By Sumedha Upadhyay:
‘Taj Mahal’ the ‘Crown of all Monuments’ is not only one of the wonders of the world but of our country also. The Taj Mahal, the mother of all monuments, is the finest structure built in the history of India. It was built by Shah Jahan in the memory of his beloved wife Mumtaz Mahal and since then the centuries old marvel stands as a monument of love.
Taj Mahal is the most beautiful creation that the Mughals gave to India. Shah Jahan spent years to build this beautiful structure and used the best material to create it. The finest white marble was used to build the Taj Mahal that stands right in the middle of lush green gardens, as it was believed by the Mughals that heaven alone was said to have such gardens.
I chose to write on the Taj Mahal Trapezium case by virtue of not only being an environment friendly person and a law learner but also because I do not want this marvel to lose its charm by the ever increasing pollution caused by mankind today. It has been listed by the United Nations as a world heritage site and is India’s most visited tourist destination. The Taj Mahal is renowned for its symmetry of proportions, its intricate details and most of all its white shining marble which changes its shades as the day approaches from dawn till midnight. While it shines pristine white at noon time, it appears whitish silver on a full moon night.
Unfortunately, we could not respect the existence of Taj Mahal. This symbol of eternal love now stands polluted, losing its romantic character. It suffers from what is termed as ‘Marble Cancer’ and has lost its sheen due to the air borne particles that are being deposited on it giving a yellow tinge to its pure white marble. The pollutants that are emitted by the industries such as the Mathura Refinery, iron foundries, glass factories & brick kilns situated in and around Agra react with the marble forming of a fine layer of dust over it. There is fungus in its interiors and exteriors. Pollutants such as sulphur dioxide and nitrous oxide combine with moisture and settle on the walls of the monument. Added to this the pollution from the vehicles, the dirty graffiti being made on the walls by the tourists, decreasing green belt around the area all imply the negligence on the part of the Uttar Pradesh Pollution Control Board, NEERI and the Ministry of Environment.
Steps have been taken to reduce the pollution and to monitor the emission of pollutants but in reality all these efforts stand redundant in operation. The truth is that the Taj Mahal once known for its everlasting pure white marble is undergoing cosmetic treatments to enhance its beauty but these efforts are all temporary and have no substantial effect. Taj’s beauty is becoming a liability for us.
In this case a petition was filed by the famous Environmental lawyer M.C Mehta regarding the threat to the deteriorating beauty of Taj Mahal to invoke the Air (prevention and control of pollution) Act 1981 and Water (prevention and control of pollution) Act 1974 and Environment Protection Act 1986 for the purpose of relocation of industries to prevent emissions generated by coke or coal consuming industries having a damaging effect on Taj and people living in the TTZ, and further to direct them to change over to natural gas as industrial fuel.
According to the petitioner, the foundries, chemical/hazardous industries and the refinery at Mathura were the major sources of damage to the Taj. The sulphur dioxide emitted by the Mathura Refinery and the industries when combined with Oxygen-with the aid of moisture in the atmosphere formed sulphuric acid called “Acid rain” which had a corroding effect on the gleaming white marble. Industrial/Refinery emissions, brick-kilns, vehicular traffic and generator-sets were primarily responsible for polluting the ambient air around Taj Trapezium (TTZ).
Court took cognizance of this matter in January 1993. There were four NEERI reports, two Varadharajan reports and several reports by the State pollution Control Board. After examining all the reports and taking into consideration other material on the record, the court had no hesitation in holding that the industries in TTZ were active contributors to the air pollution in the said area. NEERI and Varadharajan (1978) reports had specifically recommended the relocation of industries from the TTZ. Although the State Pollution Control Board had placed on record list of 510 industries which were responsible for air pollution but it confined the order only to 292 industries located and operating in Agra.
It further held that the Taj, apart from being cultural heritage, is an industry by itself. More than two million tourists visit the Taj every year. It is a source of revenue for the country. The Court monitored the petition for over three years with the sole object of preserving and protecting the Taj from deterioration and damage due to atmospheric and environmental pollution.
The objective behind this litigation is to stop the pollution while encouraging development of industry. The old concept that development and ecology cannot go together is no longer acceptable. Sustainable development is the answer. The development of industry is essential for the economy of the country, but at the same time the environment and the eco-systems have to be protected. The pollution created as a consequence of development must support the carrying capacity of our eco-systems. Thereby supporting the ‘Precautionary Principle’ which says its better to err on the side of caution rather to wait for the harm to take place in other words the State must Anticipate, Prevent and Attack the harm caused to the environment.
The Court ruled that “Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person irrespective of the fact whether he took reasonable care or not. Consequently the polluting industries are “absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas”. The “polluter Pays” principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of “Sustainable Development”.
However the judgment lacked in the following manner which lead to many follow up Taj Mahal Trapezium Cases:
The order only extended to 292 industries out of the 510, whose names were put forward by the pollution control board in the court. However the rest of the industries also contributed to the pollution in some way or the other resulting in the yellowing of the marble Hence the order should have extended to all the industries and not only to 292 industries alone.
The court directed that only those industries would be relocated who refuse to accept natural gas as an alternative fuel or to whom it is not available due to some technical difficulties. In my opinion all the industries should have been directed to relocate themselves as even when natural gas would be used by the industries it would lead to only a small reduction in the pollution level and would not eliminate pollution in totality.
The judiciary scrutinized the situation for about three years from 1993 to 1996, during these three years of pendency of litigation a lot of harm was already done by the industries adding on to the existing pollution levels. A prompt action should have been taken by the court instead of spreading it over for three long years, as this was a case involving our national heritage.
The judgment only talks of coke and coal as the pollutants, there is not much emphasis on the pollution caused by the brick kilns, chemical industries, bangle and glass factories, excessive traffic on the roads of
Agra and the waste being thrown by the road side shops and restaurants.
There is no mentioning of restoring the original quality of the marble, only prevention and control of pollution finds its place in the judgment.
Further, it does not talk about restoring the quality of water of Yamuna. The park built by ASI is not helping the beautification of Taj Mahal but destroys the structure. Historical maps and geographical information show Yamuna flowing close by the Taj Mahal to the extent of even touching its rear walls. The Emperor Shah Jahan built it because of the existence of the huge water body in the background. The Taj’s foundation is water borne; the monument rests on huge wooden slabs placed inside the deep wells that need perennial water. It is built on a riverbank and wells were dug up 50 meters above the riverbed to form its base. It is feared that the monument could suffer serious structural damage if Yamuna becomes waterless.
In the judgment there is no mention of the harm being caused to the lives all those workers and children below the age of 12 years working in the hazardous industries causing harm to their lungs.
Any activity or substance involving human intervention causing irreparable harm to the environment or the individuals needs to be eliminated. This result in absolute liability to compensate not only the harm done to the environment but also to the individuals under the polluter pays principle. The judgment no where talks about any compensation being made by these factory owners for the harm caused to the environment and their workers.
There is also no talk of the pollution standards for the industries which will be relocated whether they are allowed to use coke and coal in the relocated areas.
Thus this judgment is not a very effective one in nature. It is limited to only Air pollution and not water pollution and land pollution. Because of the above mentioned flaws it is not a very comprehensive judgment leading to various other follow up of Taj Mahal Trapezium Cases.