Professor Upendra Baxi, who has often supported judicial activism in India, has also said that the “Supreme Court of India” has often become “Supreme Court for Indians”. Many observers of the Indian Supreme Court including Professor Sathe and Baxi have rightly opined that the Indian Supreme Court is one of the strongest courts of the world. Power and judicial activism of the Indian courts have resulted into a strong and ever expanding regime of fundamental rights. Stockholm Conference on Human Environment, 1972, has generated a strong global international awareness and in India it facilitated the enactment of the 42nd Constitutional Amendment, 1976. This amendment introduced certain environmental duties both on the part of the citizens [Article 51A (g)] and on the state (Article 48-A).
Under the constitutional scheme the legal status of Article 51(A)-(g) and 48-A is enabling in nature and not legally binding per se, however, such provisions have often been interpreted by the Indian courts as legally binding. Moreover, these provisions have been used by the courts to justify and develop a legally binding fundamental right to environment as part of right to life under Article 21. Hereinafter, an effort was made to demonstrate that both the ‘soft’ and ‘hard’ international environmental laws were used by the Indian courts to develop a strong environmental jurisprudence in domestic law.
The deemed Second Period of Judicial Adoption (1985-1995) was of growing Influence of International Environmental Law globally as well as on national level. During this period international environmental law was used to interpret the character of state obligations with respect to the right to life (Article-21), which was interpreted to include the right to a healthy and decent environment.
Before 1996 there were very few references to international environmental treaties though by 1990 India was party to more than 70 multilateral treaties of environment significance .In Asbestos Industries Case the Supreme Court extensively quoted many international laws namely ILO Asbestos Convention, 1986, Universal Declaration of Human Rights, 1948, and International Convention of Economic, Social and Cultural Rights, 1966. In this case the court dealt the issues relating to occupational health hazards of the workers working in asbestos industries.
The court held that right to the health of such workers is a fundamental right under article 21 and issued detailed directions to the authorities. In the Calcutta Wetland Case the Calcutta High Court stated that India being party to the Ramsar Convention on Wetland, 1971, is bound to promote conservation of wetlands.
Important Landmark Judgments by Judiciary
- Sanitation in Ratlam: In a landmark judgment in 1980, the Supreme Court explicitly recognized the impact of a deteriorating urban environment on the poor. It linked basic public health facilities to human rights and compelled the municipality to provide proper sanitation and drainage
- Doon Valley Quarrying: In 1987, the Rural Litigation and Entitlement Kendra, on the behalf of residents of the Doon valley, filed a case in the Supreme Court against limestone quarrying. This case was the first requiring the Supreme Court to balance environmental and ecological integrity against industrial demands on forest The courts directed the authorities to stop quarrying in the Mussoorie hills
- Gas leak in Shriram Factory: In the historic case of the oleum gas leak from the Shriram Food and Fertilizer factory in Delhi, in 1986, the Supreme Court ordered the management to pay compensation to the victims of the gas The “absolute liability” of a hazardous chemical manufacturer to give compensation to all those affected by an accident was introduced in this case and it was the first time compensation was paid to victims.
- Construction in Silent Valley: In 1980, the Kerala High Court threw out a writ filed by the Society for the Protection of the Silent Valley seeking a ban on construction of a hydro-electric project in the valley. However, despite an unfavorable judgment, active lobbying and grassroots action by environmentalists stopped the
- In 1985, Activist-Advocate M C Mehta filed a writ petition in the Supreme Court to highlight the pollution of the Ganga by industries and municipalities located on its In a historic judgment in 1987, the court ordered the closure of a number of polluting tanneries near Kanpur. Justice E S Venkataramiah, in his judgment, observed: “Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence.”
- Mining in Sariska: A writ petition was filed in the Supreme Court in 1991 by the Tarun Bharat Sangh to stop mining in the Sariska wildlife sanctuary. The court banned mining in the sanctuary.
- Against vehicular pollution in India the Supreme Court delivered a landmark judgment in 1992. A retired Judge of the Supreme Court was appointed along with three members to recommend measures for the nationwide control of vehicular pollution. Orders for providing Lead free petrol in the country and for the use of natural gas and other modes of fuels for use in the vehicles in India have been passed and carried out. Lead-free petrol had been introduced in the four metropolitan cities from April 1995; all new cars registered from April 1995 onwards have been fitted with catalytic converters; COG outlets have been set up to provide CNG as a clean fuel in Delhi and other cities in India apart from Euro 2 norms. As a result of this case, Delhi has become the first city in the world to have complete public transportation running on CNG.
- In the State of Himachal Pradesh, Span motel, owned by the family members of Shri Kamal Nath, Minister for Environment and Forests, Govt. of India diverted the Course of river Beas to beautify the motel and also encroached upon some forest land. The apex court ordered the management of the Span motel to hand over forest land to the of Himachal Pradesh and remove all sorts of encroachments.
- The Court delivered a landmark judgment and established the principle of exemplary damages for the first time in India. The Court said that the polluter must pay to reverse the damage caused by his act and imposed a fine of Rs Ten Lakhs (Rs 10,00,000) onthe Span motel as exemplary damages. The Supreme Court of India recognized Polluter Pays Principle and Public Trust Doctrine.
