Case BriefsHigh Courts

Meghalaya High Court: The Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. took up a petition on a matter pertaining to the piling-up of garbage in the town of Jowai. The petition was filed on 12-04-2022 complaining of household waste and general garbage not being collected in the Jowai urban township area from 04-02-2022. The Court had served the respondents served immediately and informed that the matter will appear a week hence for a preliminary hearing and appropriate directions on 20-04-2022.

The Board had filed an application wherein it was indicated that in March, 2021, an NGO by the name of Khasi Students’ Union (KSU) of Moopyut village along with six other villages – Pynthor Langtein, Umsalang, Shhen Pyrsit, Moopyut Madan Tyrpait, Moosakhia and Sohmynting – attempted to close the dumping site at Mynkjai. Though an agreement was entered into for temporary dumping at the site for three months, since no alternative dumping site had been identified by the task force constituted by the Urban Affairs Department of the State along with the Jowai Municipal Board, the collection of garbage has altogether come to a standstill.

The Court was disturbed to notice that in such a serious menace of garbage piling up in one of the major towns in the State, something that may lead to disease and disaster, and the State administration seeks only to play the fiddle. The State of Meghalaya, as in most other cases, washes its hands off and says that it had no role to play in civic affairs.

On 20-04-2022 with the hope that the matter receives the urgent attention at the highest quarters the Khasi Students’ Union of Moopyut village along with the headmen of Moopyut village and the six other villages above named were added as parties. The Court directed the State administration and the District Council to meet at the highest level in course of the day to try and suggest an immediate remedy so that the garbage can be collected and Jowai town cleaned, if only to ensure that major diseases do not break out, particularly water-borne diseases since it had been raining continuously for the past several days. Matter was listed on 22-04-2022

On 22-04-2022, the State and the local bodies informed the Court  that a temporary site for dumping has been identified and the lifting of the garbage in Jowai town has commenced. According to the local municipal board, the main streets have been cleared and it is expected that the garbage from the market places will be cleared in the course of the weekend.

The Court was convinced that no immediate order was required after all the concerned, including the State, appeared to have looked into the matter and meetings have been held to identify an alternative dumping site.

The matter was further listed to 15-05-2022 directing the State Government to ensure that the Solid Waste Management Rules, 2016 notified by the Central Government in exercise of its authority under the Environment (Protection) Act, 1986 was implemented as expeditiously as possible by creating bodies and infrastructure in terms therewith.[Synjuk Ki Waheh Shnong Jowai v. State of Meghalaya, PIL No. 6 of 2022, order dated 22-04-2022]


For the Petitioners : Mr L. Khyriem

For the Respondents: Mr B. Bhattacharjee, AAG with Ms R. Colney, GA, Mr P. Nongbri, Mr Philemon Nongbri, Mr P. Yobin, Mr R. Majaw


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a PIL raising concerns for the protection of two rare species of birds, namely the Great Indian Bustard (‘GIB’) and the Lesser Florican, which is on the verge of extinction, the 3-Judge Bench comprising of D.Y. Chandrachud, A.S. Bopanna and V. Ramasubramanian, JJ., directed installation of bird divertors in the priority areas before 20-07-2022.

The petitioners were environmentalists who had approached the Court to seek directions for protecting the rare birds which are dwindling in number; particularly direction to prohibit use of overhead power lines which have become a hazard as the said species of birds are getting killed on collision with the power lines.

Considering that the laying of highvoltage underground power line would require expertise to assess the feasibility of the same, the Court had constituted a three member committee by its order dated 19-04-2021. The status report submitted by the said Committee revealed that the Committee received eight applications for exemption from the requirement of setting up underground transmission lines out of which two applications were approved on the receipt of Central Electricity Authority’s (CEA) technical report permitting laying of overhead transmission lines subject to the installation of bird diverters. The remaining six applications are at various stages of scrutiny.

Noticeably, the Committee had obtained a technical report from the Central Electricity Authority (CEA) on the feasibility of undergrounding 400 kV and 765 kV transmission lines and had further sought a technical report from CEA on undergrounding 66 kV and 220 kV transmission lines to which a reply is awaited. Therefore, considering the fact that none of the parties or the intervenors had any objection to the installation of bird divertors, the Bench issued following directions:

  1. Installation of bird divertors at least in the priority areas of the States of Gujarat and Rajasthan must be taken up with the utmost expedition.
  2. Installation of bird divertors in the priority areas to be completed before 20-07-2022. The Bench clarified that the direction will apply on all State owned as well as private power producers.
  3. The States of Rajasthan and Gujarat as well as all power producers in the private domain are to ensure that within the priority areas, a comprehensive exercise is completed within a period of three weeks to assess (i) the total length of transmission lines; and (ii) the estimated number of bird divertors required for the purpose.
  4. The Committee was directed to formulate the standards of quality required for the bird divertors within a month in consultation with the CEA so that uniformity can be maintained in the standards to be observed.
  5. Necessary steps to be taken immediately thereafter for ensuring that the time schedule of completing the installation of bird divertors in the priority areas associated with the Great Indian Bustard and Lesser Florican is observed by all power producers in Gujarat and Rajasthan.
  6. That any company which seeks an exemption from the direction to install underground transmission lines shall be at liberty to move the Committee which has been constituted by the Court.
  7. Since the feasibility of and need for installation of fresh overhead transmission lines is being examined by the Committee on a case to case basis and hence, the applicants were asked to approach to approach the Committee at first, and thereafter move the Court, if there be any subsisting grievance.

On the complaints received by the Committee regarding ongoing installation of power lines despite the directions of the Court, the Bench emphasized that the injunction imposed by the Court from the installation of fresh overhead transmission lines by its earlier order, save with the approval of the Committee should be scrupulously enforced. The States of Gujarat and Rajasthan as well as private power producers were directed to ensure that there is no breach of the directions.

The matter is listed on 20-07-2022 for further hearing.


[M.K. Ranjitsingh v. Union of India, W.P. (C) No. 838 of 2019, order dated 21-04-2022]


Appearance by:

For Union of India: K K Venugopal, Attorney General

For the Petitioners: Shyam Divan and Prashanto Chandra Sen, Senior Advocates

For Respondents: Rakesh Dwivedi, K V Viswanathan and Dr Manish Singhvi, Senior Advocates


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: The 3-jude-bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has asked the Government to make a significant alteration in the approach to Chardham Mahamarg Vikas Pariyojna by adopting sustainable measures in line with High Powered Committee’s recommendations and has said that,

“Piecemeal implementation of some mitigation measures for protection of the environment, without any concrete strategy in place, cannot pass muster.”

The Project

On 23 December 2016, the Ministry of Road Transport and Highways announced the Chardham Mahamarg Vikas Pariyojna to widen the roads of approximately 900 kms of national highways, in order to ensure safer, smoother and faster traffic movement. These highways connect the holy shrines which have been labelled as the “Chote Char Dham” in the State of Uttarakhand – Yamunotri (NH94/134 up to Janki Chatti), Gangotri (NH-108), Kedarnath (NH-109, up to Sonprayag), Badrinath (NH-58) and the Tanakpur-Pithoragarh stretch of the Kailash Mansarovar Yatra route (NH-125).

The Project was conceptualized with the aim of improving accessibility to these shrines by widening the existing roads, making travel safer, smoother and faster. It seeks to widen the existing highways into a double lane with paved shoulder configuration with 16 bypasses, realignments and tunnels, 15 flyovers, 101 small bridges and 3516 culverts. The MoRTH has divided the Project into 53 individual projects, the length of each project being less than 100 kms.

The Challenge

The construction under the Project was challenged on the ground that the development activity has a negative impact on the Himalayan ecosystem as it will lead to deforestation, excavation of hills and dumping of muck, which will lead to further landslides and soil erosion, in an already sensitive environment.

The Verdict

“Making the Project environmentally compliant should not be seen a “checkbox” to be obtained on the path to development, but rather as the path to sustained development itself.”

The Court allowed the MoRTH and MoD to proceed with the Project subject to the condition that it addresses all the concerns which have been raised by the HPC and the Court.

Directions

Taking note of the HPC’s unanimous recommendations for taking remedial measures, the Court has directed that,

  • The national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh be developed according to the doublelane carriageway width with paved shoulder standard as provided in the 2020 MoRTH Circular. The national highways from Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh are feeder roads to border areas and are vital from the perspective of national security. It also provides vital connections to the establishments of the Armed Forces along the Nelong Axis, Mana Pass, Rimkhim Pass, Niti Pass and Lipulekh Pass. The importance of the requirement of double-laned highways has been emphasized as it is necessary for the movement of trucks, equipment and personnel of the Armed Forces. Hence,

“This Court, in its exercise of judicial review, cannot second-guess the infrastructural needs of the Armed Forces.”

