Justice D. M. Dharmadhikari, Judge, Supreme Court of India
“Better late than never” is an apt description of the growing sense of awareness amongst Indian people of the need to preserve nature and environment. It is a tragedy that it should happen to a country which has a great spiritual heritage and a tradition not only of protecting nature and the environment but also of worshipping the bounties of nature. Expressing gratitude to Nature as the source of sustenance to human life has been one of our ancient traditions. One of our Rigveda prayers invokes benediction of God for harmony between man, natural resources and energies thus blessings are sought for peace and happiness of all.
“Om. May there be peace in heaven. May there be peace in the sky. May there be peace on earth. May there be peace in the water. May there be peace in the plants. May there be peace in the trees. May there be peace in the Gods. May there be peace in Brahman. May there be peace in all. May that peace, real peace, be mine.”
Indian philosophy of the Vedic period recognises five natural elements as panchmahabhut for stavan, meaning worship. These five basic natural elements are water, earth, food-grains, sun, air and sky. Since the Vedic period, Earth and Rivers are worshipped as mothers:
Mata Bhumi Putaro Aham Prithvaiya
Before putting feet on the earth in Vedic prayer, the Rishi seeks the forgiveness of Mother Earth as the sustainer of life:
Vishnupatni Namastubhayam Padsparsh Chhamsav May
Ganges, Godavari, Narmada, Krishna, Kaveri, Bramhaputra and many others are highly venerated rivers in India.
Religious Hindus from time immemorial take a journey round the river Narmada as a pilgrimage called Parikrama. In Ishopanishad there is a verse saying that'a selfish man over-utilizing the resources of Nature to satisfy his own ever increasing needs is a thief because using resources beyond one's needs would result in the utilization of resources to which others have a right.cThis was imbued by Gandhi into his social philosophy when he says: “The earth provides enough for everyone's need but not for some people's greed.” I am purposefully tracing the Indian philosophy, culture and history as well as religious practices to emphasise that prudent and restrained use of natural resources has always been viewed as a necessity for human existence. This relationship between natural resources and social justice should be a constant reminder to us in the course of our development plans based on natural resources.
Excluding the very ancient period of Rishis and some period of Indian Kingdoms, right from the onset of the Mughal period and thereafter British rule in India, there has been unscrupulous exploitation of natural resources and consequential degradation of nature. A very big chunk of mineral wealth has already been extracted. Forest was destroyed for building ships and railways. Geologists and mining engineers, who have done geological surveys, tell us that there have been large-scale mineral activities already undertaken and long completed in India. As we are all aware, natural resources develop over billions of years but their exploitation by man may take only a few hundred years. Land and forests in India have already been exploited indiscriminately for thousands of years. Now a period has arrived for India to conserve nature and natural resources not only for the present generation but also for the generations to come. Once we attained independence, in the blind enthusiasm for development, we have indulged in reckless exploitation of nature unmindful of the evil consequences for human life. Human activities all over are based on exploitation of nature for development. Development for some people may mean under-development and dispossession of many. When development aims at commercialization of natural resources, they are transformed from ‘common things’ for the enjoyment of all into ‘commodities’. Such development hits politically weak communities hard and deprives them of their source of survival. Maybe it helps in general growth of the market for more privileged groups in society. The human activists assert that nature and people are not seriously taken note of in development plans.
In free India, Dam projects were described as our new Tiraths, meaning “holy places”. Gradually, we have started realizing that these projects conflict with the interests of tribes and peasant communities who are dispossessed and lose their source of survival which is not markets but nature. Such poor and highly oppressed people find themselves in conflict with interests of big international financial institutions and public authorities created by the government for the projects. It is high time for us to take care that our development plans like forestry projects, dam projects and fishery projects do not crush and destroy the life of tribal, rural and peasant communities. Ours is a welfare state. Our notion of democracy is wider and deeper than the market democracy. We have to resist the destruction of nature caused by state-managed market development. The big development projects benefit most of the urban population and industries by providing electricity and water for irrigation to produce cash crops as raw material for the industries. The large section of the Indian population in villages who live below the poverty line and whose survival depends not on markets but on natural resources are the “lost and forgotten” people. A welfare state should proceed towards a new world order where there would be neither supremacy of the state nor the markets, but there would be supremacy of the citizens.
The problem that India faces is its unlimited development aspirations and its limited natural resources. This has given rise to a conflict between the State committed to development in the name of “the greater common good” with catastrophic effects on the rural population mainly the marginalized, poor, women, tribes and peasants. The current ecology movements have emerged as the people's response to this new threat to their survival and as a demand for the ecological conservation of their vital life-support systems. The life-support systems in addition to clean air are common property resources of water, forests and land on which the majority of the people of India depends for survival. The human activists oppose the development projects involving huge and long-term exploitation as activities which most benefit the educated minority. The elite is the main beneficiary while the large rural and forest populations surviving on nature feel neglected.
