ENVIRONMENT ISSUES AND THE

JUDICIAL RESPONSE

Judiciary is one of the balancing pillars of democracy. The role played by

the judiciary in the protection of environment is no less than that of the
legislature and executive. Perhaps, its role is more prominent in the
implementation of the environmental policies in our country. In spite of the
provisions for environmental protection in the enactments and Constitution
of India, the degradation of the environment continues unabated. The
plethora of enactments, policies, administrative infrastructure and expertise,
all failed to conserve and protect the environment. As a result, the people,
communities and organisations approached the judiciary, particularly the
Supreme and the High Courts, for the protection of environment. The
ability to invoke the original jurisdiction of the Supreme Court and the High
Courts under Articles 32 and 226 of the Constitution, respectively, is a
remarkable step forward in providing protection for the environment. The courts
are not confined to the prerogative writs derived from English law, but are
extended to directions or orders or writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari. In other words, when
executive fails to perform its functions, then the judiciary steps in to perform
them. Amusingly, the judiciary has also responded in a positive and active
manner to deal with these issues. It exercises its role not only as an interpreter of
the law but also has taken upon itself the role of constant monitoring and
implementation. Moreover, the judicial activism has enhanced the role of
the courts. The introduction of public interest litigation and relaxation of
locus standi in the 1980s has further strengthened its role. It has been dealing
with almost all the areas of environment degradation, from fragile coastal
areas to shrimp farms.

258
Furthermore, Article 142 afforded the Supreme Court considerable power to
mould its decisions so that complete justice could be done. 1 To provide good
justice, the

259
judiciary has relied upon the expert bodies like Central Pollution Control Board
and the NEERI to study the situation and submit reports to the Court. For
instance, the Court in Indian Council for Enviro-Legal Action vs. Union of
India, appointed NEERI as an expert body to study the situation of ground
water soil pollution. Similarly, the Court relied upon the opinions of experts to
dismiss a public interest litigation challenging dairy imports from Iceland on
the ground that they were radioactively contaminated by the leak from the
Chernobyl nuclear plant. 2 Further, the judiciary has widened the human rights
by widening the scope of Article 21 i.e. right to life.

Moreover, it has been evolving legal principles with time for protection
and conservation of environment. It has been rightly said in the book „Indian
Judiciary and Politics‟

“…While the Supreme Court in particular has earned public applause

for its innovative jurisprudence, it has exercised, some constitutional
pundits would argue, extravagant jurisdiction, transgressing the
executive and legislative domains, contrary to the original „checks and
balances‟ design of the Constitution. This judicial transformation of the
original scheme of the Constitution, it is further argued, has been
facilitated because of the dysfunctionality and ineffectiveness of the
other two branches of government both at the Centre and in the States,
and on account of the widespread criminalization of politics. In the
process of correcting this abnormality, the Court has, critics say, over-
reached it adjudicating role to become the governing institution of the
3
country….”

In the UP Pollution Control Board vs. Bhupendra Kumar Modi & Anr, the Supreme
Court has said that “the message must go to all persons concerned, whether
small or big, that the courts will share the Parliamentary concern and Legislative
intent of the Act to check the escalating pollution levels and restore the
4
balance of our environment.”

The areas of environment which attracted the most (attention of judiciary)

include; air, water, soil and noise pollution. The protection of air has attracted the
largest case law i.e. 34 % followed by water (20%) animals (7%) and noise
(6%). In terms of industries, the chemical industries topped the list in being
dragged to the court room
followed by industries dealing in forest wood. The specific environment
aspects include the industrial pollution, degradation of greenery including
forest, protection of animals, sanctuaries, vehicular pollution, water cess,
protection of historical monuments, municipal inaction and breach of its
constitutional duty to protect and improve the environment, mismanagement in
the pollution board, the fundamental rights including rights of tribal people,
villagers, displaced people and so on. Besides these, the other new subjects
dragged to court room include ecotourism, spici and aqua culture,
punishment for contempt of court, politics in the administration of the
pollution board, ban on training and exhibition of wildlife, trade in sullage
water, ban on polythene bags, common trade, effluent treatment
plant charges etc.5 Thus, it can said that the access to environment justice
consists of
three types of legal
issues:

i. Claims to challenge denial of access rights,

ii. Claims to prevent or remedy environmentally harmful

activities, iii. Claims to enforce environmental laws.6

Furthermore, in terms of petitioners, it has been found that the largest litigants
were the individuals contributing 99 litigations, followed by corporations and
companies and then came NGOs who added 37 and 35 cases each. The Union
of India, states and pollution boards contributed 2, 6 and 4 cases, respectively.
The religious heads and institutions, MLAs have also filed petitions. In the
categories of lawyers, the credit goes to M.C. Mehta, the advocate of
Supreme Court to file the maximum
number of PILs exceeding 20 in number.7 It has also been found that
in
environmental cases, the largest attacker or the defender has been the Union
of India. Out of 108 cases, the Union of India was made a defendant in 66
cases followed by State Governments, independently or jointly. Out of this, UP has
been a defender in 14 cases, followed by Delhi, Andhra Pradesh, Karnataka and
Kerala. 8

260
1. INSTRUMENTS OF JUDICIARY
FOR ENVIRONMENT PROTECTION

The judiciary of India has been performing its role in the protection of
environment through the following instruments:9

261
 i. Tort law and Common law.

ii. Innovative interpretation of Article 21 and protection of human

rights. iii. Relaxation of the rule of locus standi and Public Interest

Litigation.

iv. Development of environmental

principles. v. Doctrine of public trust.

(i) Law of Tort and Common Law:

The Indian law of torts is based on English Common Law. The term „tort‟ is
the French equivalent of the English word „wrong‟. The common law was
introduced in India during the British period. It is the body of traditional law of
England which is based upon judicial decisions, embodied in the reports of
decided cases, in contrast with legislative enactments. In context of
environmental cases, the four categories of Common Law are relevant -
nuisance, trespass, negligence and strict liability. 10 To these traditional
categories, the Supreme Court has added a new class based on the
principle of „absolute‟ liability in the post-Bhopal period and was later adopted
by the legislature.11 Common law based tort rules continue to operate under
Article 372 of the Indian Constitution which ensures the continuance of existing
laws.

In common law pertaining to environment, a person can charge for nuisance

when an act endangers his life, health, property or comfort or when an act
obstructs him in the enjoyment of the rights common to all people. Nuisance is
of two types- public and private. Under trespass category, negligence as a tort is
a bench of duty caused by the omission to do something which a reasonable
man would do or doing something which a prudent and reasonable man
12
would not do. Trespass signifies any transgression of offence against the law
of nature, of society, or the country, whether relating to a man‟s person or
to his property. 13 Wrongs of strict liability impose a kind of liability which is
somewhat peculiar in that person becomes liable without there being any fault on
his part. Although, it is a separate tort but it can be considered as an extension of
the law of nuisance. The most important case of this tort is that of Reyland v.
Fletcher.14 It holds a person strictly liable when he brings or accumulates on his
land something likely to cause harm if it escapes, and damage arises as a
15
natural consequence of its escape. The case observed that if a person
brings or accumulates something on his land anything which, if it should
escape, may cause damage to his neighbours, he does so at his own peril. If it
escapes and cause damage, then he is responsible, however careful he may
have been and whatever precaution he may have taken to prevent the damage.
This is also known as „the wild beast theory‟.16

The J.C. Galstaun v s. Dunia Lal Seal case of the Calcutta High Court in 1905 is
an important case of nuisance. In this case, the plaintiff complained that the
defendant neighbouring factory is discharging the refuse-liquid of his
manufactory into a Municipal drain that passes along the plaintiff‟s garden. He
alleged that the liquid is foul-smelling and noxious to the health of the
neighbourhood and specially himself, and, secondly, that it has damaged him
in health, comfort, market value of his garden property. The defendant
admitting of foul-smelling of his liquid waste but denied that it was noxious
or that it had injuriously effected the plaintiff‟s property. He said that his
factory has been licensed by the government and has been conducting the
manufacturing in a lawful manner. Consequently, the Subordinate Judge
decreed the suit, granted a perpetual injunction and awarded the plaintiff a
thousand rupees as
damage.17

