Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of S. A. Bobde, CJ., A.S. Bopanna and V. Ramasubramanian, JJ., addressed the instant PIL addressing the issue of protection of two species of birds namely the Great Indian Bustard (‘GIB’) and the Lesser Florican, which is on the verge of extinction. The Bench remarked,

“…keeping in view, the sustainable development concept and on striking a balance the protection of the rare species of birds is essential to be made, the effort being to save every bird while at the same time allowing transmission of power in an appropriate manner.”

Earlier the application in I.A. No.85618 of 2020 was filed seeking interim directions to direct the State of Rajasthan and State of Gujarat to ensure predator proof fencing, controlled grazing in the enclosure development and to direct the said respondents not to permit installation of overhead power lines and also not permit further construction of windmills and installation of solar infrastructure in priority and potential habitat as identified by the Wildlife Institute of India.

The petitioners being environmentalists, were seeking to protect the rare birds which are dwindling in number. It was contended that GIB is one of the heaviest flying birds in the world, about a meter in height and wing span of around seven feet. It had disappeared from 90 per cent of habitat except parts of Rajasthan and Gujarat. The existence of overhead power lines was stated to have become a hazard due to which the said species of birds on collision are getting killed.

It had been submitted by the state that the underground highvoltage line is not technically feasible due to several factors such as (i) high cost (ii) high downtime to repair any failed cable (iii) non­availability of cables at 765 Kv level and (iv) increase in the number of joints with length of run.

The Wildlife Institute of India (WII) in its Report “Power Line Mitigation, 2018” had stated that every year 1 lakh birds die due to collision with power lines. The Report concluded that unless power line mortality is mitigated urgently, extinction of GIBs is certain. The study estimated 3 bird mortalities/km/month for low ­tension lines, 6 bird mortalities/km/month for high ­tension lines, and about 1 lakh birds/per year within a 4200 sq.km area in/around Desert National Park, Rajasthan. In terms of GIB, 6 mortalities had been recorded in Thar during 2017­-2020, all due to high­tension transmission lines – some of them connected to wind turbine. Ministry of Power, Union of India, in its affidavit had admitted that,

“The Great Indian Bustard lacks frontal vision. Due to this, they cannot detect powerlines ahead of them, from far. As they are heavy birds, they are unable to manoeuvre across power lines within close distances. Thus, they are vulnerable to collision with power lines. In case of low voltage lines, electrocution is often the cause of death due to smaller phase to phase separation distance. High voltage lines do not cause death due to electrocution but cause death due to collision.”

In T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277, it had been observed that,

“Environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric…ecocentrism is nature­centred where humans are part of nature and non­humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have obligations to non­humans independently of human interest. Ecocentrism is therefore life­centred, nature­centred where nature includes both humans and non­humans.”

On the respondents’ contention regarding lack of funds, the Bench observed that there was Centrally Sponsored Integrated Development of Wildlife Habitats Scheme, 2009 which provides for financial sharing between Centre and State. Further, there are schemes that provide for 100% central assistance in respect of GIB. Citing the decision of M.C Mehta v. Kamal Nath,(1997) 1 SCC 388, the Bench opined, the State as well as the Central Government have a duty to preserve the endangered species. Pursuant to which following directions were pronounced:

Directions

  1. The government shall take steps forthwith to install divertors pending consideration of the conversion of the overhead cables as exist on today in the priority and potential GIB area into underground powerlines.
  2. In all such cases where it is found feasible to convert the overhead cables
    into underground powerlines the same shall be undertaken and completed within a period of one year and till such time the divertors shall be hung from the existing
  3. Irrespective of the cost factor the priority shall be to save the near extinct
  4. One of the options that could be explored, is to invite the attention of each electricity utility engaged in the generation of power, to Section 135 of the Companies Act, 2013, which imposes corporate social responsibility upon companies having a specified net worth or turnover or net profit.
  5. Under Compensatory Afforestation Fund Act, 2016 (CAF, 2016), substantial funds are available with the National and State Authorities. The State of Rajasthan has already set up a Compensatory Afforestation Fund Management and Planning Authority. Rule 5(2)(i) of these Rules permit the use of the State Fund for the improvement of wildlife habitat. (According to the petitioner a sum of Rs.47,436 crores, out of a
    total of Rs.54,685 crores CAMPA Fund have been transferred by the Union Environment Ministry to the States for afforestation projects.)
  6. For conservation of the habitat to secure the safety of the eggs laid by the birds, the area earmarked shall be fenced and protected from invasion by predators so that the eggs laid in these areas are protected. The power supply line regarding which underground passage is to be made should also avoid these areas.
  7. Since the laying of highvoltage underground power line would require expertise to assess the feasibility of the same. For the purpose of assessing the feasibility the Bench constituted a committee consisting of Dr. Rahul Rawat (Scientist), Dr. Sutirtha Dutta (Scientist) and Dr. Devesh Gadhavi, Deputy Director (The Corbett Foundation).
  8. The above committee was granted liberty to obtain technical reports if need be, from experts in the field of electricity and the respondents were directed to refer the matter to the committee with all the relevant material and particulars if there is any issue relating to feasibility.

