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ENVIRONMENT AL GOVERNANCE AND ROLE OF

JUDICIARY IN INDIA
CONTEKTS

Contents Page No.


Ueclaration I
Certificate II
Acknowledgement Ill-IV
List of Chapter Contents V-VII
List of Tables VIII

CHAPTER I: INTRODUCTION 1-23


l. I Background of the Study 1
l.2 Debate on the Role of Judiciary in Environmental Governance 7
1.2.1 Literature on Ideological Content of Judicial Decisions 8
1.2.2 Literahire on Judicial Decision-;\-1aking Process 10
1.2.?, Literature on Impact of Judicial Intervention 14
1.3 Research Questions 18
1.4 J\-tethodology ·1s
15 I .imitalions o{ the Study 22
1. 6 Outline of the Dissertation 23

CHAPTER II: HOW GREEN IS THE 11\"UIAN JCDICIARY? 24-82


2.·1. Understanding the Concepl ol Green in India: C(mcephial Pramework 2-1
2.2 Different Shades of Crccn 30
2.2.1 Environmentalism. of Poor in India 30
2.2.2 Middh: C.Liss Indian Fnvironnwntalism Tl
2.) Iv1ethodolo3y 32
2.4 Summarv ot Environmental cases 33
2.4.l Environmental cases of the Industry versus Environment' type
1
::n
2.4.2 Environmental cases of the 'State versus Environment' type 50

2.4.2.1 Environmental Cases against State Agencies for 50

Implementation failure

V
2.4.3 Environmental cases of the 'Community versus Environment' type 70
2.5 Different Dimensions of Judicial Approach toward Environmental Cases 75
2.5.1 Pro-Green Approach 75
2.5.2 Pro-Development Approach 76
2.:d Integration of Environment, Development and Human Rights 79
2.bSummary 80

CHAPTER III: JUDICIAL DECISIOK-MAKING PROCESS ON 83-135


ENVIRONMENTAL ISSUES
1.1 Understanding Judicial Decision-Making Process: Conceptual 83
Framework
1.2 Methodology 91
1.3 The Process of Judicial Decision-Making in Environmental Cases 95
between 1980-2000
:1.1.1 Legal Factors 95
:1.1.2 Extralegal Factors 102
3.3.2.1 Ideological Values and Preferences of Supreme Court Judges 102
3.3.2.2 Impact of Previliling Soci~Economic and Political Environment 114
13.2.3 Resouro.'s of Litigants 1:29
3.4 Summary 134

CHAITJ'ER IV: IMl'ACT OF JUDICIAL INTERVENTION ON 136-172


ENVIRONMENTAL GOVERKAKCE: CONTRlBL:T10NS AND
COMPLICATIONS
4.1 Innovative Judgments in Environmental Litigations and its Implications 137
4.1.1 Right to Environment 137
4.1.2 Pro<;edur,,1 Ch,mgcs 142
4.1.1 Remedial Flexibility 147
·1.1.4 Spot Visit 149
41.5 Evolution of Environmental Principles and Doctrines 150
4. 1.6 Independent Expert Committee 154
4.2 Judicial Intervention in the affairs of other organs "nd its Implications 161
4",'s
_ umlllary .
ITI

VI
CHAPTER V: CONCLUSION 173-185
5.1 Summary and Findings 174
5.2 Policy Implications 181
5.:>' further Research 184

Appendices 186-200
Appendix-l 186
Appendix-II 191
Appendix-III 193
Appendix-IV 199
Appendix-V 200
Bibliography 201

VII
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List of Tables

Title Page No.

Tahle 2.1 Environmental Cases on 'Industry versus Environment' type 48-49


Table 2.2 Environmental Cases on 'State versus Environment 'type 68-69
Tahle 2.3 Environmental Cases on 'Community versus Environment' type 74-74
Table 3.1 Interview with Selected Respondents 94-95
lable 3.2 Dimensions and Preferences of Judges in Judicial Decisions
on Environmental Cases 127-128
Table 3.3 Overall Picture of Environmental Cases in the Supreme Court 133-133

VIII
CHAPTER I

INTRODL'CTION

1. 1 Background of the Study


The ecological degradation and economic deprivation generated by the resource
intensive conventional model of development have resulted in environmental
C\)Jlflicts across the \'\lorld. The various environmental problems such as
depletion of ozone layer, acid rain, green house effect, soil erosion, deforestation,
water pollution, air pollution, and noise pollution have had devastating impacts
on human well being and are also culminating into a spectre of irreversible long-
term d.amage to ecosystems. Like any other social, economic and political
problems, these environmental problems have caught the attention of policy-
IIl,lkers, intellectuals, social movement activists and research scholars. To deal
with these environmental problems, efforts have been made since 19705 both at
tIll' inteTl1ational and national levels. At the international leveL the Unitcd
'\atinns h )ok the first initiative for the preservation of the environment.
Ijk('wis(', the U.N. Confercllc\' on the Human Environment at Stockholm in June
1')72 t"volvt'd Cl'rtain principlt"<; and action plan for controlling and regulating

l'lwimnmental degrad.Hion. further, the U.'\ General Assembly passed a


rcsolution cmphasizing the 11('pd for activt" co-operation among the States in the
field of human environment on December 15,1')72 (Kaur, lYY2).

In ~ubseljU('nt years, there have been many conferences ;md ay,reemenb not only
at the intl'rnatinnal level but also at the state \cvel, directed towards the
protection 01 the environment and halting environmental degradation. To
achieve this objective, a number of acturs arC' involved such as, international and
national institutions, civil s()cieties, environmental groups, firms and local p('ople
III the decision-making process relating to environment protection.
C()ncomitantly, a large number of states have not only enacted various laws for
environmental protection but have also provided space fOT the participation of
other actors in the environmental decision making process. The involvement of
\'arious actors other than the state as the sole representative of environmental
polic,,-maker has led to the development of the concept of environmental
governance'. This concept involves interactions among formal (Legislature,
Executive and JudiciiH\,) and informal institutions and actors within society that
influence how environmental problems are identified, framed and dealt with.
El1\'ironmental governance, in other words, addresses how decisions concerning
the environment are made and who participates in the decision-making process.
More specifically, environmental governance can be referred to the set of
regula ton' processes, institutional mechanisms and organizations through which
different actors influence environmental actions and outcomes. This includes the
role of formal institutions and laws to make, enforce and resolve disputes
re\(llving around elwironmental problems; role played by the people who claim
and conte"t the rules over the use and management of resources and represent in
the decision-making process on natural resource management; the way market
influences authority over the use and control of natural resources; and finally the
part played by ecological and social sciences in the decision-making process on
natural resources' use to reduce risks to people and eco-systems
(Kurukulasuriya, 20m; Lemos and Agarwal, 2(06).

Tht:' lOIlCt.-"pl 'gl'VE:'rtMnn" (rlllle to prominPllct' (lInong de-vr!opment priorities following Its USE" in a "Long
Tprm Pprspeftive Study" of development in Suh·Saharan Afnca publrshed by the World Bank (World Bank,
1989,. Tlw concept of goverl1rlncp hcls hf>t'n used in various contexts Its Illeaning today: (ove"rs the objedives.
of 1n,II1agenwnt as well as the method, the tdsk of choosing \-",hat to do i'S wen as how to do it. A common
lllHierstdnding of the term has, ho\vt-'ver, enabled not only government but also v.uious other actors to form
nurms and/or rules for solving probtems 011 their own. GoverniUlC€: in other \\'Or05, is a more
{~I1(nIl1IMssing ph{,l1omC'non than gm/C'rnmpI1L It not only embraces governmental institutions (legislature,
t"-:...rnJtivp and judiciary), but also subsumE"s informaC non-governmental mechanisms ".. hereby those
pt'r~ol1s dnd organizations \,vithin its purvLt'\V lllt'lnage thelf common affans. GovC'"rnance is thus a system of
rule that is d5 drpendent 011 inter-subjective meanmgs as on formaIly sanctioned constitutions and charters
Scholars and clifferent organizations hc\Ve abo identified rule of la\-v. freE'" press, accountabLlity.
transparency. effectiveness, responsibility:, devolution of power r participation, less regulations., etc. as key
elements of governance (1:vIF, 1997; \'Iule, 2001; f\eumayer, 2002).
[n this ((}nll'xt, .l ke\' actor invoked 111 l'n\·ironn1l'nt.l[ g(l\'l'I'Il.lIKc' in the ren'nt
\'eMS 111 man\' parts of the w(l[[d IS the Illdici,u\' TIll' TlllL' pf JUl!Jn,lI'\' 111

rl'sl,h-ing dl'>Pllks on el1\'ironnll'ntal issues, e<;pl'C1,llh' in Inelhl ha ... bl'((lllll'


illl !,(lrtant ,1S then' are competing cl,lims and ((lunll'r-d,lims (}\'l'r tht' u ...,' .]nel
m.Jlhlgl'l11l'llt (If n<ltura[ rl'source .... c\1l\ alteration in tIll' IIlstitlltJ( l ll,l[ Illl,,'h.1ni ... m<,
gO\'L'rn ing this use n()t onl\' impacts d i fferell tia Ih' u plln d i ffl,Tt'nt str at,l, bu t .11<;()
gin's risl' to conflicts. This needs to bc resol\'cd through different "ll,'i,1I ,mel
insti tu tion,] [ mechanisms lOf which j ud icia rv is ani m pl)rtan t ,md fi n.ll .nbl t r,l t(lr
t() !l's(}I\'L' tIll' contlicts in India, Apart from resolving the contlicting c1,lIl11S, tIll'
J'(l\c> of Judici.u\' has also been well recognized by the constitution not onl\ ttl
,'n"UrL' that tIll' enactment of laws bv the legislature is in conformity with the
constitutiondl provisions but also to confirm that these laws ,He implemenll'd [,\'
the administrative agencies. which are aimed at the protection and impn)\'l'nll'nt
of the environml'nt, Constitutionall\, and through its own inter\'('ntion. JUlhci.u\,
h,1S becoml' ,1n illlpllftant actor in en\'ironml'lltal jurisprudence l)f Indi,l.

ThIS raises the qUl'stioll as to wI1\' thl'n~ is .1 need for Judicial intl'rn'ntinll Itl

resolving disputes rl'\'ol\'ing around environmental problems, [n \'iew of tIlt'


Stockholm Conference on Human Em'ironment and growing awareness of tIll'
l'Il\'lrOnml'nt,ll crises in the countn', India made amendment to its Constitution
and addl'll direct provisions for protection of environment (Bansal and Gupta.
1Slt)2; Bai\\ a and Bains, [9S12). TIll' Constitution (Forty-Second Amendment) Act.
IlI71> has made it a fundanll'lltal dun' to protect and imprO\'l' the natural
ell\'ironment. Article -18-:-\ states that: "TIle state shallendl'a\'(lur to protect ,llld
improve the em'ironment and to safeguard forests and wildlife of the country",
COITl'sp(lnd ing to the obligation imposed on the State, Article 51 A (g). which
"C(tlfS in P,lrt [V (..l.,) ()f the Constitution dealing with Fund,lllll'nt,11 Dutil'S, casts
a dut\' ,)Jll'\'ery citizen of India, Article 51-:'\ (g) provides that it shall be tIll' dun'
pf L'\','n' citi7.en of [ndi,l t(1 prlltect and impf()\'l' the natural l'lwin)nnll'nt
dJ!l'dll1~ thl' L,t,lll' Ill! till' protl'ction and illll'rlll'l'llll'nt "I l'nl J!pnnll'nt ,lJhl

"'p,'ds citi/l'll" til hl'lp JJ1 the pre ... ervatioll "I [1.1tllf,lll'llli!onnll'nt

prptl'ctiOIl ,md irnp!PI'l'nll'nt of l'IlI'i!onnll'nt !'Ill' en,Ktnwnt pi the \\',llef


(l'rl·I'\.'llti(l1l ,1I1d COlltrol Ilf Pollutioll) Act of 1'17-1 ha~ ~il'l'n till' .. I.llllie hllPk It~

lir .. t n',ll "'lInd,ltion I(lr l'nl'iwnnll.'lltal protection, Other maJor \,·n.Klnll'nh Ih,lt
h,l\\.' IplI(llq'd .HI.': The ForL'~t ConS\.·[Tation :'I.ct (IYKI). JIll' ..\ir Prl'l'l'ntion and
CIlntrol of Pollution .-\ct (I YKh). Thl' Em']wnmentdl I'n'kctioll :\1.'( (I YKh). Thl'
Ndtiolldl I'm'ironment Tribunal Act (1'193). TIll.' \;atiollal Fnl'!runnll'nt :\ppl'llatl'
Act (1997) and Biodin'rsit\' Proll'ction Act (2()()2). In this WdY. lllllid ha ... l'nacted .l

r,lng" of n'guldton' in .. h·Ulllents t{l prL'serve and proll'ct it'< natural R· ... Oufn· ..

['rior to I CJ70s. polluti,'n and cl1\'ironlllental degradation hold bel'n addn· .....ed
Il')'\' gl'tll'r.llh· in tl'rms of lluisancL'. llegligL'nce. liability. dnd a few principll" III
tort 1.1\\' (Curtnalh'. 2ll(2), At presL'nt. therL' are stated IL' be Ol'l'r two hundfed
C,'ntr,ll ,md Stoll\.' st,ltutes.~ which hal'l' at least somc conn'rn with elll'iwnmL'nt,ll
protl'ction. l'itlwr direct'" or indirecth' (Dil'an and Rosencr,m/. 20tH. p.:\) \Iam
01 tl1l'se Acts ,lnd Constituti'lJlal provisions attl'mpt 10 prol'ide dfectin' solutions
thrnugh diffl'rL'llt instihltional mL'chanisms to deal with l'nliwnnll'nt.ll pwhll'm ..

Illl' SPdtl" ot h.'glslo:lllllnS mdude- \\'''tt''r (Pr(,\"Pllhon dnd Cnntrnl ot PullutlOn) ..\...-t. )q.74 (tilt' \\dtl'r '\\ tl-
·\11 (Pll'\"\'ntlon dnd Control 01 rollulLon) At_ t. ]1:)81 Ulw Air ..\rl}, En\ Ifonm ..'nl (Proh·dlon) :\('1. 1980 {EPA}.
tlw \1i1llut.,cluft', Stordgc- dnd Imporl 01 HdZdHlous. Cht'mlfdl Rulps t9S9. Hd7drliou5 waslf' (Mandgf'mt'nl
,md II;mdlingl Rules )q.Sq. the f\.ldltuldcturt', Lst', Import. Export dnd S-tordgf> ot hdLdrdou5 ~h(r(\­
org<HHsms/ Grllt"ticdlly Eng(Ilf't"rf"d Orgamsms or C('lIs Rules 1989, thr Cht"-llllCdl :\rolients (Emt"rgf'nc~
PldlHlIIlf,.. Pn..~p,updnt"ss, clnd Response) Rule 1990. BlOmetiu,_ al \\'dstf" (\Ialldy.t"mr-nt dmi Hdndling) RulM.
1')<)1\, Ih(' ~lu"',il"l Solid wdslt's (Mdllagell1(>nl & Hdndhng) Rules ~OOO, Rffnled Plas", ~Idnufaclur. and
L".lgt.· Rules )999, Ozone Ot.·plf'tlng Substdllt.'es (Reguldtwn dl1d Contft1lJ Rules 2O(k). ttv ~OI.St" Po[lutlon
(Rt'f~III.I,on .lId Conlrol) Rule,:'OOO, Bdtte"e, (R1dnag.'nwnt dlld Handhngl Rules ~OOl, Ih.. Public l",bll,t\
In.surdll(t'' ,".d 1991. I\:aholldl Elwironmenlal Triilundl Act lQQ5. (he ~dtlonal EnVironment Al'l'eUIIt""
. \ulho"t" A.'I 1997. B'od"· ... s'I" ProlecllOn Acl 2002, l\:alional E,w,wnmt'ntal Polin' 200b ... Ic T1w d .. I6,1
proYlsions of "II ~h("5t"" (>n\,lrOnmf'nldll~ws tlnd polKIf's arE" d\'dlld~lt' dt \.... " \\".t"n\"tor.llicm
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and prevent the degradation of environment. And their interpretatioll is a major
task of Indian judiciary

Howc\'('\", the plethora of such enactments and Constitutional provisions has not
resulted in pre\'enting environmental degradation in the country. The last two
del'ddes h,ln~ bcen a period of rapid degradation in the Indian environment. The
endctment of a number of liH\,s both by the Cenb'al and State governments
rel'lting to cm'ironment has not made much head wa\' in conb'olling the
depletion process and the laws, by and large, remained unenforced,
mi<;<lllministcred or mismanaged. Further, despite existence of a national
environmental policy, the constitutional mandate of environmental protection,
the flurry of legislations and administrative infrastruchlre of implementation and
the problem of environmental degradation still remain a great cause of concern
1Il India and havc intensified over the years. Most Indian rivers and freshwater
sb'cams arc polluted by industrial wastes or effluents. There has also been a
rapid increase in casualties due to respiratory disorders caused by widespread
air pollution. A widely cited study conducted in Delhi estimates that 10, 000
people die every year due to complications from air pollution, a staggering total
of one pcrson every hour.' In the Citizen's report on Indian Environment, forests
han' been singled (lut as the element of environment, subjected to most
dcstruction and degradation. The effects of forest destruction on soil erosion,
floods, siltation of reserviours, loss of genetic diversity, etc. are also well
documented (CSE, 1985).

Thc reasons for this state of affairs arc varied and complex but one major factor
has been ineffective implementation of the concerned laws (Baxi, 1985; Ramesh,
20(2). This has prompted environmentalists and the people, as well as non-

.. Ct'ntre for SLienre rind Environment Pre:;.'!;. Rdrd~(, l:flS }HI'~/200Q.


/\vdilable at \\'\\'w.l'st'illdia.orp Illtmll (mp / airl prt'55 20000718.hlm

5
governmental organizations, to approach the Courts, particularly the higher
Judiciarv, fm suitable remedies. Interestingly, judiciary has also responded in a
pw-actin' manner to deal with these ditferent nature of environmental problems
(Divan and l{osencranz, 2001; Ranll'<;h, 2002). \tVhile conventionally the executive
and the legislature play the major role in governance, the Indian experience,
pilfticularJv in the context of environmental governance, is that the judiCiary has
begun to play a very important role in the environmental governance process.

rhe increasing interventi(lll of judiciary to resolve environmental disputes has


il'd t(l the "ccurrence of a new phenomenon - the emergence (If Courts of Law in
India, as perhaps, the sole dispenser of environmental justice. International legal
experts have been unequivocal in terming the Indian Courts of law as pioneer,
both in terms of laving down new principles of law and also in the introduction
of innovations in the em'ironmental justice delivery system (Peiris, 1991;
Anderson, (998). Although it is not unusual for courts in Western democracies to
play an active wle in the protection of environment, the way Indian Supreme
Court has been involved since 1980s in interpreting and bringing new changes in
the environmental jurisprudcllcc is uniquc in itself. Perhaps no judiciary in the
world has devoted as much time, effort and innovativeness to protect the
environment as the Supreme Court of India has for the last two decades. 4 Besides
the assigned role of interpretation and application of law, the judiciary has also
performed an educative and innovative function by creating av.rareness about
env ironmcntal problems among the public through a series of illuminating
directions and judgments.

During a short span of time, the Indian judiciary has expanded IOClls standi, laid
down new principles to protect the environment, reinterpreted environmental

~ ThE' Sllpreme Court 0: other countries such dS, LSA, Canada, Austrillicl, ~'e\v Zealand, ilnd Bran: ,1]50
be,,_ ome part of E::'lwirul1m~lltcd jurisprudence ill their respective (ountrj(,s (186 11> Law Commisswll Report c-f
IlldM,2003)

6
laws, created new institutions and structures, and conferred additional powers
011 the existing ones. The protection and improvement of environment through
various directions are being seen as a part of the precipitant role of the Supreme
Cuurt in the f\)rm of continual creation of successive strategies by way of judicial
intl'rl'l'ntipn. In view of the frequency of judicial orders/ directions passed
periodicilllv by the apex court scholars like Dwivedi (1997) have lebded
Supreme Court as the 'Green court', directing and monitoring the progress of the
l'nyironmental project as its chief concern and preoccupation. Thus, an
impression has been created that the Supreme Court of India plays a major role
in environmental guvernance not onlv in comparison with legislature and
l'Xl'cutin- branches of the state but also in comparision with its counterparts in
the de\'eloped and developing countries. This interesting phenomenon is the
pri ma rv focus of this dissertation.

1.2 Debate on the Role of Judiciary in Environmental Governance


Over the last t\'\!o decades, this increasing role of Indian judiciary in
environmental glwernance has been an important area of inquiry among legal-
political ~ch()lars. There have been considerable number of studies on the role of
Judiciarv in elwironmental governance in India, though compared to many other
areas and the tussle between judiciary and Parliament power, this number is
small. Majority of studies are recent, published after the mid-1980s. Most of them
are by legal experts, environmental and human rights activists or journalists, and
the opinions vary. Many welcome it for the good that it is perceived to have
done; otlwrs are somewhat uneasy at this development; and some strongly feel
that it is improper. To judge by recent literature, this ambivalence has increased.
The following section examines some of the key assessments and interpretations
of the Supreme Court's role in resolving environmental disputes in India. It
begins by highlighting briefly the ideological content of judicial interpretations of
different issues involving in environmental litigation. This is followed by

7
tlnraVelill~ literahlre tln the factors for different types of judicial decisions on
environmental issues. Finally, an attempt is made to trace'out the literature on
the major impact of judicial intervention on environmental governance.

1.2.1 Literature on Ideological Content of Judicial Interpretations


The Court directions in environmental litigation recognizing that the poor and
dis,ldvant,)gl'd sections of the society pay the heavy price due to environmental
d"gradation and therefore their rights need to be protected have been viewed bv
many scholars (Gaur, 1992; Dwivedi, 1997; Thakur, 1997; Leelakrishnan, 2005) as
recognition of social justice and human rights aspects as part of environmental
protection, The Supreme Court's direction to prevent and control pollution of
natur,)1 l'Cs,lurces from indiscriminate de\'elopment activities has also been
considered as pro-environmental judgements. Allowing a third party to
represent un behalf of affected people through filing PILs is seen as bringing
justice to the door step of people, especially for the poor and disadvantaged
sections of the society (Peiris, 1991; Baxi, 2000). Leelakrishnan (2005) argues that
allowing the public to represent on behalf of inanimate objects has established
tIll' intrinsic value of nature, \vhich needs to be preserved for the sustenance of
th,' l'COSI'stem.

Recent scholarlv writing by Amita Baviskar et al. (2006) emphasises that the
judicial direction in environmental litigation is mOTe concerned about middle
class people's right to public health and quality of environment and that it
sidelines other different claims revolving around environmental problems. She
argues that to protect the environment in the name of public interest from
industrial pollution, the Court, the Pollution Control Board, Lawyers, and NGOs
have worked in collaboration with each other and have thrown out the small
business groups and workers out of employment. ll1is kind of judicial direction,
she has labeled as a part of middle class environmentalism in India, which does

8
Studynama’s Law Community is one of India’s Largest Community of Law Students. About
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Iwl associate> it<;l'lf with otl1l'r social structurt'S whdt' pnliectin).; the ell\'inlnnwnt
in IIll' n,lllle of public mtt'IT't.

