Decline in environmental quality has been evidenced by increasing pollution, loss of vegetal over and bio-diversity, excessive concentration of harmful chemicals in the ambient atmosphere and food chains, growing risks of environmental accidents and threat to life support systems. This has drawn the attention of entire world community and therefore they resolved to protect and enhance the environment quality. How could the judiciary remain a silent spectator when the subject has acquired high importance and become a matter of caution and judicial notice.
In a developing country like India, with uneducated masses, conditions of abject poverty, where the awareness of socio-economic and ecological problems in lacking, the judiciary has to play an active role to protect the people’s right against the anti-people order by infusing confidence in people as a whole for whom it exists, for as rightly put by Justice Load, “Judiciary exists for the people and not vice-versa. ” Judiciary therefore cannot sit in silence and helplessly but must come forward actively to make good the deficiencies of law and provide relief wherever and whenever required.
The Judiciary remained as a spectator to environmental exploitation until recently. But now judiciary assumed an effective role of public educator, policy maker, super- administrator, and more generally, animus environment. In India Environmental law is judicial response to the queries of its citizens against environmental exploitation and administrative sloth and also role played by the public interest litigation. Since 1 985 most of the environment cases in India have been brought before the court as writ petitions, normally by individuals acting on pro bono basis.
While numerous legislative steps have been taken to give effect to the significant right of man to live in a sound environment and the corresponding duty of the State and individuals to ensure environmental preservation and conservation, our present endeavor is to analyze the steps taken by judiciary to forward this goal. To achieve this end, the judiciary had evolved certain principles to provide effective remedy in case of violation of constitutional and legislative mandate.
In the subsequent sub divisions, several concepts which the judiciary has evolved in order to give force to the right of man to a healthy environment would be briefly dealt with. Right to a Wholesome Environment Judicial recognition of environmental jurisprudence, in the backdrop of industrialization, reached its peak with the pronouncement of the Supreme Court that right to wholesome environment is a part of Article 21 of the Constitution. In Subtask Kumar v. State of Briar, the court observed that Article 32 of the Constitution has been designed to enforce the fundamental rights of the citizen.
The said articles provides for extraordinary procedure to enforce the right of a person. The right to life under Article 21 includes the right to enjoyment of pollution free water and air for full enjoyment of life. Judicial concern regarding right to wholesome environment has been reflected in subsequent pronouncements. It has issued appropriate directions where the government machinery has failed to perform its statutory duty, and thereby undermined the right to life guaranteed under Article 21 of the Constitution. In Indian Council for Environ-Legal Action and Other v.
Union of India and Others, the chemical industries surrounding Biochip Village in Alasdair (Restaurants) contaminated the water, soil and air through the discharge of highly toxic effluents, particularly iron-based and gypsum based sludge. The court interfered to give proper remedy to the destitute villagers. It opined that the social interest litigation under Article 32 f the Constitution was a weapon in the hands of the people to enforce their right to wholesome environment, when it was blatantly disregarded by industries. In other words, the court reaffirmed that right to clean environment is an important facet of the right to life.
In ROLE Genera Durance v. State of Attar Pradesh, the apex court declared that right to life includes ‘the right of the people to live in the healthy environment with minimal disturbance of ecology and without avoidable hazard to them and to their cattle, home and agriculture land and undue affection of air, water and environment’. Also, the Supreme Court, in Andorra Pradesh Pollution Control Board v. NV Naiad, has put forward the view that matters relating to environment are of equal significance with those of human rights.
In its own words: Environmental concerns arising in this court under Article 32 or under Article 1 36 or under Article 226 in the High Courts are in our view, of equal importance as Human Rights Concerns. In fact, both are to be traced to Article 21 which deals with fundamental right to life and liberty. While environmental aspect concern ‘life’, human right aspect concern liberty. Principles of Common Law In 1 980, the Supreme Court held that clean civic life is the right of the inhabitants who reside within the municipal area.
