19 Access to Justice & Environment

Dr. G. Shaber Ali

1. Introduction

During recent times there is a momentum to protect and preserve our natural environment. Protection of nature is important for our survival on this earth. If we destroy our nature, nature destroys us. Protection and conservation of environment is the duty of each and every person. Natural resources belong to the community. It does not belong to any specific person. Pollution of environment does not result or cause damage to one person, but it leads to causing damage or injury to the entire community.

Development of industrialization, science, and technology, led to number of problems in the world. Developmental activities resulted in environmental pollution, hazards and degradation of our natural resources. Concept of environmental protection and preservation of natural resources evolved only after the first global conference on Human Environment at Stockholm in the year 1972. Each and every country started making enactments to protect environment within their local territories as per their local limitations and restrictions.

In this paper an attempt is made to analyses the various sources of protection, rights, remedies, and access to justice with respect to environmental problems in general and specific.

2.Learning Outcomes

After reading this module, the reader is able to

1) Understand the protection available to environment during ancient times

2) Learn various remedies available in case of environmental pollution in Indian scenario

3) Comprehend various rights available to community against environmental pollution and access to justice

4) Assess the remedies available under special enactments to deal with environmental pollution

3. Protection of Environment during Ancient Period

Protection of environment is not a new idea in India. The idea of access to justice in case of environmental problems can be traced back to ancient times. Environmental protection was mentioned in ancient scriptures for example Bible, Quran, Vedas, Puranas, Sikhism, and Jainism. During ancient times people started worshipping animals, birds and trees. Once they worship them as abode of God, vahanas of God, vana devata and vruksha devata, as a result they are not daring to destroy the nature. Even in the ancient times temples and shrines are constructed in forest area. People believed that God need peace and he wish to associate with nature. Hence people are not inclined to destroy the surroundings of temple or shrines. If each and every one of us believes that this universe is the creation of God and other natural resources are created by him, we will protect and preserve nature and natural resources. Even today many people worship nature and natural resources while performing their day to day activities. This shows the concern for protection of environment in India.

When the concept of State evolved, State became the protector of environment as State is community of considerable number of persons, occupying a territory permanently, independent of external control, and have an organized government to which habitual obedience is rendered by the inhabitantsi. Emergence of State resulted in enacting the laws to control the human behavior.

4. Role of State –Environmental Issues

Environmental problems are increased enormously in recent times. These problems led to global warming, acid rain, ozone depletion, landslides, earth quakes, and tsunami. The main cause for environmental issues is industrial development. Environmental problem is not individual issue, it is community problem. Hence, causing damage to environment means causing injury to the entire community. When State came into existence, powers are given to the State to issue license, permission, approval or permit to start industries, plants, proposals and project. No one can start any industry or project without the consent of the State. Therefore duty is imposed on the State to protect the interest of the community when they are granting any permission to project or industry. Community interest is more important than developmental activity. Sometimes State’s approval or permission is leading to environmental pollution and causing damage or injury to the community in general. In such situation community can avail various remedies (access to justice) under various general enactments that are in force in India. Available remedies are shown in the form of chart.

4.1 Self help:

This is the first remedy in case of environmental pollution. It is the duty of the community to create awareness about environmental pollution and each and every one should participate in prevention and control of all types of pollution. If we cannot prevent and control our activities in prevention of pollution we cannot advocate to others. One of the best remedy to prevent pollution is every citizen should have concern towards environmental protection. Community should be vigilant about any kind of pollution and fight for such cause. If we don’t fight for our protection we can advocate others to protect and fight for such environmental problems. Main concern of the community is to follow the ancient traditions, culture, customs and practices in protection of our nature/environment.

4.2 Civil Remedy:

Law of torts or common law provides remedy in matters dealing with environmental pollution. Accesses to justice in environmental matters are embedded under law of torts. Law of Torts is unwritten law developed mainly due to judicial pronouncements. Law of torts contains the following provisions that deal with protection of environment special.

In case any person violates the above provisions nuisanceii, negligence,iii strict liabilityiv/absolute liability and causes environmental pollution, the aggrieved party can approach civil court to avail any one of the following remedies in prevention of environmental pollution.

