The judiciary has been playing a vital role is the implementation of environmental laws and evolving legal principals to protect environmental pollution as natural and fundamental human rights. The Supreme Court of India has emphasized the need to strengthen instructional machinery both at the centre and at the state to enforce environmental laws.
In the case of Hawrah
Ganatantric Samity and Ors. V. State of West-Bengal and Ors. The Supreme Court suggested that there should be a special Bench in the High Court at Calcutta to be designated as “Green Bench” to consider and deal with environmental and pollution control matters. Accordingly the Chief Justice of Calcutta High Court constituted the “Green (Bench”. to deal with ‘pollution matters or environmental problems w.e.f. 24th June 1996. Justice Kuldeep Singh and Mr. Justice S. Saghir Ahmed in the aforesaid case observed in their order dated 16th April 1996 that:
“Despite various enactments by the Parliament and the state legislature regarding pollution control and environment protection, nothing much is being done in this respect.”
In this way in various cases the Supreme Court suggested various remedial measures to strengthen the environmental protection machinery by providing more teeth and also making head of law enforcing agencies personally accountable for any lapse or negligence. The Court also suggested to set up an environmental audit by specialist bodies on a permanent basis with powers to inspect, check and take necessary actions not only against erring industries but also against erring officers. Similarly, the Court has given various directions in consideration of environmental aspects such as categorization of industries, balancing of development and ecology, the liability of government and local authorities to’ maintain healthy atmosphere which is regarded as fundamental right to life as contained in Article 21 of the constitution.
(a) The Emerging Profile of PIL
The process of liberalization in the traditional doctrine of locus standi as set in by the judicial pronouncement of the Supreme Court has given rise to a new form of litigation, popularly known as Public Interest Litigation, in India. Infact public interest litigation is a strategic arm of legal aid movement to bring justice within the reach of the poor. In contrast to the traditional mode of litigation, wherein litigation is bipolar and adversial and of retrospective orientation, the public interest litigation is not strictly adversial but is cooperative or collaborative and prospective in orientation, the primary purpose of which is to promote and vindicate public interest. The petitioner seeks, in such cases to champion. a public cause for the benefit of all society and to prevent an eregious state of affairs or illegitimate policy from continuing into the future in which judges play a creative role in the organization and shaping of litigation and. in supervising, the implementation of relief which is essentially corrective rather than compensatory. It is through this type of litigation that the problems of the poor are now coming to the forefront and the entire theatre of the law is changing fast.
The PIL is now recognized as an effective instrument of social change. It is because of this new strategic of pro bono litigation that the poor and the down trodden have been able to seek justice from court.
Public interest litigation has extended its helping hand to prevent environmental damage. The strategic arm of PIL has also made a substantial dent in environmental pollution cases. Introducing the PIL concept into pollution cases, in Ratlam Municipal Council vs. Vardhichand, J. Krishna Iyar observed that, “… social justice is due to people and therefore the’ people must be able to trigger off the jurisdiction vested for their benefit to any public functioning. Thus he recognized PIL as a constitutional obligation of the courts.
As a result of this development, a spate of environmental cases have been brought before the courts through public interest litigation. They have’ been filed either by individuals, voluntary organization or by letter/petitions sent to judges. In the following passages an attempt is being made to examine some of the leading judicial pronouncements on the point.
(i) Delhi Gas Leak Case
In M.C. Mehta v. Union of India31 popularly known as Delhi Gas Leak or Oleum Gas Leak Case, the Supreme Court of India was confronted with multi-dimensional and complex issues relating to environmental pollution such as concerning the true scope and ambit of Articles 21 and 32 of the Constitution; the principles and norms for determining the liability of large enterprises engaged in ‘manufacture and sale of hazardous products; the basis on which damages in case of such liability should be quantified; whether such large enterprises should be allowed to -continue to function in thickly populated areas; and if so permitted what measures should be adopted to reduce the risks to minimum to the workers and community living in the neighborhood.
Court made the following modifications in the conditions imposed by the previous order of the court.
First, the Court first modified condition pertaining to safety devices. The modified condition provided for the personal responsibility of an officer placed in charge of a group of safety device as was recommended in the earlier order. This modification was effected because it would not be practicably feasible to place one operator in charge of each safety device and it would not be desirable to place such a big responsibility on an operator who was simply a workman.
Second, so far as the absolute unlimited personal liability of the Office; was concerned, the court, realising that many competent and professionally qualified persons would shy away from accepting employment in Shriram, ordered that the responsibility of the officer Would be to the extent of his annual salary with allowances. The court further added that Shriram Would indemnify Such office; if the leakage of gas was as a result of the Act of the God, sabotage or he had exercised all due diligence to prevent such escape. As regards the personal responsibility of the Chairman and Managing Director -of Shriram, except the above mentioned situation,’ the court ref~ to make any modification, This approach according to the court was necessary and would ensure proper and adequate maintenance of safety devices, instruments and operation of the hazardous plants, The management cannot be allowed to pocket the profit of the company without making due provision for repair; renovation, modem environmental technology’ and compensation’ for any loss of life or damage, If any, due to their negligence.
