Indian Judicial Strategies on Sustainable Development :
A Pragmatic Analysis

(By Mary Reshma George, B.A.LL.B (Hons.) NUALS and LLM, CUSAT)

Introduction

“Main challenges before humankind are three - to preserve peace, to eradicate poverty, and to conserve environmental sustainability. All the three are global concerns but the latter is of the most urgent and utmost importance”                         -- Rajiv Gandhi

The environment includes wholesome of our surroundings i.e., air, water, land, soil, living things, minerals, gases, forests, man-made materials, renewable and non-renewable resources, flora and fauna, wind and also everything which we see, experience and inherently available in the earth¹. Environmental destruction has been the prime reason behind disasters like Tsunami, Earthquake and Global Warming. Indian Judiciary had taken very extensive and fostered methods to protect our ecology and in most of the cases the Judiciary act as environmentalists.

In India, preservation of the environment was taken seriously only after the Bhopal Gas Tragedy². Before that, we were not aware of the intrinsic value of our environment. The genuine development of man begins with the preservation of natural resources through technological advancements by utilizing it for the betterment of the present generation as well as the future generations.

In India, most of the Environmental problems arise from poverty, under-development and over-development. Some of the important environmental problems which affect the ecological balance and conservation in our society are water pollution, lack of control on the pollution of rivers, irresponsible construction of dams and barrages, lack of access to drinking water free from toxin or other contaminants, increased use of agro-chemicals or pesticides, storage and transportation of dangerous goods in package forms, pollution due to noxious liquid substances, degradation of marine and coastal resources, heavy metal contamination by industrial effluents, dumping of land-based solid waste into the sea, heavy coastal construction, inland mining, poor land use practices, overfishing, destructive fishing techniques, shrimp cultivation,  loss of coastal habitats, deforestation, substantial lossof mangrove forests, unplanned commercial fisheries, land-based pollution, rapid industrialization, mining, logging, firewood collection, livestock grazing, land degradation, hazardous waste, wastewater disposal, water logging and salinity, rapid spread of irrigation, indiscriminate use of agro-chemicals, over-exploitation of groundwater, air pollution, rapid and unplanned urbanization, industrial pollution, increasing transport, domestic refuse, coal consumption, energy use pattern, fly-ash, solid waste, E-waste, destruction of plants and trees etc. In short, most of the environmental degradations are due to the unorganized system without balancing the development and environment.³ Environmental governance and poverty eradication are equally important for us and any slight compromise in the environment will lead to serious peril to society.

Development can be defined as a) the systematic use of scientific and technical knowledge to meet specific objectives or requirements, b) an extension of the theoretical or practical aspects of a concept, design, discovery, or invention, c) the process of economic and social transformation that is based on complex cultural and environmental factors and their interactions and d) the process of adding improvements to a parcel of lands, such as grading, subdivisions, drainage, access, roads, and utilities.

According to Prof.P.Leelakrishnan, ‘the development mindset still centers on monetary
or materialist indicators like per capita income, per capita energy consumption and industrial production.’ This may result in serious destruction of nature. Whenever we are trying to hurt nature, we are hurting ourselves. The only method we can adopt here is ‘Sustainable Development.”

Sustainable Development

G.H. Brundtland in the Brundtland Report ⁴ defined the term Sustainable development as the “...development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.” He continued stating that “We have no hesitation in holding that Sustainable development as a balancing concept between ecology and development has been accepted as a part of customary International law, though its salient features have yet to be finalized by international law Jurists. “Sustainable development is the perfect form of development where no one needs to sacrifice anything, neither the environment nor the industry and workmen.

Srikumar Chattopadhyay in his Article on “Sustainable Development: Concept and Application case of Developing Countries⁵” summarized the elements of sustainable development as follows:

       1.  Survival of human beings

       2.  Survival of all other life forms

       3.  The satisfaction of basic human needs

       4.  Maintenance of bio-physical productivity

       5.  Economic efficiency, and growth

       6.  Preservation of environmental quality and ecosystem

       7.  Inter- and intra-generational equity

       8.   Social Justice

       9.   Self-reliance and people’s participation

       10. Stabilization of human population

11. Promotion of values and ethics

I like to add some more points to the elements of sustainable development i.e.

12. Productivity

13. Industrial development

14. Environmental protection in all fields of society

15. Recyclable use of resources

16. Managing the balance between the ecosystem and industries

In short, Sustainable development is not only focusing on the survival of the fittest but also pave the way to the overall development of the human needs and aspirations towards the environment and development in a better manner without hindering any of these concepts.

The concept of Sustainable development has its roots in the Stockholm declaration in 1972. In Stockholm declaration, it was stated that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being and he bears a solemn responsibility to protect and improve the environment for present and future generation.”This concept had also been discussed under Agenda 21 of the UN conference on environment and development held in June 1992 at Rio de Janeiro, Brazil.

Adv. P.B.Sahasranaman in his book on ‘Handbook of Environmental Law’ pointed” out that “Poverty is anathema to development. The phantom of poverty looming large over vast landscapes of underdeveloped and developing countries, including India, poses a unique challenge to economic development. One mantra to escape from this quagmire seems to be a positive approach towards industrialization. Hence, the biggest challenge before the underdeveloped and developing nations today is to peddle acceleration in industrialization viewed as instrumental in industrialization, viewed as instrumental in reducing poverty and ignorance. However, industrialization, if pursued without any consideration, can lead to indiscriminate exploitation of nature. Hence the middle ground: the revolutionary concept of Sustainable Development. “

Sustainable development, as defined by the Brundtland Commission, is built upon two foundations. The former is the objective concept of ‘human needs like food, clothing, shelter, clean water & all other essentials which contribute to the quality of life and the latter is a normative concept that ‘emphasizes a balance of equity, environment & growth, by contemplating the fully apparent non-renewal capacity of our environment.^’6

Future of Environmental Law reflects the concept of sustainable development. Eminent Environmental authors⁷ pointed out that “a separate strand of policy is the emphasis on the conservation of natural resources. The current buzz-phrase is ‘sustainable development’ and steps are being taken to reduce waste by tackling the issue of waste production at the source. However, ‘sustainable development still represents a commitment to growth.....” In Essar Oil Ltd. v.Halar Utkarsh Samiti and Ors.⁸where the Supreme Court aptly observed
Stockholm Declaration as ‘Magna Carta of our environment’, also mentioned on Sustainable Development that “this, therefore, is the aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense, all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However, there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on the environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other. “

Indian Judicial strategies on Sustainable development

The concept of Sustainable development is purely a Judge made law in India. No legislation has been enacted in India for ‘Sustainable Development’. Precedents and Judicial interpretations are the only sources available in India for sustainable development. Indian Judiciary has been successful in harmoniously constructing a balance between the environment and development with pioneering strategies to preserve the environment.

Principle 10 of Rio declaration, 1992 quoted that “Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. “

Environmental jurisprudence in India started its evolution from the 1980s and it brought novel and innovative steps to protect the environment by creating public awareness and campaigns. M.K.Agrawal⁹ in his Article titled “Judicial approach to Environmental Law”, pointed out that Judicial verdict will bring in to light the shortcomings of our social system and would inspire us to think of the ways of redeeming them. Relationship of a Judge with the society in this sense is that of a doctor and a patient... Judicial pronouncements are very likely to become yardsticks of future statutory legislation on the matters relating to environmental protection, which will also help in the development of legislation for sustainable development.

