DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY,
LUCKNOW

PROJECT
ENVIRONMENT LAW

Project : “Role of Judiciary in Environmental Protection”

Submitted by: Under the guidance of:

Nilesh yadav Mr. Vipin Yadav

Semester -7th (Faculty of law)

Section-A Dr. RMLNLU

Roll no. 80 Lucknow

Page | 1
 ACKNOWLEDGEMENT

On the completion of this project, I would like to place on record my sincere gratitude
towards all those people who have been important in its making. Firstly I would like to thank,
Prof. Vipin Yadav sir for giving me such an interesting topic to research and for helping me
with the research process and for always attending all my queries and doubts on the same. I
thank them for all the support and encouragement without which the completion of this
project would not have been possible.
And last but not the least; I thank my family and friends for supporting me throughout in all
my endeavours.

Page | 2
 CHAPTERISATION

1. Introduction………………………………………………………………. 4-5
2. Environmental Law in India…………………………………………….... 6-8
3. Judicial Activism in Environment & Role of Public Interest Litigation….. 8-10
4. Effects of Judiciary in Environmental Law and Enforcement…………….. 10-14
5. Conclusion…………………………………………………………………. 14-15
6. Bibliography………………………………………………………………... 15

Page | 3
 INTRODUCTION

“Man has the fundamental right to freedom, equality and adequate conditions of life,
in an environment of a quality that permits a life of dignity and well being and he bears a
solemn responsibility to protect and improve the environment for present and future
generation ". Right to wholesome environment is a fundamental right protected under Article
21 of the Constitution of India. But the lack of awareness and infrastructure makes
implementation of most. In India environmental law has seen considerable development in
the last two decades. Most of the principles under which environmental law works in India
come within this period. The development of the laws in this area has seen a considerable
share of initiative by the Indian judiciary, particularly the higher judiciary, consisting of the
Supreme Court of India, and the High Courts of the States. The role of the administration,
although a critical factor in the success of any environmental management programme, has
seen its share of problems of scale and definition. The essence of the existing law relating to
the environment has developed through legislative and judicial initiative.

The environmental problems in India are growing rapidly. The increasing economic
development and a rapidly growing population that has taken the country from 300 million
people in 1947 to more than one billion people today is putting a strain on the environment,
infrastructure and the country’s natural resources. Industrial pollution, soil erosion,
deforestation, rapid industrialization, urbanization, and land degradation are all worsening
problems. Over exploitation of the country's resources be it land or water and the
industrialization process has resulted environmental degradation of resources. Environmental
pollution is one of the most serious problems facing humanity and other life forms on our
planet today.
Today, most discussions on environmentalism in our country begin with the
Stockholm Conference (1972). But, some ancient texts tell us that our society paid more
attention to protecting the environment than we can imagine. These texts tell us that it was
the dharma of each individual in society to protect Nature, so much so that people
worshipped the objects of Nature. Trees, water, land and animals had considerable
importance in our ancient texts; and the Manusmriti prescribed different punishments
for causing injury to plants. Kautilya is said to have gone a step further and
determined punishments on the basis of the importance of a particular part of a tree.
From this, what comes in front of us is that environmental management and control of

Page | 4
pollution was not limited only to an individual or a group, but society as a whole accepted its
duty to protect the environment. The dharma of protecting the environment was to sustain
and ensure progress and welfare of all. The effort was not just to punish the culprit, but to
balance the eco-system as well. In this attempt, the ancient texts acted as cementing factors
between the right to exploit the environment and a duty to conserve it which is now
internationally recognized as the concept of ‘Sustainable Development’. The definition of
environment in India is more anthropocentric and broad, it includes not only sustainable
development but also air and water pollution, preservation of our forests and wildlife, noise
pollution and even the protection of our ancient monuments, which are undergoing severe
stress due to urbanization and consequent environmental pollution. Community resources
such as tanks, ponds, etc. have now been articulated by the Supreme Court for inclusion in
the concept of environment, and why should it not be so, considering they all affect the
quality and enjoyment of our life. Thus it is clearly come out from all of these aspects that
concern for environment is not a new concept in India but still it demands more vigilance in
this area for the development of environmental Jurisprudence and justice.

