DYNAMISM OF JUDICIARY IN PROTECTING THE ENVIRONMENT

By- Yash Agarwal1

INTRODUCTION

The theory of separation of powers lays down that the government responsibilities have been divided
amongst different branches. The three branches are the legislature that is responsible for making the
laws; the executive that enforces the law and the judiciary whose job is to interpret the laws and
administer justice. Judiciary has also taken the role of an administrator in case of protecting the
environment and broadened their role. This interdependence and performing of incidental functions can
be highlighted through the Ratlam case.2 The decision highlights the strong position that the Court hold
when it comes to matter of protecting environment, social justice and legal aid and recognizing the duty
to protect the environment.

DYNAMISM BY SUPREME COURT

The right to environment does not find mention in the constitution explicitly. The Supreme Court has
interpreted it as an extension under Article 21 of the Constitution. In the Ganga Pollution case,3 the right
to live in pollution free environment has been included under Article 21. In the case of Subhash Kumar,4
it was held that the right to wholesome environment is a part of Article 21. The Fundamental Duty under
Article 51A(g) and directive principle under Article 48A also imposes a duty of the citizens and the state
to protect the flora and fauna and the natural environment. The recognition of these rights is not
sufficient, there must be a tool to enforce these rights. The writs have been used as a tool to protect the
rights where the Supreme Court and the High Court have the authority under Article 32 and 226
respectively to issue orders to enforce the rights. There are different kinds of writs which the court
issues.

The Supreme Court has widened the scope of the tool of writ petition to protect the rights while the
other organs are still in their place. In the case of Kochunni,5 it was held that the Supreme Court has a
broad discretionary power under Article 32, and it can give a declaratory order or other direction as it
deems fit even though proper direction was not prayed. In the case of oleum gas leakage case, the
original petition was only filed for a closure and relocation of factory but after the disaster had happened,
the court even added the compensation aspect. Thus, the court also widened the nature of reliefs that
one can get in a PIL. The writ remedy in case of environment cases is preferred because they help in
getting speedy justice as compared to civil suites and even the cost incurred by the parties in filing of
the petition is way lower as compared to the civil suites. Also, the writs are not barred by limitation of
time. The Court may get into the reason of delay and the steps taken to correct the right that was
infringed.

The scope of locus standi has been broadened by the Court in the case of writ petitions. The Court
allows for representative standing where the poor and the oppressed people can be represented
through volunteers and even by the organizations. Also, the scope of locus standi in public issues has
been broadened to let anyone from the public fight for the rights as a member of the citizenry which has
been referred as a right of citizen standing. This has been done to promote inclusivity in the protection
of the rights of individuals and the society as a whole and keep a check on the exercise of powers by
the state and prevent their oppression. For example, in the Ganga Pollution case,6 the Delhi residents
had sued government due to whose ignorance the river was becoming polluted severely.

1
BBA-LLB 2018-23, OP Jindal Global University
2
Municipal Council, Ratlam vs. Vardichan and Ors. (29.07.1980 - SC): MANU/SC/0171/1980 (“Ratlam”)
3
M.C. Mehta vs. Union of India (UOI) and Ors. (12.01.1988 - SC): MANU/SC/0586/1988 (“Ganga Pollution”).
4
Subhash Kumar vs. State of Bihar and Ors. (09.01.1991 - SC): MANU/SC/0106/1991 (“Subhash Kumar”).
5
Kavalappara Kottarathil Kochunni Moopil Nayar vs. The State of Madras and Ors. (04.03.1959 - SC): MANU/SC/0018/1959
(“Kochunni”).
6
M.C. Mehta vs. Union of India (UOI) and Ors. (12.01.1988 - SC): MANU/SC/0586/1988 (“Ganga Pollution”).
The courts have also relaxed the procedure for filing the PIL. For example, in Quarrying Case7 where
a letter was admitted by the court as a PIL. The PIL has been seen by the courts as a joint effort between
the public, citizens and the court and the procedural lapses should be ignored and might be relaxed to
protect the rights and provide relief. The substance is what is important in the case of petitions and not
the form. Thus, the procedure of PIL has been relaxed.

The concept of continuing mandamus that has been brought by the court as an innovation in protecting
the rights. The mandamus is basically that the court command the authority to do something. The court
has brought in this concept because it is not only the recognition of rights that is important but also
protecting that right which they do by issuing continuous orders and monitor the progress of the remedy
if the authority is doing and a relief is being given.

The new challenges that are coming through are that the petitions are being filed with only brief facts
and then the court had to investigate. The court has thus asked for affidavits and appointed
commissioners to investigate if the rights have been infringed. The change in dynamics has highlighted
the need for expertise on complex issues to know what the real cost will be infringed in case of the
issue.

DELHI POLLUTION CASE8

In the Delhi Pollution Case, the PIL was filed for bringing the court’s attention to air pollution in Delhi
and its serious impact on the health. The Court firstly ordered that the government vehicles and the
auto-rickshaws must be converted into CNG since the committee they had directed to be formulated
had recommended this solution to reduce the pollution in Delhi. The court even gave interim orders to
monitor the progress. Thus, in this case the Supreme court had to also take the role of executive and
the legislature by deciding on the issues such as CNG pricing, inspection, and maintenance of CNG
vehicles, next gen reforms for controlling air pollutants, etc. It has been alleged that this judgment of
the court had bought a lot of issues in its implementation.9 There were high-cost issues, the court did
not respect the right to livelihood of auto-rickshaw drivers who so not have funds to convert.10 The court
did not think about the plight of poor people and people who relied on public transport. Also, the court
did not identify all the stakeholders who could have been affected by the order.

CONCLUSION

There must be a line that must be drawn in the powers that are conferred by the different organs. The
judiciary which has the power to declare laws can also make laws as they did in this case and engage
in administrative actions. The line must be drawn in the powers that the organs possess. Though as of
now, in the case of PIL with respect to environment matters the judiciary has taken in their hands the
role of all the three branches.

7
Rural Litigation and Entitlement Kendra, Dehradun and Ors. vs. State of U.P. and Ors. (12.03.1985 - SC): MANU/SC/0043/1985
(“Quarrying”).
8
M.C. Mehta vs. Union of India (UOI) and Ors. (14.03.1991 - SC): MANU/SC/0810/1991 (“Delhi Pollution”).
9
Rajamani, L, Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness
and Sustainability, 19 JOURNAL OF ENVIRONMENTAL LAW 293, 321 (2007). https://doi.org/10.1093/jel/eqm020.
10
Id.