We are witness to the occurrence of a new phenomenon.  The phenomenon of the emergence of Courts of Law in India, perhaps, as the sole dispenser of environmental justice.  By delivering landmark judgments, that have, indeed, altered the common man’s perception of the court of law as just a forum for dispute resolution and nothing else, the Indian judiciary has carved out a niche for itself as an unique institution.  This has been especially so over issues concerning protection of human rights and environment.  International legal experts have been unequivocal in terming the Indian Courts of law as trail-blazers, both in terms of laying down new principles of law and in the introduction of innovations in the justice delivery system.[1]  The increasing interest in and a sense of inevitability in approaching the corridors of justice, over every conceivable environmental problem by public interest groups and individuals, bear witness to this unprecedented occurrence.  After riding the crest wave of unusual and unprecedented popularity and global attention, for about two decades, the superior judiciary in India, of late, is also getting targeted as an institution that has become complacent and getting more insensitive to constructive criticism.[2]  This requires scrutiny.  A detailed analysis of the entire phenomenon would be perfectly in order, in getting an idea of the entire picture.  As a first step in that direction, it may be appropriate to focus on those aspects of the phenomenon that were responsible for putting the courts on a pedestal, while the other two wings of the government, the legislature and the Executive slipped in public esteem.  The enquiry in this paper is to contextualize the role of the justice delivery system in India in environmental governance.  More specifically, this is to examine the rationale for the occurrence of the phenomenon of looking up to the judiciary as the only reliable bastion of and the final hope for the common man in securing environmental justice.

Law & Policy-making processes

The Ideal

If one goes by popular perceptions and natural expectations, every law ought to have its roots in, a felt need.  The inadequacy or vacuum in the existing system, in meeting the challenges posed by a problem situation, leads to the need to evolve newer laws and more effective tools of implementation.  Legal solutions may either emerge out of a process of consultation and consensus building among the affected community or, it may also result from the government taking cognizance of an existing customary practice and strengthen it by investing it with the force of law.  The local customs, traditions, practices and solutions may lead to the evolution of a broad policy frame, spelling the local, regional and national principles of governance.  Fashioning a body of law and a set of rules to operationalize the policy and mechanisms of implementation are the next logical steps in the system of governance.  Thus, the policy, the law, the institution of implementation, the plan and programme of action and actual implementation in a sequence, in that order, complete the picture of the system of governance, in an ideal situation.  Conforming to the Constitutional frame and keeping pace with its evolution, in the scheme of things, would ensure legal legitimacy and constitutional validity to the policy, law and administration.

The Real Picture

1. Lack of vision, in foreseeing environmental problems, not evolving appropriate policies, plans and programmes, besides non-dynamic, reactive (rather than being, pro-active), legislative laws, in tackling the complex and ever challenging environmental issues and problems appear to be at the root of the activist stance of the courts of law.[3]  The following propositions and illustrative examples, present the actual state of affairs that is far removed from the ideal condition, stated above.

2. The entire process of evolving policy and law, in the country is a flawed one.  It is both an illogical and absurd process.  We have policies without laws, laws without policies and policies following legislative efforts!

(i) The National Agricultural Policy and those of the States, is a classic example of a policy without law.  No single legislation encapsulates the contents and concerns of the policy document.  This has to be gleaned from a variety of bits and pieces of legislations.[4]  Agricultural processes, production, marketing, support price and the like, have not attracted the attention of the lawmaker as yet.[5]

(ii) Quite a few environmental legislations do not having the backing of a policy document.  The wildlife (Protection) Act, 1972, The Forest (Conservation) Act, 1980; Water (Prevention and Control of Pollution) Act, 1974; The Water (Cess) Act, 1977 and Air (Prevention and Control of Pollution) Act, 1981, are only a few examples of such “stand alone” documents.[6]

(iii) We have the classic case of putting the cart before the horse, with the framework Environment (Protection) Act, 1986, preceding the National Policy and Strategy for Environmental Protection and Sustainable Development.  The latter following the former by a gap of 6 years!