Page | 5
 ENVIRONMENTAL LAW IN INDIA

In Indian Machinery system of Environment we do have strong Constitutional,

Legislative and Institutional arrangements concerning the environment but nevertheless there
have been serious problems in implementation. It is said that early years of our independence
were spent in pursuing a development oriented path at the cost of issues such as pollution
control and ecologically sound industry. It can be said that most of the development projects
and industrial infrastructure in the past have been created with little environmental concern.
This was mainly because knowledge of environmental impact and impact assessment
technology was not fully developed at that time. As a result of which a number of
development projects and industries caused adverse impact of a magnitude. The ramifications
of Bhopal disaster have not yet been resolved. The damage done to the environment and on
lives was profound. Until recently business houses have been negligent towards their wider
social, ethical and environmental responsibilities. This situation is gradually changing. The
burden of these lost decades of absence of environment concern still persists in the form of
the occasional bureaucratic and other insensitivities which further means heavy responsibility
on the shoulders of every person and institution.

India still follows inadequate and outdated environmental laws. Further, various factors that
contribute towards poor
implementation of environmental laws in India, are:
- Lack of appropriate skills amongst the law enforcement agencies.
- Inadequate infrastructural facilities.
- Lack of proper understanding of environmental laws.
- Lack of coordination among the law enforcement authorities and officers.
- Jurisdictional conflicts.
- No initiatives are being taken to recruit law officers who possess knowledge, skills
and understanding of environmental issues and laws.
- Lastly, the tendency to centralize the decision making power and bureaucratized
structure hampers the process of proper law enforcement. The political and
bureaucratic intervention in day to day activities of the law enforcement authorities
affects and curbs their professional competence and efficiency.
Stockholm Declaration of 1972 was perhaps the first major attempt to conserve and
protect the human environment at the international level. As a consequence of this

Page | 6
Declaration, the States were required to adopt legislative measures to protect and improve the
environment. Accordingly, Indian Parliament inserted two Articles, i.e.,, 48A and 51A in the
Constitution of India in 1976,3 Article 48A of the Constitution rightly directs that the State
shall endeavour to protect and improve the environment and safeguard forests and wildlife of
the country.
Similarly, clause (g) of Article 51A imposes a duty on every citizen of India, to
protect and improve the natural environment including forests, lakes, river, and wildlife and
to have compassion for living creatures. The cumulative effect of Articles 48A and 51A (g)
seems to be that the 'State' as well as the 'citizens' both are now under constitutional
obligation to conserve, perceive, protect and improve the environment. Every generation
owes a duty to all succeeding generations to develop and conserve the natural resources of
the nation in the best possible way. The phrase ‘protect and improve’ appearing in both the
Articles 48A and 51A (g) seems to contemplate an affirmative government action to improve
the quality of environment and not just to preserve the environment in its degraded form.
Apart from the constitutional mandate to protect and improve the environment, there are a
plenty of legislations5 on the subject but more relevant enactments for our purpose are the
Water (Prevention and Control of Pollution) Act, 1974; the Water (Prevention and Control of
Pollution) Cess Act, 1977; the Air (Prevention and Control of Pollution) Act, 1981; the
Environment (Protection) Act, 1986; Public Liability Insurance Act, 1991; the National
Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act,
1997; the Wildlife (Protection) Act,
1972; the Forest (Conservation) Act, 1980.
In the Ganga Water Pollution case1, the owners of some tanneries near Kanpur were
discharging their effluents from their factories in Ganga without setting up primary treatment
plants. The Supreme Court held that the financial capacity of the tanneries should be
considered as irrelevant while requiring them to establish primary treatment plants. The Court
directed to stop the running of these tanneries and also not to let out trade effluents from the
tanneries either directly or indirectly into the river Ganga without subjecting the trade
effluents to a permanent process by setting up primary treatment plants as approved by the
State Pollution Control Board.
The Water Act and the Air Act are administered by the Central and State
Governments and the Central Pollution Control Board and the Stale Pollution Control Board.
The Boards have been vested with wide powers to issue any direction including the direction
1
MC Mehta v Union of India AIR 1988 SC 1037

