with farmers ofAmbur and Vaniyambadi Talukas and members of VelloreEnvironmental Monitoring Committee in June, 2010.

42 For more details, see Asha Krishnakumar, ‘An Award andDespain’, 19/16 Frontline (2002).

43 Interview with Mr. Gajapathy on 19 June 2010.

44 For more details, see Geetanjoy Sahu and Armin Rosencranz,‘Court-Appointed Monitoring Committee: The Case of theDahanu Taluka Environment Protection Authority’, 5/2Law, Environment and Development Journal (2009), available athttp://www.lead-journal.org/content/09185.pdf.

45 Information gathered from Interview with Justice S.Dharmadhikari, Chairperson of DTEPA, by Geetanjoy Sahuon 28 September 2008.

only crucial in the decision-making process of courtorders but also an important factor both in the non-implementation and effective implementation of Courtorders. A comparative analysis of post-environmentaljudgment in both the Dahanu Power Plant and VelloreLeather Industrial Pollution cases justifies this theoreticalargument, however in a different way. As mentionedearlier that the ‘Powerful players like State actors andindustrial owners,’ or those possessing greater resourcesin terms of wealth, experience and rapport with thepolitical groups on account of powerful players, are morelikely to influence the implementation of judicialdirection than ‘powerless groups like farmer, poorpeople, women and people belonging to disadvantagedsections of the society,’ or those possessing lesseramounts of these resources. The comparative analysisof the resource capacity of the parties involved in boththe selected cases gives a contrast picture. No doubt, inboth the cases the resource capacity of the polluters isquite stronger than the pollution affected people.However, unlike the theoretical argument that theupperdogs with greater resources like access to powerstructure, capacity to convince the Court, hiring a lawyerfor representation can influence the implementationprocess, the study finds that how the underdogs’consistent approach and resource capacity has made adifference in the effective implementation of Courtorders.

In the Dahanu Power Plant Case, the petition was filedby Dahanu Taluka Environmental Protection Group, alocal environmental NGO consisting of lawyers,academicians, social and environmental activists. Thepetition was filed against the Bombay SuburbanElectricity Supply Company (BSESC) and later onagainst the Reliance Energy Limited (REI) as BSESCwas taken over by REI in 2002. As mentioned earlierthat the Court allowed the BSESC to set up the plantwith certain conditions and later directed the DTEPAto monitor its orders. However, even though theSupreme Court allowed the BSESC to set up the powerplant on certain conditions including to install FGD, noattempt was made by the BSESC to install FGD. TheDahanu Taluka Environmental Protection Group tookup the issue with the specially constituted quasi-judicialAuthority, the DTEPA, that passed an order on 12 May1999 directing the company to initiate the process of‘setting up of the FGD unit within a period of six

months and complete the same within a reasonable timeperiod’.46

Over the years, the company tried to escape thismandatory environmental clearance by challenging theorder of the Dahanu Authority in the High Court ofMumbai as well in the Supreme Court of India.However, in March 2005, the environmentalists filed anapplication with the Dahanu Authority seeking redressalin the form of a 300 crore rupees bank guarantee fromthe company demonstrating its commitment to installinga pollution control device in an ecologically fragile zone.After several hearings, the Dahanu Authority passed anorder holding Reliance Energy responsible for theunnecessary delay in abiding by environmental clearanceconditions as well as Court orders that demanded thesetting up of the FGD unit. The Dahanu Authoritydirected Reliance Energy to put down a bank guaranteeof Rupees 300 crores to prove its commitment toprotecting Dahanu’s environment as demanded by theDahanu Taluka Environmental Protection Group.47

Reliance Energy appealed against this order in theMumbai High Court in April 2005. In June 2005, theMumbai High Court upheld the Authority’s verdictregarding installation of the FGD unit, but lowered theamount of the bank guarantee from Rs.300 to Rs.100crores.48 A deadline of October 2007 was accepted byall as being the final time schedule for the installationof the FGD unit. When contacted about the status ofimplementation, the Chairperson of the Authority aswell as the members of Dahanu Taluka EnvironmentalProtection Group acknowledged that the deadline hadbeen met.

One of the important factors contributing to theeffective implementation of court orders in the Dahanu

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46 Dahanu Taluka Environmental Protection Authority,Supreme Court Monitoring Committee Report dated 12 May1999 for the Implementation of Dahanu Eco-fragileNotification of 1991, Maharashtra Pollution Control Board,Mumbai.

