Chapter-VI

ENVIRONMENTAL JURISPRUDENCE AND JUDICIARY IN INDIA

6.1. Introductory Remark

Development and progression of ecological jurisprudence in India has been

noteworthy. Indian Constitution is one of the ninety Constitutions in the world having
specific piece of legislations and provisions for the protection, promotion and
preservation of natural environment. Apart from various progressive legislations, the
role of Indian judiciary is of paramount importance.

For the last four decades, the growth of environmental jurisprudence in India,
following the Amendment of the Constitutional, has been significant in the sense that
it has led to the useful formation of a fundamental right to a clean environment. This
forms part of the public policy system recognized by the Constitution of India i.e. law
of the land and emerges to be based not only on innovative notions of basic human
rights but also on original notions of social justice 1 which was talked of by John
Rawls, comprising a unique human rights design accepted through affirmative action.2

The chief intent of this chapter is to study the different aspects of the exceptional
contribution of higher judiciary into the growth of environmental activism and its
expansion to a broader jurisprudential and constitutional structure. It goes on to
highlight how the rising environmental jurisprudence in Indian has relied on three
interrelated rudiments. The three unified basics are:

 Firstly, the novel Constitutional law basis which at this time undoubtedly gives
more significance to civic distresses rather than to caring personal benefits.
 Secondly, it reproduces various features of Indian legal system through
implied and unambiguous belief on original ethics based on ancient, pre-
colonial indigenous notions and concepts of law.
 Thirdly, it stands proof to the uniquely advocate responsibility of the Judiciary
in upholding this new rationale.

1
A Theory of Justice has used it as a pseudonym of distributive justice.
2
In a Theory of Justice Jhon Rawls argues that the notions of liberty, fairness and equality are not
jointly exclusive. Ralws evaluation of the justice system guides him to conclude that for justice to
be truly just and fair, everybody must be afforded the same rights and privileges under the law.

231
These three unified fundamentals characterize the task of judiciary vis-à-vis the
modern progress of Indian environmental jurisprudence. Judicial initiation and
activism for preservation of the environment in India commenced in earnest after the
Stockholm Conference, 1972. 3 Environmental provisions were incorporated under
Article 48 (A) and 51-A (g) by the Constitution of India in its 42nd amendment in
1976 as a:

“Fundamental duty for the state as well as the citizens of India to protect and
improve the natural environment.”

Although, various legislations pertaining to the preservation and protection of the

environment were passed in India prior to it. A numerous colonial enactments had
environmental overtones. For instance, The Indian Penal Code, 1860, Code of Civil
Procedure, 1908 and the Code of Criminal Procedure, 1898 dealing with “public
nuisance” presume unique implication in this regard. However, there was no specific
legislation that dealt with environment for its own sake.

The Environmental Protection Act, (EPA), 1986 enacted to control industrial effluent
and industrial waste and the Conservation of Forest and Natural Ecosystems Act,
1994 is enacted to stop cutting of forests and natural resources destruction are
amongst the key pieces of enactment for the improvement and preservation of the
environment and natural heritage in India. Public Interest Litigation (PIL) as a device
to address ecological degradation has been on increase. The names of individuals like
M.C. Mehta, Prof. T N Godavarman and others immediately comes to mind who
have used PILs as a potent armor in the hands of citizens.

The kind of environmental jurisprudence evolved by Indian Supreme Court is singular

in its far-reaching effects and innovative streak than any other constitutional court in
the whole world. The various High Courts in India have also contributed their bit in
emerging this jurisprudence. Court‟s pro-active role in environmental law
administration has helped a great deal in changing common man‟s perception towards

3
Fasih Raghib Gauhar and Mirza Juned Beg, “Judicial Activism to Judicial Adventurism for the
protection of Environment: An analysis in the context of Expansive meaning of Article 21 of
Indian Constitution” XXIV ALJ 228 (2017).

232
law courts. In this process, it has carved out a place for itself as an exceptional human
rights friendly body in dispensation of justice.4

The rising quantity of PILs being filed over all possible ecological or green matters by
public interest groups and individuals bears witness to this unshaken belief which the
public has rested in the system. Supreme Court has acted as a loadstar in as much as it
has lead the way forward by removing obstacles and by bringing authorities to task. It
has acted as a facilitator by ensuring better enforcement of the environmental laws.

The increasing involvement of judiciary in ecological governance as is reflected in the

incidence and various kinds of orders or directions passed occasionally by the
judiciary in environmental litigation and its constant involvement with environmental
matters has developed a series of modern techniques in environmental jurisprudence.
A number of distinct inventive mechanisms are identifiable, each of which is unique
and in some cases dissimilar to the conventional legalistic understanding of the
judicial function.5

6.2. Proactive role of Judiciary in the development of Indian Environmental

Jurisprudence

Environment constitutes the whole of the ecology of human being. But the decline in
ecological quality has been witnessed by rising pollution level, loss of vegetation,
global warming ad biological diversity, too much concentrations on hazardous
elements in the ambient environment and in the food grains. There are increasing
threats of ecological misfortunes and threat to natural lives. Enviro-crime is a illegal
infectivity of environment which causes substantial damage to the right of a person.6
No doubt that legislatures of India has enacted plethora of law for the protection,
preservation and improvement of our natural environment. But due to lack of
application and effective implementation of Constitutional as well as legislative
provisions, problem of enviro-crimes could not be controlled. Therefore, it became

4
Id. at 235.
5
Iqbal Ali Khan and Mirza Juned Beg, “Climate Change: Problems and Prospects” VII:1 Legal
Journal Quest for Justice 10 (2015).
6
Stockholm Declaration 1972.

233
necessary for Indian judiciary to adopt some effective remedial measures to prevent
enviro-crimes.7

The pre-independence colonial legislations were geared more towards exploitation of

natural resources without any serious regard to environment and ecology even if the
text of the enactments said otherwise. Our colonial masters had no desire to preserve
and protect our environment. The point being made is that the environment positive
legislations appeared on horizon in earnest only after independence. A close look at
the post-independence legislative history shows that enviro-jurisprudence in a country
made its humble commencement in the mid-seventies when Parliament of India
legislated the Water (Prevention and Control of Pollution) Act, 1974.

However, with the sweeping amendments of 1976 to the constitution, the stage was
set for making a quantum leap. The incorporation of Article 48A 8 in Part IV and
Article 51A (g) 9 in Part IVA provided impetus to court‟s efforts to address
environmental issues. Both these Articles clearly provide direction for preservation
and improvement of the environment. Subsequently, Parliament of India enacted the
Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection)
Act, 1986. These three crucial enactments comprising laws on Water, Air and finally
general umbrella legislation on Environment can be looked upon as the initial modest
beginnings made by Parliament.

However, these laws were inadequate to address violations effectively since they were
soft on those breaching it. It is unfortunate that environmental legislations keep on
remaining soft at an instance when strong enactment is critical for improvement and
preservation of environmental. Providentially, the Supreme Court of India respected
the need of strictness in ecological matters and cached the opportunity in Municipal
Council, Ratlam v. Shri Virdichand and others10.

7
RathinBandopadhyay and Rajendra Ohar Dubey (ed.), An Introduction to Environmental Rights 03
(Central Law Publications, Allahabd, 1stedn., 2010).
8
Protection and improvement of environment and safeguarding of forests and wild life: “The State
shall endeavour to protect and improve the environment and to safeguard the forests and wildlife
of the country.”
9
Fundamental Duties: “It shall be the duty of every citizen of India to protect and improve the
natural environment including forests, lakes, rivers and wild life, and to have compassion for
living creatures.”
10
(1980) 4 SCC 162.

234
The Indian judiciary has played a pro-active role in environment protection by
interpreting the various Constitutional and legislative provisions in the interest of the
environment and upholding the citizens‟ right to a clean and healthy environment.11
Indian higher judiciary brought about noteworthy changes in Indian legal system by
creating, promoting and enhancing the concept of Public Interest Litigation (PIL),
Judicial Review, continuous mandamus, suo moto, and epistolary jurisdiction of
Supreme Court by extending its jurisdiction in matters concerning with enviro-crimes
as a useful apparatus froredressal of public grievances arising out of environmental
pollution. The Indian constitutional courts made enormous contribution to in
developing environmental jurisprudence in Indian legal system to give envir-justice to
common person and to protect, preserve, and promote the natural environment.

The concept of PIL and epistolary jurisdiction in India started by the Hon‟ble Supreme
Court evolved through human rights jurisprudence and environmental jurisprudence.
The traditional concept of locus standi is no longer a barrier for the society oriented
PIL. 12 Having given its raison d‟etre for taking a proactive approach in matters
pertaining to the enviro-crimes, the Supreme Court later entertained not only an
aggrieved party, but the environmentally conscious persons; group or NGOs may have
access to the Supreme Court or High Courts by way of PIL. Even mere letter or
postcard has been treated as Writ petition under the epistolary jurisdiction of the court.

The Hon‟ble Supreme Court while taking cognizance on the petitions has further
relaxed the requirement of a formal writ to seek redressal before the Court. 13 In
Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P. & Others14, court
observed that:

“Every citizen has fundamental right to have the enjoyment of quality of life
and living as contemplated by Article 21 of the Constitution of India. Anything
which endangers or impairs by conduct of anybody either in violation or in
derogation of laws, that quality of life and living by the people is entitled to
take recourse to Article 32 of the Constitution.”

11
Nomita Aggarwal (ed.), Social Auditing of Environmental Laws in India 141-142 (New Century
Publications, Delhi, 2003).
12
Rathin Bandopadhyay and Rajendra Ohar Dubey,et.al.,op.cit. at 04.
13
Municipal Council, Ratlam v. Vardhichand and others, AIR 1980 SC 1622.
14
AIR 1990 SC 2060.

235
The Apex Court in Subhash Kumar v. State of Bihar & Others15, has clearly held that:

“Right to life is a fundamental right under Article 21 of the Constitution and it

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

In Rural Litigation and Entitlement Kendra, Dehradun and Others v. State of U.P.
and Others16, the Supreme Court ordered shutting of all limestone mining in the Doon
Valley taking notice of the fact that limestone mining in the region had unfavorably
affected water springs and ecosystem. The Court in T.N. Godavarman Thirumulpad
v. Union of India17, has stated that it would not be feasible or in the larger interest to
allow mining activities based on earlier licenses.

Judgments of the Apex Court of India have shown a wide range of cases relating to
prevention of environmental crimes and to provide decent, fresh and green life to
citizens which were decided by the Apex court from time to time. The Apex court
becomes the monitor and regulator of enviro-issues in numerous cases. It will be
noted that the Indian courts continuously referred ecological cases to experts, and the
court has been framing methods, issuing instructions and constantly supervising them.

6.2.1. Specific Interventions by the Higher Judiciary

The wide range of cases on various issues related to environment decided by the
Supreme Court to bring enviro-justice can be appreciated. Some of these cases are:

“Taj Pollution case18, Ganga Pollution case19, Vehicular Pollution in Delhi20,

Pollution by Industries in Delhi case21, Pollution in River Yamuna22 , Ground
Water Management23, Pollution in Noida24, Ghaziabad area25, Noise Pollution26,

15
AIR 1991 SC 420.
16
AIR 1985 SC 652.
17
(2010) 1 SCC 500.
18
M.C. Mehta v. Union of India &Ors., AIR 1997 SC 734.
19
M.C. Mehta v. Union of India &Ors., AIR 1997 SC 1037.
20
M.C. Mehta v. Union of India &Ors., 1998 (6) SCC 60.
21
M.C. Mehta v. Union of India &Ors., (2002) 9 SCC 481, 483, and 534.
22
Writ Petition (Civil) No.725/1994, News Item „HT‟, dated 18.7.1994.
23
M.C. Mehta v. Union of India, 1997 (11) SCC 812.