Thus, the diversion of resources from sustenance needs to the demands of the market generate conflicts between commercial interest and people's survival. Conflicts on natural resources are therefore conflicts over rights. Development with growth of international-trade-community indirectly allows global market domination. Such development creates needs for international aid and foreign debt which provide capital for such development. When such large projects funded by international organizations and based on utilization of natural resources are undertaken, the local resources go out of control of local communities and go into the hands of governments and the international financial institutions. The conditions for the loan determine the mode of utilization of natural resources. The cost involved in such large-scale projects is so great that sometimes it becomes imperative to utilize the benefits of projects like dams for cash crop cultivation, maybe sometimes for generation of electricity. In the process many times there is wastage of water and land gets water logged. It becomes an arid desert. When people living on the natural resources protest against such projects, they are perceived as obstructionists and anti-progress, although such people's movements are committed to halt the process that results in “progress for a few and hardships for many”. These conflicts between development plans of the State requiring exploitation of nature and the people dependent for their survival on nature, have given rise to demands for protecting nature and the need to strengthen people's collective rights to common natural resources. A life-support system can be shared, it cannot be owned as private property or exploited for private profit.2
The Declaration of the United Nations Conference on the Human Environment adopted at Stockholm on 16th June, 1972 is the first formal international recognition of the need for protection of the environment between persons of the same generation and between persons of present and future generations. The said declaration recognises that development should be conditioned with due regard to the environment and the international interest. The declaration of Stockholm formulates 26 principles and the first principle gives the substance of the other principles: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of equality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”
Other principles like Nos. 5 and 9 imbibe the principles of social justice. They say that “the non-renewable resources of the earth must be employed in such a way as to guard against the danger of future exhaustion and to ensure that benefits from such employment are shared by all mankind”.
Principle No. 9 states that “[e]nvironmental deficiencies generated by the conditions of under-development and natural disasters pose grave problems and can best be remedied by accelerated development through the transfer of substantial quantities of financial and technological assistance as a supplement to the domestic efforts of the developing countries and such timely assistance as may be required.”
Based on this Stockholm Declaration, a number of international Conventions and Treaties were entered into by the nations. The most significant among them is the Rio Declaration of 1992. In that declaration emphasis is on the concept of “sustainable development” and “inter-generational equities”. The first principle is: “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature”. Principle No. 3 declares: “The right to development must be fulfilled as to equitably meet development and environmental needs of present and future generations”.
Internationally, it is now recognised that with the joint endeavour of technologists, experts and ecologists, the direction of development should ensure social justice with sustainability, equity and ecological stability. Destruction of conditions of life of people and their well-being is not only to be measured in money; it is a matter of life itself. Internationally therefore, there is a rethinking due to the delicate relationship between development, economy and ecology. It is time to look for a new philosophy to live in harmony with nature and ecology and to revive our age-old Indian traditions. The meaning of “sustainable development” broadly is a commitment to preserve natural resources for the benefit of present and future generations. It also includes fixation of appropriate standards for the exploitation of natural resources based upon harvests or use. Thus, the exploitation of nature is to be sustainable, prudent, rational, wise and appropriate. The third meaning of it is “equitable use of natural resources” suggesting that use of natural resources by one state must take account of the needs of other states and people. Finally, the requirement of sustainable development is that “environmental considerations be integrated into economic and other development plans, programmes and projects”.3
Thus, internationally it is well recognised that “environmental sustainability is the over-riding aim of sustainable development”. It is widely accepted that for achievement of sustainable development; the State should adopt a number of organizing principles. In Agenda 21, the key-principles summarised are as follows:
the right to development;
integration of environmental protection and economic development;
creating an open and supportive economic system;
sustainable utilization of resources;
“precautionary principle,”“sound scientific knowledge”, and “the polluter pays principle”;
procedural principles: transparency, information, participation and access to justice.
As a consequence, the International Law through inter-state agreements needs to recognise the importance of environmental limits so that sustainable development can provide a supportive economic system, and improve social equity.4
The “precautionary principle” emerged among international instruments in the mid 1980s although it already existed in some domestic legal systems. The meaning of the “precautionary principle” is not clearly defined but it conveys that where the exploitation of natural resources for community use poses threats of serious or irreversible damage, lack of scientific certainty shall not be a reason for not undertaking cost-effective measures to check environmental degradation. Every big endeavour/project affecting the environment is likely to have ill-effects, such as rising of water-tables, salinity, waterlogging, soil erosion, ozone depletion and climatic changes.
The precautionary principle, therefore, obligates the authorities undertaking developmental activities based on large-scale exploitation of Nature to take precaution against minimum possible degradation of Nature, irrespective of lack of full scientific knowledge about it. This precautionary principle is particularly of relevance to big dam projects undertaken for electricity and irrigation.
The polluter pays principle refers to “the requirement that costs of pollution are borne by the person or persons responsible for causing pollution and the consequential cost”. Apart from the above-mentioned “precautionary principle” and “polluter pays principle”, standards have been evolved and adopted regionally and globally to address an even wider range of matters. These standards have been adopted through separate international conventions for the protection of particular resources. The most important resources are identified as flora and fauna, water quality, air quality, hazardous substances and waste. For example, the dumping of radio-active waste at sea may result in harm not only to aquatic life but to land-based resources resulting from long-term storage. The efforts to address this problem have led to the emergence of the concept of the integrated pollution control which requires states and project operators to consider and minimize the impact of activities on all environmental resources at each stage of the process which contributes to that activity. This growth of international law has recognised the importance of environmental information techniques and participation of citizens in decision-making processes.
International agreements now insist on two essential aspects: (1) ensuring that the multilateral development lending institutions incorporate environmental considerations into their activities and (2) ensuring availability of international public sector funds to assist developing countries in meeting the costs associated with increasingly stringent international environmental requirements.
