Open Access Research Article
Environmental Governance (By-B. Hari Priya & V. Janaki Devi)
Published Paper
Article Details
Environmental
Governance
Authored By-1. B. Hari Priya
2. V.
Janaki Devi
Introduction
The environment has been defined as
that outer physical and biological system in which man and other organisms live
as a whole. This entire system is a complicated one as it has many interacting
components. Changes in ecological system occur continuously through natural
process and man’s activities but the system has to a certain extent remarkable
tendency to rebalance itself. This system as a whole is useful to man. Thus,
there is a close relationship between man and the environment. This use of
environment by man has increased considerably following the industrial,
scientific and technological revolutions which in turn resulted in dis-balance
in nature. It was this background which helped the signing of the Stockholm
Declaration of 1972, which for the first time drew the attention of the world
community for preservation and protection of human environment. India, too, has
shown its concern over the continuing degradation of the environment. The most
characteristic feature of the Indian Environmental law is the pivotal role
played by the Apex court of India. There has been several efforts made by the
legislature and the executive, but the effectiveness of Indian judiciary has
taken the lead. The creativity is usually used by judiciary in two ways, i.e.
either amending the constitution for giving particular kind of protection or to
interpret the existing law to include something within it. In this regard,
Indian constitution was amended in the year 1976 by the Forty-Second
(Amendment) Act. It has therefore been the instrument in shaping india’s
environmental law.
Supreme Court And Right To
Environment
The first and foremost right
developed by supreme court is 'right to live in a healthy environment'. This
right derived its nexus from Universal Declaration of Human Rights 1948. The 42nd
Amendment Act added two articles, i.e.
Articles 48A and 51A(g) which provides that it is fundamental duty of every
citizen of india to protect and improve the natural environment. For protecting
right to environment it used Articles 32 and 21 as a weapon and through this
Articles Supreme Court gave directions in various cases.
In Bandhua Mukti Morcha v. U.O.I.,
Supreme Court which is the first in this regard develop the concept of right to
‘healthy environment’as a part of right to life under Article 21 of the
constitution.
In Chhetriya Pardushan Mukti Sangarsh
samiti v. State of UP, held that “Ëvery
citizen has a fundamental right to have the enjoyment of quality of life
and living as contemplated by Article 21 of the Constitution of India.
Then came the era of M.C. Mehta
cases, first M.C. Mehta case related to leakage of oleum gas held that case
raised some seminal questions concerning scope and ambit of Arts, 21 and 32 of
the constitution. In third case a new jurisprudence to pay by accused to
victims compensations developed.
In Virandar Gaur v. State of Haryana,
the Supreme court observed, “word 'environment' is of broad spectrum which brings within its ambit
"hygienic atmosphere and ecological balance". Article 21 protects
right to life as a fundamental right. Enjoyment of life and its attainment
including their right to live with human dignity encompasses within its ambit,
the protection and preservation of environment, ecological balance free from pollution
of air and water, sanitation without which life cannot be enjoyed..
Environmental, ecological, air, water, pollution, etc. should be regarded as
amounting to violation of Article 21. Therefore, hygienic environment is an
integral facet of right to healthy life and it would be impossible to live with
human dignity without a humane and healthy environment”.
In B.L. Wadhera v. U.O.I., public
interest litigation was filed in which the court held that the “residents have constitutional as well as
statutory right to live in a clean city and authorities concerned have
mandatory duty to collect and dispose of waste generated from various sources”.
New Trends In Judicial Approach
Environment litigation is of recent
origin in India. During a short span of time, the Indian judiciary not only has
successfully undertaken a complex task of balancing the environmental and
development concerns but in the process of its adjudication of cases evolved
new principles of the environmental jurisprudence. Here is an evaluation of
role of the courts with reference to certain specific situations in the context
of environmental protection.
(i)
JUDICIAL ACTIVISM:
The new judicial trend in environmental
litigation has been noticed in the form of court’s assumption of executive
functions and judicial legislation. The judiciary has in many public interest
litigations ingresses into fields traditionally reserved for executive. The
Dehradun Quarrying case is a typical example of the Supreme Court ‘creeping
jurisdiction. The court
entrusted an expert committee to
evaluate the environmental impact of limestone quarrying operations and used
the committee mechanism to supervise the implementation of judicial orders.