236
 Import of Hazardous Waste27, Pollution in Porbandar28, Gujrat Management of
Municipal Solid Waste 29 , Pollution in Medak District 30 , Andhra Pradesh
Pollution by Chemical Industries in Gajraula Area31, Pollution in River Gomti32,
Protection to Wild Life 33 , Preservation of Forests 34 , environmental impact
assessment and rehabilitation of displaced persons35, etc.”

These judgments have shown the judicial sensitivity, creativity and activism towards
environmental justice to common people through Court‟s attitude particularly in
PIL.36 The wave of judicial consideration in environmental litigation in India signifies
the concerns of judiciary in finding out proper remedies for environmental maladies.37

6.2.2. Committees Appointed by the Supreme Court

Supreme Court has taken a visibly activist bent since the beginning of this millennium
if not before it. This is evident from Court‟s active engagement, in many respects, in
the protection and promotion of natural environment. The callous and indifferent
attitude of executive and the legislature resulting in absence of any lawful structure or
any model forced the judiciary to come forward and shoulder the responsibility. It was
called upon to execute an inventive but fragile use and come out with original
solutions and thoughts to handle the environmental crisis in India. One of the ways to
which Courts often turned was to set up investigation committee from time to time.
Some of the committees appointed by the Supreme Court include38:

 Bhargava Committee: It was constituted to enquire whether the hazardous

mines were meeting safety standards, whether quarrying is possible cause of

24
Welfare Association &Ors. v. State of Delhi &Ors., Writ Petition (Civil) No.914/1996.
25
Ibid.
26
AIR 2005 SC 3136.
27
Research Foundation for Science, Technology and Natural Resource Policy v. Union of India &
Ors., (2000) 9 SCC 41.
28
Dr. KiranBedi v. Union of India &Ors., Writ Petition (Civil) No. 26/98.
29
. Dr. B.L. Wadehra v. Union of India &Ors., AIR 1996 SC 2969.
30
Indian Council for Enviro Legal Action & Ors. v. Union of India & Ors., (1996) 3 SCC 212.
31
Imtiaz Ahmad v. Union of India &Ors., Writ Petition (Civil) No.418/1998.
32
Vineet Kumar Mathur v. Union of India &Ors.,
33
State of Bihar v. Murad Ali Khan, AIR 1989 SC 1.
34
T.N. Godavarman Thirumalpad v. Union of India, (1997) SCC 267.
35
N.D Jayal v. Union of India, AIR 2004 SC 1 (Supp) 867.
36
Rathin Bandopadhyay and Rajendra Ohar Dubey,et.al.,op.cit. at 17.
37
K.M. Chinnappa v. Union of India, AIR 2003 SC 734.
38
Justice Madan B. Lokur, “Environmental Law: Its Development and Jurisprudence”, Lecture
available at: http://awsassets.wwfindia.org, (last visited on 7 th Jan. 2017).

237
 landslides and about any other threat to individuals, livestock and farming
lands due to quarrying actions.

 Valdia Committee: It was an expert committee tasked with looking into the
question of air, water and environmental pollution and ecological damage due
to mining and the exploit of limestone crushers.39

 Manmohan Singh Committee: It was tasked with eliminating community risk

by looking after the security and toxic waste management features of Shriram
Foods and Fertilizer Industries.

 Nilay Chaudhry Committee: It was another Supreme Court appointed

Committee of Experts to advise on matters related to Shriram Foods and
Fertilizer Industries.

 Bandopadhyaya Committee: This Committee was headed by Mr.

Bandopadhyay was also formed to look into some of the characteristics cited
above and also a Monitoring Committee called the Geetakrishnan Committee
to check the directions issued by the higher judiciary.

It is also important to note that the Supreme Court did not merely acknowledge the
reports of these Committees but called objections from general public. They were
required to be filed within a reasonable time. These objections were duly considered
as is evident from the prohibition of mining activity and stone on the basis of these
objections.40

6.3. Guiding Principles evolved by the Supreme Court to protect natural

environment

In the mid-nineties, Supreme Court invoked a number of internationally accepted

principles in issues pertaining to the environment in its decisions. Supreme Court also
started to rely heavily on Article 21 of the Constitution41 and went ahead to give an
expansive meaning to “environment” taking within its fold the quality of life 42 as

39
K.S. Valdiya is a distinguish Scientist, Academician, Author and an active Environmentalist.
40
Ibid.
41
Protection of life and personal liberty–No person shall be deprived of his life or personal liberty
except according to procedure established by law.
42
Chhetriya Pardushan Mukti Sangarsh Samiti v. State of U.P, (1990) 4 SCC 449.

238
distinguished from a mere animal existence.43 The environmental jurisprudence began
to come into its own at about this time.

In Indian Council for Enviro-Legal Action & Ors v. Union of India44, the Supreme
45
Court accepted the Polluter Pays principle. The notion of “Sustainable
Development” was expressed and given effect to by the Supreme Court in Vellore
Citizens Welfare Forum v. Union of India & Ors 46 , this doctrine was firstly
recognized in the Stockholm Declaration, 1972. It was later given distinct form in the
World Commission on Environment and Development, 1987 in its report called “Our
Common Future” chaired by Prime Minister of Norway Mr. Gro Harlem
Brundtland. Further helpful debate on the “Polluter Pays principle” and the
“Precautionary Principle” is recognized in the case of A.P. Pollution Control Board
v. Prof. M.V. Nayudu47, in this case, the Indian Supreme Court made a reference to
the Stockholm Declaration and the U.N. General Assembly Resolution on World
Charter for Nature, 1982. Another major doctrine recognized by the Supreme Court is
the „public trust doctrine.‟ This principle evolved in India for consideration in the
case of M.C. Mehta v. Kamal Nath.48

6.4. Judicial Interpretation on Legislative and Executive attempt for

Environmental Protection and Preservation

The Indian legislature has come up with numerous important legislations such as:

 The Environmental Protection Act 1986;

 The Air (Prevention and Control of Pollution) Act 1981;

 The Water (Prevention and Control of Pollution) Act 1974;

 The Water (Prevention and Control of Pollution) Act 1977;

 The Wild Life (Protection) Act of 1972;

 The Public Liability Insurance Act of 1991;

 The National Environmental Tribunal Act of 1995;

43
Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, (1983) 1 SCC 124.
44
(1996) 3 SCC 212.
45
In 1972, the Organization for Economic Cooperation and Development adopted this principle as a
Recommendable method for pollution cost allocation.
46
(1996) 5 SCC 647.
47
(1999) 2 SCC 718 and (2001) 2 SCC 62.
48
(1997) 1 SCC 388, (1999) 1 SCC 702, (2000) 6 SCC 213 and (2002) 3 SCC 653.

239
  The National Environmental Appellate Authority Act of 1997;

 The Mines and Minerals (Regulation and Development) Act of 1957;

 The Indian Forest Act of 1927; The Forest (Conservation)Act of 1980;

 The Atomic Energy Act of 1948, etc.

This is truly a vast exercise. It proves the obligation of the Indian legislature to the
cause of improvement and preservation of environment. And to protect the public
health and rights of people of India.

But it is important to reiterate here that as important as the enactment of appropriate

legislation is, mere promulgation of any piece of legislation is not sufficient in itself.
Proper administration and enforcement are equally important if not more. In this
context, the role of judiciary comes to forefront because of the remarkable role played
by it in taking ahead in implementation of environmental enactments and giving
material shape to the aspirations of the legislature. Judiciary has made signify cant
contribution to the progress of environmental jurisprudence in India through its
interpretation and construction of relevant statutes.

This researcher has focused on the court‟s approach in interpretation of these

enactments in this chapter. The most important objective of the chapter is on the
court‟s verdicts on major issues that have arisen before the judiciary while
interpreting Water Act, Air Act, Forest laws and other environment protection laws.
This chapter discusses the areas where the Apex Court has contributed and played
proactive role in bridging the gap between enactments as they are and as they ought to
be during the interpretation of enactments. It also discusses instances where the
Courts have reminded the other two arms of the democracy (executive and the
legislature) about their responsibility to protect the environment and to fulfill the
constitutional and legal obligation of securing and protecting socio-economic justice.

6.4.1. Harmonizing Contradictory Opinions and Setting Priorities for

Environmental Preservation and Protection

The first noticeable trend in this regard is that the courts have increasingly tried to give
harmonious construction to the provisions of different enactments dealing with
environment preservation by assigning the foremost priority to the protection of

240
environment. For example, in Harihar Polyfibers v. The Sub-Divisional Magistrate49,
the Karnataka High Court rejected the contention that Section 133 of Cr. P.C., is
overruled by the present Act. It observed that:

“Under Section 133 Cr. P.C., the nature of the Magistrate‟s order is to
immediately avoid any imminent danger to the public in general. Whereas
under the Air and Water Pollution Control Act, 1974 the parties are required
to approach the Statutory Board constituted under the Act first. In such a case,
providing immediate remedy is not possible; regard will have to be given to
the rights of individual parties as they will be affected otherwise. Hence,
Section 133 Cr. P.C. was allowed to stand.50”

Similarly, the Rajasthan High Court in Maharaja Shri Umaid Mills Ltd., Pali and
Others v. State of Rajasthan and Others51, observed that:

“Section 33 of the Water Act is analogous to and pari-materia with Section

133 of the Cr.P.C. and addresses similar concerns. Both these provisions are
intended to curb the evil of public nuisance by providing for preventive
measures side by side. There is nothing in either of them which impinges on
the other provision.”

Section 33 of water Act is a piece of social legislation providing for precautionary

action where there is an apprehension that the water in any stream or well is likely to
be polluted on account of removal or likely discharge of industrial effluent in such
stream or well. The Court said that:

“Our environmental law operates on deterrent theory of Criminal Justice

Administration. It also observed that the said Act was enacted for the
prevention and control of water pollution and maintaining and restoring of
wholesomeness of the water.”52

49
1997 (1) ALT (Cr.) 946.
50
Ibid.
51
AIR 1998 Raj.9 (DB).
52
Ibid.

241
As such, Section 33 seeks to mitigate the damage already done and to prevent
subsequent damage. Non-compliance of any order issued U/S 33 authorizes criminal
action and conviction of person.53

The Madras High Court, in N. Rama Swamy v. Sub- divisional Magistrate

Coimbatore54 held that:

“No inconsistency or repugnancy exists so as to infer an implied repeal of the

relevant provisions of the Water Act by virtue of the overriding provision
contained in section 52 of the Air Act.”