The Mukesh Textile Mills (P) Ltd v. H. R. Subramanya Sastry case is another case
under which damages were rendered under the negligence category of law of
tort. In this case, the plaintiff complained that the neighbouring textile mill‟s
earthen tank full of molasses collapsed because of being dug by the rodents
and the molasses overflowed into the water channel and plaintiff‟s land
damaging the paddy and sugarcane crop. The Mill defended it by stating the
burrowing of rodents as an act of God. The court attributed to actionable
negligence on the part of the appellant and damages were awarded to the other
party. 18

The absolute liability originated with the Shriram Gas Leak Case filed by the
environmentalist and lawyer M. C. Mehta as public interest litigation. The
petition sought to close and relocate Shriram‟s caustic chlorine and sulphuric
acid plants which were located in a thickly populated area of Delhi. Shortly
after Mehta filed this petition, oleam leaked from Shriram„s sulphuric acid
plant causing wide spread panic in the surrounding community. In the last
judgement before retirement, Chief Justice Bhagwati spoke in the court:
 “…We would therefore hold that where an enterprise is engaged in a
hazardous or inherently dangerous activity and harm results to anyone
on account of an accident in the operation of such hazardous or
inherently dangerous activity resulting, for example, in the escape of
toxic gas the enterprise is strictly and absolutely liable to compensate all
those who are affected by the accident and such liability is not
subject to any of the exceptions which operate vis-à-vis the tortuous
19
principle of strict liability under the rule in Rylands v Fletche r.”

To provide a general penal law for India, the Indian Penal Code was enacted
in
1860. The first Law Commission of India headed by Lord Macaulay
included fourteen chapters consisting of 28 sections (Section 268 to 294-A)
dealing with public nuisance in the Code as long back as 1860. The sole
object of including chapter fourteen in the Code was to safeguard acts which
endanger, directly or
indirectly, public health, safety and the
like. 20

Section 268 of the Indian Penal Code of 1860 defines the offence of a
public nuisance:

A person is guilty of a public nuisance who does any act or is guilty of an

illegal omission which causes any common injury, danger or annoyance
to the public or to the people in general who dwell or occupy property in
the vicinity, or which must necessarily cause injury, obstruction, danger
or annoyance to persons who may have occasion to use any public
21
right.

However, the penalty for this offence is merely Rs. 200, which makes it
pointless for a citizen to initiate a prosecution under section 268 by a
complaint to a magistrate. Further, section 133 provides an independent, speedy
and summary remedy against public nuisance by empowering a magistrate to
pass a „conditional order‟ for the removal of a public nuisance within a
fixed period of time.22 However, the magistrate cannot act beyond his limits
and can be restricted by the court as found in the Gobind Singh v s. Shanti
Sarup case. In this, the magistrate went ahead of the conditional order by
completely prohibiting the baker from carrying on his trade. The Supreme
Court concluded of only to raze the offending oven and chimney and carry on
23
his trade.
Section 290 of the Indian Penal Code provides that any person, who commits
a public nuisance in any case not otherwise punishable by the code, shall be
punished with fine which may extend to Rs. 200. However, the offence under
this section is non-cognisable, bailable non-compoundable and is triable by any
24
Magistrate.

Section 269 provides that whoever unlawfully or negligently spread the

infection of any disease shall be punishable with imprisonment for a term which
may extend to 6 months, or with fine, or with both.25 Similarly, section 272
deals with the sale of noxious food, section 275 with the sale of adulterated
drugs, section 284 with negligent handling of poisons, combustibles and
explosives, section 285 deals with negligent conduct with regard to fire or
combustible matter, section 286 deals with negligent conduct with regard to an
explosive matter, section 336 deals with the act of endangering human life or
personal safety of others, section 337 deals with the act of hurting human life or
personal safety of others, 26 section 432 deals with mischief to the public
drainage by an act which cause an obstruction or inundation resulting in
damage or injury.27 Likewise, section 277 of the Code lays down that whoever
voluntarily corrupts or fouls the water of any public spring or reservoir, so as
to render it less fit, the purpose for which it is ordinarily used, shall be
liable to punishment.28

(ii) Innovative Interpretation of Article 21 and

Protection of Human Rights:

Article 21 guarantees “right to life” and says that no person shall be deprived of
his life and personal liberty, except according to procedure established by law.
The right to life under Article 21 of the Indian Constitution has been interpreted
in such a way by the judiciary in India that now it includes the right to
healthy environment. This right to life has been given wide interpretation by the
Supreme Court in context of environment. If anyone has violated healthy and
clean environment, he is deprived of his right to life under the Indian
Constitution. Thus, the judiciary has expanded the boundary of Article 21 by
including socio-economic aspects of rights of the citizens of India. It has been
one of the landmarks in judicial interpretations by the Indian judiciary. Mostly,
the cases taken up by the Public Interest Litigation are based on Article 21 of
the Constitution.
One of the early cases regarding the protection of rights in the context
of environment was the T. Damodhar Rao and Others vs. The Special
Officer, Municipal Corporation of Hyderabad and Others. The residents of
Hyderabad filed a petition against the Municipal Corporation of Hyderabad
and the Bhagyanagar Urban Development Authority, Hyderabad to develop an
area as recreational park according to the development plan and should not
allow it to be used by the Life Insurance Corporation or Income-tax
Department as a residential area. Therefore, in the judgement it was stated that

“…it would be reasonable to hold that the enjoyment of life and its
attainment and fulfilment guaranteed by Art. 21 of the Constitution
embraces the protection and preservation of nature's gifts without
which life cannot be enjoyed. There c an be no reason why practice of
violent extinguishment of life alone should be regarded as violative of Art.
21 of the Constitution. The slow poisoning by the polluted atmosphere
caused by environmental pollution and spoilation should also be
29
regarded as amounting to violation of Art. 21 of the Constitution.”

In the L.K. Koolwal vs State Of Rajasthan and others, the writ was filed for
the preservation of sanitation and environment in the city of Jaipur. The High
Court held that a right in favour of citizen to move to the Court to see that the
state performs its duties sincerely in accordance with the law of the land. Every
citizen has the right to know how the state is functioning. Further, the Court
observed:

“Maintenance of health, preservation of the sanitation and environment

falls within the purview of Article 21 of the Constitution as it adversely
affects the life of the citizen and it amounts to slow poisoning and
reducing the life of the citizen beca use of the hazards created, if not
30
check ed.”

The Supreme Court of India has also been emphasising on Article 21 in

the protection of environment. In Chhetriya Pardushan Mukti Sangharsh Samiti v
State Of U.P and Others, the court stated:

“Every citizen has a fundamental right to have the enjoyment of quality

of
life and living as contemplated by Article 21 of the Constitution of
India.”
Likewise, in the case of Subhash Kumar V. State of Bihar (AIR 1991 SC 424) the
petitioner by way of public interest litigation, filed a petition for ensuring
enjoyment of pollution free water and air. Justice K. N. Singh and Justice N. D.
Ojha held:

"Right to live is a fundamental right under Article 21 of the Constitution

and it includes the right of enjoyment of life. If an ything endangers
or impairs that quality of life in derogation of laws, a citizen has a right
to have recourse to Article 32 of the Constitution for removing the
pollution of
31
water or air which may be detrimental to the quality of life”

Similarly, in M.C. Mehta v Kamal Nath, [5] the Court decided

that:

„[a]ny disturbance of the basic environment elements, namely air,

water and soil which are necessary for life would be regarded as
hazardous for life within the meaning of Article 21 of the Constitution.‟

In M.K. Sharma v. Bharat Electric Employees Union, the Court directed

Bharat Electric Company to abide by the safety rules strictly to prevent
suffering to the employees ensuing from harmful X-ray radiation. The Court
did so under the ambit of Article 21, justifying the specific order on the
reason that the radiation influences the life and liberty of the employees. 32
Similarly, in M.C. Mehta vs. Union of India (3), the Supreme Court held
that air pollution in Delhi caused by vehicular emissions violates right to life
under Article 21 & directed all commercial vehicles operating in Delhi to
switch to CNG fuel mode for safeguarding health of the people.

