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Article 21 in The Constitution Of India 1949
The National Environment Tribunal Act 1995
M.C. Mehta vs Union Of India & Ors on 13 April, 2006
Article 14 in The Constitution Of India 1949
Article 32 in The Constitution Of India 1949

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Central India Law Quarterly
Environmental Protection And Emerging Trends In Judicial Responses
ENVIRONMENTAL PROTECTION AND EMERGING TRENDS IN JUDICIAL RESPONSES Environmental Protection And Emerging Trends In Judicial Responses Chandra Pal * 1. Introduction In our quest for rapid industrial growth over the years, the environmental quality has come to be subordinated to developmental goals. We are now gradually heading towards irreversible environmental damage, due to widespread land degradation. water pollution, air pollution. mushrooming growth of slums and population explosion, The existing administrative and institutional framework is too feeble and "ineffective to handle the challenge of environmental protection, which threatens our very survival. Hence, there is a need to have a new environmental ethos to meet the. challenge. This is precisely where the role of an activist judiciary comes In. With the Supreme Court of India taking the lead. the centre of gravity of justice has now shifted from traditional individual locus standi to the community orientation of public interest litigation 1 . 2. Court's Power To protect Environment 2. Important issues of environmental policy may be brought before the courts for decision. There are more than 200 Central or State enactments which have a direct or indirect bearing on environmental protection. Articles 48A and 51A (g) of the Indian constitution also make it Imperative for the State as well as every citizen of India to do everything to protect and ·lmprove the environment including forests. lakes. rivers and wildlife of the country. In recent years. there has also been enacted important environmental legislatiori covering specifically such areas as * LL.M., Ph.D., Reader, Law Faculty, Kurukshetra University, Kurukshetra-132119 1. Bharat H.Desai, ·Public InterM1 litigation: Envlronmentlll Pollution Control", The Hindustan Times, March 24, 1986, p.9; see also, Deshpande, "Standing to A88ert FUndamental RIghts of Third PartI.: An Analysis of Judicial PoIlcy",14 J.I.L.I.325 (1972); Francis, "Concept of Locus StancIl In Indian Public Law", 1 Ac.L.R 48 (1977); Lord Denning, The Discipline of Law (1979); S.K.Aggarwal, Public Interest Utigation in India: A Critique (I.L.I.: 1985); Clark D. Cunningham, ·Public Interest Utigation in. Indian Supreme Court: A Study in the Ught of ,.merican Experience", 29 J.I.L.1 494 (1987); Jamie Cassels, "Judicial ActIvism and Public Inter.t litigation In India: Attempting the Impoaslbl. ?" 37 The American Journal of Comparative Law 495 (1989).. 144 CENTRAL INDIA LAW QUARTERLY [Vol. 4:2 water pollution,2 air pollution, 3 wild-life,4 forests 5 and environmental protection.S 3. Although the Environment (Protection) Act, 1986 appears to reduce the dependence of State boards on the courts for enforcement by allowing them to close down offending units 7, but It also contains an important provision regarding filing of cases. 8 Whereas the earlier acts reserve the ability to file the cases against non-complying factories to government entitles only.9 However, the Environment (Protection) Act,. 1986 allows citizens to file such suits as well. For filing a suit, the citizen must notify the State Board of the problem and give it 60 days to file its own suit or notify the citizen that it will not file a suit.10 4. One Impediment to citizens' suits hl!$ been the basis upon which' such suits might be brought. Prevented "urbTI the enactment of the Environment (Protection) Act of 1986from filitlg suit directly to the courts to control pollution under the air and water acts, citizens successfully brought suit in the Supreme Court under Section 133 of the Criminal Procedure Code, which prohibits nuisances." The Court has also accepted the petitions in environmental cases brought under Articles 32 and 226 of the Constitution and based on Article 21, which guarantees right to life and personal liberty, arguing that the right to live in pollution-free environment is part of the right to Iife.12 This is so because litigants and lawyers prefer the relative inexpense, speed, flexibility and 2. See the Water (Prevention and Control of Pollution) Act, 1974. 3. See the AJr (Prevention and Control of Pollution) Act, 1981. 4. See the Wildlife (Protection) Act, 1972. 5. See the Forest (Conservation) Act, 1980. 6. See the Environment (Protection) Act, 1986. 