  • There has to be an assessment of the nature of the problem by obtaining actual data through relevant studies for all individual projects. Specific mitigation measures then should be implemented for all projects, keeping in mind their unique concerns. In doing so, the general recommendations issued by the HPC should form the baseline, i.e., they should be implemented at the very least, along with anything over and above that is deemed necessary based on the studies so conducted.
  • The measures adopted have to be well thought out and should actually address the specific concerns associated with the Project. While this may make the Project costlier, but the Court said that this cannot be a valid justification to not operate within the framework of the environmental rule of law and sustainable development.
  • MoRTH and MoD should be transparent in the measures they adopt, in order for them to be held publicly accountable by spirited citizens.

Oversight Committee

An ‘Oversight Committee’, which shall report directly to the Supreme Court has also been set up to ensure implementation of the recommendations of HPC. The objective of this Oversight Committee is not to undertake an environmental analysis of the Project afresh but to assess the implementation of the recommendations already provided by the HPC

  • The Committee will be chaired by former Supreme Court judge, Justice Arjan Kumar Sikri.
  • In order to enable the Chairperson to receive technical assistance, he shall be aided by:
  • A representative of the National Environmental Engineering Research Institute (‘NEERI’) to be nominated by the Director; and
  • A representative of the Forest Research Institute, Deemed to be University, Dehradun to be nominated by its Director General.
  • The Oversight Committee shall receive all logistical and administrative assistance from the UOI, the Government of Uttarakhand, MoRTH, MoD and MoEF&CC. The Secretary of the Environment and Forest Department, Uttarakhand shall ensure that logistical assistance is provided to the Committee.
  • MoRTH, MoD and MoEF&CC shall also nominate nodal officers for rendering assistance to the Committee, providing information and co-operating with the work of the Committee.
  • The District Magistrates for the Districts forming a part of the Project shall also provide facilitation and assistance to the Committee.
  • A formal notification in terms of these directions shall be issued by the UOI within two weeks. Within four weeks thereafter, MoRTH and MoD shall place before the Committee the steps taken by them to adhere to the HPC’s recommendations, along with a projected timeline for complying with the remaining recommendations. Monthly reports of this nature shall be placed before the Oversight Committee by MoRTH and MoD. The Oversight Committee shall then report on the progress undertaken to the Supreme Court every four months.
  • In case of any issues with the implementation of the recommendations, the Chairperson of the Committee shall be at liberty to approach the Supreme Court.
  • The honorarium for the Chairperson and members of the Oversight Committee shall be determined by the Chairperson and the payment shall be disbursed by MoRTH.

HPC versus Oversight Committee

The HPC shall continue with its work on overseeing the implementation of its recommendations for the Project, except for the national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh, which shall now fall under the purview of the Oversight Committee. This will avoid any overlap between the scope of work of the HPC and the Oversight Committee.

[Citizens for Green Doon v. Union of India, 2021 SCC OnLine SC 1243, decided on 14.12.2021]


Counsels

For Appellants: Senior Advocate Colin Gonsalves

For UOI: KK Venugopal, Attorney General for India


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: In a case where a Project Proponent had adhered to the applicable legal framework for Environmental Clearance (EC) during the concerned period but has been left in the lurch due to changes in the EC regimes, the bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that such Project Proponent cannot be pushed to a precipice and be made to fall. The Court said that,

“A Project Proponent is not expected to anticipate the changes in Environmental Clearance (EC) regimes, especially as a result of judicial interventions, and keep revisiting the sanctioned clearances by the competent authority or even raze down validly constructed structures. Neither can it be expected to knock the doors of an authority, not empowered at the relevant time, to process its applications. Such a scenario would render the process akin to a Sisyphean task, eternally inconclusive and never ending.”

Factual Background

The Project Proponent in the present case, had initially commenced construction on 14.5.2013 with a sanction plan of 15040.05 sq. mtrs., which, being lesser than the threshold limit of 20,000 sq. mtrs, did not require a prior EC. Thereafter, for the proposed expansion of the project, for total constructed area of 49,012 sq. mtrs., the Project Proponent approached the concerned authority on 7.11.2016 for issuance of “Proposed Development Certificate”, which is a prerequisite to apply for EC, and the said certificate was granted on 28.11.2016 for the purpose of obtaining the EC from the SEIAA. But at that stage, by virtue of the MoEFCC notification dated 9.12.2016, the concerned local authority was designated as the sanctioning authority for projects between 20,000 sq. mtrs. and 50,000 sq. mtrs. and accordingly under the changed regime the Project Proponent applied to Pimpri Chinchwad Municipal Corporation (PCMC) on 10.7.2017 and was sanctioned EC by the competent local authority, on 28.11.2017.

A Pune Resident challenged the construction and alleged that the Project Proponent had made construction without obtaining any EC. In this proceeding the NGT constituted a three Member Committee comprising the SEIAA – Maharashtra, the State PCB and the Municipal Commissioner, Pune. The Committee, after spot verification, in its Report dated 18.8.2020 noted that construction of total built up area of 22930.17 sq. mtrs. is already completed for Building Nos. A,E,B,D and the Club House.

The project of the appellant comprises six buildings of which three were constructed in full, and the super structure of the fourth building is completed and only the internal works remains to be done. In the fourth building, 40 out of the 64 apartments have already been sold.

The NGT observed that because of the invalidation of certain clauses in the 2016 notification, the EC obtained from the PCMC is unacceptable and accordingly rendered a finding that the Project Proponent had failed to obtain the valid EC. However, the NGT held that the construction already raised by the Project Proponent on the basis of EC issued by the PCMC as per the notification dated 9.12.2016should be protected.

Analysis

Holding that the Project Proponent was therefore, complying with the regime set out by the amended notification, the Court explained that when the Project Proponent initially wanted to apply for the EC it had obtained the requisite layout sanction for applying to the SEIAA. As such, it was operating well within the applicable procedure, prior to the amendment. After grant of such sanction, while the construction was underway, the amendment came about on 9.12.2016 whereby, the local authority such as the Municipal Corporation was made the competent authority to grant EC. In the changed circumstances, the Project Proponent necessarily had to apply to the PCMC as during the interregnum before the NGT’s judgment on 8.12.2017, SEIAA was not the competent authority to consider application for EC. The Project Proponent had obtained the EC from the competent authority of the relevant time i.e. the PCMC.

The Court also took note of the fact that the Committee constituted by the NGT to report on the building project did not underscore any major deviation but instead found that the Project Proponent had made substantial compliance by obtaining the EC from the competent local authority. Moreover, neither before the NGT or this Court, it was ever contended that appraisal done by the PCMC’s Environmental Cell was defective or any different from one done by SEIAA. Both processes are also similarly structured. The Court, hence, found that this may be the reason why the NGT in the impugned judgment itself protected the already made construction. However, the Project Proponent was restrained from making any further construction without obtaining clearance from the statutory EC and adhering to the environmental norms.

The Court, hence, held that the NGT rightly protected the already erected buildings.

“As the expert body exclusively occupying the environmental field, the NGT has assessed the factual circumstances to consciously lean towards protecting the already constructed structures. Nothing more need be added on this aspect.”

Applying the Doctrine of Legitimate Expectation, the Court explained that the Project Proponent can legitimately expect a certain degree of stability in the manner in which environmental regime is set and how the applications are processed. The actions of the authorities are expected to adhere to the prevalent norms only, without the element of uncertainty for the executed project.

“In the present matter the appellant has acted on the EC and made substantial investments. They cannot be pushed to a precipice and be made to fall. Doing so would be inequitable particularly when, the appellant has scrupulously adhered to the applicable legal framework during the concerned period. Moreover, third-party interests have also cropped up in the interregnum.”

The Court, hence, directed that the four constructed buildings are resultantly to be treated to be under a valid EC with all legal consequences. It was, however, made clear that if the Project Proponent wishes to construct the remaining buildings, they must secure fresh clearance from the competent authority, as per the currently applicable framework.

[Sai Baba Sales Pvt. Ltd. v. Union of India, 2021 SCC OnLine SC 1133, decided on 26.11.2021]


Counsels

For appellant: Senior Advocate Huzefa Ahmadi

For Original Applicant before NGT: Advocate Lonkar Nitin

For Ministry of Environment & Forest: Additional Solicitor General of India Aishwarya Bhati

For Government of Maharashtra: Advocate Rahul Chitnis

For the State Pollution Control Board: Advocate Mukesh Verma


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Op EdsOP. ED.

