SARSUNA LAW COLLEGE

 Name – Subhadeep Dhang

 Course & semester – L.L.B (3rd Semester)

 Subject & Paper – Environmental Law

 Project Name – Public Interest Litigation and Judicial

Activism on Environmental Issues

 Roll No. – 003

 Teacher’s name – Prof. Syeda Shamima Begum

 INDEX

1. Abstract (Including Keywords)

2. Introduction

3. Subject Matter

4. Case Law

5. Comparison/Comparative study with present scenario

6. Conclusion

7. Bibliography / Reference
 1. ABSTRACT (Including Keywords)

This paper analyses the role of PIL for environmental protection in the Supreme
Court of India. Through the instrument of PIL, environmental NGOs and social
activists have filed a number of cases for the effective enforcement of environmental
laws and protecting citizens' right to healthy environment. Hearing a series of public
interest environmental litigations the Supreme Court of India has not only ensured
fundamental right of citizen to healthy environment but also has contributed
immensely to the evolution of new principles in environmental jurisprudence. The
Court's approach in entertaining PILs for environmental protection, however, has
not been consistent. For example, while the Court has entertained PILs on
environmental problems such as water pollution, air pollution, and forest
degradation from industrial activities, it has maintained a distance from PILs for
environmental protection due to infrastructure projects such as big dam, thermal
power plant, airport and railway construction, etc. It is also observed that there has
been an attempt within the judicial system to lay down guidelines for entertaining
public interest litigations thereby creating fear among the public spirited persons for
their fight for environmental justice.

The federal Constitution of India imposes duty on both the citizens and the State
to protect and preserve the environment, however the same is non-justifiable, i.e.
not enforceable in the Courts of law. However, the active Indian judiciary has
extended the scope of judicial review even when such duties are not discharged
in the manner they ought to be, as they adversely affect the positive right of
others to have an immaculate environment, thus issuing writs against the
government. This paper analyses notion of Indian judicial activism on the fragile
issue of environment protection and evolution of environment jurisprudence in
the contemporary India. The paper further highlights the commendable efforts of
the Indian Judiciary in acting as a sentinel on the quiver, maintaining an
equilibrium between progress and environment, promoting sustainable
development.
In the preceding decades, the doctrine of locus standi and standing has undergone
phenomenal advancements.

Now public spirited individuals can file writ petitions in the High Courts and
Supreme Court as Public Interest Litigation without following the mandate of
locus standi. For that matter, even the procedural requirements have been
relaxed, in the interest of justice and benefit of the masses. The Supreme Court
while exercising its epistolary jurisdiction has often treated letters written to it as
writ petitions, granting remedies to that aggrieved strata of the society, who are
otherwise incapable or procuring justice for themselves. However, malicious and
vexatious petitions are dismissed with heavy costs

KEYWORDS :-

Judicial Activism, Environmental Litigation, Environmental Maladies, public

interest litigation , environment protection
 2. INTRODUCTION

According to Indian law, PIL means a mode of litigation which is carried out for
protection of public interest. This type of litigation is introduced in a court of
law, where the court itself takes cognizance or by any other private party and not
by the aggrieved party. It is not necessary, for the exercise of the court's
jurisdiction, that the victim whose rights are violated should personally approach
the court. Public Interest Litigation is the power which has been given to the
public by courts through judicial activism. These cases takes place when the
victim is devoid of necessary resources to initiate litigation or his freedom has
been subdued or infringed to move to the court. The court is empowered to take
cognizance of the matter itself and can proceed by suo moto or cases can also be
commenced by the  petition filed by any public-spirited individual.

The Indian judiciary has always kept its mind open to bring about new
dimensions in the decision making process. Over time there has been an effort to
bring about new provisions in law to fit the best to the environmental needs and
to promote the protection of environment. Judicial Activism in India can be
witnessed with reference to the review power of the Supreme Court under Article
32 and High Courts under Article 226 of the Constitution, particularly in public
interest litigation cases.

