Stances of Indian Judiciary over Extreme Environmentalism: An Analysis on M/S Pahwa Plastics Pvt Ltd v Dastak NGO and Ors

Introduction

Environmental jurisprudence of India is an abundance of a number of litigations which has played a major role in shrouding it with proper protection and safeguard. Fortunately, our legislation and judiciary do not catch by an extreme ideology of environmentalism leading to the stalemate of human life. The entire environment and the natural resources it provides are pertinent for the efficacious survival of human life on earth. However, proper balancing between the advancement of human life and environmental protection was utterly arduous.

In no way the safeguards formulated in the protection of the environment shall be restrictive of the social and economic welfare of human beings. This restrictive policy leads to the emergence of the concept of sustainable development as a solution for this complexity. The concept of sustainable development does a trade-off between the two vital rights of human beings, of both present and future generations, namely, the right to development and the right to environmental protection as both are dependent on each other.

It aims at the integration of economic growth along with environmental protection and social inclusion. One-third of the environmental litigations taking place in India are involving this dispute between both. One such case is M/s Pahwa Plastics Pvt Ltd. and Anr.  v. Dastak NGO and Ors[1] in which the court formed a wishful conclusion in regard to balancing between the social welfare of human beings and environmental protection.

Background Facts of M/S Pahwa Plastics Pvt Ltd v Dastak NGO and Ors

Pahwa Plastics Private Limited, the appellant carries on a business of manufacturing and sale of basic organic chemicals named as Formaldehyde in its two manufacturing units, one at village Kharawar in Rohtak, and the other at village Jathlana, Jagadhri in Yamuna Nagar in Haryana which is established and operated as a Micro, Small and Medium Enterprise (MSME).

On 31^St March 2014, the company applied for consent to establish (CTE) its Yamuna Nagar Unit for the manufacture of Formaldehyde for which the Haryana State Pollution Control Board (HSPCB) granted Consent to Establish (CTE) on 2^nd June 2016. Later, the appellants duly applied for EC in respect of their manufacturing units after a notification issued by the central government, under sections 3(1) and 3(2)(v) of the EP act, which provides for the grant of ex post facto EC for projects who had commenced, continued or completed a project Without obtaining EC under the EP Act/ EP Rules.

Finding the units are suitable for grant of EC in terms of the prevailing guidelines as per the scrutinizing of their applications revealed, an  Expert Appraisal Committee was constituted by the  Ministry of Environment and Forests and Climate Change (MoEF&CC)  which subsequently conducted a public hearing to finalize the cases of the Appellants for issuance of Terms of Reference (TOR).

Meanwhile, on  26^th November 2020,  a Non-Governmental Organisation (NGO) named as DASTAK, the respondent filed an application before the National Green Tribunal praying that the order dated 10^th November 2020 Passed by the State of Haryana, intending to grant ex post facto EC, be quashed and units which were operating without EC be closed.

Consequently, disposing of the application of DASTAK, the court impugned the order. And later, challenging the impugning rule held by the NGT, the aggrieved party thereof moved to the Supreme court of India with an appeal seeking to halt the order of the NGO. On it then the Supreme Court of India held a remarkable judgement that would stand as a strong precedent in the ambit of environmental law.

Issues Involved in M/S Pahwa Plastics Pvt Ltd v Dastak NGO and Ors

However, the question involved in this appeal was, whether an establishment employing about 8000 workers, which has been set up Pursuant to Consent to Establish (CTE) and Consent to Operate (CTO) from the concerned statutory authority and has applied for ex post Facto EC [2]could be closed down pending issuance of EC, even though it may not cause pollution and/or may be found to comply with the required pollution norms.

Judgment in M/S Pahwa Plastics Pvt Ltd v Dastak NGO and Ors

After due consideration of the arguments raised by both parties the Supreme Court bench, headed by Justice Indira Banerjee made its own remarks on whether the question is relevant. Court pointed out three pertinent views.

Firstly, the appellants have already filed an application seeking the grant of EC on which the Expert Appraisal Committee of the MoEF&CC has recommended their cases for grant of Terms of Reference (ToR) as it found the company as eligible for grant of EC after scrutinizing the application of the Appellants.

