Judicial Activism in Environmental Protection: An Environmentally Active Judiciary

Author: Nivedita Saxena, Research Associate

Judicial activism is essentially the terminology for judicial rulings that are suspected of being based on personal, political or other considerations rather than the existing laws and go beyond the scope of judicial review. Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors too guide their decisions.” One major manifestation of judicial activism in Indian courts has been in the form of increasing number of public interest litigation. The judiciary has shed its pro-status-quo approach and taken upon itself the duty to enforce the basic rights of the poor and vulnerable sections of society, by progressive interpretations and positive actions. The Constitution of India does not confer any authority or jurisdiction for ‘activism’ as such on the Courts, thus judicial activism is an act in excess of courts powers.

It is popularly said that judicial activism occurs due to in-activity and inefficiency of other organs of the government like the executive and legislature. Courts through judicial activism provide relief to the disadvantaged and aggrieved citizens, and thus compel the authorities to act or direct the government regarding policies and matters of administration. Post 1980s India had shown a tremendous vigour in judicial activities along with administrative and legislative activism.

The failure of the state agencies in efficiently enforcing the environmental laws along with the non-compliance of the various statutory norms has resulted in continuous degradation of the environment. Besides that, the shortcomings of the executive in combating the pressures on the environment brought about by the change in the country’s economic policies have thrust the responsibility of environmental protection upon the judiciary.  In some instances the Judiciary had to not only exercise its role as an interpreter of the law but also had to take upon itself the role of constant monitoring and its implementation.

Public interest litigations

With the rapid industrial growth, the environmental quality has come to become secondary to the goals of economic social development, resulting in widespread pollution, land degradation, etc. The existing administrative and institutional framework is too shaky and ineffective to handle the challenge of environmental protection, which threatens our very survival. Hence, there is a need to have a new environmental ethos to meet the challenge. This is precisely where the role of an activist judiciary comes in ((Chadra Pal, “Environmental Protection and Emerging Treads In Judicial Response” ,Central India Law Quarterly, Available at http://www.indiankanoon.org/doc/106215/, Last visited on 11 August 2013)).

PIL is one of the most inexpensive legal remedy due to nominal costs involved in filling and contesting the litigation, even though it increases the number of frivolous litigations in courts. The traditional concept of Locus Standi is no longer a bar for the community oriented Public Interest Litigations. Though not an aggrieved party, an environmentally conscious individuals, groups or NGOs now have access to the Supreme Court/High Courts through PIL. At present most environmental actions in India are brought under Articles 32 ((This Article gives the right to move the Supreme Court by appropriate proceedings for the enforcement of

   the guaranteed Fundamental Right))and 226 of the Constitution. The writ procedure is preferred over the conventional suit because it is speedy, relatively inexpensive and offers direct access to the highest courts of the land.

Distinctive characteristics of PIL Include ((Chadra Pal, “Environmental Protection and Emerging Treads In Judicial Response”, Central India Law Quarterly, Available at http://www.indiankanoon.org/doc/106215/ , Last visited on 11 August 2013)):

  • Liberalization of the rules of standing;
  • procedural flexibility;
  • creative and activist interpretation of legal and fundamental rights
  • remedial flexibility and on-going judicial participation and supervision

Indian Judicial Approach

The scope of judicial review before the Indian courts has evolved in three dimensions- firstly, to ensure fairness in administrative action, secondly to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative competence between the centre and the state. The power of Supreme Court of India to enforce these fundamental rights is derived from Article 32 of the constitution. With the advent of Public Interest Litigation (PIL) in recent decades, Article 32 has been creatively interpreted to shape innovative remedies ((K.G. Balakrishnan, Chief Justice of India ‘Judicial Activism Under the Indian Constitution’)).  Some jurist in India prefers calling Public interest litigations as Social Action Litigations. In India before 1984, the Indian Judiciary had made a very little contribution in the area of environmental protection. The Bhopal disaster demonstrated the utter helplessness of Indian legal system in providing adequate compensation to the victims numbering 2500 dead and over two lakh people affected. It is only during late 1987 that the higher judiciary has started to’ play a vigorous role in preventing environmental degradation. It is in the light of these issues, Judicial Activism in Environmental Protection, especially by means of the various Public Interest Litigations that has been initiated in various courts has gained importance