(iii) Relaxation of the Rule of Locus Standi and

Public
Interest
Litigation:

Access to justice and narrow locus standi concept were the barriers in
the advancement of social interest –oriented movement. The courts were
inaccessible to the poor and ignorant sections of the society. Besides, the
poor or disadvantaged people cannot file petitions on behalf of other
individuals of community. But the Judges‟ transfer case led to the
conceptualisation of the liberalized rule of locus standi. As an approach to
solve the problem of access to justice, the Court shifted from “traditional
individualism of locus standi to the community orientation of
public interest litigation.33 With the advent of the Public Interest Litigation,
anyone
can file legal petition for the interest of public. Anyone who finds anything
going on against the law or human right anywhere in the country can knock the
door of the court under Article 32 of the Constitution or in the high courts
under Article 226 of the Constitution or before the Court of magistrate under
Section 133 of the Code of Criminal Procedure, 1973. The Public Interest
Litigation can also be filed by writing a letter to the court. Public interest
litigation has, therefore, become a major revolutionary step to restore the
melancholy of masses through judiciary in India
which has been the country of inherited injustice. 34 It has been found from the
Indian
Supreme Court Case Reports that out of 104 environmental cases from 1980-2000
in the Supreme Court of India, 54 were filed by individuals who were not
directly the affected parties and 28 were filed by NGOs on behalf of the
affected parties.35 In India, the roots of Public Interest Litigation can be traced
back to 1976 with the Justice Krishna Iyer in the case of Mumbai Kangar Sabha
vs. Abdul Bhai. This form of jurisprudence is usually more efficient in dealing
with environmental cases, for
the reason that these cases are concerned with the rights of the community
rather than the individual.36 It has been seen that the cases pertaining to
environment are not only filed against individuals or organisations, the people
have substantially filed petitions against the central and state governments.

In the case of M. C. Mehta and Others vs. The Union of India and Others, a writ
petition was brought by way of public interest litigation and raised some
decisive questions regarding the true scope and ambit of Article 21 and
32 of the Constitution, the principles and norms for determining the
liability of large enterprises engaged in manufacture and sale of hazardous
products, the basis on which damages in case of such liability should be
quantified and whether such large enterprises should be permitted to continue in
thickly populated areas and if they are allowed so to run, what measures must be
taken for the purpose of reducing to a minimum the hazard to the
workmen and the community living in the neighbourhood. In this case,
the court held that:

“… We would lik e to express our deep sense of appreciation for the

bold litigation taken by the petitioner in bringing this public interest
litigation before the court…We would, therefore, as a token of our appr
eciation of the
 work done by the petitioner in bringing that a sum of Rs. 10000 be paid by
Shriram to the petitioner by way of costs.”

In this case permission was granted to the apex court to Shriram Foods
and
Fertilizers to reopen its plant, subject to the conditions set out by the apex
court. 37

Another case of public interest litigation is of Tej Razadan vs. The Union of
India and others. In this case, a stay order was made by Justice S.C. Agarwal
directing the Union and State Governments not to allow the Saudi Arabian
Prince to continue hunting of the Great Indian Bustard, because the
preservation of wildlife is a matter of great ecological importance. However, the
case became infructuous because the Prince winded up his expedition.38

One of the popular names in public interest litigation pertaining to

environment protection is of lawyer M. C. Mehta. He has brought a number of
environment issues to the Courts of India. His landmark cases include Taj Mahal
Case, Ganga Pollution Case, Vehicular Pollution Case, Delhi Sewage Treatment
Plant Case, Environmental Awareness and Education Case, Delhi Ridge Case,
Dust Pollution Case, Kamal Nath Case, Coastal Area Case, Antop Hill Case,
Gamma Chamber Case, Ground Water
Pollution Case and Ground Water Depletion
Case. 39

The Taj Mahal Case was filed by M. C. Mehta in the 1984 and the
historic judgement was delivered by the Supreme Court in December 1996. The
apex court gave various directions including banning the use of coal and coke and
directing the industries to switch over to Compressed Natural Gas (CNG). In the
Ganga Pollution case, three landmark judgments and a number of Orders
against polluting industries numbering more than fifty thousand in the Ganga
basin were passed from time to time. In the Vehicular Pollution Case, the
Supreme Court delivered a landmark judgment in 1992 recommending
measures for the nationwide control of vehicular pollution. In the Delhi Sewage
Treatment Plant Case, a time bound programme was given by the Supreme
Court to the Delhi Municipal Corporation for setting up of treatment plant in
16 different localities. In the Environmental Awareness and Education Case,
the Court ordered that all over the country the cinema theaters will exhibit two
slides free of cost on environment in each show failing which their licenses
will be cancelled, a minimum 5 to 7 minutes will be given by the television
network in the country to televise programmes on environment apart from
giving a regular weekly programme on environment. The court also
ordered all state governments and educational boards concerned with education
up to the high school level in the country. In the Delhi Ridge Case, the Court
directed NCT of Delhi to declare it as 'Reserved Forest'. In the Dust Pollution
Case, 212 stone crushers were shifted out of Delhi to a 'Crushing Zone' set up
in Haryana in 1992. In the Kamal Nath Case, the Supreme Court imposed a
fine of ten lakh rupees on the Span motel as exemplary damages for ecological
degradation, recognizing the precautionary and public trust doctrine principle.
In the Coastal Area Case, the Supreme Court delivered a landmark
judgement banning industrial/construction activity within 500 metres of the High
Tide Line. In the Antop Case, the Supreme Court prohibited the authorities from
locating large-scale chemicals storage center for hazardous chemicals in the
concerned area. In the Gamma Chamber Case, the students and teachers in
Jawaharlal Nehru University (JNU), Delhi were saved from hazardous radiation.
In the Ground Water Pollution Case, the Supreme Court directed the
closure of the factories in the Bichhri district of Rajasthan and attached the
property of the polluter and directed the Department of Environment and
Forests, Government of India to recover the cost of eco-restoration from the
industries held responsible for causing damage to the environment. In the
Ground Water Depletion Case, Ground Water Board was made into an
authority invested with legal powers under the Environment Protection Act 1986
to issue licenses and take action against polluters even to the extent of closing
down of offending industries. 40

However, with the implication of the concept of PIL for

environmental jurisprudence, certain difficulties and problems have emerged in
recent years. The people have sometimes misused the concept of public
interest litigation and the judiciary has also observed this in many cases, like in
the Raunaq International Ltd vs. I.V.R. Construction Ltd, in which the Court
observed that:

“When a petition is filed as a public interest litigation… the court must

satisfy itself that party which has brought the litigation is litigating
bonafide for public good. The public interest litigation should not be
merely a cloak for attaining private ends of a third party or of the party
bringing the petition. The court can examine the previous record of
public service rendered by the organisation bringing public interest
litigation. Even when
 a public interest litigation is entertained the court must be careful to
weigh conflicting public interests before intervening. Intervention by the
court may ultimately result in delay in the execution of the project.”

(iv) Development of Environmenta l P

rinciples:

The judiciary of India has developed with time, certain environmental

principles while dealing with the cases of environment protection. These
principles being derived from international agreements and conferences, have
now become the base of the judgement of environmental cases. These
principles are precautionary principle, the “Polluter Pays” Principle,
Sustainable Development and Inter- generational Equity, the Right to
Livelihood and the Doctrine of Public Trust.

(a) Precautionary
Principle:

The Supreme Court spoke first about the precautionary principle in the
Vellore Citizens‟ Welfare Forum v. Union of India in which it was dealing with the
pollution caused by 900 tanneries. The Court observed:

“The "Precautionary Principle" - in the context of the municipal law -

means.(i) Environment measures - by the State Government and the
statutory Authorities must anticipate, prevent' and attack the causes of
environmental degradation. (ii) Where there are threats of serious and
irreversible damage lack of scientific data certainly should not be used
as the reason for postponing, measures to prevent environmental
depredation.(iii) The "Onus of proof" is on the actor or the
developer/industrial to show that his action is environmentally benign.”

Further, the units which were shut down were permitted to reopen only after
they had set up effluent treatment plants to the satisfaction of the Central
Pollution Control Board after obtaining its consent. The Court also directed that
the matter be dealt with by the Madras High Court by a special Bench, to be
known as „The Green Bench‟.

In the Narmada case, the Court further explained the concept and observed
that:

270
“When there is a state of uncertainty due to the lack of data or
material about the extent of damage or pollution lik ely to be caused, then,
in order to

271
 maintain the ecological balance, the burden of proof that the said
balance will be maintained must necessarily be on the industry or the
41
unit which is lik ely to cause pollution.”

