Be it international treaties, conventions or any law governing and regulating the environmental damage since, just the past century, the world has started to take note of the environmental damage caused after industrialization, development of ballistic missiles and nuclear weapons has led to huge carbon emissions which have further led to the loss of biodiversity. According to I.A Shearer as laid down in his book Starke‟s International Law “Any multilateral agency responsible for the promotion of development projects in the developing countries, must concern itself with the ecological effects of the projects in the developing countries, otherwise ecological detriments would have to be set off against the benefits to accrue to the developing country. So far as development is concerned, as a branch of Economics, the criteria of quality of Environment has also become one of the standards of development. The sates may also exercise sovereignty over the natural resources for sustainable development. It is a commonplace now that a crisis of global proportions is and has been affecting the human environment, through pollution of the atmosphere and of maritime, coastal and inland waters, through destruction of plant life and uncontrolled depletion of natural resources partly by the reason of overpopulation and partly by the demands of industrial technology”[1] In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. Therefore, when implementing environmental obligations, economical and social development should be taken into consideration, and vice versa.
The 2 major cases in this regard are The Blue Lady Itinerary[2], A public interest litigation challenging the import of hazardous wastes into the country was filed in 1995 in the Supreme Court of India by the Research Foundation for Science, Technology and Natural Resource Policy. The Supreme court saw the dismantling would bring a lot of revenue to the country. However, In The Clemenceau Case The Conseil d‟Etat the Apex court considered that the fact that the French State decided to auction the Clemenceau in the public market and concluded a contract for the dismantling of the ship illustrates the will of the French State to discard the hull of the Clemenceau. Eventually, due to the burden of various International organisations, France had to call the ship back. If there had been no such organisations, to which a nation would have been a signatory, it would have exercised it’s arbitrariness and further cause harm to the environment.
Focusing the vision of the article to resolve such environmental damage under the cover of the environment there are numerous legislations and bodies in the regard. The prominent of among the bodies regulating the matter is the National Green Tribunal. The Act governing the same confers on the Tribunal, the jurisdiction over all civil cases where a substantial question relating to the environment (including enforcement of any legal right relating to the environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I to the Act. This Act also confers upon the Tribunal the appellate jurisdiction against certain orders or decisions or directions under the Water (Prevention and Control of Pollution) Act, 1974; the Water (Prevention and Control of Pollution) Cess Act, 1977; the Forest (Conservation) Act, 1980; the Air (Prevention and Control of Pollution) Act 1981; the Environment (Protection) Act; 1986 and the Biological Diversity Act, 2002.
It further provides a time-limit of thirty days within which the appeals may be filed before the Tribunal. It also empowers the Tribunal to allow such appeals to be filed within a further period not exceeding sixty days if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period.
India started to participate actively on environmental damage after the Stockholm conference in the year 1972 and subsequently, the Bhopal Gas Tragedy and the Oleum Gas Leakage case wherein the principle of Absolute Liability was evolved, holding many of such industries liable thereafter for the damage caused to life and surroundings under the garb of environmental development.
In India, most of the environmental jurisprudence has developed by judicial activism. Most of the cases came before the Court as a result of public interest litigation (PILs) in which the people exercised their freedom of speech and expression by filing petitions before it, highlighting the violation of the rights of the people to live in a healthy environment in one way or the other.
This article aims at analyzing PILs in the light of judicial creativity to realize the importance of a healthy, safe and wholesome environment and how it now forms a part of the fundamental rights under part III of the Indian constitution. Also, many PILs have been filed during the period when there were some important environmental damages caused by some big enterprises and parallel to this India was being a signatory to a number of environmental treaties at the international platform.
Sooner, we came to realize that it was the success of such judicial approaches that today we have special environment courts and Acts governing the functions of the same and the Principles such as sustainable development, precautionary, absolute liability, polluter pays etc. have imposed hefty compensation on those who pollute the environment under the cover of economic development. It has now been realized that the state needs to adopt a balanced approach while promoting development at the same time safeguarding the environment.
Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48-A and 51-A(g) of the Constitution are as under:
Article 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.—The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
48-A. Protection and improvement of environment and safeguarding of forests and wildlife.—The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.
51-A. (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
Apart from the constitutional mandate to protect and improve the environment there are plenty of post-independence legislations on the subject but more relevant enactments for our purpose are: The Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment (Protection) Act, 1986 (the Environment Act).
In N.D. Jayal V. Union of India[3] the Supreme Court has declared that ‘the adherence of sustainable development is a sine qua non for maintenance of symbiotic balance between the right to development and life’. This concept is “an integral part of ‘life’ under Article 21.
