18th August – Editorials/Opinions Analyses

Contents

1. Jurisdictional conflict in the running of Delhi
2. Judicial remedies for J&K Internet restrictions
3. NGT order fines Mumbai firms for creating ‘gas chambers’
4. Bhadbhut project explained

JURISDICTIONAL CONFLICT IN THE RUNNING OF DELHI

Focus: GS-II Governance

Introduction

The Constitution Bench of the Supreme Court in Government of NCT of Delhi vs. Union of India (2018) said: “The exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has powers to legislate for the NCT of Delhi.”

NCT of Delhi vs. Union of India: Issues and possible solutions

• The judgment enunciates lofty principles concerning constitutional morality, co-operative federalism, constitutional conscience, pragmatic federalism, etc.
• It tells the State government that it should remember that Delhi is a special category Union Territory and lays down the parameters to enabling the harmonious functioning of the government and the Lt. Governor.
• The Supreme Court has settled the law in regard to the ‘aid and advice’ of the Council of Ministers by affirming that the Lt. Governor is BOUND TO ACT ON THE AID AND ADVICE EXCEPT IN RESPECT OF ‘LAND’, ‘PUBLIC ORDER’ AND THE ‘POLICE’.
• The Court has also made it clear that there is no requirement of the concurrence of the Lt. Governor and that he has NO power to overrule the decisions of the State government.
• In the operationalisation of Article 239AA (4) (proviso) which says that in the case of a difference of opinion between the Lt. Governor and his Ministers on any matter, the Lt. Governor shall refer it to the President for decision and act according to that decision (and “President’s decision” in reality means the decision of the Union Government).
• In the meantime, if the Lt. Governor thinks that the matter is urgent, he can take immediate action on his own – (bringing the matter back to square one).

How is it back to square one?

If a Lt. Governor, for example, wants to frustrate the efforts of the government, he can declare that there is a difference of opinion on any issue decided by the elected government and refer it to the President which in reality means the Union Home Ministry, and the Lt. Governor being its representative, it is easier for him to secure a decision in his favour.

Example:

• The recent appointment of prosecutors for conducting the Delhi riot cases in the High Court is a case in point.
• As per the High Court and the Supreme Court, the appointment of prosecutors is exclusively within the purview of the State government.
• When the government decided to appoint them, the Lt. Governor referred it under proviso to Article 239AA (4) to the President stating that there is a difference of opinion between him and the government over this matter.
• In the meantime, the Lt. Governor appointed all the prosecutors whose names were submitted by the Delhi Police and thus the State government’s list was rejected.

Can routine administrative matters be referred to the president?

A close reading of the Supreme Court judgment in the NCT Delhi case (supra) would reveal that the governor cannot refer routine administrative matters on account of “difference in views” as the Supreme Court says:

1. “The words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter’.”
2. “The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lt. Governor.”
3. “Keeping in mind the standards of Constitutional trust and morality, the principles of collaborative federalism and the concept of Constitutional balance.”
4. “The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.”

Matters of jurisdiction

• There is another point which emerges from the judgment and attention needs to be paid to it – the executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly.
• Parliament can legislate for Delhi on any matter in the State List and the Concurrent List but the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the State government headed by the Chief Minister.
• The Supreme Court says, “Article 239AA (3)(a) reserves the Parliament’s legislative power on all matters in the State List and Concurrent List but clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has powers to legislate.”
• The only occasion when the Union Government can overrule the decision of the State government is when the Lt. Governor refers a matter to the President under the proviso to clause (4). But this proviso cannot totally override the executive decisions of the State government under clause (4).
• The judgment of the Supreme Court resolves this apparent contradiction by enjoining the Lt. Governor to keep in mind while making a reference to the President the constitutional morality, principles of collaborative federalism, concept of constitutional governance, objectivity, etc.

The last word

• Supreme Court gives wise advice to the Lt. Governor: “We may reiterate that the Constitutional scheme adopted for the NCT of Delhi conceives of the Council of Ministers as the representatives of the people on the one hand and the Lt. Governor as the nominee of the President on the other who are required to function in harmony within the Constitutional parameters.”
• “In the said scheme of things, the Lt. Governor should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi; rather, he should act as a facilitator.”

