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Judicial Activism in environment legislation in India

The Indian judiciary always wanted to exercise its power whenever the other two organs of the government i.e. legislative and executive fails to discharge their functions. This inquisitiveness of the judiciary with overpowering over other organs and to be in action when the other two can't properly work is termed as judicial activism.

This concept came in India in nearly 1980's which was borrowed from US constitution and this concept's scope and use rapidly started increasing when article 21 of the Indian Constitution included right to clean and healthy environment as part of our fundamental right. The most significant reason for introduction of judicial activism in environment legislation is the relaxation of rule of locus standi as of which people were provided with a chance to move to the court under Article 32 and 226 of the Constitution of India.

This research paper focuses on elaborating the contribution of judiciary in formation of environment laws through various principles and doctrines of environmental importance by way of environment litigations and judicial pronouncements. The scope of study is limited to Indian environment laws only.

Introduction
The first international conference which took place for preservation and protection of environment was the UN Conference on Human Environment (commonly known as Stockholm Conference), 1972[i] which led to the enactment of 42nd Constitutional Amendment, 1976[ii] in India i.e. certain environmental duties were imposed both on the part of the citizens [Article 51A (g)] as well as on the state (Article 48-A)[iii].

The journey from Stockholm Conference to Earth Summit at Rio de Janeiro (Rio+20) held in June 2012 [iv] led to the recognition that:
all human beings are entitled to a healthy and productive life in harmony and it was considered that protection of environment is not just another issue which could be left behind. Due to liberalisation, globalisation and privatization environmental degradation started rapidly increasing which resulted in harming human life existence.

So now, it has become a necessity and a part of legal and moral duty of every citizen to protect and improve the environment condition. Therefore, the judiciary came forward to protect and preserve the environment by not only developing a mandate on individuals, but also on organisations, body corporate or industrial houses.

The role of judiciary depends on the very nature of political system a country has, which is why their role varies in different forms of government and have results distinctively. The judiciary plays a significant role in a country like India which exercises liberal democracy. Various onlookers including Professor S.P. Sathe and Upendra Baxi were of the view that Indian Supreme Court is one of the strongest courts among the world[v].

The character of the Supreme Court can be rightly observed by the writings of Professor S.P. Sathe and Upendra Baxi as they have were in favour of judicial activism in India and Prof. Upendra Baxi quoted that Supreme Court of India has become Supreme Court for Indians [vi] which could be observed from various judicial pronouncements.

So, it can be said that judiciary has played a very important role in expansion of scope of environment protection in India by the manner of interpretation of Constitutional provisions.

What is Judicial Activism?

Judicial Activism is a concept that was originated in US in 1947. It can be defined as a philosophy of judicial decision making where by judges allow their personal views regarding a public policy instead of constitutionalism. This concept mainly deals with the involvement of Judiciary in making legislations that deems fit for the society. As through development of various legislations as well as our legal system it is clearly evident that with the involvement of judiciary, the legislation are coming more effectively.

So, this active role of judiciary in preserving the rights of citizens as well as preserving the constitutional and legal system of the country is known as judicial activism. The engagement of judiciary have led to arrival of more prominent environment legislation in India as with the introduction of this concept in our country environment issues were given proper regard which led to the inclusion of right to clean and healthy environment as a part of our fundamental right which is guaranteed by the constitution.

Role of Judiciary in formation of Environment Legislation

The role of judiciary in formulation of environment legislation in India can be clearly understood by landmark cases which have given a new face to environmental laws, because of these leading cases only, today we are having various number of doctrines and principles present for protection and preservation of environment and to achieve sustainable development goals.
  1. Municipal Council, Ratlam Vs. Shri Vardichand and Ors.,1980 [vii]

    Until this case, there was not very much involvement of judiciary in formation of environment legislation or its protection, so this case can be considered as the initial stage of the formation of more protective environment laws. The facts of the case was thatRatlam is a city in Madhya Pradesh in India where some of the residents of the municipality filed a complaint regarding the improper drainage facility before the Sub-Divisional Magistrate under Section 133 of Criminal Procedure Code, 1973.

