Judicial Activism in Environmental Law8 min read

By- Nilay Kumar Bhatnagar

Introduction

The constitution of India as adopted in 1950 does not deal with any subject relating to the environment or prevention and control of environmental pollution. It was the Stockholm Declaration of 1972 that turned the attention of the Indian government toward this subject matter. As a consequence, numerous laws were made to protect the environment and reduce environmental pollution.

Through many landmark judgments, the judiciary of India shaped the environmental protection laws. After the Bhopal Gas tragedy case and Oleum Gas Leak Case the Supreme Court of India emphasized on the establishment of special courts. The apex court opined that the judges lacked the specific skills, understanding and expertise to dispose of the issues related to environmental law. Therefore specialized courts with expert judges were required for speedy disposal of cases.

Following the recommendation of 186th Law Commission Report that criticized the 1997 Act, National Environment Appellate Authority Act, 1997; the national green Tribunal bill was passed and implemented as the National Green Tribunal Act, 2010. Which strengthen judicial activism in the field of environmental law.

It is an act that provides the base for the establishment of the National Green Tribunals in India. The tribunals are established for the efficient and quick disposal of cases relating to conservation of forests, environmental protection and other natural resources including enforcement of any legal right relating to the environment and granting aid and compensation for damages to any persons and property.

The steps taken by the judiciary can mainly be divided into 4 main parts-

  1. Actions relating the Fundamental Rights
  2. Actions relating the DPSPs
  3. Action relating the Fundamental Duties.
  4. Principals of Environmental Laws.

Fundamental Rights

Article 14, Article 19 and Article 21 (the golden triangle of the Indian constitution) has invoked many times while dealing with the environmental protection cases. On numerous occasions, courts have read the right to clean environment as a part of Article 21 of the Indian constitution. In the Dehradun Quarrying Case, 1985, though the orders did not articulate the fundamental right to a clean and healthy environment, treated the petition as a writ under Article 32. It indicates that the court was seeing this right in the light of a fundamental right.

In Subhash Kumar vs the State of Bihar, the Supreme Court held that the right to life is a fundamental right under the ambit of Article 21 of the constitution of India. This concept was shaped further in various decisions of the High Courts and the Supreme Court.

The other integral part of the right to life is right to livelihood as enumerated in the Olga Tellis case, which is again an extension of the right to life envisaged under Article 21 of the Indian Constitution. In this case, the court said that to deprive a person of his right to livelihood would mean depriving him of his life.

Directive Principles of State Policies

The directive principles of state policies are the ideals which it creators of our constitution wanted the government to keep in mind while making any policy or law. Article 48A gives the directive principle defines that the government should act or make policies in such a way that it protects and improve the environment and safeguard the forest and wildlife. By the 42nd constitutional amendment, the government added article 48A. This article obligates the state to promote and secure the environment for its citizens.

Although the DPSPs are not enforceable by law, as provided under Article 37 of the constitution of India, in recent cases the judges treated them almost on par with the fundamental rights. In M.C. Mehta v State of Orissa, it the court held that the provisions highlight the national consensus on the importance of environmental protection and improvement and laid the foundation for a jurisprudence of environmental protection. While deciding the Sher Singh vs State of Himachal Pradesh, the court stated that every citizen of Indian has the right to a healthful, clean and decent environment and ordered the government and its agencies to undertake sweeping measures to reduce the population, including random pollution checks, and restricting transport in certain areas to compressed natural gas and electric buses.

Fundamental Duties

Citizens are as responsible for the environment as the government. Following the guidelines of the Stockholm Conference in 1972, India incorporated the Article 51A (g), through the 42nd Constitutional Amendment Act. Article 51A provides the fundamental duties of the citizens of India, and its subsection (g) provides the duty of a citizen to protect and improve the natural environment. Article 51A(g) provides that the current generation was intended not to destroy but to use nature according to one’s capacity to repay. Further man is a guardian of nature for the future generation to come and to the grabber, who may rob what he can.