7. Ibld."5 8. IbIllI., $.19 9. For these earlier Acts, see supra notes 2 to 5. 10. Section 19 of the Environment (Protection) Act, 1986. 11. See Municipal council, Ratlam v. Vardhlchand, AIR 1980 SO 1680 12. See R.L. & E. Kendra, Dehradun v. State of U.P., AIR 1985 SO 652. 1991J ENVIRONMENTAL PROTECTION & JUDICIAL RESPONSES 145 the direct access to the natlon's highest courts, that the writ procedure offers. 3. Rule of Statlding And Public Interest Litigation in Environmental Cases The higher jUdiciary of India has struggled over the last decade to bring law into the service of the poor and oppressed. Under the banner of Public Interest Litigation (PIL) and the enforcement of fundamental rights under the Constitution, the higher courts have tried to rebalance the distribution of legal resources, increase access to justice for the disadvantaged, and' imbue formal legal guarantees with substantive and positive content. A number of distinctive characteristics of PIL can be identified, each of which Is novel and In some cases contrary to the traditional legalist understanding of the jUdicial function. Its distinctive characteristics Include: (i) Iiberalaization of the rules of standing; (ii) procedural flexibility; (iii) creative and activist interpretation of legal and fundamental rights . (iv) remedial flexibility and ongoing judicial participation and supervision. (A) Rule of Standing And Accessibility to Courts 6. The traditional understanding of litigation requires. that the participants have some real interest to promote in order that 'truth' will effectively be revealed through adversarial proceedings. In individualist capitalist cultures, the notion of a 'real interest' historically emphasized property and other financial interests. 13 Anticipating later innovations, the Indian Supreme Court held in 1976. that: "Where a wrong against 13. There has been a gradual liberalization 6f the rules of standing In constitutional litigation in Canada also. see Thorson v. A.G.Canada (1975) I.S.C.R. 138; Minister of Justice v. Borowski (1981) 2 S.C.R. 575; Mlnl81er of Finance of canada v. Finlay (1987) 33 C.LA. (4th) 321. 146 CENTRAL INDIA LAW aUARTERLY [Vol. 4:2 community interest is done, 'no locus standi' will not always be a plea to nonsuit an interested public body chasing the wrong doer In court." Locus standi has' a larger ambit in current legal semantics than the accepted, individualist jurisprudence of oId."14 Since that time the Indian approach to PIL has extended the rules of standing to the point that at present there seems to be no real obstacle to the public interest litigation.. PIL has been initiated by individuals on behalf of other individuals and groups, by academics, journalists and by many social action organizations.15 As rightly exglained by Krishna Iyer J. in Mumbai Kamgar 8abha v. Abdulbhai. 1 Test litigations, representative actions, pro bono pubnco and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral, procedural shortcomings... Public interest is promoted by a spacious construction of locus standi in our socioeconomic circumstances and conceptual latitudinarianism permits taking liberties with Individualization of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. In S.P. Gupta v. Union of India, 17 Bhagwati J. (as he then was) was even more eXplicit : Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons.... and such a person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for 14. Mahara) Singh v. Uttar Pradesh, AIR 1976 SC 2602 15. For a detailed account of some of the social action organizations, see Shah, "Grass- Roots Mobilization,";n Atul Kohli (ed.), India's Democracy (1988); Dhavan, "Managing Legal Activism: Reflections on India's Legal Aid Program", 15 Anglo- American L.Rev. 281 (1986). 16. A.I.R. 1976 SC 1455 17. A.I.R. 1982 SC 149, 189; see also People'. Union for Democratic Rights v. Union of India, AIR 1982 S.C. 1473. -- -- ------ -- -- ---- - - - 1991] ENVIRONMENTAL PROTECTION & JUDICIAL RESPONSES· 147 relief, any member of the public can maintain an application for an appropriate direction..... 7. The Indian judiciary has also shown a willingness to alter the rules of procedure where necessary. Actions may be commenced not only by way of formal petition, but also by way of.Ietters addressed to the court or a judge who may choose to treat it as a petition. There are reports of actions begun by postcard, and even of one judge converting a letter to the editor In a newspaper into a PIL writ. 18 Right to legal aid has been established as a fundamental right in criminal cases19 and in others the . courts will often waive fees, award costs and provide all other forms of litigation assistance to public interest advocates.2O The court frequently appoints commissions of enquiry or socio-Iegal committees to investigate and collect facts and thus relieVing the petitioner of the financial burden of proof. 