The PIL regarding Illegal Mining in River Ravi was filed by Ankur Sharma in public interest for the enforcement of Fundamental Rights of the citizens under Articles 14, 19 and 21, highlighting the abuse of official position and violation of Articles 48-A and 51-A(g) by issuing Mining Leases/Quarrying Permits under the J&K Minor Mineral Concession Rules, 1962 and granting Consent Orders to Thirty One Stone Crushers in a concentrated zone near thickly populated areas, which has resulted in the destruction of Environment, Ecology, loss of public property as well as of human and animal life especially in and around River Ravi in the State of Jammu & Kashmir.
The petitioner seeks relief for such injury caused or likely to be caused to the public in respect of illegal, excessive, deep and unscientific mining of minor minerals being carried upon in River Ravi in the State of Jammu and Kashmir. The inaction of the State of Jammu and Kashmir is leading to increased incidences of environmental degradation which is posing a serious threat to the life of affected citizens. Excessive and illegal mining in River Ravi has led to the reduction in water table, pollution of drinking water, damage to the agricultural fields and crops of farmers of villages Jarai, Bhagthali and Gandyal and deterioration of the quality of air people breathe.
Grounds for moving High Court:
The Illegal Mining apart from destroying the river bed of river Ravi and its embankments is also resulting into Air, Water and Noise pollution which is seriously affecting the health and safety of living beings. The residents of the adjoining areas are exposed to respiratory and other water related problems which may be caused due to air and water pollution. Deep digging of the river bed beyond permissible limits and destruction of embankments has resulted in the lowering of the water table and is adversely affecting the crops raised by the farmers in the nearby villages namely Bhagthali, Jarai, and Gandyal etc.
The excessive mining in river Ravi is a threat to bridges, river banks and nearby structures. It is also causing degradation of river Ravi, which is leading to bank erosion and depletion of bed material which is further resulting in deepening of the river at certain places posing a threat to commuters. It may also result in the destruction of aquatic and riparian habitats and the other effects include bed degradation, bed coarsening, undercutting and collapse of river banks, loss of adjacent lands, upstream and downstream erosion, reduced water quality, lowered water tables and channel instability.
Excessive mining in river Ravi is also generating extra vehicle traffic which is negatively impairing the environment and the access roads, cross riparian areas are also getting affected. The poorly planned stockpiling and uncontrolled dumping of overburden and chemical/fuel spills is resulting into reduced water quality for downstream users, and poisoning of aquatic life. Mining which leads to the removal of channel substrate, resuspension of streambed sediment, clearance of vegetation and stockpiling on the streambed may have effects like direct loss of stream reserve habitat, disturbance of species attached to streambed deposits, reduced light penetration, reduced primary production and reduced feeding opportunities.
This illegal, unscientific, unorganized and excessive mining going on in the entire state of Jammu & Kashmir in general and river Ravi in particular, is against the concept of sustainable development. The regulatory inaction and legislative inertia has caused erosion on the environmental front. This further poses a challenge to ecological security and impairs social equity. In practice, environmental degradation leads to poverty and distorted development. The principle of sustainable development is considered as a basis for balancing ecological imperatives with developmental goals and the same may not be allowed to be trumping public interest.
Industrial growth if sought to be achieved by reckless mining resulting in loss of life, loss of property, loss of amenities like water supply and creating of ecological imbalance, then there may ultimately be no real economic growth and no real development. Development must be in harmony with the environment.
The theory of intergenerational equity stipulates that all generations have an equal place in relation to the natural system and there is no basis for preferring the present generation over future generations in their use of the planet. The grant of license to the present generation to exploit the natural and cultural resources at the expense of the well-being of the future generations would contradict the purposes of United Nation’s Charter and the International Human Rights Documents.
The Air, Water, Noise and Soil pollution caused due to excessive and unscientific mining in River Ravi, is leading to environmental degradation, and is thus a violation of Right to life enshrined under Article 21 of the Constitution of India. This Hon’ble court has recognised several unarticulated liberties implied by Article 21 and has ruled that Right to Life and Personal Liberty includes Right to Wholesome Environment and Right to Livelihood of people, which means clear, hygienic, unpolluted environment leading to a life of dignity. The Right to Life includes all attributes of life and the Supreme Court in a catena of cases has termed Article 21 as Right to Environment. Terming pollution caused by the chemical industries as a violation of Right to Life enshrined under Article 21, The Supreme Court in India Council for Enviro-Legal Action V/s. Union of India AIR 1996 SC 1446 observed:
“If this Court finds that the said authorities have not taken the action required of them by law and that their inaction is jeopardizing the right to life of the citizens of this country or of any section thereof, it is the duty of this Court to intervene. If it is found that the respondents are flouting the provisions of law and the directions and orders issued by the lawful authorities, this Court can certainly make appropriate directions to ensure compliance with law and lawful directions made there-under. This is a social action litigation on behalf of the villagers of Bichhri whose right to life, as elucidated by this Court in several decisions, is invaded and seriously infringed by the respondents as is established by the various Reports of the experts called for, and filed before, this Court. If an industry is established without obtaining the requisite permission and clearances and if the industry is continued to be run in blatant disregard of law to the detriment of life and liberty of the citizens living in the vicinity, can it be suggested with any modicum of reasonableness that this Court has no power to intervene and protect the fundamental right to life and liberty of the citizens of this country. The answer, in our opinion, is self-evident.”