Likewise, the precautionary principle was directly applied by the Court in the
M.C. Mehta v. Union of India, for protecting the Taj Mahal from air pollution.
The Court observed that:

“The atmospheric pollution in TTZ has to be eliminated at any cost. Not

even one percent chance can be tak en when —human life apart -
the preservation of a prestigious monument lik e the Taj is involved.”

Further, the Court in this case, ordered that industries, identified by the
Pollution Control Board as potential polluters, had to change over to natural
gas as an industrial fuel and those that were not in a position to obtain gas
connections for any reason should stop functioning in TTZ and relocate
themselves in alternative plots outside the demarcated area within a stipulated
time.42

(b) The “Polluter Pays”

Principle:

The polluters pay principle was applied by the court in the Indian Council
for
Enviro-Legal Action vs. Union of India and others, the court
observed:

“…once the activity carried on is hazardous or inherently dangerous,

the person carrying on such activity is liable to mak e 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. The rule
43
is premised upon the very nature of the activity carried on.”

Thus, in this case, the court ordered to pay the villagers the loss it has done to them
44
through pollution of soil and other activities. Also in the Vellore Citizens‟ Welfare
Forum v. Union of India, the court imposed pollution fine on the tanneries and
to compensate under two headings namely, for reversing the
ecology/environment and
for payment of individual victims. It was estimated that nearly 35,000
hectares of agricultural land in this tanneries belt has become either partially
or totally unfit for cultivation, and that the 170 types of chemicals used
in the chrome tanning processes have severely polluted the local drinking
water.45
However, not every time, there has been the implementation of the
judgements of the Courts in India. In the case of S. Jagannath, which
was concerning the destruction of coastal ecology by intensive and extensive
shrimp farming, the Court has directed closure of shrimp farms and payment
of compensation on „polluters pays principle‟ as well as cost of remedial
measures to be sustained by industries. But after the judgement, firstly, the
Court itself stayed its own directions in review and later, the Parliament
brought legislation, over-ruling the directions given in the said judgement.
Similarly, the precautionary principle has not been applied in the Tehri Dam
where the petitioners as well as the Environmental Appraisal Committee of the
government expressed concern about the safety of the dam. Likewise, in the
Narmada Dam case, the Court refused to apply the precautionary principle on
the big dam as if protection of natural resources and its ultimate cost for the
present and
future generation is not an integral part of
development.46

(c) Sustainable Development and Inter-generational

Equity:

The terms „inter-generational equity‟ and „sustainable development‟ were

developed at the international level in 1972 and 1987, respectively. In
India, the Supreme Court used the term „sustainable development‟ in
Narmada Bachao Andolan v. Union of India and observed that:

“Sustainable development means what type or extent of development can

tak e place, which can be sustained by nature/ecology with or withou
47
t mitigation.”

Likewise, in State of Himachal Pradesh v. Ganesh Wood Products case, the

Supreme Court invalidated forest-based industry, recognising the principle of
inter- generational equity as being central to the conservation of forest
resources and sustainable development.48 Also, in the Vellore Citizens Welfare
Forum vs. Union of India and Others, the court held that:

"We have no hesitation in holding that „sustainable development‟ as a

balancing concept between ecology and development has been accepted
49
as a part of customary international law…”
The maintenance of the principle of sustainable development by the judiciary
can be found in the M.C.Mehta vs. Union of India case. The Supreme
Court issued
directions for stopping mechanical stone-crushing activities in and around
Delhi, Faridabad and Ballabhgarh complexes and directions were issued for
allotment of sites in the new “crushing zone” set up at village Pali in
50
Haryana to the stone crushers.

(d) The Right to

Livelihood:
In certain cases, the judiciary has to decide whether to prefer the
preservation of environmental resources or the right of communities to extract
value out of those resources. And the courts have widely referred the latter
leading to the development of the principle of right to livelihood. In Fatesang
Gimba Vasava v. State of Gujarat case, the legally recognized right of the tribal
people to obtain bamboo and earn livelihood by selling the articles made out
of them, was attempted to be rendered unenforceable by the forest department
officials by barring their transport from out of the forest area. The alleged
purpose of the action was to force the forest dwellers to sell raw bamboo to the
local paper mill. The court ordered that the forest department should not
interfere in the transit of the bamboo articles from the forests to non-forest
areas. In another case, the Andhra Pradesh High Court struck down a
government order that permitted felling of trees and transport of timber from
the forest area that was in contravention of law. The court reasoned that the
statutory provisions were intended to safeguard the interests of scheduled
tribes and to preserve forests. The executive order that violated this law was
51
valid.

Likewise, in the Banwasi Sewa Ashram vs. State of India, the adivasis and
other backward people were using forests as their habitat and as a means of
livelihood. The part of the forest area was declared as “reserved forest” and
in subsequent proceedings, it was decided that a super thermal plant of the
National Thermal Power Corporation Limited (NTPC) would be located in that
area. Since the area was used by the adivasis and other people as means of
livelihood, therefore the Supreme Court directed to safeguard and protect the
interests of the concerned people who were ousted from their forest land. The
court allowed NTPC to occupy forest land only after they agreed to provide
facilities to the ousted people. Further, it ordered rehabilitation measures for the
evictees and provisional compensation for crops and land was directed to be
paid to them. Similarly, in the Pradip D. Prabhu vs. State of Maharashtra case,
the court ordered not to dispossess the adivasis till the
finalization of the cases of such adivasis. In the same way, the judiciary
protected the rights of the tribes and backward people in the cases of Pradeep
Kishen vs. Union of India and Animal and Environment Legal Defence Fund
52
vs. Union of India.

However, the Court has not always considered the rights of livelihood. For
instance, in the closure of the Idgah slaughterhouse, the relocation of polluting
industrial units and removal of encroachments on the Ridge area of Delhi, the
rights of workers were disregarded.53 Similarly, in the Banwasi Seva Ashram v.
State of UP case, the Court ordered the rehabilitation of people who had been
displaced due to the implementation of a development project, attempting to
balance environmental concerns with developmental issues.54

(e) The Doctrine of Public Trust:

The doctrine of public trust rests on the principle that certain resources of nature
like water, sea, air and the forests have such a great importance to the people as
a whole that it could be wholly unjustified to make then a subject of private
ownership, these sources are gifts of nature, therefore, they could be made
freely available to everyone irrespective of the status in society. This
principle was observed by the
Court in M.C. Mehta v. Kamal Nath case.55 The case was concerning
the
construction of a motel on the Beas river bank and its bed leading to
environment degradation. The encroachment of the forest area and an attempt
to change the course of the river was a concern of serious environment
degradation. The Supreme Court interfered and quashed the prior approval
granted by the central government for leasing out forest land and also the
lease deed between the government of Himachal Pradesh and the company.
The Court also directed the Government of Himachal Pradesh to take over the
entire area and restore it to its natural-original state and observed that the
river bank and the river basin were to be left open for public use. The court
also applied the polluters pay principle and state was held
responsible for the breach of public trust by leasing out
land. 56
The Court has also been involved for arriving at „Net Present Value‟ (NPV)
to be paid by the State of the diversion of forest land to non-forest use to
be paid to Compensatory Afforestation Fund Management and Planning
Agency (CAMPA),
with the T. N. Godavarman Thirumulpad vs. Union of India case. Since the
court made payment of NPV mandatory in 2002, project proponents have filed a
number of applications in the Supreme Court and the Central Empowered
Committee (CEC) asking for exemptions or reductions in the amount to be paid
as NPV. For instance, at a hearing on 16 December 2005, the advocate for
South Eastern Coalfields appealed before the court that the company is a
Public Sector Undertaking (PSU) and a sum of Rs.600 crores is a very large
amount to pay. He argued that the PSU could deposit the money, if the amount
were lower. The court did not accede to this request. However, ordered that
responses in the case might be filed by the respondents of the case.
Likewise, On 9 March 2007, the court considered a case related to the
construction of a reservoir and pipeline involving the Chambal Ghariyal
Sanctuary. The project proponent emphasised that they were being asked to pay
five per cent of the total cost of the project as the NPV for the diversion of the
forest land. But, they argued that the construction involved only one kilometre
of the forest land, and therefore the calculation should be done keeping that in
mind, i.e. five per cent of the construction cost which is within the sanctuary
area. The court granted this request, as an exceptional case. The Supreme Court
has also established a committee under the Chairpersonship of environmental
economist Dr. Kanchan Chopra of the Institute of Economic Growth to
establish in a detailed manner how NPV can be calculated.57 Recently, in a
lecture, Environment Minister Jairam Ramesh said under this approach of
NPV “today we have almost Rs 11,000 crore available to State governments
for reforestation and regeneration of natural forest
cover.”58

