Role of Indian Judiciary in the evolution of Environmental Jurisprudence

By | April 26, 2018
Legal Bites - Notes

Environmental law has seen considerable development in the last two decades in India. Most of the principles under which environmental law works in India come within this period. Role of Indian Judiciary in the evolution of Environmental Jurisprudence has been immense.

INTRODUCTION

The environment is the wellspring of life on earth like water, air, soil, etc., and determines the presence, development, and improvement of humanity and all its activities. The concept of environmental protection and preservation is not new. It has been intrinsic to many ancient civilizations. Ancient India texts highlight that it is the dharma of each individual in the society to protect nature and the term ‘nature’ includes land, water, trees and animals which are of great importance to us. In the ‘Atharva Veda’, the ancient Hindu Scepters stated: “What of thee I dig out, let that quickly grow over”.

The Healthy Environment is the comprehensive term encompassing all such natural and biotic factors that make possible to entertain Right to life in the true spirit.

The environment furnishes all essentials for life and so there has been a close link between the environment and human beings. Without a natural and congenial environment, human existence is not possible on earth. Since time immemorial, the man had made conscious and determined efforts to make use of the natural resources and to modify his surroundings so that the adverse impact caused by extremes of temperature rainfall and predators may be reduced.

In the quest of making life more comfortable the man has always exploited the nature. Agriculture, industrialization and infrastructural developments are the causes of exploitation of natural resources. Human activities create a variety of wastes and by-products which accumulate over a period of time and may become toxic to the naturally growing plants, animal, and the mankind. Indiscriminate use of fertilizers and pesticides has added to the problem. The rapid and unplanned industrialization has given birth to factories emitting noxious gas fumes and toxic effluents, making life more difficult on earth. These things are constantly causing damage to the environment. It is also the duty of the state to protect the environment as embodied under article 48-A, 39 (e) and 47 of the Indian Constitution. So in order to deal with these ever-growing problems, many acts have also been enacted by the parliament but it is a court which always keeps a check on the proper implementation of these enactments and judiciary had played an important role in interpreting the laws to protect the environment.

Prior to 1980s, only the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not do so as a proxy for the victim or the aggrieved party. But around 1980, the Indian legal system, particularly the field of environmental law, underwent a sea change in terms of discarding its moribund approach and instead, charting out new horizons of social justice. This period was characterized by not only administrative and legislative activism but also judicial activism.

In a modern welfare state, justice has to address social realities and meet the demands of time.

Protection of the environment throws up a host of problems for a developing nation like ours. Administrative and legislative strategies of harmonization of environmental values with developmental values are a must and are to be formulated in the crucible of prevalent socio-economic conditions in the country. In determining the scope of the powers and functions of administrative agencies and in striking a balance between the environment and development, the courts have a crucial role to play. Principle 10 of the Rio Declaration of 1992 specifically provides for effective access to judicial and administrative proceedings, including redress and remedy.

Public Interest Litigation (PIL) has come to stay in India. “Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.” Contrary to the past practices, today a person acting bona fide and having sufficient interest can move the courts for redressing public inquiry, enforcing public duty, protecting social and collective rights and interests and vindicating the public interest. In course of time, there has been a wave of environmental litigation.

PROVISION OF CONSTITUTION IN RELATION TO ENVIRONMENT

Article 47 – Duty of the State to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

Article 48 A – Protection, and improvement of environment and safeguarding of forests and wildlife The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.

Article 51A (g) – To protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures;

Article 253 – Legislation for giving effect to international agreements. Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other bodies.

Article 246 – Subject matter of laws made by Parliament and by the Legislatures of States:(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List) (2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List) (4) Parliament has the power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List.

Article 32 – Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Article 226 – Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo-warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises from the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

IMPORTANT PRINCIPLES EVOLVED BY INDIAN JUDICIARY – Environmental Jurisprudence

Polluter Pays Principal – it supports a remedial methodology which is concerned with repairing natural harm. It’s a rule in international environmental law where the polluting party pays for the harm or damage done to the natural environment. It was made part of the constitutional ruling in case of Vellore Citizen’s Welfare Forum v. Union of India [AIR 1996 SC 2715]

Precautionary Principle –  Environmental measures must anticipate, prevent and attack the causes of environmental degradation Lack of scientific certainty should not be used as a reason for postponing measures.

