Scroll Magazine: Courts Pushing for New Solutions to the Ganga’s Pollutoin
Along fouled Ganga, fresh resolve to make the river clean again
Even late in the year, it is still warm enough in India’s capital to keep the windows open. On the street, taxis and natural gas-fueled tuk-tuks clamour for space in the square by the Opp Mool Chand Metro Station. A poster of the Taj Mahal drapes the wall of a tobacco shop across the street. The view is unobstructed by the smokestacks and huge chemical storage tanks that once populated the banks of the Yamuna River, a tributary of the river Ganga that is close by.
The autorickshaws, the Taj Mahal, and the riverbanks cleared of dangerous industrial facilities have professional standing in MC Mehta’s office. They are wound into the legal work of an exceptional career that, among other successes, forced a fuel switch for India’s public transport vehicles from leaded gasoline to cleaner compressed natural gas. His 1985 case in the Supreme Court removed toxic industries from the Yamuna. Another case, finished in the 1990s, saved the Taj Mahal’s luminous white marble from acid rain.
The Ganga (Ganges) River Basin, headwaters, and tributaries. Credit Kaye LaFond/Circle of Blue.
With each case, and there are hundreds, Mehta also pushed sympathetic jurists and the nation’s highest courts to become India’s only institutions truly dedicated to enforcing environmental and public health statutes. “We have laws in India to protect our people, and our land and water,” said Mehta in an interview. “I was one of the first to use them in the Supreme Court.”
The open window, though, also carries the unmistakable scent of unfinished business – the smell of raw sewage from the Yamuna, one of the Ganga’s largest tributaries, which receives the stinking tide of untreated toilet and manufacturing wastes from New Delhi’s 25 million residents.
The National Green Tribunal, one of three courts in the world formed specifically to decide environmental cases, has quickly built a reputation for courage, fair decisions, and decisive action to enforce India’s environmental law. The Hon. Swatanter Kumar, the court’s chairman (centre) presides over a four-judge panel in November hearing a case on the operations of a coal-fired power plant. Credit Keith Schneider/Circle of Blue
Ganga pollution case still open
In 1985, Mehta brought a suit in the Supreme Court to clean up the Ganga, the Mother River of India, and its tributaries. Despite a long series of court orders to close polluting factories and build wastewater treatment plants, too many directives were ignored by state and national authorities. University and government water quality measurements show that the river is more foul, dangerous, and dirty than ever.
Reports by international organisations reach a similar conclusion. The Ganga, stretching 2,525 kilometres from the Himalayas in northern India to the Bay of Bengal in the east, is one of the planet’s most polluted rivers.
Yet as 2014 came to a close the celebrated lawyer, now 68-years-old, was more encouraged about the prospects for India’s holiest river. “The river is not dead,” he said. “It needs our help. India may be ready now to clean the Ganga.”
There are tangible political, regulatory, and legal clues that lead to Mehta’s wary optimism. In May, and again in August, India’s new prime minister, Narendra Modi, appeared on the banks of the Ganga in Varanasi and promised to clean up the river. “When I see the pitiable condition of the Ganga, I feel pained,” Modi said in May. “But I feel it is Maa Ganga who has decided I have to do something for her. The need of the hour is to restore the glory of the Ganga. Today Maa Ganga is calling us, her children, to make the river clean once again.”
The prime minister appointed a top lieutenant, Uma Bharti, as Minister for Water Resources and renamed the department the Ministry of Water Resources, River Development and Ganga Rejuvenation. In late September, the Modi government committed Rs 510 billion rupees ($US 8.1 billion) in the next five years to stop discharges of untreated sewage and wastewater from 118 of the 222 towns and cities along the river.
In early December, in a second vital step, the Modi government indicated it was prepared to make permanent an indefinite halt in hydropower construction in Uttarakhand. The decision would safeguard water quality and water supply in the three fast-flowing Himalayan rivers that merge to form the Ganga.