-Source: The Hindu

JUDICIAL REMEDIES FOR J&K INTERNET RESTRICTIONS

Focus: GS-II Governance

Why in news?

The Central government has agreed to restore Internet in two districts in Jammu and Kashmir on a trial basis in response to the Supreme Court of India’s approach.

Reasoning against Internet Shut Downs

The Special Rapporteur on Freedom of Opinion and Expression of the United Nations and representatives of other regional organisations, in a Joint Declaration, have pointed out that neither the slowing nor the shutting down of the Internet is justifiable even on national security grounds.

This is because Internet shutdowns or slowdowns are an inherently overbroad restriction for it adversely affects millions of innocent civilians owing to the actions of a few.

Adverse effects of shut-down of 4G services in J&K

The provision of 2G Internet on mobile phones after shutting-down of 4G services has failed to provide any meaningful respite to the people of J&K.

It has become impossible for them to adapt to the pandemic, by resorting, as the rest of India has, to online classes, working from home, tele-consults with doctors or even video calls with family.

Important industries such as tourism, handicrafts and agriculture have faced devastating losses.

Right of judicial review

Two arguments have been advanced to justify the Court’s deferential approach.

First, that such decisions are not based on objective factors that can be presented to and assessed by a judicial body, but are based on the “subjective satisfaction” of officers who possess exclusive knowledge of the situation on the ground.

The second argument offered is that the Court does not have the competence to review matters of national security. However, this argument taken to its logical conclusion would imply that the Court cannot rule on any complex issue irrespective of its impact on fundamental rights.

The four-step test

The Court in Anuradha Bhasin recognised the proportionality test as the framework for such assessment, under which, the government must provide a four-step justification.

It has to show that:

1. The restrictions are in pursuance of a legitimate aim (in this case, national security),
2. They are suitable to achieving that aim,
3. There exist no less restrictive alternatives that would limit the right to a lesser extent,
4. The adverse impact of the restrictions are proportionate to their benefit.

-Source: The Hindu

NGT ORDER FINES MUMBAI FIRMS FOR CREATING ‘GAS CHAMBERS’

Focus: GS-III Environment and Ecology

Introduction

• The National Green Tribunal (NGT) in an order asked four industrial firms in Mumbai to pay Rs 286 crore as compensation for environmental damages caused by air pollution over five years.
• The NGT held them responsible for creating “gas chamber”-like conditions in certain areas of Mumbai.
• The calculations of the environmental damage compensation were based on the report by an in-house technical committee of the Central Board of Pollution Control (CBPC).
• (Volatile organic compounds) VOC emissions data was collected based on records produced by the companies.

What are Volatile Organic Compounds (VOCs)?

• Volatile organic compounds (VOCs) are emitted as gases from certain solids or liquids. VOCs include a variety of chemicals, including benzene, toluene, xylene, ethylbenzene, and are harmful toxic pollutants that cause exposure-related health effects in human beings.
• Among the major contributors to air pollution in Chembur are logistic services storing oil, gas and chemical items; and oil companies releasing VOCs during loading, storage and unloading or handling of hazardous chemicals at various stages.
• Many cases of pulmonary diseases and respiratory tract infections have been reported due to exposure to VOCs.
• VOCs are also emitted by a wide array of household products including paints, cleaning supplies and pesticides.

Who will get the compensation?

The compensation will be made available for the plan to be executed by the respondents (firms) themselves, or otherwise as may be decided by the committee from time to time.

National Green Tribunal (NGT)

• The NGT was established on October 18, 2010 under the National Green Tribunal Act 2010, passed by the Central Government.
• National Green Tribunal Act, 2010 is an Act of the Parliament of India which enables creation of a special tribunal to handle the expeditious disposal of the cases pertaining to environmental issues.
• NGT Act draws inspiration from the India’s constitutional provision of (Constitution of India/Part III) Article 21 Protection of life and personal liberty, which assures the citizens of India the right to a healthy environment.
• The stated objective of the Central Government was to provide a specialized forum for effective and speedy disposal of cases pertaining to environment protection, conservation of forests and for seeking compensation for damages caused to people or property due to violation of environmental laws or conditions specified while granting permissions.