The high court of Orissa, in the case of M.C Mehta v. the State of Orissa, has mentioned that Article 48-A and 51-A(g) lay down the foundation for the jurisprudence of environmental protection binding the state and citizens alike to protect and improve the environment. In the case of M.C Mehta v. Kamal Nath, the Supreme Court has rightly pointed out that Article 48-A and 51-A (g) has to be interpreted in the light of Article 21. This means any disturbance of any of the element of the environment namely air, water and soil, which are necessary for ‘life’ would be hazardous for ‘life’ within the meaning of Article 21.

Principles of Environmental Laws

The courts, through various decisions, incorporated the principles of environmental laws and have combined a liberal view towards ensuring social justice and the protection of human rights. These principles have played a key role in decisions of judges even when not explicitly mentioned in the concerned statute. some of these principles are-

  1. Precautionary Principle
  2. Polluter Pays Principle
  3. Sustainable Development and Intergenerational Equity
  4. Public Trust Doctrine

1. Precautionary Principle

This principle is also known as the principle of precautionary action. At the point when an activity raises dangers of damage to human wellbeing or the environment, cautionary steps ought to be taken regardless of whether some cause and effect relations are not completely established. For the first time in Vellore Citizens Welfare Forum case, the Supreme Court explicitly recognized the precautionary principle as a part of Indian environmental law. In Shrimp Culture Case, the Supreme Court required the authority to deal with the situation created by the shrimp industry and issued remedial directions consistent with the precautionary and polluter pays principles. Applying this principle the court, in the Narmada Bachao Andolan case, explained that if there is a state of uncertainty due to lack of data or material, about the damage or pollution likely to be caused. To maintain the ecology balance, the burden of proof that the balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution.

2. Polluter Pays Principle

The Polluter Pays Principle imposes liability on a person who pollutes the environment to pay for the damage caused and to bear all cost to return the environment to its original state regardless of the intent. With the introduction of the principle of absolute liability in M.C Mehta v Union of India, the supreme court calculates environmental damages but through an examination of the situation, keeping in mind factors such as the deterrent nature of the award. In the case of M.C. Metha vs Kamal Nath, the court held that pollution is a civil wrong and is a tort committed against the community as a whole. Thus the person guilty of causing pollution has to pay damages for the restoration of the environment and ecology.

3. Sustainable Development and Intergenerational Equity

Sustainable development is a concept in which development is done without compromising the future. In Narmada Bachao Andolan case, the apex court stated that sustainable development means a development which can be sustained by nature or ecology with or without mitigation. Overturning the traditional concept that the development and ecology were opposite to each other, the court in Vellore Citizen’s Welfare Forum case, adopted the concept of sustainable development. Again in the Taj Trapezium Case, the court held that development of the industry is essential for the economy but at the same time, the protection of the ecosystem and the environment is also essential.

4. Public Trust Doctrine

The government under the Article 48A of the Indian constitution is a trustee to protect and improve the environment and safeguard the ecology of the country. In M.C. Mehta vs Kamal Nath, the court held that certain common properties such as rivers, forests, seashores and the air are held by the government in trusteeship for the free and unimpeded use of the general public. Allowing lease to a motel established at the bank of the River Beas would interfere with the natural flow of the water and that the State Government had breached the public trust doctrine. In M.I Builders Pvt Ltd vs Radhey Shyam Sahu, the apex court held that the state, is a trustee of all the natural resources, was under a legal obligation to safeguard them; and that the resources were for public use and cannot be transferred to private ownership.

Conclusion

In modern times, justice has to address social realities and meet the demands of time. Safeguarding the environment, yields up lots of problems for a developing nation like ours. Through landmark and unconventional decisions, the judiciary showed its concerns towards the protection of environment and ecology of the country. Judicial activism in India provides a force to the campaign against environmental pollution, which encouraged the citizens to get involved in the judicial process. There is an urgent call to regulate laws acknowledging the fact that those who pollute or destroy the environment or ecology are not just committing a crime against nature, but are violating human rights as well. The progress of the relationship between human rights and environment would enable the fusion of human rights principles within an environmental scope, such as anti-discrimination standards, the need for social support and the protection of defenseless groups.

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