2. ENVIRONMENTAL INITIATIVES BY
JUDICIARY

The Supreme Court has been the focal agency in the justice of environment
issues and with time it proposed and initiated approaches to make judiciary of
the country more efficient. For instance, it held that local conditions in
different parts of the country being better known to them, the high courts would
be the appropriate forum to be moved for more effective implementation and
monitoring of the anti-pollution laws. Therefore, in the Indian Council for
Environ-legal Action v. Union of India, it held that:
 “... for a more effective control and monitoring of such laws, the High
Courts have to shoulder greater responsibilities in tack ling such issues,
which pertain to the geographical areas within their respective States.
Even in cases which have ramifications all over India, where general
directions are issued by this Court, more effective implementation of the
same, can in a number of cases, be effected, if the High Courts
concerned assume the responsibility of seeing to the enforcement of the
laws and examine the complaints, mostly made by the local inhabitants,
about the infringement of the laws and spreading of pollution leading to
59
degradation of ecology. ”

In one of the cases, Supreme Court even directed the local government body to
carry out its functions properly. In the Ratlam case, the residents of Ratlam
filed a complaint under Section 133 of the Criminal Procedure Code
contending that the Municipality had failed to prevent the discharge from the
nearby alcohol plant of malodorous fluids into the public street and provide
sanitary facilities on the roads. The Municipal Council approached the Supreme
Court and one of the key questions raised was whether “by affirmative action a
court can compel a statutory body to carry out its duty to the community by
constructing sanitation facilities at great cost.” The Supreme Court directed
the Municipality to follow the statutory duties and stop the effluents from the
alcohol plant from flowing into the Nala or street. And the court further
observed that:

“Decency and dignity are non-negotiable facets of human rights and are
60
a first charge on local self -governing bodies.”

Likewise, in the M.L. Sud vs. Union of India, it was alleged that the Delhi
Development Authority (DDA) was denuding the forest by cutting trees
and constructing and laying roads in the Master Plan as “Green” and was
to be maintained as city forest. The Supreme Court therefore ordered the
concerned
authorities to maintain the city forest.61 Similarly, in the Dr. G. N. Khajuria
vs.
Delhi Development Authority, land reserved for park in residential colony
was allotted by the Delhi Development Authority (DDA) to the respondent
for the construction of a nursery school, completely violating the Delhi
Development Authority Act of 1957. The Supreme Court held that the
allotment is illegal, construction unauthorized, therefore the building should
be demolished and the officers of the concerned authority be punished in
accordance with the law. 62
It has been found that the judiciary has helped out in cases relating to
environment areas which lack any specific policy or law by the legislative and
executive branches of the government. There are many areas of environment
for which there are no particular or direct laws or policies, so in these cases
the role of judiciary has been very valuable. For instance, a recent survey
by the Centre for Science and Environment (CSE) showed that there is
presence of a highly toxic chemical called phthalates in toys sold in the
Indian market. Scientific evidence has shown that exposure to phthalates can
cause a variety of health problems ranging from asthma to pre term birth.
However, under the pressure of the vigilant judiciary, the authorities, since
January 2009, have tried to meet the standards of the quality of the
toys.63 Similar is the case in the field of food security. There are no specific
policies
to deal with food security and related issues; therefore in this field the
judiciary has been playing an effective role. Recently, the Supreme Court
ordered free distribution of food grains to the poor instead of allowing it to rot
in godowns. The Bench said that the government must take urgent steps to
prevent further rotting of food grains while maintaining that it must procure
only that much quantity which it can
preserve. The court passed the direction while dealing with a public
interest litigation filed by civil rights group PUCL on rampant
corruption in Public Distribution System (PDS) besides rotting of food grains
in FCI godowns. Further, the court directed the Government to conduct a fresh
survey of the BPL/ABPL/AAY beneficiaries on the basis of the figures
available for 2010 and said the authorities
64
cannot rely on a decade-old data to extend the benefits. Similarly, in 2005
the
Punjab and Haryana High court issued notice on a public interest litigation
filed by the Kapurthala residents seeking removal of cell-phone towers from
rooftops in residential areas and near schools.65 The Delhi high court in
November 2004 directed the Municipal Corporation to fine slaps on those
throwing waste and garbage at inappropriate places.66

Environment
Tribunal:
To be more precise in the cases of environment issues, the National
Environment Tribunal Act, 1995, was passed to provide for strict liability for
damage arising out of accidents caused from the handling of hazardous
substances. Likewise, National Environment Appellate Authority (NEAA)
was established under the National
Environment Appellate Authority Act, 1997, to hear appeals with respect
to restriction of areas in which any industries, operations or processes or
class of industries, operations or processes shall or shall not be carried out, subject
to certain safeguards under the Environment (Protection) Act, 1986. However,
these acts have been defunct with the passing of the new National Green
Tribunal Act, 2010. The new act provides for the establishment of National
Green Tribunal with- a special fast-track court for speedy disposal of
environment-related civil cases. The new tribunal shall consist of members who
are experts in the field of environmental and related sciences. The Ministry of
Environment and Forests (MoEF) also tends to organize workshops in rural
areas to educate people about issues of access and
procedure related to the National Green Tribunal. 67 New provisions have
been
provided in this act. A key change incorporated in the act is the creation of
benches of the tribunal on a circuit basis, which would make them mobile
and allow the green benches to hear cases at places beyond their original
location but within their jurisdiction. The amendment came with many
complaints such as that the benches would become difficult for people to
approach from far flung places. An amendment has also been introduced with
`any person aggrieved, including any representative body or organisation, would
be allowed to file an application for the grant of relief or compensation and
settlement of disputes. The polluter pays and precautionary principle will
now be the basic framework against which the tribunals will
adjudicate.68 This new Act however, started facing criticism even before its
passing
in the Parliament. Retired Justice N. Venkatachala of the Supreme Court,
who headed the NEAA for three years, demands that the new Green Tribunal
should be scrapped. He holds out that sections 14 to 17 which relate to the
powers and jurisdiction of the new Act undermine its purpose. He holds that the
act does not fix responsibility on who should pay damages in case of an
accident and the limitation of complaints to five years since the inception of
the problem. The new act also allows industries to appeal before the Tribunal
if they fail to get environmental clearance.69 Another drawback of the act is
that no civil court shall be allowed to entertain cases which the tribunal is
competent to hear leading in the reduction of access to judicial remedies.
Besides, the provision to impose penalty on the petitioner if a claim is
found untenable will prevent less privileged people from
bringing genuine issues to the
tribunal.70
3. DIVERGENT ROLE OF JUDICIARY
It has been found in number of environment related cases that judiciary has
been deviating from its role of protecting the environment. The judgments of
courts in India have not been always pro-environment, as was in the case of
Sachidanand Pandey v. State of West Bengal (Calcutta Taj Hotel case). In this
case, the petitioner through the public interest litigation opposed the negotiating
away of four acres of land belonging to Calcutta Zoo to the Taj Group of Hotels.
They wanted to avoid the construction of the Hotel near the Zoo because they
argued that multi-storied building in the vicinity of the zoo would disturb the
animals and the ecological balance and would effect the bird migration which
was a great attraction. But the Court permitted the construction of a hotel near
the land belonging to the Calcutta Zoological Garden with certain
preconditions, stating that tourism was important to the economic progress of
the country, thereby underlining the constant controversy
between development and the environment. 71 Similarly, in the Goa Foundation,
Goa
vs. Diksha Holdings Pvt. Ltd. & others, the appellants have filed the case against
the construction on the land that comes within CRZ-I which will lead to
irreversible ecological damage of the coastal area. But the court held that while
maintaining and preserving environment and ecology of Goa in coastal area,
economic development of the state has also to be kept in mind and a balance
72
has to be struck between the two.

One of the main reasons of the Court for this divergence has also been the lack of
experience in the scientific and technological data for proper judgement
of environmental cases. Thus, the judiciary in India, sometimes does not
interfere in the workings of the other organs of the government including
environment issues on the ground that these cases raise technical issues and
policy matters which are best left to expert authorities of the executive. In the
A.P Pollution Board vs. M.N. Nayudu, the Supreme Court acknowledged:

“…considerable difficulty is experienced by this Court or the High

Courts in adjudicating upon the correctness of the technological and
scientific opinions presented to the Courts or in regard to the
efficacy of the technology proposed to be adopted by the industry or in
regard to the need for alternative technology or modifications as
suggested by the Pollution
 Control Board or other bodies. The present case illustrates such
73
problems.”

