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Legal Activism and River Pollution in India
KELLY D. ALLEY*

I. INTRODUCTION

Legal scholars, environmental activists, and public officials note that the recent
initiative to bring about changes in environmental policy in India has come more
from the courts and less from legislative or executive actions. The period from
the mid 1980s through the end of the 1990s was a particularly active period for
court involvement in problem-solving on crucial environmental issues in India.
During this time "court driven exercises," as one highly ranked government
official put it, forced open the public dialogue on environmental and waste
management and required government officials to answer to their policies and
responsibilities. At the same time, government agencies appeared laggardly in
their attention to implementation and industrial agents were reluctant to comply
with court orders. At times, orders produced in environmental cases were hastily
composed without a full understanding of the problems and their contingencies.
These recent trends and characteristics draw attention to the unique role that the
Indian courts are serving toward resolving environmental issues and to the way
these courts are connecting available legal, scientific, and human resources with
remediation work. This article aims to introduce a subsection of this activity by
focusing on public interest cases that have addressed river pollution and river
ecology concerns. 1
This article examines legal activism in India as it has been applied to river
pollution and river ecology problems to address the concerns over the deteriora-
tion of surface water resources upon which all countries depend. In order to
examine this field of environmental and legal activism, I first introduce the
history of legal advocacy as it pertains to environmental problems by outlining
how public interest litigation has transformed from its early dependence on
constitutional provisions and the decisions of post-independence justices to the

* Kelly D. Alley is Alumni Professor of Anthropology at Auburn University. Research for this article was
supported by the Center for Forest Sustainability and the College of Liberal Arts at Auburn and by the Office of
Citizen Exchanges in the Bureau of Educational and Cultural Affairs. © 2009, Kelly D. Alley.
1. For the earliest critique of the substance of environmental legislation see DEPARTMENT OF SCIENCE AND
TECHNOLOGY - GOVERNMENT OF INDIA, REPORT OF THE CoMMITEE FOR RECOMMENDING LEGISLATIVE MEASURES
AND ADMINISTRATIVE MACHINERY FOR ENSURING ENvIRoNMENTAL PROTECrION (1980). For a more recent
critique, see D. Parthsarathy, Judge as Administrator,4 ECON. & POL. WKLY. 36 (2001) (charging the courts for
performing legislative and executive incompetence). But see SANGEETA AHUJA, PEOPLE, LAW AND JUSTICE:
CASEBOOK ON PUBLIC INTEREST LrTGATION 421 (1997) (arguing that the positive and welcoming response of the
courts has not extended into the vision or creativity required by the issues raised in petitions).
 THE GEORGETOWN INT'L ENvTL. LAW REVIEW [Vol. 21:793

current level of legal activism. To explain this transformation, I outline the

constitutional articles and judicial procedures that give public interest litigation
its power in judicial discourse today, presenting extended quotations from
Justices, petitioners, and other analysts. 2 The evolving interplay of constitutional
provisions, environmental statutes, environmentalism, and cause lawyering is
traced briefly to contextualize the discussion of legal activism in more recent
river cases.
In the second half of the article, I examine four river ecology cases that were
decided between the mid 1980s to the end of the 1990s. All four cases addressed
river pollution problems and concerns about river ecology, river flow, and water
provisioning for agricultural, municipal, and ecological needs. These cases also
focused on the crucial importance of surface water resources. Three of the cases
were heard in the Supreme Court of India and one case was heard in the High
Court of the state of Uttar Pradesh. Each of the cases was brought to the court in a
unique way: the first by a young environmental lawyer, the second by an
environmental activist, the third by a justice motivated through a newspaper
report, and the fourth by a retired commander in the Indian army. The variety of
petitioners alone displays the range of possibilities for achieving standing in
public interest cases. The case material will show that the relaxation in standing
and other kinds of procedures helped to facilitate both the petitioners' and the
justices' roles in solving environmental problems. When detailing each of these
cases, this article addresses the following questions: (1) What are the judicial
procedures and patterns of remedial action that evolve in these cases?; (2) How is
this evolution related to the ideals of justice and the particular problems of a
rapidly developing country?; and (3) How have these cases contributed to
decision-making and problem solving on crucial water problems today? By
describing and analyzing legal documents, government reports and responses,
citizen appeals, and ethnographic data recorded from my own participant
observations, I show the important role that legal activism has played in
highlighting river problems and drawing concerned parties together to formulate
action plans.

2. I have been interested for some time in the various terms used to define purity and pollution in debates
over river resources in the Ganga basin. See, e.g., KELLY D. ALLEY, ON THE BANKS OF THE GANGA: WHEN
WASTEWATER MEETS A SACRED RIVER (2002) [hereinafter ON THE BANKS OF THE GANGA]; Kelly D. Alley,
Separate Domains: Hinduism, Politics and Environmental Pollution, in HINDUISM AND ECOLOGY 355 (2000);
Kelly D. Alley, Idioms of Degeneracy: Assessing Ganga's Purity and Pollution, in PURIFYING THE EARTHLY
BODY OF GOD: RELIGION AND ECOLOGY INHINDU INDIA 297 (Lance Nelson ed., 1998) [hereinafter Idioms of
Degeneracy]; Kelly D. Alley, Ganga and Gandagi: Interpretationsof Pollution and Waste in Bernaras, 2
ETHNOLOGY 127 (1994) [hereinafter Ganga and Gandagi].Across north India, debates about the meanings and
uses of rivers are vibrant and wide ranging; they cover religious, metaphysical, physio-chemical, and
political-economic levels and pose challenges to the making of a common cultural epistemology. But more
recently, I have migrated to the field of legal discourse, where an interesting set of terms are at play, each
suggesting its own history and distinctive disciplinary ground.
2009] LEGAL AcTIVIsIM AND RIVER POLLUTION IN INDIA

II. PUBLIC INTEREST LITIGATION AND THE ENVlRoNMENT

Public interest litigation ("PIL") in India involves cases that address problems
impacting the common good. While uniting diverse values in one arena, PIL
provides opportunities for citizens to stand for the public and challenge the
structures of power from within the constitutional framework. Cases that focus
on environmental issues and problems are known as environmental PILs.
An introduction to public interest litigation in India and to the emergent legal
discourse on water resources requires a tour through India's constitutional
framework and key environmental statutes. This historical review will outline the
post-independence justices' practice of opening the use of the law to all citizens
of India. In addition, the review will explain a few of the unique uses of the law
that have developed in the post-independence period. I will provide this brief
overview by tracing how the interplay of constitutional provisions, environmen-
tal statutes, procedural possibilities, and emerging environmental concerns have
led to the dynamic field in which we find contemporary river cases.

A. PROVISIONS IN THE CONSTITUTION AND LAW

The Indian Constitution is not unique in incorporating articles that declare the
responsibilities of the state and its citizens to protect and improve the environ-
ment and safeguard forests and wildlife. Like those used in other countries,
India's constitutional articles were adopted in response to international confer-
ences and conventions. The first provisions in law were made through the
Forty-Second Amendment to the Indian Constitution.3 Passed in 1976, the
Forty-Second Amendment responded to the Stockholm Declaration adopted by
the International Conference on Human Environment in 1972. 4 That Declaration
confirmed the responsibility of each member of society to protect and improve
the environment. 5 Inconformity with these objectives, the Forty-Second Amend-
ment inserted Article 48A into the Directive Principles of State Policy in Chapter
IV of the Constitution.6 This declared the State's responsibility to protect and
improve the environment and safeguard the forests and wildlife of the country.
Another provision, inserted in Article 5 1A(g), stipulates the duty of every citizen
to "protect and improve the natural environment including forests, lakes, rivers
and wildlife and to have compassion for living creatures.",7 Both Article 48A and
Article 51 A impose an obligation on the Government and the courts to protect the
environment for the people and the nation.
Along with these provisions, the Indian legal system provides a few other

3. INDIA CONST.: amended by the Constitution (Forty-second Amendment) Act, 1976.

4. See S. BHArr, ENVIRONMENT PROTECrION AND SUSTAINABLE DEVELOPMENT 66 (2004).
5. See id.
6. INDIA CONST. art. 48A.
7. INDIA CONST. art. 51A(g).
796 THE GEORGETOWN INT'L ENVTL. LAW REVIEW [Vol. 21:793

sources of law for addressing water pollution problems. The Water (Prevention
and Control of Pollution) Act of 1974 ("the Water Act") was the first to
specifically set out a concern for environmental protection.8 Parliament adopted
minor amendments to the Water Act in 1978 and revised it in 1988 to conform to
the provisions of the Environment (Protection) Act of 1986. 9 Although the
Constitution determined that water would be a subject in the State List and would
therefore fall under the purview of the state, the Water Act empowered the Union
Government to legislate in the field of state control. That power was affirmed
when all states in the Union approved the Act.10
The administrative regulation under the Water Act provided for the establish-
ment of a Central Pollution Control Board and, under this, a Board in each state
of the Union."1 These Boards develop plans for the control and prevention of
pollution. The Central Board plans and executes a national program for prevent-
ing pollution, carries out research, compiles data, and advises the Government on
water and air pollution matters. The State Boards implement the Water Act by
inspecting industrial and wastewater treatment plants and conducting research on
water quality and sewage treatment methods. 12 Both Boards have been awarded
the authority to set standards for water quality,
13
air quality, and emissions and
effluents from industry and other sources.
Although environmental protection is included in the Directive Principles of
State Policy and the Fundamental Duties of the Indian Constitution, environmen-
tal rights are not listed under the justiciable Fundamental Rights of the Indian
Constitution. Hence they are not directly enforceable. 14 However, by utilizing
these provisions on environmental protection to flesh out the constitutional right
to life, the Supreme Court has held that "a citizen has a right to have recourse to