In simple words, public interest litigation means any public-spirited citizen can
move/approach the Court for the public cause (in the interest of the public or
public welfare) by filing a petition:

o In Supreme Court under Art. 32 of the Constitution;

o In the High Court under Art. 226 of the Constitution; and

 o under Sec. 133 Cr.P.C. before the court of Magistrate

3. SUBJECT MATTER

To identify the specific conditions and circumstances that can play a positive role
in promoting an increase of social welfare, specifically a reduction of pollution
levels, PIL must be analyzed from a broader law and economics framework.
Such an approach to the analysis of PIL is yet to be undertaken, but is necessary
to indicate when PIL can play this positive role. Such an analysis needs to put
PIL in a broader perspective by comparing it to other environmental legal
instruments, which may reveal the circumstances under which PIL produces
comparative benefits. The methodology we apply to answer the above questions
will be both theoretical and empirical. At a theoretical level, the strengths and
weaknesses of existing approaches to environmental problems in developing
countries like India will be briefly reviewed. When some of the weaknesses of
these traditional approaches have been identified, one can understand why and
where PIL may play a role in environmental policy. Indeed, at a theoretical level
several important questions arise. For example, how can the Indian Supreme
Court enforce decisions that reduce the emissions of certain pollutants upon a
large number of polluters? We will look at how the Supreme Court of India has
dealt with specific practical problems and potential weaknesses of PIL .The
empirical analysis will focus on the Supreme Court of India's experience with
PIL. We will discuss what significance the results seen in India have for other
countries, and whether it is possible, at the theoretical level, to predict the
circumstances and conditions under which PIL can be expected to play a positive
role in environmental policy enforcement in other countries. By transposing
elements of PIL in India to a more general level, we will critically examine its
effectiveness. This examination begins by noting that pollution levels have
decreased as a result of case law of the Supreme Court of India; we continue by
considering the cost associated with this form of pollution abatement, and
whether PIL is an effective instrument if other mechanisms, such as public
enforcement or private litigation, are available. At a theoretical level, some ideas
still have to be formulated concerning the circumstances where the comparative
benefits of PIL may be strong.

4. CASE LAW

(I) Ratlam Municipal Council v. Vardhichand (AIR 1980)- The judgment of

the Supreme Court in instant case is a land mark in the history of judicial
activism in upholding the social justice component of the rule of  law by fixing
liability on statutory authorities to discharge their legal obligation to the people
in abating public nuisance and making the environmental pollution free even if
there is a budgetary constraints., J.Krishna Iyer observed that, “social justice is
due to and therefore the people must be able to trigger off the jurisdiction vested
for their benefit to any public functioning.” Thus he recognized PIL as a
Constitutional obligation of the courts

(II) Gotham Construction V. Amulya Krishna Ghosh (AIR 1968)- which laid

down a condition for industries in the residential areas. The Court held that these
factories need o have proper equipment to cut down the noise or otherwise could
not operate. The case addressed the issue of noise pollution by workshops/
factories setup in residential areas.

(III) In M.C. Mehta V. Union of India (AIR 1988) also known as the Gang
water pollution case – The Court highlighted the importance certain provisions in
our constitutional framework which enshrine the importance and the need for
protecting our environment. Article 48-A provides that the State shall endeavour
to protect and improve the environment and to safeguard the forests and wild life
of the country. Article 51-A of the Constitution of India, imposes a fundamental
duty on every citizen to protect and improve the natural environment including
forests, lakes, rivers and wild life. The Court stated the importance of the Water
(Prevention and Control of Pollution) Act, 1974 (‘the Water Act’). This act was
passed to prevent and control water pollution and maintaining water quality. This
act established central and stated boards and conferred them with power and
functions relating to the control and prevention of water pollution.

(IV) In Rural Litigation and Entitlement Kendra, Dehradun v. State of

U.P.1985 , the Supreme Court was faced with the problem of the mining
activities in the limestone quarries in Dehradun-Mussoorie area. This was the
first case of its kind in the country involving issues relating to environment and
ecological balance and brought into sharp focus the conflict between
development and conservation. In this case, the Supreme Court emphasized the
need for reconciling development and conservation in the larger interest of the
country. It was held that pollution caused by quarries adversely affects the health
and safety of people and hence, the same should be stopped as being violative of
Article 21. In this case, the Supreme Court for the first time held that the right to
wholesome environment is a part of right to life and personal liberty guaranteed
under Article 21 of the Constitution.

