|Legal Service India - Environment Justice: Experience Vs. Expectations - Environmental Law|
|Legal Advice | Find a lawyer | Constitutional law | Judgments | forms | PIL | family law | Cyber Law | Law Forum | Income-Tax | Consumer laws | Company laws|
|Latest Articles | Articles 2013 | Articles 2012 | Articles 2011 | Articles 2010 | Articles 2009 | Articles 2008 | Articles 2007 | Articles 2006 | Articles 2000-05|
U. Thant, the secretary general, United Nations, in Stockholm conference appealed:-
Like or not we are traveling together on a common planet and we have no national alternative but to work together, to make an environment in which we and our children can live a full and peaceful life.
The problem of environmental pollution is as old as the evolution of Homo sapiens on this planet. Kautilya the Prime Minister of Magadh, during the regime of Chandra Gupta Maurya, 300 B.C. in his ‘Arthashastra’ exhaustibly dealt with the question of environment protection. He laid down the rules for the protection and upgradation of environment minutely, meticulously and with great details. Mauryan King Ashoka depicted exemplary compassion for wild life and prohibited killing of certain species of creatures. Environment is the outer physical and biological system in which man and other living objects survive. The main identified components of the environment are soil, water and air. These components of the environment keep on interacting with each other to maintain a mutual balance called "ecological balance".
The system as a whole sustains mankind. It is God's gift to the living beings to enable them to live on this planet and lead a healthy life. The "ecological balance" is being upset by misuse, abuse and extraordinary use of resources of the environment. This has a bearing on the very existence of the human race. When we disturb nature thereby disturbing the ecological balance, the impact on human life is highly damaging. Conservation and preservation of the environment is the need of the day. Scientific and technological advancement has given mankind a free hand in exploiting natural resources without having regard to ecological consideration. Industrialization and urbanization have led to uncontrolled deforestation. They have given rise to problems of insanitation, waste disposal, and housing, availability of potable water, air pollution, and acid rain. This has also resulted in "green house" effect and ozone depletions. There is adverse cumulative effect of all this on nature; the worst sufferers are the silent majority of animals on the earth and beneath, under the sea. The nuclear leak at Chernobyl and the Bhopal gas disaster are examples of man-made disasters.
The rapid increase in population and the accelerated rate of use of natural resources are leading to depletion of natural resources. Man has overdrawn from nature for satisfaction of his multifarious needs, desires and ambitions. Nature has lost its capacity for self-stabilisation. Means and methods of environmental pollution are many and varied. Apart from the pollution of environment i.e. air, water and land, there is noise pollution. There is pollution by way of land erosion. There is pollution of food arising from use of drugs, hormones and pesticides. Air pollution is the single factor responsible for the death of millions of human beings around the world. It adversely affects animal life and vegetation. Chronic bronchitis, breathing problems, lung cancer, and tuberculosis are results of exposure to air pollution. Water pollution is not confined to pollution of river waters. Even lakes are not spared.
A lot of industrial waste and human waste is being discharged into lakes. Sea waters have to cope with pollution too. There are oil leaks into the sea from big oil carriers. Passenger ships dump leftover food and other wastes into the sea bed. This has led to tremendous damage to marine life. Protection of the environment raises difficult and complex issues. Therefore, the fundamental question before the world today is whether we can allow this destruction of the environment to continue. The problem is not yet beyond control. Despite brutal exploitation of our environment by mankind, it is still possible to arrest the depletion by taking preventive measures.
The Earth’s atmosphere is a common heritage. The environmental issues take into account the human being, and not the state as a unit. Thus, it has become necessary to regulate behaviour and social transactions with new laws, designed to suit the changing conditions and values. As a result a new branch of law, called Environmental law, grew at this stage in order to manage and face the myriad challenges of such a system. The environmental laws are of a much recent origin. The Environmental (Protection) Act, 1986, hereinafter the EPA, defines environment which includes water, air and land and the inter-relationship which exists between them on the one hand , and human beings on the other hand, and human beings, other living creatures, plants, micro-organisms and property, on the other.