In Municipality Rattle v. Varnished, the petitioner, a municipal council, filed an appeal against the direction of the magistrate under section 1 33 of the Code of Criminal Procedure, 1973. The judicial magistrate, on application by the people of the area passed certain directions against the civic corporate body to bring cleanliness within the municipal area, as it had been polluted by open drains, human excreta, in absence of proper sanitation, and discharges from alcohol factories. The High Court affirmed the directions issued.
Thereafter, the civil corporation filed a Special Leave Petition before the Supreme Court on the ground that the magistrate had no powers to pass order against the municipality. The Supreme Court took a very serious note of the miserable condition of the municipal area which posed health hazards for the people. Additionally the discharges from the alcohol plant overflowed the open drains making the condition more miserable. The Supreme Court issued certain directions, in addition to the magisterial directions, and fixed the time limit within which those were to be implemented.
The significant contribution of this judgment, from the point of view of environmental criminal law was that, if any officer of the corporation failed to discharge his duties, then he could be punished under section 188 of the Indian Penal Code, 1860. Subsequently, in Ram Baja Shining v. Babul, the Allahabad High Court tried to read atmospheric pollution within the broad spectrum of private nuisance, and issued permanent injunction against the polluting brick-grinding factory.
The court enumerated that the dust emitting from a grinding machine factory created public hazards and injured the health of individual members of the society. ‘Any act would amount to private nuisance which caused injury, discomfort or annoyance to a person. ‘ PILL with Reference to Environment Protection Since the last decade, PILL has played a unique role by which people belonging to different walks of life and especially the down trodden are getting social justice from the Supreme Court as well as the High Courts. The PILL 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 courts. As a result of this development, a spate f environmental cases has 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 M. C. Meat v.
Union of India, popularity known as Delhi Gas Leak or Ileum Gas Leak Case, is the 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 the 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 ability) 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 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 fatted the ends of justice was inappropriate in PILL cases. Ii. The Gang Pollution Case The Gang pollution cases are the most important water pollution cases in India to date. The brief facts being, in 1985, M.
C. Meat, an activist advocate and social worker, byway of a public interest litigation, filed a writ petition under Article 32 of the Constitution inter alai, for the issue of a writ/order/ direction in the nature of mandamus, directing Kanata Municipality to restrain itself from discharging waste water into the river Gang, and governmental authorities and the tanneries at Jam near Kanata to stop eluting the river with sewage and trade effluents till such time that they put up necessary treatment plants for treating these effluents.
The court in Meat case I made order against the tanneries, while in Meat case II ruled against municipalities and other governmental authorities. In Meat case l, the court realizing the importance of water of the river Gang in particular, and concerned over the continuing pollution of it by the industries and municipal wastes, reminded the conviction of environmental protection as enshrined in the directive principle in Article 48-A of the Constitution which provides that Tate shall endeavourer to protect and improve environment and to safeguard the forests and the wildlife of the country.
Article 51-A which imposes a fundamental duty on the citizens to protect and improve the natural environment. The court also invoked the Water Act as an indication of the importance of the prevention and control of water pollution. The court emphasized that notwithstanding the comprehensive provisions contained in the Water Act the state boards had not taken effective steps to prevent the discharge of effluents in the river Gang.
The court ruled that the fact, as was asserted on behalf of the some of the tanneries, that the effluents were not directly discharged into the river but first discharged in to the municipal sewers, did not absolve them from being proceeded against under the provisions of the law in force, since ultimately the effluents reach the river Gang from Municipal Sewers.
The court also invoked Environment (Protection) Act, 1 986 as further indication of the importance of prevention and control of water pollution and noted that not much has been done even under the Act by the Central Government to stop the grave public nuisance caused by the tanneries at Jam, Kanata. Meat Case II related to the action taken against Kanata Municipality and other Government entities for their failure to prevent waste water flowing to the river Gang as was asserted in the original petition by the petitioner. Accordingly the Supreme Court directed Kanata Magna Mapping to: a.