4.3 Criminal Remedy:

Systematic approach to avail remedy in relation to environmental pollution is available under criminal law. Criminal law provisions dealing with environmental aspects are available under Indian Penal Code, 1860 and Criminal Procedure Code, 1973. Indian Penal Code, 1860 drafted by British, incorporated various provisions like public nuisance, adulteration of food, drink and drugs. Apart from this Penal Code also contains separate provisions to deal with protection of environment that is fouling of waterv and air pollutionvi and provides punishment in such situation. Cr PC, 1973 lay down the procedure and remedy in case of public nuisance. Sec. 133vii of Cr Pc, 1973 empowers the Executive Magistrate to pass conditional order to remove public nuisance basing on the report of the Police Officer or as he may think fit in such matters. To avail the remedy under criminal law complainant has to approach criminal court. The remedy in criminal matters is imprisonment of the accused person and also liable to fine.

4.4 Indian Constitution –Environmental Protection:

Originally Indian Constitution has no specific provision regarding environmental protection. However, Indian Constitution was amended in the year 1976 to incorporate new provisions for the conservation and protection of environment. This amendment was introduced after Stockholm Conference, 1972 that is the first global conference dealing with human environment. The two new constitutional provisions namely, Art. 48A and Art.51A (g) were inserted by the 42nd Constitutional (Amendment) Act, 1976. Art. 48Aviii specifically imposes a duty on the State to protection and improvement of environment. Art. 51A (g)ix provided that protection of environment was fundamental duty of every citizen of India. Besides imposing a duty on the State and citizens, Constitution also provides various other provisions to provide access to justice to the citizens. writPI

4.4.1 Arbitrary State Action:

State being custodian of environment, it is the duty of the State to protect and conserve our environment. If state takes any decision in relation to environment, if the decision is arbitrary, the court will stuck down the action of the State as violative of Art. 14 of the Indian Constitution. In Bangalore Medical Trust v. BS Mudappax, the issue was whether an open space laid down as such in a development scheme could be leased out of a private nursing home. The court held that open space being the lung space for urban sprawl is an essential ingredient of a development scheme. Further the court held that conversion of open space into a hospital site is invalid, action of the Bangalore Development Authority is arbitrary and violative of Art.14 of Constitution.

4.4.2 Violation of Fundamental Rights:

Indian judiciary interpreted and embedded right to healthy environment as fundamental rights under Part III of the Constitution. The advent of Public Interest Litigation and judicial activism has strengthened this right and it has been held to be a part of right to life and liberty under Ar. 21 of the Constitution.

The Apes Court for the first time recognized requirement of healthy environment as a part of right to life under Art. 21 in its landmark decision in Rural Litigation and Entitlement Kendra, Dehradun v. State of UPxi. Once again the Supreme Court in Subhash Kumar v. State of Biharxii Justice KN Singh observed that right to live includes the right to enjoyment of pollution free water and air for full enjoyment of life. The ethos of rehabilitation of the project affected people (PAPs) has steadily grown through judicial decisions. Right to life also includes right to livelihoodxiii. Right to livelihood is also recognized in environmental matters. Wider dimensions of rehabilitation were involved when multitudes of people were to be ousted and rehabilitated, for instance in the case of construction of Narmada Damxiv.

Right to know is closely linked with freedom of speech under Art 19 (1) (g) and right to life and liberty under Art. 21 of the constitution. It is the basic right of democracy like India as every citizen must have access to information regarding government actions or decisions. Large number of public interest petitions came before the Supreme Court for its decision were due to non disclosure of information about which the affected people had a right to know. This is true with respect to those cases which involved construction of dams or installationxv of plants or project which involved displacement of people and their resettlement and rehabilitation elsewhere. The role of news paper as a media to disseminate information in various matters is very important. It also helps in mobilizing public opinion. The role of media in publicizing and generating consciousness about protection and preservation of environment leads to right to information. Openness and fairness are the watchwords of modern democratic administration. People are having a right of access to the deliberations of environmental protection agencies, must have timely, comprehensive information. Then only the people will be in a position to render active and informed participation in the decision making process. Public scrutiny and participation will force decision making machinery to act more just and fair manner in facilitating the realization of the right to a healthy environment.

Besides this even under the special enactments like Water Act, Air Act and Environmental Protection Act, 1986 duty is imposed on the Pollution Control Board to call for public hearing before giving permission to any project/proposal/plan etc. Public hearing is mandatory as per amended the Environmental Impact Assessment Notificationxvi.

