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.