| > | | | | interfere. In Subhash Kumar v. State of Bihar,[10] |
| Around 1980, the Indian legal system, particularly | | | | the Supreme Court upheld that affected persons |
| the field of environmental law, underwent a sea | | | | or even a group of social workers or journalists, |
| change in terms of discarding its moribund | | | | but not at the instance of a person or persons |
| approach and instead, charting out new horizons | | | | who had a bias or personal grudge or enmity |
| of social justice. This period was characterized by | | | | could initiate PIL for environmental rights. |
| not only administrative and legislative activism but | | | | The apex court in landmark judgement of |
| also judicial activism | | | | S.P.Gupta v. Union of India,[11] elucidated in the |
| Prior to 1980s, only the aggrieved party could | | | | following words: |
| personally knock the doors of justice and seek | | | |
but we must hasten to make it clear that |
| remedy for his grievance and any other person | | | | the individual who moves to court for judicial |
| who was not personally affected could not do so | | | | redress in cases of this kind must be acting bona |
| as a proxy for the victim or the aggrieved party. | | | | fide with a view to vindicating the cause of justice |
| But around 1980, the Indian legal system, | | | | and if he is acting for personal gain or private |
| particularly the field of environmental law, | | | | profit or out of political motivation or other oblique |
| underwent a sea change in terms of discarding its | | | | consideration, the court should not allow itself to |
| moribund approach and instead, charting out new | | | | be activised at the instance of such person and |
| horizons of social justice. This period was | | | | must reject his application at the threshold
|
| characterized by not only administrative and | | | | The right to humane and healthy environment is |
| legislative activism but also judicial activism. | | | | seen indirectly approved in the MC Mehta group |
| In a modern welfare state, justice has to address | | | | of cases, decided subsequently by the Supreme |
| social realities and meet the demands of time. | | | | Court. |
| Protection of the environment throws up a host | | | | The first MC Mehta case[12] enlarged the scope |
| of problems for a developing nation like ours. | | | | of the right to live and said that the state had |
| Administrative and legislative strategies of | | | | power to restrict hazardous industrial activities for |
| harmonization of environmental values with | | | | the purpose of protecting the right of the people |
| developmental values are a must and are to be | | | | to live in a healthy environment. Although the |
| formulated in the crucible of prevalent | | | | second MC Mehta case [13]modified some of the |
| socio-economic conditions in the country. In | | | | conditions, the third MC Mehta case[14] posed an |
| determining the scope of the powers and | | | | important question concerning the amount of |
| functions of administrative agencies and in striking | | | | compensation payable to the victims affected by |
| a balance between the environment and | | | | the leakage of oleum gas from the factory. The |
| development, the courts have a crucial role to | | | | Court held that it could entertain a petition under |
| play. Principle 10 of the Rio Declaration of 1992 | | | | Article 32 of the Constitution and lay down the |
| specifically provides for effective access to | | | | principles on which the quantum of compensation |
| judicial and administrative proceedings, including | | | | could be computed and paid. This case is |
| redress and remedy.’ | | | | significant as it evolved a new jurisprudence of |
| The judiciary’s anxiety for combating | | | | liability to the victims of pollution caused by an |
| environmental assaults has already been well | | | | industry engaged in hazardous and inherently |
| elucidated. Its concern for the maintenance and | | | | dangerous activities. The fourth MC Mehta case |
| preservation of forests, one of our depleting | | | | [15]was regarding the tanning industries located on |
| natural resources has also been highlighted. | | | | the banks of Ganga was alleged to be polluting |
| Public Interest Litigation (PIL) has come to stay in | | | | the river. The Court issued directions to them to |
| India. "Public Interest Litigation means a legal action | | | | set up effluent plants within six months from the |
