Tanya Singh, JEMTEC School of Law.
JUDICIAL ACTIVISM IN ENVIRONMENTAL LAW
Environment is the driving source of all life forms; in fact, all life forms form the environment and rely on it for their sustainability. The relationship between that of a living organism and environment is of give and take. But human for its own benefit is harming and exploiting the environment. In a country where legislature is reluctant about making any such law, there the concept of PIL and Judicial activism came as a blessing to protect the environment and also to protect the rights of the citizens and grant justice to the victims. The constitution of India has provided with relaxation in the locus standi dealing with the cases falling in the purview of Article 31 and 226. Harm to environment also leads to the violation of our fundamental rights under article 14, 19 and 21, which shall be discussed in detail in this research paper. If the concept of Judicial Activism would not have been introduced then the courts would have been full of files that had untold stories of the victims and the hidden wounds of environment that would never have been addressed. Through Public Interest Litigations Indian Judiciary has done a great job in providing people relief and damages against the wrong that happened to them. By this way, the trust that citizens of the country hold upon judiciary reaches a new height. Through the method of Judicial Activism, the rights of the victims are protected. Through this all the cases that fall under the jurisdiction of Supreme Court and High court are disposed off successfully.
“Environment is no one’s property to destroy; it’s everybody’s responsibility to protect.”
– Mohith Agadi
Earth, is the only known planet to support life, which is a matter of pride to every living organism on this planet. Environment is the driving source of all life forms; in fact, all life forms the environment and rely on it for their sustainability. The relationship between that of a living organism and environment is of give and take. For example, plants give oxygen and breathe in carbon dioxide; animals feed on plants and give manure in return to replenish the nutrients. Out of all the organisms humans are considered far more superior with a high level of intellect, but we as humans always remember to take a lot from environment and give less or nothing at all in return and this causes serious imbalance in the natural functioning of the whole eco system.
Green house gas, experiencing extreme temperatures, melting of the glaciers, increase in sea level all are the consequences of the imbalance created. But a large mass of population on earth seems to be negligent about the increasing havoc humans are creating to the environment. The little consciousness that we have, credits for the same goes to some individuals and organization that took the issue of depleting environment to national and international level.
In India, protection of the environment is steadily emerging as a topic of great importance. The matter is taken into great consideration by Supreme Court and High courts of India. With this, emerged ‘Judicial Activism’ in environmental law and gave some landmark judgment in its purview.
What is Judicial Activism?
Judicial activism can be described as a philosophy or an ideology in which the decision of the case is not based on any legislation or on any precedent but is rather based on judge’s own discretion. This is done in order to protect the general interest of the public. Proper role of judiciary is not yet defined and is a matter of debate since establishment of American Republic; “the phrase judicial activism appears to have been coined by the American historian Arthur M. Schlesinger, Jr., in a 1947 article in Fortune.” 
India grants judicial power to the Supreme Court under the article 141 of the Indian constitution. It grants the power to make judicial decisions. Indian law has developed a lot in the last three decades in the panorama of Indian legal system.
It was in 1980, that Indian legal system built a strong base in legislative, executive and judicial activism. The constitution of India has provided with relaxation in the locus standi dealing with the cases falling in the purview of Article 32 and 226. The people of the nation can approach Supreme Court under article 32 or High Court under article 226 and plead for a speedy trial, so as to protect the environment.
Constitution on environment protection
Public Interest Litigation (PIL), in Vijaya Sekaran vs. The Secretary To Government (para 52) the court stated that, “The expression ‘litigation’ means a legal action including all proceedings therein initiated in a Court of law for the enforcement of right or seeking a remedy. Therefore, lexically the expression “PIL” means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.” From the judgment it can be concluded that a person or an organization can approach the court for environmental degradation.
Article 21, right to life is covered under the purview of article 21 of Indian Constitution. This means that the constitution of India grants the citizen the right to enjoy and live in clean environment. The violation of the same can be approached in Supreme Court and high court of every state. The jurisdiction under environmental matters has been discussed in Subhash Kumar v State of Bihar by the Supreme Court, where the court held that “the right to life is a fundamental right under Article 21 of the Constitution and it includes right of enjoyment of pollution free water, air for full enjoyment of life” and that “if anything endangers or impairs the quality of life, in derogation of laws, a citizen has a right to have a recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”
Article 32 & 226, the relaxation in terms of the principal of locus standi, in environmental issues is the foremost reason for the development of judicial activism in environmental law. It also gives public a chance to approach the Supreme Court under article 32 and High Court under article 226.