Page | 7
to order closure or stoppage of the supply of electricity, water or any other service to the
polluting unit. It may be noted that similar powers are vested to the Central Government
under the Environment (Protection) Act. Further, under the Environment (Protection) Act, the
Central Government has framed the Environment (Protection) Rules, 1986 laying down
standards for the emission or discharge of environmental pollutants with respect to some
major industries.12 There are some other agencies also framing the standards, namely-
Central Pollution Control Board, State Pollution Control Board, Bureau of Indian Standard
and Local Authorities, i.e., Municipal Corporation. Apparently, there is multiplicity of
pollution control standards for the same type of industries. However, under the Environment
(Protection) Act, 1986, the power has been conferred upon the Central Government to lay
down the standards of quality of air, water, soil, etc. It is hoped that this will ensure
uniformity of standards through out the country. Further, many of the standards have not yet
been laid down as stipulated under the respective Pollution Control Acts, may be due to non-
availability of instrument to measure the parameters of pollution. This will adversely affect
the process of enforcement of laws.

JUDICIAL ACTIVISM IN ENVIRONMENT AND ROLE OF PUBLIC INTEREST

LITIGATION

Since more than two decade, Public Interest Litigation (PIL) has played a vital role by
which belonging to all walks of life and especially the down-trodden are getting social justice
from the Supreme court as well as the High courts. Introducing the PIL concept in the case of
Ratlam Municipal Council Vs. Vardhichand case2, Justice Krishna Iyer observed that social
justice is due to the people and therefore the people must be able to trigger off the jurisdiction
vested for their benefit to any functioning. He recognized Public Interest Litigation as a
constitutional obligation of the Courts. In the case S.P. Gupta Vs. Union of India case3,
Justice P.N. Bhagwati says: procedure being merely a handmaiden of justice it should not
stand in the way of access to justice to the weaker section of Indian humanity and therefore,
where the poor and the disadvantaged are concerned this court will not insist on a regular writ
petition and even a letter addressed by a public spirited individual or social action group
acting pro bono public would suffice to invite the jurisdiction of this court.

2
AIR 1980 SC 1622
3
AIR 1982 SC 149

Page | 8
On the rural litigation and entitlement kendra, Dehradun Vs. Uttar Pradesh4, it is one of the
epoch- making decisions of the Supreme court. The court has struck a balance between
conservation of environment and ecology on the one hand and economic development on the
other. It was held that the question arising for considerations are of grave movement and
significance not only to the people residing in Mussorie hill range forming part of Himalayas
but
also in their implications to the welfare of the generality of people living in the country. In
K.C. Malhotra Vs. State of Madhya Pradesh 5, the inhabitants belong to the backward class or
weaker section of the society. The Madhya Pradesh High court held that they have
fundamental rights under constitution of India entitling them to live as human beings in the
area which was in the limit of Gwalior Municipal Corporation. In Resident of Sanjay Nagar
and others Vs. State of Rajasthan and others case6, court ordered to unauthorized slaughter
house to be closed. In this case the petitioner sought a direction to the respondents to close
down the slaughter houses illegally operating in Sanjay Nagar and also for a direction to the
State Pollution Control Board, Rajasthan, India to take step for preventing creation of air
pollution generated by functioning of the slaughter houses in the area in question. According
to facts and circumstances, Rajasthan High court held decision that – having regard to the
circumstances of the case and keeping in view the health of the residents, we are having the
view that unauthorized and illegal slaughter houses in the area should be closed immediately.
Bringing environmental awareness by means of education as a compulsory subject of study
shall be implemented at least from 2004- 2005.
Lawyers and NGOs are well aware of how the device of Public Interest Litigation (PIL) was
devised by our Supreme court. In order to improve access to justice for poor and
disadvantaged sections, the traditional rules of ‘locus standi’ were diluted and a practice was
initiated whereby public-spirited individuals could approach the court on behalf of such
sections. Many authors have argued that frequent judicial interventions in this area have
reduced the incentive for executive agencies to improve their functioning. It has also been
urged that there seems to be a certain clique of individuals who have come to specialize in
filing frivolous PILs. It is further alleged that the decisions given in these cases depend too
much on the personal sensibilities of the judges who hear them and hence result in a lack of
consistency in the longrun. Furthermore, the frequent reliance on writ jurisdiction reduces the