The concept called sustainable development primarily revolved around three
premises i.e.

       i)   Protection of environment

       ii)  Economic Security and

       iii)Social responsibility

The total push and pressure of the cosmos of each Judgment on Sustainable Development are bound to follow these premises and the Judiciary should maintain the balance between the environment and development. When there is a conflict between this symmetry of the legal structure, the Judiciary should give priority to the protection of the environment for the greater interest of future generation. It is a herculean task for the Judiciary to satisfy these three premises equally. Supreme Court of India delivered numerous environmentally sensitive cases with an immense dedication which became the backbone of Environmental protection in India.

1) Mining Strategies of Indian Judiciary

India being a nature-centered developing country, we are bound to reconcile developmental issues, social issues, and environmental issues uniformly. Judiciaries mining strategies had been favoring the environment due to its hazardous nature. Nevertheless, the Court tried to reconcile the industrial and economic issues with other alternative remedies.

In Rural Litigation and Entitlement Kendra, Dehradun v. State ofUttar Pradesh,¹⁰the three premises of sustainable development was articulated in an excellent manner by the Hon’ble Supreme Court. Supreme Court prima facieconsidered the issue of environment and ordered to stop stone quarrying in Mussoorie permanently. Secondly, the Supreme Court considered the issue of economic security and asked the Governmental authorities to give priority to the lessees in the grant of lease of limestone or dolomite quarrying and thirdly, the Court considered the social issue of workmen and asked the authorities to provide them employment in the afforestation and soil conservation programme.¹¹

Similarly, in Kinkri Devi v.State,¹²the petitioners prayed for canceling the mining lease given to the third Respondent for the excavation of limestone. The Court directed the second Respondent, Deputy Commissioner and other officers such as forest officials, the irrigation executive engineer and public health executive engineer to pay a visit and personally verify the situation. The report corroborated with paper reports. There were indiscriminate blasting of the rocks for mining processes in an uncontrolled and unscientific manner causing danger and hazards to inhabitants and disturbance to ecology and environment. It caused damage to posing, an imminent and real threat to the soil, rivers, streams and nullahs, water resources and water supply scheme, the ecology, the environment, the flora and fauna and to the life and well being of the inhabitants of the locality. The Court directed to set up a committee comprising of secretaries from different departments to submit a comprehensive report to the Court and also to the State Government on the following topics a) make recommendations for the evolution of a long term plan/scheme for granting of mining leases in the state. b) Suggest preventive, curative and regulatory measures and machinery in order to ensure that the mining leases are operated in a scientific manner. c) Examine whether the mining leases in affected villages were granted in accordance with the relevant statutory provisions, d) whether the need to ensure a proper balance between tapping of resources for development and industrial growth has been kept in view and consequently whether the functioning of mines is in scientific lines or on an erratic pattern. e) Find out the mines pose a potential danger to the soil, agriculture, forests, water resources and water supply scheme, flora and fauna. ecology and environment. The Court quoted the observations from Rural Litigation Kendra’s case¹³in order to bring light into the unscientific exploitation in the hilly tracts and regions of the Himalayas and highlighted the evil consequences and lasting impact on natural wealth, natural resources and the local population. Court held that “to ensure the attainment of the Constitutional goal of the protection and improvement of natural wealth and environment and of the safeguarding of the forests, the lakes, the rivers and the wildlife and to protect the people inhabiting the vulnerable areas from the hazardous consequences of the arbitrary exercise of the power of granting mining lease and of indiscriminate operation of the mines on the strength of such leases without due regard to their life, liberty and property, the Court will be left with no alternative but to intervene effecting by issuing appropriate writs, orders and directions including the direction as to closure of the mines, the operation whereof is providing to be hazardous and total prohibition of the grant or renewal of mining leases till the Government evolves a long term plan based on a scientific study with a view to regulating the exploitation of the minerals in the State without detriment to the environment, ecology, natural wealth, resources and the local population.”

Renowned Environmental Lawyer M.C.Mehta in M.C.Mehta v.Union of India¹⁴challenged the pollution caused by the stone crushers, pulverizes and mine operators. The Court observed that ‘the Badkal Lake and Surajkund are monsoon fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy reason. The mining activities in the vicinity of these tourist resorts may disturb the rainwater drains which in turn may badly affect the water level as well as the water quality of these water bodies. The mining¹⁵may also cause fractures and cracks in the subsurface, rock layer causing disturbance to the aquifers, which are the source of groundwater. This may disturb the hydrology of the area. The Court directed that a) there should be no mining activity within 2 km radius the tourist resorts. b) No construction activity allowed within 5 km radius. c) All open areas will be converted into green belts and d) no renewal of leases be made within 2 km to 5 km radius without no objection certificate from the state pollution control board.

2)    Judiciary’s balancing strategies through Relocation

Judiciary generally forced the industries to relocate from their actual location i.e. ,
environmentally sensitive areas to other comfortable zones considering the risk factor involved in it. Prof P. Leelakrishnan quoted “In a fast developing country like India, where industrialization is the synonym of progress, difficulties may arise in deciding upon relocation from a populous area. The Court has responded and tried to resolve the problem. The idea of sustainability of industrial development demands that the urban areas are free from pollution and hence the industries are located away from urban living. The Supreme Court made several orders of the relocation of industries and surrender of lands for other sustainable uses. The doctrine of sustainable development has been applied in cases relating to the clean environment of the national capital.”

The Court in various cases acted as a facilitator to assist the industries for its relocation. In M.C.Mehta v.Union of India,¹⁶the main issue was whether the brick kilns should be allowed to function within the union territory of Delhi or not. Court after examining various processes of producing bricks directed that a) the brick kilns cannot be permitted to operate and function in the Union territory of Delhi. These brick kilns may relocate or shift themselves to any other industrial estate in the national capital region. These brick kilns shall close down and stop functioning with effect from 30^th June 1997. B) The planning board should assist the brick kilns in the process of relocation. The direction shall go to the Board through its Secretary. C) In order to facilitate shifting of brick kilns from Delhi, all the four states constituting the NCR shall set up unified single agency consisting of all the participating states to act as a nodal agency to sort out all the problems of such brick kilns. The four states shall set up the single window facility within one month from today and finally, the workmen employed in the brick kilns shall be entitled to the rights and benefits such as ‘shifting’ bonus and compensation, gratuity payable to a workman and full wages upon relocation.

3)  Judicial strategies in matters providing basic facilities

Indian Judiciary made effective strategies by directing the concerned authorities to facilitate the deprived class by fulfilling their basic needs through magnificent decisions. In Municipal Council Ratlam v. Vardhichand and Ors.¹⁷  the residents of a locality within the limits of Ratlam Municipality, tormented by stench and stink by open drains and public excretions by nearby slum dwellers moved the Sub-Divisional Magistrate under Section 133
of Criminal Procedure Code to require the Municipality to construct drain pipes with the flow of water to wash the filth and stop the stench towards the members of the Public. The Municipality pleaded paucity of funds as the chief cause of disability to carry out its duties. The Magistrate gave directions to the Municipality to draft a plan within six months for removing the nuisance. Hon’ble High Court approved the order of the Magistrate, to which the Municipality further appealed to the Supreme Court. The main issue for consideration was whether a Court can compel a statutory body to carry out its duties to the community by constructing sanitation facilities. The Supreme Court through Justice V.R. Krishna Iyer upheld the order of the High Court and directed the Municipality to take immediate action within its statutory powers to construct the sufficient number of public latrines, provide water supply and scavenging services, to construct drains, cesspools and to provide basic amenities to the public. The Court also accepted the use of Section 133 of Criminal Procedure Code for removal of public nuisance and affirmed that a responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Supreme Court encouraged public authority to make sustainable decisions.