3. Environmental Law-making in India has not followed any consistent and logical path of serious deliberation, both at the stage of drafting and consideration on the floor of legislatures, before becoming the law of the land.  Even chance remarks or an expression of displeasure over an undesirable environmental situation, by charismatic political leaders have, often, led to the making of laws!  The circulars and guidelines as to Joint Forest Management[7] and the Notification as to Coastal Regulation Zone,[8] apparently, are illustrations of this.

4. “Inspirations” from the experiences in the West, have at times contributed to environmental legislations in India.  The Water (Prevention & Control of Pollution) Act, 1974, is illustrative of this “inspired” effort.  A Scottish law enacted in early 1950's was the source (without any acknowledgement, of course!) for the Indian effort.  But the most astonishing, if not perplexing, aspect of this development is that the Scots repealed their law in 1973 and enacted a new law.  The Indian lawmakers resurrected parts of it, from the ash cans of history and clothed it with Indian tri-colour in 1974!

5. Subscription to international legal arrangements and commitment to implement them through ratification, without the necessary national preparation for the same in putting across the Indian points of view, in international fora, have led to making of laws to fulfill our international obligations.  The Biodiversity Bill, tabled before the Parliament in May 2000, is one such example.  The Indian legislative efforts, that were at a formative stage during and at the time of the ratification of the international Convention, went through several drafting efforts, to tailor Indian response to the international commitment.  Even in its current form, the Bill has not addressed many of the local and national concerns.[9]

6. The need to conform to the conditionalities of international financial institutions at times, activates the powers that be to go through the process of law making or effect amendments to the existing ones.  The Draft Rules on management of Bio-medical Wastes, in 1995 and 1997[10] and the proposed Wildlife Protection (Amendment) Bill, 1997,[11] are illustrations of this proposition, the formulation of draft national policy on rehabilitation of project displaced people and enactment of legislations by a number of States, in this regard,[12] are also on account of the need to conform to the conditionality of the World Bank that the impoverishment risks of people displaced by Bank funded developmental projects should be minimized.[13]

7. The current corpus of Environmental Law in India suffer from a multiple disability.  It is myopic in vision, sectoral in approach and a knee jerk reaction to environmental problems.  The Environment (Protection) Act, 1986, for instance, designed as an overarching umbrella legislation, to deal with every conceivable aspect of environment has, by and large remained a law regulating problems of pollution.  Coming, as it did, in the wake of the mass disaster at Bhopal, the expectation essentially has been that this legal tool would help prevent and avoid such a calamity from recurring.  No evidence exists, both in its substantive part and in actual application, in about a decade and half of its working, that this law possesses the potentiality of meeting the challenges of mass environmental disasters.[14]  The ever-increasing number of rules and notifications under it, while giving the impression of broad-basing the ambit of the Act are, in fact, after thoughts to the legislative design rather than its integral part.

Piece-meal approach to environmental problems, predominate legislative effort.  While we have legislations to control water and air pollution, atmospheric pollution gets less than peripheral consideration.  Forests and wildlife get separate and independent treatment.  A separate legislation on Geographical appellation of goods (including varieties of life forms) has recently been passed. Laws enumerating the rights of farmers and breeders are in the pipeline and the Bio-diversity Bill is awaiting parliamentary nod.[15]   None of these efforts have a holistic vision of environment and its management, nor would they endeavour to bring about coordination among various implementation agencies.  Little realization exists that each of these legislative efforts are inter-related and that there is need for consultation and coordination among a number of ministries and implementation agencies to work together in finding legal solutions to the environmental problems in a concerted way.

Micro-planning, as a criterion to justify different standards for implementation of the law, is not something found natural or logical in the administrative process.  Issuance of consent orders, without deeming it necessary to formulate and follow certain criteria for such a judgment, by the Pollution Control Boards, are not in common.  Courts of law have been approached, seeking directions to be issued to the agencies of state to formulate zoning policies, to justify their action.[16]

8. Policy and law-making is not always an open and transparent process.  There is no culture of consultation and initiation of efforts in seeking opinions, critiques and comments to an intended piece legislation.  Let alone the people who are most likely to be affected by the legislative effort, even the other sister departments in the government and line agencies would not normally have access to the “secret”, “confidential” and “cabinet” notes, till they get presented on the floor of the legislature.  While the Biodiversity Bill of 2000, went through over half a dozen drafting efforts, spread over seven long years, most of the forests and wildlife departments in a large number of States, remained oblivious to what was happening around them.[17]

