Article co-authored by Dr. Armin Rosencranz and Dushyant Kishan Kaul on "Strong order or strong action?" - The Statesman

March 03, 2017 | Dr. Armin Rosencranz and Dushyant Kishan Kaul

The Supreme Court on 22 February lashed out at polluting industries, giving them a three-month ultimatum to install Primary Effluent Treatment Plants (PETP’s). Tackling the issue of river pollution, this order came in an effort to prevent untreated wastes from being discharged into water bodies. A failure to do so would lead to the shutting down of these non-compliant industries.

A bench headed by Chief Justice J. S Khehar issued stern directions to the concerned state pollution control boards to issue a common notice to all industries and have proper mechanisms to treat effluvia. In fact, directions of a similar nature were issued to set up sewerage treatment plants (STPs) for other types of wastes as well within the same time span. The state boards and environmental secretaries have been entrusted with the task of assessing all units and monitoring the implementation post this three-month period.
This order carries some weight as Justice D.Y Chandrachud and Justice S.K. Kaul said that defaulting industries would lose their supply from electricity distribution companies if they fail to abide by its terms. This seems to be an appropriate threat issued by the Court to ensure that adherence to norms would not just be empty promises by polluting industries. While some industries like Dabur and Bajaj Auto assured the Court that they had working sewage treatment plants, the majority of the units are currently operating with impunity.
The PIL was filed by an NGO named Paryavaran Suraksha Samiti in 2012 on the issue of pollution in water bodies, including ground water and seawater. The petition had sought directions from the Court to curb the “massive” industrial pollution that was well beyond the prescribed limits. It said that the livelihood of millions of people as well as of flora and fauna have been endangered by this pollution. It was also argued that effluents in excess of norms should not be allowed to enter water bodies.
The Court -- though initially seeking an explanation from Gujarat -- later widened the scope of the matter by issuing a notice to the Ministry of Environment and Forests (MoEF), the Central Pollution Control Board (CPCB) and 19 state governments in January this year and directed them to furnish affidavits.
Even though the PIL was disposed of, the order signaled a long-term goal given to the government too and not just private industries when it said that the state governments as well as private industrial units must set up Common Effluent Treatment Plants (CETPs) within three years of acquiring the land.
In addition, the State Pollution Boards will also conduct the “online real time continuous monitoring process” to treat wastes and to display the emission levels on public portals.  The findings will then be passed on to the Central Ground Water Authority for evaluation after which they shall present the same to the National Green Tribunal (NGT). The prospect of the NGT dealing with the issue has been viewed as a positive step as the tribunal has had a better implementation record than the Supreme Court at imposing large damages in civil law matters.
Furthermore, while discussing the constitutional provisions with regard to waste management, sanitation and public health, the Court said that municipal authorities may also levy an impost from the users, but only if they do not face a financial predicament in complying. In case it was not done, the state governments will be responsible for setting up these plants and were asked to bear all costs.
However, the Supreme Court gave quite a lot of time to the concerned authorities to set up zero liquid discharge (ZLD) plants. This system has been seen as an environmentally sound and sustainable alternative and was recommended by the Central government itself in the Ganga matter. What is a cause of concern is that courts have been slow in getting this system functional. The setting up of the ZLD plants will happen six months after the first round of CETPs are in operation.
The statistics produced have displayed the alarming condition of rivers in India. For instance, the CPCB study in 2015 revealed that at least 302 river stretches had high levels of Biological Oxygen Demand, a key measure of organic pollution. The statistics also point towards the fact that for the amount of sewage that is generated annually, the treatment capacity covers only half that amount. These shocking figures have put further pressure on the highest court in the country to address this drastic situation.
While many have praised the order, the Court has merely been more strident in its language. This sturdy approach can be ascribed to the Court’s sudden ambition of changing public perception, when it has effectively done nothing for almost three decades. The bench clearly said, “It is an important issue. If the country does not act now, it can never be retrieved.” Though the state governments will carry out the inspections, the Court criticised them for their inaction all this time, by saying, “You (governments) can see everything else but not how people are suffering.” 
While the order can be seen as a firm stand adopted by the highest court in the country, one ought to recall that a crackdown on defaulters has been done in the past without reaping significant results. The apex court has been remarkably ineffective in implementing such orders. The three-month period provided in this case give the impression that the Court will close industries that do not obey this order.
Only if the judiciary consciously decides to depart from its past practice, and not merely use strong language to express its disapproval can one hope to save the water bodies vital to the nation.
The writers are, respectively, professor of law and a student at the Jindal Global Law School, Sonipat.