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UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES


BBA.,LLB(HONS.)CORPORATE LAWS
SEMESTER VII
ACADEMIC YEAR: 2015 -16

SESSION: JULY-DECEMBER

Topic: Judicial activism in India: transgressing borders and enforcing limits


FOR
ENVIRONMENT LAW
(LLBL 431)

Under the Supervision of: Dr. Azimkhan Bahadarkhan Pathan


NAME: Priyanka Dixit
SAP NO: 500022286
ROLL NO.: R760212040

ACKNOWLEDGEMENT
I feel highly elated to work on this dynamic and highly important topic that is Judicial activism
in India: transgressing borders and enforcing limits. This topic instantly drew my attention and
attracted me to research on it.
So, I hope I have tried my level best to bring in new ideas and thoughts regarding the basics of
this topic. I am also thankful to my faculty Dr. Azimkhan Bahadarkhan Pathan who has
encouraged me to research on this project and helped me as a mentor. Last but not the least all
others who have helped me in making this project a success.

TABLE OF CONTENT
Meaning of Environment................................................................................................. 5
Need for environmental laws............................................................................................. 5
Judicial remedies for environment pollution........................................................................6
Some remarkable principles and doctrines propounded by the Indian judiciary:-......6
1. Doctrine of Absolute Liability....................................................................................... 6
2. Polluter Pays Principles............................................................................................... 7
3. Precautionary Principle............................................................................................... 8
4. Public Trust Doctrine................................................................................................. 8
5. Doctrine of Sustainable Development............................................................................. 9
The Constitutional aspects on environmental law......................................................9
Environmental protection: the judicial approach......................................................13
(a) The right to a wholesome environment.........................................................................13
(b) Public nuisance: the judicial response..........................................................................14
(c) Judicial relief encompasses compensation to victims........................................................14
(d) Fundamental right to water....................................................................................... 15
Conclusion................................................................................................................ 16
Public Awareness........................................................................................................ 16
Regular Inspection...................................................................................................... 16
Environmental Education.............................................................................................. 16
References.
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Introduction
Chemotherapy is a treatment for a carcinogenic body; similarly judicial activism is a dire cure
for a drastic disorder called politics
-Upendra Baxi
In a modern welfare state, justice has to address social realities and meet the demands of time.
Although the legislations are there but they did not always fulfill the purpose of the regularly
changing scenario. The law always needs to undergo development and this is a continuous
process. Today the act may be passed but most of the time the legislation deals with the present
situation ignoring the upcoming future problems. There comes the role of judiciary. The time gap
between the enactment of any provision and the amendment of the same is filled-up by the
Indian judiciary.
There arises a requirement for a comprehensive analysis of the protection of the environment.
The courts have made their mark on all the important issues, whether its politics, waste
management, clean air, education policy or administrative matters. There has been a sustained
focus on the role played by the higher judiciary in devising and monitoring the implementation
of measures for pollution control, conservation of forests and wildlife protection. According to
M.C. Mehta, the court has been recognized as one of the worlds most powerful judicial bodies
whose judges play an unprecedented governing role. Many of these judicial interventions have
been triggered by the persistent incoherence in policy-making as well as the lack of capacitybuilding amongst the executive agencies. Devices such as Public Interest Litigation (PIL) have
been prominently relied upon to tackle environmental problems, and this approach has its
supporters as well as critics.
The court has taken significant measures, for example, shifting tanneries from Kolkata and
Kanpur in order to save river Ganges, forcing commercial vehicles to convert to Compressed
Natural Gas (CNG) and shifting polluting industries out of Delhi to improve air quality of the
city. Principle 10 of the Rio Declaration of 1992 specifically provides for effective access to
judicial and administrative proceedings, including redress and remedy. Indian democracy is
known not only for its judicial independence, but, importantly, for offering numerous instances
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of judicial activism that has been facilitated by the innovative tool of Public Interest Litigation
(PIL) a judicial pill for relief against executive wrongs1.
Meaning of Environment
The word environment relates to surroundings. It includes virtually everything. It can be can
defined as anything which may be treated as covering the physical surroundings that are common
to all of us, including air, space, land, water, plants and wildlife2
According to the Webster Dictionary, it is defined as the Aggregate of all the external condition
and influences affecting the life and development of an organism.3
The Environment (Protection) Act, 1986
Section 2(a) environment includes water, air and land and the inter- relationship which exists
among and between water, air and land, and human beings, other living creatures, plants, microorganism and property4
Thus, after analyzing all the above definitions, the basic idea that can be concluded is that
environment means the surroundings in which we live and is essential for our life.