Further more, as a matter of fact, the design and draft of policies and legislations evolve out of the bureaucratic stables, with the lawmakers having very little significant role to play in the entire process.  Several bills are presented and rushed through the legislatures with the members devoting very little of their quality - time to deliberate, debate and decide on their contents and impacts.  As if this is not enough, several ordinances get issued when the Parliament is not in session, to circumvent legislative scrutiny.  Although, such a device would only be in operation for a short while, its impact lasts for a longer period.  What remains a matter of concern is that many of these administrative actions exceed their brief of detailing mere administrative procedures, as they deal with substantive aspects of law, too.  A fairly recent device employed by the administration is to circulate a note, in an informal way, among groups of people and when it generates much heat and resistance, append it the law as an aspect of its implementation.  Should it evoke any adverse reaction, it would become convenient to disown it as being “nothing official about it”![18]

9. The evolution of environmental policy and law in India is on a parallel track to that of Constitutional evolution.  They neither reflect the constitutional aspirations nor appear to conform to its commands.  While the Constitution of India has been in dynamic ferment, keeping pace with the needs of changing times, in the fifty years since its inauguration, the whole body of environmental legislations is in a state of ferment displaying least dynamism.  The Constitutional commands as to participatory environmental management in a spirit of cooperation and partnership[19] between the State and the Citizens and vesting the local communities and the local government with the function of managing the local resources by ushering in a process of democratic decentralization of governance,[20] have neither informed nor influenced the environmental legislative processes, in bringing a paradigmatic shift from the centralizing tendencies.[21]

Antiquated laws continue to rule the roost.  Legal foundations of every aspect of natural resource management, are to be found in the efforts of our colonial masters.  Some of them are so outdated that they are directly in conflict with the current environmental legal regime.  The Indian Easements Act, enacted in 1872, for instance, has a provision by which one acquires the right to pollute the neighbour’s property![22]  The objectionable provision is yet to come within the scrutiny of the legislature for the purpose of amendment.  The Land Acquisition Act of 1894, which empowered the State to acquire private property for a public purpose, got amended after ninety years, to further strengthen the state to resort to such procurement even for a company (i.e., for a private purpose, too!). The Indian Forest Act, of Colonial Vintage (enacted in 1927), remains in the same shape and form, after over a half-century of our independence, while the forest cover in the country has recorded a sharp decline, during the period.[23]  Industry-related laws and the laws concerning Mines and Minerals, were all enacted, within a decade of our independence.  Except for minor cosmetic changes, here and there, these continue to operate with little or no accommodation of current environmental concerns.[24]  These are only a few illustrations.  But, these do indicate the fact that, while the laws enacted earlier, perhaps, served the purposes of the time when they were made, have failed to demonstrate the dynamism required to address the challenges to environment in the current context.

Law Enforcement

Environmental law enforcement, being a highly specialized area of implementation, entrusted to different agencies under different laws, presents a none-too-happy-a-picture.  Lack or inadequacy of skill; less than satisfactory infrastructural facilities ; poor and unimaginative understanding of the law ; jurisdictional conflicts and lack of coordination, among different agencies of implementation, appear to contribute to poor and in effective implementation of the laws.  Ability of some of the more resourceful industries in either camouflaging their violations and non-compliance and in exerting undue pressure on the enforcement agencies, also has contributed to the inefficiency of the enforcement apparatus.[25]

Untrained and Unskilled

The environmental law enforcement agencies present a very disturbing picture.  Trained and skilled personnel in law are in short supply.  The Ministry of Environment and Forests, upon coming into existence two decades back, had a Legal Cell, with a Law Officer.  The Cell does not exist any longer.[26]  The policy papers and legislative drafts are prepared either by non-law persons within the Ministry or by commissioning the services of experts from outside the Government.  Although, the drafts get whetted by the Law and Justice Department, before getting tabled before the Parliament, it is done routinely like any other legal draft without bestowing any particular attention as the subject may demand.  The Legal Department would rather pay greater attention to the form, structure and the technical aspects of the draft rather than to its substance.  The Ministry at the Centre and at its regional offices is served by scientific officers and social scientists and presided over by senior bureaucrats drawn from the Central Civil Service, few of whom are trained in Law, much less in Environmental Laws.  Another phenomenon, that is getting increasingly pronounced in the Environmental aspect of the administration is that the authorities at the policy-making level do not remain in the same position for long, as to understand the nature of work and acquire an in-depth knowledge over its functioning.  Instances abound of the personnel in the higher echelons of the ladder of administration getting training (including a couple of stints abroad) in the environmental management systems and then moving over to the other departments.  Very little scope exists for putting into practice, whatever expertise acquired by the authority by such training.  Nor, has there been a proper mechanism evolved to assess and account for such expensive investments.[27]

