Environmental Law

Project Work

Judicial Activism & Protection of Environment in India

Date of Submission: May 26, 2021

Name: Mayank Panwar

Section: B
Roll Number: 1901059
B.A. LL.B. (Hons.) 4th Semester
Dr. B.R. Ambedkar National Law University, Sonepat
Introduction:

Environment is the wellspring of life on earth like water, air, soil, etc., and determines the
presence, development and improvement of humanity and all its activities. The concept of
ecological protection and preservation is not new. It has been intrinsic to many ancient
civilizations. Ancient India texts highlights that it is the dharma of each individual in the
society to protect nature and the term ‘nature’ includes land, water, trees and animals which
are of great importance to us. Therefore, there arises a requirement for a comprehensive
analysis of the protection of the environment. In recent years, there has been a sustained
focus on the role played by the higher judiciary in devising and monitoring the
implementation of measures for pollution control, conservation of forests and wildlife
protection. Many of these judicial interventions have been triggered by the persistent
incoherence in policy-making as well as the lack of capacity-building amongst the executive
agencies.1 PILs have been prominently relied upon to tackle environmental problems. The
contemporary tendency of judiciary is to safeguard and enlarge the individual rights through
the medium of judicial decisions that depart from established principles, precedent &
legislative intent.2 Recently, the judiciary delivering many landmarks verdict concerning
personal liberty, illegal detention, environmental & consumers matters, health related
problems, rights of children and women, minority affairs and human rights issues by
interpreting the procedural rules and various laws for a better regime of social justice of what
is known as Judicial Activism.

Concept of Judicial Activism:

Judicial Activism is a concept that was originated in USA in 1947. It can be defined as a
philosophy of judicial decision making where by judges allow their personal views regarding
a public policy instead of constitutionalism. This concept mainly deals with the involvement
of Judiciary in making legislations that deems fit for the society. As through development of
various legislations as well as our legal system it is clearly evident that with the involvement
of judiciary, the legislations are coming more effectively.

1
Shibani Ghosh, Indian Environmental Law: Key Concepts and Principles, CENTRE FOR POLICY
RESEARCH (Apr. 9, 2019, 11:42 PM), https://cprindia.org/news/7655.
2
Ibid.
So, this active role of judiciary in preserving the rights of citizens as well as preserving the
constitutional and legal system of the country is known as judicial activism. The engagement
of judiciary has led to arrival of more prominent environment legislation in India as with the
introduction of this concept in our country environment issues were given proper regard
which led to the inclusion of right to clean and healthy environment as a part of our
fundamental right which is guaranteed by the constitution.3

Constitutional Aspects on Environmental Law:

In the Indian Constitution, it was the first time when responsibility of protection of the
environment imposed upon the states through Constitution (42nd Amendment) Act, 1976.4

Article 48A5 states that, the State shall endeavor to protect and improve the environment and
to safeguard the forest and wildlife of the country.” The Amendment also inserted Part VI-A
(Fundamental duty) in the Constitution, which reads as follows:

Article 51A(g)6: “It shall be duty of every citizen of India to protect and improve the natural
environment including forests, lakes, and wildlife and to have compassion for living
creature.”

In Sachidanand Pandey v. State of West Bengal 7, the Supreme Court observed “whenever
a problem of ecology is brought before the court, the court is bound to bear in mind Article
48A and Article 51A(g).”

Judicial Remedies for Environmental Pollution:

3
Niyati Mahajan, Judicial Activism for Environment Protection in India, INTERNATIONAL RESEARCH
JOURNAL FOR SOCIAL SCIENCES (Feb. 5, 2015, 04:38 PM),
http://www.isca.in/IJSS/Archive/v4/i4/2.ISCA-IRJSS-2014-327.pdf.

4
B.P. Sharma, Constitutional Provisions Related to Environment Conservation: A Study, THE GLOBAL
NETWORK FOR HUMAN RIGHTS AND THE ENVIRONMENT (Mar. 10, 2016, 09:43 AM),
https://gnhre.org/repository_entry/constitutional-provisions-related-environment-conservation-study-b-p-
sharma/.

5
The Constitution of India, 1950.
6
Ibid.
7
AIR 1987 SC 1109.
The remedies available in India for environmental protection comprise of tortuous as well as
statutory law remedies. The tortuous remedies available are trespass, nuisance, strict liability
and negligence. The statutory remedies incorporate: Citizen’s suit, e.g.,

 an activity brought under Section 19 of the Environmental (Protection) Act, 1986,

 an activity under area 133, Criminal Procedure Code, 1973 and
 an activity brought under the Section 268 for open irritation, under Indian Penal Code,
1860.

