JUDICIAL ACTIVISM AND THE ROLE OF GREEN

BENCHES IN INDIA

 

Asian Justices Forum Strengthening Court Capacity on

Environmental Adjudication

 

Text of the speech delivered by Hon'ble Mr. Justice  K.G. Balakrishnan Chief Justice of India

 

            The word environment is a broad spectrum which brings within its hue hygienic atmosphere and ecological balance. Saving this planet Earth is now of utmost concern to the entire humanity. The world is witnessing a global crisis of environmental degradation. The future of the earth is entirely linked with the sustainable development that may take place in the various countries, both developed and developing. They have to adopt a visionary approach in consonance with the needs of the man and the earth. There is human threat to air, water and land.

            India had been under the colonial rule for about two centuries and even prior to that there were minor kingdoms which did not pay attention to any sort of environmental concerns. After the independence the primary concern of the administrators was to eradicate poverty. Millions of people were below the poverty line and the literacy rate was also very poor. The population growth was at alarmingly high rate. All these factors contributed to serious environmental degradation and the persons who were mostly affected by this environmental degradation were the poor and the disadvantage sections of the society. They were the first victims of the poor sanitation, bad air, contaminated water, scarce food, fuel and fodder. For millions of Indians their only wealth and common property resources were threatened by environmental degradation.

            The post-independence India was concerned with equity and growth and the environmental concern was added only as a third dimension. Thousands of people migrated to cities in search of job and basics living conditions. This resulted in massive increase in population in the cities. The concern for poor and needy people was voiced by the then Prime Minister, Mrs. Indira Gandhi at the United Nations Conference on the Human Environment held at Stockholm on 14th June, 1972. She said :

                        "On the one hand the rich look askance at our continuing poverty -- on the other, they warn us against their own methods. We do not wish to impoverish the environment any further and yet we cannot for a moment forget the grim poverty of large numbers of people. Are not poverty and need the greatest polluters? For instance, unless we are in a position to provide employment and purchasing power for the daily necessities of the tribal people and those who live in or around our jungles, we cannot prevent them from combing the forest for food and livelihood; from poaching and from despoiling the vegetation. When they themselves feel deprived, how can we urge preservation of animals? How can we speak to those who live in villages and in slums about keeping the oceans, the rivers and the air clean when their own lives are contaminated at the source?  The environment cannot be improved in conditions of poverty. Nor can poverty be eradicated without the use of science and technology."

 

And she added :

 

                        "The ecological crises should not add to the burdens of the weaker nations by introducing new considerations in the political and trade policies of rich nations. It would be ironic if the fight against pollution were to be covered into another business, out of which a few companies, corporations, or nations would make profit at the cost of the many."

 

            The 1972 Stockholm Conference marked a watershed in the history of environment management in India. Prior to 1972 in India, the environmental concerns such as sewerage disposal, sanitation and public health were dealt with by federal ministries and each pursued their own objectives in the absence of a proper coordination system. The twenty-fourth UN General Assembly decided to convene a conference on the human environment in 1972, and requested a report from each member country on the state of the environment. As a result of these reports, greater coordination was achieved regarding the environmental policies and programmes. Thereafter, in sixth five-year plan an entire chapter on Environmental and Development was included that emphasized sound and environmental and ecological principles in land use, agriculture, forestry, marine exploitation, mineral extraction, fisheries, energy production and human settlements. It provided environmental guidelines to be used by administrators and resource managers when formulating and implementing programmes, and lay down an institutional structure for environmental management by the Central and State governments. The Planning Commission was set up as an expert committee to formulate long term sectoral policies. It also noted that many environmental problems were continuing to cause serious concern, for example the loss of topsoil and vegetative cover, the degradation of forests, continuing pollution by toxic substances, careless industrial and agricultural practices, and unplanned urban growth. It acknowledged that environmental degradation was seriously threatening the economic and social progress of the country and that our future generations may discover that life support systems have been damaged beyond repair.

            The role of the Courts in India

            The shortcomings of the executive in coping with the pressures on the environment brought about by change in the country's economic policies had thrust the responsibility of environmental protection upon the judiciary. This has meant that in India, the Judiciary in some instances had had to not only exercise its role as an interpreter of the aw but has also had to take upon itself the role of constant monitoring and implementation necessitated through a series of public interest litigations that have been initiated in various courts. However, in the defence of the executive, it must be said that India has actively participated in several multilateral treaties and has been active in admitting its commitments to the environment in accordance with the general principles of International Law while incorporating them into its national laws. Much of the difficulty of the executive in implementing these laws can perhaps be attributed to resource constraints as well.

