39 Environment and Public Interest Litigation

Dr. Shruti Goyal

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Learning Outcomes

  • Understanding the relationship of Public Interest Litigation and Environment
  • Role played by PIL in development of various principles of Environmental law
  • In-depth understanding of the various principles

 

Introduction

 

The objective of the environmental law is to preserve and protect the nature’s gifts to man and woman such as air, earth and atmosphere from pollution. Environmental law is based on the realization of mankind of the dire physical necessity to preserve these invaluable gifts of Mother Nature to man and his progeny from the reckless wastage and rapacious appropriation. The seeds of development of Indian environmental law were sown in Stockholm in 1972 at the United Nation’s Conference on Human Environment in which it was realized that environmental laws were necessary to preserve and enhance human environment. This led to the passage of various laws such as the Water (Prevention and Control of Pollution) Act, 1974 followed by the Forest (Conservation) Act, 1981; the Environment (Protection) Act, 1986; Air (Prevention and Control of Pollution) Act, 1987; National Green Tribunal Act, 2010 etc. to name a few. Along with this, the Forty Second Amendment to the Indian Constitution added Articles 48-A (Directive Principles of State Policy) and 51-A (g) (Fundamental Duty) so that the principles of environmental protection are explicitly mentioned in the constitutional scheme.

 

However, the environmental laws were not implemented effectively by the government agencies resulting in accelerated degradation of the environment. The environmental degradation had adverse effect on public health. This led to the emergence of the concept of approaching higher courts in the country for remedies by environmentalists and the residents of polluted areas in order to sought remedies.

 

Approaching the Higher Courts

 

The higher courts of the country, that is, the Supreme Court and the High Courts can be approached under the writ jurisdiction exercisable Articles 32 and 226 of the Constitution of India. The writ jurisdiction can be invoked to enforce fundamental rights. However, the fundamental rights enshrined in the Constitution of India do not specifically mention environmental matters. Therefore, initially the judiciary took recourse to Articles 48-A (Directive Principles of State Policy) and 51-A (g) (Fundamental Duty) of the Constitution to impose obligations and duties on the States and citizens to work for preservation of environment.

 

However, with the passage of time the courts expanded the meaning of Article 21 of the constitution which is a fundamental right. Article 21 says that “no person shall be deprived of his life or personal liberty except according to procedure established by law”

 

The Andhra Pradesh High Court in the case of T. Damodhar Rao and Ors. v. Special Officer, Municipal Corporation of Hyderabad and Others, [AIR 1987 AP 171]; held that the it would be reasonable to hold that the enjoyment of life and its attainment and fulfillment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature’s gifts without life cannot be enjoyed.

 

The Supreme Court in the case of Subhash Kumar v. State of Bihar and Others, [AIR 1991 SC 420]; observed that right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be determined to the quality of life.

 

Thus, by widening the scope of Article 21, the courts entitled citizens to invoke the writ jurisdictions which facilitated the emergence of environmental jurisprudence in the country.

 

Emergence of Public Interest Litigation

 

The origin and evolution of public interest litigation in India emanated from realization of constitutional obligation by the Judiciary towards the vast sections of the society- the poor and the marginalized sections of the society. This method is used to redress public grievances. It works on relaxation of traditional rule of ‘locus standi’ and ‘proof of injury’. Locus standi means standing. The court hears a case if a person has a standing and has sufficient interest in the matter. That is, he is feeling aggrieved by the injury caused. The Courts have relaxed and diluted these traditional rules and expanded the meaning of “aggrieved person’. In public interest litigation the matter is brought before the court by a public spirited person. This tool is to provide access to justice to a very large section of the society which was otherwise not getting any benefit from the judicial system. Public interest litigation can be filed in the High Court or Supreme Court. This is efficient in dealing with environmental cases because these cases are concerned with the rights of the community rather than the individual.

 

It is important to note that public interest litigation is writ only and the difference is that the rule of locus standiis not applicable. In public interest litigation the interest of a larger section of the society is involved rather than the individual interest of a litigant. The Court in Subhash Kumar’s case specifically said that a petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists.

 

Nature of Public Interest Litigation

 

Public interest litigation is different from conventional litigation or private litigation in a number of ways. Firstly, conventional litigation is bipolar and adversarial, that is interest of two parties is involved whereas public interest litigation is for a public cause, that is, for the benefit of the society as a whole. Secondly, in conventional litigation the principle of locus standi is involved, that is, no one except the effected person can approach the court whereas in public interest litigation the rule of locus standi is relaxed. Thirdly, in a private case there is a retrospective orientation, that is, the courts must decide the question of fact and law owing to past events whereas a public interest litigation is prospective, that is, the petitioner seeks to prevent future continuance of policies or state of affairs which has affected the public interest. In a private litigation the courts are concerned with specific questions of fact and law whereas public interest litigation involves wider questions of law and policy. In public interest litigation the relief sought is corrective rather than compensatory. In a conventional litigation, the judge plays the role of an umpire and adjudicates on the basis of evidence and arguments adduced by the parties whereas in public interest litigation the judge plays a more pro-active role.