Structure of National Green Tribunal

• Following the enactment of the said law, the Principal Bench of the NGT has been established in the National Capital – New Delhi, with regional benches in Pune (Western Zone Bench), Bhopal (Central Zone Bench), Chennai (Southern Bench) and Kolkata (Eastern Bench). Each Bench has a specified geographical jurisdiction covering several States in a region.
• The Chairperson of the NGT is a retired Judge of the Supreme Court, Head Quartered in Delhi.
• Other Judicial members are retired Judges of High Courts. Each bench of the NGT will comprise of at least one Judicial Member and one Expert Member.
• Expert members should have a professional qualification and a minimum of 15 years’ experience in the field of environment/forest conservation and related subjects.

Powers of NGT

The NGT has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in Schedule I of the NGT Act. These include the following:

1. The Water (Prevention and Control of Pollution) Act, 1974;
2. The Water (Prevention and Control of Pollution) Cess Act, 1977;
3. The Forest (Conservation) Act, 1980;
4. The Air (Prevention and Control of Pollution) Act, 1981;
5. The Environment (Protection) Act, 1986;
6. The Public Liability Insurance Act, 1991;
7. The Biological Diversity Act, 2002.

This means that any violations pertaining ONLY to these laws, or any order / decision taken by the Government under these laws can be challenged before the NGT.

Importantly, the NGT has NOT been vested with powers to hear any matter relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927 and various laws enacted by States relating to forests, tree preservation etc.

-Source: Indian Express

BHADBHUT PROJECT EXPLAINED

Focus: GS-III Industry and Infrastructure

Why in news?

The Gujarat government recently awarded the contract for a barrage project – The Rs-4,167-crore Bhadbhut project in Bharuch.

Details

• The Bhadbhut project in Bharuch is meant to solve freshwater problems in this region of Gujarat.
• It has also faced protests from local fishermen for its likely impact on fishing patterns, notably those of hilsa.

What is the Bhadbhut project?

• It is planned to be a causeway-cum-weir barrage with 90 gates, across the river Narmada, near Bhadbhut village about 25km away from the mouth of the river, where it flows into the Gulf of Khambhat.
• The barrage will stop most of the excess water flowing out of the Sardar Sarovar Dam from reaching the sea and thus create a “sweet water lake” on the river.
• The barrage will also have a six-lane road that will connect the left and right banks of the river and provide shorten the land distance between two large industrial estates in Surat and Bharuch.
• The project also aims to prevent flooding in years when rainfall is higher than normal.
• The barrage design also has a navigation lock to enable any future plans to run a ferry service or boats under the inland waterway scheme.

Why was the need felt?

• The main purpose of the project is to prevent salinity ingress.
• When the height of the dam rose, flow into the river reduced, and due to the reduced flow of fresh water, saline seawater gushes into the Narmada estuary during high tide, thus increasing salinity along the banks.
• The sweet water from the reservoir will aim to meet the residential and industrial water requirements of Bharuch, Ankleshwar and Dahej.
• The project is part of the larger Kalpasar Project, which entails construction of a 30-km dam across the Gulf of Khambhat between Bharuch and Bhavnagar districts.
• The reservoir is meant to tap the waters of the Narmada, Mahisagar and Sabarmati.

Concerns raised by fishermen

• The barrage is expected to interfere with the migration and breeding cycle of hilsa.
• A marine fish, hilsa migrate upstream and arrives in the brackish water of the Narmada estuary near Bharuch for spawning usually during the monsoon months of July and August, and continue doing so till November.
• Once the barrage is built, it is expected to block their natural entry.

What is the government’s stand on this?

• Government officials say the entry of hilsa will not be restricted on account of the barrage.
• The Government has planned fish passes for hilsa fish.
• Designs will be made by the EPC (Engineering, Procurement and Construction) contractor based on the report based on study of migration patterns of hilsa.

What other areas will the project impact?

• Part of Aliya Bet, and island in the delta of the Narmada and known for shrimp farming, is likely to get submerged.
• A portion of the forest in Aliya Bet too will get affected by the project.

-Source: Indian Express