Author(s): Sanjay Sen 1

The views and opinions expressed in this article were earlier presented by Sanjay Sen in the webinar: ‘Future of Sustainable Development in a Post COVID-19 World’ conducted by Association of Indian Law Institute Alumni (AILIA) and the Indian Law Institute (ILI), New Delhi on 03.06.2020.

COVID-19 – Benefit to the Environment or Not? The extensive global lockdowns to contain the COVID-19 pandemic brought some visible benefits to the environment. For many weeks, WhatsApp messages were replete with stories and pictures of wildlife sightings in many cities and towns across the globe. Clear skies, bright stars et al. was much in circulation. But for me, all this is short-lived and I expect that our environmental consciousness and enthusiasm will disappear once we kick-start our lives post the pandemic. For I see a more aggressive form of economic activity happening after the effects of COVID-19 have reduced. These economic activities will not only be driven by an individual passion for enterprise, and to make a living and – to catch up on lost wages, but also by various governmental economic stimulus packages that have been announced and are likely to be announced in future.

Certain announcements made by the government during the lockdown may not inure to the benefit or liking of environmentalists and environment-conscious citizens. The government has issued a notification that now allows transportation and use of coal without the requirement of washing. 2 This was not permitted earlier but, now to support power producers, the government has given a relaxation, as the washing of coal increases its price. Today, unwashed coal with 34% and more ash content can be transported and utilised. This relaxation will lead to higher emissions by India.

Another COVID-19 announcement was opening up coal mining for the private sector.3 While there may be economic considerations for doing this, the burning of fossil fuel goes against the current international trends and India’s treaty commitment. Therefore, extensive mining in this area by private enterprises will certainly have a long-term impact that is adverse to the environment. There are existing mines with Coal India Limited (CIL) that can be given to private enterprises for more efficient mining, without the need for opening new mines. CIL subsidiaries can be privatised too. Once investment goes into new mines, it will be difficult to reverse it and we will be struggling with new measures to contain the further adverse environmental impact, which will not be effective and is likely to be opposed by the private sector investors. What is the message – are we encouraging coal-based industry for which we are now seeking private investments? Where will this private coal go and burn?

We have seen this in relation to the Flue gas de-sulphurisation (FGD) requirements in power plants. Although the original timeline given for installation of FGD for controlling the emission of sulphur dioxide (SO2) was two years from the 2015 Ministry of Environment, Forests and Climate Change (MoEF)  notification, the said timeline has been extended from time to time. The current report suggests that even the 2022 deadline will be missed by most power generators. With it, the issue of arresting emission of oxides of nitrogen has also been linked and now suffers enormous delays. While there may be genuine issues why the power plants are opposed to additional CapEx on account of FGD, and the same is caught in regulatory processes, however, the Environment Clearances (ECs) that were issued before 2015 in many cases while noticing the need to have FGDs, did insist on the same. They said that adequate land should be there for FGD and not the FGD itself. MOEF and the Pollution Control Boards (PCBs) did not insist on having FGDs and appropriate emission norms. This is an institutional failure for which all of us will pay.

Another COVID related incursion on the environment is the potential dilution of the Environmental Impact Assessment Notification, 2006 (EIA Notification, 2006). There have been news articles, which say that the guidelines are now more “investor-friendly”, with a view of the government slogan of “ease of doing business in India”. How can the health of citizens/ the nation be compromised – and be relaxed – to enable “investments”? Certain rights and concerns are non-negotiable. The environment is most certainly one of them.

There are, I believe, notifications issued during the pandemic that exempts public hearings for road construction and certain kinds of projects, for irrigation, roads etc. These trends are worrisome and can be exploited – to cause irreversible harm and detriment.

Role of Institutions during National Emergencies: In a country having constitutional democracy based on the rule of law, institutions have a large role to play not only under normal conditions but also during national emergencies. While many of us have been complaining about the perceived failure of the Supreme Court of India in not effectively dealing with the migrant crisis when they were initially approached in March 2020, there is no serious critique or examination of other institutions. Institutionalisation has been by described by social scientists as the process of developing and transforming rules and procedures that influence a set of human interaction. In a liberal democracy, it is often seen as an ongoing process.

