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Indian environmentalism: Unconstitutional regression

The polluter must pay but he must be made aware of boundaries that are to be followed. Clarity and transparency are required on both sides.

Avishkar Singhvi

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Environmentalism is an omnibus construct, far beyond mere conservation and protection of air, soil, water and land. As US First Lady Bird Johnson said: “The environment is where we all meet; where we all have a mutual interest; it is the one thing all of us share.”

A disturbing trend has emerged, of concerted governmental action by way of rule changes and relaxations, degrading the environment with impunity. Two assaults—relaxations in several sectors qua environmental clearances and the generous and indiscriminate diversion of dense jungles for commercial/governmental use—require special mention. Close behind is conscious governmental silence qua pollution and water scarcity issues.

There is a grim failure to discharge the constitutional duty to protect the fundamental rights of citizens to preserve the environment, sidelining of experts, violating principles of non-regression and forgetting that this model cannot be sustainable in the long run because God never provides a free lunch for too long.

India witnesses an extremely high number of violations due to lack of proactive monitoring. It cries out for an environmental regime that has strict and clear standards and penalties for transgressions. The polluter must pay but he must be made aware of lucid boundaries that are to be followed. Clarity and transparency is required on both sides. In a country where the law spells out clear bright lines, there will be minimal need for vigilante “public interest” action which invariably creates serious bottlenecks for honest businesses that have followed due process of law.

 The Union Government amended the parent notification to dispense with Environmental Clearance ( EC) altogether for a large chunk of construction projects. For such categories, there is no requirement of Expert Appraisal (EA) or Environmental Impact Assessment ( EIA), the most crucial features in the process and without which there is mere lip service to the cause. Thankfully the courts stepped in in time and, while noting the complete desecration of the statutory framework as well as the wanton violation of the findings of the Kasturirangan Report, which had recommended the precise opposite, stayed the notifications. Ironically, these notifications are under section 3 of the 1986 Act, which only permits measures aimed solely at improving the quality of the environment and not degrading it. Meanwhile, the new 2020 notification languishes at the draft stage.

Similarly, the mining sector brazenly did away with EC for a large chunk of minor mineral leases and, worse, in the teeth of the Supreme Court’s ratio in Deepak Kumar’s case (2012) which laid down that EC procedures must apply even to small leases. Most mining leases are less than 5 hectares and cluster mining as also breaking up of large into smaller leases is the dominant reality in India. For such small leases, most of the EC processes are now to be dispensed with—yet another red flag egregiously crossed. The NGT sternly deprecated such practices and the matter is now before the apex Court. The fact that courts have somehow intervened to protect fragile environmental interests does not detract from bad intentioned and anti environmental attempts by the government to obviate scrutiny through venerable and tested tools like EIA and EA to achieve so called developmental goals in a tearing hurry.

 In the draft 2020 regime, for example, for the construction sector, a miniscule, almost non-existent level of scrutiny is proposed by way of an Environment Permission and standard EIA procedures are rendered inapplicable. Changing the name does not change the game, and most experts can see that this nomenclature change as a blatant, camouflaged relaxation.

The draft also introduces ‘ex-post facto clearances’ for violators, which militates against the very idea of a sequential process of Impact assessment study, management plans followed by an Environmental clearance after full application of mind. Such innovative amendments treat the sanctity of the environmental space with contempt and perform a far more dangerous function: post facto legitimation of illegalities. The timeless concept of once a forest always a forest has also been systematically undermined.

For Minor minerals, the draft proposes that ‘a one page deemed environmental permission’ would be enough, despite the existing decisions and the onerous mandate of the existing regime. Permission is virtually automatic, on the basis of a short questionnaire. These new concepts are introduced to circumvent the law and help powerful lobbies.

 These relaxations sync “admirably” with the projects undertaken by the government eg. Central Vista, Aarey colony, Netaji Nagar, Kidwai nagar, diversion of thousands of sq. km of forest land and so on. There is one common link. The government is the pro active player, playing a significant desecratory role and not the private sector! The age old dilemma rears its ugly head with no real answers: who will guard the guardians?

