judicial activism in environmental law

JUDICIAL ACTIVISM & GROWTH OF ENVIRONMENTAL JURISPRUDENCE

I. INTRODUCTION

Judiciary in India particularly, Supreme Court and high courts have played an important role in preserving the environment without halting the development of the country which means preservation of doctrine of sustainable development. India being a developing country with vast geographical area and large population, the main task of the government becomes to look after present and future needs of people. It is usually understood that the main indicator of development is industrialization. But this should not be the case. Real development is always holistic.
However, now the mindsets are changing and now we realize that the message of the people’s welfare contained in article 38, 41 and 43 of the Indian constitution are essential for development. The main idea behind these constitutional directives is that it makes it the duty of the state to bring equality among the citizens of country and ensure that all the people are able to have at least the basic necessities of life. The implementation of these articles gives a message that environmental protection and ecological preservation embodied in article 14, 21 , 47, 48A and schedule 5 and 6 of the constitution cannot be taken for granted. The balance between environment and industrialization is very important. India being a developing country needs rapid industrialization, and no doubt there should be industrialization but it need not be at the cost of environmental damage. The other thing to be kept in mind is that industrialization should not hinder the overall progress even for future generation. The other important concern is that if we start development work of a particular place then not only the environment is damaged but the government has to take the responsibility of reallocations, resettlements of displaced persons. The environmental decision making process stands apart from traditional administrative techniques in other aspects. The structure changes are inevitable in the era of technological revolution.

Decision related to environment are essentially based on assessment of many factors such as scientific material , technical data, socio-economic factors, health hazards and ecology of the area. How can courts evaluate this highly complex matrix when they are required to review an environment decision? Should it follow hands off approach instead of venturing into search for objective standards ? Or should it refer to an expert body and wait? This paper would try to discuss the problems relating to environment and how the judiciary tackled those problems by using its own weapon that is known as judicial activism in order to attain the balance between development and environment.. The cases in various areas like sustainable development, ecology , pollution control , public nuisance, coastal regulation management , large projects as well as other environment related issues for example interlinking the rivers are dealt with in this study. On various occasions, where the state and implementing agencies relating to environment have failed in their responsibilities, the judiciary came forward and settled the disputes, keeping in mind the importance of ecology and environment. Sometimes cases have been brought to the courts by certain NGOs and there have been instances of suo motu action and the court showed their judicial activism to save environment from its deterioration in a large scale in the name of development.
We will discuss some leading cases in different areas of environment. The court is this regard not only enforced national laws but applied certain national and international doctrines such as public trust doctrines, polluter pays principle and precautionary principle.
These case will now be discussed,