The Supreme Court in Vellore Citizens Welfare Forum v.Union of India¹⁸ directed the closure of the tanneries and ordered that the tanneries would reopen only after the installation of pollution control devices¹⁹ Supreme Court of India recognized the principle of sustainable development as a basis for balancing ecological imperatives with development. The Court observed that the traditional concept of the opposition of ecology and development no longer existed. The Court, in this case, agreed with the importance of sustainable development and stated that “Though the leather industries are of vital importance to the country as it generates foreign exchange and provides employment avenues, it has no right to destroy the ecology, degrade the environment and pose a health hazard”. Court observes that Sustainable development has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-system.

The facilities for drainage, roads, uninterrupted electricity supply, and potable water to the housing colony were the requisites of petitioners in Masood Ahmad v.State.²⁰Hon’ble Court held that Respondents are under Constitutional obligation to provide all the necessary facilities to the petitioners which make their existence meaningful and livable. Decency and dignity are non-negotiable facets of human rights. Court also opined that basic grievous amenity of access to potable water is not a luxury but a prerequisite for sustaining life. Any plea of financial inability or discriminatory treatment raised by any concerned authority pales into insignificance because human rights granted under Part III of the Constitution have to be respected by the State regardless of”budgetary provisions. Otherwise, a pachydermic Governmental agency may legally defy duties under the Law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. Principle of sustainable development is an integral part of Article 21 of the Constitution and the same deserves to be applied to town and urban planning throughout the country.²¹

4) Judiciary’s balancing strategies on preserving monuments

Taj Trapeziumcase²² is one of the most prominent cases on sustainable development where the most prestigious national monuments of surprising beauty, worth and glorious tribute to man’s achievements in architecture and engineering was threatened with deterioration and damage caused due to hazardous chemical industries, refinery, brick kilns, vehicular traffic and generator-sets at Mathura. The issue was that the sulphur dioxide emitted by the Mathura Refinery and the Industries when combined with oxygen with the aid of moisture in the atmosphere forms sulphuric acid called ‘acid rain’ which has a corroding effect on the gleaming white marble which became yellowed and blackened in places. Vardharajan Committee was formed along with other studies. The Court stated that “the objective behind this litigation is to stop the pollution while encouraging the development of the industry. The old concept that development and ecology cannot go together is no longer acceptable. Sustainable development is the answer. The development of the industry is essential for the economy of the country, but at the same time, the environment and the ecosystem have to be protected. The pollution created as a consequence of development must be commensurate with the carrying capacity of our ecosystems. “ The Court ordered for the relocation of the industries. Court also stated that the workmen employed in these industries were entitled to their rights and benefits. The balance between ecology and development had been maintained.

5)  Judiciary’s balancing strategies in the cases of Transport facilities

M.Shafi in his Article, “Perspectives on Environment and Development”²³ stated that ‘for Sustainable Development we have to combat poverty, change the consumption pattern of developed countries, bring down the growth rate of population of developing countries, conservation and management of resources on development, combat deforestation and desertification, project the atmosphere from toxic gases, conserve biological diversity and sustainable rural and mountain development. These measures will lead to a glorious habitable earth not only for the present generation but also for prosperity.”

In Goa Foundation v.Konkan Railway Corporation,²⁴the main issue was the alignment of Konkan Railway causing ecological destructions in some parts of Goa. It caused erosion of soft rocks, disturbance to the unique mangroves, destroyed the low-lying khazan paddy fields & forests, harms the fishes, land quality and also destabilized the tribal basin. Buildings, churches and many archeological sites were also disturbed because of the alignment. Bombay High Court held that “we hope and trust that the projects undertaken for the benefit of a large number of people are not defeated or stalled by appealing to the religious sentiments of a few or by indulging in street agitations. Such attempts may temporarily help a particular group but would permanently cause damage to the interest of the common citizen.’” Court declined to interfere in the matter and mentioned that postponing the much-needed and long-awaited railway line would lead to the escalation of cost and put pressure on the public exchequer which already spent a huge amount.

In M.C.Mehta v.Union of India,²⁵ Court gave guidelines to reduce the pollution created by vehicles. In another M.C. Mehta case,²⁶ the main issue was the need for closure of the hot mix plants that supplied pre-mix material at a very high temperature for resurfacing the runway. Airport Authority pointed out the need for pollution controlled devices and resurfacing the main runways. Court held that the applicant has to be allowed to set up hot mix plants for resurfacing of the runways at IGI Airport, New Delhi though it causes air pollution because the maintenance of runways is necessary for the safety of aircraft at the time of arrival and departure. Thus Court balanced the environmental requirements with developmental needs. In M.C.Mehta v.Union of India and Ors²⁷., Supreme Court held that every vehicle sold after the cut-off date of 1^st April, 2020 was bound to cause more pollution and, therefore, manufacturers could not be permitted to sell any non-BS-VI compliant vehicle on or after 01.04.2020. Court, in this case, mentioned that “...Right to life not only meant leading a life with dignity but included within its ambit the right to lead a healthy, robust life in a clean atmosphere free from pollution. Obviously, such rights were not absolute and had to co-exist with sustainable development. Therefore, if there was a conflict between health and wealth, obviously, health would have to be given precedence.”

6)  Judiciaries balancing strategies while dealing with Wetlands, Ground water, Wild life sanctuary etc.

Wetlands are of very sensitive in nature and it also provides livelihoods for the millions of people who live in and around them. After the Ramsar Convention, conservation of wetlands got the international acknowledgment and its conversion got limited. In Consumer Action Group v.Union of India,²⁸the main issue was the transformation of a vast area of wetlands in the Adayar estuary to erect a memorial for Dr. Ambedkar. The grounds of objection for the conversion of a low-lying area inter alia includes that 1) the State Government or other authorities cannot use forest land or any portion for non-forest purpose under Section 2 of the Forest Conservation Act, 1980 2) The low-lying area is a source of groundwater recharge of the nearby residential area 3) Article 21 includes right to a safe and healthy environment and the right to have adequate water supply and 4) the memorial and other buildings are against the provisions of Development Control Rules especially to the zoning of the area. Hon’ble Court held that construction could not be done, but Court allowed conversion of a small part of the area i.e. one acre and a half for the same. Court ordered that the developers should remove the sands spread on the other parts and bound to restore the area to the original position.

The Court in People United for Better Living in Calcutta v.State of West Bengal ²⁹  held that reclaiming of nature’s gifts for the residential and commercial purpose could not be allowed. Court restricted the filling up of wetlands for the construction of an industrial complex. The Court stated that in a developing country there shall have to be developments, but that developments must be in harmony with the environment. There has to be a proper balance between the economic growth and environment so that both can exist without affecting each other. To be sustainable must possess both economic and ecological sustainability. The concept of sustainable development indicates the way in which development planning should be approached.

