Judicial Activism is legal terminology that refers to court rulings that are
partially or completely rely on the judge's personal or political
considerations, rather than existing laws or legislations. The judiciary
protects or expands individual rights by its ruling despite the fact that it
departs from the established precedents and rules.
The main justification for
the introduction of judicial activism in environment legislation is the
relaxation of rule of locus standi as of which people were given an opportunity
to move to the court under Article 32 and 226 of the Constitution of India.
Introduction
Judicial Activism is an idea that was started in the US in 1947. It may be
defined as a philosophy of judicial decision making where by judges use their
own perspectives with respect to a public policy rather than constitutionalism.
This idea principally deals the contribution of Judiciary in making legislations
that considers fit for the general public. As though advancement of different
legislation as well as our legal system it is obviously clear that with the
inclusion of the judiciary, the legislation is coming all the more successfully.
This active role of judiciary in protecting the rights of citizens as well as
safeguarding the constitutional and legal system of the nation is known as
judicial activism. The commitment of judiciary has prompted arrival of more
prominent environment legislation in India similarly as with the introduction of
this idea in our country environment issues were given appropriate respect which
prompted the inclusion of right to clean and healthy environment as a part of
our fundamental right which is ensured by the constitution.
Objectives of Study
The objective of this study is to understand Judicial Activism, the
contribution of judiciary in line of environment laws through different
principles and doctrines of environmental importance via judicial pronouncements
and environment litigations. The scope of study is restricted to Indian
environment laws only.
Research Problem
The fundamental necessities of each person are satisfied by the environment
and natural resources. Because different developments of individuals in truly
creating society have now turned into a danger to our environment. Exhaustion of
the defensive ozone layer, nuclear energy threats, deforestation, soil erosion,
acid rain, environmental change, hazardous wastes and global warming are matters
of incredible concern at the national and international levels.
The issue of environmental protection is considered by the Indian judiciary,
particularly the Indian Supreme Court. Lately, the approach taken by the
judiciary has been moved from hesitant judicial restraint toward Judicial
Activism. It recognizes the right to live in a fresh environment as an essential
right and gave its decisions for the protection of the environment in different
landmark cases.
Research Question
- What is Judicial Activism?
- How does Judicial Activism relate to the environmental issue?
- Is Judicial Activism helpful to curb the environmental issue?
Research Methodology
The subject matter of my research is,
Judicial Activism And Vis-A-Vis
Environment". My study is based on
Doctrinal Method. There are many concepts
or doctrines in this regard. Additionally, this research contains a maximum of
the issues related to this subject matter. This undertaking is primarily based
on studies methodology.
The resource materials are secondary. I have used secondary assets like
books, articles, and journals, and Internet-based research.
Analysis
Earth provides enough to satisfy every man's needs, but not every man's greed-Mahatma Gandhi
Judicial Activism is inherent under the principle of judicial review
embedded in the Constitution of India. It is mentioned under Article 141 of the
Constitution of India which gives the law-making power to the Supreme Court of
India. Professor Upendra Baxi has said that the Supreme Court of India has often
become the "Supreme Court for Indians".
This idea came in India in nearly 1980's which was taken from US constitution
and this idea's scope and use rapidly began increasing when article 21 of the
Indian Constitution included right to clean and healthy environment as a
component of our fundamental right.
The first international conference which occurred for protection of
environment and preservation was the UN Conference on Human Environment
(normally known as Stockholm Conference), 1972 which prompted the enactment of
42nd Constitutional Amendment, 1976 in India for example certain environmental
duties were forced both with respect to the citizens [Article 51A (g)] as well
as on the state (Article 48-A).
The excursion from Stockholm Conference to Earth Summit at Rio de Janeiro
(Rio+20) held in June 2012 prompted the recognition that:
All people are entitled to a healthy and productive life in harmony and it
was viewed as that protection of environment isn't simply one issue which could
be left behind. Because of privatization environmental degradation,
globalization and liberalization began quickly expanding which brought about
harming human life existence.
So presently, it has turned into a need and a part of legal and moral duty of
every citizen to safeguard and further develop the environment condition. Thus,
the judiciary approached to preserve and protect the environment by developing a
mandate on people, on industrial houses, body corporate or organizations.
The job of judiciary relies upon the actual idea of political framework a
nation has, which is the reason their job fluctuates in various types of
government and have results distinctively. The judiciary takes a critical part
in a nation like India which exercises liberal democracy. Professor S.P. Sathe
and Upendra Baxi were of the view that Indian Supreme Court is probably the
strongest court among the world[1].