    The Sub-divisional Magistrate directed the municipality to draft a plan within six months to eradicate this problem faced by the people. Later on, this case was moved to the High Court by the municipality seeking that they have shortage of funds in preparing proper drainage facility but the High Court approved the decision of Sub-Divisional magistrate so the municipality later moved to Supreme court through an appeal but the superior court also ruled against the municipality and said that shortage of funds is not an excuse against their duty towards the public.

    As this was a public health issue so the ruling was based on the interests of society preserving their social interest which was inferred from the preamble and Article 38 of the Constitution of India, 1950. So, the municipality was ordered to take immediate action within six months regarding sanitization and contamination and pollution of streets.

  2. Rural Litigation and Entitlement Kendra Vs. State of Uttar Pradesh and Ors., 1985 [viii] (Dehradun Valley's Case)

    During 1955 to 1965 there was sudden increase in limestone mining operation in Doon valley a part of Mussoorie hill range of Himalayas) because of which various lease were granted in 1962. But later on due to increase in mining certain negative effects came forward like deforestation, decline in food production, loss of agricultural land, loss of irrigation facilities, etc. which were clearly disturbing the ecological balance of the society at a very large scale. This mining also forced the local people to shift their employment resources from agricultural to non-agricultural sector as mining was destroying the fertility of land and was degrading the water level and its quality too.

    So, on 11.8.1983, the Supreme Court made an expert committee to inspect the mines except those which either belong to State of Uttar Pradesh and Union of India regarding the safety standards laid down under Mines Act,1952[ix] and all the rules laid down regarding it. Later on when the report came forward, the Supreme Court directed the closure of certain mines and asked certain mine owners to abide by the rules and make changes regarding it, under Article 32 of the Constitution of India, 1950 as these mines were violating the fundamental right of the people guaranteed under Article 21 of the Constitution.

    The Court also asked the Uttar Pradesh Government to reallocate these mines and also asked for providing employment to the people who got unemployed by the closure of certain mines. This judgement is considered as a historic one as the court took step regarding the protection and preservation of environment, keeping in view about employment opportunities too so that everything could be taken care off.

  3. Union Carbide Corporation Vs. Union of India [x] (Bhopal Gas Tragedy)

    On December 3, 1984, almost forty tons of Methyl Isocyanate (MIC), a toxic gasmixed with water creating an exothermic reaction leaked from Union Carbide India Limited (UCIL) plant and spread in Bhopal, a city in Madhya Pradesh in India. This gas leakage effects were so hazardous that thousands of people were killed on the spot and various were effected through this at large and many generation faced the hard consequences of it as children's use to get born with certain disorders like visual impairment etc. and this all was caused due to the negligence of the company. Despite repetitive complaints regarding the safety measures of the pesticide plant by the agronomic engineer of the plant, UCIL ignoring all these complaints kept on producing dangerous & hazardous chemicals in the plant.

    On June 7, 2010, the court applied the absolute liability principle, relying upon which seven ex-employees including the former chairman of UCIL were convicted by the court of causing death by negligence under Section 304-A of IPC and were also charged under Section 35, 336, 337, 338 of IPC, 1860, by which all were sentenced to two years of imprisonment. In addition to it,fine was also imposed on the company. Later on, the Government of India passed the Bhopal Gas Leak Disaster Act which gave the government a right to represent all victims in or outside India and applied the polluter pay principle to detect the amount of compensation payable by the company as a result of which the UCIL had to bay US $470 million in a full and final settlement of civil and criminal liability.

