The Hindu : A bend in the river

Online edition of India's National Newspaper
Tuesday, Mar 19, 2002

Opinion

Opinion - Editorials

A bend in the river

ON THE FACE of it, a sum of Rs. 10 lakhs may seem like a pitifully small amount to impose on a company which, as long as six years ago, was held guilty of degrading the environment by its "callous interference with the natural course of a river". But the significance of the Supreme Court's order directing Span Motels to pay "exemplary damages" goes well beyond the quantum of the penalty. The fact that the sum was relatively small owes wholly to the fact that the company — in which the family of Kamal Nath, former Environment Minister, had a major commercial stake — has undertaken to bear its share of the project cost of ecologically restoring the environment around the Beas river in the Kulu-Manali region. In other words, the exemplary damages imposed on the company is quite distinct from its total liability, which will be determined separately. The exemplary damages are in the nature of a special penalty, which is intended to serve both as a warning and a deterrent for others not to indulge in activity that causes pollution or degrades the environment.

The Span Motels case has become one of the landmark cases in the environmental law of this country. It began when the Supreme Court took notice of a public interest litigation following news reports that the company, which had constructed a club on the banks of the Beas, had encroached on a sizeable tract of forest land, which it managed to get regularised when Kamal Nath was Union Environment Minister. Even worse, the company had unilaterally taken a number of measures to divert the course of the river (for instance, earthmovers and bulldozers were used to create a new channel) when land in its possession was threatened by floods. In 1996, a division bench of the Supreme Court quashed the lease which regularised the land encroached by the Kamal Nath family venture. It also ordered that the motel pay compensation for the restitution of the environment and ecology of the area and asked its management to show cause why special damages for causing pollution should not be imposed on it. The judgment made the public trust doctrine — which enjoins the Government to protect resources such as air, sea, water and forests for the sake of the general public rather than diverting their use to private hands — the law of the land. It held the Himachal Pradesh Government guilty of patent breach of public trust for leasing ecologically fragile land to the motel management.

The Court also strongly reiterated the polluter-pays principle as a means of paying for the cost of pollution and as a provision which acts as a deterrent against the act of polluting. As the Court pointed out, this principle cannot be restricted merely to compensate victims of pollution but must be extended to cover the cost of restoring environmental degradation. The subsequent developments in the Span Motels case flow from the basic principles laid down by the Supreme Court in 1996. Essentially, they have served to underline the basic point that the environment and ecosystems of this country cannot be eroded for private and commercial gain. The brazen manner in which Span Motels regularised the land it had encroached upon and diverted the course of the Beas reflects the influence it was able to wield in the corridors of power. The recent order imposing exemplary damages has come six long years after the 1996 judgment. Nevertheless, it sends out the important signal that anyone who degrades the environment, irrespective of position or status, shall be penalised for doing so. There is of course even more to be done. For, if the polluter-pays principle is to be applied in full, then the company must also bear the cost of ecologically restoring what it has degraded.

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