Iht'<lu).;h its illtL>rn'lltion, sOllle (llher scholMS (Thakur, 1997; Di\'an and

R(l~l'ncr,lI1/, 20(1I) h,1\'l' emphasized that the Cpurt h,l'> made all dltl'm!'t t< l

rt'C(lncill' diftt'rent claims such as dl'\'l,lllpnwnt. t'lwir(lnl1wnt ,md hUIl1,m rights,


rill' conn'r n of Iud iciarl' tha t the del'l'lppll1en t deli \ i ties It l n1l'l'I till' IlKrl'.1 sing
dl'I11,1I1d., ot till' pl'opk lWl'd to be carril'd (lui in b,ll,lnCt' wilh tlw ,H',lil,lbk
n'SOUI'Cl'" ,md recognizing the claims of affected parh' reflects the principlt' of
sustdlll,lbic development in the outcome (If l'm'ironment<ll litigation and IMS
becol1w an inlt'gral part of the Indian en\'iwilmental jurisprudence,

\.:l'\l'rtl1l'lcss, the Supreme Court's restrained approach to en\'inlllnwntal


I'rt lblelllS 111 S(lme other cases has been criticized as subordin,ltion (If

l'l1\ In>nllll'nt,ll interests to the cause of dl'l"l.'lopment <llld economic polin' (Baxi,
IlJ'J~l; Lpadl1\'<l\" lOO(); 2001; Visvanathan, lOOO; John, 2001; Bhushan, l()O.t; IYer,
20(l1!; 2()06), lrnportantl\', the human and environment consequences of big

de\'dllpml'nt activities han> not been given equal priorih' in judicial decision..,
(Cullet. 20D I), These kinds of judgements, which sideline l'll\'irnnml'ntal and
hUIlli1l1 rights issues, han' raised doubts about the COil cern of judician' for
l'll\·ironnll'nt. Its ilppwach to l'nvironml'ntal litigation has been, then'fort"
vil'wed as selecti\'l' <lnd s\'lllbolic The judicial outcomes in such nature (If
l'n\'ironnwntal litigation have also been criticized ilS anti-cnvironment and anti-
peuple, lacking a rigorous understanding of till' multi-dimensional issues
renllving ,Hound environmental problems (PCDR, 20(2), For instance, Ihl'
Supn'ml' C(lurt's order concerning the inter-linking of rivl'rs" offer'i an
illustration of the Cllurt's lack of intl'rest 111 understanding the muiti-dillll'n'iillnal

:. Thl.'- ISSllt-' of intl;;'r·linklllg of rivers fdl1\f" t{l (ourfs nolK!?" 1115 itll l11tt~r1ofutorY dr"JlIh"~hOn hl~d b\ tht~ dJ1l1lll~
(Uri.H~ m thl' "~1I\Hlllil pollution fdst" In :WOO

9
aspects of development projects that involves environmental issues (Bhushan,
ZOO-I; Iver, 2(06). Critics argue that the order has been given by the Supreme
Cuurt without either hearing any interested party (including States) or
undertaking a feasibility study to examine the impact of the project. The court
order h,lS <11so failed to take into account the questions of social, environmental
and economic assessments, which may subject the (('un try to face certain dismal
con seq lICHces.

The above review of literature on the idelogical content of judicial interpretations


suggests that there have been different strands of ideology in resolving
environmental disputes. However, what needs to be traced out is how the
ideological aspects of judicial decisions are reflecting the nature and extent of
environmentalism in India and with what effect. In this context, it would be
necessary to conceptualise the judicial decisions in the realm of the existing
tlworetical debate on environmentalism in India. This would essentially provide
a better understanding about the 'greenness' of Indian judiciary.

1.2.2 Literature on Judicial Decision-Making Process


Th" conceptualizations of different values in judicial decisions in different ways
have made scholars to identify diffcrent factors contributing to the judicial
dccision-making pl'llcess on environmental issues. The different outcomes of
judicial decisions as argued by Baxi (2000) and Sathe (2001) could be attributed to
till' attitudinal differences alllong the justices to environmental litigation, \vhich
plav an important role in the Judicial decision-making process. They point out
that like any other institutions, judiciary is run by human beings and retlects the
\',llues and preferences of judges who are in charge of resolving the problems in
tIll' litigation As human values and preferences differ from individual to
inti ividual, it is obvious that decisions on litigation may also vary from case to
case as decided lw different benches headed by different judges.

10
According to Kaxi, there are hvo important reasons for the different approaches
bv judiciarY in any nature of litigation including environmental litigation. First,
is the distinction behveen an active judge and an activist one. Judges, by
detiniti!lll, have to exercise a fraction of <;(lvereign power of the state every time
thc\' pwnounce a judgment. The distinction between activist judges from an
dCti\·C Judge lies in the self-image of a judgc. To quote L. Baxi "An active judge
rq.;<uds himself as a trustee of state regime and authority. Accordingly, he
usually defers to the executive and l"gislaturc; reject anv appearance of policy-
making; supports patriarchy and other form lOf violent slOcial exclusion; and
(l\'c'rall prnlllOte<; stabilih' OVer change. In conh'ast, an activist judge regards
hilllSl'lt as holding Judicial power for the protection of civil and demlOcratic rights
pf ,111 pe(lples, ('speciallv the disadvantaged, displOssessed, and the deprived. He

d(W5 not regard adjudicatlOn' power as repository lOf the reaSlOn of the state rather
he constantlv re-works the distinctilOn between the legal and political sovereign
which legitimates judicial action as an articulator of the popular sovereign (Baxi,
2()O(), p.165-66)". In this sense, activist adjudication becomes possible only when

a judge retains the power to contest a given political regime's claim to be the sole
articulator of the C(lmmon good. The intervention of judiciary in the affairs of
"thl'r llrg,lI1S and in challenging state policies without regard for environment
could be alh'ibuted to the activist part played by the judges in environmental
litigation.

This argument of Baxi is shared by Sathe (2001) as well, but with a different
connotation. 1'0 Sathe (2001), the differences (1f judicial decision by different
judges lie in the distinction between the conservative and progressive justices.
According to him, a C(ll1'>ervative judge interprets the ConstitutilOn not in terms
of what it should be but in terms of what it is. The conservative judge believes
that the courts need not be concerned with what the effect of an interpretation
would be but should instead state what the law is. If the law is to be changed, it

II
is the function of the legislahue. This is termed as the 'Mack le//er lilli' /rnrilfwI" in
which IiiI\' is divorced from morillitv. The function of a court is conceived as that
pI ,1 mere interpreter of the constitution with emphasis on the 'letter' rather than
'spirit' of the constitution. The progressive judges interpret the provisions of a
("('nstihlti"ll liberall\' in the light of tilt' enwrging socio-economic and political
situatJllns. :\ judge giving new meaning to a provision such as right to healthv
l'Il\'ironn1l'llt as ,1 part of fundalllentill right ttl life or interpreting the law so as to
suit till' Ch'lllglllg s,'ciP-CCPIlOIllic cpnditions or e'panding the horizllns of the
righh "I tlw illdividu,11 is said to be prngn'ssive.

Scn lIld rCiiSOIl tnr diffl'Tl'l1ces in judicial approach to environmental litigation,


,1(((lrding tl' 1:\,\\;1, IS the parties ill\'oh'ed III litigation. Judicial disposition has
(nllW d()WIl IwavilY 011 micro-sh'u(turl's of power lca\'ing intact the macro-
structure'> pt ppliticaI power. In envinlnmental litigiltion, judiciary has ordered
elllSl' down 01 sm,lll t,mnerv business that pollutes the Ganges and yet finds itself
unabll' tll take ,1 coherent human rights stance in mega-irrigation projects such as
Tl'hri and Narmilda dams and hazardous nuclear power plants that present long-
t<:rm cnviWllllll'nt,ll and human hazards.

Looking ,11 ludiCldl decision-lllaking on cnvironmental litigation from a different


~lL'rspecti\'e, Venkctl'san (2000) attributes the different approach of judiciary on
l'nvironlllental litigation to the location of environmental problems i.e. urban or
rurill. According to him, if thl' environmental problem is located in urban areas
then outcome of judici<lfY is different than the rural environmental problems .
•\ccording to L;padhyay (200 I), in its approach to environmental problems, the
Iud Iciary has been following a particular h"l'nd in all environmental cases to
address various issues involving human rights and social justice components,
while it has failed to apply the same principle in resolving environmental
pfllblems resulting from infrastructure projects. TIle history of judicial

12
illtern.'ntiun in the infrastructure projects reveals that the judiciary has not
fullowed its precedents in these cases. Analvzinh judicial decision on different
l'l1\·iwnl11l'llt,11 issues differentl\·, Pathak (199-1) argues that the Supreme Court
,)ppmach to environmental litigati!ln followed a dual strategy. He finds that in
f(lrl'st related issues where the state has claimed its environmental agenda, the
«Jurt has protected till' rights of the forest dWl'llers, while in pollution related
i~S\ll'S where the state has bl'ell rcluct,mt. it has cast duties Oil it to be concl'rned
,)b,'ut till' l'n\·ironment.

\\·l1l1e undl'rst,)[)ding till' role ut judiciary in el1\·ironmental gllVernance, other


srh(llars I1<1 \l' cOl1n'ntrall'd \l[) IUllici.:d review power and thereby attributed
judicial inkrn'l1tion to the failure pf other organs in performing their
cOllstihltiunal dutil'S (Pal, IY97; Th"kur, IYY7, Raml'sh, 2(]02). They argue that
",isting institutional Illl'ch"nism and legal framework gives judiciary the power
to plav ,m Important rLJle 111 l'nnwnml'ntal governance process. The intervention
of the ,udinar), in environmental governance is a part of the Constitutional
duties oj thl' Court to uphold the rule of law, enforcement of individual rights
,)nd proh'cting thl' propriety of the Cnnstitutinn. It has been largely confined to
n'l1lming .. tructural impl'diments to the implementation of environmental laws,
which ha .. pro\'ided a "p,)Cl' for judicial intervention in environmental protection.
III sllch circllmstances, the Courts have assumed the affirmative executive

pOWl'rs of issull1g dirl'ctions, appointing commissions, collecting and vl'rifying


information, monitoring and supervising the running of public institutions to
discharge their Constitutional obligation for the protection and improvement of
l'lwironnwnt. \Vhetlwr it is the question of civil liberties, minority rights, issues
of di~tributivl' Justice, problems of good governance or industrial pollution for
that matter, almo .. t every arena of g(lVernanCl' has been scrutinized by the
Judiciary as part of its constitutional duties and environmental governance is no
('xcl'ption to this.

13
Scholars like Sathe (2001) further argue that the Court's power to revIew
administrative actions and legislatilllls under a written constitution with a bill of
rights cannot remain merely technocratic because the expressions used in the bill
llf rights (such as; equalitv before l,nY, e'lual protection of law, personal liberty,
the procedure established by law, or freedom of speech or expression) are subject
to acquire new meanings as society eV(llves and social change occurs. A
constitutional court, therefore, cannot remain a mere technocratic court when
there is violation of laws and polices aimed at protecting and improving the
environment and ensuring people their fundamental right over the use and
management of natural resources.

The above-discussed studies broadlv address the role of different factors in the
-
judicial decision-making process on environmental issues in India. What is
1,1Cking, however, is conceptualisaton of the thellretical debate on judicial
behaviour and application of different analytical variables emerging therein to
explain why the judiciary behaves differently in resolving environmental
disputes. The analysis of judicial decisions in the realm of the appropriate
theoretical formulation would in turn facilitate the exploration of different kinds
of 'greenness' associated with judicial interpretation of the environmental
litigation.

1.2.3 Literature on Impact of Judicial Intervention


The application of innovative legal doctrines and their adaptation to the
emerging socio-economic and political environment by the Court have been
viewed as contributing immensely to the evolution of environmental
jurisprudence in India. tvlany scholars (Reddy, 2001; Divan and Rosencranz,
2001; Mishra, 2002; Aparajit and Badhe, 2003; Leelakrishnan, 1005) assert that the
expansion of the meaning and nature of constitutional provisions through the
Supreme Court's interpretation and its directions to ensure individual right to

14
he.llthy environment have significantly contributed to the evolution of
l'nvironnwntal jurisprudence in India. In a number of cases, the Court has noted
ilt length the right to environment as a part of the fundamental right to life and
hi1~ reC0gnized this as one of its main planks in giving the judgement (Pathak,
19'1-l; Dwivedi, 1997; Anders,ln, 2001).

SPllIl' other scholars (l\lathur, 2001; Ramesh, 2002; Ledakrishnan, 20(5) view the
pIPees'> of judicial decision-making as innovative and deviating from its
h'aditional forms of exercising power and functions. The Court in a number of
cases recognizing its inability has relied on scientific expert committee to pass
judgements. In this ((lntext, it is important to note that environmental decisions
in\'oln' scientific and technical matters, which are not the usual way of judicial
iuncti\l)ls to de,ll with this nature pf litigatilln Yet in ,1 sh<lfp departure from this
position, the lilst two decades hilve shown that in a large number of cases, and

especially in those rdilting to the protection of environment, policy and technical


constraints ha\'e not prenmted the court from taking remedial action. A sure
testimon\' of this has been the plethora of committees appointed and relied UpC'Il
b\' the cnurts for this purpose in cases such as Doon Valle\' case, Delhi Vehicular
pollution case, \LV.:-Jayudu case, Godavarman case, etc. The proliferation of
court-appointed committees has been rightly seen by scholars as an innovative
method and the inevitable consequence of the failure of executive to bring in
tinwlv correctives (Upadhvay, 2000, p. 37YO). It has handled on its own very
delicate and complex environmental issues successfully" Its decision in dealing
with complex environmental issues has been recognized as very progressive and
inll(l\'ative in thl' field of ellvironmental justice. These innovative processes have
given important raw material for building up a comprehensive Indian
!.'Il\"ironmental jurisprudence (Jariwala, 2(00).

15
TIll' relaxation of the loClis strlJldi principle and encouraging petitioners to bring
em'irollll1l'lltal litigatit)n bv the apex court has been hailed as one of the most
importill1t bctors for the ('\'olution of environmental jurisprudence in India
(Dl'shpamk 1992; Sathe, 1999; Jariwala, 2000; Desai and fvluralidhar, 2001). The
initiation tlf I'll, the timd\' demise of the law of standing, and the expansive
inlL'rprdati()n of Articie 21 of the Constitution, argues Salve (2001) havc paved
tilt' ~Vd\' for till' dl'\'l'lopnll'nt of a body of cnvironment law through judicial
l'dict. Simil,lriy, the court's suo motu notice to the State agcncies to prcvent and
nmtfol pollution is LX'ing viewl'd as innovative, which deviates from its
traditi(lnal doctrilll' of n.'soh·ing disputes. The court's effort to ensure the
implementation of its directions in few cases by appointing monitoring
committee h,l~ also been proiected (1\Iathur, 2001) as a kind of innovative method
to impron' l'1l\'ironll1l'lltal c(lllditions. Analysing the roll' of Supreme Court in
till' [klhl \'l'lllcuIM Pollution caSl', Kumar (2002) finds that the court has taken a
demanding decision wlwn it directed the Delhi government tn use CNG as an
,lltt'rnative fuel and implement its orders latest by March :\1. 200l. This decision
has been t('rmed bv Kumar (2002) as precipitant i.e., precipitating the issue of
compliance with directions given by the court to the government and other users
of \'chick's. TIlL' other areas of judicial decisions in environmental litigation such
,1<; lk'ciding compclls,ltioll for the damage done to environment and for the
\'ictims; giving award ttl petitioner for taking the initiative; setting up Green
Henches in different state High Courts; applying international principles to
l'11\'ironmcntal protection etc., have also been considered as well thought-out
~tl'pS in till' directions of strengthcning environmental jurisprudence in India.

Of I,ltc>, IlC)We\'l'r, thi., process of judicial intervention in environmental


gO\'l'J'l1.1nCL' has been sccn as violation of the principle of separation of power and
against tlw spirit of democracy. By usurping the role of existing agencies and
din'cting policies through its orders, it has been argued that the Court risks

16
milking decisions that may not be the most efficient solutions to the cases that
,Oil\(' before it. Steadfast resistance from the implementing agencies responsible
for l'nfnrcing the Court order and people affected due to close down of industries
has mad" critic~ to question about the credential of judicial decision. By forcing
the implementing agencies to implement its orders, the Court seems to be
uSUIving the authority of the existing pollution control struchues to fulfill their
dutIL'S indL'pL'ndentlv. This raises both institutional and constitutional questions,
a~ the C(1urt grapplL's t(1 determine which branch of g(1\'ernment is best suited to
h,mdle p<111ution control matters therebv impeding the development of more
df,'ctin' L'l1\'ironnwntal controls in the countr\' (Rosencranz and Jackson, 200~;

BelL \\athur, Narain and Simpsl1\1, 2ll0-t). It is also argued that the Indian Court
ha~ not been competent to handle matters of great technological complexity
im'(1In'd in elwirnnmental litigation. The most important criticism against
Judicial intl'rn'ntion in environmental litigation has been its failure to ensure the
il11plc'l11ent,ltil1n of it<; directions which has been viewed as a kind of challenge to
the ll'gitlln,K\' "f jud icial intervention (Dembm'\/ski, 1999; Desai and !vlurlidhar,
2110 I )

TIll' abm'l'-Illelltilllll'd 'itudies have broadly identified hvo important aspects of


judicial intL'rn.'nti{\n in l'nviwnml'ntal governance. First, the innovative methods
introduced in ell\'ironment,ll jurisprudence through judicial intervention and
sl'cund, the problems associated. with thl' interference of judiciary in the affairs of
other organs to protect the environment. :\evertheless, these studies have by and
large ignored the long-term contributions and complexities of judicial decisions
to environmental governance. A detailed examination of the innovative methods
and increasing intervention of judiciar\' in environmental governance is further
required to capture the overarching impact of judiciary on environmental
governance.

17
1.3 Research Questions
In the light of the above litera tun.', it is clear that the Supreme' Court of India is an
important institution in resolving environmental disputes. It has created,
thr,)ugh its interventions, a set of changes in the environmental governance
pn>cess signifYing a shift both in its traditional function to interpret the law and
als(l III the Cl'I1Cern for environmental protection in India. Scholars belonging to
difterent disciplines have tried to grapple with specific dimension of the role of
till' Supreme Court of India in resolving environmental disputes from their
particular disciplinarv perspective. Hence, it is essential to srutinise the whole
process of judicial intervention in environmental issues in a more comprehensive
manner thl'llugh a detailed and scrupulous analysis of the entire phenomenon.
Sp,'citicall\', it is worth investigating the folluwing research questions:

• How Green is the Indian Judiciary?


• [f it is Green then when is it Green and why is it Green?

• What is the impact of its Greenness on the environmental governance


process?

1.4 Methodology
The study is based on a two-pronged approach. In the first part. the study has
reviewed a large number of environmental cases to understand different
dimensions l1f judicial intervention in environmental cases. There have been a
total of 10-1 environmental cases" (Appendix I) in the Supreme Court from 1980
to 2000. Of these, 25 cases (Appendix II) have been reviewed purposively for the
shlliv purpose to understand the different approaches of judiciary towards
environmental litigation. The selection of the cases has been made in a manner
that represents cases over a span of time (1980-2000), different types of
environmental cases (viz., air pollution, water pollution, forest degradation, and

"Thl'" Infofl1lfltlOn is based on tht:> Afll:ldld ReprtN till Dl'(C"lllher 2000. Supreme Court CasE's.

18
envinlllIllentill problems related to infrastructure projects etc.), cases from both
rural and urban areilS, Cilses filed by Stilte, NGOs and comIllon citizens,
involvcment of State as a party to the litigation and invohullent of a private
party to the litigation and cases r('lating to the protection of wildlife and

Frum the Public Interest Litigation Section of the Supreme Court and the All
Ind ia Rl'porter of Supr('me Court, I have obtained the list of environmental cases
filed in the Supreme Court from 1980 to 2000. The details of these cases,
including ilppeals made bv the petitioner, arguments by the respondent and the
Judgment! orders are available in the All India Reporter of the Supreme Court
(,-\IR, SC), All India Reporter of the Supreme Court Cases (AIR, SCC), All India

Reporter of the Supreme Court Alumina (AIR, SCALE)J The study has relied on
tlll'se archivill All India Reports of Supreme Court to trace out various issues
ill\'olved in different environmental litigation stretching from 1980 to 2000. These
documents are available in the library of the Supreme Court, State High Courts
illlll in Judiciill Academy of each state of India. As far as the draft petitions are
concerned, I hilve relied on the photocopies available in the NGO networks of
civil society groups who have taken the initiative to file these cases in the
Supreme Court. Importilntly, these legal files of petitioning parties include many
relevant papers and therefore constitute an appropriate source of information.
Also, Government Documents on Environment Policy ilnd Law;" various
Committee Repurts Iikc Bhurelal Committee Report," Hanumilnthil Rao

- l"Iwse three documents. give cwthenhc ,md detailed information 011 aU litigation ,. . ·hich (OInt'" to Supreme
Court for resolutioll. It (ontdins the .uguments made by the both ~1drties i'nrl rile directions/orders of the
Supreme CDurt of India These documents (AIR, SC; AIR, SCC; AIR, SCALE) are pu~lished by three
different privi'lp publication companies fro111 ~hrf'p different places like t\:rlgpuc Lucknm,\' and Dplhi
respectively
.>; TIll" provisions of different environmental ads. havE' been reVIewed to Ul1dNsland the objective of the la\-\'s

"" In the Delhi vrhicular pollution casE'. the Supreme Court appointed the Bhural".1 Committee to gn.:e inputs
to court about til(" fu('t qua lit): cU'Id also to monitor Supreme Court decisions.

19
Committee Report,ltl Bhargava Committee and Niley Upadhyay Committee
Report l ! Vohra Committee Report i : and varIOUS reports of National
Fnvironment Engineering Research Institute!' recommended to the Supreme
C(lurt have been analvsed to strengthen the understanding on judicial approach
to the environmental litigation.

In tlw second part, to examine the dynamics of judicial decision-making in


l'Il\'inllll1wntal Cdses, I have reviewed the environmental cases and have also
interviewed different groups, such as judges, lawyers, and petitioners. These
gruups hu\'l' been selected based on their involvement in the environmental
caSt'S taken for the purpose of the study or in other environmental cases. In
general, environmental cases are filed either by environmental activists/NGOs
and It'gal groups working on environmentullitigatiol1 and not necessarily by the
affected pMty always. In such circumstances, interaction with the petitioners has
been necessitated by a need to understand the motivation of their initiative; their
selectivl' upproach; and the strategies they had adopted to draw and influence
judicial decisions. The lawyers have been interviewed bl'cause environmental
cases come to Judician' through writ petition or PIL where there is no role of oral
evidence or eyewihless for enviwnmental problems and in such situations the
roll' of lawvers therefore becomes crucial. The lawyers interviewed represent
both on behalf of petitioner and respondent.

1;"r he GO\.'f:'fl1lllent of Indiil dppointed d committeE'" under the chairmanship of Hdllumanth" Rao to look

IIlto the different d imensiolls of Tehri Dam project.