21 8. All such procedural innovations by the court havebeen contested by defendants on the plea that they violate traditional canons of procedure. The use of socia-legal commissions, for example, allows evidence to be collected ex parte; immune from cross examination. To such objections the Supreme. court has responded: "The constitulon-makers deliberately did not lay down any particular forms of proceedings for enforcement of fundamental rights nor did they stipUlate 18. For detail see S.K. Agrawala, Public Interest Utigation in India (Indian Law Institute, 1986); Menon, "Public Interest Utlgation: A Major Breakthrough in the Delivery of Social Justice; 9 J. Bar Council of India 150 (1982). In MUkesh Advanl v. State of Madhya Pradesh, A.I.A. 1985 S.C. 1368 the Court accepted a clipping of newspaper story about bonded labour as the basis for a PIL petition. 19. Hoskot v. S1a1e of Maharashtra, AIR 1978 S.C. 1548; Hunainara Mhatoon v. Stitte of Bihar, AIR 1979 S.C. 1360. 20. See for example, Rural litigation and Entitlement, KendrajODehradun v. State of U.P., AIR 1985 S.C. 652; M.e.Mehta v. Union of Indl" A.I.R. 1987 S.C. 965, wherein the court ordered the State to pay As. 10,000 remuneration to the involved public Interest advocates in the addition to costs. 21. See for example, Bandhua Muktl Morcha v. Union of India, AIR 1984 S.C. 802 (conditions of labour); R.L. and E; K_r.,Dehradun v. S1ate of Uttar Pradesh, AIR 1985 S.C. 652 (environmental litigation); In Sun" Batra v. Deihl Administration, AIR 1978 S.C. 1675; the judges themselves visited a prison to assess its conditions. In Wang" v. Union of India (1988)1 Scalt 118, the court appointed an independent committee to examfne the quality of .butter imported soon after the chernobyl nuclear incident. 148 CENTRAL INDIA LAW QUARTERLY [Vol. 4:2 that such proceedin~s should conform to any rigid pattern or straight-jacket formula." 2 Thus, without some way of rebalancing the resources of litigants, fundamental rights will remain but a "teasing illusion" for the poor and disadvantaged: We have therefore, to abandon the laissez faire approach in the judicial process... and forge new tools, devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people. 23 9. Originally PIL aimed at combatting inhumane prison conditions24 and the horrors of bonded labour,25 and now it has establised the right to a speedy trial,26 the right to legal aid,27 the r~ht toa livelihood,28 the right to human dignity,29a ri~ht against pollution and a right to be protected from industrial hazards. 1 4. Trends in Judicial Activism To Protect Environment 10. Environmental policy making, like other controversial areas of public policy, is a never-ending process and the courts will always be intimatery involved in this process. The increase in environmental 22. Sandhua Mukti, Ibid. at 814. The court did, of course in this case suggest that the evidence and reports would be made 'available to all affected parties and that they would have an opportunity to dispute the facts. 23. Ibid. at 815: 24. See Sunil Batra v. Deihl Administration, AIR 1978 S.C. 1975; later see Upendra BaxI v. S1ate of U.P. (1983)2 S.C.C. 308. 25. People's Union for Democratic Rights. v. Union of India, AIR 1982 S.C. 1473; Bandhua Muktl Morcha v. Union of India, (1984)3 S.C.C.161. 26. M.H. Hoakot v, S1ate Maharashtra, AIR 1978 SC.802. 27. Haskot ibid; Hussalnara Khatoon v. S1ate of Bihar, AIR 1986 S.C. 180. 28. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 S.C. 180. 29. Francis Coralie Mullin v, Administrator, Union Territory of Delhi, AIR 1981 S.C. 746; Upendra Baxl v, State of U.P. (1986)4 S.C.C. 106. 30. Rural UtIgatlon and Entitlement, Kendra, Dehradun v. State of U.P., AIR 1985 S.C. 652. 31. M.e. Mehta v. Union of India, AIR 1987 S.C.982. 1991] ENVIRONMENTAL PROTECTION & JUDICIAL RESPONSES 149 awareness since 1980s has triggered a spurt In the environmental cases reaching the courts. "It is emphatlcally,the province and duty of the judiciary, to say what the law is.,,32 Most of these actions in environmental cases are brought under Article 32 and 226 of the Indian Constitution, since the litigants and the lawyers prefer the direct access to the nation's highest courts, that the writ procedure provides. The environmental petitions are generally based on the plea of violation of fundamental rights. It was not until 1978 that the Supreme Court breathed substantive life into Article 21 by SUbjecting state action interfering with life or liberty to a test of reasonableness; requiring not only that the procedures be authorised by law, but that they are "rigbt, just and fair.,,33 This transformation paved the way for a substantive reinterpretation of constitutional and legal guarantees and positive judicial intervention. (A) The Right to a Wholesome Environment 11. Encouraged thus by an atmosphere of freedom and articulation, the Supreme Court rejected the "bureaucratic tradition" of mechanical and rule-bound adjudication 34 and entered one of its most creatJve periods. 