Author: Nikita Barreto, III year of B.A., LL.B from School of law, Christ University.
Co-author: Yashwardhan Bansal, III year of B.A., LL.B from School of law, Christ University.
Our environmental problems originate in the hubris of imagining ourselves as the central nervous system or the brain of nature. We are not the brain; we are a cancer on nature.
- Dave Foreman
The development of society and enhancement in technology is inevitable in the modern-day world. The state provides and assists this process for economic enhancements and modernization of society. At the same time, the state is even vested with the duty to placate the repercussions of development, which is pollution and the environment’s degradation. The process of development since the industrialization age has polluted the environment and degraded it to such an extent that it is directly impacting human health. It is essential to safeguard the environment and confer a healthy environment to individuals.
The protection of the environment and providing a healthy environment to individuals is essential. The judiciary plays an important role in India to protect the right to a healthy environment extended by the constitution has been enunciated. The paper includes the endeavour made by the robust judicial machinery like the National Green Tribunal and the Supreme Court to safeguard the environment and its restoration. The role of judicial activism in the process of protecting the environment has also been traced in the paper. The introduction of various key tools like Suo Moto and Public Interest Litigation (PIL) by the court to protect the environment have also been elucidated. The paper limelight's the several international laws and principles which the judiciary has introduced in India that have played a significant role in the process of curbing environmental degradation.
Keywords: Judicial Activism, Environment protection, Indian Judiciary, Suo Moto, and Public Interest Litigation.
India is a democratic nation with structural governance in the country. There is a separation of power amongst three gigantic fragments, namely, legislature, administration, and Judiciary. They have their separate powers and functioning working for the people and management of the country. The sole aim of the institutions is to avoid injustice and provide people with a better life. The environment plays a significant role and has become a matter of priority for each of these fragments. Judiciary among the three fragments works freely and plays a major role in protecting the environment and people's right to a healthy environment.
Articles 21, 48-A, 39 (e), and 47 of the Indian constitution provide for the right of people to a healthy and wholesome environment. It even obligates the state and individuals with the duty to safeguard and preserve the environment.
The judges have played a vital role in safeguarding the environment. Even after the ample attempts made by the judiciary, the ground reality seems to be bleak and the effectiveness of the actions taken by it has been in question. The concerns relating to the effectiveness of the judiciary in promoting sustainable development and protecting the environment at the grass-root level have to be raised. The article explains the role of the judicial mechanism in India and the various efforts it has made to safeguard the environment.
Role of Indian Judiciary:
It has been long experienced specifically in the post-independence era that the judges have played a major role in the development of law in India. In the words of Cardozo, they are the judges who contribute the most towards the development of law, and the judges making law is one of the existing realities in the world. When we trace the development of environmental law in India, the judges have played a cardinal role in the development of it, and their value preferences have impacted the decision-making process.
The Supreme Court is vested with the power of judicial review under the Article 32 of the Indian constitution. In a similar way, the high courts have been vested with the power of Judicial Review under Article 226 of the Indian constitution which has been specified in various decisions by the Supreme Court. This power has further enhanced the role of the judiciary as they ascertain the legality of the actions taken by the executive and the legislation passed by the legislature.
Even the NGT has been vested with the power of judicial review which has been a bone of contention as it is a quasi-judicial body.
The doctrine of absolute liability has saved various victims from rampant environmental degradation caused by large enterprises. It has over the years not only helped the victims but even deterred the large enterprises from polluting the environment. The polluter pays principle emphasizes the individual or entity causing harm to the environment shall be liable to pay for restoring the environment. The precautionary principle on the other hand focuses upon preventing any possible harm to the environment.
These two principles have played a major role in fixing liability on the polluter and deterring pollution in India. It was discussed in Vellore Citizen’s Welfare Forum case, and from there it has become a crucial part of the environment jurisprudence in the nation.
The strength of the Indian environmental jurisprudence has been the procedural innovation and lack of traditional processes being followed in the courts. It is judicial activism that has broken the barriers and led to such extensive and positive development of environmental jurisprudence in India. Judicial activism is a concept that has flourished in the common law system under which the judges consider their personal views and surrounding pragmatic political ideas to deliver a judgment.One of the most innovative and remarkable developments in the Indian judiciary is public interest litigation (PIL) which came into existence due to judicial activism.