Third, the condition with respect to workers’ participation in ensuring proper observance of safety devices was slightly modified. The Committee of workmen the court held, would consist of at least two out of the three representatives having experience of the working in the caustic chlorine plant. The representatives would not leave their duties unless they had informed the concerned officer in charge of the plant prior intimation at lest half an hour before their visit.
The judgement of the apex court in the Oleum Gas Leak case is historic one in the field of environmental justice. The Supreme Court besides laying down substantial principles of law, embarked upon some important questions of law and policy which need to be answered, The Supreme Court laid down two important principles of law:
First, the power of the Supreme Court to grant remedial relief for a proved infringement of a fundamental right (in this case Article 21) includes the power to award compensation, albeit in exceptional cases. Thus, the court not only widened the scope of Article 21 by including in it protection of environment but also included a liability in tort for those harmed others by pollution. Second, the judgment opened a new frontier in the Indian jurisprudence by introducing a new “no-fault’ liability standard (absolute liability) for industries engaged in hazardous activities which has brought about radical changes in the liability· and compensation laws in India. The new standard makes hazardous industries absolutely liable for the harm resulting from its activities. It is, a standard which on· its terms, admits of no defenses. The judgement makes damages commensurate with the tort feaser’s ability to pay. This ruling may give a fright to capitalists and act as a deterrent force reminding the industries carrying on hazardous and inherently dangerous activities that they must include in their cost the expenditure on accidental compensation before they pocket the entire profit.
The case is significant from other points. The court further expanded the scope of “epistolary jurisdiction” when it reiterated that “a public spirited individual or a social action group acting pro bono public would suffice to ignite the jurisdiction of this court” and that hyper technical approach that defeated the ends of justice was inappropriate in PIL cases. The liberal approach in rule of locus standi, according to the court was necessary otherwise it would frustrate the object and purpose of epistolary jurisdiction.
every one. For this purpose awareness about the environment must be inculcated in every individual through mass awareness programmes and environmental education. The latter must be introduced as a subject to be taught in classes and text books on Environmental education must be written and to be distributed in educational institutions free of cost.
(ii) Dehradun Quarrying Case
Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh or Dehradun Valley Litigation as it is commonly known, is one of the most complex environmental cases handled by the Supreme Court. It is the first momentous decision of the apex court wherein it was required to balance environmental and ecological integrity against industrial demands on forest resources.
The case arose from indiscriminate, haphazard and dangerous lime stone mining in the Mussorrie Hill Range of the Himalayas in the western part of state of Uttar Pradesh. The mining and the quarrying work in the region had· been going on for the past many years. The mining involved blasting of hills with dynamite and also deep digging into the hill side which resulted in cave ins and slumping. Thx obvious results of such indiscriminate quarrying were that a large area of the valley had been stripped of vegetation and frequent landslides and denudation of Hills posed a great threat to the ecology and the environment of the valley.
In Its: order of 12 March, 1985, the Supreme Court, after considering the recommendations of the Bhargava Committee, ordered immediate closure of most dangerous mines and those falling within Mussoorie city’s board limits. The order to this effect was passed by a bench presided over by the then Hon’ble Justice Bhagwati, Justice Sen and Justice R.N. Misra who observed that where-the court finds that due to working of lime stone quarries there is imbalance to ecology or hazard to healthy environment, then in that case the court will order their closure. The court also observed that “due to closure of these quarries the lessees of limestone quarries would be thrown out of business in’ which they have invested large sum of moneys and expanded considerable time and effort. This would undoubtedly cause hardship to them but it is a price that has to be paid for protecting and safeguarding the rights of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment.” The court thus impliedly recognised right to a wholesome environment as implicit in Article 21 of the Constitution.
New Trends in Judicial Approach
Environmental litigation is of recent origin in India. During a short span of time the Indian judiciary. not only has successfully undertaken a complex task of balancing the environmental and development concerns but in the process of its adjudication of cases evolved new principles of the environmental jurisprudence. A few new trends have been set up by the judiciary which hitherto had not been seen in the legal system. Here an attempt is made to evaluate the role of the courts with reference to certain specific situations in the context of environment protection.