            In its efforts to protect the environment, the Supreme Court and the Indian Judiciary in general have relied on the public trust doctrine, precautionary principle, polluter pays principle the doctrine of strict and absolute liability, the exemplary damages principle, the pollution fine principle and inter-generational equity principle apart from the existing law of the land. Another guiding principle has been that of adopting a model of sustainable development. The consistent position adopted by the courts as enunciated in one of its judgments has been that there can neither be development at the cost of the environment or environment at the cost of development.

            Thus, the Supreme Court recognizes the need for development and proper utilization of our natural resources for the betterment of our society. However, this cannot be done at the expense of the environment itself.

            The courts in India have, thus, played a dynamic role in preserving the environment and eco-system. In a series of cases, the superior courts of India issued various directions and orders to prevent the environmental degradation. To understand the role of the courts in this regard, the structure of the judicial system and also the constitutional and statutory provisions are to be taken note of.

            It is true that there were various laws even in the nineteenth century to prevent vandalism of human beings. The Indian Penal Code which came into existence in 1860 imposes fine on a person who voluntarily fouls the water of any public spring or reservoir. The Code penalizes acts with poisonous substances that endanger life or cause injury and proscribes public nuisance.  The Indian Easements Act 1882 protected the riparian owners against unreasonable pollution by upstream uses. The Indian Fisheries Act passed in 1897 penalises the killing of fish by poisoning water and by using explosives.

            Thereafter series of enactments were passed to protect the purity of air and water and degradation of forests. But the provision contained in these enactments were not seriously being implemented by the authorities.

            In December, 1984, India witnessed one of the greatest man-made calamities in Bhopal, the capital city of the State of Madhya Pradesh, from a factory owned by Union Carbide India Limited. Methyl Isocyanate, a highly poisonous gas leaked out and it resulted in the death of more than two thousand persons who were mostly the hutment-dwellers in the near vicinity of the factory. The air carried the leaked deadly poisonous gas to the thickly populated areas and about two lakhs people suffered various bodily injuries. The Union Carbide India Limited is a company incorporated in India by Americans. The Bhopal Gas Tragedy was an eye opener and the protection of environment was taken as a serious matter. The Indian Parliament passed the Environment Protection Act, 1986. The Environment Protection Act empowers the Central Government to take measures to protect and improve the environment. Rules were also framed for implementation of the provisions of the Act. The various provisions of this Act give power to the Central Government to take measures to protect and improve the environment and they include:

o       Power to take all measures necessary for purpose of protecting and improving the quality of environment and preventing, controlling and abating environmental pollution,

o       Coordination of actions of state governments, officers and other authorities under any law,

o       Planning and executing of nationwide program for prevention, control and abatement of environmental pollution,

o       Laying down standards for quality of environment in its various aspects,

o       Laying down emission standards from various sources,

o       Restriction of areas in which any industry, operations etc. will not be carried out,

o       Inspections of plants etc.,

o       Constitution of authorities,

o       Issue of directions,

o       Lay down rules to regulate environmental pollution,

o       Emissions to meet standards,

o       Power of entry and inspection Power to take samples.

            It may also be noticed that there are certain important constitutional provisions which give the citizens the right to approach the High Courts as well as the Supreme Court of India to protect their fundamental rights. Article 226 of the Constitution gives the right to citizens to approach the High Court to enforce their fundamental rights. Article 226 of the Constitution gives the right to citizens to approach the High Court to enforce their fundamental rights and the High Courts are given the power to issue various writs.  Article 32 of the Indian Constitution could be invoked by the citizens for enforcement of rights conferred by Part III of the Constitution, namely, the Fundamental Rights. It is also to be noted that Article 21 of the Constitution guarantees one of the important fundamental right to the citizens and says that no person shall be deprived of his life "right to life" contained in Article 21 has been given a very wide interpretation by the Supreme Court of India. Article 48-A which is one of the Directive Principles of State Policy states that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Part IV – A was added to the Constitution by the Constitution (42nd Amendment) Act, 1976 and Article 51-A(g) thereof specifically says 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.