Article 48A, this article falls under the purview of Directive Principals of State Policy (DPSP), this provision cannot be challenged in the court but is of great importance when judicial activism is taken into consideration. After the 42nd Amendment Act 1976, Article 48A was inserted into the constitution, and covers the protection of wildlife and forests of the country.
Article 51A (g), it is a fundamental duty of every citizen, which summaries as the protection of environment is the fundamental duty of every citizen.
Important case laws revolving around the scenario
Ratlam Municipal Council v. Vardhichand, in this case, Supreme Court was of the opinion that if any public nuisance arises then the government should take every necessary step to suppress it for the greater good of the public, irrespective of the financial restrains. By such steps, the government should aim to establish social justice.
Compensation to victims
M.C. Mehta v. Union of India (Delhi Gas Leak Case), one of the landmark cases, served to protect the interest of the citizens by providing them compensation for being a victim to hazardous environmental accidents. The Supreme Court in this case also gave Supreme Court the power to grant compensation to such victims.
Right to water
In the case, Narmada Bachao Andolan v. Union of India and Ors, the Supreme Court held that right to pure and clean water falls under the purview of article 21 (right to live), constitution of India.
M.C. Mehta v. Union of India (Ganga Pollution Case) the Supreme Court ordered the industries and factories to adopt proper waste treatment plans and not to drain excessively toxic chemicals into the river, leading to water pollution.
Right to sustaining environment
Subhash Kumar v. State of Bihar the court said that under article 21, citizens also have a right to enjoy a safe and clean environment that is also pollution free.
In M.C. Mehta v. Union of India (Vehicular Pollution Case) this case lead to lead – free petrol in Delhi. The court also stated that right to healthy environment and pollution free air is a basic human right.
Aspect of Locus Standi
Locus standi refers to the legal standing to the party which approached the court to seek remedy for the harm suffered. In civil cases, according to the rule of locus standi, the person/party that has suffered the harm or has been through injury could appeal for damages and compensation from the court. But under section 91 of Civil Procedure Code, any person or public organization could approach the court for seeking remedy under Public Nuisance.
Not only this much, the person shall be liable under section 133 of Indian Penal Code which deals with harming the environment and polluting it.
It was in PUDR [People’s Union for Democratic Rights] vs. Union of India that the Supreme Court allowed the intervention of another party in the violation of fundamental rights. The acknowledged the fact that it has to protect the rights of the disadvantaged section and work towards their welfare. From this instance came the concept of PIL or Social Action Litigation.
By allowing PILs in the court of Justice, the Supreme Court tried to renew the down trodden image of judiciary, because during that time, during the emergency rule many rights of the citizens were violated and they were given no protection.
Rural Litigation and Entitlement Kendra V. State of U.P. this case was approached under article 32. This court ordered the closure of the limestone quarries in Mussorie, which has many ill effects are still not countered with.
In Ganga Riiver case and the Taj Mahal Trapezium Cases, the Supreme Court indicated that industries and factories will not emit harmful substance into the water bodies. Both the sides presented a huge group of people,
Tort based litigation
To address environment based problems tort law is the most common remedy under which citizens seek redressal. Since traditional times, all the issues of environment fall under the purview of law of torts. The liabilities that may fall on someone could be public nuisance, negligence, trespass and fall under absolute and strict liability.
Tort law is India is yet to gain support and yet to recognize but on the other hand tort law has contributed tremendously for protecting the environment. The possible outcomes under law of tort are compensation, injunction or punishment.
Principles of environmental law
Precautionary Principle – this is also known as ‘principle of precautionary action’. This principle has emerged during the past 10 years and is a new principle for guiding human activities and preventing them from harming the environment or do any such act with could lead to hazardous consequences for the public in general. “Environmentalists and consumer advocacy organizations that demand bans and restrictions on industrial practices or products would want policy-makers to take no action unless they would do no harm. States and advocates of economic development argue that the lack of full certainty is not a justification for preventing an action that might be harmful.”
The case which laid the stone of this principle in India was Vellore Citizens’ Welfare Forum v. Union of India. In A.P. Pollution Control Board v Prof M.V. Nayudu the court made the terms of precautionary principle clearer. Another notable case is Narmada Bachao Andolan v Union of Indiathe court stated that, “When there is a state of uncertainty due to the lack of data or material about the extent of damage or pollution likely to be caused, then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution.”
The movement of precautionary principle has widened the scope of cooperate accountability, but the interpretation of this principle by the courts diverts from the basics of Indian Jurisprudence.
The “Polluter Pays” Principle – the case of M.C Mehta v Union of India laid down the rules and regulations for absolute liability. In such a situation the judges can calculate the damages suffered by the party and compensate for the same, without the purview of any law. There is immense faith in the judiciary and hence it may decide the case and also look into the matter of nature of damages caused.