The Supreme Court in PA Jacob v. Supdt. Of Police, Kottayamxvii, observed that freedom of speech under Art 19(1) (a) does not permit to use loudspeakers or sound amplifiers which may cause nuisance to others. Therefore, noise pollution caused by loudspeakers can be barred and such a ban will not be violative of Art. 19 (1) (a). The freedom of speech and expression guaranteed under Art. 19 (1)(a)  is not absolute and it is subjected to reasonable restrictions under Art. 19 (2). Further under Art. 19 (1) (g) the freedom of trade and business available to every citizen of India is not absolute and it is subjected to reasonable restrictions in the interest of general public. Any trade or business activity which causes damage to environment can be banned or disallowed and such ban shall not be violative of Art. 19 (1) (g).

4.4.3 Writs for Protection of Environment:

In case of violation of fundamental rights the aggrieved person can approach Supreme Court or High Court under Art. 32 or 226 of Indian Constitution to avail remedy in the nature of writ. Court can grant any one of the writs (Mandamus, Certiorari, Prohibition and Quowarranto) in the matters relating to environment. Further the court can grant any order in the nature of writ. Environmental pollution directly related to human health and well being of the pubic, the Supreme Court or High Court have jurisdiction to entertain writ for the protection and improvement of environment. The Courts have substantially in protecting and improving environment by issuing writs/order/directions on environmental related matters.

For instance in M C Mehta v. UOIxviii, the Court ordered prevention of vehicular pollution caused by traffic vehicles in the National Capital Territory, New Delhi.Again the Court issued the orders to protect the most historical monuments Taj Mahal against environmental pollutionxix.

4.4.4 Public Interest Litigation:

Locus standi no longer remains a hurdle in environmental law cases in India. In 1980s, a wave of environmental litigation was witnessed. Most of such cases have been in the form of class action and PIL, as environmental issues relates to diffusing of interests, rather than to ascertainable injury to the individual. Today a person acting bonafide and having sufficient interest can move the courts for redressing pubic injury, enforcing public duty, protecting social and collective rights and interest and vindicating public interestxx.

Environmental groups become spokespersons of environmental causes and filing PIL before the court to avail appropriate remedy in protection and improvement of environment. Environmental activist like MC Mehta, Vellore Citizens Welfare Forum, Tarun Bharat Sangh, Indian Council for Environ Legal Action, Goa Foundation, Buffalo Traders Welfare Association, played an important role in protection of environment. When PIL was filed by NGO’s Court provided appropriate remedy for the protection and improvement of nature and natural resources.

5. Evolution of New Doctrines

Various new principles are recognized at international level to deal with environmental issues. The principles of sustainable development received international recognition during Brunt Land Report, in the year 1987. The precautionary principlexxi emphasized by the United Nations Commission on Environment and Development (UNCED), held in Rio De Junerio in 1992 signifies a preventive approach. Further the polluter pay principle was recognized as an integral part of sustainable development by the international community and was incorporated as Principle 16 of the Rio Declaration. These well recognized principles for the protection and improvement of environment has been unanimously accepted by the world countries.

Though there is no separate law incorporating these principles in India, but the Indian judiciary has formulated them through it judicial activism, to develop a better regime for protecting the environment. The polluter pay and precautionary principles were accepted as a part of our legal system in Indian Council for Enviro Legal Action v. UOIxxii and Vellore Citizens Welfare forum v. UOIxxiii, court directed assessment of the damage to the ecology and environment and imposed on the polluters the responsibility of paying compensation.

The principle of public trust is based on the assumption that natural resources like water, air, sea, forest being the gift of nature, should be freely available for use to everyone as there can be no private ownership on these resources. The Supreme Court has declared the doctrine of public trust as the law of the land and invoked it in MC Mehta v. UOIxxiv, in this case the court found that the flow of river was diverted for eco tourism purpose. The court held that state is a trustee to safeguard the nature and natural resources and introduced the doctrine of public trust as a salient principle of sustainable development.

Access to Justice under Special Enactments

Besides the above general provisions and statutes Indian Parliament enacted specific legislation to protect and improve our environment. Specific enactments like Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and Environmental Protection Act, 1986 were made to comply with international conventions. These enactments establish separate authorities and also deals with appropriate remedy to prevent and control such kinds of pollution. Under these enactment authorities like Central Pollution Control Board (CPCB), State Pollution Control Board (SPCB) and Joint Pollution Control Board are set up by the appropriate authority. These authorities are vested with powers to grant civil remedy against polluting units causing water, air and other kinds of pollution.

