The dilution of a principle

Published : Nov 16, 2007 00:00 IST

The Supreme Court judgment permitting the dismantling of Blue Lady reverses key milestones in environmental jurisprudence.

in New Delhi

Environmental law has given rise to a few sound principles, which have been adopted by courts in almost every country. The precautionary principle is one such legal maxim that has gained universal recognition ever since it was contained in the World Charter for Nature adopted by the United Nations General Assembly on October 28, 1982.

It is well articulated in Principle 15 of the 1992 Rio Declaration on Environment and Development. It states: Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The maxim places the onus on the party accused of causing damage to the environment to prove his or her innocence. The Supreme Court has accepted the principle in several cases as being part of Indian environmental law.

So, when the two-Judge Bench of the Supreme Court, comprising Justices Arijit Pasayat and S.H. Kapadia, permitted dismantling of the hazardous ship Blue Lady at Alang port in Gujarat on the basis of the same principle, it seemed as if the principle had been turned upside down. The September 11 judgment, written by Justice Kapadia, suggests that while applying the concept of sustainable development, one has to keep in mind the principle of proportionality based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand, and environmental protection on the other hand, the Bench observed.

The Benchs direction came while it disposed of an interlocutory application filed by Gopal Krishna (who represents the Ban Asbestos Network of India) in the public interest petition filed by the Research Foundation for Science Technology and Natural Resource Policy against the Union of India (1999) seeking effective implementation of the Hazardous Wastes (Management and Handling) Rules, 1989. In his application, Gopal Krishna sought a direction from the court to the authorities in the Blue Lady case to ensure compliance with the guidelines issued by the court for the ship-breaking industry in October 2003. The Pasayat-Kapadia Bench referred to the Supreme Courts decision in the Vellore Citizens Welfare Forum v Union of India (1996) case, in which it was held that the precautionary principle and the polluter-pays principle govern the law in India, as is clear from Articles 47, 48-A and 51-A(g) of the Constitution, and that these concepts are implied in various environmental statutes, including the Environment (Protection) Act, 1986. Also, in the Vellore Citizens Welfare Forum case, the Supreme Court observed that these principles were accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of Indian law.

What is inexplicable, however, is the Pasayat-Kapadia Benchs attempt to justify the dilution of the precautionary principle by using the principle of proportionality and the concept of balance. Environmental law, as it has evolved, does not recognise any such dilution. The Pasayat-Kapadia judgment does not reveal any such support to its thesis either in international law or in domestic law.

Even in the Narmada Bachao Andolan case (2000) in which the Supreme Court cleared the construction of the Sardar Sarovar Project, there was no enunciation of the concept of balance. It only sought to restrict the application of the precautionary principle to cases where the extent of ecological damage likely to occur owing to a development project is not known. Merely because there will be a change is no reason to presume that there will be ecological disaster, the Court concluded in that case. The Court held that if ecological effects are known, mitigative steps are to be taken to avert them; therefore, precautionary principle cannot apply in such cases.

The Pasayat-Kapadia judgment relies on the keynote address delivered by Lord Goldsmith, former Attorney General of the United Kingdom, on Global Constitutionalism, as reported in the Stanford Law Review (Vol.59, at p.1155). Goldsmith used the concept of balance, outlined in the lecture, to justify a law enacted in the United Kingdom in the wake of 9/11 to deal with foreign nationals who were thought to present a risk to national security, but could not be deported. The law provided for their detention if they would not leave voluntarily. Goldsmith argued that the Act was enacted keeping in mind the need to strike a balance between collective security and individual liberty, and it contained significant safeguards. Applying this principle to environmental law would be alien to the precautionary principle, which has held the ground all these years.

The Bench then referred to Justice Pasayats own judgment in the case of T.N. Godavarman Thirumalpad (K.M. Chinnappa) v Union of India and Ors in 2002, wherein he first propounded the concept of balance. The paragraph cited by Justice Kapadia is as follows: It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship.

In that case, the petitioners wanted the Court to restrain Kudremukh Iron Ore Company Limited from carrying out mining activity in the vicinity of the Kudremukh National Park. After a lengthy discussion about the merits of giving primacy to environmental concerns in any project, Justice Pasayat (who was a member of the three-Judge Bench then) observed: The aesthetic use and the pristine glory cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for public good and in public interest to encroach upon the said resources (emphasis added).