When COVID-19 happened from a legal perspective, the policymakers broadly looked at two laws available for handling the pandemic:

  1. Epidemic Disease Act, 1897. This 123-year-old legislation with just four provisions only allows States to inspect people travelling by railway, ships and segregate suspects in hospitals or temporary accommodation.

  2. Apart from this 123-year-old law, we have the Disaster Management Act, 2005. (I do not know the status of the law which was meant to replace the 1897 Act, i.e. Public Health (Prevention, Control and Management of Epidemics Bioterrorism and Disaster) Bill, which was drafted by the Ministry of Health and Family Welfare in 2017 but has not been debated much). Disaster Management Act, 2005 is a more recent legislation and under this, there are Disaster Management Guidelines that were issued in 2008. There is also a National Disaster Management Plan of 2019, which is quite exhaustive. This Act has a top-down three-tier approachat the Central, State and District level. The lockdowns and various other orders/ notifications were primarily issued by the Central Government under this Act. However, many State Governments have also invoked the powers under the 1897 Act. Some states also have their own Disaster Management Act.

The response to COVID-19 at the Central and State level has resulted in the following, as of yesterday i.e. June 2, 2020 – the website of  PRS Legislative Research states that the Centre has issued 746 notifications and the States have issued (all put together) 4297 notifications. Most of these are in the nature of clarifications or addendums. The point that I am trying to make here is that there is an element of adhocism and uncertainty in our approach. The fact that we are constantly having to issue public notifications/ clarifications/ addendums, not only goes to expose the lack of institutional maturity but also has the potential of causing extreme stress at various levels of administration. Apart from confusing citizens and their business, it has confused the public and private administrators – whether it be the hospitals or quarantine facilities, transporters, sabzi mandi and essential service providers, including the district administration. Everyone seems to find the whole process chaotic. One hears such murmurs across the country. As a result – compliance is poor and it becomes difficult to fix accountability.

However, this is not just a problem of India alone. Most developed parts of the world, including the US and UK, have witnessed similar problems. Even in Western Europe, countries like France, Spain and Italy have seen a poor institutional response to the pandemic. However, countries like South Korea, Singapore and Germany (and some say even Vietnam) have managed the situation well. New Zealand and Australia seem to have done well too. There may be a lesson for us here, which we need to incorporate from an institutional perspective. We have to learn to develop processes and not decide intuitively – the costs are heavy and mistakes often multiply. Another issue from an institutional perspective – is an honest presentation of data. Unless the data, however adverse,  is not honestly put out – it will lead to wrong decisions and failed coverups.

Now, let me draw your attention to the role of an organisation, which according to my understanding has not delivered during the pandemic, i.e. the National Human Rights Commission (NHRC) and the State Human Rights Commissions (SHRCs). The role of these Commissions during the current pandemic needs closer inquiry. If you go to the website of NHRC (as on today, i.e. June 03, 2020), the notices that have gone out will demonstrate the level of institutional response that a national body like the NHRC has provided. One of the earliest notifications relating to COVID-19 was issued on April 4, 2020, where the Commission asked the Centre to make arrangements for mentally ill people roaming on the streets during the COVID-19 lockdown. The concern was that these mentally ill people should not become easy carriers of the deadly virus. I say when was the State put to notice that mentally ill people should be looked after and not be left alone, to their own peril?

I ask myself as to what were the notifications and follow up steps taken when migrants started leaving the various cities and towns, who were not only potential carriers of the virus, but also victims of extreme hardship and human rights sufferings. A review of the various notifications will show that in May 2020 after the Visakhapatnam gas leak (Vizag gas leak) which was noticed by the NHRC, they issued a show cause to the Chief Secretary of Maharashtra and Deputy Magistrate, Aurangabad to explain the mowing down of 16 migrants on a railway track. This was followed up by another notice to the Delhi Chief Secretary and the Union Health Secretary on the death of Delhi Police Constable due to the negligence of the hospital. Then notice was again issued to the Maharashtra Chief Secretary on allegations of wrong interpretation of the order of Supreme Court about releasing prisoners after random testing at Arthur Road Jail, which found 103 prisoners to be COVID positive including 26 staff members. Another notice was issued to Maharashtra on the same day when a woman walking on foot from Maharashtra to Madhya Pradesh delivered a baby on the road. Notices were also issued to Uttar Pradesh and other states where migrants have died during their attempted walk home. A review of all the notifications and follow up steps will give you a flavour of our institutional response to a crisis, which is more often driven by adhoc anecdotal reporting in newspapers and other places without any inquiry, study and / or a meaningful plan on how to address a massive human rights crisis in a comprehensive manner. In most of the notices, it will be seen that NHRC is seeking explanation after the event (of death) has happened, like a legal post-mortem. At the same time, the railways have been spared when there are reports of several deaths while migrants were in transit.