The Supreme Court has recently said that its power under article 32 has allowed Supreme Court to award exemplary damages and play a major role in saving the environment.
Sustainable Development and Inter-generational Equity – in the case of Narmada Bachao Andolan v. Union of India, it was observed that: “Sustainable development means what type or extent of development can take place, which can be sustained by nature/ecology with or without mitigation.”
In Taj Trapezium case it was held that industries are important for the economy of the country and hence their growth can’t be questioned but at the same time environment has to be protected as well.
Other notable case is that of State of Himachal Pradesh v. Ganesh Wood Products, the Supreme Court in its judgment recognized the principle of inter – generational equity as being central to forest conservation under forest based industries. Indian courts have been worried about the future generation as well and have expressed its concern in CRZ Notification case, the court clearly mentioned that the adverse effects will be borne by the coming generations.
Public trust doctrine – one of the landmark cases lays down the fact that certain resources like, rivers, forests, air and many more were hold by government in trusteeship for the betterment of the public and is general use. The said case was of M.C. Mehta v. Kamal Nath.. If the government grants lease to a motel along riverside of Beas then this would interfere with the natural process and government is said to breach the doctrine of Public trust.
Indian judiciary is doing a commendable job already, especially the Indian Supreme Court and the High Courts, but somewhere the work needs to e started at ground level as well, all the tribunals assigned to look after environment should also step forward and make a contribution towards a better environment. Also, public support is much needed, government or the judiciary alone, is incapable to do make any such changes. Citizens of the whole country need to come together and work towards the same.
Through Public Interest Litigations Indian Judiciary has done a great job in providing people relief and damages against the wrong that happened to them. By this way, the trust that citizens of the country hold upon judiciary reaches a new height. Through the method of Judicial Activism, the rights of the victims are protected. Through this all the cases that fall under the jurisdiction of Supreme Court and High court are disposed off successfully.
If the concept of Judicial Activism would not have been introduced then the courts would have been full of files that had untold stories of the victims and the hidden wounds of environment that would never have been addressed.
PIL has worked as a helping hand to the victims of environmental hazards. In a country where legislature is reluctant about coming up with laws or acts that would act in the benefit of the environment and the public in general, PILs played an important role.
However, these efforts should be streamlined and made uniform. Projects that hamper the environment should not be given the go-ahead on economic considerations alone if they violate environmental norms.
Judicial activism in India provides an impetus to the campaign against environmental pollution. Public Interest Litigation (PIL) has come to stay in India. The path for people’s involvement in the judicial process has been shown. If this had not been done so, the system would have collapsed and crumbled under the burden of its insensitivity.
However, the environmental activism in India cannot perhaps be attributed to the whole judiciary but only to a few judges. This clearly dampens the impact of this movement within the judiciary. Efforts should be made within the system to make the judges realize the importance of a right to a clean and healthy environment from the highest to the lowest level.
 Indian author and entertainment journalist
 https://www.britannica.com/topic/judicial-activism (lasted visited on – 6.10.2021)
 Writ petition can be filed under Supreme court for the violation of fundamental rights
 Writ petition can be filed under high court for the violation of fundamental rights
 AIR 1991 SC 420
 locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it
 Article 48A lays down the directive principle for protection and improvement of environment and safeguarding of forests and wildlife
 Article 51A (g) places a duty on the citizens of India to protect and improve the natural environment and have compassion for all living creatures
 1980 AIR 1622
 AIR 1987 965
 AIR 2000 SC 3751
 1988 AIR 1115
 AIR 1991 SC 420
 1991 SCR (1) 866
 1982 (2) S.C.C. 253
 See U. Baxi, ; “ Taking Sufferings seriously : Social Action Litigation and the Supreme Court”; 29 International Commission of Jurists Review ; ed 1982;p 37-49
 AIR 1985 SC 652.
 AIR 1988 4 SCC 471.
 AIR 1997 SC 734.
 https://www.researchgate.net/publication/272241818_Judicial_Activism_on_Environment_in_India (last visited on 7. 10. 21)
 AIR 1996 SC 2715
 AIR 1999 SC 812
 2000 (10) SCC 664
 39 AIR 1987 SC 965
 AIR 1996 SC 1446
 AIR 1996 SC 2715
 2000 (10) SCC 664
 1987 AIR 1086
 AIR 1996 SC 149
 Indian Council for Enviro – Legal action v Union of India 1996 (5) SCC 281.
 1997(1) SCC 388.