Will the 2018 NGT Order Lead to Improvement in River Water Quality?

The National Green Tribunal (NGT) passed a landmark order on 20 September 2018 pertaining to increasing polluted river stretches in the country (NGT 2018). It ordered all states and union territories to prepare action plans within two months to improve the quality of polluted river stretches to “at least bathing purpose” within six months of the finalisation of the plans. The NGT observed that the State Pollution Control Boards (SPCBs)^[1] have failed to check pollution. The tribunal distinctly stated that the chief secretary of each state and the administrator of each union territory will be responsible for preparation of the action plan. 

The NGT took suo motu cognisance of a report published in the Hindu on 17 September 2018. The report was based on a study done by the Central Pollution Control Board (CPCB) for identifying polluted river stretches in the country (CPCB 2018). Similar studies were conducted by the CPCB in 2012 and 2015 (CPCB 2012, 2015). The 2018 study observed that the number of polluted stretches in the country was 351, an increase from 302 in 2015 and 150 in 2012. The 2018 data highlights that there are 45 river stretches attracting Priority I (Biochemical Oxygen Demand (BOD) value ≥ 30 mg/l) for restoration. Out these, five are in Gujarat, nine in Maharashtra and four in Tamil Nadu—the three most industrialised states in the country.

Environmental Jurisprudence in India

Environmental jurisprudence in the matter of river water pollution is not recent. Judicial activism for environment protection in India dates back to the late 1980s. The instrument of public interest litigation (PIL) was used by communities affected by river water pollution to seek relief (Divan and Rosencranz 2014). There have been many landmark judgments where the judiciary has played the role of salvaging the environmental degradation as it felt that this was its constitutional duty (Venkat 2011). Examples of the same are Vellore Citizens Welfare Forum v Union of India & Ors (1996) for pollution in the Palar river caused by the discharge of untreated industrial effluents by tanneries in Tamil Nadu; Pravinbhai Jashbhai Patel and v State of Gujarat and Ors (1995) for the pollution of Khari river by industries in Ahmedabad; M C Mehta v Union of India & Ors (1987) for the pollution of the Ganga by the tanneries located in Jajmau, Kanpur; and the pollution of Noyyal river by textile units in Tamil Nadu (Swaminathan 2014). 

The judgments in all these cases have directed the polluters to set up treatment plants to treat pollution and meet the standards. The courts have directed that polluting units that have not adopted measures for the treatment of pollution be closed down. The relevant authorities have also been reprimanded by the courts for not discharging their duties under the environmental laws to check pollution (Pravinbhai Jashbhai Patel and v State of Gujarat and Ors 1995). The courts have observed that the traditional concept which states that development and ecology are opposed to each other, is no longer acceptable (Vellore Citizens Welfare Forum v Union of India & Ors 1996; Pravinbhai Jashbhai Patel and v State of Gujarat and Ors 1995).

Sustainable development is the answer. The “precautionary principle” and the “polluter pays principle” have been accepted as part of the law of the land. The most recent in the league of judicial interventions for environment protection is the judgment dated 22 February 2017 by the apex court, where the authorities have been directed to close the industrial units that are operating without setting up primary effluent treatment plants (Hindustan Times 2017). 

Environmental Legislation Specific to Water Pollution

In India, there is a constitutional mandate to protect and improve the environment. The Constitution makes the state responsible for the protection of the environment under the Directive Principles of State Policy (Article 48A of the Constitution), which state that “the state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.” Further, Article 51 A(g), in the form of “fundamental duties,” makes every citizen of India responsible for protecting and improving the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures.

In addition to constitutional provisions, there are specific environmental laws to protect the environment. The Water (Prevention & Control of Pollution) Act, 1974 was enacted for prevention and control of water pollution and regulatory bodies like the SPCBs and CPCB were established. The Water Act, 1974 and Environment Protection Act (EPA), 1986 have provisions to take action against the polluters, both industries or government authorities. The available instruments to deal with non-compliance range from closing the polluting industries by the regulator to imprisonment and fines by the courts (Bansal and Solanki 2015). Still, we do not have any case where a polluter has been imprisoned by the Court or fined and where the punishment or the amount of the fine has acted as a deterrent. The legal cases for pollution of the rivers have been filed in spite of the constitutional and legislative provisions as the communities affected by the pollution could not get any respite from the regulatory bodies. 

The most important question under these circumstances is whether the NGT order would lead to an improvement in river water quality. The answer is that it is unlikely. In spite of all the environmental jurisprudence in the country for over two decades and a number of landmark judgments where the courts have come to the rescue of deteriorating environmental conditions, river water fails to meet the required minimum “bathing quality.” Rivers continue to be polluted and the number of polluted river stretches has only risen.