8. The Water (Prevention and Control of Pollution) Act, No. 6 of 1974; India Code (1974).
9. See id.
10. See ARMIN ROSENCRANZ ET AL., ENVIRONMENTAL LAW AND POLICY IN INDIA: CASES MATERIALS AND
STATUTES 153 (1992).
11. The Water (Prevention and Control of Pollution) Act, No. 6 of 1974; India Code (1974) (discussing the
Central Pollution Control Board under section 3 and the State Pollution Control Boards under section 4); see
also ROSENCRANZ Er AL., supra note 10, at 153.
12. See ROSENCRANZ, supra note 10, at 154; see also GUtRDIP SINGH, ENVIRONMENTAL LAW: INTERNATIONAL
AND NATIONAL PERSPECIVES 71-72 (1995).
13. MINISTRY OF ENVIRONMENT & FoREsTs, CENTRAL POLLUTION CONTROL BOARD, 1993-1994 ANNUAL
REPORT 1-2 (1994).
14. See Michael R. Anderson, Individual Rights to Environmental Protection in India, in HUMAN RIGHTS
APPROACHES TO ENVIRONMENTAL PROTECTION 1, 213-14 (M. Anderson & A. Boyle eds., 1998);
Francois Du Bois, Social Justicesand the JudicialEnforcement of Environmental Rights and Duties, in HUMAN
RIGHTS APPROACHES TO ENVIRONMENTAL PROTECrION 153, 153-75 (M. Anderson & A. Boyle eds., 1998); Clark
D. Cunningham, Why American Lawyers Should Go to India: Retracing Galanter'sIntellectual Odyssey, 4 LAW
& Soc. INQUIRY 777, 786 (1991). The use of fundamental rights over tort law was also bolstered by Justice
Bhagwati's ruling on absolute liability in M C Mehta v. Union of India (Oleum Gas Leak Case), A.I.R. 1987
S.C. 1086. That ruling made it possible to seek compensation for victims of an industrial gas leak using Article
32.
20091 LEGAL ACTIVIsIM AND RIVER POLLUTION IN INDIA

[the remedies provided by] Article 32 of the Constitution for removing the
pollution of water or air which may be detrimental to the quality of life."' 15 In
other words, the courts have been willing to read the Directive Principles into the
Fundamental Rights. 1 6 Environmental cases have also benefitted from the proce-
dural advantages attached to the enforcement of constitutional rights. The Indian
courts' willingness to apply an ecological norm has advanced a broader judicial
commitment to the rectification of the perceived failures of other branches of
government. "7

B. PUBLIC INTEREST LITIGATION

Legal and social science scholars have located the origin of public interest
litigation (or what the social science scholar Baxi calls "social action litigation")
in the wake of the 1975-76 Emergency.' 8 Public interest or social action litigation
emerged along with investigative journalism and human rights and environmen-
tal activism. It initiated a period of judicial populism articulated by charismatic
justices.' 9 The Hon'ble Mr. Justice S. P. Bharucha explains the opening of legal
debate in the early years of the Indian Union in this way: "There was then the age
of expanding the scope and ambit of fundamental rights, using, particularly, the
wide language of Article 21. 'Due process' deliberately eschewed by the
founding fathers was judicially brought into play by holding that a 'procedure
20
established by law' had to be just and fair.",
Justice Krishna Iyer was the first to lay the conceptual foundation for what is
now called public interest litigation. In 1976, while ruling on an industrial
dispute, Justice Iyer made the following comments:
Our adjectival branch of jurisprudence, by and large, deals not with sophisti-
cated litigants but the rural poor, the urban lay and the weaker societal

15. M C Mehta v. Union of India (Taj Trapezium Case), A.I.R. 1988 S.C. 1037; M C Mehta v. Union of India
(Ganges Pollution Case), A.I.R. 1988 S.C. 1115; see also Anderson, supra note 14, at 219.
16. See Cunningham, supra note 14, at 786 (characterizing fundamental rights as "negative rights" or
prohibitions on the exercise of state power against individuals, and directive principles as "positive rights" or
affirmative obligations of government toward its citizens); Anderson, supranote 14, at 214; Du Bois, supranote
14, at 155; M.P. Jain, The Supreme Courtand FundamentalRights, in F'rrY YEARS OF THE SUPREME COURT OF
INDIA 1, 65-67 (S.K.Verma and Kusum eds., 2000) (discussing the relationship between Fundamental Rights,
Directive Principles, and Fundamental Duties of the Indian Constitution).
17. Du Bois, supranote 14, at 156.
18. See Upendra Baxi, Forewordto J. KAPUR, SUPREME COURT ON PUBLIC INTEREST LITIGATION viii (1998)
[hereinafter Baxi Foreword]; see also Anderson, supranote 14, at 214. See generally A.K. Ganguli, In Public
Interest: A Review of PIL in the Supreme Court, in SUPREME COURT ON PUBLIC INTEREST LITIGATION A-1 (J.
Kapur ed. 1998).
19. This judicial populism continues despite the rapid turnover of justices and the tendency of superiors to
avoid promoting judges with activist agendas. See Jagga Kapur, Preface in I SUPREME COURT ON PUBLIC
INTEREST LITIGATION X-XV (J. Kapur ed. 1998).
20. S.P. Bharucha, Golden Jubilee Year of the Constitution of India and Fundamental Rights, in SUPREME
COURT ON PUBLIC INReEST LmGATION VII (J. Kapur ed. 1998).
 THE GEORGETOWN INT'L ENVTL. LAW REVIEW [Vol. 21:793

segments for whom law will be an added terror if technical mis-descriptions

and deficiencies in drafting pleadings and setting out the cause-title create a
secret weapon to non-suit a part. Where foul play is absent, and fairness is not
faulted, latitude is a grace of processual justice. Test litigations, representative
actions, pro bono publico and like broadened forms of legal proceedings are in
keeping with the current accent on justice to the common man and a necessary
disincentive to those who wish to bypass the real issues on the merits by suspect
reliance on peripheral procedural shortcomings. Even Article 226, viewed on
wider perspective, may be amenable to ventilation of collective or common
grievances, as distinguished from assertion of individual rights, although the
traditional view, backed by precedents has opted for the narrower alternative.
Public interest is promoted by a spacious construction of locus standi in our
socio-economic circumstances and conceptual latitudinarianism permits taking
liberties with individualization of the right to invoke the higher courts where
the remedy is shared by a considerable number, particularly when they are
weaker.
1
Less litigation, consistent with fair process, is the aim of adjectival
2
law.

In the early 1970s, Justice Bhagwati and Justice Iyer were involved with the
establishment of legal aid schemes for "poor persons and members of backward
classes. 2 2 Later Justice Bhagwati articulated in a more decisive way the nature
of public interest litigation. In 1988, he summarized the court's position on
judicial procedure as follows:
This Court will readily respond even to a letter addressed by such individual
acting pro bono publico. It is true that there are rules made by this Court
prescribing the procedure for moving this Court for relief under Article 32 and
they require various formalities to be gone through by a person seeking to
approach this Court. But it must not be forgotten that procedure is but a
handmaiden of justice and the cause of justice can never be allowed to be
thwarted by any procedural technicalities. The court would therefore unhesitat-
ingly and without the slightest qualms of conscience cast aside the technical
rules of procedure in the exercise of its dispensing power and treat the letter of
public-minded individual as a writ petition and act upon it ... "23

In this pronouncement and others, Justice Bhagwati contended that social

conditions require a relaxation of procedure. The social conditions to which
Justice Bhagwati referred are made up of two salient dimensions. On the one
hand, inequality and differential access to justice and power prevail; on the other,

21. See Kapur, supra note 19, at X (quoting Justice Pandian).

22. Ganguli, supra note 18, at A-7. Justice Bhagwati has stated explicitly that public interest litigation is a
strategic arm of the legal aid movement. See Jain, supra note 16, at 81-84; see also Upendra Baxi, Taking
Suffering Seriously: Social Action Litigation in the Supreme Court of India, in SUPREME COURT ON PUBLIC
INTEREST LrTGATION A-91 through A-114 (J.Kapur ed. 1998) (describing the expansion of the legal aid
movement).
23. See Kapur, supranote 19, at XI.
2009] LEGAL ACTIVISIM AND RIVER POLLUTION IN INDIA

particular kinds of executive practices are at work. These executive practices are
often carried out through inaction, as a breach of the law or dereliction of duty.
Along with the need for procedural relaxation, Justice Bhagwati stressed the
judicial remedy of mandamus. Any member of the public with sufficient interest
can call for judicial redress for any public injury arising from breach of public
duty or from the violation of some provision of the Constitution or the law.24 A
citizen can seek enforcement of public duty or observance of such constitutional
or legal provisions by standing for the public interest.
Justice Bharucha also commented on the central role that the remedy of
mandamus plays in public interest litigation, stating that the remedy has "can-
vassed the mandate of Article 14 that no one is above the law.",25 He added that
the prosecutions that were launched pursuant to the continuing mandamus in
Vineet Narain [the Hawala case] "produced reassurance in the people that the
Courts would not turn a blind eye only because powerful men in public places
were involved[.] ' '26 He continued:
Public interest litigations have also led to the Courts' pronouncements in
pollution and environment matters. I would be the first to concede that these
pronouncements have sometimes been a mixed blessing, but we must remem-
ber that in these matters, as in so many others, the Court has had to step in
because the legislature and the executive had not acted upon their obligation to
protect the quality of life.27
These discussions have also raised issue with the particular kind of "lawyer-