The excessive and unscientific mining causing environmental degradation is violating Article 14 of the Constitution of India which ensures equality before the law and protects a person against arbitrary or unreasonable state actions. Article 14 has been invoked in cases which involve indiscriminate grant of mining leases and the unchecked and unscientific exploitation of the mines of the leases. Excessive mining has a far reaching and lasting impact on natural wealth and the resources of the country and of the local population. The state Government has granted the permission without adequate consideration of environmental impact which amounts to violation of Article 14. Leases without due regard to environmental impacts and to the life, liberty and property of the citizens deserve intervention by the courts as such action of the Government is arbitrary and hence involves a negation of equality. A Government decision that fails to take into account relevant considerations affecting the environment is invalid. In Kasturi Lal Lakshmi Reddy v. State of J And K (1980) 4 SCC 1, Bhagwati J. speaking for the Court observed:
“14. Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid. It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest”
The excessive and unscientific mining causing environmental degradation impairs Article 19(1)(a) of the Constitution of India. Under Article 19(1)(a) read with Article 21 of the Constitution, the citizens have a right to decent environment, a right to live peacefully, right to sleep at night, to have right to leisure with all necessary ingredients of the right to life guaranteed under Article 21 of the Constitution. Noise produced by concentration of Thirty One Stone Crushers offends the citizen’s right guaranteed under Article 19(1)(a) and Article 21 of the Constitution.
That Article 19(1) (g) is subject to reasonable restrictions under Article 19(6) of the Constitution and thus, environmental interests from the hazards of any trade or business can be protected. One cannot carry on the business in a manner by which the business activity becomes a health hazard to the entire society. The excessive and unscientific mining causing environmental degradation attracts the application of Article 19(6) against the violators. In Vellore Citizen’s Welfare Forum V/s. Union of India [1996 (5) SCC 647] the Apex Court observed:
“It is no doubt correct that the leather industry in India has become a major foreign exchange earner and at present Tamil Nadu is the leading exporter of finished leather accounting for approximately 80% of the country’s export. Though the leather industry is of vital importance to the country as it generates foreign exchange and provides employment avenues it has no right to destroy the ecology, degrade the environment and pose as a health hazard. It cannot be permitted to expand or even to continue with the present production unless it tackles by itself the problem of pollution created by the said industry.”
That the excessive and unscientific mining causing environmental degradation violates Article 48A of the Constitution of India. This Article reads as follows:
“The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”
Article 48Arequires the state to adopt both ‘Protectionist’ as well as ‘Improvinistic’ policy. Protectionist policy includes like putting a ban on those things which lead to environmental degradation whereas, Improvinistic policy refers to some alternative that may be used for the improvement of the environment. Article 48A is a constitutional pointer to the state not only to protect but also to improve the environment and failure to abide by the pointer is nothing short of a betrayal of the fundamental law which the state is bound to uphold. In Sachidanand Pandey V/s. State of West Bengal AIR 1987 SC 1109 the Hon’ble Supreme Court pointed out that:
“Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Art. 48 A of the Constitution the Directive Principle which enjoins that “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country, “and Art. 51A (g) which proclaims it to be the fundamental duty of every citizen of India “to protect and improve the natural environment including forest, lakes, rivers and wild life, and to have compassion for living creatures.” When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is matter for the policy making authority.”
That the excessive and unscientific mining causing environmental degradation also invokes the application of Article 51A (g) of the Constitution. This article reads as under:
“It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.”
Article 51A(g) gives a right to the citizens to move the court for the enforcement of the duty cast on state, state instrumentalities, agencies, departments, local bodies and statutory authorities created under the particular law of the state. In view of Articles 48A and 51A(g), it is clear that protection of environment is not only the duty of every citizen but, it is also the obligation of the state and all other state organs including courts.
