Role of Judiciary in Environmental Protection
Our Indian Constitution guarantees Right to life and liberty under Article 21, which says that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Here, putting emphasis on “Life” part of the Article, will see that how it has broad contours to substantiate this right. Life is not construed in Article 21 of the Constitution merely the physical act of breathing. It does not connote mere animal existence. It has a much wider meaning which includes right to live with human dignity, right to livelihood, right to health, right to pollution free air, etc. Right to life is fundamental to our very existence without which we cannot live as human being and includes all those aspects of life, which go to make a man’s life meaningful, complete, and worth living. It is the only article in the Constitution that has received the widest possible interpretation. Hence, our life sustains itself through the outside factors also along with biological mass.
The Healthy Environment is the comprehensive term encompassing all such natural and biotic factors that make possible to entertain Right to life in 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 bye-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 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 proper implementation of these enactments and judiciary had played an important role in interpreting the laws to protect the environment.
It has been recognized to be inseparable part of Right to Life under Article 21 and well established if we take into account some other provisions of the constitutions.
At the turn of the present century, when world started to encounter the ill-effects of industrialization, “Right to live in Healthy Environment” gained importance.
The Indian Judiciary, the custodian of constitution, has been giving beacon light for such valuable Right while interpretation the constitution in positive manner. Judicial Chronology is full of landmark decisions, which embarked upon that Right to life far exceeds mere breathing and walking and developed Environment Jurisprudence. Judiciary plays the vital role in the protection of environment. One of the main developments in the Indian Judiciary is the Public Interest Litigation (PIL). It is the new jurisprudence and is called “Jurisprudence of Masses”. It is started in the year 1970. Writ petitions in the form of PILs have been accepted by the High Court’s under Article 20, Article 47, Article 32 is right to constitutional remedies and Article 226 (Power of High Courts to issue certain writs) of the Indian Constitution. The PILs got constitutional sanction in the 42nd Constitution Amendment Act 1974, which introduced Article 39-A in the Indian Constitution to provide equal justice and free legal aid. The PIL encouraged the affected individuals (affected by any project), public minded individuals, voluntary organizations, NGOs; Judges on their own, to start without paying any court fees. Due to PILs, many landmark judgments are published. Many authorities are observing the works of the Govt., whether court orders of PILs are carrying out or not. PIL of court indicates a person, authorities or Govt., to work morally. he Supreme Court and the High Courts have been entertaining environmental petitions under Articles 32 and 226 of the Indian Constitution as constituting violation of Article 21. While entertaining environmental litigations by environmental NGOs and enlightened public figures like M.C. Mehta, these courts have passed landmark judgments, thereby forcing public bodies to take action on burning environmental issues.
Judicial activism in the field of environmental protection has been applauded by people like M.C. Mehta, Satyaranjan Sathe, Justice Kuldeep Singh and Justice Ashok Desai. However, it is important to note that judicial activism has serious limitations, and executive laxity and unconcern towards environment cannot be made good just by judicial activism. Judicial activism cannot make good laxity in the enforcement of environmental laws. There can be no substitute for a check on the executive by a vigilant public and a people’s movement to save the environment.
Provisions of Indian Constitution relevant 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 wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
Article 51A (g) “to protect and improve the natural environment including forests, lakes, rivers and wild life, 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 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 body
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 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 exercise 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 for 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 Interpretation of Constitution vis-à-vis Health & Environment by Judiciary:
- The Supreme Court of India recognized Water and air is inalienable part of “life” under Article 21 of the Constitution in the case of Subhash Kumar Vs State of Bihar. This was almost first step in the direction of constitutional interpretation for the protection of healthy environment for life.
- Supreme Court of India in case of Rural Litigation and Entitlement Kendra, Dehradun Vs State of UP that protection and safeguarding the rights of the people to live in healthy environment has to be done even it has some economical cost.
- While explaining the importance of environment and health aspect of life in case of Vellore Citizens’ case, Judges have formulated the concept of Sustainable Development for the first time in Environmental Jurisprudence in India.
- The Supreme Court of India, while incorporating certain features into fundamental right of Right to life and Liberty through wide interpretation, had developed some important principles, which were necessary to ensure atmosphere for Right to live in healthy environment.
- 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 constitutional ruling in case of Vellore Citizen’s Welfare Forum v. Union of India.
- 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 Vs Kamalnath & Others
- 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 eco- system 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.