Having thus identified some of the problems and conflicts over the use of natural resources between the authorities and the people, the solution appears to be to strike a balance between development ecology and social justice. As Public Interest Litigation, we now want Public Interest Science. Public Interest Science would mean development through science in a manner to best protect people's interest. The public interest does not mean merely “the greater common good”, but also the good of the deprived sections of society who solely depend on natural resources for their survival. The Father of the Nation, Mahatma Gandhi, has given us a talisman for testing our so-called welfare activities to ensure that they are really in the public interest.
“Whenever you are in doubt, or when the self becomes too much with you, apply the following test: Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him control over his own life and destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions? Then you will find your doubts and ... self melting away.”
The choices before us, therefore, are between environmentally friendly and environmentally hostile technologies. In other words, it is a stark choice between reticence and activism by all organs of the State including the judiciary. The enforcement of environmental rights and duties should aim at ensuring that the executive branches of government strike impartiality between the “green conception of a worthwhile life and rival conceptions.”
In India, the solution of problems on environmental issues may be found in four branches of law: crime, tort, statutory regulations and fundamental rights in the Constitution.
When the Constitution was framed in 1950, we find no mention of the environment, neither in Part III relating to “Fundamental Rights” nor in Part IV relating to “Directive Principles of State Policy”. The environmental topics for legislation were divided between State and the Union within the federal structure. It is only in the year 1976 that Article 48A was introduced as a new environmental provision in Directive Principles of State Policy which says that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.” Directive Principles are not directly enforceable and do not create any independent procedural rights. Article 37 provides that although the directive principles “shall not be enforceable by any Court, they are nevertheless fundamental in the governance of the country”, and it shall be the duty of the State to apply these principles in making laws. A new provision on “Fundamental Duties” was introduced by Article 51A which says in clause (g) that “it shall be the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures”. There is, however, no mention of their enforcement by writ or other legal provisions. Nevertheless the two articles, 48A as a Directive Principle of State Policy and Article 51A (g) as a fundamental duty of a citizen, have played an important role in the emergence of environmental law in India. By adoption of new strategies like public interest litigation, the courts in India have developed environmental law which finds mention and appreciation in international forums as models to be emulated by other nations.
The International Treaties of United Nations to which India is a party have greatly influenced the development of statutory law on environment in India. The passing of the Water Act of 1974 and the Air Act in 1981 sought to control the menace of environmental pollution by constituting Pollution Control Boards who had to monitor and secure compliance with the laws. The boards were also conferred with power to impose penalties, fines and to initiate prosecution. To conserve the forest and wild life, the Forest Conservation Act and the Wild Life Protection Act have been passed. The real genesis of environmental law, much before the Rio Treaty of 1992, and without reference to such concepts as “sustainable development” and the “precautionary principle” or the “polluter pays principle”, can be traced to the Supreme Court decision in the “Ratlam Municipal Council” case which arose from proceedings before a magistrate and order of the High Court of Madhya Pradesh. Thereafter, the growth of environmental law started with the Supreme Court entertaining Public Interest Litigations under Article 32 of the Constitution. The traditional concept of standing and locus stand was relaxed for diffused rights on the environment and particularly of the deprived sections of the people. Case by case, the principles contained in international law were enforced in domestic law by the superior Courts with the aid of Article 21 of the Constitution.
By interpreting Article 21 of citizens' “Fundamental Right to Life”, the Supreme Court expanded its meaning to read several basic human rights into it. This jurisprudence fully developed with the decision of the Supreme Court in the case of Francis Mullin [AIR 1981 SC 746]. Article 21, thereafter, began to expand in many directions to include implicitly within it the “Right to Livelihood”5 and “Right to Potable Water”.6 The Court is now more concerned not only with the “Life” but with “Quality of Life”. With the expansive interpretation in Article 21 of the “Right to Life”, environmental issues are being resolved under its new dimensions. The first case which came to be decided with reference to Article 21 was of Rural Litigation & Entitlement Kendra vs. State of Uttar Pradesh [AIR 1985 SC 652]. The petitioner sought the closure of limestone quarries in Doon Valley on the grounds that it would cause soil erosion, deforestation and river silting. The Supreme Court then took support of Article 21 to hold that the “right of people to live in a healthy environment with minimal disturbance of ecological balance” is also a fundamental right and the relief was granted. Reading together Article 21, Article 48A and Article 51A (g), the Supreme Court has been entertaining petitions based on complaints about alleged disturbance of ecological balance. The Court also ruled that the fundamental duty in Article 51A (g) extended not only to citizens, but also to instrumentalities of the State. Article 51A was interpreted as a right of the citizen to move the Court for the enforcement of the duty cast on the State.
Supreme Court gradually moved to take a view that under Article 32, the petition would lie for “removing the pollution of water or air if such pollution endangers or impairs the quality of life in derogation of laws.” Two decisions of the Supreme Court, the case of Charan Lal Sahu v. Union of India [AIR 1990 SC 1480 & 717] in which the constitutional validity of the Act passed for Bhopal gas victims was challenged, and the case of Shriram Industries [1986 (2) SCC 17] in which poisonous gas escaped causing serious threat to the life of people living around, seem to indicate that the Apex Court considers freedom from pollution of water or air as essential elements of the “Right to Life”. The Supreme Court continues to entertain petitions under Article 32 on environmental issues and has been internationally appreciated for the directions it issued in many cases, like one to control vehicular pollution in Delhi metropolitan city by insisting on the use of CNG fuel, and by others such as directing relocation of polluting industries out of Delhi and tanneries out of Calcutta or Agra. It has also taken up issues like the protection of historical monuments including the Taj Mahal by directing relocation of industries to a safe distance from them. The Supreme Court has also tried to monitor the construction of large dams for all-round development of the region and taking effective measures for maintaining ecology and environment, and also to provide a nearly similar life to the oustees and displaced persons. The direct recourse to citizens and citizens' groups, who have serious concern for ecological balance, to the High Courts under Article 226 and Supreme Court under Article 32 of the Constitution is presently seen as the most effective remedy. The encouragement of Public Interest Litigation on environmental issues by the superior courts has rendered other statutory remedies under the environmental law of less frequent resort.