In Sachidanad Pandey v.State of West Bengal,³⁰Court convinced that West Bengal Government had considered all environmental issues in an objective manner to lease out a part of the zoological garden for Taj group to establish a five-star hotel. The Court upheld the principle of sustainable development and did not interfere in the policy matters. The Court in Consumer Education and Research Society v.Union of India,³¹ reduced the area of a wildlife sanctuary to one-third of its size. In F.K. Hussain v.Union of India,³² Lakshadweep administration made a scheme to augment water supply by digging wells and by drawing water from those existing wells to meet increasing needs. Petitioner argued that this will end up in the salinity of existing freshwater equilibrium and against Article 21. The Court appointed a panel to investigate the issue and they also agreed with the petitioner. Kerala High Court stated that ‘water and rivers have dominated the destiny and fortunes of man. Plentiful rivers have brought prosperity to those who lived in their banks. Thus, the greatest civilizations that mankind knew of grew up in the banks of Indus and Ganges. The administrative agency cannot be permitted to function in such a manner as to make inroads into the fundamental right under Article 21. Safeguards must be evolved to stop withdrawal of groundwater at a cut-off level to impose restrictions and introduce the system of effective monitoring at all levels’. In M.P.Rambabu v. Divisional Forest officer³³, three petitioners seek three different remedies i.e., for not restricting the aquaculture³⁴ operations, to stop aquaculture operations and to stop pollution because of aquaculture operations. Court held that any restriction imposed in the use of the lands would amount to the deprivation of property under Article 300 A of the Constitution and also violative of Article 21.

7) Judiciary’s balancing strategies on Forest Conservation

In India, there is massive destruction of forests due to inadequate planning and conservation strategies to preserve forests and wildlife. Forests being the oxygen hubs on earth needs inevitable care and protection for its preservation. Though the Judiciary managed to avoid encroachments, they failed to meet the entire elements of sustainable development equally. In Shyam Divan & Rosencranz book on ‘Environmental Law and Policy in India’ authors pointed out that ‘.... As we shall see, the Court assumes the role of a super-administrator, regulating the felling, use, and movement of timber across the country in the hope of preserving the nation’s forest.’

In Dahanu Taluka Environment Protection Group and Anr. v. Bombay Suburban
Electricity Supply Company Ltd. and Ors.,³⁵Petitioners  challenged  clearance  by respondents
for construction of thermal power plant which causes atmospheric pollution. Petitioners contended that fly ash and coal contaminants likely to have an adverse effect on plants and forests. The Court observed that adherence and continuous monitoring of stock emissions and ambient air quality will have no significant impact on the Environment. The Court granted the clearance of thermal power station by Central Government after fully considering all aspects relating to environmental pollution. Court also ordered for the installation of FGD plant.

The wholesale destruction of forests for mega-projects was allowed and at the same time, less harmful uses of forest products by local peoples were restricted in Banwasi Seva Ashram v. State of Uttar Pradesh³⁶. Hon’ble Court in T.N.Godavarman Thirumulpad v.Union of India³⁷permitted cutting of trees with the permission of concerned Government for economic stability in the North-Eastern region of India. However, unauthorized cuttings of trees were restricted as a measure for environmental protection. As a social measure, the removal and retrenchment of the workers were also restricted. In Gateway Hotels & Gateway Resorts Ltd. v.Nagarahole Budakattu Hakku Sthapana Samiti (Nagarahole Hotel Case),³⁸ a Division Bench of Karnataka High Court held that a failure to obtain prior approval did not render a lease of forest land void at inception. In a similar case of Divisional Forest Officer v. S.Nageswaramma,³⁹  the Court held that a lease may be granted by a State Government but no forest may be cleared until Central Government approval was obtained.

In State of Himachal Pradesh v.Ganesh Wood Products,⁴⁰ the Supreme Court held that a decision making authority must give due weightage and regard to ecological factors such as the environmental policy of Government and the sustainable use of natural resources. Governmental decisions that fail to take into account relevant considerations affecting the environment are invalid. The Court pointed out that ‘’proper assessment should be made of the forest wealth, and the entitlement of industries based on forest produce should not only be restricted accordingly but their working should also be monitored closely to ensure that the required balance is not disturbed’.

8)  Judiciary’s balancing strategies on Tourism

Hon’ble Supreme Court once observed that the concept of sustainable development does call upon one and all to see to the maintenance of balance between development and its sustenance of future ⁴¹. In EIH Ltd. v.State of Rajasthan,⁴²Court allowed construction of a hotel in a no-construction zone near Udaipur Lake considering the fact that the permission was granted prior to the declaration of no construction zone. The construction was on the basis of a pre-notification plan. The Court justified the construction on the ground of sustainable development. Court held that “we are to take a reasonable and balanced view of the entire situation. It is necessary to accommodate all the essential components for a healthy and developing society. We cannot retract our steps from industrialization to simplistic nature. Proper planning with a will to improving the environment is the basic need to control pollution. On the world map, Udaipur is one of the choicest tourist destinations. For the development of the tourism industry, Udaipur needs at least some hotels providing accommodation of international standard to foreign and local guests, but not at the cost of polluting the lakes. They must bear in mind that by polluting the lakes, they will not survive. Lakes are to be respected and worshipped. Even slightest disturbance polluting the lakes shall not be tolerated; however, high or mighty one may be dealt with in an exemplary manner. It must be ensured that sufficient technical and preventive measures are taken.”

In Forest Friendly Camps Pvt. Ltd. v.State of Rajasthan⁴³Court emphasized that Sustainable development has to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. Society has to prosper but not at the cost of the environment. There should be a proper balance between the protection of the environment and the development process.

9)  Judiciaries balancing strategies on Bore wells and tanks

In Ashok Kademani v.State of Karnataka ⁴⁴the petitioners were agriculturists who used to dig borewells in their property for agricultural purposes. They allowed other villages to use the excess water for drinking purposes free of cost. Municipal Council directed to handover the borewell when the surrounded land got dried. The Karnataka High Court held this action as arbitrary.

The Court in Intellectuals Forum, Tirupathi v. State of A.P. and Ors.⁴⁵  noted the
competing interests of protecting the environment and socio-economic development for preservation and restoration of status quo of two tanks which was sought to be converted for meeting requirements of shelter. Court held that the intention for development will not be enough to sanction the destruction of local ecological resources. The balance has to be brought between requirements of shelter and preservation of two tanks. Since developmental activities were going on for a prolonged period, the natural resources of these lakes were lost and were irreparable. The Court upheld the development process and stated that due to impossibility no order could be given to preserving water tanks but ordered to stop further construction in that area.

10)  Judiciaries balancing strategies for Dam Projects

In a developing Country like India, we need advanced methods to eradicate poverty without environmental hazards. The principle of Sustainable development should be used in a better manner to avoid such problems. As far as Dam Projects are concerned Supreme Court and other Courts appreciated the Projects with proper implementation plans. In Tehri Bandh Virodhi Sangarsh Samiti v.State of U.P.⁴⁶, PIL was filed challenging the construction and implementation of Tehri Hydro Power Project and Tehri Dam within the earthquake zone. This project was considered by the Environmental Appraisal Committee of Ministry of Environment and Forests and also by other renewed experts of international repute. Hence, the Supreme Court refused to interfere.

The construction of Sardar Sarovar Dam was questioned in Narmada Bachao Andolan v. Union of India.⁴⁷ The Court allowed the construction up to 90 metre height with immediate effect. Whereas, construction above 90 metres height to be taken up after necessary clearance, Relief, and rehabilitation to oustees to be immediately given in terms of packages offered. Environment sub-group will continue to monitor and ensure that all steps are taken not only to protect but to restore and improve the environment. The directions of Narmada Control Authority with regard to the acquisition of land for the purpose of relief and rehabilitation are binding on each state and every endeavor shall be made to see that the project is completed as expeditiously as possible.