24. See Kapur, supra note 19, at XI.

25. Bharucha, supra note 20, at VII.
26. Id. The Hawala case was initiated by a citizen who alleged that apprehending certain terrorists led to the
discovery of financial support by clandestine and illegal means, by the use of tainted funds obtained through
'havala' transactions. This disclosed a nexus between several important politicians, bureaucrats and criminals
who were all recipients of money from unlawful sources given for unlawful considerations. The petitioner also
charged that the Central Bureau of Investigation and other Government agencies had failed to fully investigate
the matter and prosecute all persons who had committed a crime. The continuing mandamus was instituted by
the court as a special mechanism for this particular case. The mandamus was to, as the Justices in the case put it,
"ensure that all Government agencies, entrusted with the duty to discharge their functions and obligations in
accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and
the basic tenet of rule of law: 'Be you ever so high, the law is above you'. Investigation into every accusation
made against each and every person on a reasonable basis, irrespective of the position and status of that person,
must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial
working of the Government agencies." Vimeet Narain & Ors. v. Union of India & Anr., (1996) 2 S.C.C. 199.
27. Bharucha, supra note 20, at VII; see also Malik Brothers v. Narendra Dadhich 1999 S.C.A.L.E 197
(offering the statement as part of the court record). Following this theme, a Supreme Court judgment in 1999
maintained that, 'The real purpose of entertaining (a PIL) application is the vindication of the rule of law,
effective access to justice to the economically weaker class and meaningful realisation of the fundamental
rights." S. Muralidhar, PIL in 1999 in the Supreme Court, in SUtREME COURT ON PUauLC INTEREST LrTGATION V
(J. Kapur ed. 1998) (quoting the Supreme Court in the case of Malik Brothers v. NarendraDadhich).In the same
judgment, the Court stated that "the directions and commands issued by the courts of law in a public interest
litigation are for the betterment of society at large and not for benefitting any individual." See id. at V-VI.
800 THE GEORGETOWN INT'L ENVTL. LAW REVIEW [Vol. 21:793

ing" required. When introducing a publication series on public interest litigation,

a contributing author wrote: "It compels the lawyer to unshackle herself from
legalese, reach out to and inform herself of other disciplines. It teaches her to
assimilate the legal principles into problem situations and present them before the
court in a 'judicially manageable'
28
form. PIL throws up several opportunities for
innovation and creativity."
The social scientist Upendra Baxi has also described this new role of the
lawyer by stating:
These processes of judicial social learning and unlearning have occurred
spectacularly, and in full public gaze. Very few apex courts in the world have so
readily placed themselves, consistent with the constitutional conceptions of
adjudicatory power, role and function, under the tutelage of assorted academ-
ics, media persons, communities of social and human rights activists and
enlightened public opinionators. Public lawyering patterns have also been
affected, for good, by social action 'cause lawyering.' By the same token, the
activist world in India has learnt, even if variably so, to foster new partnership
among learned professions in ways which make possible the harnessing of
esoteric knowledge to adjudicatory tasks in service of the democratic rights of
the Indian people. It has also learnt ways in which strategic deployment of
adjudicatory power creates, enhances or sustains space for people's politics.
SAL thus represents the emergence of vibrant communities of social learning.
It provides a fascinating landscape 29
for a comparative analysis of the social
learning potential of adjudicators.
Kapur reports that Justice Bhagwati's interest in the area of public interest
litigation aroused the conscience of Justice Murtaza Fazal Ali and Justice E.S.
Venkataramiah, justices who began to refer all public interest cases to a bench of
five Judges. 30 In the 1970s and 1980s, the Supreme Court of India heard public
interest petitions on a range of issues. For environmental cases, Jariwala explains,
the year of 1998 was the most productive in terms of judgments.3 1 Specific
Justices began to set their careers along a continuum between pro-environment
and pro-development positions.
On four occasions the judges recorded separate opinions and in two cases the
judges provided a 'somewhat different approach' or gave dissent on a point or
two but they finally concurred with the majority, leaving one clear dissent. In
the beginning it was Ranganath Misra J, later on the duo of Venkatachaliah and
Kuldip Singh, JJ, and since 1998 it was Kirpal and/or Khare JJ, who sat on a
large number of the environment benches. Kuldip Singh, Venkatachaliah, Ojha

28. Muralidhar, supra note 27, at V.

29. Baxi Foreword,supra note 18, at IX.
30. See Kapur,supra note 19, at X.
31. C.M. Jariwala, The Directions of Environmental Justice: An Overview, in FIFTY YEARS OF THE SUPREME
COURT OF INDIA 469, 470 (S.K. Verma & Kusun eds., 2000).
2009] LEGAL ACTrViSiM AND RIVER POLLUTION IN INDIA

(out of eight only one judgement on the other side), Bhagwati (out of eight only
one on development side) JJ, adopted a pro-environment approach; whereas
Desai, Sen, Ahmadi, Patnaik JJ, took the development side. Further, Hansaria,
Nanavati, Sujata Manohar, Agrawal, JJ, then recently elevated to the court, also
toed the line of development but they were given only one or two opportunities
to sit on such bench(es). 32

C. STANDING AND OTHER PROCEDURAL MATTERS

As the preceding quotes reveal, Justices in the post-independence period were

concerned with opening up uses of the law to citizens of all socioeconomic
classes, to act upon their ideals of equality and justice. In the process of
establishing these ideals, justices defined procedural matters in unique ways and
set these procedures apart from those used in other countries. It is important to
review for a moment the ways that these justices defined procedures in specific
cases before we look at how they have been operationalized by petitioners and
justices in the four river cases.
As litigants began to approach the court with public interest concerns, justices
began a vigorous debate over standing and procedural matters. Concerned
citizens were also drawn into discussions over what is meant by the public
interest and who can represent or argue for the constitutional rights of large
numbers of citizens.3 3 The short history reveals a unanimous interest in relaxing
the rule of standing. In Akhil Bhartiya Soshit Karamchari Sangh v. Union of
India,Justice Iyer commented on the issue of standing:
Our current processual jurisprudence is not of individualistic Anglo Indian
mould. It is broad based and people oriented, and envisions access to justice
through 'class actions' 'public interest litigation' and representative proceed-
ings. Indeed little Indians in large numbers seeking remedies in courts through
collective proceedings, instead of being driven to an expensive plurality of
litigations, is an affirmation of participative justice in our democracy. We have
no hesitation in holding that the narrow concept of 'cause of action' and 'person
aggrieved' and individual litigation is becoming obsolescent in some jurisdic-
tions.34
While relaxing the rule of standing, the Court has also expressed concerns that
public interest litigation not be misused by a busybody, meddlesome interloper,
or by those looking for personal gain, private profit or political influence.35 After
Justice Bhagwati's articulations on this procedural opening, Justice Khalid

32. Id.
33. See Kapur, supranote 19, at XII.
34. Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India & Ors., (1981) 2 S.C.R 185,
224-25; see also Ganguli, supranote 18, at A- II (offering a quotation of the statement from the case).
35. Jain; supranote 16, at 85.
802 THE GEORGETOWN INT'L ENVTL. LAW REVIEW [Vol. 21:793

stated:
Public interest litigation has now come to stay. But one is led to think that it
poses a threat to courts and public alike. Such cases are now filed without any
rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to
outline the correct parameters for entertainment of such petitions. If courts do
not restrict the free flow of such cases in the name of Public Interest Litigations,
the traditional litigation will suffer and the courts of law, instead of dispensing
justice, will have to take upon themselves administrative and executive
functions ....I will be second to none in extending help when such help is
required. But this does not mean that the doors of this Court are always open for
anyone to walk in. 36
It is necessary to have some self-imposed restraint on public
interest litigants.
There have also been many cases in which Justices have grappled with a
determination over the "person aggrieved." In the river cases I discuss in the
second half of this paper the particular postures and actions of key Justices are
noticeable and the ways citizens and lawyers use constitutional provisions to
broaden their standing evolve during the proceedings. More generally in public
interest cases, the issue of standing has been linked to other procedural matters.
For instance, Justices broadened the guidelines for writing an acceptable writ,
building upon the general sense since early post-independence jurisprudence that
the general format should be flexible to various forms of appeal. In 1956, Justice
Mukherjea claimed that, "Under Article 32, the court enjoys a broad discretion in
the matter of framing the writs to suit the exigencies of the particular case and it
would not throw out the application of the petitioner37simply on the ground that
the proper writ or direction has not been prayed for."
Looking across the many environmental cases heard over the past twenty years
we find that High Court and Supreme Court Justices have accepted letters,
appeals, and newspaper editorials as writ petitions for the public interest.38 In