. The Government of India iippointt'd lA'orking Group on !'vlining of Llllle-Stoll(, und('f the Chairmanship of
D.~ Bhargava t(1 rev-if"W tht" Iimp-s.tone quarry' leases for their contmuahon or (lJscontinuation in the Dool1
\!"II~v.
12: The Government of lndia clppointed a committee headed bv ('....Ir. B.BSohrd in response to the llf>E'd for
E;"xdll1ining the issues relating to development of tourism and hotel mdustrv in coastal areas cHld to regulate
the same keeping in view tilE' re(luirt'IIlellts of sustainable development and fragile coastal ecology.
11 \Jational Environmental Engineering. Research InstitutE' is based in N.agpur ,.,... hlCh is the premIer research
institute on ellVIronmentClI Issues in India and has been pout of man)' II1vestigatiollS into rnvironmenta!
prohlems and giving inputs to the Supreme' Court for resolving en\·ironn1ental disp~JtE"S

20
Findlly, a sample of judges has also been intervie\ved for the purpose of this
study This need has been felt due to the interest shown bv a few judges in
l'n\'ironnwnt,ll cases, A section of Judges are well known for their environmental
judgments, whereas, there arc judges who are selective in their approach on
l'!l\'iwnnlt'ntal issues. TIle study has adopted purposive sampling to understand
the individual appwach of judges, There had been a total of 149 judges H
(i\ppendix III) in till' Supreme Court from 1\130 to 2000,:5 As far as environmental
judgements are c(ll1cerned, from 1980 to 2000, 66 judges had been part of
d ifferen t \.'ll\'i rOll 1lll'11 tal Ii tiga tion ei tlwr in the form of giving interim orders or
fin,11 judgments, In this study, 22 judges (Appendix IV) have been interviewed,
including 4 sitting judges and 18 retired judges who had been invoh'ed in
different nature of emironmel1tal litigation, An (lpen-ended unstructured
questionnaire has been used for the interview purpose, The duration of the
inten'iews ranged from :'>0 minutes to 2 hours, \flost of the interviews have been
rec(1rded in the form of notes taken bv the researcher. Interviews primarily
re\,\llved around judges' experiences of dealing with environmental cases, as
well as their understanding on different dimensions of environmental problems,
Apart from the information collected from the respondents through interviews,
tIll' stud\' has also closely analyzed the outcome of selected 16 environmental
cases (Appendix V) to understand the significant determining factors in the
judiCial decision-making on environmental issues.

Relativelv less literature exists on the anaysls of judicial approach to


environmental litigation, and in this regard the study has exclusively drawn on
Armin Rosencraz and 5yham Diwan's (2001) book on "Environmental Law and

----------------------
1 AV<iil"hLf" itt \\\-\'W.5ULHt"llh~(PtJrlofindid.Il1C_al, Also SE"o? :Suprcllw But Kot InfalliblE", ed;ted by
11N KfJp . .ll. Ashok H,Desai, G-opal Subrall1c:lniunl. 1~(lJPt'\: Ohilvan ana Rdju Rdll1chandrall (2001), :--Jew
Uellu: Oxford University Press
;]. This ill formation was collected in November 2005. The Supreme Court had 162 judges during 1950-2005
"nd c,"t of them tllPre were 149 Judg'>' during 1950 to 2000 III the Supreme Court

21
P"licv in India." There is also a dearth of literature on individual approach of
judges, where thL' shIll v has been unable to explore anything but a seminal piece
of ,lfticie on lndiilll Judicial Behaviour published in Economic and Political
Wecklv (Gildbo'ois, 1970) which contains 50nw useful information. Secondly, the
shlllv has dr,l\vn on literatures dealing with different decisions of judiciary on
cll\'ironmental cases since the 19ROs such as Rilmaswamy lver's (2006), Videv
Upadhva\" s (2()(]O), Prashsant Bhusan's (200-l), Ashok I I. Desai and S.
r>.lurlidhcu's (2(lDI), Chilttrilpilti Singh's (1992), C. :VI. Jariwala's (2000), etc. have
helped to explnre judicial decision-making process on environmental issues.

1.5 Limitations of the Study


Contel1lpnr,H\' Indian politics has witnessed a flurry of environmental cases
Willing up to thl' judiciilf\', These cases find their place from the subordinate
court to the higill'st court (If the land. TIlis study has focused only on the role of
the Supreme Court in the environmental governance process of India. The
rationale fpr focusing on the role of the Supreme Court lies in the fact that most
of the environmental cases have been dealt either by the High Courts or at the
Suprenw Court level. 1\10re so, environmental cases dealt by the High Courts

again reappear in the Supreme Court through the appeal made by the losing
party, In this way, an overwhelming number of environmental cases had been
resolved b\' the Supreme Court particularly. TIle analysis of the cases also
confined tn a period stretching from 1'J8U to 2000 because, prior to 19R1l, there
h,ld been no environmental litigation in the Supreme Court of India. I have
specifically selected onll' those environmental cases, which had been resolved by
2000. TIle studv could not include the post-2000 environmental cases for several
prilctical reason.,. The studv is not dealing with the pending cases or the on-
going cases in the Supreme Court. The data collection for the study has been
done in two phases ranging from August 2004 to Kovember 2005. The overview
of the cases is limited in detail because some of these cases took many years to be

22
..,dtled and Cllllsisted of a number of interim orders and directions by the
Judiciar\', I'\cvcrtheless, the Cl)nclusions drawn are robust.

1.6 Outline of the Dissertation


In this chaptcr. I han> summarized the debate around the increasing role of
Iud iciar\" in clwiwnI11ental governance process of India and the way it has been
~wrcci\'ed from different standpoints, In pursuing this exercise, I have raised
difkrcnt qucstions that nccd to be appropriately addresscd, In Chapter 2, I
cxamine the themetic,ll and empirical studies of environmentalism in India to
undcrst,1lld different shades of 'green' in India, Based on this understanding, I
Il)C,llL' the different h'enLis of judicial intervention in enviwnmental cases through
a critic,ll rl'\'ll'II' "f the selected environmental cases, In Chapter 3, explore the
jutiici,ll decision-making process bv identih'ing the different factors contributing
t(l the roll' of judician' in the environmental decision-making process and also
tIll' manllc'[ in which judiciarY arri\"es at a decision. In Chapter -!, I attempt to
.111.1 I\"';l' the impact of judiciary Oil environmental governance process in terms of
ih (( III tri bu tion to the en\" iron men tal jurisprudence in India and its larger
implicati(lns In Chapter 5, I have summarised the study and reflected on the
imf)lications of the findings for policy and future research.

23
CHAPTER II

HOW GREEN IS THE INDIAN JUDICIARY?

The Supreme Court of India is considered, in recent years, as the most important
dispenser of environmental justice. By delivering landmark judgements that
have, indeed, altered the common people's perception of the court of law as just
a forum for dispute resolution and nothing else; the Supreme Court has carved
out a niche for itself. It holds a unique position and has been projected as a
'Green Court' in contributing to the evolution of environmental jurisprudence in
India. The central focus of this chapter is to assess the nature and extent of the
'greenness' of the Indian Supreme Court from the period 1980 to 2000. The
chapter begins with bv characterizing' greenness' in terms of two conceptual
perspectives: environmentalism of poor and middle class environmentalism.
This is followed by an appraisal of judicial outcomes in different environmental
cases in the Supreme Court from 1980 to 2000 to identify what dimensions of
grl'l'nness they embody. The chapter concludes by highlighting different
dimensions of judicial approach towards environmental cases in India.

2.1 Understanding the Concept of Green in India: Conceptual Framework


As in other parts of the world, the concern for environmental protection and
regulation in India emerged in the seventies and assumed public appeal in the
subsequent years. Though the genesis (If concern for environmental protection in
India can be traced back to the early hventieth century when people protested
against the commercialisation of forest resources during the British colonial
period, it was only in the 19705 that it received public attention (Shiva, 1991).
Since 1970s. there has been increasing concern among public about their right
(wer the use and management of natural resources. The emergence of a number
of environmental struggles such as the Chipko agitation to stop

24
commercialisation of forest resources, the movement against the dam in Silent
Valley, Tehri dam, Sardar Sarovar Project, protest against illegal mining activities
in Orissa, the campaign to protect wildlife and biodiversity, the campaign in
urban India to control air and water pollution and the campaign to protect Taj
/dahal from pollution reflects peoples' demand for the use and management of
natural rl";ources for vanous reasons. All these environmental
mO\'clllents/ adv()cate groups have had different goals and concern to protect
and improve the environment. The different concern of each environmental
movclllent/ adv()cacy group has made scholars to engage themselves in
understanding the varieties of environmentalism in India. The following section
attempts h> unr,l\'ej the existing literature on Indian environmentalism in India.

One strand of Indian environmentalism has highlighted the entitlement of


different social groups to environmental resources and how their immediate
livelihood depends on the use and management of natural resources. It has been
argued b\' scholars that there is an intricate and direct relationship between the
tlse and management of resources and livelihood of majority of the people and
an\' change in this relationship has resulted in a number of environmental
struggles (Guha, 1991; Baviskar, 1995; Guha and Alier, 1998). This dominant
notion of Indian environmentalism is different from the Western notion of
environmentalism. While environmentalists in the West had fixed their sights on
the objective of upholding and promoting the quality of life, the vast majorities
of people in the developing countries preferred the subsistence of the masses of
poor people to the promotion of the quality of life of a few. In the West.
environmental movements focus on consumption, productive use of natural
resources and conservation or protection of natural resources. The poor in
developing countries are often dependent on the natural environment for their
livelihood, and even their continued existence. In india, most of the
environmental movements are based on use and alternative use of. as well as

25
cOllh'ol over natural resources, This is simply because of the large number of
people who live on their environment, that is, they survive directly on what they
get from nature - firewood, food, water, building materials, medicines and
fodder for their animals (Narain, 2(02), The destruction of the forest would
threaten their \'en' livelihoods,

The history of most of the above-mentioned environmental movements in India


illustrates this point These enviwnmental movements revolve around
c(llllpeting claims over forests, land, water and fisheries and have generated a
11l'\" movement struggling for the rights of victims of ecological degradation.
This process of environmental activism is interpreted by Gadgil and Guha (1994)
within the politicaleco]ogv framework. The political ecology framework explains
tlw<;e movements as a kind of struggle bern'een '\'icious state' and 'virtuous
~lL'.lsants', in which the large number of people, whose means of <;ubsistence
depends on natural fl'sources demand" that the use and management of
fl'sources should be transformed from the state to the community. These
environmental movements for livelihood attributed the degradation of the
l'l1\'ironment to the development of large industry and its mode of resource use
in the era of modern development.

Some of the post-independent environmental movements pointed out that


economic growth and other development progarmmes led by the state
unfortunately mean increased environmental impacts and taking away the
traditional rights of people over the usc and control of natural resources. The
advocates of these movements have insistenth' claimed that the intensification of
natural resources conflict is a direct consequence of the resource and capital
intensive pattern of technology and economic development. modelled on the
Western experience, followed since independence. The indiscriminate use of
resources through a centralized process, they claim, is directly responsible for the

26
impoverishment of the resource base and of the millions of rural people who
depend on it. On the other hand. indigenous and peasant groups have often
cPl'xisted sustainably with nature and the traditional resource use practices of
local Cllmmunities are sustainable (Saberwal 1999; Cuha. 1997). This claim is
based upon the observation that many traditional practices by indigenous
communities appear to demonstrate cautious use rather than reckless
l'xploitation. These include self-imposed measures including the protection of
ke\'sh>ne resources such as FIC[(S trees. temporal limitation of resource use such
a~ closed Sl'asons for hunting. spatial restriction of resource use such as
pn )tl'ction of f()J"l'sts as sacred groves or safety forests, and use within bounds of
renewal as in long-cycle shifting agriculture (Gadgil 1985; Gadgil and Guha
199 1).

Another strand of Indian environmentalism has. however, pointed out that the
increasing concern for environment in India is not necessarily always out of
material interest but for the non-material and intrinsic value of nature. Many
scholars have argued that human concern for preserving the quality of
l'll\'ironment is directed towards seeking change in the official policy to ensure a
healthy environment and emphasizing human beings as one among and equal to
other species (Krishna, 1996; Sethi. 1993; Andharia and Sengupta. 1998). They
also argue that the struggle for preserving the quality of environment is quite
different from the struggle for environmental protection for livelihood in terms
of ideas, perspectives and strategies from the environmental struggle for
livelihood. First of alL many environmentalists contend that nature has an
intrinsic value, in and of itself, apart from its contributions to human well-being.
111ey maintain that all created things are equal and should be respected as ends
in themselves having rights to their own actualization without human
interference. 111ey value biodiversity for its own sake and assign the rest of
nature ethical status at least equal to that of human beings, Some even say that

17
the collective needs of non-human species and inanimate objects must take
precedence over man's needs and desires. Animals, plants, rocks, land, water,
,md so forth, are all said to possess intrinsic value by their mere existence
without regard to their relationship to individual human beings.

These ideas have a significant measure of support both from the state and among
the middle class 1h environmentalists in India in the form of the wilderness
movement (Guha, 1997). Conservation groups, populated mostly by the middle
cla", have advocated the preservation of biodiversity by purging it of all human
contact. Such conventional environmentalism, as argued by Prasad (2005), was
reflected in the formation of national parks and sanctuaries with the aim of
preserving wildlife and biodiversity in the post-colonial era. Although their
earlier efforts were directed almost exclusively towards the protection of large
mammals, more recently, animal activists and wildlife preservationists have
used the scientific rhetoric of biological diversity and the moral arguments in
faV(lUf of species equality in pursuit of a more extensive system of parks and
sanctuaries and a total ban on human activity in protected areas (Guha, 1989).

In recent years, animal activists and wildlife preservationists have strongly


emphasised that there should not be any kind of human activity within the
protected areas, wildlife reserves, parks and national sanctuaries. This
preservationist paradigm of Indian environmentalism stems from biological
prl'mises of evolutionary and functional uniqueness, and the ethical value of
species, regardless of their utilitarian value to humans. It contends that, mere
maintenance of ecosystem services or the sustainable use of certain forms of
biological diversity does not ensure that a full or large complement of biological

j, TllPrf' i~ no prpfi~p definition of middle cldSS people in India but scholars Ii"-e Ghallshyanl Shah (2004)
pl.tn>d n1iddll' ddSSo pC"ople bC"tween labour and rapitdl. It neither directly Q1,.-vns the LI1f'ans of production
IIMt pumps oul the surplus generated b}' wagE' '"botH powE'r, nor does it, by its 0 .....:)\ IClbour, produce the
~urplus WhLfh has use and exchange value.

28
din'rsitv is consern'd. Thus, its conservation emphasis lies in the hard-line of
sh'ictly pnltl'cting examples of natural ecosystems from human activity and
ensuring that they are minimall~,. altered. They also advocate strongly that the
state should plav a dominant role and take all measures and initiate policy
hlwards the pnltection of endangered species and forest resources
(l\I,1clhusudan,2()()5).

In this p.uadigm, the rights of human social groups, even marginalized ones
such as tribals (lr rural POOf, are subservient to the rights of non-human species.
For exampk', efforts to safeguard wildlife, national parks and sanctuaries have
"i(llated rights 01 millions of POOf, farmers and tribal people who have lost their
Iin'lih(lod (Guha, 1'1'17). Enwuraged by a powerful international lobby of
CO[N.'rvati(ln organi/.ations and animal right acti,'ists in India, government of
India has madl' protected areas a maror component of national biodiversity
strategies. Conservationists enC(lUrage government of India to establish networks
of protected areas that include all major l'cosystems even though social activists
ch'll1l'nge thl' displacement of people from protected areas. The number of
pl'''ple displacl'd bv conservation is difficult to determine, but estimates suggest
thl' numbl'r 111 millions and it is clear that poor people pay a disproportionately
high cost for conservation, while receiving a few of its benefits (Veit and Benson,
2(l(].J). This wilderness-loving paradigm is not without its internal contradictions.
(G,ldgil ,lnd l\lalhotra, 19RO) pointed out how 'the very same people who
faulured the toleration of the occasional killings of people by tigers in the
Sunderban,> believed that monkeys must be shot (lut because they damage
ortl,1mental gardens in cities.'

Other scholars have pointed out that the concern for preserving the I.{ualitv of
environment to enjoy a healthy environment comes from the middle class which
has no direct material interest in the environment. 111eir concern for environment

29
stems fl'llm the fact that people have basic right to live in a healthy environment,
which the\' claim is non-negotiable and has to be ensured through various policy
initiatives including scientific and technical measures (Baviskar ct.ll/' 2006). This
perspective and strategy of middle class groups has deviated significantly from
those employed by the dominantstrand of environmentalism that emphasizes the
devolution of power from state to community for the sustainable use of resources
for livelihood (Baviskar ('/.11/, 2006). According to Baviskar, the process of
cJ)\'ironmental activism aimed at preserving the quality of environment and
bi(ldiversity both state agencies and environmental groups collaborate with each
other. For cxample, in the prevention and control of air pollution in Delhi, one
finds the state actors (legislature, executive, and judiciary) as well as the middle
class groups lcd bv NGOs, Lawyers, and Expert groups worked together to
preservc the quality of environment. In such a situation, environmental activism
dill'S 11l1t 'iel'm to subscribe h' the theon' of confrontation between vicious state
and virtuous peasants.

2.2 Different Shades of Green


The abo\'l' analvsis of varieties of environmentalism and different issues
associated with them also suggest that the domain of green is not all about the
protcction of l'llvirollment. Rather, greenness has different shades representing
different goals and following different method to achieve those goals. The
different goals of environmental protection and the means to achieve them as
explored by these studies can be conceptualized under the following headings.

2.2.1 Environmentalism of Poor in India


Since a majority of people, especially poor farmers and tribal community in India
v"ho depend 011 natural resources for their livelihood, they should have access to
use and manage natural resources for their livelihood in a sustainable manner. In
this way, one major thrust of Indian environmentalism is not a sacred reverence

30
for nature but a material interest in the environment as a source and a
rt'l{uirement for livelihood; not so much a concern with the rights of other species
and of future generations of humans as a concern for today's poor humans
(Alier, 2002). The recognition of people's ability to use and manage natural
resources for their sustenance and livelihood would not only address the issues
like equity and social justice but also ensures social and cultural rights of people
over natural resources.

2.2.2 Middle Class Indian Environmentalism


The concern for preserving the l{uality of environment and biological diversity is
often made by environmental groups led bv middle class society from a distance
for non-material interest and to enjoy the quality of life free from pollution. They
seek to preserve the quality of environment through state intervention and with
the help of modern science and technology to live in a healthy environment, on
the one hand, and to preserve the intrinsic value of nature including water,
forest, land and endangered species, on the other hand.

In the light of these different shades of green and their respective concern for
environment, the present study explains how the Supreme Court interprets and
emphasizes these green values in its judgment. In this connection, it is important
to mention that the interpretation by the Court of different provisions in the
Constitution relating to environment and Statutory acts for prevention and
control of environmental degradation is part of the constitutional duties of the
Judiciary. The greenness of Supreme Court is, therefore, captured not simply by
analyzing the application and interpretation of existing environmental laws or
wnstitutional provisions aimed at the protection and improvement of
environment. The greenness of Supreme Court becomes apparent when the
C(lurt docs something beyond the accepted legal text or constitutional provisions

31
either in rejecting them or in incorporating new principles and methods to
resolve environmental disputes.

2.3 Methodology
I examined 25 selected judgements (Appendix II) to assess the greenness of the
Supreme Court of India. The cases under reviev.' are of different natures (water
pollution, air pollution, forest degradation), in different locations (urban and
rural), ranging over different periods of time (19RO to 2000), involving different
parties from case to case (ben'Veen state and individual and between private
party and public).

In discussing the cases, however, the main categorization I have used is (1)
industry versus environment, (2) state versus environment, and (3) community
versus environment. These categories are not claimed to be the 'ideal types' but
as ways of teasing out the nature of greenness of Supreme Court of India on
environmental issues. This categorization has been made to assess what kind of
, greenness' the Supreme Court of India is following when private interest versus
public interest (For example: industry v right to environment and health) or
public interest versus public interest (For example: construction of dam for water
supply versus displacement of people and degradation of environment) or
community interest v. conservation (For example: right to use forest resources
versus preservation of wildlife and forest) are involved. As will become evident
subsequently, the approach of judiciary towards these polluters and pollute
widely varies but fall into a specific pattern.

In this context, three caveats are in order. First, environmental cases in the
Supreme Court are always filed against the State and not against the industry or
community even though industry or community might have contributed to the
degradation and pollution of the environment. However, industry and

32
communitv becume part of environmental cases through the State. Here, the
categurisation is made in identifying the real polluter in each case even though
environmental cases are filed against the state to control pollutilOn from industry
or protect forest from cummunity intervention. Secondly, the environmental
cases against the state have been reviewed under two sections. In the first
section, environmental cases due to the failure uf state agencies in environmental
protection have been reviewed. In the second section, environmental cases
against public infrastructures promoted bv the state have been reviewed. The
third caveat, though simple, is a crucial lOne. These are neither water-tight nur
mutually exclusive categories. Quite pussibly state activities could also provide
scopes to industry to pollute or community to degrade the forest. Precisely, the
interaction between different parties has often been quite complex, thereby
making such categorization rather difficult. l\"evertheless, these distinctions are
useful in identifying patterns in judicial decisiuns. TIle following section gives a
brief summary of the key cases in each category.

2.4 Summary of Environmental cases

2.4.1 Environmental cases of the 'Industry versus Environment' type


The Rural Litigation & Entitlement Kendra (RLEK) v. Union of India filed in
19ti3 was the first case of its kind in India involving issues relating to

environment and ecological balance. The petitioner RLEK pleaded for closing
down of large number of leases uf lime-stone quarries which were pulluting the
environment, causing ecological imbalance and hazard to the health of not only
human being but also Df all inanimate and animate things. On the other hand,
the respondents including both the State and lime-stone quarry units argued that
closing down lOf lime-stune quarries would throw out the owners out of business
in which they have invested large sums of money and create unemployment fOf
the workefs working in these lime-stone quarries.

33
The Supreme Court set up an independent expert committee under the
chairmanship of D.N.Bhargav (Controller General, Indian Bureau of Mines) for
the purpose of inspecting the lime-stone quarries mentioned in the writ petitions
and help the court in resolving the dispute. After a detailed consideration of
various aspects revolving around lime-stone quarries, the Bhargava Committee
categorized the lime-stone quarries into three groups. The lime-stone quarries in
category A were those where, in the opinion of the Bhargava Committee, the
adverse impact of the mining operations were relativlv less pronounced;
category B comprised those lime-stone quarries where, in the opinion of the
Bhargava Committee, the adverse impact of the mining operations were relativly
more pronounced and category C covered those lime-stone quarries which had
been directed to be closed down by the Bhargava Committee on account of
deficiencies regarding safety and hazardous of more serious nature.

TIle Court ordered for the closing down of C category lime-stone quarries and
observed: "the consequence of this order made by us would be that the lessees of
lime-stone quarries v"hich have been directed to be closed dm-vn permanently
under this order, would be thrown out of business in which they have invested
large sums of money and expended considerable time and effort. This would
undoubtedly cause hardship to them, but it is a price that has to be paid for
protecting and safeguarding the right of the people to live III healthy
environment ~vith minimal disturbance of ecological balance and without
avoidable hazard of them and to their cattle, homes and agricultural land and
under affectation of air, water and environment"P However, the Supreme Court
als() ordered to close down those lime-stone quarries falling under the A and B
category which were within the city limits of Mussoorie and allowed other lime-
stone quarries outside the city in order to weigh the balance against the need of
lime-stone quarrying for industrial purpose in the country.

" Rural litigatIOn & Entitlement Kendra v. State of Uttar Pradesh, AIR 1985 SC 656.

34
In addition to ecological balance and concern for health of local people, the
Supreme Court was also concerned with the welfare of mine operators and
labourers left unemployed by closure of the Dehradun Valley operation. In order
to mitigate their hardship, the Court directed the government of India and the
State of Cttar Pradesh that whenever any other area in the State of Uttar Pradesh
is thrown open for grant of lime-stone or dolomite quarrying, the lessees who are
displaced as a result of Court order shall be afforded priority in grant of lease.
Apart from this, the Court directed to take afforestation and soil conservation
programme in the closed down lime-stone quarry areas and to provide
empl()vment to those workmen who were thrown out of employment in
consequence of Court's order to close down the lime-stone quarrying units.
Finally, the court asked the Eco-Task Force of the Department of Environment to
ensure the implementation of its directions within a 'ipecified time-period 18 In
this way, the judiciary gave priority to public health and environment by
restoring balance between development and environment and ensured the rights
of the workers' employed in the lime-stone quarrying units.

