ENVIRONMENTAL LAW IN INDIA – PART III – B

Forest protection

Godavarman’s case7 was a significant case as far as forest protection is concerned. This was the first judicial intervention in forest administration in India. The Supreme Court gave a wider interpretation of the term ‘forest’ to mean even the private forest areas. In relation to seven northeastern states, the Court banned felling and transportation of trees and timber from the forest. Directions have been issued to the State governments to the effect that no patta should be issued with regard to forestland to anyone on any grounds.

In the Banwasi Ashram case8, the question was whether the Adivasis living within the forest area have any claim over the land and related rights. The Supreme Court held that with regard to the land that forms part of the reserve forest, the tribals could claim rights.

In Ambica Quarry’s case9, the issue was whether exploitation of mining resources in the forest area can continue in the light of the Forest Conservation Act, 1980. The Supreme Court ruled that the renewal of licence for mining in the forest area cannot be claimed as a matter of right.

Wildlife Protection

In M/s. Ivory Traders and Manufacturers Association case10, the ban imposed by the Wildlife (Protection) Amendment Act 1991 on the trade of imported ivory was challenged on the ground that it violated the fundamental right to trade under Sec 19 (1) (g) of the Constitution which guaranteed right to the profession. The Court ruled that the ban was imposed to give effect to international obligation made to implement CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973). The CITES prohibits the trading of imported ivory which paves the way for the gradual extinction of African elephants. The Court decided that the fundamental right to profession guaranteed under Article 19(1) (g) is qualified by reasonable restrictions and does not imply that banned activities can be carried out.

Conclusion

The above discussion illustrates some of the cases dealt with by the Supreme Court on the environment. It is not only the Supreme Court; the High Courts have also elicited interests in solving environment–development paradox in critical situations. In Damodar Rao vs. S. O. Municipal Corporation, Hyderabad11, the High Court of Andhra Pradesh referred to the RLEK case and stated that the state government’s decision to alter the public park into a residential block could not be sustained and observed that the protection of the environment is not only the duty of the citizens but also the obligation of the state. Similarly, in V. Lakshmipati vs. State12 and Attakoya Thangal vs. Union of India13, the Karnataka and Kerala High Courts upheld the environmental rights of people over the developmental plans of respective states. In L.K. Koolwal vs. the State of Rajasthan14, the Rajasthan High Court has ordered the municipal authorities of Jaipur to clean the city and observed that maintenance of health, sanitation and environment falls within Article 21 of the Constitution, which renders the citizens the fundamental right to ask for affirmative action.

In the process of judicial activism, many new doctrines and principles such as precautionary principle, polluter pay principle, the concept of sustainable development, public trust doctrine, principles of inter-generational and intra- generational equity, etc., have been imported by our courts into the Indian legal system. In Subash Kumar vs. the State of Bihar15, the right to the environment was held to be a fundamental right under Article 21 of the Constitution of India.

Though the public interest litigation movement, provided a new vista of environmental litigations, it also gave room for frivolous cases in the courts, which prompted the Supreme Court to formulate guidelines to entertain public interest cases.

Notwithstanding the heights achieved in environmental litigations, thanks to the extraordinary gesture exhibited by the higher judiciary, there have been many shortcomings……

  1. The lower judiciary has not responded adequately to the environmental problems despite the fact that all environmental laws give jurisdiction to the lower courts in the first instance.
  2. Environmental law appreciates the scientific evidence and in order to adjudicate environmental cases, the judges need to know the scientific nuances as otherwise, it becomes extremely difficult for them to choose sides. In the USA, the competency of generalist judges to decide upon the scientific matters were called into question, which resulted in the establishment of the Carnegie Commission in 1993 to probe into the matter. In India also, in several cases16 the Supreme Court indicated that the judges are incapable of deciding environmental cases. This warrants that adequate capacity building should be provided to the judicial officers on the scientific aspects of environmental protection and degradation. The Australian model of incorporating scientific members into the judicial bench while deciding environmental cases may also be taken into consideration.
  3. The advocates produced by the law colleges and the universities also lack basic scientific knowledge and motivation about environmental issues. Many a time, they refuse to undertake environmental cases stating that they specialize only in civil, criminal, writs or consumer cases. Proper orientation is needed for the advocates too.
  4. Judicial activism on environmental cases has gained momentum mainly due to the perception of individual environmentally-oriented judges. The judiciary does not have any policy to promote environmental conservation. Several times the judiciary has shrugged its shoulders by allowing development projects detrimental to the environment on the ground that it involves policy decisions of the government, which could not be interfered with by the judiciary. The cases like Silent Valley and the Narmada dam are classic examples of such unconcern. We need to motivate the judiciary to put environmental conservation at the top of its agenda while dealing with developmental projects.
  5. Whatever may be the judicial response, if the level of implementation shows no improvement, nothing can be achieved towards environmental protection. Most of the laws in India are observed not in compliance but in breach. In our country, the peculiar phenomenon is that one has to file a case for solving an environmental problem. After obtaining judgement, in order to enforce or implement the directions made in the judgement, another case has to be filed in the Court. Lack of implementation erodes the system. Will we ever improve?

Endnotes

  1. Municipal Council, Ratlam vs. Vardhichand, AIR 1980 SC 1622.
  2. Rural Litigation Entitlement Kendra vs. State of Uttar Pradesh, AIR 1988 SC 2187.
  3. C. Mehta vs. Union of India, AIR 1988 SC 1037.
  4. Vellore Citizens Welfare Forum vs. Union of India, AIR 1996 SC 2715.
  5. C. Mehta vs. Union of India, AIR 1997 SC 734.
  6. C. Mehta vs. Union of India, AIR 1999 SC 291.
  7. N. Godavarman vs. Union of India, AIR 1997 SC 1228.
  8. Banwasi Seva Ashram vs. State of Uttar Pradesh, AIR 1987 SC 374.
  9. Ambica Quarry vs. State of Gujarat, AIR 1987 SC 1072.
  10. M/s. Ivory Traders and Manufacturers Association vs. Union of India, WWF-I and others, AIR 1987 Del 267.
  11. AIR 1987 AP 170.
  12. AIR 1992 Kant 57.
  13. 1990 KLT 580.
  14. AIR 1988 Raj 2.
  15. AIR 1991 SC 420.
  16. See Andhra Pradesh Pollution Control Board vs. M. V. Naidu, AIR 1999 SC 812.

 

L. Pushpa Kumar
CPREEC

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

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