The “Supreme” Pollution Control Board

The other day, I went across to see Member Secretary of the Maharashtra State Pollution  Control Board (SPCB) in Mumbai. The Board entrance looked different. The Board now  carried a new title ‘The Supreme Pollution Control Board of Maharashtra’. I was surprised to see the change.

When I saw the Member Secretary, he said that such a change has been done all across the  country. All SPCBs are now SPCBs with ‘S’ as Supreme.

I knew my Professor friend must have had a contribution in this change. After all, he is the Secret Advisor (SA) to Minister Prakash Javadekar. I called him up and we went to our usual coffee shop.

“Prasad,” the Professor said. “You have to realize that today environmental governance in  his country is driven more by the Judiciary and less by institutions like the Pollution  Control Boards (PCBs). There have been serious lapses regarding timely and  comprehensive monitoring and enforcement at the end of PCBs. This has caused significant environmental damage and with no environmental justice done especially to those affected. The polluters, which include not just industries but also municipalities, are not behaving responsibly. So those affected are moving to courts and filing petitions,  demanding justice. The courts seem to be responding faster than the PCBs. They are not just giving directions but the special courts like the National Green Tribunal (NGT) are pulling up the PCBs for lax performance”

I said “So we seem to have two parallel ‘regulators’ so to say. One regulator like PCB who is  upposed to act – but does not seem to be doing so; and the second i.e. judiciary who is  not supposed to be the regulator, acts.”

“Precisely the reason”, the Professor lighted his cigar. “I therefore advised the Minister to appoint retired judges and lawyers as Chairmen and Member Secretaries of the PCBs and change the name. This will reduce the load on the Judiciary as these retired judges will probably behave as if they are still acting! “

The role of the Indian Supreme Court may be explained quoting the views of Professor S.P.  Sathe and Professor Upendra Baxi, two leading academics who have extensively written on the role of judiciary in India. Professor Sathe has analyzed the transformation of the Indian Supreme Court ‘from a positivist court into an activist court’. Professor Upendra  Baxi, who has often supported judicial activism in India, has also said that the ‘Supreme Court of India’ has become the ‘Supreme Court for Indians’. Many observers of the Indian Supreme Court including Professor Sathe and Baxi have rightly opined that the Indian Supreme Court is one of the strongest courts of the world. (Taken from Principles of International Environmental Law and Judicial Response in India, Shailendra Kumar Gupta, Sr. Lecturer, Faculty of Law, B.H.U., Varanasi, India @ http://www.bhu.ac.in/lawfaculty/blj2006-072008-09/BLJ_2007/11_Dr.%20S.K.%20Gupta%20-Artical%20on%20Int’l%20Envt’l%20_Law_Corrected_on.doc)

“It’s not just the change in the name – I have also introduced key changes in the organization,” the Professor continued. All PCB staff will now wear a ’lawyer-like dress’ to bring in a courtroom like atmosphere. The industry representatives when visiting the ‘S’PCB office will now shudder to see a lawyer-like environmental scientist or engineer and the gravity and seriousness of the situation will register itself. All PCB staff will be trained on environmental law and speak in a ‘complex’ language like lawyers do and use phrases like ‘notwithstanding, not limited to’ etc… Do you know that most technical staff of the PCBs are not trained adequately in environmental law which they are expected to implement!

New inductees at the “S” PCBs

(taken from http://www.frontline.in/other/crisis-of-the-indian-bar/article4478540.ece)

“That’s quite shocking, Professor,” I said. “But what about the retired judges? How will  they handle environmental matters, especially the technical details?”

“Oh, I have already thought of this. For the Member Secretary (MS) there will be a  Technical Secretary (TS) on of the same lines as the NGT. The NGT has Expert Members who provide technical support. For the ‘S’ PCBs, TS will be the expert and will discharge in a similar function.”