| initiated in a court of law for the enforcement of | | | | date of the order. It was specified that failure to |
| public interest or general interest in which the | | | | do so would entail closure of business. |
| public or class of the community have pecuniary | | | | The four MC Mehta cases came before the |
| interest or some interest by which their legal | | | | Supreme Court under Article 32 of the |
| rights or liabilities are affected."[1] | | | | constitution on the initiative of the public-spirited |
| Contrary to the past practices, today a person | | | | lawyer. He filed the petitions on the behalf of the |
| acting bona fide and having sufficient interest can | | | | people who were affected or likely to be |
| move the courts for redressing public enquiry, | | | | affected by some action or inaction. The |
| enforcing public duty, protecting social and | | | | petitioner had no direct interest in the subject and |
| collective rights and interests and vindicating public | | | | had suffered no personal injury. Still standing |
| interest. In course of time there has been a wave | | | | to sue’ was not raised at the threshold |
| of environmental litigation. | | | | question to be decided by the Court. |
| At present most environmental actions in India | | | | The Supreme Court has further expanded |
| are brought under Articles 32 and 226 of the | | | | Right to life’ in recent years. In |
| Constitution. The writ procedure is preferred over | | | | Consumer Education and Research Centre v. |
| the conventional suit because it is speedy, | | | | Union of India,[16] the Court said, |
| relatively inexpensive and offers direct access to | | | | Social security, just and humane conditions of |
| the highest courts of the land. Nevertheless, class | | | | work and leisure to workmen are as a part of his |
| action suits also have their own advantages. The | | | | meaningful right to life
|
| powers of the Supreme Court to issue directions | | | | The court held that this fundamental right to |
| under Article 32 and that of the high courts under | | | | health and medical aid should continue even after |
| Article 226 have attained greater significance in | | | | retirement. Significantly, the Court said that in |
| environmental litigation. Courts have made use of | | | | appropriate cases, appropriate directions could be |
| these powers to remedy past malafides and to | | | | issued to the state or private employer with a |
| check immediate and future assaults on the | | | | view to protecting the environment, preventing |
| environment. | | | | pollution in the workplace safeguarding the health |
| The formulation of certain principles to develop a | | | | of the workmen or preserving free and unpolluted |
| better regime for protecting the environment is a | | | | water for safety and health of the people. |
| remarkable achievement. In the Bhopal Gas | | | | Directions were issued to the asbestos industry, |
| case,[2] the Supreme Court formulated the | | | | and the union and state authorities are meant to |
| doctrine of absolute liability for harm caused by | | | | fill up the yawning gaps in the interpretation of the |
| hazardous and inherently dangerous industries by | | | | law. |
| interpreting the scope of the power under Article | | | | The concept of compensation for environmental |
| 32 to issue directions or orders which ever may | | | | degradation has evolved at a snail’s pace |
| be appropriate in appropriate proceedings. | | | | over a period. It started with the strict liability |
| According to the Court, this power could be | | | | principle followed by the absolute liability principle |
| utilized for forging new remedies and fashioning | | | | and then compensation under Article 32 and finally |
| new strategies. | | | | the polluter pays principle’. |
| These directions were given by courts for | | | | The polluter pays principle’ means two |
| disciplining the developmental processes, keeping in | | | | things: |
| view the demands of ecological security and | | | | 1. The polluter should pay for the administration of |
| integrity. In one of the earlier cases, Rural | | | | the pollution control system; |
| Litigation Kendra,[3] that posed an environment | | | | 2. The polluter should pay for the consequences |
| development dilemma, Supreme Court gave | | | | of the pollution |
| directions that were necessary to avert an | | | | This concept was further elaborated in the Vellore |
| ecological imbalance, such as constitution of | | | | Tanneries Pollution case,[17] as follows: |
