India: The Art Of Living Foundation Case – Is Wrong Precedent Being Created?

The National Green Tribunal (NGT) has been mandated to deal with cases relating to environment which, broadly, involve direct violation of specific statutory environmental obligation by a person by which community at large are affected or are likely to be affected. In doing so, NGT is guided by the principles of natural justice and has been empowered to apply the principle of sustainable development (basic assumption of balanced co-existence of socio-economic development and environment protection), the precautionary principle (environmental measures of anticipating, preventing and attacking the causes of environmental degradation) and the polluter pays principle (polluter pays the cost of restoring environmental degradation and compensates the victims). The question that arises is –whether NGT is judiciously applying one principle over another while dealing with the projects violating environmental norms?

The question becomes important in view of the recent case Manoj Misra vs. Delhi Development Authority & others and other related cases (AOL case), in which major environmental concerns were raised over the constructions on the floodplains of the river Yamuna in Delhi by the Art of Living Foundation (AOL) to hold their World Culture Festival (WCF). In an order passed in the AOL case, even though NGT observed that WCF cannot be termed as recreational activity simplicitor – as it involved sufficient construction activities on the floodplains to qualify as a complete project in itself – it declined to grant a prohibitory order and a mandatory direction for removal of said constructions and restoration of the floodplains. It allowed AOL to hold WCF by imposing an environmental compensation. It cited S. P. Muthuraman case as a precedent while passing the said order.

Earlier, NGT in S. P. Muthuraman case had passed an order (said NGT order) quashing the two office memoranda (OM) issued by the Ministry of Environment, Forest and Climate Change (MoEF), which had diluted the mandatory requirement of obtaining prior environmental clearance for setting up certain projects. An appeal is pending against the said NGT order (said appeal) in the Supreme Court of India (SC). While hearing the said appeal in January this year, SC had observed that it may henceforth insist on prior environmental clearances for all projects (which are required to so obtain) instead of post-facto environmental clearances and added that the project owners cannot merrily construct their projects without getting the environmental clearances. It further observed that any stay granted to the said NGT order would only perpetuate illegality and destroy the environment. 

In said NGT order, NGT had noted that the OM, which directly vary the environmental norms in force, have been adopted by MoEF as a via-media to bypass the prescribed process of environmental protection to give legality to the projects which have been or were in the process of being set up without obtaining prior environmental clearance. The OM allowed the entities to continue with their projects even without obtaining prior environmental clearance - provided they gave a written commitment to MoEF in the form of a formal resolution to ensure that such violation would not be repeated.

While quashing the OM, NGT held that the OM were violative and destructive of the environmental laws and, therefore, lacked legal sanctity. NGT further observed that the environmental norms mandate the requirement of 'prior environmental clearance' without exception. It noted that the OM provided benefit to the class of project owners who have started construction in violation of the environmental norms.

However, while quashing the said OM, NGT fell short of nullifying the intent and spirit of the said OM in totality by refusing to completely stop such projects which came up without obtaining prior environmental clearance. It fell short of defeating the unconstitutional purpose of the OM by allowing the project (without having prior environmental clearance) to continue by imposing a penalty of 5% of the total project cost on the project owner. NGT held that "In view of the above position of law, the applicant would be entitled to partial acceptance of the appeal, since the Project Proponent may not be directed to demolish the structure at this stage, but, shall strictly comply with the directions that we propose to pass in the present case...". Thus NGT gave excessive consideration to substantial investments already made by the project owners in such projects and to the third-party interests created therein at the cost of environmental well-being. This position was re-affirmed by NGT later in Kishan Lal Gera case.

In Kishan Lal Gera case though NGT had re-affirmed that "... the personal and commercial interest of the Project Proponent cannot be permitted to over-ride the public interest and environment and ecology of the area ...", it has in effect regularized such projects requiring mandatorily environmental clearance, by imposing a penalty on the project owner with conditions.

By doing so, NGT seems to have given undue weightage to the polluter pays principle and the principle of sustainable development over the precautionary principle, which may tend to put the environment and ecology at a greater risk in the long run.

While deciding the said appeal, whether SC would take the above facts into consideration in dealing with the question of "mandatory prior environmental clearance requirement for certain projects" is to be seen. In the meanwhile, the precedent created by NGT in S. P. Muthuraman case has again been applied by NGT in allowing WCF to continue on the structures constructed on the floodplains without obtaining prior environmental clearance by imposing environmental compensation and certain conditions on AOL.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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