Judicial Activism And Environment

In Environmental litigation, “Judicial Activism” signifies the anxiety of courts to find out appropriate remedies for environmental maladies. At the global level, the right to live is now recognised as a fundamental right to an environment adequate for the health and being of human beings. In the context of such developments in the international scenarios, the judicial decisions in India are particularly worth examination. Justice V.R. Krishna Iyer held in Ratlam Municipality vs. Vardhichand, (AIR 1980 SC 1622) that “the human rights calling for the unpolluted environment must be implemented irrespective of financial constraints. The public nuisance because of pollutants is a challenge to the social justice component of the rule of law.”

Meaning:- Earlier, in England, there were kinds of courts namely: Equity Courts (Court of Chancery) and Common Law Courts. Equity courts used to decide cases applying the principles of equity i.e. justice, equity and conscience. Whereas the common law courts used to decide cases basing on common law i.e. the principles/ rules evolved by the judges during judicial pronouncements. Hence, the common law is also known as the “Judge-made law”. The courts of Equity/Chancery played a significant role in formulating the rules of law. The common law originated in England had spread to British Colonies including India. In India, almost all laws are originated from British Common Law. In the absence of relief in certain cases due to the defective procedure, the courts of equity or chancery form new rules. The new rules formulated to settle the conflicting, questions are called “Judicial Activism”. The equity courts and common law courts were merged with the passing of the Judicature Act, 1875.

Judicial Activism in India: The significant feature of the Indian Constitution is partial separation Of powers. The doctrine of separation of powers was propounded by the French jurist, Montesquieu. It is partly in India since the executive powers are vested in the executive (President), legislative powers in the parliament and the judicial powers in the Supreme Court and the subordinate courts. The rule of separation of powers in India is simple. The three organs of the Government viz. the Executive, the Legislature and the Judiciary are not independently independent but inter-dependently independent. (The executive encroaches upon judicial power while appointing the judges of Supreme Court and the High Courts. Similarly, the Judiciary, by its review power examines the law passed by the legislature/parliament and the legislature also in respect of impeachment of the President).

Judicial Activism in India can be witnessed with reference to the review power of the Supreme Court under Art. 32 and High Courts under Art. 226 of the Constitution particularly in public interest litigation cases. The environmental pollutions which are the present global burning problem were brought in to the light 40 years ago. The Supreme Court played a crucial role in formulating several principles in environmental pollution cases. For instance, the principle of “absolute liability” as propounded in Oleum Gas Leak case, Public Trust Doctrine in Kamalnath Case, (1998 1 SCC 388) etc. Further, the Supreme Court is imposing maximum liability on the industrialists responsible for environmental pollution applying the polluter pays principle. The court also evolved the principle of “Preventive Rules”. The industrialists must strictly comply with the preventive rules to check and prevent environmental pollution. Further, the Supreme Court issued a variety of guidelines in various cases to prevent environmental pollution. E.g. Ratlam Municipality case, Oleum Gas Leak case, Ganga Pollution case etc.

Judicial Activism and Public Interest Litigation: The concept of “Public Interest Litigation” was initiated in Akhil Bhartiya Soshit Karmachari Sangh (Railway) vs. Union of India, (AIR1981 SC 298) by V. R. Krishna Iyer, J., wherein an unregistered association of workers were permitted to institute a writ petition under Article 32 of the Constitution for the redressal of common grievance. In simple words, public interest litigation means any public-spirited citizen can move/approach the Court for the public cause (in the interest of the public or public welfare) by filing a petition:

  1. In Supreme Court under Art. 32 of the Constitution;
  2. In the High Court under Art. 226 of the Constitution; and
  3. under Sec. 133 Cr.P.C. before the court of Magistrate.

Public interest litigation or social interest litigation today has great significance and drew the attention of all concerned. The traditional rule of “Locus Standi” that a person, whose right is infringed alone can file the petition, has considerably relaxed by the Supreme Court in its recent decisions. Now, the court permits public interest litigation at the instance of public-spirited citizens for the enforcement of constitutional or legal rights.

