Polluter must be made to pay

Holding that the ecologically fragile area should not have been leased out for private commerce, the court had found the motel guilty of blasting, dredging and diverting the river. The motel was asked to show why, besides the compensation for ecological restitution, it should not be required to pay a `pollution fine’ too. The court’s judgment holding no such fine can be levied on the motel is a tragic retreat on the issue of its own constitutional powers when it speaks for a voiceless, helpless and legally illiterate public.

The retreat is marked by the court’s declaration that pollution is a `civil wrong’, for which only damages and exemplary damages can be awarded. This negates the entire evolution of the pollution law through the Supreme Court judgments based on the concept that pollution is a constitutional wrong.

That is the hi-ghest level of legal injury to any public or individual, for which one of the reliefs the co-urt has stipulated is a pollution fine.

Hence the fine was a constituti-onal fine and not a criminal one or a civil penalty. The judges had the mi-llennium’s opportunity to fashion a doctrine of constitutional offences against the public in the light of Articles 7 and 23 of the Constitution which make untouchability and trafficking in human beings constitutional offences.

The seed of the concept of a constitutional offence exists in the Constitution itself. To relegate pollution to a mere civil wrong is not only to deny this concept of a constitutional offence, but also to negate the concept of public law.

Since 1980, fundamental rights expressed by Article 21 which says, "No person shall be deprived of his life or personal liberty except according to procedure established according to law" has blossomed into a whole basket of positive rights by a public law enunciation of what is life. This public law thinking has resulted in the fundamental rights of sustainable gro-wth, inter-generational equity, the precautionary pri-nciple of preventing instead of curing pollution, the principle that `polluter pays’ and the enforcement of international treaties to which India is signatory, though Parliament has not made these a part of the country’s law. These are not found in the Constitution.

Hence it is no use relying on the standard legal excuse that pollution is not stated to be a constitutional offence. The public law question is: why should the `polluter pays’ principle not include a fine for the constitutional offence of pollution?

The judges never asked themselves this question in the public interest litigation case before them or put this to the senior advocate hired by the motel. The court confined itself to treating the word `fine’ only in relation to an offence and then `offence’ only to a criminal offence, though the show-cause notice did not use these words.

The court relies on its own judgments to state that its power to do full justice in a case under Article 142 of the Constitution could not be used to impose a pollution fine for environmental degradation, in violation of the water, air and environment protection statutes which imposed a fine on the finding of guilt. The problem of logic with this reasoning is that the Air Act is irrelevant in the context of the Beas or the protected forest, while the sections cited from the other two Acts deal only with industrial or trade effluents. The relevant Forest Act has not been cited in the judgment.

Lastly, the judges held that the power to do complete justice cannot be used to “supplant the substantive law applicable to the case before it and build a new edifice where none existed earlier.” Yet a week earlier, on May 5, the same two judges in the Haj pilgrimage case replaced the statutory committee under the Haj Committee Act, 1959, by an entirely new committee headed by the Foreign Secretary on the ground that the Act was “obsolete’. Despite several promises, a new Act had not been tabled in Parliament by the Union government. The logic by which the judges can negate a statutory law in clear violation of that law, while refusing to do so on fragile grounds in an environmental case, can be explained only by the apex court. It is a difficult conceptual leap from pollution to environment or from the criminal to the constitutional.