Judicial Activism and the Evolution of the Fundamental Right to a

Clean & Healthy Environment in India

(By Laxmy R. Nambiar & Altdus Ray Frank, Semester 9, NUALS)

From a Constitution that saw no need to define the word ‘environment’¹ to the inalienable, fundamental right a clean and healthy environment has come to be today, awareness of the dangers posed by damage to the environment has finally gained the notice of the country. It is possible to fully understand the change in our attitudes towards the plight of the environment by tracing the route of judicial activism and the legislations they caused to be enacted within the realm of pro environmental laws.

Pre Constitutional Laws - A History

Prior to the enactment of the Constitution, environmental law was dealt with under the law of Torts. Public nuisance for unreasonable interference of a general right of the public, negligence, right to easement to keep one’s land to be free from air, water or noise pollution, strict liability for inherently dangerous substances that bring harm to the public & subsequently [through judicial pronouncement] absolute liability were the provisions in the Penal² and Civil³ Codes that were used to take cognizance of environmental issues.

It is hardly necessary to say that were sparingly used or that they were effective in any way. Where it came to the question of ‘development’ the environment was often overlooked or even blatantly exploited. In the case of State of Kerala v. Gwalior Rayons (AIR 1973 SC 2734), it was held by the Supreme Court that the State exercised monopoly when it came to forested areas under the Constitution and in the particular case, the assignment of private forest was constitutional and the severe deforestation that followed was justified as an agrarian reform.

The 42nd Amendment

The 42nd amendment that came into force in January 1977 introduced two Articles in the Constitution to protect the environment. The Directive Principles of State Policy was amended to include Art.48A that states that the State shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country. Art.51(g) inserted into the Fundamental duties of citizens required every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

A Change in Perspective

A change in perspectives began when the Supreme Court overruled the 1950’s landmark A.K. Gopalan judgment in 1978 with Maneka Gandhi v. Union of India. This change that substituted Lex with Jus saw the shift from the stress being laid on ‘law’ to ‘justice.’ This judgment opened up the scope of Art.21 of the Indian Constitution to include the concept of the due process of law.

The case of Municipal Council, Ratlam v. Vardhichand(AIR 1980 SC 2734) it was held that municipal bodies have a paramount duty to protect the life of its people. The court stated that they were thus bound to maintain clean roads and drains and lack of funds could not be an excuse to not do so. In 1985, the right to life was for the first time used to tackle an environmental hazard in the case of RL & E Kendra, Dehradun v. State of U.P.(AIR 1985 SC 652). Though Art.21 was not directly invoked, this case, which arose from indiscriminate lime stone quarrying in Mussoorie was referred to the Supreme Court under Art.32 of the Constitution and a purely environmental hazard was referred to a court as a violation of a fundamental right.

The Water and Air Pollution Acts

The Water (Prevention and Control of Pollution) Act and Air (Prevention and Control of Pollution) Act of 1974 and 1981 tried to control the pollution and minimize damage to the environment. The Act made it imperative for industries to get consent or no objection certificates from the Pollution Control Boards that were set up under them. The Air Control Act among other things set up ‘air Pollution Control areas’ as areas to be specially controlled against air pollution. The Environment Protection Act (EPA) that followed made the Central Government the guardian of the environment and gave special powers for legislation to be delegated to central government officers, State Governments, State Officials and the Pollution Control Boards. The Hazardous wastes’ and bio-medical wastes’ Rules are examples of important delegated legislation formed under the EPA.

Right to a Clean, Healthy Environment - A Fundamental Right

In M.C. Mehta v. Union of India(AIR 1987 SC 982) the case concerning the oleum gas leak that injured several persons and resulted in one death, the Supreme Court for the first time examined the ambit of Art.21 and 32 and the its relationship to hazardous activities and environmental issues.