(V) In Kinkeri Devi v. State, 1988, Himachal High Court that in Article 48-A
and Article 51-A(g) it was held that it is both constitutional pointer to the state
and the constitutional duty of the citizens not only protect the environment but
also improve it and to preserve and safeguard the forests, the flora and the fauna,
the rivers and the lakes and all other water resources of the country.
(VI) In Damodhar Rao v. S.0. Municipal Corporation Hyderabad
(AIR1987), the Court resorted to the Constitutional mandates under Articles 48A
and51A(g) to support this reasoning and went to the extent of stating that
environmental pollution would be a violation of the fundamental right to life and
personal liberty as enshrined in Article 21 of the Constitution. A relationship
between fundamental rights and right to an unpolluted environment was
discussed.

(VII) In the famous Taj Mahal Case (M.C. Mehta V UOI 1986) , ample of
industries near Taj Trapezium Zone were using coke and coal as an industrial
fuel. These industries were ordered to be relocated to an alternative site as
provided under Agra Master Plan. The rights and duties of the workmen in the
industries were also specified by the court following the principle of sustainable
development. Considering the Taj Mahal not just as a tourist place, but also a
cultural heritage, the Indian Judiciary took and active step to address the same.

5. COMPARISON / COMPARITIVE STUDY WITH PRESENT

SCENARIO

The Indian Courts have also formulated the following principles keeping in view
the environmental needs. They are as follows:

Precautionary principle: (a) The Indian Judiciary actively supports the

Precautionary Principle. In the judicial pronouncement of Vellore Citizens
Welfare Forum v UOI, 1996, the Court opined that sustainable development is
the need of the hour. The court emphasized on the fact that there should be a
balance between economic growth and protection of the environment. The Court
rejected the traditional concept that ecology and development are opposed to
each other. The Court also reviewed the development of the concept of
sustainable development in the international sphere. (b) The Precautionary
Principle was very comprehensively reviewed by the Apex Court in the case of
AP Control Pollution Board vs. Prof M V Nayadu, 1999, The Court stated
that it is better to gowrong in taking caution and prevent environmental harm
rather than waiting for the issue to materialize into an irreversible problem. The
Court opined that the Precautionary Principle was evolved because of lack of
scientific certainty only, and the principle involves anticipating the harm the
environment may suffer andact on the basis of that.

Polluter pays principle: The Oleum Gas Leak case (M.C. Mehta vs.Union of
India) AIR 1987 SC 1086, the Court laid down that an enterprise engaged in a
hazardous orinherently dangerous industry which poses a potential threat to the
health and safety of persons working in the factory and to those residing in the
surrounding areas, owes an absolute and non-delegable duty to the community to
ensure that no harm results to any one on account of hazardous or inherently
dangerous nature of the activity which it has undertaken. The enterprise is
absolutely liable to compensate for such harm and irrespective of all reasonable
care taken on his account. The larger and more prosperous the enterprise, greater
must be the amount of the compensation payable for the harm caused on account
of an accident in the carrying on of the hazardous or inherently dangerous
activity by the enterprise.

The principle of public trust: Another major principle accepted by the Supreme

Court is the public trust doctrine for the protection of natural resource. This
doctrine came up for consideration in the M.C. Mehta v.Kamal Nath (1997).
Another major principle accepted by the Supreme Court is the public trust
doctrine for the protection of natural resource. This doctrine came up for
consideration in the M.C. Mehta v. Kamal Nath. A rather unusual situation had
arisen in this case. The flow of the river Beas was deliberately diverted because it
used to flood Span Motels in the Kulu Manali valley in which a prominent
politician’s family had a direct interest. The motel was also allotted protected
forestland by the State Government and had also encroached on protected forest
land, which encroachment was subsequently regularized. The Supreme Court
used the public trust doctrine in this case to restore the environment to its original
condition. Briefly, this doctrine postulates that the public has a right to expect
that certain lands and natural areas will retain their natural characteristics.
Applying the public trust doctrine, the Supreme Court cancelled the lease of
forest land granted in favour of Span Motels and the State Government was
directed to take over the area and restore it to its original condition. The motel
was directed to pay compensation (damages for restitution of the environment
and ecology of the area). It was also asked to show cause why a pollution fine be
not imposed.