II. CONSTITUTION AND ENVIRONMENT
Before 42nd constitutional amendment act in 1976, our constitution did not place environment in any of its three list- union list, state list and concurrent list. However certain environment issues are found in various lists of the constitution. However after 42nd amendment India specifically placed environment in part IV i.e. the directive state of policy via article 48A and in fundamental duties vide Art. 51 A (g) which directs the state as well as citizens to make the endeavour to protect and improve the environment which includes forest wildlife, etc.
In Subhash Kumar v. State of Bihar1, it was observed’’ right to life is the fundamental right under article 21 of constitution and it includes the rights 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 right to have recourse to article 32 of constitution for removing the pollution of water or air which may be detrimental to the quality of life.
In Charanlal Sahu v. Union of India2 the Supreme court of India held that, “in the context of our national dimensions of human rights, right to life and liberty, pollution free air and water is guaranteed by the constitution under article 21.”
In AP State pollution control board v. Professor M.V Naidu3 , Justice M. J Rao observed that environmental concerns are of equal importance as human rights concerns. In fact both are to be traced to article 21 which deals with fundamental right and liberty while environmental aspects concern life, human rights concerned liberty.
Similarly the high courts also dealt with environmental aspects of right to life in T. Damodar Rao v. Special Officer Municipal Corporation, Hyderabad 4 where the Andhra Pradesh high court held that enjoyment of life embraces the protection and preservation of natural gift, without which the right to life cannot be enjoyed . A slow poisoning by a polluted atmosphere should be equated with acts which directly violate article 21 of the constitution. Similarly L.K Koolwal v. State of Rajasthan,5 the high court of Rajasthan also observed that ‘‘maintenance of health , preservation of sanitation and environment falls within the purview of article 21 of constitution as it adversely effects the right of citizens and amounts to slow poisoning and reducing the life of the citizens because of hazards created if not checked. Also High courts of Allahabad, Himachal Pradesh and Kerala have held that environmental degradation violated fundamental right to life.
After 42nd Amendment act which added a new directive for protection of environment under article 48A and article 51 A(g) in the chapter of fundamental duties, the cases reaching before the supreme court and high courts have utilized these articles also for protecting environment. These directives have been read as complimentary to the fundamental right.
In Sachidanand Pandey v. State of West Bengal,6 the supreme court pointed out that whenever problem 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 court observed “when the court is called upon to give effect to DPSP and FD (article 48A and 51 A(g) in this case) the court is not to shrug its shoulder and say that Priorities is matter of policy and so it is matter of for policy making authority. The least the court may do is see whether appropriate consideration is borne in mind and irrelevancy included.
From the above it is evident that the Supreme Court can take affirmative action commanding the other organs of state i.e. legislature and executive to comply statutory obligation of protecting and improving environment. However if the government is alive to various consideration requiring thoughts and deliberation and has arrived at a cautious decision after taking them into account , it may not be proper for court to interfere in the absence of mala fide.
In M.C. Mehta v. Union of India7 (Delhi vehicular pollution case) the supreme court considered that problem air pollution caused by motor vehicle operating in Delhi and ultimately the matter led to the introduction of CNG in Delhi which has considerably reduced the pollution.
Specific reference was made to article 48A and 51A (g) . the court issued a number of direction for educating the public on television and in schools. The judgments may be viewed as enforcing the right of people to receive information (article 19(a) and 21) or equating citizens’ duties to protect environment (article 51 A (g) with the right to wholesome environment discussed in Subhash kumar v. State of Bihar.8 With precedent of Subhash kumar case behind it , the court , in Delhi vehicular pollution case directed the ministry of environment and forest to form a committee for accessing available technology for low cost alternative for operating vehicle and making specific recommendation on pollution control regulation. The Andhra Pradesh high court observed that article 48 A imposes an obligation the government to protect the environment. The high court of Himachal Pradesh described these constitution imperatives as a pointer to the state, not only to protect but also to improve environment.

III. JUDICIAL MECHANISM OF POLLUTION CONTROL AND ROLE OF OUR COURTS.
The first leading case in this direction is Ratlam Municipality v. Vardichand 9 where some of the residents of the Ratlam municipality filed a complaint before the Sub-Divisional Magistrate alleging that the municipality is not constructing proper drains and there is stench and stink caused by the excretion by nearby slum-dwellers and that there was nuisance to the petitioners. The Sub-Divisional Magistrate directed the municipality to prepare a plan within six months to remove the nuisance. The order passed by the SDM was approved by the High Court. The Municipality came in appeal before the Supreme Court of India and contended that it did not have sufficient funds to carry out the work directed by the SDM.

The Supreme Court of India gave directions to the Municipality to comply with the directions and said that paucity of funds shall not be a defense to carry out the basic duties by the local authorities. Thereafter, series of cases were filed before the Supreme Court and there was a dynamic change in the whole approach of the courts in matters concerning environment. It is worthwhile to note that the spot visits enable the judges to see the real situation first hand and more resounding decisions. This method has been resorted to by Judges like J. Barucha, J. Bhagwati, J. Krishna Iyer. The latter was the first who visited Ratlam town to assess the problem and then directed the concerned authorities to take necessary steps. Sometimes though judges cannot change the course of a judgment but even then their dissenting voices may represent a sizeable section of the population.

