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Official Citation: 2024 PLD 1134
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2024
Decision Date: 2024-07-11
Parties: Amer Ishaq & others vs Province of KPK, etc.
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2024-07-11, officially reported as 2024 PLD 1134. In this matter between Amer Ishaq & others and Province of KPK, etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLD 2024 Supreme Court 1134
Court Name: Supreme Court of Pakistan Judge(s): Shahid Bilal Hassan, Syed Mansoor Ali Shah, Muhammad Ali Mazhar Title: Amer Ishaq & others vs Province of KPK, etc. Case No.:Constitution Petitions No.4 and 14 of 2021, Crl.M.Appeal No.8 of 2021 in Crl.O.P No.NIL of 2021, C.M.A No.4707/2020 in
C.A No.844/2020 Date of Judgment:2024-07-11 Reported As: 2024 SCP 246, PLD 2024 Supreme Court 1134 Result: Order Accordingly Judgment
ORDER Syed Mansoor Ali Shah, J.- The instant Constitution Petition No.4/2021 was filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), challenging the vires of Rule 2(c) and Schedule-IV of the Khyber Pakhtunkhwa Power Crushers (Installation, Operation and Regulations) Rules, 2020 ("Rules") to the extent they are ultra vires Sections 7 and 19 of the Khyber Pakhtunkhwa Power Crushers (Installation, Operation and Regulations) Act, 2020 ("Act") as well as the fundamental rights i.e., Articles 9, 23, 24, and 25 of the Constitution. During the course of hearing of this case in 2021, it was discovered that the core issue behind the challenge to the vires of the Rules is the air pollution in the area due to the unlawful operations of stone power crushers1 in the village Suraj Galli, Tehsil Khanpur, District Haripur. Therefore, the environmental degradation through air pollution is at the heart of this case and forms the context for challenging the vires of the said Rules. It is for this reason that vide Order dated 15.06.2021, the Report prepared by Hagler Baily Pakistan ("HBP") as a local commission (in CA. 844-846/2020, a connected matter) was directed to be put up in this case which is before us today as C.M.A. 4707/2020. It is pointed out that the power crushers installed in the said village are causing air pollution in the area which raises serious threat to human life and health. The Report of the HBP after inspecting the area formulated the following conclusions: "Regulatory Compliance: High PM concentrations resulting from mining and crushing activities were measured at all the monitoring locations. The measured PM concentrations were not in compliance with the NEQS (24-hour) limits. Long term exposure to such high concentrations of PM10 can cause several health effects ranging from coughing, asthma to high blood pressure, cardiac diseases among the residents as well as the staff of the stone crushing plants. PM10 is also known to affect animals by causing various respiratory problems and creating additional stress." (See Schedule A to this Order for details). 2. Vide Order dated 15.12.202[1], the Court again called for a fresh Report on the compliance of the National Environmental Quality Standards ("NEQS") by the power crushers from HBP as technical counsel with the mandate to carry out site inspection of the stone crushing plants set up in village Suraj Galli and prepare a fresh Report specifically on the presence of particulate matter (PM10) in the air. HBP submitted the Draft Report on 04.4.2022 (C.M.A No.2323/2022). The conclusions drawn by in the Draft Report read as follows:- "The measured PM concentrations were above the 24-hours limit prescribed in the NEQS at all six monitoring locations. Long-term exposure to such high concentrations of PM can cause several health effects ranging from mild coughing to asthma to high blood pressure to cardiac diseases among the residents and the workers of the stone-crushing plants." (See Schedule B of the Order for details). 3. Thereafter, not satisfied with the performance of the power crushers and in order to delve deeper into the issue of environmental degradation in the area, this Court vide Order dated 25.4.2022, was pleased to form a Power Crushers Commission ("Commission") under the chairmanship of Dr. Pervez Hassan. (See Schedule C of this Order for details). The Commission submitted its Final Report (C.M.A 6741/2024) on 06.07.2024, when the Chair of the Commission highlighted its final recommendations and conclusions as follows: "The Plants have not met, among others, the NEQS set out in Section 14. The Plants do not comply with the "existing" 300 metre safe distance applicable in the KPK which is borne out in the Report dated 10 August 2020 of Hagler Bailly Pakistan (Annexure A-1) and recorded in the Supreme Court Order dated 15 December 2021. The Plants do not comply with the "existing" NEQS, however unsatisfactory they may be. For the interim, as the Crush Plants at Suraj Gali are non-compliant with the legal and regulatory framework as on 28 May 2024 (the cut- off date of the Commission), the Supreme Court may consider closing them in the public interest and, subject to the other recommendations of the Commission such as the establishment of Crushing Zones, allow their opening on any of them establishing compliance with a neutral third party appointed by the Supreme Court."