In N.D. Jayal v. Union of India,⁴⁸Court held that the right to clean environment and right to development is the vital part of Article 21 of the Indian Constitution which comes under Fundamental Rights. The Court explained sustainable development as a ‘means to achieve the object and purpose of the Environment Protection Act, 1986 as well as protection of life envisaged under Article 21. The Court also observed that the conditional clearance that the Ministry of Environment and Forests had granted for the construction of Tehri Dam was not properly implemented. Supreme Court stated that the disaster management must be integrated with developmental activities. Court asked to rehabilitate the displaced people from that area within six months to lead a decent life and earn a livelihood. The Court, in this case, on Sustainable Development stated that “Acknowledgement of this principle will breathe new life into our environmental jurisprudence and Constitutional resolve... the object and purpose of the Act... ‘to provide for protection and improvement of the environment’ could only be achieved ensuring the strict compliance of its direction.”

11)  Judiciary’s balancing strategies in Cattle grazing Land (Gomal Lands)

Conversion of grazing land into industrial land was challenged by the agriculturalists in Karnataka Industrial Areas Development Board v.Sri. C.Kenchappa and Ors.⁴⁹In this case, Division Bench of High Court quashed the acquisition proceedings to extent of land which was reserved for grazing cattle, agricultural and residential purpose. Supreme Court explained that sustainable development means development appeal which can be sustained by nature with or without mitigation. It also observed that a delicate balance between industrialization and ecology needs to be maintained. The extent of pollution created as a consequence of development must not exceed the carrying capacity of the ecosystem. It also stated that if direction given by Division Bench is implemented appellant cannot acquire any land for development. Supreme Court set aside the order of Division Bench and directed that (1) ... in future, before the acquisition of lands for development, the consequence and the adverse impact of development on the environment must be properly comprehended and the lands should be acquired for development that they do not gravely impair the ecology and environment. (2) ...the appellant to incorporate the condition of allotment to obtain clearance from the Karnataka State Pollution Control Board before the land is allotted for development. The said directory condition of allotment of lands can be converted into a mandatory condition for all the projects to be sanctioned in the future. Supreme Court noted that the Nation’s progress largely depends on development, therefore, the development cannot be stopped, but we need to control it rationally. Supreme Court also gives special emphasis on environmental awareness, people’s participation, proper implementation of environmental protection rules and scientific study on sustainable development.⁵⁰

Conclusion

“Our minimum concern is the quality of space we live in, the purity of air we breathe, the food we eat, the water we drink and the resources we draw from our environment to support our economy.”                         -- K.R.Dikshit

Our very existence depends on the environment and it is the need of the hour to protect and preserve our natural wealth for the wellbeing of all generations. A golden balance between socio-economic development and ecological preservation should be maintained with
co-ordinated efforts of all stakeholders to reach the goal called ‘sustainable development’. When there is a serious threat or irreversible damage to the environment, then lack of scientific certainty should not be a ground for postponing precautionary measures to protect the environment. Environmental Jurisprudence in India evolved through judicial activism. Indian Judiciary’s contribution to developing the concept of sustainable development is incredible. It acted as Environmentalist, Industrialist, Economist, and Socialist in one row to manage environmental protection along with socio-economic development.

When you deal with the role of Judiciary certain questions will come up in your mind i.e.

       i.   Whether the judiciary is biased towards development?

       ii.  Does the term sustainable development itself is against the environment?

       iii.How to reconcile both development and environment especially when it is against each other ?

       iv.Who will be the ultimate victim?

       v.  Does the term Sustainable Development need a perfect definition?

       vi.What all are the criteria to determine Sustainable development? Who will determine the limit of Sustainable development?

       vii.                                                                           Whether India needs legislation on Sustainable Development ?

Proper answers to these questions will help us to reach sustainable development goals by integrating the balance between the environment and development. Most of the Industrial pollutions are the outcome of inadequate precautionary measures to protect our ecology. Public awareness and continuous evaluation of projects is a must to reconcile the balance between environment and development. It is the balancing strategies of the Judiciary which helped us in maintaining these balances. Judiciary tried to anticipate, prevent and attack the causes of environmental degradation for the sustainable use of resources. The onus of proof is also placed on developers to show that their actions are environmentally benign. Judiciary used principles like inter-generational equity⁵¹, precautionary principle⁵², polluter pays principle⁵³ and public trust doctrine⁵⁴for preserving the environment.⁵⁵Still, the sustainable development ended up in total disaster in certain cases because of the hidden negative impacts of development over the environment. Some developmental projects prima facie seems to be advantageous and salubrious to nature later turned to be hazardous to it. Though the Judiciary tried to protect the environment with full efficiency at times they failed due to their lenient approach towards socio­economic problems like poverty and unemployment. Indian Judiciary took environmental governance into its own hand when the environmental regulatory bodies remained somnolent.

In short, Court in M.C.Mehta v. Kamal Nath⁵⁶rightly pointed out its strategy on Sus-tainable Development in simple words that “...The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.”

Foot Notes:

Now is the Time

(By K. Ramakumar, Sr. Advocate, High Court of Kerala, Ernakulam)

A young sprightly lawyer from Thiruvananthapuram had taken up the issue of Lawyers’ robes particularly in summer at the most appropriate time and got an order from the High Court that at least in trial Courts gowns are not compulsory during the summer. There is already a practice in Delhi, Punjab, Uthar Pradesh, etc., that between May through August, the gown need not be worn even by the Judges. This is a most welcome practice.

A more welcome practice will be to effect complete changes in the dress code of Lawyers. Like our judicial system itself, the dress has been borrowed from the British, which was designed to suit the climate in England and not the tropical climate. It will be extremely foolhardy to wear a dress which may even create health problems in a hot country like India merely because our erstwhile rulers had followed that dress code in their cold country.  In fact this humble contributor had pointed out the anomaly in dress habits in one of his articles earlier in an esteemed Law Journal.

It is primarily the duty of the Bar Council of India to address the issue and now is the time to do that since even a State like Kerala with comparatively mild climate is facing intense and unprecedented heat.  Section 49(1)(gg) of the Advocates Act empowers the Bar Council to frame rules including the form of dress. Section 49(1)(gg) reads as follows:-

“49(1)(gg) – the form of dresses or robes to be worn by Advocates, having regard to the climatic conditions, appearing before any court or tribunal.”

Unfortunately the Bar Council of India, which is a powerful body, is refusing to address itself to the problem while it calls for boycott, strike, etc., by Lawyers adversely affecting the administration of justice.  No doubt rules have been framed by the Bar Council of India under Section 49(1)(gg) which has prescribed the following dress:

“I.  ADVOCATES OTHER THAN LADY ADVOCATES – (a) A black buttoned upcoat, chapkan, achkan, black sherwani and white bands with Advocates’ Gowns, or

(b) A black open breast coat, white shirt, white collar, stiff or soft, and white bands with Advocates’ Gowns.

[In either case wear long trousers (white, black striped or grey) or Dhoti].

II.  LADY ADVOCATES – (a) Black and full or half sleeve jacket or blouse, white collar stiff or soft, with white bands and Advocates’ Gowns.

OR

White blouse, with or without collar, with white bands and with a black open breast coat.

(b)  Sarees or long skirts (white or black or any mellow or subdued colour without any print or design) or Flare (white, black or black striped or grey) or Punjabi dress(Churidar-Kurta or Salwar-kurta with or without dupatta) white or black”.

Significantly the rules themselves contain a proviso reading as follows:-

“Provided that the wearing of Advocates’ gowns shall be optional except when appearing in the Supreme Court or in a High Court.

