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Will the 2018 NGT Order Lead to Improvement in River

Water Quality?
NEERU BANSAL

Neeru Bansal (bansal.neeru@cept.ac.in) teaches at the Faculty of Planning, CEPT

University, Ahmedabad.
Vol. 54, Issue No. 15, 13 Apr, 2019
The author expresses sincere thanks to the anonymous referee for their comments to
strengthen the arguments in this article.

On 20 September 2018, the National Green Tribunal ordered all states and union territories
to prepare action plans within the next two months for restoring the quality of polluted river
stretches to at least “bathing standards” within six months of the finalisation of the plans.
However, making of the action plans alone is not likely to lead to an improvement in the
river water quality.

The National Green Tribunal (NGT) passed a landmark order on 20 September 2018
pertaining to increasing polluted river stretches in the country (NGT 2018). It ordered all
states and union territories to prepare action plans within two months to improve the
quality of polluted river stretches to “at least bathing purpose” within six months of the
finalisation of the plans. The NGT observed that the State Pollution Control Boards

(SPCBs)[1] have failed to check pollution. The tribunal distinctly stated that the chief
secretary of each state and the administrator of each union territory will be responsible for
preparation of the action plan.

The NGT took suo motu cognisance of a report published in the Hindu on 17 September
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2018. The report was based on a study done by the Central Pollution Control Board (CPCB)
for identifying polluted river stretches in the country (CPCB 2018). Similar studies were
conducted by the CPCB in 2012 and 2015 (CPCB 2012, 2015). The 2018 study observed that
the number of polluted stretches in the country was 351, an increase from 302 in 2015 and
150 in 2012. The 2018 data highlights that there are 45 river stretches attracting Priority I
(Biochemical Oxygen Demand (BOD) value ≥ 30 mg/l) for restoration. Out these, five are in
Gujarat, nine in Maharashtra and four in Tamil Nadu—the three most industrialised states
in the country.

Environmental Jurisprudence in India

Environmental jurisprudence in the matter of river water pollution is not recent. Judicial
activism for environment protection in India dates back to the late 1980s. The instrument of
public interest litigation (PIL) was used by communities affected by river water pollution to
seek relief (Divan and Rosencranz 2014). There have been many landmark judgments where
the judiciary has played the role of salvaging the environmental degradation as it felt that
this was its constitutional duty (Venkat 2011). Examples of the same are Vellore Citizens
Welfare Forum v Union of India & Ors (1996) for pollution in the Palar river caused by the
discharge of untreated industrial effluents by tanneries in Tamil Nadu; Pravinbhai Jashbhai
Patel and v State of Gujarat and Ors (1995) for the pollution of Khari river by industries in
Ahmedabad; M C Mehta v Union of India & Ors (1987) for the pollution of the Ganga by the
tanneries located in Jajmau, Kanpur; and the pollution of Noyyal river by textile units in
Tamil Nadu (Swaminathan 2014).

The judgments in all these cases have directed the polluters to set up treatment plants to
treat pollution and meet the standards. The courts have directed that polluting units that
have not adopted measures for the treatment of pollution be closed down. The relevant
authorities have also been reprimanded by the courts for not discharging their duties under
the environmental laws to check pollution (Pravinbhai Jashbhai Patel and v State of Gujarat
and Ors 1995). The courts have observed that the traditional concept which states that
development and ecology are opposed to each other, is no longer acceptable (Vellore
Citizens Welfare Forum v Union of India & Ors 1996; Pravinbhai Jashbhai Patel and v State
of Gujarat and Ors 1995).

Sustainable development is the answer. The “precautionary principle” and the “polluter
pays principle” have been accepted as part of the law of the land. The most recent in the
league of judicial interventions for environment protection is the judgment dated 22
February 2017 by the apex court, where the authorities have been directed to close the
industrial units that are operating without setting up primary effluent treatment plants
(Hindustan Times 2017).

Environmental Legislation Specific to Water Pollution

In India, there is a constitutional mandate to protect and improve the environment. The
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Constitution makes the state responsible for the protection of the environment under the
Directive Principles of State Policy (Article 48A of the Constitution), which state that “the
state shall endeavour to protect and improve the environment and to safeguard the forests
and wildlife of the country.” Further, Article 51 A(g), in the form of “fundamental duties,”
makes every citizen of India responsible for protecting and improving the natural
environment, including forests, lakes, rivers and wildlife, and to have compassion for living
creatures.