47 Dahanu Taluka Environmental Protection Authority,Supreme Court Monitoring Committee Report dated 19March 2005 for the Implementation of Dahanu Eco-fragileNotification of 1991, Maharashtra Pollution Control Board,Mumbai.

48 For more details, see Michelle Chawla, Dahanu: TheEnvironmentalists versus The People, available at http://infochangeindia.org/200504055755/Environment/Features/Dahanu-The-Environmentalists-versus-The-People.html.

Power Plant case has been the consistent engagementof the environmental group in drawing the attention ofjudiciary in general and the Court Appointed MonitoringCommittee in particular. Ever since its formation in1989, the DTEPG has been actively involved andengaged in convincing the Court and otherenvironmental law implementing agencies about thenegative implication of Dahanu Thermal Power Plant.It started its campaigning under the leadership of NergisIrani in challenging the selection of Dahanu for thermalpower plant location and mobilsed people of differentsections against the power plant. Initially, theenvironmental movement led by DTEPG was consistingpeople mainly from middle class society but in duecourse of time students, local tribal people, fisherman,and other sections of the society joined the movement.Also, it could able to gain the support of middle classsociety of Bombay and mainstream media to highlightthe negative implication of the Dahanu Power Plant.As a result, while the middle class members of theDTEPG were active in litigation and knowledge basedactivism like preparing research reports on the negativeimpact of development projects on Dahanu’senvironment, the local members of DTEPG were activein mobilising people against the plant and creatingawareness about the negative social-economic andenvironmental implications of development projects inDahanu. It is also observed that the DTEPG didn’t findit difficult to voice its concern in the Court of Law aspeople volunteered to work on different aspects of thecase including representing the case in the Bombay HighCourt and later on in the Supreme Court.49 Theconsistent approach and representing the environmentalinterest of Dahanu Taluka at various decision-makinglevels through different strategies by the DTEPG hasalso inspired other groups in Dahanu to work towardsenvironmental protection and improvement in the localarea.50 Even though different environmental groups inDahanu have different environmental agendas andstrategies, their consistent engagement with state actorshave not allowed upperdogs like REI to violate theorders of the Court in protecting and improving theenvironment of Dahanu Taluka.

In contrast with the resource capacity of theenvironmental group and its consistent engagement withvarious state actors in ensuring the effectiveimplementation of environmental laws, the VelloreCitizens’ Welfare Forum and other environmentalgroups in Vellore have failed to continue their activismin the post-judgment period. The Vellore Citizens’Welfare Forum, an association of people from differentsections of society was formed in the late 1980s to workon various community development issues in VelloreDistrict of Tamil Nadu. It filed a PIL in the SupremeCourt of India in 1991 against the polluted leatherindustries in different parts of Tamil Nadu and got alandmark judgment in its favour in 1996. The SupremeCourt judgment in the Vellore leather industrial pollutioncase has become a precedent for many industrialpollution cases in India as it had for the first timeemphasised on environmental principles like polluterspay principle, public trust doctrine, sustainabledevelopment, and inter-generational equity in themanagement of natural resources in India. As mentionedearlier, the Court has ordered the Madras High Courtto constitute a Green Bench to monitor its directionsand also ordered the setting up of the Loss of EcologyAuthority to assess the damage, identifying the affectedindividuals, farmers, families and farms. While thelitigation filed by Vellore Citizens’ Welfare Forum gotprogressive orders and innovative methods introducedby the Court to restore the damage done to environmentand people’s livelihood, the Court orders after more thana decade have not been complied with.

The Vellore Citizens’ Welfare Forum has not been ableto sustain its activism in the post-judgment period formany reasons. One of the important reasons for its in-activism has been lack of resources and its capacity tomobilise people in a consistent manner. According toMr. Mohan, Member of Vellore Citizens’ Welfare Forum‘The organisation finds it difficult today to hire a lawyerto represent the case and in preparing theimplementation status report to convince the Courtabout the failure of implementing agencies as it lacksboth financial and human resources’.51 The VelloreCitizens’ Welfare Forum is nowhere in picture today inthe litigation process. In the post-judgment period since1996, hundreds of writ petitions have been filed in theGreen Bench of Madras High Court and many new

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49 Interaction with Nergis Irani, Founding Member of DahanuTaluka Environment Protection Group.

50 The other environmental groups in Dahanu include: DahanuParisar Bachano Andolan and People’s Alliance for EffectiveImplementation of Environmental Laws.

