ABSTRACT:
Judicial activism has been described as the provision related to the same as the “Heart of the Constitution” since this power is used to protect and enforce the fundamental rights of the citizen. In today’s emerging jurisprudence, an environmental right, which encompasses a group of collective rights, is described as “Third Generation rights”. The “First Generation rights” are generally political rights while “Second Generation rights “are economic and social rights. The recognition of environmental rights as a ‘fundamental right’ under Article 21 (Right to Life) of the Indian Constitution has given a constitutional sanctity to the right to enjoy a clean and healthy environment. At present most environmental actions in India are brought under Article 32 and Article 226 of the Constitution. Courts have made use of these powers to remedy past mala-fides and to check immediate and future assaults on the environment. The latest view adopted by the Courts regarding environment and development is, that there can neither be development at the cost of environment, nor environment at the cost of development. Therefore in the light of this the judiciary not only exercises its role as an interpreter of the law but also had to take upon itself the role of the constant monitoring and implementations. In recent years, the Supreme Court has taken on the mantle of monitoring forest conservation measures all over India, and a special ‘Green bench’ has been constituted to give directions to the concerned governmental agencies. Another crucial intervention was made in Council for Environment Legal Action v. UOI, wherein a registered NGO had sought directions from the Supreme Court in order to tackle ecological degradation in coastal areas. Now, the main objective of this paper is to analyze:To study the role of Supreme Court in guarantying the right of pollution free environment.
INTRODUCTION:
“In today’s society interaction with nature is so extensive that the environment question has assumed proportions affecting all humanity. Industrialization, Urbanization, depletion of natural resources of energy has led to the deterioration of environment. While scientific and technological progress of man has vested him with immense power over nature, it has also resulted in the unthinking use of the power, encroaching endlessly on nature”[1]. It is in the last forty years a growing concern has been shown for the environmental issues. Recycling of discarded polythene has assumed the same concern and importance as was shown for the holes in the ozone layer. Thereby some Legislative measures were taken in the last thirty years and some statutes were made regarding protection of environment i.e. Air(Prevention and Control of Pollution) Act, 1981, Environment(Protection Act), 1986 etc. The objectives of all the statutes pertain to the nature and the quantity of the pollutants and their effects on their immediate surroundings. The necessity to protect bio-diversity also engaged the attention of Supreme Court of India in Research Foundation for Science Technology and Ecology v. Ministry of Agriculture[2]. Therefore a need to check environmental pollution was felt by the Supreme Court of India in the case of A.P. Pollution Control Board II v. Prof. M.V Naydu[3]. The law commission was requested to consider the review of environmental laws and suggestions were made that the environmental Courts be set up.
JUDICIAL ACTIVISM:
Now a stage has been set for dealing with public health and the effects of pollutants on man, the concern for the environment, and the impact of the pollutants on the atmosphere, as a whole. This is all because of the judiciary’s strong stance for clean environment. Judicial Activism has played an active role in this regard. The fact that now we have a clear picture of Earth from the space, as to how much damage has already been caused, has led to an increasing interest in the planet we inhabit. The desire to leave a pollution free planet for the generations to come and awareness of the danger which is already being caused is responsible for this development. An examination of the skyline in Delhi would reveal clear sky, clean buildings and whenever strict measures have been taken water life is returning to the rivers and canals.
ROLE OF JUDICIAL SYSTEM:
The judiciary, in their quest for innovative solutions to environmental matters within the frame work of Public interest litigation, looked to constitutional provisions to provide the court with the necessary jurisdiction to address specific issues. In the quest, Articles 142 afforded the Supreme Court of India with considerable power to mould its decision in the order that complete justice could be done. As the Supreme Court is the final authority as far as matters of constitutional interpretation are concerned, it assumed a sort of primal position in the Indian environmental legal System. But, there is constant controversy between development and environment. In Sachidanand Pandey v. State of W.B.,[4]the Calcutta Taj Hotel Case, the Court permitted the construction of a hotel near land belonging to the Calcutta Zoological Garden, stating that tourism was important to the economic progress of the country. At other times, the Court has stated that it is not in the public interest to require the Court to delve into those areas that are the functions of the Executive. The Supreme Court highlighted Professor Joseph Sax’s Doctrine of Public Trust, obligating conservation by the State. Thus in M.C Mehta v. Kamal Nath[5], the Court held that the State, as a trustee of all natural resources, was under a legal duty to protect them, and the resources were meant for public use and could not be transferred to private ownership. Thus, it is possible to see that although there have been initiatives from the Legislature and the Executive, the Judiciary has taken the lead in terms of the actual immediate effect its actions have had on environment.