Justice Krishna Iyer in Fertilizer Corporation Kamgar Union vs. Union of India, (1981) enumerated the reasons for liberalisation the rule of Locus Standi:

  1. Exercise of State power to eradicate corruption may result in unrelated interference with an individual’s rights.
  2. Social justice warrants a liberal judicial review of administrative action.
  3. Restrictive rules of standing are the antithesis to a healthy system of administrative law.
  4. “Activism is essential for participative public justice”. Therefore, a public-minded citizen must be given an opportunity to move the court in the interests of the public.

Further, the Supreme Court in S.P. Gupta vs. Union of India, (AIR 1982 SC 149), popularly known as “Judge’s Transfer Case”, Bhagwati, J. firmly established the validity of the public interest litigation. Since then, a good number of public interest’s litigation petitions were filed.

            Relevant case law:

  1. C. Mehta and Another vs. Shri Ram Foods and Fertilizer Industries and others (M.C. Mehta vs. Union of India, AIR 1987 SC 1086 (Delhi/Oleum Gas Leak Case).
  2. Municipal Council, Ratlam vs. Vardhichand.
  3. Kamalnath vs. Union of India, (1997) 1 SSC 388.
  4. C. Mehta vs. Union of India, AIR 1988 SC 1115 (Ganga Pollution (Municipalities) case).
  5. Vellore Citizens Welfare Forum vs. Union of India and Others, AIR 1996 SC 2115.
  6. Kamalnath vs. Union of India: This case is of great public importance. In this case, the Supreme Court evolved “Public Trust Doctrine”. This case ventilated the misuse of political power in polluting the environment.

Kamalnath, the respondent/appellant in the instant case was a former Union Minister for Environment and Forests. It was published in the ‘Indian Express’ dated 25-2-96 under the caption “Kamalnath dares the mighty Beas to keep his dream afloat”. It means Kamalnath’s dream of having a span club, on the bank of the Beas in the shadow of the snow-capped Zanskar range has been materialised/fructified with the establishment of “Span Motels Pvt. Ltd.” In Kullu-Manali Valley. It provides span resorts for tourists. The club encroached 27.12 bighas of forest land before 1990. At that time, Kamalnath as a minister, by misusing his power, regularised the encroachment and gave it for lease in April 1994. After five months, the club started further constructions and began to dig the banks (with bulldozers and earth movers). If the work would be allowed, the course of river would be changed affecting the interests of the surrounding tribal, agriculturists and the forests land.

The principle laid down: In this case, the Supreme Court evolved “Public Trust Doctrine”, which envisages that all the Government lands and public places belong to the people i.e. the public property. The public property is vested in the Government for safe custody. Therefore, the Government is shouldered with the responsibility to protect the environment and public places. The court accused the appellant (Kamalnath) for exploiting the environment by breaching the trust of people being a responsible person.

Decision/Judgement: The Supreme Court condemned the act of Kamalnath and ordered to stop construction works on the said river bank and to reinstate to its previous/original position.

  1. M.C. Mehta vs. Union of India, AIR 1988 SC 1115 (Ganga Pollution (Municipalities) case):-

Facts in Brief: The river Ganga is very famous for its historical significance and religious importance and is considered most sacred by the Hindus. A number of cities, towns and villages belonging to U.P., Bihar, West Bengal etc. are located on the banks of the river.

The Ganga water got polluted as industrial wastes, chemical effluents, human excreta etc. are being discharged into the river. Further, a number of dead bodies are being thrown into the river at Kasi, with a belief that the dead persons would go to heaven directly since they consider Kasi as holy place and the river as sacred. The sewage water in huge quantities from Calcutta, Kanpur and other places is being discharged into the river. There is a cattle population of about 80,000 in Kanpur. The dung, fodder waste and other refuse from the cattle are released into the river. The sample of Ganga water at Kanpur was tested and was found not suitable for drinking purpose by the authorities (viz. U.P. Jal Nigam, U.P. Water Pollution Control Board, Central Leather Research Institute, etc.).