The 73rd and 74th amendments introduced in 1993 to the Constitution extended powers to protect the environment to the grassroots of the legislative mechanism by empowering the panchayath and municipality to take environmental matters into their hands. The 73rd constitutional Amendment inserted the 11th Schedule comprising of 29 entries along with Art.243(g) to spell out the powers and responsibilities of the Panchayats and the 74th amendment inserted the 12th Schedule and Art.243(w) to deal with the powers and provisions of the municipalities.

The Polluter Pays Principle

In the 1987 the Supreme Court pronounced the landmark decision of M.C. Mehta v. Union of India(AIR 1987 SC 1087) where the court formulated the ‘polluter pays’ principle for causing environmental harm held that enterprises engaged in hazardous and inherently dangerous activities would be absolutely liable for any damage caused to the environment. The court further held that the exceptions laid down in the case of Rylands v. Fletcher case would not apply to India and that compensation awarded would be proportionate to the capacity of the industry. The most significance achievement of this judgement however is that the court held that directions for environmental issues could be henceforth issued as a violation of the fundamental rights of the people under Art.32 of the Constitution.

Precautionary Principle

In the well known 1997 case of M.C. Mehta v. Union Of India(AIR 1997 SC 734  ) better known as the Taj Trapezium case, the court held that industries in Delhi, more specifically Agra that emitted noxious gases had to move away as the damage caused by the poisonous gases to the Taj Mahal - a world heritage site could not be condoned. It was in this case that the court laid down the ‘precautionary principle’ stating thus; “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.”

The Public Trust Doctrine

This doctrine was devised by the courts to protect the environment and states that the environment belongs to all humanity and is therefore in a public trust for their benefit. The doctrine of ‘Public trust’ was used to great effect to protect and prevent contamination of underground water in the case of M.P. Ramababu v. Divisional Forest Officer(AIR 2002 A.P. 256) as well as in earlier cases such as M.C. Mehta v. Kamal Nath((1997) 1 SCC 388) and M. I. Builders v. Radhe Shyam Sahu  (AIR 1999 SC 2468)

Right to Employment v. The Environment

In the case of M.C. Mehta v. Union Of India the supporting Judge referred to the life, health and ecology of Indo-Gangetic plane for closure of polluting tanneries. Life, health and ecology stated the court gets far greater importance than unemployment and loss of revenue. The tanneries were thus asked to relocate. In the 1997 case of Ivory Traders and Manufacturers Association v Union of India(AIR 1997 Del. 267), the court in regard to killing of elephants for ivory held that any pernicious trade can be totally banned and went on to state that the killing of elephants to procure ivory was a ‘pernicious trade’ and thus was not protected under Art.19(1)(g) of the Constitution. This decision was upheld by the Supreme Court in 2003 in the case of Indian Handicrafts Emporium v. Union of India(AIR 2003 SC 3240) which held that the total prohibition of the import of African ivory was constitutional as a necessary measure to eliminate the killing of Indian elephants and trafficking Indian ivory under the pretext of dealing in imported ivory.

Right to Development v. The Environment

Both the right to development as well as the right to a clean and healthy environment stem from the right to life. However, where these two concepts come in conflict with each other, it is the concept of sustainable development that resolves the issue. The concept of sustainable development is to adapt and control development to meet the needs and aspirations of the present without compromising the ability to meet those of the future. In the case of Narmada Bachao Andolan v. Union of India(AIR 2000 SC 3751) the Supreme Court held that rehabilitation of the displaced people had to be carried out completely before any further increase in the dam is to be effected. Furthermore, in the case of Susetha v. State of Tamil Nadu(AIR 2006 SC 2893), where a disused temple tank was used as a dumping ground for sewage, the Supreme Court specifically stated that sustainable development was not an empty slogan and it is the need of the day to implement a pragmatic view of the concept. The court directed the panchayath to look into the matter saying that they had a duty to take care of tanks and water bodies in their locality.