While the Central Pollution Control Board (CPCB), at the Centre, is well served by a team of Law Officers, their role is confined to assisting and briefing the Private Legal Counsels, appointed for the purpose, after the dispute involving the government comes up before the Courts of Law.  No system is evolved, as yet, to facilitate consultation, by the different branches within the Board, with the legal wing, before or at the time of decision-making by each one of them.  No special care is taken in ensuring that the legal personnel recruited do possess the knowledge and skill required for understanding and interpretation of environmental laws.  No regular, periodic, verifiable training programme is evolved to ensure that their capacity in Environmental Laws is enhanced, by the Board.[28]

The story is no different in the regional offices of CPCB or in the State Boards.  Not all the State Boards have legal officers and, even where they are there, their functions do not differ substantially from their counterparts in the CPCB. Since the State Boards are normally the ones, that are involved in the litigative process, the legal personnel recruited for the purpose are expected to possess the requisite knowledge and skill as to the procedural and substantive aspects of environmental laws.  The expectations are belied as one goes through the litigation profile of different State Boards.[29]  The higher judiciary has, time and again, reminded the Boards about these lapses in their litigation.  The Gujarat High Court, in Gujarat Water Pollution Board v. Kohinoor Dyeing & Printing Works[30] insisted that the Board officers to take effective steps for the service of the summons upon the accused; prepare the case thoroughly ; resist adjournments; seek exemplary costs to deter the accused from adopting dilatory tactics and vigorously pursue appeals in the superior court.

Even the personnel who actually implement the law (like inspection, investigation, sample-taking, etc.) do not always observe the mandatory procedures prescribed.  As a result, the Boards have cut a sorry figure, before the Courts of law, by losing out to the polluters, even when they had excellent case on their side.  The Delhi Bottling Case,[31] is an excellent example of this.  A case that was not contested as to the claims of the Central Board, that the industry did not conform to the prescribed standards, was lost on the technical ground by the governmental agency as it did not strictly observe the procedures prescribed under the Water (Prevention & Control of Pollution) Act, 1974.

Jurisdictional Questions

A plethora of authorities enforce different aspects of environmental laws.  While, the pollution-related laws are primarily enforced by the Pollution Control Boards and the forest-related laws by the Forest and Wildlife Authorities, the management of other aspects of environment are entrusted to a variety of agencies, to function in a cooperative way.  The Rules under the Environment (Protection) Act, 1986, require a number of agencies of State that include, the Revenue, Transport, Local Self-Government and Industry, besides the Pollution Control Boards to work in unison to achieve the desired results.  One of the rules of interpretation of statutes insists that whenever a number of statutes deal with the same subject matter, they ought to be harmonious construed as to ensure that each one would complement and strengthen the other and avoid any kind of overlaps in jurisdiction.[32]  But, in practical terms super egos and poor understanding of the law have come in the way of cooperation and complementarity in the functioning of different agencies.  The snowballing of the avoidable conflicts of jurisdictional question have led to different agencies of state taking irreconcilable positions and we are witness to strange sights of cases fought by them over the issue, in the courts of law.  The courts of law too, have not really helped in the matter, by handing down confusing and conflicting decisions that neither reflect the true spirit of the law nor state the correct legal position.