Nineteen months ago, a vicious flood along those same rivers in Uttarakhand killed an estimated 30,000 people and wrecked the state’s hydropower industry. A special study commission, ordered into existence by the Supreme Court, issued in April 2014 a report on the causes of the flood. The report recommended shutting down 23 proposed hydropower projects and curtailing construction at others.
In an affidavit filed with the Supreme Court last month, BB Barman, the director of the Ministry of Environment, Forests, and Climate Change, said his agency would abide by the recommendations. “A cradle of civilization, it is a life support system for about half-a-billion people who live in its basin today,” Barman said. “Acknowledging these values of the National River Ganga, the government has accorded the highest priority to rejuvenating it. All along her path anthropogenic interventions have overburdened the flow of the river. The restoration of an aviral and nirmal dhara [clean and continuous flow] of the Ganga has thus become essential immediate steps.”
Between May and December, in the third and arguably the most important step to clean the Ganga, a three-judge panel of the Supreme Court in October transferred part of the decades-old Ganga pollution case, the sections dealing with industrial contamination, to the National Green Tribunal, its dogged sister court.
MC Mehta, the dean of India’s environmental bar, filed suit in India’s Supreme Court in 1985 to clean up the River Ganga. Thirty years later, the river is dirtier than ever, prompting the courts and Prime Minister Narendra Modi to attack the contamination with new investments and a different strategy. Credit Keith Schneider/Circle of Blue.
The NGT, established in 2010 and one of the three national courts in the world exclusively deciding environmental cases, has earned a reputation for judicial courage and clear rulings to stem industrial pollution.
In 2013, the NGT shut down the nation’s sand mines until they complied with sound mining practices and water quality statutes. In 2014, the Tribunal shut down the $675 million coal mining sector in Meghalaya, because of rampant water pollution and mining practices lethal to young miners. It was the first time a state-level fossil fuel industry anywhere in the world had ever been shut for environmental safety reasons.
In handing over a sizeable portion of the Ganga pollution case to NGT, the High Court said it looked to its colleagues to exert the same level of aggressive jurisprudence: to compel industries to stem the tide of chemical and biological pollutants into the Ganga, and to fine and jail executives who were slow to comply.
“We are confident that the tribunal, which has several experts as its members and the advantage of assistance from agencies from outside, will spare no efforts to effectively address all the questions arising out of industrial effluents being discharged into the river,” said the Supreme Court panel in its order.
Corruption, inaction spoil decades of work
Make no mistake. Cleaning the River Ganga will take all of India’s skill.
In 1947, the year it became independent from Great Britain, India was a nation of 344 million residents. The Ganga and its tributaries drain parts of 11 Indian states. The five states along its main stem – Uttarakhand, Uttar Pradesh, Jharkhand, Bihar, and West Bengal – were home to 120 million people.
Today the Ganga and its tributaries support 500 million people, or 40% of India’s 1.27 billion people. Ninety percent of the basin’s waters are used in agriculture, according to government reports. More than 50,000 big and small factories use the river for draining their wastes, much of it untreated.
In his court appearances 30 years ago, MC Mehta argued that the river’s condition was not only a violation of India’s nascent modern water quality statute, it was unconstitutional. Article 21 in India’s 1949 constitution assured “the protection of life”, which the court interpreted as the “right to a healthy life”.
A succession of court orders designed to change national priorities followed:
*On September 9, 1985, industries located on the banks of river Ganga in urban areas were put on notice to stop discharging untreated effluents from their factories.
*On September 22, 1987, 20 tanneries that were working on the banks of Ganga and discharging effluents into the river were shut.
*On December 1, 1988, Ganga Basin municipalities were ordered to set up sewage treatment plants.
*On April 8, 1992, the State Pollution Control Boards of three Ganga River states were ordered to identify the industries discharging effluents and to submit a report.
*On July 23, 1993, a select group of plants were shut down. Others were warned that the same fate awaited them unless they took pollution-control measures.
The river, though, got dirtier. One reason was corruption. An Auditor General report found numerous instances of what it called “unauthorized activities” and financial mismanagement including one state pollution control board member “parking” Rs 10 million “in his own account”.
