S Jagannath v. Union of India – Case Analysis

S JAGANNATH V. UNION OF INDIA

Material Facts:

Over the last decade, more intensive methods of shrimp culture (Prawn farming) have taken place with the result of producing thousands of kilograms per hectare and in the last few years, more than 80,000 hectares of land have been converted into shrimp farming with the aim of expanding the market and getting high returns on investment. This aim is sought to be achieved by replacing the environment friendly traditional methods of farming with the semi-intensive and intensive methods that are not so safe for the environment.

Without much control on the feeds, seeds, water management practices and other inputs, the ecology and environment has been seriously affected due to the intensified methods of shrimp farming. As the states are giving permissions to big business houses to develop prawn farms on a large scale in the Ecologically fragile coastal areas of the States, more and more intensive and semi-intensive methods are beings used for this aquaculture. In the light of these facts, the petition has been filed before the Supreme Court.

Procedural History:

A Public Interest Writ Petition was filed before the Supreme Court of India, under article 32 of the Indian Constitution, by S. Jagannathan, Chairman, Gram Swaraj Movement.

Issues:

Whether intensive and semi-intensive type of prawn farming in the ecologically fragile coastal areas and using the waste ands/wet lands for Prawn farming can be stopped by enforcing the Coastal Zone Regulation Notification dated February 19, 1991 issued by the Government of India?

Reasoning:

The court observed that considering the international obligations and also paying heed to the national interest, the Government of India as well as the Governments of the Coastal States are under an obligation to not only prevent marine pollution, but also to protect the coastal environments which also includes the ecologically sensitive areas as well as the land-sea interfaces.

The court reasoned that there exists vast differences between the traditional and the modern methods, that includes intensive and semi-intensive methods, of prawn farming. Although the yield in the traditional manner might be on the lower end as compared to the modern methods, it causes no harm to the environment as well as in the ecologically sensitive places. On the other hand, even if in the intensive aquaculture the yield is higher, in that artificial feed, chemical additives and antibiotics are used which causes damage to the environment.

The court stated the Algarswami Report which found the various manners in which the environmental and social problems are caused by the coastal aquaculture. Physical obstruction by the shrimp farm’s cyclone protection dukes lead to problems in drainage and thereby causing accumulation of flood water in hinterland villages, the Right of passage of coastal fishermen affected, drinking water problems in the villages, salinization of wells as well as neighbouring agricultural farms and loss of mangrove areas are the problems highlighted by the report which was relied on by the court.

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The demand for the shrimp seed is expanding and the hatchery culture is unable to meet it. Along with that, paddy fields are being converted into lands for prawn farming which has further led to extensive extraction and contamination of the groundwater reserves. These factors highlight the grave loss to the environment due to this expanding shrimp culture involving the use of intensive and semi-intensive methods of farming.

Under Para 2(1) of the Notification No. S.O. 114(E) dated 19-2-1991, “setting up of new industries and expansion of existing industries, except those directly related to waterfront or directly needing foreshore facilities, within the Coastal Regulations Zone, is strictly prohibited”. Coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters up to 500 meters from the High Tide Line (HTL) and the line between the Low Tide Line (LTL) and the HTL are areas within CZR. Foreshore was defined as “part of the shore which remains covered with water at the High Tide and gets uncovered and become visible at the Low Tide”. The court reasoned that as a shrimp culture farm would completely submerge at the water at high tide, in no manner can it be directly needing foreshore facilities. Similarly, even though the shrimp farms might have some connection with the waterfront, they are not directly related to it. In fact, what is required by these farms is brackish water which can be drawn from any waterbody including a sea and carried various distances through pipes etc. An industry dependent on sea water cannot by itself be an industry “directly related to waterfront” or “directly needing fore-shore facilities”.

Para 2(8) of the CRZ Notification prohibits the bunding or disturbing the natural course of sea water with similar obstructions. The use of Huge Cyclone Protection Dyke is a bund and completely prevent the natural drainage of flood water by leaving no area for its flow. Even the shrimp ponds are constructed right on the bank of the creeks without leaving any area to draining of flood waters.

Alternatively, the court reasoned that a particular activity that leads to degrading the environment cannot be allowed. Along with that, the right to livelihood of the farmers and fishermen near the coastal areas cannot be degraded due to the shrimp culture. As had been pointed out in the Algarswami Report that the shrimp ponds force the fishermen to take longer routes and the farming in the intensive and semi-intensive methods have also affected the nearby agricultural land.