Environmental laws involves conversation of natural resources for their better use by the present day society as well as by future generations and it also governs the inter-relationship between natural resources and human beings. Its domain also extends to the relationship between natural resources and other living creatures. Judicial remedies for environment maladies thus have only marginal benefits. What real contributions do the courts make? Will they not settle and lay down the law for better environmental behaviour in future? One has to examine whether judicial activism that allows courts to break traditional barriers of judicial review and to interfere with administrative decisions is welcome in environmental cases.
Environmental Justice and the ConstitutionThere is no entry on ‘environmental protection’ in the legislative lists in the Constitution of India. Suggestions to include such an entry in the concurrent list’ have not been accepted. At present, by way of the 74th amendment, a state legislature can enact legislation on ‘urban forestry, protection of the environment and promotion of ecological aspects.’ This is only in relation to the powers and function of municipalities no provision of this nature has been provided to the panchayats. Subjects having relationship with environmental protection fall under the three categories of law-making power as well as under the power of states in relation to panchayats and municipalities.
The judiciary, in their quest for innovative solutions to environmental matters within the framework of public interest litigation, looked to constitutional provisions to provide the court with the necessary jurisdiction to address specific issues. Furthermore, Article 142 afforded the Supreme Court considerable power to mould its decisions in order that complete justice could be done. As the Supreme Court is the final authority as far as matters of constitutional interpretation are concerned, it assumes a sort of primal position in the Indian environmental legal system. For example, the fundamental right contained in Article 21 is often cited as the violated right, albeit in a variety of ways. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi Bhagwati, J., speaking for the Supreme Court, stated that:
We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing, shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
In Subhash Kumar v. State of Bihar the Court observed that:
"Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution...."
The Supreme Court, in its interpretation of Article 21, has facilitated the emergence of an environmental jurisprudence in India, while also strengthening human rights jurisprudence. There are numerous decisions wherein the right to a clean environment, drinking water, a pollution-free atmosphere etc. have been given the status of inalienable human rights and, therefore, fundamental rights of Indian citizens. In Rural Litigation and Entitlement Kendra v. State of U.P, the Supreme Court based its five comprehensive interim orders on the judicial understanding that environmental rights were to be implied into the scope of Article 21, as was stated in T. Damodhar Rao v. Special Officer, Municipal Corpn. Hyderabad as well as L.K. Koolwal v. State of Rajasthan. The Court has successfully isolated specific environmental law principles upon the interpretation of Indian statutes and the Constitution, combined with a liberal view towards ensuring social justice and the protection of human rights. The principles have often found reflection in the Constitution in some form, and are usually justified even when not explicitly mentioned in the statute concerned.
Legal procedures and laws are supposed to be devised with a view to securing justice. Ideally, it is expected that these cannot be twisted or misused to defeat justice. A pure "legal battle" requires evidence and often a protracted trial under civil, criminal or any other kind of law applicable to a particular situation. Environmental problems are such that protracted battles are highly unaffordable and that was one of the reasons that High Courts and/or Supreme Court were moved under Article 226 and Article 32 of the Constitution of India. In certain cases, the Courts moved swiftly applying "creative reason", under "judicial activism," with a view to securing "justice," which requires protection of right to life - life in a real healthy sense.
This is actually the essence of Article 21, which has been read positively concerning environmental requirements and enshrined in various environmental laws with a view to design remedial measures, to prevent further pollution and to restore ecology to its normalcy. Four years after the Stockholm Conference, the 42nd amendment added to the Constitution of India certain significant provisions relating to the environment. The new provisions added were Article 48A and Article 51(g) . Forest, wildlife and population control were subjects on which the state had exclusive power to make laws, but now the concurrent list enables both the centre and the state to make laws on the area.