Apart from this, a writ petition can be filed under Article 32 in the Supreme Court of India or
under Article 226 in the High Court.

Tortious Remedies:

Damage: In the recent case of Shriram Gas Leak8, involving a leakage of Oleum gas which
resulted in substantial environmental harm to the citizens of Delhi, the Apex court held that
the quantum of damages awarded must be proportionate to the capacity and magnitude of the
polluter to pay.9 However, the Apex Court has deviated from this test in the Bhopal Gas
Tragedy.

Injunction: The purpose of injunction is to prevent continuous wrong. The grant of perpetual
injunction is governed by Section 37 to 42 of the Specific Relief Act, 1963.

Nuisance: Nuisance means the act which creates hindrance to the enjoyment of the person in
form of smell, air, noise, etc. According to Stephen, nuisance is anything done to hurt or
annoyance of lands, tenements of another and not amounting to trespass. Nuisance can be
divided into two categories:

 Private Nuisance – It is a substantial and unreasonable interference with the use and
enjoyment of one’s land.
 Public Nuisance – It is an unreasonable interference with a general right of the public.
8
1987 AIR 1086, 1987 SCR (1) 819.
9
Isha Mittal, Judicial Activism in Environment Legislation in India, LEGAL SERVICES INDIA (Sep. 27, 2012,
12:08 PM), http://www.legalserviceindia.com/legal/article-3715-judicial-activism-in-environment-legislation-
in-india.html#:~:text=The%20most%20significant%20reason%20for,of%20the%20Constitution%20of
%20India.
Trespass: It means intentional or negligent direct interference with personal or proprietary
rights without lawful excuses. The two important requirements for trespass are:

 There must be an intentional or negligent interference with personal or proprietary

rights.
 The interference with the personal or proprietary rights must be direct rather than
consequential.

Negligence: It connotes failure to exercise the care that a reasonably prudent person would
exercise in like circumstances.

Strict Liability: The rule enunciated in Rylands v. Fletcher10 by Justice Blackburn is that
the person who for his own purpose brings on his land and collects and keeps there anything
likely to be a mischief, if it escapes, must keep it as its peril, and if he does not do so is prima
facie even though, he will be answerable for all the damage which is the natural consequence
of its escape.11 The doctrine of strict liability has considerable utility in environmental
pollution cases especially cases dealing with the harm caused by the leakage of hazardous
substances.

Public Interest Litigation:

PIL is a result of judicial activism and a mechanism to agitate public issues before the courts
within the confines of legal and constitutional mould. The use of PIL through litigants
ensures them a wide locus standi. In addition, there are no adverse effects of the proceedings,
prompt action is taken on the decision, the court can also assist in examinations and
investigations, the various judgments of the courts shape up the future rulings and policy
decisions and public hearing helps in mass awareness. The judiciary evolves methods to bring
justice to the victims by providing locus standi to persons or voluntary organizations that act
in public interest by taking up cases on behalf of affected people.12 Now citizens can
challenge environmentally unsound practices on behalf of others, even though they may not

10
UKHL 1, (1868) LR 3 HL 330.
11
Rohan Bagai, Judicial Activism and Environmental Jurisprudence in India, LEGAL SERVICES INDIA (Jan.
29, 2018, 04:27 PM), http://www.legalserviceindia.com/articles/jjj.htm.

12
Radhika Saxena, Judicial Activism & Environment, INDIAN JUDICIARY NOTES (Jun. 29, 2019, 05:46
PM), https://indianjudiciarynotes.com/notes/environmental-law/judicial-activism-and-environment/.
directly suffer any harm. The courts intervened in different ways in response to the plethora
of environmental cases brought before the courts through PIL.

In L.K. Koolwal v. State of Rajasthan13, the Rajasthan High Court observed that a citizen’s
duty to protect the environment under Article 51-A (g) of the Constitution bestows upon the
citizens the right to clean environment. The judiciary may go to the extent of asking the
government to constitute national and state regulatory boards or environmental courts.14 In
most cases, courts have issued directions to remind statutory authorities of their responsibility
to protect the environment. Thus, directions were given to local bodies, especially municipal
authorities, to remove garbage and waste and clean towns and cities.15

The apex court in landmark judgement of S.P. Gupta v. Union of India 16, elucidated in the
following words: "but we must hasten to make it clear that the individual who moves to court
for judicial redress in cases of this kind must be acting bona fide with a view to vindicating
the cause of justice and if he is acting for personal gain or private profit or out of political
motivation or other oblique consideration, the court should not allow itself to be activised at
the instance of such person and must reject his application at the threshold".

