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ROLE OF JUDICIAL ACTIVISM IN ENVIRONMENT PROTECTION
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ROLE OF JUDICIAL ACTIVISM IN
ENVIRONMENT PROTECTION
Authored By
- Aryan Srivastava
ABSTRACT
The protection and improvement of the
environment is a major issue which affects the well-being of people throughout
the world. Environment protection and its preservation is the duty of every
human being living on the earth. The Supreme Court of India has passed many
judgments for the prevention of environmental pollution. Due to urbanization
and modernization there is a heavy loss to our natural beauty. To deal with the
problems of industrialization and over- exploitation of natural resources, the
entire World came together in the year 1972 at Stockholm in the
"Conference on Human Environment". The purpose of this
conference was to find a solution to the problems of environment. The concept
of the term ‘Sustainable Development’ was also evolved in this conference. The
Stockholm Declaration, 1972 is called as the 'Magna Carta' of environment
protection. The world community also discussed the concept of sustainable
development on Environment and Development in its report of 1982 and again in
1987 in the Brundtland Report. The judiciary has played a vital role in the
protection of our environment by passing various landmark judgments. Mr. M.C.
Mehta, a very renowned lawyer and a famous environmentalist contributed a lot
for the protection of Environment. He filed many PILs (Public Interest
Litigations) for saving our Mother Nature, monuments and rivers. "United
Nations Climate Change Conference" was held in Nusa Dua, Bali (Indonesia)
from 03 Dec to 14 December 2007 where more than 10,000 participants from 180
countries attended this conference. The purpose of this
conference was to find a solution to the problems of environment. This paper commences with the meaning and need for
environmental laws. It also analyzes the judicial remedies available for
environmental protection and some remarkable principles and doctrine propounded
by the Indian judiciary. It further views upon the constitutional aspects and
the new trends in judicial approach in environmental protection.
INTRODUCTION
[1]Environment protection is part of our cultural
values and traditions. In Atharvaveda, it has been said that "Man's
paradise is on earth; this living world is the beloved place of all; It has the
blessings of nature's bounties; live in a lovely spirit". Earth is our paradise and it is our duty to protect
our paradise. The constitution of India embodies the framework of protection
and preservation of nature without which life cannot be enjoyed. The knowledge
of constitutional provisions regarding environment protection is need of the
day to bring greater public participation, environmental awareness,
environmental education and sensitize the people to preserve ecology and
environment. In a world where urbanization and
pollution are above the danger level we have a duty to protect our environment.
In our constitution also it is mentioned that we the citizens of India also owe
a duty to protect our environment. Article 48A of the Indian Constitution
provides that we have a fundamental duty to preserve our environment , lakes ,
rivers and ponds. Under Article 21 it is also provided that Right to Life
includes right to live in a pollution free environment.
"Sustainable development
is the development that meets the needs of the present without compromising the
ability of future generations to meet their own needs.”1 Sustainable development is a socio-ecological process
characterized by the fulfillment of human needs while maintaining the quality
of the natural environment indefinitely. The linkage between environment and
development was globally recognized in 1980, when the International Union for
the Conservation of Nature published the World Conservation Strategy and used
the term "Sustainable Development”. The concept
came into general usage following publication of the 1987 report of the
Brundtland Commission set up by the United Nations General Assembly, the
Brundtland Commission coined what was to become the most often-quoted
definition of sustainable development as development that "meets the needs
of the present generation without compromising the ability of future
generations to meet their own needs".
Further it elaborates the concept by stating that "…cultural
diversity is as necessary for humankind as biodiversity is for nature"; 2
it becomes "one of the roots of development understood not simply in terms
of economic growth, but also as a means to achieve a more satisfactory
intellectual, emotional, moral and spiritual existence". In this vision,
cultural diversity is the fourth policy area of sustainable development. The
importance of doctrine of Sustainable Development was emphasized in Rural
Litigation and Entitlement Kendra Vs State of UP also known as the Doon Valley
Case. In the above case the limestone mining caused great damage to Mussorie
and Dehradun hills and also caused problems like landslides, slumping which
killed the villagers and also destroyed their homes and cattle’s. The Supreme
Court in the above case held that the valley was designated as an ecologically
fragile under Environment Protection Act. A Doon Valley Board was also
constituted to inspect the limestone quarries in the area and conserve the
degraded areas of the valley. The judgment also emphasized that the use of
natural resources should be practiced with necessary consideration and
attention so that environment and climate are not affected in a severe manner.