- In Charan Lal Sahu case, Supreme Court had said that the right to life guaranteed by Article 21 of the Constitution includes the right to a wholesome environment. The Court resorted to the Constitutional mandates under Articles 48A and 51A(g) to support this reasoning and went to the extent of stating that environmental pollution would be a violation of the fundamental right to life and personal liberty as enshrined in Article 21 of the Constitution
- 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.(Bhopal Gas Tragedy case Judgment)
- Environmental damage will be considered as Public Nuisance and duty is cast upon public authorities to help mitigate the effect of nuisance through Public Interest Litigation as strong medium. (Ratlam Municipal Council v. Vardhichand)
- As a part of Environment education, Supreme Court in M.C. Mehta case directed the Union Government was obliged to issue directions to all the State governments and the union territories to enforce through authorities as a condition for license on all cinema halls, to obligatory display free of expense no less than two slides/messages on environment amid each show.
Indian Judiciary’s role in development of Environmental Jurisprudence –
Professor Upendra Baxi, who has often supported the judicial activism in India, has also said that the “Supreme Court of India” has often become “Supreme Court for Indians”. Many observers of the Indian Supreme Court including Professor Sathe and Baxi have rightly opined that the Indian Supreme Court is one of the strongest courts of the world. Power and judicial activism of the Indian courts have resulted into a strong and ever expanding regime of fundamental rights. Stockholm Conference on Human Environment, 1972, has generated a strong global international awareness and in India it facilitated the enactment of the 42nd Constitutional Amendment, 1976. This amendment has introduced certain environmental duties both on the part of the citizens [Article 51A (g)] and on the state (Article 48-A).
Under the constitutional scheme the legal status of Article 51(A)-(g) and 48-A is enabling in nature and not legally binding per se, however, such provisions have often been interpreted by the Indian courts as legally binding. Moreover, these provisions have been used by the courts to justify and develop a legally binding fundamental right to environment as part of right to life under Article 21. Hereinafter, an effort has been made to demonstrate that how both the ‘soft’ and ‘hard’ international environmental laws have been used by the Indian courts to develop a strong environmental jurisprudence in domestic law. The deemed Second Period of Judicial Adoption (1985-1995) was of growing Influence of International Environmental Law globally as well as on national level. During this period international environmental law was used to interpret the character of state obligations with respect to the right to life (Article-21), which has been interpreted to include the right to a healthy and decent environment. Before 1996 there were very few references to international environmental treaties though by 1990 India was party to more than 70 multilateral treaties of environment significance .In Asbestos Industries Case the Supreme Court extensively quoted many international laws namely ILO Asbestos Convention, 1986, Universal Declaration of Human Rights, 1948, and International Convention of Economic, Social and Cultural Rights, 1966. In this case the court dealt the issues relating to occupational health hazards of the workers working in asbestos industries. The court held that right to the health of such workers is a fundamental right under article 21 and issued detailed directions to the authorities. In Calcutta Wetland Case the Calcutta High Court stated that India being party to the Ramsar Convention on Wetland, 1971, is bound to promote conservation of wetlands.
Important disposal off Environmental cases by Indian Judiciary-
- 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
- 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
- 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.
- 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.
- 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.”
- 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 mode 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 convertors; 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 land mark judgment and established 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 mtrs 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.
Reasons for Judicial Activism in protection of Environment:
The year 1972 holds significance for the Environment Jurisprudence as it has changed the course of action altogether. The Stockholm conference is milestone from where this country and other developing countries had to look environment from different perspective. United Nations Conference on the Human Environment, having met at Stockholm from 5 to 16 June 1972, having considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment. They have set some illuminated and cardinal principles to be observed while interacting with nature for man-made development. At the end of the summit, following principles were adopted-