Sometimes, the court's interference in environmental issues is severely criticised, saying that the court lacks expertise to decide such highly scientific and technical issues. In environmental issues, the courts are faced with competing interest groups. Sometimes, there is an expert's view that a broad development project must be undertaken for common general good while there is opposition to the same by ecologists and human rights activists who highlight the adverse impact of the project on the environment. There are conflicts and competition between private interest and public interest, between the interests of one section of the population and others, between present and future generations, between private cost and social gain. No doubt, the task of the judiciary is delicate and difficult when faced with such conflicting claims involving policy matters and technical expertise. The Court has, therefore, always taken the help of expert committees, human-rights activists and ecologists for resolving disputes. In the course of the litigation of several cases, it had set up committees for study and commissions for enquiry. It is true that the judiciary cannot step into the shoes of either the legislature or the executive. These conflicts of rights, however, do need an independent forum like the judiciary. As has been said by one of the jurists –“it is only in the judicial process that the citizen can be heard above the din of pluralistic, self-interested, majoritarian politics and court-rooms appear comparatively more open to public scrutiny when compared with the secret bargaining of interest group pluralism”. Both contending parties on environmental issues seek intervention of the courts as impartial bodies which can take decisions that are “right” rather than “popular”. It cannot, therefore, be stated that the judiciary is not well suited to decide conflicts on the environment. The role of the judiciary in a democratic society, thus, cannot be viewed narrowly because the judiciary is also one of the organs in the political process. The judiciary no doubt lacks attributes of the legislature and the executive and can claim no technical or managerial capacity to resolve complicated issues of the environment. But when conflicts come to court between authorities committed to development and groups resisting it on the grounds of threat to their life, the controversy eventually resolves into rival conceptions of a good and worthwhile life. This subject is definitely within the province of the judiciary. Decisions on matters in the public sphere, like logging, housing and infrastructure development, and the protection of biodiversity, engage not only the various environmental ideologies underlying different approaches to “sustainability” but also engage deeply held convictions about “private life” concerning the relative importance of employment, mobility, decent housing and ecologically-rich surroundings to personal development. In the course of resolving this conflict, the court can “combine” the resources of the executive and legislature to guide the detailed implementation of resolutions of environmental conflicts. The pursuit in the court's proceedings is of impartial resolutions to environmental conflicts rather than “correct” policy decisions. Environmental protection is always a matter of degree inescapably requiring choices as to the appropriate level of environmental protection and the risks which are to be regulated. This is the concept of sustainable development. There are choices necessitating decisions not only about how risk should be regulated, how much protection is enough, which risk should be regulated, how much to spend in controlling any particular risk and about whether the ends served by environmental protection such as health could be pursued more effectively by diverting resources to other uses. Thus, the nature and degree of environmental risk posed by different activities varies. The implementation of environmental rights and duties requires deliberation about the ends which may legitimately be pursued, as much as about the means for attaining them. Beyond the minimum necessary to sustain physical existence, setting the standard of environmental protection involves mediating conflicting visions of what is of value in human life. For resolving this highest issue concerning human life, the judiciary is the proper forum which gets assistance both from the executive and the legislature as well as from the people coming before it with complaints. Ultimately all environmental conflicts revolve around competing concepts of what constitutes a “good and worthwhile” life, and for that the judiciary is the last resort which has to take decisions on the basis of the constitutional philosophy and laws governing the subject.7,8,9
The constitutional forum provided by the High Courts and the Supreme Court is frequently resorted to by invoking the new technique of Public Interest Litigation. By contrast, the remedies available in environmental law are resorted to only very rarely. There are hosts of laws on environment. Amongst remedial measures are punitive actions in the Indian Penal Code and the Code of Criminal Procedure, action and injunctions under the Water and Air (Prevention Control Pollution) Acts, and the Environmental (Protection) Act of 1986. Taken together, they provide an extensive and sophisticated system for environmental management. Law of torts can be invoked for injunction and damages.
These various environmental laws are under criticism because their implementation is inconsistent and haphazard. Many major industries like coal, petroleum, electricity, iron and steel, agro-chemicals, and heavy machines are in the public sector. Pollution Control Boards have seldom prosecuted government nominees on the management boards of such public undertakings. The statistics show that the Central Water Pollution Control Board has achieved convictions of only 2.8% and only under the Air Act. Only in Tamil Nadu has the conviction rate been 60.8%. The other States have not secured any convictions. The critics say that “the risk of penalties is so low that it is more cost effective for industries to pollute than to invest in emission control measures”.
