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Litigation Specialised

How we used the law to reclaim the inter-tidal area at Bavdi Bander

VimalKalavadiya_CPRNamatiThe Kutch district in Gujarat, one of the largest in India, has a coastline of 405 kilometers and inter-tidal area of about 200 kilometers. For generations, communities in the district have engaged in agriculture, pottery, animal husbandry, weaving, fishing, and salt production. The last two occupations directly depend on the sea and the shoreline and have always co-existed in designated parts of the inter-tidal belt.

In recent years however, commercial expansion, especially of salt production, has contested for the space otherwise occupied by small and artisanal fisherfolk. The “bunding” and “drawl” of water for large saltpans has also had an impact on the livelihoods of fisherfolk who seasonally cultivate prawns.

Conflict at the fishing harbour

One such instance came to light in the case of Bavdi bander, a fishing harbour in the Mundra block of the district. Neelkanth, a large salt production company, procured a lease for salt production on the bander. It then started to bund, by reclaiming the sea using stones and soil, more than one kilometer of the inter-tidal area to create saltpans to divert and collect seawater for the production of salt.

Exactly where Neelkanth had carried this out, a fishing community would spend 7 to 8 months every year, fishing with small boats or on foot (known as pagadiya fishing). They used the tidal area for parking their boats but once the bund was built, they had to keep their boats far in to the sea and further away from the coast line and so faced difficulties in the transfer of the fish catch from the boats on to the harbour where it would be sorted and dried before being sold. This was not all. The construction of the bunds also destroyed approximately 20 hectares of mangroves.

Fishing boats parked in the inter-tidal area at Bavdi Bander. Photograph courtesy Kanchi Kohli.

Fishing boats parked in the inter-tidal area at Bavdi Bander. Photograph courtesy Kanchi Kohli.

The biggest revelation of all unfortunately, came to light only after the impact of bunding had already played out. Neelkanth did not have the clearance required under the Coastal Regulation Zone (CRZ) Notification, 2011.

It came to light by accident. On January 22, 2013, a committee constituted by the Ministry of Environment and Forest was visiting the area. Set up on September 14, 2012 to review the violations of the Adani Port and the Special Economic Zone located 45 kilometres away from the Bavdi bander, its members also decided to visit the bander to investigate claims about compensatory mangrove plantations in the area. Representatives of the Gujarat Coastal Zone Management Authority (GCZMA), local fish traders, and representatives of the Machimar Adhikar Sangharsh Samiti (a fishing union of the area) also accompanied the committee members.

They saw the large bunds that had been built into the sea. The people living at Bavdi bander complained that the bunding created obstacles to the natural flow of the sea water during periods of high and low tide. They also aired their difficulties related to the parking of their boats and how all this was severely affecting their livelihood. On the committee’s recommendations, the Principal Secretary of the Department of Environment of Forests in the Government of Gujarat issued a show cause notice on February 27, 2013. But the action ended there and the bunding continued unabated.

A different kind of salt satyagraha

On the left, a view of the bund built on the inter-tidal area. Photograph courtesy Kanchi Kohli. On the right, a view from the bund showing mangroves and the temporary settlements of fisherfolk. Photograph courtesy Bharat Patel.

On the left, a view of the bund built on the inter-tidal area. Photograph courtesy Kanchi Kohli. On the right, a view from the bund showing mangroves and the temporary settlements of fisherfolk. Photograph courtesy Bharat Patel.

In need of a remedy, some fisherfolk from the area approached the High Court of Gujarat. It took several hearings and over 18 months for a final judgment to emerge from the Court only on August 27, 2015. The District Collector had told the Court on April 10 that the lease for the salt pan had not been renewed. If any bunding activity did happen therefore, the District Collector could take action.

While the case was pending in court, there were some developments at the harbour and Neelkanth had continued its activities unabated. Some time in late 2014, the people of Bavdi, not clear about how the case would proceed, approached the Centre for Policy Research-Namati Environment Justice Program, which had been working in Kutch to understand the impact on livelihood caused by problems related to non-compliance with the law in coastal areas.