“But still, I have asked the MS and Chairmen to undergo a basic course on Environmental  Management,” the Professor continued. “These retired judges will be exposed to new and balanced management strategies apart from the usual directions such as closure, phase  outs and compensations that they are accustomed to give. This training course will also cover understanding of the basic technical terms i.e. BOD is Biochemical Oxygen Demand  and not Board of Directors etc.”

“Surely you are joking Professor. Everyone in the country today knows what BOD is,  thanks to the widelyknown failure of the Ganga Action Plan,” I said. The Professor did not like my comment.

But your point on compensation brings me to a question that often remains unanswered, I continued.

“How does one decide on arriving at the fines or economic evaluation of the damage  caused due to unchecked pollution? And how does one apportion the compensation when multiple polluters are involved? Do you see a need for MoEFCC or CPCB to establish a  national framework to assess the damage (i.e. cost of inaction)? Often damage assessment is carried out on an ad-hoc basis or based on shakey assumptions and the results are not realistic or consistent. Further, the basis of calculations is often not shared with stakeholders to ensure agreement as well as transparency”

“The important point is,” the Professor said lighting his second cigar. “Scientific damage  assessment is very important and relevant to our case, as in India we tend to let the damage happen first and then approach the Judiciary for environmental justice. Preventive approaches are only talked about in seminars and rarely practiced. I am therefore thinking of adding a position of Environmental Economist at the ‘S’PCBs.”

“You are very thoughtful professor,” I said. “Why don’t you create such a position at the NGT itself?”

Hmmm said the Professor.

“Please add a position of Social Scientist too,” I pleaded. “What is environment without a social dimension?”

“On the NGT,” I added, “I just came across an interesting statistic on the performance of NGT in India. See the paper National Green Tribunal and Environmental Justice in India by Swapan Kumar Patra and V Krishna, published @ http://www.niscair.res.in/jinfo/ijms/ijms-forthcoming-articles/IJMS-PR-April%202015/MS%202615%20Edited.pdf. This paper presents analyses of data from the NGT website. It reports that number of cases judged by NGT have increased from 37 (May-December 2011) to 97 (July-December, 2013) totaling 318 judgments. Out of these, 50% of the judgments came from 4 States alone – Tamil Nadu, Assam, Maharashtra and Karnataka. States with development projects on hydropower and minerals strangely are in the middle. A large number of judgments have been given related to Coastal Regulatory Zone (CRZ).”

“Interesting statistics,” the Professor said. “We should use such studies to produce a  ‘Heat Map’ for India. The FDI in these states may get influenced if such statistics are  revealed on a quarterly basis. Who would like to get into a ’hot potato’ situation? Simply avoid these four states.”

“You are right Professor,” “I think we should ask the new ‘S’PCBs to report not just the consents filed or approved, but also the consents rejected. This number is surely going to increase with this ‘S’ transformation. It will further warm up the heat map you are
contemplating,” I said in closing, while settling the bill.

The Professor smiled.

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I would highly recommend the paper by Mahajan Niyati, Graduate School of Social Sciences, Waseda University, Tokyo, JAPAN captioned Judicial Activism for Environment Protection in India. Available online at: www.isca.in. I have quoted the observations he made in his abstract below:

“The Supreme Court and High Court have worked from case to case for making  environment as a fundamental right and then extending its meaning to right for  compensation, clean water and air. The closure of limestone quarries in UP, halting of  polluting tanneries along the Ganges river, the introduction of the principle of Absolute Liability for hazardous firms are some of the landmark decisions. In response to the  court’s order different rules and policy changes have been developed such as CNG Policy in Delhi, Municipal Solid Waste (Management and Handling) Rules and Karnataka Municipal (Amendment) Act. However, the effectiveness of judicial activism in bringing about the  social transformation is questionable. Although, the judiciary is able to form some strong  foundation for environmental protection, but the developments brought about by judicial activism have been proven insufficient to bring satisfactory outcomes.”