Right to Religion v. The Environment

In the case of Moulana Mufti Syed Md Noorur Rehman Barkati v. State of West Bengal(AIR 1999 Cal. 15) the court held that restrictions placed on loudspeakers for azan do not violate the right to equality and religion and that the use of loudspeakers before 7 a.m. disturbs right to sleep. The court further stated that there is no question of ‘collective rights of religious denominations’ and stated that though Azan is an integral part of Islam, the use of microphones is not. This decision was upheld by the Supreme Court in the case of Church of God (Full Gospel) in India v. KKR Majestic Colony Welfare Association(2000 (3) KLT 651 (SC) = AIR 2000 SC 2773) where the court upheld every person’s inherent right to quietness.

Exception -  In the case of Forum, Prevention of Environmental & Sound Pollution v. Union of India,( AIR 2006 SC 348 pp 350, 351) taking into consideration the diverse religious and culture in India, the court upheld the right to use loud speakers in public until 12 a.m. for a period that may extend up to 15 days for religious festivals.

Other Personal Rights v. The Environment

In the 2002 landmark judgment of Murali S.Deora v. Union of India(AIR 2002 SC 40) the Supreme Court held that the inherent right to clean air could be extended to ban public smoking. The court stated that a passive smoker’s right to clean air was far greater than the personal right to smoke.

Conclusion

In the callous pursuit of wealth man has alienated nature and equated her destruction with progress. Global warming, the increase in the percentage of green house emissions, the hole in the ozone layer, floods, droughts, tornados and hurricanes hitting different parts of the world with increasing ferocity - the first signs of a worldwide climatic change are all here to stay. Even with all our scientific progress another climate change as the one that the world witnessed so many million years ago will be inevitable at this rate. It will wipe us out completely. While progress is required, the need of the hour is self sustaining progress - a fact that was emphasized by the United Nations when they declared the right to a clean and healthy environment as a third generation human right.

In the wake of such harm caused to the environment and the extreme threat it poses to ourselves as well as the future generations, the Supreme Court in India has in these cases detailed above and in several others worked tirelessly towards changing the State’s attitude towards the environment. The doctrines and principles evolved in this process have helped secure the environment and minimize damage and over exploitation of resources in India and spearhead legislation in this regard. The Supreme Court’s position on sustainable development as the only acceptable form of progress is the kind of attitude that is the need of the day. Our only hope is sustainable development and planning that looks into the future and not the present.

1.  The word ‘environment’ was first defined under the Environmental Protection Act. S.2(a) of the Act lays down an inclusive definition stating that “Environment includes water, air and land and the inter-relationship which exists among and between water, air, land and human beings, other living creatures, plants, micro-organisms and property”

2. Ss.143 & 144 of the Cr.P.C. provide remedies for public nuisance, S.144 empowers a 1st class Magistrate to remove public nuisance and S. 268 provides for criminal prosecution.

3.   S.191 provides for the civil action of injunction which may be taken up by the Advocate General on behalf of the State, or two or more members of the public. The spirit of the provisions of O.1 R.8 of the CPC was employed by the Supreme Court in allowing a Public Interest Litigation against the pollution of the Ganges in the case of M.C. Mehta v. Union of India –1992

President's Rule*

(By T.P. Kelu Nambiar, Sr. Advocate, High Court of Kerala)

Dear  Mr.President,

 I do not believe in enveloped wishes. Pardon me, ifyou please. I should hope you will make it a ‘Good Year'  for ‘we, the members of the Association’.

Deviating from the usual method, I shall not begin by conveying congratulation for your win in the election to the office of President of the Kerala High Court Advocates Association, (thus, the Head of the ‘House of Lawyers’), for the year 2010. Pardon me for venturing the view that you could, perhaps, be considered to be the best of the three contestants, but not the fittest of the members of the Association to fill the office, because all the members did not contest the election. I see no reason now to venture an optimistic assessment of your success. We do not marry after conducting a virginity test. I am guided by, past experience with the functioning of the Presidents. On a look back, I have no comfortable and contented memories, and I find that welfare of the advocates was not on the Association’s radar. Which is why it is a tough road ahead for you.