 

Emergence of Public Interest Litigation in Environmental Issues

 

The Constitutional Courts of the country through the concept of public interest litigation has played a pivotal role in developing environmental jurisprudence of the country. In 1980’s the Supreme Court started paying special attention to the problem of pollution. According to the court, the scale of injustice occurring on the Indian soil is catastrophic as each day hundreds of thousands of factories are functioning without pollution control devices. Thousands of Indians go to mines and undertake hazardous work without proper safety protection. Everyday millions of litres of untreated raw effluents are dumped into our rivers and millions of tons of hazardous waste are simply dumped on the earth. The environment has become so degraded that instead of nurturing us it is poisoning us.

 

The Supreme Court and high courts in order to ensure that environment ecology, wildlife, flora and fauna are maintained has played a pivotal role in development of environmental jurisprudence. The Courts in different public interest litigations have read doctrines as a part of domestic law, constituted expert committees to study and suggest solutions to the problem of environment protection, established monitoring committees, ordered closure of industries that were causing environmental pollution, mandated cleaner fuel for vehicles, prohibited construction in ecologically sensitive areas, protected architectural instruments, issued a number of directions to different statutory entities etc. As a matter of fact, the Supreme Court had a green bench since 1995 till 2012. Now, the Supreme Court has a regular Forest Bench which regularly passes orders and directions regarding various forest cover and wildlife.

 

Some of the important public interest litigations which have greatly molded the environmental jurisprudence of the country are described below.

 

One of the earliest cases where the Courts have played a proactive role is the case of Ratlam Municipal Council v. Vardhi chand, [AIR 1980 SC 1622]. In this case, the Municipal body of the city of Ratlam had failed to perform its duty of ensuring establishment of a proper drainage system on the grounds of paucity of funds. The Supreme Court observed that a responsible Municipal Council constituted for the precise purpose of preserving public health cannot escape from its primary duty by pleading financial inability.

 

In the case of Rural Litigation and Entitlement Kendra v. State of U.P., [AIR 1987 SC 2426] popularly known as the Doon Valley Case, the Supreme Court took notice of the ecological damage caused to the Mussoorie Hills by the activity of limestone quarries. The court in this case said that the mining activities in the area could be permitted only to the extent that is necessary in the interests of the defence of the country as also for the safeguarding of the foreign exchange position.

 

Some if the principles and doctrines propounded by courts in India are:

  • Rule of absolute liability
  • Sustainable Development
  • Principle of Polluter Pays
  • Precautionary Principle
  • Doctrine of Public Trust

 

Rule of Absolute Liability

 

In M. C. Mehta v. Union of India, [AIR 1987 SC 1086] the Supreme Court introduced the doctrine of ‘absolute liability’. In this case, there was oleum gas leak at an industrial plant in the capital city of Delhi in the year 1985 which had led to the death of a person and had raised serious health issues in the general population. The Supreme Court said that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The Court introduced the doctrine of ‘absolute liability’ on the user of hazardous material and said that the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.

 

Striking balance between industrial development and sustainable Development

 

The Supreme Court in the case of Vellore Citizens’ Welfare Forum v. Union of India and Others, (AIR 1996 SC 2715) observed that the traditional concept that development and ecology are opposed to each other is no longer acceptable and “Sustainable Development” is the answer. The Court held that industries are vital for the growth of the nation and there is a need to strike a balance between industrial development and sustainable development. This case was public interest litigation filed by Vellore Citizens’ Welfare Forum and was directed against the pollution which was being caused by enormous discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu. The Court held that such industries cannot be permitted to continue till they install pollution control devices and also held them liable to pay compensation for the past pollution caused by them.

 

In M.C. Mehta v. Union of India, [(2002) 4 SCC 356]; the Supreme Court held that one of the principles underlying environmental law is sustainable development. The two essentials of sustainable development are: (i) the Precautionary Principle and (ii) the Principle of Polluter Pays.

 

Principle of Polluter Pays and Precautionary Principle

 

The Supreme Court in the case of Vellore Citizen Welfare Forum v. Union of India and others, (AIR 1996 SC 2715), held that precautionary principle and polluter pays principle are acceptable as part of the law of the country and should be implemented. According to the “Polluter Pays Principle” the polluter industries are liable not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. In such cases, the onus is on the polluter industry to prove that their actions were environmentally benign. Under the “Precautionary Principle” measures must be taken by the State Government and the statutory authorities to anticipate and prevent the causes of environmental degradation and where there are threats of serious and irreversible damage lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

 

The Supreme Court in this case also directed the Madras High Court to constitute green bench in order to deal with environmental matters.

