Introduction

The fact that India has made a really strong push to safeguard the environment is to the credit of its courts, especially the higher judiciary. In fact, it wouldn’t be overstating things to suggest that the expansion and development of India’s legal system are closely linked to the country’s environment law development. A sub-continental nation-state with the second-largest population in the world—the majority of whom live in abject poverty and illiteracy—and startling cultural, economic, and ethnic diversity—poses really unique governance issues.

Many fundamental rights are outlined in the written Constitution that the people themselves created when they won independence, but enforcing these rights has not always been simple. The courts were viewed as the final remaining bulwark of the people’s rights and liberties as a result of numerous political upheavals.

In particular, the 1980s saw an activist judiciary at work during the post-emergency period, and this was also the time when fresh and intriguing innovations in environmental law occurred. The emphasis changed away from the traditional strategy of pursuing environmental violations as criminal offences and/or civil wrongs and towards the strategy of treating environmental issues as a component of the fundamental rights protected by the written Constitution.

Conspectus of constitutional provisions and legislation

Environment protection and improvement are clearly outlined in the Indian Constitution. In accordance with Article 48A of Chapter IV of the Indian Constitution’s Directive Principles of State Policy, the State is obligated to preserve the nation’s forests and wildlife as well as to protect the environment. Every citizen of the nation has a responsibility to safeguard the environment and advance it, according to Article 51A(g).

Although not enforceable in a court of law, an activist judiciary has given effect to the objective underlying these Principles by reading them in conjunction with the fundamental rights, which are enforceable in a court of law.

According to the Supreme Court, Art 21’s guarantee of the right to life does not only apply to animal life. Later, this article was understood to include the right to a pollution-free environment as part of its purview. Prerogatives may be issued under the provisions of Articles 32 and 226 and other writs may be used to obtain relief. A violation of a basic right may be brought directly before the Supreme Court under Art. 32. A High Court may issue a writ under Art. 226 if any legal right or basic freedom has been violated. Moreover, decisions regarding the extension of the locus standi principle for applying these provisions were used to safeguard against environmental degradation.

Perhaps the most important piece of legislation in this field of law is the Environment Protection Act 1986. Enacted in the wake of the Bhopal Gas Tragedy, this Act covers the whole gamut of environment issues. ‘Environment’ has been defined under the Act to include water, air and land and the inter-relationship which exists among and between them and human beings, other living creatures, plants, micro-organisms and property. The Act empowers the central government to take such measures as it deems necessary to protect and improve the quality of the environment and to prevent, control and abate environmental pollution. An ‘umbrella’ legislation, this Act authorises the Central government, inter alia, to set new standards for emissions etc., regulate location of industries, devise procedures for handling hazardous substances, safeguard against accidents causing environment pollution and generally collect and disseminate information regarding environmental pollution.

The common law principle of ‘nuisance’ offers a legal basis for initiating action against environmental violations. The Code of Civil Procedure 1908 (‘CPC’), the Indian Penal Code 1860 (‘IPC’) and the Code of Criminal Procedure 1973 (‘CrPC’) contain provisions in respect of public nuisance. Section 91 of the CPC entitles two or more persons to institute a suit for a public nuisance affecting or likely to affect the public. In the Bhopal Gas Tragedy, the Central Government enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, conferring on it the exclusive right to represent the claims of the victims in parens patriae suits. The validity of this legislation was upheld by the Supreme Court in Charan Lal Sahu v Union of India. Public nuisance is an offence punishable under the IPC. Several provisions of the IPC deal with various types of nuisance which cause public injury. The CrPC under s133, empowers a magistrate to remove a public nuisance of an environmental nature, ss 142 and 144 empower the magistrate to take immediate action to prevent danger or injury of a serious kind. The Ratlam case in 1980 is a major landmark in terms of the application of this provision as an effective tool for enforcing duties of local bodies. The case concerned provision of drainage facilities by the local body to the residents of the area. The financial inability pleaded by the council for not providing the facilities was rejected by the Supreme Court by holding that ‘decency and dignity are non-negotiable facets of human rights and are a first charge on the local self governing bodies’. Even before this decision, the Supreme Court in the case of Govind Singh v Shanti Swaroop dealing with nuisance caused by smoke emanating from a bakery, held that what is involved is not merely the right of a private individual but the health, safety and convenience of the public at large.

