Shreya Singhal judgment and Internet Intermediaries in India

Eira Mishra

An analysis of the effect of Shreya Singhal judgment on Internet intermediaries in India

The Shreya Singhal judgment ((Shreya Singhal v. Union of India, WRIT PETITION (CRIMINAL) NO.167 OF 2012)), pronounced in March 2015, has been met with ambivalent reception on the stance of intermediary liability law in India. The first Public Interest Litigation (PIL) on the matter (with which several cases were subsequently joined) contested the constitutionality of Section 66A, 69A, 79 and 80 of the Information Technology Act, 2000 (hereinafter “the Act”) on the ground that these violate Articles 14, 19(1)(a) and 21 of the Constitution. Section 66A was plagued with several ambiguous terms like “grossly offensive”, “menacing character”, “annoyance”, “inconvenience”, “danger”, “insult”, “injury” and “ill will”. This section was held to assault the very soul of the freedom of expression guaranteed under Article 19(1)(a) and to not be saved by any of the reasonable restrictions under Article 19(2). It was consequently held unconstitutional. This decision was hailed as victory of freedom of speech and expression over draconian laws unfit for operation in a democracy.

The advent of internet has ushered in the need for law to constantly evolve with the new methods of communication and information dissemination growing every day. A critical question in this regard is the determination of liability of internet intermediaries. The other provisions of the Act contested were Section 69A, dealing with procedure for blocking of public access to websites and Section 79 which bestows immunity on intermediaries from liability in certain cases. The IT Act defines “intermediaries” ((Section 2(1)(w) of the Information Technology Act, 2000))to include telecom service providers, internet service providers, search engines, cyber cafes, etc. Any person or organisation facilitating storage or transmission of electronic records is included within the definition.

Clarification on Procedural Safeguards

Constitutionality of Section 69A of the IT Act was assailed on the basis that it did not provide for any pre-decisional hearing. The Supreme Court, on the other hand, has upheld the constitutional validity of the provision stating that ample safeguards akin to those laid down under Article 19(2) have been given under the section. These provide satisfactory guidance to authorities as to what content is liable to be blocked and to weed out misuse of the provisions. It further read pre-decisional hearing into the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 ((Hereinafter, the Blocking for Access Rules)), laid down under Section 69A (2) of the Act. This demolishes the prior regime of notice and take-down. Intermediaries usually complied with third-party notices even when the content was perfectly legitimate because they lacked the resources and the initiative to defend known/unknown originator’s content if litigation ensued. Provision of these clarifications is hailed as originators and intermediaries will now have a clear opportunity to make representation before the concerned committee and plead their case before their content is taken off the internet.

The apex court has read down these rules to mean that non-governmental agencies cannot easily force removal of content available on the internet. The government is conferred the responsibility to decide the lawfulness, or the lack of it, of the disputed content. Additionally, the Blocking for Access Rules have been read to mean that blocking order shall be provided to the intermediary in writing, stating reasons for issuing of the order. The intermediary has the right to appeal against the order in a writ petition under Article 226, contesting the reasons mentioned in it. This verdict will protect online content from being forcefully taken down due to indiscriminate notices against lawful content.

Rule 8 of the Blocking for Access Rules has been read to mean that pre-decisional hearing is granted not only to the intermediary but also to the originator of the content. The extension of opportunity to represent oneself advances accountability to the system set for blocking. However, this would require the Committee to locate and contact the originator, something which might not be strictly followed ((Chinmayi Arun, The Case of the Online Intermediary, THE HINDU, April 7, 2015, http://www.thehindu.com/opinion/op-ed/shreya-singhal-case-of-the-online-intermediary/article7074431.ece#comments)).  This sets a low threshold of accountability for the review committee. Mostly originators cannot be identified and intermediaries are not usually willing to appeal in a writ petition for anonymous person’s content.

The temporospatial extent of blocking orders is also burdened with ambiguities. There are no guidelines that state for how long and over what territory is the blocking order applicable. Another matter of concern is the confusion over frivolous complaints wherein no penalties have been imposed for false complaints and not rules discuss the recourse available to the intermediary to claim damages upon proof of vexatious complaints ((Jyoti Pandey, The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India? CENTRE FOR INTERNET AND SOCIETY, April 11, 2015, http://cis-india.org/internet-governance/blog/sc-judgment-in- shreya-singhal-what-it-means-for-intermediary-liability)).