The right to a wholesome environment

The right to a healthy environment is now firmly established in constitutional interpretations of Article 21 of the Constitution of India by way of judicial interpretation ((Refer T S Doabia, Environmental & Pollution Laws In India, 2nd Edition 2010, Also see Chhetriya Pardushan Mukti Sangarsh Samati v. State of Uttar Pradesh, AIR 1990 SC 2060; Subhash Kumar v. State of Bihar, AIR 1991 SC 420; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161; A.P. Pollution Control Board II v. Prof. M.V. Nayudu, (2001) 2SCC 62)).  In Dehradun Quarrying Case ((Rural litigation and Entitlement, kendra, Dehradun v. State of Uttar Pradesh, AIR 1988 S.C. 2187.))for the first time, the Supreme Court held that the fundamental right to a wholesome environment is a part of the fundamental right to life in Article 21 of the Constitution. Initially the Supreme Court of India ((M.C. Mehta v. Union of India [popularly known as oleum gas leakage case], AIR 1987 SC 1086))has impliedly treated the right to live in pollution free environment as a part of fundamental right to life falling under Article 21 of the constitution. However now the apex court accepted beyond doubt the proposition that Article 21 generates the right to a healthy and hygienic environment ((Anshra Pradesh Pollution Control Board v. MV Nayudu, AIR 1999 SC 812, Hinch Lal Tiwari v. Kamala Devi, (2001)6 SCC 496; KM Chinnappa v. Union Of India, AIR 2003 SC 724; MC Meta v. Kamal Nath, AIR 2000 SC 1997; Murali S Deora v. Union of India, AIR 2000 SC 1997)). The Andhra Pradesh High court has observed ((T Damodar Rao v. S.O.M.C. Hyderabad ,AIR 1987  AP 171))that “it would be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by article 21 of the constitution embraces the protection and preservation of nature’s gifts without which life cannot be enjoyed. There can be no reason why practice of violent extinguishment of life alone should be regarded as violative of Article 21.  The slow poisoning by the polluted atmosphere caused by environment pollution and spoilage should also be regarded as violation of Article 21”. Similarly many High courts have observed ((Arvind Textiles v. State of Rajasthan, ARI 1994 Raj 195 ; Law Society of India v. Fertilizers & Chemicals Travancore Ltd., AIR 1994 Ker 308 ; Kinkri Devi v. State of Himachal Pradesh, AIR 1988 HP 4 ; V. Lakshmipathy v. State of Karnataka, AIR 1994 Kar 57 ; Hamic Khan v. State of Madhya Pradesh, AIR 1997 MP 191))that environmental degradation violated the fundamental right to life. Passive smoking was held as an infringement of the right to life of non-smokers ((Murali S Deora v. Union of India, AIR 2000 SC 1997)). Thus this right is constantly used for building up new environmental jurisprudence ((In Re: Noise Pollution –Implementation of the Laws for restricting the use od loudspeakers and high volume producing sound systems, (2005) 5SCC 733)). The duties of both the state and citizens to protect and improve the environment have become the supreme constitutional mandates. All agencies, public or private, as well as individuals, are bound to follow the mandate.

Arbitrary state action and equality

The courts in India gradually enlarged the scope of the concept of equality of life and living, and applied it to various issues affecting the environment. The right to equality guaranteed in Article 14 may also be infringed by government decisions that have direct Impact on environment various environmental groups frequently resort to Article 14 to quash’ “arbitrary” municipal permissions for constructions that are contrary to development regulations. It is claimed that an action which is arbitrary is inherently a negation of equality.  Further, Article 14 may also be invoked to challenge government sanctions for mining and other activities with high “environmental impact”, where the permissions are “arbitrarily” granted without an adequate consideration of environmental impact

Evolution of doctrines

The formulation of certain principles, like the once mentioned below, by the courts for protecting the environment is a remarkable act:

  • The Polluters Pays Principle ((MC Mehta v. Union Of India, AIR 1986 SC 1086; The new remedy, based on doctrine of absolute liability was later focused in Indian Council for Enviro- Legal Action v. Union of India, AIR 1996 SC 1446 (famous Sludge case); MC Mehta v. Kamal Nath, (1997) 1 SCC 388 ; Also see Deepak Nitrite Limited v. State of Gujrat, (2004)6 SCC 402)).
  • Precautionary Principle ((Emphasised by the United Nations Commission on Environment and Development (UNCED), held in Rio de Janerio in the year 1992. See also Vellore Citizens Welfare Forum v. Union Of India, AIR 1996 SC 2715; MC Mehta v. Union Of India, AIR 1997 SC 734 (Taj Mahal case); Andhra Pradesh Pollution Control Board v. MV Nayudu AIR 1999 SC 812; Narmada Bachao Andolan v. Union of India AIR 2000 SC 3751)).
  • Public Trust Doctrine ((MC Mehta v. Kamal Nath, (1997) 1 SCC 388;  MI Builders Pvt LTd v. Radhey Shyam Sahu, AIR 1999 SC 2468; Also see Partha Pratim Ghosh v. State of west Bengal, AIR 200 Cal 84; Ramababu v. District Forest Officer, AIR 2000 AP 256)).

The rights of livelihood and clean environment are of grave concern to the courts whenever they issue a direction in an environmental case ((CERC V. Union Of India AIR 1995 SC 922; Banwasi Seva Ashram v. State of  Uttar Pradesh AIR 1988 SC 2187; Pradeep Krishen v. Union of India, AIR 1996 SC 2140; Animal and Environment Legal Defence Fund v. Union of India, AIR 1997 SC 1071; S Jagannath v. Union of India (1992) 2 SCC 87)). In some cases ((CERC V. Union Of India, AIR 1995 SC 922; Indian Council for Enviro-legal Action v. Union of India (1996) 5 SCC 281; LK Koolwal v. State AIR 1988 Raj 2; BL Wadehra (Dr) v. Union of India,  (1996) 2 SCC 594)), courts issue directions to fill yawning gaps in existing law, in others, they may go to the extent of asking the government to constitute national and state regulatory authorities or environmental courts.

Judicial activism in this sphere is the need of the hour, more especially when the legislature is lagging behind In bringing the lacunae in the existing legal mechanism and the administration is still not well enough equipped to meet the challenge. In future too, the courts will have to play an active role in the formulation and effective determination of environmental policy so that elected branches of government become accountable to law and the public.  The directives of the Supreme Court went to the extent of spreading environmental awareness and literacy, as well as launching environmental education ((MC Mehta v. Union of India, AIR 1992 SC 382, MC Mehta v. Union of India, AIR 2004 SC 1193)).