The petitioner M.C. Mehta, a practising advocate in the Supreme Court filed a public interest litigation petition in the Supreme Court under Article 32 of the constitution – against the Union of India, Kanpur Municipal Corporation and others for removal/prevention of public nuisance caused by the polluted Ganga water. The petitioner in his petition contended that the Kanpur Municipal Corporation failed to control/prevent the pollution under the Environment (Protection) Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974 etc. and prayed the court to direct the concerned authorities to take necessary steps.

Decision/Judgement: The Supreme Court allowed the petition and appreciated the petitioner for taking initiative and gave the following directions:

  1. The Kanpur Nagar Maha Palika was directed to take up following steps immediately:
  2. To shift the cattle causing public nuisance at dairies to outskirts of the city so as to prevent the release of wastes into the river;
  3. To improve the sewage system and construct public lavatories and urinals in the slum areas;
  4. To abandon the practice of throwing corpses (dead bodies) and semi-burnt corpses into the river.
  5. To the High Court’s not to grant stay orders liberally to the industrialists and polluters and avoid delay in disposal of the cases;
  6. To the Government not to issue licences to new industries and refuse renewal of licences unless they strictly comply with the provisions and establish effluent treatment plants;
  7. To the central Government to direct all educational institutions throughout India to arrange to teach at least one hour in a week on “protection and improvement of environment”;
  8. The Supreme Court made it clear that this decision is also applicable to all other Maha Palikas and Municipalities in the country.
  9. Vellore Citizens Welfare Forum vs. Union of India and Others, AIR 1996 SC 2115:

It is a leading case in which the Supreme Court critically analysed the relationship between environment and development and has given its approval to “sustainable development” rather than “absolute development or development at all costs”.

Facts of the case in brief: The petitioner, Vellore Citizens Welfare forum filed a public interest litigation petition under Art. 32 of the Constitution against the large scale pollution caused to the river. Polar due to the discharge of untreated effluents by tanneries and other industries in the State of Tamil Nadu. The discharge released towards agricultural fields, roadside waterways and open places reaches ultimately into the river Polar, which is the main source of water for the surrounding people. The water is polluted to that extent that drinking water is not available.

The Tamil Nadu Agricultural University Research Centre, Vellore, found that nearly 35,000 hectares of agricultural land in the tanneries belt has become either partially or totally unfit for cultivation and the same was confirmed by an expert committee. It was argued that tannery business is a major foreign exchange earner and hence should not be abolished. Then, the question arose, whether tannery business is encouraged for monetary considerations at the cost of the lives of lakhs of people? The Supreme court appointed an expert committee to report on the matter. The committee after examining the factual position submitted its report.

Decision/Judgement: The Supreme Court, after examining the report delivered its judgement making all efforts to maintain a balance/harmony between economic development of the people on one hand and welfare of the people on the other. The court admitted that the leather industry in India is a major foreign exchange earner and also providing employment to thousands of people. But it destroys the ecology and environment and poses a health hazard. Hence, it cannot be permitted to continue with the present condition unless necessary steps are taken by the tannery industries to prevent pollution.

Further, the Supreme Court made it clear, that the traditional concept, “development and ecology are opposed to each other” is no more acceptable, and “Sustainable Development” is the answer. The expression “Sustainable Development” means “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. It is a balancing concept between ecology and development.

The court delivered the judgement in favour of the petitioners. Following are the main points of the judgement:

  1. The court directed the Central Government to appoint an authority headed by a retired High Court Judge, to examine the situation created by tanneries and other industries in the State of Tamil Nadu.
  2. The polluter shall pay compensation to the aggrieved and to revise the damaged environment. The authority shall order to close the industry if the polluter evades or refuse to pay the compensation or fails to set up pollution control devices viz., Effluent Treatment Plant etc.
  3. All the tanneries in 5 districts shall pay fine @ Rs. 10,000/- each before 31-10-1996 in the office of the Collector/District Magistrate. The amount shall be deposited under the head “Environmental Protection Fund” and shall be payable to the affected persons as compensation.
  4. The Supreme Court recommended the constitution of Green Bench in the Madras High Court to decide environmental cases.
  5. The court appreciated the petitioner, M.C. Mehta, Advocate, Supreme Court for taking initiative in this regard and directed the Govt. of Tamil Nadu to pay Rs. 50,000/- to the petitioner towards the legal fee.

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