Legal experts are divided in their opinions over the decision of the Tamil Nadu Pollution Control Board to cut the electricity and shut down the Sterlite plant at Thoothukudi in Tamil Nadu.
Noted environmental lawyer M.C. Mehta terms it as “fire-fighting” by the Tamil Nadu government, which had “slept for years” only to wake up after the recent bloodshed in police firing.
Tanneries closure order
However, former solicitor general Mohan Parasaran said the Board flexed its “wide” powers under Section 33A of the Water (Prevention and Control of Pollution) Act of, 1974 and Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 only after complying with the “due process requirements”.
He compares this use of executive power to the closure of over 900 tanneries in Tamil Nadu. The government order was upheld by the Supreme Court in 1996 in the Vellore Citizens Welfare Forum verdict, which said though “industry is of vital importance to the country as it generates foreign exchange and provides employment avenues, it has no right to destroy the ecology, degrade the environment and pose as a health hazard”.
But Mr. Mehta, who has initiated over half the environmental case laws in the Supreme Court and whom Supreme Court judge, Justice Madan B. Lokur, who heads the Green Bench, recently called an “experienced resource on environmental law”, said dearth of laws have never been a problem.
“The same wide powers found in Sections 31A and 33A of Air Act and Water Act, respectively, are found in Section 5 of the Environment Protection Act, 1986. For that matter, the emergency clause of Section 133 of the Code of Criminal Procedure gives the area District Magistrate or Sub-Divisional Magistrate powers to pass a conditional order for removal of nuisance to our natural resources... It has always been the lacking of will,” Mr. Mehta said.
Legal experts point to Delhi High Court’s detailed judgment, delivered by Justice S. Muralidhar, on the nuances of Sections 31A and 33A in the Splendor Landbase case, concerning the non-procurement of consent orders under the Air and Water Acts.
Teeth to executive
Both 31A and 33A are not part of the original statutes, they were added on in 1988 by way of amendments. They are both almost identical in language though parts of two different statutes. Both provisions arm the Executive with “coercive power” to close, prohibit or regulate “any industry, operation or process”. They can also stop or regulate supply of electricity, water or any other service.
Experts agrees that if the Tamil Nadu Board’s closure order is challenged in court, the test would be whether the principles of natural justice were observed by the Board before the exercise of such power. Justice Muralidhar, in the Splendor Landbase verdict, interprets the correct procedure for use of Section 31A and 33A to shut down an industry.
For one, no “corrective steps” can be taken by a Pollution Control Board under Section 31A and 33A “without issuing a show cause notice and without giving an opportunity to the alleged violator to rectify the defects detected during an inspection of the premises carried out in accordance with the relevant rules.
Experts say the State government has chosen to walk the tight-rope by employing Sections 31A and 33A. Any deviation from procedure would make the act of closure “vulnerable to invalidation on the grounds of arbitrariness and unreasonableness”.
Experts point out that the Supreme Court has categorically held in its Indian Council for Enviro-Legal Action case judgment that a Pollution Control Board can order closure of any industry or stop basic facilities to it only if such a direction is necessary for effective implementation of the provisions of the Water or Air Act. That is the test ahead.
