DJN Blogs

Tanya Singh, JEMTEC School of Law.
Date: 15.12.2021
JUDICIAL ACTIVISM IN ENVIRONMENTAL LAW
Abstract
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.
Introduction
“Environment
is no one’s property to destroy; it’s everybody’s responsibility to protect.”
–
Mohith
Agadi[1]
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.” [2]
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[3]
and 226[4].
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[5]
(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[6]
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[7],
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[8],
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)[9],
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
Public Nuisance
Ratlam Municipal Council v. Vardhichand[10], 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)[11], 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,[12] 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)[13] 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[14] 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)[15] 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[16]
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.[17]
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.[18]
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[19] and the Taj Mahal Trapezium Cases,[20] 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.”[21]
The case which laid the stone of this
principle in India was Vellore Citizens’
Welfare Forum v. Union of India[22]. In A.P. Pollution Control Board v
Prof M.V. Nayudu[23]
the court made the terms of
precautionary principle clearer. Another notable case is Narmada
Bachao Andolan v Union of India[24]the
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[25]
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.
Enviro-Legal action v Union of India[26] and Vellore Citizen’s welfare Forum v Union of
India[27]
are the two cases that laid down this principle.
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, [28]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[29]
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[30],
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[31],
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.[32].
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.
Conclusion
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.
[1] Indian author and
entertainment journalist
[2] https://www.britannica.com/topic/judicial-activism (lasted visited on –
6.10.2021)
[3] Writ petition can be
filed under Supreme court for the violation of fundamental rights
[4] Writ petition can be
filed under high court for the violation of fundamental rights
[5] http://www.elaw.in/pil/bsingh.htm
[6] AIR 1991 SC 420
[7] locus standi means the right
to bring an action, to be heard in court, or to address the Court on a matter
before it
[8] Article 48A lays down
the directive principle for protection and improvement of environment and
safeguarding of forests and wildlife
[9] 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
[10] 1980 AIR 1622
[11] AIR 1987 965
[12] AIR 2000 SC 3751
[13] 1988
AIR 1115
[14] AIR 1991 SC 420
[15] 1991 SCR (1) 866
[16] 1982 (2) S.C.C.
253
[17] See U. Baxi, ; “
Taking Sufferings seriously : Social Action Litigation and the Supreme Court”;
29 International Commission of Jurists Review ; ed 1982;p 37-49
[18] AIR
1985 SC 652.
[19] AIR 1988 4 SCC 471.
[20] AIR 1997 SC 734.
[21] https://www.researchgate.net/publication/272241818_Judicial_Activism_on_Environment_in_India (last visited on 7. 10.
21)
[22] AIR 1996 SC 2715
[23] AIR 1999 SC 812
[24] 2000 (10) SCC 664
[25] 39 AIR 1987 SC 965
[26] AIR 1996 SC 1446
[27] AIR 1996 SC 2715
[28] 2000 (10) SCC 664
[29] 1987 AIR 1086
[30] AIR 1996 SC 149
[31] Indian Council for
Enviro – Legal action v Union of India 1996 (5) SCC 281.
[32] 1997(1) SCC 388.
Recent Comments