THE
ROLE OF JUDICIARY IN PROTECTING THE ENVIRONMENT IN INDIA
ABSTRACT
In the era of climate crisis, ecological imbalances, rising sea levels, deforestation, melting glaciers, rising global warming and ecological degradation, where despite having unlimited number of laws and legislation there is not much positive impact has been noticed on the the environment? Why these laws are being so ineffectively enforced or implemented? And which institutions will help in enforcement of various environmental legislations, the Judiciary comes into picture and plays very pivotal role in implementing nd enforcements of all these legislations. This paper shall analyse the role played by judiciary and various environment doctrines and landmark judicial pronouncements which have been evolved from time to time and adopted by judiciary.
INTRODUCTION
Environmental
issues are not just local or a national one but a global matter of serious
concern that need to be addressed immediately. Environmental concern in India
is as old as Indian civilization. The
earlier environmental concerns were mostly focused on conservation of forest,
wildlife and natural resources. Later on after independence, rapid
industrialization, population growth in cities, and rising poverty continued to
deteriorate the environment continued to deteriorate until 1972. While during
British period expansion of agriculture, railways, timber trade and World Wars
were the guiding factors. The primary driving force behind the development of
forest policy after independence was the growth of industries. In the wake of
national development through fast industrialization, to be self-sufficient in
food and other basic needs of the growing population, environment continue to
degrade due to deforestation, loss of wild life, increasing air, water and soil
pollution, development of slums and occurrence of droughts and floods all
leading to degradation of environment and quality of life
In
India there has been a serious issue of environment contamination, despite
having various law and legislation like Environment Protection Act 1986, The Water(prevention
and control of Pollution ) Act 1974.
The Judiciary has always been regarded as a guardian of fundamental rights of the citizens. The constitution of India does not directly recognise the right to have healthy environment as a fundamental right but the courts in India has recognised the same as a fundamental right under the broad heading of article 21 as fundamental which states that no one shall be deprived of his life or personal liberty except the procedure established by law. To enforce the environment legislations effectively made by the parliament, the judiciary has always played a crucial role in protecting and preserving the environment. This paper will analyse the multi- dimensions of this topic and will find out how judiciary has been playing a key role in the protection of environment.
CONSTITUTIONAL
AND LEGAL FRAMEWORK REGARDING THE PROTECTION OF ENVIRONMENT.
The
framers of the constitution incorporated certain articles related to the
protection and conservation of environment in the Indian constitution. Article
21,48A and 51A(g) are important in this regard which need to be understood.
The
courts under article 21 through its various judgements recognize the right to
have a healthy and clean environment as a fundamental right. It states that no
person shall be deprived of his life or liberty. It implies that every person whetherthe
citizen or alien has a right to live their life freely and safely with all the
basic necessities they are required to live in even from a healthy environment
to right to health and livelihood. It encompasses all aspects of life that make
it meaningful and complete.
Article
48A of the constitution the State shall endeavour to protect and improve the
environment and to safeguard the forest and wildlife of the country.
Article
51A (g) of the constitution states that every citizen of India shall have a
duty to protect and improve the
natural environment including forests, lakes, rivers and wild life, and to have
compassion for living creatures. Articles 48A and 51A(g).
KEY
ROLE PLAYED BY THE JUDICIRY-
The
role played by the judiciary is crucial in protecting the environment and
enforcing the laws and legislations protecting the environment in the country. The
Supreme Court recognizes that the United
Nations Conference on Human Environment and the Stockholm Conference in 1972 madeimportantcontributionsto environmental awareness and establishing the meaning of sustainable development in Customary International Law. It statesthatthere are a number of principles of
sustainable development which incorporateconsistent
economic and social growth while maintaining the environment and natural resources requiredfor the development processes.
Supreme Court of India has adopted various doctrinesthrough
various judicial pronouncements that will be discussed below one-by-one.
ENVIRONMENTAL DOCTRINES EVOLVED THROUGH
VARIOUS JUDGEMENT.