The Air, Water and Environment Acts are not comprehensive enough to cover in great detail the environmental impact of large projects like dams and marine life. Particularly in India, most of the environmental conflicts do not much concern pollution but rather relate to resource degradation including systematic problems of soil erosion, deforestation, declining water tables and the loss of flora and fauna and the consequent subsistence economies. Resorts to the remedies under environmental law are also inhibited by the provisions of Official Secrets Acts. The persons and parties adversely affected by industrial use of natural resources have no means of access to the information leading to the undertaking of developmental activities based on natural resources. In environmental law, although great public interest is involved, there are few provisions for public participation. The citizens' groups have no role in setting statutory environmental standards. The “consent” granted under the Act to the industries to pollute are not published. There is no right of access and public enquiry into polluting activities. These are some of the issues which should be addressed by the legislature to allow more and more public participation in environmental issues which affect peoples' life to a great extent. These are some of the shortcomings of the present legislation on the environment. Therefore, more and more people and action groups approach the High Courts and Supreme Court with public interest litigations on environmental issues. So far the courts have responded positively and tried to balance the rights of the conflicting parties.
When public action groups bring such actions on the environment to court, the litigation being not adversary but being actions-collectives, the traditional judicial process is found wholly inadequate. The petitioner in such cases does not approach for himself but for the collectivistic. As a consequence both the duties of the ideological party and the controlling responsibility of the court become more intense. On the one hand, the party cannot freely “dispose” of the “collective rights” in issue; on the other hand, the judge is responsible for ensuring that the party's procedural behaviour is, and remains throughout the proceedings, that of an “adequate champion” of the public cause. In such public interest litigation on the environment, the court's function is to protect the interest of the party approaching the parties before it as well as the interest of the absent members of that class. The Court has, therefore, to balance the rights and interests of the contending parties particularly when both parties are vying with claims that they are actuated by public interest. Such public interest cases extend their binding effects beyond the sphere of actual litigants and possibly prejudicing persons and a very large section of them who had no opportunity of hearing. The Court has, therefore, to measure not only the petitioner's “seriousness” but also his “adequacy as a representative”. It must go into the past history of the petitioners, the internal organization, its funding resources and the statutory objectives of the private group. Otherwise this forum of public interest litigation would open gates for new kind of abuses and tyrannies. Labour unions, political parties, national and trans-national corporations, professional organizations, service organizations and human-rights activists, sometimes can themselves become fearful centres of operation against both their members and third parties whom they have no right to represent. There are instances where public interest litigations have been abused by private groups and associations acting for their own selfish purposes. Sometimes, they are unable to see beyond the interest of the limited groups they represent. This remedy of public interest litigation before the highest courts as class-actions should not be allowed to be used as tools of blackmail or undue resistance.10
There is sometimes criticism of the so-called inadequate role of the judiciary in public interest litigation. They say that “while judges undoubtedly try to understand a situation as fully as possible in many cases, they are often remote from the people whose lives are battered and ruined. This handicap of social distance is as real in this field as it is in many other areas of public policy.”
Yet the importance of the judicial route is acknowledged as “one of the important avenues to be pursued.” Judicial activism has played a fruitful role in generating public awareness of, and media interest in, environmental problems and in giving due regard to environmental groups. The value of judicial involvement in environmental matters is great, but the nature of the problem calls for better solutions. Judicial activism on its own cannot ensure environmental protection. A more comprehensive approach is needed, which must also incorporate other ways of giving environmental problems the attention they deserve.
Nobel Prize Winner on Economics, Amritya Sen has the following suggestions to make:
“When it comes to remedying the environmental dangers, it is necessary to consider the different means that can be used to address the problem adequately. There is, for example, some choice between the route of value formation and that of institutional reform. If people were to care spontaneously about the effects of their actions on the environment (and through that, about their effects on others), then the need for institutional reform would be, to that extent, reduced. On the other side, if institutions could be effectively reshaped (for example, through regulations prohibiting the discharge of effluents, or through “green taxes”, or through appropriate changes in property rights), so that environmental effects are better reflected in private costs and benefits, then the necessity for value formation would, to that extent, decrease. To prevent the poisoning of our water, the fouling of our air, and other calamities, we can get help both (1) from value formation that makes us more sensitive to this damage, and (2) from changed institutional arrangements that reduce private incentives to destroy the environment and provide contrary incentives to preserve it.
While value formation and institutional reform can, to some extent, be seen as alternative approaches to the environmental problem, there is an opportunity of drawing simultaneously on both, to pursue those changes that require a different outlook and norm as well as new institutions. Greater public awareness of these issues and more active public interest in seeking workable solutions can themselves help to advance the prospects of a solution.”11
It is without doubt true that despite the activist role of the judiciary, a better mechanism needs to be developed for solving environmental conflicts and issues as they are so precious to human life. The judiciary is playing its humble role. Apex Court is final but not infallible. In a democratic society, people's awareness of environmental interests and their participation in the event of envionmental conflicts in a systematic and non-violent manner is the need of the hour. There are few solutions available to the problems of the environment but many more are required to be evolved for their implementation in a systematic and efficient manner.
The shelving of “Silent Valley” Project in Kerala, stopping of limestone quarries in “Doon Valley”, control of vehicular pollution in Delhi, and relocation of polluting industries out of residential areas of cities can be said to be some good achievements of environmentalists in their epic struggle for the defence of the environment. They should inspire the present and the future generations.
