The Indian judiciary has always kept its mind open to bring about new dimensions in the decision making process. Over time there has been an effort to bring about new provisions in law to fit the best to the environmental needs and to promote the protection of environment. Judicial Activism in India can be witnessed with reference to the review power of the Supreme Court under Article 32 and High Courts under Article 226 of the Constitution, particularly in public interest litigation cases.
In simple words, public interest litigation means any public-spirited citizen can move/approach the Court for the public cause (in the interest of the public or public welfare) by filing a petition:
- In Supreme Court under Art. 32 of the Constitution;
- In the High Court under Art. 226 of the Constitution; and
- under Sec. 133 Cr.P.C. before the court of Magistrate
Even before the provisions for the same, the judiciary through other means has entertained complaints and concerns in the regard. The same can be witnessed from the following case laws:
1. Ratlam Municipal Council v. Vardhichand (AIR 1980)- The judgment of the Supreme Court in instant case is a land mark in the history ofjudicial activism in upholding the social justice component of the rule of law by fixing liability on statutory authorities to discharge their legal obligation to the people in abating public nuisance and making the environmental pollution free even if there is a budgetary constraints., J.Krishna Iyer observed that, “social justice is due to and therefore the people must be able to trigger off the jurisdiction vested for their benefitto any public functioning.” Thus he recognized PIL as a Constitutionalobligation of the courts
2. Gotham Construction V. Amulya Krishna Ghosh (AIR 1968)- which laid down a condition for industries in the residential areas. The Court held that these factories need o have proper equipment to cut down the noise or otherwise could not operate. The case addressed the issue ofnoise pollution by workshops/ factories setup in residential areas.
3. In M.C. Mehta V. Union of India (AIR 1988) also known as the Gangawater pollution case – The Court highlighted the importance certain provisions in our constitutional framework which enshrine the importance and the need for protecting our environment. Article 48-A provides that the State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51-A of the Constitution of India, imposes a fundamental duty on every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life. The Court stated the importance of the Water (Preventionand Control of Pollution) Act, 1974 (‘the Water Act’). This act was passed to prevent and control water pollution and maintaining water quality. This act established central and stated boards and conferred them with power and functions relating to the control and prevention of water pollution.
4. In Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P.1985 , the Supreme Court was faced with the problem of the mining activities in the limestone quarries in Dehradun-Mussoorie area. This was the first case of its kind in the country involving issues relating to environment and ecological balance and brought into sharp focus the conflict between development and conservation. In this case, the Supreme Court emphasized the need for reconciling development and conservation in the larger interest of the country. It was held that pollution caused by quarries adversely affects the health and safety of people and hence, the same should be stopped as being violative of Article 21. In this case, the Supreme Court for the first time held that the right to wholesome environment is a part of right to life and personal liberty guaranteed under Article 21 of the Constitution.
5. In Kinkeri Devi v. State, 1988, Himachal High Court that in Article 48-A and Article 51-A(g) it was held that it is both constitutional pointer tothe state and the constitutional duty of the citizens not only protect the environment but also improve it and to preserve and safeguard the forests, the flora and the fauna, the rivers and the lakes and all other water resources of the country.
6. In Damodhar Rao v. S. 0. Municipal Corporation Hyderabad (AIR1987), the Court resorted to the Constitutional mandates under Articles 48A and51A(g) to support this reasoning and went to the extent of stating thatenvironmental pollution would be a violation of the fundamental right to life and personal liberty as enshrined in Article 21 of the Constitution. A relationship between fundamental rights and right to an unpolluted environment was discussed.
7. In the famous Taj Mahal Case(M.C. Mehta V UOI 1986), ample of industries near Taj Trapezium Zone were using coke and coal as anindustrial fuel. These industries were ordered to be relocated to an alternative site as provided under Agra Master Plan. The rights and duties of the workmen in the industries were also specified by the court following the principle of sustainable development. Considering the Taj Mahal not just as a tourist place, but also a cultural heritage, the Indian Judiciary took and active step to address the same.