Evolving Environmental jurisprudenceThe growth of environmental jurisprudence in India was slow but steady. First of these cases, which is still the Magna Carta of the environmental jurisprudence for recognition of public rights to decent living was treatised by Justice V.R.Krishna Iyer in Municipal Council, Ratlam v. Vardhichand. The recognition and growth of Public Interest Litigation (PIL) has become a catalyst for environmental justice. The court upheld the trial courts order, under Section 133 Cr. P.C. to abate the nuisance of foul drain flowing in between the city with the filth and stink and discharge from the alcohol plant. Justice Krishna Iyer justified the exercise of power by the magistrate under Section 133 to go and take action wherever there is public nuisance, invoking the duty of the Municipal Council and held:-
Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law. Likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under Nature’s pressure, bashfulness becomes a luxury and dignity a difficult art. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are a first charge on local self governing bodies. Similarly, providing drainage systems - not pompous and attractive, but in working condition and sufficient to meet the needs of the people - cannot be evaded if the municipality is to justify its existence. A bare study of the statutory provisions makes this position clear.
This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding. Failure to comply with the direction will be visited with a punishment contemplated by S. 188, 1. P. C. Therefore, the Municipal Commissioner or other executive authority bound by the order under S. 133, Cr. P. C. shall obey the directions because disobedience, if it causes obstruction or annoyance or injury to any persons, lawfully pursuing their employment, shall be punished with simple imprisonment or as prescribed in the section.
The recognition and growth of Public Interest Litigation has become a catalyst for environmental justice. Contrary to the past practices, today a person acting bona fide and having sufficient interest can move the courts for redressing public injury, enforcing public duty, protecting social and collective rights and interests and vindicating public interest. In the eighties and nineties there has been a wave of environmental litigation. Most of such cases were in the form of class action and PIL, obviously because environmental issues relate more too diffuse interests than to ascertainable injury to individuals. The concept of class action is embodied in the Code of Civil Procedure 1908, where if numerous persons have common interests, one or more of such persons can file a suit. A recent example of class action is the Bhopal disaster litigation. It has been mentioned earlier that community interests can also be agitated under the law of public nuisance incorporated in the Code of Criminal Procedure. An individual, a group of individuals or an executive magistrate, suo moto, can move the courts. This provision has proved to be a potent weapon for regulatory measures as well as affirmative action by the government and local bodies for protection of the environment.
The ability to invoke the original jurisdiction of the Supreme Court and the High Courts under Arts 32 and 226 of the Constitution is a remarkable step forward in providing protection for the environment. Courts have widened the dimensions of the substantive rights to health and a clean and unpolluted environment. In most cases, this progress was made with the aid of PIL. Thus, in order to reap the benefits of substantive environmental rights, courts have opened a path of processual justice, without enslaving themselves to procedural compulsions. In Tarun Bharat Singh Alwar v Union of India a social action group challenged the legality of granting a mining license in the protected area of a reserved forest. Upholding the contention, the Supreme Court observed; this litigation should not be treated as the usual adversarial litigation. Petitioners arc acting in aid of a purpose high on the national agenda. Petitioners concern for the environment, ecology and the wildlife should be shared by the government.
The observation of the Court is important as it emphasizes the rationale of PIL in environmental issues. It is the duty of the State to protect the environment -a duty imposed by the Directive Principles and Fundamental Duties, introduced by the 42nd amendment of the Constitution. Any person who raises an environmental issue, whether individual, group or institution is equally concerned with the problem. Such litigation can never be considered as one of adversarial confrontation with the state. The range of issues has been very broad. It extends from compassion to animals and privileges of tribal people and fishermen, to the eco-system of the Himalayas and forests, eco-tourism, land use patterns and vindication of an eco-malady of a village. The cause of environment being taken up through PIL was championed by a wide spectrum of people in society. Lawyers, association of lawyers, environmentalists, groups and centres dedicated to environmental protection and forest conservation, welfare forums including those for tribal welfare, societies registered under the Societies Registration Act and consumer research centres have successfully agitated environmental issues before Courts.