Bharat Patel and I work with the programme and we realised that the people of Bavdi knew that even though an illegality had occurred, which was affecting their livelihood, they had not received a remedy. While recording the nature of the problem, we also came to know that the owner of the Neelkanth salt company was trying to secure another permission on the same land, this time in the name of one of his relatives.

With some help from us, they came to know from the website of the Gujarat Costal Zone Management Authority (“GCZMA”) that this was indeed the case. The minutes of a GCZMA meeting held on April 10 this year record that Neelkanth had applied for CRZ clearance in the name of Vasta Govind Chavda. This was for the same area where the bunding had been done, for which the show cause had been issued and a court case was pending.

From the minutes, the fisherfolk realised that the GCZMA had asked the proponents to submit a revised application so that their CRZ clearance can proceed. We saw this as an opportunity and decided to petition the GCZMA to not grant this approval because an illegality had already occurred and because the matter was pending before the Gujarat High Court.

Before they submitted the application to the authority, they discussed the importance of backing their claim with evidence. They had to prove that the place for which CRZ clearance was being sought already had an illegal salt pan and that the matter was sub judice. They relied on Google Maps to plot the area, backed it up with photographs, and also copies of notices that had already been issued to Neelkanth. Only when they had this in hand did the representatives of the affected community draft a letter to the GCZMA demanding that approval be denied. It also explained the relation between Neelkanth and Vatsa Govind. This letter was sent to the Chairman and members of the GCZMA on April 8.

At its very next meeting, on May 15, the GCZMA took a decision that favoured the fishing community. Vatsa Govind’s proposal was rejected because the area in question was rich in biodiversity with dense mangrove patches and sand dunes. The company therefore, had to submit a fresh application for a CRZ clearance for a different area.

Meanwhile, the sea has reclaimed the bund that was created illegally. With the saltpan lying vacant, the tidal water has gradually brought back the boats, the fish catch, and the spirit of the people.

Vimal Kalavadiya works with the CPR-Namati Environment Justice Program. This article has been written with inputs from Bharat Patel who is also associated with the programme.

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Litigation Specialised

After the de-allocations – What happens to the clearances given to coal blocks, now up for auction again?

ItCommunitiesAndLegalAction_KanchiKohli made news last year when the Supreme Court of India “de-allocated” 214 coal blocks. The process of the allocation, the Court held, was illegal and arbitrary. Not all of them were operational, but where they were, the owners had to stop operations. While 42 of them got a six-month reprieve and four were “saved”, the remainder had to halt any mining operations with immediate effect.

All but 4 of the de-allocated ones have, as on April 1, 2015, entered into a process of auctions where either the current lease holders or someone else could emerge the highest bidder. Following the passing of the Coal Mines (Special Provisions) Act, 2015 in March 2015, the Ministry of Coal had published the details of the auction process. All these coal blocks may soon have new owners.

Given the changed circumstances, there is doubt among communities and activists about what is likely to happen next and how they should prepare for it. For example, for those who had prepared a legal challenge on environmental irregularities, where do remedies now lie? How should they prepare? To the affected communities, the impacts, unresolved illegalities, and the environmental and social liabilities of the coal blocks that are up for auction remain just as relevant.

Questions asked about clearances to coal blocks

Many of these coal blocks, whether or not they had started operations, had received “clearances” from the Ministry of Environment, Forests and Climate Change (“MoEFCC”) after completing the necessary procedures. These approvals were challenged in courts, on the streets, and through petitions before the executive. For instance, when the Supreme Court delivered its judgment, a challenge to the forest clearance granted to the Mahan coal block in Madhya Pradesh was pending before the National Green Tribunal.

Similarly, the public hearing of the Parsa coal block in Chhattisgarh had been completed in the face of stiff opposition. Questions had also been raised about whether due process had been followed for impact assessment and public hearings. The NGT had quashed the approval for forest diversion given to the the neighbouring coal bloc in Parsa East Kanta Besan and had sent the matter back to the MoEFCC for re-examination. The stay on the mining and transportation of the already dug up area was lifted by the Supreme Court soon after.