Provided further that in Courts other than the Supreme Courts, High Court, District Courts, Sessions Courts or City Civil Courts a black tie may be worn instead of bands.”

Rules have been framed by the High Court of Kerala under Section 34(1) of the Advocates Act which prescribe the following:-

“12. Advocates appearing in Court shall wear the following dress:-

(1) Advocates other than lady advocates:-

(a) Black buttoned-up coat (chapkan, achkan or sherwani) Barrister’s or Bachelor of Laws’ gown and bands, or

(b) Black open collar coat, white shirt, white collar, stiff or soft with Barrister’s or Bachelor of laws’ gown and bands.

(2)    Lady Advocates – Regional dress of subdued colour with Barrister’s or Bachelor of laws’ gown, white collar, stiff or soft, and bands.”

It may therefore, be seen that there is a marked preference in favour of lady Advocates who are free to wear the regional dress with a gown, while the male Advocates are compelled to wear a Coat with the band and gown, which rule is prima faciediscriminatory.  The climate of the area is common to both men and women.  A dress code will have to be necessarily fixed taking into account the climatic conditions of different regions.  Unfortunately till date no attempt has been made by the authorities concerned to fix an appropriate dress, in spite of the advent of freedom which we obtained about 72 years back.  It is ungainly to ape the British model in regard to dress as the Barrister’s dress and gown are designed to meet the English climate, which everybody knows is erratic and can be resisted only with thick dress. Fortunately that is not the condition in Kerala or in any part of India except during winter in the Northern India.

It is therefore, time that the Bar Council, which appears to be concerned with so many issues not very much relevant to the legal profession, addresses itself to a very crucial issue namely wearing of dignified robes by Indian lawyers suiting the climate of the country.  

I was wondering why the legal profession cannot copy the model of the doctors by wearing a long black coat even avoiding the band and gown.  This will give the profession the distinct identity it needs as to my knowledge there is no other profession adopting the long black coat as a uniform.  Black small coat is adopted even by Railway men not to speak of the waiters in five-star hotels and the trainees in Catering.  Either the existing coat and gown can be substituted by a long coat, or gown alone, or if some are particular of the discriminatory senior’s gown with that distinction, wearing of the black gown alone shall be insisted.  No doubt, the dress shall be decent, congenial and consistent with the dignity of a member of the legal profession.

I should think that this is the most appropriate time for the Bar Council to deliberate over the matter and make effective appropriate changes to the dress code and make it part of the rule under the Advocates Act. The High Court should respond appropriately.

The Doctrine of Basic Structure:
Is it the Soul of the Constitution or its Illegitimate Offspring?

(By V.K. Babu Prakash, Secretary, Kerala Legislature Secretariat)

In the Constitutional parlance, the basic structure of the constitution envisions those distinctive features, which form the core of the constitution. Once they are compromised, it would be detrimental to the fundamental character of the constitution. There are two concepts underlying the same. On the one hand, the constitution evolved out of certain fundamental values and principles, which are articulated in the provisions or conventions that also flourished along with specific constitutional practices. On the other hand, significant socio political and economic inputs arising out of the prevalent context with which the constitution is organically linked. The doctrine of basic structure is conceptually empowering since it also enables us to grasp the foundational basics of democracy. Broadly speaking, there are two major forms of democracy, which draw its sustenance from the demos. On the one hand, there is the Westminster form of parliamentary democracy in which it is parliament, which is supreme, and everything else is subordinate. The second is the American system of democracy in which neither the Congress nor the President who holds sovereign authority, but the constitution which remains supreme. The idea of American democracy is very simple, that is to say the only source of authority is the constitution and all other institutions of governance derive their constitutional right in governance from the constitution. The Indian constitution does not follow either of these formulations of governance.  Instead, by creatively, blending these two unique constitutional experiences, it articulates a third alternative, namely a parliamentary democracy in which constitution is made the supreme authority in which the constitution cannot be by passed by any of the institutions of political authority. In such a context, basic structure doctrine assumes tremendous constitutional significance.

In the formulation of the doctrine of basic structure, the Indian judiciary has played a very significant role. Not only has the judiciary acted as a guardian of constitutional democracy in India, it has creatively interpreted the constitutional provisions in the context of the changing socio-economic circumstances.

What is basic structure doctrine?

The basic structure doctrine is rooted in the processes leading to democratization of governance in India. The beginning of the doctrine is usually traced back to the judicial concern for misuse of power by the Parliament as per Article 368 of the constitution. According to Article 368, Parliament may in exercise of this constituent power amend by way of addition, variation or repeal any provision of this constitution in accordance with the procedure laid down in this Article. Jawaharlal Nehru in the constituent assembly argued as follows:“ While we want this constitution to be as solid and as permanent a structure as we can make it, nevertheless, there is no permanence in constitutions. There should be certain flexibility. If you make any thing rigid and permanent, you stop a nation’s growth, therefore while we make a constitution which is sound and as basic as we can, it should also be flexible and we should be in a position to change with relative flexibility”.1

In conceptual terms, basic structure means those values and principles, which form the core of constitution. The doctrine is about certain characteristics, which are essential since they define the nature of the constitution and once they are separated, the constitution, by implication, loses its identity. Although the idea has philosophical roots in some of the classical texts in democracy, federalism and republicanism, it was very clearly articulated in the commentary on the Weimer constitution in Germany before the reign of Nazism in the early 1930’s. Ernest Rudolf Huber, who is infamous for his support to the Nazi regime, underlined the importance of constitutional norms in governance which, if by passed would lead to the collapse of the constitutional structure in no time. The point provides three important conceptual inputs to articulate the basic structure doctrine:

a)   No amendment is permissible if it effectively alters the basic essential principles of the constitution if it means a significant departure from the purpose for which it was framed.

b)   If the amendment destroys the functional values of the constitution, it is unconstitutional and thus uncalled for.

c)   Finally, if the amendment under mines the basic values of the constitution, it has no intention of revising the constitution but desiring to eliminate the constitution, then also it cracks the basic structure.

In India the idea of basic structure is a judicial invention and is attributed to Barrister M.K.Nambiyar, a lawyer who appeared before the Supreme Court in the I.C.Golaknath v. State of Punjab1967 case.2Nambiar owed this idea to Dietrich Conrad, an academic from Germany who delivered a speech in Hindu Banaras University in 1965. According to Conrad,“ any amending body organized within the statutory scheme, how so ever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.” 3

As stated above, the basic structure doctrine evolved in India in the course of a series of Supreme Court judgments since 1967 Golaknath case. The idea of basic structure was first mooted in the 1964 caseSajjan Sing v. State of Rajasthan4. In that case Justice P.Gajendra Gadkar raised the question that whether the basic features of the constitution under which we live and to which we owe allegiance are to endure for all time or at least for the foreseeable future or whether it is no more enduring than the implemental and subordinate provisions of the constitution. In the 1967 Golaknath case the majority of the Judges held as follows:

1)    “The constitution is indented to be permanent and therefore it cannot be amended in a way, which would injure, maim or destroy its indestructible character.

2)    The word amendment implies such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed and it cannot be so construed as to enable the Parliament to destroy the permanent character of the constitution.

3)    The amending power cannot be used to abolish the compact of the union or destroy the democratic character of the constitution.

4)    The fundamental rights are a part of the basic structure of the constitution and therefore the said power can be exercised only to preserve rather than destroy the essence of these rights.”