Thus, the Water Act, 1974 and Air Act, 1981 were adjudged as being complementary.
In the case of A.P. Gunnies Merchants Association, Hyderabad and others v. the
Government of A.P. and Others 55 , a writ petition was filed challenging the air
pollution in relation to business of gunny bags by traders was established. The
Hon‟ble High Court of Andhra Pradesh dismissed the petition. The learned Division
Bench stated that:

“In terms of Article19 (1) (g) of the Constitution of India, the right to carry on
business or trade is subject to any restriction that may be imposed by any law
in force. The HMC Act, the Air (prevention and Control of Pollution) Act,
1981, and the Environment Protection Act, 1986 provides for such
regulations. Therefore, the right of the petitioners to carry on business in old
and used gunny bags cannot be said to be absolute.”56

The Calcutta High Court in the case of Moulana Mufti Syed Md NoorurRehman
Barkati v. State of West Bengal57, stated that:

“The noise pollution rules restricting the use of loudspeakers for call of azan
before 7 am as per the Noise Pollution Rules for the time being do not violate
the right to equality and freedom of religion. It held that the use of loud
speakers and microphones before 7 am disturbs and takes away a person‟s
right to sleep.”

53
Ibid.
54
(1998) 1 Com, L.J.169 (Mad.).
55
AIR 2001 AP 453.
56
Ibid.
57
AIR 1999 Cal 15.

242
However, the Central Government into the Noise Pollution Rules introduced an
exception. It now allowed the use of loudspeakers between 6 pm to 12 am midnight or
during normal fiesta or carnivals not exceeding 15 days in a calendar year in total. In
Forum for Prevention of Environment and Sound Pollution v. Union of India58, the
Apex Court upheld the validity of the exception by referring to the diversity of culture
and religions in India. However, it mandated that the exception be used only by
reference to the state as a limit and not by specifying different dates for different
districts. That is, there was no question of increasing the number of days and duration
beyond two hours.

The court‟s „balancing act‟ can be sampled from the judgment rendered in Rajiv
Ranjan Singh case59, wherein a writ petition was filed alleging disposal of industrial
waste beyond its premises by the industry60 which was situated within 15kms distance
from Bhagalpur Town and involved in the manufacture and production of ethyl
Alcohol. Facts of the case also revealed that in addition to the dangerous gas and smells
escaping from the distillery, the industry was also be fouling the water resources and
contaminating the natural environment thereby adversely affecting not only the crops
and livestock but also the health of the villagers in the surrounding area.

Hon‟ble Patna High Court held that:

“The conduct of the industry amounts to an infringement of the inhabitants‟

rights guaranteed under Articles 14, 21 read with 47 and 48A of the
Constitution of India. The industry was also found to be in violation of the
statutory provisions of the Water Act, AIR Act as well as the Environment Act.”

The Division Bench of the Patna High Court In the facts and circumstances of the
case, observed that:

“It is necessary in the case to strike a balance between the necessity to

preserve the environment on the one hand and the present needs for the

58
AIR 2006 SC 348 pp 350,351.
59
Rajiv Ranjan Singh alias Lallan Singh v. State of Bihar and Ors, AIR1992 Pat. 86 (DB).
60
M/S Shiv Shankar Chemical Industries Private Limited.

243
 industrialization of this backward state. The distillery may be permitted to
restart its manufacturing process with adequate safeguards.”61

6.4.2. Interpretation of Environmental (Protection) Act, 1986 by the Judiciary

The judiciary in India has played fundamental role in executing the mandate of the
Environment (Protection) Act, 1986 (herein after used as EPA). EPA is an umbrella
legislation that deals with each and every characteristic of enviro-crimes. Its judicial
interpretation has opened great possibilities for concerted action with the help of other
Acts. More specifically, the court‟s direction to enforce Sec. 3(3) of the EPA Act has
significantly contributed in the progress of Indian environmental jurisprudence.

6.4.2.1. Judicial Interpretation of Section 3(3) EPA, 1986

The Apex Court has on many occasions referred Sec. 3(3) to remind the Government
of the day to execute the power given under the said section. The Apex Court in the
case of Bittu Seghal and Another v. union of India and Others62, held:

“We direct the Central Government to constitute an authority under Section

3(3) of the Environment (Protection) Act, 1986 and also confer on the said
authority all the powers necessary to protect the ecologically fragile Dahanu-
Taluka and to control pollution in the said area.”

The Apex Court further stated that:

“The Central government shall constitute the authority before 20.12.1996. The
authority so constituted by the Central Government shall consider and
implement the “Precautionary Principle” and “Polluters Pay” principle. The
authority shall also consider and implement the recommendations of NEERI.
Needless to say that the authority shall ensure the implementation of the two
notifications mentioned in the order above”.63

A two member Bench of the Apex Court in S. Jagannath v. Union of India 64 ,

observed that:

61
Ibid.
62
(2001) 9 SCC 181.
63
Ibid.
64
AIR 1997 SC 811.

244
 “An industry dependent on seawater could not by itself be an industry directly
related to water front or directly needing foreshore facilities. The Shrimp
culture industry; therefore cannot be permitted to be set up anywhere in the
coastal regulation zone under the Coastal Regulation Zones Notification.”

The conventional and enhanced traditional kinds of shrimp-farm equipments or

machinery are ecologically caring and pollution free. Other types of technologies-
extensive, modified extensive, semi extensive and intensive produce pollution, and
have demeaning effect on the surroundings and ecosystem. Such style of shrimp
farms cannot be allowed to function. The court held that:

“Before any shrimp industry or shrimp pond is permitted to be installed in the

ecology fragile coastal area it must pass through a strict environmental test.
There has to be a high-powered “Authority” under the Act to scrutinize each
and every case from the environmental point of view. There must be an
Environmental Impact Assessment (herein after used as EIA) before
permission is granted to install commercial shrimp farms.”

The Apex Court further stated that:

“The Central Government shall constitute an authority under Section 3(3) of the
EPA and shall confer on the said authority all the powers necessary to the
ecologically fragile coastal areas, sea shore, water front and other Coastal areas
and specially to deal with the situation created by the shrimp culture industry in
the Coastal states and Union Territories. The shrimp culture industry/ the shrimp
ponds are covered by the prohibition contained in para 2(1) of the CRZ
Notification. Shrimp culture pond cannot be constructed or set up within the
coastal regulation zone as defined in the CRZ Notification. This shall be
applicable to all seas, bays, estuaries, creeks, rivers and backwater. All the aqua
culture industries/ shrimp culture industries /shrimp culture ponds operating /set
up in the coastal regulation zone as defined under the CRZ Notification shall be
demolished and removed from the said area before March 31 1997.”

The Court further held:

245
 “The agricultural lands, salt pan lands, mangroves, wetlands, forest lands,
land for village common purpose and the land meant for public purposes shall
not be used or converted for construction of shrimp culture ponds.”

The Court clearly said that:

“No aqua culture industry/ shrimp culture industry/shrimp culture ponds shall
be construed /set up within 1000 meter of Chilka lake and Pulicat lake
(including Bird Sanctuaries, namely Yadurapathi and Nelapaathi).65”

The Supreme Court in F.B.Taraporewala v. Bayer India Limited 66 , in this case

certain chemical factories were located in a populated area in Thane, Mumbai. These
factories put the life of the residents in jeopardy in view of probable accident in the
area. The Supreme Court directed:

“the Central Governmentto constitute an authority to examine the relocation

of industrial and residential areas under section 3(3) of the Environment
(Protection) Act, 1986 and the Maharashtra regional and Town Planning
Act.”67

The Supreme Court in Indian Council for Enviro-Legal Action v. Union of India68,
stated that:

“The respondent states could not undertake activities that have been
prohibited within the coastal regulation zones envisaged under notification.”

Thus, it is evident that the higher judiciary has broadly used Section 3 (3) of EPA.
The Supreme Court of India in the case of M.C. Mehta v. Union of India69, ordered:

“To constitute a committee, under Section 3(3) of EPA, headed by Shri

Bhurelal to look into the traffic hazards and problems in the National Capital
of Region with a comprehensive authority to deal with the entire matter
relating to environmental pollution including traffic safety laws.”

65
Ibid.
66
(1996) 6 SCC 9.
67
The Environment Protection Act, s. 46.
68
AIR 1996 SC 1797.
69
(1998) 2 SCC 435.

246
Justice Kuldip Singh, lamenting on the inaction of the Central Government regarding
the appointment of the „authority or authorities‟ under Section 3(3) of the EPA
observed:70

“It is thus obvious that Environment Act contains useful provisions for
controlling pollution. The main purpose of the Act is to create an authority or
authorities under Section 3(3) of the Act with adequate powers to control
pollution and protect the environment. It is a pity that till date no authority
has been constituted by the Central Government. 71 The work which was
required to be done by and authority in terms of section 3(3) read with other
provisionsof the Act is being done by this Court and Other Courts in the
country. It is high time that the Central government realizes its responsibility
and statutory duty to protect the degrading environment in the country.72”

Following the above observations in relation to pollution of Palar River due to

disposal of unprocessed effluents by the tanneries in Vellore, the Apex Court came
down heavily on the Central and State Governments. It directed them to:

“Immediately constitute an authority under Section 3(3) of the Act and confer
on such authority all powers necessary to deal with the situation created by
tanneries and other polluting industries of Tamil Nadu including the power to
issue directions under Section 5 of the Act.”73

The Apex Court further directed that:

“The authority so constituted should implement the precautionary principle

and also the polluter pays principle.”

For implementing these principles the authority so constituted by the Central

government was mandated to enlist the help of experts and hear industrialists.

The Supreme Court also authorized:

“To determine and award compensation and to recover compensation for

damage to environment and frame a scheme to rejuvenate the debased ecology

70
Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647 at p. 665.
71
Ibid.
72
Ibid.
73
Ibid.

247
 of any area. Such scheme framed by the authority is to be actualized by the
State Government under the supervision of the Central Government.”

The Supreme Court also recommended to the Chief Justice of Tamil Nadu High Court
to constitute a Green Bench to deal with environmental pollution cases on the pattern
of States of West Bengal and Madhya Pradesh.

The above cited cases were referred with approval by the Supreme Court in the case
of A. P. Pollution Control Board v. M.V. Nayudu74, which reiterated:

“The need to designate authority under Section 3(3) of EPA and other laws
with Judicial and other Technical Members to help a proper and fair
adjudication of disputes relating to environment and pollution.”

Such authorities was appointed by the Union Government in the State of Tamil Nadu
under Sec. 3(3) OF EPA named “Loss of Ecology (preservation and payment of
Compensation) Authority” in 1996. The Court also suggested that:

“The Government of India should make appropriate amendments in

environmental statutes, rules and notifications to set up „environmental courts‟
on regional basis with one professional judge and two experts drawn from the
Ecological Science Research group keeping in view the nature of the case.75”

The National Environment Tribunal under the National Environment Tribunal Act,
1995 and the national Environment Appellate Authority under the National
Environment Appellate Authority Act, the Central Government exercising the powers
conferred under Sec. 3(3) of EPA constituted in 1997.

6.4.2.2. Judicial Interpretation of Rule 5 of the Environment (Protection) Rules,

1986

Rule 5 of the EPA provides for a rundown of various aspects which must be
considered by the Government while precluding or restricting the area of an industry,
operation or process. Along these lines, the govt. must be mindful of the quality of
environment standards laid down for a given area, maximum permissible limits of

74
(1999) 2 SCC 718.
75
Ibid.

248
different pollutants including noise, biological variety of the area which should be
preserved, proximity of human settlements and so on.

While considering the implementation of Rule 5 (vii) which supplies for measures and
protection for the handling of dangerous materials, the Apex Court in Research
Foundation for Science v. Union of India76directed the executive:

“To act on the recommendations of the Expert Committee constituted by it for

ship breaking industry and to formulate a comprehensive code accordingly.”

