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Report No. 186

The reason for scientific inaccuracies can be summarized as follows:

The inadequacies of science result from identification of adverse effects of a hazard and then working backwards to find the causes. Secondly, clinical tests are performed, particularly where toxins are involved, on animals and not on humans,- that is to say, are based on animal studies or short term cell-testing. Thirdly, conclusions based on epidemiological studies are flawed by the scientists' inability to control or even accurately assess past exposure of the subjects.

Moreover, these studies do not permit the scientists to isolate the effects of the substance of concern. The latency period of many carcinogens and the toxins exacerbates problems of later interpretation. The timing between exposure and observable effect creates intolerable delays before regulation occurs' (see Alyson C. Flournay: Scientific Uncertainty in Protective Environmental Decision-Making' (Vol 15, 1991. Harv. Environmental Law Rev. p 327 at pp 333-335).

From the above survey of views, it is quite clear that the opinions as to science which may be placed before the Court keep the Judge always guessing whether to accept the fears expressed by an affected party or to accept the assurances given by a polluter.

In an earlier case, namely, Vincent vs. Union of India: (AIR 1987 SC 990), a direction was sought in public interest, for banning import, manufacture, sale and distribution of certain drugs as recommended by the Drugs Consultative Committee. In this case the Supreme Court did not think of referring the matter to an independent scientific body but felt compelled to accept the Committee's Report. It said:

Having regard to the magnitude, complexity and technical nature of the enquiry involved in the matter and keeping in view the farreaching implications of the total ban of certain medicines for which the petitioner has prayed, we must at the outset clearly indicate that a judicial proceeding of the nature initiated is not an appropriate one for determination of such matters."

The Court felt that once the experts had approved or disapproved the drugs, the Court will not go into the correctness of their decision.

But, in a latter case, the Supreme Court made an effort to refer the issues to an independent committee of experts. In Dr. Shivrao vs. Union of India: AIR 1988 SC 953, 7500 cartons (200 MT) of Irish Butter were imported into India under the EEC Grants-in-Aid for Operation Flood Programme and supplied to Greater Bombay. The use of the imported 14butter was challenged on the ground that the butter was contaminated by nuclear fallout.

The Bombay High Court dismissed the writ petition relying on the report of the Atomic Energy Regulatory Board, a statutory body. The Report however referred to 'permissible limits'. Fortunately, when the matter came to the Supreme Court, the Court 'thought it desirable' to appoint a committee of three experts (1) Prof. M.G.K. Menon, (2) Dr. P.K. Iyengar and (3) G.V.K. Rao to go into the correctness of the so called 'permissible limits' and to give its report on the following question:

Whether milk and dairy products and other food products containing man-made radio-nuclides within permissible levels by the Atomic Energy Regulatory Board on 27th August, 1987, are safe and /or, harmless for human consumption."

The Committee of Experts gave a Report stating that the 'permissible limits' laid down by the Atomic Energy Regulatory Board were arrived at after due consideration of 'ICRP limits for the General Population', that the said Board had, in fact, allowed a further safety margin and that the levels fixed were 'safe and harmless'. The Court accepted the Report of Experts and confirmed the dismissal of the writ petition.

In like manner, in A.P. Pollution Control Board vs. M.V. Nayudu 1999(2) SCC 718, the Court proceeded to have the claims of the party tested by experts. There the question was whether the industry was a hazardous one and whether, in case it became operational, the chemical ingredients produced would sooner or later percolate into the substratum of the earth, get mixed up with the underground waters which flow into huge lakes 15which are the main sources of drinking water to two metro cities.

The issue was whether the oil derivatives such as hydrogenated castor oil, 12- hydroxystearic acid, dehydrated castor oil, methylated 12-HAS, DCO, fatty acids and by-products like glycerine, spent bleaching earth, carbon and spent nickel catalyst would enter the underground water streams flowing into the water lakes. Nickel, which was part of the residue, it was common ground, would be poisonous, if it percolated into the lakes.