Thus, the courts have come to fill in the administrative vacuum by assuming the
executive functions. Shriram Gas Leak Case is an example of judicial activism.
In this case the court refused to follow in totality the rule of strict
liability as laid down in Rylands v. Fletcher. Instead Justice Bhagwati evolved
the rule of “Absolute liability”.
This judicial legislation filled up the
gaps in the law which existed prior to the adoption of Public Liability
Insurance Act, 1991. Such judicial legislation despite its having now been
incorporated in the statute still remains a good law though the apex court has
declined to apply its principle relating to award of damage in subsequent
cases.
(ii)
FREEDOM OF INFORMATION AND RIGHT TO KNOW:
There is a close link between the
government accountability and a citizen’s ability to secure authentic
information. Public access to government information in democratic society is
desirable as it enables citizens to exercise their political choice more
meaningfully. The right to know at the same time in addition to improving the
quality of decision making also strengthens participatory democracy. On the
contrary, secrecy erodes the legitimacy of elected government by providing a
cover to conceal its misdeeds.
It is unfortunate that we do not have
any legislation which provide for risk communication and emergency planning
mechanism against industrial negligence cases. The Bhopal gas disaster is one
good example of such legal vacuum. This incident could have been avoided if the
right people has obtained the right to information at a time when they were
capable of appreciating it and taking appropriate preventive action. Hence,
there is an urgent need of devising a regulatory mechanism to provide for the
right of information to people.
The Supreme Court of India has done a
commendable task in shaping the broad contours of community right to know by
elaboration of Articles 19(1)(a) and 21 of the constitution pertaining to
fundamental rights of freedom of speech and expression and personal liberty
respectively. Justice Bhagwati has recognised the right to know as implicit in
Article 19(1)(a) of the constitution in Judges Transfer Case. Later Justice
Mukharji in Reliance Petrochemical’s Case recognised this right as a part of
right to life as guaranteed under Article 21 of the Constitution.
In Bombay Environmental Action Group v.
Pune Cantonment Board, the court extended the right of information not only to
the social action group or any pressure group but to all persons. The court’s
order has certainly widened the scope of the right to know. Thus, the citizens
have virtually an unqualified right to seek information from any statutory
authority affecting the interests of the people.
(iii)
PUBLIC AWARENESS:
The law by itself is inadequate to
bring about the desired change in society without public awareness and
participation in the process. In M.C. Mehta v. Union of India, the court
perceiving the importance of the public awareness observed: Enactment of laws
regarding waternand air pollution control was not sufficient. No law can indeed
effectively work unless there is an element of acceptance by the people in
society. In order that human conduct may be in accordance with the prescribed
law, it is necessary that there should be appropriate awareness of what the law
requires and an element of acceptance by the people that the requirement of the
law is grounded in a philosophy which is to be followed. This is possible only
whwn steps are taken to make the people aware of the indispensable necessity of
their conduct being oriented in accordance with the requirement of the law.”
(iv)
SPOT LIGHT:
Another
important procedural innovation of the Court in resolving environmental dispute
has been found in judges’ personal interest to have first-hand information
through spot visit to understand the nature of environmental problem and the
issues revolving around it. In the Ratlam Municipal v. Vardhichand case, before
arriving at a decision, Justice V.R. Krishna Iyer visited the Ratlam town and
assessed the problem and then directed the Ratlam Municipality to take
appropriate measures to construct proper drainage system in the city.
Similarly, in the Doon Valley case, Justice P.N. Bhagwati visited the area and found that the environmental
litigation involved certain complex issues including the rights of the workers,
traders and fragile ecology of the area. He then appointed an independent
committee to assess the problem. The spot visit of judges has
enabled them to assess the environmental problem on the ground and hence the
decisions given by these judges have made a difference in the outcome of the
case. Therefore, the innovative method to arrive at a decision through spot
visit has become part of individual interest of judges rather than a standard
practice in the decision-making process.