Another reason is that industries and cities ignored the High Court’s orders. National and state pollution control authorities took few actions to enforce them.
“We regret to say that the intervention and sustained efforts made by us over the past 30 years notwithstanding, no fruitful result has been achieved so far except the shutting down of some of the polluting units,” wrote three justices of the Supreme Court in the October 29, 2014, order transferring the Ganga case to the National Green Tribunal.
“This is largely because while orders have been passed by us their implementation remains in the hands of statutory authorities, which have done practically nothing to effectuate those orders or to take independent steps that would prevent pollution in the river.”
Can the Ganga be cleaned?
Like the Jordan, the Nile, and the Yangtze, the Ganga’s waters sustain India’s religious faith, influence its culture, and mark its history. Millions of Hindu pilgrims gather for prayers along its banks at dawn and dusk, bathe in its filthy water, and cremate the dead in the red flames of hot pyres.
The river’s degradation is more than an insult to national pride. Fecal coliform contamination, and chemical pollution from chromium, mercury, lead, and all manner of chlorinated compounds cause disease and death, according to Indian health agencies.
Piles of garbage stink up India’s grimy cities. Running water and electricity are not available for a third of the country’s 1.27 billion people. Open defecation is practiced by millions of men, women, and children who don’t have access to latrines or toilets. The astonishing state of India’s deterioration prompted Prime Minister Narendra Modi to launch Swachh Bharat, the national Clean India campaign. Credit Keith Schneider/Circle of Blue
India hasn’t ignored the river’s condition. It just has not been capable of summoning the collective national energy to clear the Ganga’s waters. Prime Minister Rajiv Gandhi tried in 1986, months after MC Mehta filed his pollution case, by forming the Ganga Action Plan.
More than Rs 500 billion were spent over 14 years to build 83 sewage transport networks and treatment plants, according to government figures. Most weren’t large enough or sturdy enough to operate well. They were meant to treat under one billion liters (264 million gallons) of the estimated 8.25 billion liters (2 billion gallons) of wastewater that the Ganga’s towns poured into the river daily, according to Central Pollution Board reports.
Newer Ganga cleanup campaigns – the Ganga River Basin Management Plan and the National Mission for Clean Ganga – have so far proved equally ineffective.
Taken as a whole, though, the biggest obstacle for the Ganga cleanup is not the money, tools, and practices, though those are critically significant. Instead, it is whether India has the national spirit and the capacity to summon decades of focused investment and management to ensure that by mid-century Indians can swim, fish, and drink safely from the mother river.
The Ganga’s condition is emblematic of the decades of resource exploitation – and insufficient water and energy infrastructure investment – that have left India’s cities and countryside in dismal condition.
Over 80% of the nation’s rivers are badly polluted, according to national reports. The air in India’s cities, according to the World Health Organization, is among the dirtiest and most dangerous on the planet. Litter carpets roadsides and fields. Piles of garbage stink up India’s grimy cities. Running water and electricity are not available for a third of the country’s 1.27 billion people. Open defecation is practiced by millions of men, women, and children who don’t have access to latrines or toilets.
The astonishing state of India’s deterioration is gut-wrenching proof that the country’s environmental security system is not working.
For years, India’s environment and economy have suffered the twin and destructive insults of conflicted management. On the one hand, it takes years for companies to gain air, water, and land permits, what India calls “clearance,” from state and national regulators. The system, initially intended to foster careful review, has become a perfect generator of payoffs and bribes at every step of the process, according to the November findings of the High Level Commission, a panel charged by the Modi government to suggest regulatory improvements.
“The lasting impression has remained that the Acts and the appurtenant legal instruments have really served only the purpose of a venal administration, at the Centre and the States, to meet rent-seeking propensity at all levels,” said the authors of the report. “This impression has been further strengthened by waves of large scale ‘clearances’, coupled with major delays in approvals in individual cases. It should also be added that our businessmen and entrepreneurs are not all imbued in the principles of rectitude – most are not reluctant, indeed actively seek short-cuts, and are happy to collaboratively pay a ‘price’ to get their projects going; in many instances, arbitrariness means that those who don’t fall in line have to stay out.”