Public Trust Doctrine – The Public Trust Doctrine primarily rests on the principle that certain resources like air, water, sea and the forests have such a great importance to people as a whole that it would be wholly unjustified to make them a subject of private ownership. It was established in case of M.C. Mehta v. Kamalnath & Others. [(1997)1 SCC 388]

Doctrine of Sustainable Development– Supreme Court observed that sustainable development has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystem in Vellore Citizens’ case and RLEK, Dehradun case.

Fundamental Right of Water – In Narmada Bachao Andolan v. Union of India and Ors., the Supreme Court of India upheld that “Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India.

Compensation to Victim of Environmental degradation– The power of the Supreme Court to grant remedial relief for a proved infringement of a fundamental right (in case if Article21) includes the power to award compensation. In Delhi gas Leak case “no fault” liability standard (absolute liability) was introduced for industries engaged in hazardous activities which have brought about radical changes in the liability and compensation laws in India.

Doctrine of Absolute Liability– THE BHOPAL CASE: Union Carbide Corporation v. Union Of India (1989). In this case, the court held that, where an enterprise is occupied with an inherently dangerous or a hazardous activity and harm results to anybody by virtue of a mishap in the operation of such dangerous or naturally unsafe movement coming about, for instance, in getaway of poisonous gas, the enterprise is strictly and completely obligated to repay every one of the individuals who are influenced by the accident and such risk is not subject to any exemptions. Accordingly, Supreme Court created another trend of Absolute Liability without any exemption.

LANDMARK CASES THAT LED TO EVOLUTION OF ENVIRONMENTAL JURISPRUDENCE

Sanitation in Ratlam: In a landmark judgment in 1980, the Supreme Court explicitly recognized the impact of a deteriorating urban environment on the poor. It linked basic public health facilities to human rights and compelled the municipality to provide proper sanitation and drainage. [Municipal Council, Ratlam v. Shri Vardhichand & Ors,  1980 AIR 1622]

Doon valley quarrying: In 1987, the Rural Litigation and Entitlement Kendra, on the behalf of residents of the Doon valley, filed a case in the Supreme Court against limestone quarrying. This case was the first requiring the Supreme Court to balance environmental and ecological integrity against industrial demands on forest resources. The courts directed the authorities to stop quarrying in the Mussoorie hills. [Rural Litigation & Entitlement Kendra v. State Of U.P, 1989 AIR 594]

Gas leak in Shriram factory: In the historic case of the oleum gas leak from the Shriram Food and Fertilizer factory in Delhi, in 1986, the Supreme Court ordered the management to pay compensation to the victims of the gas leak. The “absolute liability” of a hazardous chemical manufacturer to give compensation to all those affected by an accident was introduced in this case and it was the first time compensation was paid to victims. [M.C. Mehta & Anr. Etc vs Union Of India & Ors., 1987 AIR 965]

Construction in Silent Valley: In 1980, the Kerala High Court threw out a writ filed by the Society for the Protection of the Silent Valley seeking a ban on construction of a hydro-electric project in the valley. However, despite an unfavorable judgment, active lobbying and grassroots action by environmentalists stopped the project.

Tannery: In 1985, activist-advocate M C Mehta filed a writ petition in the Supreme Court to highlight the pollution of the Ganga by industries and municipalities located on its banks. In a historic judgment in 1987, the court ordered the closure of a number of polluting tanneries near Kanpur. Justice E S Venkataramiah, in his judgment, observed: “Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence.” [M.C. Mehta v. Union of India, WP 3727/1985]

MC MEHTA was awarded the Goldman Environmental Prize in 1996 for his continuous fights in Indian courts against pollution-causing industries.