(See Schedule D of this Order for details). 4. The Final Report concludes that the three power crushers operating in the area in question are alarmingly violating the NEQS, as well as, the requirement of distance from the local community under the Rules. According to the Report, the PM2.5 and PM10 levels are much higher than the standards given in the NEQS which result in serious chronic and lifelong diseases for the local inhabitants. The air pollution generated by the power crushers carries calcium carbonate which has adverse effects for human health such as damaging the respiratory tract.[2] It is now well accepted and acknowledged that air pollution affects not just humans but a wide array of
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environmental and ecological components; (i) Wildlife: Air pollutants can directly harm animals by causing health problems such as respiratory issues, heart disease, and even cancer. Animals can also be affected indirectly through changes in their habitat and the availability of food and water. (ii) Plants and Forests: Toxic pollutants in the air can damage the leaves of plants and trees, hinder their growth, and reduce their ability to photosynthesize, which is vital for their survival and growth. This not only affects the plants themselves but also the entire ecosystem that depends on them. (iii) Water Bodies: Air pollution contributes to acid rain, which forms when pollutants from the air are deposited in water bodies, and on vegetation and soils. This can lead to drastic changes in the pH level of waterways, adversely affecting aquatic life and water quality. (iv) Soil Quality: Deposits of pollutants like heavy metals in the soil can alter its composition and health, affecting plant growth and the organisms that depend on the soil, potentially disrupting entire terrestrial ecosystems. (v) Climate Change: Some air pollutants, particularly greenhouse gases like carbon dioxide and methane, contribute to global warming. Others, like sulfur dioxide, can create aerosols that reflect sunlight, affecting atmospheric temperatures and weather patterns. (vi) Visibility and Aesthetic Damage: Pollution can cause smog and haze, which reduce visibility. This not only affects the aesthetic enjoyment of natural landscapes but can also have economic implications for industries like tourism and real estate. (vii) Biodiversity: The cumulative impact of these effects can lead to reduced biodiversity as species that cannot adapt to the altered conditions die out or move to other areas. The interplay between air pollution and the environment is complex, influencing various natural cycles and life forms, and can lead to long-term ecological imbalances.[3] 5. Air pollution causes an estimated one in every nine deaths worldwide, making it the greatest environmental threat to human health. According to the World Health Organization ("WHO"), air pollution is responsible for an estimated seven million premature deaths worldwide every year.[4] Almost all air breathed by humans exceeds the WHO Guidelines limits. It is pertinent to mention here that no other location on the planet illustrates the stubborn nature of air pollution challenge more than South Asia, where pollution continued its upward trend in 2021. Bangladesh, India, Nepal and Pakistan - where 22.9 percent of the global population lives - are the top four most polluted countries in the world.[5] As per the World Air Quality Report (2023), Pakistan is the second most polluted country in the world with an annual average PM2.5 concentration 14 times above the WHO guidelines, leading to a loss in life expectancy of 4.4 years.[6] The most serious issue of air quality in Pakistan is the presence of excessive suspended PM present in the air. The PM is not a single pollutant, but rather is a complex mixture of solids and aerosols composed of small droplets of liquid, dry solid fragments, and solid cores with liquid coatings.