Judicial Activism in Environmental Legislation in India

Black’s Law Dictionary” defines Judicial activism as “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”

Justice V.R. Krishna Iyer has very poignantly pointed out, “Our century, before it expires, has a choice to make. It faces a Hamletian Dilemma, “To be or Not to Be: that is the question”.

Only when the last tree has died and the last river been poisoned… will we realise we cannot eat money”! – Cree Indian proverb.

Human Rights and Environment

Universal Human Rights to Environment:

The UDHR, together with the International Covenant on Civil and Political Rights and its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights and its Optional Convention, structure form the so-called International Bill of Human Rights. The right to live in Healthy and clean environment is a major option to be secured all around. Following the International treaties and International Bill of Human Rights; The Constitution of India had referenced unique arrangements for the Environment in the Directive Principles of State Policy according to the Stockholm Conference in the year 1972. By the 42nd Amendment Act,1976, whereby Article 48 A in DPSP and Article 51(g) in Fundamental duties were added.

Article 48 A of the Constitution of India states as follows as- “The state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the Country”; Whereas, Article 51 A (g) of the Constitution of India[1], which imposes a Fundamental duty on the citizens of India is as follows as-  “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures”.

Fundamental Right Guaranteed under Article 21- Right to Health Environment

Article 21 guarantees “Right to life” and says that no person shall be deprived of his life and personal liberty, except according to procedure established by law. The right to life under Article 21 of the Indian Constitution has been interpreted in such a way by the judiciary in India that now it includes the right to healthy environment. This right to life has been given wide interpretation by the Supreme Court in context of environment. If anyone has violated healthy and clean environment, he is deprived of his right to life under the Indian Constitution. Thus, the judiciary has expanded the boundary of Article 21 by including socio-economic aspects of rights of the citizens of India. It has been one of the landmarks in judicial interpretations by the Indian judiciary.

The Role of Public Interest Litigation & Judicial Activism:

Background

In the year 1876, the first Legal Aid Committee was established in New York City, This Movement came into existence for those who could not raise litigation due to poverty or illiteracy.

The term PIL was the first time came into existence in USA. The full form of the term PIL was understood as “Public Interest Law” in USA. However, the said term “PIL” as understood as, “Public Interest Litigation” in India.

Justice Bhagwati’s observation regarding Public Interest Litigation-

With S.P.Gupta vs. Union of India, AIR, 1982, S.C. 140-

Justice Bhagwati stated as under:-

“Any public-spirited person or institution may move the court for judicial redress for the cause of justice, provided that, such person is acting in the public interest, and he is not acting for any personal gain, or private profit or for political motivation or for other consideration. He may approach the court on behalf of the person is not in a position to move the court due to financial difficulty, social difficulty or because of being in disadvantage position”.

Public Interest Litigation in Environmental cases

The Supreme Court under Article 32 and the High court under Article 226 gave significant contributions to the development of the “PIL” and directed the Government for taking environmental protection measures in the interest of the public. An action against public nuisance can be brought under Section 91 of the Civil procedure Code under Section 133 of the Criminal Procedure ode has been found to be a useful weapon for protecting the Environment.

Judicial Activism

One of the early cases regarding the protection of rights in the environment was the T. Damodhar Rao and Others vs. The Special Officer, Municipal Corporation of Hyderabad and Others[i] In the judgement it was stated that “…it would be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by Art. 21 of the Constitution embraces the protection and preservation of nature’s gifts without which life cannot be enjoyed. There can be no reason why practice of violent extinguishment of life alone should be regarded as violative of Art. 21 of the Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation should also be regarded as amounting to violation of Art. 21 of the Constitution.”

The Supreme Court of India has also been emphasising on Article 21 in the protection of environment. In ChhetriyaPardushan Mukti Sangharsh Samiti v State Of U.P and Others, the court stated: “Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India.”

In the L.K. Koolwal vs State Of Rajasthan and others[ii], the writ was filed for the preservation of sanitation and environment in the city of Jaipur. The High Court held that a right in favour of citizen to move to the Court to see that the state performs its duties sincerely in accordance with the law of the land. Every citizen has the right to know how the state is functioning. Further, the Court observed: “Maintenance of health, preservation of the sanitation and environment falls within the purview of Article 21 of the Constitution as it adversely affects the life of the citizen and it amounts to slow poisoning and reducing the life of the citizen because of the hazards created, if not checked.”

Likewise, in the case of Subhash Kumar V. State of Bihar[iii]the petitioner by way of public interest litigation, filed a petition for ensuring enjoyment of pollution free water and air. Justice K. N. Singh and Justice N. D. Ojha held: “Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has a right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life”

PIL or social intrigue prosecution today has incredible criticalness and drew the consideration of all concerned. The customary guideline of “Locus Standi” that an individual, whose privilege is encroached alone can document the request, has significantly loose by the Supreme Court in its ongoing choices. Presently, the court licenses open intrigue case at the occasion of open lively residents for the authorization of protected or lawful rights.

[iv]Justice Krishna Iyer in the caseof Fertilizer Corporation Kamgar Union vs. Union of India, (1981) enumerated the reasons for liberalisation the rule of Locus Standi:

  1. Exercise of State power to eradicate corruption may result in unrelated interference with an individual’s rights.
  2. Social justice warrants a liberal judicial review of administrative action.
  3. Restrictive rules of standing are the antithesis to a healthy system of administrative law.
  4. “Activism is essential for participative public justice”. Along these lines, an open disapproved of resident must be allowed a chance to move the court in light of a legitimate concern for the general population.

Since then, a good number of public interest’s litigation petitions were filed.

Case Laws

  1. M.C. Mehta and Another vs. Shri Ram Foods and Fertilizer Industries and others (M.C. Mehta vs. Union of India, AIR 1987 SC 1086 (It is also known as Oleum Gas Leak Case).
  2. Municipal Council, Ratlam vs. Vardhichand.
  3. Kamalnath vs. Union of India, (1997) 1 SSC 388.
  4. M.C. Mehta vs. Union of India, AIR 1988 SC 1115 (It is also known as Ganga Pollution (Municipalities) case).
  5. Vellore Citizens Welfare Forum vs. Union of India and Others, AIR 1996 SC 2115.
  6. Kamalnath vs. Union of India: (the misuse of political power in polluting the environment).

Conclusion

In the previous barely any years, a few decisions have not been actualised, for the absence of a political or managerial will or because of other lacunae. In any case, Judiciary is assuming its function despite the tedious disappointment of different organs. On the off chance that laws need to profit society, at that point they need to keep being guard dogs and instruct executing offices to stay interesting. They must perceive it that for additional natural activism by the legal executive, the help of other parts of government and acquiescence of legal requests from individuals is irreplaceable or probably the courts would be harshly debilitated.

Frequently Asked Questions

Q1.  What is the meaning of Judicial Activism?

Q2. Are Environmental Rights covered under Indian Constitution?

Q3.  What did Justice Bhagwati said on Public Interest Litigation?

Q4. Any case law stating Fundamental Right to have clean & Healthy Environment?

Q5. Under which Fundamental Right Public Interest Litigation can be filed in Court?


References:

  1. https://www.un.org/en/sections/issues-depth/human-rights/
  2. https://www.quora.com/What-is-Article-51A-g-of-the-Indian-Constitution
  3. https://en.wikipedia.org/wiki/Environmental_policy_of_India
  4. https://www.lawctopus.com/academike/right-to-clean-water/
  5. https://indianjudiciarynotes.com/notes/environmental-law/judicial-activism-and-environment/

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