Need for Transparency

The blocking procedure has still not been lit up with transparency. Rule 16 of the Blocking of Access Rules states that strict confidentiality shall be maintained with respect to complaints received and blocking orders passed. This is an “insidious form of censorship” and results in chilling effect of freedom of speech and expression. The court reiterates that an “informed citizenry” and a “culture of open dialogue” are integral to functioning of our democracy. Confidentiality is criticized because it abridges an originator and reader’s right to know that their content has been blocked by a government notice. In fact, many academics believe that blocked web content must carry a notice which lays down the reason behind the order and the authority issuing the order.

Keeping up with technology is quintessential. Creation of a digital version ((Supra note 4))of the traditional government notices is one of the ways to keep the public informed of government action taken and to provide affected persons with an opportunity to contest the ban. This would bring our procedure at par with due process.

Another way for public scrutiny of government blocking orders would involve imposing of a requirement on the central government to publish an annual report of online content blocked with reasons for the action. This would advance the cause of transparency and decrease arbitrariness on part of government.

Safe Harbour and Intermediaries

Section 79 of the Act attempts to create a “safe harbor” for intermediaries. It exempts intermediaries from liability for content hosted by them on conditions laid down under Sections 79(2) and 79(3). The intermediary is required to publish rules and regulations of usage, privacy policy and a user agreement for users of computer to abide by, as per conditions stated in Rule 3 of the Information Technology (Intermediaries guidelines) Rules, 2011. This requirement of “due diligence” under the Act has created a hostile working environment whereby arbitrary take-down notices are sent to intermediaries. As per the rules, intermediaries may decline to comply with the notice but they usually submit to these to avoid prolonged and costly litigation. However, prior research ((Rishabh Dara, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, CENTRE FOR INTERNET AND SOCIETY, April 27, 2012, http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on- internet))has shown that intermediaries prefer overbroad blocking over the risk of litigation.

The aforementioned process gives rise to privatization of censorship which is contrary to the very essence of the right to free speech and expression guaranteed by Article 19(1)(a). The liability imposed on platform companies for regulation of online activities of its users’ amounts to censorship-by-proxy which endangers both free speech and innovation. Thus Section 79, along with the Intermediaries Guidelines, 2011 was challenged in this case ((See also: Mouthshut.com v. Union of India, WRIT PETITION (CIVIL) NO. 217 OF 2013)). The court read down Section 79(3)(b) of the Act and Rule 3(4) of the Intermediaries Guidelines, 2011 to mean that whereas previously the intermediaries had to suo motu decide the lawfulness of the content, now it is essential to require passage of an actual court order or government notification for initiating a take-down.

Another pertinent issue is at the centre of this argument. Even though an expectation that intermediaries would monitor and regulate all content that flows though their channels is flawed, yet some level of cooperation is essential to ensure that harmful speech, such as child pornography, is expeditiously removed from the host site.

Conclusion

The Shreya Singhal judgment has granted a much needed sigh of relief on content originators, intermediaries and netizens in general. Intermediaries’ legal liabilities have been substantially lowered due to clarifications provided by the Supreme Court. This would act as a catalyst for businesses which are primarily based on the internet.

Upholding validity of Section 79 after reading down 79(3)(b) implies that intermediaries are not completely off the liability radar. They can harness this opportunity to build reliance on their user guidelines by issuing simple take-down policies for content which amounts to harassment, bullying or other misdemeanors, thereby minimizing the need to resort to judicial remedies.

Tracing official bias from Gullapalli to Doctrine of necessity

Palak Gupta, Student of Law, Gujarat National Law University

It is the spirit and not the form of law that keeps justice alive.  ~ Earl Warren.

