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Judicial Activism And Vis-a-Vis Environment

Judicial Activism is legal terminology that refers to court rulings that are partially or completely rely on the judge's personal or political considerations, rather than existing laws or legislations. The judiciary protects or expands individual rights by its ruling despite the fact that it departs from the established precedents and rules.

The main justification for the introduction of judicial activism in environment legislation is the relaxation of rule of locus standi as of which people were given an opportunity to move to the court under Article 32 and 226 of the Constitution of India.

Introduction
Judicial Activism is an idea that was started in the US in 1947. It may be defined as a philosophy of judicial decision making where by judges use their own perspectives with respect to a public policy rather than constitutionalism. This idea principally deals the contribution of Judiciary in making legislations that considers fit for the general public. As though advancement of different legislation as well as our legal system it is obviously clear that with the inclusion of the judiciary, the legislation is coming all the more successfully.

This active role of judiciary in protecting the rights of citizens as well as safeguarding the constitutional and legal system of the nation is known as judicial activism. The commitment of judiciary has prompted arrival of more prominent environment legislation in India similarly as with the introduction of this idea in our country environment issues were given appropriate respect which prompted the inclusion of right to clean and healthy environment as a part of our fundamental right which is ensured by the constitution.

Objectives of Study
The objective of this study is to understand Judicial Activism, the contribution of judiciary in line of environment laws through different principles and doctrines of environmental importance via judicial pronouncements and environment litigations. The scope of study is restricted to Indian environment laws only.

Research Problem
The fundamental necessities of each person are satisfied by the environment and natural resources. Because different developments of individuals in truly creating society have now turned into a danger to our environment. Exhaustion of the defensive ozone layer, nuclear energy threats, deforestation, soil erosion, acid rain, environmental change, hazardous wastes and global warming are matters of incredible concern at the national and international levels.

The issue of environmental protection is considered by the Indian judiciary, particularly the Indian Supreme Court. Lately, the approach taken by the judiciary has been moved from hesitant judicial restraint toward Judicial Activism. It recognizes the right to live in a fresh environment as an essential right and gave its decisions for the protection of the environment in different landmark cases.

Research Question
  • What is Judicial Activism?
  • How does Judicial Activism relate to the environmental issue?
  • Is Judicial Activism helpful to curb the environmental issue?
Research Methodology
The subject matter of my research is, Judicial Activism And Vis-A-Vis Environment". My study is based on Doctrinal Method. There are many concepts or doctrines in this regard. Additionally, this research contains a maximum of the issues related to this subject matter. This undertaking is primarily based on studies methodology.
The resource materials are secondary. I have used secondary assets like books, articles, and journals, and Internet-based research.

Analysis
Earth provides enough to satisfy every man's needs, but not every man's greed-Mahatma Gandhi

Judicial Activism is inherent under the principle of judicial review embedded in the Constitution of India. It is mentioned under Article 141 of the Constitution of India which gives the law-making power to the Supreme Court of India. Professor Upendra Baxi has said that the Supreme Court of India has often become the "Supreme Court for Indians".

This idea came in India in nearly 1980's which was taken from US constitution and this idea's scope and use rapidly began increasing when article 21 of the Indian Constitution included right to clean and healthy environment as a component of our fundamental right.

The first international conference which occurred for protection of environment and preservation was the UN Conference on Human Environment (normally known as Stockholm Conference), 1972 which prompted the enactment of 42nd Constitutional Amendment, 1976 in India for example certain environmental duties were forced both with respect to the citizens [Article 51A (g)] as well as on the state (Article 48-A).

The excursion from Stockholm Conference to Earth Summit at Rio de Janeiro (Rio+20) held in June 2012 prompted the recognition that:
All people are entitled to a healthy and productive life in harmony and it was viewed as that protection of environment isn't simply one issue which could be left behind. Because of privatization environmental degradation, globalization and liberalization began quickly expanding which brought about harming human life existence.

So presently, it has turned into a need and a part of legal and moral duty of every citizen to safeguard and further develop the environment condition. Thus, the judiciary approached to preserve and protect the environment by developing a mandate on people, on industrial houses, body corporate or organizations.

The job of judiciary relies upon the actual idea of political framework a nation has, which is the reason their job fluctuates in various types of government and have results distinctively. The judiciary takes a critical part in a nation like India which exercises liberal democracy. Professor S.P. Sathe and Upendra Baxi were of the view that Indian Supreme Court is probably the strongest court among the world[1].