4
AIR 1985 S.C. 652
5
AIR (1994)
6
AIR Raj., 116 DB. (2004)

Page | 9
importance of ordinary remedies such as those of filing ‘representative suits’ (under the Code
of Civil Procedure) and claiming damages for torts such as ‘public nuisance.’7
Noise pollution was caused due to use of high sounding fire works and others blaring sound –
producing devices thus resulting in pollution of found. In the case of Free Legal Cell, Shri
Sugan Chand Aggarwal alias Bhagat Ji Vs. Govt. of NCT of Delhi and others 8, it was alleged
that because of the indiscriminate use of loudspeakers, noise pollution had become a routine
affairs affecting mental as well as physical health of citizen etc. In the facts and
circumstances of the case, a division bench of the Delhi High court held that the
environmental situation has to be treated as an emergency situation. The environmental
pollutions till regarded as subject of hailing legislation, hypocritical implementation and
helping interpretation, as observed by apex court. Not only the environmental laws should be
refined in a manner which could give a legal justification to assessment in terms of
compensation but also to be re-evaluated in a manner that violation of pollution of law should
become unnecessary in the time to come and this can be materialized by providing sufficient
incentives to the industries and education to the layman.

ROLE OF JUDICIARY IN ENVIRONMENTAL LAW AND ENFORCEMENT

Indian Judiciary is the first in the row who developed the concept of right to healthy
environment as a part of life under Article 21 of our Constitution. One significant
contribution of judiciary is to create a link between fundamental right and fundamental duty.
In the case of Subhash Kumar v State of Bihar, it was said that the Environmental Protection
which previously was a fundamental duty under Article 51(A) also came as a fundamental
right under article 21 of the Constitution of India. In this context, Public Interest Litigation
has emerged as one of the major tool for development of environmental jurisprudence.

In another case9, high court directed the defendants to control the noise pollution occurring
from the loudspeaker drums in order to keep right to life which include right to noise free
environment intact. In addition to this, Court has also held that in matters of environment, the
burden of proof will lie on the party that wants to change the status quo 10. In the Bhopal gas
tragedy, 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
7
J. Environ Law, 19(3), 293-321, (2007)
8
AIR Delhi, 455 (2009)
9
1995 AIHC 4168
10
S.P. Sathe , Judicial Activism in India

Page | 10
Article 32 to issue directions or orders, whichever may be appropriate in appropriate
proceedings. According to the court of law the power could be utilized for going new
remedies and fashioning new strategies6.

Further, in 1998, the Indian Supreme Court, embracing its activist role, issued a controversial
order suo moto mandating the conversion of the entire Delhi fleet of diesel-powered buses to
compressed natural gas (CNG). Steadfast resistance from the agencies responsible for
enforcing the court order has raised serious questions about the wisdom of this decision.
Many opponents have disputed the reliability and practicality of CNG, arguing that the
technology is still in development, making the conversion both risky and costly.

Legislations  supporting judiciary to take the matter seriously

M.C Mehta has pioneered legal activism for environmental protection and is proof that one
man can make a difference. With the Supreme Court of India taking the lead, the centre of
gravity of justice has now shifted from traditional individual locus standi to the community
orientation of public interest litigation.