Apart from NHRC, there are other institutions and their roles need to be examined in detail. The role of the Indian Medical Council, and Indian Council for Medical Research – in terms of their ability to discharge their role as regulators for hospitals and other medical practitioners and also on the management of the virus. This kind of study should be done by independent experts, but we will need to identify the areas that require examination.

An interesting article in the Mint has highlighted the inadequacies of India’s university system in dealing with COVID pandemic. The point that was made in that article was that at a time when world universities have been at the forefront of the battle against coronavirus, Indian universities are nowhere to be seen. The article speaks of universities role not only in the field of medical science (for creation of vaccine) but also in relation to building the epidemiological model for the spread of the virus. Special mention is made about Imperial College in London and Peaking University in China. Professor Dinesh Singh, former vice-chancellor of the University of Delhi is quoted to have said that no statistician, no mathematician is trying to create a model in India for the spread of the disease. All of the models are coming from abroad. The article further elaborates on the apathy towards institutes of higher learning that has resulted in lower research output compared to China. The article highlights that university finances particularly those which are State-funded are said to be badly managed. It points out that 34% faculty position in higher educational institutions under the Central Government are lying vacant and 27% under the State Government are also lying vacant – as per data presented to the Parliament in December 2019.

While all of us discuss COVID-19 and related issues, there is something that is killing us every day and has not had any serious governmental attention since 1968. I am referring to the presence of pesticides in our food. Till now, we continue to have the Insecticide Act, 1968 with all its inadequacies. While several articles, journals etc. have been written about the high pesticide content in our food, the institutions that manage this subject have failed us over the years. The Pesticide Management Bill, 2020, was introduced by the Minister for Agriculture and Farmers Welfare on March 23, 2020. We hope that this will be able to give some relief to us and our children because while COVID and its medical effect for the community (at large) may last for six months to a year as per global estimates, access to food without pesticide is a far more important subject with long-term repercussions, which requires determined institutional delivery.

There are other institutions like the Bar Councils – both at the national level and at the state level, National Green Tribunal (NGT) and Sector Regulators – Insurance, Telecom, Air Planes & Airports. All have them had a role to play in managing their sectors during the crisis. Some of the issues – those relating economic and health will require a medium-term (3 to 5 years) planning. Here too, an institutional audit is necessary – to ask the right questions and see the gaps. 

Ethical Obligations Should Guide Institutions During A Crisis: While the role of the government and institutions in dealing with a crisis is open for questioning, we must remember that at all times (during a crisis or otherwise) one needs to build systems and procedures having ethical obligations. An expert committee in the US while defining the Standard of Care during a crisis (post-Joplin) said –  when demand for resources exceeds what is available, the cornerstone of all coordination and integration in such times have to be based on the foundation of ethical obligation – the rules do not change when resources are scarce.4 Protection of human rights through a responsive and predictable institutional mechanism (during a crisis or otherwise) is an important part of liberal democracy.

All views expressed are personal

  1. Sr. Advocate, Supreme Court of India.
  2. Washed coal is coal that has been mechanically washed off impurities such as ash, soil, rocks etc. According to a study by the US Department of Energy, the use of washed coal reduces carbon dioxide emissions by 11 %.
  3. As part of the fourth tranche of the Atma Nirbhar Bharat Abhiyan COVID-19 relief measures, on May 16, 2020, Finance Minister Nirmala Sitharaman announced that nearly 50 coal blocks will be offered immediately for auctions and “any party could bid for the blocks and sell in the open market.” There would be no eligibility of condition and only be upfront payment with a ceiling.
  4. Institute of Medicine. 2010. Crisis Standards of Care: Summary of a Workshop Series. Washington, DC: The National Academies Press.