Complete the works to improve sewerage system within the target dates mentioned in the counter affidavits and not to delay the completion of those works beyond those dates. B. Take action against the dairies for either removing the waste accumulated ear the dairies or to get them shifted to a place outside the city. C. Take immediate steps to increase the size of the sewers and wherever sewerage line is not yet constructed, to get it constructed. D. To construct sufficient number of latrines and urinals for the use of poor people in order to prevent defecation by them on open land. . The practice of throwing corpse and semi burnt corpses be brought to an end immediately. The Municipality and Police should take step to ensure that dead bodies or half burnt bodies are not thrown into the river Gang.
The remarkable thing about this judgment is hat thought, it was a case against Kanata Magna Mapping but the court directed that this will apply mutatis mutandis to all other Minneapolis and Municipalities which have jurisdiction over the areas through which the river Gang flows and accordingly directed to send the copy of judgment to all municipalities. Ii. Durance Quarrying Case Rural Litigation and Entitlement Genera, Durance v. State of Attar Pradesh, or Durance Valley Litigation as it is commonly known, is one of the most complex environmental case 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 main question before the Supreme Court for consideration was whether the mine lessees could be allowed to mine quarrying operations.
In its order of 12 March, 1 985, the Supreme Court, after considering the recommendations of the Braggart Committee, ordered immediate closure of most dangerous mines and those falling within Missouri city board limits. 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 thus impliedly recognized right to a wholesome environment as implicit in Article 21 of the Constitution. Iv. Calcutta Tag Hotel Case Accidents Pander v.
State of West Bengal, is an important town planning case which in categorical terms reiterates the course duty to protect environment. In this case, the Government of West Bengal gave on lease to the Tag Group, four acres of land belonging to the Calcutta Zoological Garden for the construction of a five star hotel. This garden was located in Aliped, the heart of Calcutta. It was this giving away of the land that was challenged y a PILL petition, filed originally in the Calcutta High Court by two citizens of Calcutta-one the secretary’ of the Union of Workmen of the Zoological Garden and the other, a life member of the zoo.
The Calcutta High Court upheld the lease in favor of the hoteliers. In appeal the Supreme Court held that ecological balance shall be maintained by the court in spite of the fact that such duty imposed on the government is merely a directive principle of state policy under Part IV of the constitution. The court further held: “Whenever a problem of ecology is brought before the court, the court is bound to bear in mind Article 48-A of the Constitution and Article 51 A(g).
When the court is called upon to give effect to the Directives Principles and fundamental duty, the court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy-making authority. The least that the court may do is to examine whether appropriate considerations are borne in mind and irrelevancies are excluded. In appropriate cases the court may go further, but how much further must depend on the circumstances Of the case. In view of the above approach the court adopting a liberal approach in favor of the development held that the Government has acted perfectly binomially in granting the lease and its action was not against the interests of the zoo or migrant birds visiting the zoo. On the contrary as the proposed hotel is a garden hotel there is every chance of the ecology and environment being improved as a result of planting of numerous trees around the premises and removal of the burial ground and dumping ground for rubbish.
Conclusion Thus, the Supreme Court of India had taken into account the right to a healthy environment along with the right to sustainable development and balanced them. This concept of right to a healthy environment and sustainable development are the fundamental human rights implicit in the right to life, which has been constructed as such in many countries. The entire judicial construction by the Supreme Court and the High Courts also reveal the humanitarian approach to these environmental laws with the help of public interest litigation.
The Indian Supreme Court was the first to develop the concept of right to healthy environment as a part of life under Article 21 of our constitution. This principle is now been adopted and followed in various other countries now. Suggestions In this paper the researcher wants to recommends the following suggestions. 1) The problem can be very well addressed to masses with the help of clinical environmental education, as there will be specialized treatment to sensitizes people about environmental problems.