One of the most familiar and oft-argued jurisdictional issue, pertains to the authority of the general administration and that of the Pollution Control Board.  While, the general administration has the power to deal with every conceivable aspect of public nuisance,[33] the State Pollution Control Board is empowered to tackle pollution.[34]  The problem of conflict of jurisdiction is perceived when the general administration attempts to initiate action over polluting activities, as amounting to public nuisance and the Pollution Control Board also arrives on the scene to deal with pollution.  No uniformity exists in pronouncements of the different High Courts in resolving the conflict of jurisdiction question.  In the Tata Tea case,[35] the Kerala High Court ruled against the exercise of jurisdiction by the General Administration, when the State Pollution Control Board was seized of the problem.  It opined that since the specific pollution-related laws were complete codes designed to prevent pollution, they impliedly repealed the provisions of S. 133 Cr.P.C., to the extent they relate to prevention and control of pollution.  However, the Andhra Pradesh High Court, in the Nagarjuna Paper Mills case,[36] took the position that the exercise of jurisdiction by the Executive Magistrate (District Collector), under Cr.P.C. does not conflict with the authority of the Specialized Agency (Pollution Control Board), as long as it did not interfere with an order of the latter.[37]  In a subsequent case,[38] the Divisional Bench of the Kerala High Court adopted the view of its Andhra counterpart by overruling the Tata Tea decision.  The Karnataka High Court, in 1997, first chose to follow the Tata Tea ruling[39] and later, the same year, quickly retreated to subscribe to the approach of the Andhra High Court.[40]  Perhaps, a more balanced position is taken by the Karnataka High Court which, in a later decision,[41] found no conflict of jurisdiction between the two authorities and to construe the relevant legislations under which they exercise their respective power as complementary to each other.[42]  It also further clarified that in terms of functioning, the Pollution Control Board would, as a general rule, address itself to activities of greater complexity and of different magnitude (like industrial pollution), than minor and local instances of nuisance (like nuisance caused by a Poultry farm).  The latter could, as a matter of fact and convenience, be addressed by the Magistrate under S. 133 Cr.P.C. upon a representation by an individual or a small group of people.[43]  Extending further this logic, it could be interpreted that the jurisdiction exercisable by the two authorities can be concurrent, complementary and cooperative.  While the “nuisance” could be tackled to maintain health, hygiene, law and order by one authority (Executive Magistrate), the dimension of “pollution” can be handled by the specialized agency (Pollution Control Board).  Since such a classification is neither made by any legislative enactment, nor by the pronouncement of the apex court, as yet, the final word in legal terms, as to the resolution of conflict of jurisdiction, has not been said.[44]

Environment Management Service

A comprehensive policy for environmental management, as would address and balance the imperatives for development and concerns for conservation, was evolved by Government of India, in 1992.[45]  One of the major instruments for action, as stated in the policy document was, “to develop appropriate organizational structures and a pool of professional manpower to serve as the cadre for environmental management service”.[46]  Nine years down the line, all that one could discern in the system of environmental administration are, the elevation of the Environmental Minister from being a “Minister of State” to a regular Minister of Cabinet rank at the Central level and specialized group of personnel occupying lower positions while the top management positions remaining with the Generalist, Indian Administrative Service, as always.

The hiatus between policy prescriptions and actual practice is never bridged. Professionalized environmental management service continues to remain on paper only.

Budgetary, Infra-structural and organizational problems

What appears like an abdication of responsibility by statutory agencies, in discharging the functions assigned to them, requires to be viewed in the light of severe constraints under which they work.  Severe shortage of personnel and poor and inadequate budgetary allocations, appear to have contributed to their less than satisfactory administrative performance.  Withdrawal of prosecutions without assigning reasons,[47] launching prosecutions for pollution without verifiable standards or the instruments to test and convict the offender[48] and routine and cursory inspections forming the bases for initiating real action,[49] are mere indications of the malaise that has set in the system of environmental governance.  With Boards in place without a recognized laboratory to analyze emissions and laboratories lacking in equipment to measure emissions,[50] as it prevails in a number of States, one cannot expect the statutory bodies to give a better account of themselves than what exists now.

There has been considerable progress in evolving excellent policies in the last couple of decades.  A number of legislative enactments, during the same period, have helped in the creation and expansion of the environmental administrative set-up.  The plan documents (especially from the fifth five year plan onwards), have repeatedly stressed on making the environmental enforcement machinery more efficient and broad-based (including popular participation in the decision-making processes).  Building of proper infra-structural facilities has been considered, in all these documents, essential for the administration to give a better account of itself.  Translation of these into actual practice with adequate budgetary allocations and ensuring a well coordinated and effectively functioning machinery of implementation is yet to take place.