Corona, the scourge thrust upon us, has many benefits and lessons for those who want to be aware and wish to absorb. Minimizing the use of paper, virtual interactions, reduced transportation and energy costs, humongously reduced travel, minimalistic living, conserving our natural resources, decluttering, are all the compelling lessons of Covid, which should constitute the new normal. Instead, the government is regressing in the opposite direction qua environmentalism!

Campaigns such as Swachh Bharat or banning single use plastics, individually virtuous and desirable, seem hollow and hypocritical if the same governments who propound them, defile and deface the environment with such relaxations and such egregiously consuming mega projects. “Ease of doing business” cannot trump fundamentals relating to established and time tested environmental processes. If checks and balances seeking to ensure that projects are environmentally sustainable are diluted to vanishing point, then the consequence can only be irretrievable damage.

Pope John Paul II’s anguish must be remembered by all: “The Earth will not continue to offer its harvest, except with faithful stewardship. We cannot say we love the land and then take steps to destroy it for use by future generations.”

(The author is an Advocate, Supreme Court of India.)

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SC Collegium Recommends elevation of Justice Prasanna B. Varale as Karnataka HC Chief Justice; Recommends New CJs For Orissa, J&K

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The Supreme Court Collegium has recommended elevation of Justice Prasanna B. Varale, Bombay High Court Judge as the Chief Justice of Karnataka High Court.
Justice Prasanna B. Varale was born on 23rd June, 1962 and enrolled as an Advocate on 12th August, 1985. He also served as a lecturer in Law at Ambedkar Law College, Aurangabad from 1990 to 1992 and as the Assistant Government Pleader and Additional Public Prosecutor, High Court Bench at Aurangabad and also as an Additional Standing Counsel for Union of India.
On July, 18., he was elevated to the bench at Bombay High Court.
The Supreme Court Collegium also recommended to elevate of Orissa High Court Judge, Justice Jaswant Singh, as its Chief Justice.
Justice Singh was February 23, 1961 and was enrolled as an Advocate in 1986 in Haryana. In April 1988, he moved to Chandigarh and held the posts of Assistant Advocate General, Deputy Advocate General, Senior Deputy Advocate General and Additional Advocate General, in the office of Advocate General, Haryana, since March 1991.
On December 5, 2007., he was elevated as a Judge of Punjab and Haryana High Court and on 8th October, 2021., he was transferred to the Orissa High Court.
The Collegium also J&K High Court’s Judge, Justice Ali Mohammad Magrey to take charge as the Chief Justice.
Justice Magrey was born on 8th December, 1960 and enrolled as Advocate in the year 1984. However, he remained as standing counsel from 1986 onwards for various State instrumentalities and was appointed as Additional Advocate General in February, 2003. In September 2009, he was appointed as Senior Additional Advocate General.
On 8th March, 2013., he was appointed as Permanent Judge of the Jammu and Kashmir High Court.

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Supreme Court Collegium Recommends Transfer Of 3 Judges To Bombay, Jharkhand & Tripura High Courts

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The Supreme Court Collegium has recommended transfer of three Judges in its meeting held on 28th September, 2022 in the following manner:
The transfer of Justice Sanjaya Kumar Mishra from Uttarakhand High Court to Jharkhand High Court
Justice Mishra was born on December 29, 1961 and has obtained his LL.B. degree in 1987 and in February 1999 joined as Additional District & Sessions Judge. However, he worked as District & Sessions Judge, Sundergarh, Dhenkanal, Special Judge (CBI), Bhubaneswar and has joined as Registrar General of Orissa High Court.
On October 7, 2009., he was elevated as Judge of the Orissa High Court and was transferred to the Uttarakhand High Court on October 11, 2021. Between December 24, 2021 and June 28, 2022, he served as the Acting Chief Justice of Uttarakhand High Court.
The transfer of Justice K. Vinod Chandran from the Kerala High Court to Bombay High Court
Justice K. Vinod Chandran was born on April 25, 1963 and has started his law practice in 1991. Also, he served as a Special Government Pleader (Taxes) of the Government of Kerala from 2007 to 2011. In November 2011, he was sworn-in as Additional Judge of Kerala High Court and was appointed as a Permanent Judge with effect from June 24, 2013.
The transfer of Justice Aparesh Kumar Singh from Jharkhand High Court to Tripura High Court
Justice Singh was born on 7th July, 1965 and got enrolled as an advocate at Patna in 1990. On 24th January, 2012., he was elevated as an Additional Judge of Jharkhand High Court and was confirmed as permanent Judge on 16th January, 2014. Presently, he is holding an additional charge as Executive Chairman of Jharkhand State Legal Services Authority.