In M.C. Mehta v. Union of India,10 (The Ganga pollution case) where Supreme court noticed utter indifference in tanneries to the orders to stop the discharge of trade effluents into the river Ganga. In this case many industries at Jaugmau Kanpur had been disregarding directions of pollution control board and violating the conditions of consent with impunities. It had adverse effect on public at large, therefore the court gave specific direction to the tanneries either to set up at least primary treatment plant or to stop their functioning. It asked the central government state pollution control board and district magistrate to monitor the enforcement of its order. This watchdog function to the authorities was unprecedented to give more awareness and strength for taking anti pollution measure. Direction to the Kanpur municipal authorities in another M C Mehta case is sequenced to the tanneries case, there sewerage system of Kanpur was in complete disorder and therefore the level of pollution of Ganga at Kanpur was higher. Water became unfit for drinking, fishing or bathing. The apex court fixed the responsibility on the Nagar Mahapalika of Kanpur to improve its sewerage system within 6 months in better interaction with state board. General directions issued by Supreme Court in the case are notable. High courts were asked not grant stay of proceedings to prosecute industrialists and other persons who pollute the water in the river Ganga. But in extraordinary circumstances high court should dispose of such cases within two months from the date of institution. These directions were particularly significant as court said that they applied mutatis mutandis to all other Nagar Mahapalikas and municipalities which had jurisdiction over areas through which the river Ganga flows.
Although these directions and observations were related to Ganga pollution , they had force of law in relation to similar cases of pollution throughout the country. They pointed to need for quick disposal of complaints against industrialists, officials and other person responsible for pollution.
The Supreme Court exercising its jurisdiction under Article 32 of the Indian Constitution directed further steps to be taken with a view to educate and create awareness among the masses about prevention of pollution. The directions in this regard include, inter alia, to cinema exhibition halls for exhibiting slide show regarding information relating to protection of environment free of cost; dissemination of information relating to environment in national and regional languages and for broadcast on the All India Radio. Exposure of information on Television regularly and short term programs; education of people for their social obligation to make them aware and not to act as polluting agents or factors and lastly, environment as a compulsory curriculum of school and colleges.
In M.C. Mehta v. Union of India,11 (Calcutta tanneries case) the apex court also ordered relocation of the tanneries out of the congested inhabitations. The Court directed the state government to appoint an authority with the help of the pollution board and other expert opinion and the authority, after giving opportunity to the polluting tanneries, would assess the loss to the ecology/ environment in the affected areas. It shall also determine the compensation to be recovered from the polluter tanneries as cost of reversing the damage to the environment. Similar directions would have been given in Tamil Nadu Tanneries case where water pollution was caused by toxic waste discharge from the tanneries posing a threat to the quality of water. The Supreme Court thus considered the consequences of water pollution which violates the fundamental rights and therefore it provides appropriate remedy by interpreting A. 32. The procedural niceties have been done away in some of the cases and dimensions of the substantive content have been considerably expanded.
One of the most important reason for a rich environmental jurisprudence in India is probably the relaxation in the rule of locus standi. Courts in India, in their activist zeal, relaxed the norms of procedures that required that only affected party could file a petition. As a result of the phenomenon of public interest litigation or social action litigation, activist lawyers, public spirited citizens, academicians, research societies, NGOs could file petitions before High Court and Supreme Court for addressing the violation of fundamental rights including the right to life and right to clean environment and seek appropriate remedies even though their own rights were not directly violated as a result of the action/ inaction of the state or private entity that was the cause of the grievance.
In most of the matters, the Courts are called upon to exercise the power of judicial review so as to examine the soundness of environmental decisions arrived at by the State and the courts have to follow the same rules of judicial review as in the matters of administrative decision making. Courts interfere with decision only where the same is vitiated by ulterior motives, bias or malafide or by blatant disregard for environment and ecology. Petitions filed to settle personal scores or filed due to enmity are not entertained. Often PILs also run the risk of becoming Publicity Interest Litigation or litigation to serve ulterior motive(s). In Subhash Kumar v. State of Bihar,12 cost was imposed on the petitioner since he had moved the Court by way of PIL not to serve any public interest but to serve his personal interest and to settle scores with the company which was allegedly polluting the water.
However in matters involving large projects, Courts have unfortunately shied away from their duty to protect citizen’s rights and the right to clean environment and have adopted policy of deference. Society for Protection of Silent Valley v. Union of India13 is a matter where the Court noted that,
“It is not for us to evaluate these considerations again as against the evaluation already doen by the Government. It is enough to state that we are satisfied that the relevant matters have received attention before the Government decided to launch the project… we are not to substitute our opinion and notions on these matters for those of the government.”
The other problem is that environmental matters are becoming increasingly complex in terms of scientific and technological aspects involved and often scientific and expert opinions may be uncertain.