35 Most significantly, the Court fortified and. expanded the Fundamental Rights enshrined in Part III of Constitution. In the process, the right to a wholesome environment (although not explicitly mentioned In Part III) was drawn within the expanding boundaries of the fundamental right to life and personal liberty guaranteed In Article 21..36 32. Chief Justice John Marshall, Marbury v. Madison, 5 U.S. (1 Cranch) 140 (1803), Supreme Court. 33. Maneka Gandhi v. Union of India, AIR 1978 S.C. 597. 34. Bhagwati, "Bureaucratic 1 Phonographers 1 Creators 1 The TImes of India, 21-23 September 1986. 35. Jamie Cassels. "Judicial Activism and Public Interest Utigation: Attempting the Im- possible 1" The American Journal of comparative Law; 501-4 (1989). 36. Article 21 states: "No person shall be deprived of his life or personal liberty except according to procedure estiblished by law. "See also Shyam A. Oiwan, "Environmen- tal Protection and Fundamental Rights·, XVI (1) Indian Bar Review 23-24 (1989). 150 CENTRAL INDIA LAW QUARTERLY IVoI.4:2 12. The Supreme Court expanded the scope of Article 21 in two ways. First, it required laws affecting personal liberty to also pass the tests of Articles 14 and 19 of the Constitutio'1 thereby ensuring that the procedure depriving a person of his personal liberty be reasonable, fair and just.37 Second I the Court recognized unarticulated rights that are implied by Article 21.38 It is by this second method that the Supreme Court actually interpreted the right to life and personal liberty to include the right to a wholesome environment.39 . 13. In Dehradun Quarrying Case,40 for the first time, the Supreme Court held that the fundamental right to a wholesome environment Is a part of the fundamental right to life in Article 21 of the Constitution. In July, 1983, the representatives of the Rural Litigation and Entitlement Kendra, Dehradun wrote to the Supreme Court alleging that illegal limestone mining in the Mussoorie - Dehradun region was devastating the fragile aco-systems In the area. On 14th July the Court directed the registry to treat the letter as a writ petition under Article 32 of the Constitution with notice to the Government of Uttar Pradesh and the Collector of Dehradun. Over the years the litigation grew complex. The Court delivered its final judgment in this case in August, 1988 after hearing lengthy arguments from central and state governments, government agencies and mine lessees; appointed several expert committees; and passed several comprehensive, interim orders. None of these orders, however articulate the fundamental rights infringed. The exercise of jurisdiction under Article 32 presupposes the violation of a fundamental right. Therefore, it was necessary to reasonably hold that enjoyment of right to life under Article 21 of the Constitution embraces the protection and preservation of a wholesome environment without which life cannot be enjoyed. This view is also supported by Justice Singh's concluding observations justifying 37. See Maneka Gandhi v. Union of India, AIR 1978 S.C. 597; Francis Coralie Mullin v. The Administrator, U.T. Delhi, AIR 1981 S.C. 746, 750. 38. See tor example, the right to legal aid was recognised in Hoskot v. State of Maharashtra AIR 1978 S.C. 1675: the right to a livelihood was recognised in olga Tellis v. Bombay M.Corp., AIR 1986 S.C. 180 39. The genesis of the fundamental right to a wholesomeenvironmentmay be traced in Rural Wigation and Entitlement, Kendra, Dehradun v. State of Uttar Pradesh, AIR 1985 S.C. 652; see also Shyam A. Diwan, Supra note 36. 40. The final judgement of the court was delivered in this case in 1988 in Rural litigation and Entitlement, kendra, Dehradun v. State of Uttar Prade.h, AIR 1988 S.C. 2187. - ------- ----------- 1991] ENVIRONMENTAL PROTECTION & JUDICIAL RESPONSES 151 the closure of polluting tanneries in the Ganga Pollution case'": "We are conscious that closure of tanneries may bring unemployment, loss of revenue, but life. health and ecology have greater importance to the people.,,42 14. Many High Courts have also eXplicitly recognised right to a wholesome environment as a dimension of right to life guaranteed in Article 21. In this context, the observations of Andhra Pradesh High Court in T.Damodhar Rao v. S.O. Municipal