[7] These particles vary widely in size, shape and chemical composition and are defined by their diameter for air quality regulatory purposes. Those with a diameter of 10 microns or less PM10 are inhalable into the lungs and can induce adverse health effects. [8] Fine PM is defined as particles that are 2.5 microns or less in diameter PM2.5. A number of adverse health effects have been associated with both PM2.5 and PM10 including the worsening of respiratory diseases such as asthma, lung cancer and premature deaths in extreme circumstances. It is noted that the triple-planetary crisis, which comprises of interrelated urgent crisis of climate change, biodiversity loss, and widespread pollution must entrench environmental concerns as supreme constitutional norms.[9] This strand of demand often coined as "environmental constitutionalism" is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights and environmental law and embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide.[10] By acting as a method of constitutionally entrenching environmental law and protection at a more enduring or "higher" constitutional level, environmental constitutionalism entails a transformative approach that relies on constitutions to provide for the architecture of environmental governance, whereupon it then acts to improve environmental protection through various constitutional features such as fundamental rights, recognized principles of environmental governance and the rule of law.[11] 6. Over the years, Pakistan's superior courts have expanded the scope of fundamental rights and judicially interpreted the text of the constitutional fundamental right to life (Article 9) which has been popularly dubbed as right to a clean and healthy environment.[12] Subsequently, the courts have also recognized the right to dignity (Article 14) in Imrana Tiwana[13] and Asghar Leghari[14] that the protection of environment also emerges from the right to dignity which is inviolable and such protection is an inalienable right and perhaps more fundamental than the other rights. It is in this context that right to life and dignity when read with constitutional principles of democracy, equality, social, economic and political justice include within their ambit and commitment, the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra- generational equity and public trust doctrine. This protection to environment is also accorded in other international legal instruments[15], which Pakistan has ratified, including the most recent United Nations General Assembly Resolution[16] which recognized that everyone, everywhere, has the right to a clean and healthy environment. 7. Environmental constitutionalism as a concept also finds its ideological roots within Islamic environmentalism as environment and climate change have a strong linkage with our religion.[17] Approaching environmental constitutionalism through the lens of religion and spirituality can indeed be a powerful tool. Seyyed Hossein Nasr[18] criticizes the modern secular worldview for what he perceives as a harmful attitude towards nature. He believes that the current ecological crisis is a spiritual problem rooted in the forgetfulness of the sacred nature of the world. He argues that modernity has led to an exploitative and instrumentalist view of nature, contributing to environmental degradation.[19] Islam can provide a comprehensive and integrated approach to environmental issues, encompassing ethical, social, economic and political dimensions. This foundation, inter alia, includes; (i) Tawhid (Unity of God): The Quranic concept of Tawhid underscores the idea that all things come from one creator. This perspective encourages a holistic approach to the environment, viewing the Earth and all its inhabitants as interconnected and interdependent, (ii) Stewardship (Khalifa): The Holy Quran emphasizes that humans are stewards (khalifas) of the Earth. This concept promotes responsible management of the Earth's resources, (iii) Balance (Meezan): The Holy Quran speaks about balance (Meezan) in creation and warns against upsetting this balance. Climate change, which is driven by human activities, is disrupting the Earth's natural balance, (iv) Avoiding Waste (Israaf): Islam discourages wastefulness (Israaf). The current patterns of consumption and waste, especially in more developed countries, are contributing significantly to greenhouse gas emissions and climate change, (v) Justice (Adl); climate change is also a matter of justice, as it disproportionately affects the poor and vulnerable - people who often have contributed least to the problem and (vi) Hima (Protected Areas): The Islamic principle of Hima refers to a system of community-based management of resources, where certain areas are set aside for the conservation of natural resources, wildlife, and biodiversity.