            Till 1980,not much contribution was made by the courts in preserving the environment. One of the earliest cases which came to the Supreme Court of India was Municipal Council, Ratlam, vs Vardhichand AIR 1980 SC 1622. Ratlam is a city in the State of Madhya Pradesh in India. Some of the residents of the 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 excertion by nearby slum-dwellers and that there was nuisance to the petitioners. The Sub-Divisional Magistrate directed the municipality to prepare a plan with 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 defence to carry out the basic duties by the local authorities.

            Thereafter, series of cases were filled before the Supreme Court and there was a dynamic change in the whole approach of the courts in matters concerning environment.

            The Supreme Court of India interpreted Article 21 which guarantees the fundamental right to life and personal liberty, to include the right to a wholesome environment and held that a litigant may assert his or her right to a healthy environment against the State by a writ petition to the Supreme Court or a High Court. The powers of a High Court under Article 226 or those of the Supreme Court under Article 32 are not confined to the prerogative writs derived from English law, but extended to directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. The term " writs in the nature of " widened the court's discretionary powers in granting relief by releasing Indian courts from the procedural technicalities that govern procedures and rules in English law. The courts are empowered to give declaratory relief, issue an injunction or quash an action without recourse to specific writs and this enabled the courts in choosing proper relief and the court can issue a writ, a mandamus to command action by a public authority when an authority is vested with power and wrongfully refuses to exercise, to undo what has been done in contravention of a statute. Writs could be issued against an administrative, judicial or quasi-judicial authority. An applicant seeking a mandamus must show the duty sought to be enforced is a public duty, a duty created under the constitution, a statute or some rule of common law and that duty is mandatory and not discretionary. The broad language used in Article 32 and 226 of the Constitution enables the courts to fashion relief and pass orders consistent with their own assessment of the public interest and principles of equity.

            By the second half of 1970s, the public interest litigation become a model litigation relaxing the standard of standing. The public interest litigation altered the landscape and the role of the higher judiciary in India. The Supreme Court and the High Court dealt with series of public grievances or flagrant human right violations by the State.  In a public interest case, the subject matter of litigation is typically a grievance against the violation of basic human rights of the poor and helpless and the petitioner seeks to champion a public cause for the benefit of all society.

            Traditionally, only a person whose rights were injured was entitled to seek remedy. But that traditional view of standing prevented the grievances of poor from being heard by court. They were denied access to justice because of their poverty and the poor and under-privileged suffered economic reprisals from the dominant sections of the community. In 1981, a seven Judge bench of the Supreme Court gave a definite opinion regarding the standing and enlarged the scope of what has been termed as "representative standing". The court held that it may therefore now be taken as a well established that where a legal wrong or legal injury is caused to a person or to determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority or any such legal wrong or legal injury or legal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability of socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for appropriate direction, order or writ in the High Court under Article 226 and in case of any fundamental right of such person or determinate class of persons, in the Supreme Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons..

            The above decision enlarged the scope of the litigation and a large number of cases came to the Supreme Court of India to protect and preserve the ecology and environment. It is interesting to note some of the decisions of the Supreme Court of India which gave various directions to help protect the environment from further degradation. But for the directions by the Supreme Court in these cases, there would have been large scale deforestation and the air and water would have been polluted to such an role played by the Supreme Court of India in protecting the environment can be glanced through some of its decisions.

            One Mr. M.C. Mehta, a lawyer practicing in the Supreme court filed series of public interest litigations. One such case concerned shifting of caustic chlorine and sulphuric acid plants located in a thickly populated area in Delhi. From that very plant, oleum gas leaked out and it caused some panic among the neighbourhood residents. The  court expanded the scope of Article 32 and said that in appropriate cases the court can award compensation to the affected party. The court also said that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortuous principles of strict liability under the Rylands vs Fletcher.

            The very some petitioner file series of other public interest litigations concerning vehicular pollution, illegal mining, pollution of Ganga water, pollution of water by tanneries, Taj Mahal.  In many of these cases, Expert Committee were constituted and the

court acted on these Expert Reports and issued various directions. In the case of Taj Mahal, directions were issued to protect that monument from pollution by air. Vehicular traffic was restricted in that area and directions were issued to clean the structure.

            To ensure ecological stability, at least thirty percent of the nations's area should be under adequate forest cover. There was large scale deforestation and the forest cover dwindled to less than eighteen percent. Originally, the forests were placed on the State List whereby the States alone could make legislation concerning forests. By 1976, the forests were placed under the Concurrent List and the Parliament also could make legislations on that subject. Despite the major steps taken by the Governments, the deforestation continued unabatedly. In 1996, Supreme Court issued sweeping directions to oversee the enforcement of Forest Laws across the nation. In T.N. Godavarman Tirumalpad  vs Union of India, the Supreme Court to give effect to the provision of National Forest Policy 1988. The Court gave notice to the Union Government and State Governments. Forest must be understood according to its dictionary meaning and the description covers all statutory recognized forest, whether designated as ‘reserved', ‘protected' or not, including any area recorded in Government records as forest.