Introduction

Mankind and environment are interlinked and dependent to each other. The environment degradation has affected the current human generation radically and has posed the threat of the future generation as well. The worldwide situation of the health and expenses on health indicates the need of the legislative measure to save the environment in order to prevent most of the health issues. The current national level laws for sustainable development have jurisdiction of the limited territorial area and international law is required to protect the planet as a whole. The law should criminalise the damage to the environment and also promote its sustainable use. The sustainable use of environment is one thing and restoration of it in the same state is another. The need of hour is to make such developments that help to escalate the economy along with environment stability. The consideration of ecocide as an international crime is the single most powerful measure due to enlarged loss of biodiversity around the world and lack of reversing technique to compensate the system failure which helps to emphasise that the security of our planet must be guaranteed on an international scale.

Need of considering ecocide as international crime

The world leaders at UN Conference on Sustainable Development held in Stockholm in June 2022, to stress upon the binding principles and rules for consideration of ecocide as crime at ICC[1].

The first international conference on environment issues named UN Stockholm Conference held in 1972 for tackling the concerns regarding environmental degradation issues[2]. International organisations are weighing in with expert publications such as the International Energy Agency’s “Net Zero by 2050”[3] Report serving as a reminder that the clock is ticking towards the targets set by the Paris Agreement and the IPCC’s “Special Report on Global Warming of 1.5°C”[4].

It was first used in 1970, when Professor Arthur W. Galston coined the term[5] to describe the effects of the use of Agent Orange by the US in Vietnam. Galston proposed an international agreement to ban ecocide at the time. It was subsequently considered for inclusion as an additional crime in early drafts of what became the Rome Statute of the International Criminal Court (ICC), alongside the international crimes prosecuted at the Nuremburg trials (war crimes, genocide, crimes against humanity), but was ultimately excluded.

The population size of mammals, birds, fish, amphibians and reptiles have dropped by 68% on an average globally, and as much as 94% for Latin America as per the recent Report of Living Planet by WWF[6].

Similarly, the latest State of the World’s Plant and Fungi Report[7] led by the Royal Botanic Gardens, Kew, shows that 39% of the all plants and species– about 140,000 – face extinction[8] in the coming decades, with the degradation of natural resources and ecosystems the primary cause. As recently shown by the first UN Environment Programme synthesis report[9] and the first joint IPCC/IPBES Report[10], biodiversity loss and the climate emergency pose severe threats to humanity. Unlawful environment damage caused by international companies in low income, biodiverse countries further risks accentuating systematic injustice and global inequalities. Protecting nature is necessary to address biodiversity loss and the climate crisis simultaneously[11].

Analysis of the definitions and the proposed draft

The idea is not new, being first mooted by late Swedish Prime Minister Olof Palme. He had tried to push the ecocide idea at the 1972 environmental conference in Stockholm.[12]

Prof. Philippe Sands of the University College London, also a Queen’s Counsel was quoted by The Daily as saying:

“The four other crimes all focus exclusively on the well being of human beings. This one of course does that but it introduces a new non-anthropocentric approach, namely, putting the environment at the heart of international law, and so that is original and innovative. For me the single most important thing about this initiative is that it’s part of that broader process of changing public consciousness, recognising that we are in a relationship with our environment, we are dependent for our well-being on the well-being of the environment and that we have to use various instruments, political, diplomatic but also legal to achieve the protection of the environment.”[13]

In 2010, lawyer and environmental campaigner Polly Higgins lobbied the UN to create an international crime of ecocide. Although the UN rejected her argument, in 2016 the ICC said it would assess instances of environmental destruction as “crimes against humanity”.[14]

Corporate and State responsibility is also excluded under the Rome Statute. Meaning, corporations and States that cause water and air pollution or participate in illegal deforestation and cause oil spills during peacetime cannot be prosecuted for their environmental damage. Clearly, ICC crimes do not place any legal restrictions on harms that occur during times of peace.

The ICCs Rome Statute further defines crimes against humanity as “acts committed as part of a widespread systematic attack directed against any civilian population”. For many, the definition is too narrow to include ecocide as triable by the ICC.

Recently on 22-6-2021 a group of lawyers defined ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts”.[15]

  1. … “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;
  2. “severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;
  3. “widespread” means damage which extends beyond a limited geographic area, crosses State boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;
  4. “long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;
  5. “environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.[16]

The definition provides two thresholds, first being the severe and either widespread or long term and secondly, the act is unlawful or wanton. Further, the commission of an offence will not arise merely from the pollution or damage to the environment. But from either the wilful omission of the safety protocols or having knowledge of the damage that will be caused.

Further, the mens rea definition given under Article 30 of the Rome Statute was considered too narrow to cover the severe and widespread or long-term damage to the environment[17].

The aim of the draft is to make the rising environment related issues punishable in order to prevent its further damage. Also the environment protection is directly linked to the protection of mankind and the planet in general.

National and international stance on environment protection

Various national and international case laws highlight that the need is to consider environment preservation and economic development hand in hand. The right to safe, clean and healthy environment has been included under the fundamental right of right to life which shows that the importance of environment and life are equally important.

In May 2021, the ruling of a court in the Netherlands ordered Royal Dutch Shell to cut its emissions by 45 per cent by 2030. In the same week, the Federal Court in Australia ruled that the Minister for the Environment owes a duty of care to safeguard Australian children from the impacts of climate change. Courts around the world are also increasingly hearing air pollution cases, pressuring governments to comply with legal limits.

One of the reasons for this is citizens increasingly becoming aware of and exercising their human rights to a clean environment. Judges are also more aware of the critical role they play in climate and environmental adjudication, with increased capacities in this space.

State of T.N. v. Hind Stone[18]

  1. Rivers, forests, minerals and such other resources constitute a nation’s natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation.[19]

T.N. GodavarmanThirumulpad v. Union of India[20]

  1. … As was observed by this Court in M.C. Mehta v. Kamal Nath[21] our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

 Jitendra Singh v. Ministry of Environment[22]

  1. … Water bodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.

Aim behind introduction of ecocide

 The aim of the draft[23] is to include ecocide as crime along with already existing four specific types of criminal acts:  genocide, war crimes, crimes against humanity and crimes of aggression.

The environment will surely have the catastrophic consequences due the emission of greenhouse gases and the destruction of ecosystems at current rates on the planet and the environment as the conclusion drawn by the scientific evidences.

“Thus with political, diplomatic and economic initiatives, international law has a role to play in transforming our relationship with the natural world, shifting that relationship from one of harm to one of harmony.”

Currently, crimes that harm the environment are only internationally criminal during times of armed conflict. Article 35(3) of Additional Protocol I[24] maintains that “destruction of the natural environment may not be used as a weapon”. To include the intentional crimes which affect and damage the environment adversely are also required to be included.[25]

Advantages

 The inclusion of ecocide as fifth international crime holds great significance as it carries along with it various related advantages. Firstly, environment will gain its lost importance which has been sidelined by the greedy human kind which is exploiting it continuously to explore more and more economic advantages. Secondly, member countries may get inspired and bring change in their national criminal laws which will boost the strictness of the crime and protection of the environment. Thirdly, it will help the environment law crimes that fall outside national laws and cannot be included in already existing four international law crimes.[26]

Conclusion

 The need of the present technically developed society which is continuously craving for economic benefits is to make environment degradation a crime and doer a criminal. The continuing exploitation of the environment has to be stopped otherwise end of the planet is near as daily news reports states the fires in big forests, melting of glacier, Covid-19 as some reports state it as a bio weapon. Thus, the proposal and the draft is required to be accepted by the international authorities and every country should try to be its signatory.


* 4th year student, National Law University of Study and Research in Law, Ranchi.

[1]Ministry of Environment Affairs, “Stockholm+50”, (The Government Offices of Sweden, 2022), available at<https://www.government.se/government-policy/stockholm50/>, visited on 30-6-2021.

[2] United Nations, United Nations  Conference  on the  Human Environment,  5-16  June , 1972,  Stockholm,  Environment  and Sustainable Development, available at<https://www.un.org/en/conferences/environment/stockholm197>, visited on 30-6-2021.

[3]IEA (2021), Net Zero by 2050, Paris, available at<https://www.iea.org/reports/net-zero-by-2050>, visited on 30-6-2021.

[4] The Intergovernmental Panel on Climate Change (IPCC), Special Report on Global Warming of 1.5°C, <https://www.ipcc.ch/sr15/>, visited on 30-6-2021.

[5]Ecocide Law, History, available at<https://ecocidelaw.com/history/>, visited on 30-6-2021.