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8. At this juncture, it is important to underscore that environmental crisis pervades our lives. An overwhelming scientific consensus warns us that human-induced climate change is leading to rising sea levels, extreme weather events, and public health disasters.[20] Despite over thirty years of international agreements, global carbon dioxide emissions rose 70% between 1990 and 2020.[21] Biodiversity is collapsing at an unprecedented rate; one million animal and plant species face complete destruction within decades, because of human activities. Notwithstanding extensive domestic regulation, global standards of air, land and water pollution remain stubbornly high. It is in this perspective of environmental constitutionalism and Islamic environmentalism that we approach the current issue. 9. After hearing the chair of the Commission, the case was fixed today to provide an opportunity of hearing to the power crushers to explain whether they raise any objection on the said Report of the Commission or actual compliance as far as the environmental threats are concerned. We have heard Ch. Aitzaz Ahsan, learned Sr. ASC and Ms. Zunaira Fayyaz, Advocate. At the very outset, they do not allege any m alafide to the Commission. However, they submitted that the respondents are fully complying with the NEQS, yet they could not refer to even a single document showing their compliance with the same. Learned counsel submits that one of the respondents has invested Rs.150 Million and purchased equipment that curtail environmental pollution, however, no evidence has been placed on the record to substantiate this submission. He stated that the local villagers are adding to the pollution by burning various substances, to which Waqar Zakariya (HBP), member of the Commission pointed out that the readings of PM10 and PM2.5 were taken round the clock, therefore, this intermittent burning does not affect the overall reading. 10. The submissions of the learned counsel for the respondent power crushers are not satisfactory and the findings of the Report have gone unrebutted, in particular, the violation of the NEQS. Learned Advocate General, KPK supported the Report of the Commission and also urged the Court to shut down these plants unless they comply with the NEQS. In order to protect the human life and health of the residents of the area, who have been subjected to these plants for a number of years, we direct the Environmental Protection Agency, KPK ("EPA") to shut down and seal the operations of these stone crushing plants immediately. The respondent owners of the said plants can be allowed to re-operationalize their plants provided they make an appropriate application to this Court satisfying the Court that they now comply with the requirements of the NEQS, which the Court, after verifying this fact through a technical expert may allow. The local Police shall render full assistance to EPA to carry out the Order of this Court in shutting down the stone crushing plants immediately. A copy of this Order shall also be dispatched to the Inspector General Police, KPK for immediate compliance. The Advocate General, KPK shall submit a compliance report to this Court within a week thereof. 11. We also note that the NEQS were passed in 1993 and last updated in the year 2010 and the Federal and Provincial Governments have made no efforts to update the said standards. It is crucial to highlight that by limiting both the quality and quantity of anthropogenic pollutants in the environment, the NEQS serve as crucial frameworks which facilitate the transition towards a sustainable future. These standards do not only ensure the preservation of ecosystems and protection of public health through preventive measures but also play a significant role in fostering climate resilient development mechanisms by encouraging sustainable production processes in industries. Therefore, the Federal Government as well as the Provincial Governments are directed to update the NEQS within a period of three months from today and submit their updated/revised NEQS before this Court. 12. It is also pointed out that there are 900 other stone crushing plants operating in the province of Khyber Pakhtunkhwa. Let the Provincial EPA carry out detailed report regarding their environmental compliance and safe distance and submit their detailed report in this regard to this Court before the next date of hearing. In case the EPA finds that the said plants do not meet the NEQS or the safe distance requirement under the Rules, the EPA is free to take action against the said plants in accordance with the law. 13. Let these matters be relisted in the first week of November for the report of the Provincial Governments regarding the updating/revision of the NEQS as well as the report on the environmental status of the 900 stone crushing plants. Copy of this Order be dispatched to all the Chief Secretaries of the four provinces and the Chief Commissioner, ICT for compliance regarding updating/revision of the NEQS.