IV. SUSTAINABLE DEVELOPMENT
Nobody can deny that the development process in a developing country is very necessary but if it adversely affects the natural resources and congenial environment of the area and sometimes even it deprives many people of their right to life, the Courts are the only fora who can maintain the balance between environment and development which is known as sustainable development and it is now principle of international law enunciated in the Rio Conference 1992 and later in India it is adopted as a national law of the land. Some of the famous cases on various aspects of sustainable development are given below.
In N.D Jayal v. Union of India,14 Supreme Court held that the construction of dam must be viewed from the perspective of sustainable development read into the law and the Constitution. Holding the EPA aims at sustainable development the Court stated “ acknowledgement of this principle will bring new life into our environmental jurisprudence and constitutional resolve… the object and purpose of the Act to provide for protection and improvement of environment can only be achieved ensuring the strict compliance of its direction. “ Similarly in Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh,15 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 programs and stoppage of mining operations that had an adverse impact on the ecology.
In Kinkri Devi v. State of Himachal Pradesh,16 the petitioners prayed for cancelling the mining lease given to the third respondent for the excavation of lime stone. Various reports of the authorities and committees directed by the Court reveal that indiscriminate blasting of rocks had been carried out causing danger and hazards to inhabitants as well as causing damage to ecology and environment. The mine operated by the third respondent was not under control and was carried out in an unscientific manner and was posing an imminent threat to the soil, rivers, streams, drainage and water resources and water supply scheme as also to ecology, environment, flora and fauna and to the life and well being of inhabitants of the locality. The Court highlighted the evil consequences and lasting impact on the natural wealth and resources of the country as well as on the local population. Therefore regulation of mining, stone crashing and other equally harmful activities were essentially to be controlled.
In D.D.A. v. Rajendra Singh17 , a petition was filed before the Delhi High Court to stop the ongoing massive construction on the periphery of the Yamuna river, as it would not only destroy the river and pose serious threat to Delhi city but also affect the ecological integrity. Tarun Bharat Sangh Alwar wanted to stop the project work as it was not in conformity with the ecology and environment of that particular area. However the Court declined to admit the PIL observing that since the project had been started and a lot of money had already been spent on the project. The Court did not give much attention towards the sustainability of the ecology of the area. The court gives due weight to expert testimony like National Environmental Engineer Research Institute( NEERI) in environmental matters subject to overall judicial control and scrutiny.