51 Interaction with Mr. Mohan Kumar, Member of VelloreCitizens’ Welfare Forum in March 2009.

environmental groups like Vellore EnvironmentalMonitoring Committee52 and Palar Future Group havebeen working to ensure the effective implementationof court orders. The Vellore Environmental MonitoringCommittee has been fighting the legal battle in the GreenBench of Madras High Court for the last two years toget adequate compensation for the farmers and torestore the damage done to environment. However, itspetition was dismissed by the Green Bench of MadrasHigh Court in May 2010 and the organisation finds itdifficult now to appeal in the Supreme Court of Indiaas it lacks financial resources to hire a lawyer and othersupports like preparing a report on the status ofcompensation paid to farmers so far and why the Courtshould consider to pay compensation also for the post-1996 period.53 The other environmental group claimsto be active in Vellore District is Palar Future Group, anassociation of academicians, social and environmentalactivists. A close analysis of its role in Velloreenvironmental activism, however, shows that it has notbeen consistent and remains a symbolic group.

In this way, unlike the consistent and active involvementof environmental groups in the Dahanu environmentalprotection, the environmental groups in the post-judgment period in Vellore have failed to continue theiractivism as they lack both financial and human resourcesto draw the attention of Court and implementingagencies for the effective implementation ofenvironmental laws. However, the failure of VelloreCitizens’ Welfare Forum and other environmental groupsin Vellore in their activism in the post-judgment periodis not a unique case. Like Vellore Citizens’ WelfareForum, there are many other environmental groups andactivists who have filed litigation and have been able toget favourable environmental judgments. The petitionsfiled by Indian Council for Enviro-Legal Action againstthe polluted industries in the Bichhri Village ofRajasthan and polluted industries in Patancheru ofAndhra Pradesh; petitions filed by M.C. Mehta forprotection of river Ganga from tanneries in Kanpur andCalcutta; petition filed by S. Jaganath for the enforcement

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of Coastal Zone Regulation Notification and many otherpetitions filed by different environmental groups havewitnessed many landmark environmental judgments intheir favour but failed to continue their activism in thepost-judgment period and thereby there is hardly anysignificant impact of environmental judgment at theimplementation level.

Given the apathy of environmental law implementingagency and ignorance of pollution affected people aboutthe legal system, the environmental groups and activistsneed to play an important role not only in drawing theattention of judiciary by filing PILs but also in continuingtheir engagement in the post-judgment period. Nodoubt, India has a well-established regulatory frameworkto enforce environmental laws and policies but thehistory of last three decades has witnessed how thefailure of these institutions have compelledenvironmental groups to seek the intervention ofJudiciary in environmental protection. Although judicialintervention has been required to change the behaviorof these environmental law implementing agencies, therehave not been significant changes without monitoringby the Court either through independent monitoringcommittee or by setting up Green Bench at the HighCourt level to implement its directions. However, it isalso found that the Court appointed monitoringcommittee needs to be activated by environmentalgroups. Therefore, the role of petitioner does not endwith filing the petitions and getting the decision in his/her favour rather he/she has some responsibility to keepmonitoring the implementation of judicial decisions. Theenvironmental group which has initiated theenvironmental litigation and secured the order of theCourt providing a wide-ranging remedy to the pollutionaffected people should take the necessary follow-upaction and maintain constant pressure on the Stateauthorities or agencies to enforce the Court order. If itis found that the Court order is not being implementedeffectively, it must immediately bring this fact to thenotice of the Court so that the Court can call upon theState authorities or agencies to render an explanation.The above comparative analysis of DahanuEnvironmental Groups and Environmental Groups inVellore in the post-judgment period, however, suggeststhat their role in ensuring the implementation of Courtjudgments is often contingent upon the resource capacityof the petitioners and their continuous involvement inthe litigation.

52 Vellore Environmental Monitoring Committee was formedin 2007 to work for the environmental protection of VelloreDistrict. It is an association of farmers and middle classpeople from different Talukas of Vellore District but it isvery active in Ambur Taluka only.