Indian Council for Enviro – Legal Action v. Union of India17: (Polluter Pays Principle)

In this case, a number of unlicensed private chemical companies were creating hazardous
wastes in the soil by which pollution was caused which was affecting the nearby village
people in a negative way. So, an NGO named Indian Council for Environment Legal Action
filed a writ petition under Article 32 of the Constitution of India which compelled the State
Pollution Control Board and Central Pollution Control Board to recover costs for the
damages caused by the company.18 The Court ruled that “once the activity carried on is

13
AIR 1988 Raj 2, 1987 (1) WLN 134.
14
Garima Chaudhary, Role of Indian Judiciary in Evolution of Environmental Jurisprudence, LEGAL BITES
(Apr. 26, 2018, 06:54 PM), https://www.legalbites.in/indian-judiciary-role-evolution-environmental-
jurisprudence/.

15
Ibid.
16
AIR 1982 SC 149.
17
1996 AIR 1446, 1996 SCC (3) 212.
18
Amit Dubey & B.K. Tiwari, Role of Judiciary in Environmental Protection, JERAD (May. 05, 2012, 01:06
PM), http://www.jerad.org/dispabstract.php?vID=806.
hazardous or inherently dangerous, the person carrying on such activity is liable to make
good the loss caused to any other person by his activity irrespective of the fact whether he
took reasonable care while carrying on his activity”.

So, the industries were held absolutely liable in degrading the environment and were bound
to bear all the consequences thereof. Here, the polluter pays principle was applied which
states that the pollution causing agent must not be only asked to compensate for the harm
caused to the environment but should also be asked to make certain arrangements for
restoration of environment any by applying this principle fine of Rs 1,00,000 was imposed
upon the industries.19

For the very first time in this case, the polluter pays principle was recognized in India as a
part of environmental law. This principle says that the polluters should not only pay
compensation in regard to the harm cause to the environment but should also bear the cost
which would be needed in regard to the restoration of the environment into its original
position. This came up with the idea that why the taxpayers bear the burden of the loss caused
by any particular individual or entity i.e., the polluter must pay for the wrong doing not by the
ones who were not involved in such activities. Section 3 and 5 of the Environment Protection
Act, 1986 deals with the effectiveness of this principle. This principle would be applied
without making any distinction on large-scale and small-scale industries i.e., it would be
applied uniformly on every polluter and the burden of proof lies on the polluter. 20 The central
government is authorized to evaluate the amount of compensation required for any pollution
caused. This principle has broadened the scope of environmental law and helped in
preserving and protecting the environment effectively.

The Bhopal Case: (Doctrine of Absolute Liability)

19
Ravindra Kumar Verma, Environmental Jurisprudence in India, SAGE JOURNALS (Dec. 26, 2019, 02:10
PM), https://journals.sagepub.com/doi/abs/10.1177/0019556119889210.

20
Arjun Pal, The Evolution of Environmental Jurisprudence in India, RESEARCH GATE (May. 6, 2017, 03:22
PM),
https://www.researchgate.net/publication/337648848_The_Evolution_of_Environmental_Jurisprudence_in_Indi
a.
In Union Carbide Corporation v. Union of India21, also known as the Bhopal case, the
court held that, where an enterprise is occupied with an inherently dangerous or a hazardous
activity and harm results to anybody by virtue of a mishap in the operation of such dangerous
or naturally unsafe movement coming about, for instance, in getaway of poisonous gas, the
enterprise is strictly and completely obligated to repay every one of the individuals who are
influenced by the accident and such risk is not subject to any exemptions. 22 Accordingly,
Supreme Court created another trend of Absolute Liability without any exemption.

Vellore Citizens Welfare Forum v. Union of India: (Doctrine of Sustainable

Development)

The progress of a society lies in industrialization and financial stability. But industrialization
is contrary to the concept of preservation of environment. These are two conflicting interests
and their harmonization is a major challenge before the judicial system of a country. The
judiciary, in different pronouncements, has pointed out that there will be adverse effects on
the country’s economic and social condition, if industries are ordered to stop production.
Unemployment and poverty may sweep the country and lead it towards degeneration and
destruction. At the same time, polluting industries impend the stability of the environment.
The judiciary was, therefore, of the opinion that the pollution limit should be within the
sustainable capacity of the environment.

In Vellore Citizens Welfare Forum v. Union of India 23, the Supreme Court opined, the
traditional concept that development and ecology are opposed to each other, is no longer
acceptable, sustainable development is the answer.24 Sustainable Development means to fulfil
the need of present generation without compromising the needs of future generation.
Sustainable development is a balancing concept between ecology and development.

21
AIR 1990 SC 273.
22
Geetanjoy Sahu, Implications on Indian Supreme Court’s Innovations for Environmental Jurisprudence,
LAW ENVIRONMENT AND DEVELOPMENT JOURNAL (Apr. 1, 2008, 12:40 PM), http://www.lead-
journal.org/content/08001.pdf.