Urban social activists, the women’s wing of a society for animal protection, chairmen of rural voluntary associations and residents of housing colonies were also involved in advocating environmental issues. While in some cases letters were considered as writ petitions, in some others paper reports were responsible for judicial action. Thus, the judiciary has done its best in ensuring environmental protection. Constitutional courts have also successfully handled this area of complex, complicated and fast-growing and changing techno sciences and multidiscipline. Judicial activism has resulted in many innovations and has given important raw material for building up a comprehensive Indian envirojurisprudence.
In the field of administration of envirojustice, constitutional courts have stood tallest not only before the other two organs of the "State" - the legislature and the executive - but also, before its other counterparts, age-old or young in the developed and developing countries.
The Apex Court took many unpopular decisions which have proved beneficial in the long run. Judicial directions in matters like pollution of our holy rivers, the Ganges and the Yamuna, pollution of underground water, choking of Delhi, Calcutta and other metros due to air pollution, protection of national historical monuments like the Taj Mahal, have rendered great service to humanity. Seeds have been planted, path has been shown, and direction has been given. However, our law enforcement has yet to catch up with these efforts. Law cannot reach where enforcement cannot follow. Without proper enforcement of laws our court orders will not be able to achieve desired results.
Techniques of Issuing Directions:-
The powers of the Supreme Court to issue directions under Article 32 and that of high courts to issue directions under Article 226 have made use of these powers to remedy past maladies and to check immediate and future assaults on the environment.
Evolution of doctrines in environmental jurisprudenceThe formulation of certain principles to develop a better regime for protecting the environment is a remarkable achievement. In MC Mehia v. Union of India, the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industry by interpreting the scope of the power under Art 32 to issue directions or orders, ‘which ever may be appropriate’ in ‘appropriate proceedings’. According to the Court, this power could be utilised for forging new remedies and fashioning new strategies. The new remedy, based on the doctrine of absolute liability, was later focussed on in the Sludge’s case when the people in a village suffering from lethal waste left behind by a group of chemical industries were asked to file suits in forma Pauperis and the State Government was directed not to oppose the application for leave to sue in forma pauperis. No doubt the polluter is responsible for compensating and repairing the damage caused by his omission. This is the quintessence of the polluter pays principle. Absolute liability of hazardous and inherently dangerous industry is the high-water mark of the development of polluter pay principle. Despite its deterrent impact on potential polluters, the doctrine is limited in the sense that it can be applied only at the remedial stage, i.e. after pollution has taken place. On the other hand, the precautionary principle emphasised by the Rio Declaration on Environment and Development signifies a preventive approach. It states,
In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.
The polluter pays principle and the precautionary principle were accepted as part of the legal system in the Sludge’s case and the Vellore Citizens Forum’s case, where the Court directed assessment of the damage to the ecology and environment and imposed on the polluters the responsibility of paying compensation. Though in the latter case the Supreme Court ordered the closure of all tanneries in certain districts, which are connected with common effluent treatment plants (CETPs), the precautionary principle came to be directly applied in MC Mehta v. Union of India, for protecting the Taj Mahal from air pollution. Expert studies proved that emissions from coke/coal based industries in the Taj Trapezium (TTZ) had damaging effect on the Taj. The Court said,
The atmospheric pollution in TTZ has to be eliminated at any cost. Not even one percent chance can be taken when—human life apart - the preservation of a prestigious monument like the Taj is involved.
The Court ruled that industries, identified by the Pollution Control Board as potential polluters, had to change over to natural gas as an industrial fuel and those that were not in a position to obtain gas connections for any reason should stop functioning in TTZ and relocate themselves in alternative plots outside the demarcated area within as stipulated time. International treaties, agreements, conventions and decisions taken at international conferences have to be incorporated into the law of the land by parliamentary legislation. However, the Taj decision is an instance of judicial strategy of applying a norm formulated at the international level into the facts of the case and accepting it as part of the legal system.
