M J Antony: Push becomes shove

A regulator for environmental clearance is a quarter-century late

By delivering 57 reasoned judgments in five days immediately after the Supreme Court reopened, the judges have disproved the criticism that they enjoy long laid-back summer days. Some of the decisions have rattled the rulers, like those on black money and Salwa Judum. However, one significant judgment, which affects industries and large projects in the context of sustainable development, has been accepted without much ado.

In this judgment, T N Godavarman vs Union of India, the court has again emphasised its power of judicial review. Though the case dealt with the mining rights of French company Lafarge, the judgment used the occasion to assert its power to review government decisions on the touchstones of various doctrines with jaw-breaking names: the doctrine of margin of appreciation, the doctrine of proportionality, inter-generational equity and the like.

The weakness of the decision is that these doctrines are pliable in the hands of bureaucrats and canny legal advisers. However, the court formulated the questions to be asked to test whether the decisions of the ministry of environment and forests are “fair and fully informed, based on correct principles, and free from any bias or restraint.”

The key indicators are: Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision? Is the decision strictly in accordance with the legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable development in the sense that, has the decision-maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision?

Another significant aspect of the judgment is the court’s attempt to tidy the confusion prevailing in environmental clearances for industries. The National Forest Policy was declared in 1988. The Environment (Protection) Act, 1986 confers power coupled with duty on the Centre to appoint an appropriate authority, preferably in the form of a regulator, at the state and central levels for ensuring the implementation of the National Forest Policy. But it has not been done for a quarter of a century.

In view of this failure on the part of the government, the court has stepped in and now passed a direction to set up a regulator. Critics of judicial activism are bound to howl, as they did when a special investigation team (SIT) headed by two judges was set up to probe the issue of black money. In tune with this revolutionary trend, the court directed the government to read the national forest policy guidelines into the two major environment laws, namely the Environment (Protection) Act, 1986 and the Forest (Conservation) Act, 1980 and set up the long-delayed regulatory machinery. The catch is that the court has not set any deadline.

Justifying its action in these contentious days, the judgment said, “This direction is required to be given because there is no machinery established even today.” The government has the “power coupled with duty” to set up the machinery, but it had so far neither exercised this power nor performed its duty.

The court also indicated its intention to shed some of its own burden in environment disputes. At present, two Benches of the Supreme Court are dealing with “green” issues, adjudicating on problems that should be decided by other authorities with adequate expertise. The judgment explained the different roles of the court and the regulators. “The court is basically an authority which reacts to a given situation brought to its notice,” the judgment said, “whereas a regulator is a pro-active body with the power conferred upon it to frame statutory rules and regulations. The regulatory mechanism warrants open discussion, public participation, circulation of the draft paper inviting suggestions.” It is the task of the regulatory bodies to act in accordance with the basic objectives of the National Forest Policy and take “pro-active” steps.

The court pointed out another strong reason for the regulatory mechanism to be put in place. At present, the court is faced with conflicting reports on a given project. Similarly, the government is also faced with a fait accompli that leads to the grant of ex facto clearance. A regulatory mechanism will obviate such situations. Till it is established, the court has asked the government to prepare a panel of accredited institutions from which the project proponent should obtain the environment impact assessment.

There are larger lessons to be learned from this judgment. The court was depending on a “centrally-empowered committee” consisting of experts to help it decide on disputes brought before them. The expert committee was purely a creation of the court in the absence of a statutory body. The burden will now be passed on to the regulator. Second, the court has acknowledged that it cannot adjudicate on hundreds of environment wrangles even with two Benches devoted to them. The apex court is not meant for that. Finally, critics who accuse judges of hyper-activism should note from this episode that unless push becomes shove, the government would not do its basic job.