  4. M.C. Mehta Vs. Union of India, 1986[xi] (Shriram Fertilizer Case) (Oleum Gas Leak Case)

    A writ petition was filed under Article 32 of the Constitution which was made on reference by the bench of three judges as questions of seminal importance and high constitutional significance was raised in the petition which was originally heard. The facts of the case was that on December 4th and 6th of 1985, a major leakage of Oleum gas took place from one of the units of Shriram Food and Fertilizer's Limited, a cloth mill which was producing caustic and chlorine and was located at Delhi by which various persons were severely affected and some died on the spot. This leakage took place twice i.e., on 4th and 6th of December, 1985 by which it gave more adverse effect to the situation and condition of the city people.

    The three bench judges was of the view that we should make more protective laws as per the requirement of the society regardless of the fact that whether English Courts have made any particular law for any situation or not and neither we should wait for them to introduce some laws. If there is a need to make any new principle of liability then we should not waste any time in making it. As the companies which are involved in these hazardous activities need to take very high safety measures so that damages or loss which takes place because of them could be controlled and this could be only possible when strict laws will be applicable to them.

    These type of activities needs proper care and as these activities are frequently happening, the environment condition is deteriorating at a very high pace so, there is an urgent need for the applicability of new and strict laws by which the environment can be protected as well as the company can realise their duties and responsibilities towards the society. So the court herein referred to the absolute liability principle which was needed to be adopted seeing the present scenario of the incidents and through which companies can be held completely liable for their negligent act and it was also mentioned by the court that this concept would not include any exception to it as the essence of this new principle of liability will be washed away.

    By adding this concept, the company will be notified during their establishment only that if they are carrying on or are involved in any activity or production which is hazardous to human health then they will be solely and completely liable for any harm caused by it regardless of the fact that they took any precautionary measures or not i.e., they cannot escape on the ground that they took all the precautionary measures that was needed to be taken so they can't be held liable for the loss and it was also being held by the court that it shall be presumed that if any industry is involved in such hazardous activity and any accident or loss occurs because of them whether it be a negligent act or not on the part of the industry, they will be held absolutely and strictly liable for the harm caused and would be liable to pay damages caused by it. This rule or new principle of liability will be subjected to no exceptions like the rule in Rylands vs. Fletcher[xii].

    So, the court in this case held that Shriram Food and Fertilizer's limited are liable to pay Rs. 20 lakhs as compensation to the victims and they were also asked to write in an undertaking that if these types of accidents happen in future again then they will pay compensation in regard to the harm caused and in addition to it a bank guarantee of Rs. 15lakhs to be made which would be used if this kind of tragedy happens in the next three years.

  5. M.C. Mehta Vs. Union of India (Ganga Pollution Case) [xiii] [xiv]

    There was a petition filed under writ of mandamus against the respondents (leather tanneries) as they were discharging and deposing the chemicals of industries without being properly treated to holy river ganga and also the sewage was being discharged there which was harming the river ganga and was also causing water pollution. This was being continued for very long and still people were not taking charge neither were they doing anything to stop this. So, the Supreme Court bifurcated this writ petition into two: Mehta I[xv] and Mehta II[xvi].

    In Mehta I[xvii] case, the Supreme Court ordered under ORDER 1 RULE 8 OF CPC, 1908, that there should be no discharge of any chemicals or and liquid substance of the industries or sewage without being properly treated. The court also highlighted important constitutional provisions that are made for protecting the environment as well as the importance of Water (Prevention and Control of Pollution) Act, 1974 which is made for controlling water pollution.

    The court talked about the term ‘trade effluent' ,it is a substance which can be in any form whether solid, liquid or in gaseous state, discharged from industries, which was basically the root cause of the water pollution being caused. So, in this case the court ordered the industries to establish at least primary treatment plant as a necessity for continuation of any particular industry, if secondary treatment plant is not affordable to the industry and ordered to make a Ganga Action plan for preserving the holiness of river Ganga and making it pollution free.

    While the Mehta II[xviii] case dealt with petition against municipal body i.e., Kanpur Nagar Mahapalika. The court looked into the matter that Kanpur Nagar Mahapalika is established under UP Nagar Mahapalika Adhiniyam, 1959 whose function is to maintain cleanliness in the areas that are under their jurisdiction and the court also looked upon the objective of water act[xix] which was to curb water pollution and referred to certain sections of it.