Balancing the conflicting values:-
Directions were given by courts for disciplining the developmental processes, keeping in view the demands of ecological security and integrity. In one of the earlier cases, Rural Litigation Kendra, that posed an environment development dilemma, the Supreme Court gave directions that were necessary to avert an ecological imbalance, such as constitution of expert committees to study and suggest solutions, establishment of a monitoring committee to oversee afforestation programmes and stoppage of mining operations that had an adverse impact on ecology. Directions given in Banwasi Seva Ashram v. State of UP included rehabilitation of people who had been displaced due to the implementation of a development project. Although the Court gave clearance to a thermal power plant in an ecologically fragile area, in Dahanu Taluka, an attempt was made at balancing environmental concerns with developmental issues.
Protection of social environment:-
The rights to livelihood and clean environment are of grave concern to the courts whenever they issue a direction in an environmental case. Labourers engaged in the asbestos industry were declared to be entitled to medical benefits and compensation for health hazards which were detected after retirement. Whenever industries are closed or relocated, labourers losing their jobs and people who are thereby dislocated were directed to be properly rehabilitated. The traditional rights of tribal people and fishermen are not neglected when courts issue directions for protection of flora and fauna near sanctuaries or for management of coastal zones.
Filling gaps in law and lacunae in administrationIn some cases, courts issue directions to fill yawning gaps in existing law, in others, they may go to the extent of asking the government to constitute national and state regulatory authorities or environmental courts. In most cases, courts have issued directions to remind statutory authorities of their responsibility to protect the environment. Thus, directions were given to local bodies, especially municipal authorities, to remove garbage and waste and clean towns and cities. This was done following the decision in Ratlam, which looked at environmental degradation from the point of view of the law of public nuisance. The courts always wanted pollution control authorities to function effectively in the spheres allotted to them by law. By entrusting them directly with the responsibility of studying the state of the environment and ecology, like identification of hazardous industry, and asking them to issue notice of closure or relocation of industries, courts have moulded these bodies into dynamic independent environmental protection agencies. Being conscious of its constitutional obligations to protect the fundamental rights of the citizens of India, the Supreme Court has issued directions in various types of cases relating to protection of the environment and prevention of pollution, in order to ensure a safe and clean environment along with development and to deal with issues like the local conditions. In Indian Council for Environ-legal Action v. Union of India, the Supreme Court felt that such conditions in different parts of the country being better known to them, the high courts would be the appropriate forum to be moved for more effective implementation and monitoring of the anti-pollution laws. The Supreme Court said,
for a more effective control and monitoring of such laws, the High Courts have to shoulder greater responsibilities in tackling such issues, which pertain to the geographical areas within their respective States. Even in cases which have ramifications all over India, where general directions are issued by this Court, more effective implementation of the same, can in a number of cases, be effected, if the High Courts concerned assume the responsibility of seeing to the enforcement of the laws and examine the complaints, mostly made by the local inhabitants, about the infringement of the laws and spreading of pollution leading to degradation of ecology.
In Vellore Citizens Welfare Forum v. Union of India, after issuing various directions for closure and relocation of tanneries in Tamil Nadu, the Supreme Court entrusted the Madras High Court with the responsibility of monitoring matters as if they are part of a petition to the high court under Art 226. The notable ‘request’ made by the Supreme Court to the Chief Justice of the Madras High Court was to constitute a special bench - a ‘green bench’- to deal with the case and other environmental matters, as is done in Calcutta, Madhya Pradesh and in some other High Courts.