36. See Kapur, supranote 19, at XII. Judicial officials have also raised concern with the amount of time spent
and the docket space used by environmental PILs in comparison to other PILs. Muralidhar, supra note 27, at IX.
Other justices have noted the backlog of case work that PILs create. See generally Kapur, supranote 19, at XII.
37. Chiranjit Lal Chowdhuri v. Union of India And Others, A.I.R. 1951 S.C. 41; see also Jain,supra note 16,
at 77.
38. Media articles and letters from concerned citizens and scientists are also used as sources of information
in petitions and hearings. For example, the High Court order of May 5, 1998 in Jaiswalv State of UP stated:
A letter dated 6.4. 1998 has also been received from one Sr Sunil Kumar Singh of Hardoi stating that
in Gajraula Industrial Estate, Moradabad all the Companies are polluting the river Ganga. Amongst
these companies the main source of pollution is from Vam Organics Chemicals Ltd, Bhartiya Gram. A
copy of this letter is also being furnished to all the counsel appearing before this court.
An article published in daily Amnrit Prabhat on 131h March 1998 states that water at Haridwar is
neither fit for taking bath nor suitable for drinking as the sample there indicates cholera germs as also
feces. Similarly there are three other news items indicating pollution at Farrnkhabad, Kanpur,
Bulandhshahar, Moradabad, Bareilly, etc. Copies of these news paper reports are also being furnished
to all the parties.
2009] LEGAL ACTrIvisIM AND RIVER POLLUTION IN INDIA

these letters and appeals, petitioners have written to protect fresh water bodies
and coastal zones, forests, national monuments, planning provisions, and urban
heritage sites, among other national goods. Petitioners have used Articles 32 and
226 to put pressure on state offices and, in more limited cases, on private agents
of industrial and technological development to manage and adequately dispose of
waste byproducts.3 9 In one of the river cases I will introduce later (News Item v.
CentralPollution Control Board and Others), the Supreme Court was moved by
a Hindustan Times news report to begin a hearing on the highlighted pollution
problem.40 The Justices appointed two amicus curiae to investigate the report's
claims.4 1 In this case and in others, Justices have appointed amicus curiae to
assist petitioners in approaching the court for the public interest.
While accepting a relaxed notion of standing and a broad range of petition
types, the Indian courts have also exercised suo motu powers.42 With nebulous
foundations in Indian law, Justices have exercised suo motu to intervene directly
in the administration of a state directed or private project.43 As the river case
material will show, these powers have advanced the exercise of judicial power in
the executive and legislative domains. However, further research is required to
assess the real muscle of that power and to account for the multifarious ways
these orders have been reinterpreted and reenacted (or not implemented) in
spheres outside the courtroom.

III. FOUR RIVER ECOLOGY CASES

In this section, I will examine four river ecology cases to show how fundamen-
tal rights, the accepted notion of standing, and the charisma of the judge and/or
petitioner have created a legal pathway toward the definition of public policy and
the management of water resources. On the one hand, this legal pathway has
created a diffuse set of discussions in the courtroom and, on the other, produced

R.K. Jaiswal v. State of Uttar Pradesh & Ors. (No. 21552 of 1997).
39. Petitions in river ecology cases, for example, have charged that pollution implicates a public authority
that has been vested with the responsibility of preventing pollution but is not sufficiently executing its powers.
These articles provide remedies for enforcement of rights, most importantly for river cases, the Supreme Court
power to issue writs of mandamus. Article 32 gives the Supreme Court this power and Article 226 gives the
High Courts this power. Together these articles guarantee that every person has a fundamental right of access to
the courts. These remedies have been used in a vast array of public interest cases, specifically in Vellore Citizens
Welfare Forum v. Union of India and Others, A.I.R. 1996 S.C. 2115; see also RosENcRANz ET AL., supranote 10,
at 123-30.
40. Supreme Court of India at Writ Petition (Civil) No. 725 of 1994, News Item published in Hindustan
Times titled, And quiet flows the Maily Yamuna v. Central Pollution Control Board & Ors.
41. In the News Item case, two amici curiaewere appointed but never worked together. Without a concerned
petitioner, the case ultimately languished.
42. Suo motu occurs when a court acts on its own interpretation of need or necessity rather than on a problem
highlighted by the petitioner. See JONA RAZZAQUE, PUBLIC INTEREST ENVIRONMENTAL LMGATION IN INDIA,
PAKISTAN, AND BANGLADESH 21-22 (Eric W. Orts & Kurt Deketelaere eds., 2004).
43. Ganguli, supra note 18, at A-13.
 THE GEORGETOWN INT'L ENVTL. LAW REVIEW [Vol. 21:793

orders and judgments that are consistently ignored or breached. This examination
of four river cases will reveal the relationships that form as citizens, lawyers, and
government officials debate national issues in the courts. The discussion will also
shed light on the way these debates are positioned in the management of
important water resources. This account will not explain the multiple reinterpre-
tations and effects of these judicial remedies. That must be left for another
project.
Three of the cases I introduce here were heard in the Supreme Court of India at
New Delhi. The other case was heard in the High Court of Judicature for the state
of Uttar Pradesh at Allahabad. They are (in the order reviewed): M. C. Mehta v.
Union of India and others, Rakesh Jaiswal v. State of UttarPradeshand others,
News Item published in Hindustan Times titled, And quiet flows the Maily
Yamuna v. Central Pollution Control Board and Others, and Commander
Sureshwar D. Sinha v. Union of India and others. The petitioners in these cases
have sought to remediate a riparian ecosystem, either by preventing river
pollution or increasing the river flow through particular reaches.

A. M. C. MEHTA V. UNION OF INDIA AND OTHERS

M.C. Mehta v. Union of India and others is the first river pollution case to
emerge in environmental public interest litigation. In 1985, Mehta filed a writ
petition charging that, despite the advances made in the legal code, government
authorities had not taken effective steps to prevent environmental pollution of the
river Ganga. 44 Using the judicial remedy of mandamus, he called upon state
agencies to prevent leather tanneries and the municipal corporation of Kanpur
from disposing of industrial and domestic effluent in the river. Justice Kuldip
Singh expanded this petition to include all large cities in the Ganga basin. In
some law reports, this is called the "Ganga Pollution Case. ' 45
While hearings in the Ganga Pollution Case were proceeding, the Government
of India was executing the Ganga Action Plan to abate river pollution in north
India.4 6 Working through the Ministry of Environment and Forests, a central

44. The Ganga basin covers over one million square kilometers and ranks among the largest of the river
systems in the world. Flowing across the great alluvial Indo-Gangetic plains, the Ganga is bordered by the
Himalayas in the north and the Vindhya-Satpura ranges in the south. She has two main headwaters in the
Himalayas-the Bhagirathi and the Alaknanda. The former rises from the Gangotri glacier at Gomukh and the
latter from a glacier short of Alkapuri. Farther downstream, the river is joined by a number of other Himalayan
rivers, namely the Yamuna, Ram Ganga, Ghaghara, Gomti, Kamali, Kali, Gandak, and Kosi. However, the
Ganga and its major tributaries, the Yamuna, Ram Ganga, and Ghaghara are the only Himalayan rivers that
carry sufficient flow throughout the year. See Kelly D. Alley, The Ganga River Basin, http://www.aubum.edu/
alleykd/envirolitigators/gangatext.htm (last visited May 21, 2009).
45. In many law reports and analyses of environmental cases, this case is shortened to "Ganga Pollution
Case" to distinguish it from the many other cases of M.C. Mehta. See Anderson, supra note 14, at 219;
RAZZAQuE, supra note 42, at 98; ROSENCRANZ Er AL., supra note 10, at 210.
46. For descriptions of a few of the Ganga Action Plan projects that have been undertaken see ON THE BANKS
2009] LEGAL ACTIVISIM AND RIVER POLLUTION IN INDIA

government directorate provided grants to state and municipal agencies to divert

and treat industrial and municipal effluent and, in some cases, operate and
manage diversion and treatment systems over the long term.47
From 1992 through 1995, Mehta expanded his original petition to cover over
5000 industries and 300 towns in the Ganga basin. During this time, the Court
fined over 200 industries, penalized the State Pollution Control Boards for false
reporting of water quality and effluent treatment plant performance, and pressed
the Ministry of Environment to streamline its proposals for new treatment plants
through a less wieldy set of supervisory committees 48 The Court also took up
Friday sessions to monitor compliance by industries and government agencies to
its orders.49
Since industries were generally reluctant to comply with Court orders to set up
effluent treatment plants and treat their effluent to the standards prescribed by the
Central Board, many Friday sessions were spent reinvestigating cases and
imposing fines on or ordering the closure of noncompliant industries. In its
biggest sweep in a single day, the apex court fined 191 industries. Over several
years, the court closed more than 500 industries located in the Ganga basin for
failing to set up effluent treatment plants. The Court also directed the District
Magistrate and the Uttar Pradesh Pollution Control Board to close tanneries that
had not paid their mandatory contribution to financing the city's secondary
treatment plant. 50
The Supreme Court also ordered expert committees to investigate problems. In
1993, it directed the National Environmental Engineering Research Institute
(NEERI) to supervise the Municipal Corporations in their installation of sewage
treatment plants. NEERI found that of seventy-nine Municipal Authorities in the
Ganga basin only nineteen had responded to the notices issued by the Pollution
Control Board to develop wastewater management systems. 5 1 The Court called
upon NEERI to continue monitoring GAP activities in various municipalities.
Later, NEERI claimed officials of the Ministry of Environment and Forests of
the Central Government were not fully executing work under the Ganga Action

OF THE GANGA, supra note 2, at 140-206; Idioms of Degeneracy, supra note 2, at 311, 317-20; Ganga and
Gandagi, supra note 2, at 133-38; ER. Syed Md. Hammad, Development of Varansi Sewerage System and
Preventionof Pollution to River Ganga,presented at A Seminar on Pollution Control of River Cities of India: A
Case Study of Varanasi, Jan. 14-17, 1992, at 26-30; THE GANGA PRoJECT DtIRiRATE, TiE GANGA: A
ScIENTIFIC STUDY 216-46 (C.R. Krishna Murti et al. eds., 1991).
47. See Y Sharma, Case Study I - The Ganga. India, in WATER POLLUTION CONTROL - A GUIDE TO THE USE
OF WATER QuALITY MANAGEMENT PRINCIPLES (Richard Helmer & Ivanildo Hespanhol eds., 1997)
48. Kelly Alley, Urban Institutionsat the Crossroads:JudicialActivism and PollutionPrevention in Kanpur.
25(4) URBAN ANTHROPOLOGY 351, 351-83 (1996).
49. Personal observations and assessment. See also Shyam Divan, Cleaning the Ganga, 30 ECON. & POL.
WKLY. 1557 (1995).
50. See ON THE BANKS OF THE GANGA, supra note 2, at 140-52 (offering a longer account and ethnographic
details with references).
51. See id. at 149.
 THE GEORGETOWN INT'L ENVTL. LAW REVIEW [Vol. 21:793

