Environmental Rights and Green Justice

A Shift from Traditional Understanding of litigation

Author: Akshay Shandilya, Research Associate

The last two decades have seen a period of rapid degradation of the Indian environment. The laws, by and large, have remained unenforced, mal-administered or mismanaged. In such situations, the environmental activists and NGOs have approached the Court for suitable remedies and the Court’s intervention has resulted in reminding and compelling the implementing agencies to perform their statutory obligations towards the protection of environment. This process of judicial intervention in resolving environmental disputes is viewed as judicial activism in present days. In actions seeking directions for ensuring governmental accountability or environmental protection, the orientation of the proceedings is usually more akin to collective problem-solving rather than an acrimonious contest between the counsels ((Hon’ble Mr. K.G. Balakrishnan (then CJI), Judicial Activism under the Indian Constitution 5, An Address at Trinity College, Dublin, October 14, 2009.)). This approach has monumentally enhanced sui generis– governmental and corporate accountability in pollution matters.

Locus Standi: Dilution or Expansion?

A survey of the cases related to environment pollution and eco-imbalances reveals that most of the cases were filed under Articles 32 and 226 of the Constitution of India ((Prof. S.C. Shastri, Environmental Law 52 (3rd .ed, 2008).)). If the complaint is of a ‘legal wrong’ the appropriate forum is the High Court of the state under Article 226 of the Constitution ((Art. 226 grants power to High Courts to issue certain writs or issue directions, orders to any Government, authority or person. The power conferred on a High Court by this Article is not in derogation of similar power conferred on the Supreme Court by Article 32.)). If a ‘fundamental right’ is alleged to have been violated the remedy may be sought from the High Court or directly from the Supreme Court under Article 32 ((Art. 32(1): “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights guaranteed by this Part is guaranteed.”)). The courts while granting relief to the aggrieved and checking activities injurious to environment have issued orders, directions and writs from time to time ((Prof. S.C. Shastri, Environmental Law 53 (3rd .ed, 2008).)).

Under the banner of Public Interest (or Social Action) Litigation (PIL) and the enforcement of fundamental rights under the Constitution, the courts have sought to rebalance the distribution of legal resources, increase access to justice for the disadvantaged, and imbue formal legal guarantees with substantive and positive content ((Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?, The American Journal of Comparative Law, Vol. 37, No. 3, 495-519 (Summer, 1989), at 497.)). The Courts in this way diluted the requirement of ‘locus standi’ for initiating proceedings in the 1970s. Since the intent was to improve access to justice for those who were otherwise too poor to move the courts or were unaware of their legal entitlements, the Court allowed actions to be brought on their behalf by social activists and lawyers ((Susan D. Susman, Distant voices in the Courts of India: Transformation of standing in Public Interest Litigation, 13 Wisconsin International Law Journal 57 (Fall 1994).)).

PIL offers litigants with many procedural benefits – it has a wide locus standi, it has non-adversarial proceedings, the court can sponsor assistance in examinations and investigations, public hearing and reviews educate the people, rulings have wide implications on future judgments and policy, and direct and prompt action is taken on the decision ((Pranay Lal and Veena Jha, Judicial Activism and the Environment in India: Implications for Transnational Corporations 8-9, Occasional Paper no.6, Report as part of UNCTAD /CBS Project: Cross Border Environmental Management in Transnational Corporations)). It was in this way that Public Interest Litigation opened the floodgates of environmental litigation in India among other adversarial proceedings.

Cognizance of Environmental Litigation In India

In Rural Litigation and Entitlement Kendra v. State of UP ((AIR 1985 SC 652.)), the Supreme Court of India accepted a letter written to the Court as a writ petition ((This is called as epistolary jurisdiction which the Court invokes only in matters of vital importance.)). This case was pronounced by the Court as the ‘first of its kind in the country involving issues relating to environment and ecological balance.’ In today’s emerging jurisprudence, environmental rights, which encompass a group of collective rights, are described as “third generation” rights. The “first generation” rights are generally political rights such as those found in the International Covenant on Civil and Political Rights while “second generation” rights are social and economic rights as found in the International Covenant on Economic, Social and Cultural Rights ((See John Lee, Right to Healthy Environment, Columbia Journal of Environment Law, Vol. 25, 293-394 (2000).)).

In light of this the observation of the Supreme Court in Tarun Bhagat Sangh, Alwar v. Union of India ((AIR 1992 SC 514.))is highly pertinent to note as the learned jurists of the apex body called environmental litigation as not “the usual adversarial litigation” but a “purpose high on the national agenda ((Id., 517)).” The observation of the court is important as it emphasizes the rationale of PIL in environmental issues. Further, the Courts in India welcomed the forty-second amendment of the Constitution which included in its fold the Directive Principles of State Policy and Fundamental Duties to an extent that they considered this duty as a constitutional mandate.

In India, the higher judiciary has interpreted the existing constitutional provision viz., the “right to life” ((Art. 21: “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”))to mean and include the right to live in a healthy environment. The courts have intervened by writs, orders and directions in appropriate cases and recognized the constitutional right to a healthy environment ((See, Rural Litigation and Entitlement Kendra v. State of UP, AIR 1985 SC 652; the Supreme Court has not, in any case before it, declared explicitly that the right to life and healthy environment is contained in the compendium of unenumerated rights under Article 21. However it has indirectly approved of it in many cases. In T.N. Godavarman v. Union of India (2002) 10 SCC 606, the Apex Court held that right to life guaranteed in Article 21 of the Constitution of India includes a right to an environment adequate for health and well being.)). The Supreme Court in M.C. Mehta v. Union of India (([1992] 1 SCC 358)), recognized that keeping the citizens informed is a social obligation of the Government, particularly about the environment free of cost and ordered that environment education be introduced compulsorily at all the levels of education.