Environmental awareness and educationThe directives of the Supreme Court went to the extent of spreading environmental awareness and literacy as well as the launching of environmental education not only at school level, but also at the college level. In MC Mehta v. Union of India, the Supreme Court stressed the need for introducing such schemes,
In order for the human conduct to be in accordance with the prescription of law it is necessary that there should be appropriate awareness about what the law requires. This should be possible only when steps are taken in the adequate measure to make people aware of the indispensable necessity of their conduct being oriented in accordance with the requirements of law.
The directions of the Court to All India Radio and Doordarshan, to focus their programmes on various aspects of the environment, have been immediately complied with. The Court also required every State Government and education board to take steps for environmental education. It is also to be noted that in tune with these directions, various authorities have taken up meaningful schemes of environmental education.
Strategies for prompting environmental justiceThe aim should be to better understand where we have had some success and where we are falling. There is no gainsaying the fact that the environmental justice can be prompted through a collective endeavour to peacefully secure equity and justice for all people. The Judiciary through its purposive interpretation has come to ameliorate the worsening situation. In Shriram Foods and Fertilizer Industries and another, the escape of olium gas from one of the units of the company affecting several persons including one Advocate practising in Court, who had died, the Supreme Court awarded costs and directed remedial measures.
In M. C. Mehta v. Union of India, the reckless discharge of untreated sewage in river Ganga by a riparian owner was sought to be checked with several directions issued to clean the river. The Bhopal gas leak disaster case woke up the entire country to the threats of environmental degradation and loss of life. The right of compensation to the victims, invoking “parens partriae” doctrine was invoked. The State was directed to assume the role of a parent protecting the rights of the victims and then claiming compensation from the negligent corporation.
Tarun Bharat Singh, Alwar, The right of government and private persons over forest land were curtailed to protect wild life, and mining operations were stopped.
The Vellore Citizens Welfare Forum, recognizing ‘Sustainable Development’ as answer to balance development with ecology. The Supreme Court accepted the concept, which came down for the first time in Stockholm Declaration of 1972 and then in 1987 by the World Commission on environment and development in its report called Our Common Future. The Commission chaired by the then Prime Minister of Norway Ms. G. H. Brundtland, came out with a document called Caring for the Earth a strategy for sustainable living and the earth summit in June, 1992, deliberating and chalking out a blue print for survival of the planet signed by 153 nations.
In Vellore Citizens case, monitored by the Supreme Court for five years, the pollution caused by Tanneries in the State of Tamil Nadu discharging untreated effluent into agricultural fields, roadsides, water-ways and open lands was confirmed through various reports and National Environment Engineering Research Institute, Nagpur (NEERI). Accepting the principles the Supreme Court held:-
The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty.
Articles 47, 48A and 5lA (g) of the Constitution are as underArticle 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 endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
Article 48A. 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.-
The Court directed the Central Government to constitute an authority under Section 3(3) of Environment (Protection) Act, 1986, to monitor the implementation of the treatment plants, close the industries, which did not take any steps for installation of treatment plants, impose fine on the tanneries for delay in installations of treatment plants and set up ‘Environment Protection Fund’ for compensating the affected persons identified by the authority. It also approved the standards for ‘total dissolve of solids’ recommended by NEERI.
An important case with respect to noise pollution is Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Assn. In that case it was held that no religion prescribes that prayer should be offered by disturbing the peace of others by using amplifiers or by beating of drums. In a civilized society, in the name of religion, activities which disturb old and infirm persons, students or children having their sleep in the early hours or during daytime cannot be permitted. It was also held that rights of the aged, sick people and children below the age of six years, who are sensitive, are required to be honoured.