The affected villagers and campaign groups had also pointed out that the presence of an elephant habitat near the mining site was not disclosed and that the mandatory site inspection was done in a casual manner. Questions were also raised about the circumstances under which the environment ministry had, under directions from the empowered group of ministers, approved the project.

What happens to the matters before the Green Tribunal?

Mahan and a few other coal blocks, whose environment or forest diversion approvals had been challenged before the National Green Tribunal (“NGT”), were included in the Supreme Court’s de-allocation list. What did this mean? Did the appeals become infructuous? The NGT on September 26, 2014, while hearing the two cases filed against the Mahan coal block (Appeal No.18 of 2014 and Appeal No.34 of 2014) and also the PEKB coal block, held “the cause of action raised by the Appellant does not subsist any longer.” They also held that that the rights and contentions in relation to the “forest clearance” would be transferred to the third party who would get the coal block.

While dismissing another case challenging the environment clearance given to a BALCO coal block (Appeal No. 46 of 2012), on October 9, 2014, the NGT upheld the right of appeal in accordance with law. This meant that if the environmental clearance is transferred to another allottee, it does not take away the right of a legal challenge both on procedural lacunae and on the merits of assessment. This is yet to be tested before the tribunal but the order is in place.

MoEFCC Clarification

Both the EIA Notification and the process laid out under the Forest Conservation Act, 1980 for forest diversion allow for transferring the approval to another project authority, during the course of assessment or even after approvals are granted. For instance Section 11 of the EIA notification says, “A prior environmental clearance granted for a specific project or activity to an applicant may be transferred during its validity to another legal person entitled to undertake the project or activity on application by the transferor, or by the transferee with a written “no objection” by the transferor, to, and by the regulatory authority concerned, on the same terms and conditions under which the prior environmental clearance was initially granted, and for the same validity period. No reference to the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned is necessary in such cases.”

On March 23, 2015, there was an additional clarification to Section 11 of EIA notification through an amendment. This allowed for the transfer of environment clearance on the terms above, in case “an allocation of coal block is cancelled in any legal proceeding; or by the Government in accordance with law”.

As on date, the environment clearances of 29 coal blocks have been transferred. Some of these are for approvals granted as far back as in 2000. The approval for  the captive underground coalmine village of Milupara Kondkel in Raigarh, Chhattisgarh is one such. It now stands transferred from Monnet Ispat to Hindalco. The most recently granted environmental approval that has been transferred is for the Ganeshpur Opencase mine in Latehar in Jharkhand. Here, the transfer is from Tata Steel to GMR Chhatisgarh Energy Ltd. Tata Steel had received the approval in January 2014, about seven months before the Supreme Court ruling.

For any affected community and for any of us working on the environment or the social and environmental impacts of coal blocks, this is an important space to watch. Many coal blocks where approvals are pending or where mining operations have not been initiated, are not yet on the radar of re-allocations and other revised regulatory approvals. A lot is likely to be tested in and outside of courts where communities and community-based organisations are involved in legal action.

Kanchi Kohli is a researcher working on law, environment justice, and community empowerment.

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Litigation Specialised

Where to file suit for copyright infringement? Supreme Court’s purposive interpretation amounts to re-writing the Copyright Act

vijayaraghavannarasimhamA plain reading of Section 62 of the Copyright Act, 1957 will reveal that Section 62(2) of the Copyright Act is an exception to the general rule vesting jurisdiction in a civil court in case of ‘infringement of copyright in any work’.

Under Section 62(1), such a suit has to be instituted before ‘the district court having jurisdiction’ in respect of the ‘infringement of copyright in any work’.

The general rule, seen in Section 20 of the Code of Civil Procedure, 1908 (“CPC”), is that a civil proceeding complaining of ‘infringement’ has to be instituted where the ‘cause of action’, that is, the ‘infringement’ arose, or where the defendants reside or carry on business.