[6]The Royal Botanic Gardens, Kew,State of the World’s Plants and Fungi,(2020) <https://www.kew.org/science/state-of-the-worlds-plants-and-fungi>,visited on 30-6-2021.

[7]The Royal Botanic Gardens, Kew, State of the World’s Plants and Fungi, (2020) https://www.kew.org/science/state-of-the-worlds-plants-and-fungi, visited on 30-6-2021.

[8]Eimear Nic Lughadha, et al., Extinction Risk and Threats to Plants and Fungi, 29-9-2020, available at <https://doi.org/10.1002/ppp3.10146>, visited on 30-6-2021.

[9] United Nations Environment Programme, Making Peace with Nature, Report, 18-2-2021, available at <https://www.unep.org/resources/making-peace-nature>,visited on 30-6-2021.

[10]IPBES, Launch of IPBES-IPCC Co-Sponsored Workshop Report on Biodiversity and Climate Change, 10-6-2021, available at<https://www.ipbes.net/events/launch-ipbes-ipcc-co-sponsored-workshop-report-biodiversity-and-climate-change>,  visited on 30-6-2021.

[11]Alexandre Antonelli and Pella Thiel, Ecocide Must be Listed alongside Genocide as an International Crime, <https://www.theguardian.com/environment/commentisfree/2021/jun/22/ecocide-must-be-listed-alongside-genocide-as-an-international-aoe>, visited on 30-6-2021.

[12]A Law for Ecocide, 26-6-2021, available at<https://www.indialegallive.com/column-news/a-law-for-ecocide/>, visited on 30-6-2021.

[13]Sujit  Bhar, A Law for Ecocide, 26-6-2021, available at<https://www.indialegallive.com/column-news/a-law-for-ecocide/>,visited on 30-6-2021.

[14]John Vidal and Owen Bowcott, ICC Widens Remit to Include Environmental Destruction Cases, The Guardian, 15-9-2016, available at<https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases>, visited on 30-6-2021.

[15]Siddique, Haroon,  Legal Experts Worldwide Draw up “Historic” Definition of Ecocide,  The Guardian, 22-6-2016, available at <https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide>,visited on 30-6-2021.

[16]Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide Commentary and Core Text, June 2021, available at <https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf>, visited on 30-6-2021.

[17] Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide Commentary and CoreText, June 2021, available at <https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf>, visited on 30-6-2021.

[18] State of T.N. v. Hind Stone, (1981) 2 SCC 205, 212.

[19](1981) 2 SCC 205, 212.

[20](2002) 10 SCC 606, 638.

[21](1997) 1 SCC 388.

[22]2019 SCC OnLine SC  1510. 

[23]Haroon Siddique,  Legal Experts Worldwide Draw up “Historic” Definition of ecocide, The Guardian, 22-6-2021, available at<https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide>,visited on 30-6-2021.

[24]International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12-8-1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8-6-1977, available at

<https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=0DF4B935977689E8C12563CD0051DAE4>,visited on 30-6-2021.

[25]Racheal Tillman, Coalition of Lawyers Push for “Ecocide” to be an International Crime, Spectrum News 1, 24-6-2021,  available at<https://spectrumlocalnews.com/nys/central-ny/news/2021/06/24/ecocide-international-criminal-court-proposal-lawyer>,visited on 30-6-2021.

[26]Mélissa Godin, Lawyers are Working to Put “Ecocide” on Par with War Crimes. Could an International Law Hold Major Polluters to Account? 19-2-2021, available at<https://time.com/5940759/ecocide-law-environment-destruction-icc/>,visited on30-6-2021.

Case BriefsSupreme Court

Supreme Court: In the case where the National Green Tribunal had directed that unless the State Expert Appraisal Committee (SEAC) and the State Environment Impact Assessment Authority (SEIAA) grants approval to the District Survey Report (DSR) for the purpose of mining of sand, the same cannot be carried out in the State of Bihar, the bench of L. Nageswara Rao, Sanjiv Khanna and BR Gavai, JJ has modified the said order and has allowed the State to continue with legal mining activities through Bihar State Mining Corporation with certain necessary arrangements.

“… until the DSRs are finalized and granted approval by SEAC and SEIAA, it is appropriate that certain necessary arrangements are permitted so that the State can continue with legal mining activities. This apart from preventing illegal mining activities, would also ensure that the public exchequer is not deprived of its share in legalized mining.”

Understanding the need for a balanced approach of sustainable development ensuring environmental safeguards, the Court noticed that,

“…it also cannot be ignored that when legal mining is banned, it gives rise to mushroom growth of illegal mining, resulting into clashes between sand mafias, criminalization and at times, loss of human lives. It also cannot be disputed that sand is required for construction of public infrastructural projects as well as public and private construction activities. A total ban on legal mining, apart from giving rise to illegal mining, also causes huge loss to the public exchequer.”

Preparation of DSRs as per Enforcement and Monitoring Guidelines for Sand Mining, 2020

In accordance with the Enforcement and Monitoring Guidelines for Sand Mining, 2020,

  • the DSR is required to be prepared before the auction/e-auction/grant of mining lease by Mining Department or Department dealing with mining activity in the respective States.
  • the potential site for mining having its impact on the forest, protected area, habitation and bridges should be avoided. For this, a sub-divisional committee is required to be formed which, after the site visit, is required to decide regarding the suitability of the sites for mining.
  • the sub-divisional committee is further required to record its reasons for selecting the mining lease in the patta land. Various details are required to be given in the annexures appended to the said policy.

Preparation of DSRs through Private consultants – Unnecessary

When the 2020 guidelines as well as the notification issued by MoEF and CC of 2016 itself provide for constitution of sub-divisional committees comprising of the officers of the State Government from various Departments for identification of the potential sites for mining, there would be no necessity of the DSRs being prepared through private consultants as directed by the Tribunal in the impugned order.

The sub-divisional committee consists of various officers from Revenue Department, Irrigation   Department, State Pollution Control Board, Forest Department and Geology Mining Department of the State Government who are better equipped to visit the sites and prepare the draft DSR for the concerned district.

“The advent of modern technology, various technological gadgets like Drones and satellite imaging etc. can be used for identification of the potential sites and preparation of the DSR and also to check misuse and unauthorized mining.”

Apart from that, preparation of DSR through private consultants would also unnecessarily burden the public exchequer.

Directions

(i) The exercise of preparation of DSR for the purpose of mining in the State of Bihar in all the districts shall be undertaken afresh. The draft DSRs shall be prepared by the sub-divisional committees   consisting of the Sub-Divisional Magistrate, Officers from Irrigation Department, State Pollution Control Board or Committee, Forest Department, Geological or mining officer. The same shall be prepared by undertaking site visits and also by using modern technology. The said draft DSRs shall be prepared   within a period of 6 weeks from the date of this order. After the draft DSRs are prepared, the District Magistrate of the concerned District shall forward the same for examination and evaluation by the SEAC.   The same shall be examined by the SEAC within a period of 6 weeks and its report shall be forwarded to the SEIAA within the aforesaid period of 6 weeks from the receipt of it. The SEIAA will thereafter consider the grant of approval to such DSRs within a period of 6 weeks from the receipt thereon;

(ii) While preparing DSRs and the appraisal thereof by SEAC and SEIAA, it should be ensured that a strict adherence to the procedure and parameters laid down in the policy of January 2020 should be followed;

(iii) Until further orders, the State Government can carry on mining activities through Bihar State Mining Corporation for which it may employ the services of the contractors. However, while doing so, the State Government shall ensure that all environmental concerns are taken care of and no damage is caused to the environment.

[State of Bihar v. Pawan Kumar, CIVIL APPEAL NOS. 3661­3662 OF 2020, order dated 12.11.2021]


Counsels:

For State: Senior Advocate Atmaram Nadkarni

For applicant: Senior Advocate P.S. Patwalia

Case BriefsHigh Courts

Jharkhand High Court: Rajesh Shankar J. refused to interfere with the detailed NGT order only for the purpose of providing a shortcut method of dealing with the violation of cases of the members of the petitioner.

The facts of the case are such that Respondent 1 vide notification dated 14.09.2006 formulated the Environment Impact Assessment Notification, 2006 (i.e. EIA Notification, 2006) which mandates for obtaining prior Environmental Clearance i.e. EC from the concerned regulatory authority to initiate construction activities for the projects falling under the Schedule of EIA Notification, 2006.  On 14.03.2017, respondent 1 issued notification to deal with the cases of alleged violation of the environmental laws and thus a process was established to deter violation of provisions of EIA Notification, 2006 and be compensated by restoring the ante-original state.

