ROLE OF JUDICIARY IN ENVIRONMENTAL PROTECTION AND FOR FUTURE PATH

Written By Payodhi Daschaudhuri

Reviewed By Admin | The Legal Gazette

Published By Khushi Verma

Environmental justice appeared as a legal concept first in USA in early 1980s. It included maintenance of environment and eco system and it evolved as a social movement which focused mainly on establishing links between environmental law, governance, planning and policy and ecology. Till that time, India was quite ignorant regarding the evolving environmental issues. Even during post-independence era, the main concern revolved around setting up of markets, creating employment, uplifting the economy etc. It was only after the Bhopal Gas Tragedy of 1984 which made the masses of the country aware of the degrading environmental conditions and the importance of clean eco system for the healthy survival of every citizen.

Indian Legislature legally formulated the first policy on protection of environment in the form Environmental Protection Act, 1986. The main purpose behind implementing the statute was to execute the decisions of United Nations’ Stockholm Conference on environmental protection. The UN Conference on human environment was held in Stockholm, Sweden from 5th June to 16th June 1972. The Conference explicitly focused upon sustainability of environment and safeguarding non-renewable natural resources like air, water, land, flora, and fauna. The Stockholm Declaration mainly focused on the deteriorating environmental condition of the poor and developing countries and this underlying feature formed the basis of first legislation in India regarding environmental protection. Not only this, but the Indian Parliament also made certain changes and enacted certain statutes in order to formulize various decisions made in the conference. Afterwards, environmental protection and right to clean and hygienic environment was incorporated in Article 21, of the constitution which guarantees right to life and personal liberty to all individuals. Moreover, it also got a direct constitutional status under Directive Principles of State Policy by 42nd Amendment. Article 48A under Part IV of the constitution directs both the central and state government to preserve and protect the natural resources. Under Part V of the constitution which confers certain fundamental duties on the citizens, Article 51A (g), directs the citizens of the country to improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures. Not only this, but the Indian Penal Code also lays down Section 268 which focus on offences related to public health and this section makes public health a priority and punishes the wrongdoers who tend to pollute the environment. 

In Rural Litigation and Entitlement Kendra v. the State of UP, the Supreme Court observed that it is not only the duty of the State as stated under 48-A but also the duty of citizens as under Article 51-A (g) of the constitution to protect the environment. This verdict also establishes that right to healthy environment has been incorporated under the ambit of Article 21 and has been established as an implied fundamental right.

EVOLUTION OF PRINCIPLES ON ENVIRONMENTAL PROTECTION

After the enactment of the Constitution, the planning commission was set up which established 5-year plan system and the first 5-year plan (1951-56) was launched in the year 1951 which gave high priority to industrialisation, public health, sanitation etc but environmental protection was not incorporated in it till the end of third 5-year plan. The importance of environment was initiated in the fourth plan and the fifth plan emphasised on improving quality of life and environmental integration. Afterwards, with the passage of time, Judiciary has adopted and interpreted certain principles of sustainable development through several judgements:

1. Polluter Pays Principle

Etymologically means that the person who pollutes or who is held responsible for the deterioration of the environment should be held liable for the same. In the case of Indian Council for Enviro-Legal Action v. Union of India, the Supreme Court held that the party who contributes to the deterioration of the ecology would bear the remedial costs for the same and that’s how Polluter Pays Principle (PPP) was introduced in the Indian Judiciary. The Court also held that regardless of whether a person used reasonable caution while engaging in a hazardous or fundamentally risky activity, that person is still liable for any losses made to a third party due to those activities.  Also, in the case of Research Foundation for Science Technology and Natural Resource Policy v. Union of India, the Supreme Court held that the producer of a particular product should be held liable and accountable for the cost of contributing pollution to the environment during the manufacturing process. The cost should involve full environmental cost and not only those which are immediately tangible. Polluter Pays Principle doesn’t imply that the polluter has the right to pollute the environment and afterwards he/she will pay it off. It is a kind of precautionary concept to create apprehension on the minds of the offenders who intends to injure the ecology with unhealthy activities. The amount of remedial costs depends on and varies from case to case. In the case of M.C. Mehta v. Kamal Nath, the court verdicts that the one who pollutes the environment must pay to reverse the damage caused by his acts. In S. Jagannath v. Union of India, which is also known as Shrimp Farming Case, the court applied the polluter pays principle and held the shrimp factory liable to pollute the environment in the coastal areas and was held liable for compensation to the affected persons based on that principle. Similarly, a very vital and landmark case on the Polluter Pays Principle is the case of Vellore Citizens Welfare v. Union of India, the Supreme Court contended that it is the duty of the state to guard and preserve the ecology and under Article 21, every citizen has the right to live in a pollution free environment. Also, in M.C Mehta v. Union of India, which is also known as Calcutta Tanneries case, the Supreme Court delivered it, verdict based on polluter pays principle and held the tanneries liable for the degradation caused to the environment along with compensation.  In M.C. Mehta v. Union of India, also known as Oleum Gas Leak case, a petition was filed under Article 32 of the Constitution of India, seeking closure of a factory engaged in manufacturing of hazardous products. While the case was pending, oleum gas leaking out from the factory injured several persons. The significance of the case lies in its formulation of the general principle of liability of industries engaged in hazardous and inherently dangerous activity.

2. Precautionary Principle

The principles highlights that such a measure can be taken by way of precaution which can be resorted to even in the absence of definite studies.  It is a pro-active approach which contends to avoid all sorts of activities or practises which has certain tendencies to injure or harm the environment. There are certain aspects of the nature which can’t be restored once they get degraded. So precautionary principal acts as a guard to all those non-restorable elements of the ecology and pleas to the citizens to follow precautionary steps in context of protection of ecology. The precautionary principle says that if any action or project has some possible risk which can cause harm to public and environment and the person who is taking that action has knowledge about those risk, that in the absence of scientific measures that action or project is harmful, then the burden of proof lies on those persons who are taking that action that it is not harmful. In the case of Vellore Citizens Welfare Forum v. Union of India, the apex court explicitly recognised the principle and held that Precautionary Principle is the part and parcel of the environmental law of the country and the court also held that under this principle, the burden of proof is on the actor/developer/industrialist to proof that his actions are environmentally benign. In Karnataka Industrial Areas Development Board v. C Kenchappa, the apex court held that developmental activities cannot be stopped, but it can be controlled rationally. The court also contended that the state cannot solely deal with the issue of repairing the environment without the assistance of the citizens. Environmental awareness should be inculcated within the public which will make them vigilant regarding the current endangered position of the ecology and then only the damage in the environment can be restored by collaboration of the citizens and the state. In the case of Research Foundation for Science v. Union of India, the Supreme Court held that precautionary principal acts as a watchdog regarding environmental protection and human health, even though there is not absolute harm or injury. It takes precaution against all anticipated injuries by preventing environmental risks even before harms or injuries are caused and upholds the concept of sustainable development. In the case of K. Guruprasad Rao v. State of Karnataka, the apex court held that mining is an activity which is measured in terms of its magnitude. That is, if mining is done within the principles of sustainable development, then it can be held legit but if it doesn’t comply with the principals of sustainable development, then it is subjected to banning. This is generally one of the elements of precautionary principle as it prevents uncontrolled mining and adopts an approach of sustainability to preserve resources for future generation as development and sustainability should always go hand in hand. Also, in the case of Vijayanagar Education Trust v. Karnataka State Pollution Control Board, Karnataka High Court explicitly mentioned the importance of precautionary principle and held that it is a very vital step towards restoration of environment and formulated certain measures to enact the principle. Precautionary Principle was also explicitly utilised by the Supreme court in the case of M.C Mehta v. Union of India,  which is popularly known as Taj Trapezium case where it ordered 292 industries operating around Taj Mahal, Agra, to change over to natural gas as their industrial fuel and stop functioning with charcoal or coke as burning of those fuel is affecting the white marbles of Taj Mahal adversely and gradually altering the colour to yellow. Not only this, but the apex court also ordered those industries to relocate themselves and settle in some area where there is comparatively less habitants. This is a kind of precautionary measure by the apex court to prevent the UNESCO World Heritage Site from losing its charm and allure.