The industry filed a report of an expert which was accepted by the appellate authority constituted under section 28 of the Water Act, 1974 manned by a retired High Court Judge. The learned Judge, basing his decision on the opinion of a single scientist which was produced by the industry, came to the conclusion that if the industry became operational, it would not pose any hazard to the drinking water. This decision was affirmed by the High Court in writ jurisdiction under Article 226 of the Constitution of India.

The High Court too simply went by the opinion of the expert scientist which was produced by the industry. But the Supreme Court felt that the opinion of the scientist was not tested or scrutinized by any expert body and required it to be thoroughly examined. The Supreme Court sought expert advice from the National Environmental Appellate Authority (NEAA), which consisted of a retired Judge of the Supreme Court and other experts. The NEAA was permitted to take evidence and obtain technical help from other scientific institutions.

The NEAA visited the site, took oral evidence, examined various technical aspects and gave an elaborate report, containing vast scientific data, as to why the industry should not be permitted to operate. It also consulted the Central Ground Water Board. The NEAA Report went 16against the industry. When the matter again came before Court, the industry relied upon an earlier order of the A.P. Pollution Control Board that the industry could be permitted to function if certain safeguards were complied with. The industry sought a further opportunity on this limited contention.

The Court then referred the matter to the University Department of Chemical Technology, Bombay, to be assisted by the National Geophysical Research Institute, Hyderabad (NGRI). This was done. The reports of these institutions contained an exhaustive detailed discussion of the scientific data which they freshly procured.

The NGRI which is the highest scientific body on geology examined the flow of the underground water streams, and its final conclusion "from results of multi-parameter investigations (i.e. field investigations, hydrogeological studies, geophysical investigations, electric resistivity investigation, magnetic survey and tracer studies) carried out in the areas, is that hydraulic connectivity exists across the dolerite dyke located between Choudergudi and Sirsilmukhi facilitating the groundwater movement. In the post-monsoon scenario, the groundwater table will go up and thereby may result in more groundwater flow across the dyke."

It stated that there was sufficient scope for poisonous residual substitutes like nickel percolating underground and reaching the drinking water sources. On that basis, the Supreme Court set aside the judgment of the High Court and the order of the Authority given under section 28 of the Water Act and refused permission for the industry to operate. (A.P. Pollution Control Board vs. M.V. Nayudu 2001(2) SCC 62). The case is a clear 17example of the benefit of extensive scientific investigation.

If this scientific investigation was not done, the life of millions of citizens in the two cities could have been endangered. The precautionary principle clearly applied here. Because the Appellate Authority and the High Court did not have the benefit of the opinion of any scientific bodies to test the correctness of the report of the single scientist whose report alone was there available to the appellate authority and the High Court, the decision went in favour of the Industry. But, as the Supreme Court had the benefit of the Reports of these institutions, it could arrive at a different conclusion.

As stated earlier, scientific conclusions are based on the 'data' and 'procedures' applied by the scientific institutions concerned. The conclusions are correct to the extent of the data available or to the extent of the efficacy of the procedure or technology adopted for analysis. With more data and by application of better scientific procedures, or better technology, a more accurate conclusions can always be arrived at.

Instead of leaving it to the discretion of the Courts to refer or not to refer scientific issues to independent experts, we propose to provide a statutory mechanism to provide scientific advice to the Court concerned.

Complex issues of science and technology arise in court proceedings concerning water and air pollution. For example, we have serious problems of cleansing our rivers, streams and lakes, and cleansing, disposal or recycling of waste and sewage, disposal of toxic waste, hospital waste, nuclear waste, radio active material, removal of the effect of detergents, waste-oils, dealing with genetically modified organisms, adverse effects of 18pesticides, asbestos etc.