    The court relied on the common law principle that injunction orders can be applied to Municipal Corporation only when a riparian owner brings a suit against them as he will be adversely affected by the water pollution caused by the industries. The court came up with the view that regardless of M.C. Mehta not being a riparian owner he can also file a suit against the nuisance caused by the industries on behalf of the people who are being affected by the pollution caused in the river Ganga. So the court ordered the Kanpur Nagar Mahapalika to ask those pollution causing industries to either stop functioning or to move their waste to an area outside the city and it was further stated by the court that from now on if any industry applies for license then that particular industry must possess adequate provisions needed for the treatment of trade effluents flowing out of the factories.

  6. M.C. Mehta Vs. Union of India (Delhi Stone Crushing Case), 1992 [xx]

    In this case, a petition was filed under Article 32 of the Constitution against the activity like mining, stone crushing and pulverizing which was degrading the environment condition. The issue was that whether for preservation and protection of environment and control over pollution, these activity should be stopped within the radius of 5kms or not from the tourist resorts of Badlal Lake and Surajkund in the State of Haryana.

    So, the Supreme Court directed that:
    1. No mining activity should be allowed within 2km of the tourist resorts.
    2. No construction activity would be allowed within 5km of the tourist resorts.
    3. No renewal of leases would be made within the tourist areas.

      The Supreme Court basically came up with a view that for protection of environment only air[xxi] and water act[xxii] implementation is not enough and for better and proper enforcement of law there should be public awareness programme conducted so that people could be more aware of the fact that what law is all about and what they need to do to abide by the law and by this the laws can give more positive effect in the society and environment can be preserved in a more better way as environment damage affects the public only so they should be more acknowledged in preserving and protecting the environment.

  7. Vellore Citizen Welfare Forum Vs. Union of India [xxiii]

    This is a landmark case as principles like polluter pay and precautionary were applied here as well as the concept of sustainable development was recognized and for the first time Court analyzed the relationship between environment and development. The facts of the case were that some industries were discharging untreated effluents in the river Palar which was the main source of drinking and bathing water for the nearby people of Tamil Nadu. It was not only making water unfit for use but was also deteriorating the land fertility.

    So, Vellore Citizen Forum brought an action against these activities and latterly it was found by the Tamil Nadu Agricultural University Research Centre that nearly 35,000 hectares of land has become unfit for cultivation because of this.

    The court applied the doctrines and declared that industries are liable to pay compensation as they have adversely affected the environment and certain changes were needed to be made in working of the industries so that this could not happen again and it was also stated by the court that those industries who do not follow the above instructions will be permanently closed. The Supreme Court further stated that fine of Rs. 10,000 need to be paid by all the involved industries in Environment Protection Fund and that amount would be used to cover the harm incurred to the environment as well as in compensating the affected persons.

    The Precautionary Principle
    The basic idea behind this principle is that “prevention is better than cure”. It says that preventive measures should be taken while carrying out an activity which can lead to environment degradation i.e. we should not wait for the harm caused. It's better to be take safety precaution beforehand only.

    Like if any industry is engaged in any hazardous activity then it should properly perform such activities by taking all precautionary measure like proper machines, proper drainage systems, and time-to-time check on machines, etc. so that there could be less chances in environmental damage. This principle has been into picture since the Stockholm Conference, 1972. The Supreme Court has considered this principle as a part of environmental law of India [xxiv] [xxv].

  8. Indian Council for Enviro-legal ActionVs. Union of India [xxvi] (Polluter Pay Principle)

    In this case, a number of unlicensed private chemical companies were creating hazardous wastes in the soil by which pollution was caused which was affecting the nearby village people in a negative way. So, an NGO named Indian Council for Environment Legal Action filed a writ petition under Article 32 of the Constitution of India which compelled the State Pollution Control Board and Central Pollution Control Board to recover costs for the damages caused by the company.