Board is empowered to issue any directions in writing to any person, officer or authority and such person, officer or authority shall bound to comply such directions. The power to give directions includes

1. Direction for the closure or prohibition of any industry, operation or process or

2. Stoppage or regulation of supply of electricity, water or any other service.

The Board got power to move the Court for action against apprehended pollution of water in streams or wells. Further criminal court can take cognizance of an offense under the Water Act and Air Act on a private complaint. Court will take cognizance of any offense under these Acts except on a complaint made by

1.The Pollution Control Board or any officer authorized by the Board or

2.Any person who has given notice of not less than sixty days in the prescribed manner, of the alleged offense and of his intention to make a complaint to the Board or the authorized officer.From this it is very clear that any citizen can lodge a complaint to the court to remove and dispose of any polluting substance.

6.1 Role of NGT

The National Green Tribunal has been established on 18.10.2010 under the National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.

This Tribunal have the jurisdiction over all civil cases where a substantial questions relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactment as specifiedxxv. Further any aggrieved person can prefer an appeal to this Tribunal against the order or decision made under Water Act, Air Act, EP Act, Forest Conservation Act, and Biological Diversity Act, 2002xxvi. Any aggrieved person against the orders of the Tribunal can prefer an appeal to the Supreme Court within ninety days from the date of communication of award, decision or order of the Tribunalxxvii.

National Green Tribunal is set up to specifically deal with the most important environmental matters and speedy disposal of complaints. This is a specialized tribunal deal with environmental pollution. Tribunal can provide any relief and compensate for damages to person or property in matters relating to environmental pollution. Aggrieved person can approach Tribunal towards access to justice against environmental damage.

7.  Concerns

Environmental protection and access to justice is not a new concept in Indian situation. People in India are protecting their surroundings by following old tradition, culture and customs. Due to industrialization, development of technology, science that leads to environmental damage, to our nature and natural resources. Looking in to today’s needs and access to justice in environmental matters various authorities are set up to provide relief and remedy to the community. Following are some of the challenges before the authorities while dealing with environmental concern

1.Each and every statute made by the law makers contains number of loopholes which will be helpful to the industry or industrialist.

2.Due to loopholes authorities are also not in a position to grant appropriate remedy or relief to the aggrieved. But in majority of the decisions the higher courts played an active role in protection and improvement of environment and laid down new doctrines in environmental matters.

3.Permission or consent granted by the government is arbitrary and against the interest of community. Though public participation is necessary before giving consent or permission, most of the situations public role is limited and incomplete.

8.Summary

In this module we discussed about the duties of the State against the community in dealing with environmental apprehension.

There was a discussion about various remedies like civil, criminal and writ jurisdiction. To avail Access to justice in environmental issues the aggrieved person or the community can approach Civil Court, Criminal Court and High Court or Supreme Court to avail appropriate relief.

Further we examined the specific kinds of pollution and remedy available under specific and specialized tribunals in environmental issues.

In this module we dealt with various new doctrines that are accepted at international arena which are adopted and implemented by the Indian judiciary to protect our nature.

REFERENCES:-

1. Paranjape VN, Environmental Law, (Central Law Agency, Allahabad, 2013)

2. Leela Krishnan P, Environmental Law, (Lexis Nexis Butterworth’s., New Delhi,2005)

3. Ali Shaber G, “Environmental Jurisprudence – Indian Scenario” All India Reporter (Nagpur) March 2004 p.88

4. Shastri SC, Environmental Law, (Eastern Book Company, Lucknow, 2002)

5. Leela Krishnan P, Environmental Law case Book, (Lexis Nexis Butterworth’s.,New Delhi, 2nd Ed.2006)

6. Jain MP, Indian Constitutional Law, (Lexis Nexis Butterworth’s., New Delhi, 6th Ed.2011)

7. Ali Shaber G, ‘Review of Pre Independence legislations on Environment in India’,Lexpressions, Vol.1, VMS College of Law, Panaji, Goa, November 2006

8. Ratanlal & Dhirajlal, Law of Torts, (Wadhwa and Company, Nagpur, 25th Ed. 2008)

9. Ratanlal & Dhirajlal, The Indian Penal Code, (Wadhwa and Company, Nagpur, 30th Ed. 2005)