It is pertinent to point out here that the two provisions under Article 226 and 32 of
constitution of India which provides gate for filing Public Interest Litigation or Writ petition
in the High court and Supreme Court respectively are the two eyes of the judiciary. The
increasing scope of these Articles is the immediate effect of various litigations filed in the
respective court.  Under the banner of Public Interest Litigation (PIL) and the enforcement of
fundamental rights under the Constitution, the higher courts have tried to rebalance the
distribution of legal resources, increase access to justice for the disadvantaged, and imbue
formal legal guarantees with substantive and positive content.

However, constitution of India is not the only legislation which aids the activism of judiciary.
There are other legislations which also provide for a platform for judicial intervention and aid
judiciary to take the matter seriously. They are:

 Civil procedure code which contains specific provisions which enabled two or more
persons having a legitimate interest in the subject matter to seek remedy through court.
The first one is under section 91 which provides for remedy for performing public

Page | 11
 wrong and another one is under section 92 which deals with remedying breaches of
public trusts.
 Under I.P.C, Chapter XIV (Sections 268 to 294A) provides provisions to punish the
person who pollutes environment.
 Chapter X, (Sections 133 to 146) and Chapter XI of Cr.P.C. also provides provisions
for granting punishment to those who damage environment.

International conventions which support judiciary to take requisite actions

 United Nations in its International Conference (1972) laid down its agenda as “to
defend and improve the human environment for a present and future generation has
become an imperative goal for mankind”. This Conference at Stockholm became the
turning point for the development of environmental Jurisprudence.
 Then there is the General Assembly Resolution in 1972, emphasizing the need for the
active cooperation among the states in the field of human environment.

Earth Summit: The document produced at the Earth Summit has 40 chapters having 800
pages. Agenda 21 – a comprehensive programme of action for global action in all areas of
sustainable development was also adopted. It is the conflicting rights of the citizens which
make it difficult for the state to strike a balance between various rights associated with
different groups of people. For instance, under the right to life, drinking water is one of the
fundamental requirements, but simultaneously the State is obliged to preserve the ground
water or to restrict the use so that it can be prevented from being wasted. One the one hand,
State has an obligation to protect the forest but at the same time it is also obliged to protect
the tribal people whose livelihood is based on forest. State is bound to close down those
industries, which are hazardous for the environment, but at the same time has to keep in mind
the livelihood of the people who work there. In the Recent Lok Sabha Debate in Feb., 2013 it
was discussed that development should not be at the cost of forests; development should not
be at the cost of tribals.  Even the Tribal Affairs Minister has written to the Environment
Minister saying that the Forests Rights Act is being violated in giving environmental
clearance.

Hence, it is indeed a difficult task to strike a balance between various rights related to
different groups of people. It requires active participation of all the inhabitants. It is needed
that people first make themselves acquainted with the prospective impact of the degradation

Page | 12
of environment. Judicial activism can indeed play a pivotal role in curbing commercial
problems. In addition to this inclusion of definition of pollution into international crime to
ascertain individual criminal liability will lead to reduce in irresponsible and dangerous
behaviour of the communities towards environment.

However, the judiciary sometimes is also criticized for acting beyond its limit which is
termed as judicial over-activism. Justice Srikrishna is of the view that in the name of judicial
activism, modern judges in India had abandoned the traditional role of a neutral referee and
have increasingly resorted to tipping the scales of justice in the name of distributive justice.
But author beg to differ here because in the current scenario, it won’t be possible for judges
to act as a neutral referee. In order to keep pace with the changing scenario, it is needed that
judiciary should itself play an active role. Judicial legislation is a tool which had served is
still serving and is expected to serve in the future as a major reason behind many environment
friendly legislations.