[M.K. Ranjitsinh v. Union of India, 2021 SCC OnLine SC 326, decided on 19-04-2021]


Kamini Sharma, Editorial Assistant has put this report together

Appearance before the Court by:

For the Petitioner: Sr. Adv. Shyam Divan

For the Respondents: ASG Aishwarya Bhati and Sr. Adv. Manish Singhvi

Op EdsOP. ED.

Safe, reliable and affordable electricity is a fundamental building block for all modern societies. It is one of the key components of sustainable development, providing the backbone for society’s social and economic well being. However, electricity differs from all other energy sources, in that it is an unembodied source of energy. All other energies are corporeal, and are indeed contained in some material which has some volume, some weight, and is, from the economic point of view, storable, so that it represents capital, in the form of some inventories. Electricity is invisible. Its presence can be determined from its effect. It does not represent a storable commodity, and does not represent capital or running assets in the form of stocks. It is a phenomenon associated with stationary or moving electric charges, a fundamental property of matter and is borne by elementary particles. The particle involved is the electrons, which carry a charge designated, by convention, as negative. Electricity is a form of energy. Various manifestations of electricity are the result of the accumulation or motion of numbers of electrons. Static electricity cannot be taken from one place to another and cannot be produced in bulk. Dynamic or current electricity can easily be taken from the generation station to far-off places by means of wires and cables. This can be generated in bulk and at high voltage. Electricity is specified as a service of general economic interest. The special qualities of electricity have always been known. It has to be consumed immediately when produced and delivered which raises problems and makes it incompatible with a market driven service.

Divergent Operational Economics

Electricity clearly is more complex energy product than other energy source. Electricity may be available for small, medium or large industrial users, at different times of the day such as peak or off-peak hours, and at different times of the year, and all these qualities of electricity must, from the economic standpoint, be treated as different goods, since they have various and differing production, and distribution costs.

Unique short-term supply-and-demand characteristics make electricity an unusual product. Short-term power market covers contracts of less than a year for electricity traded under bilateral transactions through inter-State trading licensees and directly by the distribution licensees, power exchanges and deviation settlement mechanism (DSM). It constitutes about 12 per cent of the total electricity generation in India.

Electricity market is significantly spike-prone than many comparable systems. Bilateral electricity contracts take place well in advance that may be for a week, month or up to one year. Therefore, the nature and duration of contract influence the price of power. Price of DSM plays an important role in ensuring system balance and secure reliable grid operation. The price of electricity during peak period is higher. For deployment of electricity to customers scheduling and despatch, imbalance settlement, congestion management and support services are essentially required. The volume of electricity transacted is sometimes constrained due to transmission congestion. The challenge of balancing supply and demand is compounded by the lack of cost-effective storage options. The physical fundamentals of energy inform the economic fundamentals of electricity. Electricity is the most volatile of commodities.