Natural Justice is an important concept in administrative law. In the words of Megarry, J. ((John v. Rees, (1969) 2 All ER 274: (1970) 1 Ch D 345))it is ‘justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical.’ It is ethico- legal principle. The origin of this principle is from the case of king v. Chancellor where Justice Fortescue held that first hearing of human history happened in heaven in Garden of Eden. Even God himself gave the opportunity of hearing to Eden. Principles of Natural Justice are the law evolved along with the history of human. P.N. Bhagwati in the case of Maneka Gandhi v. UOI held that principles of Natural Justice are a universal law. It has been termed as fair play in action in case of Re K. (H)(an infant) by Lord Parker.

Principles of Natural Justice are based on two maxims Audi Alteram Partem and Nemo Judex in causasua. Courts are bound to follow these principles while giving judgment. Audi Alteram Partem means hear the other side. The principle of Nemo judex in causasua means that no person should be judge in its own cause.It means that an adjudicator should be disinterested and unbiased. Literally it means that no person should be judge in his own case. It means that justice should not only be done, but should also seem to be done. Bowen J. “ judges like Ceasar’s wife should be above suspicion”.

Bias may arise either due to pecuniary interest or personal interest. However small a pecuniary bias is, it should disqualify the judge from being a member of the tribunal. Personal bias may arise due to blood relations, marital relations, friendship or hostility. For this principal it is necessary to prove that there is a real likelihood of bias.

Official bias is the most impersonal kind of bias. The administration itself is usually a party in many departmental proceedings before bureaucratic authorities. Therefore, an authority may have official bias towards the department to which it is attached, in a dispute between the department and a private party, or may have a policy bias. His bias may be regarding pursuing the policy, which is followed by his department. So when an official acts as an adjudicator he can’t completely shed off his bias, nor can he be said to be totally impartial or neutral. The difficulty, which arises in this situation, is whether the official is to be disqualified from acting as an adjudicator because of policy bias. Exception to official bias is the Doctrine of Necessity.

English law: just a mere interest a minister has in a scheme would not disqualify her on the ground of bias. This was held in Franklin V Minister of town and country planning.

Indian Law- the principal accepted in India is that a mere official or policy may not necessarily be held to disqualify an official from acting as adjudicator. The criteria for him to be disqualified is that there is total non-application of mind on his part or he would have acted according to the directions given to him by his superior authority and has not decided the matter independently.

The present case of Gullapalli Nageshwara Rao is based on the question of inquiry. Whether the element of official bias can be seen when the minister being head of the department gave the hearing and approves the scheme?

Inquiries: Inquiry is to be held by the concerned authority before taking a decision, it may happen that one body makes the inquiry and, on its report, some other authority takes a decision. In such a case, the inquiry body has no power to decide, nor the inquiry report has any binding force by itself. But the inquiry report constitutes an important link in the chain of decision-making process.

A Question which in such case arise is whether an inquiry under a specific statute is administrative or quasi judicial in nature? Some inquiries have been held to be administrative and some quasi-judicial requiring application of the principles of natural justice.

Facts:

In India, the SC dealt with the question of official bias in this case. The facts of Gullapalli Nageshwara Rao v AP State Road Transport Corporation ((AIR 1959 SC 308,(1959) SCJ 967)), which is known as first Gullapalli case, are as follows: the petitioners were carrying on motor transport business for several years in Krishna district of Andhra Pradesh. The state transport undertaking published a scheme for nationalization of motor transport in the state from the date to be notified by the state government. It invited objections to the scheme. The petitioners, among others filed their objection to the scheme. The secretary of transport department gave a personal hearing to the objections and heard the representations made on behalf of the state transport undertaking. The entire material gathered by him was placed before the Chief Minister who approved the scheme. The approved scheme was subsequently published.

Procedural history

The petitioners assailed the constitutional validity of scheme under article 32 of the constitution before the SC on various grounds. The SC upheld the objections and quashed the order approving the scheme.

Contention by the One of the objections was that, the person who had initiated the scheme had also heard the objections. He was therefore, biased in favor of scheme, and hence could not have given fair hearing.

The court held that the hearing given by secretary clearly offended the principles of Natural Justice and, hence the proceedings involving the hearing were void. Another objection the court upheld was that since the hearings were held before one person and another gave the final decision, the rules of Natural Justice were violated. The majority held that since the ultimate decision taken after hearing both the sides was quasi judicial in nature, the functions of hearing and deciding could not be vested in two different persons.

