JUDICIAL ACTIVISM IN ENVIRONMENT PROTECTION IN INDIA

This article has been authored by Anamika Tiwari, a law student at OP Jindal Global University.

Introduction

In many cases where the legislative and executive authorities have failed to carry out their constitutional obligations, the Judiciary has stepped up to offer “judicial activism”. The environmental jurisprudence in India underwent some major changes in the 1980s. The period not only involved executive and legislative activism but also effective judicial activism. An effective measure of judicial activism was the relaxation of locus standi and allowing citizens to approach the courts under Article 32 and Article 226 of the Constitution.

The courts in various environmental law cases have ruled that “the right to life” enshrined in Article 21 of the Constitution also included the “right to a clean and healthy environment”. Many of the environmental law cases are brought before the court under Article 32 and Article 226 of the Constitution. Writ petitions are preferred as it is inexpensive, expeditious and allows the citizens to directly approach the High Court and the Supreme Court. Primarily, the Indian Constitution had no independent provisions governing environmental laws in India. However, after the mandate of Stockholm Declaration 1972 and growing awareness concerning the environment, the historic Forty-Second Constitution Amendment Act, 1976 was enacted. This amendment introduced principles of environmental law through Articles 48A and 51A(g). Article 48A obligates the state to protect and improve the environment whereas Article 51A(g) requires the citizens to realize their responsibilities towards the protection of the environment.

Relaxation of Locus Standi

Locus standi means parties standing before the court. Civil litigations are generally time-consuming, expensive, and take ages before the issues are solved. This places a burden on the plaintiff and people who have legitimate complaints regarding environmental issues hardly get civil remedies. The Supreme Court has been very sensitive towards the predicaments of the poor and oppressed by allowing “representative standing” i.e., by allowing the poor and the oppressed to be represented by the NGOs concerned and other professional groups. The concept of representative standing has been very useful in cases of bonded labour, giving women their rights in protective homes, giving wages to construction workers, etc. By relaxing the standing litigations, the court has simplified the procedural norms in social action litigation. Any concerned citizen, NGOs or professional groups can inform the High Courts and the Supreme Court simply through a letter if any fundamental rights of the poor or the oppressed have been violated. The court treats this letter as a writ petition, investigates the case, makes provisions for the legal aid, if necessary, hears the case, and passes appropriate orders.

Had the court not taken this step, there would have been several petitioners facing grave injustice and not getting the remedies they deserve. In the words of India's leading jurist, Dr. U Baxi, for the first time, “the Supreme Court of India became a Supreme Court of all Indians”. This new form of legal action was also known as Public Interest Litigation (PIL). PIL is considered to be a non-adversarial approach, with the participation of amicus curiae, the appointment of experts, monitoring committees by the court,and the issue of detailed interim orders in the form of continuous mandamus under Article 32 and Article 226.

Public Interest Litigation has helped many affected citizens to seek remedies from the court in various cases. In Rural Litigation Entitlement Kendra v. State of UP, the court heard the case under Article 32 of the Constitution. The court ordered the closure of limestone quarries in Mussoorie Hills which was affecting the ecology and was a hazard to the health and safety of the people living in that area. In the Oleum Gas Leak case, the petitioner was granted locus standi. The court, in this case, held that the exception in Rylands v. Fletcher, i.e., the use of natural land no longer exists in cases of industries in India that are involved in “dangerous or inherently dangerous” activities. The court laid down the “absolute liability” principle overshadowing the “strict liability” principle.

Through this judgment, the court recognized the right of the citizens to live in a safe and healthy environment by ruling that the industries engaged in dangerous or inherently dangerous activities could no longer take shelter under the exception of the strict liability principle. The Supreme Court through a series of cases has ruled that industries that did not abide by the rules and regulations of the environmental laws shall be closed.

Tort based Litigation

Environment law all over the world has its origin in the concept of “nuisance” under tort law. Even though tort-based litigation is concerned with the protection of third-party interests, it is one of the oldest remedies to redress environmental law problems. Tortious liabilities for environmental harm are available in the form of trespass to land, nuisance, public nuisance and negligence.