The Air Act 11 and The Water Act establish a framework of regulation and control of the release of pollutants through a system of licencing and permits. State and Central Boards that were created with this objective in mind are in charge of enforcing the provisions. Penalties, which now include the closure of an industry or factory, are imposed for infractions of the criteria outlined by these laws. The Water Cess Act levies a fee on water use that goes towards upholding The Water Act’s rules. According to the Act, the cess that must be paid upon installing wastewater treatment equipment is refunded 70%.

Both the Forest (Conservation) Act of 1980 and the Indian Forest Act of 1927 are significant. The subsequent Act provides for Central Government approval for dereserving a reserved forest, using forest land for non-forest purposes, assigning forest property, and other reforestation-related matters. The Wild Life Protection Act of 1972, The Atomic Energy Act of 1962, and The Factories Act of 1948 may also be mentioned.

The Hazardous Wastes (Management and Handling) Regulations of 1989 and the Hazardous Microorganisms Rules of 1989, which cover the production, use, import, export, and storage of hazardous microorganisms and genetically modified cells, are also rules created under the Environment Protection Act.

The National Environment Tribunal Act of 1995 and the Public Liability Insurance Act of 1991 may also be mentioned. In order to give the victim the least amount of assistance possible, the Public Liability Insurance Act mandates public liability insurance for installations handling hazardous materials. According to the Environment Tribunal Act, handling hazardous substances can result in mishaps that result in severe accountability for damages. The Act gives the Central Government the power to create a national tribunal and benches that can conduct hearings and issue decisions that seem to be “fair.” In reality, the Supreme Court recently allowed the courts to refer the more technical and scientific components of environmental issues that stem from Articles 32 and 226 of the Constitution.

Public interest litigation and environment law

One unusual aspect of the development of environment legislation in India is that significant changes in the law have been brought about by non-governmental organisations and civic-minded people. As was previously indicated, the development of new methods of delivering justice during the 1980s led to the judiciary taking on a more activist role. By extending the locus standi concept, the courts were able to overcome the restrictions placed on them by the conventional adversarial system.

In the well-known SP Gupta case, the Supreme Court ruled that any member of the public acting in good faith may bring a claim for compensation when the state is at fault for a public wrong or injury. It is noteworthy that the court decided that a member of the public may approach the court on behalf of a person or people who have been wounded but are unable to contact the courts due to impairments such poverty, social hardship, or economic hardship. By relying on Articles 32 and 226 of the Constitution, environmental groups and individuals have frequently used this enlargement of locus standi to seek redress against environmental destruction.

It is important to remember, nevertheless, that the enlargement of locus standi to allow any member of the public to petition a court to uphold the public interest is not without its drawbacks. The courts have not been hesitant to sharply condemn activities that are not in good faith and to discourage them altogether. In the Chhetriya Pardushan case, the Supreme Court said unequivocally that “… this can only be done by any person interested truly in the protection of the society on behalf of the society or the community.” The court must be extremely cautious and careful when using this weapon as a safeguard.. While it is a duty of this court to enforce fundamental rights, it is also the duty of this court to ensure that this weapon … should not be misused or permitted to be misused …’. More recently in the Raunuq International case, the Supreme Court has held that if any developmental project were to be stalled by reason of any public interest action before a court of law and ultimately, it is found that the action is not bona fide, the petitioner would be liable to pay exemplary costs. It can be seen therefore that while the scope of public interest litigation is extensive, courts have taken care to see that it is not abused.

March of the law

The Supreme Court’s innovative approach, in particular, is responsible for a significant percentage of the jurisprudence in this field. First off, it wasn’t explicitly stated in court rulings that a clean environment was a fundamental right. The Supreme Court ruled that individuals had the right to live in a healthy environment with little disruption of the natural balance in a case involving limestone quarries in the Doon Valley that caused soil erosion, deforestation, and other environmental problems. Later on, the court referred to the fundamental duty of a citizen to preserve the environment. It was in the Bhopal Gas Leak case21 that the Supreme Court declared in explicit terms that the right to a pollution-free environment is a part of the right to life under Art.

It would at this juncture be appropriate to refer to some other leading decisions, the significance of these rulings is that the courts have held principles like ‘Sustainable Development’, ‘Polluter Pays’ and ‘precautionary principle’ to be a part of the law of the land, though there has bee no specific incorporation of these principles to the municipal law.