(v)
DOCTRINES EVOLVED:
The formulation of certain new
principles and pronouncement of new doctrines “as part of the law of this
country” for protection of environment is a remarkable achievement of the
Indian Judiciary. Some such principles and doctrines prouded by the Indian
Judiciary are as follows:
(a)
Principle of Absolute Liability:
This rule was evolved in M.C. Mehta v.
Union of India, which is popularly known as the ‘oleum gas leak case’.
The court in the above case held that
the principle of strict liability evolved in England moe than a century ago in
Rylands v. Fletcher was diluted. The Supreme Court held that the exceptions to
thestrict liability are not applicable in India in cases of determining the
liability of hazardous and inherently dangerous industries.
(b)
Polluter Pays Principle:
The Supreme Court for the First time
applied the pollurer pays principle in Indian Council for Enviro-Legal Action
v. Union of India. The court held that the pollution industries are “liable to
compensate for the harm caused by them to he villagers in the affected area, to
the soil and to the under ground water and hence they are bound to take all
necessary measures to remove sludge and other pollutants lying in the affected
areas.”
(c)
Precautionary Principle:
The Supreme Court of India in Vellore
Citizens Welfare Forum v. Union of the India has declared that the
“precautionary principle” is an essential feature of sustainable development.
The court further declared that the “precautionary principle has been accepted
as part of the law of the land”. The court held that “even otherwise once these
principles are accepted as part of the customary international law there would
be no difficulty in accepting them as part of the domestic law.”
(d)
Public Trust Doctrine:
The Supreme Court’s decision in M.C.
Mehta v. Kamalnath is an excellent exposition of the doctrine of public trust.
In this case the Supreme Court applied the doctrine for protection of the
environment. The court also observed, “Our legal system based on English Common
Law includes the public trust doctrine as part of its jurisprudence. The State
is the trustee of all natural resources, which are by nature meant for public
use and enjoyment. Public at large is the beneficiary of the sea shore, running
waters, airs, forests and ecologicially fragile lands.
The State as a trustee is under a legal duty
to protect the natural resources.
(e)
Doctrine of Inter-generational Equity:
The idea behind this doctrine is that
“every generation should leave water, air and soil resources as pure and
unpolluted as and when it came to earth. Each generation should leave
undiminished all the species of minerals it found existing on earth.”
Conclusion
The above discussion demonstrates the
active role of the Supreme Court of Indian as People’s as well as environment
court. The journey from Ratlam (1980) was not so long within which well
established principles and precedents could develop. However, in this short
period judicial activism has kept the administration of environmental justice
responsive and vibrant. The output of the entire judicial exercise was that in
nearly 80 percent of the cases the balance was tilted in favour of environment.
This should not be taken to mean that the court retarded the developmental
growth rather it has caught and taught a lesson to eco-enemies. The judicial
activism resulted in many innovations and given important raw material for
building up a comprehensive enviro-jurisprudence.
Thus in the field of administration of
environment, the Supreme Court of India has stood tall not only before the two
organs of the ‘State’ but also before its other counterparts.
Suggestions
·
Need for effective and speedy settlement of dispute systems at national
, district and regional levels.
·
Judges and Advocates have the responsibility to emphasize the necessity
of law to achieve sustainable development and can help make institutions
effective.
·
Setting up of guidelines and specific criterion for the interpretation
of environmental law.
·
Representation of apex court judges and attorneys and other officials of
the Higher court with the international organisations and forum pertaining to
environmental jurisprudence is considered to be important for the legal and
technical improvement.
·
Moreover, property law must be
reinterpreted in order to incorporate the concepts of environmental stewardship
and sustainability.
·
Transparency in the dispute resolution process promotes a sense of
fairness and it also led to the development of environmental law.
·
Judges when delivering the judgement should consider the indigenous
people and also the development and life of environment instead of considering
Economic development.
Article Information
Environmental Governance (By-B. Hari Priya & V. Janaki Devi)
Author Name: B. Hari Priya & V. Janaki Devi
Title: Environmental Governance
Email Id: B. Hari Priya-priyabaskar3712@gmail.com & V. Janaki Devi-janakiuthara92@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/04
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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