Indeed, these are the only two paragraphs in that lengthy judgment that support the so-called concept of balance. The three-Judge Bench in that case allowed Kudremukh Iron Ore Company Limited to continue mining in the reserved area until 2005 in accordance with the recommendation of the Forest Advisory Committee, not on the ground of the concept of balance but on the plea that the committee was a statutory body and that the Court should not interfere with its advice to the government. In other words, Justice Pasayats observation in the case as carried in these paragraphs was an obiter dictum and was not relevant to the Benchs decision.

In the Blue Lady case, the Bench articulated its principle in these words: In an emergent economy, the principle of proportionality based on the concept of balance is important. It provides level playing field to different stakeholders. Ship-breaking is an industry. When we apply the principle of sustainable development, we need to keep in mind the concept of development on one hand and the concepts like generation of revenue, employment and public interest on the other hand. This is where the principle of proportionality comes in.

It further observed: Even in the case of Blue Lady, the figures indicate that 700 workers would be employed in ship-breaking. Further, 41,000 MT [metric tonne] of steel would be made available. To that extent, there will be less pressure on mining activity elsewhere. The Bench remarked that Amartya Sen gave importance to the concept of balance in his book Development as Freedom. However, a careful reading of the book shows that Sen does not even refer to this concept, let alone give it any emphasis.

The Bench added that though the court was not in favour of discontinuance of the ship-breaking activity, it should be strictly and properly regulated. In the case of Blue Lady, the court was satisfied with the approval given by the Committee of Technical Experts on Ship Breaking Activities, appointed by it, to the Dismantling Plan submitted by the recycler company. According to the plan, the major quantity of the ACMs (asbestos containing materials) on board is in the form of wall partitions, ceiling and roofing in rooms and the gallery, and is reusable. Therefore, the panels, partitions, ceilings and so on had to be removed in such a way that the ACMs were not damaged, the Bench said. The Bench reasoned that in the light of the many conditions to be fulfilled by the recycler to ensure safety during dismantling, the principle of sustainable development based on the concept of balance stood satisfied.

Despite the clean chit given by the Bench to the recycler company that would dismantle the ship, core concerns remain unaddressed. The application for clarification, filed by Gopal Krishna, in the Supreme Court on October 4, raises several such concerns.

The September 11 judgment notes: There was also an apprehension rightly expressed by the petitioner regarding radioactive material on board the vessel Blue Lady. Therefore, an immediate inspection of the said vessel beached at Alang since 16.8.2006 was undertaken by Atomic Energy Regulatory Board (AERB) and by Gujarat Maritime Board (GMB). The apprehension expressed by the petitioner was right. However, as the matter stands today, AERB and GMB have certified that the said vessel Blue Lady beached in Alang no more contains any radioactive material on board the ship (emphasis added).

In his application, Gopal Krishna says: A bare perusal of the AERB report of the inspection undertaken on 14.8.2007 shows that the entire inspection of 16 floors of the 315-metre long ship seems to have been completed within a record period of four hours. The issue regarding radioactive materials on board the ship was only sought to be addressed after Gopal Krishna had referred to a letter sent by Tom Haugen (who had been the project manager on board the Blue Lady) stating therein that the fire detection system on the Blue Lady contained 5,500 detection points and had 1,100 radioactive elements, namely, Americium-241. No mention has been made in the AERB report as regards the balance 1,088 smoke detectors containing Americium-241, it having stated that 12 smoke detectors were removed.

The Benchs finding that the ships beaching near Alang is irreversible is also contested. In its September 6 order the Court observed: Beaching refers to running aground on the beach a ship meant for breaking by the beaching method. This ship is sailed into the beach under its own power or is towed by barges. A beached ship is rendered immobile, and cannot usually be refloated. Beaching is thus irreversible.

In August 2006, M.G.K. Menon, former Union Minister and Chairman of the Supreme Courts Committee on Hazardous Wastes, wrote to the Chief Justice of India that Blue Lady should be sent back without decontamination to Malaysia or to Germany, from where it had come. He said that any effort to dilute the courts order on October 14, 2003, on the basis of his report to try to remove the concept of prior decontamination would be against the workers in the ship-breaking yards, and also be in violation of the Basel Convention.

On October 24, the Pasayat-Kapadia Bench posted for further hearing Gopal Krishnas application seeking clarification of the September 11 judgment after four weeks without staying the dismantling of Blue Lady at Alang. In the light of the many inconsistencies in the September 11 judgment, if dismantling is allowed to proceed at Alang, India may be seen as a dumping ground for hazardous waste of developed countries.

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