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The Environmental Mandate And Judicial Activism In India

Under the Indian Constitution, the State is under the prime responsibility to ensure justice, liberty, equality and fraternity in the country. State is under the obligation to protect the individuals' fundamental rights and implement the Directive Principles of State Policy. Considering its constitutional duty, the Indian judiciary has played an active role, whenever required, in protecting the individuals' fundamental rights against the State's unjust, unreasonable and unfair actions/inactions.

Judicial activism is thus a dynamic process of judicial outlook in a changing society. The term Judicial Activism has been first devised by Arthur Schlesinger Jr. in his article The Supreme Court: 1947, published in Fortune magazine in 1947. Judicial Activism has not been outlined in any statute or by judiciary. In simple words, it means that indicating the operation of the judiciary, which represents its active role in promoting justice. Judicial activism, in general, is that the assumption of a vigorous role on the part of judiciary.

Black's Law Dictionary defines judicial activism as:
a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.

In recent years law making has assumed new dimensions through interpretation of the courts. This has been possible due to the increasing amount of Judical Activism in shaping social policy on such issues as civil rights, protection of individual rights, political unfairness, and public morality.

The Indian judiciary has always been willing to exercise its power whenever the political/executive organs of the state did not discharge their constitutional obligations effectively. Around 1980, the Indian system, notably the sector of environmental law, underwent a sea of change in terms of discarding its moribund approach and instead, charting out new horizons of social justice. This era was characterised not only by administrative and legislative activism but also judicial activism. A set of this has been environmental activism, that has developed in India exceedingly over the past few decades.

One amongst the explanations for judicial activism in specific environmental cases has been the relief of the rule of locus standi giving an opportunity to the general public to approach the Court under Articles 32 and 226 of the Indian Constitution.

The Scope of Judicial Review before the Indian Courts has evolved in three dimensions:

  1. firstly, to ensure fairness in administrative action,
  2. secondly, to protect the constitutionally guaranteed fundamental rights of citizens and
  3. thirdly to rule on question of legislative competence between the centre and the states[1].
The High Courts, the Apex Court and entire hierarchy of Indian Judicial system plays an active and pivotal role in safeguarding the most precious fundamental right of its citizens and non citizens. Since both the society and law are dynamic in nature, Article 21 has precisely been interpreted to cover within its ambit Right to live in a healthy environment [2] along with various other rights.

Therefore, the judiciary in India has not only provided an impetus to the Human Right approach for the protection of environment, but the manner in which the judiciary is protecting the environment while promoting sustainable development, the judiciary has created a new environmental jurisprudence[3].

The language of Article 21 creates a positive right on which restrictions can be imposed by a procedure established by law, however the pragmatic Judicial approach in India has mostly negated such procedures when such positive rights are infringed even to the diminutive extent, thus adopting zero tolerance policy against any procedure which fails to maintain an equilibrium between the environment and the growth of the Country, which is also of paramount importance.

Growth of Judicial Activism on the Environmental Front

Environment protection was the least priority in India's post independence era due to need of industrialization and other political disturbances. Some other acts such as the Factories Act, 1948 were introduced which also dealt with the effective arrangements for waste disposal.

The year of 1972 marked a revolution in the history of environmental management in India as it being a signatory to the Conference on Human Environment held in Stockholm inserted Articles 48A and 51A (g), making the State as well as the citizens, both under constitutional obligation to conserve, perceive, protect and improve the environment.

These provisions have been extensively used by courts to justify and develop a legally binding fundamental right to the environment as a part of Right to life and personal liberty under Article 21. The Parliament enacted nationwide comprehensive laws; like The Wildlife Protection Act, 1972 and Water (Prevention and Control of pollution) Act, 1974.

While these developments were taking place, by mid-1974, the polity was heading for a break-down. During the emergency period, even if the executive
killed or imprisoned a person, the Court did not examine the validity of such actions. Initially the judicial response to the problems of the environment had been far from ideal and the Court's outlook may be regarded as insensitive towards environmental issues and problems because of the unstable political scenario, secular riots and insufficient infrastructure. Till 1980s not much contribution was made by the courts in preserving the environment, but one of the earliest cases which came to the Supreme Court of India formed the foundation of judicial response.

In Ratlam Municipality v. Vardhichand[4] , Justice Krishna Iyer highlighted the need for environmental consciousness and has elaborated the scope of the criminal law concept of public nuisance. In this case the Supreme Court increased the range of section 133 of the Code of Criminal Procedure to uphold a magistrate's order directing the municipality to carry out its duty towards residents.

