S. Jagannath v Union of India (1997) — the shrimp culture case

This is the case in which the Supreme Court enforced a notification issued under s. 3 of the Environment (Protection) Act against an entire industry, ordered the demolition of every non-traditional shrimp farm inside the Coastal Regulation Zone, and applied the precautionary principle and polluter pays principle through a s. 3(3) authority on the Vellore model.

For Module 3 it is the best illustration of what the Environment (Protection) Act 1986 can do that the Water and Air Acts cannot: the Central Government can, by notification, prohibit an activity in a defined area, and the Court will enforce that prohibition directly. For Module 2 it supplies a compact statement of what an environmental impact assessment must contain.

"Shrimp (Prawn) Culture Industry is taking roots in India." Traditionally, fishermen followed a rice/shrimp rotating aquaculture system, producing "140 kgs of shrimp per hectare of land". Over the previous decade that gave way "to more intensive methods of shrimp culture which could produce thousands of kilograms per hectare". Private companies and multinationals invested; "In the last few years more than eighty thousand hectares of land have been converted to shrimp farming." India's marine exports were "70,000 tonnes in 1993" and were projected to reach "200 thousand tonnes by the year 2000".

The Court identified the crux at the outset: "The environmental impact of shrimp culture essentially depends on the mode of culture adopted in the shrimp farming." The new intensified farming, "without much control of feeds, seeds and other inputs and water management practices", had "brought to the fore a serious threat to the environment and ecology".

The petition under Art. 32 was by S. Jagannathan, Chairman, Gram Swaraj Movement, seeking enforcement of the CRZ Notification of 19 February 1991, stoppage of intensive and semi-intensive prawn farming in ecologically fragile coastal areas, a prohibition on using wastelands and wetlands for prawn farming, and "the constitution of a National Coastal Management Authority to safeguard the marine life and coastal areas".

These are worth listing, because they show how the Court managed a case against thousands of unnamed respondents.

• 12 December 1994. Recording that the Notification declared as Coastal Regulation Zone the coastal stretches "influenced by the tidal action (in the landward side) up to 500 metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL", the Court directed all respondent States "not to permit the setting up of any industry or the construction of any type on the area at least up to 500 metres from the sea water at the maximum High Tide".
• 27 March 1995. NEERI directed to appoint an investigating team for the coastal areas of Andhra Pradesh and Tamil Nadu, and, if it found degradation, "it shall suggest the remedial measures in that respect". NEERI reported on 25 April 1995, and was then directed to inspect the other States.
• 9 May 1995. "no part of agricultural lands and salt farms be converted into commercial aquaculture farms hereinafter"; "no groundwater withdrawal, be allowed for aquaculture purposes to any of the industries whether already existing or in the process of being set up"; no further farms in the areas in dispute; and the States to "provide free access through aquaculture units to the sea coast to the fishermen/tourists". Where villagers could not find fresh water, the State Government was to "provide water by way of tankers wherever it is necessary".
• 24 August 1995. Individual notices to every aquafarm in each State and Union Territory, notices also by the Marine Products Export Development Authority (MPEDA), and public notices in daily newspapers circulating in coastal areas on two consecutive days; meanwhile no fresh licences for any aquafarm "till further orders".

The CRZ Notification, para 2, declares certain activities prohibited within the Coastal Regulation Zone. Para 2(i) prohibits "setting up of new industries and expansion of existing industries, except those directly related to waterfront or directly needing foreshore facilities".

So the whole case turned on whether a shrimp farm is an industry "directly related to waterfront" or "directly needing foreshore facilities".

The rival meanings. For the farms it was argued, on the Oxford English Dictionary, that waterfront means land abutting on the sea and "that part of a town which fronts on a body of water", and that foreshore means "the part of the shore that lies between the High Tide and the Low Tide"; Webster's gives foreshore as "that part of a shore uncovered at low tide".

The Court's answer, in two steps.