Subsequent amendments

Under the amend act, a minister was required to decide upon a scheme. In Nageswara Rao v Andhra Pradesh ((AIR 1959 SC 1376, (1960) SCJ 53)), which is known as second Gullapalli case the competency of minister to give the hearing was challenged.

Appeal under article 226 of the constitution: Appellants moved to High Court for writs of certiorari to quash the order passed by the Government confirming the scheme and also to quash the subsequent orders made by the Regional Transport Authority canceling their stage carriage permits. HC rejected the petitions and appellant appealed.

Issues

  1. Whether a statute confers power on authority and imposes a duty on it to be a judge of its own cause or decide a dispute, which has official bias, the doctrine of bias is qualified to the extent of the statutory authorization?
  2. Whether the State Government, in the present case, acted in violation of the principles of Natural Justice?
  3. Whether the Chief Minister by his acts and speeches disqualified himself to act for the State Government in deciding the dispute?

Petitioner’s contention

  1. The chief minister who was in charge of transport department was incompetent to hear the objection as the same disability is attached to him, which was attached to the Secretary in charge of the Transport Department on the previous occasion.
  2. The Chief Minister by his acts, such as initiating the scheme, and speeches showed a clear bias in favor of the Undertaking and against the private bus operators and therefore on the basis of the principles of natural justice accepted by this Court, he was precluded from deciding the dispute between the said parties.
  3. Any kind of bias, whether financial or other, for or against any party, or any position that might impute bias, in a judicial authority, must disqualify him as a judge. But when a State Legislature or the Parliament violates the aforesaid principals, such statute, unlike one passed by the English Parliament, has to stand scrutiny in the light of the fundamental rights enshrined in the Constitution.

Respondent’s Contention (Advocate General)

In this case he tried to distinguish between “official bias” of an authority, which is inherent in a statutory duty imposed on it and “personal bias” of the said authority in favor of, or against, one of the parties.

The Chief Minister of the Government cant be disqualified from deciding the dispute merely on the fact that he had supported the policy of nationalization, or even the fact that the Government initiated the said scheme unless it was established that he was guilty of personal bias, and however there was no legal proof establishing the said fact.

Principle accepted by counsel for both the sides

If a member of a judicial body is bias, it may be financial or any other in favor of, or against, any party to a dispute, or is in such a position that there is a likelihood of bias he ought not to take part in the decision or sit on the tribunal and that any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a judge, and any other interest if a reasonable suspicion of bias can be ascertained. These principles are applicable to quasi-judicial bodies too.

Judgment

 The judgment was delivered by Justice Subba Rao.

1. Regarding the first issue court referred two cases The King v Bath compensation and the king v Leicester Justices.

The decision in the first case was that unless the legislature clearly and expressly ordained to the contrary, the principals of Natural Justice can’t be violated. These decisions showed that in England a statutory invasion of the common law objection on the ground of bias is tolerated but invasion has to be strictly in conformity with the statutory exceptions. However in India, the law made by parliament or state legislature should be in concurrence with he fundamental rights, which are declared in part III of the constitution.

2. The question regarding that the chief minister acted in violation of natural justice, court rejected this argument mainly on two grounds:

  1. Since the appellants never raised the question regarding the competence of the Chief Minister to decide the objections on the last occasion and the court on that basis gave judgment. So now it is not open for petitioners at this stage to reopen the closed controversy or take a contrary position. It was also held that the minister was competent to give hearing even though he was the formal head of the transport department.
  2. There are no merits in this contention. It was held that there is a distinction between the position of a Secretary of the Department and the Chief Minister of the State. Under the constitution governor is to act on the advice of ministers headed by Chief Minister.

Under the constitution and the rules framed minister who is in charge of a department is primarily responsible for the disposal of the business pertaining to that department, but the entire ministry is responsible for the advice to the minister. But the position held by the Secretary of a department is different.

Though the Chief Minister made the formal orders, in effect and substance, the enquiry was conducted and personal hearing was given by one of the parties to the dispute itself. So the argument of the counsel that the Chief Minister is part of the department constituted as a statutory Undertaking under the Act cannot be accepted.