Need for environmental laws


Today we are living in nuclear arena. No one can overlook the harm caused to the environment
by the nuclear bombs, dropped by airplanes belonging to the United States on the Japanese urban
communities of Hiroshima and Nagasaki amid the last phases of World War II in 1945. Day to
day innovation and advancement of technology, apart from development additionally expands
the risk to human life. Accordingly, there arises an intense and an acute need of the law to keep

Former Chief Justice Mr. K.G. Balakrishnan, THE ROLE OF THE JUDICIARY IN
ENVIRONMENTAL PROTECTION IN D. P SHRIVASTAVA MEMORIAL LECTURE, p. 1, March
20,2010.
2
Dr. Jai Jai Ram Upadhyay, ENVIRONMENTAL LAW, p.2, Allahabad: Central Law Agency,
(2005).
3
R.M. Lodha, ENVIRONMENTAL RUIN: THE CRISES OF SURVIVAL, P.364 .New Delhi: Indus
Publishing Company (1993)
4
Available at envfor.nic.in/legis/env/env1.htm

pace with the need of the society along with individuals. So now the question of environmental
protection is a matter of worldwide concern, it is not confined to any country or territory.

Judicial remedies for environment pollution


The remedies available in India for environmental protection comprise of tortuous as well as
statutory law remedies. The tortuous remedies available are trespass, nuisance, strict liability and
negligence. The statutory remedies incorporates: Citizens suit, e.g.,

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

an activity under area 133, Criminal Procedure Code, 1973.and

and activity brought under the Section 268 for open irritation, under Indian Penal
Code,1860

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

Some remarkable principles and doctrines propounded by the Indian judiciary:1. Doctrine of Absolute Liability
THE BHOPAL CASE: Union Carbide Corporation v. Union of India5
In this case, the court held that, where an enterprise is occupied with an inherently dangerous or
a hazardous activity and harm results to anybody by virtue of a mishap in the operation of such
dangerous or naturally unsafe movement coming about, for instance, in getaway of poisonous
gas, the enterprise is strictly and completely obligated to repay every one of the individuals who
are influenced by the accident and such risk is not subject to any exemptions. Accordingly,
Supreme Court created another trend of Absolute Liability without any exemption.
2. Polluter Pays Principles
If anyone intentionally spoils the water of another let him not only pay damages, but
5

1990 AIR 273, 1989 SCC (2) 540

purify the stream or cistern which contains the water Plato


This gives the two important points of this principle:
1. The polluter should pay for the administration of the pollution control system;
2. The polluter should pay for the consequences of the pollution
Polluter Pays Principle has become a very popular concept lately. If you make a mess, its your
duty to clean it up - this is the fundamental basis of this slogan. It should be mentioned that in
environment law, the polluter pays principle does not allude to fault. Instead, it supports a
remedial methodology which is concerned with repairing natural harm. Its a rule in international
environmental law where the polluting party pays for the harm or damage done to the natural
environment.
Vellore

Citizens

Welfare

Forum

v.

Union

of

India 6

The Supreme Court has declared that the polluter pays principle is an essential feature of the
sustainable development.
In the Vellore Tanneries Pollution case the following was observed:
The Pollluter Pays Principle as interpreted by this court means that the absolute liability for harm
to the environment extends not only to compensate the victims of pollution but also the cost of
restoring the environmental degradation. Remediation of the damaged environment is part of the
process of Sustainable Development and as such the polluter is liable to pay the cost to the
individual sufferers as well as the cost to the individual sufferers as well as the cost for reversing
the damaged ecology.
The society shall have to prosper, but not at the cost of the environment and in the similar vein,
the environment shall have to be protected but not at the cost of development of the society. The
need of the hour is to strike a balance between the two i.e., development on one side and
pollution free environment on the other. A process by which development can be sustained for
generations by improving the quality of human life while at the same time living in harmony
6