A Public Interest Litigation (PIL) challenging the validity of the said notification 2017 was filed before the High Court of Madras which was stayed, later vacated and upheld.  The notification was later amended and the power for appraisal of category ‘B’ proposals which are under violation of EIA Notification, 2006 were delegated to the States.  The respondent 1 issued another notification dated 15.03.2018 for implementation of the notification which was assailed before NGT for non-implementation. The Tribunal issued several directions to the State to forthwith stop all the ongoing construction activities undertaken without obtaining prior EC. Aggrieved by this, the petitioner is a member of the Confederation of Real Estate Developers’ Association of India (CREDAI) which is the apex body of private real estate developers comprising of the real estate developers of the State of Jharkhand filed the instant petition.

Counsel for the petitioner Abhishek Manu Singhvi submitted that the action of the respondent 3 in directing the members of the petitioner to stop construction activities without any opportunity of hearing is in violation of the principles of natural justice. It was also submitted that the members of the petitioner have all requisite documents for grant of EC, however the same was not granted due to non-existence of SEIAA in the State of Jharkhand.

Mr. Singhvi also submitted that that the impugned orders prohibiting construction activities without obtaining prior EC has brought the entire real estate sector to a grinding halt which was just getting back to normalcy post first wave of Covid-19 pandemic and as a result of stoppage of construction activities, the livelihood of around 3 lakhs construction workers and over 15 lakhs dependent members are at stake and over 200 industries in the MSME Sector have been severely affected. It was also submitted that that the members of the petitioner are ready and willing to get their projects assessed by the respondent-SEIAA, Jharkhand for any mitigating condition including payment of compensation that may be assessed in true letter and spirit while processing and granting EC for their projects.

Counsel for the respondents submitted that as per EIA Notification, 2006, in the absence of SEIAA/SEAC in the State/UTs, the proposal was to be appraised by the EAC at central level. Therefore, the plea of the petitioner that the SEIAA, Jharkhand was non-functional from 09.11.2019 to 03.11.2020 due to which many project proponents could not obtain prior EC is baseless and not tenable in the eye of law.  It was further submitted that the members of the petitioner started construction work without obtaining mandatory EC required under EIA Notification, 2006 which comes under violation category and presently there is no mechanism to deal with such violation cases. It was also pointed out before the Court that if the petitioners were aggrieved by the NGT order, the same should have been challenged before Supreme Court.

It is observed that respondent 2, in exercise of the power conferred by section 3(2)(v)(1) of the Environment (Protection) Act, 1986, r/w Rule 5 (3) (d) of the Environment (Protection) Rules, 1986, issued notification imposing certain restrictions and prohibitions on new projects or expansion or modernization of existing projects or activities based on their potential environmental impacts unless prior environmental clearance has been accorded in accordance with the objectives of National Environment Policy.

The Court observed that that the petitioner cannot claim the benefit of the fact that the SEIAA, Jharkhand was not functioning for certain period, since its members could have applied before the EAC at Central level for grant of EC in view of clause-4 of the EIA Notification, 2006.

The Court further observed that there were various notices mentioning that if the noticees have not obtained environmental clearance, they must stop the construction activities immediately and submit the environmental clearance, failing which action will be initiated under the provisions of the Jharkhand Municipal Act, 2011. It was also observed that if the petitioner or any of its members found itself aggrieved by the order of the NGT, it could have filed appeal against the said order for getting appropriate relief; however it did not choose to challenge the same. As such, challenge to the impugned notices on the ground of violation of the principles of natural justice, is not sustainable.

It is a trite law that a writ cannot be issued on the ground of violation of principles of natural justice if only one conclusion is possible in a given situation. Every violation of a facet of natural justice may not lead to a conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice”.

The National Green Tribunal Act, 2010 (in short “the Act, 2010”) has been enacted for the establishment of National Green Tribunal for effective and expeditious disposal of cases relating to environmental protection and conservation of forest and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.

The Court held that “since the NGT is a specialized body to look into the environmental affairs which has passed the order to deal with the present issue applying the principle of sustainable development and the precautionary principle having been empowered in view of Section 22 of the Act, 2010, the Government of Jharkhand must ensure that EIA is undertaken, management plan is prepared for the projects which were started in violation of EIA Notification, 2006, compensation is duly assessed and recovery of the same is made from the defaulter as well as in the meantime the ongoing construction must be stopped.”

In view of the above, writ petition was dismissed.

[Confederation of Real Estate Developers Association of India v. UOI, 2021 SCC OnLine Jhar 370, decided on 13-05-2021]


Arunima Bose, Editorial Assistant has put this report together 

Counsel For the Petitioner: Mr. Abhishek Manu Singhavi, Mr. Keshav Mohan and Mr. N.K. Pasari

Counsel For the Respondent 1: Mr. Rajiv Sinha

Counsel For the Respondent 2 and 3: Mrs. Surabhi

Counsel For the Respondent 4: Mr. Bhanu Kumar

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and MR Shah*, JJ has held that Magistrate can in exercise of powers under Section 156(3) of the Criminal Procedure Code order/direct the concerned Incharge/SHO of the police station to lodge/register crime case/FIR even for the offences under the the Mines & Minerals (Development & Regulation) Act, 1957 (MMDR Act) and the Rules framed thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted.

The Court was hearing a case relating to offences under Sections 379 and 414 IPC, Sections 4/21 of the MMDR Act and Rule 18 of the M.P. Minerals (Prevention of illegal Mining, Transportation and Storage) Rules, 2006 where the Magistrate in exercise of powers conferred under Section 156(3), Cr.P.C. suo motu directed to register criminal case under Section 156(3) Cr.P.C. for initiation of investigation and for submitting of report after due investigation is conducted. The concerned In-charge/SHOs of the concerned police stations was also directed to register the first information report and a copy of the first information report be sent to the learned Magistrate as per the provisions of Section 157, Cr.P.C. The Madhya Pradesh High Court had refused to quash the criminal proceedings.

It hence, concluded

i) that the Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned Incharge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted;

ii) the bar under Section 22 of the MMDR Act shall be attracted only when the Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder;

iii) for commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder; and

iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned In-charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In-charge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.

v) in a case where the violator is permitted to compound the offences on payment of penalty as per sub-section 1 of Section 23A, considering sub-section 2 of Section 23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under sub-section 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further.

Considering the need for stringent provisions which may have deterrent effect so that the violators may think twice before causing damage to the earth and the nature, the Supreme Court said

“It might be true that by permitting the violators to compound the offences under the MMDR Act or the rules made thereunder, the State may get the revenue and the same shall be on the principle of person who causes the damage shall have to compensate the damage and shall have to pay the penalty like the principle of polluters to pay in case of damage to the environment. However, in view of the large scale damages being caused to the nature, the policy and object of MMDR Act and Rules are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature.”

In the present case, on a surprise inspection, the respective Mining Inspectors checked the tractor/trolleys of the private appellants along with the minor mineral (sand/storage/yellow soil etc.) loaded in them.

[Jayant v. State of Madhya Pradesh, 2020 SCC OnLine SC 989, decided on 03.12.2020]


*Justice MR Shah has penned this judgment 

Case BriefsSupreme Court

Supreme Court:  The 3-judge bench of SA Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ has reiterated that the Courts should not thwart any investigation unless no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.

Referring to the decision in State of Haryana v. Bhajan Lal, (1992) Supp. (1) SCC 335, the Court said,

“(…) the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint.”

In S.M. Datta v. State of Gujarat, (2001) 7 SCC 659 the Court cautioned that criminal proceedings ought not to be scuttled at the initial stage.

“Quashing of a complaint should rather be an exception and a rarity than an ordinary rule.  (…) if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere.”


FIR against Skoda Auto Volkswagen over alleged use of cheat devices


Skoda Auto Volkswagen India Private Limited is engaged in the business of manufacture, import and sale of passenger vehicles in India. The 3rd Respondent in the case lodged an FIR, alleging that he had bought 7 Audi Brand cars from the authorised dealers of the manufacturing Companies and knowing fully well that their vehicles have been installed with cheat devices, the manufacturer had prepared wrong records and documents.

The Petitioner moved Allahabad High Court seeking quashing of the FIR alleging that the FIR is based entirely upon the order of the NGT, which is the subject matter of two civil appeals before the Supreme Court.

Allahabad High Court rejected the prayer for quashing of the FIR. However, the High Court protected the officers of the petitioner against arrest till the submission of the Report under Section 173(2) Cr.P.C. subject however to the condition that they shall cooperate in the investigation.