Politicized, Bureaucratized and Lacking in administrative will

Environmental Governance in India, like any other aspect of governance, as an idea and at the level of conceptions, made a promising beginning.  After initially raising a lot of hope it has lost its way and got so bogged down in politics and administrative inefficiency that the common man got compelled to look elsewhere for overcoming the environmental problems faced by him.  This can be illustrated by reference to the National Committee on Environment Planning and Coordination (NCEPC).  Following the observation made in the fourth five year plan document of the need to establish a national body to bring about greater coherence and coordination in environmental policies and programmes and to integrate environmental concerns in the plans for economic development, the NCEPC came into existence on 12^th April, 1972, in the Department of Science and Technology.  The national committee was intended to act as the advisory body to the Union Government on all matters concerning environmental protection and improvement besides planning and coordinating the working of different ministries concerning the subject.  Initially, it was a fourteen members body having a large number of experts drawn from a variety of disciplines.   The Fifth Five Year Plan (1974-79) insisted that the NCEPC ought to be involved in all major decisions concerning the industry, so that environmental concerns get duly addressed.   The composition of membership got expanded from time to time (24 in 1977 and 35 in 1979).  Each time there was an increase in numbers, the expert representation decreased!  Over-bureaucratization, clash and conflict amongst various agencies represented and lack of consensus in the decision-making process, became the end result.[51]  Viewing the Committee as an unwelcome guest, absence of cooperation in its coordinated functioning and neglect by different departments of the government hit the final nail in the Coffin of NCEPC.  The role of NCEPC in advising the Central Government and helping it to decide on the abandonment of the Silent Valley Project in 1983 (a project for damming the Kuntipuzha River in Kerala to generate electricity, that had the potentiality of destroying one of the richest biological and genetic heritages of the world, located in the Western Ghats)[52] might, having the benefit of hindsight, have led the governmental agencies and the industrial lobby to view it as opposed to development.  So it could have been that the body was viewed as an advisor not to be trusted or taken into confidence.

Constitution of core expert groups to advice the government on matters of policy and implementation of law, especially when faced with an emergency situation or in response to a directive from the higher judiciary, has become a routine affair.  In certain cases, it might appear that such a formation, to be in deference to the wishes of the judiciary.  However on closer examination it becomes evident that the entire exercise invariably has resulted in enabling the government to buy time, postpone decision-making and when the reports are given, they remain at highest levels of abstraction as to become more of enunciation of principles and not real tools for better and effective implementation.  The 1992 National Environment Policy Document[53] and Pollution Abatement Policy Document of the same year,[54] may be cited as illustrative of the fact of grandiloquent design, without much of a serious effort, at the implementational level, in giving effect to the hortatorial expressions in concrete terms.

Administrative high-handedness and non-observance of procedural formalities, in the implementation of the law, have often resulted in industries getting away with violations.  In the Suma Traders v. Chairman, Karnataka State Pollution Control Board,[55] the Chairman ordered closure of the industry, on receipt and enquiry of the complaint received from the local residents against the air pollution caused by the food grain processing unit of the industry.  The relevant provision of law,[56] required exercise of power by one upon due delegation of authority by the Pollution Control Board.  On being challenged that the Chairman did not have the power to issue such an order, as he was not so authorized by the Board (as confirmed by the Board), the court held that the impugned order of the Chairman was in clear violation of the provisions of law and amounted to abuse of power.  The court went a step ahead, in ordering the Chairman to pay a penalty of Rs.2500, by way of costs.