S62CopyrightAct S20CPC

Section 62(2), however, has a non obstante clause vis-a-vis Section 20 of the CPC and any other law in force. Therefore, only Section 62 is invoked to determine whether such a suit is territorially tenable.

Section 62(2) thus makes an exception to Section 62(1). It means that a ‘district court within whose jurisdiction plaintiff resides or carries on business’ is also a place of permissible jurisdiction. This necessarily means that even if the ‘infringement of copyright in a work’ arose within the jurisdiction of Court A, the suit can be filed by the plaintiff in Court B, within whose jurisdiction he resides or carries on business.

Once the plaintiff proves that he was residing at the chosen venue or he was carrying on business there, he can surely sue at that location. The plaintiff need only show that he was ‘actually and voluntarily residing’ there or ‘carrying on business’ or personally working for gain. Once these ingredients are satisfied, the suit has to be held maintainable. In effect, the criteria under Section 20 of the CPC, that is, where the ‘cause of action’ arose or where the ‘defendant was residing’ or ‘carrying on business’ are rendered otiose.

The reasoning behind creating this exception was that an artist must have total control and dominance over his ‘copyright in a work’. The artist has the right to carry his right to sue wherever the artist resides or moves to reside or carries on business or moves to carry on business, irrespective of where the cause of action or infringement arises. It is a clear and lucid departure from the ordinary rule of territorial jurisdiction.

How Sanjay Dalia rewrote the Copyright Act, all in the name of “purpose”

Unfortunately, in one more exhibition of the ‘purposive interpretation’ rule, the Supreme Court has affirmed the decision of the Delhi High Court in Indian Performing Rights Society Ltd. v. Sanjay Dalia.

The plaintiff was carrying on business through a branch office in Delhi though their head office was in Mumbai. The alleged ‘infringement’ had taken place in Mumbai. The concurrent findings of the Delhi High Court declining to entertain the suit in Delhi was affirmed by the top court.

“In our opinion, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act have to be interpreted in the purposive manner. No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. He need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises. However, if the plaintiff is residing or carrying on business etc. at a place where cause of action, wholly or in part, has also arisen, he has to file a suit at that place, as discussed above.”

‘Purposivism’ and ‘consequentialism’ cannot be used to tide over the ‘convenience or inconvenience’ of parties. When the Parliament has conferred on the plaintiff, the right to sue for infringement wherever he resides or carries on business, is the Supreme Court right in concluding that plaintiff could not do so in a case where the infringement arose in Mumbai and defendant carried on business in Mumbai and plaintiff also had its head office? This amounts to re-writing the legislation. Oh, for an Antonin Scalia dissent of the Obamacare and Obergeleff genre.

Vijayaraghavan Narasimhan is an advocate practicing at the Madras High Court.

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Litigation Specialised

Statutory reform alone will not make domestic arbitration more efficient – A closer look at the Law Commission’s 246th Report

SindhuSivakumar_DraftingForArbitrationThat arbitration in India is a costly, time-consuming, and inefficient affair is well known. Excessive court applications, exorbitant arbitrator fees, and respondent recalcitrance are the norm and in many ways, arbitrations do not provide a better and more efficient alternative to the courts for the resolution of commercial disputes. Only if this important objective is achieved can arbitration promote trade, commerce, and investment.

The Law Commission of India, on August 7, 2014, released its 246th report (“Report”), suggesting amendments to the Arbitration and Conciliation Act, 1996 (“ACA”) to make arbitration in India more efficient. With the Union government indicating that it will implement statutory reforms to the ACA soon, let us first look at some aspects of arbitration practice in India that the Report has identified as being at the root of the inefficiency.

No ‘institutional’ arbitration

‘Institutional’ arbitration is carried out under the administration of a specialised institution, like the London Court of International Arbitration (“LCIA”) or the Singapore International Arbitration Centre (“SIAC”) and in accordance with their rules. In ‘ad hoc’ arbitrations, the parties determine all aspects of the arbitration themselves. Institutional arbitrations typically tend to be better regulated and therefore, less inefficient as they involve detailed procedural rules, tighter timelines, reasonable (arbitrator) fee schedules, and administrative oversight.

