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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.
Introduction:-
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 Constitution:-
There 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 jurisprudence:-
The 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 emphasises 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 jurisprudence:-
The 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 administration:-
In 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 education:-
The 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 justice:-
The 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
under:-
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 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.
Conclusion:-
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 Earth is like Mother, and
The Space as their Son;
The Universe consisting the Three,
Is like a Family, and
Any kind of damage done to any
One of the Three, throws the Universe
Out of Balance."
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The
author can be reached at: apkaKarni@legalserviceindia.com/