The court observed that the non-availability of funds cannot be pleaded as ground for non-performance of municipality's statutory obligations. The case put forth the need of clean environment in all aspects. In the early 1980s, Forest Conservation Act, 1980 and the Air (Prevention and Control of Pollution) Act, 1981 were passed. But the authorities had shown reluctance to use their statutory power against the polluters which resulted in an accelerated degradation of the environment.[5]

The development of the environmental jurisprudence in India through the innovative judicial decisions of the Supreme Court and the High Courts is a reaction towards the failure on the part of the Governmental agencies to effectively enforce the environmental laws.

PIL as a tool for Judicial Activism

Public Interest Litigation (PIL) has become very popular in the field of environment. In the 1980s and 90s there were countless environmental litigations by public spirited persons. 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.

Judicial response to almost all environmental litigations has been very positive in India. The competence to invoke the original jurisdiction of the Supreme Court under Article 32 and the High Court under Article 226 is a remarkable step forward in providing protection to environment. Courts have widened the dimension of substantive right to healthy and clean environment. The traditional rule of Locus Standi that a person, whose right is infringed alone can file the petition, has considerably relaxed by the Supreme Court in its recent decisions.[6] Now, the court permits public interest litigation at the instance of public-spirited citizens for the enforcement of constitutional or legal rights.

In MC Mehta v. UOI[7] (Also know as the Taj Trapezium Case), the petitioner filed a writ under Article 32 of the Constitution of India for protection of the Taj Mahal at Agra. The chemical and hazardous industries and refineries at Mathura were the major sources likely to damage the Taj. Accordingly the court held that 292 industries operating near Agra must change over from coke to natural gas as industrial fiel within the time specified or otherwise should stop functioning.

Environmental Protection Under Constitutional Framework Of India

The Indian Constitution is amongst the few in the world that contains specific provisions on environmental protection. Article 48A of the Directive Principles of State Policy and Article 51-A(g) of the Fundamental Duties in the Indian Constitution explicitly enunciates the national commitment to protect and improve the environment. Fundamental Rights lay down the rights of the people relating to environment under Article 21. Article 226 and 32 mention the remedies of the citizens in case of infringement of their Fundamental Right to live in a pollution free environment.[8]

Rural Litigation and Entitlement Kendra Dehradun v. State of Uttar Pradesh[9] was the first case in the country relating to ecological balance and recognition of the right to live in healthy environment as a part of Article 21. The apex court ordered to close the indiscriminating mining operations in the Mussorie hills as the mining operations in those forests led to excessive soil erosion resulting in damage to the ecology of the place.

In the case of Sachidananda Pandey v. State of West Bengal[10] the Supreme Court remarked that whenever a prolem of ecology is brought before the court, the court is bound to bear in mind Article 48A and 51-A(g) of the Constitution.

The Construction of Judicial Activism: Principles and Doctrines

  1. Doctrine of Absolute Liability

    The Bhopal Case: Union Carbide Corporation v. Union Of India[11]
    In this case, the apex court held that, where an enterprise is dealing with an inherently dangerous or hazardous activity and harm results to anybody by virtue of a mishap in the operation of such dangerous or naturally unsafe movement coming about, for instance, in getaway of poisonous gas, the enterprise is strictly and completely obligated to repay every one of the individuals who are influenced by the accident and such risk is not subject to any exemptions. Accordingly, Supreme Court created another trend of Absolute Liability without any exemption.
     
  2. Polluter Pays Principle

    Polluter Pays Principle supports a remedial methodology which is concerned with repairing natural harm. It's a rule in international environmental law where the polluting party pays for the harm or damage done to the natural environment. Polluter Pays Principle has become a very popular concept lately. 'If you make a mess, it's your duty to clean it up '- this is the fundamental basis of this slogan. It should be mentioned that in environment law, the 'polluter pays principle' does not allude to 'fault.' Instead, it supports a remedial methodology which is concerned with repairing natural harm. It's a rule in international environmental law where the polluting party pays for the harm or damage done to the natural environment. In Vellore Citizen's Welfare Forum v. Union of India[12] the Supreme Court has declared that the polluter pays principle is an essential feature of the sustainable development.
     
  3. Precautionary Principle

    A new principle for guiding human activities, to prevent harm to the environment and to human health, has been emerging during the past 10 years. It is called the 'principle of precautionary action' or the 'precautionary principle' in short. This principle is controversial and its definition varies in terms of viewpoint. Environmentalists and consumer support organizations that demand bans and restrictions on industrial practices or product would need policy-makers to require no action unless they do no harm.

    In India, for
    the first time in Vellore Citizens Welfare Forum v. Union of India[13], the Supreme Court explicitly recognized the precautionary principle as a principle of Indian environmental law. In S. Jagannath v Union of India (Shrimp Culture Case)[14] , the Supreme Court Bench headed by Justice Kuldip Singh required the authority to deal with the situation created by the shrimp industry and issued remedial directions consistent with the precautionary and polluter pays principles.