3. Whether the Chief Minister by his acts and speeches disqualified himself to act for the State Government in deciding the dispute?

It must be held that it has not been established by the appellants that the Chief Minister made the speeches indicating his closed mind on the subject of nationalization of bus transport in Krishna District. If these newspaper cuttings are excluded from evidence, the factual basis for the appellants’ argument disappears. We, therefore, hold that the Chief Minister was not disqualified to hear the objections against the scheme of nationalization.

Ratio:

In this case, the Supreme Court has clearly voted against the separation between the hearing and the decisional functions. Said the court, “if one person hears and another decides, the personal hearing becomes an empty formality ((I.P. Massey, administrative law (6th ed. 2003).)).” The Supreme Court decision emphasized on the fact that one who decides must hear.

Minority view

Sinha, CJ in his dissenting opinion, gave several reasons for his view that the function discharged by the government was administrative. First, no objective tests have been laid down for the consideration of the government, such terms as efficient, adequate, public interest, were matters of policy and opinion. Second, the idea of hearing prescribed by the statute was not to invite claims by the individual operators, but to collect information having a bearing on soundness and feasibility of the scheme. Third, the government was as much interested in the scheme as the undertaking, which was the creature and the limb of the government, and, therefore, there was no question of the government functioning as an adjudicating authority between the two rival claimants ((MP Jain & SN Jain, principles of administrative law(5th ed. 2007).)).

Criticism

It has been criticized primarily on the ground of impracticability in the modern administrative process.

A scholar pointed out that it is unrealistic to expect the CM to give the time required for a public hearing, which could adequately explore all facts and policy issues involved and permit all interested parties to appear. On the other hand, if the entire delegation to subordinate official conducting the hearing is given, the importance of the ultimate question may be highly undesirable, perhaps even unthinkable. Thus a government is faced with a dilemma whether the official with final deciding authority must himself conduct the hearing or unduly delegate a power of decision, which should be retained by the Chief Minister, or of seriously interfering with other duties of the Chief Minister.

The Gullapalli decision is not in concurrence with the governmental practice, and is also difficult to follow. The judicial view on this point remains ambiguous.

Subsequent cases in which exception was made to official bias by applying Doctrine of Necessity

In this case SC has made an exception to official bias. Here SC has made an exception by impliedly using doctrine of necessity. It has got expressed approval in subsequent cases from the courts, namely Ashok Kumar Yadav v State of Haryana (([1985] 4 SCC 417)), Tata Cellular v. UOI (([1994] 6 SCC 651)), and Election Commission of India v Dr. Subramanian Swamy (([1996] 4 SCC 104)).

In the case of Ashok Kumar Yadav v. State of Haryana, the State Public Service Commission did the decision about the selection process. This was challenged as according to Sec 3 (11) member of PSC by constitutional requirement has to mandatorily sit in the election process. The issue in this case was if the relative of member comes then is the selection process vitiated? SC held that even though bias is attracted in this case, but if the member doesn’t sit in the selection procedure then it would be unconstitutional as it will be in violation of Section 3(11) of the Act. SC by applying doctrine of necessity expressly declared that it is an exception to official bias. Reasonable suspicion of bias can be excluded if no substitution is possible.

In the case of Tata Cellular v. UOI, there was a tender for giving license for operating cellular mobile in 4 metros. The acceptance of tender made by evaluation committee has been challenged on the ground of bias. Director General of Telecommunication is the technical member of evaluation committee. His presence is required in evaluation of tender. His son who is working in one of the company has applied for license. So the committee has issued license to the son, the bias is thereby alleged. SC held that there is a remote bias. Bias in this case is not accepted. Here doctrine of necessity is applied, as no substitution is possible.

However it got a narrow view in the case of Election Commission of India v. Dr. Subramaniam Swamy. In this case it was held that mere necessity is not sufficient, but absolute necessity is required. Jayalalita was convicted in relation to land cases. Subramaniam who was a political opponent wrote a letter to Governor seeking for disqualification of Jaylalita by virtue of Article 191. Governor can act only on the basis of recommendation of Election Commission, so he referred the matter to EC. Jaylalita moved to HC, which held that EC can’t decide the matter, as there is personal bias because of friendship between EC & Subramaniam. Appeal was filed to Division Bench of HC. It held that single bench has erred in its decision. Appeal was filed to SC. SC agreed that there is chance of personal bias, but held that EC being 3 member body, constituting of CEC and 2 other members. So even if CEC is not present the other 2 members can decide the matter. But if there is division of opinion between the two members then only CEC will be called to decide the matter, only in case of absolute necessity.