The personality of the Supreme Court can be appropriately seen by the writings of Professor S.P. Sathe and Upendra Baxi as they have been supportive of judicial activism in India and Prof. Upendra Baxi quoted that Supreme Court of India has become Supreme Court for Indians[2] which could be seen from different judicial rulings.

Along these lines, one can say that judiciary has assumed a vital part in extension of scope of environment protection in India by the way of interpretation of Constitutional provisions.

JUDICIAL ACTIVISM & ENVIRONMENT
The Right to Wholesome Environment
In Subhash Kumar v. State of Bihar[3], the court stated that the right to life granted under Article 21 of the Constitution includes the right of enjoyment of pollution free air and water for full enjoyment of life. The court recognized the right to wholesome environment as a part of right to life.

In M.C. Mehta v. Union of India (Vehicular Pollution Case)[4], the Hon'ble Supreme Court recognizes the right to healthy environment as a basic human right and right to fresh air emerge out of right to life. This case leads to lead-free petrol supply in Delhi.

Fundamental Right to Water
This principal right to water has been brought into the Indian framework by the Indian Judiciary, not by any legislation. In Narmada Bachao Andolan v. Union of India and Ors[5], the Hon'ble Supreme court has upheld that the right to pure and fresh water is a fundamental right embedded under right to life under Article 21 of the constitution of India.

In the case of M.C. Mehta v. Union of India (Ganga Pollution Case)[6], the Supreme Court issued strict guidelines for the industries and factories facilities connected with the emission of harmful substances in the river. Setting up primary treatment plant was additionally ordered.

Because of these cases, there are statutory provisions against the dispersion of any polluting matter in the water stream or well [Section 24 of Water (Prevention and Control of Pollution) Act, 1974]

Compensation to the victims
In M.C. Mehta v. Union of India (Delhi Gas Leak Case)[7], the Supreme Court of India set down standards for giving compensation to the victims of any hazardous environmental accident. It prompts radical changes in the matter of compensation. It also affirmed the power of the Supreme Court to give compensation on the breach of any fundamental right of an Individual.

Judicial Response against Public Nuisance
In Ratlam Municipal Council v. Vardhichand[8], the Supreme Court expresses that assuming there is any kind of public nuisance, the state should put forth every conceivable attempt to eliminate it regardless of whether there is any monetary restriction. It is for the reason for social justice and people should get the advantage of each public functioning.

Constitutional Provision/Reforms for Environment Protection
Environment Protection is a pivotal matter for everybody and vital for sustainable development.

The Constitution of India incorporates provisions to meet these points:
  • Public Interest Litigation (PIL):
    In general terms, a PIL implies a legal action in a constitutional court to uphold public or general interest by which their fundamental rights are being impacted. A public-spirited person can approach the court for the rights of the public at large. PILs are often filed in environmental issues.
     
  • Article 32 and 226:
    The writ jurisdiction of the Supreme Court under article 32 and of the High Courts under Article 226 proves to be a boon for the environmental actions in India. It is speedy, reasonable and gives easy access to the Constitutional courts of the country by class action.
     
  • Article 48A:
    It was inserted by the 42nd Amendment Act, 1976 which expresses The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country. Although it is a Directive Principle yet has essential consideration in judicial endeavors.
     
  • Article 51-A(g):
    A Fundamental Duty which expresses that "It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

In L.K. Koolwal v. State of Rajasthan[9], the Rajasthan High Court observed that a citizen's duty to safeguard the environment under Article 51-A(g) of the Constitution bestows to the citizens the right to clean environment. The judiciary might even ask that the government establish national and state regulatory boards or special environmental courts.
Article 21: In the recent years, our judiciary has extended the extent of Article 21 that is 'Right to Life and personal liberty' to incorporate the right to fresh and clear environment.

Role of Judiciary in formation of Environment Legislation
The role of judiciary in formulation of environment legislation in India can be understood via landmark cases which have given another face to environmental laws, due to just these leading cases, today we are having different number of doctrines and principles present for protection and preservation of environment and to achieve sustainable development goals.

Municipal Council, Ratlam v. Shri Vardichand and Ors.[10]
Until this case, there was not very much involvement of judiciary in line of environment legislation or its protection, so this case can be considered as the initial phase of the development of more protective environment laws. The facts of the case were that Ratlam is a city in Madhya Pradesh in India where a portion of the residents of the municipality filed with respect to the improper drainage facility before the Sub-Divisional Magistrate under Section 133 of Criminal Procedure Code, 1973.