Recognizing the importance of mass awareness about the need to protect and preserve
the environment, the higher judiciary in its landmark judgment in M.C. Mehta v.
Union of India77, observed that:

“Since law regulates human conduct there must be appropriate awareness

about the law.”

It also declared that:

“Keeping the citizens informed is an obligation of the Government.”

The Court then proceeded to give directions for mass awareness through slide shows,
Radio and T.V. programs on environment. Notably, the Government was directed to
make environment a compulsory subject at school level and that it be taught at all
levels of education. The case proceeded out of a plea to implement Rule 5 (xii) which
deals with collection and dissemination of information in respect of matters relating to
environmental pollution. The Orissa High Court in a case relating to noise produced
by loudspeakers and fireworks has directed that:

“The subject of environment protection may be made compulsory at school,

college and university levels; and that the press and media should play a
constructive role to highlight disastrous effects of noise pollution and its
remedy.”78

76
(2007) 8 SCC 583.
77
(1994)1 SCC 358.
78
Bijayananda Patra v. Distt. Magistrate, Cuttack, AIR 2000 Ori 70 at 77.

249
6.4.2.3. Environmental Clearance Regulation, 2006 and its Enforcement by the
Judicial

The Environment Clearance Regulation, 2006 is in suppression of the notification

relating to Environment Impact Assessment. It has been issued in the exercise of the
powers conferred by Sec. 3(1) and (2) (v) of the EPA read with Rule 5(3) (d) of the
Environment (Protection) Rules, 1986. The Regulation provides that:

“Construction of new projects and activities, expansion, or modernization of

existing one‟s before this notification will not be undertaken on and from the
date of its publication and without the prior environmental clearance from the
Central Government or by the State Level Environment Impact Assessment
Authority (SLEIAA) duly constituted under this regulation.”

Courts have persisted on obligatory execution of this provision on various occasions.

In Vedire Vankatta Reddy v. Union of India79, it has been made clear that:

“As environmental clearance is mandatory procedure under notification must

be strictly followed. Only on such clearance by the Impact Assessment Agency
of the Central Government, the project of construction of dam by the State
Government of Andhra Pradesh to proceed ahead with the implementation of
dam construction project till such clearance is obtained.”

In the case of Narmada Bacho Andolan v. Union of India 80 , the environmental

clearance was given by the Central Government in 1987, much prior to above
notification of 1994. However the dispute about the elevating the height of the dam
was also settled by an award given in 1978. Thereafter, the construction was taken up
in 1987. The writ was filed to challenge the construction of and raising the height of
dam in 1994. The Apex Court observed that:

“When projects are undertaken and hundreds and crores of public money are
spent, individual and the organization, petition in the garb of public interest
litigation cannot be entertained. As the project commenced long back, it does
not require environment impact assessment as required by the above
notification.”

79
AIR 2005 AP 155.
80
(2000) 10 SCC 664.

250
The Apex Court in M.C. Mehta v. Union of India81, made it clear that:

“Though the notification dated 29-1-1994 is not applicable to minor mineral

but having regard to degradation of environment and risk involved to human
health and ecology, the EIA is must. Moreover, the notification is also
applicable when renewal of mining in Delhi and Haryana region of Aravalli
hills causing environmental degradation was challenged.”

The higher judiciary appointed „monitoring Committee‟ to examine the issue with
certain directions.

6.4.2.4. Pollution Fine and Exemplary Damages Enforcing by the Judiciary

The Apex Court has interpreted Sec. 15 of the EPA in a dynamic style. Sec.15
provides punishment and penalty for the violation and non-compliance with the
provisions of the Act.

The Supreme Court in M.C. Mehta v. Kamal Nath82, was declared that:

“Exemplary damages are different from the fine envisaged under the Act. The
considerations for which „fine‟ can be imposed upon a person guilty of
committing an offence are different from those on the basis of which
exemplary damages can be awarded.”

The Apex Court imposed pollution fine for pollution due to industrial activities in
M.C. Mehta v. Union of India 83 , Vellore Citizens Welfare Forum v. Union of
India 84 and M.C. Mehta v. Union of India 85 (Calcutta Tanneries Case), several
factories were operating in violation of the mandatory provisions of the Water Act
and EPA. The Apex Court was also imposed similar fine in the case of Enviro-Legal
Action v. Union of India86. Taking cue from Article 32, it was also directed that:

“The fine be deposited in the „Environment Protection Fund‟ which was to

be utilized for compensating the affected persons and for restoring the
damaged environment.”

81
(2004) 12 SCC 18: AIR 2004 SC 4016.
82
(2000) 6 SCC 213.
83
(2000) 6SC 1997.
84
AIR 1996 SC 2715.
85
(1997) 2SCC 411.
86
AIR 1996 SC1069.

251
Pollution fine cannot be forced unless there has been a prosecution and proof of fault
for any offense under the Act. Inherent power jurisdiction under article 142 cannot be
invoke by Supreme Court to impose pollution fine. The Court cannot overlook or
bypass the substantive arrangements of a statute and pass any order under Article 142.
That is to say that this Article cannot be squeezed into help in a circumstance where
action under the Article would amount to negation of any specific provision of the Act
itself. As such, Article 142 cannot be used as a pretext to overlook express statutory
provisions so as to build a new edifice where none existed earlier. It is a settled
principle that something cannot be done in a roundabout way if it cannot be
accomplished directly.

Nevertheless, „exemplary damages‟ can be granted since pollution is a civil wrong

under the law of tort. Pollution is a tort against the community as a whole.
Accordingly, any person who is found liable of causing any injury, damage,
destruction or otherwise by way of pollution shall be liable to compensate for the
harms for reclamation of environment and ecology. He has additionally to pay
damages to the individuals who have endured misfortune or suffered loss because of
the act of the guilty party.

6.4.2.5. Judiciary through Interpretation of Environmental Laws Implementing

the Principles of Sustainable Development

As observed in earlier chapters, the Apex Court has tried to balance the dual needs of
development process and environment protection at the same time without sacrificing
one for the other. As a developing country with growing economy, India cannot
afford to assign a backseat to economic progress to save environment. She has to
devise means to fight on both fronts without any „Faustian compromise‟. In this
context, the Indian judiciary has shown great sense of pragmatism by adopting a
practical approach to protect the environment by invoking the principle of
„Sustainable Development‟ keeping in outlook the requirement of economic
development of the developing country. On several occasions, the court has
interpreted and executed the doctrine of Sustainable Development through the
provisions of specific environmental jurisprudence in India.

252
The Goa Foundation case87 is an appropriate illustration of this approach. In this case
petition was filed to force the Railway Corporation to acquire environmental
clearance from the Ministry of Environment and Forest under the EPA, 1986 for the
part of alignment passing through Goa. The petitioners contended that the proposed
alignment was planned and undertaken without an sufficient EIA and Environment
Management Plan and was destructive of the environment and ecology.
Consequently, it was prayed that all work should be withheld until such
environmental clearance is obtained.

The judiciary after reviewing the arguments and the facts presented before it, refused
to exercise its writ jurisdiction over a matter of national importance and significance.
It held that:

“The claim of the petitioners that the alignment would have devastating and
irresistible impact upon the Khajan lands is without any foundation and the
extent of damage is extremely negligible compared to the benefits that would
accrue to the general public throughout the konkan area.”

Hon‟ble Court remarked that:

“No development is possible without some adverse effect on the ecology and
environment but the projects of public utility cannot be abandoned and it is
necessary to adjust the interest of the people as well as the necessity to
maintain the environment.”88

The Apex Court further stated that:

“The balance is to be struck between the two interests and this exercise must
be left to the persons who are familiar with and specialized in the field. We
decline to exercise our writ jurisdiction in such cases. The machinery of the

87
Goa Foundation and Another v. the Konkan railway Corporation and Others, AIR 1992 Bom. 471
(DB).
88
The Goa Foundation and Another vs The Konkan Railway Corporation and Others, available at:
https://www.ecolex.org/details/court-decision/the-goa-foundation-and-another-vs-the-konkan-
railway-corporation-and-others-a8ba46e8-1639-42b9-b876-687bdcb615e3/ (last accessed on 28
November 2017).

253
 court should not be used for sub-serving the private interest or the interests of
a local area to the detriment of the public at large.89”

In consonance with the doctrine of “Sustainable Development”, a crucial attempt was

made in the verdict of Karnataka Industrial Areas Development Board v. C.
Kenchappa and Ors90, to hit a golden balance between the economic progress and
environmental protection. The Respondents agriculturists, who were affected by the
acquisition of lands of different villages, filed a writ petition under Article 226 of the
Constitution with a prayer that the appellant Karnataka Industrial Areas Development
Board (KIADB) be directed to abstain from altering the lands of the respondents for
grazing their cattle. The Apex Court held:

“We direct that, in future, before acquisition of lands for development, the
consequences and adverse impact of development on environment must be
properly comprehended and the lands be acquired for development that they
do not gravely impair the ecology and environment.91”

The Supreme Court also direct:

“The appellant to incorporate the condition of allotment to obtain clearance

from the Karnataka State Pollution control Board before the land is allotted
for development.”

The above mentioned directory condition of allocation lands be converted into a

compulsory condition for all the projects to be sanctioned in future.

In State of Himachal Pradesh and Others v. Ganesh Wood Products and Others92, a
S.L.P. arose from a decision of the H.P. High Court disposing of 8 writ petitions about
the making of katha. Katha is a essential component in pan and pan masala derived
from the khair tree, and creation of industrial units with the consent of Industrial
Products Approval and Renewal Authority (IPARA) or Director of Industries. After
hearing the parties and perusing relevant records, the Apex Court stated that:

89
Ibid.
90
AIR 2006 SC 2038
91
Ibid.
92
(1995) 6 SCC 363.

254
 “The obligation of sustainable development requires that proper assessment
should be made of the forest wealth and the establishment of industries based on
forest produce should not only be restricted accordingly, but their working should
also be monitored closely to ensure that the required balance is not disturbed.93”

The above judgment is indicative of the judicial position that as far as forest based
industries are concerned; there is no absolute or unrestricted right to set up industries.
This holds true even if we consider the policy of liberalization because it has to be
understood in the light of national forest policy as well as various legislations relevant
in that behalf which invariably provide that right to establish forest based industries is
not absolute.

The Apex Court has further held that:

“The court shall take into account the estimate of raw- material (khair trees)
and its expected availability at present and in the years to come to arrive at
any decision.”94

The government was further directed:

“To appoint an expert body to undertake survey and assess availability of

khair wood. Meanwhile, new industries and manufacture of Katha were to be
suspended by the Government until the question of availability of raw material
was settled.”

The Apex Court has thus clearly stated that:

“The needs of environment protection and preservation should be balanced

with the needs of economic development of the country.”95

The Apex Court in A.P. Pollution Control Board case, Vellore Tanneries case and
The Taj Trapezium case has unhesitatingly invoked the “precautionary principle”
and “polluter pays principle” as part of the law of the land. It has given effect to the
various facets of Sustainable Development by freely relying on international
instruments and global environmental jurisprudence. This behaviour of the judiciary

93
Ibid.
94
(1995) 6 SCC 363.
95
BSES Limited v. Union of India, AIR 1998 SC 812.

255
shows dynamism on its part to apply the doctrine of international law in India for
successful implementation of environmental jurisprudence.