You may be ecstatic over your win. By winning, I do not know whether you have become a hero. The question is whether you have become a ‘bravo’. It does not require a Henry Allingham to remember that there were brave Presidents at the head of the Association once upon a time.

I am not asking you to become a revolting President; but a revolutionary President. You have asubstantial duty to the Association. Let me, for a while, function as an advocate of education.

Something has gone terribly wrong with our Association. If this be the state of affairs, very soon Red Corner Notice (RCN) would be issued against the legal profession. Try to repair the damage and uphold the prestige of the Association. Please ensure that lawyers live a life of dignity. Try to upgrade the welfare of junior lawyers. Otherwise they may be tempted to practise the ‘other’ legal profession and end up as ‘cold-calling’ juniors. Pull out all stops to encourage juniors. I know you know, the bar is a mix of young and old. And, it should be remembered that a junior is not a mere ‘runner’ for a senior. Every junior lawyer can be considered to be a ‘super-star’ on the block. There are no nonentities in the bar. The bar is not a job market. These are the issues on the front burner. Your job: it is an opportunity and an obligation. Uphold the dignity of the Association. Guard the esteem of the High Court. Help the High Court grow. You will certainly get the ‘dividend’.

The President of the High Court Advocates Association is not appointed by anybody; but elected by the bar. This fact, you have to remember even in your bed room.

Please pay fair and quick response to the bar’s needs and requests. The President’s promise is not just a form of words. Make no promises. You may not be able to fulfil them. Consult sagacious seniors. Others’ envy should be your pride.

Always remember, you hold a powerful office, being the President of the High Court Advocates Association. You are the custodian of the powers of the entire bar. You have the full backing of the lawyer community. Your opinions are entitled to great weight. Do not be the puppet of politics or the powerful. Reinvent yourself periodically. The Association should be a vibrant body. Unity is vital for the bar.

Please do not spend energy and money for any ‘gold dust’ ‘Annual Luxury’. Hold legal knowledge carnivals only. Do not present a “Trillion Dollar Budget” to hold food court and present cheap ‘bamboo symphony’ entertainment. Spend only for legal enrichment functions; and, avoid over-draft. The Advocates Association should not indulge in the business of luxury. The funds of the Association should be considered, treated and handled as ‘mutual funds’. The funds’ flow management should be rationalised with appropriate criteria and norms. Do not spend money to travel to the ‘No-go areas’ for lawyers.

This letter is not a hate mail. By your bold, positive actions, (not at all in ‘Rambo style’), to uphold the dignity of the Association, you should prove the prophets of doom wrong. You should not be a President with a poet’s heart. Your term should not end as a case of missed opportunities. Do not end up as ‘blame boy’. Meet the challenge. Several great lawyers, now no more, but still living in the court halls they practised, would, sure, be watching your performance as President. Several pairs of piercing eyes are looking at you. Try to prove that you deserve ‘Four Cheers’ by the bar at the end of the year. Present a ‘photo-essay’ of your achievements for a ‘welcome back’. Do not put the bar to the trouble of celebrating your failure.

My good wishes.

Remember how that great advocate David Pannick concluded his book ‘Advocates’:

“Advocates have not been persuasive in the cause of their own profession, but they have a very strong case”.

It is time for you to begin from the beginning, bearing in mind, with me, what somebody said: ‘That which does not kill me, makes me stronger’.

[I would request you to put up this letter on the Notice Board of the Association for the information of all members. I reserve my right to publish this letter through the esteemed Law Journal ‘The Kerala Law Times’.]

* Letter, dated 1.1.2010, addressed to Advocate V.V.Sidharthan, the newly-elected President, Kerala High Court Advocates Association, on his assumption of office.