The Supreme Court also emphasized the importance of forest conservation in the
Ambica Quarry Works v. State of Gujarat and others l9. In this case, the
petitioner appealed to the Court \vhen the State Government rejected an
application for renewal of a mining lease under Section 2 of the Forest
(Collservation) Act of 1980, which requires permission to be obtained from the
Central Government for using forest areas for non-forest purposes. The State
government rejected the applicatioll of the appellant for renewal of lease on the
ground that the land fell under the Reserved Forest area and hence the Forest
Conservation Act, 1980 applied to the forests. The contention of the petitioner
was that by the order dated 29 th November, 1971, the said lands were dereserved

'" Rurall.itigation & Entitlement Kendra v. State of Uttar Pradesh, AIR 1985 SC 657
'" ,\111 bika Quarrv Wor~s v State of Gujarat, AIR 1987 SC 1073

35
'S E C UBRARY BAN.O,AlORF
Ace. No....... r4± 2. L\
# a •••••••••••••••••••
from the forest by the forest deparhnent and allotted the land for the quarrying
purpose to the appellant. The appeal in the Supreme Court centred on the
question of a proper balance between the need of exploitation of the mineral
resources lying wi thin forest areas, the preservation of ecological balance, and
curbing the growing environmental deterioration.

In dismissing the appeals, the Supreme Court said that the rationale underlying
the Forest (Conservation) Act, 1980 was recognition of the serious consequences
of deforestation, including ecological imbalances, and the prevention of further
deforestation. This was an Act passed by the Parliament to provide for the
conservation of f(1rest and for matters connected therewith or ancillary thereto.
The Court observed that in this case the renewal of the mining leases will lead to
further deforestation or at least will not help reclaiming the areas where
deforestation has taken place. TIle court also held that if the permission had been
granted before coming into operation of the 1980 Act and the forest land has
been cleared or broken up, Section 2 of the 1980 Act would not have been applied
in such a case. In this way, the court dismissed the applicants' demand for a
renewal of the quarry leases and emphasized the implementation of Forest Act of
1980, in order to prevent further deforestation.

In the M.e. Mehta v. Union of India,":' the petitioner :vr.C.:Vlehta, advocate of the
Supreme Court filed a writ petition in 1985 under Article 32 of the Constitution
to close down K,mpur tanneries which were discharging effluents beyond the
permissible limits into the river Ganga. The Court asked all the industrialists and
the vlunicipal Corporations and the town Municipal CowlCils having jurisdiction
over the areas through which the river Ganga flow to appear before the Court
and to show cause as to why directions should not be issued to them as prayed

'" :v!. c. Mehta v Union of India. AIR 1988 SC 1037

36
by the petitioner asking them not to allow the trade effluents and sewage
without treating them.

The Court observed that the nuisance caused by pollution of the river Ganga was
a public nuisance which was widespread in range and indiscriminate in its effect.
It was found on facts that some owners of the tanneries continue to discharge
effluents from their factories into the river Ganga and are refusing to set up
primary treatment plants in spite of being asked to do for several years. The
Court noted that only 47 of the 75 tanneries had filed counter-affidavits
explaining the steps taken by them for treating the trade effluents before
discharging them into the river. The remaining tanneries did not appear before
the Court at the time of hearing nor were represented by any counsel and a few
of them expressed their inability to set up effluent treatment plants. The Court
said that financial capacity of the tanneries should be considered irrelevant while
asking them to install primary treatment plants. A tannery cannot be allowed to
continue to be in existence just because it claims that it has no funds to install
primary treatment plants.

While giving the orders, the Court cited the Directive Principle in Article 48 A of
the Constitution which provides that the State shall endeavour to protect and
improve the environment and to safeguard the wildlife of the country; Article
51,\ imposes a fundamental duty on the citizens to protect and improve the
natural environment. The Court also invoked the Water Act and Environmental
Protection Act as an indication of the importance of the prevention and control of
water pollution and noted that not much had been done even under these Acts
both by the Central and State Governments to stop the grave public nuisance
caused by the tanneries at Jajmau, Kanpur. The Court finally directed all
municipal council and authorities over the areas through which the river Ganga
flows to discharge their statutory duties and prevent and control the pollution of

37
river Ganga. In the same manner, the Calcutta tanneries' are discharging
unh'eated noxinus and poisonous effluent intn the River Ganga came up fnr
consideratinn in M.e. Mehta (Calcutta tanneries matter) v. Union of India 21 •
Referring to the Water (Protection and Prevention of Pollution) Act, 1974 and the
Environment (protectiun) Act, 19R6, and the Polluter Pays Principle, the Supreme
Cnurt directed closure of the tanneries, relocation and payment of compensation
to the employees.

Similarly, the Veil ore Citizens Welfare Forum"" filed a public interest petition
under Article 32 of the Constitution of India against large-scale pollution of the
soil and water caused bv a number of tanneries and other industries in the State
of Tamil Nadu. According to the petitioner, the entire surfan' and sub-soil water
pf the river Palar has been polluted resulting in non-ayailability of potable water
to the residents of the area. Considering the vital importance of the leather
industry to generate revenue for the state and employing thousands nf workers,
the tanneries and other polluting industries in the State of Tamil Nadu were
persuaded for many years to control the pollution generated by them. They were
given option either to construct common effluent treahnent plants (CETP) for a
cluster of industries or to set up individual pollution C(lntrol devices. The Tamil
Nadu Pollution Control Board had prescribed standards for the discharge of
effluents and the Central Government had offered substantial subsidy for the
construction of CETPs. But the progress was slow, forcing the Court eventually
to pass closure orders on several industries. The Supreme Court noted that
although the leather industry is a major foreign exchange earner for India and
provided employment it does not mean that this industry has the right to
destroy the l'cnlogy, degrade the environment or create health hazards.

" IV! C Melltd' Cnion of Indio. AIR 1997(2) see 411


" veWF v. Union of Indl.1, AIR 1996 SC 2715

38
TIle Court directed the Cenh'al Government to take immediate action under
Section 3(3) of India's Environment Protection Act 1986 2 :1 to control pollution and
protect the environment. The Court ordered the Central Government to establish
an authority
. to deal with the situation created bv the tanneries and other ~

polluting industries in the State of Tamil :-\adu. This authority shall implement
the precautionary principle and the polluter pays principle and identifies the loss
to the ecology / t'nvironment; and individuals/ families those who have suffered
because of the pollution, and then dt'termine the compensation to reverse this
environmental damage and compensate those who have suffered from the
pollution. The Collt'ctor / District Magistrates shall collect and disburse this
money. The court also directed the Special Bench- "Green Bench"- of the Madras
High Court to monitor the implementatiPIl of its judgements.

TIll' order of tilt' Suprt'me Court in the Indian Council for Enviro-Legal Adion
v. Union of India (Bichhri Village Pollution in RajasthanF~ was again one of
the landmark judgments of the Court. The petitioner, the Indian Council for
Enviro-Legal Action brought this action to stop and remedy the pollution caused
by several chemical industrial plants in Bichhri village, Udaipur District of
Rajasthan. The Respondents including Hindustan Agro Chemicals Limited, Jyoti
Chemicals operated heavy industry plants there, producing chemicals such as
Oleum (concentrated form of sulphuric acid) Single Super Phosphate and 'H'
acid. It was argut'd by the respondents that the Rajasthan Pollution Control
Board had given" No Objection Certificate' for manufacturing sulphuric acid and
alumina sulphate subject to certain conditions. However, this unit changed its
product without clearance from the Board. Instead of sulphuric acid, it started
manufacturing Oleum and Single Super Phosphate (SSP). Accordingly, the

~., <:;p,tlon 3 of Environmental Protection Act 1986 f'll1pfn""f'TS Ihe Central Government to const[tute dll
,Hlthonty 10 rl'5O;;t'SS the imp,l(t of (,1)virollment~1 polllltion and determine'" tlU' compensation for the 105s to
t't-ology cl!lei hUll)fln life.
,. Indldn Counol for Enviro-Legal Action v. Union of Intiia, AIR 1996 (31 see 212

39
consent was refused to the unit on 16-02-1987. Directions were also issued to
close down the unit but the respondents operated these plants without permits
which caused serious pollution of the environment and affecting the health of the
people. They did not install any equipment for treatment of highly toxic effluents
discharged bv them.

The petitioner's contention was further strengthened when Rajashtan Pollution


Control Board, Ministrv of Environment and Forest and National Environmental
Engineering Research Institutt! (NEERI) reported in subsequent years on the
pollution caused by respondents and its affect on the local environment
including water, land and health of the people. Based on the several reports and
findings, in 1996, the court held a final hearing on these matters and ordered the
closure of all the plants and factories of Hindustan Agro Chemicals Limited and
J\'oti Chemicals located in Bichhri village. Calling them as rogue industries the
court held that these industries inflicted untold misery upon the poor,
unsuspecting villagers, de-spoiling their land, their water sources and their
entire environment-all in pursuance of their private profit and failed to comply
with Statutory <lets for prevention and control of pollution. Accordingly, the
Court ordered the closure of all these plants.

So far as the claim for damages for the loss suffered by tht! villagers in the
affected area was concerned, the Court directed that the affected people or any
organization on their behalf to institute suits in the appropriate civil court.
Finally, the court directed both the Central Government and Rajashthan
Pollution Control Board to file quarterly reports before the court with respect to
the progress in the implementation of directions25 .

"Ind,.n Counul for Enviro-Legal ActIOn v Union of India, AIR 1996 (3) SCC 252

40
In the Indian Council for Environ-Legal Action v. Union of India,c,' III reg<lTd to
the poor efficiency of the Common Effluent Treatment Plants (EFTPs) at
Patancheru, Bolaram and Jeedimetla in Andhra Pradesh, the Supreme Court
ga\'e directions that the industries should not be allowed to discharge effluents
which exceeded permissible le\'els and they should lIlstall equipments which
would release effluents up to the permissible levels and those industries Me

incapable of installing EPT should be closed down immediateh',

In M.e. Mehta v. Kamal Nath case,"7 the Supreme Court took notice of an article
in a leading daily newspaper alleging ecological damage in Kullu Valley due to
illegal construction of a mote]2x, The court held that the motel interfered with the
natural fl(l\\' of the river by trying to block the natural relief/ spill of the river and
thus directed cancellation of the lease deed in favour of the motel. The Court also
referred to the 'Public Trust' doctrine and stated that it extends to natural
resources such as rivers, forests, seashores, air, etc. for the purpose of protecting
the ecosystem. It held that by granting a lease to a motel located at the bank of
the ri\'er Beas which resulted in interference by the 1v\otel, of the natural flow of
the wateT. the State Government had breached the abo\'e doctrine, The prior
approval granted bv the Government of India was quashed, the PDIIuter Pays
Principle was applied and the motel company was also asked to pay
compensation by way of restitution of the environment and ecology of the areas,

In December 19~5, the leakage of Oleum gas from a unit of Sriram Foods and
Fertiliser Indusb'ies, affected many people and caused the death of one person in

,,, ind,," Cuunnilor EIl\'lron-iegrli ActIOn v UllIon of inliid, AIR 1995(g) SCC 580
,- M C Mehta \'. Krlll1di Nath (dSe, 1997(1) SCC388
~K In 1995, Span Motels buIlt c1 resort on the bank of BedS river_ Kamal Nath, former MUl1stry of Environment
dnd Forests IMd links With the hotelier, who had encroached it swath or forrstland The encroarimwnt wetS
vdhdc1ted III 1993-94 during Nath's tenure as minister. During the 1995 monsoons, the river enguift'd pdrl of
the li\Jld and threatened the resort. Span f\..'1otels carried out work 10 ch'flt:'(t the flow of thp ri\Oer, whICh \..'as
cau-;mg Pllvlfonmentai damage An article to this effect was publIshed III DIU" at the leachng dailies of which
thE' (ourl loolr.. !lotiff'.

41
the heart of Delhi city. M.CMehta, advocate of the Supreme Court, moved the
Supreme Court to claim compensation for the losses caused and pleaded that the
closed establishments should not be allowed to restart~"- The petition raised some
decisive questions concerning the true scope of article 21 and 32 of the
Constitution, the norms and principles for determining the liability of large
enterprises engaged in manufacture and sale of hazardous products, the basis on
which damages in case of such liability should be quantified and whether such
industries should be allowed to operate in thickly populated areas and if they are
allowed t\) function, what measures must be taken for the purpose of reducing to
a minimum the hazard to the workman and the community living in the
neighborhood.

The workers union also intervened and expressed itself emphatically against the
permanent closure of the unit and submitted that if the plant would not be
allowed to operate then some .tUOO workers would be thrown out of
emplo\'ment. Similarly, the Shriram Unit urged for restarting the industry on the
grounds of economic loss to the company and shortage of chlorine to Delhi water
supply undertaking.The court, in view of the complex matter, confessed that it
was a difficult situation as to which way the balance be tilted as either way
might, according to the court, entail serious consequences, and with considerable
hesi ta tion, the court reached the conclusion that caustic chlorine plant should be
alkw\!ed to be re5tarted subject to a Itlllg list of conditions.

TIll' court further held that "we cannot possibly adopt a policy of not having any
chemical or other hazardous industry merely because they pose hazard or risk to
the community. Industries, even if hazardous, have to be set up since they are
essential for economic development and advancement of well being of the
people. IvVe can only hope to reduce the element of hazard or risk to the

") M.C M~htd V Union ollnni. (OleumGas Case), AIR 1987 SC 1086

42
communi tv bv taking all necessary measures for locating such industries in a
manner which would pose least risk or danger to the community and
maximizing safety requirements in such industries"l". However, the Court
ordered the management to deposit a sum of Rs. 20,00,000 by way of
compensation claims made by the gas victims. The management was also asked
to give a bond guarantee of Rs. 15, 00,000. In this case, the Court also laid down
principle of absolute Iiabilitv in the matter of injury on account of use of
hazardous substances.

The Court further directed the Government of India to evolve a national policy
for location of chemical and other hazardous industries in areas where
population is scarce and there is little hazard or risk to the community, and when
hazardous industries are located in such areas, every care must be taken to see
that large humdn habitation does not grow around them. There should
preferablY be a green belt of 1 to J km. width around such hazardous industries.

In M.e. Mehta v. Union of India (Delhi industrial relocation case),11 the


petitioner argued that hazardous and noxious industries operating in Delhi are
violating the Ivlastpr Plan for Delhi-perspective 2001 as approved by the Central
G(wernment under Section 11 A (2) lOf the Act, 1990 and posing a serious threat
to public health. Under the Act, the hazardous and noxious industries units are
not permitted in Delhi. The existing industrial units of this type shall be shifted
on priority within a maximum time period of three ears. There was also
provIsion that modernization of heavy and large industrial units shall be
permitted to operate on the condition that it will reduce pollution and traffic
congestion and whenever the unit is asked to shift according to the policies of the
plan no compensation shall be paid for assets attained because of modernization.

,;; M C ~'Iellta \' LllIon of India (OleuIllG.sCase). AIR 1987 SC 1091


'I M C. M,'l1t. v Union of India (Delhi industrial relocation case). AIR 1997(11) SCC 327

43
But, these industries had not modernized or changed the process of manufacture
during the last six years they had been operating in violation of the Master Plan.

In such circumstances, the Court directed the Delhi Government to prepare a list
of individual noxious and hazardous industrial units to be shifted and based on
the Delhi Government's list; the Court directed 168 industries in the 'H'
categories tn stop operating in Delhi from 30'h ;'\ovember 1996. The Court also
directed the Delhi Pollution Contwl Committee (DPCC) to identify additional
units that would fall within the 'H' categories. In February, 1998, the DPCC
confirmed the closure of 1,328 industries.

These directions of the Court were opposed by sodal activists and trade unions
as it would lead to unemployment for thousands of workers. While entertaining
their appeal, the Court created entitlements for the workers employed in the 168
industries ordered for closure and relocation. They were guaranteed continuity
of employment during the period of closure and shifting; assured equivalent
terms of employment at the new site; assured full \vages during the transition;
granted one yeiH's wages as shifting bonus; and granted an option to claim
retrenchment compensation if they chose not to move to the new site. In
December, 1996 the Court enhanced the compensation for workers opting for
retrellchnll'nt. rhey were not entitled to six years wages as additional
compensation, over the statutory compensation under the Industrial Disputes
Act of J9.J.7.

The Court also made special provisions for the residential accommodation of the
workers. ,2 However, in subsequent years, failing to get the compensation as per
the judicial directions, the workers went to Court to get justice but the Court
refused to entertain further appeal from them. It was also found that vehicular

12 'vI.e Mehl" v Union of India (Delhi Itldustrial fplocation case) AIR SC 1997 (11) 329

44
emiSSIOns contributed significantly to the increasing number of pollution in
Delhi air rather than industries. But, the Court adhered to its earlier directions
and claimed that relocation and closure of industries had improved the air
quality of Delhi and public health.

TIle Shrimp Culture Case on Coastal Zone management came before the
Supreme Court for consideration in S. Jagannath v. Union of India in 199433.
This petition under Article ~2 of the Constitution of India - in public interest was
filed bv S. Jagannath, Chairman, Gram Swaraj Movement, a voluntary
organisation working for the upliftment of the weaker sections of society in
Karnataka. TIll' petitioner had sought the enforcement of Coastal Zone
Regulation Notification dated 19-2-1991 issued by the Government of India,
stoppage of intellsive and semi-intensive type of prawn farming in the
ecologicall\' fragile coastal areas, prohibitioll from usmg the
wastelands/ wetlands for prawn farming and the constitution of a National
Coastal Management Authority to safeguard the marine life and coastal areas.

On the other h,lJld, the shrimp farming advocates regarded aquaculture as


potential saviour of developing countries because it is a short-duration crop that
provides a high investment return and enjoys an expanding market. However,
the new trend of more intensified shrimp farming in a certain parts of the
country - without much control of feeds, seeds and other inputs and water
management practices - has brought to the fore a serious threat to the
environment and ecology which had been highlighted before the Court by the
petitioner. Given the competitive interests and complex issues in the case, the
Court considered various reports including the Report of the Central Pollution
Control Board on 'Coastal Pollution Control', the Alagiraswamy Report, the

"S Jagdnndtll v Unroll of Indid, AIR 1997 SC 811

45
reports of the NEERI (l\agpur), etc. and then applied the provisions of the Water
(Protection and Control of Pollution) Act, 1974 to arrive at the decision.

The Court held that the purpose of CRZ Notification is to protect the ecologically
fragile coastal areas and to safeguard the aesthetic qualities and uses of the sea
coast. The setting up of modern shrimp aquaculture farms right on the sea coast
and construction of ponds and other infrastructure thereon is per se hazardous
and is bound to degrade the marine ecology, coastal environment and the
aesthetic uses of the sea coast. The shrimp culture indu<;ti'y, therefore, cannot be
permitted to be set up anywhere in the coastal regulation zone under the CRZ
:\otificatioll. It finally directed the Central Government to constitute a high
powered' Authority' under the Environmental Protection Act to scrutinize each
and eyen' Cdse from the environmental point of view, under Sec. 3(3) of
Environment (protection) Act and confer on the authority the requisite power
under Sec. 5. It asked all the concerned States not to issue any license to set up
shrimp farming in coastal areas and no shrimp culture pond can be constructed
or set up within coastal regulation zone as defined in the CRZ notification. This
shall be applicd ble to all seas, creeks, rivers and backwaters. This direction shall
not apply to traditional and improved traditional types of technologies which are
practiced by local fishermen in the coastal low-lying areas.

The Court observed that the setting up of shrimp industries have not only forced
the local people to lose their fishing grounds and to their sources of riverine
seafoods and seaweeds, but they also have to relinquish social and recreational
activities traditionally taking place on their beaches. The authority so constituted
by the Central Government was directed by the Court to implement the
precautionary and polluter pays principle to compensate the affected persons
and damage done to the environment of the coastal areas. Fillallv, the Court
directed the Superintendent of Police/Deputy Commissioner of Police and the

46
District \'tagistrate/Collector of the area to enforce its directions and close or
demolish all aquaculture industries/shrimp culture industries, shrimp culture
ponds on or before 11-03-1997,

The reVIew of the aforesaid cases involving eleven cases against industrial
activities suggest that the Court has been rather aggressive in its approach
towilfds industries for not complying with the Statutory Acts and the
Constitutil)nal provisions aimed at the protection and improvpment of
ell\'ironment. The Court has held that deterioration of environment through
industrial activities or negligence cannot be tolerated as natural resources like
water; land and air are an integral part of the overall human well-being and their
future generation, The approach of judiciary to prevent and control water and air
pollution has been equally strong whether the pollution occur in rural areas like
Bicchir or Patancheru village areas or in urban areas like Delhi or for that matter
whether thl' affected people are rich or poor, The Court has directed to close
down industries irrespective of the parties affected such as workers and
businessman and observed that health and ecology have to be protected even
though it may lead to unemployment, hardship for the businessman and 1055 of
re\'enue to the state, The Court has made it clear that industrial activities aimed
at private profit cannot be allowed to continue and thereby observes that
obligation tll community overrides individual interest. However, the Court's
decision in the Oleum Gas leak case is an exception as it sought to balance the
claims of environment, development and rights of the workers, The summary of
the above selected cases involving industry versus environment is provided in

Table 1.

47
Table 2 1 Selected Supreme Court Judgments on Environmental Cases on Industry versus Environment
---

T I I ,--
i I Judgment
"iamc of the I T~ pI.' of the II 'arne of th ... !

'arne uf' the jUlJJ!;l'\


Petitioner's Responden.',
Outcume
for/against
SI. I I
31l!uments
,'ase and \-car petitioner respondent , arJ!ument the
No I --- I I [n\ ironment
RLEK ,_ Stat" Organisation State or 1 1'1'.llhagwati I Violation of Mining I
Mining generate" ()ualil\ of For
tIllar I Ranganalh Mishra Act and Furcst n.:' enue for thL' ';11\ Ironment to be
I ofUnar
Pradesh. AIR Prad~:,h I ("onsenatlOn Act of
, state. right (0 pn.:scn c-d at the same
I
,
1
19&5 SC 1>52 IYKO \\'ork tim\..' L'nsurcd right to
\\or"_ implementation
of statutor\ act
Ambika Indi' idual State GO\'I Sab~ asachi Violation of Forest Right to trade Forest resource has to For
2 Quarry Works of(iujarat Mukherj«. Conservation Act of and ousincss be preserved
\'. State of KKSmgh 1980
GujaraL AIR
1987 SC 1037
M.c'Mehta ,'. Indi,idual Union of KN.Singh. V iolation of Financial ()ualityof For
3 Union of India ESVenkataramiah StatutoI') Acts constraint. right L'nvironmenl to be
India. (Ganga ('-"ater Pre\'l!nlion to work prl!sl!Tved even if
Pollution and Control of closing down of
Case). AIR Pollution Act of 1974 industries would
198& SC 1037 and Environmental create unemployment
Protection Act of and loss to state
Ino) rcn:nuc.
impkmentation of
statutor) act
M.e. Mehta,_ Individual Union of Kuldeep Singh_ V iolation of Financial Environment to he For
4 Union oflndia India S. Saghir Ahmad Statutory Acts constraint. right presened even if
(Calcutta ('J..!ater Prevention to "iork closing down of
tanneries and Control of industries would
matter). AIR Pollution Act of 1974 creak unemployment
1997(2) SCC and Environmental and loss to state
411 Protection Act of rev~nue.