            Forest Conservation Law has also been significantly been impacted through another case, Centre for Environmental Law (WWF) – India v. Union of India concerning national parks and sanctuaries. While hearing this case, the Supreme Court through one of its interim orders on 13-11-2000 has restrained all State Governments from de-reserving national parks, sanctuaries and forests.   

            The impact of both these judgments has been that : all on-going activities must be stopped - without prior approval of the Central Government. There would be complete ban on felling of trees. Feeling of trees in all forests is to remain suspended except in accordance with the working plans of the State Government, as approved by Central Government. Where permit system is in vogue, the Department of Forests or State Forest Corporation alone can cut trees. There shall be complete ban on movement of cut trees and timber from the North Easter States to other parts of the country, either by rail, road or waterways. Workers in the wood-based industries should be paid their usual wages. Ecologically-sensitive area is to be found out and totally excluded from exploitation.

            In effect, all State Governments have been prohibited from using forest lands for non-forest purposes without the prior approval of the Central Government in accordance with the Forest Conservation Act, 1980. Through the same order the Court has also stayed all non-forest activities that were being carried out without the prior approval of the Central Government. Resultantly, the power to denotify/dereserve national parks and wild life sanctuaries that vested with the State Governments was transferred to the National Board for Wild Life through and Amendment that came into effect from 2003. By notify of the court's orders even the National Board for Wild Life cannot exercise this power without the approval of the Supreme Court.

            It may also be noted that the National Commission that is set up to review the working of the Constitution of India in its report submitted to the Central Government has recommended the addition of a separate article (30-D) in the Constitution of India which would confer the stature of a fundamental right within the Indian Constitution to the right to save drinking water, clean environment etc.

            Thus, even a cursory study of the judgments of the Indian courts especially the Supreme Court would reflect the consistent commitment of the courts towards the protection of the environment. Very often the courts have had to not only lay down the law but also closely monitor its implementation due tot the political compulsions of the Government.  The executive needs to show stronger commitment towards implementation of environment related laws. However, its needs to be appreciated that the efforts of the courts can only achieve marginal success unless there is social, political and economic change in the Government as well as of people towards adhering to a model of sustainable development. Perhaps the solution towards protecting and utilizing nature's bounty in a sustainable manner lies in an introspection towards the life styles that modern world is increasingly adopting. Concerned citizens of the world must begin by advocating a reduction of materialistic lifestyle based on the philosophy of the developed world, leading a life in harmony with nature, having allow ecological footprint and adopting solutions towards equitable growth and development in a manner that does not harm the environment.

            A recent newspaper report source to the AFP news agency quotes an article from the Science Journal brings into sharp focus some mind boggling facts. The report states that as of 1995 only 17% of the worlds land area remains truly wild – with no human populations, crops road access or nighttime light detectable by satellite. Half of the world's surface area is used for crops or grazing; more than half of all forests have been lost to land conversion; the largest land mammals on several continents have been eliminated; shipping lanes crisscross the oceans. Due to extensive damming, nearly six times as much water is held in artificial storage world wide as is free-flowing. Subtle and not so subtle changes brought about by man upon the environment are evident everywhere. The report states the natural selection has been supplanted by human selection, meaning that certain species – such as companion pets- thrive, while others – such as river trout – have been altered specifically for human consumption often to their detriment. And, thus, altering ecosystems has left many species vulnerable to disturbances and less resilient. Such shrilling fact ought to serve as a constant reminder to us to maintain our commitment to the protection of our environment.

            The contribution of the Supreme Court of India in protecting the environment and ecology, forest wild life, etc. has been phenomenal. Despite the limitations of jurisdiction, the Court played a vital role in this regard. More importantly what is needed from an environmental angle is a vision for the future. We have got enough laws to protect the environment, but its implementation is in the hands of administrative authorities. Good governance free from corruption is the basic need to protect the environment. The words of Justice Frankfurter are apt, quoting " An onerous obligation ……. We owe to posterity…… clean air, clean water, greenery and open space.  They ought to be elevated to the status of birth right of every citizen ."