INDIAN LEGISLATIVE PROVISION REGARDING
ENVIRONMENTAL PROTECTION
India employs a range
of regulatory instruments to preserve and protect its natural resources. As a
system for doing so, the law works badly, when it works at all. The legislature
is quick to enact laws regulating most aspects of industrial and development
activity, but chary to sanction enforcement budgets or require effective
implementation. Certain environmental laws were in force in India well before
the Stockholm Declaration of 1972, such as the Indian Forest Act etc. Besides
this action could also be taken under Sections 268 and 290 of IPC against
public nuisance relating to environment. However, with India's participation in
the United Nations' Conference on Human Environment held in Stockholm in the
year 1972 the need arose to enact specific laws. All these circumstances led to
enactment of the Water (Prevention and Control of Pollution) Act, 1974, the. Air
(Prevention and Control of Pollution) Act, 1981, the Environment (Protection)
Act, 1986 and the Forest (Conservation) Act, 1980. Not only around the world,
but in India also, people have shown positive response to the need for
protection of the environment and full support has been given by the judiciary.
People cautious of their rights to a healthy and pollution-free environment
have formed groups such as Centre for Science and Environment seeking
directions from the courts to protect the environment and it has been done so
by way of public interest litigation. These groups have often pressurized the
executive to take decisions on certain development projects only after making
proper environment impact assessment. Chipko Movement and Appiko Movement in Karnataka
for saving the trees from exploitation are examples of initiatives taken by
public-spirited persons.
ROLE OF JUDICIARY REGARDING ENVIRONMENT
PROTECTION
The primary effort of
the courts while dealing with environmental issues had been to not only punish
the offender but also to seek proper enforcement of such laws.
In this case the Hon'ble Court held that even
though, it is not the function of the court to see the day-to-day enforcement
of the laws, that being the function of the executive, but because of the [2]non-functioning
by the enforcement agency, the courts as of necessity had to pass orders or
direction to the enforcement agencies to implement the law for the protection
of the fundamental rights of the people.3 The Hon'ble Supreme Court
has time and again dealt with various environmental problems and orders have
been passed for this purpose. Courts not only pass orders at the initial stage
but also monitor the functioning of the Pollution Control Boards and the
polluters. Some of the leading cases are mentioned hereinafter.
In this case the Apex
Court directed for shifting/relocation of 168 industries identified as hazardous and large
industries operating in Delhi to other towns of NCR as per the master plan of
2001.4
The Court passed several directions
for preventing air pollution in Delhi. While reaffirming the need for public transport system to run on
ONG it directed for phasing out of diesel buses in a time-bound manner."5
The Hon'ble Court took note of the
environmental pollution due to stone-crushing activities in and around Delhi,
Faridabad and Ballabhgarh complexes and directed for relocating of such units
within six months.6
In this case the intervention of the Court was
sought to prevent pollution of River Gomti in U.P due to discharge of effluents
from the distillery of Mohan Meakins Ltd. The Court directed the removal of
deficiencies in the effluent treatment plant as well as imposed a fine of Rs 5
lakhs on the Company.7
In this case the Court held that
shrimp industry is to be permitted on after passing a strict environment test.8
[3] In this case the Court dealt with
the problem of pollution being cause by enormous discharge of untreated
effluents by tanneries in the State of Tamil Nadu and also imposed a fine of
Rs. 10,000/- on the polluting industries.9
The Court directed closure of
industries in Bichhari village in Udaipur (Rajasthan) discharging highly toxic
effluents leading to soil arid water pollution and also directed for removal of
the sludge etc.10
In Calcutta Tanneries case, the Court
directed for shifting/relocating the tanneries in question causing pollution.11
Here the question is whether civil
action against the polluters by applying the Precautionary Principle and
Polluter-Pays Principle is enough or penalty should also be initiated against
such offenders. Environment laws besides providing for protection of the
environment also provide for penal action against the polluters. For e.g.