However, the parliament took the verdict in Golaknathcase as an infringement in its constitutional right for being the voice of the people. The result was the amendment made by Indira Gandhi as the 24^th, 25^th and 29^th amendment happened in 1971 to the constitution. The intention of the amendment was to abrogate the Golaknathjudgment and to restore parliament’s unconditional authority in the matter of constitutional amendment.

These amendments were put to test in 1973 in Keshavanandha Bharathi case5. The Supreme Court in its full bench of 13 Judges probed in to the constitutional validity of this amendment. By a majority of 7 Judges as against six the court ruled that Article 368 does not enable parliament to alter the basic structure of the constitution. In the judgment there are three different expressions like basic structure, basic elements and basic features. Although the judges did not conclusively define what constituted basic structure, they left enough input to identify those essential characteristics which according to them constituted the basic structure. The idea was enlarged by Justice H.R.Khanna in the following words:“Amendment to the constitution necessarily contemplates that the constitution has not to be abrogated but only changes have to be made in it. The word amendment postulates that the old constitution survives without loss of its identity despite the change and continues even though it has been subjected to alteration. As a result of the amendment, the old constitution cannot be destroyed and done away with”. The Keshavanandha Bharathijudgment enlisted the following features as basic structure, which is not exhaustive.

1)    Supremacy of the constitution

2)    Republic and democratic form of government

3)  Secular character of the constitution

4)   Separation of power between the legislature, executive and the judiciary

5)    Federal characteristic of the constitution

6)    The mandate to be a welfare state (Part 4 of the constitution)

7)    Unity andintegrity of the nation

8)    Fundamental rights

9)   Judicial review

In 1975 in the Indira Gandhicase, the Supreme Court devised a principle to characterize basic structure6. Justice K.K.Mathew in the judgment held has follows:“To be a basic structure it must be a terrestrial concept having its habitat within the four corners of the constitution. What constitutes basic structure is not like a twinkling star up above the constitution. For instance, the preamble enumerates great concepts embodying the ideological aspiration of the people, but these concepts are particularized and their essential features delineated in the various provisions of the constitution”. Dissatisfied by the verdict in Keshavanandha Bharathi, Indira Gandhi Government enacted the 42ndamendment in 1976 to dilute the basic structure doctrine. The Supreme Court again intervened and reaffirmed the idea of basic structure in 1980 in Minerva Millscase. Striking down the 42nd amendment the Supreme Court held as follows: “ The parliament has conditional authority of amendment, it has no inherent power of amendment to the constitution and being an authority created by the constitution, it cannot have such inherent power but the power of amendment is conferred upon it by the constitution and it is a limited power”7. The same view was followed by the Supreme Court in 2007 in I.R. Coelho v. State of Tamil Nadu.8

Critique against basic structure

The basic structure doctrine seems to have put the two major organs of governance in a collusion mode. The Court has appropriated powers, which ordinarily belongs to the parliament since it represents people. The minority bench in theKeshavanandha Bharathi,led by Justice A.N.Ray endorsed the view that being people’s voice, the parliament remained supreme in India’s constitutional governance which, by implication, means that it was authorized to enact legislations, in accordance with what was required to fulfill politico ideological mission that the elected representatives had. By striking down parliament’s decision as it is contrary to the basic structure, the Supreme Court appears to have assumed a Veto power on all constitutional amendments9Instead of interpreting the amendment Clause, the Court has, in effect become the arbiter by suggesting that it will decide whether to permit the legislature to amend the constitution. The basic structure creates an environment in which the constituent power gets transferred from the elected representatives of the people to the judges of the Supreme Court, which is a serious threat to constitutional democracy. Highlighting this aspect of the judicial overreach, H.J. Kania, the first Chief Justice of India remarked that, “in a democratic country, the people make the laws through their legislature. It is not a function of the Court to supervise or to correct the laws passed by the legislature as an over riding authority. In the name of protecting the constitution, judiciary through its self-invented doctrine of basic structure appears to have destroyed the most basic feature of Indian polity, namely, the primacy of the people and democracy being a government of the people, by the people and for the people. This is an endeavor to replace the duly elected representatives by a small, often divided set of appointed judges to device policy preference”10. In a nutshell the basic structure doctrine is being challenged as an illegitimate offspring, which can neither claim the constitution as its father nor mother.11

In the final analysis, the basic structure is not merely a judicial decision, but a political intervention in governances which was likely to be derailed due to specific socio political context reportedly leading to the consolidation of anti democratic and authoritarian forces, especially during the emergency period. By raising concerns, the judiciary seems to have created an environment for fostering a democratic dialogue around key constitutional principles between the institutions of government. In principle, the doctrine is thus an important aid for keeping the executive within a limit. It is appropriate to remember the poignant words of justice H.R.Khanna in his descenting judgment in the Habeas Corpus case. “There is no modern instance in which any judiciary has saved a whole people from the grave currents of intolerance, passion and tyranny which have threatened liberty and free institutions. The attitude of a society and of its organized political forces rather than of its legal machinery, is the controlling force in the character of free institutions. The ramparts of defense against tyranny are ultimately in the hearts of the people. The constitution, the Courts and the laws can act only as aids to strengthen those ramparts, they do not and cannot furnish substitute for those ramparts. If the ramparts are secure, any one who dares to tamper with the liberties of the citizens would do so at his own peril. If however the ramparts crack down, no convention, no court would be able to do much in the matter”.

Foot Note:

1. Constituent Assembly debate book No.2, page 322.

2. 1967 KLT OnLine 1230 (SC) = AIR 1967 SC 1643.

3.A.G.Noorani in his Article in Front Line dated 28th April 2001 on Prof. Dietrich Conrad.

4.1965 KLT OnLine 1319 (SC) = AIR 1965 SC 845.

5.1973 KLT OnLine 1110 (SC) = (1973) 4 SCC 225 (Keshavanandha Bharathi v. The State of Kerala).

6. 1975 Supplementary SCC page 1 in Indira Gandhi v. Raj Narain.

7. 1980 KLT 573 (SC) = AIR 1980 SC 1789 in Minerva Mills Ltd & Ors. v. The Union of India.

8.2007 (1) KLT 623 (SC) = (2007) 2 SCC, 1 in I.R.Coelho v. The State of Tamil Nadu.

9. Subhas C. Kashyap, Indian Constitution: Conflicts and controversies, page 246.

10. N.R.Madhava Menon, Basic structure after 30 years, the Supreme Court v. the Constitution page 62.

11.  Madav Khosla, the Indian Constitution, page 155.

F.I.R. – Section 154 or 157 of Cr. P.C.?

(By E.N. Haridasan, Asst. Public Prosecutor (Senior Grade),
Judicial First Class Magistrate’s Court, Perumbavoor)

Under which provision of Cr.P.C. an F.I.R. is to be registered? Whether it is Section 154or 157 Cr.P.C. ?

Section 154 of Cr. P.C. deals with information in cognizable cases.

154. Information in cognizable cases.-- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him ………………… and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

“157. Procedure for investigation.—(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate………………….” 

By going through the Judgments of Hon’ble Supreme Court and various High Courts, the term FIS and F.I.R. are used synonymously and there is no distinction between the same.

It can be seen that Sections 156 and 157 of Cr.P.C. respectively says about police officers powers and procedure for investigation. It means there must a case be registered prior to Section 157 either suo motoor as directed under Section 156(3) of Cr. P.C.

It is true that Section 154 of Cr. P.C. is silent about the term ‘Report’ but Section 157 Cr.P.C. says about the term ‘Report’ – which may not be F.I.R.

F.I.R. and FIS are both sides of the same coin which is mentioned under Section 154 of Cr.P.C.