A variety of industries like steel, textiles, leather pose different types of problems of pollution. Air pollution from industries and from traffic today is quite grave. Then we have problems of climatic changes, depletion of ozone etc. We have serious problems of noise both at the work place and in residential areas. There are no proper systems for Environment Impact Assessment. There are problems faced in the matter of protection of forests and wild life. The list of issues is unending.

Technical and scientific problems today arise in a variety of ways and at various stages before the Courts. Some questions arise at the stage of initial establishment of an industry. Other issues arise when the effluentprevention/cleansing mechanisms or the pollution-prevention or pollutionreduction systems are installed by the industry. The industry would say that these safeguards are sufficient but the Pollution Control Boards may say that they are not sufficient. Even where both may agree that the safeguards are sufficient, members of the public may still find water pollution or air pollution unbearable to bear.

Then the question would arise whether the running industry has to be closed or be allowed to continue with better safeguards. There would be need for short-term as well as long term remedies. The point here is that if the industry is closed, it may lead to unemployment of hundreds of employees. It may also result in loss of excise duty or sales tax to the Government. If the industry is to be shifted out, land elsewhere may have to be provided, though for a price. In many cases, the plant itself may have to be shifted. Enormous costs will be involved.

If the polluting industry is not shifted, there could be serious danger to the health and well being of citizens in that locality. The Supreme Court in several cases has been going into all these aspects and giving 19directions for shifting of industries outside the cities, by framing schemes for payment of compensation for workmen, and for their re-employment and providing land for the industry elsewhere etc.

Prevention of pollution and environmental damage is one side of the story. But, we cannot, at the same time, lose sight of the need for development of our industries, irrigation and power projects. Nor can we ignore the need to improve employment opportunities. There is also the need for generation of revenue by way of excise duties or sales tax and increase our exports to other countries. The Courts must therefore be able to perform a balancing task. That cannot be done effectively, unless the Court gets judicial as well as scientific inputs. The Courts cannot simply close down industries based on the evidence produced by the industry concerned

We may here advert to another problem. There are also many who file public interest cases (PILs) against industries as a measure of blackmail. There are industrialists who would think of abusing the legal procedures for their own gain. Some polluting industries would like to close down under Court orders and would thereby want to escape the statutory procedures which otherwise have to be followed for "closure" of industries as contained in the Industrial Disputes Act, 1947 and want to escape paying compensatory wages to workmen.

Some others would like to close down or dismantle the plant and sell away prime land to builders. Some others would want concessions from government for shifting their industries to other places. These problems which are like under-currents, should also be taken care of by the proposed Environmental Court.

It is true that the High Court and Supreme Court have been taking up these and other complex environmental issues and deciding them. But, though they are judicial bodies, they do not have an independent statutory panel of environmental scientists to help and advise them on a permanent basis. They are prone to apply principles like the Wednesbury Principle and refuse to go into the merits. They do not also make spot inspections nor receive oral evidence to see for themselves the facts as they exist on ground. On the other hand, if Environmental Courts are established in each State, these Courts can make spot inspections and receive oral evidence. They can receive independent advice on scientific matters by a panel of scientists.

These Environmental Courts need not be Courts of exclusive jurisdiction. However, the High Courts, even if they are approached under Article 226 either in individual cases or in PIL cases, where orders of environmental authorities could be questioned, may refuse to intervene on the ground that there is an effective alternative remedy before the specialist Environmental Court. As of now, when we have consumer Courts at the District and State level, the High Courts have consistently refused to entertain writ petitions under Article 226 because parties have a remedy before the fora established under the Consumer Protection Act, 1986.

We have also the example of special environmental courts in Australia, New Zealand and in some other countries and these are manned by Judges and expert commissioners. The Royal Commission in UK is also of the view that if environmental courts are established, the High Courts may refuse to 21entertain applications for judicial review on the ground that there is an effective alternative remedy before these Courts.

It is for the above reasons we are proposing the establishment of separate environmental courts in each State. In Chapter IX, we propose to give the details of the constitution, power and jurisdiction of these Courts.

Proposal to Constitute Environment Courts Back

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