53 Information shared by Mr. Gajapathy, Member of VelloreEnvironmental Monitoring Committee.

6.3 Political Economy Factor

The political economy of environmental protection inIndia turns on the debate over whether effectiveimplementation of environmental laws hampers growth.In developing countries like India, growth is frequentlyseen as the major development goals than toenvironmental protection. Over the past two decades,India’s annual economic growth rate has averagedbetween six to eight per cent, led by the industrial andthe manufacturing sectors. Hundreds of thousands ofnew jobs have been created in these sectors, and thedomestic marketplace now offers an array of goods thatmiddle-class consumers would not have imagined onlyten years ago. Such rapid economic gains, however, comeat a cost: industrial pollution and its ramifications arefeatures of that progress.54 Implementing agencies whooversee enforcement of environmental laws face twochallenges: they do not have the resources required tomonitor an industrial economy dominated by smallfirms, and their political superiors often give themcontradictory directives. A close analysis of both theDahanu Power Plant and Vellore Leather IndustrialPollution case reflects the inherent and explicit tensionsbetween development project and economic growth onthe one hand and environmental protection on the otherhand and how attempts have been made toaccommodate political and market forces at the cost ofenvironment.

In the Dahanu Thermal Power Plant Case, the BombaySuburban Electric Supply Company Limited (BSES) wasallowed to set up a thermal power plant in Dahanu basedon the condition to install a Flue Gas Desulpherisation(FGD) plant for its thermal power plant at Dahanu forenvironmental safety and protection as well as well-beingof the local residents. Even the Ministry of Environmentalso insisted on installation of FGD plant in view ofthe good horticultural and agricultural potential of thearea. Subsequently, the Nagpur-based NationalEnvironmental Engineering Research Institute (NEERI)recommended that a FGD plant should be installedforthwith to protect the environment. The company wasalso ordered to make efforts for obtaining gas and useit if available in preference to coal. It was furthermentioned that the company shall obtain washed coal,

if possible from coal fields, in case coal is to be used.However, the company had made all attempts to notfollow the orders of the Court till October 2007. In itssubmissions before the DTEPA, BSES stated that therecommendations of NEERI were not binding on it,secondly, it has resorted to use of coal instead of gassince gas was not available for running the thermal powerplant, thirdly, the expert member of the State PollutionControl Board, Dr B. B. Shrivaikar, has stated that FGDsystem may not be rated compulsory, if the totalemissions remain within the prescribed limits and thatthe World Bank has also observed that emissionstandards could be met without a FGD plant. Inaddition, the BSES submitted a list of 14 projects wherethe environment department has given the clearance forestablishment of thermal power plant without theestablishment of FGD plant. The BSES also pointedout that installation of FGD plant would need additionalexpenditure of Rs 300 crore and these costs willindirectly be loaded on the consumers.55

Notwithstanding all these submissions made by BSESC,the DTEPA emphasised that the Supreme Court orderhas to be observed scrupulously and it forced thecompany to install FGD in October 2007.

While the DTEPA was active in forcing the companyto install FGD for environmental safety and also playingan important role in the implementation of eco-fragilenotification of 1991 for Dahanu region, differentpolitical parties and proponents of development projectsopposed its requirement for Dahanu’s environmentalprotection. Ever since Dahanu was declared an eco-fragile area in 1991 and the Court’s direction toimplement the notification in 1996 through the DTEPA,the political parties across their ideological differenceshave not only defaulted on implementing the notificationbut have been actively lobbying to rewrite the laws ofthe land to benefit developers and builders.Environmentalists accuse industry and vested interestsof subverting various laws that were formulated topreserve the ecological fragility of the tribal-dominated

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54 For more details, see David Stuligross, ‘The Political Economyof Environmental Regulation in India, Pacific Affairs’, 72/3 Pacific Affairs, University of British Columbia 392, 406 (1999).

55 See Meena Menon, ‘Environmentalists vs. BSES: Eco-fragileDahanu Battles on’, 2003, available at http://infochangeindia.org/200306035754/Environment/Features/Environmentalists-vs-BSES-Eco-fragile-Dahanu-battles-on.html. See also Prafulla Marpakwar, Dahanu Plant:BSES Submissions Rejected, Indian Express, May 16 (1999)available at http://www.expressindia.com/ie/daily/19990516/ibu16009p.html.

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Dahanu Taluka.56 Proponents of development, on theother hand, feel cheated by the notification and havechallenged it in the Mumbai High Court. In fact, therehave been several serious attempts to de-notify Dahanuas well as disband the Dahanu Authority, by a sectionof powerful industrialists, builders and local politicians.In 2003, a special committee was constituted to ascertainif Dahanu could be considered eco-fragile.57 ThisCommittee held a large public hearing in Dahanu withthe aim of determining the views of the people.However, the meeting was conducted by localcommercial interests and politicians, who asserted thatthe Dahanu notification was a major stumbling blockto development in the region, and that it should bewithdrawn. Misrepresenting the notification to claim thateven a flour mill was not permitted in the area, theCommittee created an atmosphere that projected acollective opposition to the Notification and the functionof the Authority.