Inter-generational equity principle: In several case the Indian judiciary

recognized this principle clearly. In the case of State of Himachal Pradesh v.
Ganesh Wood Products (1995), the court held that a state’s approval is contrary
to public interest. More over court also held that maintenance and preservation of
forest, natural resources etc for future generation is a duty on the part of
governments as well as on the citizens based on the concept of sustainable
development and inter-Generational equity principle.

Absolute liability principle: The concept of absolute liability evolved in India

after the case of M.C Mehta vs Union of India (1987), famously known as
Oleum Gas Leak case. This is one of the historic cases in the Indian Judiciary.
The case of M.C Mehta is based on the principle of strict liability but with no
exception were given and the individual is made absolutely liable for his acts. It
is based under this principle that the defendant won’t be allowed to plead defence
if he/she was at fault as it was laid down in Ryland vs Fletcher case. After the
Bhopal gas leak case many people lost their lives and are suffering from some of
the fatal diseases through the generation and because of this there was an urgent
need to develop a rule under strict liability which had no exceptions available to
the defendant to escape from the liability.

6. CONCLUSION

Thus, it is clearly evident that the Supreme Court is, at the present time,
stretching the different legal provisions for environmental protection. In this way,
the judiciary tries to fill in the gaps where there is laciness of the legislation.
These new innovations and developments in India by the judicial activism open
the numerous approaches to help the country. In India, the courts are extremely
cognizant and cautious about the special nature of environmental rights,
considering that the loss of natural resources. However, there is a little more that
can be done by the courts:

(I) Public Awareness

(II) Regular Inspection

(III) Environmental Education

Indian Judiciary, especially, Supreme Court of India had consolidated the

environment Jurisprudence on case to case basis and developed some outstanding
principles to be followed by lower courts while dealing environment cases. They
have tried to fill the vacuum created by legislature and paralyzed by
administrative machinery. Indian Judiciary have got the necessary impetus from
Civil Society’s activism in environment protection, some stalwarts like M.C.
Mehta, International Conventions like Earth Summit, Kyoto Summit, which
maintained the focus of such issues among the business of the Governments. The
interpretation by the Indian Judiciary in favour of marginalized people while
counting protection of environment as investment by the community live by the
side of nature and entrepreneur has to share economic fruits with those
communities as ecological balance contributed the industrial output also. Such
strong ethical and legal backing provided by Indian Judiciary has modelled the
whole Environment movement in India and now they are leading the world.
Indian Environment jurisprudence shaped by and large by the Indian Judiciary
within the Indian Constitution is major achievement after Stockholm conference.
Many more things yet to be done and many strictures, comments and orders have
yet to be followed by different governments in this country.

The failure of the state agencies to effectively enforce the environmental laws
apart from non-compliance with statutory norms by the polluters resulted into
further degradation of the environment which has affected the health of the
people and forced the environmentalists and the residents of polluted areas as
well as the non-governmental organizations to approach the judiciary,
particularly the higher judiciary, for the suitable remedies. Of course the
initiative for the protection of environment came from the legislature but the
failure of the executive to implement the environmental laws in India created the
ground for the intervention of the judiciary.The judiciary made several attempt to
resolve the conflict between the development and environment. The
environmental jurisprudence in India developed through the instrument of Public
Interest Litigation (PIL).

Under the PIL, the judiciary liberalized the concept of locus standi and thereby
empowered the people to approach the judiciary when the public interest is
harmed by either the action of the state, organization or individual. Unique
feature of the Indian environmental jurisprudence is the important role played by
the PIL. The activism of the higher judiciary regarding the cases related with
violation of environment and human rights has acquired the name of judicial
activism. The Supreme Court has not only played a leading role in the
implementation of environmental laws but also interpreted the right to life under
Article 21 to include a right to healthy and pollution free environment, as a
fundamental right.

7. BIBLIOGRAPHY / REFERENCE

Reference Book :-

1. Principles of International Environmental Law and Judicial Response in India by Dr.

S.K. Gupta

2. Judicial Activism and Environmental Jurisprudence in India written by Shri Rohan

Bagai

Website :-

1. indianenvironmentalportal.org.in
(Last visited on 28/10/20)

2. http://www.legalserviceindia.com/articles/jjj.htm
 (Last Visited on 28/10/20)

3. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1668&context=elr
(Last visited on 29/10/2020)