Corporation, Hyderabad 43 while considering a writ petition to restrain the Life Insurance Corporation and the Income Tax Department from building residential houses in· a recreational zone. are worth noting here : It would be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by Article 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 Article 21 of the Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoilaion should also be regarded as amounting to violation of Art. 21 of the Constitution. In R. L. & E. Kendra, Dehradun v. State of U. P., AIR 1985 S. C. 652, the Supreme Court has entertained environmental complaints alleging that the operations of limestone quarries in the Himalayan range, of Mussoorie resulted in the degradation of the environment affecting the ecological balance... The Supreme Court in an application under Art. 32 has ordered the closure of some of these quarries on the ground that their operations were upsetting ecological balance. Although Art.21 is not referred to in these judgements of the Supreme Court, those judgements can only be understood on the basis that the Supreme Oourt entertained those environmental complaints under Art. 32 of ~he Constitution as involving violation of Art. 21's right to life. I 41. M.e.Mehta v. Union of India, (1987)4 S.C.C.463. 42. Ibid. at 482. 43. AIR 1987 AP 171. 152 CENTRAL INDIA LAW aUARTERlY [Vol. 4:2 It, therefore, becomes the legitimate duty of Courts, as the enforcing organs of constitutional objectives to forbid all actions of the State and the citizen from upsetting the environmental balance. In this case the very purpose of preparing and publishing the development plan is to maintain such an environmental balance. The object of reserving certain areas as a recreational zone would be utterly defeated if private owners of the land In that area are permitted to build residential houses. It must, therefore, be held that the attempt of the life Insurance Corporation of India and the Income-Tax Department to build houses in this area is contrary to law and also contrary to Art. 21 of the constitution.44 15. The High Courts of Himachal Pradesh,45 Rajasthan46 and 47 Kerala too, have held that environmental degradation violates the fundamental right to life. Though not clearly articulated by the Supreme Court, the right to a wholesome environment seems to be widely accepted bi'a the higher judiciary as implied in Article 21 of the Constitution. (B) Right to Equality And Government Actions with an Environmental Impact 16. Apart from Article 21 of the Constitution, the right to equality guaranteed in Article 14 may also be infringed by government decisions that have direct Impact on envlronment.49 Article 14, inter alia, strikes at 44. Ibid. at 181. 45. See Klnkrl Devl v. State of H.P.,AlR 1988 H.P. 4 46. See LK.KdoIwal v. State of Rajasthan, AIR 1988 Raj.2,4. 47. See Madhavl v. nlakan (1988) (2) Kerala Law Times, 730,731. 48. The Shriram Fertilizer Gas Leak case (M.e. Mehta v. Union of India, 1987 (1) S.C.C. 395) has not been deliberately discussed here because It does not advance the link between environmental degradation and ArtIcle 21 as.the Olel.lm gas that escaped directly affected the lives and health of. the victims. The more subtle link between environmental deterioration and life was absent. 49. Article 14 states: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." 1991] ENVIRONMENTAL PROTECTION & JUDICIAL RESPONSES 153 I arbitrariness "because an action that is arbitrary, must necessa~i1y involve a negation of equality."SO 17. Thus, various environmental groups frequently resort to Article 14 to quash' "arbitrary" municipal permissions for constructions that are contrary to development regulations.51 Further, Article 14 may also be invoked to challenge government sanctions for mining and other activities with high "environmental impacro52 , where the permissions are "arbitrarily" granted without an adequate consideration of environmental impact.53 In the environmental context an important question arises here, namely, is it possible to derive a right to intergenerational equity from Articles 14 and 21 of the Indian Constitution? The main feature of the theory of intergeneratlonal equity is the right of each generation of human beings to benefit from the cultural and natural inheritance from past generations as well as the obligation to preserve such heritage for future generations. Intergenerational equity thus requires conserving of the diversity and quality of biological resources, and of renewable resources such as forests, water and air.54 (C) Freedom To Trade vis-a-vis Environmental Protection 18. As and when environmental protection laws are made more stringent .and their enforcement becomes more vigorous, industrial agency action is likely to' Increase ":,ore and more. Courts 50. AJ.y H••I. v. Kh.lld MUJlb Sherv.rdl (1981)1 see 722,741. 