23
AIR 1996 SCC 212.
24
J.M. Cha, A Critical Examination of the Environmental Jurisprudence of the Courts of India, THE GLOBAL
NETWORK FOR HUMAN RIGHTS AND THE ENVIRONMENT (Apr. 8, 2016, 04:28 PM),
https://gnhre.org/repository_entry/individual-rights-environmental-protection-india-m-r-anderson/.
M.C. Mehta v. Kamal Nath: (Public Trust Doctrine)

This doctrine says that certain resources like sea, water, air, land, flora, fauna and others
which represent the natural system are of public use and cannot be privately owned by any
particular individual and it is duty of everyone to safeguard them and preserve them for the
future generation. This concept has been developed in India through various judicial
pronouncements. In M.I. Builders pvt. ltd. v. Radhey Shyam Sahu 25, this doctrine was
applied and the construction of shopping complex was stopped as it was made in the place of
public garden which was a public resource.

In M.C. Mehta v. Kamal Nath26, the State Government granted lease of riparian forestland
to a private company for building a motel at the bank of River Beas. Next day, a report came
into a national newspaper stating that this motel will divert the natural flow of river Beas, for
protecting it through future flood. Seeing this, the Supreme Court took a suo moto action
considering the fact that if national newspaper report is true then then it a serious matter of
environment degradation.27

The court applied the Public Trust Doctrine for the first time and stated that certain resources
like sea, water air and forest are for public use and it constitute nation's natural health and it
would be unjustified to make this a subject of private ownership. The state as a trustee in
under a legal duty to protect natural resources and resources that are meant for public use and
enjoyment cannot be converted into private ownership. The court also applied the concept of
sustainable development here as resources need to be preserved for upcoming generation and
it cannot be wholly consumed by the present generation and every generation owes a duty to
preserve and conserve the natural resources in the best possible way they can. Therefore, the
court quashed the lease of the Motel Company.

Precautionary Principle:

The precautionary principle says that if any action or project has some possible risk which
can cause harm to public and environment and the person who is taking that action has
knowledge about those risk, that in the absence of scientific measures that action or project is
25
(1999) SCC 464.
26
(1997) 1 SCC 388.
27
Priyal Bohra, Role of Judiciary in Environmental Protection, LEX TERRA (Nov. 8, 2014, 11:55 AM),
http://www.nluassam.ac.in/docs/lex%20terra/Lex%20Terra%20Issue%2032_5.pdf.
harmful, then the burden of proof lies on those persons who are taking that action that it is not
harmful. The Precautionary principle says that there is a social responsibility to protect the
public from any kind of harm, in case when scientific investigation points towards a risk. 28
These protections can be relaxed in the case when person taking action can prove with sound
evidence that no harm will result.

In Vijayanagar Education Trust v. Karnataka State Pollution Control Board 29, the
Karnataka High Court accepted that the precautionary doctrine is now part and parcel of the
Constitutional mandate for the protection and improvement of the environment. The court
referred to Nayudu cases which laid down that the burden to prove the benign nature of the
project is on the developer if it is found that there are uncertain and non-negligible risks.30

Critical Analysis & Conclusion:

The environment provides and fulfills our every basic necessity of life and without healthy
environment, human existence is not possible. But with the development we are lacking
behind in saving our environment although there are various measures taken by the
government and various conventions held so far, but for preserving and protecting the
environment human co-operation is must as they share a very close connection between them.
Thus, after the analysis of above cases, we find that, the development of the laws in this area
has seen a considerable share of initiative by the Indian judiciary, particularly the higher
judiciary. PIL has proved to be an effective tool in the area of environmental protection.
There is no way for a law, unless it is an effective and successful implementation, and for
effective implementation, public awareness is a crucial condition. Therefore, it is essential
that there is an appropriate awareness.

28
Debadyuti Banerjee, Environmental jurisprudence in India: A look at the initiatives of the Supreme Court of
India and their success at meeting the needs of enviro-social justice, ACADEMIA (Dec. 4, 2008, 10:14 AM),
https://www.academia.edu/430162/Environmental_jurisprudence_in_India_A_look_at_the_initiatives_of_the_S
upreme_Court_of_India_and_their_success_at_meeting_the_needs_of_enviro_social_justice.

29
AIR 2002 Kant 123.
30
Atisha Sisodiya, The Role of Indian Judiciary in Protection of Environment in India, ACADEMIKE (Feb. 14,
2015, 07:59 PM), https://www.lawctopus.com/academike/role-indian-judiciary-protection-environment-india/.