Supreme Courts Advancing Approach Through Pollution Control Boards To Curb Potential Environmental Polluters

The decision allows Pollution Control Boards to impose restitutionary and compensatory damages or require furnish bank guarantees as an ex-ante measure to prevent potential environmental damage. The bench endorsed the Pollution Control Boards in exercising such powers under Section 33 A and 31 A of the Water Act and Air Act respectively. Interestingly, both these provisions do not expressly authorises the Pollution Control Boards to impose environmental damages or any demand for guarantees as ex-ante measure. These provisions of the statutes, empower the board to issue appropriate directions to curb the environmental pollutions covered under the statutes. But the explanation provided in relevant provisions of both the statutes, which are mutatis mutandis, states as follows:

Explanation. - For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other service

As per the general rules of interpretation, the explanations clarify the scope or intent of the main provision. In this context, the various powers of the Boards need to be understood in line with (a) and (b) of the explanation provided in the relevant provisions. A plain reading of this may not be adequately providing room for equipping the pollution control agency to impose compensatory environmental damages. This position fundamentally changed due to the present decision of the apex court allowing any sort of restitutionary environmental damages including ex-ante measures. The Supreme Court has also mandated that the boards can decide whether a polluting entity can be punished by imposition of penalty or the situation demands immediate restoration of environmental damage by the polluter or both.

The Supreme Court mentioned that the power to give directions under Section 33A and 31 A has been worded in Water Act and Air Act, broadly to allow flexibility in determining the nature of direction. In defending the position to grant such powers to the Boards, the bench asserted that legislative grammar must be elastic for us to infuse the regulators with power to fashion different remedies.

The court stated that in the scenario of pressing challenges of climate change and its impact on the lives, a concerted effort of strengthened public participation in environmental decision making and functioning of the agencies is required. The bench highlighted that the Pollution Control Boards have a significant role in ensuring accessibility in pollution related matters in this context.

On justifying the constitutional basis for such a transformative shift, the Supreme Court stated that the functions and powers of a regulator must be inspired by the obligation in the Directive Principles of State Policies and Fundamental Duties. The directive under Article 48 A of the Constitution, State's 'endeavour to protect and improve the environment' will be partial, if it does not encompass a duty to restitute the environment.

The judgment relied on environmental principles and precedents to justify such powers of Pollution Control Boards propounded in the present case. The decision in M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 paved the basis for payment of damages for restitution or remediation as compensatory relief, in addition to the imposition of monetary penalty or fine. Reliance was also made in Vellore Citizens' Welfare Forum v. Union of India (1996) 5 SCC 647, in which, the apex court stated that the liability for environmental damage includes both a compensatory aspect and a restorative or remedial aspect. In the present case, these approaches were as such adopted w.r.t Pollution Control Boards as they deal with the various sort of environmental pollutions. Another main reliance was made on the polluter pays principle, and the bench clarified that the application of the Polluter Pays principle not only includes payment for restoring the damaged environment or compensating for the direct harm caused, but also measures for avoiding pollution. To arrive at such a conclusion, the bench referred the Research Foundation for Science (18) v. Union of India (2005) 13 SCC 186. This approach of the judiciary is much progressive and advancing, and in tandem with the globally accepted principles related to Polluter Pays and Precaution. In effect, 'the potential polluters' were held responsible for the cost of preventing or dealing with any pollution that the process causes.

These wider powers conferred on the Boards are inherently having threat of abuse of power as boards are always under the control of the concerned governments. To avoid any such challenges the judiciary itself cautioned the law makers and bureaucracy by highlighting the need for formulating appropriate rules ensuring transparency and non-arbitrariness. The court further directed that, this rule should contain the method in which environmental damage is determined and the assessment of damages along with a framework for citizens to file complaints, in the rules made under the statutes. This poses greater responsibility on the government to amend the Rules made under Water Act and Air Act. The growing trend and demand on decriminalizing violations under Water Act and Air Act poses questions of commitments of governments in converting this spirit into the framework of rules. Judgment also opened a pandora's box in terms of approaches of interpretation and judicial overreach.

The author is Assistant Professor at School of Law, CHRIST (Deemed to be University), Bengaluru. Views are personal.