1986) impkmentation of
~tatLiIOrj act
VCWF, Organi:;ation Union of Kuldeep Singh. Violation of Leather Em ironment to be For
5 Union of India Faizan Uddin. Statuto'} Acts industries prcscncd even if
India AIR R_ Venketasv. al11)- ( \\: aler Prevention generate revenue dosing down of
1996 SC 2715 and Control of for the state. industries would
Pollution Act of 1974 right to \\ ork create unemployment
and Environmental and loss to state
Protection Act of revenue
19&6) and right to
life under Article 21

48
6 M.l'.!,·1chta \ Individual "al~I~1 '\Jaii~--r-~ldCCP -"lIlgh . - ! Violation of Complianc \\ iIh State is the trustee of For
Kamal Nalh I I
I
I " Saghlr Ahmadi ! Statutor: Act, \a\\ s all natural resources
AIR(IQ,)711 I ( \\:mer Prl;!'\ ention and it the duty of
I IS

sec :188 I and Control of the state to protect


Pollution Act of 1974 those natural
and Envmmmental I resources
Protection Act of
19861
Indian Council ()r~:.tIlI"Jtlon , \'!1llln \11 B P Ict.:\an Redd\ \. lolallon of StJtutOf) Fmanclal Quality of environment For
7 for Em Iro-Ll!"gJl Indl'" B ~ Krlpal Aels (\\.'alcr PrC\Cntlon constraints cannot be negotiable
Action \ limon and Control of Pollution Righi to war"-
of India (Blchhn Act of 1974 and
Village EnVironmental
Pollution). AIR Protection Act of 19R61
19%5e 1446 and right to lite
Indian Councd Organisation t huon of AM Ahmedl. KS Violation of Statutory F manc131 Quain}, ()f environment ror
8 for Em Ira-Legal India Panpoornan Acts {Water Prevention constraints, Right cannot he negotiable
Action & Others and Control of Pollution to work
, Union of Act of 1974 and
India & Others Environmental
(Patancheru Protection Act of 1986)
pollution). AIR and righl to life
1998(9) sec
580
M (' Mehta \ Individual Umon of I'N Hhag\\atl. Vlobtlon of Tort LIW Right to \\\)rk. Chlonne:' plant IS For
9 Union of India Inula Ranganath Mlshra. Principle (Llabdlly of Chlonne plan! IS necessary for Deihl al
(OleumGas G L Oza. M M DutL Indu~tTlt:s). Right 10 necessary for the same time
Casel. AIR K NSmgh health development precautlonary'measures
1987(1 I sec activities to protect the
395 environment

-
Me Mehta \ Indl\'ldual Union of Kuldecp Smgh Falzan V lolatlon of Statutory Fmanclal QualIty of CI1\ lranment For
10 Ulllon of India. India Uddm act (AIr Puliutlon Act of constralnt~ cannot be negotiable,
Deihl mdustrial 19RI and ImplementatIon ot
pollution case. em IrOnll1t'lliJI statutor~ act.
AIR 1997(111 Protection Act of 1986 constitutIOnal provISions
sec 3270 Right 10 health under
Article ~ I

S Jagannath \ Indl\'ldual Union of I\:.uldeep Singh. Violation of Statutor) Gennates re\<cnuc Quahty of em'lronment For
II Union of India, Indl3 S Saghtr Ahmad Acts (Water Pre\ClHlon for the state to be preserved and also
Shrimp Culture :.IIlJ Control (11 Pollution ensured the TIghts of
Case, AIR 1997 ·\(1 of I ~7..t ,mJ traditional fisherman,
SC 811 Ln\,lronmental
Protection Act of 1986)
- and rI~ht to life
,
Source: Compiled by the scholar based on All IndIa Reporter of Supreme Court on EnVIronmental Cases (1980-2000)

49
2.4.2 Environmental Cases of the 'State versus Environment' type

2.4.2.1 Environmental Cases against State Agencies for Implementation Failure


In the Tarun Hharat Sangh, Alwar v. Union of India.'4 the petitioner Tarun Bharat
Sangh. stated to be a social action group concerned with and working for the protection
of environment and preservation of wild life. has brought this PIL lor the enlorcement of
cel1ain statutory notilications promulgated under the Wild Life. Environmental Protection
and Forest Conservation Laws in areas declared as a Reserved Forest in Alwar District of
the State of Rajasthan. The petitioner alleged that despite various notifications and the
ckar mandate against carrying on of mining operations in this Protected area.
Government of Rajasthan. illegally and arbitrarily. issued 400 mining licenses to various
persons enabling them to carryon mining operations of lime and dolomite stones inside
the protected area and that consequently diminished the ecology of the area. besides
constituting a threat to the habitat of Wild l.ife.

The Court recorded the submissions made by the parties and observed that "this
is not a case where the court is called upon to shut down an activity being carried
on lawfully, in the name of higher considerations of ecology and environment.
This is a simple case where the court is called upon to ensure observance of
enacted laws made by the state to protect the environment and ecology of the
area. In such a case, the court need not be oppressed by considerations of
balancing the interests of economy and ecology which has already been done by
the State Legislature and Parliament. The court observed that once an area is
declared as a protected forest, it comes within the purview of the Forest
(Conservation) Act, 1980. It becomes a forest land within the meaning of Section
2 of the Act. The effect of this position is that no non-forest activity can be carried
on in the said area except with the prior approval of the Central Government.
Even the state government cannot carryon such non-forest activity in the said
area without prior approval. That mining activity amounts to non-forest purpose

-" 1",un BI,.,.t Sangh. AlwM v. Union of India, AIR 1992 SC 514

50
is beyond dispute. Thus, the grant of mining leases and their renewal by the state
government, without obtaining the prior approval of Central Government. in
respect of the mines situated within the protected forest is contrary to law. The
Supreme Court held that no mining operations of whatever nature shall be
carried on within the protected area. Finally, the court appointed a committee to
ensure the enforcement of the notifications and its directions.

In the T.N. Godavarman Thirumulkpad v. Union of India/ 5 the Supreme Court


in 1996 reinterpreted the Forest (Conservation) Act, 1980 and expanded the scope
of the term "forest". This case is being heard for the last ten years and is a part of
whilt is termed as "continuing mandamus", whereby the Courts, rather than
passing final judgments, keep on passing orders and directions with a view to
monitor the functioning of the executive. This has had tremendous impact and
implication on forest management and governance in India. It now included
within its scope not only forests as mentioned in government record but all areas
that are forests in the dictionarv meaning of the term irrespective of the nature of
ownership and classification thereof. This interpretation has far-reaching
consequences. For example: 1) no forest, National Park or Sanctuary can be
dereserved without the approval of the Supreme Court; 2) no non-forest activity
is permitted in any National Park or Sanctuary even if prior approval under the
Forest (Conservation) Act 1980 had been obtained; 3) an interim order in 2000
prohibited the removal of any dead or decaying trees, grasses, driftwood, and
prevented all commercial collection of Non-timber Forest Products, even if
permitted by Chief \Vildlife Warden, etc from any area comprising a :\"ational
Park or Sanctuary. It was also directed that if any order to the contrary had been
passed by any State government or other authorities, that order shall be stayed;

;s I.1\:. GOdilV,Hllloltl Thirlllllulkpdd \-"_ Union of India, AIR 1997 SC 1:::!:::!8. This is the only exceptional case
which is an ongoing case. The rationale for selecting this case lies in the fact that since 1996, the Supreme
Court of Jndia has been actively engaged in this case and its directions has a major impact on the forest
governance of India.

51
-ij klling of tTCl'~ banned temporarily and sawmills arc rl'locatl'd, and 3) Ill'\\"

,lutilorities, (Ommlttl'l'S and agencics have been set up such .IS the Ccntral
Empowered CommIttee (CEC) and till' Compensaton' AffoTestati(ln
'vlanagement and Planning Agency

Interestingl\', directions were gIven that the Central Empowered Committee


should prepare ,111 inventory of all timber, whether in transit or lying in mills,
and to examinl' whether the use or sale of timber or timber products could be
permitted through the state forest corporations under its overall supervision.
Apart from this, in pne of the interim orders of the Godavarman case, the
Supreme Court asked for measures such as relocation pf industries, identification
of ecologically sensitive areas, consultation with leading institutions and non-
government organizations having expertise in forest ecology, intensive patrolling
and vigilance agdinst exploitation of vulnerable areas and institution of state
h.'vel committccs to cvolve licensing regulations"'. In anothcr Godavarman case
in 1999,:17 the court detected absence of faith on the part of government agencies
and prohibited cutting of trees, even those considered as diseased till further
orders.

In the Indian Council for Environmental Legal Action v. Union of India, '" the
petitioner contended that there had been a blatant violation of Coastal
Regulation Zone Kotification of 1991'" and industries were illegally being set-up,
thereby causing serious damage to the environment and ecology of the coastal
area. It was also argued that the I\linistry of Environment and Forests except for
issuing the main Notification, had taken no steps to follow up its own directions
contained in the main :\otification. The petitioner further challenged the Central

,,, T T\ GOdd\,Ml1ldn ThiHllnulkpdd \. Union of Indld, AIR 1998 SC 769


,- T T\ God.\'drl11dll Thirul1111lkpdd \'. Union of Indld. AIR 1999 SC 43
1" IndiiUl COllnnl for Environmental Legal Actioll L 1:nlO11 of Ind~d, AIR 1996 (S) sec 281
'" DrvC"lopl1lpnt ctlong coastal stretches is severely restrICted under d reglmf' (om pnsmg Ihe eOds-toll
Regulatu", 70ne (CRZ) notification of 1991

52
Government's amendment to the original CRZ Notification of 199}-1['. The main
priority in the writ petition was that the Supreme Court should issue appropriate
writ, order or direction to the respondent so as to enforce the main notification.

According to the respondent i.e., Union of India, while implementing the main
Notification certain practical difficulties were faced bv the concerned authorities.
nll're was a need for having sustainable development of tourism in coastal areas
and that amendments 41 were effected after giving due consideration to all
relevant issues pertaining to environment protection and balancing of the same
with the requirement of development. Accordingly, the Central Government
appointed a Committee headed by Mr.B.B.Vohra to examine issues relating to
development of tourism and hotel industry in coastal areas and to regulate the
same, keeping in view the requirements of sustainable development and the
fragile coastal ecology. However, the Central Government did not follow the
recommendations made by the Vohra Committee to amend the earlier
Notification of 1991.

Considering both arguments and taking into account Vohra Committee's report,
the Supreme Court held that the newly added provisions which give the Central
Government arbitrary power, the exercise of which mav result in serious
ecological degradation is hereby quashed. :\0 suitable reason has been given
\o\'hich can persuade the court to hold that the enactment of such a provision was
necessary, in the larger public interest, and the exercise of power under the said
provision .",ilI not result in large scale ecological degradation and violation of
Article 21 of the citizens living in those areas. On the other hand, justifying the
amendments, it was contended by the Union of India that in case of creeks, rivers

TIlt' lIldlU CO(lstdl LOllf> Notification of 1991 SE:'"\'t'wl): ff"siriclf"d .:lily development activity to a distance of
":'11

100 m from the High Tide Line in thE' (odstal regions of the country Hm.-\:eveL the Central government
made ilnl<:>ndments to the main notification il11993 and reduced the restrictIOn to III distanfE,'" of 50 m from the
Higb Tide Line to rarry out development activities imd also to encourage tourism m coastdl regions.
" Imlidn Coun,il for Environmental Legal Action v UllIon of India, AIR 1996 (5) 5CC 281

53
and backwaters, it is not possible to ha\'e a uniform basis f{lr demarcatlllg npn-
development zone (NDZ), TIle zone shall be Tl'gulated based UP{)]l e,Kh
individu,ll e,lse, How\.'\'er, the petitioner argued that it i~ nil dllubt trUl' that thl'Te
can be no uniform basis for demarcating NDZ dnd it will depend upon the
requirements by eaeh State authority concerned in their OW11 management plans
but no rca son has bl'cn given why in relation to tidal rin'rs, there has l1l'l'n a
red uction of the ban on construction from 100 metres t(l SO metres. Even the
Vohra committee which had been set up to look into demands of Hotel dnd
Tourism Industry had not made such a proposal and, therefore, the Court held
that such a reducti(ln does not appear to have been made for anv valid reason
and is arbitrary, In the absence of any justification for this reduction being given
the only conclusion which can be arrived at is that the relaxation to 50 metres has
been done for some extraneous reason and not made in the larger public interest.
The amendment to the :'v1ain ~otification on Coastal Zone \1anagement of 1991
is, therefore, contrary to the object of the Environment Act, and has not been
made for an~' valid reason, and is, therefore, held to be illegal.

In the Delhi Vehicular Pollution case, Supreme Court advocate M.e Mehta filed
a Public Interest Litigation (PIL) suit in the Supreme Court against the Union of
India in 19H5, charging that existing environmental laws obligated the
govcrnment to take steps to help reduce the pollution in Delhi in the interests of
public heillth n In 1986, the Court directed the Delhi Administration to file an
affidavit spccifying steps taken by it for controlling emissions of smoke, dust and
noise from vehicles plying in Delhi"' to "protect the health of the present and
future generations," In 1990, based on the opinion of the l\linistrv of
Environment, the Court acknowledged that heavy vehicles including trucks,
buses, ilnd defense vehicles are the main contributors to the air pollution

"~1 C ~leh'", LllIon of India, \\", PelLlion (Civtl) 1':0. 13029 of 1985
n M C ~lehl'" LIlIOIl of Indid, order <idled 5 AprIl ~002 (hereafter Dellu PollutIon Case 2002)

54
problem.-l~ In 199-1, in its first action to regulate the type of fuel used in the
buses, the Court mandated the phasing out of lead from all fuel in India's four
largest cities •• Delhi, Bombay, Calcutta, and Madras~5. In 1996, the Court ruled
that all government vehicles in the Delhi city only be converted to compressed
natural gas (CNG)-lb

But, the Delhi government failed to comply with the directions of the Supreme
Court and situation became worse due to the gross negligence of the
Governments and the operators and also to protect the competitive interest of
\·arious sti1keholders to find other alternatives than CNG as the single alternative
fucl to reduce pollution in DelhW. However, the case took on its current
significance in 1998 when the Court based on the Bhure Lal Committee's48
statutory recommendations mandated that all buses in the city must be
converted from diesel fuel to C\JG without any conditi()J1 bv March 3 L 2001 and
extended 5ubseljuentlv upto September 30,2001.

Notwithstanding the problems created bv different stakeholders, the Supreme


Court followl'd <lIld enforced the recommendations of the Statutory Committee
which wen' made mandatory and enforcement was sought without any
condition to protect the health of the people and to improve and protect the
environment in Delhi. The Supreme Court also ensured the implementation of its
orders through continuous mandamus. In this way, the judgment is considered
to be an imp(lrtant and landmark decision for the maintenance of clean air in
Delhi and to ensure a healthy environment to the people of Delhi. However, the

-H M.e. 1\·1ehtol'l \.
Union of fndM. order ddled 14 NO\'t"mlw-, 1990. NlIl(' \'<"us Idler, an official stud)'
fonducted b\' the Bhurt> L~I Commitlpe. dn ch.iv ISO I}' bOdrd to the goverllnlt'IlL d~tE'nnined that diesel
emlssions t\1~ H'Gpollsiblt' for 90~~ of the vehicular emissions of pf\.-J and NO, over ~he city (lvLC Vle-hla vs.
Lmon of Indld. order dated 16 ApnI1999).
"M.C Mehl., Cnion of India, order dated 21 October 1994
." !>I.C Mehta v.Lniu" of Indld. order dated 26 Ap,,11996.
oc CSE (1990), 510w Murder
~~ ThE." Central Govnnment SE."t up the Environmental Pollution Control -\ulhority head('d OJ: ~h. Bhure Lal
in J998 under St:>dlon 3 of Enviromnental Protection Act of ] 986.

55
Supreme Court failed to understand the hardship that had to face by the
commuters due to strike by bus owners for not getting CNG and government's
apathy to give subsidies for purchasing new vehicles and technology to convert
vehicles into CKG. It emphasized that public health cannot be taken for granted
and government needs to ensure it without pleading for any further time-period,
absence of technology and infrastructure etc.

The first case of considerable importance on sanitation and drainage system is


the one in Ratlam Municipality v. Vardhichand case~9 which was not a public
interest petition but litigation was in the nature of public interest under Section
133 of Code of Criminal Procedure asking for an order to the Municipal Council
of Ratlam to dn its duty toward the members of the public by stopping the stench
and stink caused bv open drains and public excretion bv the nearby slum-
dwellers. Another contributon' cause to the insufferable situation was the
discharge from the Alcohol plant of malodorous fluids into the public street. In
such circumstances, the Supreme Court gave several directions to the Ratlam
l\lunicipality for maintenance of 'public health'. The Supreme Court agreed with
the directions given by the Magistrate court and observed that "public nuisance
is a challenge to tIll' social justice component of the rule of law. A responsible
Municipal Council constituted for the precise purpose of preserving public
health and providing basic amenity of public conveniences cannot run away
from its principal duty by pleading financial inability. Decency and dignity are
non-negotiable facets of human rights and are a first charge on local self-

governing bodies.

However, unlike the Magistrate's approach that cultured, prosperous and


educated people live in this area and therefore, the Municipality needs to ensure
proper drainage system, the Supreme Court held that in India 'one man one

56
value' is the democracy of remedies and rich or poor the law will call to order
where people's rights are violated. Public nuisance in Ratlam affected a large
comlllunity of people including both rich and poor and awse from a combination
ot diftused Cduses: privdte polluters, poor slum-dwellers, slack and under-
findnced enforcement agencies, and haphazard town planning. In view of these
peculiarities, the court tailored the existing public nuisance remedy5() to provide
relid. The judgment held that local statutory bodies cannot escape from their
con-;titution,lI duties and more specifically when it comes to the question of
ensuring public health facilities to people. The court forced the municipality not
on'" to pfll\'ide proper sanitation and drainage within a specified time-period in
the specified Ward No. 22 but also all wards to be benefited without litigation,
tlll'rebv enabling public to live with dignity. The court also directed the
municipality to slim its budget nn low priority items and elitist projects to use
the ~avings on sanitation and public health.

[n most of till' ~ubsequent cases, the lead provided by Ratlam case has been
widely followed and directions have been issued tn the Municipal Corporation of
\'Minus town'> and cities to discharge their constitutional duties. For example in
the B.L. \Vadhera v. Union of India case,51 the petitioner argued that the
\lunicipal Corporatit1n of Delhi constituted under the Delhi :Ylunicipal
Corporation Act, IY57 and the New Delhi Municipa[ Council Act, 199-1 are
wholly careless in the discharge of their duties under law for the collection and
disposal of wastes in the city. On the other hand, the respondents pleaded that
the\, had no infrastructure for disposal of wastes, no financial assistance and
employees to carry out such a huge task every day. l'\otwithstanding the pleas
made by D:'I/IC the Supreme Court held that "It is clear from various provisions

. . - Cw'(tion 9101 the Codl:' of Clvd ProfPdufC 01 1908 m~kes clear that rem("dies for public nuiSdnce mclude: a
(rlluina) prosf'(lItion for tlw offE'l1I.:e of cilusing a pubhc nUisance; a criminal pro(eeding before a magistrate
hlr rE:'ll\oving.:l publiC nuisancE', or it (ivil actIOn by the Advocate General or by two or more members of the
puhlic:- with permission of th~ courL for d declaratIOn, an injunction. or both.
" B L W.,i1wr. v Gnion 01 Indi. case, AIR 1996 SC 2969

57
of the Delhi l\lunicipal Corporation Act and the )Jew Delhi \1unicipal Council
Act that tIlt: \Iunicipal Corporation and the !'vlunicipaJ Council constituted under
Acts are under a statutory obligation to scavenge and clean the city of Delhi. It is
mandatof\' for tlwse authoritips to coJlect and dispose of the garbage/waste
generated fWIll \'anous sources in the city. The court stated that the authorities
enh'usted with the work of pollution control, cannot be permitted to sit back with
folded hands on the pretext that the\, have no financial or other means to control
pollution and protect the environment. Apart from the rights guaranteed under
the Constihltion, the residents of Delhi have a statutory right to live in a clean
city"~~.

In like manner. issue of urban solid waste management came up for


consideration in till' Almitra Patel v. Union of India case in 199631 . In this case,
the petitioner :\lmitra Patel of Bangalore filed a writ petition under article 32
before the SUprellll' Court, seeking writs against the state and principal
municipalities to implement the well managed Municipal Solid Waste (MSW)
disposal prpgr,lllln1l' In ~'Iarch 1997, the Supreme Court directed the
respondents t(' furnish details in respect of existing MSW practices adopted by
them. Since the affidavits filed bv some municipalities and states were
inadeq uatl', III A pri!' 1997 they were asked to report whether the
recommendations made by the High Power Committee34 set up by the Planning
Commission in 1':195 and the 1994 report of the Cenh'al Pollution Control Board
on the milllagl'lllent of municipal wastes, had been implemented. The States
failt'd to fu rnish all the details a bout the steps taken for the good MSW disposal
practices. The Court found that the municipal authorities had failed in their
duties despite employing 20 tn 40 thousand workers to keep the city clean.

',: BL Wadlwrd v Llllon of India Cdse, Am 1996 SC 2977


".Allllllr. ratel v. Ulllon of Ind,. Cdse, All{ 1997 (6) SCALE 10 (SP)
<'-l GovE"fnmcnt of Lndia, Plannmg COlllmission, Rf"port of High PO\\len;l,j COllllHlttee- 011 Urbrtn Solid Vv'aste

Mdn.g~l1l~nl inlndoa (1995)

58
Referring t,) thl' precedent laid down in the Ratlam Municipal Case and B.L.
\\'addua elSe. till' Court hl'ld that it is clear from various provisions of the
!\ III JlJCiP,ll C ,)rpor a tion Acts ina II llletropolitan cities tha t \,1 un icipa I Councils are

undl'r a stahlhll'\' obligation tn scavenge and clean their respective cities. It is


J11,lJ1d,lt"J'\ f,'r these !\(unicipal Councils to collect and dispose off the
garbagl'l \\',lstl' g"lll'rated from various sources in the cities. The Court has no
hl'~ltatl(1n in (lbsl'rving that the \(unicipal Councils have been wholly remiss in
tIll' )wrforlll.lnCl' (1f tlwir statutory duties. Apart fTOlll the rights guaranteed
undl'r the C(1nstitunon the residents of till'se cities have a statutory right to live in
a ck,m cit\' Thl' Court directl'd thl' \lunicipal Councils to perform their duties
under till' l,l\\'.nll' Court held that non-availability of fundo;, inadequacy or
inl'llici,'IK\ ,,' the .,taff, cannnt bL' pll'adl'd as grounds for non-perfnrmance of

Simil.uh. in ('N'). thl' Research Foundation for Science, Technology and


Natural Resource Pol icy'" brought to the notice nf Supreme Court that the
imp,'rt and dlllllplllg of h,lz.udnu'> waste has caused serious and irreversible
d,llllagl' ttl thl' l'll\'Il'llnml'nl, flora ,1lld fauna. In August 1997, the Court noted
thai llL-spitl' till' lap"l' nf several Yl'ars. thl' authorities had not taken effective
steps for impkm,'nting the Hazardous Wastes Rules of 198957 . The court held
that" We are left with the impression that even now all the authorities do not
appl',lf to apPH'ciatl' the gravity of the situation and the need for prompt
nwasures being taken to prevent serious adverse consequences if the problem is
11I1t tackled immediately"5x.