In addition to constitutional provisions, there are specific environmental laws to protect the
environment. The Water (Prevention & Control of Pollution) Act, 1974 was enacted for
prevention and control of water pollution and regulatory bodies like the SPCBs and CPCB
were established. The Water Act, 1974 and Environment Protection Act (EPA), 1986 have
provisions to take action against the polluters, both industries or government authorities.
The available instruments to deal with non-compliance range from closing the polluting
industries by the regulator to imprisonment and fines by the courts (Bansal and Solanki
2015). Still, we do not have any case where a polluter has been imprisoned by the Court or
fined and where the punishment or the amount of the fine has acted as a deterrent. The
legal cases for pollution of the rivers have been filed in spite of the constitutional and
legislative provisions as the communities affected by the pollution could not get any respite
from the regulatory bodies.

The most important question under these circumstances is whether the NGT order would
lead to an improvement in river water quality. The answer is that it is unlikely. In spite of all
the environmental jurisprudence in the country for over two decades and a number of
landmark judgments where the courts have come to the rescue of deteriorating
environmental conditions, river water fails to meet the required minimum “bathing quality.”
Rivers continue to be polluted and the number of polluted river stretches has only risen.

Why Are Court Orders Ineffective?

The courts can direct the polluters to set up infrastructure to treat pollution and
governments to prepare the action plans to tackle pollution. In doing so, there is an
underlying presumption that setting up of infrastructure would result in the improvement of
river water quality. There exists a wide gap between the expected outcomes of legal orders
and the actual environmental conditions on the ground. This is primarily due to the
practices followed by the polluters. The industries do set up physical infrastructure such as
treatment plants to show compliance to court orders. However, the technical design of the
treatment plants may not respond to the kind of treatment required for the inlet

effluents.[2] In addition, the plants are not run efficiently to meet the prescribed norms.
Thus, setting up treatment plants does not mean that pollution has been treated to the
desired levels (Bansal 2017). For example, as part of compliance to the Gujarat High Court
order in the matter of Pravinbhai Jashbhai Patel and v State of Gujarat and Ors (1995), six
common effluent treatment plants were set up in Ahmedabad. In addition, there are seven
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sewage treatment plants treating domestic sewage of the city (CPCB 2013). Even after
years of their operation, including the upgradation, the river water quality of the receiving
Sabarmati river has not improved. It still has one of the most polluted river stretches in the
country, downstream of Ahmedabad, even after receiving the so-called treated industrial
effluents and sewage. The government has provided subsidy to the extent of 50% to set up
the common effluent treatment plants and has also provided land almost free of cost. It has
also provided financial help for the upgradation of the plants. Thus, public money has been
spent on treating the pollution generated by private industrial entities.

This is actually in conflict with the "polluter pays" principle where the polluter is supposed
to pay for its polluting activities, compensate victims of pollution and restore the
environment to its original status. The environment ministry has spent hundreds of crores to
fight pollution in the Sabarmati river in Ahmedabad (Dave 2018). The Ganga still continues
to be polluted in spite of the fact that the Supreme Court had directed in M C Mehta v
Union of India & Ors (1987) that no pollution should be discharged into the river directly or
indirectly. After that, there have been many plans to rejuvenate the river but it still
continues to be polluted. A similar case is that of the Noyyal river in Tamil Nadu. The Satluj
and Ghaggar rivers in Punjab continue to be highly polluted (CPCB 2018) even after years of
the NGT order. Another issue is that domestic pollution in the form of sewage is equally to
be blamed for pollution of rivers. The infrastructure capacities in the urban areas to treat
sewage are always short of the amount of sewage generated. Yet, local authorities are not
held responsible for polluting the rivers and no actions are taken against them.

The most important factor contributing to non-improvement of the river water quality is the
weak monitoring and enforcement by the regulator. The regulator is aware of the situation
but still, no strict action is taken against the defaulters, be it the common effluent treatment
plants treating large volumes of industrial effluents from member units or the sewage
treatment plants. There is on-ground connivance between the polluters and the regulator.
Even if defaulters are punished, the severity of punishment is not enough to deter the non-
compliance.

What More Needs to be Done?

The Gujarat government constituted a state-level river rejuvenation committee two months
after the NGT order (Times of India 2018). The first step to make the orders effective is to
ensure implementation. The action plans for river rejuvenation even within the same state
have to be context-specific. For example, the context of Sabarmati river pollution in
Ahmedabad is different from the pollution of Tapi and the creeks in Surat. The Sabarmati
river is critically polluted only downstream of Ahmedabad, after the discharge of sewage
from seven sewage treatment plants and industrial effluents from two pipelines. The action
plan for the Sabarmati river rejuvenation thus has to focus on these points of pollution.
However, in Surat, a coastal city, the sewage and industrial discharge points are
camouflaged in the creeks spread across the city and which then go on to finally meet the
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sea. The pollution may simply go unnoticed in this case (Bansal 2017). The context would be
very different for rivers like the Ganga and Yamuna which flow through multiple states and
cities. No action plan can succeed without strict monitoring and enforcement of the actions.
Punishment to the defaulters can act as a deterrent and can also generate fear amongst the
other non-complying entities. The NGT Act has allowed for much higher fines and
punishment as compared to environmental laws.