- Despite Coastal Zone Regulation Notification of February 1991, none of the coastal states had formulated coastal zone management plan, with the result that haphazard construction and industrial activity was being permitted anywhere in the coast leading to large scale damage to coastal ecology and loss of livelihood to lakhs of fishermen and other indigenous communities dependent on marine resources. A writ petition was filed on behalf of Indian Council for Enviro- Legal Action (ICELA) and the Supreme Court delivered a landmark Judgement banning industrial/ construction activity within 500 mtrs of the High Tide Line and set a time limit for the coastal states to formulate coastal management plans.
Many more such cases could be added from the history of Indian Judiciary which are more vocal in support of Environment and healthy life than other pillars of Indian Democracy. They have capitalized the provisions mentioned in the constitution itself while taking advantage of cardinal principles of International treaties and conventions.
Reasons for Judicial Activism In Protection Of Environment
The year 1972 holds significance for the Environment Jurisprudence as it has changed the course of action altogether. The Stockholm conference is a milestone from where this country and other developing countries had to look at the environment from different perspectives.
United Nations Conference on the Human Environment, having met at Stockholm from 5 to 16 June 1972, having considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment. They have set some illuminated and cardinal principles to be observed while interacting with nature for man-made development. At the end of the summit, following principles were adopted-
- Human rights must be asserted, apartheid and colonialism must be condemned
- Natural resources must be safeguarded
- The Earth’s capacity to produce renewable resources must be maintained
- Wildlife must be safeguarded
- Non-renewable resources must be shared and not exhausted
- Pollution must not exceed the environment’s capacity to clean itself
- Damaging oceanic pollution must be prevented
- Development is needed to improve the environment
- Developing countries therefore need assistance
- Developing countries need reasonable prices for exports to carry out environmental management
- Environment policy must not hamper development
- Developing countries need money to develop environmental safeguards
- Integrated development planning is needed
- Rational planning should resolve conflicts between environment and development
- Human settlements must be planned to eliminate environmental problems
- Governments should plan their own appropriate population policies
- National institutions must plan development of states’ natural resources
- Science and technology must be used to improve the environment
- Environmental education is essential
- Environmental research must be promoted, particularly in developing countries
- States may exploit their resources as they wish but must not endanger others
- Compensation is due to states thus endangered
- Each nation must establish its own standards
- There must be cooperation on international issues
- International organizations should be
The Government of India was though signatory at later stage but strong votary of protection as agreed upon. Post 1972, The National Governments had pursued the development path in much vigour and command but less interested in protection of environment and ecology.
Somewhere around 1982, the concept of Public Interest Litigation was gaining importance due to recognition given by Honourable Judge like P.N. Bhagvati. Government had made no comprehensive plan, laid out industrialization and on the other hand , vested groups had eye on green lands and cheap natural resources without taking any ethical and social responsibility against those communities who protected and maintained such valuable ecological balance.
The Supreme Court of India came to the rescue for the plights of those people who either had to migrate to some other places due to mining or industry or were facing the ill effects of any activity. Before the Pro-active role of Indian Judiciary, Government had no mechanism to deal with such situations.
No comprehensive law existed prior to 1986. The Environment Protection Act came into existence in 1986 after 14 years of the Stockholm Conference. Though the Water Act, 1974 and Air Act, 1981 were there but they were insufficient to deal with.
Indian Judiciary, especially, the Supreme Court of India had consolidated the environment Jurisprudence on case to case basis and developed some outstanding principles to be followed by lower courts while dealing with environment cases. They have tried to fill the vacuum created by the legislature and paralyzed by administrative machinery. Indian Judiciary have got the necessary impetus from Civil Society’s activism in environment protection, some stalwarts like
M.C. Mehta, International Conventions like Earth Summit, Kyoto Summit, which maintained the focus of such issues among the business of the Governments.
The interpretation by the Indian Judiciary in favour of marginalized people while counting protection of environment as investment by the community lives by the side of nature and entrepreneur has to share economic fruits with those communities as ecological balance contributed to the industrial output also. Such strong ethical and legal backing provided by Indian Judiciary has modelled the whole Environment movement in India and now they are leading the world. Indian Environment jurisprudence shaped by and large by the Indian Judiciary within the Indian Constitution is a major achievement after the Stockholm conference. Many more things yet to be done and many strictures, comments and orders have yet to be followed by different governments in this country.
The failure of the state agencies to effectively enforce the environmental laws apart from non-compliance with statutory norms by the polluters resulted into further degradation of the
environment which has affected the health of the people and forced the environmentalists and the residents of polluted areas as well as the non-governmental organizations to approach the judiciary, particularly the higher judiciary, for the suitable remedies. Of course the initiative for the protection of the environment came from the legislature but the failure of the executive to implement the environmental laws in India created the ground for the intervention of the judiciary.
The judiciary made several attempts to resolve the conflict between the development and environment. The environmental jurisprudence in India developed through the instrument of Public Interest Litigation (PIL).
Under the PIL, the judiciary liberalized the concept of locus standi and thereby empowered the people to approach the judiciary when the public interest is harmed by either the action of the state, organization or individual. Unique feature of the Indian environmental jurisprudence is the important role played by the PIL. The activism of the higher judiciary regarding the cases related with violation of environment and human rights has acquired the name of judicial activism. The Supreme Court has not only played a leading role in the implementation of environmental laws but also interpreted the right to life under Article 21 to include a right to healthy and pollution free environment, as a fundamental right.