51. Shyam a. Divan, "Environmental Protection And Fundamental Rights" XVI (1) Indian Bar Review 24 (1989). 52. "Environmental Impact Assessment (ErA) is an exercise to evaluate the probable changes in the various ecctc-econornlc and biophysical characteristics in the environ- ment which may result from a proposed project, program or legislation. ErAis under- taken to reduce to a minimum the possibility of an action causing un-anticipated changes in the environment. It assists decision-makers in considering the environ- mental costs and benefits of the proposed project. Where the benefits sufficiently exceed the costs of the project, the project may be environmentally justified." see shyam A Divan, ibid. 53. See Klnkrl Devl v. State of H.P., AIR 1988 H.P. 4, 9. 54. See "Note on Goa Guidelines on Intergenerational Equity" in 27 International legal Materials 1108 (1988). 154 CENTRAL INDIA LAW QUARTERLY [Vol. 4:2 then will have to balance environmental Interests with the fundamental right to carry on any occupation, trade or business guaranteed in Article 19 (1) (g).55 Take for example, effluent discharge standards prescribed by the Pollution Control Boards may be challenged under Article 19 for being excessive. Whether the Courts will adopt a proenvironment stance in resolving such future disputes remains to be seen yet. It is also a fact that industry's. money power is able to secure the services of better lawyers than those who typically represent environmental agencies and government departments. In such cases, judicial compassion for environmental issues might help balance the scales of justice. Indeed, society's concern for environmental Issues and the vigour with which the government promotes environmental protection in both word and deed, might have a greater bearing on the outcome of future indust~ enforcement agency than the narrow questions of law involved. Recently, Rajasthan High Court with a proenvironmental stance has held55b that the stocking of fodder on a plot In residential colony does constitute pollution of atmosphere and health hazard for the residents of whole of the colony. Further the court has rightly emphasised that public health cannot be allowed to suffer on account of personal business of any indMdual. ~ (D) The Supreme Court: Holistic Environmental Preception 19. In India before 1984, the Indian Judiciary had made a very little contribution in the area of environmental protection. The Bhopal disaster demonstrated the utter helplessness of Indian legal system in providing adequate compensation to the victims numbering 2500 dead and over two lakh people affected. The sign- post approach of judiciary towards promotion and protection of environment and ecology is reflected in Vardhl chand,56 Olga Tellis57 and Shrlram Fertiliser58 where the Court 55. SUpra note 51 at 25. 558. ibid. 55b. A)eet Mehte Y. Stete of ReJuthen, 1990 CrI.L.J.1596, 1599. 56. Municipal COUncil, Ratlam Y. Vardhlchand, A.I.R. 1980S.C. 1622. 57. Olga Tellis Y. Bombay Municipal corporation A1R1986 S.C. 180. 58. M.e. Mehta v. Union of India, A.I.R. 1987 S.C. 695. 1991] ENVIRONMENTAL PROTECTION & JUDICIAL RESPONSES 155 adjudicated In holistic fashion. In Vardhichand, the Supreme Court merely adopted holistic and moonshine approach without conceding the right .of the citizens to seek damages in tort for nuisance nor to prosecute civic bodies under Section 133 Criminal Procedure Code for pollution control. In Olga Tellis, the Court was primarily concerned with the right to livelihood of the slum and pavement dwellers. In Shriram Fertiliser, the court did not think it proper to treat private business organisations as State under Article 12 of the Constitution and thereby placed tham beyond the purview of fundamental rights ignoring the claims of ordinary ~s victims in regard to right to life under Article 21 of the Constitution. 9 . 20. In Sachidanand Pandey 60 case, wherein on the land belonging to Calcutta Zoological Garden, a scheme for the construction of a five star hotel by Taj Group of Hotels for promoting tourism was in dispute Involving environmental factors. The Supreme Court adopted a soft approach defeating the cause of environmental factors. In the name of promoting tourism and development, the Court permittedthe construction of the five star hotel. Similarly, In the name of economic progress, the Supreme Court allowed the acquisition of forest lands6 1 inhabited by Adivasl and backward people for the construction of super thermal plant by National Thermal Power Corporation (NTPC) In total disregard and without reference to national environmental polley, national forest polley and the Forest conservation Act, 1980. . (E) New Affirmative Approach of Judiciary 21. However, it is only during late 1987 that the higher judiciary has started to' play a vigorous role in preventing environmental degradation. 