Prior to 1980s, only the aggrieved party
could personally knock the doors of justice and seek remedy for his grievance
and any other person who was not personally affected could not do so as a proxy
for the victim or the aggrieved party. But around 1980, the Indian legal system,
particularly the field of environmental law, underwent a sea change in terms of
discarding its moribund approach and instead, charting out new horizons of
social justice. This period was characterized by not only administrative and
legislative activism but also judicial activism.
In a modern welfare state, justice has to
address social realities and meet the demands of time. Protection of the
environment throws up a host of problems for a developing nation like ours.
Administrative and legislative strategies of harmonization of environmental
values with developmental values are a must and are to be formulated in the
crucible of prevalent socio-economic conditions in the country. In determining
the scope of the powers and functions of administrative agencies and in
striking a balance between the environment and development, the courts have a
crucial role to play. Principle 10 of the Rio Declaration of 1992 specifically
provides for effective access to judicial and administrative proceedings,
including redress and remedy.
The judiciaries anxiety for combating
environmental assaults has already been well elucidated. Its concern for the
maintenance and preservation of forests, one of our depleting natural resources
has also been highlighted.
Public Interest Litigation (PIL) has come to
stay in India. "Public Interest Litigation means a legal action initiated in a
court of law for the enforcement of public interest or general interest in which
the public or class of the community have pecuniary interest or some interest by
which their legal rights or liabilities are affected." Contrary to the past
practices, today a person acting bona fide and having sufficient interest can
move the courts for redressing public enquiry, enforcing public duty, protecting
social and collective rights and interests and vindicating public interest. In
course of time there has been a wave of environmental litigation.
At present most environmental actions in
India are brought under Articles 32 and 226 of the Constitution. The writ
procedure is preferred over the conventional suit because it is speedy,
relatively inexpensive and offers direct access to the highest courts of the
land. Nevertheless, class action suits also have their own advantages. The
powers of the Supreme Court to issue directions under Article 32 and that of the
high courts under Article 226 have attained greater significance in
environmental litigation. Courts have made use of these powers to remedy past mala-fides and to check immediate and future assaults on the environment.
The formulation of certain principles to
develop a better regime for protecting the environment is a remarkable
achievement. In the Bhopal Gas case, the Supreme Court formulated the doctrine
of absolute liability for harm caused by hazardous and inherently dangerous
industries by interpreting the scope of the power under Article 32 to issue
directions or orders which ever may be appropriate in appropriate proceedings.
According to the Court, this power could be utilized for forging new remedies
and fashioning new strategies.
These 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,
Kendra, that posed an environment development dilemma, Supreme Court gave
directions that were necessary to avert an ecological imbalance, such as
constitution of expert committees to study and to suggest solutions,
establishment of a monitoring committee to oversee afforestation programmes and
stoppage of mining operations that had an adverse impact on the ecology.
The rights to livelihood and clean
environment are of grave concern to the courts whenever they issue a direction
in an environmental case. In CERCs 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
relocated, labourers losing their jobs and people who are thereby dislocated
were directed to be properly rehabilitated. The traditional rights of tribal
people and fisherman are not neglected when court issue directions for
protection of flora and fauna near sanctuaries or for management of coastal
In L.K.Koolwal v. State of Rajasthan, the
Rajasthan High Court observed that a citizens duty to protect to protect the
environment under Article. 51-A(g) of the Constitution bestows upon the citizens
the right to clean environment. The judiciary may go to the extent of asking the
government to constitute national and state regulatory boards or environmental
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.
In Indian Council for Environ-legal Action v. Union of India, 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
The liberal use of PIL against assaults on the environment does not mean
that the courts, even if it is tainted with bias, ill will or intent to
black mailing will entertain every allegation. This amounts to
vexatious and frivolous litigation. When the primary purpose for
filing a PIL is not public interest, courts will not interfere. In
Subhash Kumar v. State of Bihar, the Supreme Court upheld that affected
persons or even a group of social workers or journalists, but not at the
instance of a person or persons who had a bias or personal grudge or
enmity could initiate PIL for environmental rights.