X. LARGE PROJECTS
Major development projects are undertaken in developing countries and the same involve huge financial investments but at the same time can have an adverse impact on the environment. Often the environment and cultural impact is ignored in the wake of political and economic gains that such projects often bring. These projects may give some short term gains yet can prove to be catastrophic in the long run if the same are mindlessly pursued. The best example of development projects that raise questions of sustainability are dams.
This is best exhibited by the Narmada Bachao Andolan under the aegis of social activist Medha Patkar. This was in connection with the Sardar Sarovar Project over the Narmada river that flew primarily in Madhya Pradesh and parts of Maharashtra and Gujarat. The implementation of the project was in question in Narmada Bachao Andolan v. Union of India18 wherein even though the majority rejected the contention of the petitioners yet the case itself highlighted the gross error committed by governments and judiciary when guided solely by short term goals and misplaced trust on projects as a way out of problems facing the country.
Among the several objections raised by the petitioners, the prominent ones were that the environmental clearance was given without application of mind and that the height of the dam as planned at Full Reservoir Level 455 feet would inundate a vast region of tribal population and the sustainable rehabilitation of the refugees would become problematic. Other contentions were that the project would threaten water supply and irrigation use of many villages, towns and destroy livelihood of many families. There could be loss of rich historical legacy.
The Court noted that projects can cause displacement but the displaced can be adequately rehabilitated elsewhere. At the same time, certain projects are beneficial for the environment and can help in removing poverty which in itself is a major polluter and cause for pollution. Pollution from a traditional plant dependent on thermal power was more harmful even though it may not cause any pollution. The same was not there in hydro electric projects.
However in his dissent, Justice Bharucha noted,
“while river valley projects were a basic necessity to a country whose economy was largely based on agriculture, over the years realization had dawned that river valley projects had their due quota of positive and adverse impacts which had to be carefully assessed and balanced for achieving sustained benefits…all river valley projects should be subjected to rigorous assessment of their environmental impact so that necessary mitigating measures could be duly incorporated therein…a careful study of the direct costs involved , which would be caused by the absence of environmental mitigative measures…included effects on health, plant genetic resources, aquatic resources, water logging and salinity of irrigated soils, deforestation and soil conservation…An adverse impact on the environment can have disastrous consequences for this generation and generations to come…while surveys and studies on the environmental aspects of the project have been carried out subsequent to the environmental clearance, they are not, due to what are euphemistically called “slippages”, complete….The environmental clearance was based on next to no data in regard to environmental impact of the project and was contrary to the terms of the then policy of the Union of India in regard to environmental clearances and, therefore, no clearance at all…”
It is strange that development should come at the cost of humans. Those who are displaced are displaced not only from their land but also from their way of life and may find it very hard to make an emotional bond with the place or society where they are rehabilitated. This case also shows the difficulty where environment and development come in conflict.

XIV. ENVIRONMENT IMPACT ASSESSMENT
This implies assessment of the impact of projects before the same are implemented so as to prevent any environmental damage from occurring. It allows projects to be modified in light of the observations received upon the completion of Environment Impact Assessment and permits the best choice to be made from among the available options to ensure sustainable development. The Environment Impact Assessment Notification was issued in the ear 1994. However as we saw in the Narmada Case, Courts often hesitate to interfere in major projects even when the Environment Impact Assessment is not conducted or suggests that human costs are also there to the project(s). Environment Impact Assessment is also particularly useful in matters involving mining permits in ecologically fragile areas. In Goa Foundation v. Konkan Railway Corporation,19 it was held that the project of railways which was hugely beneficial to the public at large and in which huge investments had been made should be allowed to continue notwithstanding the threat to the ecology since the extent of possible damage was a very negligible one and moreover the Environment Impact Assessment notification did not apply to railway projects. Many times the authorities and project developers overlook the Environment Impact Assessment and then take the plea that huge investments have been made and therefore the project which is in public interest should not be stopped. This is wrong and the Courts should insist on a strict adherence of the Environment Impact Assessment criteria otherwise our development will cease to be sustainable. It is better to understand and view the Environment Impact Assessment as a tool to ensure sustainable development rather than as a hindrance to development.

