ENVIRONMENTAL LAW IN INDIA – PART III – A

In a three-part series of articles the author analyses the development of environmental law in India during different periods. The first part dealt with the evolution and development of environmental jurisprudence during ancient and medieval periods and during British rule in India. The second part threw light on the environmental legal framework since independence to date. This third part of the article analyzes the active role and contribution of the Judiciary in environmental protection.

Role of Judiciary in environmental protection

Any discussion on environmental law without taking into account the role of the judiciary in India will be incomplete. If there is any aspect of the environment, which is protected or any provision of environmental law, which has been implemented in India, it is largely due to the constant efforts taken by the judiciary.

The judiciary has always been responsive towards environmental protection and conservation. In fact, the higher judiciary has created a new environmental jurisprudence in the country over the years by delivering many landmark judgements, which changed the fate of the environment in a significant way.

Before the enactment of special environmental laws, the judiciary viewed environmental matters as public nuisance cases. Many common law principles have been applied in solving environmental problems. Water pollution, air pollution and noise pollution were considered to be a nuisance to the public. The common laws such as the Indian Penal Code, 1860, the Code of Criminal Procedure, the Code of Civil Procedure, the Law of Torts were the major legal instruments to deal with environmental cases.

Ratlam Municipality Case1

The judgement delivered by Justice V.R. Krishna Iyer in Ratlam Municipality Case in 1980 has viewed the concept of public nuisance in an environmental sense. He gave a new life to Section 133 of the Code of Criminal Procedure, which gives powers to the District Magistrate to avert public nuisance in a particular locality. In this case, the Supreme Court dismissed the argument of Ratlam Municipality that it could not perform the statutory duties due to financial inability. The Court ordered the Municipality to provide basic civic facilities to the public without making lame excuses. This Judgement became an eye-opener for the public-spirited individuals and encouraged them to file litigations to solve local environmental issues. This reformed the whole system and a number of cases have been filed before different courts seeking remedies against environmental pollution.

The Stockholm Conference (U.N Conference on Human Environment) in 1972 made significant changes in the Indian environmental legal regime. Many special enactments have been made to protect forests and wildlife and to regulate environmental pollution. The level of education and awareness among people towards environmental issues enhanced the quantity and quality of cases filed before the courts. The environmental justice delivery in the country witnessed a sea change thanks to the interest evinced by the visionary supreme court judges Justice V.R. Krishna Iyer, Justice P.N. Bagavathi, Justice Kuldip Singh, etc.

Era of public interest litigation

The concept of public interest litigation, propounded by the US Supreme Court and effectively imported into India in the 1980s, has been utilized by many social workers to fight against various maladies faced by society. Individuals, non-governmental organizations and advocates extended the concept to environmental cases also.

Rural Litigation Entitlement Kendra (RLEK) vs. Union of India2

This was the first public interest litigation filed by a non-governmental organization to solve environmental problems. The limestone quarries set up in the Doon Valley area in Dehradun devastated the pristine environment of the mountains and forests and affected the health of people working in the quarries, living in the area and as well as the animals and birds. RLEK sent a letter to the Supreme Court seeking its interference to solve the problems faced by the environment and the people. The Supreme Court converted the letter into public interest litigation and formed an expert committee to analyze the situation. The expert committee submitted its report, which revealed alarming consequences to the region. The Supreme Court took an extreme step in this case and ordered the closure of all the quarries functioning in the area by providing alternative arrangements to the workers and quarry owners.

Judicial Activism

In the late 80s and 90s, considered to be the golden era of environmental litigation in India, the Courts came forward to encourage public interest litigations to redress environmental injustices. Many procedural formalities have been waived. The doctrine of locus standi has been considerably relaxed. In public interest litigation (PIL), anybody who is having a genuine concern for the public may file public interest litigations before the High Courts and Supreme Court under Article 226 and 32 of the Constitution of India respectively. The highlight of this era was the series of PILs filed by M.C. Mehta.

Water Pollution

In M.C. Mehta vs. Union of India3, otherwise called the Ganga Pollution Case, the environmental crusader, Shri. M.C. Mehta filed public interest litigation before the Supreme Court about the water pollution caused by the tanneries in the river Ganges in the Kanpur area. The Supreme Court ordered the tanneries functioning in Uttar Pradesh to set up effluent treatment plants or otherwise close the tanneries.

In the Vellore Citizens Welfare Forum case4, the Supreme Court was approached by the petitioner to issue directions against the tannery pollution caused by the discharge of untreated effluents in the Vellore area in Tamilnadu. The untreated effluents affected the agricultural lands, groundwater and health of the local people. The Court delivered a landmark judgement in this case and directed the tanneries to set up effluent treatment plants. About 200 tanneries, which failed to establish effluent treatment plants, were closed in the interest of the public. The court directed the central government to constitute an authority under the Environmental (Protection) Act, 1986 to deal with polluting industries. As the result, the Loss of Ecology Commission was set up to assess the quantum of compensation to be awarded to the affected people in the area. The court has for the first time invented a ‘pollution fine’ against the tanneries that devastated the area. In this case, the Supreme Court adopted international principles such as the precautionary principle; the polluter pays principle and the concept of sustainable development as part of law of the land. The Court also suggested that the Madras High Court set up a Green Bench to deal with environmental cases exclusively.

Air pollution

In the Taj Mahal case5, the Supreme Court dealt with many foundries, chemical industries and the Mathura refinery that damaged the splendour of the Taj Mahal through air pollution. In this case, the Court ordered the local authority to establish the Taj Trapezium Zone (TTZ) by creating a green belt around the Taj. It ordered about 292 hazardous industries to either switch over to natural gas as an alternative fuel or relocate themselves as per the directions of the court. Justice Kuldip Singh observed that the old concept that development and ecology cannot go together is no longer acceptable and opined that sustainable development is the answer.

In M.C. Mehta vs. Union of India6, the Supreme Court ordered the Delhi Transport Corporation to withdraw over 15-year-old buses and directed them to switch over to compressed natural gas (CNG) instead of diesel in order to prevent air pollution. The Court also prescribed a quota regime for registration of private non-commercial vehicles in the National Capital Territory.

to be continued…..

L. Pushpa Kumar
CPREEC

Source: Eco News, Vol.9, No.3 (October – December), 2003.

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