6.4.2.6. Injunctive Relief by the Judiciary

Injustice relief is based on the principle of implied powers and solid execution of
public welfare laws the Madras High Court in Pondicherry Papers Ltd. v. Central
Board for Preservation and Control of Water Pollution96, has held that:

“The courts have broad powers to give injunctive reliefs under section 33 of
the Water Act and to remove the pollution or prevent it.”

The Court on the receipt of an application is authorized to give any direction or order
which it deems fit. If the judiciary gives any direction or order to restrain any
individual from polluting water in any stream or well, it may:

a) Direct the individual to stop from causing pollution and to eliminate from such
stream or well such substance; and

b) If the person does not eradicate such substance, allow the Board to eliminate
and discharge of the substance. If the board removes the substance, the cost so
incurred can be recovered from the person concerned as arrears of land
revenue or of public demands.

6.4.2.7. Judicial Criticism on Lethargy of Boards

Pollution boards and other Environmental agencies have constantly been guilty of
dereliction of duty towards Environment. The Supreme Court has on numerous
occasions, expressed its resentment on their working and has criticized their lethargy.
They often fail to take coercive action against violaters. In the case of Uttar Pradesh
Pollution Control Board v. Modi Distillery 97 , the restrictions and scope of the
prosecuting authority was the subject. The case also raised the question of
competence of criminal sanctions against enviro-crimes, and required more assurance
on the part of the pollution control agencies in commencing prosecution. In that case,
the respondent, an industrial unit of company, Modi Industries Limited, was being
prosecuted for releasing dangerous industrial waste without the approval of the State

96
Cr.M.P.No. 4662 and 4663 of 1978 (March 21 1980).
97
AIR 1988 SC 1128, at 1132.

256
Pollution Control Board. The industry as such was not made a party to the
proceedings. In application filed under Sec. 482 of the Cr.P.C., the Allahabad High
Court stated that:

“This lapse was detrimental to the validity of process against the managing
director, chairman, vice chairman and directors of the company who were in
the array of parties.”

Whereas examining that such technical defects could have been corrected by an
modification of the complaint. The higher judiciary was of the view that:

“The office bearers of a company shall deem to be guilty of the offences

committed by the company. The court found it regrettable that due to sheer
negligence of the board and its legal advisors, large business houses were
allowed to escape with impunity for the consequences of breaches of the
provision of the law committed by them.”

In Suomotu v. Vatva Industries Association, Ahmadabad 98 , this case creates a

unusual condition in which the board officials presented a letter to the Gujarat High
Court and appealed for a direction to respondent to discontinue the illegal disposal of
industrial waste. Very often courts issue a writ of mandamus and direct the boards to
take measures when the respondent not complies with their obligations. Strangely,
this case presents a reverse process where the board asks the court to take steps. The
Gujarat High Court stated that:

“Such a course is nothing but neglect of obligation on the part of the board. It is
the function of the board to take immediate action and stringent action against the
units that dump hazardous waste and release untreated effluents. If the board
waits for a direction from the court, the situation will help nefarious activities to
continue under the pretext that the case is pending before the high court.”

6.4.2.8. Judiciary connecting the missing links between Forest, Wildlife and
Environmental Clearance

The task of higher judiciary with respect to forest and wildlife has undergone a
change from being initially concerned with expanding the scope of protection and

98
AIR 2000 Guj 33.

257
preservation rules and regulations. As, chiefly the Forest Conservation Act, 1980 and
to some extent Wildlife (Protection) Act, 1972 to a more practice duty of serving as
evaluation authority over the Ministry of Environment and Forests.

In 1990s the Indian judiciary evolved a new method and to some degree a unique way
of saving the forests and wildlife by judicial activism. The intervention of higher
judiciary in the subject of forest conservation and preservation over the last four
decades is unmatched in terms of its scope and extent. The Indian judiciary through
its several decisions has redefined the meaning of forest and wildlife, imposed
limitations on the setting up of wood-based units. It has also ensured the setting up of
new bodies such as “Compensatory Afforestation Fund Management and Planning
authority (CAMPA)” so that money received form-distracting forestland are used
suitably. This accomplishment is due to broadminded approach of the judiciary in
entertaining several petitions connected to forest matters in 1980s and 1990s.

The two cases decided by the Apex Court such as Godavarman case and WWF case
opened the doors for judicial intervention. Justice Krishna Iyer put the issue more
quaintly. He said that:

“The courts are not hotels that they can turn away an applicant on the pleas
that they are overbooked.”99

There have been various important conclusions in the Godavarman case over the last
three decades which have had lasting effect in domain of environmental
governance.100

The instructions involving to the ban of mining in the Aravallis are of immense
significance as they directed the Haryana Govt. to do away with unregulated mining
from vast stretches of the ancient hill range. One key positive pointing this regard is
that the order was passed in a mostly non-adversarial style as the Haryana
Government agreed to the prohibition on mining issues to certain relaxation. 101

Similarly, the sentencing of the then Forest Minister and the Additional Chief
Secretary of the State of Maharashtra for committing contempt by permitting saw

99
As quoted in Justice Ruma Pal (2008), Judicial Oversight or Overreach‟(2008) 7 SCCJ09.
100
See, orders of the judiciary dated 28-11-2006 and 15-12-2006.
101
See, order of the judiciary dated 8-10-2009.

258
mills to function in infringement of the Supreme Court orders to the contrary and also
in violation of existing forest laws has great value as a precedence to deter potential
violators.102

However, as important as the decisions in Godavarman case are, they are not the only
decisions rendered on forest conservation. The instructions in Centre for
Environmental Law, WWF v. Union of India103, are equally significant, if not more
in some respects. This is evident from the order prohibiting the de-reservation of any
forest, national park and sanctuary without authorization of the Apex Court in year
2000. Another noteworthy case is the Goa Foundation case where an interim order
was passed directing that:

“All projects which are located within a distance of 10 kms from boundaries
of national parks and Sanctuaries must be placed before the standing
committee of the National Board for Wildlife (NBWL).”104

The Godavarman case symbolizes maybe the single largest interference by a

judiciary in the globe on any lone subject. It represents in all its innumerable form, an
exceptional judicial attempt to deal with the deforestation, wildlife protection and
forest control problems. It has without doubt given the subject-matter of forest and
wildlife some amount of importance in national policy discussion.

Set the changed at regional, national and global level, it appears that the case of
Godavarman is really a historic one. Even if one day the judiciary decides to finally
dispose of the matters, it will remain unquestionably one of the classic case laws for
the reading of “continuing mandamus” and the extent of PIL.

An outline of the verdicts of the higher judiciary discloses a image of proactive

judicial intervention to implement contamination manage law. In those issues where
industries or factories were found unresponsive in following the rules and regulations
and where authorities were sluggish to take timely action, the judiciary gave strict
directions to the erring factories or industries and required the authorities to monitor
compliance by industries. Judicial intervention with trial procedures was conceived to

102
See, order of the judiciary dated 10-5-2006).
103
Writ Petition (Civil) No. 337 of 1995.
104
Goa foundation v. Union of India writ petition No. 460 of 2004: order dated 4-12-2006.

259
keep away from delay in implementation of criminal sanctions against enviro-crime
offender.

The judiciary went to the level of overlooking technical objections and looking
directly into the matter of the case, with a view to enforcing corporate criminal
liability and corporate social responsibility.

The High Courts of the different States have been equally proactive in exercising their
power and thereby forcing the government and its agencies in fulfilling
responsibilities and obligations in respect of protection and preservation of natural
environment. The court‟s strategy reflected in the verdicts make stronger the hands of
enforcement bodies. At the same time, the court‟s attitude has been vigilant.
Vexatious and frivolous litigation has not been allowed under the guise of measures
for controlling pollution, the executive bodies have not been permitted to break the
limits of their authority in a spirit of environmental over enthusiasm.

6.5. National Green Tribunal

It is a topic of common knowledge that the Apex Court in India is overloaded with a
huge backlog of cases. It may be respected that in order to have successful prevention
of environmental pollution, environmental issues should be disposed off quickly,
which is impossible in the present situation of judicial management. Further, the
Court could not deal cases involving pollution of air and water and other related
issues. 105 These cases have added tremendous burden on the High Courts and the
Supreme Court.106 Therefore, these courts wanted an urgent call for a substitute forum
so that environmental cases could be disposed off without much delay. The Supreme
Court in many cases opined that:

“It would be desirable to have the creation of “environmental courts on the

regional basis with a professional judge and two experts drawn from
the….ecological science research group.”107

105
M.C. Mehta v. Union of India & Ors., AIR 1997 SC 734.
106
Rathin Bandopadhyay and Rajendra Ohar Dubey, et.al.,op.cit. at 06.
107
M.C. Mehta v. Union of India, AIR 1987 SC 965 at 967.

260
Prof. Upendra Baxi has expressed a similar view that:

“A single judicial forum with jurisdiction under the Environment Act and
other related Environmental Acts over both criminal prosecution and civil
claims for violation of the laws should be established. From this forum,
appeals could go to an appellate court of the status of the High Court with the
facility of another appeal to the Supreme Court under Article 136 of the
Constitution of India.”108

Prof. Upendra Baxi was also of the opinion that:

“Victim groups and public interest groups should have access to these
courts.”109

It may be well-known that Principle 13 of the Rio Declaration, 1992 states that:

“States shall develop the national law regarding liability and compensation
for the victims of pollution and other environmental damage”.

To realize the above imperative and in order to provide a forum for successful and
speedy disposal of cases involving multidisciplinary issues relating to environmental
protection. That may mitigate the procedural ills of the regular courts in case of any
misfortune happening while managing any hazardous activities; the legislature
enacted the National Green Tribunal Act, 2010 (herein after referred to as NGT).110
NGT was formed to give effect to India‟s duties arising out of numerous resolutions
taken at international conventions to which India has been a signatory. The
acknowledgment of “right to healthy environment” as a integral part of right to life
under Article 21111 was also an enabling pronouncement that necessitated setting up
of some dedicated body on environment.112

108
See, U. Baxi, Environmental Protection Act: An Agenda for Implementation 10 (N.M. Tripathi
Publisher, Bombay, 1987).
109
C.M. Abaraham, Environmental Jurisprudence in India 68 (Kluwer Law International, Hague,
Netherland, 1999).
110
The immediate reasons that prompted the Indian Parliament to enact the Tribunal Act has been (i)
the inordinate delay involved in the redressal of environment related grievances like the one
involving the Bhopal Gas Leak case (Charan Lal Sahu v. Union of India, AIR 1990 SC 1480) and
(ii) the inadequacy of the existing judicial system to provide adequate relief as evidenced in the
Oleum Gas Leak Case (M.C. Mehta v. Union of India, AIT 1987 SC 965).
111
Virender Gaur v. State of Haryana (1995) 2 SCC 577 at para 7.
112
ArunaVenkat, Environmental Law and Policy 123 (PHI Learning Private Limited, New Delhi,
2011).

261
The Act establishes a specialized Green Tribunal113 headquartered currently in New
Delhi with five NGT benches located in different parts of the country (The tribunal
also sits in Bhopal, Pune, Kolkata, Allahabad and Chennai). Thus, the Tribunal with
its Eastern, Central, Western and Southern Zonal benches reaches all corners of the
country and ensures easy accessibility to environmental justice and expeditious
disposal of cases.114 There is also a mechanism to set special circuit benches.115 The
NGT Act provides that any person can appear before it by instituting a civil case to
enforce any legal right involving to protection of environment or raise any substantial
question relating to environment.