Electricity is a Standard Product

In an interconnected network, electricity is an entirely standard product. Electricity is network energy. The only means available for transporting energy in the form of electricity is over transmission lines. Standards play an important role in the power industry. Switching to another supplier cannot produce “better” electricity. The standard system of supply is the alternating current system and standard pressure for domestic supply is 220 volts, alternating at 50 cycles (hertz) per second 230 volts in India. Major concern for electrical power system is to maintain reliable uninterrupted power supply. Network improvement improves power quality. Flexible Alternating Current Transmission System (Facts) devices increase the ability of transmission capacity of lines, and help control power flow over designated transmission, electronically and statically. Distribution static compensator (D-STATCOM) is used for voltage regulation, compensation of reactive power, correction of power factor and elimination of current harmonics. On-load tap changer (OLTC) transformers are used between multiple voltage levels to regulate and maintain the voltage, which is supplied to customers. Automatic Voltage Regulators (AVRs) regulate the voltage to ensure electronic units to continue to operate during extreme mains voltage variations, without getting damaged. Evaluating the standards of performance include voltage variation, neutral voltage variation, voltage unbalance, dips, swells, transient, interruption at point of supply and harmonics. Smart systems are needed for network which can communicate the real-time information and power quality deviations for measurement and monitoring of harmonics. In an electricity network, supply and demand must match at all times if the whole system is not to collapse.

Inability to Store Power

Electricity is not storable. This is probably the most important difference between electricity and other commodities. Almost all other products can be stored. This allows consumers and producers to smooth out peaks in demand and prices. However electricity cannot itself be stored on any scale, but it can be converted to other forms of energy for storage and then back again reconverted to electricity. This has the same effect as storing electricity, but is not really storing electricity. Without the ability to store, a free market inevitably exposes consumers to huge volatility in prices and gives ample opportunity for market manipulation by generators who can withhold power to force up prices. Storage is not a generating system, but it can be combined with generating technologies to provide backup power for intermittent and peak power needs.  There exist batteries that can store electrical energy mainly for households and more powerful batteries as well which can even charge small factories for short interval. Nevertheless, there are scant storage capacities to the extent of grids. Due to the high cost of electricity storage at grid-scale, with minor exceptions, only as much electricity is generated as is required. The integration of distributed generation resources on the low voltage grid requires the support of active demand response and energy storage systems to maintain grid stability.

Energy storage solutions can create huge economic opportunity for India. In February 2018, an expert committee under the chairpersonship of secretary, Ministry of New and Renewable Energy, with representatives from relevant Ministries, industry associations, research institutions and experts were constituted by the Ministry of New and Renewable Energy to plan the launch of a national energy storage mission (NESM) for India. This initiative was subsequently moved to NITI Aayog and Government of India launched the “Transformative Mobility and Energy Storage Mission” in March 2019. India Smart Grid Forum (ISGF) initiated preparation of an energy storage roadmap for India 2019-2032 in association with India Energy Storage Alliance (IESA). The study has resulted into energy storage roadmap for India 2019-2032; Energy Storage India Tool (ESIT) and guidelines for determining the variable renewable energy (VRE).

Environmental Impacts

Additionally, electricity is a variable and unpredicted commodity in the sense that the quantity of electricity produced often depends on unpredicted factors such as the weather. Electricity demand patterns and supply systems are themselves subject to climate change impacts. Projections for impacts on hydropower and bioenergy resources are more varied. Indeed, various hourly, daily, weekly, monthly, and seasonal discrepancies define the amount of electricity that enters the grid. Integration of renewables is more sensitive to weather and climate impact usually considers “ingredients” and not power “systems”. Components of the electrical system are affected by climate change via long-term changes in climate parameters, variability and extreme weather events. In the power markets full of solar energy, for example, the amount of energy produced is highly sensitive to the amount of sun during days. The power markets with dominating hydro power, as another example, are affected by precipitation during either rainfall or snowfall seasons, or both. For wind farms, wind speed is a key factor to returns and for investors financing wind farms, there is considerable uncertainty around returns since wind speed can be fairly volatile.  Furthermore, weather has impact on the other side of the market too, meaning it influences the demand for electricity. Weather represents a major risk for energy businesses as both energy supply and demand are dependent on weather outcomes.

Electricity on the Commodity Foothold

Immediate generation and consumption, however, lead to another quality of electricity. Electricity is intractable and intangible. An individual cannot see electrical current as well as cannot grasp it. It looks and feels exactly the same wherever it is generated. It has to be supplied immediately. The delivery period for electricity is zero. As soon as the switch is turned on, immediate consumption causes in turn immediate generation. Despite the fact it must be used immediately as it is generated and conversely, its supply must exactly demand at any given time across the grid. Yet, it also behaves unlike any other commodity.