AIR 1996 SC 2715

with nature and maintaining the carrying capacity of life supporting eco-system. It focuses at
integration of developmental and environmental imperatives. Thus, sustainable development is
the only answer and administrative actions ought to proceed in accordance therewith.
3. Precautionary Principle
The Supreme Court of India, in Vellore Citizens Forum Case, developed the following three
concepts for the precautionary principle:
1. Environmental measures must anticipate, prevent and attack the causes of environmental
degradation
2. Lack of scientific certainty should not be used as a reason for postponing measures
3. Onus of proof is on the actor to show that his action is benign
4. Public Trust Doctrine
The Public Trust Doctrine primarily rests on the principle that certain resources like air, water,
sea and the forests have such a great importance to people as a whole that it would be wholly
unjustified to make them a subject of private ownership.
M.C.Mehta v. Kamal Nath and Others7
The public trust doctrine, as discussed by court in this judgment is a part of the law of the land.
5. Doctrine of Sustainable Development
The World commission on Environment and Development (WCED) in its report prominently
known as the Brundtland Report named after the Chairman of the Commission Ms. GH
Brundtland highlights the concept of sustainable development. As per Brundtland Report,
Sustainable development signifies development that meets the needs of the present without
compromising the ability of the future generations to meet their own needs. There is a need for
the courts to strike a balance between development and environment.
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(1997) 1SCC 388

Rural Litigation and Entitlement Kendra v. State of UP8


The court for the first time dealt with the issue relating to the environment and development; and
held that, it is always to be remembered that these are the permanent assets of mankind and or
not intended to be exhausted in one generation.
Vellore Citizens Welfare Forum9
In this case, the Supreme Court observed that sustainable development has come to be accepted
as a viable concept to eradicate poverty and improve the quality of human life while living
within the carrying capacity of the supporting eco- system.

The Constitutional aspects on environmental law


The Indian Constitution is amongst the few in the world that contains specific provisions on
environment protection. The chapters directive principles of state policy and the fundamental
duties are explicitly enunciated the nation commitment to protect and improve the environment.
It was the first time when responsibility of protection of the environment imposed upon the states
through Constitution (Forty Second Amendment) Act, 1976.
Article 48-A10 the provision reads as follows: The State shall endeavor to protect and improve
the environment and to safeguard the forest and wildlife of the country. The Amendment also
inserted Part VI-A (Fundamental duty) in the Constitution, which reads as follows:
Article 51-A (g)11 It shall be duty of every citizen of India to protect and improve the natural
environment including forests, lakes,, and wildlife and to have compassion for living creature.
In Sachidanand Pandey v. State of West Bengal12, the Supreme Court observed whenever a
problem of ecology is brought before the court, the court is bound to bear in mind Article 48A
and Article 51-A(g).
8

AIR 1987 SC 1037


AIR 1996 5 SCC 647
10
THE CONSTITUTION OF INDIA, 1950
11
THE CONSTITUTION OF INDIA, 1950
12
AIR 1987 SC 1109
9

At present most environmental actions in India are brought under Articles 32 and 226 of the
Constitution. The writ procedure is preferred over the conventional suit because it is speedy,
relatively inexpensive and offers direct access to the highest courts of the land. Nevertheless,
class action suits also have their own advantages. The powers of the Supreme Court to issue
directions under Article 32 and that of the high courts under Article 226 have attained greater
significance in environmental litigation. Courts have made use of these powers to remedy past
mala-fides and to check immediate and future assaults on the environment.
The formulation of certain principles to develop a better regime for protecting the environment is
a remarkable achievement. In the Bhopal Gas case, the Supreme Court formulated the doctrine of
absolute liability for harm caused by hazardous and inherently dangerous industries by
interpreting the scope of the power under Article 32 to issue directions or orders which ever may
be appropriate in appropriate proceedings. According to the Court, this power could be utilized
for forging new remedies and fashioning new strategies.
These directions were given by courts for disciplining the developmental processes, keeping in
view the demands of ecological security and integrity. In one of the earlier cases, Rural
Litigation Kendra, that posed an environment development dilemma, Supreme Court gave
directions that were necessary to avert an ecological imbalance, such as constitution of expert
committees to study and to suggest solutions, establishment of a monitoring committee to
oversee afforestation programmes and stoppage of mining operations that had an adverse impact
on the ecology.
The rights to livelihood and clean environment are of grave concern to the courts whenever they
issue a direction in an environmental case. In CERCs case, Laborers engaged in the asbestos
industry were declared to be entitled to medical benefits and compensation for health hazards,
which were detected after retirement. Whenever industries are closed or relocated, labourers
losing their jobs and people who are thereby dislocated were directed to be properly
rehabilitated. The traditional rights of tribal people and fisherman are not neglected when court
issue directions for protection of flora and fauna near sanctuaries or for management of coastal
zones.