Conclusion

This case is noteworthy as the Supreme Court made an exception by rejecting official bias and impliedly applied the doctrine of necessity. The doctrine of necessity got express approval in the case Askoh Kumar Yadav v State of Haryana, 1987. Further, the doctrine of absolute necessity was applied in the case Election Commission of India v.  Dr. Subramaniam Swamy, 1996.

Since Gullapalli I, the SC has continuously diluted the stance, which it has adopted in this case. For instance in Gullapalli II the court didn’t object to the procedure that the minister heard the objections in place of secretary, as he was not a part and parcel of the department, which is concerned in making the policy. According to the court, secretary is a part of department while the minister is only primarily responsible for the disposal of the business pertaining to that department. In subsequent cases the Supreme Court appears to have further relaxed its attitude on matters regarding disqualification, which arises from policy bias, and the court has shown a further liberal approach in this respect from the departmental point of view.

Environmental protection and role of judiciary in India

Anshu Bansal, Research Associate

Can Judiciary manage the Environment?

The role of the judiciary is really important as the role of mitochondria of a living human cell. Had the judiciary turned the deaf ear towards environmental problems it could not be in any way came to celluloid ((Mohindra Kothi, Environmental Protection vis-à-vis Judicial Activism, Waila and OIDA International Journal of Sustainable Development  (2010).)).

It is true that the major compelling force behind number of legislations can be attributed to the active role played by judiciary. Indian judiciary is the first in the row who developed the concept of right to healthy environment as a part of life under Article 21 of our constitution ((Bhandu Mukti Morcha v. Union of India, 1984 (3) SCC 161.)). One significant contribution of judiciary is to create a link between fundamental duty and fundamental right. In the case of Subhash Kumar vs. State of Bihar ((AIR 1991 SC 420.)), it was said that the environmental protection which previously was a fundamental duty under article 51(A) also came as a fundamental right under article 21 of the constitution of India. In this context, Public Interest litigation has emerged as one of the major tool for development of environmental jurisprudence.

In another case ((1995 AIHC 4168)), high court directed the defendants to control the noise pollution occurring from the loudspeaker drums in order to keep right to life which include right to noise free environment intact. In addition to this, Court has also held that in matters of environment, the burden of proof will lie on the party that wants to change the status quo ((S.P. Sathe , Judicial Activism in India  (2nd edition).)). In the Bhopal gas tragedy, the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industries by interpreting the scope of the power under Article 32 to issue directions or orders, whichever may be appropriate in appropriate proceedings. According to the court of law the power could be utilized for going new remedies and fashioning new strategies ((Rohan Bagai , Judicial Activism and environmental jurisprudence in India)).

Further, in 1998, the Indian Supreme Court, embracing its activist role, issued a controversial order suo moto mandating the conversion of the entire Delhi fleet of diesel-powered buses to compressed natural gas (CNG) ((Rosencranz, Armin, Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power, 28 Colum. J. Envtl. L. 223 (2003).)). Steadfast resistance from the agencies responsible for enforcing the court order has raised serious questions about the wisdom of this decision. Many opponents have disputed the reliability and practicality of CNG, arguing that the technology is still in development, making the conversion both risky and costly ((Id.)).

Legislations  supporting judiciary to take the matter seriously

M.C Mehta has pioneered legal activism for environmental protection and is proof that one man can make a difference ((M.C Mehta Environmental Foundation (MCMEF).)). With the Supreme Court of India taking the lead, the centre of gravity of justice has now shifted from traditional individual locus standi to the community orientation of public interest litigation ((S.K.Aggarwal, Public Interest litigation in India: A Critique, I.L.I., 1985)).

