The judiciary has time and again intervened and protected the environment by overstepping its power. Despite all criticism and backslash for overstepping its authority, one aspect where everyone is on the same footing is the massive contribution of the judiciary towards the welfare of the environment. This paper discusses the role of judiciary in environmental jurisprudence, the dilemma faced by it and a selective assertive pattern followed by the judiciary.

Introduction
The framers of the constitution drafted the constitution based on Montesquieu's philosophy of independence of organs of the State. [1] The judiciary is the organ of the State equipped with interpretating the laws. The judiciary keeps a check on the power of the Executive and the legislature through judicial review and via this participates in policy making. This power of the judiciary has been a subject of debate since long and has been held as a part of the basic structure doctrine.[2]

The judiciary has stepped into the shoes of the other two organs whenever there has been a lacuna in discharging their obligations. This willingness is known as 'judicial activism'. The judiciary being the place of last resort to secure justice has bestowed faith among the people of India much more than the legislature and the executive. The judiciary has always come to the forefront when the principles of the constitution has been violated.[3] Hence, the judiciary often finds itself involved with the other two organs.[4] However, this role is not absolute and judicial restraint imposes this restriction.

One field where the judiciary has constantly demonstrated its activism is the environmental jurisprudence. The manifestation of this is the relaxation of the rule of locus standi wherein any person can move to the court. India has a lot of environmental legislation existing but the implementation and execution of the legislation are awfully low. The judiciary taking note of the dull attitude of the enforcement machinery, involved itself in the environmental enforcement in the late 80s.

The courts have long been active in environmental matters in India with the most significant jurisprudence emerging from cases dating from the 1980s onwards. Rightly or wrongly, these decisions cemented the courts' "activist" reputation since they, inter alia, introduced the concept of public interest litigations, relaxed the rules of standing (making it easier for affected persons and concerned citizens to approach the courts), and also began articulating important environmental principles to guide policy and decisions in the country.[5]

Thus, the courts' role has slowly transformed from being primarily geared towards settling disputes towards one that actively attempted to manage and prevent the issues at hand, very often through a device known as a "continuing mandamus".

This refers to a mechanism used by the courts to monitor Executive implementation and enforcement. It is most frequently used by the Court to pass a series of interim orders and to ask parties to report on compliance with these orders in lieu of passing a final decision (Sahu, 2008).

Environmental protection isn't only an important domain at the international level but at the national level too. Even before the Stockholm Summit, India's IVth Five Year plan contained provisions for appraisal of environmental issues. Consequently, A national committee on Environment Planning and Co-ordination was set up as a high advisory body to the Government. This Committee looked after issues related to environment.[6]

The Impact Of Judicial Activism In Environmental Jurisprudence:

The judiciary has contributed immensely in evolving principles and doctrine in the field of environmental protection and through its activism strengthened the Fundamental Rights of the citizens of India. Professor Upendra Baxi has often hailed the Supreme Court of India as the "Supreme Court for India". [7]

• Doctrine Of Sustainable Development

  The judiciary plays a pivotal role in in redressing the problem of environmental degradation and pollution. The harmonization of industrialization and environmental preservation is a crucial problem ahead of the Judiciary. The judiciary has in many judgments highlighted the downfalls if industries were to be shut down and at the same interval stability of the environment should also be borne in the mind. In Vellore Citizens Welfare Forum v. Union of India[8], the Supreme Court held that sustainable development is the answer to development and ecology in present times. Sustainable Development means to present generation without compromising the needs of future generation.
   

• Polluter Pays Principle (PPP)

  With the introduction of absolute liability in the famous Oleum Gas Leak[9], the Court now calculates the environmental damages through proper examination of the situation. Such an aspect was endorsed in Vellore Citizen's welfare Forum v Union of India[10].
   

• Precautionary Principle

  According to this principle if any project or action carries a risk of harming to public and environment and if the person who undertakes such a project or action has the knowledge about the risk, then the burden of proof lies on that person that the project or action is not harmful given that scientific measures were not taken. This principle says that there is a social responsibility towards the public, from protecting them against any risk.

The Karnataka High Court in a case[11] held that the precautionary principle is a part of the constitutional mandate relying on the Supreme Court case. It was laid down that the burden is on the developer to prove that the project is not danger if there are non- negligible and uncertain risks involved.