Political interference in appointments and in the day-to-day functioning of enforcement agencies have come in the way of these institutions developing into professionally competent and efficient bodies.  The very general nature of qualifications required for the membership of Pollution Control Boards, including that of the Chairman,[57] have been taken advantage of by governments in making appointments in an arbitrary way.  As a result of which it is not uncommon to find a political appointee presiding over the destiny of a specialized agency of State.  There is this instance of a State Government going ahead with the appointment of a person as the Chairman of the State Pollution Control Board, mainly because the Chief Minister and the Minister of Environment and Forests of the State willed it that way.  This was in spite of adverse remarks passed over the person in question by the authorities within the department and found unsuitable for the position by the Expert Committee, constituted for the purpose of making recommendations for the appointment of the Chairman.  When this snowballed into a case before the High Court, the latter issued strictures against the government for arbitrary exercise of power with a direction to make a suitable appointment in place of the incumbent.[58]

Another factor that is responsible for the environment enforcement agencies being viewed in poorer light is the phenomenon of several major industries like, Coal, Petroleum, electricity, iron and steel, agro-chemicals and heavy industries in the near exclusive control of the public sector - Government - controlled, operated and managed enterprises - with heavy government representation in their Boards.  Since the top brass of state administration occupy positions of authority in them, there is marked reluctance on the part of the enforcers of environmental laws, who, invariably occupy lower rungs in the echelons of administration, in displaying the required administrative will in bringing to justice the deviants in the public sector.[59]

Centralized and Non-participatory

The major problem with the law and its implementation concerning the environment, is the tendency to centralize power of decision-making.  This, as a matter of fact, has turned out to be inimical to good environmental governance.  It is quite understandable if the policy-making power is centralized with an apex expert group.  But, as a matter of fact, the problem lies in the bureaucratized structure that is at the helm of affairs in the form of the agencies of the Central Government, which has the final authority of deciding on all aspects of environmental management.  While scope exists for the involvement of expert bodies in aiding, advising and to make recommendations, the Central Government is, in the existing scheme of things, neither under a compulsion to put into effect what it gets from expert advice, nor for that matter, under an obligation to give reasons as to why its decisions differed from the advice received by it.  Rule-making, laying down procedures for implementation and the power to issue directions to protect, maintain and improve the quality of the environment are all vested in the Central Government.  Scope only exists in the law for delegation of powers of implementation as to different aspects of environmental administration.  In making such a provision, care has been taken to ensure that the delegatee has to be nominated by the Central Government, the parameters of its functioning clearly spelt out by the latter and that would perform its assigned functions, under the direction, authority and supervision of the Central Government.[60]  The Centralization of Power is so much that even the subordinate legislation under Environment Protection Act, framed by the Central Department of Environment and Forests, override any other Central or State legislation.[61]  The Central Government wields immense powers of decision-making as to every conceivable aspect of environmental management.  Environmental clearance as to major developmental activities require central clearance.[62]  De-reservation of reserve forest or use of forest land for non forest purpose is possible only with the prior approval of the Central Government.[63]  The current thinking as to administration of the pollution control regime, on the part of the Central Government appears to be in favour of arming the Central Pollution Control Board with many of the functions that are being exercised by the State Boards.[64]

Some of the recent initiatives in decentralization by the Central Government have been less than sincere efforts in empowering the environmental administration at the grass-root level.  The Joint Forest Management programme, for instance, enables the local village community to manage forest lands under the direction, supervision and authority of the forest department.  It is more of a benefit-sharing arrangement, for the services rendered, in lieu of payment of wages for the labour.[65]  Developmental decisions affecting the environment are taken, both at the Central and State levels, by cursorily going through the processes of Environment Impact Assessment[66] and Public Hearings.[67]  They are mainly aimed at going through the formality of giving some information to the local community of a proposed developmental activity and to hear their objections.  No mechanism is evolved through these processes to ensure securing prior informed consent of the local community and making them participants and partners in the developmental process.  Stakeholders’ consultation and participation on matters affecting the environment, are yet to be practised.  It is still very much a process of Government centred, centralized, environmental management.  There is no guarantee that the objections raised by the local people in Public Hearings or even the concerns expressed at the state level administration would form part of decision-making at the Government level.  The rationale for decisions about developmental projects is hard to find; in the rare case that it is isolated, it is not intelligently articulated.  The arbitrariness of the entire process becomes evident as a member of the Environment Appraisal Committee for River Valley and hydroelectric projects finds that there had been no single instance of withdrawal of environmental clearance for violation of conditions by a large majority of project proponents.[68]  Environmental governance, in the prevalent centralized system of management, has been anything but rational.