The National Green Tribunal (NGT) seeks to increase accessibility to legal and
administrative measures, containing restore and remedy, and to extend national laws
relating accountability and damages for the victims of enviro-crimes and other
environmental damage.116 The National Green Tribunal has been very proactive in
taking measures and giving directions pertaining to pollution of air and water, aided
by environmentally conscious statues such as the Air Act, 1981 and the Water Act,
1974. Behind this lies the NGT‟s commitment in ensuring a healthy environment and
to nip in the bud issues such as environment related displacement of people, where
defaulting agencies and authorities can be called to task.

From the inception of NGT till 31st January 2017, a total number of 23,626 cases were
filed before the NGT out of which 19,066 cases stood disposed off, thus, leaving a
pendency of 4,560 cases in all the NGT benches.117 Some examples to show case this
are Ambai Taluk Tamirabarani Vivasayigal Nala Sangam v. Union of India &
Ors.118 These applications were originally filed as writ petitions before the Madras
High Court, seeking inter alia nullifying of quarrying lease granted to a industry, and
rejection of approval to another corporation for granite mining in certain lands in
Tirunelveli region. Since the said lands were very close to the Kalakad-Mundandurai

113
See, National Green Tribunal Act, 2010, s. 3 and 4.
114
National Green Tribunal, available at: http://www.greentribunal.gov.in/NGT_CONFERENCE/
about-the-organisers.html, (accessed on 21st December, 2016).
115
Everything you need to know about the National Green Tribunal (NGT) available at:
http://www.conservationindia.org/resources/ngt (last visited on 30 th November 2017).
116
Paramjit S. Jaiswal, Nishtha Jaswal et.al., Environmental Law 391 (Allahabad Law Agency, 4th
edn., 2015).
117
NGT disposed of over 19,000 cases from 2011-17 available at: http://www.ptinews.com/news/
8596770_NGT-disposed-of-over-19-000-cases-from-2011-17.html, (last visited on 11th April,
2017).
118
Applications No. 256, 259 of 2013 (SZ).

262
Tiger Reserve and just about situated in the Tamirabarani riverbed. The grounds
mentioned for this was that the lands were situated within a 3.5 km radius of the Tiger
Reserve, and within a 500 m radius of the Tambarbarani River, and that the quarrying
activities were therefore responsible to cause injury or harm to the ecology of the
Tiger Reserve and the river. Moreover, the Tribunal found that:

“The Granite Conservation and Development Rules (GCDR) were a specific

body of legislation governing the issue, and therefore excluded the application
of the more general provisions of the Environment Protection Act and the EIA
Notification, 2006.”

It Court also found that:

“The Tamil Nadu Minor Mineral Concession Rules, 1959 were framed in
accordance with the requirements of the Mines and Minerals (Development
and Regulation) Act, and were not ultra-vires the powers of the state
legislature. In view of the requirements under the GCDR having been
complied with by the concerned Respondents, the applications were
accordingly dismissed as devoid of merits.”

In Vardhaman Kaushik v. Union of India119, is an ongoing case at the Principle

Bench of the NGT in Delhi, filed in the form of a PIL vis-à-vis rising air pollution in
the capital city of Delhi which has forced people to leave the capital of India, to more
greener places, free from pollution. The exacerbating pollution had led to a rise in the
particulate matter in the air owing to dust which was affecting human health
adversely; the problem was further compounded by the smoke released from
automobiles causing Asthama and other respiratory diseases. To curb this menace
and improve ambient air quality in Delhi various measures such as the ban on 10 year
old diesel vehicles and issuance of guidelines with respect to covering of building
construction materials when being transported or stored, burning of waste and so on
were put in place. The idea behind these measures was to make basic and necessary
environmental conditions such as good air quality suitable for habitation.

119
Original Application No. 95 of 2014.

263
In Vikrant Kumar Tongad v. Environment Pollution (Prevention & Control)
Authority and Ors.120, this case related to crop residue burning which is major reason
for air pollution in Delhi and NCR region. The NGT in this case noted that:

“Agriculture residue burning causes serious environmental hazards. It

pollutes the air as excessive matters combine with other pollutants, causing
serious issues in relation to public health. Ambient Air Quality in the major
cities of all these States, particularly, in NCT Delhi has been found to be more
damaging to human health. Therefore, in the present day, it is not acceptable
to advance an argument that crop burning is a necessary. There are clear and
specific technical alternative resolutions to utilization instead of agriculture
residue burning.”

In the recent judgment of the NGT in Sukhdev Vihar Residents Welfare Associations
v. NCT of Delhi, the bench stated that:

“The need of the hour is to ensure processing of the Municipal waste with
least residue by recourse to developed and tested technologies in that behalf.
This waste is going to increase by the day. The local authorities ought not to
take it as a commercial venture but should be very cautious of the fact that it is
their statutory duty to process the municipal solid waste in accordance with
the Rules of 2016 and ensure that there are no adverse impacts on public
health and natural environment..”

The NGT in RELA & Anr. v. State of Andhra Pradesh &Ors.,121 hearing a petition
filed by Readiness for Empowerment through Legitimate Action (RELA) against the
Government of Maharashtra, Odisha, Andhra Pradesh, and Telengana with regard to
unlawful sand mining activities without prior permission of Environment Board and the
failure of the State Government to take serious action. The NGT expressly stated that:

“All the State Governments shall ensure that there is no illegal, unauthorized
and mechanized mining of the river beds contrary to/without Environmental
Clearance and the consent of the Pollution Control Boards.”

120
Execution Application No.12/2016 in OA NO.118/2013.
121
Original Application No. 516 of 2015.

264
Environmental activists and environmentalist are now gripped by the forceful
personality of this issue and are seriously looking forward to its verdict, which will
optimistically transform the existing dilapidated conditions of the national rivers.

6.5.1. Direction Issues by NGT

The NGT issued a various directions and orders from its inception. These are as
follows:

1. NGT Bhopal lifts 200 m rider on Kaliasot green belt: NGT has lifted a
prohibition on development approval and structures in Bhopal within 200
meter of the green belt region near Kaliasot River. Now, construction
movement would be constrained only in the green belt region, which is 33
meter on either side from the riverbank.122

2. On Ganga pollution issue the direction of NGT to UP government: The

NGT has directed the U.P. government and its pollution control board to
explain the public about pending proceedings as it may order shifting of
polluting industrial units situated on the banks of Ganga.123

3. On violation of environment norms by Talabira-1 Coal Mine the NGT

issues notices: NGT, Eastern Zone Bench, Kolkata has issued notices to
Ministry of Environment and Forest, Odisha Government and Odisha State
Pollution Control Board over plea for cancellation of environment clearance
granted to Talabira-1 open cast coal mining near HirakudReservoir.124

4. NGT appoints panel to look into grossly polluting units: The NGT has
setup a committee to investigate into the grossly polluting industrial units
situated along the banks of Ganga River and notify it about the quantum of
industrial waste released by them in the Ganga.125

122
RageshriGanguly, Kaliasot green belt: NGT Bhopal lifts 200 m rider, The Times of India, Oct. 10,
2015.
123
NGT direction to Uttar Pradesh government on Ganga pollution issue, The Economic Times, Jan
31, 2016.
124
NGT issues notices over environment norm violation in Talabira-1 Coal Mine, The Hindu,
Sunday, Feb. 7, 2016, p. 02.
125
NGT appoints panel to look into grossly polluting units, The Hindu, Thursday, Feb. 11, 2016, p. 07.

265
 5. Delhi High Court notice on PIL against Odd-Even Scheme: The writ
petition, filed by NGO campaign for people‟s participation in development
planning, has alleged that:

“The rise in vehicle-generated air pollution to non-enforcement of the Motor

Vehicles Act, 1988, which prescribes punishment and fines for driving a
polluting vehicle. The petitioner also sought directions to the Centre and the
L-G to strictly enforce and implement Section 190 of the Motor Vehicle Act to
prevent polluting vehicles from being driven on the roads.”126

6. Polluter Pays Principles to Pay and Pollute Principle: In the case of Sri Sri
Ravi Shankar‟s Art of Living, NGT permitting the Art of Living foundation
to organize the “World Culture Festival” between 11th to 13th March, 2016 on
the floodplains of river Yamuna and first pay fine of Rs. 5 crore which would
be used to restore the floodplains. Expert reported that there is irreparable
damage to the floodplains of Yamuna by the Art of Living.127 A detailed study
by an expert committee fixed the quantum of damage at Rs.28.73 crore for
physical rehabilitation of the river plains and Rs.13.29 crore for biological
rehabilitation128 and from that of permanent damage to now contending that it
will take 10 years to restore.

The new principle evolved by the NGT i.e. “Pay and Pollute Principle”, this
innovative attitude of NGT is not beneficial for developing country like India. This is
a bad precedent in the eye of law.

6.5.2. Access to Justice under NGT

Access to justice before NGT is very easy and inexpensive. Any person aggrieved or
otherwise can invoke the jurisdiction of the NGT in terms of Sec. 14 to 16 of the
National Green Tribunal Act, 2010. It serves the twin purpose of litigation satisfaction
and Sustainable Development with due protection of environment. The decisions are
generally informed by principles such as the doctrine of “sustainable development”,

126
High Court notice on PIL against Odd-Even Scheme, The Hindu, Sunday, Feb. 14, 2016, p. 06.
127
Sri Sri YamunaMess: NGT slaps Rs 5 crore fine on Art of Living, allows World Culture Festival
on Yamuna floodplains, available at: http://www.firstpost.com/india/world-culture-festival-ngt-
clears-aol-event-but-agencies-face-flak-for-failing-responsibilities-2666210.html, (accessed on 21st
May, 2016).
128
A „joke‟ by the NGT, Frontline, Oct. 13, 2017

266
the doctrine of intra-generational and inter-generational equity, the principle of public
trust, precautionary principle and the polluter pays principles.

6.5.3. Issues and Challenges before National Green Tribunal

There are some of the features regularly in the current discourse around the natural
environment and its protection and preservation. At this juncture, it would be
appropriate to discuss various challenges faced by the NGT. These are as follows:

1. Execution of judgment and lack of co-ordination between regulatory

authorities.
2. One of the biggest challenges to environmental protection is the lack of
information and knowledge about the effects that our activities are having on
the environment. Due to this, people are not approaching the NGT.
3. The NGT has limited jurisdiction i.e. only civil jurisdiction and not a criminal
jurisdiction.

The commencement of the NGT under the National Green Tribunal Act of 2010 has
been a hopeful step towards early disposal of environmental litigation. This Tribunal
can truly be called „special‟ because India is the third country following New Zealand
and Australia to have such a forum. It has been observed that:

“India has the most progressive and active environmental Tribunal. The need
of the hour, however, is building capacity and increasing awareness amongst
people, enabling them to come forward to protect the environment around
them. Locals should be able to enforce their constitutional right to a healthy
environment and protect their forests and wildlife.”129

The NGT is the most reliable and progressive environmental forum in India. Unlike
the Apex Court, the NGT does not normally support infrastructure schemes, nor does
it cause a delay in disposing the matters before it. It had redefined the task of
environmental experts and the criterion to appoint such experts. NGT has been mostly
successful in executing its orders, which generally relate to saving environmental
clearances. The regional green tribunal seems even proactive and aggressive than the

129
National Green Tribunal – Challenges and Opportunities Thus Far, Two Years of National Green
Tribunal. Centre for Environmental Law, WWF, India, available at: http://awsassets.wwfindia.org/
downloads/two_years_of_ngt___18_oct__12.pdf, (accessed on 12 th Oct. 2017).