Preamble to the Constitution declares India to be a Socialist Republic. This necessarily follows that social problems are given priority over individual problems. Article 38 of the Constitution ensures a social order for the welfare of the people, which can be obtained by an unpolluted and clean environment only. In Mumbai Kamgar Sabha V/s. Abdulbhai Faizullabhai AIR 1976 SC 1455 the Supreme Court held that when two judicial choices are available, the constitution in conformity with the social philosophy of part IV has preference. The court observed:
“Statutory interpretation, in the creative Indian context, may look for light to the lodestar of Part IV of the Constitution e.g., Arts. 39(a) and (c) and Art. 43. Where two judicial choices are available, the construction in conformity with the social philosophy of Part IV has preference.”
The excessive and unscientific mining causing environmental degradation is a social problem which needs to be banned.
Excessive and unscientific mining causing environmental degradation is a fit case for the application of ‘Precautionary Principle’ contained in the Principle 11 of the World Charter for Nature adopted on 28th October 1982 by the United Nations General Assembly (UNGA) to which India is a signatory. This principle ensures that a substance or activity posing a threat to the environment is prevented from adversely affecting it, even if there is no conclusive scientific proof linking that particular substance or activity to the environmental damage. The word ‘substance’ and ‘activity’ imply substance or activity introduced as a result of human intervention. This principle envisages that the State and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation. When there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The onus of proof is on the actor or the developer to show that his or her action is environmentally benign. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by justified concern or risk potential. The Supreme Court in Vellore Citizen’s Forum V/s. Union of India [1996 (5) SCC 647] observed:
“The precautionary principle and the polluter pays principle have been accepted as part of the law of the land.”
Kuldip Singh, J. after referring to the principles evolved in various international Conferences and to the concept of Sustainable Development stated:
“the Precautionary Principle, the Polluter-Pays Principle and the special concept of Onus of Proof have now emerged and govern the law in our country too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the Water Act, 1974 and other statutes, including the Environment(Protection) Act, 1986, these concepts are already implied.”
Excessive and unscientific mining causing environmental degradation attracts the application of ‘Polluter Pays Principle’ recognised by the Apex Court in a catena of cases. The absolute liability under this principle for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Thus it includes ‘Environmental’ as well as ‘Direct’ costs to people and property. It is not the role of the government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the tax payers. The Apex court in Vellore Citizen’s Forum V/s. Union of India [1996 (5) SCC 647] observed:
” ‘The Polluter Pays’ principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action vs. Union of India J.T. 1996 (2) 196. The Court observed, “We are of the opinion that any principle evolved in this ‘behalf should be simple practical and suited to the conditions obtaining in this country”.
The Court ruled that “Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The “Polluter Pays” principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.”
Excessive and unscientific mining causing environmental degradation attracts the application of ‘Public Trust Doctrine’ recognised by the Supreme Court again in a catena of cases. It enjoins upon the government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public and the property must be maintained for particular types of uses. Excessive and unscientific mining with the concentration of 31 stone crushers in a limited stretch between Lakhanpur and Jarai may not be said as property maintained for a reasonable use. The destruction of the river and the attending environment is restricting the citizens to enjoy this gift of nature which otherwise should have been freely available to everyone irrespective of the status in life. The State as trustee is under a legal duty to protect the natural resources. The court in M.C Mehta V/s. Kamal Nath 1997 (1) SCC 388 recognising the application of Public Trust Doctrine in the Indian Environmental Jurisprudence observed:
“The Public Trust Doctrine primarily rests on the principle that certain resources like air sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.”
In cases of excessive and unscientific mining causing environmental degradation the Apex can refer scientific and technical aspects for investigation and opinions to statutory expert bodies having combination of both judicial and technical expertise in such matter. In A.P Pollution Control Board V/s. Prof. M.V Nayudu AIR 1999 SC 812 it was held:
“With a view to ensure that there is neither danger to environment nor to ecology and at the same time ensuring sustainable development, this Court in our view, can refer scientific and technical aspects for investigation and opinion to expert bodies such as the Appellate Authority under the National Environmental Appellate Authority Act, 1997.”
All the State Governments and Union Territories are required to take immediate steps to frame necessary Minor Mineral Rules under section 15 of the Mines and Minerals (Development and Regulation) Act, 1957. The State of Jammu and Kashmir has failed to notify the said rules till date. In Deepak Kumar v. State of Haryana, (2012) 4 SCC 629 the Hon’ble Supreme Court observed:
“18. Central Government also should take steps to bring into force the Minor Minerals Conservation and Development Rules 2010 at the earliest. State Governments and UTs also should take immediate steps to frame necessary rules under 27 Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its Report of March 2010 and model guidelines framed by the Ministry of Mines, Govt. of India. Communicate the copy of this order to the MoEF, Secretary, Ministry of Mines, New Delhi, Ministry of Water Resources, Central Government Water Authority, the Chief Secretaries of the respective States and Union Territories, who would circulate this order to the concerned Departments.”