It is pertinent to point out here that the two provisions under Article 226 and 32 of constitution of India which provides gate for filing Public Interest Litigation or Writ petition in the High court and Supreme Court respectively are the two eyes of the judiciary. The increasing scope of these Articles is the immediate effect of various litigations filed in the respective court.  Under the banner of Public Interest Litigation (PIL) and the enforcement of fundamental rights under the Constitution, the higher courts have tried to rebalance the distribution of legal resources, increase access to justice for the disadvantaged, and imbue formal legal guarantees with substantive and positive content ((Chandra Pal, Environmental Protection And Emerging Trends In Judicial Responses, Central India Law Quarterly)).

However, constitution of India is not the only legislation which aids the activism of judiciary. There are other legislations which also provide for a platform for judicial intervention and aid judiciary to take the matter seriously. They are:

  • Civil procedure code which contains specific provisions which enabled two or more persons having a legitimate interest in the subject matter to seek remedy through court. The first one is under section 91 which provides for remedy for performing public wrong and another one is under section 92 which deals with remedying breaches of public trusts.
  • Under I.P.C ((Chapter XIV Sections 268 to 294A)), Chapter XIV (Sections 268 to 294A) provides provisions to punish the person who pollutes environment.
  • Chapter X, (Sections 133 to 146) and Chapter XI of Cr.P.C. also provides provisions for granting punishment to those who damage environment.

International conventions which support judiciary to take requisite actions

  • United Nations in its International Conference (1972) laid down its agenda as “to defend and improve the human environment for a present and future generation has become an imperative goal for mankind”. This Conference at Stockholm became the turning point for the development of environmental Jurisprudence.
  • Then there is the General Assembly Resolution in 1972 ((General Assembly’s Resolution of 5th December 1972, designating June 5th as World Environmental Day)), emphasizing the need for the active cooperation among the states in the field of human environment.
  • Earth Summit: The document produced at the Earth Summit has 40 chapters having 800 pages. Agenda 21 – a comprehensive programme of action for global action in all areas of sustainable development was also adopted.

Striking the balance between various rights of the citizen of India

It is the conflicting rights of the citizens which make it difficult for the state to strike a balance between various rights associated with different groups of people. For instance, under the right to life, drinking water is one of the fundamental requirements, but simultaneously the State is obliged to preserve the ground water or to restrict the use so that it can be prevented from being wasted. One the one hand, State has an obligation to protect the forest but at the same time it is also obliged to protect the tribal people whose livelihood is based on forest. State is bound to close down those industries, which are hazardous for the environment, but at the same time has to keep in mind the livelihood of the people who work there ((Supra note 1.)). In the Recent Lok Sabha Debate in Feb., 2013 it was discussed that development should not be at the cost of forests; development should not be at the cost of tribals.  Even the Tribal Affairs Minister has written to the Environment Minister saying that the Forests Rights Act is being violated in giving environmental clearance ((Discussion on the Motion of Thanks on the President’s Address to both Houses of Parliament assembled together on 21.02.2013, moved by Shri P.C. Chacko and seconded by Dr. Girija Vyas available at http://www.indiankanoon.org/doc/70144574/)).

Hence, it is indeed a difficult task to strike a balance between various rights related to different groups of people. It requires active participation of all the inhabitants. It is needed that people first make themselves acquainted with the prospective impact of the degradation of environment. Judicial activism can indeed play a pivotal role in curbing commercial problems. In addition to this inclusion of definition of pollution into international crime to ascertain individual criminal liability will lead to reduce in irresponsible and dangerous behaviour of the communities towards environment ((Id.)).

However, the judiciary sometimes is also criticized for acting beyond its limit which is termed as judicial over-activism. Justice Srikrishna is of the view that in the name of judicial activism, modern judges in India had abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of distributive justice ((Discussion regarding need for harmonious functioning of three organs of State – Legislature, Judiciary and Executive,( 3 December, 2007) available at http://www.indiankanoon.org/docfragment/854333/?formInput=Judicial%20activism%20)). But author beg to differ here because in the current scenario, it won’t be possible for judges to act as a neutral referee. In order to keep pace with the changing scenario, it is needed that judiciary should itself play an active role. Judicial legislation is a tool which had served is still serving and is expected to serve in the future as a major reason behind many environment friendly legislations.