267
NGT in Delhi, as the regional judges are courageous and have no desire for national
positions.130 Lastly, the NGT seems to have encouraged a number of advocates all
over nation to specialize in environmental jurisprudence. But the new principle
evolved by the NGT i.e. “Pay and Pollute Principle”, this innovative approach of
NGT is not valuable for developing country like India. This is a dreadful precedent in
the eye of law. NGT should avoid these kinds of innovation.

6.6. The Role of Judiciary of other Countries in Environmental Protection and

Preservation

The Indian judiciary has made outstanding contribution to the development of

environmental jurisprudence. It has come up with sui generis mechanisms to deal
with emerging environmental concerns. Here focus has been on the comparative
analysis of Indian judiciary‟s role in environmental protection and preservation by
juxtaposing it with that of USA, UK and Canada. USA and Canada have been chosen
as they have federal structure and UK has obviously influenced courts in India as the
latter has inherited the common law tradition.

6.6.1. The Role of Judiciary in United States of America in Enviro-Justice

The Comparison of judicial attitude towards environmental justice between USA and
India suggests that the while the Indian judiciary has tried to balance the need for
environment protection and requirement for economic development, the judicial arm
in USA has more or less toed the traditional line of judicial restraint and has showna
pro-development attitude. The US courts have not been as forthcoming as Indian
counterparts in issues concerning environment and ecology.

In United States, Congress makes environmental laws on the basis of environmental

and economic concerns in its own wisdom. Corporate lobbies and liberal-capitalist
ideas have a significant say in the legislative process in America. As is common with
representative institutions of vibrant democracies, Congress is often unable to reach a
consensus; so compromises on vital issues are made between the parties. As a result, the
environmental laws that have been passed leave many important issues unresolved.
Ambiguity is therefore a common problem in various environmental statutes. Most

130
Armin Rosencranz and Geetanjoy Sahu, “Assessing the National Green Tribunal after Four Years”
5 JILS 200 (2014).

268
environmental statutes contain grand statements of legislative purpose, but their broad
guidelines leave the detailed standards to be filled by implementing agencies or the
courts. As such, great deal of policy-making shifts from Congress to agencies.

Furthermore, Courts are often called upon to resolve institutional and policy conflicts
between agencies and industry, between agencies and environmental groups, and
between federal and state authorities. The Supreme Court exerts its power to interpret
statures as the final authority. Often the Court‟s interpretations of environmental
statures can create significant institutional and policy implications. The main reason for
such conflict is the power of judicial review of the court for administrative action. The
vested economic interests employ judicial review to avert or avoid the impact of
environmental regulations. Administrative Procedure Act, 1946 (herein after used as
APA) allows the judiciary to have oversight of how administrative agencies use or
misuse the authority that congress has conferred upon them. Under section 10 of APA:

“A person suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action, within the meaning of the relevant
statute, is entitled to judicial review thereof.”131

The scope of the judicial review includes whether the agency acted in an arbitrary or
capricious way or an abuse of discretion, or in excess of statutory authority, or without
observance of proper procedures, or in a way unsupported by substantial evidence.132 The
courts have had to devote substantial time in interpreting the procedures for how
environmental judicial review should take place, and this has delayed implementation of
the environmental statutes. The greatest use of judicial review has been made by the
corporate economic interests. For example, Lead Industries Association v.
Environmental Protection Agency (EPA) 133 , challenged the EPA‟s evidence in
establishing the exposure standards in the National Ambient Air Quality Standards to
protect the public health from exposure to lead. The standard was upheld, ruling that:

“Clean Air Act did not allow economic factors to limit the establishment of health
based standards. It clearly proves that use of judicial review, makes the judicial
process complicit in the executive branches efforts to avert or avoid strengthening

131
5 US code, s. 702.
132
Ibid, s. 706.
133
478 f.2d 1130 (DC Cir.,1980).

269
 of environmental law. Leading environmental law commentators have branded
this abuse of administrative law as sophisticated sabotage.”134

To take an example, Nicholas Robinson has observed that many rulings of the
Supreme Court of USA, have limited the scope of environmental law. One pattern of
US Supreme Court cases illustrates this phenomenon. As a result, the scope of EIA
under the National Environmental Policy Act has been gradually limited.135

State Courts have also undertaken some procedural reforms. One of such measures
places the burden of proof on the party who is alleged to be harming the environment,
to show that the threatened harm is or will be avoided. Another method adopted by
the court is the technology forcing. One of the innovations is the Clean Air Act,1970
it establishes a clear duty to protect the public health form air pollution. It was no
defense to contend that conduct was authorized and useful, as in the burning oil or
coal to produce needed electricity. It simply did not sanction poisoning the air that
everyone must breathe. Each State‟s implementation plan was to assure that all the air
within the State meets this standard.

In Union Electric Company v. Environmental Protection Agency (EPA)136, the USA

Supreme Court held that:

“The statute establishes clear public health standard that had to be met by
finding new technology or closing down the polluting activities. The Court
allowed Missouri, in its implementation plan, to force the company to find or
invent the needed new technology. This inducement process has been termed
technology forcing. In India, the expansion of the rule of locus standi has
allowed a robust trend of public interest litigation in environmental matters.”

In USA, each of the major federal environmental statutes makes a provision for
citizens to enforce their provision. For instance, the Clean Water Act provides that:

“Any citizen may commence a civil action on his own behalf against any
person (including the USA and any other governmental instrumentalities) who

134
Mc Garity, T.O., Shapiro, S., and Bollier D., Sophisticated sabotage: intellectual Games used to
Subvert Responsible regulation (Washington, DC: ELI,2004)
135
Robinson, Nicholas, Louis J. et.el. (eds), The Role of Judiciary in Environmental Governance
:Comparative Perspectives 197 (USA, 2014).
136
427 US 246(1976).

270
 is alleged to be in violation of the Act or a standard adopted under its
authorities.137”

This provision has been widely used by many NGOs. Defendants have fought against
expanding the role of citizens‟ suits, and the USA Supreme Court has accommodated
them.

In Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation138, the court ruled

that:

“a citizen suit under the Federal Water Pollution Control Act, 1948(Clean
Water Act) could not continue once the polluter ceased discharging. Since,
Section 505 conferred authority to sue against persons „in violation,‟, meaning
a continuous and on-going act. Once the polluter stopped discharging wastes,
citizen enforcement is no longer authorized. In a stark contrast to this view,
the Indian judiciary has shown dynamic approach in implementing the
principle of polluter pays and has allowed environmental groups to file case to
secure enviro-justice.”

6.6.2. The Role of Judiciary in Canada

The Supreme Court of Canada has contributed to environmental governance in all

areas of law including private, administrative, and criminal law, and in areas where
there is overlap with competing fields, such as patent and municipal law. It has been
widely recognized that in the last two decades, the Supreme Court of Canada has
made significant contributions to environmental governance by means of its explicit
and consistent‟ recognition of fundamental environmental values.139

This evolution was traced by the court itself in British Columbia v. Canadian Forest
Products Ltd140, where the court started its reasoning with this important contextual
statement: As the Court in Canada (Attorney General) v. Hydro-Quebec 141 ,
observed:

137
The Clean Water Act, s. 505.
138
484 US 49(1987).
139
J.V. DeMarco, “The Supreme Court of Canada‟s Recognition of Fundamental 77. Environmental
Values: What Could be Next in Canadian Environmental Law?” 17 JELP 159 (2007).
140
2004 SCC 38
141
(1997) 3 SCR 213, at para. 85.

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 “Legal measures to protect the environment relate to a public purpose of
super ordinate importance.”

The Court in the case of Friends of the Oldman River Society v. Canada (Minister of
Transport)142, stated that:

“The protection of the environment has become one of the major challenges of
our time.”

The Court in R. v. Canadian Pacific Ltd.143, stated that:

“Stewardship of the natural environment‟ was described as a fundamental

value (para. 55)...”

Also the Court in Canada Ltee (Spray-tech, Societed‟arrosage) v. Hudson

(Town)144, held that:

“Our common future that of every Canadian community depends on a

healthy environment…”

This Court has further recognized that:

“Everyone is aware that individually and collectively, we are responsible

for preserving the natural environment... environmental protection has
emerged as a fundamental value in Canadian society.”

Commentators have observed that these “fundamental environmental values”

recognized by the Supreme Court of Canada include:

“Environmental right;145 the polluter-pays; 146the precautionary principle;147

the principle of inter-generational equity;148 the principle of sustainability;149
and the public trust doctrine.”150

142
(1992) 1 SCR 3.
143
(1995) 2 SCR 1031.
144
(2001) 2 SCR 241, 2001 SCC 40.
145
J.V. De Marco, “The Supreme Court of Canada‟s Recognition of Fundamental 77, Environmental
Values: What Could be Next in Canadian Environmental Law?” 17 JELP 159 (2007), reports that
there are three cases in which the court has referred to environmental rights ... Notably, this has
occurred regardless of whether the Court has been interpreting statutes in a jurisdiction that explicitly
recognizes environmental rights ... or in one that does not. R. v. Canadian Pacific Ltd. [1995] 2 SCR
1031; Imperial Oil v. Quebec Administrative Tribunal [2003] 2 SCR 624; R. v, Hydro-Quebec.
146
Imperial Oil case,

272
Some of the most significant impediments to allowing courts to play a more effective
role-in environmental protection involve issues of procedure and not substance. Most
environmental harms are imposed on large groups of people, and therefore they do not
fit comfortably within the traditional two-party, private law, and adversarial model of
litigation. Many of the innovations which have alleviated procedural barriers such as
standing, intervention, group litigation and costs, were created by the courts
themselves. 151 The barrier of standing prevented those who did not have a direct,
personal interest in a dispute from litigating it.152

The Supreme Court of Canada developed the public interest standing rule153, which
now provides that anyone can bring an issue to court if:

 there is a serious issue to be tried;

 the applicant has a genuine interest in the issue; and

 there is no „other reasonable and effective way to bring the issue before the
Court‟. Interested individuals or groups may also participate in environmental
cases if they obtain leave to act as interveners.154

Scholars have found that:

147
(2001) 2 SCR 241.
148
Friends of the Old man River Society v. Canada (Minister of Transport) [1992] 1 SCR 3.
149
Imperial Oil case, R. v. Canadian Pacific Ltd [1995] 2 SCR 1031; Imperial Oil v. Quebec
(Administrative Tribunal) [2003] 2 SCR 624; R v, Hydro-Quebec, Friends of the Old man River
Society v. Canada Minister of Transport [1992] 1 SCR 3.
150
J.V. De Marco, “The Supreme Court of Canada‟s Recognition of Fundamental as Environmental
Values: What Could be Next in Canadian Environmental Law?” 17 JELP 77 (2007): 159.
151
In some cases, these changes were later included in legislation.
152
The traditional public nuisance rule provided that where harm was imposed on the public
generally, the Attorney General must bring the case to court on behalf of the public, unless any
individual could show special damage. A classic case is Hickey v. Electric Reduction Co. of
Canada Ltd (1970), 21 DLR (3d) 368 (Nfld TD).
153
The test was developed in a trilogy of cases involving challenges to the constitutionality of
legislation: Thorson v. Attorney General of Canada [1975] 1 SCR 138, Nova Scotia Board of
Censors v. McNeil [1976] 2 SCR 265, and Minister of Justice of Canada v. Borowski [1981] 2
SCR-575; and expanded to the administrative law sphere in Minister of Finance v. Finlay [1986] 2
SCR 607. Although not dealing expressly with environmental issues, the rules developed by the
courts above are of direct relevance to the environmental context.
154
Ontario Rules of Civil Procedure, RRO 1990, Reg. 194, (amended to O. Reg. 260/05); Supreme
Court of Canada Rules, SOR/2002- 1456; see also J.V. DeMarco, „Assessing the Impact of Public
Interest Interventions on the Environmental Law Jurisprudence of the Supreme Court of Canada: A
Quantitative and Qualitative Analysis‟, Supreme Court Law Review (2d) 30 (2005): 299; J.
Koshan, „Dialogue or Conversation? The Impact of Public Interest Interveners on Judicial
Decision Making‟, in Canadian Institute for the Administration of Justice, Participatory Justice in a
Global Economy: The New Rule of Law, ed. P. Hughes & P. Molnari (Montreal: Les Editions
Themis, 2004), 246.

