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Climate justice through judicial diktat

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A Supreme Court order for demolishing a set of apartments in Maradu, a suburb in Ernakulam, has caused a legal and political crisis. The deadline for demolishing the four backwater-facing high-rise apartments ended last Friday. However, the 350-odd families residing there have refused to move.

On September 11, while the rest of Kerala gorged the quintessential Onam sadhya, residents of these four complexes were on a hunger strike at the Maradu Municipality office. They have now gained wider support with all major political parties, including the Congress, the Communist Party of India-Marxist (CPI-M) and the Bharatiya Janata Party (BJP) opposing the demolition. After dithering initially, Chief Minister Pinarayi Vijayan has stated that his government will pursue all options to protect the residents.

In 2006, the Maradu panchayat had granted building permissions for constructing the apartments. However, after a directive from the local self-government department, the panchayat issued a show-cause notice to the builders for violating Coastal Regulatory Zone (CRZ) rules. The builders got a stay order from the Kerala High Court in 2007 which allowed them to continue construction. The High Court ruled in favour of the builders stating that they can’t be held responsible for the failure of local authorities to comply with statutory provisions.

 

After a Division Bench upheld this verdict, the Kerala State Coastal Zone Management Authority (KCZMA) approached the Supreme Court, which constituted a three-member panel to examine whether the buildings violated CRZ norms. Based on the panel’s report that the buildings fell within CRZ-III, the Supreme Court on May 8 ordered the demolition of the apartments. After dismissing the review petitions, the apex court on September 6 ordered the demolition to be completed by September 20.

On Monday, during a suo motu hearing on the lack of action on the part of the State in carrying out its order, the apex court pulled up the Kerala Chief Secretary, accusing the State authorities of “playing with nature”.

Blind spots and concerns

The case raises multiple concerns regarding environmental governance and adjudication. Even the key question of whether the apartments fall within CRZ-III, which would prohibit construction within 200 metres from the High Tide Line, or the less restrictive CRZ-II is unsettled. The three-member panel appointed by the Supreme Court stated that as per the CRZ notification of 1991 and the Kerala Coastal Zone Management Plan, 1996, the area in question came under CRZ-III. Maradu became a municipality in 2010 and consequently, the 2011 CRZ notification categorised it under CRZ-II, though the Union Environment Ministry approved this only in February 2019.

 

The Court held that since at the time of construction, the area fell within CRZ-III, these were unauthorised constructions. The Court adopted a narrow view by merely examining the bureaucratic categorisation and ignored that the construction was based on permission granted by the local government and orders of the High Court. While the Kerala High Court held that permit holders shouldn’t be made liable for the regulatory oversight of local authorities, the Supreme Court did not address this question.

The process of adjudication through a three-member committee also raises questions since it further delegated the task to another technical committee, which the residents allege, did not give them a fair hearing.

This case reveals the court’s massive blind spot: the real-world implications of its verdict. The order cryptically states “let all the structures be removed forthwith within a period of one month from today” without clearly stating who should undertake the demolition.

Alarmingly, the court is silent on the fate of the owners and residents of the apartments. Unlike most judgments on evictions, the court does not pronounce on the question of rehabilitation or compensation for those who would lose their homes.

A technocratic approach

While the demolition is ostensibly for protecting the environment, the Supreme Court order doesn’t sufficiently explain how the constructions in question damage the environment. Instead of a jurisprudence on environmental justice, it adopted technocratic proceduralism for arriving at its verdict. Ironically, more serious environmental damage is likely to be caused by the demolition of the apartments. A report by IIT-Madras has highlighted that air pollution caused by the demolition would pose severe health hazards to those residing nearby, besides the long-term environmental costs of the debris generated. Fearing the “collateral damage” of the demolition, a person residing close to the apartments has filed a petition in the Supreme Court opposing the unplanned implosion/explosion of the buildings.

The case highlights the pathologies of executive and judicial decision-making on environment and urban development in India. While State authorities and courts were complicit in allowing the buildings to be constructed in the first place, liability is now being placed squarely on the apartment owners. In some regards, it is a continuation of the jurisprudence based on court-appointed committees rather than hearing affected parties that resulted, especially in Delhi, in the demolition of numerous “illegal slums”. This logic has now come back to bite the middle class. For environmental justice, what we need is a strong environmental governance system that enables all stakeholders to prevent violations instead of the court becoming India’s new demolition man.

Mathew Idiculla is a lawyer and researcher on urban issues and a consultant with the Centre for Law and Policy Research

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Printable version | Oct 19, 2020 2:59:26 PM | https://www.thehindu.com/opinion/op-ed/climate-justice-through-judicial-diktat/article29493093.ece

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