Schedule-A Excerpts from the Study on Environmental and Social Assessment of Mining and Crushing Activities in District Haripur, KP 6.1 Regulatory Compliance HKG and Niazi Crush Plants are operating without an Environmental Approval for operations from the KP EPA. Extensive deposition of dust was observed on trees, crops, the floor and furniture in houses in the Study Area. This indicates that the mitigation measures adopted by Plant owners until the time when monitoring was carried out as a part of this study are insufficient to control the dust emissions in the area and are therefore, noncompliant to conditions of the Environmental Approval for construction from . High PM concentrations resulting from mining and crushing activities were measured at all the monitoring locations. The measured PM concentrations were not in compliance with the NEQS (24-hour) limits. Long term exposure to such high concentrations of PM10 can cause several health effects ranging from coughing, asthma to high blood pressure, cardiac diseases among the residents as well as the staff of the stone crushing plants. PM10 is also known to affect animals by causing various respiratory problems and creating additional stress. The settling of limestone dust over a long period results in changes to soil composition and pH, which may affect agricultural output. High noise levels exceeding the NEQS especially the nighttime limits were measured. Although most of the measured noise levels were under 60 dBA, however, long term exposures to such noise levels may cause headaches, sleeplessness, high blood pressure, and multiple other health issues among the nearby residents and especially among the staff of the stone crushing plants. High noise levels are also associated with hearing loss and increased stress in animals which results in altered mating behaviors. 6.2 Distance to Safeguard Health, Safety and Life of Residents Blasting vibrations are not expected to result in long-term damage to structures at 300 m or beyond (see Section 5.1 for detailed assessm ent). A safe distance of 378 m should be considered (keeping in mind the potential impact of flyrocks) to ensure the safety of the local community residents and residential structures (see Section 5.2 for the assessm ent and Section 5.3 for the justification used to obtain
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this number). Increasing the safe distance should not be considered the only solution to ensure safety of the nearby residents and appropriate mitigation measures to reduce flyrock distance and mitigate flyrock generation should be undertaken (see Section 5.2 for possible mitigation measures. Schedule B Excerpts from the Draft Report on Particulate Matter Sampling: Stone Crushing Plants, Khanpur The key conclusions that have been made under this Study include the following: PM concentrations at all the sampling locations substantially exceeded the limits prescribed in the NEQS. Extensive deposition of dust was observed on trees, and crops in the Study Area (Exhibit 2.8). This indicates that the mitigation measures adopted by Plant owners until the time when sampling was carried out as a part of this Study are insufficient to control the dust emissions in the area. The measured PM concentrations were above the 24-hours limit prescribed in the NEQS at all six monitoring locations. Long-term exposure to such high concentrations of PM can cause several health effects ranging from mild coughing to asthma to high blood pressure to cardiac diseases among the residents and the workers of the stone crushing plants. PM10 is also known to affect animals by causing various respiratory problems and creating additional stress. The implementation of appropriate dust control measures is essential to keep the emissions of particulate matter within the limit.
Schedule C CONSTITUTION OF POWER CRUSHERS COMMISSION
1. Dr. Pervez Hassan Chairman 2. Representative of Hagler Bailly Pakistan Member 3. Representative of WWF Member 4. Director, Mineral and Mines, Government of KP Member 5. Director, EPA, Government of KPK Member 6. Representatives of Stone Crushers Member 7. Ahmad Rafay Alam, Environmental Lawyer, Lahore Member 8. Zofeen T Ibrahim, Freelance Journalist Member
Terms of Reference: a) What is the safe distance for installation and operation of power crushers from human dwellings? b) What safety measures must be taken/installed by power crushers for blasting and stone crushing at site at all times? c) What National Environmental Quality Standards (NEQS) must be maintained by stone crushers to safeguard public health? d) What short term and long-term measures to be adopted by crushers in order to be EPA compliant? e) What measures or steps ought to be taken to continuously or regularly monitor the crushing and mining activities of power crushers to be EPA compliant? f) What measures to be taken by power crushers so as to convert from conventional quarrying to safe and smart quarrying which avoids flying rock and dust? g) What time frame to be fixed for to make their units EPA complaint? h) Recommend specification for cost-effective monitoring equipment with real-time monitoring of wind speed, wind direction, and dust emissions (specifically PM10) generated from operations of stone crushers and blasting activities. i) Draft guidelines to assist the power crushers to achieve effective management and operation of monitoring equipment with due consideration to existing technical capacity and costs. j) Develop a framework that can be used by the regulators to assess the environmental and social performance of stone crushers throughout the province and to share the information with the communities that may be at risk. k) Assess performance of stone crushing plants that have installed and operated equipment to control dust emissions and where applicable provide recommendations that the owners of crush plants may consider to further improve their environmental performance. l) Develop an action…
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