Plan. The Court called together the Director of NEERI and the Director of the
Ganga Action Plan to debate the claim.5 2 The Director of GAP provided reasons
for the delay in completing projects, citing problems with electricity supply and
the collection and processing of data. Faulting the GAP administration, the Court
ordered a stay on all further use of funds for the second phase of GAP works until
1996. During this time the discrepancies between the evaluation reports done by
NEERI and the execution reports provided by the Ministry of Environment and
Forests were never resolved. The court debate, in effect, led to a stalemate
between agencies and implementation of the government's plan slowed consider-
ably. By 1996, government agencies53
were visibly frustrated by the stay on their
spending. In 1997, they broke it.
Before the stay was imposed, Mehta had urged the Court to consider the role of
the Central and State Pollution Control Boards. He alleged that the Uttar Pradesh
State Pollution Control Board was not holding industries to the Central Board's
standards for effluent treatment. The legal team argued that the State Board's
inspection reports were "made mechanically without indicating the quantity of
effluent discharged by the individual industries. 54 Hearing this, the Court
directed the Central Pollution Control Board to evaluate the State Board's
measurements, analyses, and reports and indicate their findings to the Court.
On October 20, 1995, the Court recalled the issue of the UP State Board's
inspection competence. After hearing statements from the State Board, the
Central Board and the petitioners, the Court made the following order:
We do not wish to proceed any further with this matter. We drop the
proceedings/action initiated against the Uttar Pradesh (UP) Pollution Control
Board. We direct that so far as the functioning of the UP Pollution Control
Board in controlling pollution and assisting this Court is concerned, it shall
function under the supervision of the Central Pollution Control Board.
So far as the functioning of the two Boards under the Water and Air
Prevention Control of Pollution Act, 1974 is concerned, the UP Pollution
Control Board shall be bound by all the directions issued by the Central
Pollution Control Board.
The primary responsibility in pollution control matters over the industries in
the State of UP shall be of the Central Pollution Control Board. All the reports
shall be counter-signed by the Central Pollution Control Board. In case the
Central Pollution Control Board feels that a second check is necessary a team
of the Central Pollution Control Board shall go and make a second check in
respect of the individual industries. This arrangement shall continue till further
orders.55

52. See id. at 150.

53. Personal observation and assessment.
54. Order of the Supreme Court of India at Writ Petition (Civil) No. 3727 of 1985, M C Mehta v. Union of
India & Ors. (July 14, 1995).
55. Order of the Supreme Court of India at Writ Petition (Civil) No. 3727 of 1985, M C Mehta v. Union of
2009] LEGAL ACTIsIM AND RIVER POLLUTION IN INDIA

Although it caught the State Board derelict in its duty to hold industries to
environmental regulations, Supreme Court orders, and notifications issued by the
Ministry of Environment and Forests, the Court treaded lightly by dropping
actions against senior officials of the State Board, and called on the Central Board
to supervise. 56 This put considerable pressure on the Central Board to act as an
authority over the State Board but relieved the Central Board of the responsibility
of making the decision to police the State Board on its own. In this intervention,
the Court averted a potential conflict of interests between the State Government
and the Central Government of India, the governments who appoint the Chair-
men of the State Board, and the Central Board respectively.
On the other hand, after hearing opinions from expert committees, the court
ended its intervention in the issue by dismissing the charge, and passing the
responsibility for enforcement back upon the Central Board. Indeed, it appeared
that the struggle for power was intensifying on paper, as the judiciary, through
courtroom dramas, fines, and punishments, sought to check the power of the
executive branch and of industries throughout the country. Yet as it called upon
the same agencies it reprimanded to implement its orders, the Supreme Court
began to appear profoundly limited.5 7
The appointment of commissions to investigate and provide advice on environ-
mental problems can be considered court-directed intervention.5 8 As Muralidhar
writes, the court's constant monitoring of previous directions is a characteristic
feature of PI. 59 When they use a mandamus remedy, courts will allow cases to
continue until they are satisfied that the purpose of the intervention has been
adequately served. Yet in M.C. Mehta v Union of India (No. 3727) and in Cmdr
Sinha v Union of India, a case I will introduce later, outside commissions were
staffed with members of government agencies. 60 These members tended to toe
the line of administrative and industrial agendas, undermining, over the long
term, the court's own interventionist powers.
Ganguli writes that suo motu interventions, the appointment of investigative
committees, and monitoring exercises to ensure conformity with the law all

India & Ors. (Oct. 20, 1995).

56. Personal assessment and observation.
57. Moreover, industries and government officials use religious interpretations of the river's purificatory
power to hide their polluting practices. See generally ON THE BANKS OF THE GANGA, supra note 2, at 207-3 1;
Kelly D. Alley, Separate Domains: Hinduism, Politics and Environmental Polluion, in CHRISTOPHER KEY
CHAPPLE & MARY EVELYN TUCKER, HINDUISM AND ECOLOGY: THE INTERSECTION OF EARTH, SKY, AND WATER
355-87 (Lawrence E. Sullivan ed., 2000).
58. However, Justice Bhagwati has argued that this power to appoint advisory commissions lies in Order
XXVI CPC and Order XLVI of the Supreme Court Rules, 1966, which provide for appointment of commissions
for the purpose of examining witnesses, making legal investigations and examining accounts. See Ganguli,
supra note 18, at A-14.
59. Muralidhar, supra note 27, at XI.
60. This discussion is supported by a personal assessment of government documents.
808 THE GEORGETOWN INT'L ENvTL. LAW REVIEW [Vol. 21:793

signify a transformation in the role of the judge.6 ' Public interest litigation
usually flies on the coattails of charismatic justices.62 Justice Kuldip Singh
played a charismatic role during his tenure on the Supreme Court bench hearing
environmental cases. Over the course of his career, Justice Singh ruled in over
one hundred environmental cases, many of them filed by lawyer M. C. Mehta.63
Indeed a peculiar kind of connection between Justice and lawyer evolved during
this period, as both worked together to create a productive trial record.

B. RAKESH JAISWAL V. STATE OF UTTAR PRADESH

In Rakesh Jaiswal v State of UP,Justice Malaviya also assumed an activist and

charismatic position. During hearings in the High Court of Judicature in Alla-
habad, the courtroom was packed with lawyers and observers. The case drew
quite a bit of media attention and this may have motivated the petitioner to
persevere and the justice to take a special interest in the issue so close to the end
of his career. In this case, Justice Malaviya issued long and poetic
64
orders while
the other two justices on the bench yielded the limelight to him.
Rakesh Jaiswal v. the State of UP was initiated by a letter written directly to
Justice Malaviya, son of the freedom fighter for Indian independence, Madan
Mohan Malaviya. In this letter, an environmental activist from Kanpur alleged
that police officers were throwing unclaimed bodies into the river Ganga to
dispose of them and pocketing the money allocated by the police department for
cremation. The activist wrote:
Hon'ble Sir,
Almost after a fortnight since we cleaned river Ganges of Kanpur by
removing 127 deadbodies (117 human and 10 animal carcasses), more than 100
dead-bodies could be counted in the same stretch of the river. Hon'ble Supreme
Court had defined the duties of Kanpur Municipality in 1988 (Ganga Case II). It
is the duty of Kanpur Nagar Nigam to ensure that no dead-bodies are thrown
into Ganga, but KNN [Kanpur Nagar Nigam] seems to be in a slumber. Our
efforts have failed to awaken the government machinery, be it police depart-
ment (biggest culprit), KNN or Pollution Control Boards (State and Central).
Instead, a strange rivalry is going on between Eco-Friends and police depart-
ment. We're removing the pollutants and police personnel are all out to thwart
our efforts and other concerned departments
65
are looking the other way.
Sir, please you do something.

61. Ganguli, supra note 18, atA-16.

62. See ON THE BANKS OF Ma GANGA, supra note 2, at 145-52, 164-65, 173-79 & 194-205; Baxi Foreword,
supra note 18, at VII.
63. One can refer to any digest of environmental litigation in India to see the astounding volume of cases
filed by M. C. Mehta and heard by Justice Singh.
64. The case actually died out after Justice Malaviya's retirement in October 1999.
65. Letter to the High Court of Allahabad (June 30, 1997) (on file with author).
20091 LEGAL AcTvisuVi AND RIVER POLLUTION IN INDIA