India issituated within an extremely diverse ecosystem and population
and faces many of the same
environmental threatsas other countries do,
including air pollution, deforestation, water availability
and biodiversity loss.Indiahas extensive
natural resources, and they are under immense stress and pressure. Judiciariesplayapivotal role in protectingtheenvironment. The Indian judiciary has takenconsiderablesteps in interpreting and
enforcing environmental law, resolving disputes, protecting
environmental rights, and shaping
environmental governance.
a. The Doctrine of Absolute and strict liability
The Supreme Court of India created the doctrine of
absolute liability in the case of Union Carbide Corporation v. Union of
India[1].
The Court observed in the instant case that when an enterprise is engaged in
inherently dangerous or hazardous activities, it is strictly and absolutely
liable for any harm that is caused due to the accidents occurring in any
operation involved in that process, including negligence.
Absolute liability means that enterprise is liable
without any exceptions, and the enterprise has to compensate all those affected
by the accident. This casehas introduced the judgment introduced the concept of
absolute liability with no exceptions available in environmental cases as
opposed to the concept of strict liability which has been introduced in Ryland
v Fletcher where there are some exceptions available to the party in fault.
b. Polluter Pays Principle
If anyone intentionally spoils the water of another
… let him not only pay damages, but
Purify the stream or cistern which contains the
water…” – Plato
There has been much recognition given to the
polluter pays principle in the last few years. The principle itself says that
if you are a person, group of persons or an entity pollutes the environment
then you yourself would be liable for the costs associated with the pollution
and clean-up. Actually the polluter pays principal is not about
assigning blame; it is based on the idea that if you have harmed the
environment, you should be responsible for fixing that harm. This is aligned
with the concept of fixing environmental harm. The Supreme Court of India
upheld the polluter pays principle as a part of sustainable development in Vellore
Citizen’s Welfare Forum v. Union of India[2].
This case is a landmark case on pollution from tanneries and industries in
the state of Tamil Nadu. It was related to pollution caused to the Palar River
and the impact on the water supply to the State.
In Vellore Citizens Welfare Forum v Union of India,
the Apex court ordered the central government to constitute an authority under
the Environment Protection Act by utilising the principles of precaution and
polluter pays. It fined tanneries, ordered common treatment facilities to be
established and asked for the closure of non-complying units.
The Court upheld the guidelines of the Tamil Nadu
Pollution Control Board and directed that a "Green Bench" be created
in the Madras High Court. The case provided important precedents for
environmental protection and enforcement in India.
c. Precautionary Principle
The Supreme Court of India, in Vellore Citizens Forum Case, laid
down three important concepts for the precautionary Principle, these are as follows:
Ø Environmental protection measuresshould anticipate, prevent and
attack the causes of environmental degradation.
Ø Measures of environment protection can not be postponed because of
lack of scientific certainty.
Ø Onus of proof is on the actor to show that his action is benign.
d.
Public Trust Doctrine
The public Trust Doctrine states that any
environmental resources such as air, water or seas are of very significant for
the entire society as a whole and therefore can not be subjected to private
ownership. In the case of M.C. Mehta v Kamal Nath and othersthe Apex
Court held that the Public Trust Doctrine
Is intrinsic part of the fundamental law of the land.?
It ensures that the environmental resources are protected in the best possible
way.
e.
Doctrine of Sustainable Development
The concept of sustainable development was
brought to light by the World Commission on Environment and Development (WCED)
in 1987 in its report named Our Common Future also
known as the Brundtland Report.The Sustainable development
refers to development that meets the present needs without compromising the
ability of future generations to meet their own needs. The courts play a pivotal
role in striking a balance between the development and environmental protection.
In the case of Rural Litigation and Entitlement Kendra v. State of UP, the court highlighted the importance of natural resources and saidthat natural resources are permanent assets of mankind and should not be deterioratedby one single generation. The Supreme Court, in the Vellore Citizen’s Welfare Forum case highlighted that the concept of sustainable development is an important concept that can help eradicating the poverty and improving the life of human beings while staying within the ecological carrying capacity.
LANDMARK JUDICIAL PRONOUCMENTS.
1. M.C.
Mehta v. Union of India (Oleum Gas leak case)[3].
