Empowering Pollution Control Boards & Need for Robust Safeguards

By Vedant Choudhary

The Hon’ble Supreme court gave its judgment in Delhi Pollution Control Committee v Lodhi Property Co. Ltd earlier this week. Through this judgment the Court has widened the scope of powers available to State Pollution Control Boards under section 31A of the Air (Prevention and Control of Pollution) Act, 1981 and 33A of the Water (Prevention and Control of Pollution) Act, 1974. State Pollution Control Boards (Boards) would now be within their limits in issuing orders directing violating industries to pay compensatory or restitutionary costs. This piece argues that while it is appropriate that this power be conferred onto the Board, it would have to be accompanied with sufficient safeguards and particularly a robust appeal mechanism to ensure justice.
Sec 31A of the Air Act and Section 33A of the Water Act were introduced in 1988 as measures to enable the Board to more effectively prevent air and water pollution. These sections grant the Board wide sweeping powers to issue any direction for the prevention of air, and water pollution. By virtue of Chapter VII of the Water Act, and Chapter VI of the Air Act the Board is empowered to impose penalties to violating industries. In the present case however, the issue was slightly different, in addition to penalties, is the Board empowered to direct the payment of compensatory or restitutionary costs to violating industries?
A foundational principle of India’s environmental law jurisprudence is the “polluter pays” principle. As the name suggests, the principle propounds that it is the violating industry that will make good the losses caused by it, in other words any damage caused by an industry will be compensated for or restituted by the industry causing the damage. The Polluter Pays principle has been a basis for a number of landmark environmental cases in India, the earliest being the Indian Council for Enviro-Legal Action v. Union of India, 1972 (Bichhri Case). Therefore, there is no doubt that in a case of damage to the environment courts in India are empowered to direct the violating industry to pay costs to compensate for the entire damage caused. However, the question before the court was, whether Boards which are not judicial bodies, and most certainly cannot be equated courts, can issue such directions for compensation, or restitution?
The Supreme Court has upheld the power of the Board to direct compensatory costs to violating industry. The court has reasoned that remedial jurisprudence must be expanded to keep pace with the expanding scope of fundamental rights, therefore regulators must be empowered to enforce measures to make good the losses, or damage caused to the environment by a violating industry. It is also only appropriate that this power is granted to the Boards since only the Board possesses the technical expertise in determining the quantum of damage and the costs to make good the losses. However, the court has also taken note of the fact that since Boards are not judicial bodies, this power can be exercised by the Board only after the Central Government introduces appropriate guidelines and directions which can ensure that the Boards while passing such orders does not violate the rights of any parties.
While Guidelines and directions, detailing the principle and procedure to be followed by Board in issuing compensation orders may appear adequate, it is difficult to believe that guidelines no matter how well drafted, would be able to instill judicial mind into the Board, or ensure judicial wisdom in the Board’s decisions.
On the contrary to guidelines and directions, an effective alternative to the same could be, introducing mandatory judicial members in the Board. A cursory look at the composition of the Board (given under section 4 of the Water Act) shows that there is no mandate to appoint even a single judicial member to the Board. While the Board comprises members representing the state, bureaucracy, corporations, and other sectors like fisheries, and agriculture, there is no mention of judicial members. Considering that such wide sweeping powers have been granted to the Board and that it would now be performing judicial functions it is only appropriate that at least half of the members of the Board comprise judicial members. However, in order to make space for judicial members, the Board would have to be resized and reconstituted, failing which it could lead to jumbo-sizing of the Board. An alternative to introducing judicial members, albeit not as effective, would be giving judicial training to members of the Board. This can be modeled on the manner in which members of the Juvenile Justice Board are trained under the Juvenile Justice Act, 2015. In addition to all these measures, it is also necessary that a strong appeal mechanism is provided to parties aggrieved by the decision of the Board. Following amendments introduced in 2010, aggrieved parties can file an appeal before the National Green Tribunal from decisions of the Board under section 33A of the Water Act. However, there is no such provision under the Air Act. With the widening of powers of the Board, and the Board being merely a quasi-judicial body, it follows that the appeal mechanism against its decisions must also be strengthened.

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