THREATS TO ENVIRONMENT SHOULD BE ANTICIPATED AND MET:
Keeping in mind, the level of pollutants in the atmosphere and its consequences, like on Taj Mahal which had a damaging effect by the industries near to it which were causing air pollution, the Supreme Court gave several directions. It was observed by the court that this pollution “has to be eliminated at any cost. Not even one percent chance can be taken where the human life apart from the preservation of the prestigious monument like the Taj is involved”. Taking note of the Precautionary principle it was observed that environment measures must anticipate prevent and attack the cause of environmental degradation. It was further observed that the burden of proof is on the industries and they have to show the operation with the aid of coke, or coke is environmentally benign.292 industries were directed to switch over to the natural gas as an industrial fuel. Those industries, which were unable to get the gas connections, were supposed to bring an end to their activities. Reference was also made to the decisions given in Vellore Citizen Welfare Forum v. Union of India[6]and also to the Enviro Legal Action v. Union of India[7].Inthe case of Rural Litigation and entitlement Kendera v. State of U.P[8], the Supreme Court was aware of the fact that the order pertaining to the closure of limestone quarries would cause hardship but “this has to be done and it is observed that it is a price which had to be paid for protecting and safeguarding the rights of a people to live in a healthy environment with a minimal disturbance of a ecological balance and without avoidable hazards to them, to their cattle, to their home and agriculture. Directions were given regarding land use were both for relocating the industries as well as for those individuals whodecide to close down and not to relocate. With regard to the package of compensation proposed for the workman the view expressed was that the earlier directions given were on the lower side and as more than three years had elapsed between the matters being reconsidered, directions were accordingly given to pay six years’ wages instead of one year’s wages. These six-year-periods were to be applicable to those industries who were not relocating and which had been closed down.
LANDMARK JUDGEMENTS BY SUPREME COURT:
- Dehradun Lime Quarries Case[9]:
While closing down lime Quarries in Dehradun mining area, the court held that:
“Preservation of the environment and keeping the ecological balance unaffected is a task which not only government, but every citizen must undertake, as well. It is a social obligation and every citizen is reminded that it is his fundamental duty as enriched in Article 51A (g) of the Constitution.2. Ganges Case[10]
In this case, Supreme Court in 1985 closed down 185 tanneries and 191 other industries in U.P and many other states of West-Bengal and Bihar. It has ordered industries to install effluent treatment plants and air pollution control devices. While closing down the court held that “we are conscious that the closing of the industries may bring unemployment, loss of revenue but life, health and ecology have greater importance to people”.
- Vehicular Pollution Case[11]
On a petition filed for reducing vehicular pollution in the country, the Supreme Court of India in a far reaching order directed the Union Government to provide lead free petrol to four metropolitan cities and to supply petrol with maximum lead content in the entire country. The automobile manufacturers were ordered to equip new vehicles with catalytic converters so that they could run on lead free petrol. The court also asked the Union Government to convert all Government vehicles and public transport to run on CNG fuel or lead free petrol with catalytic converters.
- Stone Crushers Case[12]
The Supreme Court in other landmark judgment closed down stone –crushing units in Delhi and made them shift to “Stone-crushers Zone” in the state of Haryana. The court held that ‘we are aware of the fact that environmental changes are the inevitable consequences of industrial development in our country, but at the same time the quality of environment cannot be permitted to be damaged by polluting the air, water and land to such an extent that it becomes a health hazard for the residents of the area’.
- Environmental Awareness Case[13]
The Supreme Court of India delivered another landmark judgment for promoting environmental education and awareness in country. The Centre came out with a direction of making t Environment a compulsory subject in schools. The court also directed that the Central Government to issue appropriate directions to the state and the Union territories to enforce, as a condition for issuing of a license to cinema halls, video parlors, the showing, free of charge at least two slides or messages on environment in each show undertaken by them. It was directed to show one regular programme of a longer duration each week.