Electrical energy carries some of the characteristics of a commodity. It can be bought, sold, traded and used in any quantity. There are no predetermined conditions for transportation and delivery. The logistics of the power market is an electric circuit that contains a continuous flow of electricity. The continuous flow is a significant, it allows immediate supply characteristic. Transmission network of a country is defined by its grid, a chain or, more accurately, a system of interconnected power lines and nodes that form the electric circuit with a continuous flow of electric current and transmit this current from producers to consumers and in the process some energy is wasted.

Homogeneity, through the existence of standardised qualities; storability, not really a necessary condition for a viable commodity spot, or futures, market; deliverability, and the existence of a competitive spot market carrying arbitrage operations; price variability and flexibility and the existence of speculators, that may want to carry price risks. These configurations applicable to the traditional commodities accord the electricity a character of commodity.

To Close

Electricity is a set of physical occurrences that produces the flow of electrical power or charge. It is both a naturally occurring phenomenon and one of the most prolific forms of energy used around the world. People have been aware of electricity for thousands of years. Ancient societies marveled at electric fish and noticed static electricity when they rubbed certain objects.
It was only in the last 250 years that scientists made attempts to harness electricity. In 1752, American inventor Benjamin Franklin conducted research on lightning using a kite and a key. This famous experiment demonstrated that lightning is electricity. Significant breakthrough took place in 1831 when British scientist Michael Faraday discovered the principles of electricity. In the late 1800s, Thomas Edison invented the first long-lasting incandescent light bulb, and inventor Nikolas Tesla pioneered the use of alternating current electricity. Modern society is totally dependent on reliable supplies of electricity for it to function. The largest global economies consume trillions of kilowatt-hours (kW-h) annually to power governments, businesses and home. As the global economy has grown, so too has demand for this vital resource. For most products, a market failure can be tolerated by use of substitutes and stores but Governments cannot incur the risk of electricity industry failure. By and large electricity is different.


*Harsha Rajwanshi is Assistant Professor of Law, Dean of External Relations, Gujarat National Law University & Faculty Advisor to GUVNL-GNLU Research Fellowship on Energy Law and Policy.

Case BriefsSupreme Court

Supreme Court: In the matter concerning the housing project, on the ground that the area in question falls within the catchment area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife Sanctuary, the 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ has held that such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary.

Stating that the entire exercise smacks of arbitrariness on the part of Government including functionaries, the bench said that the Court has to perform its duty in such a scenario when the authorities have failed to protect the wildlife sanctuary eco­sensitive zone. It said,

“The entire exercise of obtaining clearance relating to the project is quashed.  We regret that such a scenario has emerged in the matter and that it involved a large number of MLAs of Punjab Legislative Assembly.”

The Tata HDCL proposed to develop a project, namely, “CAMELOT” in the revenue estate of village­Kansal, Tehsil ­Kharar, District­ Mohali, State of Punjab. The total project area is 52.66 acres. It was argued that the environment clearance dated 17.09.2013 suffered from legal malafides, and it amounted to colourable exercise of power since about 95 MLAs of the State of Punjab are the beneficiaries of the proposed project.

The Court took note of the fact that the proposal, which was sent by the Government of Punjab to the MoEF, to keep the Buffer Zone within 100 meters from Sukhna Wildlife Sanctuary, had not been accepted and the direction was issued to resubmit the proposal for at least 1 km Buffer Zone has not been forwarded by State of Punjab. It said,

“It was incumbent upon the State of Punjab to send a proposal to the MoEF, as required but it appears that it has not chosen to do so for a reason precious project concerning the MLAs is involved, and MoEF has not accepted its proposal for keeping Buffer Zone to 100 meters.”

ON the environmental aspect, the Court said that the most potent threat faced by the earth and human civilization as a whole which is confronted with, today, is environmental degradation and wildlife degeneration. The need to protect flora and fauna which constitutes a major portion of our ecosystem is immediate. Development and urbanization coming at the cost of adversely affecting our natural surroundings will in turn impact and be the cause of human devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala.

The Court, hence, held that considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project in question from wildlife sanctuary, no such project can be allowed to come up in the area in question. The State of Punjab was required to act on the basis of Doctrine of Public Trust. It has failed to do so.