The personality of the Supreme Court can be appropriately seen by the
writings of Professor S.P. Sathe and Upendra Baxi as they have been supportive
of judicial activism in India and Prof. Upendra Baxi quoted that Supreme Court
of India has become Supreme Court for Indians[2] which could be seen from
different judicial rulings.
Along these lines, one can say that judiciary has assumed a vital part in
extension of scope of environment protection in India by the way of
interpretation of Constitutional provisions.
JUDICIAL ACTIVISM & ENVIRONMENT
The Right to Wholesome Environment
In
Subhash Kumar v. State of Bihar[3], the court stated that the right
to life granted under Article 21 of the Constitution includes the right of
enjoyment of pollution free air and water for full enjoyment of life. The court
recognized the right to wholesome environment as a part of right to life.
In
M.C. Mehta v. Union of India (Vehicular Pollution Case)[4], the Hon'ble
Supreme Court recognizes the right to healthy environment as a basic human right
and right to fresh air emerge out of right to life. This case leads to lead-free
petrol supply in Delhi.
Fundamental Right to Water
This principal right to water has been brought into the Indian framework by
the Indian Judiciary, not by any legislation. In
Narmada Bachao Andolan v.
Union of India and Ors[5], the Hon'ble Supreme court has upheld that the
right to pure and fresh water is a fundamental right embedded under right to
life under Article 21 of the constitution of India.
In the case of
M.C. Mehta v. Union of India (Ganga Pollution Case)[6],
the Supreme Court issued strict guidelines for the industries and factories
facilities connected with the emission of harmful substances in the river.
Setting up primary treatment plant was additionally ordered.
Because of these cases, there are statutory provisions against the dispersion
of any polluting matter in the water stream or well [Section 24 of Water
(Prevention and Control of Pollution) Act, 1974]
Compensation to the victims
In
M.C. Mehta v. Union of India (Delhi Gas Leak Case)[7], the Supreme
Court of India set down standards for giving compensation to the victims of any
hazardous environmental accident. It prompts radical changes in the matter of
compensation. It also affirmed the power of the Supreme Court to give
compensation on the breach of any fundamental right of an Individual.
Judicial Response against Public Nuisance
In
Ratlam Municipal Council v. Vardhichand[8], the Supreme Court
expresses that assuming there is any kind of public nuisance, the state should
put forth every conceivable attempt to eliminate it regardless of whether there
is any monetary restriction. It is for the reason for social justice and people
should get the advantage of each public functioning.
Constitutional Provision/Reforms for Environment Protection
Environment Protection is a pivotal matter for everybody and vital for
sustainable development.
The Constitution of India incorporates provisions to meet these points:
- Public Interest Litigation (PIL):
In general terms, a PIL implies a legal
action in a constitutional court to uphold public or general interest by which
their fundamental rights are being impacted. A public-spirited person can
approach the court for the rights of the public at large. PILs are often filed
in environmental issues.
- Article 32 and 226:
The writ jurisdiction of the Supreme Court under article 32 and of the High
Courts under Article 226 proves to be a boon for the environmental actions
in India. It is speedy, reasonable and gives easy access to the
Constitutional courts of the country by class action.
- Article 48A:
It was inserted by the 42nd Amendment Act, 1976 which expresses The State shall endeavor to protect and improve the environment and to
safeguard the forests and wild life of the country. Although it is a Directive
Principle yet has essential consideration in judicial endeavors.
- Article 51-A(g):
A Fundamental Duty which expresses that "It shall be the duty of every
citizen of India to protect and improve the natural environment including
forests, lakes, rivers and wild life, and to have compassion for living
creatures.
In
L.K. Koolwal v. State of Rajasthan[9], the Rajasthan High Court
observed that a citizen's duty to safeguard the environment under Article
51-A(g) of the Constitution bestows to the citizens the right to clean
environment. The judiciary might even ask that the government establish national
and state regulatory boards or special environmental courts.
• Article 21: In the recent years, our judiciary has extended the extent of
Article 21 that is 'Right to Life and personal liberty' to incorporate the right
to fresh and clear environment.
Role of Judiciary in formation of Environment Legislation
The role of judiciary in formulation of environment legislation in India can
be understood via landmark cases which have given another face to environmental
laws, due to just these leading cases, today we are having different number of
doctrines and principles present for protection and preservation of environment
and to achieve sustainable development goals.