On the other hand, once clearances are issued, enforcement of the nation’s environment and health statutes is spotty at best, and more often does not exist at all. Plant managers that pour raw wastes into India’s water, or blacken the air, are generally left alone. Just about the only laws India’s resource authorities take seriously are those protecting wild animals. Truckers convicted of transporting an improperly chained or poorly fed elephant, for instance, typically face huge fines and long jail sentences.
Though India has spent decades clawing at its landscape for coal, building power plants, installing big hydropower projects in the Himalaya, draining groundwater for endemic grain surpluses, building airports, and encouraging industries of every kind, the country’s development is sliding backwards. Economic growth has slipped to 5% a year, half of the annual rate from the first decade of the century. With four times as many people, India’s $US 2.1 trillion economy is little more than a tenth the size of the American economy. Electricity is in short supply and business-damaging brownouts and blackouts are daily, even hourly events in much of the country.
Prime Minister Modi has made it clear he understands that India’s economic weakness is tied to the nation’s ravaged ecology. Among his first national initiatives was Swachh Bharat, the “Clean India” campaign, to clear messes from India’s streets and countryside. The Swachh Bharat campaign may evolve into a national air and water cleanup program, said Indian business executives.
Though dangerously polluted, the Ganga’s waters sustain India’s religious faith, influence its culture, and mark its history. Millions of Hindu pilgrims gather for prayers along its banks at dawn and dusk, bathe in its filthy water, and cremate the dead in the red flames of hot pyres. Credit Keith Schneider/Circle of Blue
Modi’s reputation as an economic development specialist interested in sustainable goals was made as chief minister of Gujarat, an industrial state that built a portion of its relative prosperity with a sizable solar energy industry. In several speeches in 2014, Modi tried to assure his nation of the value of environmental and economic lessens learned decades ago in the United States and the West. Economic strength is closely tied to a clean environment. “In so far as the context of environment is concerned, the rich Indian tradition clearly stipulates that environment is a natural wealth,” Modi told reporters while visiting the US Congress in September. “No one has the right to exploit it to his advantage. I think if India and the U.S. spread this message together to the whole world, it would be an ideal option to conserve the natural wealth and protect our environment.”
A change in priorities
It took five European nations decades and $50 billion to clean up the Rhine River. India and the 11 states in the Ganga drainage basin say they are prepared to invest in a national cleanup. The decisions and announcements of the last few months – the prime minister’s promise, the Environment Ministry’s hydropower decisions in Uttarakhand, the transfer of responsibilities to the National Green Tribunal – appear to be shifting the nation’s attention to a more rational strategy of building economic strength by securing a premier natural resource.
The shift comes amid a ground-breaking and disputed assessment by the Modi government of the administration of environmental laws in India’s economic development. That assessment, by a High Level Commission appointed by the Modi government, was completed in November and is under review by the Ministry of Environment, Forests, and Climate Change. The report could lead to new permitting agencies and a restructuring of regulatory authority.
The commission’s report proposes to fix India’s broken environmental management program by making a fundamental trade in regulatory principles. In exchange for hastening government review of big resource-threatening projects – mines, power plants, transmission lines, highways, big industrial plants –the commission called for India to establish a credible regulatory regime that enforces environmental law and actively investigates and penalizes violations.
The active steps proposed by the commission are two-fold. The first is to exempt some big project proposals from the citizen involvement and public hearing process required by India’s environmental impact assessment rules. The second is to replace the politically appointed and mostly corrupt national and state Pollution Control Boards, which review and issue permits, with professionally-staffed National and State Environmental Management Agencies. The new agencies would be politically independent, review permit applications with contemporary scientific standards, and issue decisions.
Such a trade in principles and operations also requires a big shift in India’s cultural values, which do not hold enforcement of environmental rules in high regard. Environmental group leaders worry that weakening citizen involvement and public oversight provisions in the law invites more abuses. Industrial executives wonder how replacing the mostly corrupt state pollution control boards with more aggressive national and state environmental management agencies will affect their operations.
