Jitendra Singh v. Ministry of Environment , Civil Appeal 5109 of 2019 (25 November 2019)
Supreme Court of India
An industrial company attempted to forcibly take over and fill nearly five acres of communal ponds in village Saini, near New Delhi, under authorization from the Greater Noida Industrial Development Authority (“GNIDA”). Para. 3. Jitendra Singh, a resident of the village and a public-interest lawyer, complained to local officials seeking to protect the water bodies from privatization for industrial use. Para. 2. After various officials failed to respond to Singh’s requests, he filed a complaint with the National Green Tribunal (“NGT”). Para. 3. The NGT summarily dismissed the case after GNIDA submitted an affidavit claiming it was developing larger ponds in a different location to replace those that would be destroyed. Paras. 7, 8. GNIDA claimed its actions were justified by a regional government order allowing water bodies to be allotted to private interests and filled for “large-scale works” under extraordinary circumstances, provided that larger, replacement water bodies are constructed elsewhere, and such projects serve a social public purpose or benefit local people. Para. 10. Singh appealed to the Supreme Court of India, which considered the sole question “whether it is permissible for the State to alienate common water-bodies for industrial activities, under the guise of providing alternatives[.]” Para. 14. The Supreme Court did not take up issues concerning the lack of environmental clearance or other illegalities Singh raised before the NGT.
The Supreme Court of India overturned the NGT’s decision, ordered GNIDA to restore, maintain and protect the water bodies and remove all obstructions from the catchment area within three months. Paras. 22-23.
In its opinion, the Supreme Court declared that GNIDA’s decision to allocate several ponds in village Saini to a private company for development violated the strict principle of non-alienation of common water bodies announced in Jagpal Singh v. State of Punjab (2011) 11 SCC 396. Paras. 17, 22. While the principle could hypothetically be waived for projects serving a social public purpose or benefiting local people, privatizing and destroying water bodies for industrial use while creating larger replacement water storage sites elsewhere does not fall within this narrow exception. Moreover, extinguishing natural water bodies would cause unquantifiable harm to the flora, fauna, and communities that rely these water sources, which cannot be offset by building artificial ponds in other locations. Paras. 17, 21-22.
The Supreme Court took the additional step of declaring that any scheme to destroy common water bodies violates constitutional duties to protect and improve the natural environment. Paras. 18-21. The Constitution of India requires the state to “endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country,” and imposes a duty on “every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life[.]” Constitution of India, Arts. 48-A & 51A(g).
The Supreme Court reinforced previous decisions explaining that the constitutional duty of each citizen to protect and improve the natural environment in Article 51A(g) is also an affirmative duty that falls on the state, since “the State is nothing but a collective embodiment of citizens, and hence collective duties of citizens can constructively be imposed on the State.” Para. 18. The Court also invoked the the right to life under Article 21, which includes the right to healthy environment. Because common water resources are essential to a healthy environment, the State must protect them as part of its responsibility to uphold this fundamental right. Paras. 15, 20. The Supreme Court explained how allocation of communal water bodies for private development would violate the people’s rights, and allowing the same would breach the government’s Constitutional obligations, stating:
These common areas are the lifeline of village communities, and often sustain various chores and provide resources necessary for life. Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.
The Supreme Court sharply criticized GNIDA’s claim that the artificial replacement ponds would provide an adequate remedy to villagers. Para. 21. The Court stated:
The respondents’ scheme of allowing destruction of existing water bodies and providing for replacements, exhibits a mechanical application of environmental protection. Although it might be possible to superficially replicate a waterbody elsewhere, however, there is no guarantee that the adverse effect of destroying the earlier one would be offset. Destroying the lake at Khasra Nos. 552 and 490, for example, would kill the vegetation around it and would prevent seepage of groundwater which would affect the already low watertable in the area. The people living around the lake would be compelled to travel all the way to the alternative site, in this case allegedly almost 3 kms away. Many animals and marine organisms present in the earlier site would perish, and wouldn’t resuscitate by merely filling a hole with water elsewhere. Further, the soil quality and other factors at the alternate site might not be conducive to growth of the same flora, and the local environment would be altered permanently. The respondents’ reduction of the complex and cascading effects of extinguishing natural waterbodies into mere numbers and their attempt to justify the same through replacement by geographically larger artificial waterbodies, fails to capture the spirit of the Constitutional scheme and is, therefore, impermissible.
Based on its findings, the Supreme Court quashed GNIDA’s decision to allocate the communal ponds to a private company and directed the Authority to “restore, maintain and protect” water bodies in village Saini. Para. 23.