Why Are Court Orders Ineffective?

The courts can direct the polluters to set up infrastructure to treat pollution and governments to prepare the action plans to tackle pollution. In doing so, there is an underlying presumption that setting up of infrastructure would result in the improvement of river water quality. There exists a wide gap between the expected outcomes of legal orders and the actual environmental conditions on the ground. This is primarily due to the practices followed by the polluters. The industries do set up physical infrastructure such as treatment plants to show compliance to court orders. However, the technical design of the treatment plants may not respond to the kind of treatment required for the inlet effluents.^[2] In addition, the plants are not run efficiently to meet the prescribed norms. Thus, setting up treatment plants does not mean that pollution has been treated to the desired levels (Bansal 2017). For example, as part of compliance to the Gujarat High Court order in the matter of Pravinbhai Jashbhai Patel and v State of Gujarat and Ors (1995), six common effluent treatment plants were set up in Ahmedabad. In addition, there are seven sewage treatment plants treating domestic sewage of the city (CPCB 2013). Even after years of their operation, including the upgradation, the river water quality of the receiving Sabarmati river has not improved. It still has one of the most polluted river stretches in the country, downstream of Ahmedabad, even after receiving the so-called treated industrial effluents and sewage. The government has provided subsidy to the extent of 50% to set up the common effluent treatment plants and has also provided land almost free of cost. It has also provided financial help for the upgradation of the plants. Thus, public money has been spent on treating the pollution generated by private industrial entities.

This is actually in conflict with the "polluter pays" principle where the polluter is supposed to pay for its polluting activities, compensate victims of pollution and restore the environment to its original status. The environment ministry has spent hundreds of crores to fight pollution in the Sabarmati river in Ahmedabad (Dave 2018). The Ganga still continues to be polluted in spite of the fact that the Supreme Court had directed in M C Mehta v Union of India & Ors (1987) that no pollution should be discharged into the river directly or indirectly. After that, there have been many plans to rejuvenate the river but it still continues to be polluted. A similar case is that of the Noyyal river in Tamil Nadu. The Satluj and Ghaggar rivers in Punjab continue to be highly polluted (CPCB 2018) even after years of the NGT order. Another issue is that domestic pollution in the form of sewage is equally to be blamed for pollution of rivers. The infrastructure capacities in the urban areas to treat sewage are always short of the amount of sewage generated. Yet, local authorities are not held responsible for polluting the rivers and no actions are taken against them. 

The most important factor contributing to non-improvement of the river water quality is the weak monitoring and enforcement by the regulator. The regulator is aware of the situation but still, no strict action is taken against the defaulters, be it the common effluent treatment plants treating large volumes of industrial effluents from member units or the sewage treatment plants. There is on-ground connivance between the polluters and the regulator. Even if defaulters are punished, the severity of punishment is not enough to deter the non-compliance. 

What More Needs to be Done?

The Gujarat government constituted a state-level river rejuvenation committee two months after the NGT order (Times of India 2018). The first step to make the orders effective is to ensure implementation. The action plans for river rejuvenation even within the same state have to be context-specific. For example, the context of Sabarmati river pollution in Ahmedabad is different from the pollution of Tapi and the creeks in Surat. The Sabarmati river is critically polluted only downstream of Ahmedabad, after the discharge of sewage from seven sewage treatment plants and industrial effluents from two pipelines. The action plan for the Sabarmati river rejuvenation thus has to focus on these points of pollution. However, in Surat, a coastal city, the sewage and industrial discharge points are camouflaged in the creeks spread across the city and which then go on to finally meet the sea. The pollution may simply go unnoticed in this case (Bansal 2017). The context would be very different for rivers like the Ganga and Yamuna which flow through multiple states and cities. No action plan can succeed without strict monitoring and enforcement of the actions. Punishment to the defaulters can act as a deterrent and can also generate fear amongst the other non-complying entities. The NGT Act has allowed for much higher fines and punishment as compared to environmental laws. 

We already have the example of air action plans for critically polluted cities in the early 2000s that had led to improvements in air quality till the plans were regularly monitored by the Environment Pollution (Prevention and Control) Authority (EPCA) constituted by the Supreme Court. The cities went back to their previous status immediately after the monitoring became relaxed. Care needs to be taken to ensure that river rejuvenation plans should not meet the same fate. Making of action plans, without sincere and sustained implementation, vigilant monitoring and strict enforcement is not going to improve the river water quality.