    The Court ruled that “once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity”.

    So here the industries were held absolutely liable in degrading the environment and were bound to bear all the consequences thereof. Here, the polluter pay principle was applied which states that the pollution causing agent must not be only asked to compensate for the harm caused to the environment but should also be asked to make certain arrangements for restoration of environment any by applying this principle fine of Rs 1,00,000 was imposed upon the industries.

    The Polluter Pay Principle
    For the first time in this case[xxvii], the polluter pay principle was recognised in India as a part of environmental law[xxviii]. This principle says that the polluters should not only pay compensation in regard to the harm cause to the environment but should also bear the cost which would be needed in regard to the restoration of the environment into its original position. This came up with the idea that why the taxpayers bear the burden of the loss caused by any particular individual or entity i.e. the polluter must pay for the wrong doing not by the ones who were not involved in such activities. Section 3 and 5 of the Environment Protection Act, 1986 [xxix] deals with the effectiveness of this principle.

    This principle would be applied without making any distinction on large scale and small scale industries i.e., it would be applied uniformly on every polluter and the onus or the burden of proof lies on the polluter [xxx]. The central government is authorised to evaluate the amount of compensation required for any pollution caused. This principle has broadened the scope of environmental law and helped in preserving and protecting the environment effectively.

  9. M.C. Mehta Vs. Union of India and Ors., 1986[xxxi](Taj Trapezium Case)

    The TajMahal in Agra is one of the most beautiful monuments on the earth and in 1983, it was also recognized in the UNESCO World Heritage Site. This monument was made by Mughal emperor Shah Jahan in memory of his dead wife MumtajMahal. The monument is made of white marble and its beauty attracts the tourist from all over the world. But, due to increase in pollution this monument started turning yellow and developed certain patches in it which was deteriorating its beauty. Seeing this an environmentalist and a Supreme Court attorney, M.C. Mehta filed a petition before the court that this monument need to be preserved.

    After which it came into notice that nearby industries were emanating Sulphur Dioxide which when reacted with rain water gives acid rain by which all the harm was caused to the beauty of TajMahal. So, here the court ordered the Uttar Pradesh Pollution Control Board to make a list of industries situated in Taj Trapezium Zone (a 10,400 sq. km trapezium shaped area covering the five districts of Agra region and comprises of 40 protected monuments including three world heritage site- TajMahal, FatehpurSikri and Agra Fort) so that they can be notified to control their pollution level as it is important to preserve and protect the beauty of the TajMahal. In this case, the court gave order on the basis of two principles that are precautionary principle and polluter pay principle as the court presumed that they are the two key elements or features of sustainable development.

  10. M.C. Mehta Vs. Kamal Nath [xxxii] (Public Trust Doctrine)

    In this case, the State Government granted lease of riparian forestland to a private company for building a motel at the bank of River Beas. Next day, a report came into a national newspaper stating that this motel will divert the natural flow of river Beas, for protecting it through future flood. Seeing this, the Supreme Court took a suo moto action considering the fact that if national newspaper report is true then then it a serious matter of environment degradation.

    The court applied the public trust doctrine for the first time and stated that certain resources like sea, water air and forest are for public use and it constitute nation's natural health and it would be unjustified to make this a subject of private ownership. The state as a trustee in under a legal duty to protect natural resources and resources that are meant for public use and enjoyment cannot be converted into private ownership. The court also applied the concept of sustainable development here as resources need to be preserved for upcoming generation and it cannot be wholly consumed by the present generation and every generation owes a duty to preserve and conserve the natural resources in the best possible way they can.

Applying the above mentioned principle, the court quashed the lease of the Motel Company.

The Public Trust Doctrine

This doctrine says that certain resources like sea, water, air, land, flora, fauna and others which represent the natural system are of public use and cannot be privately owned by any particular individual and it is duty of everyone to safeguard them and preserve them for the future generation[xxxiii]. This concept has been developed in India through various judicial pronouncements.