We already have the example of air action plans for critically polluted cities in the early
2000s that had led to improvements in air quality till the plans were regularly monitored by
the Environment Pollution (Prevention and Control) Authority (EPCA) constituted by the
Supreme Court. The cities went back to their previous status immediately after the
monitoring became relaxed. Care needs to be taken to ensure that river rejuvenation plans
should not meet the same fate. Making of action plans, without sincere and sustained
implementation, vigilant monitoring and strict enforcement is not going to improve the river
water quality.

End Notes:

[1] SPCB is the nodal agency at the state level for the enforcement of environmental laws
and monitoring of pollution.
[2] The treatment has to be different depending upon the characteristics of industrial
effluents.

References:

Cases Cited

Vellore Citizens Welfare Forum v Union of India & Ors (1996): Writ Petition (Civil) No
000914-000914 of 1991, Supreme Court judgement dated 28 August.

Pravinbhai Jashbhai Patel and v State of Gujarat and Ors (1995): GLR, 2, p 1210.

M C Mehta v Union of India & Ors (1987): AIR, p 1086.

References

Bansal, Neeru and Ankit Solanki (2015): “Remedies and Their Effectiveness for Ensuring
Environmental Compliance: Evidences from Gujarat, India,” Asian Journal of Water,
Environment and Pollution, Vol 12, No 4, pp 17–23.
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Bansal, Neeru (2017): “Industrial Development and Challenges of Water Pollution in Coastal
Areas: The Case of Surat, India,” IOP Conference Series: Earth and Environmental Science,
Vol 120, No 1, pp 1–9.

—(2017): Industry and Environment: The Case of Gujarat, Dissertation, CEPT University,
Ahmedabad

CPCB (2012): "Polluted River Stretches in India," Central Pollution Control Board, Ministry
of Environment, Forest, and Climate Change, Government of India, New Delhi.

—(2013): "Performance Evaluation of Sewage Treatment Plants under NRCD," Central

Pollution Control Board, Ministry of Environment, Forest, and Climate Change, Government
of India, New Delhi.

—(2014–15): "River Stretches for Restoration of Water Quality," Central Pollution Control
Board, Ministry of Environment, Forest, and Climate Change, Government of India, New
Delhi.

—(2018): "River Stretches for Restoration of Water Quality," Central Pollution Control
Board, Ministry of Environment, Forest, and Climate Change, Government of India, New
Delhi.

Dave, Kapil (2018): “Gujarat Government Constitutes Panel for Rivers After NGT Rap,”
Times of India, 30 November,
https://timesofindia.indiatimes.com/city/ahmedabad/state-constitutes-panel-for-rivers-after-
ngt-rap/articleshow/66873007.cms.

Divan, Shyam and Armin Rosencranz (2014): Environmental Law and Policy in India, New
Delhi: Oxford University Press.

Hindustan Times (2017): "Industrial Units Must Have Effluent Treatment Plants: Supreme
Court," 22 February,
https://www.hindustantimes.com/india-news/industrial-units-must-have-effluent-treatment-pl
ants-supreme-court/story-xqk9ZbxRDQbuSIPn62opVK.html.

Koshy, Jacob (2018): “More River Stretches Are Critically Polluted: Central Pollution Control
Board," Hindu, 17 September,
https://www.thehindu.com/news/national/more-river-stretches-critically-polluted-cpcb/article
24962440.ece.

NGT (2018): Original Application No 673/2018, National Green Tribunal, Principal Bench,
New Delhi, 20 September, https://cpcb.nic.in/NGTMC/NGT-Order-20.09.2018.pdf.

Swaminathan, Padmini (2014): “Regulating Industrialization Through Public Action and

Legal Intervention: Interpreting an Ongoing Experiment in Tamil Nadu,” Globalization and
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Standards: India Studies in Business and Economics, Keshab Das (ed), New Delhi: Springer.

Times of India (2018): “Sewage Stream Make Gujarat Cry a River,” 30 September,
https://timesofindia.indiatimes.com/city/ahmedabad/sewage-streams-make-gujarat-cry-a-rive
r/articleshow/66011199.cms.

Venkat, Aruna (2011): Environmental Law and Policy, New Delhi: PHI Learning.

Image-Credit/Misc:

Image Courtesy: Modified. Wikimedia Commons/ Jan jörg [Public domain]