The Sub-divisional Magistrate guided the municipality to draft a plan in no less than six months to eradicate this issue faced by the people. Later on, this case was moved to the High Court by the municipality looking for that they have deficiency of funds in preparing proper drainage facility yet the High Court supported the choice of Sub-Divisional magistrate so the municipality later moved to Supreme court through an appeal however the Supreme court likewise rejected the municipality and said that lack of funds isn't a reason against their obligation towards the public.

As this was a public health issue so the decision depended on the interests of society protecting their social interest which was inferred from the preamble and Article 38 of the Constitution of India, 1950. In this way, the municipality was ordered to take immediate action within six months with respect to pollution, sanitization and contamination of roads.

Union Carbide Corporation v. Union of India (Bhopal Gas Tragedy) [11]
On December 3, 1984, nearly forty tons of Methyl Isocyanate (MIC), a harmful gas mixed with water made an exothermic reaction spilt from Union Carbide India Limited (UCIL) plant and spread in Bhopal, a city in Madhya Pradesh in India. This gas leak impacts were dangerous to such an extent that a huge number of people were killed on the spot and many were affected through this at large and many generations faced the hard outcomes of it as children used to be born with specific problems like visual debilitation, etc., and this was caused because of the carelessness of the company.

In spite of repetitive complaints in regards to the safety measures of the pesticide plant by the agronomic engineer of the plant, UCIL ignoring all these complaints continued to producing dangerous & hazardous chemicals in the plant.

On June 7, 2010, the court applied the absolute liability principle, depending whereupon 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 additionally charged under Section 35, 336, 337, 338 of IPC, 1860, by which all were imprisoned to two years. In addition, a fine was imposed on the company. Later on, the Government of India passed the Bhopal Gas Leak Disaster Act which gave the government an authority to represent all victims in or outside India and applied the polluter pay principle to recognize how much pay was payable by the company because which the UCIL needed to pay US $470 million in a full and last settlement of the civil and criminal liability.

M.C. Mehta v. Union of India (Ganga Pollution Case) [12]
There was a request recorded under a writ of mandamus against the respondents (leather tanneries) as they were releasing and deposing the chemicals of industries without being appropriately treated to holy river Ganga and the sewage was being released there which was harming the river Ganga and was causing water contamination. This was being continued for very long despite everything people were not taking responsibility nor were they effectively stopping this. Thus, the Supreme Court bifurcated this writ request into two: Mehta I[13] and Mehta II[14].

In Mehta I case, the Supreme Court ordered under ORDER 1 RULE 8 OF CPC, 1908, that there ought to be no release of any chemicals or and liquid substance of the industries or sewage without being appropriately treated. The court highlighted significant constitutional provisions that are made for safeguarding the environment as well as the importance of the Water (Prevention and Control of Pollution) Act, 1974 which is made for controlling water pollution.

The court discussed the term trade effluent, it is a substance which can be in any structure whether strong, fluid or in a vaporous state, discharged from industries, which was essentially the root cause of the water pollution being caused. The court ordered the industries to establish at least primary treatment plant as a need for the continuation of a specific industry, in the event that a secondary treatment plant isn't reasonable to the industry and ordered to make a Ganga Action plan for saving the holiness of river Ganga and making it pollution free.

While the Mehta II argument managed to appeal against municipal body i.e., Kanpur Nagar Mahapalika. The court investigated the matter that Kanpur Nagar Mahapalika is laid out under UP Nagar Mahapalika Adhiniyam, 1959 whose function is to maintain cleanliness in the areas that are under their jurisdiction and the court additionally viewed the objective of the water act, 1974 which was to curb water pollution and referred to specific sections of it.

The court relied on the common law principle that injunction orders can be applied to Municipal Corporation just when a riparian owner brings a suit against them as he will be adversely affected by the water pollution brought about by the industries. The court came up with the view that M.C. Mehta not being a riparian owner he can also file a suit against the nuisance caused by the industries in the interest of people who are being impacted by the pollution caused in the river Ganga.

So, the court ordered the Kanpur Nagar Mahapalika to ask those contamination causing industries either quit functioning or to move their waste to a region outside the city and it was additionally expressed by the court that from now on any industry applies for license, that specific industry should have sufficient provisions required for the treatment of trade effluents flowing out of the factories.