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Kerala High Court Directs Union Health Ministry And Department of Pharmaceuticals To File Response: Patents On Life Saving Drugs

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The Kerala High Court while taking serious note in the case XXX v. Union of India of the unaffordability of a life-saving patented medicine for breast cancer, the Court directed a competent officer of the union health ministry and the department of pharmaceuticals for filing their response on the issue within a month.
A direction has been issued by the Court after noting that the matter had to be taken up at the higher level.
The bench of Justice V.G. Arun observed and has warned that if the counter is not filed within the stipulated time, the court would be constrained to proceed with the case based on the “uncontroverted averments in the writ”.
During the hearing, the counsel appearing on behalf of the Department for Promotion of Industry and Internal Trade (DPIIT) and the Controller General of Patents, Patent Department, Standing Counsel T.C. Krishna submitted that the situation to invoke Sections 92 and 100 for compulsory license of the patented drug as sought for in the petition and was not prevalent as of present.
Further, it was asked by the counsel that how far the court could interfere in this case, since the plea had sought that the drug be made available at a reasonable price. Adding to it, he questioned that weather the Court could suggest what a ‘reasonable price’ would be to the government.
In response to the question, it was clarified by advocate Rahul Bajaj that cancer was not part of the list of the notifiable diseases list issued by the Central Government.
The Amicus Curiae, Advocate Maitreyi Sachidananda Hegde submitted that the authority to take decision under Section 92 or Section 100 of the Patent Act ought to be of the Joint Secretary level as the Assistant Patent Officer could not decide whether the issue falls within the government realm or not.
It was also argued by the Amicus that the legal question which has been raised could be decided by the Court.
Further, it was submitted by Amicus that the counter Affidavit that had been submitted by DPIIT and Patent Department suffered from certain drawbacks for not addressing whether reasonable discretion had indeed been exercised in the instant case or not.
The Counsel appearing for the respondent refused while stating that the government has to take the decision in this regard, before the Patent Department could go ahead with compulsory licensing or any other such measure.
Representing an intervenor, Advocate Bajaj pointed out that the right to health in Indian and International spectrum includes within its ambit the right to life-saving medicines, as well. Hence, it was submitted by the counsel that the issue could not merely be looked into from a policy lens alone, but that it is a rights-based issue in itself.
The Court on 16.09.2022., had taken a suo motto cognizance of the issue of unaffordability of patented life-saving medicines, in light of the death of the petitioner who had espoused this cause having not been able to afford the Ribociclib drug for the treatment of her breast cancer.
Accordingly, the court posted the case for the next hearing on 2nd November 2022.

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Allahabad high court: Not mandatory to summon lower court record before deciding state’s plea for grant of leave u/s 378(3) crpc

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The Allahabad High Court in the case State of U.P. v. Vakil S/O Babu Khan observed and has held that it is not mandatory for the High Court to summon the lower court record in every case before deciding the State Government’s application for grant of leave to appeal against an acquittal order as provided under Section 378(3) Cr.P.C.
It stated that section 378 Cr.P.C. provides for filing of appeal in case of acquittal by the State and sub-section 3 of Section 378 Cr.P.C. contemplates for grant of leave for the entertainment of such appeals filled.
The bench comprising of Justice Ashwani Kumar Mishra and Justice Shiv Shanker Prasad observed and has stated that it is for the High Court to decide on the basis of the facts and circumstances of each case that whether the application filled for grant of leave requires the perusal of the lower court records or not.
However, the court was of the view that though the right of the appellate court to summon the lower court record in an appropriate matter always subsists and it is not necessary for the High Court to call for the lower court records for consideration of an application under Section 378(3) Cr.P.C., in every case or as a matter of routine.
The Court also referred to the Apex Court’s ruling in the case of State of Maharastra Vs. Sujay Mangesh Poyarekar (2008) 9 SCC 475, wherein it was observed that the High Court while exercising the power to grant or refuse leave must apply its mind and considering where a prima facie case has been made out or arguable points have been raised and not whether the order of an acquittal would or would not be set aside.
It was observed that the court also took into account sub-section 2 of Section 384 Cr.P.C. which provides that before dismissing an appeal, summarily, the Court may call up for the record of the case. Thus, the court noted that non-summoning of the lower court records in an appeal against conviction is not fatal and that the use of the expression ‘may’ in sub-section (2) clearly suggests that the power to summon the record is only an enabling provision and as shall it is not to be read.
Further, the court stressed that every appeal is not required to be admitted inasmuch as leave must not necessarily be granted in every matter and the exercise of power in that regard is dependent before the Court upon a prima facie assessment of the material placed so as to ascertain whether the appeal raises arguable points or not.
Subsequently, the Court came to the conclusion that it is not mandatory for the High Court to summon the lower court record in every case before deciding the application for grant of leave under Section 378(3) Cr.P.C.
It was added by the court that the right of the appellate court to summon the lower court record in an appropriate matter always subsists and It is for the High Court to decide on the basis of the facts and circumstances of each case that whether the application for grant of leave requires the perusal of the lower court records or not.