Selectively Assertive Nature Of The Supreme Court: Analysis

There have been instances where the executive has failed to implement the directions issued by the judiciary due to reasons not explicitly known. The questions that next arises is- What is the way out if such non-performed directions are brought up to the court either by a party or Suo moto.

As a citizen, we would expect the judiciary be aware of its rulings as they are' socially embedded political actors'.[12] There are three possible ways the judiciary could go about in such a situation: Firstly, direct the Executive to enforce the decision, secondly, the court doesn't impel the executive to enforce such decisions, or thirdly, selective assertion of the demands.[13]

The researcher has taken four case studies to demonstrate selective assertion pattern followed by the court, probably due to the political backslash it might receive. The first two cases demonstrate the court's assertive attitude in making the government oblige with the order while the latter two show refraining attitude of the Judiciary in asserting the executive.

1. Kanpur Tanneries Case[14]

   This case was regarding the discharge of harmful chemicals and industrial wastes of the leather industry into the river Ganga. The judgment obligated both the private and the public entity from refraining to pollute the river and ordered the tanneries to set up effluent treatment plants. The court asserted that its order be obliged. The social cost of it could be shutting down of around 400 tanneries. The judiciary relies upon multiple factors: public perception, government wing, institutional interests etc. before giving a judgment. In this case it held the local municipal bodies non-compliance with the statutory obligations. They moreover harped on existing laws rather than principles to negate the opinion of judicial activism.
   
   Interestingly, most of the tanneries didn't belong to the political background and had locals involved in the business. Secondly, the cleanliness of the Ganga is demanded by a large population. This public support must have motivated the court to make the government oblige with the order.
    

2. Diesel Ban Case

   The petitioner in the case had accused the Delhi Government of neglecting its role in providing clean air and maintaining India's environmental status. He asked the Delhi government to file an affidavit containing all the measures it had taken to counter the air pollution.
   
   While this case lasted for years and led to formation of many committees, it finally brought result when the Supreme Court ordered to phase out the old vehicles and to change to compressed natural gas (CNG). Interestingly, the Court warned those who fail to adhere to the norms would face the contempt of court. In this case, the interest groups were more powerful than the Kanpur tanneries.
   
   Both the Delhi government and the transport companies had problems in complying with the directions but the Court kept pushing. Subsequently, when the Delhi government declared that it would not comply with the order, the Supreme Court's harsh criticism led to reversal of Delhi government announcement and abide by the decision.
    

3. The Wetland Cases

   The wetlands comprise of about 5% of India's surface and are very important to the ecosystem. There are various statutory obligations but all in vain because of government inaction. This inaction leads to construction on wetlands diminishing their protection. Since, 2011 the Supreme Court has been warning of consequences of non-compliance but all in vain. Recently, in 2017 the Court demanded numerous wetlands to be notified and a policy for their conservation be made. Despite various criticism on the Central Government, nothing has been achieved on ground. While there were consequences spoken of, the court barely took any action in this regard.
   
   Apart from framework management issue in wetland conservation, the public support is close to zero in this case. Therefore, the court has adopted the balancing theory in this scenario.
    

4. Failure Of Ban On Crop Burning

   Similar to the wetland's case, the problem of air pollution is a fragmented problem in India. One of the causes leading to air pollution is biomass burning. Taking the case of Delhi, the neighbouring states Haryana and Punjab burn the crop residue to prepare the soil for harvesting for a short period. This method is often resorted to since the cost is very minimal and also removes the stubble and husk left behind. Keeping in mind the CNG intervention by the Court, it was expected the Court would take an assertive stance on this matter too. However, the court failed to be assertive.

The reasons for this could be involvement of multiple states, lack of data and technologies. One aspect is the cost would be borne by the farmers of Punjab and Haryana to benefit the citizens of Delhi. Vote bank is another such reason since election in these areas are tight.

All India Environment Service

Recently, the Supreme Court has asked the Center whether it will create an all-Indian Environmental Service (IES) which was recommended in the year 2014 by then Cabinet Secretary T.S.R. Subhramanain. The committee was set up to review the green laws and the procedures followed by MoEF&CC.