It can be observed that different PILs filed in the courts in the last four decades have led to major advancements in environmental jurisprudence. One of the classic examples of the same is the Indian Council for Enviro-Legal Action v. Union of India. In this case, the court ordered closing the industries in the Udaipur district of Rajasthan. Such an order was passed by the court as the natural resources like water and air essential for the survival of the inhabitants were polluted by the industries. This order was even passed so that the environmental degradation in that region by the industries could also be curbed.
The court's power to exercise Suo Moto cognizance is another major development that has helped courts contribute towards various environmental issues. Through this power, the courts can address environmental issues concerning a large section of the population or community’s interest.
Issues and Effectiveness:
The fundamental right to equality enshrined under Art. 14 of the Constitution prohibits discrimination. It prohibits an arbitrary, unreasonable act on the part of the state and protects the right by ensuring fairness and provides a guarantee against the arbitrariness in State action and ensures fairness and equality of treatment and looks into the fabric of the Rule of Law.
The principle of the rule of law is to forbid arbitrary power and any abuse of power by the state. It is a basic feature of the Indian Constitution and hence cannot be scrapped even by an amendment under Article 368 of the constitution. Every state action must be guided by reason for the public good; it should be guided by public interest and not by whim, caprice, and abuse of power in the actions of the judiciary.
We see in Article 19 of the Indian Constitution that provides the right to carry on any trade or business, which is a reasonable restriction. The restriction imposed can be characterized to be reasonable if it strikes a balance between the fundamental right and the restriction imposed. This is done to prohibit a citizen from continuing a business or trade that will harm the environment. In the case of Cooverjee B. Bharucha v. Excise commissioner, Ajmer, the Supreme Court said that in cases where there is a conflict between the protection of the environment and the right to freedom of trade and occupation, protection of the environment will be given more importance.
In India, the Parliament does not vest any specialized institution with the power to frame rules. There have been agencies that have been set up by statutes like the Pollution Control Board, the regulation of which stays in the hands of the Central and State Government. There prevails lack of adequate staff, the asymmetry between the number of technical and non-technical staff; centres of monitoring bodies and laboratories are also not sufficiently diffused in their functioning. In this condition, the courts find it difficult to address matters requiring scientific and technical evaluation. Due to the lack of independence given, they have to depend on the state and the central government for the appointment of which in turn leads to a lack of competent people. The appointment is done by the whims and fancies of the government.
When it comes to environmental protection, India has taken wide leaps and is far ahead of where it was a few decades back. The assent to various international conventions and commitment towards restoring and preserving the environment in India has been remarkable. Even after the tremendous work, there is a need for further development. Both the executive and legislature haven't been able to tackle different difficulties. The judiciary on numerous occasions had to intervene and address the inaction by the executive. It is one of the independent machineries like the legislative and executive that have played a major role in the protection of the environment.
It has introduced various key tools like the polluter pay principle, the doctrine of absolute liability, and the precautionary principle. It has even assisted in the implementation of key international laws and conventions promoting environmental interest. Judicial activism and PIL developed by the judiciary have proved to be cardinal tools.
The establishment of NGT in India as an independent judicial machinery has expands its power to curb environmental degradation. The judiciary tries to fill the lacuna. The new developments in this field and innovations help with this. But there are some recommendations that need to be considered. The public should also be made aware of the crucial condition. There are various criticisms firstly, it faces that it lacks judicial independence from the government. The tribunal also lacks adequate sum for its proper functioning.
The law commission report on the environmental courts suggested that one such court should be established in every state. But the NGT has only 5 benches. This has created a problem for common citizens asking for justice as it is difficult to approach a court which is in a different state and far from their home. The establishment of NGT also took away the right of civil courts to admit cases regarding environmental issues.
So, it is now compulsory to file the case before the NGT. Now even a PIL cannot be filed in the High Court of the state for environmental issues as all environmental litigation shall be dealt only by the five benches of NGT. There is a need for an environmental tribunal on district bases, but present system is not even providing it on a state basis.