Foreshore. "the part of the shore which remains covered with water at the High Tide and gets uncovered and becomes visible at the Low Tide is called" foreshore. "It is not possible to set up a shrimp culture farm in the said area because it would completely submerge in water at the High Tide." Therefore "foreshore facilities are neither directly nor indirectly needed in the setting up of a shrimp farm".

Waterfront. A shrimp farm depends on brackish water drawn from the sea, but "shrimp culture farming has no relation or connection with the" waterfront "though it has relation with brackish water which is available from various water bodies including sea". "What is required is the" brackish water and not the waterfront. The record showed that "the shrimp ponds constructed by the farms draw water from the sea by pipes, jetties etc." — and brackish water "can be drawn from any source including sea and carried to any distance by pipes etc."

The purpose of the Notification confirmed the reading: it is "to protect the ecologically fragile coastal areas and to safeguard the aesthetic qualities and uses of the sea coast", and setting up modern shrimp farms on the coast "is per se hazardous and is bound to degrade the marine ecology, coastal environment and the aesthetic uses of the sea coast".

The salt-manufacture argument — the neatest piece of reasoning in the case. Salt manufacture also depends on sea water, and could make the same claim. But salt manufacture is expressly permitted in CRZ-III up to 200 metres from the high tide line under para 6(2). "The argument stands negatived by inclusion of the salt manufacturing industry in CRZ-III Zone under para 6(2) of the CRZ Notification otherwise it was not necessary to include the industry therein because it could be set up anywhere in the coastal regulation zone in terms of para 2(1)". Hence "an industry dependent on sea water cannot by itself be an industry" directly related to waterfront or directly needing foreshore facilities.

Aquaculture is not listed among the permitted uses in CRZ-III — "The aquaculture or shrimp farming has not been included as a permissible use and as such is prohibited even in this zone."

Para 2(viii) prohibits "land reclamation, bunding or disturbing the natural course of sea water with similar obstructions" except for coastal erosion control, maintenance of waterways and ports, tidal regulators, storm water drains and structures against salinity ingress.

"A bund is an embankment or dyke." The Alagarswami Report recorded that "huge cyclone protection dykes and peripheral dykes are constructed by the shrimp farmers", that "due to physical obstruction caused by the dykes the natural drain is blocked and flood water accumulated in the hinterland villages", and that "the shrimp ponds are constructed right on the bank of the creeks without leaving any area for draining of flood waters".

The Court's conclusion: "A shrimp farm on the coastal area by itself operates as a dyke or a bund as it leaves no area for draining of the flood waters. The construction of the shrimp farms, therefore, violates clause (viii) of para 2 of the CRZ Notification."

This paragraph is the most quotable statement on EIA in the Indian reports and belongs in any Module 2 answer on environmental impact assessment:

"before any shrimp industry or shrimp pond is permitted to be installed in the ecology fragile coastal area it must pass through a strict environmental test. There has to be a high-powered" authority "under the Act to scrutinise each and every case from the environmental point of view. There must be an environmental impact assessment before permission is granted to install commercial shrimp farms. The conceptual framework of the assessment must be broad based primarily concerning environmental degradation linked with shrimp farming. The assessment must also include the social impact on different population strata in the area. The quality of the assessment must be analytically based on superior technology. It must take into consideration the inter-generational equity and the compensation for those who are affected and prejudiced."

Four requirements, then: broad conceptual framework, social impact, superior technology, and inter-generational equity plus compensation.