In the Vellore Citizens Forum lawsuit, it was hoped to put an end to the extensive pollution that the tanneries in Tamil Nadu, a southern state, were responsible for. The Supreme Court ruled that “sustainable development” has been recognised as a component of accepted international law since it strikes a balance between ecology and development. The Bruntland Report, the UN Convention on Climate Change, and other documents were cited by the court in this regard. These documents ranged from the Stockholm Declaration to the Rio Declaration. Holding further that the ‘precautionary principle’ and the ‘polluter pays’ are essential attributes of ‘sustainable development’, the court read these to be part of municipal law as they do not conflict with the Constitution and statutory law in force in India. The court went on to grant various reliefs including the creation of an ‘environmental fund’, constituted by the fines paid by the polluters to be utilised for reclamation of the affected areas and rehabilitation. The ‘polluter pays’ and ‘precautionary’ principles were also applied in subsequent cases like the Calcutta Tanneries case, the Shrimp Farming case, the Taj Trapezium case and the Kamalnath case.

Because the public trust theory was applied in the Kamalnath case, it deserves special emphasis. The artificial diversion of a river in forestland to increase a motel’s amenities alarmed the court because of the ecological harm it would cause. The Supreme Court stated: “Our legal system, which is based on English common law, includes the public trust doctrine as part of its jurisprudence while imposing the burden of rehabilitating the environment and ecosystem.. The state is the trustee of all the natural resources, which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The state as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership”.

Some decisions have gone beyond the traditional standard of strict liability and have imposed ‘absolute liability’ on polluting industries. In the Oleum Gas Leak case, the Supreme Court was concerned with the leakage of oleum gas resulting in death and injury. Even though stringent conditions were laid down for re-starting the industry, the court held the industry to be absolutely liable for the pollution caused. The court said “we have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy”. The court further held “(w)here an enterprise is engaged in a hazardous and inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous and inherently dangerous activity, for example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident…”. Later on, in the Indian Council for Enviro-Legal Action case, the Supreme Court referring to this principle said, “according to the rule, once the activity carried on is inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. It was in this ruling that for the first time the principle of ‘polluter pays’ was applied by citing the Rome Declaration.

The Taj Trapezium case involved protection of the Taj Mahal from the air pollution caused by the coal based industries nearby. The anxiety of the court in preserving this monument is well reflected: “the atmospheric pollution in TTZ has to be eliminated at any cost. Not even one per cent chance can be taken when the preservation of a prestigious monument like the Taj is involved”.

It can therefore be seen that the courts in India have not felt constrained or constricted by the procedural limitations imposed by the law in force. The court has not hesitated to order relocation of industries from residential areas, has given directions for the creation of a fund for taking up remedial and rehabilitation action for affected areas and people and has ordered stoppage of any activity that is hazardous. The court has, on several occasions, directed installation of effluent treatment plants on a time-bound basis as a condition to recommencement of hazardous industries. In keeping with the spirit of public interest litigation, the court has often sought for and relied on reports from expert bodies to verify and ascertain the actual impact of any activity complained of. The Supreme Court has gone to the extent of establishing ‘green benches’ both in the Supreme Court and also in the various High Courts in the country to deal exclusively with environment cases. Presently, the Supreme Court is in the process of hearing two public interest writ petitions concerning India’s forests and the large-scale vehicle emissions in Delhi.

Conclusion

The emphasis on human rights in environmental law jurisprudence has led to the third generation right to development being acknowledged on a global scale. As a result, India’s legal system has evolved in a fashion that aims to raise everyone’s standard of living. In order to provide a substantive remedy, it is in fact a creative technique to interpret and implement the provisions of basic rights in conjunction with guiding principles of state policy and fundamental duties. Such a tactic would appear to a puritan to stray from accepted legal rules, but the urgency of the situation has justified it. There are important challenges that need to be addressed with the turn of the millennium and the globalisation that is happening in many spheres of society. Because fields like biotechnology are developing so swiftly, legal systems around the world must quickly catch up with the developments that are occurring. The Indian courts’ dynamism is a desirable strategy. The strategy used by Indian courts to provide meaningful relief and remedy to its citizens, who make up a sizeable fraction of the global population and live in a nation with some incredibly diverse ecosystems, should be taken into consideration and applied.