Not satisfied with a mere protection against arrest and the refusal of the Allahabad High Court to quash the FIR, the petitioner argued before the Supreme Court:

  1. That the Police cannot investigate an issue, the substratum of which is sub judice before this Court in the civil appeals arising out of the order of the NGT; and
  2. That the High Court failed to take note of the long delay on the part of the 3rd Respondent in lodging the complaint and
  3. That the VAHAN Portal of the Government shows the purchase of only 3 vehicles as against the claim of the 3rd Respondent to have purchased 7 vehicles.

Why the Supreme Court refused to quash FIR


On Issue 1

Should pendency of the Civil Appeals and the interim order passed by Supreme Court be taken as a deterrent for anyone else to lodge a police complaint and seek an investigation?

Two original applications came to be filed before the NGT in the year 2015, alleging that the manufacturers of the vehicles in question were employing deceit devices. This coincided with the issue of notice by the Automotive Research Association of India to the manufacturers. The   applicants before the NGT did not seek any relief for themselves, as purchasers of vehicles. The reliefs sought by the applicants before the NGT were broad and general. Hence,

“ (…) the order of the NGT, passed on the applications filed by certain individuals not claiming as purchasers of vehicles, cannot   be   taken   as   an   impediment   for   an   individual   who purchased cars from the manufacturers, to lodge a complaint, if he has actually suffered on account of any representation made by the manufacturers.”

Further, the interim order passed by the Supreme Court not to take any coercive steps has to be understood only in the context of the aforesaid directions of the NGT which became the subject matter of the Civil Appeals.

Can police investigate into the same set of allegations which form the subject matter of proceedings pending adjudication before Supreme Court?

The question whether such devices are installed in the cars purchased by the 3rd respondent herein and the question whether there was any representation in this regard to the petitioner, are all questions of fact, peculiar and particular to the 3rd respondent herein. NGT had no occasion to examine the cars purchased by the 3rd respondent herein.

The Court said,

“At this stage no one can presume whether the defence of the manufacturer to the police complaint will be purely on a question of fact or purely on a question of law or on mixed questions of fact and law.”

  • If the petitioner takes a defence that no such devices were installed in the cars purchased by the 3rd respondent or that there was no (mis)representation in this regard, it will be a pure question of fact, which cannot be gone into in a quash petition.
  • If the petitioner takes a defence that the installation of such devices, though true, does not violate any law, then it will be a pure question of law.

The Court said that the action initiated by the Automotive Research Association of India in November 2015 and the proceedings that went on before the National Green Tribunal from the year 2015 to the year 2019, have to be seen in the light of the Dieselgate Scandal[1]. All of them were part of the global outrage that actually concerned the damage caused to the environment by the emissions from the cars allegedly fitted with manipulative devices.

The proceedings before the NGT were not intended to address issues relating to individuals, such as

(i) whether any emissions manipulation software, called in common parlance as ‘defeat devices’ were installed in the vehicles purchased by certain individuals; and

(ii) whether any representation was made to the purchasers of the cars in which such devices had been installed, about the emission efficiency level of the cars

Hence, the Court rejected the contention that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. It held that the High Court has been fair to the petitioner, by granting protection against arrest till the filing of the report under section 173(2) of the Code.

On Issue 2

Mere delay in lodging the complaint, cannot by itself be a ground to quash the FIR. The law is too well settled on this aspect to warrant any reference to precedents.

On Issue 3

The Court did not go into the third issue as it is a question of fact which has to be established only in the course of investigation/trial.

[Skoda Auto Volkswagen India Private Limited v. State of Uttar Pradesh, 2020 SCC OnLine SC 958, decided on 26.11.2020]


*Justice V. Ramasubramanian has penned this judgment 

For Petitioner: Senior Advocate Dr. Abhishek Manu Singhvi

For 3rd Respondent: Senior Advocate Maninder Singh

[1] In September-2015, allegations of installation of manipulation devices by car manufacturers emerged from the US Environmental Protection Agency triggering investigations in several European Union States. After claims were lodged and legal action initiated, the German Federal Motor Transport Authority appears to have given permission in June-2016 for the recall of about 2 million vehicles across Europe. In the light of these developments, one of the manufacturers entered into an agreement with the US Environmental Protection Agency in December-2016 giving certain options to the customers. These and the subsequent developments, which attained notoriety as the diesel-gate 18 scandal, led to the German Federal Court of Justice (Bundesgerichtshof-BGH) giving a ruling on May 25, 2020 in favour of the car owners for damages.
Case BriefsSupreme Court

Supreme Court: In the case where the National Green Tribunal directed the State of Madhya Pradesh to ensure that no dealer and/or outlet and/or petrol pump should supply fuel to vehicles without Pollution Under Control (PUC) Certificate, the bench of Arun Mishra and Indira Banerjee, JJ has held that NGT had no power to pass such direction as the stoppage of supply of fuel to vehicles not complying with the requirement to have and/or display a valid PUC Certificate is not contemplated either in the Central Motor Vehicles Rules, 1989 or in the National Green Tribunal Act, 2010.

“Motor Vehicles not complying with the requirement of possessing and/or displaying a valid PUC Certificate cannot be debarred from being supplied fuel.”

The Court said that when a Statute or a Statutory Rules prescribed a penalty for any act or omission, no other penalty not contemplated in the Statute or a Statutory Rules can be imposed. When a Statute requires a thing to be done in a particular manner, it is to be done only in that manner.

After going through the relevant provisions, the Court summarized that driving a vehicle without a pollution PUC certificate entails:

  • suspension of registration certificate;
  • imprisonment which may extend to three months;
  • fine which may extend to Rs.10,000/- or both
  • disqualification for holding licence for a period of three months
  • imprisonment for a term which may extend to six months or with fine which may extend to Rs.10,000/- or with fine.

It further noticed that as per Rule 116(8) and (9), the suspension of the certificate of registration is temporary. The suspension is until such time as a certificate is produced before the Registering Authority certifying that the vehicle complies with sub Rules (2) and (7) of the Rule 115 of the Central rules. A Certificate of Registration is also to be deemed to have been suspended, until a fresh Pollution Under Control certificate is obtained.

“There can be no doubt that strong measures must be taken to protect the environment and improve the air quality whenever there is contravention of statutory rules causing environmental pollution. Stringent action has to be taken, but in accordance with law.”

The Court, hence, noticed that in passing blanket direction, directing the appellant State Government to ensure that no dealer and/or outlet and/or petrol pump should supply fuel to vehicles without PUC Certificate, de hors the Central Motor Vehicles Rules, NGT overlooked the fact that no vehicle can either be repaired to comply with pollution norms, nor tested for compliance with the political norms upon repair, without fuel.

Hence, the NGT had no power and/or authority and/or jurisdiction to pass orders directing the Appellant State Government to issue orders, instructions or directions on dealers, outlets and petrol pumps not to supply fuel to vehicles without PUC Certificate.

The Court, however, directed that the State shall strictly implement compliance of Rules 115 and 116 and penalize all those who contravene the said Rules in accordance with the provisions of the 1989 Rules.

“The Registration Certificate of vehicles which do not possess a valid PUC Certificate shall be forthwith suspended and/or cancelled, and penal measures initiated against the owner and/or the person(s) in possession and/or control of the offending vehicle, in accordance with law.”

[State of Madhya Pradesh v. Centre for Environment Protection Research and Development, 2020 SCC OnLine SC 687, decided on 28.08.2020]

Case BriefsSupreme Court

Supreme Court: Taking note of the “appalling situation” concerning National Green Tribunal where, as of today, there are about 14 vacancies (seven judicial members and seven technical members), the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ has directed Centre to notify, within 10 days, all the existing vacancies at one go, including the anticipated vacancies likely to take place in the next six months.

The Court noticed that the Tribunal is presently functioning with the strength of only seven judges i.e. one chairman, three judicial members and three technical members, despite the mandate to ensure that the minimum number of members shall not be less than 10. It said,

“This is an appalling situation concerning the premier institution such as National Green Tribunal, which is required to deal with environmental issues. That cannot be countenanced.”

Centre had, in it’s response, given assurance that notification for filling up nine vacancies is being issued by the end of July, 2020. But the Court said that it was not enough and that a notification for ALL vacancies was needed to be issued.

The Court, further, directed that until the proposed selection process culminates with appointment order(s) of the concerned candidates against the existing vacancies, the members presently in office as on this date but are likely to retire shortly, shall continue to hold office in terms of this order and discharge their functions accordingly.

The Court has asked the Centre to file a compliance report by the next date of hearing i.e. 13.08.2020.

[NGT Bar Association (Western Zone) v. Union of India, 2020 SCC OnLine SC 591 , order dated 23.07.2020]


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Hot Off The PressNews

Supreme Court: The bench Arun Mishra and Deepak Gupta, JJ has allowed construction activity in the Delhi-NCR region between 6 am and 6 pm, partially lifting its complete ban on it.  The said order of the Court came after Additional Solicitor General A N S Nadkarni informed it that the Centre has constituted a high-level committee following the apex court’s direction to examine the feasibility of using technology like smog towers to combat air pollution.