1. An authority under the Environment (Protection) Act, headed by a retired Judge of a High Court, with members expert in aquaculture, pollution control and environment protection, to be constituted before 15 January 1997, with power to issue directions under s. 5 and to take measures under s. 3(2)(v)–(x) and (xii). (The report reads "an authority under Section 8(3) of the Environment (Protection) Act, 1986"; the power to constitute an authority is in s. 3(3), and the direction mirrors Vellore, where it is correctly cited as s. 3(3). Read the direction as made under s. 3(3).)
2. "The authority so constituted by the Central Government shall implement" the precautionary principle and the polluter pays principle.
3. "The shrimp culture industry/the shrimp ponds are covered by the prohibition contained in para 2(i) of the CRZ Notification. No shrimp culture pond can be constructed or set up within the coastal regulation zone" — applicable to "all seas, bays, estuaries, creeks, rivers and backwaters", but not to "traditional and improved traditional types of technologies (as defined in Alagarswami Report)".
4. Demolition. All such farms in the CRZ "shall be demolished and removed from the said area before 31-3-1997", the Superintendent of Police and the District Magistrate to enforce it, with a compliance report before 15 April 1997.
5. Traditional and improved traditional farmers "may adopt improved technology for increased production, productivity and return" with prior approval of the authority.
6. "The agricultural lands, salt pan lands, mangroves, wetlands, forest lands, land for village common purpose and the land meant for public purposes shall not be used/converted for construction of shrimp culture ponds."
7. No farm within 1000 metres of Chilka Lake and Pulicat Lake, including the bird sanctuaries of Yadurapattu and Nelapattu.
8. Existing farms within that 1000 metres "shall be closed and demolished before 31-3-1997", with the same enforcement and reporting.
9. Non-traditional farms may be set up outside the CRZ and outside the 1000-metre belt "with the prior approval of the" authority; existing ones to obtain authorisation before 30 April 1997, failing which they stop. And a substantive prohibition: any aquaculture "which has the effect of causing salinity of soil, or the drinking water or wells and/or by the use of chemical feeds increases shrimp or prawn production with consequent increase in sedimentation which, on putrefaction is a potential health hazard, apart from causing siltation, turbidity of water courses and estuaries with detrimental implication on local fauna and flora shall not be allowed".
10. Farms that operated in the prohibited areas "shall be liable to compensate the affected persons on the basis of the" polluter pays principle.
11. The authority to assess, on expert opinion and after hearing the polluters, "the loss to the ecology/environment in the affected areas", identify the individuals and families who suffered, and assess compensation, and to determine the amount recoverable "as cost of reversing the damaged environment".
12. Compensation to be computed "under two heads namely, for reversing the ecology and for payment to individuals", the statement to go to the Collector, who "shall recover the amount from the polluters, if necessary, as arrears of land revenue" and disburse it.
13. Violation or non-compliance "shall attract the provisions of the Contempt of Courts Act in addition".
14. Recoveries to be deposited under a separate head called the Environment Protection Fund and used to compensate the affected and restore the environment.
15. The authority, with NEERI, the Central Board and the State Boards, to frame schemes for reversing the damage, executed by the States under central supervision and financed from the Fund.
16. The workmen. Those employed in the farms to be closed "shall be deemed to have been retrenched with effect from 30-4-1997" if they have been in continuous service as defined in s. 25-B of the Industrial Disputes Act 1947 for not less than one year; compensation under s. 25-F(b), plus "six years' wages as additional compensation", payable before 31 May 1997, and gratuity in addition.

Costs. The petition was allowed with costs of Rs 1,40,000, payable by seven coastal States in equal shares of Rs 20,000, the amount to be paid to Mr M.C. Mehta, who appeared throughout.

1. The CRZ Notification issued under s. 3 of the Environment (Protection) Act read with r. 5(3)(d) of the Rules is enforceable through Art. 32, and activities prohibited by it may be stopped and existing structures demolished.
2. An industry that merely depends on sea water is not for that reason "directly related to waterfront" or "directly needing foreshore facilities" within para 2(i); the salt-manufacture exception in CRZ-III proves it.
3. A shrimp farm on the coast operates as a bund and so also violates para 2(viii).
4. Before permission for an activity in an ecologically fragile area there must be an environmental impact assessment covering environmental degradation, social impact, and inter-generational equity and compensation.
5. The precautionary principle and polluter pays principle are to be implemented by a s. 3(3) authority, with compensation computed under two heads and recoverable as arrears of land revenue.
6. Workmen displaced by a court-ordered closure are entitled to retrenchment compensation plus six years' wages.