Invoking the relaxed doctrine of standing and treating the letter as a writ
petition submitted in the public interest, Justice Malaviya ordered that notices be
issued to several respondents. In fact, the Justice broadened the reading of the
letter to identify a wide range of the accused. In his memo to the court clerk, he
wrote:
This letter from Rakesh Jaiswal is treated as a writ petition by way of public
interest litigation as it involves not only pollution of river Ganges but also of
the entire atmosphere at Kanpur. It is further obvious that this position may not
only be true for Kanpur but may be equally true as regards the other places
wherever there is a city falling on the banks of river Ganges. Accordingly, let
the notice be issued to State of U.P., respondent no. 1, State Pollution Control
Board, U.P. Lucknow as respondent no. 2, Central Pollution Control Board,
Delhi as respondent no. 3 and the concerned authority of Ganga Action Plan as
respondent no. 4. The notices shall also be issued to Director General of Police,
U.P. Lucknow treating him to be respondent no. 5 as the letter under reference
states that even when eco-friendly people or society try to clean Ganga by
taking out the dead bodies and carcasses the police, instead of appreciating
them, thwart their efforts. At this stage, notice is not being issued to the
municipal authority as it may not be a matter concerning only one Municipal
Corporation but may 66
involve Municipal bodies throughout the state or even
outside this state.
Saldanha, a Judge in the High Court of Karnataka, has noted that a petitioner
must ultimately woo a Justice's activism for any concerted public interest
litigation to proceed.67 Justice Malaviya was aware of the precedents set in M.C.
Mehta v. the Union of India. By broadening the reading of the original writ, he
drew in a range of groups whose special interests resided not only in Kanpur but
also in other riparian cities in the river basin. Yet in the reports and orders that
followed, there was very little mention made of fundamental rights. Early on, the
Justice appointed a Muslim advocate of Allahabad to act as amicus curiae for the
petitioner.68 This High Court advocate had no prior experience with environmen-
tal cases or with public interest litigation.6 9
After the case opened in September 1997, the petitioner began a long period of
commuting back and forth from Kanpur to Allahabad to argue the matter. Before
the first hearing in the case, the petitioner met several times with his amicus
curiae to plan the argument. However, it was immediately evident that the
advocate had no real interest in the matter. In a public interest capacity, he had no

66. Order of the High Court of Judicature at Allahabad at P.I.L. W.P. No. 21552, R. K. Jaiswal v. State of U.P.
& Ors. (July 4, 1997).
67. Michael F. Saldanha, Peoples' Initiatives and JudicialActivism as a Catalyst of InstitutionalReform, 1
INT'L NETwoRK FOR ENVT'L COMPLIANCE AND ENFORCEMENT PROC. 13, 13-20 (1998).
68. Order of the High Court of Judicature at Allahabad at Civil Misc. Writ Petition No. 21552, R. K. Jaiswal
v. State of U.P. & Ors. at 2 (Oct. 22, 1997).
69. Personal observation and assessment.
 THE GEORGETOWN INT'L ENVTL. LAW REVIEW [Vol. 21:793

chance of collecting fees from the petitioner to pay for his expenses in time and
office supplies. This meant that the case took a back seat to his other work. In the
first court hearing, the amicus curiae was responsible for presenting an outline of
the problem, and he did so after much coaching from the petitioner before and
during the hearing. Eventually wooed by the newsworthiness 70
of the case, he
continued over the next year in an uncommitted manner.
During the year, the petitioner became well versed in the procedures and
practices of law in the High Court and took many opportunities to argue the
matters himself.71 However, the petitioner was soon drawn into the operations of
his respondents, operations that eventually co-opted his amicus curiae. We find
that the loose working relationship evolving between the petitioner, the amicus
curiae and the respondents came to exemplify the non-adversarial nature of
public interest litigation. Additionally, the Court had to decide what outside
committees could be called upon to provide scientific opinion and assist in an
investigation of government offices and industrial units. The Justice organized a
conference to encourage full cooperation by all departments to formulate mea-
sures to deal with this problem.7 2 This meant including in the resolution process
the government agencies he was sanctioning.
In the first year, the Court closed 150 tanneries in Kanpur, 50 saree printing
units in Varanasi, and 10 carpet dyeing units in Mirzapur for failing to set up
primary effluent treatment plants.73 The Court stopped seven stone crushing units
at Hardwar and ordered the constitution of a river police in twenty-two towns of
the state to prevent defecation on the riverbank and ensure that corpses and
pollutants are not thrown in the river.74 Justices ordered an uninterrupted supply
of power to waste treatment plants, pumping stations, and crematoria created
under the first phase of the Ganga Action Plan.7 5 They also directed officials to
clean the Lower Ganga Canal, a channel that brings a raw water source to
residents of Kanpur. The petitioner was also able to include a demand that the
municipality remove 500 trucks of sludge laced with chrome from the industrial
area and ensure safe disposal. However, while sounding ambitious and interven-
tionist on paper, these orders were not completely implemented or were imple-
mented in a way unintended by the petitioner and the Justices.

70. Personal observation and assessment. See also ON TH BANKS OF THE GANGA, supra note 2, at 198.
71. I was present at the first hearing of the case in 1997 and witnessed the initial stages of the development of
the petitioner's legal consciousness. By the time I returned to hearings in the case a year later, I found a
self-directed petitioner and a sidelined advocate.
72. See Order of the High Court of Judicature at Allahabad, Rakesh Kumar Jaiswal v. State of U.P. & Ors.
(Nov. 20, 1997).
73. See Eco Friends, Important Court Orders, http://www.ecofriends.org/maincourtorders.htm (last visited
May 21, 2009).
74. See id.
75. Order of the High Court of Judicature at Allahabad at Civil Misc. Writ Petition No. 21552, R. K. Jaiswal
v. State of U.P. Ors. (May 5, 1998) [hereinafter May 5, 1998 Order]; see also ON THE BANKS oF THE GANGA,
supra note 2, at 199-206.
20091 LEGAL AcTmVlsIM AND RIVER POLLUTION IN INDIA

The Allahabad High Court also nominated a team of senior retired officers of
the Indian Audit and Accounts Services to investigate how money under Ganga
Action Plan Phase-I had been spent.76 The audit team submitted a report to the
court indicating many improprieties in spending and many inefficiencies in
service activities executed by all agencies involved with Ganga Action Plan
projects. 77
Many observers have pointed out that court orders may become boons for
government agencies. For instance, the JalNigam (the state water and engineer-
ing board) benefitted from an order the High Court Justice passed in this case.
The court set up a monitoring committee to check the work of government
agencies under GAP.7 8 The committee submitted a recommendation that work be
done to halt discharge of wastewater from a particular drain feeding the river
Ganga. This drain had been running wastewater from the city of Banaras into the
river for years. The Justice issued an order that money be cleared by the city
administrator of Banaras to fix the problem. 79 But all players knew that without
an overhaul of the entire sewer system, the problem could not be fixed with a
one-time allocation. The Jal Nigam profited from the order because money was
dispersed to solve the problem, but the drain was not, in actuality, "tapped" or
diverted.8 ° Critics have also alleged that orders requiring Pollution Control Board
officials to permit and monitor industrial effluent plants also generate a good deal
of monetary exchange. 8 '

C. NEWS ITEM PUBLISHED IN HINDUSTAN TIMES TITLED, AND QUIET FLOWS THE MAILY
YAMUNA V. CENTRAL POLLUTION CONTROL BOARD AND OTHERS

News Item v. the CentralPollution Control Board has been, since its inception,
the least developed of the river ecology cases introduced here. It has languished
without a concerned petitioner. However, the orders in this case have been
sweeping in scope and warrant some attention. For example, on the 2 4 th of
January, 2000, the Supreme Court issued the following order:
Affidavit of the Chief Secretary has been filed which seems to indicate that
orders which were passed by us earlier directing that the pollution of the river
Yamuna should be stopped with effect from 1St November, 1999 have not been

76. May 5, 1998 Order, supra note 75.

77. NATIONAL RIVERS CONSERVATION DIREcToRATE, AuDIT REPORT ON GANGA ACTION PLAN IN UTTAR
PRADESH: GOMuKH TO KANNAUJ (1999).
78. See of the High Court of Judicature at Allahabad at Civil Misc. Writ Petition No. 21552, R. K. Jaiswal v.
State of U.P. & Ors. (Sept. 16, 1998).
79. May 5, 1998 Order, supra note 75.
80. Personal observation and assessment; see also ON THE BANKS OF THE GANGA, supra note 2, at 199-206
81. There are many allegations of corruption leveled against Pollution Control Board officials. See ON THE
BANKS OF THE GANGA, supra note 2, at 173-79 (presenting one version but also pointing out that it is very
difficult to provide evidence for these monetary exchanges).
812 THE GEORGETOWN INT'L ENVTL. LAW REVIEW (Vol. 21:793

complied with. This is so especially in view of the Report which has been filed
by the Central Pollution Control Board which shows that the situation is
alarming. For example, the BOD which should be at 2 in respect of fresh water,
was at 234.21 tons per day on 30th November, 1999. The position with regard
to the other pollutants is no better. In a hope that the Attorney general will be
able to take effective steps with a view to achieve the desired result, we adjourn
this matter to 3rd March, 2000. We, however, in the meantime direct every
industry in Delhi not to discharge their effluent into any drain leading to river
Yamuna or to river Yamuna itself which has the effect of polluting the said
river. This order prohibiting every industry from discharging the effluent which
causes pollution, will be communicated to every industry by the Delhi
Administration. The Central Pollution Control Board will file a fresh report
giving the state of water as on Ili Marsh 2000. This order prohibiting
contaminated discharge will also operate in respect of industries in Haryana
who will be informed by the State of Haryana. 82

In this order the Court made a wide order without providing details on its
execution, directing that decision to the Chief Secretary of the National Capital
Territory of Delhi and to the Central Pollution Control Board.8 3 Needless to say,
the orders were not expressly implemented; however, they did serve to introduce
this clean-up activity as a state and national priority. This has, if nothing else,
increased the visibility of the problem.84

D. COMMANDER SURESHWAR D. SINHA V. UNION OF INDIA AND OTHERS

In Cmdr Sinha v. Union of India, the petitioner filed a public interest petition
for the enforcement of fundamental rights guaranteed under Articles 14, 21, and
25 of the Constitution. 85 The petitioner demanded clean drinking water and better
management of water resources by arguing for an optimum flow of water in the
Ganga and Yamuna rivers. The petitioner also demanded the adequate treatment
of wastewater.8 6 Government officials from Haryana, a state located upstream