The apex court in landmark judgement of
S.P.Gupta v. Union of India,
elucidated in the following words:
"but we must hasten to make it clear that the individual who moves to
court for judicial redress in cases of this kind must be acting bona
fide with a view to vindicating the cause of justice and if he is acting
for personal gain or private profit or out of political motivation or
other oblique consideration, the court should not allow itself to be
activised at the instance of such person and must reject his application at the
The right to humane and healthy environment is seen indirectly approved
in the MC Mehta group of cases, decided subsequently by the Supreme
The first MC Mehta case enlarged the scope of the right to live and
said that the state had power to restrict hazardous industrial
activities for the purpose of protecting the right of the people to live
in a healthy environment. Although the second MC Mehta case modified
some of the conditions, the third MC Mehta case posed an important
question concerning the amount of compensation payable to the victims
affected by the leakage of oleum gas from the factory. The Court held
that it could entertain a petition under Article 32 of the Constitution
and lay down the principles on which the quantum of compensation could
be computed and paid. This case is significant as it evolved a new
jurisprudence of liability to the victims of pollution caused by an
industry engaged in hazardous and inherently dangerous activities. The
fourth MC Mehta case was regarding the tanning industries located on
the banks of Ganga was alleged to be polluting the river. The Court
issued directions to them to set up effluent plants within six months
from the date of the order. It was specified that failure to do so would
entail closure of business.
The four MC Mehta cases came before the Supreme Court under Article 32
of the constitution on the initiative of the public-spirited lawyer. He
filed the petitions on the behalf of the people who were affected or
likely to be affected by some action or inaction. The petitioner had no
direct interest in the subject and had suffered no personal injury.
Still standing to sue was not raised at the threshold question to be
decided by the Court.
The Supreme Court has further expanded Right to life in recent years.
In Consumer Education and Research Centre v. Union of India, the Court
Social security, just and humane conditions of work and leisure to
workmen are as a part of his meaningful right to life?
The court held that this fundamental right to health and medical aid
should continue even after retirement. Significantly, the Court said
that in appropriate cases, appropriate directions could be issued to the
state or private employer with a view to protecting the environment,
preventing pollution in the workplace safeguarding the health of the
workmen or preserving free and unpolluted water for safety and health of
the people. Directions were issued to the asbestos industry, and the
union and state authorities are meant to fill up the yawning gaps in the
interpretation of the law.
The concept of compensation for environmental degradation has evolved at
a snails pace over a period. It started with the strict liability
principle followed by the absolute liability principle and then
compensation under Article 32 and finally the polluter pays principle.
The polluter pays principle means two things:
1. The polluter should pay for the administration of the pollution
2. The polluter should pay for the consequences of the pollution
This concept was further elaborated in the Vellore Tanneries Pollution
case, as follows:
The Pollluter Pays Principle as interpreted by this court means that
the absolute liability for harm to the environment extends not only to
compensate the victims of pollution but also the cost of restoring the
environmental degradation. Remediation of the damaged environment is
part of the process of Sustainable Development and as such the
polluter is liable to pay the cost to the individual sufferers as well
as the cost to the individual sufferers as well as the cost for
reversing the damaged ecology.
The society shall have to prosper, but not at the cost of the
environment and in the similar vein, the environment shall have to be
protected but not at the cost of development of the society. The need of
the hour is to strike a balance between the two i.e., development on one
side and pollution free environment on the other. A process by which
development can be sustained for generations by improving the quality of
human life while at the same time living in harmony with nature and
maintaining the carrying capacity of life supporting eco-system. It
focuses at integration of developmental and environmental imperatives.
Thus, sustainable development is the only answer and administrative
actions ought to proceed in accordance therewith and not dhors the
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