More recently the Supreme Court invoked the ‘public trust doctrine’ evolving methods for arriving at ‘Net Present Value’ to be paid by the State of the diversion of forest land to non-forest use to be paid to Compensatory Afforestation Fund Management and Planning Agency (CAMPA) in T. N. Godavarman issued directions for disposal of imported contaminated waste oil in Research Foundation For Science ; rationalized the meat export promotion policy and regulation of abattoirs in Akhil Bharatiya Goseva Sangh and intervene in town planning (DCR 58) providing for conversion of large open lands of cotton mills in Mumbai for public housing. Balancing ecological factors on the principles of ‘Sustainable Development’ in Bombay Dyeing Mfg. Co. Ltd. (3) v. Bombay Environmental action group
In the suits for injunction, representative suits under C. P. C. to protect local environment, the trial Courts can insist upon maintenance of balance in environmental issues. Before granting injunction in property matter, the Courts can insist on the development plan of the house or locality. In the matters of drainage the Courts can ensure that the ultimate course of effluent is connected to proper drainage. The Courts can also ensure that the regulatory measures provided under the environmental legislation are complied with by the plaintiffs and defendants before granting any relief. In property disputes, relating to urban and rural properties, while granting injunctions, the Courts, must issue directions to safe-guard green belt, preserving trees and plantations and for strict compliance of Municipal Laws. Directions can be issued to Panchayats, Municipalities and Local Bodies to comply with environmental obligations. Public nuisance to human life and health can be prevented by the procedures under Code of Criminal Procedure, and its violation punished under Sections 188, 268, 277 and 278 of Indian Penal Code. Courts have to be careful and cautious in food adulteration cases for recurrence of offences. A vigilant and responsive judiciary can create a great impact on the local environment.
These issues cannot be left to be taken care only by High Court or Supreme Court. Every Judge has an opportunity to enforce environmental laws. Even if the environmental cases do not directly come to his Court, his concern for environment can bring a tremendous change access to Environmental justice. The subordinate Courts have sufficient power and jurisdiction, which should be used with comprehensive knowledge of law, relating to environmental matter and the motivation to use the jurisdiction for public good. A trial Judge can better appreciate the local environmental matters and can ascertain the environmental damage, effectively through local commissions. Witnesses can be examined and questions of fact can be determined and adjudicated at local levels. There is no dearth of legis1ation and the case law, relating to environmental issues.
What we require is a proper understanding of legal system and the remedies, which can deliver environmental justice. Courts have their own limitations. They can normally respond through cases that come before them. They cannot effect systematic changes in environmental conditions. Public interest litigation by individual enthusiasts and the NGOs has helped in protection of the environment. However, this effort is not sufficient to check the deteriorating environmental conditions. Awakening the public towards their right to live in a pollution-free environment is more essential. Public awareness alone can achieve desired results. Solution to environmental problems lies in our hands. No amount of effort on the part of the State or other agencies will be able to tackle the problems. Citizens have to rise to the occasion.
The Government has yet to develop an explicit national policy on the environment.
The Indian Constitution, in the 42nd Amendment, has laid the foundation in article 48A and 51A for a jurisprudence of environmental protection. Today, the State and the citizen are under a fundamental obligation to protect and improve the environment, including forests, lakes, rivers, wildlife and to have compassion for living creatures. These constitutional compulsions must vitalise the rule of law into weaving a dynamic policy on environment lest the paramount law be stuetified into a paper declaration. Our democracy, which rests on the people’s welfare and active participation, must not surrender to Moneyocracy which damages our environment and denudes our ecology.
The battle against this menace, escalating day after day requires an operation-oriented jurisprudence and law-in-action. We have some pieces of recent legislation to fight water and air pollution which is copied from abroad. We have the old code of Criminal Procedure re-enacted with minor mutations which controls Public Nuisances and the Indian Penal Code which criminalizes offences affecting public health, safety and convenience. But sans militant enforcement they blush as boneless wonders on the statute book. Legal actions, pre-emptive and affirmative judicial action, regardless of adversarial blinkers are needed to enliven environmental law. Human survival hangs in the balance what with dangerous degree of pollution. It is necessary to reiterate the need to achieve growth in the economic and social well-being of people throughout the world within the confines of a sustainable environmental resource base.