82. Supreme Court of India at Writ Petition (Civil) No. 725 of 1994, News Item published in Hindustan
Times titled, And quiet flows the Maily Yamuna v. Central Pollution Control Board & Ors. (Jan. 24, 2000).
83. News Item (Sept. 13, 1999) ("No effective action has been taken so far. It is for this reason that we are
constrained to hereby direct the National Capital Territory of Delhi through the Chief Secretary to take such
measures as it may deem proper, if necessary, by passing appropriate orders under Section 5 of the Environment
(Protection) Act, 1986 and also Water (Pollution and Control) Act, 1974 to ensure that no industrial effluent is
allowed to be discharged directly or indirectly into the river Yamuna w.e.f. Is' of November, 1999."). The
problem here is that the Justice is attempting to make up for lack of compliance by ordering the impossible:
clean up about 500 million gallons of wastewater generated each day in a matter of two months!
84. In fact many of the more visible newspaper and television reports on pollution and the river Yamuna were
provoked by orders issued in this case.
85. INDIA CONST. art. 14 (referring to equality before law); INDIA CONST. art. 21 (referring to the protection of
life and personal liberty); INDIA CONST. art. 25, § 1 (referring to freedom of conscience and free profession,
practice, and propagation of religion).
86. Civil Writ Petition (Civil) No. 537 of 1992, Comdr Sureshwar D. Sinha and Ors v. Union of India & Ors.
2009] LEGAL AcTsIIM AND RIVER POLLUTION IN INDIA

from the National Capital of Delhi, have been the most active respondents in the
case thus far.
Very early, Justices had to focus on the problem of the inter-state sharing of
river water. The Justices asked the River Conservation Authority to constitute a
High Powered Committee to address the issue of inter-state sharing of the river
Yamuna. The committee was composed of: a member of the Planning Commis-
sion as Chairman; the Secretary of the Ministry of Environment and Forests as
co-chairman; a member of the National River Conservation Authority; a member
of the Central Water Commission; Chief Secretary, National Capital Territory
(NCT) of Delhi; Chief Secretary of Haryana; Chief Secretary of Himachal
Pradesh; Chief Secretary of Uttar Pradesh; Chief Secretary of Rajasthan; Addi-
tional Secretary and Project Director, National River Conservation Directorate
and Member Secretary of the River Conservation Directorate, Ministry of
Environment and Forests. The Court directed the High Powered Committee
(hereafter HPC) to assess the requirement of a minimum flow so that the river
water quality could be restored.87 The Court also asked the committee to suggest
short and long term remedial measures for maintaining the minimum flow in the
river. The HPC met and recommended a formula for the sharing of river water
between the five states of Himachal Pradesh, Uttar Pradesh, Haryana, Rajasthan,
and the National Capital Territory of Delhi.8 8 Again, as it did in M. C. Mehta v.
Union ofIndia, the Court called upon the High Powered Committee to execute its
own resolutions and continue monitoring the dispute. However, the Justices
agreed with the High Powered Committee that the flow of the river through this
critical reach at Delhi had to be set at ten cumecs (cumec is short for cubic meter
per second). The Court asked the committee to continue monitoring the implemen-
tation of the short-term and long-term measures suggested by the committee,
including the construction of sewage treatment plants.8 9
Later in the case, officials of the state of Haryana argued that the findings and
formulas of the High Powered Committee could not trump an inter-state water
memorandum of understanding. The Chief Minister of Haryana wrote in an
affidavit to the court:
Kindly refer to your D.O. letter No. CM/99/1880 dated April 9, 1999 regarding
release of additional waters to Delhi. In this connection I would again draw
your attention to the fact that an MOU [Memorandum of Understanding]
between the States of Haryana, HP, UP, Rajasthan and NCT Delhi was signed
by the Chief Ministers on 12.5.1994 for sharing of waters of River Yamuna.

87. Order of the Supreme Court of India at Writ Petition (Civil) No. 537 of 1992, Comdr. Sureshwar D. Sinha
& Ors. v. Union of India & Ors. (May 14, 1999).
88. DR (MRs.) R. DALWAm, TmRD MEETING OF THE HIGH POWERED COMMrrTEE ON MAINTENANCE OF
MmImuM FLOW INRIVER YAMUNA (June 15, 1999).
89. Order of the Supreme Court of India at Writ Petition (Civil) No. 537 of 1992, Comdr. Sureshwar D. Sinha
& Ors. v. Union of India & Ors. (Jan. 10, 2000).
 THE GEORGETOWN INT'L ENVTL. LAW REVIEW [Vol. 21:793

However, Haryana was compelled under the orders of Hon'ble Supreme Court
dated 29.2.1996 to supply more than the determined share of NCT Delhi which
is being done by reducing the supplies to Haryana's agricultural and drinking
water supply requirements. I am glad to note from your letter about your
intention to adhere to the Agreement reached earlier which means the MOU
signed between the five States. In keeping with this resolve, it would be most
appropriate that NCT Delhi approaches the Supreme Court to revise its orders
dated 29.2.1996 so that the supply of waters of River Yamuna to NCT Delhi is
made according to the MOU or any other arrangement that is decided in the
Upper Yamuna River Board. We had already discussed this matter earlier
during our meeting on 28.12.1998 but no follow up action has been taken by
NCT Delhi so far. 90

In a later section, the Under Secretary of the Irrigation Department argued that
any party including the petitioner should be barred by the provisions of Article
262 of the Constitution of India read with the provisions of the Inter-State Water
Disputes Act, 1956 from seeking adjudication of matters relating to waters of an
inter-state river. 9 ' Insofar as environmental matters are concerned, the official
added, the pollution problem had to be solved by Delhi, by a strict regulation of
industrial and domestic discharge, and by the installation of wastewater treatment
plants.
The Under Secretary for the Haryana Irrigation Department proposed a
separate Tribunal to deal with these matters and added:
Even if drinking water and its requirements are elevated to the status of a
fundamental right under Article 21 of the Constitution of India, it can only be
exercised by the residents of one State against its own State Government or else
it would open the floodgates not only under Article 32 of the Constitution of
India with the residents of one State approaching their own High Court and
dragging in another State to supply waters to them.92

Finally, the Secretary called for a constitutional bench, arguing that "the
question whether Articles 32, 226 or 142 would override or form exceptions to

90. Letter from Bansi Lal, Chief Minister, Government of National Capital Territory of Delhi (Apr. 16,
1999).
91. Supreme Court of India Counter Affidavit on Behalf of the State of Haryana at Writ Petition (Civil) No.
537 of 1992, Comdr. Sureshwar D. Sinha v. The Union of India & Ors. (Jan. 4, 2000).
92. Id. Later, he moves in to the question of "whose rights":
It is further submitted that the people of Haryana have as much right under Article 21 to drinking water and
water for farming which produces foodgrains and vegetables. Food and water together forming the nutrients for
the human body and thus being essential to life of every human being, the Constitution has left intra-State
waters under the control of States in Entry 17, List 11,Schedule VII and inter-State river waters in the realm of
negotiations and agreements between States and failing agreement, resolution of water disputes by the Tribunal
specially constituted under an Act of Parliament under Entry 56, List I read with Article 262 of the Constitution
of India. The Constitution framers, consciously following the scheme of Sections 130 to 134 of the Government
of India Act, 1935, barred the jurisdiction of all Courts, including this Hon'ble Court; in these matters, as
matters not appropriate for judicial intervention and adjudication.
2009] LEGAL AcTIVmsIM AND RIVER POLLUTION IN INDIA

Article 262 is a substantial question as to the interpretation of constitutional

provisions and could only have been and can only be decided by a bench of five
Hon'ble Judges of this Hon'ble Court as per Article 145(3) of the Constitution of
India. ''9 3 In an affidavit to the court on January 15, the petitioner responded,
clarifying that the inter-state agreement made provision for a specific allocation
of 0.337 BCM (billion cubic meters) of water equivalent to 569 cusecs (or to over
16 cumecs) of flow in the river for ecological reasons.94 The petitioner was
arguing for a minimum flow of 10 cumecs of water in the reach below Haryana.
The amount was less than that stipulated in the memorandum! The petitioner
concluded:
In particular the attempt to draw attention to Article 262 of the Constitution of
India is entirely futile. The said Article itself does not bar the consideration of
this instant petition by this Hon'ble Court, but allows Parliament to pass laws
for the adjudication of disputes pertaining to inter-state rivers. However,
Parliament in its wisdom, has purposely limited the scope of the Inter State
Waters Disputes Act, 1956 vide Section 2, by defining water disputes covered
by the Act and stating "Water dispute means any dispute or difference between
two or more State Governments with respect to..." various items mentioned in
the sub-clauses. Since this humble petitioner is neither a State Government, nor
a functionary thereof, it is clear that there is not bar under this Act, nor under
Article 262 of the Constitution of India to this Hon'ble Court hearing this case.
Furthermore, this Hon'ble Court has also clarified in a number of cases, viz.
The KeshavanandBharativs State of Kerala,Indira Gandhi vs. Raj Narainand
the S.R. Bommai vs Union of India, amongst numerous other cases that citizens
of this country cannot be barred from protecting their fundamental rights by
approaching the Hon'ble Courts of this country. That there is no need for a
Constitution Bench to go into this matter, as a citizen is not barred either by
Article 262 of the constitution, nor by the Inter State Waters Disputes Act, 1956
to approach
95
the Hon'ble Court for the protection of fundamental rights of
citizens.