| expert committees to study and to suggest | | | | The Pollluter Pays Principle as interpreted by |
| solutions, establishment of a monitoring | | | | this court means that the absolute liability for |
| committee to oversee afforestation programmes | | | | harm to the environment extends not only to |
| and stoppage of mining operations that had an | | | | compensate the victims of pollution but also the |
| adverse impact on the ecology. | | | | cost of restoring the environmental degradation. |
| The rights to livelihood and clean | | | | Remediation of the damaged environment is part |
| environment’ are of grave concern to the | | | | of the process of Sustainable |
| courts whenever they issue a direction in an | | | | Development’ and as such the polluter is |
| environmental case. In CERC’s | | | | liable to pay the cost to the individual sufferers as |
| case,[4]Labourers engaged in the asbestos | | | | well as the cost to the individual sufferers as well |
| industry were declared to be entitled to medical | | | | as the cost for reversing the damaged |
| benefits and compensation for health hazards, | | | | ecology. |
| which were detected after retirement. Whenever | | | | The society shall have to prosper, but not at the |
| industries are closed or relocated, labourers losing | | | | cost of the environment and in the similar vein, |
| their jobs and people who are thereby dislocated | | | | the environment shall have to be protected but |
| were directed to be properly rehabilitated. The | | | | not at the cost of development of the society. |
| traditional rights of tribal people and fisherman are | | | | The need of the hour is to strike a balance |
| not neglected when court issue directions for | | | | between the two i.e., development on one side |
| protection of flora and fauna near sanctuaries or | | | | and pollution free environment on the other. A |
| for management of coastal zones.[5] | | | | process by which development can be sustained |
| In L.K.Koolwal v. State of Rajasthan,[6] the | | | | for generations by improving the quality of human |
| Rajasthan High Court observed that a | | | | life while at the same time living in harmony with |
| citizen’s duty to protect to protect the | | | | nature and maintaining the carrying capacity of life |
| environment under Article. 51-A(g) of the | | | | supporting eco-system. It focuses at integration |
| Constitution bestows upon the citizens the right to | | | | of developmental and environmental imperatives. |
| clean environment. | | | | Thus, sustainable development is the only answer |
| The judiciary may go to the extent of asking the | | | | and administrative actions ought to proceed in |
| government to constitute national and state | | | | accordance therewith and not d’hors the |
| regulatory boards or environmental courts. In | | | | same. |
| most cases, courts[7] have issued directions to | | | | [1] Black’s Law Dictionary. |
| remind statutory authorities of their responsibility | | | | [2] AIR 1986 SC 1086 |
| to protect the environment. Thus, directions were | | | | [3] AIR 1985 SC 652 |
| given to local bodies, especially municipal | | | | [4] AIR 1995 SC 922 |
| authorities, to remove garbage and waste and | | | | [5] Pradeep Krishan v. Union of India, AIR 1996 |
| clean towns and cities.[8] | | | | SC 2140 |
| In Indian Council for Environ-legal Action v. Union | | | | [6] AIR 1988 Raj. 2 |
| of India,[9] Supreme Court felt that such | | | | [7] Vellore Citizens Welfare Forum v. Union of |
| conditions in different parts of the country being | | | | India, AIR 1986 SC 2715 |
| better known to them, the high courts would be | | | | [8] Dr BL Wadehra v. Union of India, AIR 1996 SC |
| the appropriate forum to be moved for more | | | | 594 |
| effective implementation and monitoring of the | | | | [9] AIR 1996 SC 1446. |
| anti-pollution law. | | | | [10] AIR 1991 SC 420. |
| The liberal use of PIL against assaults on the | | | | [11] AIR 1982 SC 1473. |
| environment does not mean that the courts, | | | | [12] AIR 1987 SC 985 |
| even if it is tainted with bias, ill will or intent to | | | | [13] AIR 1987 SC 982 |
| black mailing will entertain every allegation. This | | | | [14] AIR 1987 SC 1086 |
| amounts to vexatious and frivolous | | | | [15] AIR 1988 SC 1037 |
| litigation’. When the primary purpose for | | | | [16] AIR 1995 SC 922 |
| filing a PIL is not public interest, courts will not | | | | [17] (1996) 5 SCC 647. |