3. Inter-generational equity

Is the concept which forms the underlying stone of the whole philosophy on environment. It mainly emphasises on the interdependence of various generations on the limited number of resources which the earth holds. There are basically 3 principles which lays down the foundation of inter-generational equity. The first principle deals with the concept of conservation of options which implies that it is the utmost duty of every generation to utilise the resources in such a way that it would be preserved for the upcoming generation as well. The second principle deals with the concept of conservation of quality which implies that every generation should not only conserve the resources but also retain the quality of resources for the future generation. This ensures that every generation should enjoy the same quality of resources which their predecessors had enjoyed. The third principle deals with the conservation of access which means that each and every generation should provide its people with fair rights to use the legacy of past generation and should preserve that access for the upcoming generation as well. Even the constitution of India has recognised its importance and incorporated the principle in Article 21. In the case of Goa Foundation v. Sesa Sterlite Ltd., the Supreme Court explicitly ruled those four principles— intergenerational equity, sustainable development, the precautionary principle, and polluter pays principle—are part of the right to life, according to the Constitution. In State of Himachal Pradesh v. Ganesh Woods Products, the Supreme Court struck down the order of the High Court of Himachal Pradesh which permitted a pan masala factory to set up katha factories which is derived from Khair trees. Most of the states disallowed that factory to set up its manufacturing units except for Himachal Pradesh. The apex court contended that the permission granted by Himachal Pradesh government was violative to National Forest Policy and moreover, it was opposed to public policy as it endangered the natural resources and was strictly against the principle of inter-generational equity and sustainable development. 

4. The Public Trust Doctrine

Is one of the most important foundations of environmental protection and sustainable development. It derives its origin from the very ancient Roman Civilization some 1500 years ago. The doctrine focuses that keeping in mind the fact that resources are limited, hence they can be utilised by everyone or by no one. This doctrine questioned the ideology of the use of natural resources for private use.  The doctrine of public trusteeship believes that natural resources like land, water, air etc are the gifts of nature and these should be made available for everyone to use it wisely irrespective of the status they enjoy in the society. The doctrine of public trust was enacted in India through several landmark judgements. In the case of M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, the Supreme Court mentioned that Public Trust Doctrine is ingrained in Article 21 of the Indian Constitution and stopped the construction of a shopping mall by demolishing a public garden as it would injure the interest of the public at large. The garden was a spot for all the sections of people irrespective of their age, to come and breathe in fresh air, and construction of the shopping mall will not only hamper that but will also make the area more congested and suffocating. The court had put the state in a negative position by ordering it to stop the construction of the mall and maintain the public park for the benefit of the citizens at large. But in the case of Shailesh R. Shah v. State of Gujarat, it is being stated that Public Trust doctrine has imposed certain restrictions on state to use the natural resources wisely. 

In the case of Hanuman Laxman Aroskar v. Union of India, The Supreme Court observed that environmental rule of law institutes the 4 principles of sustainable development which includes social, economic, environmental and peace. The environmental rule of law has become a priority in today’s contemporary world as the benefits which we acquire from a healthy and protected environment have a large ambit in the way that it also strengthens the rule of law, provides a surrounding for living a healthy life, supports sustainable social and economic development and promote peace and security by avoiding and terminating conflicts.

The concept of environmental rule of law in the Indian context is best understood by examining how the three government organisations dealing with environmental law work. It creates a methodology to examine whether India's environmental rule of law is being enhanced or damaged by examining the legal instruments of each of the institutions of government legislation, executive orders, and judicial judgments. The indicators used for this are, first, the capacity of statutes to guide behaviour (one of the organizing principles of the rule of law) by clearly articulating goals or balancing competing interests; second, the ability of the executive to make flexible but reasoned decisions based on primary legislation; and third, the ability of the judiciary to apply statutory interpretation and consistent standards of judicial review to give effect to environmental laws.