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All women, married or unmarried, entitled to safe and legal abortion: SC

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All women, married or unmarried, entitled to safe and legal abortion: SC

In a landmark judgement this week, the Supreme Court held that all women are entitled to a safe and legal abortion. A bench headed by Justice D.Y. Chandrachud said that the meaning of rape must include marital rape for the Medical Termination of Pregnancy Act.
The Supreme Court said that the distinction between married and unmarried women for the purposes of the MTP Act is “artificial and constitutionally unsustainable” and perpetuates the stereotype that only married women indulge in sexual activities.
The rights of reproductive autonomy give similar rights to unmarried women as those to married women, the bench held.
Insisting on a “forward-looking” approach, the Supreme Court on 7 August opined that any discrimination between married and unmarried women in respect of the medical termination of pregnancy law in India that does not allow a single woman to go for an abortion after 20 weeks violates her personal autonomy.
The top court had said that it would interpret the Medical Termination of Pregnancy (MTP) Act and the related rules to see if unmarried women could be allowed to abort up to a 24-week pregnancy on medical advice.
The upper limit for the termination of pregnancy is 24 weeks for married women, with special categories including survivors of rape and other vulnerable women such as the differently-abled and minors; the corresponding window for unmarried women in consensual relationships is 20 weeks.

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SEBI v/s RIL : Review Petition Admitted

The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies.

Tarun Nangia

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SEBI v/s RIL : Review Petition Admitted

The Supreme Court in the case Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors observed and has allowed for listing of the instant petition in open court.

The bench comprising of the Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari and the Justice HimaKohli observed while considering the facts and circumstances of the case and on the submissions made by the counsel in the review petition. The bench deemed it appropriate to allowe the application filled for the listing of the instant petition in open court.

Background of the Case:

The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies. In 2020, a complaint was filled by S Gurmurthy, the regulatory initiated probe into the alleged irregularities. An opinion was sought by SEBI of former Supreme Court judge Justice BN Srikrishna twice and also the opinion of a Chartered Accountant named YH Malegam.

It was requested by the RBI for disclosure of these opinions and related internal documents. The RIL filed a writ petition before the Bombay High Court, when SEBI turned the request and the same was dismissed in February 2019.

A Criminal complaint was lodged by SEBI in 2020 before Special Judge, Mumbai against RIL alleging offences punishable under SEBI Act and Regulations. The same was rejected by the Court as time-barred. A revision petition was filled by the regulatory before the Bombay High Court challenging the dismissal of the complaint. However, in SEBI’s revision petition, RIL filed an interlocutory application seeking the disclosure of the documents. The High Court adjourned RIL’s application on March 28, 2022 by stating that it can be considered only along with the main revision petition. Therefore, this led to filling of the special leave petition before the Supreme Court.

On September 29, 2022., the matter was circulated in the Supreme Court. Accordingly, the court listed the review petition for next hearing on 12.10.2022.

Case Title: Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors
Case No: W.P.(C) No. 250 of 2022 & W.P.(C) of 1167 of 2022.
Coram: Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari, Justice Hima Kohli
Date Of Order: 29th Day of September, 2022.

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