Section 207 of Cr.P.C. clarifies the same.

“207.Supply to the accused of copy of police report and other documents.-- In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-

(i) the police report;

(ii) the first information report recorded under Section 154;

(iii) ……………………………………

(iv) ……………………………………….

(v) ………………………………………..

The Act says the F.I.R. is recorded under Section 154. So there is no chance for any differences of opinion. F.I.R. is the substance that is entered in a book kept in the form prescribed by the State Government, and on it’s overleaf the FIS was used to be recorded prior to the computer era. The book contained triplicate pages and the original and carbon copies prepared simultaneously. In fact this system has to be followed strictly so as to avoid malpractices.

Conflict of Two Special Acts

(By Sajeer H., Section Officer, Law Department, Govt.Secretariat,Thiruvananthapuram)

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019 was promul-gated by the President for the protection of the rights of married Muslim women and also to prohibit divorce by pronouncing talaq and for all the matters connected therewith and incidental thereto. This ordinance declared that the pronouncement of talaq is void and illegal. On going through this ordinance, its clauses were in conflict with the existing similar laws. It can be seen that the Chapter II and Chapter III of the Ordinance are mutually contradictory. Besides, the provisions of this Ordinance are also in conflict with three special Acts such as, The Muslim Marriages and Divorces Registration Act 1974, The Dissolution of Muslim Marriages Act, 1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986.

Muslim matrimonial disputes are governed by the Muslim Marriages and Divorces Registration Act 1974, The Dissolution of Muslim Marriages Act, 1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986 and The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019. All these laws except the Muslim Women (Protection of Rights on Marriage) Ordinance permitted the Muslim husbands to pronounce talaq upon their Muslim wives.

In Clause 3 of The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019, it is seen that “any pronouncement of talaq by a Muslim husband upon his wife, by words either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. That means whoever pronounces talaq upon his wife, that talaq will not stand in the way of the marital status of the parties and so their marital bondage will continue as what it persists.

Chapter III of the Ordinance is titled as “Protection of Rights of Married Muslim Women”. If we go through the legislation as such then the title is not apt and suit. The legislature intentionally uses the term “married”. That means, if a Muslim lady heard the pronouncement of talaq from her husband, that whisper is to have a waterline effect and that words will not stand in the way of her marital status. Therefore she is called the married Muslim Women and not a talaq lady. But clauses 5, 6 and 7of the ordinance giving certain rights to her, as in the case of a divorced lady, in contrary to the title word as “married”.

Clauses 5 and 6 of the Ordinance are fully against the wordings in clause 3. Because clause 3 prohibits the pronouncement of talaq and if it done the husband is liable to be punished for a term of three years and the talaq became void. If the talaq declared to be void then the marital status of the lady continues as married and the lady cannot be called as divorcee. That means the pronouncement of talaq would have a value of mere pronouncement and not a valid offer of divorce. Hence the lady, who denies and resist talaq, shall not be eligible for payment of subsistence allowance, as and when their marriage had been validly and legally prevailed. Clause 6 allows the talaq lady to claim custody of her minor children. If the talaq is not accepted and declared as void and irregular, then there will not arose a question of custody of minor children to the lady before a court of law.

Clause 7 of the Act says that an offence punishable under this ordinance shall be cognizable and compoundable. Clause 7(b) says that an offence punishable under the ordinance shall be compoundable at the instance of the married women upon whom talaq is pronounced with the permission of the Magistrate on such terms and conditions as he may determine. Clause 7(C) reads, no person accused of an offence punishable under this ordinance shall be released on bail unless the magistrate after hearing the married women upon whom talaq is pronounced and also satisfied that there are reasonable grounds for granting bail to such person. Here on a joint reading of these sub-clauses it is to be realised that the magistrate has the supremacy over the matrimonial issues by over reaching the supremacy of the Family Court .Moreover the lady shall be heard before granting bail to the Muslim husband who alleged to have committed the offence of pronouncement of talaq upon his Muslim wife. The legislature ought to have considered that, it is the common practice in family court and magistrate court in matrimonial issues that the whimsical ladies falsely alleging statements against their husbands and their relatives, in order to drag them towards their untenable moves. The ladies can move to the nearest police station and to lodge complaints alleging the pronouncement talaq by her husband orally. The SHO has no authority, under this Act, to make a preliminary enquiry, than to move with the complaint. He used to mechanically arrest the husband and proceed against him on the basis of the sole testimony of the wife. As and when he arrested his bail application shall not be entertained unless the lady is to be given an opportunity of being heard. If the lady refuses to move to the court with her case then the husband has to wait behind bars at the mercy of his wife, for obtaining bail. Whenever the husband defuses the case of the lady, then only he got bail from the court of law.

The Muslim Women (Protection of Rights on Divorce) Act Section 2 (a) defines divorced women means a Muslim woman who has married according to Muslim law and has been divorced by or obtained divorce from her husband in accordance with Law. Here it means that a Muslim woman get divorce from her husband in accordance with Muslim law. Muslim law permits the husband to pronounce talaq upon his wife. It also mandates that if a lady wants a divorce from her husband then she can obtain it from her husband by pronouncement of talaq upon her. It is the statutory right of a Muslim lady who can obtain a divorce from her husband and can get it registered under Muslim marriages and divorces (Registration) Act 1974.

Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act reads that notwithstanding anything contained in any other law for the time being in force a divorced women shall be entitled to a reasonable and fair provision of maintenance, to be made and paid to her along with the iddat period by her former husband. Section 3(l)(b) says that where she herself maintain the children born to her before or after her divorce a reasonable and fair provision of maintenance to be made and paid by her former husband for a period of two years from the respective date of birth of such children. On going through the above sections it can be seen that the husband has the mandate to provide divorce to his wife. That means the law permits the husband to pronounce talaq to his wife, but to provide reasonable and fair provision of maintenance to his wife and children.

Section 2 of the Dissolution of Muslim Marriages Act, 1939, clearly mentioned about the grounds for obtaining divorce from a husband of a Muslim lady. But no provision of the same has declared unconstitutional after the enactment of Muslim Women (Protection of Rights on Divorce) Act. In Danial Latifi v. Union of India (2001 (3) KLT 657 (SC)) the honourable Supreme Court has declared that the provisions in the Muslim Women (Protection of Rights on Divorce) Act are not unconstitutional. That means a Muslim husband can validly pronounce talaq upon her wife.

Facts being so, the newly enacted Ordinance prohibit the pronouncement of talaq by a Muslim husband towards his Muslim wife. If it is done it is void and illegal and the husband who pronounced talaq shall undergo penal consequences as per clause 4 of the Ordinance. But the pronouncement of talaq is not a penal provision in the Muslim Women (Protection of Rights on Divorce) Act and it is permissible. The ordinance directed the Muslim husbands to pay subsistence allowances to the talaq ladies; Muslim Women (Protection of Rights on Divorce) Act directed them to claim reasonable and fair provision of maintenances.

Therefore, The Muslim Women (Protection of Rights on Divorce) Act 1986 and Clause 3 of the Muslim Women (Protection of Rights on marriage) Ordinance, 2019 were in conflict with each other. If a special statute is in conflict with a general statute then the special statute will prevail is the rule inGeneralia Specialibus Non Derogant. But if two special statutes were in conflict, then what will be the result? The court has to intervene and to declare any one will prevail over the other. Or else, the legislature may take up the matter and repeal any of the eclipsed provisions in the statutes in order to fill up the lacuna.