“The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. It is clear why Government has not been able to protect the eco­sensitive zone around a Wildlife and has permitted setting up of high­rise buildings up to 92 meters in the area in question, which is not at all permissible.”

[Tata Housing Development Company Ltd. v. Aalok Jagga, 2019 SCC OnLine SC 1419, decided on 05.11.2019]

Case BriefsSupreme Court

Supreme Court: A special bench of Arun Mishra and Ashok Bhushan, JJ has asked the State of Maharashtra not to cut any further trees till the next date of hearing. The Special Bench was constituted to hear the plea against the cutting of trees in Mumbai’s Aarey colony for the city’s metro rail project after a group of law students wrote to Chief Justice Ranjan Gogoi seeking Supreme Court’s intervention in the matter and the cutting of trees to be suspended immediately.

Solicitor General Tushar Mehta, appearing for the State of Maharashtra had submitted before the Court that they are not going to cut any further trees till the next date of hearing. , However, in the circumstances, the Court responded,

“the statement is quite fair.”

SG also submitted that the activists who had been arrested have been released and that in case anybody has not been released so far, he/she be released immediately on furnishing personal bond. On this the Court directed,

“Let the statement made be carried out in pith and substance.”

The Court, hence, directed that the matter be heard by the Forest Bench on 21st October, 2019, as the said Bench is hearing the matter pertaining to the similar issues in T.N. Godhavarman’s case.

The Bombay High Court on Friday had rejected four petitions challenging the Mumbai civic body’s Tree Committee order approving the cutting of trees in the colony to make space for Mumbai Metro’s car shed in the area. Authorities in Mumbai, in a midnight move on Friday, began cutting trees after the Bombay High Court order. 29 people have been arrested for protesting against the move and were sent to judicial custody. Many other were were reportedly detained. The activists say cutting trees at Aarey Colony is illegal.

[In re: Felling of trees in Aarey Forest (Maharashtra), 2019 SCC OnLine SC 1322, 07.10.2019]

Hot Off The PressNews

Supreme Court: A special bench of Arun Mishra and Ashok Bhushan, JJ has been constituted to hear the plea against the cutting of trees in Mumbai’s Aarey colony for the city’s metro rail project. The bench will sit tomorrow during the Dussehra break to hear the matter urgently after a group of law students wrote to Chief Justice Ranjan Gogoi seeking the top court’s intervention in the matter and the cutting of trees to be suspended immediately.

The Bombay High Court on Friday had rejected four petitions challenging the Mumbai civic body’s Tree Committee order approving the cutting of trees in the colony to make space for Mumbai Metro’s car shed in the area. Authorities in Mumbai, in a midnight move on Friday, began cutting trees after the Bombay High Court order. 29 people have been arrested for protesting against the move and were sent to judicial custody. Many other were were reportedly detained. The activists say cutting trees at Aarey Colony is illegal.

The Court will assemble tomorrow at 10:00 AM to hear the matter.

(With inputs from NDTV)

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench comprising of Justice Adarsh Kumar Goel (Chairperson) and Justice S.P. Wangdi (Judicial Member), Justice K. Ramakrishnan (Judicial Member) and Dr Nagin Nanda (Expert Member) considered the issue in respect to enforcement of environment norms against running of restaurants/hotels/banquets.

In respect to the above, tribunal considered the material vide order dated 02-11-2018 and recorded that violation of law on the subjects of waste management, discharge of effluents, illegal groundwater extraction, groundwater contamination, emission by illegally operating diesel generators, absence of statutory consents under the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and violation of conditions of consents where such consents had been granted by the restaurants/hotels/motels/banquets in Mahipalpur, Rajokri areas in Delhi.

Adding to the above issue, the tribunal also considered the issue of the absence of rainwater harvesting, groundwater recharge system, excess noise pollution, illegal parking and encroachments.

Authorities concerned were directed to take immediate steps by preparing an appropriate action plan. The action was to deal with the regulation of sewage disposal, extraction of groundwater, rainwater harvesting, air pollution on account of traffic congestion, use of DJ sets, management of solid waste and noise pollution.

Further, the tribunal considered the status report filed by the Delhi Government and found that the report did not meet the mandate of the order of the tribunal. Again on reviewing the matter in light of a new report, it was found to be deficient.

Tribunal noticed the challenge posed by unregulated social gatherings resulting in damage to the environment and public health.