Further, only the last procedural step of issuance of EC is left in forward as the ToR was granted to the Appellants and the required public hearing had also been conducted.

Secondly, the units of the appellant are strictly adhering to the environmental norms, not causing pollution hazards and are non-polluting Units having “Zero Trade discharge” which have been in operation for many years. The court also reminded the reply affidavit filed by the State before the NGT which clearly mentioned that the units were operating in good faith with valid CTOs granted by the HSPCB. Hence, the only reasonable allegation upraised against the units was a procedural lapse of not obtaining EC which could be called as a ‘technical irregularity’

Finally, the number of employees working in the manufacturing units of the Appellants is quite large that is about 8,000 employees and the annual turnover it has been yielding is much high. Further, the court applied its reasonable rationale as it concerned the rationale driving behind the closure of an establishment contributing exponentially to the economy of the country and providing a livelihood for a large public, merely owing to the technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not the unit actually causes pollution which is more perilous.

The judgement further mentioned what the same court had held in Electro steel Steels Limited v. Union of India “The question is whether an establishment contributing to the economy of the country and providing livelihood to hundreds of people should be closed down for the technical irregularity of shifting its site without prior environmental clearance, without the opportunity to the establishment to regularize its operation by obtaining the requisite clearances and permissions, even though the establishment may not otherwise be violating pollution laws, or the pollution, if any, can conveniently and effectively be checked.

The answer has to be in the negative” and ”at the same time, Ex post facto clearances and/or approvals and/or removal of technical irregularities in terms of notifications under the 1986 Act cannot be declined With pedantic rigidity, oblivious of the consequences of stopping the operation of a running steel plant. Thus, “Ex post facto approval should not be withheld only as a penal measure”.

Affirming the importance of Environmental Clearance the court observed that “There can be no doubt that the need to comply with the requirement to obtain EC is non-negotiable. To protect future generations and to ensure sustainable development, it is imperative that pollution laws be strictly enforced.

Under no circumstances can industries, which Pollute, be allowed to operate unchecked and degrade the Environment”. Further, it requested to impose a heavy penalty as a penal in accordance with the principle of ‘polluter pays’ on any industry that deviates from these norms and the cost of restoration of the environment may be recovered from it.

Reiterating its former decision in Electrosteel Steels Limited v. Union of India[3], the court stated “this Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the units and dependent on the units in their survival”.

In regard to ex post facto EC, the court observed that the Environment (Protection) Act, 1986 does not prohibit it. Instead, some relaxations and even grants of ex post facto EC in accordance with the law, in strict compliance with rules, and regulations, where the projects are in compliance with environmental norms, are not impermissible. But at the same time, ex post facto clearances cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations.

However, on the ruling passed by NGT, the court viewed that the NGT erred in law in directing that the units cannot be allowed to function till compliance with the statutory mandate. And as a remedy for the appellant, the court made the impugned order set aside and allowed it to continue its operations along with the order of restoration of electricity if it is disconnected. Further, the court authorized the respondent to disconnect the supply of electricity in case the application for EC is rejected on the ground of any contravention on the part of the appellants.

Analysis of the Judgement in M/S Pahwa Plastics Pvt Ltd v Dastak NGO and Ors

The judgement which made the ‘post facto approval” a permissible one, has been reviewed in two aspects. The critiques of the judgement arguing that the court has departed from the court’s enviable track record and marked a fundamental shift in the court’s approach towards environmental issues.

Further, the approach of considering environmental pollution as a mere ‘technical irregularity’ has also been condemned as it is an attempt to address critical environmental issues within the narrower lens of pollution. They further expressed concern over the serious reverberations which might be caused by the court’s conclusion on environmental jurisprudence as well as the right to life of the citizens, guaranteed under Article 21 of the Constitution. The precedential remarks of the court from an earlier judgement regarding the same matter were also criticised since both are authored by Justice Banerjee.

In fact, it is obvious from a plain factual reading of the court’s findings that it gave much importance to the principle of social welfare. Its continuous emphasis on the industry’s “8,000 employees” and “huge annual turnover”, that it contributes to the “economy of the country” and provides “livelihoods” indicates this fact.