"B L W.d~hr. \ Union 01 IndIa. AIR 199bSC 2%9


So Wnll'('IIIIO" (CIVIl) ~o 1>57/1995
\7 In (,X<'rC"(, of tlw pow .. " ronferr.. d by 5<cllOns 6. Band 2S of the Environment (Prolpclion) ACI, 198& (29 01
1986). the Cl'ntritl GO\'t'"rnment hereby prepared rulC's for the lIIanagement ot hdzardous ""astE"S
,. Resedrch Foundation for Sewnre. Technology and ">Jotural Resource Poticy v L'nion of India, AIR 1'197 (5)
SCALE 495

59
In this case of hazardous waste, the Supreme Court intervened because the
gUl'ernment had signt'd the Basel Conventiono'J but failed to change the rules to
check the import of hazardous waste"O TIl(' directions of the Court led to set up
regulatory mechilllisms and procedures for the import transport, storage,
recvcling, and final disposal of hazardous waste. TIle Supreme Court's final
judgment pn till' 1995 petition set a detailed timetable for such actions as
amending \'ari(lu~ sets of rules; reviewing lists of hazardous waste; setting up
testing Iaburatoril.'s at ports to verify the content of declared hazardous waste;
construction of secured landfills and treatment, storage, and disposal facilities
(TSDFs); closure of industries violating rules; and disclosure of such information
il) communities. While giving direction III this case, in \'\ay 1997, the Court
banned the import of hazardous wastes as an interim measure. The Supreme
Court also cPllstituted a committee to oversee implementation of its judgment.
ThL' SUprl'IlH' Cllurt \(ollitoring Committee (SCMC) reported quarterly to the
court ()n prpgress being made toward each pf the points in the timetable. TIlese
directions were aimed at strengthening and strictly implementing the existing
Hazardous \\' astes Rules~1 to prevent anI' harm to the quality of environment
and human beings.

The judicial decision in the above eight cases against the state agencies for their
failure to implement laws and policies effectively to protect and improve the
1'Ilvironment has strongly given the message to state agencies that they cannot
escape from their constitutional dutil'S in ensuring people a healthy environment

'l".' BrlSP! Convpntion {I989} is. "'1 international trerlty that \-\IdS deslgnf"Ci to reduce th4" movements of
hrlZdrc.iolls wastl" lwtwt'l"n ndtions, dlldspecifically 10 prevent transfer of hazrudous Wdstp from developed
to I"ss developed munlrws (LDCs).
,,:: 5edion 2 (e) of HlP EnvlfOnmf"ntdl Protection Act of 198b riefllU"s d 'hc'lZdrdoU5 subslilllct'"' to me~n any
subst~lnfe or pr~p(\r(ttJOll whi\'h. by reason ot its ch(>mifdl or physlco-(hemical properti{'s or handling. is
lid hie to caus<" harm to humcUl bf"ings, other li\.'mg (H:'dtures, plants, nuero-organisms, property or the
environment
t>1 'n January 2000, the CE'ntrdl Government mtroduced amendments to tilE' Hazardous \'Vastes Rules of 1989.
The amendmE:'llts {"xtend th£> dpplication of the Rules to hitherto unrfgulated processes and wastes,
strengthen til(> ('xisting perIlllt system and introduc(> 01 new set of regulations to restrict rhe export and
import of hazardous wastes for recycling dud reuse.

60
on the ground that they do not have financial resources, infrastructure and
human resources. The Court has made it clear that everv citizen has a
fundamental right to live in a healthy environment and hence the State should
make efforts til drive resources to ensure those rights through cutting down its
budget in other iHeas of development or investment from elitist oriented projects.
The judiciary has strongly felt the need to protect individual rights i.e., right to
health and environment by sidelining all other considerations of the state and
ex,'cuti\'e bodies. t>.\ore specifically, the Court has realised that since the poor and
disadvantaged sections of the society are the most affected due to environmental
pllllution, the State must ensure that these people are not to be deprived of their
right to lin' in il healthy environment. Similarly, the Court has directed the state
to ban the import of hazardous wastes as they not only cause harm to
em'ironment but also to the health of poor worker .. who are engaged III

col/ecting and disposing off these wastes. Likewise, the Court has directed the
stall' not to f"l/ow any indiscriminat<lrv polin' to use forest resources for
industrial <1cti\'itr,'s or in order to generate revenue for the state by allowing
industrial acti\'itil's in forest areilS. The Court has also expressed its
disdppoinhnent over the failure of state agencies in discharging their
Constitutional dutres for the protection and improvement of forest areas and
wildlife protection

2.4.2.2 Environmental Cases agaist Public Infrastructure Projects of State


[n the Tehri Bandh Virodhi Sangharsh Samiti and others v. the State of V.P.
and others, a petition was filed in public interest in 1985 by the Tehri Bandh
Virodhi Sangharsh Samiti before the Supreme Court, seeking a restraint order
against the construction of the dam. The objection of the petitioner was that the
appropriate authorities had not taken into consideration the safety aspect as the
project posed a serious threat to the life, ecology and environment of the entire

61
northern India, as the site of the dam is prone to earthquakes62 After this petition
was filed a number of persons intervened and the parties filed affidavits and
counter affid,wits. The matter was heard by the court at various stages.

The projL'Ct was illitially considered by the Environmental Appraisal Committee


(EAC) of the t\loEF and the said committee in 1990, taking into consideration the
geological and seismic setting, ecological and social impacts accompanying the
project and the C(lsts and benefits expected, came to the unanimous conclusion
that the Tl'hri Dam Project did not merit environmental clearance and should be
dropped"'. However, the Secretaries of other !'v1inish'ies including Ministry of
Power and Energy considered the report of the EAC and concluded that the
safety aspects llf the dam and earthquake engineering could be best looked into
by a High Levd Committee (HLC) including the scientific ad specialized
organizations such as Geological Survey of India, National Geological Research
Institute, Cl'ntral Water Commission and Earthquake Engineering Deparhnent of
Roorke. The High Len'l Committee assumed the worst scenario of the possible
occurrence of large magnitude earthquake in the area and rendered an opinion to
tIll' effect in April 1990 that the design of the Tehri Dam incorporated adequate
safety measures to ensure an adequate and well evolved seismic design for this
high dam.h~

The court relying on the HLC appointed by the Government of India and Prof.
Jai Krishna's report concluded that the enion of India considered all questions of
safety of the project in various details more than once. In such circumstances, it
was not possible to hold that the Union of India had not applied its mind or had

"' Telui Sondh Vlrodhi Senghe"h S.miti and others v the Stdte of UP and others, AIR 1990 Supp {l) SCC
44
'" Tehri Sandh Vtrodhi Sanglldrsh Semiti aJld others v the State of U.P. and others, AIR 1990 Supp (I) SCC
45
,,' rehri Sandh Virodhl Sanglldrsh 5al111tl and others v the State of U.P and others, AIR 1990 Supp (1) SCC
46

62
not considered the relevant aspects of safety of the dam. Dismissing the petition
the Supreme Court held that the Court did not possess the requisite expertise to
render any final opinion on a technical matter and the Court could only
investigate and ildjudicate the question as to whether the Government was
conscious to the inherent danger as pointed out by the petitioner. And the court
is satisfied with the l'ffnrts made by the Union of India to ensure the safety of the
dillll. The p~'titioner, therefore, fails and is accordingly dismissed. o5

In the Dahanu Taluka Environment Protection Group and another v. Bombay


Suburban Electricity Supply Company Limited and others case,~h the petition
filed an ap~'edl d~ain<;t the decision pf the Bombay High Court whereby the High
Cllurt had upheld the silnction granted to the Company for setting up a thermal
power plant The company had s(lught tn set up various thermal pnwer plants at
\·arious sites in :\laharashtra, and Oahanu was one of them. An Appraisal
Committee WilS l'stablislll'd to check the viability of the pwject at Oahanu. The
Appraisal Committl'e WdS pf the opinion that Dahanu was not suitable for setting
up of the plant"~. The government, however, gave its approval without disclosing
am· redson for rl'jecting the Appraisal Committee's report. The Court while
fl'll'cting this COl1tl'l1tion held that views of the Appraisal Committee do not
represent the decision of the gm·ernment and the same cannot be binding on the
Central Government"". As far as the second objection of the petitioner regarding
the fact that the approval was contrary to the Environmental Guidelines for
Thermal Pmwr Plants, 1987, the Court held that the guidelines (this was
rl'garding thl' argument that the plant was not outside the specified distance

,,; T.I", Bandh \""odlu 5angl13fsh Sall1lti and olhers v. the State 01 t.: r anti others •.-\IR 1'190 Supp (I) 5CC
50
/H. Ddhanu T~lukd Environment Protection Group and allotht'"r \. Bomb<ty Suburbdll Electricity Suppl~f
Companv Llllllted and others case, AIR 1991(2) sec 539
t'~ Dahanu T~ll1kd Ellvironl1lt'nt Protection Group and tlnothN v Bfll110ay Suburban He~:tri(ity Supply
Company Llllllt ..d and others case, AIR 1991 (2) sec 542
hit Dalumu TdluKd Environment Prolectlon Croup and anoth~r v Bumb(l), Suburban Electricity Supply
Companl' Lil11l\,·d and others case, AIR 1991 (2) sec 543

63
fflllll the sea and the forest) are only intended as a safeguard against possible
pollution effects and cannot be treated as rigid and inflexible irrespective of local
conditions. The third argument raised by the environmentalists was regarding
the Coastal Regulation Zone (CRZ) guidelines as the project was in flagrant
vi(llation of that as well. The Court rejected this argument on the same ground
that it had rejected its earlier arguments as the CRZ notification was considered
while giving till' chuance. And, finally, the court was satisfied and held that the
c1l'<lranCl' til the thermal power station was granted by the Central Gtlvernml'nt
aft"r fulh considering all aspects and, in particular, the aspects of the
en \' ironnll'n t,ll poilu tion ny .

In the Banwasi Seva Ashram v. State of UHar Pradesh and others case,7il the
petitioner alleged that the state had ignored the claims of the tribal people over
the use of forl'~t r,'sourCl'S and allowed :--lational Thermal Power Corporation
(:\ fPC) to set up .1 thermal power plant in the forest area. In 1983, the Supreme
Court prohibltl'd l'\'jction of the forest dwellers pending investigation of their
claim over till' fllH'St. It also ordered the formation of a high powered committee
to investigate thl' claims of the people over the forest. In the meantime, the NTPC
intl'n'elled ill the case, requesting that the court lift its order prohibiting evictitlns
of local people and allow the NTPC to take possession of land for the project. The
court responded immediatelv lifting the prohibition of evictions on all 1800 acres
of Inrest as fl'l)lIested bv the NTPC for the project (Divan and Rosencranz, 2001
p3)7).

Allowing NTPC to set up a thermal power plant the court held that "forests arc a
much wanted national assets. On account of the depletion thereof ecology has
been disturbed; climate has undergone a major change and rains have become

,,'.I Ddhanu Talukd Emnroullwnt Protection Group and C1l1other v. BOlllb,lY Suhurban Electricity Supply

Company Limiled _nd others (dst', AIR 1991(2) SCC 54R


TO Bdllwasi SeVd Ashram v. Sldte of CltM Pradesh and others cast'. AIR ]()87 5C 374

64
scanty. TIlese h,1\"e long term adverse effects on national economy as also on the
hl'ing proCl'SS. At the same time, one cannot lose Sight of the fact that for
industrial growth as also for pnn'ision of improved living facilities there is great
dem,md in this country for energ\' such as electricity. A scheme to generate
c1ectrici ty, therefore, is l'q ua II\' of nationa I importance and can not be deferred "71.
The court al<;o directed the NTPC that it shall strictly follow the policy on
'facilities to be gil'l'll to land oustees' as placed before the court in the matter of
lands which are subjected to acquisition for its purpose. It is agreed that when a
cl,lilll is est,lblislll'd appropriatL' title deed would be issued to the claimant within
a rl'<lson,lble time b\' the appropriate authority. The court also appointed a
C\)mmlttl'l' to supl'lYise the operations and o\'ersee the implementation of its
d irl'ctions.

One of the Illost CllIltr\l\'crsial judglllents on environmental cases was rendered


bl' the SUprl'llll' Court III till' Narmada Bachao Andolan v, Union of India and
others case~:. This caSl' came befl)re the Supreme Court in 1994 when the NBA
filed a writ pl'tition ch'lllenging various stands of the Go\'ernment of India and
issues rel'olvlIlg MOllnd the SanJar Sarvour Project". The NBA petition argued,
among other things, that the Government of India had not considered all
rell'I'ant Issues and, III particular, that it had not given project affected people to
make representation before it. The petition intimated that these omissions had
lL'd to a f),nH'd project with gl'lJssly underestimated social and environmental
co<,h and \'iolations of human rights and damage to the environment. [n
conclusion, it demanded that a review of the project was urgently needed. ~'fore

~pecificall\', it asked the Court to either order a stoppage of the project and
implement proposed alternative or direct the Union of India to set a new tribunal
to review the project which would include partiCipation of project affected

-, BdllWd~i St'V,' Ashrrl111 \'. SlatE" ot Lltdr PrddE:'"sh dlld lltlU'rs casC'", AIR 1987 SC 376
-1 :"'-Jarnladd lJdrhao Andolan v. Union of lnd ia and otlwrs (dSP, AIR 2000 SC 3751
., Writ Petillon 1'\0.319 of 1994, \lB'" v Utllon of India & Otllers

65
people or that the court should set up an independent team to review the whole
project. In response to all the issues raised by the NBA, the Supreme Court first
dealt with the scope of the NBA petition and decided to restrict it to relief and
rehabilitation issues. It observed that a conditional enviwnmental clearance
given ill 19R7 was challenged only ill 1994 and stated that the pleas relating to
height of the dam and the extent of submergence, environmental studies and
clearance, hydrology, seismicity and other issues, except implementation of relief
and rehabilitation, cannot be permitted to be raised at this belated stage 74 ,

[n Ct)]1c1usion, the Court held that conception of a project is of the Government


and onl\· thing that a Court can dl' is to ensure that the system works in the
malll1l'r cll\'isaged. In rcspect to public projects, the Courts should not become
an ,1PPHW,11 authority, In a democracy, welfare of thc people has tl' be the
concern ()f a responsible Government. It also held that experience of the past had
shown that a properly drafted relief and rehabilitation would improve living
standards of the displaCt'd people, As examples, Bhakra Project and Tehri Project
were quoted. The fact of the \vater being supplied to the drought prone areas has
been taken and accepted on the averments and contentions of the Government
without reall\' examining the authenticity of the same. The Court finally
disposed. of the case \,,-ith a few directions. TIle Court (2:1) dismissed the public
interest petition filed by NBA and upheld the Government decision,

TIll' Court's rl'SpOnSl' to the above four State initiated public infrastructure
pwjects violating environmental laws and policies has been quite different from
its pro-environment approach IJ1 the protection and improvement of
environment ill other enviwnmental cases. Unlike its pro-environment stand in
water and air pollution and forest degradation cases where judiciary came down

" \,r"Jontv judl\IllPllt, NMmad" BadMO Annolan v Union of India and others case, AIR 2000 (7), SCALE p
34

66
heil\'ily ogainst stale agencies, the Court has followed a hand<;-off approach in
environmental problems due to infrastructure projects carried out and promoted
bv the state. Cnlike in other environmental cases where it has resorted to
independent expert reports, in case of conflicting viewpoints, the Court simply
relied on state appointed committee to arrive at the decision even though there
han: been differences among expert members. The Court has also failed to
balance the claims made by different groups involving rights of the aff<i'cted
people ami the concern for environment. The dissent opinion written bv Justice
S. P. Bharuchha on conditional environmental clearance given bv :Vlinistry of
Environment and Fore<;t in NBA v Union of India case further substantiates the
fact that the Cpurt had not taken multi-dimensional aspects into consideration in
arriving at the decision, The Court had failed to follow its own precedent 10
recnncile diff\'n'nl claims 011 envir0l1ment, development and human rights, The
summary 01 thl' <1bovt' twelve selected cases inv01dng state versus environment

is Fr0vided in Tabl\' 2.

67
Table 2.2 Se ecte dS upreme C ourt Ju d19ments on E nvuonmenta IC ases on S tate versus Envuonment
~-

Judgment
I fur/llgllin!ool
SI. :\allll' of Ihe eloise Type of Ihe l\ame of the ){espondent'~
~am(' of the jUdgl'S I'rtitione.-'s argument, Outcome the
1\0 and Y~ar petitioner respondt'ot IIrgument
[m:ironmenl

I TBS. Alwar \ ()rgJIl15Jllon Union of M N Venketachallah Violation of Forest Ac\ of Generates revenue Protection of endangered h)r
Umon of India. IndIa K J(lyachandra Rl'dd, 1980 and \~'IIJ l.lfe fur the state specIes and fi)rcst
AIR 1990(4)Se Protection Act of \472
519
,
- T Indl\ Idual Union of J S Vama. ViolatIon of Forl'st Act of ~ort'''t for mdu"trlal Implementation of Forest For
N Goda\arman \ India B N Knpal 19RO act!\ Illes and other Act
Umon of IndIa. de\ elopment
AIR 1997 se aell'ltit''' flghLs of
1228 forest dwellers

l Indian Councd Organisation Union of Kuldeep Singh, Violation of Coastal Zone Development Quality of environment For
for India S Saghlr Ahmad NotifICation of I YYI and activItieS are cannot be negotIable
Em ironmental B N Krtpal En\ Iron mental ProtectIon necessary for
Legal Action \ Act of 1986 tourism which will
Umon of India. generate revenue
Coastal Zone for the state
Managemenl
case. AIR 1996
(5) scc ~81
4 M.e Mehta \ IndIVIdual Union of A S Anand. V lolatlon of Statutory act Non- A\ddabdlt~ Quality of env Ironment For
Union of India & India B N Knpal. V N khan: I Air Pollution Act of ufCNG cannot be negotiable
Ors. (Vehicular 19R I and EnVIronmental Allernall\'(' fuel
Pollutloncase ). Protection Act of 1986
AIR 1998(6) Right to health under
sec nO Article 21
.\ Ratlam Indl\ ,dual Ratlam V R Krishna Iyer 0 V l(Jlatl(Jn of Statutory act Lacking fmanctal Right tn a healthy and For
Mumclpallty \ MUniCipal Chmnappa Redd) t Bhopal MUniCipal Act) capacity environment IS non-
Vardhlchand CounCil m:gotlahlc
AIR 1480 se
1622

6 B.L Wadhera \' Indl\'ldual Union of Kuldeep Singh. V lolatlon of StatutOf\ act FmanCial Quality of envIronment to I'or
Union of India. IndIa S Saghir Ahmad (Deihl Mumclpal Act) Constramt Poor be prescr\'t.~d
AIR 1996 se Statling
2969
7 Almltre Patel \' Indl\1dual limon of S Verma. B N Knpal V loJatlon of Statuto!,) act Fmanclal Quality of environment to For
Umon of India, India V N Khan: ,En"'lronment protection Constramt Poor he presencd.
AIR 199R (2) Act 1986. Sec :2 3 Stafling. lack or Impiementatlon of
see 416 I mfrastructure statutory act

oX
8 RFS rNRp ()rgJnisation Unil)l1l..)f Il.N.Kripal. Implementation of I Lac. of Qual it: or ern ironment For
\'.Union of India YN .• hare I ~azardous \\' astcs knm\ ledge and to be prl!st:rved
India. AIR Rules. 1989 I mformation
1999 (i) see
223

9 TAYSS and ()rganisalion State of KNSingh Questioning the Compliance with Construction of dam Against
others \". the L1ttm Kuldeep Singh validity and security of laws. Dam is for larger interest
State of Littar Pradesh the project. Violation necessary for
Pradesh and of Environmental development
Others Protection Act of 1986 activities
Supreme Court
of India. AIR
1990 (4) se
519
10 DTEPG and ()rgani~ation State Gml Violation of Compliance \\ ilh Construction of Against
another \'. of S. Ranganalhan. em ironrnental la\\'s. ElcctrH.:it: thermal po\\cr pl:.mt
Bomba: Maharashtra S.C. Agara\\al. ND. Prol~ction Act of 1986 is necessary for for larger illterl..'st
Suburban Ojh. development
Elcctricit::- activities
Suppl)
Company
Limited and
others case,
AIR 1991(2)
see 539
II BSA v. State of Organisation State Go,\. P.N.Bhagwati. Violation of Forest Act Compltancc \\ ith Construction of Against
Uttar Pradesh. of Uttar Ranganath Mishra of 1980. right to laws. Thermal tht..'rmal rO\\t:r plant
AIR 1987 SC Pradesh Ii, diholld under po,\cr plant IS for larg...:r mlcrL'sl
374 Artid~ 21 n~ccssar::- for
development

12 NAA \. Union Organisation Union of A.S.Anand. A.N. Qu~sti{)ning the Compliance with Construction of dam Against
of India India Kripal. S.P. validit) of the project. laws. Dam is for larger interest
Aharuchha Violation of necessary for
fundamental right to development
life under Article 2 L activities
Environmental Impact
Assessment
Notification of 1994
Source: ComplIed by the scholar based on All IndIa Reporter of Supreme Court on EnVIronmental Cases (1980-2000)

69
2.4.3 Environmental Cases of the 'Community versus Environment' type
In the Pradeep Krishen v. Union of India/ 5 the petitioner drew the attention of
the Supreme Court in 1996 under Article 32 of the Constitution of India
challenging the legality and constitutionality validity of an order issued by the
state of Madlwa Pradesh, Department of Forest in 1993, permitting collection of
tendu leaves from Sanctuaries and National Parks by villagers living around the
bplll1daries therellf with the stated object of maintenance of their traditional
rights. The petitioner argued that this act of the state government is violating the
provisions of the Wild Life (Protection) Act, 1972 as well as petitioner's
fundamental right guaranteed bv Article 21 and 1-1 of the Constitution and is
cven otherwise inconsistent with the Directive Principles of State Policy
contained in Article -tHA and the Fundamental Duty cast on every citizen under
clause (g) of Article 1 A of the Constitution of India.

On the other hand, the respondent Madhya Pradesh Government argued that
permission to collect tendu leaves was given with a view to providing
employment to the people living in the vicinity of the \:ational Parks and
Sanctuaries and all efforts had been made to supervise their activities so that
thefe will not bL' am' danger to the flore, fauna, trees and wildlife in the National
Parks and Sanctuaries. Apart from the State Government, the local people also
intervened in the proceedings of the Court and argued that they are vitally
interested in the present proceedings as they largely depend on minor forest
produce for their survivaL They contended that they have been enjoying this
privilege for generations and the denial of this privilege to the small tribal
population located around the sanctuaries would result in ruination of their
entire tribal population since their survival is on minor forest produce only.

"P,"deer K,,<lwn, Union of India, AIR 1996SC 2040

70
The arguments milde bv different parties in the litigation led to the Court to
(lbse]"ve that since neither the traditional rights of those living in the vicinity of
these parks and sanctuaries have been acquired, nor have provisions been made
til either compensate (lr rehabilitate them, the final declaration under Section 26A
and 35 of Wild Lifc (Protection) Act, 1972 has not been possible. That is the
reason why the state go\"ernment had to permit collection of tendu leaves by the
impugned order dated 2~.0.1995 and therefore, not possible to conclude that the
state government hild violated any provision of law. However, the Court
()bserved that" it 1111l' of the reasons for forest degradation is the entry of villagers
and tribal .. Jiving in and around the Sanctuaries and National Parks, there can be
no doubt that urgent ~teps must be taken to prevent an\" destruction or damage
tI) the cm'lronment f10ril and fauna and wild life in those areas. If the only
reason which compels the state gtlVernment to permit entry and collection of
tL'ndu ic,n-l''> is it not having acquired the rights of vHlagers/tribals and having
f,llkd to locate all\' <HL'a for their reh<1bilitation, WL' think that intertia in this
behalf cannot be tolerated. The Court directed the state government to take
illlllledi<1tL' action under Chapter IV of the Act and institute an enquiry, acquire
the rights of those who claim any right in or over any land proposed to be
included in thL' Sanctuaries and Kational Parks and thereafter proceed to issue a
final notification under Sections 26 A and 35 of the Act declaring such areas as
Sanctuaries and ~ational Parks."

In the Animal and Environment Legal Defence Fund v. Union of India case/6
the petitioner challenged the order of the Chief Wildlife Warden, Forest
Department, Government of Madhya Pradesh's decision to grant 305 fishing
permits to the tribals formally residing within the Pench National Park area for
fishing in the Totladoh reservoir situated in the heart of the Pench National Park
Tiger Reserve and argued that this permit for fishing right to people violates

:' .. Animal ilnd EnvirOlllllPllt Legal Defence Fund v. Lnion of India (LISe, /\IR 1997 SC 1071

71
Section 26 (1) of the Indian Forest Act, 1927 and Wild Life (Protection) Act, 1972
which prohibit any kind of shooting, fishing, hunting in sanctuaries and national
parks.