Let me conclude with words of Bhagvad Geeta. For maintaining the body in good form for services for the community and self-realization, the Geeta advises TAP, meaning restraint and disciplined use of the body. For maintaining a just social order, Geeta recommends DAN, meaning not donation but equitable distribution of wealth and resources to bridge the gap between “haves” and “have-nots”. Affluent people should sacrifice and give to the “deprived and needy”. These two sermons of Geeta are for “individual” growth and achieving “social justice”. For maintaining ecological balance and sustaining nature, Geeta recommends YAGAYA, meaning “To the extent we exploit nature, we should supplement it”. Verse 12 in Chapter 3 of Geeta advises that “only after supplementing the nature's loss, whatever man receives from nature should be appropriated for personal use”. “Appropriation of gifts of nature without any return to it is nothing but a theft.”
devanbhavayatanena te deva bhavayantu vah parasparam bhavayantah sreyah paramavapsyatha,
istanbhoganhi vo deva dasyante yajnabhavitah tairdattanapradayaibhyo yo bhunkte stena eva sah.
Let these divine words of God inspire our individual and social activities.
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M.C. Mehta v Union of India (Kanpur Tanneries) (1987) 4 SCC 463.
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In Re Bhawani river (1998) 6 SCC 335.
Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212.
M.C. Mehta v Union of India (Shriram–Oleum Gas) (1987) 1 SCC 395.
Vellore Citizen's Welfare Forum v Union of India (1996) 5 SCC 647.
M.C. Mehta v Kamal Nath (1997) 1 SCC 388.
Centre for Environmental Law WWF-1 v Union of India (1999) 1 SCC 263.
Research Foundation for Science, Technology, Ecology v Ministry of Agriculture (1999) 1 SCC 655.
Akhil Bharat Goseva Sangh v State of AP (1997) 3 SCC 707.
Alexander S. Mather: Global Forest Resources, [London, Belhaven, 1990].
Indian Council for Enviro-Legal Action v Union of India (1996) 5 SCC 281.
AP Pollution Control Board v Professor M.V. Nayudu (1999) 2 SCC 718.
Subhash Kumar v Bihar AIR 1991 SC 420, 424
Rosencranz, Divan, and Nobel, Environmental Law and Policy in India: Cases, Materials and Statues (Bombay, 1991); Leelakrishnan (ed.), Law and Environment (Lucknow, 1992); and Singh, Anklesaria, and Gonsalves, The Environmental Activists' Handbook (Bombay, 1993).
Indian Penal Code, 1860, Section 15 & 290.
Anderson, ‘Public Nuisance and Private Purpose: Policed Environments in British India, 1860–1947’, SOAS Law Department Working Paper No. 1 (London, 1992).
Tata Tea Ltd v. Kerala 1984 KLT 645 and Nagarjuna Paper Mills Ltd v. Sub-Divisional Magistrate 1987 Cri. LJ 2071.
Ramamurthy, ‘Difficulties of Tort Litigation in India’, 12 Journal of the Indian Law Institute (1970), 313; Abraham and Abraham, ‘The Bhopal Case and the Development of Environmental Law in India’, 40 ICLQ (1991), 334 at 354; and Galanter, ‘Affidavit’, in Baxi (ed.), Mass Disasters and Multinational Liability; The Bhopal Case (Delhi, 1986), 178–83.
Agarwal, ‘Politics of the Environment’, in Centre for Science and Environment, The State of India's Environment 1984–85 (Delhi, 1985).
Leelakrishnan, ‘Public Participation in Environmental Decision-Making’, in Leelakrishnan (ed.) Law and Environment.
Guha, The Unquiet Woods: Ecological Change and Peasant Resistance in the Himalaya (Berkeley, 1989); Omvedt, ‘Ecology and Social Movements’, in Alavi and Harris (eds.) South Asia (New York, 1989); Anderson, ‘Litigation and Activism: The Bhopal Case’, Third World Legal Studies (1993); Kumar, The History of Doing (London, 1993), Ch.12.
B. Venkatappa v. B. Lorris AIR 1986 AP 239, and Ram Baj Singh v. Bablal AIR 1982 All 285 involving Local Air Pollution.
Baxi, Environment Protection Act: An Agenda for Implementation (Delhi, 1987), 37–40; Jayakumar, ‘Environment Act: A Critical Overview’, in Leelakrishnan (ed), Law and Environment; and Chatterjee, ‘Implementation of Environmental Protection Act – Problems and Perspective’, AIR 1994 Journal 113.
MC Mehta v Union of India AIR 1987 SC 1086.
Mukesh Textile Mills v H.R. Subramanya Sastry AIR 1987 Kant 87.
1 All ER 367 (1964)
Dhavan, ‘Litigation Explosion in India’, 84.
Bombay Environmental Action Group v Station of Maharashtra AIR 1991 Bom 301.
Charan Lal Sahu v Union of India AIR 1990 SC 1480.
Baxi, ‘Taking Suffering Seriously’, in Dhavan, Sudarshan, and Khurshid, (eds), Judges and the Judicial Power (Bombay, 1985); Cottrell, ‘Courts and Accountability: Public Interest Litigation in the India High Courts’, Third World Legal Studies (1992); and Hurra, Public interest Litigation (Ahmedabad, 1993).
State of UP v Raj Narain AIR 1975 SC 865, at 885;
S.P. Gupta v Union of India AIR 1982 SC 149.
Koolwal v Rajasthan AIR 1988 Raj 2, at 4.
Bombay Environmental Action Group v Pune Cantonment Board, Bombay High Court, A.S. Writ Petition No. 2733 of 1986, reprinted in Rosencranz, Divan and Noble, Environmental Law and Policy in India: Cases, Materials and Statutes, 144.