    In A.P. Pollution Control Board v. Prof M.V. Nayudu[15], the Court drew out the development of the precautionary principle in clear terms.

    In the Narmada Bachao Andolan v. Union of India[16], the Court explained that:
    'When there is a state of uncertainty due to the lack of data or material about the extent of damage or pollution likely to be caused, then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution.' The movement towards adopting the precautionary principle has definitely widened the scope of corporate accountability, but the interpretation taken by the court mitigates the relevance and incorporation of this principle in Indian Jurisprudence.
     
  4. Public Trust Doctrine

    The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath[17], states that certain common properties such as rivers, forests, seashores and the air were held by Government in Trusteeship for the free and unimpeded use of the general public. Granting lease to a motel located at the bank of the River Beas would interfere with the natural flow of the water and that the State Government had breached the public trust doctrine.

    The Supreme Court enunciated Professor Joseph Saxís doctrine of public trust in this case to further justify and perhaps extract state initiative to conserve natural resources, held that the state, as a trustee of all natural resources, was under a legal duty to protect them; and that the resources were meant for public use and could not be transferred to private ownership. This doctrine was further reiterated in M.I Builders Pvt Ltd v. Radhey Shyam Sahu[18]
     
  5. Doctrine of Sustainable Development

    The World Commission on Environment and Development (WCED) in its report prominently known as the Brundtland Report named after the Chairman of the Commission Ms. GH Brundtland highlights the concept of sustainable development. As per Brundtland Report, Sustainable development signifies development that meets the needs of the present without compromising the ability of the future generations to meet their own needs[19].

There is a need for the courts to strike a balance between development and environment. In Rural Litigation and Entitlement Kendra v. State of UP[20] the court for the first time dealt with the issue relating to the environment and development; and held that, it is always to be remembered that these are the permanent assets of mankind and or not intended to be exhausted in one generation.

In State of Himachal Pradesh v. Ganesh Wood Products[21], the Supreme Court invalidated forest-based industry, recognizing the principle of inter-generational equity as being central to the conservation of forest resources and sustainable development. In the CRZ Notification case[22] the courts carried forward the concern for sustainable development by expressing its concern at the adverse ecological effects, which will have to be borne by future generations.

Suggestions and Conclusion
The issue of environmental pollution can be checked by making mindfulness in the general population though public awareness programmes, in which media's part is extremely critical. Also, regular inspection by officials, environmental education and establishing separate Green Benches and Green Tribunals also play a key role in protection and preservation of our environment.
The Indian Judiciary, which faces inherent problems, has nonetheless, through its landmark and unconventional decisions, clearly showed its concern for the protection of the environment.

The efforts of the highest court in environmental pollution control through Public Interest Litigation (PIL) is indeed laudable particularly when the legislature is lagging behind in bridging the lacuna in the existing legal system and administration is not well equipped to meet the challenge. However we need stricter rules for better protection of our environmental rights, considering that the loss of natural resources can't be renewed.

End-Notes:
  1. Hon'ble Mr. K.G. Balakrishnan, Chief Justice of India (Trinity College Dublin, Ireland, 2009) explained the ambit of Judicial review in India, (p. 3).
  2. R.L.&E. Kendra, Dehradun v. State of Uttar Pradesh, A.I.R. 1985 SC 652.
  3. Paramjit S. Jaswal, 'Directive Principles Jurisprudence And Socio-Economic Justice in India', 39 JILI 543 (1996).
  4. AIR 1980 SC 1623
  5. N.K. Chakrabarti, 'Environment protection and the law', New Delhi, A.P.H.(1994)
  6. D.J. De, Interpretation and Enforcement of Fundamental Rights, Calcutta, Eastern Law House (2000)
  7. AIR 1987 SC 1086
  8. Dr. J.J.R. Upadhyay, Environmental Law 36 (Central Law Agency, Allahabad, 2nd edn,2008)
  9. A.I.R. 1985 SC 652
  10. AIR 1987 SC 1109
  11. AIR 1990 SC 273
  12. AIR 1996 SC 212
  13. AIR 1996 SC 212
  14. AIR 1997 SC 811
  15. AIR 1999 SC 812
  16. AIR 2000 SC 3751
  17. (1997)1 SCC 388
  18. AIR 1999SC 2468
  19. S .Shanthakumar, Environmental Law An Introduction 122,123 (Surya Publication, Chennai, 2nd edn, 2008)
  20. AIR 1987 SC 1037
  21. AIR 1996 SC 149
  22. Indian Council for Enviro-Legal action v Union of India (1996)5 SCC 281

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