Delhi Government filed a format of inspection with an action plan. Referring to the report filed to be deficient, it was stated that data was compiled, noise regulatory mechanism evolved, norms for waste disposal and installation of CCTV cameras and GPS laid down, sewage management and air pollution control measures plan.

The action plan covered the regulation of extraction of groundwater, rainwater harvesting, regulation of the size of gatherings and action against unauthorised establishments and recovery of environmental compensation.

Thus, tribunal on noting the above, stated apart from formalizing and enforcing the action plan reproduced above, MoEF&CC may evolve appropriate guidelines as well as mechanism for undertaking impact assessment either of individual establishments or of the area/cluster to ensure that activities beyond carrying capacity of the area are duly regulated to enforce the ‘Precautionary Principle’ as well as ‘Sustainable Development’.

Delhi Government may take steps as per its action plan and within a broad framework of pan India guidelines, the Delhi Government can have its own guidelines pertaining to suit the local requirements. [Westend Green Farms Society v. Union of India, 2019 SCC OnLine NGT 293, decided on 19-09-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal: A Coram of Justice A.K. Goel (Chairperson), Justice S.P. Wangdi (Judicial Member), Justice K. Ramakrishnan (Judicial Member) and Dr Nagin Nanda (Expert Member) disposed of an application filed against Volkswagen India Private Ltd. after imposing a fine of Rs 500 crores on it.

This application had been filed before the Tribunal alleging that engines manufactured by Volkswagen have been found to be in violation of norms in USA and Europe on account of the employment of ‘cheat devices’, defeating the test of the actual state of affairs. This matter was famous by the name of ‘Volkswagen Emission Scandal’ globally. In September 2015, it came to light that Volkswagen had installed ‘cheat devices’ in engines of thousands of their vehicles since 2009. The software helped make the cars meet exhaust pollution standards when monitored in tests but in real, the emissions exceeded the limits. As per reports, the scandal has so far cost Volkswagen more than 26 billion Euros in fines, compensation and buyback.

The learned counsels for the applicant Sanjeev Ailawadi, Vipul Ganda and Preeti Nain brought to notice of the Tribunal various evidences which were relied upon by the applicant- “statement before the Lok Sabha on 11-04-2017, result of testing by Automotive Research Association of India (ARAI), notice issued by the US Environment Protection Agency (USEPA), news item dated 05-11-2015 in Business Standard under the heading “Volkswagen fails emission test in India”, news item dated 28-09-2015 in the Economic Times under the heading “Timeline of events in Volkswagen pollution cheating scandal” and statement on behalf of Ministry of Heavy Industries in the counter affidavit stand of the manufacturers”.

The learned counsels for the respondent  Pinaki Mishra, Bishwajit Dubey and Surbhi Khattar raised an objection to the application by saying “that the manufactures have been found to be compliant of the regulatory environmental norms. In view of this conclusion, there being no norms prescribed for on-road testing, manufacturers cannot be held to be noncompliant in any manner.” They further made reference to Notification dated 16-09-2016 issued by the Ministry of Road Transport and Highways under Section 212 of the Motor Vehicles Act, 1988 laying down that PEMS (Portable Emission Measurement System) can be used. It is submitted that this provision has been introduced for the first time on the said date. The same could not be applied in the present case prior to Notification.

After hearing both the sides, Tribunal observed that it cannot accept the objections to the report raised on behalf of the manufacturers. The report categorically finds the use of cheat device and violation of norms at the time of road testing. It has also been found that nitrogen oxides (NOx) emission in certain models of Volkswagen were higher than the other Indian vehicles tested using the same protocol which was corrected during the recall of vehicles under the supervision of ARAI.  It also observed that the ‘Precautionary Principle’ and ‘Sustainable Development’ principle are part of Article 21 of the Constitution of India and Section 20 of the National Green Tribunal Act, 2010. ‘Polluter Pays’ principle does not mean polluter can pollute and pay for it. It would include environmental cost as well as a direct cost to people. Thus, the Tribunal imposed a fine of Rs 500 crores on Volkswagen.[Saloni Ailawadi v. Volkswagen India (P) Ltd., 2019 SCC OnLine NGT 69, decided on 07-03-2019]

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]

Call For PapersLaw School News

The Sustainable Development Goals (SDGs) are imbued with concern for environmental justice. Almost every goal – from ending poverty to combating climate change to revitalizing global partnerships – is dependent on enhancing environmental justice. Goal 16, in particular, with its emphasis on access to justice and effective, accountable and inclusive institutions, highlights the strong connections between sustainable development and environmental justice.