On April 10, 2001, the Bench listed three related cases: Cmdr Sinha v. Union of
India, News Item v. CentralPollution Control Board, and M. C. Mehta vs. Union
of India and others (No. 4677/85 not 3727). The Court did so to address their
overlapping concerns and arguments together. Better known as the Delhi pollu-
tion case, the third case (No. 4677) was included because it also addressed the
problem of city wastewater management, an issue central to the two other cases.
To consolidate arguments into one problem-solving strategy, the Court issued an
order for all three cases. In the process, the Justices addressed the right to life:

93. Id.
94. See Rejoinders Affidavit of the Petitioner to the Counter Affidavit on Behalf of State of Haryana, Comdr.
Sureshwar D. Sinha & Ors. v. Union of India & Ors. (Jan. 15, 2000).
95. Id.
816 THE GEORGETOWN INT'L ENVTL. LAW REViEW [Vol. 21:793

There can be no denying of the fact that right to life guaranteed under Article 21
of the Constitution would surely include a right to clean water. That is a right
which is being deprived to 13.8 million citizens of Delhi because of the large
scale pollution of the river Yamuna. The entire pollution takes place only in the
stretch which the Yamuna passes through Delhi, which is of about 22 Kms. The
quality of water of the river Yamuna, when it enters Delhi, is far superior than
that when it leaves Delhi and by the time Yamuna enters into Agra Canal. Delhi
succeeds in reducing the dissolved oxygen level of the water to 0 per cent. This
Court has been seized of the matter since a number of years but till today no
effective steps have been taken to ensure the improvement of the quality of the
water. The quality has deteriorated only. This itself shows the lack of proper
governance. In an affidavit filed on behalf of the Ministry of Urban Develop-
ment on 8th November, 2000, an Integrated Action Plan has been proposed for
improving the water quality of river Yamuna. The response to this, in the
affidavit filed on behalf of the Delhi Government, is that the Integrated Action
Plan is broadly accepted, but as is usually the case, it has pleaded helplessness
in implementing the same in its entirety. It appears to us that with the existence
of numerous agencies in Delhi no single entity can be held responsible for
cleaning up the river Yamuna. Now when an Integrated Action Plan has been
furnished, it is imperative that steps be taken so as to ensure that at least by 31st
March 2003 the minimum desired water quality, i.e. of Class-C, of the river
Yamuna is achieved. We direct the Ministry of Urban Development to file a
further affidavit indicating as to how its Integrated Action Plan can be
implemented within the prescribed time frame. Affidavit to this effect be filed
within two weeks from today. The Chief Secretary, Delhi will also file an
affidavit informing the Court as to what steps will be taken in order to ensure
the attaining of the required quality of water in the river Yamuna so that the said
river can no longer be called 'mailee Yamuna'. 96
This recent order represents the full presence of the court in the everyday
affairs of natural resource policy and management. The Justices identified and
then called forward many agencies to work on the problem. An order to continue
work with an Integrated Action Plan was made, a time line proposed, and a date
to revisit the respondents' plan of action set for two weeks later.9 7 Like those in
the Ganga Pollution cases in both the Supreme Court and High Court of
Allahabad, this order finds Justices grappling with the problem of coordination
between concerned agencies and parties and stretching the role of mediator and
enforcer across multiple planes. These cases show that Justices have appointed
coordinating committees upon the requests of the petitioner and according to
their own assessments. This appears to be the primary function of these river
ecology cases. The coordinated activities and reports that emerge from these

96. Order of the Supreme Court of India at Writ Petition (Civil) No. 537 of 1992, Comdr. Sureshwar D. Sinha
& Ors. v. Union of India & Ors. (Ap. 10, 2001)
97. See id.
2009] LEGAL AcTVIsiM AND RIVER POLLUTION IN INDIA

orders do not, however, lead to the express implementation of the orders issued
by the court.
It is also clear here that a few of the petitioners and lawyers mentioned in these
cases have been deeply involved with the invocation of fundamental rights. 98
However, the remedies formulated by the courts have not always been related
directly to the restoration of these rights. In the M. C. Mehta case, the court did
not make reference to any fundamental right when using Article 32 and ordering
a wide range of administrative and monitoring actions. In the Cmdr Sinha case, a
fundamental right was claimed, not only by the petitioner on behalf of residents
of Delhi but also by Haryana officials on behalf of residents of a neighboring
state. Indeed the court appears to have acted more upon the general understand-
ing that rivers require minimum flow for groundwater recharge and the dilution
of wastewater and less upon the issue that a group's fundamental rights have been
violated by the government. In this case, there appears to be a disconnect between
the actual logic of the legal argument which builds upon fundamental rights and
the desired outcome of the petitioner (and implicitly of the Justice) to return
water to the river stream. Both Justices and the petitioner in this case appear to
use the fundamental rights jurisdiction to argue for ecological values. 9 9
Cunningham has written that the relationship between rights and remedy is
often stretched to the point of disconnection when the preliminary issuance of
interim orders for immediate relief are followed by a long deferral of the final
decision."° Cunningham offers a way to understand the bifurcation of remedy
from right:
All would then be seen as cases in which the court tells the government what in
its opinion, the government ought to do. If the court feels that the social
injustice presented by a particular case creates a powerful imperative for
concrete action, and feels sufficiently confident that the executive will share
that sense of the imperative, then it will venture to issue specific remedial relief.
If it does not feel that a case presents such an imperative, or doubts its ability to
persuade the executive, 0it1 may limit itself to a declaration of rights bolstered by
argument and rhetoric.1

98. See Anderson, supra note 14, at 201 (pointing out that Indian legal training has focused more on the
interpretation of comprehensive statutes and less on case precedents). However, these cases are sometimes
argued by citizens without background in law. In Jaiswalv State of UP, the petitioner did not pontificate on
fundamental rights but invoked provisions in the Water Act and other legislation to forward policy points and
participate in monitoring exercises.
99. The Cmdr Sinha case is still active so it remains to be seen how the final orders will be fashioned.
100. See Clark D. Cunningham, Public Interest Litigation in Indian Supreme Court:A Study in the Light of
American Experience, in SUPREME COURT ON PUBLIC INTEREST LITIGATION A-67 through A-79 (J. Kapur ed.
1998).
101. See id. at A-85; see also Nandan S. Nelvigi et al., The Judiciaryand the Environment: Recent Trends
and Developments, 23 ENvT. L. & POL'Y 102, 103-04 (1993) (noting that "the trend of exercising jurisdiction
without specifying the right violated leads to jurisprudential confusion and judicial arbitrariness" and "should
be halted").
818 THE GEORGETOWN INT'L ENVTL. LAW REVIEW [Vol. 21:793

IV. A LEGAL PATHWAY: BROAD RIGHTS, DIFFUSE COVERAGE

The cases presented here show that the breadth and procedural innovativeness
of this rights-based discourse has created a legal pathway. In this pathway,
charismatic Justices have worked with lawyers and citizens to encourage confor-
mity of government practice to policy and court orders, regulate industrial
practices, and create policy change. 102 The case materials show that petitioners
and Justices have invoked Fundamental Rights, Directive Principles pertaining to
environmental quality, and the remedy of mandamus to advance problem solving
over crucial water problems. The Fundamental Rights and Directive Principles
are broad frameworks of legal justification; the mandamus charge is a broad
remedy for executive failures. Put together, they make for a diffuse approach to
lawlessness and environmental damage. Ganguli writes that the court's interven-
tion was originally sought to counter executive and legislative inaction but that
more recently it is criticized for traversing beyond the interests of the disadvan-
taged and the environment and into the realm of policy making and implementa-
tion. 10 3 The Justices in the environmental cases described here have demanded
response and action from government agencies, industrial agents, and those
involved with policy making and the enforcement of laws. They have appointed
commissions and reviews to deliberate water problems, find solutions, and check
the practices of government agencies and industrial units. Yet behind the
rhetorical and constitutional strength of these orders and directions there appears
to lie a complete incompetency: orders and directions facilitate platitudes in legal
discourse but result in poor implementation on the ground." Nevertheless, these
"broad coverage cases" have allowed Justices to identify and call together
responsible parties.
Baxi has argued that this judicial drive produces a complicated embellishment,
an "abhusan" or "cluster of judicial ornaments which masks the real face of state
power."' 5 Putting it another way, Baxi adds that social action litigation "is yet
another, and probably final, endeavor to remedy the democratic deficit of the
Indian ruling classes." 10 6 This ethnographic excursion through four river ecology
cases has traced out the legal pathway used by citizens, lawyers, and Justices to
debate great problems of water and power and fashion judicial remedies for them.
The cases show that the courts play a significant role in the identification of
problems and the definition of broad principles and coalitions to sort out and
attack these problems. Judicial players use evocative constitutional provisions

102. Although Justices initiate this breadth, they are also frustrated by it. In Cmdr Sinha v. Union of India,
Justice Kirpal reprimanded the petitioner for straying from his original prayers. Personal observations during
February 8, 2001 court hearing.
103. Ganguli, supra note 18, at A-2.
104. I am not explaining fully the ways in which these orders have been reinterpreted or breached.
105. Baxi Foreword,supra note 18, at VII-VIII.
106. Id. at VIII
2009] LEGAL AcTIVIsiM AND RIVER POLLUTION IN INDIA 819

and procedural innovations to make broad arguments about gargantuan problems.

Yet operating through breaches of laws and court orders, government offices and
private industrial agents appear to outmaneuver the discursive power of the
judiciary. There is little doubt that a unique legal pathway has emerged through
debates in these four river ecology cases. It is quite likely that this legal pathway
will continue to produce broad coverage cases and orders in the near future,
necessitating a critical look at the ways these deliberations diffuse out and
intersect with other cultural networks.