Austin, The Indian Constitution: Cornerstone of a Nation (Oxford, 1966), 75–83.
Bharat H. Desai, “Public Interset Litigation: Environmental Pollution Control”, The Hindustan Times, March 24, 1986, p. 9; see also Deshpande, “Standing to Assert Fundamental Rights of Third Parties: An Analysis of Judicial Policy”, 14 J.I.L.I. 325 (1972); Francis, “Concept of Locus Standi in indian public law', 1 Ac.L.B.48 (1977); Lord Dening, The Discipline of Law (1979); S.K. Aggarwal, Public Interest Litigation in India: A Critique (I.L.I.;1985); Clark D. Cunningham, “Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience”, 29 J.I.L.I. 494 (1987); Jamie Cassels, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?” 37 The American Journal of Comparative Law 495 (1989).
The Water (Prevention and Control of Pollution) Act, 1974.
The Air (Prevention and Control of Pollution) Act, 1981.
The Wildlife (Protection) Act, 1972.
The Forest (Conservation) Act, 1980.
The Environment (Protection) Act, 1986.
Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1680.
R.L. & E. Kendra, Dehradun v. State of U.P., AIR 1985 SC 652.
Thorson v. A.G. Canada (1975) 1 S.C.R. 138; Minister of Justice v. Borowski (1981) 2 S.C.R. 575; Minister of Finance of Canada v. Finlay (1987) 33 D.L.R. (4th) 321.
Maharaj Singh v. Uttar Pradesh, AIR 1976 SC 2602.
For a detailed account of some of the social action organizations, see Shah, “Grass Roots Mobilization”, in Atul Kolhi (ed.), India's Democracy (1988); Dhavan, “Managing Legal Activism: Reflections on India's Legal Aid Program”, 15 Anglo-American L. Rev. 281 (1986).
A.I.R. 1976 SC 1455.
A.I.R. 1982 SC 149, 189; see also People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.
For details see S.K. Agrawala, Public Interest Litigation in India (Indian Law Institute, 1986); Menon, “Public Interest Litigation; A Major Breakthrough in the Delivery of Social Justice; 9 J. Bar Council of India 150 (1982). In Mukesh Advani v. State of Madhya Pradesh, A.I.R. 1985 SC 1368, the court accepted a clipping of newspaper story about bonded labour as the basis for a PIL petition.
Hoskot v. State of Maharashtra, AIR 1978 SC 1548; Hussainara Khatton v. State of Bihar, AIR 1979 SC 1360.
Rural Litigation and Entitlement, Kendra, Dehradun v. State of U.P., AIR 1985 SC 652; M.C. Mehta v. Union of India, AIR 1987 SC 965, wherein the court ordered the State to pay Rs.10,000 remuneration to the involved public interest advocates in addition to costs.
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 (conditions of labour); R.L. and E; kendra, Dhradun v. State of Uttar Pradesh, AIR 1985 SC 652 (ENVIRONMENTAL LITIGATION); In Sunil Batra v. Delhi Administration, SIT 1978 SC 1675; the judges themselves visited a prison to assess its conditions, In Wangla v. Union of India (1988) 1 Scale 118, the Court appointed an independent committee to examine the quality of better imported soon after the chernobyl nuclear incident.
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675; later see Upendra Baxi v. State of U.P. (1983) 2 SCC 308
People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473; Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 161.
M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 802.
Hoskot ibid; Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360
OGLA Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
Fracis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; Upendra Baxi v. State of U.P. (1986) 4 SCC 106.
Rural litigation and Entitlement, Kendra Dehradun v. State of U.P., AIR 1985 SC 652;
M.C. Mehta v. Union of India, AIR 1987 SC 982.
Chief Justice John Marshall, Marbury v. Madison, 5 U.S. (1 Cranch) 140 (1803), Supreme Court.
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
Jamie Cassels, “Judicial Activism and Public Interest Litigation: Attempting the Impossible?”The American Journal of Comparative Law 501–4 (1989).
Shyam A. Diwan, “Environmental Protection and Fundamental Rights”, XVI (1) Indian Bar Review 23–24 (1989).
Maneka Gandhi v. Union of India, AIR 1978 SC 597; Francis Coralie Mullin v. The Administrator, U.T. Delhi, AIR 1981 SC 746, 750.
The genesis of the fundamental right to a wholesome environment may be traced in Rural Litigation and Entitlement, Kendra, Dehradun v. State of Uttar Pradesh, AIR 1985 SC 652; see also Shyam A. Diwan, Supra note 36.
M.C. Mehra v. Union of India, (1987) 4 S.C.C. 463.
Kinari Devi v. State of H.P., AIR 1988 H.P. 4.
L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj. 2, 4.
Mahdavi v. Tilakan (1988) (2) Kerala Law Times, 730, 731.
The Shriram Fertilizer Gas Leak case (M.C. Mehta v. Union of India, 1987 (1) S.C.C. 395)has not been deliberately discussed here because it does not advance the link between environmental degradation and Article 21 as the Oleum Gas that escaped directly affected the lives and health of the victims. The more subtle link between environmental deterioration and life was absent.
Ajay Hasia v. Khalik Mujib Shervardi (1981) 1 SSC 722, 741.
Shyam A. Divan, “Environmental Protection and Fundamental Rights XVI (1) Indian Bar Review 24 (1989).
Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622.
Ogla Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
M.C. Mehta v. Union of India, AIR 1987 SC 695.
Article 21 or the right to livelihood in many cases. These cases are: Banawasi Seva Ashram v. State of U.P., (1986) 4 SCC 753; Karajan Jalasay Y.A.S.A.S. Samiti v. State of Gujarat, AIR 1987 SC 532 and Gamin Sewa Sanstha v. State of U.P. 1986 (Supp.) SCC 578.
Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.
Banwasi Seva Ashram v. State of Uttar Pradesh, AIR 1987 SC 374; See also S.N. Dhyani, “Tehri Dam and Critical environmental Issues – plea for Affirmative Judicial Action” XII (3) Cochin University Law Review 262–63 (1988).
U.P. Pollution Control Board v. M/s Modi Distillary, AIR 1988 SC 1128.
M.J. Aantony, “The Supreme Court and Harmful Drugs”, Indian Express, March 16, 1987, p. 7.
The Supreme Court investigated the ecological hazards of the mining in the Doon Valley through commissions and closed some mines and imposed conditions on others, see M.C. Mehta v. Union of India, AIR 1987 SC 695.
In the Delhi gas leak case, several renowned scientists were invited to the court and their opinions helped to lay down one of the most far-reaching rulings on industrial pollution, see Rural Litigation of Entitlement, Kendra v. State of U.P., AIR 1985 SC 652.
Environment and Development, the Founex Report, International Conference No.586 (1972) at 44.
D.M. Johnson, Marine Pollution Control: Law, Science and Politics, 28 Int' lj. (Canada) 69–102 (1972–1973).
In Society for protection of silent Valley v. Union of India, the Kerala High Court was wary of substituting the decision of the government with that of its own on the question whether national assets are to be more conveniently utilised as hydro-electric projects or to be retained in their pristine glory. The judgement was delivered on 2.1.1980 in writ petition numbers 2949 and 3025 of 1979.
AIR 1988 s.c.1187.
AIR 1987 SC 359 at 363.
AIR 1987 SC 2426 at 2428.
AIR 1988 SC 1187 at 2196.
AIR 1987 SC 965.
M.C. Mehta v. Union of India, ibid; M.C. Mehta v. Union of India, AIR 1987 SC 982; M.C. Mehta v. Union of India, AIR 1987 SC 1086. We may also refer these as Mehta No.1, Mehta No.2 and Mehta No.3 respectively.
“SC orders tanneries Closure”The Times of India, September 4, 1991. p. 6; see also M.C. Mehta v. Union of India, AIR 1988 SC 115. This case is known as Ganga Pollution (Tanneries') case.
M.C. Mehta v. Union of India, AIR 1987 SC 1086. This case is known as Oleum Gas leak case.
See Indian Council for Enviro-legal Action v. Union of India AIR, 1996 SC 1446.
Charan Lal Sahu v. Union of India, AIR 1990 SC 1481.
AIR 1988 Rajasthan 2.
AIR 1987 A.P. 171.
AIR 1989 M.P.82.
AIR 1988 SC 1115.
AIR 1988 SC 1128.
AIR 1989 SC 1069.
AIR 1990 AC 273.
AIR 1990 Ker.321.
AIR 1992 SC 382.
1993 Supp. (I) SCC 57.
1993 Supp. (I) SCC 4.
AIR 1993 Cal. 215.
AIR 1994 Ker. 321.
AIR 1995 Orissa 218.
AIR 1995 SC 2252.
AIR 1996 P & H 30.
AIR 1996 SC 1446.
AIR 1996 SC 1040
AIR 1997 SC 734.
AIR 1997 Ker. 162.
M.C. Mehta v. Union of India, 1998 (I) SCALE 21 and 75.
Almitra H. Patel and Others v. Union of India 1998 (1) SCALE 131.
Research foundation for Science Technology and National Resource Policy v. Union of India and others, 1997 SCALE SP-5 1998(1) SCALE 184.
For the appointment of a National Environmental Protection Authority, see The National Environmental Protection Authority Act, 1997.
For the appointment of National Environmental Tribunal with its Benches, see The National Environmental Tribunal Act, 1995.
Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1985 SC 652; also AIR 1987 SC 359.
Ogla Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
For full detail, see M.K. Prasad, “Silent Valley Case: An Ecological Assessment”, Cochin University Law Review 128 (1984).
2 Vandana Shiva. Ecology and the Politics of Survival.
3 Philippe Sands. Environmental protection in the 21st century: sustainable and international law, p. 374. In: Richard L. Revesz, Phillippe Sands and Richard B. Stewart. Environmental Law, the Economy, and Sustainable Development.
4 Victoria Jenkins. Learning from the past: Achieving sustainable development in the reform of local government. Public Law spring 2002, p. 132
5 Olga Tellis v. Bombay Muncipal Corp. AIR 1986 SC 180.
6 Attakoya Thangal v. Union of India 1990 (1) KLT 580.
7 Alan Boyle and Michael Anderson. Human Rights Approaches to Environmental Protection.
8 Francois Du Bois. Social Justice and the Judicial Enforcement of Environmental Rights and Duties.
9 Michael R. Anderson. Individual Rights to Environmental Protection in India.
10 Mauro Cappelletti. The Judicial Process in Comparative Perspective, pp. 298, 301–305.
11 Jean Droze and Amartya Sen. Indian Development and Participation, pp. 226–228.
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