Rapid economic development without ecological damage can be reached only if conservation becomes a way of life with every man, woman and child. Such community sensitivity will have to be accompanied by the desire and the capacity at the government level to subject developmental projects to an impact analysis based on principles of ecology, economics, employment generation and energy conservation. Carefully designed government projects blended with people’s action can alone take us to the goal to which we are rededicating ourselves today Conservation cannot remain the responsibility solely of the Government. Official and voluntary agencies must work together to create greater awareness. An example comes to mind. Our cities and towns are growing.
To provide bricks for houses and offices, brick-kilns are cropping up everywhere, using fertile soil from the top layers. Do the people who use the bricks and do the brick makers know that it takes Nature over a century to make one centimeter of topsoil? If owners of houses realize this, it would soon become possible to prevent haphazard digging up of soil for bricks. Brick- making can be linked to the creation of permanent community assets, such as farm ponds or water-channels, through a careful choice of sites for kilns based on the topography of a given area.
The lack of an integrated approach to pest control has led to the re-emergence of malaria. Inadequate interaction among those in charge of agriculture and fisheries leads to difficulties in sustaining ancient practices such as rice-cumfish or prawn culture. The indiscriminate killing of snakes for their skins leaves no check on the increase of field rats. These are just a few instances.
We usually club together the words science and technology. But much technology is unscientific, for it is directed towards immediate and sometimes unnecessary consumption, neglecting long-term welfare. How long can civilization endure on a basis of reckless exploitation? Nothing in life is wholly good or wholly bad, it all depends on how things are fused and done. Many apparently beneficial projects have harmful consequences. If drainage is not properly planned, irrigation leads to salinity. Pesticides help greater yields, but used carelessly, they can spoil fruit and vegetable. There should be more systematic education in regard to their application.
The States resources, natural and human, are a trust in the hands of the present generation which may be preserved and passed on to the next so that India’s planned progress may march ahead. The environmental justice is indispensable for the socio-economic development of the society. The various judgments delivered by the apex court have been successful in distributing environment justice. The court, however, are not the forum to solve all environmental related challenges in the country. Judiciary has to be quipped with creation of additional capacities to deal with whole gamut of environment related issues. Only the trained and motivated judges can take correctional measures and help in distributing environmental justice with human element, fairness and compassion. To that extent every court in the country should be turned into environmental courts, for environmental actions.
Thus, we can conclude with the following lines which appear in Rig Veda:-
"The Sky is like Father,
The author can be reached at: apkaKarni@legalserviceindia.com / Print This Article
• Know your legal options
• Information about your legal issues
Call us at Ph no: 9650499965
Copyright Registration Services
Right from your Desktop...
*Call us at Ph no: 9891244487
Legal AdviceGet legal advice from Highly qualified lawyers within 48hrs.
with complete solution.
lawyers in Delhi
lawyers in Chandigarh
lawyers in Allahabad
lawyers in Lucknow
lawyers in Jodhpur
lawyers in Jaipur
lawyers in New Delhi
lawyers in Nashik
Protect your website
lawyers in Mumbai
lawyers in Pune
lawyers in Nagpur
lawyers in Ahmedabad
lawyers in Surat
Trademark Registration in India
lawyers in Kolkata
lawyers in Janjgir
lawyers in Rajkot
lawyers in Indore
Protect your website
Transfer of Petition
|Lawyers in India - Search by City|
lawyers in Chennai
lawyers in Bangalore
lawyers in Hyderabad
lawyers in Cochin
lawyers in Agra
lawyers in Dhaka
lawyers in Dubai
lawyers in London
lawyers in New York
lawyers in Toronto
lawyers in Sydney
Cheque bounce laws
Lok Adalat, legal Aid and PIL
About Us |
Juvenile Laws |
Divorce by mutual consent |
| Submit article |
Lawyers Registration |
legal Service India.com is Copyrighted under the Registrar of Copyright Act ( Govt of India) © 2000-2015
ISBN No: 978-81-928510-0-6