The bench also directed the governments of Uttar Pradesh, Punjab and Haryana to furnish before it the updated report on stubble burning up to December 11.

The court had on November 25 directed the Centre to constitute a high-level committee within three days to consider and work out modalities regarding other technologies to help combat pollution, and said that a report be filed before it within three weeks on this issue. The various direction that the Court had earlier issued are as follows:

  • It had asked the Delhi government to apprise it of the steps taken with regard to anti-smog gun which sprays atomized water 50 metres in the air to bring down pollutants and had said CPCB should be associated on the issue of anti-smog guns.
  • The court had asked all the states to explain within six weeks as to why they should not be made liable to pay compensation to persons affected by bad air quality saying it is their bounden duty to provide basic civic amenities, clean air and drinking water to citizens.
  • The court had asked the Centre and the Delhi government to sit together and take decision within 10 days with regard to installation of smog towers in Delhi-National Capital Region (NCR) which would help in combating air pollution.

The Court had said that “the right to life of human is being endangered” by the bad air quality and water pollution and the states have to deal with the situation as “life span is being shortened”. The Court also took exception that states and Centre were indulging in “blame game” over crucial issue of air and water pollution and asked them to work in tandem for welfare of the people. It said despite various orders being passed by the top court from time to time in the pollution matter, the situation has worsened over the years and authorities have to be blamed as they have not performed their duties.

Terming the situation of stubble burning in Punjab, Haryana and Uttar Pradesh as “alarming”, the Court noticed that despite its order prohibiting it, burning of crop residues in these states have increased. It, hence, pulled up the chief secretaries of Punjab, Haryana and Uttar Pradesh for their failure to prevent instance of stubble burning despite the Court’s order. It said,

“Only policy making to deal with pollution is not required, the real issue needed was implementation at the ground level.”

The bench is due to take up the pollution related matters on December 16.

(Source: PTI)

Case BriefsSupreme Court

Supreme Court: In a case challenging the grant of an Environmental Clearance (EC) for the development of a greenfield international airport at Mopa in Goa, the Bench of Dr. DY Chandrachud and Hemant Gupta, JJ directed Expert Appraisal Committee (EAC) to revisit the conditions subject to which it granted its EC within a month.

Appraisal by the EAC

The Court explained ‘Appraisal by the EAC’ as structured and defined by the 2006 notification. It said that the process of appraisal is defined to mean “a detailed scrutiny” by the EAC of the application and other documents like the EIA report and the outcome of the public consultation, including the public hearing proceedings, submitted by the applicant to the regulatory authority for the grant of an EC. The EAC is under a mandate to conduct the process of appraisal in “a transparent manner”. On the conclusion of these proceedings, the EAC has to make “categorical recommendations” to the regulatory authority. The recommendations made by the EAC to the regulatory authority must be based on “reasons”. Considering this, the Court noticed,

“That the project proponent must submit all information and data without concealing relevant features is a basic hypothesis and expectation of the 2006 notification. The EAC has, in the brief reasons which are contained in para 3.1.2, not applied its mind at all to the environmental concerns raised in relation to the project nor do its reasons indicate an appraisal of those concerns by evaluating the impact of the project.”

Hence, the Court said the appraisal by the EAC in the present case neither the process of decision making nor the decision itself can pass legal muster.

Failure of due process

On EAC:

“The EAC, as an expert body abdicated its role and function by taking into account circumstances which were extraneous to the exercise of its power and failed to notice facets of the environment that were crucial to its decision making. The 2006 notification postulates that normally, the MoEFCC would accept the recommendation of the EAC. This makes the role of the EAC even more significant.”

On NGT:

“The NGT is an adjudicatory body which is vested with appellate jurisdiction over the grant of an EC. The NGT dealt with the submissions which were urged before it in essentially one PART J 90 paragraph. It failed to comprehend the true nature of its role and power under Section 1(h) and Section 20 of the NGT Act 2010. In failing to carry out a merits review, the NGT has not discharged an adjudicatory function which properly belongs to it.”

Directions

  • Until the EAC carries out the fresh exercise as directed above, the EC granted by the MoEFCC on 28 October 2015 shall remain suspended;
  • Upon reconsidering the matter in terms of the present directions, the EAC, if it allows the construction to proceed will impose such additional conditions which in its expert view will adequately protect the concerns about the terrestrial eco systems noticed in this judgment. The EAC would be at liberty to lay down PART K appropriate conditions concerning air, water, noise, land, biological and socioeconomic environment;
  • The EAC shall have due regard to the assurance furnished by the concessionaire to this Court that it is willing to adopt and implement necessary safeguards bearing in mind international best practices governing greenfield airports;
  • State of Goa as the project proponent and the MoEFCC, as the case may be, has the liberty to file the report of the EAC before this Court in the form of a Miscellaneous Application so as to facilitate the passing of appropriate orders in the proceedings; and
  • No other Court or Tribunal shall entertain any challenge to the report that is to be submitted before this Court by the EAC in compliance with the present order.

[Hanuman Laxman Aroskar v. Union of India, 2019 SCC OnLine SC 441, decided on 29.03.2019]

Case BriefsSupreme Court

Supreme Court: The bench of RF Nariman and Navin Sinha, JJ has refused to allow reopening of Vedanta’s Sterlite plant in Tamil Nadu’s Tuticorin, which was at the centre of massive protests over pollution concerns. It, however, granted the company liberty to approach the Madras High Court.

The Vedanta group was, hence, seeking a direction to Tamil Nadu Pollution Control Board (TNPCB) to implement the National Green Tribunal (NGT) order which had set aside the government’s decision to close the plant. The state had, however, moved the Supreme Court, saying the NGT had “erroneously” set aside various orders passed by the TNPCB last year with regard to the Sterlite plant. It had said the tribunal had consequentially directed the TNPCB to pass fresh orders of renewal of consent and issue authorisation to handle hazardous substances to Vedanta Limited.

The bench allowed Tamil Nadu’s appeal against the NGT order on grounds of maintainability and said the tribunal has no jurisdiction to order reopening of the plant. It said:

“If an appellate authority is either not yet constituted, or not properly constituted, a leapfrog appeal to the NGT cannot be countenanced. As has been held by us supra, the NGT is only conferred appellate jurisdiction from an order passed in exercise of first appeal. Where there is no such order, the NGT has no jurisdiction.”

The Court, hence, held that since an appeal was pending before the appellate authority when the NGT set aside the original order dated 09.04.2018, the NGT’s order being clearly outside its statutory powers conferred by the Water Act, the Air Act, and the NGT Act, would be an order passed without jurisdiction.

The Court, however, directed that it will be open for the respondents to file a writ petition in the High Court against all the aforesaid orders. It added:

“If such writ petition is filed, it will be open for the respondent to apply for interim reliefs considering that their plant has been shut down since 09.04.2018. Also, since their plant has been so shut down for a long period, and they are exporting a product which is an important import substitute, the respondent may apply to the Chief Justice of the High Court for expeditious hearing of the writ petition, which will be disposed of on merits notwithstanding the availability of an alternative remedy in the case of challenge to the 09.04.2018 order of the TNPCB.”

Background of the case:

  • At least 13 people were killed and several injured on May 22 last year when police had opened fire on a huge crowd of people protesting against environment pollution being allegedly caused by the factory.
  • The Tamil Nadu government had, on May 28, ordered the state pollution control board to seal and “permanently” close the mining group’s copper plant following violent protests over pollution concerns.
  • On December 15, the NGT had set aside the state government’s order for closure of the Sterlite copper plant, saying it was “non sustainable” and “unjustified”.

[Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd., 2019 SCC OnLine SC 221, decided on 18.02.2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Manoj Kumar Tiwari, J. and Rajiv Sharma, ACJ., gave directions as to the use and sale of plastic in the State.

The Court took judicial notice of the news item published in daily edition of ‘Hindustan’ newspaper wherein it was stated as to how polythene was damaging the ecology of the environment and consequently it expressed its concern over the havoc created by plastic and demanded the authorities to contribute towards sweeping away the damages caused by the plastic from the State. It was observed that “Polythene is polluting the fragile environment and ecology of the State of Uttarakhand. It has also now entered into the river system and drainage system. It has reduced the fertility of the land. The stray cattle are also consuming polythene, causing grave harm to their health.”