Exorbitant ‘per sitting’ fees

The fees that are typically charged by arbitrators in Indian ad hoc arbitrations not only drive up costs, but also disincentivises arbitrators from conducting arbitrations speedily (that is, with fewer sittings).

Adjournment culture

Parties seek and receive too many adjournments over the course of the arbitration and arbitrators do not use cost sanctions to check any wasteful or dilatory conduct.

Wide scope of judicial enquiry

The judiciary has unnecessarily widened the scope of judicial enquiry when hearing arbitration applications. For instance, Section 11 appointments have been characterised as a ‘judicial’ function. This has subjected them to the lengthy Special Leave Petition process. Similarly, when hearing set-aside applications under Section 34, awards are re-opened and reviewed on merits based on the ‘public policy’ ground.

Perverse statutory incentives that increase arbitration-related court applications

A party who challenges an award under Section 34 can obtain the statutorily created ‘stay’ of the enforcement of the award under Section 36. This has led to losing parties routinely filing set-aside proceedings to delay the enforcement of an award.

Let us delve deeper into the Report’s recommendations to disentangle arbitration from the courts, specifically its recommendations to reduce the scope of judicial enquiry in arbitration-related court applications.

The first problem is one of ‘judicial overreach’, that is, the trend of Indian courts expanding the scope of judicial review in arbitration-related court proceedings, undercutting the spirit of judicial minimalism in the ACA. The other is the volume of arbitration-related court proceedings in domestic arbitration in India. We will concentrate on the first problem.

Expansive judicial review in arbitration-related court proceedings

There has been a lot of academic and practitioner-led literature in this regard, particularly in the context of:

– Section 5 of the ACA, which has been read down to make it subject to the inherent powers of the civil courts under Sections 9 and 151 of the Code of Civil Procedure, 1908;

– Section 8 of the ACA, which has also been interpreted to allow the courts to get into issues relating to the validity, operability, and enforceability of the arbitration agreement notwithstanding its express exclusion by the drafters of the ACA, worsened by the fact that the courts often encroach upon the jurisdiction of the tribunals and decide substantive issues in dispute when hearing challenges to the arbitration agreement;

– Section 11 of the ACA, under which the arbitrator-appointment function of the courts has been converted from an ‘administrative’ function to a ‘judicial’ decision, which can be subject to lengthy appellate proceedings through the SLP route; and

– Section 34 of the ACA, under which the ‘public policy’ ground for challenging awards has been expanded to such an extent that it is now essentially the same as a regular appeal on law under the Code of Civil Procedure, 1908.

The Report echoes existing popular opinions and recommends on reducing the scope of judicial review in these proceedings. For example, it clarifies that Section 11 appointments should be regarded as administrative acts (not subject to review through the SLP process).

Judicial review of issues related to the validity of arbitration agreements and the arbitrability of disputes

Further, the questions that a court can get into when hearing Section 11 and Section 8 (stay) matters should be limited to issues regarding the existence or validity of the arbitration agreement as well as issues of arbitrability, but not questions regarding the scope of the arbitration agreement or the merits of the dispute (which includes issues relating to the validity of the underlying contract). Essentially, the Report echoes the position taken by the Supreme Court in National Insurance Co. Ltd. v. M/s. Boghara Polyfab Pvt. Ltd. (September 18, 2008) and other such cases.

The Report also clarifies what matters the court can and cannot determine when hearing challenges to the arbitrability or the arbitration agreement under Sections 8 and 11. Again, it echoes what was said in Boghara Polyfab Pvt. Ltd., that is, that the court can decide questions of (i) whether it (the relevant court) has jurisdiction to hear the application; (ii) whether there is a valid and enforceable arbitration agreement; (iii) whether the party who has applied is a party to such an agreement; (iv) whether the claim that is subject to arbitration is a dead claim (barred by limitation) or a live claim; and (v) whether the disputes subject to arbitration have been settled.