- Taj Mahal Case[14]
In order to save the Taj Mahal, and other historical monuments at Agra, the Supreme Court of India gave directions that no coal-based industry could operate in the Taj ‘Trapezium’ around the Taj Mahal. The polluting industries have been directed either to switch over to gas fuel or to relocate outside the Taj ‘Trapezium’ and the State Government has been directed to provide assistance and incentives to such relocating industries. The Court also directed that ‘the Government of India and the State of Uttar Pradesh should develop a “Green Belt” around the Taj Mahal and provide uninterrupted power supply to Agra to curb the use of diesel generators’.
- The Coastal Area Case[15]
The coastal area of India has a fragile nature and a unique ecology both of which are being threatened by the setting up of hazardous industries, mis- utilization of beaches, mushrooming of unplanned developmental activities, thereby damaging the delicate eco-system.
In a notification issued under the Environment Protection Act, 1986 and Environment Protection Rules, the ministry of Environment and forest declared coastal stretches as Coastal Regulation Zone (CRZ)[16]. In the notification it was stated that the State Government and Union Territories have been slow to formulate coastal management plans.
- The Prawn farming Case[17]
The Supreme Court in this case after due admonition gave judgment that:
- No shrimp cultural pond could exist within the coastal regulation zone and only traditional and improved traditional shrimp farming could be carried out in the area.
- The authority was to enforce the precautionary principle and the polluters pay principle.
A LEGAL PATHWAY: BROAD RIGHTS
The justices judges have worked with lawyers and citizens to encourage conformity of government practices, and create policy change[18]. Many case laws show that the petitioners and judge both have invoked the Directive Principles and Fundamental Rights pertaining to environmental quality, and remedy of advance problem solving over crucial pollution problems. Many judges in the environmental cases have demanded response and actions from the government organizations and industrial agencies and also from those who made the policies and enforcement of laws. They have also appointed commissions and reviews to deliberate problems, analyze them, find their solutions and check the practice of government agencies.
CONCLUSION:
In India, the courts are very conscious of the special nature of environmental rights, considering that the loss of natural resources cannot be replenished. It is easier to reform the malfunctioning of human institutions, and to provide redress for most injuries stemming there from, than to restore a polluted river or a denuded mountain to its pristine glory or to bring back the rain forests and rare species that have disappeared from many parts of the world. Almost all the nations in the world are signatories to the Rio Declaration and various other International covenants and treaties on environmental issues, and have enacted laws in this respect, although the enforcement of such laws has sometimes been slow and tardy. The time has come where now NGOs and concerned citizens use the law effectively for the defense of the environment in their own countries. Current trend in this country is that people are exhausting natural resources without thinking about the future. In order to protect natural resources they must use them in a manner where in sustainable development is possible i.e. development and protection of environment go hand in hand. For this awareness has to be created at the grass root level about of environmental laws, constitutional rights and obligations to protect the environment, as well as the landmark judgments delivered by judges which must be reasonable and fair. The authorities will not protect the environment unless there is a strong people’s movement supporting environmental issues. The use of law, environmental awareness, and grass roots action can play a major role in the protection of the environment and human rights. Now overall the study emphasizes the necessity of improving the functioning of the liability system by making necessary changes not only in the substance of law but also in the working condition of the courts to protect and improve environmental quality in India.
[1] Sri Sachidanand Pandey v. State of W.B., AIR 1987 SC 1109
[2] (1999) 1 SCC 655
[3] (2001) 2 SCC 62
[4] AIR 2007 SC 1109
[5] (1997) 1 SCC 388
[6] 1996 AIR SCW 339
[7] 1996 AIR SCW 1069
[8]AIR 1987 SC 359
[9] (1987) 1 SCR
[10]MC Mehta v. Union of India, (1987) 4 SCC 463.
[11] W.P No. 13029 of 1985.
[12]1991 SCR (1) 866
[13](1992)1 SCC 358.
[14] (1997) 2 SCC 353
[15] (1996) 5 SCC 281
[16] Environmental Guidelines for Development of Beaches and Coastal Regulation Zone Notification, 19 February 1991.
[17] (1997) 2 SCC 87
[18] Although justices initiate this breadth, they are also frustrated by it. In Cmdr Sinha v. Union of India, justice Kirpal reprimanded the petitioner for straying from its original prayers. Personal observations during February 8, 2001 court hearing.