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In L.K.Koolwal v. State of Rajasthan, the Rajasthan High Court observed that a citizens duty to
protect to protect the environment under Article. 51-A(g) of the Constitution bestows upon the
citizens the right to clean environment. The judiciary may go to the extent of asking the
government to constitute national and state regulatory boards or environmental courts. In most
cases, courts have issued directions to remind statutory authorities of their responsibility to
protect the environment. Thus, directions were given to local bodies, especially municipal
authorities, to remove garbage and waste and clean towns and cities.
In Indian Council for Environ-legal Action v. Union of India, Supreme Court felt that such
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 antipollution law.
The liberal use of PIL against assaults on the environment does not mean that the courts, even if
it is tainted with bias, ill will or intent to black mailing will entertain every allegation. This
amounts to vexatious and frivolous litigation. When the primary purpose for filing a PIL is not
public interest, courts will not interfere. In Subhash Kumar v. State of Bihar, the Supreme Court
upheld that affected persons or even a group of social workers or journalists, but not at the
instance of a person or persons who had a bias or personal grudge or enmity could initiate PIL
for environmental rights.
The apex court in landmark judgment of S.P.Gupta v. Union of India, elucidated in the following
words:
"but we must hasten to make it clear that the individual who moves to court for judicial redress
in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and
if he is acting for personal gain or private profit or out of political motivation or other oblique
consideration, the court should not allow itself to be activated at the instance of such person and
must reject his application at the threshold".
The right to humane and healthy environment is seen indirectly approved in the MC Mehta
group of cases, decided subsequently by the Supreme Court.
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The first MC Mehta case enlarged the scope of the right to live and said that the state had power
to restrict hazardous industrial activities for the purpose of protecting the right of the people to
live in a healthy environment. Although the second MC Mehta case modified some of the
conditions, the third MC Mehta case posed an important question concerning the amount of
compensation payable to the victims affected by the leakage of oleum gas from the factory. The
Court held that it could entertain a petition under Article 32 of the Constitution and lay down the
principles on which the quantum of compensation could be computed and paid. This case is
significant as it evolved a new jurisprudence of liability to the victims of pollution caused by an
industry engaged in hazardous and inherently dangerous activities. The fourth MC Mehta case
was regarding the tanning industries located on the banks of Ganga was alleged to be polluting
the river. The Court issued directions to them to set up effluent plants within six months from the
date of the order. It was specified that failure to do so would entail closure of business.
The four MC Mehta cases came before the Supreme Court under Article 32 of the constitution on
the initiative of the public-spirited lawyer. He filed the petitions on the behalf of the people who
were affected or likely to be affected by some action or inaction. The petitioner had no direct
interest in the subject and had suffered no personal injury. Still standing to sue was not raised at
the threshold question to be decided by the Court.
The Supreme Court has further expanded Right to life in recent years. In Consumer Education
and Research Centre v. Union of India, the Court said,
Social security, just and humane conditions of work and leisure to workmen are as a part of his
meaningful right to life?
The court held that this fundamental right to health and medical aid should continue even after
retirement. Significantly, the Court said that in appropriate cases, appropriate directions could be
issued to the state or private employer with a view to protecting the environment, preventing
pollution in the workplace safeguarding the health of the workmen or preserving free and
unpolluted water for safety and health of the people. Directions were issued to the asbestos
industry, and the union and state authorities are meant to fill up the yawning gaps in the
interpretation of the law.
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The concept of compensation for environmental degradation has evolved at a snails pace over a
period. It started with the strict liability principle followed by the absolute liability principle and
then compensation under Article 32 and finally the polluter pays principle.