Tightening the ‘public policy’ ground used to set aside awards

In relation to Section 34, the Report seeks to tighten the ‘public policy’ ground for setting aside arbitral awards to discourage the courts from interpreting this ground widely and reviewing awards on merits. The Report refers to Renusagar Power Co. Ltd. v. General Electric Co. (1994), where the Supreme Court, in relation to a challenge to the enforcement of a foreign award, interpreted the meaning of the ground, “in conflict with the public policy of India”. The Court held that the term ‘public policy’ meant: (i) fundamental policy of Indian law; (ii) the interests of India; or (iii) justice or morality. The Court categorically held that contravention of law alone will not attract the bar of public policy.

The Report suggests that ‘public policy’ be confined to (i) and (iii) above in the context of international arbitrations seated in India, that is, that challenges based on the award being against the interests of India be disallowed. For domestic awards however, courts should be permitted to check the award for “patent illegality” when there is a challenge under Section 34.

These suggestions are commendable and mostly in line with what practitioners and commentators suggest. However, it is not clear whether they will make a difference in practice, as their application and interpretation remains at the hands of the judiciary, which has traditionally expanded the scope of its role in arbitration-related court hearings.

For example, in relation to challenges to the arbitration agreement, it is not difficult to envisage a situation where a court decides to delve into the substantive issues in dispute, such as the validity of the underlying contract, when it is framed as part of a challenge to the validity of the arbitration agreement (as the lower courts did in Enercon), or declare an agreement “inoperable” when there are pending proceedings before the courts relating to matters subject to the arbitration agreement (as the Delhi High Court did in Vikram Bakshi and Another v. Mc Donalds India Pvt. Ltd. and Others, I.A. No.6207/2014). Likewise, the public policy criteria in Section 34 – “justice or morality” and “fundamental policy of Indian law” can easily be interpreted by the courts in a wide manner. The point is simple. Statutory reforms by themselves do not protect against an interfering judiciary; much of the effectiveness of these reforms depends upon the judicial approach to arbitration-related court proceedings.

The large volume of arbitration-related court applications is another, and perhaps even more important aspect, of the problem of arbitration-court entanglement in India. This not only slows down arbitration, but also adds to the arrears before our already overburdened civil courts. The suggestions in the Report in this regard are quite far reaching and deserve closer attention.

(Sindhu Sivakumar is a solicitor on the rolls of England and Wales and qualified as an advocate in India.)

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Litigation Specialised

Behind the pipeline – legal strategies to combat unknown sources of water pollution

CommunitiesAndLegalAction_KanchiKohliIt was a hot summer afternoon in central India. Four of us had spent all morning taking a close look at an underground coalmine, its housing colonies, roads, transportation area, and other support infrastructure. We stopped to chat with workers at a local teashop. Even though we were fascinated and moved by their stories, we had to move on.

We had come to this place to understand how an important river had been polluted and the impact of this pollution. For many villages, this river and its feeder streams were important sources of water for drinking and for irrigation.

Across the road from the boundary wall of the mine, visible under a muddy patch of the road where we stood, was the mouth of a metal pipe. It was discharging thick black slurry. The slurry was heading straight into a stream flowing along the road. It was difficult to ascertain the source of the slurry in the pipe. Instead of following the pipe, we decided to follow the slurry.

After walking along the stream till it was not possible to trek any further, we met a resident of the area. “This polluted stream meets our river”, he said. “We are not able to use water from the river confidently any more. We are not even sure if it is fit for cattle. We have no clue what the black slurry is bringing with it.”

It was true. When we drove down towards the main river, we saw that it had been contaminated. There was no way to tell whether the water was poisonous or not. But it was clear that the discharge from the pipeline had been collecting on the river bed and blocking the easy flow of the river. Other residents of the area told us that the water flow is much stronger on some days.