 

Doctrine of Public Trust

 

The Supreme Court in the case of M.C. Mehta v. Kamal Nath and Others, (1997) 1 SCC 388 held that public trust doctrine is a part of Indian law. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have a great importance to the people as a whole and that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature should be made freely available to everyone irrespective of the status in life. This doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The Supreme Court in this case cancelled the lease granted by the state government of the riparian forest land to a private company which had a motel located at the bank of river Beas. The activities of the hotel management interfered with the natural flow of river. The Court quashed the prior approval granted by Ministry of Environment and Forest and held that the government has committed breach of public trust doctrine.

 

Saving of River Ganga

 

In M.C. Mehta v. Union of India, [AIR 1988 SC 1037]; a petition was filed against leather tanneries which were polluting the river Ganga by discharging industrial effluents into it. Ganga is considered as a sacred river in India and it was being polluted. The Court said that it is the sacred duty of all those who reside or carry on business around the river Ganga to ensure the purity of Ganga. The Court issued directions to the tanneries to install effluent treatment plants and ordered that the tanneries which fail to take minimum steps required for the primary treatment of industrial effluent shall be closed. The Court said that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people.

 

Directions issued to the government

 

In Indian Council for Enviro-Legal Action and Others v. Union of India and Others,[(1996) 3 SCC 212]; a writ was filed by an environmentalist organisation to bring to light the woes of people living in the vicinity of chemical industrial plants in India. The writ was filed not to obtain the closure orders for such units but to compel the central government, state government, state pollution control boards to perform their statutory duties as the failure of the same violated the rights guaranteed under Article 21 of the constitution. The Supreme Court in this case directed the concerned authorities to perform their statutory duties. Further, the court held that on the basis of rule of strict liability and polluter pays, the pollutant industries were liable to pay compensation to the effected persons.

 

Damages for environmental degradation

 

In M.C. Mehta v. Kamal Nath and Others (2000) 6 SCC 213; the Supreme Court calculated the amount of damages not on the basis of claim put forward by either party but on the basis of evaluation by court keeping in mind the deterrent effect of such damages. The Court held that Articles 48A and 51A(g) have to be considered in the light of Article 21 of the Constitution and any disturbance of the basic environment elements, namely air, water and soil, which are necessary for ‘life’, would be hazardous to ‘life’ within the meaning of Article 21. The Court held that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance.

 

Banning of plastic bags

 

In the case of Karuna Society for Animals and Nature v. Union of India, [(2016) 14 SCC 303]; a petition was filed in the the Supreme Court for issuing appropriate directions prohibiting the use, sale and disposal of plastic bags in all municipalities and Municipal Corporations in the country. The petitioned contended that the plastic bags were being consumed by cattle which adversely effected their digestive tract resulting in their death.

 

Vehicular Pollution in Delhi

 

Vehicular pollution in Delhi is at a catastrophic level. A number of public interest litigations have been filed highlighting different angles of this problem. The court has issued a number of directions. Some of them are:

 

In M.C. Mehta v. Union of India,[(1998) 8 SCC 206]; the Supreme Court issued a direction that all commercial vehicles which were more than 20 years old shall be phased out and not permitted to ply in Delhi.

 

In M.C. Mehta v. Union of India, [(2016) 2 SCC 33], it was pointed out that a lot of commercial traffic passes through Delhi even though alternative routes are available for such traffic. The only reason for such traffic entering into Delhi is to save higher rate of toll tax in taking such alternative routes. The Court in this case ordered to impose Environment Compensation Charge on all light and heavy duty commercial vehicles.

 

Saving of Taj Mahal

 

Taj Mahal is an ancient monument of India. However, it is facing threat because of environmental pollution. In M.C. Mehta v. Union of India, [(2000) 10 SCC 551]; the Supreme Court ordered that no vehicles, including that of VIP’s were to be permitted within 500m of Taj Mahal.

 

In M.C. Mehta (Taj trapezium Pollution) v. Union of India, [(2001) 9 SCC 235]; the Supreme Court ordered that all licensed brick kilns within 20 kilometres of Taj Mahal and other significant monuments in Taj trapezium and Bharatpur birs sanctuary to be closed.

 

Conclusion

 

To conclude, in India environmental law has evolved at a fast pace establishing a number of fundamental principles for its better implementation. The Indian judiciary in their quest for innovative solutions to environment related problems issued a number of directions to protect ecology and environment by using the vehicle of public interest litigation. This jurisdiction has been created and carved out by the judicial creativity and craftsmanship. These remedies have proven to be powerful and expeditious tools for redressing environmental grievances because they provide for direct access to the High Courts and the Supreme Court and eliminate the expense and delay of normal appeals.

 

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REFERENCES

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