Section 15 of the Environment (Protection) Act, 1986: provides for contravention
of the provisions of the Act and the rules and regulations issued under the Act
to be punishable with imprisonment for a term which may extend to five years or
with fine which may extend to one lakh rupees, or with both, and in case
contravention continues, with additional fine which may extend to five thousand
rupees for every day during which such failure or contravention continues.
Similar are the provisions provided
by the Air (Prevention and Control of Pollution) Act, 1981 as well as the Water
(Prevention and Control of Pollution) Act, 1974.
The Pollution Control
Boards have powers to initiate action against the polluters. However, these
Boards had till the recent past been functioning as record-keepers maintaining
statistics regarding pollution and only during the last few years these Boards have
taken some initiatives to protect and improve the environment after being
directed by the courts. It is a matter of surprise that [4]even
where pollution was easily visible or was being felt for e.g. air pollution in
Delhi, the Boards acted as silent spectators till the Court intervened.
In this case it was
observed by the Hon'ble Court said that enactment of law but tolerating its
infringement is worse than not enacting the law at all. Violation of
anti-pollution laws not only adversely affects the existing quality of life but
its adverse effects will have to be borne by the future generation.12
In fact, criminal
prosecution of the polluters has been a low priority amongst the Pollution
Boards. Though the Apex Court has time and again given directions for taking
penal action, offenders will go scot-free unless the Boards start taking penal
action against them. Therefore, the need of the hour is to initiate criminal
prosecution against the offenders in appropriate cases. The past experience
regarding the functioning and performance of the statutory authorities
including the Pollution Control Board shows that the powers conferred upon them
have not been properly exercised.
There can be no doubt
that there is any shortage of the environmental statutes or that there are not
enough statutes to deal with various aspects of environment for example air,
water, soil, and their interrelationship with human beings. The need is to
effectively involve the common man in initiating appropriate penal action
against the offenders. The judiciary, a spectator to environmental despoliation
for more than two decades has recently assumed a pro-active role of public
educator, policy maker, super administrator and more generally amicus
environment.13
The environmental laws
provide for a certain procedure for taking cognizance of offences for e.g.
Section 49 of the Water (Prevention and Control of Pollution) Act, 1974
provides that no court shall take cognizance of any offence under this Act
except on a complaint made by a Board or any officer authorized in this behalf
by it; or any person who has given notice of not less than sixty days, of his
intention to make a complaint, to the Board or officer authorized as aforesaid.
Similar are the
provisions relating to cognizance under Sections 43 and 19 of the Air
(Prevention and Control of Pollution) Act, 1981 and the Environment
(Protection) Act, 1986 respectively. The procedure for filing complaint should
be simplified. The requirement of giving notice to the Board or to the Central
Government in case of offences under the Environment (Protect on) Act, 1986
should be done away and instead of this, it should be provided that every
person should have a right to directly file a criminal complaint against the
offender in accordance with the procedure laid down in Section 200 Cr.PC., 1973.
However, as a matter of safeguard against malicious prosecution it can be
provided that the court shall call for a report from the Pollution Control
Board concerned before summoning the accused. But at the same time it should
also be provided that the complainant shall have the right to challenge the
report of the Board by way of scientific or other evidence.
In this case the
Supreme Court of India held that Article 32 is designed for the enforcement of Fundamental
Rights of a citizen by the Apex Court. It provides for an extraordinary
procedure to safeguard the Fundamental rights of a citizen. Right to live is a
fundamental right under Art. 21 of the Constitution and, it includes the right
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 Art. 32 of the Constitution for removing
the pollution of water or air which may be determined to the quality of life. A
petition under Art. 32 for the prevention of pollution is maintainable at the
instance of affected persons or even by a group of social workers or
journalists. But recourse to proceeding under Art. 32 of the Constitution
should be taken by a person genuinely interested in the protection of society
on behalf of the community. Public interest litigation cannot be invoked by a
person or body of persons to satisfy his or its personal grudge and enmity. If
such petitions under Article 32, are entertained it would amount to abuse of
process of the Court, preventing speedy remedy to other genuine petitioners
from this Court. Personal interest cannot be enforced though the process of
this Court under Art. 32 of the Constitution in the garb of public interest
litigation. Public interest litigation contemplates legal proceeding for
vindication or enforcement of fundamental rights of a group of persons or
community which are not able to enforce their fundamental rights on account of
their incapacity, poverty or ignorance of law. A person invoking the
jurisdiction of this Court under Art. 32 must approach this Court for the
vindication of the fundamental rights of affected persons and not for the
purpose of vindication of his personal grudge or enmity. It is duty of this
Court to discourage such petitions and to ensure that the course of justice is
not obstructed or polluted by unscrupulous litigants by invoking the
extraordinary jurisdiction of this Court for personal matters under the garb of
the public interest litigation.14
POLLUTION
FREE ENVIRONMENT A BASIC HUMAN RIGHT
[5]Everyone has the right
to live in a world free from toxic pollution and environmental degradation, the
United Nations Commission on Human Rights has concluded this decision, the
first time the Commission has linked between the environment and human rights,
was made at its annual meeting which ended in Geneva.15
"Environmental
conditions clearly help to determine the extent to which people enjoy their
basic rights to life, health, adequate food and housing, and traditional
livelihood and culture. It is time to recognize that those who pollute or
destroy the natural environment are not just committing a crime against nature,
but are violating human rights as well," he said. "Human rights
cannot be secured in a degraded or polluted environment," said Mr.