Municipal Council, Ratlam v. Shri Vardichand and Ors.[10]
Until this case, there was not very much involvement of judiciary in line of
environment legislation or its protection, so this case can be considered as the
initial phase of the development of more protective environment laws. The facts
of the case were that Ratlam is a city in Madhya Pradesh in India where a
portion of the residents of the municipality filed with respect to the improper
drainage facility before the Sub-Divisional Magistrate under Section 133 of
Criminal Procedure Code, 1973.
The Sub-divisional Magistrate guided the municipality to draft a plan in no
less than six months to eradicate this issue faced by the people. Later on, this
case was moved to the High Court by the municipality looking for that they have
deficiency of funds in preparing proper drainage facility yet the High Court
supported the choice of Sub-Divisional magistrate so the municipality later
moved to Supreme court through an appeal however the Supreme court likewise
rejected the municipality and said that lack of funds isn't a reason against
their obligation towards the public.
As this was a public health issue so the decision depended on the interests
of society protecting their social interest which was inferred from the preamble
and Article 38 of the Constitution of India, 1950. In this way, the municipality
was ordered to take immediate action within six months with respect to
pollution, sanitization and contamination of roads.
Union Carbide Corporation v. Union of India (Bhopal Gas Tragedy) [11]
On December 3, 1984, nearly forty tons of Methyl Isocyanate (MIC), a harmful
gas mixed with water made an exothermic reaction spilt from Union Carbide India
Limited (UCIL) plant and spread in Bhopal, a city in Madhya Pradesh in India.
This gas leak impacts were dangerous to such an extent that a huge number of
people were killed on the spot and many were affected through this at large and
many generations faced the hard outcomes of it as children used to be born with
specific problems like visual debilitation, etc., and this was caused because of
the carelessness of the company.
In spite of repetitive complaints in regards to
the safety measures of the pesticide plant by the agronomic engineer of the
plant, UCIL ignoring all these complaints continued to producing dangerous &
hazardous chemicals in the plant.
On June 7, 2010, the court applied the absolute liability principle,
depending whereupon seven ex-employees including the former chairman of UCIL
were convicted by the court of causing death by negligence under Section 304-A
of IPC and were additionally charged under Section 35, 336, 337, 338 of IPC,
1860, by which all were imprisoned to two years. In addition, a fine was imposed
on the company. Later on, the Government of India passed the Bhopal Gas Leak
Disaster Act which gave the government an authority to represent all victims in
or outside India and applied the polluter pay principle to recognize how much
pay was payable by the company because which the UCIL needed to pay US $470
million in a full and last settlement of the civil and criminal liability.
M.C. Mehta v. Union of India (Ganga Pollution Case) [12]
There was a request recorded under a writ of mandamus against the
respondents (leather tanneries) as they were releasing and deposing the
chemicals of industries without being appropriately treated to holy river Ganga
and the sewage was being released there which was harming the river Ganga and
was causing water contamination. This was being continued for very long despite
everything people were not taking responsibility nor were they effectively
stopping this. Thus, the Supreme Court bifurcated this writ request into two:
Mehta I[13] and Mehta II[14].
In Mehta I case, the Supreme Court ordered under ORDER 1 RULE 8 OF CPC, 1908,
that there ought to be no release of any chemicals or and liquid substance of
the industries or sewage without being appropriately treated. The court
highlighted significant constitutional provisions that are made for safeguarding
the environment as well as the importance of the Water (Prevention and Control
of Pollution) Act, 1974 which is made for controlling water pollution.
The court discussed the term trade effluent, it is a substance which can be
in any structure whether strong, fluid or in a vaporous state, discharged from
industries, which was essentially the root cause of the water pollution being
caused. The court ordered the industries to establish at least primary treatment
plant as a need for the continuation of a specific industry, in the event that a
secondary treatment plant isn't reasonable to the industry and ordered to make a Ganga Action plan for saving the holiness of river Ganga
and making it pollution free.
While the Mehta II argument managed to appeal against municipal body i.e., Kanpur Nagar Mahapalika. The court investigated the matter that Kanpur Nagar
Mahapalika is laid out under UP Nagar Mahapalika Adhiniyam, 1959 whose function
is to maintain cleanliness in the areas that are under their jurisdiction and
the court additionally viewed the objective of the water act, 1974 which was to
curb water pollution and referred to specific sections of it.
The court relied on the common law principle that injunction orders can be
applied to Municipal Corporation just when a riparian owner brings a suit
against them as he will be adversely affected by the water pollution brought
about by the industries. The court came up with the view that M.C. Mehta not
being a riparian owner he can also file a suit against the nuisance caused by
the industries in the interest of people who are being impacted by the pollution
caused in the river Ganga.