59. Similarly, neither orders explicitly refer to Article 21 or the right to livelihood in many other cases. These cases are: Banawul Seva Ashram v. State 01 U.P., (1986)4 see 753; Karajan Jalasay Y.A.S.A.S.8amItJ v. State 01 Gujarat, AIR 1987 se 532 and Gram'n Sewa &ansthe v. State 01 U.P., 1986 (Supp.) see 578. However, the Court has passed interim orders in these cases requiring State agencies to resettle and rehabilitate tribals who were being displaced by dams. 60. 5achldanand Pandey v. State 01 Weat Bengal, A..I.R 1987 s.e. 1109. 61. Banwaa' Seva Ashram v. State of Uttar Pradesh, AIR 1987 se 374; See also S.N. Dhyani, ''Tehri Dam and Critical Environmental Issues- plea ·for Affirmative Judicial Action" XII (3) Cochin University Law Review 262-63 (1988). ------- - ----- - - - -- 156 CENTRAL INDIA LAW QUARTERLY (Vol. 4:2 The Supreme Court in M. C. Mehta v. Union of India,62 entertained a petition mbved by a publlcspirited lawyer, and ordered the closure of thirty tanneries of Kanpur which were releasing untreatedeffluents into the river Ganges. The Court observed that the financial capacity of the tanneries was irrelevant while requiring them to establish primary treatment plants. It recognised that the closure of the tanneries might cause unemployment, but held that "life, health and ecology have greater importance to the people." In Modi Industries Ltd.,63 it adopted a strong posture against dumping of industrial waste and effluents into 15 wide canal harming flora, fauna and health of peasants in the surroundinJiarea. Similarly, in M. K. Sharma v. Bharat Electric Employees Union also, the court adopted an affirmative approach and directed the Sharat Electronic Company to comply with strictly the safety rules and other safety rneasures to save the employees from the ill-effects of X-ray radiation. X-ray radiation affects the "llfe and liberty" of employees guaranteed to them under Article 21 of the Constitution. These judgments thus can be said to be milestone in the growth of realistic environmental jurisprudence. (F) The Supreme Court: Departure From Affirmative Approach 22. The Supreme Court judgment on harmful drugs in Vincent Panikurlangara v. Union of India 65 marks a clear departure from the affirmative stance of the court in recent years. The judgment, written by Justice Ranganath Mishra, virtually declares that where government polley and expertise are involved, the court would not interfere, though the issues may be of vital importance to the public. 23. Circulation of banned drugs in the market was the theme of the writ petition itt this case filed by the public Interest Law Service Society of Cochin. According to it, between 400 and 500, banned drugs with different brand names are still available with chemists in the market.' A sub-committee of the Drug Consultative Committee had in 1980 62. (1981)4 S.C.C. 463 63. U.P. Pollution Control Board v. MIS Modi dl.tlllery, AIR 1988 S.C. 1128. 64. (1981)3 S.C.C. 231. 65. (1987)2 S.C.C. 165 1991] ENVIRONMENTAL PROTECTION & JUDICIAL RESPONSES 157 recommended a ban on these fixed dose combinations. Its report was approved by the Ministry of Health. The Central Drugs Controller had also Issued directions to state authorities to enforce the ban. But, due to slackness In enforcement, the drugs· continue to be freely available in the market.66 Since the aV~llabllity of harmful drugs affects the "ute and liberty" of citizens guaranteed to them under Article 21 of 'the Constitution, the petition sought a ban' on the import, manufacture, sale and distribution of such drugs and cancellation of licences authorising such activities. 24. The court's ruling in this case, in essence, was that "it is not for the court to lay down the drug policy of the government." It asserted that the state is "concerned and anxious" to improve the general health conditions of the public. and Parliament has in recent past enhanced penalties to eliminate injurious drugs. The people sh9uld. therefore, pin their hope and trust on the government. Thus the Supreme Court In the present case refused to, interfere though the issue involved is sufficiently important and the stake of the entire nation is high. Unlike in this case, the Supreme Court in recent past intervened in matters which are highly technical and affect povernment policy. Some of the instances are, mining In the Doon Valley,6 poisonous gas leaks.58 25. The result of this judgment is that the drug firms will continue to have a field day to create health hazards by producing banned drugs. There are more pharmaceutical firms (8,000) than primary health centres . (6,000), and more drug formulations than health posts In our country. According to voluntary organisations, four out of five drugs manufactured and marketed are totally unwanted and add to health pollution. But, for. the drug companies It will now be business as usual. 