Toepfer. "The fundamental right to life is threatened by soil degradation,
deforestation and by exposures to toxic chemicals, hazardous wastes, and
contaminated drinking water."
"For this reason,
we believe that the successful implementation of environmental treaties on
biodiversity, climate change, desertification and chemicals can make a major
contribution to protecting human rights. We would welcome the Commission's
continued work on the environmental dimensions of human rights, including
enforcement and compliance," said by Mr. Toepfer. Human Rights and
environment are linked to each other: a clean, healthy and sustainable
environment is essential in enjoyment of our human rights. On 28th
July 2022, the United Nations General Assembly declared that everyone on the
planet has a right to a healthy environment. A resolution was passed by United
Nations General Assembly at UN headquarters in New York City, where it was
emphasized that climate change and environmental degradation were some of the
most pressing threats to humanity’s future. “This resolution sends a message
that nobody can take nature, clean air and water, or a stable climate away from
us – at least, not without a fight.”15
CONCLUSION
AND SUGGESTION
[6]The judiciary has made
various initiation to preserve India's natural environment by focusing on the
implementation of laws and through leading concepts like polluter pays
principle, precautionary principle, sustainable development into Indian law to
achieve its goals. Sustainable development of the environment is the need of
the hour and the future is also guaranteed. The judiciary has established a
strong jurisprudence as a base of environmental concern. The introduction of
absolute liability is a major step in Environmental Protection. The
international laws has been used.16
However after a deep
analysis of judiciary in protecting and preserving the environmental
sustainability, there are some gaps which needs to be fulfilled. Such as flaws
in PIL system, conflicting interests between judiciary and social obligation,
lack of awareness for sustainability etc. and in order to achieve the target of
healthy environment-
Ø Equal importance should
be given to environment and development.
Ø Steps should be taken
to create awareness in the society.
Ø The mindset of the
people should be changed.
Ø Environmental education
should be provided.
Ø Administration
accountability should be strengthened.
Finally it can be
concluded that even after the limitation, the judiciary has played and will continue
in playing the very vital role in protecting and preserving our environment.
[1] Brundtland Report , 1987
2
Universal
Declaration on Cultural Diversity (UNESCO,2001)
4
M.C. Mehta v.
Union of India (AIR 1996) 4 SCC 750
5
M.C. Mehta v.
Union of India (AIR 2002) SCC 356
6
M.C. Mehta v.
Union of India (AIR 1992) 3 SCC 256
7 Vineet Kumar Mathur v Union of
India (AIR 1996) 7 SCC 714
8 S. Jagannath v. Union of India
(AIR 1996) 3 SCC 212
10 Indian Council of Enviro Legal
Action v. Union of India ( Bichhri Case) (AIR 1996) 3 SCC 212
11 M.C. Mehta v. Union of India (AIR
1997) 2 SCC 411
13 T. N. Godavarman Thirumulkpad v.
Union of India (AIR 1997) SC 1228
15 United Nations General Assembly
28th July 2022
Article Information
ROLE OF JUDICIAL ACTIVISM IN ENVIRONMENT PROTECTION
Authors: Aryan Srivastava
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/17
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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