XV. SOME IMPORTANT DOCTRINES OF ENVIRONMENT
Public Trust Doctrine
This doctrine was borrowed from Roman law and it implies that certain resources lie air, water and forests have such a great importance to the public as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature , they should be made freely available to everyone irrespective of the status in life. The Governments hold these in trust as trustees and cannot allow their conversion to private ownership. The property held in trust can not be sold even for a fair cash equivalent. This doctrine was brought into Indian law by the apex Court in M.C. Mehta v. Kamal Nath20 where a resort with which the respondent’s family had links had used bulldozers and earth movers to control the course of the River Beas and a club also associated with the respondent’s family had encroached upon a land including forest land. The Court held that the Himachal Pradesh Government had breached Public Trust and directed the motel to pay compensation for damage to the ecology. It was also stated that violators should be asked to restore the environment to the original position.

Polluter Pays Principle and Absolute Liability
In M.C. Mehta v. Union of India,21 the apex Court laid down the absolute liability principle as also the polluter pays principle. In matters involving hazardous enterprises, the Court modified the rule in Rylands v. Fletcher22 to hold such enterprises absolutely liable for any damage that they may cause to the environment. It held,
“ …an enterprise which is engaged in hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken…and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.”
The principle was reiterated in Indian Council for Enviro-Legal Action v. Union of India23 where the Court also directed that the cost of remedial action should be recovered from the polluting enterprise since if the government were to bear the cost then that would indirectly and unfairly transfer the burden on to the tax payer. The Court also stated that the bigger the enterprise the more it should be asked to compensate to restore ecology to the original position(deep pocket theory). This is the basis for the Polluter Pays Principle which requires the polluting agency to pay compensation and bear cost of remedial action.
Precautionary Principle
The Environment Impact Assessment is based on the precautionary principle which got international recognition in the Rio Conference on Environment and Development of 1992. The same was reiterated in Vellore Citizens Welfare Forum v. Union of India,24 wherein it was stated,
“Precautionary principle implies…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 principle involves anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. The onus of proof is also shifted and now the developer/ industrialist has to show that his action is environmentally benign.
This principle has been stated in other cases also including Indian Council for Enviro-Legal Action and also in Andhra Pradesh Pollution Control Board.

XVII. NATIONAL GREEN TRIBUNAL
In view of the same and the growing number of environment matters, the Law Commission in its 186th report proposed the setting up of Environment Courts in the states and at the Centre. Consequently the National Environment Tribunal Act and the National Environment Appellate Authority Act have been repealed. They were replaced by the National Green Tribunal Act. At present there is confusion about the working of the Public Liability Insurance Act as to who will exercise jurisdiction in matters that arise under the same. It is not clear as to how the system of separate courts at state and centre will work out in the long run.
Pursuant to the National Green Tribunal Act of 2010, the National Green Tribunal has been established with Justice Swatanter Kumar as its first Chairperson. The Tribunal has been established for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.
XVIII. CONCLUSION

Preservation of the quality of environment is not only a need of the present generation but also the hopes and aspiration of the coming generation. Unplanned and unscientific development without a vision for the future would have dire consequences for the natural resources. In most matters, the judiciary has displayed its concern for the environment and has elevated the right to clean environment as part of right to life and therefore a fundamental right. The adoption of several doctrines and making justice accessible by way of PIL shows that the judiciary has not shied away from the matters before it and has expanded the scope of judicial review. However, problem arises when matters involve major development projects and difficult multi-disciplinary technical issues. Judicial response in such matters has been mixed and of late the judiciary has allowed several projects to run simply because investments were made and development would be beneficial for the public at large but it is submitted that long term effects of such projects are not determinable and it is better to proceed with caution. Similarly in pollution matters and alike matters the Court at the same time show their concern about the indifference of administrative agencies which cause the damage to the environment and society as a whole at large scale but on the other hand they are not taking any strict action against them for not obeying even their directions as they were given by the Court. The bane of Indian legislation has always been its implementation and as far as the environmental damages are concerned if the decision in order to save the ecology or the environment are left at the mercy of enforcement agencies nothing can be achieved except to increase the thickness of various law reports and journals.