We invite papers on one or more of the SDGs and various aspects of environmental justice, such as:

  • Procedural justice: Opportunities for participation in the political and legal processes that create and manage environmental policy, e.g., public interest litigation (PIL), community involvement in environmental impact assessment;
  • Distributive justice: Equity in the distribution of risks, benefits and costs of environmental decision making;
  • Recognitional justice: Recognition of the diversity of participants and experiences in affected communities, including non-human species and abiotic parts of the ecosphere; and
  • Restorative justice: Attempts made to mitigate or re-mediate adverse impacts on people and the environment, e.g., enforcement of licensing conditions, rehabilitation and resettlement policies.

The sub-themes for the symposium are as follows:

  • Use and abuse of the public interest litigation (PIL);
  • Innovative policies and programs of the government or state for enhancing distributive justice;
  • Legislative or policy analysis, including formulation, implementation or enforcement;
  • Executive challenges for implementing court judgements;
  • Progress and challenges for achieving sustainable development goals (SDG 16) related to environmental justice;
  • Assessing international capacity building programmes;
  • Empirical field-based case studies;
  • Gender analysis of processes, institutions, and outcomes;
  • Historical reviews of legislation, policy, institutions or jurisprudence;
  • Institutional analysis of specialized green courts and environmental tribunals;
  • Indigenous institutions and governance for environmental justice;
  • Alternative dispute resolution systems for environmental conflicts;
  • Monitoring SDG indicators for environmental justice; and
  • Theoretical, conceptual and methodological aspects

We encourage abstract submissions that are relevant to the above themes and sub-themes i.e., those that focus on the interactions between Environmental Justice and the United Nations Sustainable Development Goals.

All abstracts must be submitted by no later than February 8th 2019, at midnight (Indian Standard Time).

We do not anticipate an extension beyond that date and strongly encourage you to submit your abstracts well before the deadline!

Abstracts will be reviewed by a committee of interdisciplinary scholars in the order they are received. Based on the academic rigor, relevance to conference theme, and innovativeness of the content, abstracts will be selected for the limited spots available for the presentation in the conference.

To facilitate early registration and travel planning, the decision notifications regarding acceptance of abstracts to authors will be sent by February 15th, 2019.

Abstracts must be submitted electronically by email to environmentaljustice@gnlu.ac.in

Authors of accepted abstracts are invited to submit, by March 8th 2019, a full paper (maximum 5,000 words) that will be included in the conference materials. A selection of these papers will be considered for inclusion in a peer-reviewed edited volume and a special issue of the GNLU Journal of Law Development and Politics.

Guidelines for Abstracts

Abstracts should be in paragraph form, without bullet points, and should be no more than 300 words. Additionally, the abstract body should include details regarding the background, purpose, methods, results, and conclusions. Please also indicate the theory/analytical framework for the work and provide a description of the research methods used. Contributors are expected to explore the philosophical significance of the questions emerging within the scope of each theme.

Registration Fees

Indian Foreign

(US $)

Registration (covers conference material and food) Professionals and academicians Rs. 5000 $70
Local NGOs and community workers Rs. 3000 $70
Graduate students Rs. 1500 $70
On-campus accommodation VIP Guesthouse (AC): Single room Rs. 1700 $25
VIP Guesthouse (AC): Double (shared) room Rs. 2300 $35

Participants should send their registration fees, after acceptance of their abstracts, by Crossed Demand Draft in favour of the Registrar, Gujarat National Law University, Gandhinagar. Please write your name and the title of the symposium on the reverse side of the draft or online payment link.

Click HERE for online Payment of Registration Fee

Click HERE for online Registration Form: 

Important Dates

  • Last date for submitting abstract: 8th February 2019.
  • Notification of acceptance of abstract: 15th February 2019.
  • Last date for registration: 8th March 2019.

PLEASE NOTE: Individuals are limited to serving as a presenter on only one paper but this does not preclude being a co-author on other papers.