Expansion of Article 21
The role of Indian judiciary in interpreting the constitutional provisions in the light of changed socio-economic perspectives is worth appreciating. It has introduced many changes in the Constitution through its judicial activism. One of the highest watermark in the judicial activism is witnessed by the judgement of the Andhra Pradesh High Court decision in the case of T. Damodar Rao vs. S.D. Municipal Corporation Hyderopad. It was the first decision which has explicitly recognised an environmental dimension to Article 21 when it while considering a writ petition to enjoin the Life Insurance Corporation and the Income Tax Department’ from building residential houses in a recreation zone, held: “It would be reasonable to hold that the enjoyment of life and its attainment and. fulfilment guaranteed by Art. 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 Art. 21 of the Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoilation should also be regard as amounting to violation of Article 21 of the Constitution.”
This judicial activism was the aftermath of Maneka Gandhi’s case which opened new frontiers in Article 21. Various High Courts in some cases have observed environmental degradation as violative of the fundamental right to life. The Supreme Court of India in a number of cases has also followed the above expanding frontier of the Article 21 recognizing albeit right to wholesome environment as implicit in Article 21.
Thus the Indian judiciary has shown unprecedented dynamism by expanding the scope of Article 21 by including in its right to wholesome environment. This feat is remarkable insofar as even some of the developed countries have yet to achieve such distinction. It still remains to be seen as to whether a developing country like India can sincerely and effectively allow enforcement of this fundamental right to live in a clean environment nonetheless such innovative approach would certainly help to prevent further degradation of our environment.
Judicial Activism
The second new judicial trend in environmental litigation has been noticed in the form of court’s assumption of executive functions and judicial legislation. The judiciary has in many public interest litigations ingresses into fields traditionally reserved for executive when and where the courts have found the executive response missing or deficient.
The Supreme Court’ has used quite effectively its interim direction to influence the environmental justice making it more responsive to constitutional mandate and provision of law. The Dehradun Quarrying case is a typical example of the Supreme Court creeping jurisdiction as Prof Baxicalls it, where the Supreme Court while deciding on closure of the operation of some of lime stone quarries in the Dehradun valley and to allow conditional operation of some of them, had to consider, balance and resolve competing policiesincluding need for development, environmental protection, preservation of jobs: The court entrusted an expert committee to evaluate the environmental impact of limestone quarrying operations and used the committee mechanism to supervise the implementation of judicial orders. Thus, the courts have come to fill in the administrative vacuum by assuming the executive functions. Similarly, in Shriram Gas Leak Case the Supreme Court solicited the help of several expert committees not only with the purpose of advising it on the question of allowing Shriram’s hazardous chemical plant to recommend operations but to suggest measures to reduce the environmental threats.
Problem of Monitoring Pollution
It must be stated that identification and monitoring of pollutants is by no means an easy task. The problem “Of identification and monitoring stems from the multiplicity of pollutants and different manners of their escape into the atmosphere. Another factor which stands in the way is the vast infrastructure required to undertake–this task and the absence of willingness on the part of persons of administration designated for the purpose to properly undertake the functions assigned to them.
The Supreme Court in the case of M.C. Mehla v. Union of India has come to the rescue of the hapless public exposed to the grave dangers and health hazards created by vehicular emissions from more than 1.8 million vehicles plying in Delhi by directing the transport authorities to take to their task of monitoring the vehicular emissions in an effective war.
In the pursuance of this judgement, Justice Sarika Committee has· been making regular bimonthly reports·· which are submitted in the court. Simultaneously, hearing of the case had been conducted on related issued. A significant order was passed by the Supreme Court on January 8, 1992. directing that if any Delhi Transport Corporation (DTC) bus or any private bus on the fleet of DTC is found emitting excessive smoke, that fact may be brought to the notice of a DTC officer to be named under the intimation to the Registrar of the Supreme Court and on receipt of the information from any member of the public the DTC Officer concerned will immediately have the bus checked up and intimate the action taken’ to the Registrar of the Supreme Court.
It is submitted that the problem of monitoring pollution is a difficult one. The technique of appointing commission to enquire into the details of vehicular technologies for pollution control and the mechanism of monitoring of pollution as desired by the court is a welcome move.” Since government is not committed to an honest and sincere task regarding monitoring of pollution, the responsibility to a great extent will have to be shared by voluntary organizations or public spirited citizens as well.
Conclusion
There is close lint between the government accountability and a citizen’s ability to secure authentic information. Public access to government information in democratic society is desirable as it enables citizens to exercise their political choice more meaningfully. It not only helps to check the abuse of executive power but influences the decision-making process to a better direction wherein an atmosphere of ope23nness the government can mend administrative follies. The right to know at the same time in addition to improving the quality of decision making also strengthens participatory democracy. On the contrary, secrecy erodes the legitimacy of elected government by providing a cover to conceal its misdeeds. Actions and policies of Government cannot in such situation be fairly judged by electorate. Consequently, accountability of the former is greatly inhibited.