The question to be addressed in the case was as said by the court whether a unit contributing to the economy of the country and providing livelihood to hundreds of people should be closed down for the technical irregularity of want of prior environmental clearance even though it may not cause pollution.

Since the appellant has no precedent of any act of pollution or serious infringements and the grant of ex post facto EC bears nothing of serious consequences as the concerned authority has the right to take any action including the rejection and cancellation of EC if any contravention is noticed from the appellant, there is no reason to believe that the judgement endangers India’s environmental jurisprudence as some claimed.

One similar case regarding this is Narmada Bachao Andolan v Union of India[4], in which the honourable court, recognising the concern over wastage of huge public money, observed that “when such projects are undertaken and hundreds of crores of public money is spent, individual or organisations in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time. It is against the national interest and contrary to the established principles of law that decisions to undertake developmental projects are permitted to be challenged after a number of years during which period public money has been spent in the execution of the project”

The honourable Supreme Court’s remarks on sustainable development considering it as an indispensable part of article 21 of the Constitution of India in the case N D Jayal and Another v Union of India and Others[5] is regarded as evidence of special care and interest of Indian judiciary in maintaining the principle of sustainable development in India. In the case the Court observed following:

• “The strict observance of sustainable development will put us on a path that ensures development While protecting the environment, a path that works for all peoples and for all generations.”
• “The adherence of sustainable development principle is a sine qua non for the Maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the Right to ‘sustainable development’ cannot be singled out. Therefore, the concept of ‘sustainable Development’ is to be treated an integral part of ‘life’ under Article 21.”

Moreover, for many decades it has been believed that both environmental protection and developmental projects are contrary and incompatible. Though keeping a constant balance between both seems to be difficult, the modern concept of sustainable development which is defined as the development that meets the needs of the present, without compromising the ability of future generations to meet their own needs stood as a balancing mechanic.

Unfortunately, reports of waiving many progressive developmental projects which might enhance the economic growth of our country owing to the public and political pressure regarding environmental protection are quite more in our country. The remarking of the court that “where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularisation of operations by a grant of ex post facto approval” flaunts its concerns over social and economic troubles, closure of factory results in.

The decision as it upholds the principle of sustainable development, in this case, has to be read with the comment of the same court in T.N. Godavarman Thirumulpad v. Union of India[6] that adherence to the principle of sustainable development is a constitutional requirement. However, a positive step toward balancing and integrating the elements of economic, social and environmental had undertaken by the courts in India.

Conclusion

Environmental law encompasses all safeguard measures on any activities which may adversely affect the life, health, and safety of all beings along with the natural ecosystem. Both wealth and health are necessary for the survival of humans particularly in the modern world. One shouldn’t be a menace to the other.

Instead, the coexistence of both is to be implemented without harming each other. In India, many industries are been undertaking their activities without harming the ecosystem. Though the environmental law enacted by the legislature holds a major role in such integration of both health and wealth measures, interestingly, the role of the judiciary in this regard is a phenomenal chapter of environmental jurisprudence whereas India had witnessed an exponential leapfrog in the economic and social development in recent years.

While it prevented many major factories and establishments along with the imposition of severe penalties in case of infringements of safeguard measures and of destructive activities, it also helped many establishments to get rid of the shackles of unnecessary and extreme protective measures imposed by authorities, considering the major economic, social, employment requirements the country must be achieved in both short and long-term. Since such a movement is reiterated in the case of Phawa Plastic Ltd, it would be a long-standing vehement precedent for future litigations regarding this.

This article has been contributed by Muhammed Ukkasha V, a student at Markaz Law College affiliated with the University of Calicut.

References

[1] m/s Pahwa plastics Pvt Ltd. and Anr.  v. Dastak Ngo and Ors,  2022 SCC  SC 362.

[2] Ex post facto environmental clearance refers to allowing the functioning of an industry or project which has started operating without obtaining the green clearance and disclosing the probable environmental impacts of the project and to do after the commencement.

[3] Electrosteel Steels Limited v. Union of India, 2021 SCC  SC 1247.

[4] Narmada bachao andolan v Union of India, AIR 2000 SC 3751.

[5] N D Jayal and Another v Union of India and Others, (2004) 9 S.C.C. 362.

[6]  T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267.