The Taj Mahal, an ivory-white marble mausoleum, is acclaimed to be one of the most priceless national monuments, of surpassing beauty and worth, a glorious tribute to man’s achievement in Architecture and Engineering. However, the Taj is threatened with deterioration and damage not only by the traditional causes of decay, but also by changing social and economic conditions which exacerbate the situation. The Taj, a monument of international repute, is on its way to degradation due to atmospheric pollution. The degradation of the Taj Mahal led M.C. Mehta, an environmentalist and a public interest attorney to file a public interest litigation before the Supreme Court in 1984. The petitioner sought appropriate directions to authorities concerned to take immediate steps to stop air pollution in the Taj Trapezium Zone and save the Taj Mahal.
Facts of the case:
The ‘Taj Trapezium Zone’ (TTZ) referred to in the case is a 10,400 sq.km trapezium-shaped area covering the five districts of the Agra region.
According to the petitioner, the foundries, chemical/hazardous industries and the refinery at Mathura are the major sources of pollution in Agra Region as stated in the report of the Central Pollution Control Board. The Sulphur Dioxide emitted by the Mathura Refinery and other industries when combined with Oxygen with the help of moisture in the atmosphere forms sulphuric acid also called “Acid rain” which has a corroding effect on the gleaming white marble. Industrial emissions, brick-kilns, vehicular traffic and generator-sets are principally responsible for polluting the ambient air around Taj Trapezium Zone (TTZ). The petitioner averred that the white marble has yellowed and blackened in places and the decay is more apparent inside.
In this case, the Supreme Court examined several reports presented by different stakeholders. The report by the Varadharajan Committee called “Report on Environmental Impact of Mathura Refinery” published in 1978 was examined. The report concluded that the sources of pollution in the Agra region were all coal users. The Committee recommended the relocation of existing small industries and underscored the use of clean technologies.
The National Environment Engineering Research Institute (NEERI) gave an “Overview Report” in 1990 observing that there was high impact of the air quality on the Taj due to the rapid industrial development of Agra-Mathura region resulting in acidic emissions into the atmosphere at an alarming rate.
As a result of this petition, the Hon’ble Supreme Court of India passed a series of orders from 1993. On 8-1-1993, the Supreme court directed the U.P. Pollution Control Board (the Board) to get a survey done of the area and prepare a list of all the industries and foundries which are the sources of pollution in the area. The Board accordingly filed an affidavit dated 3-5-1993 reporting the findings of its survey. It categorized the industries and reported that there were total of 511 industries in the given area. Pursuant to the Court’s order dated 8-1-1993, notices were issued to all these industries to install anti-pollution mechanisms.
NEERI in its report submitted in October 1993 recommended the use of natural gas as an alternative. The Court by the order dated 11-2-1994 asked NEERI to examine the possibility of using Propane or any other safe fuel instead of coal/coke by the industries in the TTZ.
The Court on 11-4-1994 examined the NEERI Report dated July 1993 which found that the industries in the TTZ were the main sources of pollution causing damage to the Taj. Pursuant to the Order dated 11-4-1994, the MoEF appointed Varadharajan Committee submitted its report regarding preservation of Taj Mahal and Agra monuments in two volumes. The Supreme Court examined the NEERI Report dated July 1993 and the Varadharajan Committee Report, both of which, suggested the relocation of the polluting industries situated in the Taj Trapezium to an area outside the TTZ. The Supreme Court directed the MoEF to examine both the reports and indicate the measures the Ministry intended to take to preserve the Taj Mahal. The Court subsequently passed an order indicating that in a phased manner, the industries located in Agra be relocated out of TTZ.
The Supreme Court on 14-3-1996 directed the GAIL, Indian Oil Corporation (IOC) and the U.P. State Industrial Development Corporation to identify industrial areas outside the TTZ which would be connected with the gas supply network. The Court held that those industries which were not in a position to get gas connections or which were otherwise polluting may have to be relocated outside the TTZ.
There were four NEERI reports, two Varadharajan reports and several reports by the Board which were placed on record before the Hon’ble Court. After examining all the reports and taking into consideration other material on the record, the Supreme Court held that the industries in the TTZ were active contributors to the air pollution in the said area. NEERI and Varadharajan Reports had specifically recommended the relocation of industries from the TTZ.
The final judgment was delivered on 30th December 1996 by a Division Bench comprising of Justice Kuldip Singh and Justice Faizan Uddin.
The Court applied the principle of Sustainable Development in this case observing that there needs to be a balance between economic development and environmental protection. The Court indicated that relocation of the industries from TTZ was to be resorted to only if Natural Gas was not acceptable/available by/to the industries as a substitute for coke/coal.
Although the Board had placed on record a list of 510 industries which were responsible for air pollution, the Supreme Court confined the order only to 292 industries located and operating in Agra. The industries operating in TTZ which were given gas connections need not relocate.
The Court reaffirmed the “Precautionary Principle” and “Polluter Pays Principle” laid down in Vellore Citizens Welfare Forum v. Union of India . The ‘Polluter Pays Principle’ has been held to be a sound principle by the Supreme Court in Indian Council for Enviro-Legal Action vs. Union of India. Remediation of the damaged environment is a part of the procedure of ‘Sustainable Development’ and as such the polluter would be liable to compensate the individual sufferers as well as the cost of reversing the damaged ecology.
The Court relied upon Article 21 of the Constitution of India which guarantees protection of life and personal liberty and also upon directive principles of state policy and fundamental duties enshrined under Articles 47, 48-A and 51-A (g) of the Constitution. Apart from the constitutional mandate to protect and improve the environment, the Court also relied upon several statutory enactments such as The Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. In view of the above-mentioned constitutional and statutory provisions, the Court was of the view that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the land.
Based on the reports of various authorities mentioned in this judgment, Supreme Court had reached the finding that the emissions generated by the coke/coal consuming industries were air-pollutants and had damaging effect on the Taj and also to the people living in the TTZ.
In view of the precautionary principle relied upon by the Court, the environmental measures should anticipate, avert and attack the causes of environmental degradation. The “onus of proof” was on an industry to show that its operation with the aid of coke or coal was environmentally benign. It was, rather, proved beyond uncertainty that the emissions generated by the use of coke/coal by the industries in TTZ were the main polluters of the ambient air.
The court held that the above-mentioned 292 industries shall as per the schedule indicated change-over to natural gas as an industrial-fuel and the industries which were not in a position to get gas connections for any reason would stop functioning with the aid of coke/coal in the TTZ and may relocate themselves as per the orders given by the Supreme Court.
In this landmark judgement, the Supreme Court espoused the cause of protection of national heritages such as the Taj Mahal from deterioration and damage due to atmospheric and environmental pollution. The Court based its judgement on the Precautionary Principle and Polluter Pays Principle, thereby, making them an integral part of the environmental jurisprudence of our country. The Supreme Court has assumed a proactive role and made liberal use of the public interest litigation in protecting fundamental environmental interests. The judicial activism exercised by the Supreme Court for protection of the environment in this case demonstrates the increasing significance of environmental litigation in India.
– Case note prepared by Dharma Teja & Uday Bhaskar