Role of the NGT
Four national government institutions are now sworn to the Ganga cleanup – the prime minister’s office, the Ministry of Environment, Forests, and Climate Change, the Supreme Court, and the National Green Tribunal.
Arguably the most important is the tribunal. Thirteen days before the High Court transferred the industrial portions of the Ganga case, the NGT was already at work making its presence felt along the Ganga. Acting on a petition filed by a citizen advocate and a public interest non-profit group, the tribunal fined Simbhaoli Sugar Mill and Distillery in Uttar Pradesh Rs 50 million rupees for repeatedly discharging pollutants into the Ganga, and for violations of water quality statutes.
The tribunal also fined the Gopalji Dairy Rs 2.5 million for similar violations, which were damaging habitat for turtles and rare freshwater Ganga river dolphins.
The Ganga flows much cleaner in the Himalayan foothills. In early December, the Modi government indicated it was prepared to make permanent an indefinite halt in hydro-power construction in Uttarakhand. The decision would safeguard water quality and water supply in the three fast-flowing Himalayan rivers that merge to form the Ganga. Credit Keith Schneider/Circle of Blue
Behind the stiff penalties, however, runs a current of unease. Ever since Prime Minister Modi was elected, the leaders of the country’s environmental non-profits have worried that their pro-development leader was determined to weaken the National Green Tribunal’s authority.
But Ritwick Dutta, a prominent environmental lawyer in New Delhi, said he did not expect the Modi government to meddle with the NGT. “He needs a strong court to do what is needed on the Ganga,” Dutta said. Prakash Javadekar, the former national spokesperson for the Bharatiya Janata Party, and the Minister of Environment, Forests, and Climate change, said as much in responding to questions in November from Parliament about the influence of the Tribunal. Javadekar said neither he nor the prime minister would change the NGT’s role or authority.
On October 19, in ceremonies honoring the NGT’s fourth anniversary, Javadekar and Swatanter Kumar, the NGT’s chief judge and chairperson, assured the gathered audience that the Tribunal’s work was focused on pinning liability on polluters, settling disputes as a path to setting better environmental standards, and limiting pollution.
When his turn to speak came, Javadekar stressed the excellence of the Tribunal in executing its mission and the importance of ensuring compliance with the law as the pillar of India’s governance. “We exist in an accountable system. Environment protection cannot be achieved by shutting off. We need clarity of rules and legal positions and compliance. So we tell violaters, rectify. If not, then punishment. If that fails, then close,” Javadekar said. “In four years, the NGT is not just a building, it is an institution, and institutions are needed to create a system that works.”
On the Ganga, that system is being tested like never before.
In 2013, the National Green Tribunal shut down the nation’s sand mines until they complied with sound mining practices and water quality statutes. Here, sand from a mine pollutes a river in Meghalaya. Credit Keith Schneider/Circle of Blue
“There is no gainsaying that river Ganga has for the people of this country great significance not only in the spiritual or mythological sense but also in material terms for it sustains millions who are settled on its bank or eke out their living by tilling lands that are fertilized by its water,” three justices of the Supreme Court wrote in the October 29, 2014, order transferring a portion of the Ganga case to the National Green Tribunal. “Despite the experience of the past we have not lost hope, for the Central Government appears to be resolute in its efforts to ensure that the mission of cleaning the holy river is carried forward and accomplished. How far will the Government’s renewed zeal make any difference on the ground is for anyone to guess. What is, however, clear is that if the mission has to succeed, all those concerned will have to rededicate themselves to the accomplishment of the cause that will not only cleanse the holy river but comfort millions of souls that are distressed by the fetid in what is believed to be so holy and pure that a dip in its water cleanses all sins.”
The lights of store fronts switched on in India’s capital and the clamor of the streets grew more intense when MC Mehta, the renowned lawyer, summed up the challenge this way: “We’ve been involved in this case for 30 years,” he said. “I hope it takes less time than that to finish the work.”
This article has been republished with the permission of the author.