Environmental protection: the judicial approach


There are numbers of the following judgments which clearly highlight the active role of judiciary
in environmental protection these are follows:
(a) The right to a wholesome environment
Charan Lal Sahu v. Union of India13
The Supreme Court in this case said, the right to life guaranteed by Article 21 of the Constitution
includes the right to a wholesome environment.
Damodhar Rao v. S. 0. Municipal Corporation Hyderabad14
The Court resorted to the Constitutional mandates under Articles 48A and 51A(g) to support this
reasoning and went to the extent of stating that environmental pollution would be a violation of
the fundamental right to life and personal liberty as enshrined in Article 21 of the Constitution.
(b) Public nuisance: the judicial response
Ratlam Municipal Council v. Vardhichand15
The judgment of the Supreme Court in instant case is a land mark in the history of judicial
activism in upholding the social justice component of the rule of law by fixing liability on
statutory authorities to discharge their legal obligation to the people in abating public nuisance
and making the environmental pollution free even if there is a budgetary constraints., J. Krishna
Iyer observed that, social justice is due to and therefore the people must be able to trigger off

13

AIR 1990 SC 1480


AIR 1987 AP 171
15
AIR 1980 SC 1622
14

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the jurisdiction vested for their benefit to any public functioning. Thus he recognized PIL as a
Constitutional obligation of the courts.
(c) Judicial relief encompasses compensation to victims
Delhi gas leak case: M.C. Mehta v. Union of India16,
In instant case, the Supreme Court laid down two important principles of law:
1) The power of the Supreme Court to grant remedial relief for a proved infringement of a
fundamental right (in case if Article21) includes the power to award compensation.
2) The judgment opened a new frontier in the Indian jurisprudence by introducing a new no
fault liability standard (absolute liability) for industries engaged in hazardous activities which
has brought about radical changes in the liability and compensation laws in India. The new
standard makes hazardous industries absolutely liable from the harm resulting from its activities.
(d) Fundamental right to water
The fundamental right to water has evolved in India, not through legislative action but through
judicial interpretation. In Narmada Bachao Andolan v. Union of India and Ors.17, the Supreme
Court of India upheld that Water is the basic need for the survival of human beings and is part
of the right to life and human rights as enshrined in Article 21 of the Constitution of India and
the right to healthy environment and to sustainable development are fundamental human rights
implicit in the right to life.

16
17

AIR 1987 SC 965


(1998) 5 SCC 586

14

Conclusion
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Thus, after the analysis of above cases, we find that, the Supreme Court is, at the present time,
stretching the different legal provisions for environmental protection. In this way, the judiciary
tries to fill in the gaps where there is laciness of the legislation. These new innovations and
developments in India by the judicial activism open the numerous approaches to help the
country. In India, the courts are extremely cognizant and cautious about the special nature of
environmental rights, considering that the loss of natural resources cant be renewed. There are
some recommendations which need to be considered.
Public Awareness
In India, media is the fourth pillar of the popular government. It plays an exceptionally essential
and compelling part in the general improvement of the country. The effect of media can be seen
in the different trials directed by it just by publishing them in their media. Accordingly, the issue
of environmental pollution can be checked by making mindfulness in the general population, in
which medias part is extremely critical. The compelling agency of correspondence not just
influences the mind of the individuals but is also capable of developing thoughts and desirable
attitudes of the people for protecting environment.
Regular Inspection
There is a requirement for a standard review apparatus, which can inspect and examine
periodically every one of those exercises which are threatening the environment. This would be a
successful step towards environment protection, since prevention is better than cure.
Environmental Education
There is no means for any law, unless its an effective and successful implementation, and for
effective implementation, public awareness is a crucial condition. Therefore, it is essential that
there ought to be proper awareness. This contention is additionally maintained by the Apex Court
in the instance of M.C. Mehta v. Union of India 18. In this case, Court directed the Union
Government was obliged to issue directions to all the State governments and the union territories
to enforce through authorities as a condition for license on all cinema halls, to obligatory display
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1988 AIR 1115

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free of expense no less than two slides/messages on environment amid each show. Moreover,
Law Commission of India in its 186th report made a proposal for the constitution of the
environment court19. Hence, there is an urgent need to strengthen the hands of judiciary by
making separate environmental courts, with a professional judge to manage the environment
cases/criminal acts, so that the judiciary can perform its part more viably.

References
1. http://www.isca.in/IJSS/Archive/v4/i4/2.ISCA-IRJSS-2014-327.pdf
2. Leela krishnan P., Environmental Law in India Lexis Nexis 3rd ed., (2012)
19

One hundred eighty sixth report of Law Commission

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3. Clean India Mission beyond politics: PM Modi, Economic Times, (2014)


4. Environmental Jurisprudence- Polluters Liability by Indrajit Dube, ed. 2007
5. Environmental Law Case Book by P Leelakrishnan, 2nd Edition 2006
6. www.scconline.com

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