66. M.J. Antony, ·The Supreme- Court and Harmful Drugs·, indian Express, March 16, 1987, p.7. . 67. The Supreme Court investigated the ecological h~ards of the mining in the Doon Valley through· commission and closed some mines and Imposed conditions on others, see Rural Utlgatlon and EntIt*Mnt, Kendra v. State of U.P., AIR 1985S.C. 652. 58. In the Delhi gas leak case, several renowned scientists were invited to the court and their opinions helped to I~ down one of the most far-reaching rulings on industrial pollution, see M.e. Mehta v. Un~ of India, AIR 19$7S.C. 695. 158 CENTRAL INDIA LAW QUARTERLY {Vol. 4:2 5. Conclusion 26. From the foregoing' discussion it becomes clear that the' judicial review of legislative measures, governmental programmes and administrative decisions can be an effective instrument of enforcement in environmental matters if the question of locus standi does not stand in the way.• Happlly, the higher courts In our country, especially the Supreme Court, have made significant contribution in giving a fillip to the citizen's right to a hygienic environment, but the' exercise of their discretionary powers in environmental matters is yet to take a concrete form. The courts have time and again faced difficulties in respect of investigating machinery required for the citizens' suits in environmental matters. As a result, the difficulty has been felt about availability of authentic data. To overcome this, the courts have resorted to appointing distinguished persons as experts or commissioners to Investigate and report to it. This ad- hoc practice, however, needs to be put on a permanent footing, preferably as a special cell,' to meet the growing number of environmental litigation expected in the coming years. In this context, it is suggested here that the environment courts on a regional basis, with one professional judge and two experts drawn from the Ecological Sciences Research Group, should' be set up. 27. However, the compliance with the directions of the Supreme Court have, often, been lukewarm. In Rural Litigation and Entitlement Kendra,69 popularly known also as Doon Valley case, the court's directions In regard to closing of mines and quarries were followed more in their breach by the District Administration and other concerned Departments of 'U.P. Government a,nd Hlegal quarrying continued even In the prohibited areas. Often the court itself has felt that its ~owers are limited, as in the case of the Bombay pavement dwellers case. 0 Here the Supreme Court of India directed the Bombay Municipal Corporation and the Government of Maharashtra to submit a list of vacant lands which may be used to house the pavement dwellers following their eviction. However, the authorities evaded this direction of the court under the cover of a "policy decision." ' , 69. Aur.. UtIptIon and Entitlement Kendra v. State of U.P., AIR 1985 S.C. 652 also AIR 1987 S.C. 359. ,70. See Olga Tellis v. Bombay Municipal Corporation, AIR 1986 S.C. 180. - - - -- - -- -- - ------ 1991] ENVIRONMENTAL PROTECTION & JUDICIAL RESPONSES 159 28. Despite all these problems, the efforts of higher courts, in environmental pollution control through citizens'suits, are indeed appreciable. Judicial activism in this sphere is the need of the hour, more especially when the legislature is lagging behind In bringing the lacunae in the existing legal mechanism and the administration is still not well enough equipped to meet the challenge. In future too, the courts will have to play an active role in the formulation and effective determination of environmental policy so that elected branches of government become accountable to law and the public. The shelving of Silent Valley project in Kerala is the good achievement of the environmentalists in their epic struggle for the defence of environment where the judiciary okayed the project fUlly relying on the executive decision.71 Now the time has come for the environmentalists to take also other important ecological issues such as contract felling of trees in the forests, mining and quarrying of hill slopes, air and water pollution caused by mines and factories in the private and public sectors, to the courts. 71. For full detail, see M.K. Prasad, "Silent Valley Case: !vi Ecological Assessment".. Cochin University Law Review 128 (1984).