The Court then referred the issues to the National Environmental

Appellate
Authority, set up under a statute of 1997 and asked to submit a report to the
court.

The Tehri Bandh Virodhi Sangharsh Samiti vs. State of UP and others is a useful
illustration of this kind. The Tehri Hydro Power Project and the proposed
Tehri Dam was defied on the ground that their safety aspects were not duly
considered and, amongst other things, the site of the dam was prone to
earthquakes. Notably, the Environmental Appraisal Committee of the MoEF had
concluded that the project be abandoned. The conclusions of the said
committee was questioned by the committee of secretaries later and
thereupon another high level committee was constituted which approved the
project. Under these circumstances, the court dismissed the petition while
clarifying that "it was not possible to hold that the Union of India have not
applied its mind" to all possible ramifications of the project. It was further pointed
out that the case brought forth "an intricate question relating to science and
engineering" and the court does not possess the requisite expertise to deal with
it. Similarly, in another case of the Goa Foundation and another vs. The Konkan
Railway Corporation and Others, where it was sought that the Konkan Railway
Corporation should be compelled to obtain requisite environmental
clearance for its proposed rail alignment, the high court reasoned that
the corporation had set up a specialised committee and engaged a "renowned
engineer'
and when they had given the 'green signal', the court is not to
interfere. 74

Likewise in the Society for Protection of Silent Valley vs. Union of India and
Others, the court said:

"...we cannot substitute our judgment for that of the government, on the
question as to whether a national asset is to be more conveniently
utilised as a hydroelectric project...or retained in its pristine glory..."

It further added,
that:
280
"we do not think it necessary to cover the entire gamut of material -
whether scientific, technical, technological or ecological -placed before
us in great detail. It is not for us to consider these evaluations as against
the

281
 evaluation already done by the government...We are not to substitute
our opinion and notions on these matters for those of the government"
75

However, the judiciary has not always been reluctant from performing its role
in the protection of the environment, it has appointed a plethora of
committees and commissions to carry out its functions. For instance, in the
famous Doon Valley case, the Supreme Court appointed several committees
consisting of experts to examine whether indiscriminate mining in the Doon
Valley had any serious effect on the ecology. The court directed to close
down the mining operations in these areas, while allowing mining in other
cases reported by these committees as not dangerous. Further, the court
constituted a monitoring committee, aptly called the "Supreme Court
Monitoring Committee', which continues to oversee the quarrying and mining
operations in the Valley even more than a decade after the final disposal of the
case in 1988 (Supreme Court Monitoring Committee vs. Union of India).
Besides, in most cases filed by the well known environmental lawyer M. C.
Mehta on pollution prevention, the court have repeatedly appointed
committees to determine disputed facts, to suggest remedial measures
and to oversee implementation of its orders. Likewise, in another case filed
by the Alwar-based Tarun Bharat Sangh against mining activities in a protected
area, the court appointed a committee to find out the limits of the protected area,
the fact as to whether mining was carried on within that area, the possible
alternative sites for mining and finally to oversee compliance of notifications
and the court's orders. Another illustration is the well known T. N. Godavarman
case on protection of forest resources all over the country where the Supreme
Court appointed high powered committee to oversee strict and faithful
implementation of its orders.76 Supreme Court also invite objection
against the reports of these committees which would file within a
reasonable time. These objections were considered, and as and when
77
necessary, activities such as mining and stone quarrying were prohibited.

Subsequently, in July 2002, the Supreme Court took a decision to create a nationally
empowered committee, called the Central Empowered Committee (CEC) and on
9
September 2002, the Supreme Court in a judgment, made the CEC a
statutory
authority under the Environment Protection Act of 1986. The powers of
the committee included dealing with issues connected to forests, wildlife
and the
environment and persons could seek relief directly from the committee on
these issues. The committee also had the power to summon files, papers or
even people and conduct formal hearings in order to fulfill its objectives. One
of the popular cases of CEC is the so-called „Coke-Pepsi case‟ concerning
commercial vandalism on the rocks of the Himalayas in Himachal Pradesh. In
this case, the court involved the CEC into assessing the damage done to the
environment. Subsequently, the companies were penalised and five crore rupees
have been recovered as damages. Another case is of the forest encroachment of
the Western Ghats in the Chikmagalur district of Karnataka by the rich,
powerful, and famous people. Subsequently, the court endorsed the
recommendations of the CEC and asked for the removal of all the encroachments
according to the forest boundaries as mapped by the Survey of India. The court
further asked the encroachers, if they could vacate the land before three
months they do not have to compensate for the losses, but if they continue to
remain in occupation then they will have to pay Rs 5 lakh per hectare per month to
78
the state government.

However, there have been serious concerns over the functioning and
composition of court appointed committees. For instance, the members of the
Central Empowered Committee (CEC) set up by the Court consists of entirely
wildlife conservationists who have traditionally prioritised wildlife over people,
and officers of Ministry of Environment and Forests, with their strong
inclination to enlarge the territory under forest department control. There is no
representative of tribal people, the Ministry of Tribal Affairs or the
Constitutional Authority of the Commissioner, Scheduled Castes and
Scheduled Tribes.79 Further, the reports of expert committee given to the court
raise problems of their evidentiary value. In the Taj Trapezium case, the court
relying upon the report of National Environmental Engineering Research
Institute (NEERI), ordered closure and relocation of several small-scale units,
especially the foundries in the area. The report, unfortunately was not based on
all facts and its methods, analysis and conclusions left a lot to be desired
from a reputed scientific and research organisation.80

Another important innovation of the judiciary in resolving dispute has been

the judge‟s personal interest to have first-hand information by visiting the
site to understand clearly the nature and depth of the environmental problem. In
the Ratlam
Municipal vs. Vardhichand case, Justice V.R. Krishna Iyer and in the Doon
Valley case, Justice P. N. Bhagwati visited the concerned areas. 81

4. ASPECTS OF ENVIRONMENTAL JUSTICE

U. Baxi and S.P. Sathe have argued that the different outcomes of judicial
decisions could be attributed to the attitudinal differences among the justices to
environmental litigation, which play an important role in the judicial
decision-making process. Thus, another important aspect of judiciary in
environment issues is the different interests of individual judges in environment
matters. For instance, individual judges like P.N. Bhagwati, V.R. Krishna Iyer
in the 1980s and Kuldeep Singh in the 1990s have taken special interest in
understanding different dimensions of environmental problems. Justice P.N.
Bhagwati and Krishna Iyer made spot visits to Moussorie and Ratlam
respectively, to understand different aspects pertaining to environmental
problems before giving decisions. Justice Krishna Iyer, through his well
known book "Environmental Legal Defense", was the only judge who
made specific contribution to environmental law literature by highlighting the
problems faced by the judiciary in dealing with environmental problems
and methods required to ensure effective evolution of laws and policies
for the management of the environment. In the late 1990s, Justice A.S.
Anand, B. N. Kripal, V.N. Khare also ensured the implementation of judicial
directions. For example, in the Delhi Vehicular Pollution case, these three
judges made it mandatory on the part of both the Government of India and
the Delhi Government to convert all commercial vehicles into CNG within a
specified date. Actions have been commenced not only by way of formal
petition, but also by way of letters addressed to the court or a judge who has
chosen to treat it as a petition. Justice P.N. Bhagwati received a letter from the
NGO namely Rural Litigation and Entitlement Kendra, alleging
unauthorised and illegal mining in the Dehradun area, which adversely affected
the
ecology of the region and caused environmental
damage. 82

Venketesan also attributes the different approach of judiciary on

environmental litigation to the location of environmental problems i.e. urban-
rural. According to him, if the environmental problem is located in urban
areas then the outcome of judiciary is different from that of the rural
environmental problems. According to
Upadhyay, in its approach to environmental problems, the judiciary has
been following a particular trend in all environmental cases to address various
issues involving human rights and social justice components, while it has
failed to apply the same principle in resolving environmental problems
resulting from infrastructure projects. The history of judicial intervention in
the infrastructure projects reveals that the judiciary has not followed its
precedents in these cases. Analysing judicial decision on different issues
differently, Pathak argues that the Supreme Court approach to environmental
litigation followed a dual strategy. He finds that in forest- related issues, where
the state has claimed its environmental agenda, the court has protected the'
rights of the forest dwellers, while in pollution-related issues, where the state
has been reluctant. It has cast duties on it to be concerned about the environment.83

5. ARBITRARINESS OF
JUDICIARY

The role of the judiciary in India sometimes has been arbitrary in the protection
of environment. The judiciary has gone beyond its scope of jurisprudence in
some of the environmental cases. The T.N. Godavarman Thirumalpad vs. Union
of India and the vehicular pollution of Delhi cases are the glaring examples of
this kind. In the Delhi vehicular pollution case, the Supreme Court directed to shift
to the use of Compressed Natural Gas (CNG) of all commercial buses and later
the privately-run autorickshaws. Besides this, the Supreme Court passed
following measures to control vehicular pollution in Delhi:

Lowering of sulphur content in diesel, first to 0.50% and then to 0.05%.