Even though tort-based litigation in India has a limited scope, it cannot be denied that it has been proven to be an effective way to tackle environmental harm issues. There can be three possible outcomes in tort-based litigation in environmental law: (i) compensation (ii) direction/injunction (iii) punishment. The Indian courts have done a notable job in developing the concept of tortious liability in environmental law cases. In Municipal Council, Ratlam v. Vardhichand, to bring more validity to the order of an executive magistrate arising out of section 133 CrPC, Justice Krishna Iyer attracted section 188 of IPC. If the order of the public servant has not been complied with, it will attract a penalty. The parent idea is arising from the principle of torts when accompanied by other statutes may have different outcomes.

The Precautionary Principle

According to this principle, the government and the health authorities are required to take appropriate actions to control and regulate environmental pollution. Environmental activists believe that the lack of full certainty is not a justification to prevent something that might result in serious or irreversible damage. In S. Jagganath v. Union of India, the court ordered the authority to deal with the situation caused by the shrimp industry and issued remedial directions in accordance with the precautionary principle and polluters pay principle. In MC Mehta v. Union of India (CNG Vehicles Case), the court said that even if there is a shortage of Compressed Natural Gas (CNG) as contended by the government and if crude oil can be supplied for petrol and diesel there is no reason why CNG should not be supplied. The court observed that the responsible government should be mindful of increasing respiratory diseases in children due to increased air pollution in Delhi. It was found that the health hazards due to pollution in Delhi were severe than in Bhopal Gas Tragedy. It was found that it was due to lack of action taken by the government to supply CNG or any other unadulterated fuel, the respiratory diseases had increased. It was observed that under these alarming conditions, it was the responsibility of the court to step up and take some action so that future generations do not suffer.

The Polluter Pays Principle

Polluter Pays Principle is another environmental policy principle, which says that “the cost of the pollution should be borne by the ones who cause it”.

In MC Mehta v Union of India, the Supreme Court calculated damages not by the argument put forward by the parties, but through an examination of the case by the court, keeping in mind factors such as the deterrent nature of the award. The use of Polluter Pays Principle had been used in cases like Enviro-Legal Action v Union of Indiaand Vellore Citizens' Welfare Forum v Union of India. However, it had been recently held by the Supreme Court that the power to award damages under Article 32, even exemplary damages to compensate environmental harm, would not extend to a levy of pollution fine.

The Sustainable Development Principle

The court in Narmada BachaoAndolan v Union of India observed that “sustainable development means the type of development which can be sustained by nature/ecology with or without mitigation”. In Vellore Citizens' Welfare Forum v Union of India, the traditional concept that development and ecology were opposed to each other was rejected and sustainable development was adopted. This principle was again used in Taj Trapezium Case, and it was held that even though mines and industries were important for economic development, it cannot outweigh the importance of protection of the environment.

In State of Himachal Pradesh v Ganesh Wood Products, the court invalidated forest-based industries and held that the principle of inter-generational equity was important for the conservation of forests and sustainable development.

Conclusion

The Indian Judiciary through various important judgments has upheld the environmental protection laws in India. Through Public Interest Litigation, the court has done notable work in providing remedies to people who were victims of environmental harm even when there was no specific provision for environmental protection in India. Through its highly activist attitude the Supreme Court, while upholding the rights of citizens to a clean and healthy environment, has said that the economic concerns shall not outweigh the public interest and the Indian courts are gradually adopting a realist approach in disposing off cases.

The courts would have flooded with petitioners devoid of justice if the court had not introduced the concept of Public Interest Litigation and involved citizens in the judicial process. There is no doubt that the concept of Public Interest Litigation is to live long in this country. However, this approach of the Supreme Court should be uniform and consistent. The rights of citizens to a clean and healthy environment should be realized in all lower and higher levels of the government.