On the other hand, the State Government argued that while giving the permit for
fishing to ,'ilIagers no final notification was issued under Section 35 (4) of the Act
declaring such areas as :\ational Park and Sanctuaries and the villagers claimed
that the,' hMI a traditional right of fishing for their livelihood in the Pench river
ilnd this right should be preserved as this is their only source of livelihood. The
~1l'titioner ilrgued that fishing activity is a potential source of danger to the
:\ational P,uk because it may also lead to illegal felling of tress or poaching. In
such circumstances, the Court justifying the apprehensions made by the
petitioner obsern'd that while every attempt must be made to preserve the
fragile c((llng' {If the forest area, and pwtect the Tigcr Reserve, the rights of the
tribills forlllcd,· h\'ing in the area to kelc'p body and soul together must also
recei,'e proper consider,ltion. Finally, the Court allowed fishing activities in
Sanctuaries and \Jational Park to local people but d.irected the government to
stricth' monitllr thelf activities to ensure that there was no poaching. At the same
time, the Court IllJdc it clear that every effort must be made to ensure that the
tribals, when resettled, are in a position to earn their livelihood and also
reiterated its earlier judgment in the Pratieep Krishen v Union of India that once
claims of the villagers are taken care of, it is necessary that a final notification
under Section 35 (4) is issued by the state government declaring such areas as
Sanctuaries and National Parks.

TIle review of judicial approach towards forest conservation and wildlife


protection involving community's right over natural resources has brought to
surface the fact that the judiciary has been firm in forest conservation and
wildlife protection irrespective of the parties involved in degrading forest

T2
resources thereby posing threat to wildlife habitats. \'lost of these cases had been
filed by the urban based ~GOs and middle class people who had no direct
association and material interest in these resources but still showed concern for
the conservation of forest and preserving the intrinsic value of nature. No doubt,
the Court had shown concern for the traditional rights and claims of the villagers
and tribal people over the use of forest resources f0r their livelihood but it also
strongly felt that if these people are posing a threat to wildlife and degradation of
forest resourct's tlwn state must take urgent steps to prt'vent any destruction or
damage to the environment, flora and fauna and wildlife in those areas.
However, it urged the state to ensure that when local people would be resettled
outside the fOft'st area they should be able to earn their livelihood. The summary
~ ~

of the above two st'lected cases involving community versus environment is


provided in Tablt' 3.

73
Table 2.3 Selected Supreme Court Judgments on Environmental Cases on Community versus Environment

Judgment
Name of the Name of for/against
SI. Type of the Name of the Petitioner's Respondent's
case and the Outcome the
No petitioner judges arguments argument
Year respondent Environment

1 Pradeep Individual Union of A.M.Ahmedi Violation of Right to Priority was For


Krishen India S.C Sen Wild Life livelihood of given to
v.Union of B. L. Hansaria Protection Act tribal people preserve the
India, AIR of 1972, collecting quality of
1996 SC 2040 Constitutional tendu leaves environment
Provisions in protected
Article 48A, areas
51A
2 Animal and Organisation Union of Sujata V Violation of Right to Priority was For
Environment India Manohar Forest Act of livelihood of given to
Legal A.M.Ahmedi 1980 and Wild local people preserve the
Defence K.Venkataswami Life Protection depending on quality of
Fund v. Act of 1972 fishing environment
Union of activities in
India, Am protected
1997 SC 1071 areas

Source: Compiled by the scholar based on All India Reporter of Supreme Court on Environmental Cases (1980-2000)

74
2.5 Different Dimensions of Judicial Approach towards Environmental Cases
TIle review of the above-selected environmental cases of different nature has
unfolded different approaches of judiciary towards environmental litigation.
These approaches can be broadly discussed under the following headings.

2.5.1 Pro-Green Approach


Since the intervention of judiciarY in environmental litigation from 1980 to 2000,
it is found that there had been a common thread of pro-environmental approach
({,lInwed b\' the Supreme Court. The outcome of a majority of environmental
litigation offers a sound illustration of this pro-environment approach. As
mentioned earlier, the Court has followed certain precedents in order to protect
and improve the environment and thereby has explicitly recognized that the
right to health\' environment is an essential part of the fundamental right to life.
The Court has also made no distinction in its pro-environment approach
irrespectin' of tIll' parties (state, industries and people) polluting the
em'ironment and the people (rich, poor and middle class) who are affected by
the pollution. However, most of the pro-environmental decisions of the judiciary
uphold the concern of middle class Indian environmentalism that conservation
of forest resources and wildlife protection can be made through strict adherence
to the statutory laws and quality of environment can be preserved in compliance
with law and thereby people can enjoy a healthy environment. As a result, the
pro-environment approach of judiciary does not reflect the strong recognition of
the linkage between livelihood and environmental protection in India. Rather, it
deviates from the dominant understanding of the Indian environmentalism that
forest conservation can be made through local people's participation or wildlife
can coexist with human beings. While closing down the industries, the Court
also have not given equal priority to the rights' of the workers and has
emphasized that health and ecology are more important than unemployment

and loss of revenue to the state.

75
Another most important development has been judiciary's emphasis on
community over individual interest, which in turn gives new meanings to the
Directive Principles of the State Policy in the development policy of the state.
Unlike the early period of independence when judiciary emphasized individual
right to property, trade etc, over socio-economic goals of the State, in post-
emergency period it has tried to bring a balance between fundamental rights and
Directive Principles of State Policy. It has sought particularly to protect the rights
of the people from private interest for development activities that degraded the
em'ironment and threatened the quality of life and public health. For example, in
the Ambika Quarry Works v. Union of India, the Court while directing to close
down the mining units causing environmental degradation and affecting the
health of the people ha-; held that the obligation to the society must predominate
over the obligation to the individual 77

2.5.2 Pro-Development Approach


In contrast t() pw-ell\'irnnment judgments, there are a number of environmental
cast's where the court has adopted a different approach and has deviated from its
own principles and precedents for protecting environment, upholding the rule of
law and ensuring citizens' right to livelihood. The outcomes of the Tehri Dam
case, \larmada Dam case, and construction of Thermal Power Plant at Dahanu
Taluk offer notable illustrations of judicial pro-development approach. The
grounds of challenge in these cases include; adverse environmental impacts,
safety aspects, extraneous financial considerations, forced displacement and
inadequate resettlement and rehabilitation measures due to these development
activities. The general response of the Supreme Court has been that of non-
interference basicallv on the premise that these cases has raised technical issues
and policy matters which are best left to expert authorities of the executive.

77 Ambik'l QUilrry \Vorks v, U!lion of Indlil. AIR 1987 SC 1078

76
In the Tehri Dam case, in spite of differences among expert members on the
safety aspect of the dam, the Supreme Court has called UP(1J1 independent
experts to review the project and check the safety aspects as it has been affecting
a large number of people. TI1e Court relying on the government appointed
committee has allowed the government to construct the dam. The Court has also
failed to consider the international covenants that have laid down a
prl'Cauti()lliH~' principl<' when there is scientific uncertainty about any activity.
TIll' Court could hay<, considered all these issues before allowing the government
to construct the dam. Similarlv, ill the litigation against the construction of
thermal power plant at Dhanu Taluk, the Supreme Court has not followed the
reports of the Appraisal Committee, which recommended that Dhanu is not
suitilble for setting up of the thermal power plant. The Court has not considered
tilt' filet thilt when th<' Government constitutes an expert body (the Appraisal
Cl'l1lmittee in the (,lSl'j, it cannot (l\'Crrule the same. The judgment throws out a
lot of qu<'stions as it blat,mtly allows violation of the guidelines of the
Gov<'rnm<'nt of India.

The Supreme Court judgment on Narmada Dam case also raIses certain unanswered
questions. [t IS an admitted fact that relief and rehabilitation have to precede
submergencc. The Court has taken note of Ihe fact that Madhya Pradesh was extremely
careless in ils progress, and a large number of people affected are from that State but yet
has direCIl!d Ihl! compktion of Ihe project as per the tribunal's award. It has not issu<!d
any time hound direction 10 the State to complete its relief and rehabilitation programme.
The Court has also rejected specific claims relating to environmental protection. The
petitioner', argument that the flora and fauna of the valley would be adversely affected
has been dismissed by the Court as having been covered by the conditions expressed hy
the MoEF in granting clearance. Similarly, the claim of the petitioners thai afforestation
on \\asteland would result in lesser quality forests has not been accepted. The Court has
enumerated in detail the administrative arrangements for monitoring, rehabilitation,
gril!vance rl!dr<!ssal and independent evaluation and expressed its satisfaction with the

77
current arrangement. The fact of the water being supplied to the drought prone areas has
bet:n taken and acct:pted on the averments and contentions of the Government without
n:nlly e:,nlllining tht: Jutht:nticity of the samc, Thc Court also has not examined the cost-
b<!ndit analysis of tht: project in the wayan analysis of this nature has to be done which
is mandatory in vie\\ of the tremendous delay in the project. The reliance on the
executive to take decisions correctly and the self-imposed restrictions of the
judiCiary Iwt to take the viewpoints of independent expert committee has been
inherent in all the above rulings, TIll' court has strongly felt that development
prlljl'cts are Ill'Cl'SS.lrY for India to meet the increasing needs of people but it has
failed to reconcile with other principles of sustainable development such as
ensuring right tn livelihood to project affected people with development
(lbjectives,

Importantl\', till' Court's pro-development approach IS made to bring


de\'elopnll'J1t tor PIle section of the society at the cost of another section of the
society and environment. One may argue that the construction of dam and
power plants are aimed at sustaining the larger interest of the society and help
the people of Delhi and Gujarat to have access to water and power supply but
many studies have documented that these development activities are not the
single wa\' of meeting the larger interest of the people, These policies are
advocated bv the state as the only alternative method to meet increasing
demands of the people and are pronounced by the judiciary in the same fashion,
The judiciary has not paid adequate attention to understand the multi-
dimensional aspects of these development activities and has rejected petitioners'
pll'a on the ground that these development activities involve technical and policy

matters.

However, the Court decision on setting up of a National Thermal Power Plant in


19H6 is an exception, In the Banwasi Sewa Ashram v. Union of India, while the

78
Court hilS allowed setting up of a National Thermal Power Plant in forest area to
generate more power, it has also ensured that people displaced from the
devdopment plan must be properly resettled and asked the state government of
Uttar Pradesh to take steps for afforestation progamme. To ensure that its
directions are implL'n1l'nted, the Court has appointed a monitoring committee
which is asked to submit periodical reports to the court about the
implement,ltion of its directions. Unlike the other environmental cases on
infrashucture C,lSCS, the Court decision in Banwasi Sew a Ashram v. Union of
Indi'l in 1'11'7 has not given any scope either to the petitioner or respondent to
ral..,c objections (In its decision. But, in 1990s the Court followed a pro-
de\Tlopn1l'ntal appH.ach sidelining all other issues such as environment and
people's right in rl'solving environmental cases on infrashucture projects. The
series of affida\·its and cnunter-affidavits filed by different parties after the final
judgment llll infrastructure cases in 19905 has not been seriously taken bv the
Cpurt to l'n<;UH' tIll' implement of rehabilitation of the affected people and
elw If( ))1 111 l' n t,11 gu idl'lines.

2.5.3 Integration of Environment, Development and Human Rights


Apart fwm the ,1bove two different exheme approaches, there arc a number of
cases where the Judiciary has attempted to bring a fine balance between
environment and development. This integration (If environment and
development can be traced back to Dehradun Limestone Quarrying case in 1987,
when the judiciary had not only protected the environment by closing down
polluted industries but had also ensured the rights of the vliorkers in creating
employment opportunities through afforestation programmes and allowed
industries to operate from outside the Mussorrei City. Likewise, in the Delhi
Oleum Gas Leak case, in view of the complexity of the matter involving
environment, workers' rights and need of chlorine for Delhi, with considerable
hesitation, the court had. reached the conclusion that caustic chlorine plant

79
should be illlowed to be restarted subject to a long list of conditions including
pn'ventive measures to ensure that operation of the plant would not cause any
disaster for the environment and health of the workers and general public and
also nrdering the management to deposit a sum of Rs. 20, 00,000 by way of
Clllllpensation claims made by the gas victims. Similarly, in the Banwasi Seva
Ashram vs. State of Cttar Pradesh,7K the Court had allowed to set up the National
Thermal P(lI\"l'r Plant in the forest area but, at the same time, had ensured that
till' affected people depending on forest resources should not be deprived of
tlwir livelilwod. The Court directions had made clear that though there is a need
Illr devel(lpml'llt plans to meet the increasing demand of people, exploitation of
Ilatural rL'sourCL'S sh(luld not bear pressure on the finite resources of the earth
<1I1d development dctivitil'S should not lead people deprived of their livelihood
illf others inkrl'~t. In this way, the apex court tried to integrate development,
em'ironment dnd rights of the affected people.

2.6 Summary
The inter\'L'ntion of judiciary from Ratlam (1980) to Narmada judgement (2000)
has unfolded different dimensions of judiciary towards environmental cases and
there has bel'n no general pattern to explain the' greenness' of the Supreme
Court. Nevertheless, there has been a common thread of pro-environmental
judgments from 1980 to 2000 but sequentially different shades of green in the
Court outcome have been identified. For example, the Court's decisions on
environmental cases involving industry and environment have emphasized the
\'alues of both environmentalism of the poor and the middle class society. In
these tvpl'S of environmental cases, the judiciary, on the one hand, has
maintained consistency in its approach towards environmental problems by
recognizing that the fundamental rights of the people to a healthy environment is
non-negotiable and overrides private interests of the industrialists, workers'

-, BrlilWdSl 'i<'Wrl Ashrelll v Sidle of Lttdr Prddesh, AIR 1987SC 374

80
right, loss pf revenue to the state, etc. On the other hand, in few other cases, the
judician' has also recognized social justice and equitv principles as a part of
ell\'ironmental protection III ensunng workers' right and providing
(()mpensation to the victIms of the affected people due to environmental
pollution. In till' sclpcted n'\'iew of enviwnmental cases involving industry
\"t'rsus em'ironnwnt, the approach of judiciary appear to be firm to uphold the
rule of la\\", Ctlnstitutitlnal propriety and enforce the fundamental rights of the
citizens fllr the protl'ction and improvement of environment. Simliarly, in a
majorih' pf cl1\'iwnmental cases against the failure of implementing agencies,
especialh' micro structures to prevent and protect the environment. the judiciary
has consistently attemptcd ttl ensure the effective implementation of existing
ell\'ironnwnt,ll ],1\\"5 and provisions. In such nature of cases, the Supreme Court
has als(1 m,ltil' ,111 attempt tu ensure the implemention llf its directions thruugh
monitoring committl'e; examining the complex issues in environmental casE'S
through independent expert ((lmmittel' and entertaining petitillns without
questioning the bonafide of the petitioner.

In contrast, till' Court decisions on forest degradation and wildlife protection


either due to industrial activities or communih' intervention is subscribed to the
philosophY of middle class environmentalism In such nature of cases, the
Judiciary h.~s dirl'ctl'd to preserve the LJuality of environment and intrinsic value
of nature bv Sidelining both the communities' claim over the use of forest
resources for livelihood and industrialists' demand for their right to trade and
development.

But the approach of the Court, especially towards environmental cases against
public infrastructure projects promoted by the state, has followed a common
path to arrive at the decision by rejecting the multi-dimensional problems
revolving around environmental problems and thereby subscribing to the policy

81
statements of the state. [n such nature of cases, judiciary has subscribed neither
to the values of environmentalism of poor (as it has rejected their right over
forl'st resources and right to habitat) nor to the values of middle class
el1\'ironmentalism (as it has also rejected their claim to preserve the biodiverstiy,
concern for safety of the dam, etc). In these types of cases, the Court has upheld
the state deyelopml'nt initiatives whether it is construction of dam by displacing
people and degrading the forest covers or construction of thermal power plant
\'ip[ating l'l1ViWnllll'nta[ guidelines. As a result, the judiciarv in a number of
cases seems to have lost its grip to interpret the law as per its purpose. This
dimension of judicial ch'cision is appropriately reflected in all the environmental
cases against the public infrastructure cases. Cnlike other environmental cases,
the Court has <lisp f'liled to follow its own precedent by examining the complex
issues revoiving ,u(1lllld the environmental problems through appointment of
independent expert committee. TIle Court has heavily relied on the state
appointed expert committee to resol\'\.' tIlt' environmental cases.

These different dimensions of' greenness' in the Court decision also signify that
the\' are not dl'c'plv rooted or inherited from the environmental laws and
constitutional provisions for the protection of environment. Rather, they draw
their essence b\' looking beyond the legal doctrines for environmental protection
in India. In such circumstances, it is worth investigating what are the important
factors that contribute to the different shades of' greenness' of the Supreme Court
of India on environmental issues? Why has judiciary failed to apply a common
approach to l'lwironmcntal cases? And finally, what are the factors causing
inconsistencies in judicial decisions towards environmental protection? These
questions are addressed in the following chapter of the dissertation.

82
CHAPTER III

JeDlCIAL DECISION-MAKING PROCESS ON ENVIRONMENTAL ISSUES

The review of \'<lrious environmental cases has bwught to surface the fact that
the Supreme Court of India generally seems to be 'green' but in certain cases it
deviates from its own' green' interpretation and precedents. As indicated earlier,
the judicial approach to enviwnmental cases varies from case to case in terms of
directing industries to close down for failing to comply with environmental laws
,md Constitutillllal provisions, and sometimes allowing industries to operate
ba'il'd on certain conditions to prevent environmental pollution. Sometimes the
judiciary has c()me down heavily against state agencies for their failure in
implementing laws and policies, but at other times it has shown a hands-off
approach again'it l'1l\'irnnmental problems due to infrastructure projects initiated
by the stall'. Often thl' ludiciar\' has upheld the rights of poor and recognized the

~nciallustill' principle ,15 part of environmental jurisprudence, but at other times


it has rejl'ck'd human and environmental consequences and emphasizing
developnll'nt aspects in environmental cases.

TI1is chaptl'r l'xplores why judicial decisions take different shape on


environmental issues and what are the factors contributing to the judicial
deci<;ion-making process. It begins by conceptualizing the theoretical
understanding of the judicial decision-making process in general and specifically
in India. Based on the conceptual framework, different factors have been
identified to examine the judicial decision-making process on environmental
issues in India. The analvsis of judicial decision-making process is made based
on the detailed examination of selected 15 environmental judgments from 1980 to
200n, further supplemented by interviews with concerned judges, lawyers and

petitioners.

83
CHAPTER III

JUDICIAL DECISION-MAKING PROCESS ON ENVIRONMENTAL ISSUES

The re\'ie\\- ()f \'iHit>us em'ironmental cases has brought to surface the fact that
the Supreme Court of indi.l generally seems to be 'green' but in certain cases it
de\'iates frum its own' green' interpretation and precedents, As indicated earlier,
the judicial .lppwach to environmental cases varies from case to case in terms of
dirccting llldustTies to close down for failing to comply with environmental laws
and Constihlti(1nal provisions, and sometimes allowing industries to operate
based on certam conditions to prevent environmental pollution, Sometimes the
Judiciar\' has cnme d()wn heavily against state agcncies for their failure in
implementing laws and policies, but at other times it has shown a hands-off
<lpproach <lgainst ellviwnmental problems due tt) infrastruchlre projects initiated
b\' tIll' state. Oltt'n tIll' judiciary has upheld the rights (If poor and recognized thl:
<;()C1al,ustirl' prinriple ,lS part of environmental jurisprudence, but at other times
it has reJl'rted human and environmental consequences and emphasizing
development aspects in environmental cases,

This chapter explores why judicial decisions tah' different shape on


environnll'ntal issucs and what are the factors contributing to the judicial
decision-making process, It begins by conceptualizing the theoretical
understanding of the judicial decision-making process in general and specifically
m India. Based on the concephlal framework, different factors have been
identified to examinc the judicial decision-making process on environmental
Issues in India, The analysis of judicial decision-making process is made based
on the detailed eXillllination of selected IS environmental jUllgments from 1980 to
2000, further supplemented by interviews with concerned judges, lawyers and

petitioners

83
3.1 Understanding Judicial Decision-Making Process: Conceptual Framework
Contemporilrv research on judicial decision-making process of several countries
hils pw\ided significant insights into the functioning of courts in different parts
of the world. IVhile studies on the American courts have been abundant,
s\'~lL'matic empirical research on courts outside of the C.s. has been quite

llllllted. With the glnbal expan.,i(ln of the "judicialisation of politics" (Tate and
\'allinder 19(3), howe\'L'L scholars ha\'e steadily become more responsive to the
need of thl' public law sub-field ttl obtain a more thorough understanding of
legal svstl'm,> in different countries of the world. Consequently, judicial scholars

h,l\'l' exp,1l1dl'd their research into several countries including examinations of


the Court S\"Stl'l11'> III Spain (Toharia 1(75), till' Philippines (Havnie 1994), India
(C;,ldbnsis, IY;-O; Dh,1\,m 1'1.111 19H3; Baxi. 1996, 1997, 2000; Sathe, 2(01), and

'\rgl'ntin,l (I klm].,e ~O()~), amllllg others. TIlese scholiH'> have unveiled several of
till' underhing processes that significantly affect judicial decision-making,
'>llb~tantialh' (Pl1tnbuting to the knowledge of Judicial behavior in the
framework pf ,>uch <lI"L'as as strategic behavior (:'\Ialtzman and WahlbL'ck 1996),
idl'ological or prt"terel1ce \"(lting (Gadbosis, 1970), resource of litigants (Galanter,
1Y7.J) and till' like [n the following section, an attempt has been made to address

diffen'nt aspects ot judicial decision-making process in different Courts of the

world in general and 1Il India in particular.

llll' mo~t enduring tjuL'sti(lns posed by scholars of judicial politics concern the
basis upon which judiciar\' arrives at the decision. Cntil the early ~Olh century,
legal sclwlars 'iubscribed to the belief that judges embraced a mechanical
jurisprudence theory It, law. At its core, the mechanical jurisprudence theory to
judicial deci.,ion-making is based upon the notion that judicial decisions are
~olely derived fwm the Statute or Constitutional text and the facts of the case. [t

view'> Judges as constrained decision makers who "will base their opinions on

84
pl'l'cpdpnt dnd will adhere to thp doctrine of start' dI'Clsls"':' (Brenner and Stier,
1l)4h) S(lm~' sch"lars label this IIIcc/wlllcailllrlSprudc/ICC, because the process by

which ludges reach decisions is highly structured. Again, according to this


tlwol"\', till' values and preferellces of the justices are not involved to anv
-
significant degree in the process of constitutional interpretation. The judges are
nll'r~' instruments of tilt' law; they do not make law. As explained by George and

Ep'itein (I 'N2) and Chilkarbartll\' (2000), a judge's legal training, political party
.llidiatilln, politlC.ll e),.perienCl'~, bilckgrnund and polin' preferences are not
imp(lrt.lnt (,KtPr<; in constitutional interpretation. In other words, mechanical
junsprUdl'lKl' has maintained that judicial function is confined to discoverv and
dl'clM,ltion of law and reduced ludicial interpretation to a mere mechnical act.