In M.I. Builders Pvt. Ltd. vs. RadheyShyamSahu [xxxiv], this doctrine was applied and the construction of shopping complex was stopped as it was made in the place of public garden which was a public resource.

Conclusion
Environment and development go hand in hand with each other i.e. for development of the country environment conditions need to be good and vice-versa. The public health and environment related topics can be not left aside as they are key part to the country's growth and development. The environment provides and fulfills our every basic necessity of life and without healthy environment, human existence is not possible. But with the development we are lacking behind in saving our environment although there are various measures taken by the government and various conventions held so far, but for preserving and protecting the environment human co-operation is must as they share a very close connection between them.

The judiciary has played a very important role in formulation of various principles and doctrines and development of environmental legislation especially by including right to clean and healthy environment as a part of our fundamental right under Article 21 of the Constitution. But still for better environment condition public awareness programmes need to be conducted so that people can be aware of their right and duties and environment can be preserved in a more better way.

End-Notes:
  1. https://documents-dds-ny.un.org/doc/UNDOC/GEN/NL7/300/05/IMG/NL730005.pdf?OpenElement
  2. http://legislative.gov.in/constitution-forty-second-amendment-act-1976
  3. http://14.139.60.114:8080/jspui/bitstream/123456789/1273/1/008_The%20Constitution%2042nd%20Amendment%20Act.pdf
  4. https://documents-dds-ny.un.org/doc/UNDOC/GEN/N11/476/10/PDF/N1147610.pdf?OpenElement
  5. S.P. Sathe, Judicial Activism in India (New Delhi, Oxford University Press, 2000
  6. UpendraBaxi, 'The Avatars of Indian Judicial Activism : Explorations in the Geography of (In) justice', in S.K. Verma and Kusum (eds.), Fifty Years of the Supreme Court of India : It's Grasp and Reach (Delhi, Oxford University Press, 2000) pp. 156-209 at 157
  7. 1980 AIR 1622, 1981 SCR (1) 97
  8. 1985 AIR 652, 1985 SCR (3) 169
  9. The Mines Act, 1952, No. 35, Acts of Parliament, (1992).
  10. 1992 AIR 248, 1991 SCR Supl. (1) 251.
  11. 1987 AIR 1086, 1987 SCR (1) 819.
  12. UKHL 1, (1868) LR 3 HL 330.
  13. [1987] 4 SCC 463.
  14. 1988 AIR 1115, 1988 SCR (2) 530
  15. [M.C. Mehta v. Union of India, [1987] 4 SCC 463]
  16. 1988 AIR 1115, 1988 SCR (2) 530
  17. [1987] 4 SCC 463.
  18. 1988 AIR 1115, 1988 SCR (2) 530.
  19. 1974.
  20. 1991 SCR (1) 866, 1991 SCC (2) 353
  21. http://legislative.gov.in/sites/default/files/A1981-14.pdf
  22. https://www.jspcb.nic.in/upload/uploadfiles/files/WaterAct.pdf
  23. AIR 1996 SC 2715: (1996) 5 SCC 647
  24. AIR 1996 SC 2715.
  25. M.C Mehta v. Kamal Nath
  26. 1996 AIR 1446, 1996 SCC (3) 212.
  27. Indian Council for Enviro-Legal Action vs. Union of India
  28. Vellore Citizens Welfare Forum v Union of India
  29. https://www.indiacode.nic.in/bitstream/123456789/4316/1/ep_act_1986.pdf
  30. A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors. and Karnataka
  31. 1987 AIR 1086, 1987 SCR (1) 819.
  32. (1997)1 SCC 388.
  33. Shailesh R. Shah v. State of Gujarat, 2002 SCC OnLineGuj164 : (2002) 43 (3) GLR 2295.
  34. [1999], S.C.C. 464.
Award Winning Article Is Written By: Isha Mittal, Amity Law School, Amity University, Lucknow (U.P.)
Email:  [email protected], Ph no: 8601527653

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