Mining in Sariska: A writ petition was filed in the Supreme Court in 1991 by the Tarun Bharat Sangh to stop mining in the Sariska wildlife sanctuary. The court banned mining in the sanctuary

• Against vehicular pollution, in India, the Supreme Court delivered a landmark judgment in 1992. A retired Judge of the Supreme Court was appointed along with three members to recommend measures for the nationwide control of vehicular pollution. Orders for providing lead free petrol in the country and for the use of natural gas and other modes of fuels for use in the vehicles in India have been passed and carried out. Lead-free petrol had been introduced in the four metropolitan cities from April 1995; all new cars registered from April 1995 onwards have been fitted with catalytic converters; COG outlets have been set up to provide CNG as a clean fuel in Delhi and other cities in India apart from Euro 2 norms. As a result of this case, Delhi has become the first city in the world to have complete public transportation running on CNG.

• In the State of Himachal Pradesh, Span motel, owned by the family members of Shri Kamal Nath, Minister for Environment and Forests, Govt. of India diverted the Course of river Beas to beautify the motel and also encroached upon some forest land. The apex court ordered the management of the Span motel to hand over forest land to the Govt. of Himachal Pradesh and remove all sorts of encroachments.
The Court delivered a landmark judgment and established the principle of exemplary damages for the first time in India. The Court said that polluter must pay to reverse the damage caused by his act and imposed a fine of Rs Ten Lakhs (Rs 10,00,000) on the Span motel as exemplary damages. The Supreme Court of India recognized Polluter Pays Principle and Public Trust Doctrine.

• Despite Coastal Zone Regulation Notification of February 1991, none of the coastal states had formulated coastal zone management plan, with the result that haphazard construction and industrial activity was being permitted anywhere in the coast leading to large-scale damage to coastal ecology and loss of livelihood to lakhs of fishermen and other indigenous communities dependent on marine resources. A writ petition was filed on behalf of Indian Council for Enviro-Legal Action (ICELA) and the Supreme Court delivered a landmark Judgement banning industrial/ construction activity within 500 meters of the High Tide Line and set a time limit for the coastal states to formulate coastal management plans.

Many more such cases could be added from the history of Indian Judiciary who is most vocal in support of Environment and healthy life than other pillars of Indian Democracy. They have capitalized the provisions mentioned in the constitution itself while taking advantage of cardinal principles of International treaties and conventions.

CONCLUSION AND SUGGESTION

The government of India, as well as State Government, have now started to chart out the plans sector wise, a layout was drafted, guidelines being issued, compliance report is being submitted to Higher courts regarding steps taken by them to ensure the standard of environment protection.

After Independence, if anything that was single-handedly covered and regulated by Judiciary is, Environment protection. Judges have taken it very seriously and observations were not made but compliance was closely watched till it is done in letter and spirit.

Environmental law has seen considerable development in the last two decades in India. Most of the principles under which environmental law works in India come within this period. The development of the laws in this area has seen a considerable share of the initiative by the Indian judiciary, particularly the higher judiciary, consisting of the Supreme Court of India and the High courts of states. PIL has proved to be an effective tool in the area of environmental protection. The Indian judiciary adopted the technique of public interest litigation for the cause of environmental protection in many cases. The basic ideology behind adopting PIL is that access to justice ought not to be denied to the needy for the lack of knowledge or finances. In PIL, a public-spirited individual or an organization can maintain petition on behalf of poor and ignorant individuals. Due to PIL, the court indicated contractors of indiscriminate mining operations which had disturbed and destroyed ecological balance and ordered for their closure in the interest of protection of natural environment and conservation of natural resources for public health.

The Supreme court recognized several unarticulated liberties which were implied in Article 21 of the constitution like the right to free legal assistance and the prisoners to be treated with dignity were recognized as part of the fundamental right. Supreme Court also interpreted the right and personal liberty to include the right to wholesome environment. The most important achievement of the Indian constitution is the constitutionalism of the environmental problems by the apex court. Before the year of 1980, there was legislation about control of environmental pollution but little had been done to really make pollution control. But in the present time, the Supreme Court of India expand the meaning of environmental Right. The Supreme Court is making interpretations which led to the creation of new rights. Eventually, under Article 21, this court has created new rights including the right to health and pollution free environment.

Contributed By – Garima Chaudhry [ITM University]


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