The Indian Courts have also formulated the following principles keeping in view the environmental needs. They are as follows:
- Precautionary principle: (a) The Indian Judiciary actively supports the Precautionary Principle. In the judicial pronouncement of Vellore Citizens Welfare Forum v UOI, 1996, the Court opined that sustainable development is the needof the hour. The court emphasized on the fact thatthere should be a balance between economic growthand protection of the environment. The Court rejected the traditional concept that ecology and development are opposed to each other. The Court also reviewed the development of the concept of sustainable development in the international sphere. (b) The Precautionary Principle was very comprehensively reviewed by the Apex Court in the case of AP Control Pollution Board vs. Prof M V Nayadu, 1999, The Court stated that it is better to gowrong in taking caution and prevent environmental harm rather than waiting for the issue to materialize into an irreversible problem. The Court opined that the Precautionary Principle was evolved because of lack of scientific certainty only, and the principle involves anticipating the harm the environment may suffer andact on the basis of that.
- Polluter pays principle: The Oleum Gas Leak case (M.C. Mehta vs.Union of India) AIR 1987 SC 1086, the Court laid down that an enterprise engaged in a hazardous orinherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and to those residing in the surrounding areas, owes an absolute and non-delegable duty to the community to ensure that no harm results to any one on account ofhazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise is absolutely liable to compensate for such harm and irrespective of all reasonable care taken on his account. The larger and more prosperous the enterprise, greater must be the amount of the compensation payable for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.
- The principle of public trust: Another major principle accepted by the Supreme Court is the public trust doctrine for the protection of natural resource. This doctrine came up for consideration in the M.C. Mehta v.Kamal Nath (1997). Another major principle accepted by the Supreme Court is the public trust doctrine for the protection of natural resource. This doctrine came up for consideration in the M.C. Mehta v. Kamal Nath. A rather unusual situation had arisen in this case. The flow of the river Beas was deliberately diverted because it used to flood Span Motels in the Kulu Manali valley in which a prominent politician’s family had adirect interest. The motel was also allotted protected forestland by the State Government and had also encroached on protected forest land, which encroachment was subsequently regularized. The Supreme Court used the public trust doctrine in this case to restore the environment to its original condition. Briefly, this doctrine postulatesthat the public has a right to expect that certain lands and natural areas will retain their natural characteristics. Applying the public trust doctrine, the Supreme Court cancelled the lease of forest land granted in favour of Span Motels and the State Government was directed to take over the area and restore it to its original condition. The motel was directed to pay compensation (damages for restitution ofthe environment and ecology of the area). It was also asked to show causewhy a pollution fine be not imposed.
- Inter-generational equity principle: In several case the Indian judiciary recognized this principle clearly. In the case of State of Himachal Pradesh v. Ganesh Wood Products (1995), the court held that a state’s approval is contrary to public interest. More over court also held that maintenance and preservation of forest, natural resources etc for future generation is a duty on the part of governments as well as on the citizens based on the concept of sustainable development and inter-Generational equity principle.
- Absolute liability principle: The concept of absolute liability evolved in India after the case of M.C Mehta vs Union of India (1987), famously known as Oleum Gas Leak case. This is one of the historic cases in the Indian Judiciary. The case of M.C Mehta is based on the principle of strict liability but with no exception were given and the individual is made absolutely liable for his acts. It is based under this principle that the defendant won’t be allowed to plead defence if he/she was at fault as it was laid down in Ryland vs Fletcher case. After the Bhopal gas leak case many people lost their lives and are suffering from some of the fatal diseases through the generation and because of this there was an urgent need to develop a rule under strict liability which had no exceptions available to the defendant to escape from the liability.
Thus, it is clearly evident that the Supreme Court is, at the present time, stretching the different legal provisions for environmental protection. In this way, the judiciary tries to fill in the gaps where there is laciness of the legislation. These new innovations and developments in India by the judicial activism open the numerous approaches to help the country. In India, the courts are extremely cognizant and cautious about the special nature of environmental rights, considering that the loss of natural resources. However, there is a little more that can be done by the courts:
- Regular Inspection
- Environmental Education
The views and opinions expressed by the writer are personal and do not necessarily reflect the official position of VOM.
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