Growth of Judicial Activism on the Environmental Front

Environment protection was the least priority in India’s post independence era due to need of
industrialization and other political disturbances. Some other acts such as the Factories Act, 1948 were
introduced which also dealt with the effective arrangements for waste disposal.
The year of 1972 marked a revolution in the history of environmental management in India as it being a
signatory to the Conference on Human Environment held in Stockholm inserted Articles 48A and 51A
(g), making the State as well as the citizens, both under constitutional obligation to conserve, perceive,
protect and improve the environment.
These provisions have been extensively used by courts to justify and develop a legally binding
fundamental right to the environment as a part of Right to life and personal liberty under Article 21. The
Parliament enacted nationwide comprehensive laws; like The Wildlife Protection Act, 1972 and Water
(Prevention and Control of pollution) Act, 1974.
The development of the environmental jurisprudence in India through the innovative judicial decisions of
the Supreme Court and the High Courts is a reaction towards the failure on the part of the Governmental
agencies to effectively enforce the environmental laws.
PIL as a tool for Judicial Activism
Public Interest Litigation (PIL) has become very popular in the field of environment. In the 1980s and 90s
there were countless environmental litigations by public spirited persons. Public Interest Litigation means
a legal action initiated in a court of law for the enforcement of public interest or general interest in which
the public or class of the community have pecuniary interest or some interest by which their legal rights
or liabilities are affected.
Judicial response to almost all environmental litigations has been very positive in India. The competence
to invoke the original jurisdiction of the Supreme Court under Article 32 and the High Court under
Article 226 is a remarkable step forward in providing protection to environment. Courts have widened the
dimension of substantive right to healthy and clean environment. The traditional rule of Locus Standi that
a person, whose right is infringed alone can file the petition, has considerably relaxed by the Supreme
Court in its recent decisions.[6] Now, the court permits public interest litigation at the instance of public-
spirited citizens for the enforcement of constitutional or legal rights.
In MC Mehta v. UOI[7] (Also know as the Taj Trapezium Case), the petitioner filed a writ under Article
32 of the Constitution of India for protection of the Taj Mahal at Agra. The chemical and hazardous
industries and refineries at Mathura were the major sources likely to damage the Taj. Accordingly the
court held that 292 industries operating near Agra must change over from coke to natural gas as industrial
fiel within the time specified or otherwise should stop functioning.