Ensuring supply of only lead-free petrol.

Requiring the fitting of catalytic converters in vehicles.

Directing the supply of pre-mix 2T oil for lubrication of engines of

two- wheelers and three-wheelers.

Directing the phasing out of grossly polluting old vehicles.

Directing the lowering of benzene content in petrol.

Ensuring that new vehicles, petrol and diesel, meet Euro II standards.84
These measures caused protest from the private companies as well as from
the central government and Delhi state government. The opponents argued that
this step was intrusion in the functions of the pollution control authorities and
following this action was risky as well as costly. But it has now been widely
acknowledged that it is only because of this judicial intervention that air
pollution in Delhi has been checked to a substantial extent.85

It is rightly said by Subhendu Rajan Raj

that:

“In this case, the Supreme Court showed itself as a crusader, as it were,
in the last seventeen years (decision given in 2002), and assumed the role
of a legislature, a perspicacious and trenchant critic, and an
administrator overseeing the progress of its directives being
implemented…it turned itself
into a registry while track ing day-to-day
86
progress…”

Likewise in the T.N. Godavarman Thirumalpad vs. Union of India, the

Supreme Court extended the scope of the petition from a matter of ceasing
illegal operations in Nilgiris forest land from deforestation by illegal
timber operations into a reformation of the entire country‟s forest policy. The
court held that the meaning of
„forest‟ is to be as per dictionary definition irrespective of ownership and its
orders
are to supply to all lands entered in any government record as
„forest‟ The Supreme Court has done a lot to protect and preserve the
environment in India.87

The judiciary went to the extent of spreading environmental awareness and

literacy and launching of environmental education not only at school level, but
also at the college level in the M.C. Mehta v. Union of India case. Further, it
directed All India Radio and Doordarshan, to focus their programmes on
various aspects of the environment, and also directed every state government
and education board to take steps for environmental education.88

6. IMPLEMENTATION OF COURT ORDERS

The orders of the courts are not self-executing and are left to the administration for
implementation as to give effect. The Supreme Court, generally, in all
environment litigations prescribed time limits within which the order is to be
carried out, periodic submission of progress reports by the concerned authorities
and sometimes roped in
the high courts to monitor actual implementation. But still, the implementation
is not all the time carried out by the concerned agencies, there are a number
of instances when the enforcing agencies have not implemented the decisions of
the court under one excuse or another. In the Bandhua Mukti Morcha case, the
petitioner brought to the notice of the court non-compliance with its 21
directions (passed on 16
December 1983) by the Haryana government. But the court merely preferred to
issue
a warning that “if any of these directions is not properly carried out by the
Central
Government or the State of Haryana, we shall take a serious view of the
89
matter.”
Similarly, the court orders in the Ganga river pollution case have not
been implemented. The tanneries continue to operate in spite of the strict
action ordered by the court against the polluted industries both in the case of
the Kanpur and Calcutta tanneries. Likewise, in the Delhi industrial
relocation case, the court ordered that the workers should get whatever
compensation they deserve, according to the law and industries must be relocated
from Delhi. However, the decision of the court has not been implemented by the
government on the ground of non-availability of land to shift the industries and
also workers‟ right to compensation appeal has not been given due attention in
the subsequent hearings. Referring to this problem of non-implementation,
Justice S. P. Bharucha said:

"This court must refrain from passing orders that cannot be enforced,
whatever the fundamental right may be and however good the cause. It
serves no purpose to issue some high profile mandamus or declaration
that can remain only on paper. It is counter productive to have people say
„The Supreme Court has not been able to do anything' or worse. It is of
cardinal importance to the confidence that people have in the Court that
its orders are implicitly and promptly obeyed and is, therefore, of
cardinal importance that orders that are incapable of obedience and
90
enforcement are not made."

Besides this, the judiciary in India has also consumed a lot of time in giving
their judgements including on environment issues. In terms of environment
cases, the Supreme Court took, on an average, of four years to dispose its
environmental case. In 30% cases, the court delivered the judgement in the same
year or within one year after filing of the petition. However, there were 13 %
cases where the Supreme Court took ten to fifteen years. The high courts took
lesser time as compared to the
Supreme Court and disposed its environmental cases within an average of two
and half years. In nearly 4 % cases, the high courts took more than ten years and
in 42% cases the time was either the same year or one year. 91

Thus, the response of the judiciary in India has been varying in dealing with the
environment issues; the judgements have been sometimes pro-environment
and sometimes anti-environment, sometimes oppressive and sometimes
submissive, sometimes stringent and sometimes lenient, sometimes accurate
and sometimes inaccurate.
 REFERENCES

1
Law, Judiciary and Environmental Governance: Need of Separate
Environment Courts in India, Paper presented by Shastry Pooja and
Rashmi Bela at the 5th Biennial Conference, The Indian Society for
Ecological Economics (INSEE), January 21-23 2009,
available at http://www.ecoinsee.org/fbconf/Sub%20Theme%20G/Pooja
%20Shastri.pdf accessed on 20 October 2010 at 7:17 pm.

2
Ashok H. Desai and S. Muralidhar, „Public Interest Litigation: Potential
and Problems‟, in B. N. Kirpal, Ashok V Desai; Subramanium Gopal,
Rajeev Dhavan, Ramachandran Raju (eds.) Supreme but not Infallible-
Essays in Honour of the Supreme Court, Oxford University Press, New
Delhi, 2000, pp. 159-162.

3
B. D. Dua, M. P. Singh and Rekha Saxena (eds.), Indian Judiciary
and Politics: The Changing Landscape, Manohar Publishers, New Delhi,
2007, p. 18.

4
U.P. Pollution Control Board vs. Bhupendra Kumar Modi (2009) 2 SCC
147.

5
C. M. Jariwala, Environment and Justice, S.B. Nangia A P H
Publising
Corporation, New Delhi, 2004 pp. 27-29.

6
George (Rock) Pring and Catherine (Kitty) Pring, Greening
Justice: Creating and Improving Environmental Courts and Tribunals, The
Access Initiative, available at http://moef.nic.in/downloads/public-
information/ Greening%20Justice.pdf accessed on 23 October 2010 at 8:29
pm.

7
C. M. Jariwala, op. cit., p. 23.

8
Ibid, p. 26.
9
Noorjahan Bava, „Environmental Policy and Administration in India:
Role of Government, Parliament and Supreme Court‟, Indian Journal of
Public Administration, Volume 50, Number 1, 2004, pp. 72-91.
10
Mahesh Mathur, Legal Control of Environmental Pollution:
Jurisprudence and Laws Applicable to Environmental Violation and
Prevention, Deep and Deep Publications, New Delhi, 1996, p. 154.

11
Armin Rosencranz and Shyam Divan, Environmental Law and Policy
in
India: Cases, Materials and Statutes, Oxford University Press, New
Delhi,
2001, p. 88.

