Written by Swaroop Nair of Amity University, Maharashtra
Edited by Noor Deewan
The environment is too important for human life to sustain and we cannot afford to treat the environment with negligence. With rapid industrialization and development programs, we have been rather reckless in the way we keep on reaping benefits and exploiting our environment. The need for environmental protection has never been so important and law plays a crucial role in it. Our constitution expressly stresses on the need for the protection and conservation of the environment. It is the duty of not only the civilians, but also of the State to protect, safeguard and improve the environment. What was earlier only a part of the Directive Principles of State Policy, the non-enforceable part of the Constitution of India, is now even regarded as a fundamental right. The executive, the legislature and the judiciary all have roles to play in it. In recent times, judicial activism is becoming increasingly important when it comes to environmental protection.
MEANING OF JUDICIAL ACTIVISM
Judicial activism is not an entirely new concept in India. Although it began to be widely recognized around the world in around 1947, it was practiced even during the colonial era. The British courts operating in England as well as in colonial India had put to use this concept in cases where there was no appropriate law to be referred.
Judicial Activism is defined in the Black’s Law Dictionary as “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.”
The fundamental rights are perhaps the most crucial provisions of the Constitution. Every citizen is guaranteed these fundamental rights by the Constitution and it is the responsibility on the State to uphold and protect these said rights. The judiciary plays a very crucial role in this for it is the judiciary that gives the remedies when an individual’s fundamental rights are infringed. In performing this function, the judiciary, particularly the Supreme Court, takes certain liberties and goes beyond its purview to ensure that no right is violated. The judges have the authority or the power to transcend the applicable law in judging a case for the sake of the benefit of the society at large. This is called judicial activism. Judicial activism has been particularly significant in delivering justice towards marginalized or disadvantaged communities. In India, the concept of judicial activism can be seen with reference to the concept of judicial review under articles 32 and 226 of the Constitution of India. The two concepts may seem similar superficially but have several differences.
JUDICIAL ACTIVISM IN THE PROTECTION OF ENVIRONMENT
PILs and the liberalization of the rule of locus standi
It wasn’t until the 1980s that a person could approach any court of law even when that particular person was not the aggrieved party. Earlier, only the aggrieved party had the option to seek remedies for the grievances caused to them. The court, for the sake of social justice and betterment of the public, widened the purview of locus standi by allowing persons not directly affected by any problem to approach the court with the aim of social justice. This was a watershed moment in the Indian legal and judicial system, particularly in terms of environmental law.
The concept of “Public Interest Litigation” came in the Akhil Bhartiya Soshit Karmachari Sangh (Railway) vs. Union of India.[i] Thereafter, even an unregistered association of workers was permitted to file a writ petition under Article 32 of the Constitution. In the case of Fertilizer Corporation Kamgar v. Union of India (1981)[ii], the honourable court, liberalizing the rule of locus standi, said, “Activism is essential for participative public justice”.
This broadening of the purview of locus standi has enabled people to approach the court to seek remedies for the harm caused to the environment.
DPSPs, Fundamental Rights and the Environment
Environmental protection was not an issue that was originally dealt with in our Constitution of 1950. In the later years, the voices against environmental degradation started to rise, and after the Stockholm Declaration, the forty-second amendment to our constitution brought huge changes and environmental protection became explicitly dealt with in our constitution.
In the case of L.K Koolwal v. State of Rajasthan[iii], the Rajasthan High Court opined that since a citizen has the duty to protect the environment under article 51-A(g) of the Constitution[iv], then there must be a corresponding right to clean environment.
Subsequently, through judicial activism, the right to a clean and healthy environment came to be included among a citizen’s fundamental rights. This was also in tune with the changes at the international level.
In Ratlam Municipality vs. Vardhichand,[v] it was observed, “the human rights calling for the unpolluted environment must be implemented irrespective of financial constraints. The public nuisance because of pollutants is a challenge to the social justice component of the rule of law.”
The right to enjoy a clean and pollution free environment as an essential part of the right to life under article 21 was recognized by the Supreme Court in the case of Subhash Kumar v State of Bihar[vi]. Through several other cases, the Court has seen to incorporate the right to a clean environment among the fundamentalist rights provided under articles 14, 19 and 21 of the Constitution. Thus, in cases of grievances caused due to the degradation of the environment, the court can be approached to seek remedies under article 32 of the Constitution.
Absolute Liability and the Polluter Pays Principle and other rules
The Indian judicial, predominantly the Supreme Court, has played a major role in formulating principles and establishing rules in order to protect the environment.
The principle of “absolute liability” gained importance as a response to issues that arose in cases like the Oleum Gas Leak case[vii] and the Bhopal Gas Tragedy case[viii]. It was established as a principle that in cases where harm is caused by hazardous and inherently dangerous industries, the liability of such industries is absolute as they bear the responsibility to take the utmost care and precautions considering the dangers associated with them. The people have the right to approach the court under article 32 of the Indian Constitution when any such harm is caused. The liability falling on the persons responsible for the harm constitutes the polluter pays principle. These two principles go hand-in-hand and they became a part of India’s environmental law through cases like the Oleum Gas Leak case, Indian Council for Enviro-Legal Action vs. Union of India[ix] and Vellore Citizens’ Welfare Forum vs. Union of India[x]. In the case of M.C. Mehta vs Kamal Nath & Ors.[xi], the Court saw pollution as a civil wrong, a tort committed against the whole community and the responsible person has to compensate for the harms caused and restore the environment.
The honourable court has also laid down several principles for the protection and conservation of the environment in cases like Ratlam Municipality case, Oleum Gas Leak case, Ganga Pollution case[xii].
The development of the society cannot be achieved at the cost of the degradation of the environment. A balance between the two must be sought and in this regard, the Indian judiciary has always emphasized that in our strive for continuous development, the environment cannot be neglected. Judicial activism has played a crucial role in recognizing the need for laws related to environmental protection in our Indian legal system. Throughout the years, the judges of the Supreme Court have not restricted themselves to the applicable laws and have used their knowledge and conscience for the betterment of the environment and the society at large, which has led us to now see the right to environment as a fundamental right and has introduced to our legal system concepts such as absolute liability and the polluter pays principle.
[i] Akhil Bhartiya Soshit Karmachari Sangh (Railway) vs. Union of India, (AIR1981 SC 298).
[ii] Fertilizer Corporation Kamgar v Union Of India And Others (1981) 1 SCC 568
[iii] L.K. Koolwal vs State Of Rajasthan And Ors. AIR 1988 Raj 2, 1987 (1) WLN 134
[iv] INDIA CONST. art. 51-A(g)
[v] Ratlam Municipality vs. Vardhichand, AIR 1980 SC 1622
[vi] Subhash Kumar v. State of Bihar AIR 1991 SC 420
[vii] M.C. Mehta Vs. Union of India (UOI) and Ors. 1986 1987 SCR (1) 819, AIR 1987 965
[viii] Union Carbide Corporation vs Union Of India 1990 AIR 273, 1989 SCC (2) 540
[ix] Indian Council for Enviro-Legal Action vs. Union of India 1996(3) SCC 212
[x] Vellore Citizens’ Welfare Forum vs. Union of India AIR 1996 SC 2715: (1996) 5 SCC 647
[xi] M.C. Mehta vs Kamal Nath & Ors (1997) 1 SCC 388
[xii] M.C. Mehta v. Union of India, (1987) 4 SCC 463
Image courtesy: Times Now