Since its very inception, the Maharastra Governmenthas been hostile to the notification, allegeenvironmentalists.58 The state government seemsinsincere about implementing the eco-fragilenotification. Most surprisingly, in January 2002, theMinistry of Environment and Forests, an agency whichshould be protecting Dahanu and other eco-fragile areas,filed an application in the Supreme Court demandingan end to DTEPA on the grounds that it had alreadycompleted its work. The ministry claimed that it needsa single authority to monitor all eco-fragile areas.59 Theenvironmentalists fought this application at the SupremeCourt and in January 2004, the application was dismissed.The ministry’s move to scrap the DTEPA seems to lackany credible reason. It said that the continuance of theAuthority was not necessary as its only remaining activitywas the finalisation of the development plan for Dahanu.

The MoEF argued that Dahanu is too small an area tohave a separate Authority of its own. Both the MoEFand the State Government of Maharashtra have showedlittle willingness to engage in constructive discussionswith the local community, and seemed prepared to ignorethe deep environmental and social problems of thedevelopment projects. The ministry has starved theAuthority of operating funds, although the Authorityhas continued to function without these resources.Notwithstanding all these efforts of MoEF and StateGovernment of Maharashtra to scrap the Authority, theAuthority has survived over these years and has beeneffective under the leadership of Justice S.Dharmadhikari. The democratic and transparent natureof the Authority in the implementation process hasenabled it to gain mass public support and has made itdifficult for the political and market forces to violateenvironmental laws and the special environmentalnotification for Dahanu declaring it as one of eco-fragileareas of the Country. Furthermore, the DTEPA, in itsstrong standing against the local political and industrialestablishment, has effectively reflected the hopes andaspirations of environmentalists and local communitymembers.

While the court orders have been implemented in theDahanu Thermal Power Plant case, the political andmarket forces have hampered the effectiveimplementation of Court orders in the Vellore LeatherIndustrial Pollution case in Vellore. Pollution fromleather industry in Tamil Nadu in general and in VelloreDistrict in particular is increasing day by day. Virtuallyevery leather industry in Tamil Nadu - large and small-scale industry- exhibits a trend toward greater economicproduction60 and more pollution. For example, the studycarried out by Tamil Nadu Pollution Control Boardfound that effluents discharged by the leather industriesexceed the permissible standards as prescribed by theCentral Pollution Control Board. The discharge ofuntreated effluents harms not only nearby water bodieslike Palar river and the predominantly poor rural farmersnear the industrial units, but also the agricultural

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56 Interview with local environmental activist Nergis Irani ofDahanu by Geetanjoy Sahu on 22.09.08.

57 See Mohan Rao Committee Report of 2003.58 Interview with Michelle Chawla, Coordinator of Save

Dahanu and also member of DTEPG of Dahanu, byGeetanjoy Sahu on 22 September 08.

59 In addition to Dahanu, more recently, the hill stations ofMatheran and Mahabaleshwar-Panchgani have been notifiedeco-sensitive zones in Maharashtra after a lot of pressurefrom environmentalists. There are other regions in thecountry that are similarly notified, such as the Doon Valley(the first), the Aravalli range, Pachmarhi in Madhya Pradeshand Numaligarh in Assam.

60 Of the 1,083 tanneries in India, more than half, i.e. 577 arein Tamil Nadu and of the 577, Vellore district account foras many as 547 tanneries. The production in Tamil Nadu is44 percent of the total all-India production. For more details,see Case Study of the Leather Industry in Tamil Nadu,available at http://www.tntdpc.com/technoblaze/may/casestudy.pdf.

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economy in nearby fields. The river is dry withoverexploitation, the groundwater is colored, saline andcontaminated with the leather industry’s effluents andthe air is thick with the stench from the tanningprocess.61 The leather tanning industry in Tamil Naduis also one of the most caustic, both to factory workersand to those who drink and bathe in river waterdownstream.62