Taj Mahal Case

In Taj Mahal's case11, the Supreme Court issued directions that coal and coke based industries
in Taj Trapezium (TTZ) which were damaging Taj should either change over to natural gas
or to be relocated outside TTZ. Again the Supreme Court directed to protect the plants
planted around Taj by the Forest Department as under12:

The Divisional Forest Officer, Agra is directed to take immediate steps for seeing that water
is supplied to the plants... The Union Government is directed to release the funds
immediately without waiting for receipt of the proposal from the U.P. Government on the
basis of the copy of the report. Funding may be subsequently settled with the U.P.
Government, but in any set of circumstances for want of funds the officer is directed to see
that plants do not wither away.

11
M.C.Mehta v. Union of India, AIR 1997 SC 734
12
M.C.Mehta v. Union of India, (2001), 9 SCC 520

Page | 13
Sri Ram Food and Fertilizer Case
In that case13, a major leakage of Oileum Gas affected a large number of persons, both
amongst the workmen and public. The Supreme Court held that where an enterprise is
engaged in a hazardous or inherently dangerous activity and harm results to any one on
account of an accident in the operation of such hazardous and inherently dangerous activity
resulting 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 a liability is not subject to
any exception.

CONCLUSION

Environmental law has seen considerable development in the last two decades in
India. Most of the principles under which environmental law works in India come within this
period. The development of the laws in this area has seen a considerable share of initiative by
the Indian judiciary, particularly the higher judiciary, consisting of the Supreme court of
India and the High courts of states. PIL has proved to be an effective tool in the area of
environmental protection. The Indian judiciary adopted the technique of public interest
litigation for the cause of environmental protection in many cases. The basic ideology behind
adopting PIL is that access to justice ought not to be denied to the needy for the lack of
knowledge or an finances. In PIL, a public spirited individual or an organization can maintain
petition on behalf of poor and ignorant individuals. Due to PIL, the court indicated
contractors of indiscriminate mining operations which had disturbed and destroyed ecological
balance and ordered for their closure in the interest of protection of natural environment and
conservation of natural resources for public health.

The Supreme court recognized several unarticulated liberties which were implied in
Article 21 of the constitution like the right to free legal assistance and the prisoners to be
treated with dignity were recognized as part of fundamental right. Supreme court also
interpreted the right and personal liberty to include the right to wholesome environment. The
most important achievement of the Indian constitution is the constitutionalisation of the
environmental problems by the apex court. Before the year of 1980, there were legislation
about control of environmental pollution but little had been done to really make pollution
control. But in the present time the Supreme court of India expand the meaning of
13
M.C. Mehta v. Union of India, AIR 1987 SC 1086

Page | 14
environmental Right. The Supreme court making interpretation which led to the creation of
new rights. Eventually under Article 21, this court has created new rights including the right
to health and pollution free environment.

In order to enforce the environmental laws stringently, mere mis-description and technical
flaws should be disregarded by the Courts. The creative role of judiciary has been significant
and laudable. The jurisdiction of the Courts has been expanded by way of Public Interest
Litigation. The Supreme Court of India has played a vital role in giving directions from time
to time to the administrative authorities to take necessary steps for improving the
environment. What we need is social awareness from below, not laws from the above. No law
works out smoothly unless the interaction is voluntary. In order to educate people about the
environmental issues, there should be exhibition of slides in the regional languages at cinema
houses and television free of cost. Further, as directed by the Supreme Court of India 14,
Environment studies shall be made a compulsory subject at school and college levels in
graded system so that there should be general growth of
awareness.

The traditional concept that development and ecology are opposed to each other, is no longer
acceptable, since 'sustainable development' is the answer. The Supreme Court has accepted
sustainable development as part of the laws of the land and has affirmed the 'precautionary
principle' and the 'polluter pays principle' are essential features of sustainable development.

BIBLIOGRAPHY

1. Environmental Protection And Emerging Trends In Judicial Responses-Chandra Pal,

Central Law India Quarterly
2. Environmental Law – D.S. SENGAR
3. Environmental Law In India – Mohammad Naseem

14
M.C. Mehta v. Union of India, AIR 1992 SC 382

Page | 15