273
 “Public interest interveners have strongly impacted on the development of
important precedents in environmental law, in particular by: making new, or
fuller, arguments on points of law; suggesting „novel interpretive approaches‟
to legislative interpretation; bringing inter-disciplinary research findings to
the attention of the court; enlarging the context to include „social, cultural or
economic circumstances‟; and presenting comparative jurisprudence.”

Canadian courts have often sought to indicate that:

“Environmental harm is illegal and offensive and should be treated as such to

achieve the criminal law goals of punishment and deterrence.”

More recent and creative approaches to sentencing have also attempted to emphasize
its potential preventative and remediatory role, which is even more important in the
context of environmental law.

In R. v. United Keno Hill Mines Ltd.155, the offending corporation was charged with
discharging mining effluent into a creek in excess of its water license. The court
provided a detailed inventory of the kinds of harm done by pollution to human health
and the environment, and the problem of overlooking cumulative impacts. 156 While it
conceded that there is a „range of inherent criminality in pollution offences‟, the court
emphasized that:

“Pollution offences must be approached as crimes, not as morally blameless

technical breaches of a regulatory standard.157 The court went on to consider
a range of „sentencing tools‟ beyond the traditional monetary fine, including:
personal liability of corporate directors; 158 continuing judicial orders to
prevent continued violations by repeat corporate offend;159 and the possible
involvement of victims, or at least public interest environmental groups to
personify them, in devising appropriate penalties.”160

155
(1980) 10 CELR 43 (Yukon Terr. Crt.).
156
Ibid. para. 9.
157
Ibid,.para. 10.
158
Ibid., paras 38-48
159
Ibid., para. 53, proposal 9.
160
Ibid., at para. 53, proposal 10. On the facts of this case, the contrition and cooperation of the
corporation, as well as lack of significant environmental harm, led to a „moderate penalty.‟
However, the clear and detailed analysis of underlying principles regarding the role of criminal law

274
The most remarkable contribution of the Canadian courts is the implementation of
international principles in domestic law. In comparison to USA, the courts in Canada
are more dynamic.

This short comparative account of judicial approaches in USA, Canada and India
shows that in United States, Courts have preferred the rule of strict interpretation of
environmental statutes. The Supreme Court has shown faith in the agencies appointed
for environmental standards, as they are more equipped with technical expertise. The
judges do not posses such technical expertise. The corporate and business houses and
property owners have resorted more to invoke the power of judicial review of the
Court rather than citizens in environmental decisions. Moreover, The US Constitution
does not contain any direct provision for right to environment.

In Canada also, the courts have considered laws made for environment protection as
sufficient. However, they have shown creativity in implementation aspect of
environmental laws.

6.6.3. The Role of Judiciary in UK

Contemporary environmental jurisprudence has their roots in the common law mainly
the torts of public and private nuisance, negligence and trespass and the rule in
Rylands v. Fletcher161. In 19th century, heavy industrialization by UK, the issues of
exploit and exploitation of land increased. In reaction, the judiciary through the device
of common law made epic contribution to the security of interests in land by personal
owners. Incidentally, it came to be used for ecological preservation and protection.

However, the judicial system of UK has afforded an outstanding mechanism in 19th

century towards ecological preservation. In 20th century, various specific legislations
came in the wake of significance of ecological control and management for living
creature‟s existence. But the large custom of the common law evolved soon after the
Norman invasion has immense potentials of providing an alternative, although not
directly, device of preventing the enviro-crimes in England.

in environmental protection, and the special considerations applying to corporations, was a

breakthrough.
161
L.R. 3 H.L. 330 (1868).

275
Therefore, we find that the judiciary have been at the head of the development of
environmental jurisprudence in the United Kingdom. In the case of St. Helen‟s
Smelting Co v. Tipping, 162 the judiciary attempting to fight with the outcomes of
industrial pollution in the rural areas. Because the act in nuisance has remained one of
the most vital weapons to challenge and if likely protect environment.163 It has clearly
influenced judiciary in India as the later has adopted the common law practice.

Thus, judiciary has made constructive intrusions, which contain claims in tort for
instance negligence and the rule in Rylands v. Fletcher case, defining the realm of
the criminal law in respect of enviro-offences and judicial review of executive action.

In UK, now the judiciary is also settling environmental cases brought before them
under not only the specific environmental legislations but also include the Human
Rights Act 1998. Normally it can be said that:

“Degraded physical environments contribute directly to infringements of the

human rights to life, health and the livelihood, acts leading to environmental
degradation may constitute an immediate violation of internationally
recognized human rights.”164

Earlier common law does not have provision-facilitating public to sue in public
interest but it has established some judicial effort. Lord Diplock in the case of R. v.
Inland Revenue Commissioners ex parte National Federation of Self Employed and
Small Business Limited165 stated that:

“It would, in my view, be a grave lacuna in our system of public law if a

pressure group, like the federation, or even a single public spirited taxpayer,
were prevented by outdated technical rules of locus standi from bringing the
matter to the attention to the court to vindicate the rule of law and get the
unlawful stopped.:

Thus, judiciary in UK has emerged as a protector of constitutional rights and

obligations, even if it destined creating inroads into the sphere conventionally

162
(1865) 11 HL Cas 642.
163
J.B. Opschoor and R.K. Turner (eds), Economic Incentives and Environmental Policies: Principles
and Practice (Dordrecht: Kluwer Academic Publishers, 1994).
164
Alan Boyle and MichaelAnderson (eds.), Human Rights Approaches to Environmental Protection
3(Oxford University Press, Oxford, 1998)
165
(1982) AC 617.

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reserved for the governing body and the administrative body. Judiciary then is
machinery already involved in the job of environmental control and management;
judiciary has a significant history in so doing.

In India, the judiciary is regarded as the sentinel on the qui vive. It has been clothed
with the power to do complete justice under the Constitution.166 The writ jurisdiction
under article 32 and 226 has further widened the scope for judicial intervention in
environmental issues. Relaxation of the rule of locus standi coupled with the pro-
active judges has ushered the Indian environmental jurisprudence to a new level. As
such, The Indian judiciary has been able to play extraordinary role in securing enviro-
justice. The judiciary has allowed public interest litigation and thus brought justice to
the doorsteps of poor people.

The Supreme Court of India has not accepted the traditional concept of judicial
constraint like American Supreme Court but it has proved that it is independent and
one of the important organs of democracy. In comparison to Canada, the procedural
relaxation by judiciary is remarkable in India. Both India and the UK have almost
similar judicial systems, laws and procedures what Konrad Zweigert and Hein Kotz
calls „functionality‟.167 In comparing two legal systems, the laws should perform the
same function. This is the broad meaning of functionality.

The major problem in the environmental issues is to produce evidence which is a

costly affair as it requires scientific, laboratory proof with expert opinion. Under
Indian Legal system, the plaintiff need not be bothered about it. This will be taken
care of by a court appointed committee. As such, The Indian judiciary‟s commitment
to constitutionalism is evident from its use of various innovative and sui-generis
concepts in securing enviro-justice to Indian citizens.

The approach of courts to environmental cases, particularly their pro-active stand has
been an object of intense debate and discussion. On one side of the spectrum are the
critics of the theory of separation of power. They view judicial activism as a positive
way to address shortcomings on environmental issue on part of legislature and
executive. While on the other side, there are the advocates of theory of separation of

166
The Constitution of India, 1950, art. 142.
167
K. Zweigert and H. Kotz, Introduction to Comparative Law: The Framework 2 (Oxford:
Clarendon Press, Vol. I, 1987).

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power. They frown upon the court‟s activist stance alleging that the intervention of
Court in the domain of implementing agency in the name of protecting the
environment is violative of the principle of separation of power. It is argued that when
the court ventures outside its adjudicatory domain against the delicate separation of
power it creates problems for other organs of the State in this process. Due to this
perceived undue encroachment in sphere of other organs as is evident from micro
managing the affairs of executive, questioning the rationale and validity of
governmental policy and resuming administrative powers to protect the environment
has been vociferously critiqued and protested at the highest levels in the government.

Part of this criticism arises due to the fact that often the Supreme Court‟s innovative
methods are unusual and novel for a relatively traditional outlook of the court in
general. Furthermore, the use of these innovative methods is certainly a deviation
from the traditionally accepted purely adjudicatory function of the court.

In case of Arjun Gopal v. Union of India168, (Firecrackers Ban case), the Supreme
Court on 9th October, 2017 bans sale firecrackers in Delhi-NCR region, to ensure they
are not sold in the region during Diwali this year. In a bid to control and protect the
Air quality which detoriates due to burning of firecrackers as experience has
emphatically proved it.169

However, despite of the order of Supreme Court the use of firecrackers in the region
during Diwali was substantial. Air quality detoriated next morning exponentially, it
seems people make mockery of the order. It is to be noted that despite of the proactive
role of Supreme Court culture of environmental protection has not been developed
among the masses. It is beyond the pale of doubt that in order to protect environment
the isolated orders of Supreme Court would not have desired effect. The
environmental consciousness must be inculcated in the common people psyche. Also
executive has to play constructive role in protecting environment to which they
miserably failed so far. It is high time that executive must co-operate and compliment
in this cause.

Notwithstanding the criticism of the „insiders‟ over the merits or otherwise of judicial
activism, it can be emphatically said that judicial activism has indeed reaffirmed the

168
(2017) 1 SCC 412.
169
Ban of Firecrackers in Delhi-NCR Region during Diwali, The Hindu, Oct. 10, 2017, p.01.

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faith of „little man‟ in the judiciary. It has looked after the executive aspects as well as
mitigated the issues caused by legislative vacuum. Indeed the credit for giving effect
to the principles of sustainable development in India goes to Hon‟ble Supreme Court.

In sum, the issue of judicial activism and its proper assessment in environmental cases
is a tricky one. Proactive judiciary has gone a long way in giving effect to the intent of
the laws. It has breathed life into the mere letters of the law.

At the same time, we cannot deny the charge that the Court has forgotten its job of
adjudicator and has almost usurped the powers and obligation of the executive and
legislature as a lawmaker and law executor in India. These questions force us to
review the critical function of Apex Court in progress of environmental jurisprudence
in India and authenticity of judicial activism in environmental matters which is the
outcome of vacuum created by callous attitude of other limbs of the state responsible
for protection of environment.

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