The advocates of ecological modernisation theory arguethat economic progress can lead to lower pollutionlevels.63 Economies of scale like those in developedcountries would make introduction of clean technologiesmore feasible economically. From an ecologicalmodernisation perspective, India’s environmentaldegradation could be reduced as the economy progressestoward a concentration of larger firms. Optimism basedon applying such a logic to tanneries in Tamil Nadu,however, would misread both the structure of TamilNadu’s economy and the administrative and politicalconstraints facing its government.64 Pollution abatementis a business expense. This cost can be substantial forthe 80 per cent of leather industrial units in Velloredistrict that employ twenty-five or fewer workers.Moreover, abatement is a cost that does not substantiallyimprove the quality of the product or its marketability.Finally, the distributional effects of an effective pollutioncontrol regime are ambiguous. If leather industrial unitswere forced to make an additional investment in newtechnologies, some would be forced out of business.This would lead to greater unemployment for all and,since most leather industrial workers are low-wageearners, the hardest hit would be the poor. Small-scaleleather industries have attributes worth preserving: theytend to be relatively labor-intensive and thusemployment-generating, and they tend to be locatedrelatively close to the homes of potential employees,

thus reducing the transportation costs faced by workersin countries with a more large-scale industrial landscape.

For these reasons, Tamil Nadu government for decadeshas fostered a policy that encourages and in some sectorsrequires - small-scale leather industries, despite the well-known pollution ramifications. An economy based to agreat extent on small-scale production yields not only arelatively high pollution-to-production ratio, but also apolitical environment in which government monitoringand enforcement are challenges. No doubt, the PollutionControl Board of Tamil Nadu claims that all the leatherindustries in Tamil Nadu are either part of CommonEffluent Treatment Plant of have individual treatmentplant treat waster materials and water. However, majorityof these industries are not following the prescribedstandards as the operational cost of the treatment plantis expensive for small-scale leather industrial units. Thegovernment tends to be considerably more tolerant withthe small-scale leather industrial units in mattersconcerning environmental law enforcement. Even if theMinistry of Environment and Forests at the Central levelchose to pursue an aggressive anti-pollution policy, thegovernment at the state level would be hard-pressed todevote the resources required for effective monitoringof an economy based on small-scale production. Also,the lack of active interest of Green Bench of MadrasHigh Court in ensuring the implementation of SupremeCourt orders and absence of effective leadership in thePollution Control Board and coordination amongdifferent implementing agencies like Pollution ControlBoard, Loss of Ecology Authority, Revenue Departmentand District Collectorate Office has witnessedimplementation failure in Vellore leather industrialpollution case.

7CONCLUSION

This paper has argued and illustrated how the nature ofjudicial activism in the post-judgment period producedeffective results through a democratic, transparent, andparticipatory process. From the positive judicial activismperspective emerges a diversity of methods which defythe standard judicial role in governance process. Thisinnovative method of judiciary in appointing committee

Environmental Case Law Implementation - India

61 Id at 87.62 See J. Wiemann, ‘Exports of Environmental Standards

through International Trade: the Case of Indian LeatherExports Adjusting to German Eco-standards’, 84/3- 4Geographische Zeitschrift 179, 86 (1996).

63 For more details, see Dana R. Fisher and William RFreudenburg, ‘Ecological Modernization and its Critics:Assessing the Past and Looking Toward the Future’, 14 Societyand Natural Resources 701, 709 (2001).

64 Political parties in Tamil Nadu irrespective of theirideological differences have been supporting the leatherindustries as these industries are major funding agencies forthe political parties.

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to implementing its directions, far from its traditional/conventional role in a democratic set up, becomes acommon phenomena in environmental governance inIndia, and this in turn necessarily introduces new methodof environmental regulation through court appointedmonitoring committee and also involving public in themonitoring process of judicial directions onenvironmental judgments. However, this process ofjudicial intervention doesn’t take place in isolation. Itneeds to be triggered by the active and consistentparticipation of people or NGOs who represent theaffected people.

No doubt, in both the case studies, it is observed thatthe State Government of Maharashtra and Tamil Naduhave made all attempts to accommodate political andmarket forces sidelining environmental laws. But fromthe two environmental judgments’ implementation statusat the grassroots level, it is found that the role of judiciaryhas become an integral part of the implementationprocess: implementation of Court orders in Vellorethrough Court-appointed committee and Green Benchproduced hardly any significant result, whilst in Dahanupower plant case the Court-appointed committee playeda predominant role in the successful enforcement ofenvironmental judgment, notwithstanding the obstaclescreated by the MoEF and State Government ofMaharashtra. Similarly, the role of public spirited groupsis crucial to the implementation process as it is theiractive and consistent engagement with convincingcapacity makes a difference in the successfulenforcement of environmental judgments. What the twocases demonstrate is the way in which the Court-appointed committee and the public spirited groups andother organisations representing public interest interactwith each other. This unifying tendency of Court-appointed committee to ensure the implementation ofits directions seems to sideline the importance ofenvironmental regulation authority, though it is not clearhow far this trend will continue in the future.

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