The
petition was filed under article 32 of the Indian Constitution as a PIL in the
Supreme Court of India. In 1986 the 14thCJI of India justice PN Bhagawati
disposed the judgement. In this judgement the court moved further beyond the
concept of strict liability and introduced the principle of Absolute liability for
the entities engaged in hazardous activities. The case also established that
the industries would bear the absolute duty to ensure safety and can’t be
allowed to plead any defence if there is any incident occurs because of their non-natural
use of land.
2. Vellore
Citizens Welfare Forum v. Union of India[4].
In
Vellore Citizens Welfare Forum v Union of India, the Apex court ordered the
central government to constitute an authority under the Environment Protection
Act by utilising the principles of precaution and polluter pays. It fined
tanneries, ordered common treatment facilities to be established and asked for
the closure of non-complying units.
The
Court upheld the guidelines of the Tamil Nadu Pollution Control Board and
directed that a “Green Bench” be created in the Madras High Court. The case
provided important precedents for environmental protection and enforcement in
India.
3.
Subhash Kumar v. State of Bihar[5]
In
Subhash Kumar vs. State of Bihar & Ors, the Supreme Court of India ruled
that the right to a clean environment is an integral part of the right to life
of a person according to Article 21 of the Constitution. Subhash Kumar, the
petitioner submitted a writ petition claiming that the slurry from the Tata
Iron & Steel Co. is contaminating the water of Bokaro River, and therefore
negatively impacting his livelihood and the health of local residents in the
region.
The
court in the instant case ruled that the right to life also includes the right
to have entitlement to clean water and air free from pollution. Nonetheless,
the petition was rejected because there was insufficient evidence directly
connecting the pollution to the respondents, highlighting the necessity for
substantial proof in environmental cases.
4. Indian
Council for Enviro-Legal Action v. Union of India[6]
The
case of Indian Council for Enviro-Legal Action v. Union of India represents a
significant ruling in the realm of Indian environmental law. Initiated as a
public interest litigation (PIL) in 1989 by the Indian Council for Enviro-Legal
Action (ICELA), this case tackled the serious environmental damage inflicted by
the irresponsible activities of chemical factories in Bichhri Village,
Rajasthan. This ruling not only strengthened the “Polluter Pays Principle” but
also established a benchmark for holding industries responsible for ecological
damage and providing compensation to affected communities.
The Supreme Court in this case upheld the polluter pays principle as a fundamental and a very important aspect of environmental laws. The court ordered the closure of chemical factories in the village of Rajasthan that violated the principles of environment laws and functioning without necessary permits.
CONCLUSIONS
The
role of judiciary has been very pivotal in enforcing and implementing the
environment laws. The Indian judiciary, the custodian of fundamental rights and
guardian of the constitution has interpreted various laws and expanded the
scope of various articles of the constitution. By expanding the scope of
article 21 of the constitution and incorporating the right to healthy and
pollution free environment and embracing various environmental doctrines like
sustainable development and polluter pays principle, the courts have proved
their pro-active role and responsive attitude towards environment protection
snd conservation.
Now there is an urgent need that the judiciary should collaborate with executive agencies so as to effectively implement and enforce the existing environmental legislations.
REFERENCES
1.https://blog.ipleaders.in/role-of-indian-judiciary-in-protection-of-the-environment/
2.https://lawbhoomi.com/role-of-judiciary-in-environment-protection/
3.https://www.lawctopus.com/academike/role-indian-judiciary-protection-environment-india/
4. https://www.lawctopuslawschool.com/june/
5.https://www.lawctopus.com/academike/role-indian-judiciary-protection-environment-india/
[1]1989 SCC (2) 540
[2] AIR 1996 SUPREME COURT 2715
[3]1987 AIR 1086
[4]AIR 1996 SUPREME COURT
2715
[5] AIR 1991 SC 420
[6]1996 AIR 1446
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#EnvironmentalJustice
#GreenJudiciary
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#EnvironmentalProtection
#JudicialActivism
#EcoJurisdiction
#SustainableDevelopment
#RightToLife
#EnvironmentalLawIndia
#PublicInterestLitigation
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