Picture courtesy Kanchi Kohli

Picture courtesy Kanchi Kohli

To me, the veracity of their apprehension was just as big a question as whether the discharge should have been allowed in the first place. Since no one really knew who was responsible for constructing the pipeline and getting away with the effluent discharge, we had to understand the possible legal options for two scenarios – one where we knew who was responsible for the effluent discharge and one where that was not the case.

Almost all industries, mines and infrastructure activities where there is possibility of water extraction or water contamination are regulated at least by two laws: the Environment Protection Act, 1986 (“EPA”) and the Water (Prevention and Control of Pollution) Act, 1974 (“Water Act”). These industrial activities or processes would have also had to take approval under the Environment Impact Assessment Notification, 2006 (“EIA notification”) and seek consent under the Water Act.

When the source of pollution is known

If formal or informal sources indicated that the underground mine was indeed the source of the pollution, the course of action would be to immediately collect copies of the permissions granted under the EIA notification and the consent to operate letter from the relevant pollution control board.

Both the EIA-related permission (“environment clearance”) and the “consent to operate” are likely to have conditions related to how the polluted water to should be treated and where it should be discharged.

For instance, an environment clearance letter would say: “Mine water discharge and/or any wastewater should be properly treated to conform to the prescribed standards before reuse/discharge”. If this was mentioned in the approval given to the underground mine, then the discharge of the slurry into the stream would constitute a legal violation.

Sections 25 and 26 of the Water Act would also specifically be applicable to the underground mine. The project owners would have had to seek an approval from the Pollution Control Board clearly indicating the quantum and place of discharge. In their “consent to operate” letter, it is likely that the Pollution Control Board would have mentioned that coal waste should not be released into the neighbouring stream.

Environment clearance is a one-time permission given either by the Ministry of Environment, Forests and Climate Change or a state environment impact assessment authority. On the other hand, the consent to operate needs to be renewed every year by the relevant pollution control board, in charge of checking water pollution. For industries, the validity of the approval is five years to initiate the operations. No renewals are required thereafter. It is these pollution control boards or their regional offices, which also monitor whether these conditions are being followed.

When the source of pollution is not known

“But, there is no way we can find out the source of the pipeline. Only the discharge point is visible to us. However, we know that every 10-12 days, the discharge is much heavier than other days and the river is dark. Is there anyone we can complain to about this? , a teenaged schoolgirl, who had been overhearing our conversation, asked.

The Water Act has a clear objective of “prevention and control of water pollution and the maintaining or restoring of wholesomeness of water”. Pollution control boards (“PCBs”) set up under this law, have the responsibility for ensuring this. In fact, since 1974, these PCBs have been empowered by Section 17 (a) of the law to “to plan a comprehensive programme for the prevention, control or abatement of pollution of streams and wells”

Section 24 of the Water Act relates to prohibition of the use of a stream or a well for the disposal of polluting matter, by anyone. It did not really matter therefore, if we did not know the source of pollution. The PCB or its regional office could be asked to take action. People could meet the relevant officials or, as environmental groups or people with the help of civil society organisations have often done, file a written complaint.

Not surprisingly, my explanation was dismissed by a few in the group. “Why should we take the headache of going through all this paperwork when it is the responsibility of the government”, said one of them who seemed to be visiting his village from the neighbouring town. “No one cares about our place, or river”, another remarked.

I did not have any strong reason to disagree with the second remark. It is true that many regulatory procedures related to the environment are yet to be implemented to their true potential. Close to forty years of water pollution law in India and our rivers are still being polluted.

But I responded to the former remark. There is much to be desired from our regulatory institutions and  they hide behind the excuses of lack of personnel and “pressures” leading to inaction. The filing of complaints before them however, remains an option for those who are affected. By not filing any complaints, are we not accepting the inaction? Perhaps an increase in evidence-based complaints can push the institutions to respond?

The extent to which affected people are willing to take their chances is a big question.

Kanchi Kohli is a researcher working on law, environment justice, and community empowerment.