The committee had suggested various amendments to almost all green laws but was rejected by the Parliamentary Standing Committee. The report proposed an Environmental Laws Management Act with creation of two bodies- National Environmental Management Authority and State Environmental Management Authority.

Conclusion
The judiciary has worked relentlessly to protect the environment and consequently the basic right to healthy environment of individuals. The paper manifests the active role played by the judiciary preservation of the environment. This active role has given impetus to environmental law in India. The role of PIL manifests its importance at this juncture when there could be thousands of petitioners devoid of their rights if the locus standi principle hadn't been relaxed.

In current times, wherein we know that industrialization is of paramount importance for India, it also has environmental impact. Every pro has a con (Pro et Contra). However, the Judiciary has maintained the scales between progress and preservation. The conscience of the judges is brought to test whenever an environmental litigation is brought up.

While on one hand lies the industrialization and urbanization aspect, the other hand delineates the impact on environment. There is no set principle that the scales would turn in favour of the party who is supporting effect of environmental degradation since industrialization leads to progress of the society.

The case studies above test Kapiszewski's framework in the Indian Judiciary context and how the judiciary tends to be selectively assertive to balance public reactions, institutional interest, economic and political costs.

Bibliography
Statutes:

1. Indian Constitution.

Books:

• De, Prabir Kumar. 2018. Public Policy and Systems. New Delhi: Pearson.2012.

Journals/ Articles:

• Upendra Baxi, The Judiciary as a Resource for Indian Democracy, (accessed on 22-03-2022).
• P.N. Bhagwati and C.J. Dias, The Judiciary in India: A Hunger and Thirst for Justice, 5 NUJS L REV 171 (2012)
• Kapiszewski, D.; Taylor, M. Doing courts justice? Studying judicial politics in Latin America. Perspect. Politics 2008, 6, 741–767.
• Mehta, P. The rise of judicial sovereignty. J. Democr. 2007, 18, 70–83.
• Vanangamudi, P, Approach of the supreme court to industrial relations and environmental protection (2015)< http://hdl.handle.net/10603/37611> (last access on 21-03-2022)
• Upendra Baxi, 'The Avatars of Indian Judicial Activism: Explorations in the Geography of (In) justice', in S.K. Verma and Kusum (eds.), Fifty Years of the Supreme Court of India: It's Grasp and Reach (Delhi, Oxford University Press, 2000) pp. 156-209 at 157

Court Cases:

• Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715.
• M.C. Mehta v. Union of India, AIR 1987 SC 965
• Vijayanagar Education Trust v. Karnataka State Pollution Control Board, AIR 2002 Kant 123.
• L. Chandra Kumar v. Union of India, 1997 (2) SCR 1186.

End-Notes:

1. ART. 50
2. L. Chandra Kumar v. Union of India, 1997 (2) SCR 1186.
3. Upendra Baxi, The Judiciary as a Resource for Indian Democracy, (accessed on 22-03-2022).
4. P.N. Bhagwati and C.J. Dias, The Judiciary in India: A Hunger and Thirst for Justice, 5 NUJS L REV 171 (2012)
5. Gill, G. The social justice bench of the Supreme Court of India: A new development. Public Law 2016, 392–401.
6. Vanangamudi, P, Approach of the supreme court to industrial relations and environmental protection (2015) (last access on 21-03-2022).
7. Upendra Baxi, 'The Avatars of Indian Judicial Activism: Explorations in the Geography of (In) justice', in S.K. Verma and Kusum (eds.), Fifty Years of the Supreme Court of India: It's Grasp and Reach (Delhi, Oxford University Press, 2000) pp. 156-209 at 157
8. AIR 1996 SC 2715.
9. M.C. Mehta v. Union of India, AIR 1987 SC 965
10. AIR 1996 SC 215.
11. Vijayanagar Education Trust v. Karnataka State Pollution Control Board, AIR 2002 Kant 123.
12. Kapiszewski, D.; Taylor, M. Doing courts justice? Studying judicial politics in Latin America. Perspect. Politics 2008, 6, 741–767.
13. Supra, 471-506.
14. Mehta, P. The rise of judicial sovereignty. J. Democr. 2007, 18, 70–83.