- Human rights must be asserted, apartheid and colonialismcondemned
2. Natural resources must be safeguarded
3. The Earth’s capacity to produce renewable resources must be maintained
4. Wildlife must be safeguarded
5. Non-renewable resources must be shared and not exhausted
6. Pollution must not exceed the environment’s capacity to clean itself
7. Damaging oceanic pollution must be prevented
8. Development is needed to improve the environment
9. Developing countries therefore need assistance
10. Developing countries need reasonable prices for exports to carry out environmental management
11. Environment policy must not hamper development
12. Developing countries need money to develop environmental safeguards
13. Integrated development planning is needed
14. Rational planning should resolve conflicts between environment and development
15. Human settlements must be planned to eliminate environmental problems
16. Governments should plan their own appropriate population policies
17. National institutions must plan development of states’ natural resources
18. Science and technology must be used to improve the environment
19. Environmental education is essential
20. Environmental research must be promoted, particularly in developing countries
21. States may exploit their resources as they wish but must not endanger others
22. Compensation is due to states thus endangered
23. Each nation must establish its own standards
24. There must be cooperation on international issues
25. International organizations should help to improve the environment
26. Weapons of mass destruction must be eliminated.
The Government of India was though signatory at later stage but strong votary of protection as agreed upon. Post 1972 , The National Governments had pursued the development path in much vigor and command but less interested in protection of environment and ecology. Somewhere around 1982, concept of Public Interest Litigation was gaining importance due to recognition given by Honorable Judge like P.N. Bhagvatiji. Government had made no comprehensive plan, lay out of industrialization and on the other hand , vested groups had eye on green lands and cheap natural resources without taking any ethical and social responsibility against those communities who protected and maintained such valuable ecological balance. Supreme Court of India came to the rescue for the plights of those people who either had to migrate to some other places due to minning or industry or were facing the ill effects of any activity. Before the Pro-active role of Indian Judiciary, Government had no mechanism to deal with such situations. No comprehensive law existed prior to 198. Environment Protection Act came into existence in 1986 after 14 years of Stockholm Conference. Though Water Act, 1974 and Air Act, 1981 were there but they were in sufficient to deal with.
Indian Judiciary, especially, Supreme Court of India had consolidated the environment Jurisprudence on case to case basis and developed some outstanding principles to be followed by lower courts while dealing environment cases. They have tried to fill the vacuum created by legislature and paralyzed by administrative machinery. Indian Judiciary have got the necessary impetus from Civil Society’s activism in environment protection, some stalwarts like M.C. Mehta, International Conventions like Earth Summit, Kyoto Summit, which maintained the focus of such issues among the business of the Governments.
The interpretation by the Indian Judiciary in favor of marginalized people while counting protection of environment as investment by the community live by the side of nature and entrepreneur has to share economic fruits with those communities as ecological balance contributed the industrial output also. Such strong ethical and legal backing provided by Indian Judiciary has modeled the whole Environment movement in India and now they are leading the world. Indian Environment jurisprudence shaped by and large by the Indian Judiciary within the Indian Constitution is major achievement after Stockholm conference. Many more things yet to be done and many strictures, comments and orders have yet to be followed by different governments in this country.
The failure of the state agencies to effectively enforce the environmental laws apart from non-compliance with statutory norms by the polluters resulted into further degradation of the environment which has affected the health of the people and forced the environmentalists and the residents of polluted areas as well as the non-governmental organizations to approach the judiciary, particularly the higher judiciary, for the suitable remedies. Of course the initiative for the protection of environment came from the legislature but the failure of the executive to implement the environmental laws in India created the ground for the intervention of the judiciary.
The judiciary made several attempt to resolve the conflict between the development and environment. The environmental jurisprudence in India developed through the instrument of Public Interest Litigation (PIL). Under the PIL, the judiciary liberalized the concept of locus standi and thereby empowered the people to approach the judiciary when the public interest is harmed by either the action of the state, organization or individual. Unique feature of the Indian environmental jurisprudence is the important role played by the PIL. The activism of the higher judiciary regarding the cases related with violation of environment and human rights has acquired the name of judicial activism. The Supreme Court has not only played a leading role in the implementation of environmental laws but also interpreted the right to life under Article 21 to include a right to healthy and pollution free environment, as a fundamental right.
Government of India as well as State Government have now started to chart out the plans sector wise, lay out 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 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 an 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 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 were 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.
- ROLE OF THE JUDICIARY IN ENVIRONMENTAL PROTECTION Dubey Amit* and Tiwari B.K. Department of Law, Barkatullah University, Bhopal (INDIA)
- The Role played by Indian Judiciary in Environment Protection by Supriya Guru
- The Role of Indian Judiciary in protection of Environment in India by Atisha Sisodiya, Christ University
- Contents on Indianenvironmentalportal.org.in
- Principles of International Environmental Law and Judicial Response in India by Dr.S.K. Gupta
- Constitutional Provisions related to Environment Conservation by Binod Prasad Sharma
- UN report on United Nations Conference on the Human Environment 1972 Stockholm.
- Environmental jurisprudence in India: A look at the initiatives of the Supreme Court of India and their success at meeting the needs of enviro-social justice by Debadyuti Banerjee
- Judicial Activism and Environmental Jurisprudence in India: written by Shri Rohan Bagai
- Judicial Activism for Environment Protection in India Mahajan Niyati Graduate School of Social Sciences, Waseda University, Tokyo, JAPAN
- IMPLICATIONS OF INDIAN SUPREME COURT’S INNOVATIONS FOR ENVIRONMENTAL JURISPRUDENCE by Geetanjoy Sahu for LEAD Magazine.
By: Mr. Arvind Kumar Singh,
He is Senior Auditor in CAG office at Mumbai