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s]-®p-th-sd- sI-«n-t¸m-bn....- Ip-«n-IÄ- F-{X-bm-bn...- B-thm....- A-hÄ- h-cpw...- h-cm-Xn-cn-¡nÃ....- Hm-tcm-tcm- {]-Xo-£-I-fm-W-tÃm- Po-hn-Xw.-

"IÀ-¯m-sh- \n-s¶- ]q-Pn-¡m³- th-In-bm-W-tÃm- R-§-fn-§-s\- ^-b-em-bXv....- F-s¶- ^-b-em-¡n-b- h-¡o-epw- XoÀ-¶p.....- Sn-bm-sâ- Pq-\n-b-dpw- XoÀ-¶p....-.........F¶n«pw- F-sâ- Pleadings complete B-bn-Ã-tÃm-' H-cp- ]-Ån-tI-kv- ---^-bÂ- Ip-¼-km-cn-¨p.-

"]n-Xm-sh- C-hÀ- sN-¿p-¶-sX-s´-¶v- C-h-c-dn-bp-¶n-Ã-....- C-h-tcm-Sp- s]m-dp-¡-W-ta....-'-

^-b-ep-IÄ- X-§-fp-sS- P-·-tZ-i-am-b- ^-b-en-Mv- sk-£³- k-µÀ-in-¡p-I-bmbn....- F-{X-sb-{X- ^-b-Â- Ip-ªp-§-fm-W-hn-sS.- F-{X- hÀ-j-§-sf-Sp-¯m-Wv- Nn-e- ^-b-ep-IÄ¡v-- Po-h³-sh-¡p-¶-Xv....- B-Zyw- docket am-{Xw....- ]n-s¶- Xn-cn-s¨-Sp-¯v- kvtä-äv-sa³-dv...- ]n-s¶-bpw- defect.... ]n-s¶- order .... A-§-s\- A-§-s\- ]-cn-W-m-a-{]-{In-bbn-eq-sS- re-presentation delay h-gn- Po-h-nX-¯n-te-¡v- I-S-¶p-h-cp-¶-hÀ....- 

H-¶pw- t\m-¡-I...- t]-¸À- ssI-¿nÂ- In-«n-bmÂ- Criminal B-sW-¦nÂ- 482 ^-b-em-¡p-I....- Civil B-sW-¦nÂ- 227 ^-b-em-¡p-I.-....- H-cp-- ]n-Sn-bpw- In-«n-bn-sÃ-¦nÂ- 226 B-¡n- H-ä-¯-«v....- _©nÂ- h-cp-t¼mÄ- F´mWv- Proper remedy sb-¶v- P-Uv-Pn-b-t±-lw- ]-d-ªp-X-cpw....- A-§-s\- sslt¡m-S-Xn-bn-eq-sS- P-\n-¨v- a-cn-¨v- ho-Ipw- ^-b-ep-I-fm-bn- tem-hÀ- tIm-S-Xn-I-fnepw- Competent Authority- I-fn-epw- ]p\À-P-\n-¡mw... -

P-·-tZ-iw- k-µÀ-in-¨v- ^-b-ep-IÄ- Xn-cn-¨p-\-S-¡p-I-bm-Wv....- C-\n-bpw- a-cn-¨n-«n-Ãm-¯-hÀ-- A-h-cp-sS- a-\-Ê-dn-bp-¶- tbm-Ky-cm-b- ]-cn-IÀ-½n-I-fp-sS-bpw- ]p-tcm-ln-X-cp-sS-bpw- b-Ym-hn-[n-bp-Å- {In-bm-IÀ-½-§Ä- e-`n-¨v- H-cp- Decent burial am-{Xw- {]Xo-£n-¨v- hn-[n-Im-¯p-In-S-¶p.-

]n-tä-¶pw-- ]-Xn-hp-t]m-se- ssl-t¡m-S-Xn-¡v- ap-I-fnÂ- kq-cy-\p-Zn-¨p.-

ip`w