12
Mahesh Mathur, op. cit., p.161.

13
Ibid, p. 181.

14
Ibid, p. 190.

15
Armin Rosencranz and Shyam Divan, op. cit., p, 105.

16
Mahesh Mathur, op. cit., p. 192.

17
Armin Rosencranz and Shyam Divan, op. cit., p. 93.

18
Ibid, pp. 101-102.

19
Ibid, p. 107.

20
Mahesh Mathur, p. 205.

21
Armin Rosencranz and Shyam Divan, op. cit., p. 112.

22
Ibid.

23
Ibid , p. 113.

24
Mahesh Mathur, op. cit., p. 210.

25
Ibid, p. 212.

26
Ibid, pp. 216-221.

27
Ibid, p. 226.

28
Ibid, pp. 206-207.
29
T. Damodhar Rao vs. The Special Officer, Municipal Corporation
of
Hyderabad 1987 AIR AP 171.

30
L.K. Koolwal vs. State of Rajasthan, AIR 1988 Raj. 2.

31
http://www.nlsenlaw.org/environmental-protection/articles/constitutional-
provisions-for-environmental-protection/ accessed on 24 October 2010
at
5:45 pm.

32
Law, Judiciary and Environmental Governance: Need of Separate
Environment Courts in India, op. cit.

33
Sampat Jain, Public Interest Litigation, Deep and Deep Publications,
New
Delhi, 2002, p. 14.

34
Report on National Judicature, Ministry of Law, Justice and
Company
Affairs, Government of India, 1977, p. 61.

35
Geetanjoy Sahu, „Implications of Supreme Court‟s Innovations
for Environmental Jurisprudence‟, Law Environment and Development
Journal, Volume 4, Number 1, pp. 1-23.

36
G.S. Tiwari, „Conservation of Biodiversity and Techniques of
People's Activism‟, Journal of the Indian Law Institute, Volume 43,
Number 2, 2001, pp. 191-220.

37
Mahesh Mathur, op. cit., pp. 366-367.

38
Ibid, p. 367.

39
M. C. Mehta Landmark Judgements, available at
http://mcmef.org/
index.html accessed on 10 October 2010 at 2:54 pm.

40
Ibid.

290
41
P. Leelakrishnan, „Environmental Law‟, Annual Survey of Indian
Law, Volume 36, 2000, pp. 252-257.

291
42
Karni Singh, Environment Justice: Experience v s Expectations, available
at http://www.legalserviceindia.com/articles/ev_ex.htm accessed on 24
October
2010 at 7:34 pm.

43
Indian Council for Enviro-Legal Action v. Union of India, AIR 1996
SC
1446.

44
Ibid.

45
Vellore Citizens‟ Welfare Forum v. Union of India AIR 1996 SC 2715.

46
Geetanjoy Sahu, op. cit.

47
Narmada Bachao Andolan vs. Union of India, AIR 2000 SC 3751.

48
Shyam Divan, International Environment Law, available
at
http://www.nls.ac.in/CEERA/ceerafeb04/html/documents/internationalenvtla
wshyamdiwan.htm Accessed on 24 October 2010 at 7:22 pm.

49
Vishwa jit Gupta, Environment and Law, S. S. Publishers, Delhi, 2006,
p.
239.

50
P.S. Jaswal and Nishtha Jaswal, Environmental Law:
Environment Protection, Sustainable Development and the Law
(Second Edition) Allahabad Law Agency, Faridabad, 2003, p. 110.

51
M. K. Ramesh, „Environmental Justice: Courts & Beyond‟, Indian Journal
of
Environmental Law, Volume 3, Number 1, 2002, pp. 20-37.

52
P.S. Jaswal and Nishtha Jaswal, op. cit., pp. 148-150.

53
Ashok H. Desai and S. Muralidhar, op. cit.

54
Karni Singh, op. cit.

55
Sampat Jain, op. cit., pp. 88-89.
56
M.C. Mehta v. Kamal Nath Case (1997) 1 SCC 388.
57
„Diverting Forest Lands: Whittling away at NPV costs‟, India
Together, available at http://www.indiatogether.org/2007/jul/env-
nonpv.htm Accessed on 16 October 2010 at 9:42 pm.

58
Jairam Ramesh, The Two Cultures Revisited: Some Reflections on
the Environment-Development Debate in India, delivered during the 11th
ISRO- JNCASR Satish Dhawan Memorial Lecture, delivered at the
Jawaharlal Nehru Centre for Advanced Scientific Research,
Bangalore, available at http://moef.nic.in/downloads/public-
information/Satish-Dhawan-Lecture.pdf Accessed on 16 October 2010 at
9:44 pm.

59
Karni Singh, op. cit.

60
Pooja Shastry and Rashmi Bela, op. cit.

61
P.S. Jaswal and Nishtha Jaswal, op. cit., p. 133.

62
Ibid, pp. 139-140.

63
http://www.cseindia.org/content/toxic-toys accessed on 22 October 2010
at
7:02 pm.

64
Dhananjay Mahapatra, „Distribution of Food Grains an Order, not
a Suggestion, SC pulls up Pawar‟, The Times of India, 31 August
2010, available at
http://timesofindia.indiatimes.com/india/Distribution-of-food- grains-an-
order-not-a-suggestion-SC-pulls-up-
Pawar/articleshow/6467212.cms.

65
Vishwa Jit Singh, p. 157.

66
Ibid, p. 163.

67
Press note- Launch of the National Green Tribunal, Ministry of
Environment and Forests, 19 October 2010, available at
http://moef.nic.in/ downloads/ public-information/ngt-launch-press-note.pdf
accessed on 23 October 2010 at 7:38 pm.
68
„National Green Tribunal Bill passed in Lok Sabha‟, The Times of India ,
3
May 2010, available at
http://timesofindia.indiatimes.com/ Home/Environment/Pollution/National-
Green-Tribunal-Bill-passed-in-Lok- Sabha/articleshow/5884146.cms
accessed on 15 October 2010 at 7.32 pm.

69
Meena Menon, „How Green is my Tribunal‟, The Hindu, 7 July 2010, p. 11.

70
„Concern over National Green Tribunal Act‟, The Hindu, New Delhi,
20
October 2010, p. 3.

71
Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.

72
Goa Foundation, Goa vs. Diksha Holdings Pvt. Ltd. & Others.

73
S. Muralidhar, „Public Interest Litigation‟, available
at http://www.ielrc.org/content/a9905.pdf accessed on 4 October 2010 at
4:54 pm.

74
Videh Upadhyay, „Changing Judicial Power: Courts on
Infrastructure Projects and Environment‟, Economic and Political
Weekly, Volume 34, Number 43-44, 2000, pp. 3789-3792.

75
Ibid.

76
Ibid.

77
Pooja Shastry and Rashmi Bela, op. cit.

78
Valmik Thapar, Making a Difference, Seminar, 2003, available
at http://www.india-seminar.com/2003/521/521%20valmik%20thapar.htm
accessed on 20 October 2010 at 10:33 pm.

79
Geetanjoy Sahu,op. cit.

80
Raghuram, „The Trouble with the Trapezium‟, Down to Earth, 15
April
1996, p. 32.
81
Geetanjoy Sahu, op. cit.
82
Geetanjoy Sahu, Environmental Governance and Role of Judiciary in
India, Thesis submitted to the University of Mysore, Mysore, through
the Institute for Social and Economic Change, Bangalore, for the Award of
the Degree of Doctor of Philosophy in Political Science, available at
http://www.isec.ac.in/Environmental_%20governance_%20and_%20role_%
20of_%20judiciary_%20in_%20India.pdf accessed on 24 October 2010
at
8:12 pm.

83
Ibid.

84
Subhendu Rajan Raj, „Supreme Court Environmental Crusade:
Enforcing CNG Alternative for World‟s Third Most Polluted City‟, in B. D.
Dua, M. P. Singh and Rekha Saxena (eds.), Indian Judiciary and Politics:
The Changing Landscape, Manohar Publishers, New Delhi, 2007, p. 231.

85
„Juicial Activism under the Indian Constitution‟ Addressed by K.G.
Balakrishnan - Chief Justice of India, at Trinity College Dublin in Ireland
on
14 October 2009, available at
http://www.supremecourtofindia.nic.in/speeches/sp
eeches_2009/Judicial_Ac tivism_TCD_Dublin_14-10-09.pdf accessed
on 21 October 2010 at 4:43
pm.

86
Subhendu Rajan Raj, op. cit., p. 227.

87
Geetanjoy Sahu, op. cit.

88
S. Muralidhar, Public interest litigation, op.cit.

89
Bharat Desai, „Enforcement of the Right to Environment Protection
through Public Interest Litigation in India‟, Indian Journal of
International Law, Volume 33, 1993, pp. 27-40.

90
Geetanjoy Sahu, op. cit.

91
C. M. Jariwala, op. cit., p. 37.