Contact

Please email environmentaljustice@gnlu.ac.in if you have any questions.

For more details, refer symposium

Conference/Seminars/LecturesLaw School News

Tamil Nadu National Law School, Tiruchirappalli in collaboration with Oxford Human Rights Hub, Oxford University, United Kingdom is organised “International Conference on Affirmative Action and the Sustainable Development Goal of Gender Equality” from 22nd- 23rd September, 2018.

The inaugural session was successfully concluded with the Conference Convenors, Prof.Dr. Kamala Sankaran and Prof. Sandra Fredman welcoming the discussants and presenters, followed by the keynote address by Hon’ble Justice Indira Banerjee, Judge Supreme Court of India. The inaugural session ended with a closing address by the Conference Coordinator Mr. Rahul Hemrajani, Assistant Professor of Law, TNNLU. This conference brought together scholars, practitioners and students working in the fields of law, statistics, economics, sociology, anthropology, public policy, gender studies and other social sciences, to explore the link between AA policies that favour women in positions of leadership and achieving target 5.5. of the SDGs. There were six technical session in the conference with only four papers were presented in the seminar.

The sessions were chaired by eminent practitioners and jurists such as Prof. M.P. Singh, Chancellor, Central University of Haryana, Justice (Dr.) S. Muralidhar, Delhi High Court,Dr. Meghan Campbell, University of Birmingham, United Kingdom, Ms. Dorothy Thomas, Partner, Shardul Amarchand Mangaldas & Co, Chennai,Prof. Sandra Fredman, Rhodes Professor of the Laws of the British Commonwealth and the United States, University of Oxford. Also, the papers were presented by students and scholars across the globe.

The conference concluded with roundtable discussion on these issues. The conference have fostered a plethora of ideas, and we hope this will bring us all a step closer to achieving the goals we have set forth as a global community.

 

Case BriefsHigh Courts

“Without adherence to sustainable development, life of future generations will be in jeopardy”

Calcutta High Court: A Division Bench comprising of CJ Jyotirmay Bhattacharya and Arijit Banerjee, J., addressed PILs concerning the felling of trees due to the construction of ‘Railway Over-Bridgealong with expansion of ‘National Highway 112’.

The present petition was filed against the State to obtain restraining orders against them for felling of trees for the purpose of constructing ROBs and expanding National Highway 112. The contentions submitted by the petitioner was that the required permissions which have been obtained by the respondents were granted to them without the compliance of provisions of law along with no Environment Impact Assessment being carried out.

It has been alleged that the provisions of West Bengal Trees (Protection and Conservation in Non-Forest Areas) Act, 2006 have been flouted too. Further, it was stated large number of Mehogini trees were proposed to be felled, but no permission was obtained for the same. While referring to Sriram Saha v. State of W.B., 1998 SCC OnLine Cal 404, it was observed that the decision called for State legislature to promulgate the 2006 Act. Further, the counsel submitted that the “entire process was carried out in a perfunctory manner” and the requirements of law were given a complete go-bye.  Intellectuals Forum, Tirupathi v. State of A.P., (2006) 3 SCC 549, it was cited in regard to “Duty of the State Respondents to protect the environment and the concept of sustainable development”.

The High Court while concluding its decision on intensive consideration of the contentions of the parties along with the facts of the case and primarily focussing on the importance of sustainable development in its true sense stated that to promote and ensure sustainable development is one of the objects of the 2006 Act. Necessary permission has to be obtained from the competent authority and such permission needs to be granted only after proper enquiry. The Court stated that Section 9(2) of the above mentioned Act imposes an obligation on a developer to carry out compensatory plantation within such period as may be specified in the certificate of clearance before the developing project is initiated and in the present matter it has been analyzed through the provisions that State is not a developer within the meaning of Section 9 of the Act.

Therefore, Section 8 of the Act being applied in the matter would require the State to plant two trees for every felled one, for which the State has stated that it would plant 5 for every tree felled. Felling of 356 trees is necessary for implementing important public project of constructing ROBs and simultaneously respondent shall carry compensatory plantation. The Judgment and order have been stayed as it was challenged by the petitioners for a period of 3 weeks. [Assn. for Protection of Democratic Rights v. State of W.B.,2018 SCC OnLine Cal 5898, decided on 31-08-2018]