So, the court ordered the Kanpur Nagar Mahapalika to ask those contamination
causing industries either quit functioning or to move their waste to a region
outside the city and it was additionally expressed by the court that from now on
any industry applies for license, that specific industry should have sufficient
provisions required for the treatment of trade effluents flowing out of the
factories.
Conclusion
Development and environment go together for the advancement of the country
environment conditions should be great as the other way around. The environment
and public health subjects can be not left to the side as they are a key part of
the nation's development and growth. The environment gives and satisfies all our
basic necessity of life and without healthy environment, human existence is not
possible.
Yet, with the improvement we are missing behind in saving our environment in
spite of the fact that there are different measures taken by the government and
various conventions held up to this point, however, for safeguarding and
preserving the environment human co-operation is must as they share a close
connection between them.
Judiciary has taken a more extensive strategy for the protection of
individual rights and arose as a protector of environment. But the protection of
environment is a worldwide issue and requires public support. There ought to be
harmony between development activities and environment. Besides, the special
environmental courts and tribunals should work in effective way to deliver fast
justice and safeguard our environment.
The judiciary has played a vital part in the plan of different doctrines and
principles and development of environmental legislation particularly by
including the right to clean and healthy environment as a part of our
fundamental right under Article 21 of the Constitution. Yet at the same time for
better environment conditions public awareness programs should be led so that
people can know about their rights and obligations and the climate can be
environment in an all the better manner.
Bibliography
Cases:
- Subhash Kumar v. State of Bihar (AIR 1991 SC 420/ 1991 (1) SCC 598)
- M.C. Mehta v. Union of India (Vehicular Pollution Case), (1991) AIR SC 813
- Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345
- M.C. Mehta v. Union of India (Ganga Pollution Case), (1987) 4 SCC 463
- M.C. Mehta v. Union of India (Delhi Gas Leak Case), 1987 AIR 1086, 1987 SCR (1)
819
- Municipal Council, Ratlam v. Shri Vardichand and Ors., 1980 AIR 1622, 1981 SCR
(1) 97
- L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj 2
- Ratlam Municipal Council v. Vardhichand, 1980 AIR 1622, 1981 SCR (1) 97
- Union Carbide Corporation v. Union of India (Bhopal Gas Tragedy), 1992 AIR 248,
1991 SCR Supl. (1) 251
- M.C. Mehta v. Union of India (Ganga Pollution Case), [1987] 4 SCC 463, 1988 AIR
1115, 1988 SCR (2) 530
- M.C. Mehta v. Union of India, [1987] 4 SCC 463
- M.C. Mehta v. Union of India, 1988 AIR 1115, 1988 SCR (2) 530
Articles
Constitution of India
- Article 32 and 226
- Article 141
- Article 21
- Article 51A (g)] as well as on the state (Article 48-A)
- Article 38
Acts
- Section 304-A, 35, 336, 337, 338 of IPC, 1860
- Section 24 of Water (Prevention and Control of Pollution) Act, 1974
- Section 133 of Criminal Procedure Code, 1973
- Order 1 Rule 8 OF CPC, 1908
- Bhopal Gas Leak Disaster Act
- Water (Prevention and Control of Pollution) Act, 1974
- UP Nagar Mahapalika Adhiniyam, 1959
- Water act, 1974
End-Notes:
- S.P. Sathe, Judicial Activism in India (New Delhi, Oxford University
Press, 2000
- UpendraBaxi, '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
- Subhash Kumar v. State of Bihar (AIR 1991 SC 420/ 1991 (1) SCC 598)
- M.C. Mehta v. Union of India (Vehicular Pollution Case), (1991) AIR SC
813
- Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345
- M.C. Mehta v. Union of India (Ganga Pollution Case), (1987) 4 SCC 463
- M.C. Mehta v. Union of India (Delhi Gas Leak Case), 1987 AIR 1086, 1987
SCR (1) 819
- Municipal Council, Ratlam v. Shri Vardichand and Ors., 1980 AIR 1622,
1981 SCR (1) 97
- L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj 2
- Ratlam Municipal Council v. Vardhichand, 1980 AIR 1622, 1981 SCR (1) 97
- Union Carbide Corporation v. Union of India (Bhopal Gas Tragedy), 1992
AIR 248, 1991 SCR Supl. (1) 251
- M.C. Mehta v. Union of India (Ganga Pollution Case), [1987] 4 SCC
463, 1988 AIR 1115, 1988 SCR (2) 530
- M.C. Mehta v. Union of India, [1987] 4 SCC 463
- M.C. Mehta v. Union of India, 1988 AIR 1115, 1988 SCR (2) 530
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