The Central Vista Judgment and the Supreme Court's Blind Spot on Environment Law

The apex court was satisfied with pollution mitigation measures even though the principle of ‘Environmental Rule of Law’ requires that the state not permit further deterioration unless ‘strong justifications for a retrogressive measure are provided’.

The Supreme Court delivered its judgment in the Central Vista case last month. The petitioners challenged several aspects of the project: the hasty change of land use under the Delhi Development Act, the lack of heritage and architectural considerations and the environmental clearances granted in the absence of scientific studies to assess the environmental costs of the project.

By a majority of 2:1, the Supreme Court upheld the project in its entirety. The majority judgment reveals blind spots in the reasoning and several instances of blinders being put on.

In the writ petitions challenging the environmental clearances, the judgment found the project environmentally sound and upheld the clearances. The court was satisfied with the mitigation measures identified by the Central Public Works Department (CPWD), the project proponent. It added that so long as the trees are protected and the pollution levels are controlled by installing permanent smog towers, the ‘environment is not a hurdle for development’.

India’s environmental targets are translated in environmental laws and procedures that are supported by globally recognised principles to promote the objective of environmental conservation. The petitioners demonstrated that the challenge to the Central Vista project goes far beyond pollution mitigation. The project is in violation of the procedures, principles and objectives of environmental law.

But the entirety of the petitioners’ challenge was reduced to waste management, protection of trees and installation of smog towers. This is how the court sees the environment and environmental law. It equates environmental concerns with pollution mitigation. It limits adherence to environmental law and its procedures to apparently restitutionary directions such as safe transplantation of affected trees.

Also read: The Centre’s New ‘Transit Oriented Development’ Policy Will Wreck Delhi’s Environment

The projects and activities requiring environmental clearance are set out under the schedule to the Environment Impact Assessment (EIA) Notification (2006). Projects are categorised on the basis of the nature of the activity proposed, its physical scope and corresponding environmental conditions required.

The information required is disclosed in Form 1/Form1-A in the application for clearance. The information disclosed must be honest and complete to assess the real environmental impact. When this information is false or misrepresented, the basis of the exercise is compromised. This is why the EIA Notification mandates revocation of a clearance granted on the basis of false and misrepresented information.

CPWD’s application for environmental clearance was replete with false statements and misrepresentations with no satisfactory studies to assess the short-term and long-term impact of the project on the environment. It was not in dispute that the CPWD’s application for environmental clearance only disclosed one part of the project regarding the parliament building, salmon-slicing other parts of the comprehensive overhaul of the Central Vista. The reduced physical scope revealed in the application ensured that the project became eligible for a lower standard of environmental scrutiny compared to what was necessary for the real, larger physical expanse of the project.

Statue of Mahatma Gandhi on the premises of the Parliament House during the monsoon session, New Delhi. September 20, 2020. Photo: PTI/Kamal Kishore

The petitioners noted before the court that the project for which clearance was sought was titled ‘Expansion and Renovation of Existing Parliament Building’. However, no element of renovation is disclosed in the application. By CPWD’s own disclosure no study was carried out to ascertain the condition of the parliament building and the changes required.

Fundamental to the principle of the ‘Environmental Rule of Law’ is the principle of ‘non-regression’ that requires that the state does not allow further environmental deterioration unless ‘strong justifications for a retrogressive measure are provided’.

It was pointed out by the petitioners that no alternative sites for the project were considered by the CPWD. The CPWD in its application simply noted that the site was the ‘most appropriate and suitable site.’ The Air Quality Index has set record highs according to the government’s own reports, as the city came to be declared the most polluted capital in the world. Niti Ayog, the ‘premier policy think tank for the Government of India’, published the Composite Water Management Index 2.0 in August 2019.

The report noted the rapidly depleting groundwater sources across the country, and the high water stress faced by the capital, ranking it lowest on the index. The report alerted that the remaining water in the capital is the most poorly managed across the country. The capital was ranked second in the 20 largest water stressed cities across the world.

Also read: Why Uprooting Jamun Trees for the Central Vista Revamp Is a Terrible Idea

Notably, a previous version of the report of June 2018, alerted that Delhi will run out of ground water by 2020. All of these facts were placed on record. The government failed to show why the capital should suffer higher environmental costs, despite its critical state to accommodate the project that is far more grandiose than just repair and renovation, as projected by the government.

The court observed that in matters of planning and development, the government has the sole prerogative regarding the nature, expanse, and timeline of development work. The environment and development are not sworn enemies. The environment cannot be a hurdle for development and a balance between the two is required by implementing mitigation measures.

Article 48-A of the constitution and the preamble to the Environment Protection Act (1986) state, the state must endeavour to ‘protect and improve the environment’. The EIA Notification does not limit itself to “pollution impact assessment”. The notification demands restriction and prohibition of new projects or activities, and the expansion or modernization of existing ones given the potential impacts on human health and the environment.

The judgement notes that the principle of sustainable development is a principle of development. The future generations, it notes, have a right to the environment but also the right to development. The Central Vista project is not a development project. By the definition within the EIA and the government’s own understanding, it is a building and construction project. Neither the objective nor the scope of this project is of the nature which permits the invocation of principles of sustainable development and the right to development, in its support.

A file photo of the Supreme Court of India. Photo: PTI

In 1987, the Bruntland Commission’s report on Environment and Development, Our Common Future, defined sustainable development as development that meets ‘the needs of the present generations without compromising the ability of future generations to meet their own needs.’ The principle of sustainable development protects needs. It addresses social and economic development, poverty alleviation, eradication of food insecurity, and ensuring energy security, amongst others. It does not protect building and construction projects costing nearly a 1000 crore, amidst a pandemic in a crushed economy.

Also read: Interview: SC’s Central Vista Verdict Equates Development With Development Projects

In his book How Much Should a Person Consume, Ramachandra Guha compares the American environmental movement to India’s. Guha discusses economist John Kenneth Galbraith’s work, diagnosing the cause of these blind spots that the court, and indeed all decision makers suffer when they see the environment:

“The American conservation movement…certainly noted the massive exploitation of resources and materials in the post-war period. However, its response was to look for more efficient methods of extraction, for the substitution of one material for another through technological innovation. There was noticeable “selectivity in the conservationist’s approach to material consumption.” For: “(i)f we concerned about our great appetite for materials, it is plausible to seek to increase the supply, or decrease waste, to make better use of the stocks that are available, and to develop substitutes. But what of the appetite itself? Surely this is the ultimate source of the problem. If it continues its geometric course, will it not one day have to be restrained? Yet in the literature of the resource problem this is the forbidden question. Over it hangs nearly a total silence. It is as though, in the discussion of the chance for avoiding automobile accidents, we agree to not make any mention of speed!”

The raison d’etre of environmental law is that natural resources are limited, they are rapidly deteriorating, the environment is polluted beyond its capacity to absorb our exploitative lifestyles and cannot handle more. Any action to utilise anymore resources must be measured against the necessity of such action, as each human activity has a cost on the environment. Each activity is incrementally catastrophic.

The objective of environmental law is not pollution mitigation alone. This is urgent, but only one part of the agenda. Environmental issues cannot be addressed by an approach that allows polluting activities and then suggests minimal mitigation measures to address unmeasured environmental consequences. The law and the state of the environment demand more ambition from the court and the decision makers in the country.

Sugandha Yadav specialises in environment and human rights law and is an advocate practising at the Supreme Court.