Many a time, the state exercises it’s powers arbitrarily and many other times even private authorities tend to do so at the stake of the environment. One such example is found in Bangalore Medical Trust V.B.S. Muddappa[4]. Where the Supreme Court thwarted the attempt, the convert a public park site into a nursing home.[5]
In General Public of Saproon valley V. State of HP[6], mining of limestone in the beautiful Saproon Valley situated close to solan town in Himanchal Pradesh caused great damage to the fields, the environment and resulted in the pollution of water and soil erosion of the surrounding land and ecological imbalance. The High Court directed the State to strike a balance between the tapping of natural resources for the purpose of the socio-economic development and the preservation and protection of the ecology by the adoption of a long term perspective planning.
In the light of Right to wholesome environment guaranteed under Article 21 in the case of Damodar Rao v. Special officer municipal corp. hyd[7].SC held the area marked as open space cannot be used for residential purpose as Right to the wholesome environment is guaranteed under Art 21 of the constitution.
Generally, PIL’s in the form writs for the enforcement of fundamental rights is filed for the speedy and efficient disposal of such cases under Art.32 in the Supreme court and under Art.226 in the High court with the object of compelling the government bodies to perform their functions.
In the area of environmental protection, PIL has proved to be an effective tool. In Rural Litigation and Entitlement Kendra vs. State of U.P., the Supreme Court prohibited continuance of mining operations terming it to be adversely affecting the environment. Another case M.C. Mehta vs. Union of India, the Supreme Court held that air pollution in Delhi caused by vehicular emissions violates the right to life under Art. 21 and directed all commercial vehicles operating in Delhi to switch to CNG fuel mode for safeguarding the health of the people.
Likewise, there have been multiple PILs on environment protection wherein, the courts have not let economic development at the cost of the environment.
The precautionary principle aims to protect suggests that where there is a risk to the extinct or vulnerable species, the burden of proof lies on the owner to prove the act is not harmful to the biodiversity. Polluter Pays Principle It means that “polluter should bear the cost of pollution as the polluter is responsible for pollution.”
In the light of polluter pays principle and precautionary principle degradation. The inadequacy of science is the real basis that has led to the precautionary principle of 1982 A.P. Pollution Control Board Vs. Prof. M.V. Nayudu.[8] The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake [A.P. Pollution Control Board Case].
The right of the petitioner was challenged. in M. C. Mehta V. Union of India cases[9] which have become guiding forces today. The Supreme Court, in this case, suggested setting up of ‘Environmental Courts’ on a regional basis for the first time.
The above are the remedies and principles in the light of sustainable development to strike a balance between life and development activities, as in the present case.
The judiciary is in the attempt to apply the anthropocentric approach i.e. by maintaining, preserving and protecting the other aspects of human life aims at enforcing the directive principles i.e. Article 48A and 51A(g[10]) and many other treaties and conventions to which India is a party.
References:
- Chapter 3 Environmental Protection and the Indian Constitution available at https://shodhganga.inflibnet.ac.in/bitstream/10603/132471/10/10_chapter%203.pdf last accessed on August 3, 2020 at 6:00PM
- Chapter 5 INDIAN JUDICIARY AND ‘ENVIRONMENTAL PROTECTION available at https://shodhganga.inflibnet.ac.in/bitstream/10603/132471/10/10_chapter%203.pdf last accessed on August 3, 2020 at 7:00PM
- CHAPTER-IV ENVIRONMENTAL LEGISLATIONS IN INDIA available at https://www.amu.ac.in/emp/studym/100009776.pdf last accessed on August 3, 2020 at 7:00PM
- CHAPTER – VII NATIONAL GREEN TRIBUNAL, ITS FUNCTIONING AND EFFECTIVENESS VIS-À-VIS NATIONAL GREEN TRIBUNAL ACT, 2010 available at https://shodhganga.inflibnet.ac.in/bitstream/10603/132471/10/10_chapter%203.pdf last accessed on August 3, 2020 at 9:00PM
[1] IA SHEARER, STARKE‟S INTERNATIONAL LAW, 357 11TH ed, 1994).
[2] THE BLUE LADY CASE AND THE INTERNATIONAL ISSUE OF SHIP DISMANTLING‟,4/2 Law, Environment and Development Journal (2008), p. 135, available at http://www.lead-journal.org/content/08135.pdf last accessed on 28th September 2019 at 9:00PM
[3] (2003) 6SC 572
[4] (1991) 4 SCC 54.
[5] Supra note 6
[6] AIR 1993 HP 52.
[7] AIR 1987 AP 171.
[8] (AIR 1999 SC 812)
[9] (1997) 2 SCC 353.
[10]) The Constitution Of India article 48A and 51A(g),