Accordingly, the respondent was directed to apprise the Court about the implementation of the directions issued by it along with the initiative undertaken by the Chief Minister of Uttarakhand to eradicate the polythene menace. Also, the District Magistrates throughout the State were directed to launch special initiative to check the sale and use of polythene. [Ban on the use of polythene in Uttarakhand, In re, WP(PIL) No. 132 of 2018, order dated 07-09-2018]

Hot Off The PressNews

Supreme Court: The Madan B. Lokur and Deepak Gupta, JJ directed the National Highways Authority Of India (NHAI) to ensure that the newly constructed Eastern Expressway, which is aimed at decongesting Delhi, is thrown open to public from June 1 even if the Prime Minister cannot inaugurate it by then/ The Bench said that “any delay will not be in interest of people.”

NHAI had told the Court that the expressway was scheduled to be inaugurated by Prime Minister Narendra Modi on April 29 but it could not be done due to his prior commitments. The Bench took exception to the 135-km Expressway, which envisages signal-free connectivity between Ghaziabad, Faridabad, Gautam Budh Nagar (Greater Noida) and Palwal, not being thrown open to the public despite being informed earlier that it would be inaugurated by April 20.

The Eastern and Western Peripheral Expressways were planned in 2006 following Supreme Court’s order to build a ring road outside the national capital for channelling non-Delhi bound traffic. The Supreme Court had asked the Centre in 2005 to build a peripheral expressway around Delhi by July 2016 to decongest and “de-pollute” the national capital.

Source: PTI

Case BriefsSupreme Court

Supreme Court: Showing dismay over large-scale illegal mining of iron ore and manganese ore in the State of Goa, the bench of Madan B. Lokur and Deepak Gupta, JJ issued several directions to ensure implementation of mining related environment protection laws and said:

“For the State to generate adequate revenue through the mining sector and yet have sustainable and equitable development, the implementation machinery needs a tremendous amount of strengthening while the law enforcement machinery needs strict vigilance. Unless the two marry, we will continue to be mute witnesses to the plunder of our natural resources and left wondering how to retrieve an irretrievable situation.”

Clarifying the directions issued by the Court in Goa Foundation v. Union of India, (2014) 6 SCC 590, on 21st April 2014, the Bench said that as per the said decision, the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining lease holders. Also, the State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.

The Court noticed:

“The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore, not in the interests of mineral development. The decision was taken only to augment the revenues of the State which is outside the purview of Section 8(3) of the MMDR Act.”

The Bench also clarified that the Ministry of Environment and Forest was obliged to grant fresh environmental clearances in respect of fresh grant of mining leases in accordance with law and the decision of this Court in Goa Foundation and not merely lift the abeyance order of 14th September, 2012.

Hence, the Court set aside the second renewal of the mining leases granted by the State of Goa is liable to be set aside and issued the following directions:

  • The mining lease holders who have been granted the second renewal in violation of the decision and directions of this Court in Goa Foundation are given time to manage their affairs and may continue their mining operations till 15th March, 2018. However, they are directed to stop all mining operations with effect from 16th March, 2018 until fresh mining leases (not fresh renewals or other renewals) are granted and fresh environmental clearances are granted.
  • The State of Goa should take all necessary steps to grant fresh mining leases in accordance with the provisions of the Mines and Minerals (Development and Regulation) Act, 1957. The Ministry of Environment and Forest should also take all necessary steps to grant fresh environmental clearances to those who are successful in obtaining fresh mining leases. The exercise should be completed by the State of Goa and the Ministry of Environment and Forest as early as reasonably practicable.
  • The State of Goa will take all necessary steps to ensure that the Special Investigation Team and the team of Chartered Accountants constituted pursuant to the Goa Grant of Mining Leases Policy 2014 give their report at the earliest and the State of Goa should implement the reports at the earliest, unless there are very good reasons for rejecting them.
  • The State of Goa will take all necessary steps to expedite recovery of the amounts said to be due from the mining lease holders pursuant to the show cause notices issued to them and pursuant to other reports available with the State of Goa including the report of Special Investigation Team and the team of Chartered Accountants.

In Goa Foundation case, it was held that all the iron ore and manganese ore leases had expired on 22nd November, 2007 and hence, any mining operation carried out by the mining lease holders after that date was illegal. It was also held that all the mining lease holders had enjoyed a first deemed renewal of the mining lease and for a second renewal an express order was required to be passed in view of and in terms of Section 8(3) of the MMDR Act. [Goa Foundation v. Sesa Sterlite Ltd., 2018 SCC OnLine SC 98, decided on 07.02.2018]

Case BriefsSupreme Court

Supreme Court: In the issue relating to demolition of the parking lot, being constructed near the eastern gate of Taj Mahal, the Additional Solicitor General Tushar Mehta submitted before the Court that he will file the comprehensive policy with regard to the entire issue of pollution in the Taj Trapezium Zone and the nearby areas within two weeks.

The bench of Madan B. Lokur and Deepak Gupta had earlier on 24.10.2017, ordered demolition of the parking lot, being constructed near the eastern gate of Taj Mahal while hearing the petition filed by environmentalist M C Mehta, who has been monitoring development in the area to protect the Taj Mahal from the ill effects of polluting gases and deforestation in and around the area.

On 25.10.2017, Uttar Pradesh State’s counsel Aishwarya Bhati told the bench headed by J. Chelameswar, J that she could not appear before the court on 24.10.2017 when the matter was called up for hearing before a bench headed by Justice Madan B Lokur, due to which the demolition order was passed. The Court hence, agreed to hear the restoration plea.

The matter will now be heard on 15.11.2017. Status quo will be maintained till then. [MC Mehta v Ministry of Environment and Forests,  2017 SCC OnLine SC 1280, order dated 27.10.2017]

Hot Off The PressNews

Supreme Court: The Court agreed to hear the Uttar Pradesh government’s restoration plea against its order to demolish a multi-level car parking facility being built within a kilometer of the Taj Mahal. The hearing will take place on October 27, 2017.

State’s counsel Aishwarya Bhati told the bench headed by J. Chelameswar, J that she could not appear before the court yesterday when the matter was called up for hearing before a bench headed by Justice Madan B Lokur, due to which the demolition order was passed.

The Court had, on 24.10.2017, ordered demolition of the parking lot, being constructed near the eastern gate of Taj Mahal while hearing the petition filed by environmentalist M C Mehta, has been monitoring development in the area to protect the Taj Mahal from the ill effects of polluting gases and deforestation in and around the area.

Source: PTI

 

Case BriefsSupreme Court

Supreme Court: The bench of Madan B lokur and Deepak Gupta, JJ directed the Executive in all the States to frame appropriate guidelines or recruitment rules within six months, considering the institutional requirements of the State Pollution Control Boards (SPCBs) and the law laid down in the Statutes, by this Court and as per the reports of various committees and authorities and ensure that suitable professionals and experts are appointed to the SPCBs.

The Court was hearing the appeal against the decision of the National Green Tribunal where it was held that the necessary expertise or qualifications to be members or chairpersons of such high powered and specialized statutory bodies and therefore did not deserve their appointment or nomination. The Court, agreeing with the reasoning of the Tribunal, set aside the order as the Tribunal had exceeded its jurisdiction in directing the State Governments to reconsider the appointments and in laying down guidelines for appointment to the SPCBs.

The Court referred to a number of recommendations of various committees, the laws laid down in various Statutes and Judgements and said:

“All these suggestions and recommendations are more than enough for making expert and professional appointments to the SPCBs being geared towards establishing a professional body with multifarious tasks intended to preserve and protect the environment and consisting of experts. Any contrary view or compromise in the appointments would render the exercise undertaken by all these committees completely irrelevant and redundant.”

The Court, noticing that notwithstanding all these suggestions, recommendations and guidelines the SPCBs continue to be manned by persons who do not necessarily have the necessary expertise or professional experience to address the issues for which the SPCBs were established by law, said that the concern is not one of a lack of professional expertise, but the lack of dedication and willingness to take advantage of the resources available. It further said:

“With this couldn’t-care-less attitude, the environment and public trust are the immediate casualties.”

The Court said that any damage to the environment could be permanent and irreversible or at least long-lasting and

“unless corrective measures are taken at the earliest, the State Governments should not be surprised if petitions are filed against the State for the issuance of a writ of quo warranto in respect of the appointment of the Chairperson and members of the SPCBs.”

The Court left it open to public spirited individuals to move the appropriate High Court for the issuance of a writ of quo warranto if any person who does not meet the statutory or constitutional requirements is appointed as a Chairperson or a member of any SPCB or is presently continuing as such. [Techi Tagi Tara v. Rajendra Singh Bhandari, 2017 SCC OnLine SC 1165 , decided on 22.09.2017]