Conclusion
Development and environment go together for the advancement of the country environment conditions should be great as the other way around. The environment and public health subjects can be not left to the side as they are a key part of the nation's development and growth. The environment gives and satisfies all our basic necessity of life and without healthy environment, human existence is not possible.

Yet, with the improvement we are missing behind in saving our environment in spite of the fact that there are different measures taken by the government and various conventions held up to this point, however, for safeguarding and preserving the environment human co-operation is must as they share a close connection between them.

Judiciary has taken a more extensive strategy for the protection of individual rights and arose as a protector of environment. But the protection of environment is a worldwide issue and requires public support. There ought to be harmony between development activities and environment. Besides, the special environmental courts and tribunals should work in effective way to deliver fast justice and safeguard our environment.

The judiciary has played a vital part in the plan of different doctrines and principles and development of environmental legislation particularly by including the right to clean and healthy environment as a part of our fundamental right under Article 21 of the Constitution. Yet at the same time for better environment conditions public awareness programs should be led so that people can know about their rights and obligations and the climate can be environment in an all the better manner.

Bibliography
Cases:
  • Subhash Kumar v. State of Bihar (AIR 1991 SC 420/ 1991 (1) SCC 598)
  • M.C. Mehta v. Union of India (Vehicular Pollution Case), (1991) AIR SC 813
  • Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345
  • M.C. Mehta v. Union of India (Ganga Pollution Case), (1987) 4 SCC 463
  • M.C. Mehta v. Union of India (Delhi Gas Leak Case), 1987 AIR 1086, 1987 SCR (1) 819
  • Municipal Council, Ratlam v. Shri Vardichand and Ors., 1980 AIR 1622, 1981 SCR (1) 97
  • L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj 2
  • Ratlam Municipal Council v. Vardhichand, 1980 AIR 1622, 1981 SCR (1) 97
  • Union Carbide Corporation v. Union of India (Bhopal Gas Tragedy), 1992 AIR 248, 1991 SCR Supl. (1) 251
  • M.C. Mehta v. Union of India (Ganga Pollution Case), [1987] 4 SCC 463, 1988 AIR 1115, 1988 SCR (2) 530
  • M.C. Mehta v. Union of India, [1987] 4 SCC 463
  • M.C. Mehta v. Union of India, 1988 AIR 1115, 1988 SCR (2) 530
Articles
Constitution of India
  • Article 32 and 226
  • Article 141
  • Article 21
  • Article 51A (g)] as well as on the state (Article 48-A)
  • Article 38
Acts
  • Section 304-A, 35, 336, 337, 338 of IPC, 1860
  • Section 24 of Water (Prevention and Control of Pollution) Act, 1974
  • Section 133 of Criminal Procedure Code, 1973
  • Order 1 Rule 8 OF CPC, 1908
  • Bhopal Gas Leak Disaster Act
  • Water (Prevention and Control of Pollution) Act, 1974
  • UP Nagar Mahapalika Adhiniyam, 1959
  • Water act, 1974
End-Notes:
  1. S.P. Sathe, Judicial Activism in India (New Delhi, Oxford University Press, 2000
  2. 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
  3. Subhash Kumar v. State of Bihar (AIR 1991 SC 420/ 1991 (1) SCC 598)
  4. M.C. Mehta v. Union of India (Vehicular Pollution Case), (1991) AIR SC 813
  5. Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345
  6. M.C. Mehta v. Union of India (Ganga Pollution Case), (1987) 4 SCC 463
  7. M.C. Mehta v. Union of India (Delhi Gas Leak Case), 1987 AIR 1086, 1987 SCR (1) 819
  8. Municipal Council, Ratlam v. Shri Vardichand and Ors., 1980 AIR 1622, 1981 SCR (1) 97
  9. L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj 2
  10. Ratlam Municipal Council v. Vardhichand, 1980 AIR 1622, 1981 SCR (1) 97
  11. Union Carbide Corporation v. Union of India (Bhopal Gas Tragedy), 1992 AIR 248, 1991 SCR Supl. (1) 251
  12. M.C. Mehta v. Union of India (Ganga Pollution Case), [1987] 4 SCC 463, 1988 AIR 1115, 1988 SCR (2) 530
  13. M.C. Mehta v. Union of India, [1987] 4 SCC 463
  14. M.C. Mehta v. Union of India, 1988 AIR 1115, 1988 SCR (2) 530

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