Environmental Jurisprudence in India - The role of Supreme Court
| Autor | Deva Prasad.M |
| Cargo | 4th Semester, B.Com LLB(Hons),Gujarat National Law University |
"When you are in doubt, think of the most weak and deprived member of society and consider whether the line of action you propose to take is going to benefit him in any manner and to what extent " 1
Indian environmental law has seen considerable development in the last two decades. Most of the principles under which environmental law works in India today were assembled over the last two-decade. A predominant share of essence of the existing law relating to the environment has developed through careful judicial thinking in the Supreme Court and the High Courts of the States legislative initiative 2. The legislative action could be seen form Forty-second Amendment3 to the Indian Constitution in 1976 introduced principles of environmental protection in an explicit manner and also the enactment of the Environment Protection Act, 1986.There have been initiatives from the legislature and the executive but the judiciary has taken a lead in terms of the actual immediate effect its actions have had on the environment. If the mere enactment of laws relating to the protection of environment were to ensure a clean and pollution free environment, then India would, perhaps, be the least polluted country in the world4. Failure on the part of the governmental agencies to effectively enforce environmental laws and non-compliance with statutory norms by polluters resulted in an accelerated degradation of the environment. Such large-scale environmental degradation and adverse effects on public health prompted environmentalists and residents of polluted areas, as well as non-governmental organizations, to approach the courts, particularly the higher judiciary, for suitable remedies5. In the process of adjudication on the environmental matters the Supreme Court have actually come up with the new pattern of "judge -driven implementation"6of environmental administration in India. The court have played a pivotal role in interpreting those laws and has successfully isolated specific environmental law principles upon the interpretation of Indian statutes and the Constitution, combined with a liberal view towards ensuring social justice and the protection of human rights 7.
So when one analyse the Indian environmental law's development path, one will be surely have to keep into mind the concept of judicial law making. Julius stone puts this as judicial legisputation 8.
Role of judiciary in the development of Environmental Law in India.
The judiciary a spectator to environmental exploitation for more than two decades has recently assumed a pro-active role of public educator, policy maker, super-administrator, and more generally, amicus environment. We can say environmental law in India as the story of India's judiciary responding to the complaints of its citizens against environmental degradation and administrative sloth9.
The most characteristic feature of the Indian environmental law is the important role played by the public interest litigation .The majority of the environment cases in India since 1985 have been brought before the court as writ petitions, normally by individuals acting on pro bono basis10.The public interest litigation is as a result of the relaxation of the locus standi rules. There was departure from the "proof of injury" approach11. This form is usually more efficient in dealing with environmental cases, for the reason that these cases are concerned with the rights of the community rather than the individual12.
The judiciary looked to constitutional provisions to provide the court with the necessary jurisdiction to address specific issues. Disputes that are normally matters of torts in other common law jurisdictions are treated as fundamental cases in India13. But the funda mental rights part of the constitution of India does not have any specific mention of the environmental matters. Here the Supreme Court played a pivotal role. The Supreme Court, in its interpretation of Article 21, has facilitated the emergence of the environmental jurisprudence in India. Supreme Court have essentially interpreted the right to life under Article 21 to include a right to healthy and pollution free environment.
One of the main objections to an independent right or rights to the environment lies in the difficulty of definition. When a claim is brought under a particular article of the Constitution, this allows an adjudicating body such as the Supreme Court to find a breach of this article, without the need for a definition of an environmental right as such14. The Court will make an endeavour to find a risk to life, or damage to health, on the facts before it, would set a standard of environmental quality in defining the right litigated. This is for the reason that the fundamental right under Art.21 of Constitution of India is a negative right and not a positive self -executory right15.
Jurisprudential aspect of the interpretation of Right to environment.
Principles for interpretation of the Constitution "balancing of interests" and the "intentionalist" approach are referred to see how these are looked from the perspectives of expanding the horizons of the Art.21 to include the right to healthy and pollution free environment.
A very important case in this regard is the Subhash Kumar v. State of Bihar16 it was observed that "Right to live 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 the right to have recourse to Article 32 of the Constitution 17". Through this the Supreme court recognised the right to a wholesome environment as part of the fundamental right to life. This produced a compulsion to take positive measures to improve the environment. 18
In the sight of Chief Justice of Supreme Court of India Y.K. Sabharwal the Supreme Court expanded Article 21 in two ways. Firstly, any law affecting personal liberty should be reasonable, fair and just. Secondly, the Court recognised several unarticulated liberties that were implied by Article 21. It is by this second method that the Supreme Court interpreted the right to life and personal liberty to include the right to the environment 19.
We could see the way Supreme Court interpreted this particular case and other case that deals with the environmental matters can be easily explained using the principles of interpretation such as intentionalist.
The intentionalist should try to understand how the adopters intended a provision to apply in their own time and place is, in essence, doing history interpreter and must take further step of translating the adopter's intentions into the present existing social and political context20. Justice D.M. Dharmadhikar i expresses his view regarding the Article 21 in an highly structured way as "Article 21 has been one single article which by interpretation has been expanded to progressively deduce a whole lot of human rights from it, such as, right to "means of livelih ood"; "right to dignity and privacy"; "right to health and pollution-free environment"; "right to education"; "right to legal aid and speedy trial" etc. Thus, expanding the scope and ambit of Article 21 to cover in it the rights which are not expressly enumerated, the Supreme Court has interpreted the word "life" to cover in it "all aspects of life which go to make a man's life meaningful, complete and worth living". It will also cover his tradition, culture, heritage and health21"
Acceptance and development of the Environmental Law Principles by Supreme Court.
"A Judge who denies to himself judicial activism denies to himself the role of a judge. Nature abhors a vacuum. Take away judicial activism and tyranny will step in to fill the vacant sphere"
Justice Madon22
The judiciary has used specific environmental law principles upon the interpretation of Indian statutes and the Constitution. This could be construed as a result of the judicial craftsmanship and this is due to with a liberal view tow ards ensuring social justice and the protection of human rights. The principles have often found reflection in the Constitution in some form, and are usually justified even when not explicitly mentioned in the statute concerned. An attempt to relate this acceptance and development of the environmental law principles to the concepts of 'judge-made law' and also the 'silent revolution'23 which the Supreme Court tries to make through its judgments aiming at the social justice jurisprudence.
i) Development of the Absolute liability principle .
In the case of M.C.Metha v. Union of India 24 (Oleum gas leakage case) Justice Bhagwati came up with the absolute liability principle. In this case the leak of oleum gas from the factory injured several Delhi citizens. Justic e Bhajawati used this opportunity to develop the concept of Absolute liability, which replaced the strict liability of Rylands v.Fletcher25 . In this judgment by Bhajawati we could see the judicial activism of the highest order. Bhagawati held that strict liability rule evolved in the 19th century and that "law has to grow in oder to satisfy the need of the fast changing society and keep abreast of the economic developments taking place in the country26".He goes on to say "we no longer need the crutches of a foreign legal order... we in India, cannot hold back our hands and I venture to evolve new principles of liability which English courts have not done 27". Justice Bhajawati also observed that law has to grow in order to satisfy the fast changing society and keep abreast of the economic developments taking place in the country28.
The components of the absolute liability may be identified as follows:
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) It applies to an enterprise that is engaged in inherently dangerous or hazardous activity.
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) The duty of care is absolute
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) The exception to the strict...
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