Poor Planning, Poor Maintenance of Records and Poor Vigilance

Laws get enforced without the requisite preparation of planning, documentation and constant surveillance.  Pollution Control Boards are, at times, guilty of issuing consent orders without prescribing norms or ensuring capacity to comply with standards.  In a case decided by the Karnataka High Court, it was found that the State Board had granted consent for stone crushing operations without examining its potential for environmental damage.  The consent order was challenged on the ground of the adverse impact of the operations on the health of the residents of the locality and the crops grown nearby.  The court, through its direction, educated the Government about the need for immediate formulation of a policy and a plan of action to regulate the business and identify ‘safer zones’ for stone crushing operations.[69]

The administrative machinery is guilty of poor maintenance of records.  The official records, instead of being a fund of up-to-date information, remain indifferently maintained.  Detailed information as to the nature of activity, kinds of discharges resulting from operations, safety and precautionary measures as to potential mishaps, instances of violations and actions taken do not even routinely find space in the Registers of the Pollution Control Boards.  The series of orders passed by the apex court in T.N. Godavarman Thirumukpad v. Union of India[70] exposed the ill-equipped feature of the forest and wildlife administration in the country.  It brought to light the inadequacies in the official records as to various categories of forest and wildlife areas and the extent of encroachments in relation to them.

In the absence of making available information, on a regular basis, about different aspects of environmental management, the task of bench-marking or evaluating the potential and performance of different aspects of environmental management, the task of bench-marking or evaluating the potential and performance of different agencies of environmental administration is made all the more difficult. This also makes it difficult for the ordinary member of the public to make use of the available avenues for seeking and securing environmental justice.  For instance, the provision for the citizens’ suit under pollution-control law enables an ordinary member of the public to complain to the agencies of enforcement about alleged violations of environmental regulations and expect timely action from the latter to set right the wrong.  It also enables him to initiate legal action against the alleged offender, after sixty days of complaint, if no or satisfactory action is forthcoming from the agency of enforcement.[71]  This tool of empowering the citizen is blunted, if he cannot access and obtain reliable, authentic and up-to-date information from the records available with the environmental managers.  Success in his prosecution is possible only if such information is forthcoming, as this alone is admissible in evidence in Courts of law.  No other private arrangements, without authentication and certification by the official machinery will do, to bring to book the evader of law through the court process.

Extremities in the Policies of Sentencing

The sentencing policies under different environmental laws swing from one extreme to another - from being too liberal to the other extreme of being too exacting.  Both have had negative impacts in terms of effectiveness of enforcement.  At one end of the Spectrum are the pollution-related laws.  The Environment Protection Act provides a fairly severe set of penal sanctions.[72]  The effect of this stringent regulation is both nullified and rendered redundant by another provision in the same Act which states that if any act or omission constituted an offence punishable under this law as well as any other law, the offender would be liable only under the other law and not under EPA.  Both Water Act[73] and Air Act[74] provide for relatively lesser punishment for the same offence.  The result is that the stringent penal sanction under EPA becomes non-operational.[75]

At the other extreme are the penal provisions under Wildlife Protection Act, 1972.  The rigour of the regulations and restrictions under the law are so severe that when once anybody gets booked for violations, it becomes almost impossible to secure acquittals.  Since the law is stringent, the incidence of detection of crime and charging one for violation of the provisions and taking the route of courts of law for bringing the offender to justice are not a regular, everyday, routine occurrence.  Even the courts of law expect strict compliance of procedures, adducing of evidences beyond a shadow of doubt and resort to strict construction of the penal provisions.  Thus the rigour of the law makes securing of convictions quite rare and even when the offences occur, they get underground or enjoy patronage of the mafia and corrupt administration.  Little wonder that convictions for violations of the law, all over the country, are few and far between.

The foregoing depict the ground realities as to the limitations of legal facilitation for good environmental management and the inadequacies of the institutions and their personnel in effectively enforcing the laws.  They also raise a variety of questions, that directly concern the competence and the nature of functioning of the courts of law in dealing with intricate and complex environmental issues.  Apart from addressing questions as to adequacy, appropriateness, limits and limitations of judicial intervention, there is also a felt need to explore supplementary and alternative mechanisms to ensure good environmental governance, in this part of the world.[76]