Environmental Protection Under Constitutional Framework Of India

The Indian Constitution is amongst the few in the world that contains specific provisions on
environmental protection. Article 48A of the Directive Principles of State Policy and Article 51-A(g) of
the Fundamental Duties in the Indian Constitution explicitly enunciates the national commitment to
protect and improve the environment. Fundamental Rights lay down the rights of the people relating to
environment under Article 21. Article 226 and 32 mention the remedies of the citizens in case of
infringement of their Fundamental Right to live in a pollution free environment.[8]
Rural Litigation and Entitlement Kendra Dehradun v. State of Uttar Pradesh[9] was the first case in the
country relating to ecological balance and recognition of the right to live in healthy environment as a part
of Article 21. The apex court ordered to close the indiscriminating mining operations in the Mussorie hills
as the mining operations in those forests led to excessive soil erosion resulting in damage to the ecology
of the place.
In the case of Sachidananda Pandey v. State of West Bengal[10] the Supreme Court remarked that
whenever a prolem of ecology is brought before the court, the court is bound to bear in mind Article 48A
and 51-A(g) of the Constitution.
The Construction of Judicial Activism: Principles and Doctrines
Doctrine of Absolute Liability
The Bhopal Case: Union Carbide Corporation v. Union Of India[11]
In this case, the apex court held that, where an enterprise is dealing with an inherently dangerous or
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.
Polluter Pays Principle
Polluter Pays Principle supports a remedial methodology which is concerned with repairing natural harm.
It’s a rule in international environmental law where the polluting party pays for the harm or damage done
to the natural environment. Polluter Pays Principle has become a very popular concept lately. ‘If you
make a mess, it’s 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. It’s a rule in
international environmental law where the polluting party pays for the harm or damage done to the
natural environment. In Vellore Citizen’s Welfare Forum v. Union of India[12] the Supreme Court has
declared that the polluter pays principle is an essential feature of the sustainable development.
Precautionary Principle
A new principle for guiding human activities, to prevent harm to the environment and to human health,
has been emerging during the past 10 years. It is called the ‘principle of precautionary action’ or the
‘precautionary principle’ in short. This principle is controversial and its definition varies in terms of
viewpoint. Environmentalists and consumer support organizations that demand bans and restrictions on
industrial practices or product would need policy-makers to require no action unless they do no harm.
In India, for
The first time in Vellore Citizens Welfare Forum v. Union of India[13], the Supreme Court explicitly
recognized the precautionary principle as a principle of Indian environmental law. In S. Jagannath v
Union of India (Shrimp Culture Case)[14] , the Supreme Court Bench headed by Justice Kuldip Singh
required the authority to deal with the situation created by the shrimp industry and issued remedial
directions consistent with the precautionary and polluter pays principles.
In A.P. Pollution Control Board v. Prof M.V. Nayudu[15], the Court drew out the development of the
precautionary principle in clear terms.
In the Narmada Bachao Andolan v. Union of India[16], the Court explained that:
‘When there is a state of uncertainty due to the lack of data or material about the extent of damage or
pollution likely to be caused, then, in order to maintain the ecology balance, the burden of proof that the
said balance will be maintained must necessarily be on the industry or the unit which is likely to cause
pollution.’ The movement towards adopting the precautionary principle has definitely widened the scope
of corporate accountability, but the interpretation taken by the court mitigates the relevance and
incorporation of this principle in Indian Jurisprudence.
Public Trust Doctrine
The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath[17], states that certain common
properties such as rivers, forests, seashores and the air were held by Government in Trusteeship for the
free and unimpeded use of the general public. Granting lease to a motel located at the bank of the River
Beas would interfere with the natural flow of the water and that the State Government had breached the
public trust doctrine.
The Supreme Court enunciated Professor Joseph Saxís doctrine of public trust in this case to further
justify and perhaps extract state initiative to conserve natural resources, held that the state, as a trustee of
all natural resources, was under a legal duty to protect them; and that the resources were meant for public
use and could not be transferred to private ownership. This doctrine was further reiterated in M.I Builders
Pvt Ltd v. Radhey Shyam Sahu[18]
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[19].
There is a need for the courts to strike a balance between development and environment. In Rural
Litigation and Entitlement Kendra v. State of UP[20] 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.
In State of Himachal Pradesh v. Ganesh Wood Products[21], the Supreme Court invalidated forest-based
industry, recognizing the principle of inter-generational equity as being central to the conservation of
forest resources and sustainable development. In the CRZ Notification case[22] the courts carried forward
the concern for sustainable development by expressing its concern at the adverse ecological effects, which
will have to be borne by future generations
InSmoking in public places is a violation of fundamental rights of the non-smokers”. Support the
statemewith cases.
The Supreme Court of India in one of the landmark decision in the case of Murli S. Deora v. Union of
India observed that the fundamental right guaranteed under Article 21 of the Constitution of India
provides that none shall be deprived of his life without due process of law. The Court observed that
smoking in public places is an indirect deprivation of life of non-smokers without any process of law.
Taking into consideration the adverse effect of smoking on smokers and passive smokers, the Supreme
Court directed the prohibition of smoking in public places.
It issued directions to the Union of India, State Governments and the Union Territories to take effective
steps to ensure prohibition of smoking in public places such as auditoriums, hospital buildings, health
institutions etc. In this manner, the Supreme Court gave a liberal interpretation to Article 21 of the
Constitution and expanded its horizon to include the rights of non-smokers.