Environmental Jurisprudence in the UK and US

It was not, however, until the 1980s that environmental organizations and affected individuals in the United Kingdom began to use the courts more regularly to explore issues of public law ((Richard Macrory, Environmental Regulation as an Instrument of Constitutional Change, in The Changing Constitution 296 (Jeffrey Jowell & Dawn Oliver ed., Oxford 2011).)). Rather than dealing with environmental issues on a topic by topic basis typically reflected in the legislation of the time (air pollution, water, and so on), the new wave of organizations demanded a more holistic approach that looked at environmental impacts as a whole and pressed for more preventive solutions beyond the more immediate amelioration of pollution impacts ((Id., 292.)). In this light it is hardly surprising that in recent years much of environmental legal development has shifted from prescribing clearly defined solutions to providing more open-ended approaches where the state is made more accountable for what it does ((Richard Macrory, Environmental Regulation as an Instrument of Constitutional Change, in The Changing Constitution 311 (Jeffrey Jowell & Dawn Oliver ed., Oxford 2011).)).

However in the United States of America (hereinafter U.S.) environmental jurisprudence is inhibited by certain conservative judges ((These judges, most of them appointed to the bench by Presidents Ronald Reagan and George H. W. Bush, read into the Constitution powers of judicial oversight that courts have never previously exercised. They ignore statutory language and intent, substituting instead their own policy preferences.)). The “Takings Clause” of the Fifth Amendment has emerged as a principal vehicle for advancing anti-environmental activism. The text and original understanding of this clause are quite narrow, requiring the government to pay private property owners when it expropriates or permanently occupies private land for public use. Taxpayers must therefore pay polluters not to pollute ((See Sharon Buccino, Tim Dowling. et al, Hostile Environment: How Activist Judges Threaten our Air, Water, and Land, National Resources Defense Council, July 2001.)).

In contrast to procedural benefits of Public Interest Litigation, “proof of harm is central to many parts of the US legal system especially for proving legal standing to sue ((See T.M Hoban & R.O. Brooks, Green Justice: The Environment and the Courts (1996).)).” Standing in environmental cases has been a contentious political issue ((In Friends of the Earth, Inc v. Laidlaw Environmental Services, 528 U.S. 167 (2000), standing was granted to an environmental organization to sue a company for dumping mercury under the Clean Water Act. However, Justices

Thomas and Scalia dissented.))especially since ecological harm is often uncertain, dispersed, or suffered by different species and inanimate objects.

The Way Forward: Contemporary Updates

Unlike the case of public interest litigation in Canada or the United States, the legal aid/public interest movement in India has been almost entirely initiated and led by the judiciary ((See Hon’ble P.N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 Colum. J. Transnat’ L. 561 (1984-85).)). Through blending of human rights and environmental jurisprudence, the Courts have delivered paramount decisions in the judicial sphere.

This freedom of action by the judges, in general, has developed even greatly in modern jurisprudence by judges going lengths to bring down entities violating the environment. In re, to the foregoing statement, an Ecuadorian court recently held the U.S. energy company, Chevron ((Chevron Corporation, one of the six “supermajor” publicly-traded oil companies, is the second largest oil and gas company (and third largest company) in the U.S. after ExxonMobil. Chevron is accused of causing or contributing to numerous other environmental and human rights abuses in the Niger Delta, Iraq, Australia, Kazakhstan, the tar sands of Alberta, Canada, and other areas.)), liable to the tune of $19 billion for polluting the Ecuadorian rainforest with 30-year spillage ((Paul M. Barrett, Down the Rabbit Hole’ in the Chevron Pollution Case, Businessweek June 20, 2013, http://www.businessweek.com/articles/2013-06-20/down-the-rabbit-hole-in-the-chevron-pollution-case. See also Paul Barett, Top U.S. Law Firms Battle in Chevron’s Pollution Case, Businessweek January 15, 2013, http://www.businessweek.com/articles/2013-01-15/top-u-dot-s-dot-law-firms-battle-in-chevrons-pollution-case.)).

Lately Environment Minister Jayanthi Natarajan decided to order an independent investigation into illegal sand mining in Gautam Budh Nagar ((Chetan Chauhan, Environment ministry to inquire illegal sand mining, Hindustan Times August 04, 2013, http://www.hindustantimes.com/India-news/NewDelhi/Environment-ministry-to-inquire-illegal-sand-mining/Article1-1103166.aspx))after the controversial suspension of IAS officer Durga Shakti Nagpal who established that the sand miners were operating without the mandatory consent, which, as per law, is required to operate from the state pollution control board under Air and Water Acts for any mining activity. Consequently the National Green Tribunal (NGT) on August 5, 2013 ordered a stay on all sand mining activity in the river beds, which do not have requisite environmental clearance ((Urmi Goswami, Illegal sand mining: National Green Tribunal bans sand mining across the country, Economic Times August 5, 2013, http://economictimes.indiatimes.com/news/news-by-industry/indl-goods/svs/metals-mining/illegal-sand-mining-national-green-tribunal-bans-sand-mining-across-the-country/articleshow/21625080.cms.)). Many States view mandatory environmental clearance as a hurdle as it lowers industrial investment  in the region.

The contribution of the Supreme Court of India in protecting the environment and ecology, forest, wild life, etc. has been phenomenal. Despite the limitations of jurisdiction, the Court played a vital role in this regard. More importantly what is needed from an environmental angle is a vision for the future. We have got enough laws to protect the environment, but its implementation is in the hands of administrative authorities whose usurping of powers should be checked by the judiciary.