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Along with the harms to the environment highlighted by the Algarswami report, the court also referred to the reports of NEERI and the Suresh Committee Report to lay down the impact of the shrimp culture on the environment and the ecologically sensitive areas. NEERI explained the situation of the States on the East and the West Coast and the manner in which the shrimp culture has impacted them and how the policies of the state are inadequate keeping in mind the notification of the Central Government. It demonstrated that the States are in a detestable position due to such worsening situation of the coastal areas. The Suresh Committee Report explained the shrimp culture led to effluent pollution, salinization, feed and wastes, excessive use of fertilizers and therapeutants, loss of mangroves and biodiversity, loss of biodiversity in Cauvery food plain and delta, threatened wetlands of international importance, impact on agriculture and lastly, denial of portable water.

Local people have not only lost access to their fishing grounds and to their sources of riverine seafoods and seaweeds, but they also have to relinquish social and recreational activities traditionally taking place on their beaches.

The Court also referred to the article 48-A of the Constitution of India which states that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country” as well as the article 51-A which lays down a duty on every citizen “to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures”. Even the Environment Protection Act, 1986 was enacted to protect and enhance the environment quality. The effluents discharged by the commercial shrimp culture farms are covered by the definition of Environmental pollutant, environmental pollution and hazardous substance, under the Environment Protection Act and the effluents discharged at several places were much more than the prescribed standards.

Under the Rule 5 of Hazardous Waste (Management and Handling) Rules, 1989 (the rules), it is obligatory for every occupier generating hazardous wastes to obtain authorisation from the State Pollution Control Board and no such permission was obtained by the commercial shrimp farms. Under section 25 of The Water (Prevention & Control of Pollution) Act. 1974 (the Water Act) no person shall, without the previous consent of the State Board establish any industry, operation or process, of any treatment and disposal system which is likely in discharge sewage or trade effluent into a stream on well or sewer or on land. And nothing shows that any permission was taken by the farms from the Boards.

The court referred to the case of Vellore Citizens Welfare Forum vs. Union of India & Ors to opine that the concept of sustainable development must be used and the “Polluter Pays” and “The Precautionary Principal” was cited. Development must be done keeping in mind the environmental impact, precautions and other environmental measures must be taken by the authorities and the Polluter is not only liable to compensate the victims of pollution but also for the cost of restoring the environmental degradation. Article 21 of the Constitution of India guarantees protection of life and personal liberty and that cannot be infringed by this farm culture.

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The term- raised production of shrimp is of very small quantity as compared to wild-caught and the damage caused to ecology and economics by the aquaculture farming is higher than the earnings from the sale of coastal aquaculture produce and therefore, even if some of the shrimp culture farms which are polluting the environment, are closed, the production of shrimp by environmentally friendly techniques would not be affected and there may not be any loss to the economy.

Decision:

The Central Government shall constitute an authority under Section 3(3) of the Environment (Protection) Act, 1986 constituted all the powers necessary to protect the ecologically fragile coastal areas, sea shore, water front and other coastal areas and specially to deal with the situation created by the shrimp culture industry. It shall implement “the Precautionary Principle” and “the Polluter Pays” principles.

No shrimp culture pond can be constructed or set up within the coastal regulation zone as defined in the CRZ notification. This shall be applicable to all seas, bays, estuaries, creeks, rivers and backwaters and this direction shall not apply to traditional and improved traditional types of technologies.

All aquaculture industries/shrimp culture industries/shrimp culture ponds operating/set up in the coastal regulation zone as defined under the CRZ Notification shall be demolished and removed from the said area. The farmers who are operating traditional and improved traditional systems of aquaculture may adopt improved technology for increased production productivity and return with prior approval of the “authority” constituted by this order. The agricultural lands, salt pan lands, mangroves, wet lands, forest lands, land for village common purpose and the land meant for public purposes shall not be used/converted for construction of shrimp culture ponds.

The authority must calculate the loss caused to the environment and ecology in the affected areas and also to the families and individuals and thereby determine the compensation to be paid. It must also determine compensation to be recovered from the polluters as cost of reversing the damaged environment. The compensation collected must be transferred in an “Environmental Protection Fund”.

The writ petition was allowed with costs.

Author: Anshpreet Singh Chowdhary,
National Law University, Delhi. Semester II

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