This notion 01 Illechdnical jurisprudence continued t" dominate till the early 20th
n'ntun'. I n till' ILJ20's, however, b"gan the l'fil of free legal decision theory;
\,herein ScllOl.us st.ll'll'd to recogni.fe thilt judges are influenced by factprs other
than slmph' 1.1\\' and precedent (Cardozo 1921; Pritchhet, 19-15). The emergence
(,I 'frel' legal decisl(lll' them\' in the twentieth century recognised the element of
human crl'ativity in the matter of interpretation of the Constitution by the
JudICiary This theon' clearly admits that the factors like values, biases, fears,
htlpes and prdl'rl'lKl'S for polin' become significant in matter of interpretation of
thl' Constitution by ,1 judge. In fact it argues that decisions cannot be isolated
ffl'm till' social PHlCl'SS because Judicial decisions are in fact human decisions, It
i~ ttl be further noted that according to this theory, the constitution means what it
d()('~ toda\', because of the values of the justices who have interpreted it over the

years.
This formulation has quickly It'd to the judicial behavioralist movement, which
in turn has spawned a plethora of studies focusing on the role of personal

70.) ')t.,rc df'n!'l~ is essentially the- doctrLlw ot precedent. It is " general maXlIll th(lt WhPll a point has bC"C'n

Si"tIled hv ('arlief decisiol;, it forms a precedent which is not afl('n.... ards to be depdrted from by the
suhwqllt~nl judges.

85
preferences and attitudes, as well as other extralegal factors, in the judicial
decision-making process. Among the first of these works is Pritchett's (1948)
study of the ROOSL'VL'lt Court, whereby he has systematically analyzed the
patterns of ideplogical position among the justices of the Supreme Court. In later
period, Schubert'~ (J968) study on the u.s. Supreme Court decision-making
suggest that judges are lIlfluenced bv their ideology and that their decisions are
drin'n b\' these ideological preferences. These hvo works have laid the
groundwork for later scholars to engage in empirical work and highlight the
impact of judges' \'alues and ideological preferences in judicial decision-making
(Gibson 1978; Rohde and Spaeth 1976; Segal and Spaeth 1993).

SubseljUl'nth", ,1 . . ignificant amount of literature on the functioning of the C.s.


judiciary h" . . thwwn light nn the role of individual judges on the matter of
decision-Ill,1 klllg (Limer, I % I; Segal and Spaeth, 1993). Based on the gross data
an,ll\',s of \Minus Suprenw Court decisions, these scholars have attributed
various reasons such as, social. economic and political background of the judges
and the enviwnnwnt in which the attitudes, values and beliefs of the judges are
<;haped and rL'shaped over the \'ears that determine the individual approach of
judges in till' decision-making process. Segal and Spaeth (1993), however argue
that judge'i' value preference makes a difference in the decision-making process
but the facts and the l"ws are not irrL'levant. The free legal decision theory allows
judges to use their ideologies as a guide to sift through the various legal factors
presented and utilized in each case. Thus, functional aspects of law are not
irrelevant, but are inevitably filtered through the attitudes and preferences of the
judge. They further point out that it is theoretically impossible to disentangle the
l'ffL'cts of ideology from legal interpretation, since the latter is merely a function

llf thl' former.

86
The Supreme Court decision-making process, with special reference to India, has
been largely explained under the mechanical theory of jurisprudence (Anand,
2000; Dubey and Shrivastava. 2000; Prasad, 2004; Ramesh, 2(02). For instance,

India has emplo\'ed a range of regulatory instruments to preserve and protect its
environment. But. failure on the part of the government agencies to effectively
enforce elwironmental laws and non-compliance with statutory norms by
polluters has resulted in intervention of judiciary to compel them to discharge
their Constitutional duties . .vlost of the scholars have explained the behaviour of
judician' in res(1lving not only environmental disputes but also other original
and appellate jurisdiction through the mechanical theory of jurisprudence. In
ptlll'r words, the\' argue that Indian jurisprudence does not formally subscribe to
the principles of free legal decision theory and lay great emphasis on the
functional aspect of the law in resolving environmental disputes.

Other scholars have, however. found that individual behaviour of judge does
make a difference in the outcome of judicial decisions. The history of judicial
decisions on constitutional as well as non-constitutional matters has witnessed
many times, where the individual approach of judge has changed the outcome of
the decision or has not agreed with their colleagues on a particular decisions. The
only empirical study on Indian judicial behaviour carried out by Gadbosis (1970,
p. 151) reveal that out of fully 2998 decisions from 1950 to 1967, all participating
judges have agreed with the outcome decreed; 91.6 percent of the reported
decision'i arl' characterized by unanimity, whereas on major socio-economic and
political is'iues including laws on land reforms, constitutional amendments,
fundamental rights, there are inconsistencies and sharp differences of opinion
among judges in their judgment. There are other studies, particularly on the
different approach of judiciary towards different socio-economic and political
issues in general and environmental issues in particular that have attributed the

87
judicial decisions to the mind-set of individual judges (Baxi, 2000; Sathe; 2001;
Chakrabarty, 2000).

1l10ugh scholars agree that individual approach of judge does make a difference
in judicial decisions in India, many admit that the free legal decision theory fails
to paint a complete picture of the overall judicial decision-making process and
are rather hesitant to completely discount the role of other factors within this
process. As a result, several scholars have presented more complex models of
judicial behavior- those that not only include judicial ideology, but various
0ther legal and extralegal considerations as well.

For instance, in his other work, Gadbosis (1985) finds that the prevailing political
environment mav provide support or it may pose threats to the judicial decision-
making process. Similarly, Das (2001) point out that the current political mood of
the country, the prevailing economic situation; the dominant ideas prevalent in
the society at a particular time have governed the activities of Indian judiciary
during the last sixty years. The values that the court seeks to uphold during any
particular period are determined by such ideas and the Court's own appreciation
of the needs of society. The historv of judicial functioning in India also offers well
illustration. For example, the Habeas Corpus decision during the emergency
period by the Supreme Court denying citizens' right to appeal before the Court
for illegal detention could be explained by the fact that the political context in
1976 has been extremely threatening to judicial institutions. And the Dissolution
decision a year later, as argued by Baxi (1997), seems to be an excellent example
of a decision affected by the dramaticallv changed political situation after 1977
- "

general election.

In addition to ideology and case characteristics, research has further


demonstrated that success in court is often contingent upon resources of the

88
Iiti~ill1t (Kleck 1981; Clarke and Koch 1976). Generally, it has been discovered
that ~(werl1lnents have been more successful than individual and organization of
liti~ants. Galanter (197-l) suggests that the "haves" would win more frequently
both because the\' are likely to have supt'rior material resources and also because
a number of a(h'anta~es accrue to them as a result of their 'repeat player" status.
Superior resourcl'S allow the "haves" to hire the best available legal
representation and to incur the expenses of extensive discovery, expert
\\'ihlesse5, and <;() forth, which mi~ht increase the chances of success at the
dl'cision-makin~ process. In addition, as repeat players, they would reap the

bendits of ~rl'at<'r litigation experience, case-selecting ability, and the ability to


develop and implelllent a cOlllprehensive litigation strategy that might help to
get the decision in their fa\'our. For instance, Songer and Sheehan (1992) find that
"upperdo~s" (state, local and federal government) fare hetter than" underdogs"
(individual<;) in the Cs. Court.. of Appeals McGuire (\995) finds a significant

influl'ntial effect of counsel experiencl' and determined that the "haves" usually
achieve greater litigation success in the U.s. Supreme Court.

Yet the degree to which resources are relevant in court outcomes has also been
contested. Songer and Sheehan (1992) find that judicial ideology has a stronger
impact on litigation success than differences among litigants in terms of their
resources and expertise in cases before the us. Supreme Court. Moreover, it may
be said that Galanter's (1974) theory of resource inequality is not applicable to aIL
judicial contexts. For instance, Haynie (1994, p. 769) has discovered that in the
Philippilll's the "have Hots" have achieved greater success than the "haves,"
because the Philippine Supreme Court serves a "redistributive function" in order
to "enhance its legitimacy as a political institution." Similarly, Gadbosis (1985)
find that in Indian Judiciary both the state and the individuals are equally
successful irrespective of their access to resources and expertise in cases before
the Court. l/c, however, point out that the Court is an arena used mainly by

89
those ,lccused of being the suppressed whose voice do not reflect in electoral
politics. In his extensive ft'search works on Judicial Activism in India, Baxi (1996)
argue thilt judiciill d~'cisions on economic and disinvestment policy and
infrash'uchlnC' projects have substantiated the statt"s economic and development
policy eHe'1l if the litigants are well equipped with information and expertise
knowledge in finding ()ut the violation of legal doctrines.

Other sch(lIMS point out thilt in Indian judiciMv interest based Iitigation-;uch as
ell\'irnnn1l'nt righh of woman and child, attain more importance than identity
based litigation such ,1S disputes on religious matter, boundary disputes among
statl'S. In rl'Cl'nl \'l'ar~, interest based litigation such as environmental litigation
hilS acquired considl'rable importance in the Indian legal system. It is important
t(1 note in this conlext that judiciary is more responsi\'e tl) such litigation not
becausl' of the f,Kt that they affect the daily livelihood of millions, particulilrly
the rural poor, or because of the increasing degradation of environment, but
because such l'cologicill issues often do not receive appropriate attention in
...Iectorill p"litics (Sl'thi, 1993; Kothari, 20(1),

TI1US, studies on the Court functioning in general and Indian Supreme Court in
particular ha\'l' found Ihe impact of both legal and extra-legal factors in the
judicial dl'cision-milking process both theoretically and analytically. As indicated
l'arlier. studie., on tIlt' judicial dpci'iion-making process on environmental issues
in India hil\'l' recognized both the legal and extra-legal factors in the judicial
outcomcs (Baxi, 1996, 2000; Upadhyaya, 2000, 2001; Bhushan, 2004; Iyer, 2006),
\Vhat seems to bl' problematic analytically and conceptually, however, is the
overemphasis on il single factor rather than establishing the causal relations
among the factors to understand the judicial decision-making process.
Furthermore, with exposure to different environmental cases in the prevIous
chaptl'r, tIll' prescnt study has also become aware of how different

90
enyiwnmental yalues have been emphasized in different environmental cases or
in tilt' same type of cases by the judiciary. Although the different dimensios of
judicial decisions has received some attention in the secondary literature that is
available about the approach of individual judge in contributing to the judiCial
dl>cision-making process pn environmental issues, it is left largely under-
an,llYsed ,md undl'r-the,)rizpd. The present study applies an integrated approach
by l>x,lll1ming the ettl'cts of both legal and extralegal factors in the overall judicial
dl'cision-m.lt...ing process on environmental issues. The legal factors are the legal
ch.lractl'ristics pf the case, or facts statutorily related ttl the law in each individual
case. Conn11lllt.1l1th·, the l'xtra-Iegal factors consist of ideological values and
prderelKl'~ pf judges, reSPlITCl'S of litigant and the prevailing socio-economic and

P(llrtJc.lll'IWironn1l'llt.

3.2 Methodology

TIll' legal factor<; are captured through examination of legal doctrines and facts in
Ih selectl'd el1\'irnnmental cases whereas the extralegal factors are measured
thwugh a detailed l'xaminatitln of the selected enviwnmental cases (Appendix,
\'J ,1I1d lw using the information gathered from the interview with concerned
pl'titionprs, Iawn'r.., and judges. The environmental cases are selected
purposi\'l'h' reprl'Sl>nting industry, state and community as accused party in the
litigation, which helps to explain the effects of legal and extralegal factors when
polluters ilre different. The interviews with judges, lawyers ilnd petitioners (refer
table :>'.1) have been conducted. to get more inside story of the judicial decision-
making process and tlw way each actor views the overall process w.

WI Th£> study doE'S not prptpllct to (ieliver c1 comprehensive ethnogra.phy of the judges, la\V)'ers, petitioners
and among ~GO networks. Such ,fin endeavour WOUld. have to IUc~ude {~r more data (ol1cermng. for
Instance. Caref'T patterns of those in the I(,gal professlons. ~nd their sOClo-.e(~n~ml{ backgrounds, an
aS5t"ssmf'llt of ~GO and a comprehensive survey of the dlfterent types of mdlvldual and govprnment
pcuties appearing in thf' courtroom.

91
TI1CSC rcsp(lndents have been selected based on their involvement in the selected
environmental Cdses for examining judicial deci-;ion-making process. A number
of studies Oil the U.s. courts have clearly demonstrated the effect of ideological
values and preference of judges in judicial decisions. However, measures of
ideology comparable to those of Segal (198-1), which could be helpful to test the
effects (If this variable, are unavailable for the Indian judges. Cnlike the judges of
c.s courts, the judges' political affiliation and ideological preference for political
pMties ,lIld social groups in India are not t'xplicitly measurable. Although I am
aware of tIll' fact thilt the background of judges such as class, caste, education,
region, and politiCill views, etc. might have some determining role in the Court's
outcome, I c(lulll not trace out these factors due to lack of standard biographical
sources llf Indian judges The study has attempted to create an independent
measure (If ideoll1gy to be included in the understanding of judges' value
preference \\·Iwrein the ideology for each judge is obtained by the content
analysis of judici,ll outcomes on environmental cases from 1980 to 200D.
However, the conknt analysis of judicial outcomes has been supplemented by
tIll' informations gathered from the interview with judges. There are 66 judges
wh(1 are part of em·ironmental cases both as giving interim orders and final
judgments. F(lr the analysis of judges' ideological values and preferences, 22
judges (Appendix IV) have been selected purposively and interviewed to get
more familiarity about their understanding on environmental issues and the way
they think about the decision-making process. As far as the analysis of litigant
resources is concerned, I have primarily relied on the arguments made by
different parties in tlw original petition of 16 selected cases, materials supported

--
with it reference made bv the lawyer to different precedents in the court
,
proceeding and the final judgmentll l . This has been supplemented with the
information collected from selected 10 petitioners (Appendix IV) and 11 lawyers

I rould not n:'\'Lf'\'\' th(" ~ffiddVltS. clnd counter affidavits filpd by' each party in all the cases due to lack of
11.1

iK(PSS to infoTI11c1tion. HellCE:'>, I felied only 011 the issues 11Ighlightect in the original petition, respondent's
(Ountf'T ;HgunH~nt to Ilw original pftition ilnd the final judgment of the CdSf'".

92
(Appendix IV) of the Supreme Court of India. Finally, the effects of the
prevailing socio-economic and political environment are analysed by identifying
key factors that have determined the outcome of judicial decisions from 1980 to
2000. These factors include the nature of relationship between judiciary and
executive and the prevalent and dominant discourse on economy, environment
and development. For the entire analysis, the present study focuses in details on
til\' outcomes of the selected 16 environmental cases from 1980 to 2000 in the
Supreme Court of India.

9J
Table 3.1: Interview with Selected Respondents

SI. '\. '\'ameofthc 'ame ofthl' :\ame of the Judgr§.


.·,,·litionen l)c(ition4:r and
Rc... pondcn.
I. a,,,, cn.
RIFK \, Siale of RLn.: P.N.Bha~watj
11t1ar Pradesh. AIR Rang"natb I\1j,bra
1985 Sl 1>52 Amarendra ':\ath Sen
Hallam Municipal VarJhid1 •.mU Shn (iambhir Y.R. Krishna Iyer
Coullt'il v. O.Chinnal" Reddy
Vardhlchand
~ach iJananda Sachidananda O.ehinnap' Reddy
[lalH..h:~ \ 'state l)l I'and<} ". h:halid
Wc..;llknlul
M C. Mehta \ \101 ~J.('."ehta
l.CakuttiJ I.mnerics Rajindra Sachar
11l<llicr). AIR 199712 I S.hanll Rhushan Kuldccl' Singh
SCC 411 \,ija~ Panjwani S. Saghir Ahmad

I . \ 01011\)1 VlWI S' h


K u Id eep.mg
! ",d,a. AIR 19'16SC Faizan l"ddin
i , 1715 , K. \'enkctas",am~

I> Al'l'Ul \ \1 V \1'1'(8 NA S B Majumdar


!
, Na)udu. AIR 19'1'1
SC HI2
~I Ja~.nnadh. Rao

7 Indian ((luncil t(lr "A Hari,h !'o. Sal,.. B.P.jeevan Redd)'


I.n\ "o-tegal A"lion ~1.('.,\lchta R N.Kripal
, \1011 [I",hh" K NBhal
Village rollution I. I S~r.!'ma Midlli.l !
,\IR 1996 SC 1446 I
X Me. Mehta ", \1 (' \Iehla :"'A KuldCfp Singh
llnion of India. Fail.an .-ddin
Delhi induslri.1
pollution casco AIR ,
I ~97~ II) sec 3270 I
9 \I.e Mehl. v, 'I (' 'Iehl. Rajccv Dha,:an A.S.Anand
llOioO oflndia & Sanja)' Parikh B.-':,Kripal
Ors. I Vehkular Harish ~ Sal,,·c '·.:'.'.khare
l'l,lIuliuncase). J\tR \"jja~' Panjwani
I 'J98( 6) sec 60 Shanti Bhushan !
10 S. Jagannalh \_ S. lagannalh I ndira Jaisin~h Kuldeep Singh.
1:nion or imha Harish 'l Sal" S. Sc1ghlr Ahmad
(Coaslal Kapil Sibal
!r.·1anagcmcnt Ca!'.c I. :\1 C 'Ieht.
.till( 1'197 SC 81 1 \-'ija)· Panjwani
N Santosh ~Ic~dc
,, Sanja~' Parikh
Seema Midha

II 1('l:I.A \ limon of ICEI.A (Subba Roo, ,'Iohan Reddy A.\L\hmcdi


Illt.hJ (Palan.;;:hcru k.':i~han Rao. \1 (' Mehl. K.Panipouram
InJu~lri,,1 Pollution I ;I K Pu r-u,,"otham
A I R 1998(9) sec Rcdd'l
I
S80 !
,
i

94
12 Animal and Animal and NA Sujata V, Man(lhar
Em ironment Legal Em-ironment [.eg.11 A..\L\hm<di
Ilcl<nce Fund v Defenct:' FUlld K.\'('nkata.sw<IImi
"nlon (lrlndia. AIR
i I
I 1~97SCI071

I) I ~_Goda\'annan \ r. t\.Goda\.Jrman "arish;>; Sail"< .I.S Verma


t 'ilion of India. AIR Ri.\\ irk Uutta H.N.Kripal
1'197 SC 1228 Kancha K(lhh A. S. ,\nood
\'ideh tlpadh)a) \' .:".Khr.
'-1.B. Shah
Y. K.Sabharwal
I
Arijit Prash~'at
"K.Thakkar
, S.H. Kapadia
I~ I ,Irun Hharal ""J~,gh I art'" Bha,," sa,,~' '.\ \1N. Ven~ela<l1allah.
\, llni~m of [nJI.;). K. Ja,achandra
AIR 1'I9111~1 SC Reddy
~Il/
I' ~B,\ , ,Irunn nl "BA iIIiman,ho K.K Venugopal A.S .. \nond.
Imlla l'hak"ar, Prashant Soh.mli Bhu:..han I B.N. Kripal.
8hu,han, Vimal ; A'holll Desai I S.P Bharuchha
8hoi, ~1cdha Palkar) Pra~hant Hbushan
:
:
: S. 'Ioralidhar
,
I I
:,
II> I HVSS .md olher:.. \ mvss (!\' l)Ja)al. I Kapil Sibal K.N.Singh
the State or lll1~lr Sekh .. Sjn~hl
I
, Ha.-i!ih:\ Saln' Kuldup Singh
PraJ.: ... h and Olher.;; I Sanj",~' ftarikh Raj_nd,a 8abu
Supreme Cnurillf S I' (Farg J)harmadhil..ari
II1t"h •• , /\IR 19"(11'" \l.tlUlll'oJu\al (j.P Mathur
I
~C '1'1 I Indirani .'ai SinJ!,:h
I i Kalec' Ilha\';,tn I
Note:
1. The b"ld Il'Itl'r n~mes wl're interviewed for the analysis of ludlC'i,ll Decision-:Vlaking Process.
2. NA Impl">' the rl'sl'M,h~r (ould not (ollect the required information
Source: Compiled by the scholar based on All India Reporter of Supreme Court on
Environmental Cases (1980-2000.

3.3 The Process of Judicial Decision-Making In Environmental Cases from


1980 to 2000

Both legal and extralegal factors, which contribute significantly to judicial


decision- making process, have been examined to t'xplain the way judiciary has
arrived at the decision on environmental issues from 19KO to 2000.

3.3.1 Legal Factors


The legal factors contributing to the judicial decision-making process could be
understood in two ways. First, the legal framework for environmental protection

95
and second, the Supreme Courf s power to protect the environment from non-
implementation of this legal framework. As far as the legal framework for
em'lronnH'ntal protection is concerned, Indian environmental laws are based on
two broad legal principles of eminent domain and criminal liability, The concept
of eminent d(lmain establishes the supremacy of the state over all natural
n~snUITe<; and is based on the premise that the state is sovereign and there can be
compUIS(llT acguisition of any land and property, including private property, by
till' due pn1cess of law, TIle other conservation and prevention laws such as the
Water (Prl'\ention and Control of Pollution} Act 1974" the Air (Prevention and
Control of Pollution) Act 1981, the Forest Conservation Act 1980, the
Elwironml'ntal Pwtection Act, 198(', etc. are based on the notion of criminal
liabilitv which is to sa\' that, non-compliance of the provisions v\'ould necessitate
penal ,lCtinns. The Environmental Protection Act of 198(', however, is an
umbrella ll'gi<;lation which has vested power in the Central Government to take
all such nwaSUfl'S as it deems necessary or expedient for the purpose of
protecting <1111.1 improving the quality of environment and preventing, controlling
and abating l'lwironmental pollution (Section 3}X2.

As far as ensuring compliance with the legal framework is concerned, the


Constitution has specificallY mentioned that if the Constitutional authority fails
to discharge their Constitutional duties and violates fundamental rights of
people then citizens have the right to move the Supreme Court under Article 32
for the issue of a Constitutional writ for the enforcement of Fundamental Rights,
as an original jurisdiction of the Supreme Court The Supreme Court is also the
highest court of appeal from all courts in the territory of India H:'>, Finally, Article
115 of the Indian Constitution has categorically emphasized that until Parliament

For more details on environmental ldw prOVisions in Indicl see Sanjav Upadhyay and Videh Upadhyay's
14.:'

Hdlldbook Oil Ellvironmenlal Law (20ll2).


" Article 132 and 133 (lJ specifically mrntioll that oppral from the HIgh Court can be made \0 the Supreme
Court both on constitutional and non-constitutional JllitttE'"f.

96
bv law otherwise provides, the Supreme Court shall als0 have jurisdiction and
powers with respect to any matter of the Constitution,

T111'SC assigncd functions of the Supreme Court enable it to respond whcnever its
attention is drawn in casc of \'iolation of the Constitutional provisions due to the
failure of other organs and reminding them to di,>charge their assigned role to
uphold rule of I,ll\', fundamental rights or Constitutional propriety. The
intl'ITenti(l1l of )udici<In' in l'I1\'ironmental governance has been largely found
dUl' tll tIll' failure of (lther organs in effectively implementing environmental
laws and policies ainwd at the protection <Ind improvement of environment. In a
flow other cast's, tIll' inkl'ventic))1 of judiciary has been required to interpret the
la\\', As a result, there has been a flurry of environmental cases coming to the
Supreme Court either in the form of original jurisdictionl\.! or as appellate
jurisdictilln";, The'ic cases accused the state agencies for their failure to discharge
their constih.ltional duties thereby violating legal doctrines on environmental
prot,'ction, fundamental rights of the citizens, rule of law and Constitutional
PW\'ISlOns. In thl' following section, the study examines both the legal doctrines
on environmental protection and for the Supreme Court intervention in
resolving environmental disputes,

The importance of tllL'se legal factors has clearly been reflected in a number of
cases. For example, in the Ratlam Municipal v. Vardhichand case, the petitioner
drew the attention of judiciary under Section 133 of Code of Criminal
ProcedureR6 and Section 123 of the tvlunicipalities Act~7 of Madhya Pradesh

04~ Article 131 of Indidll Conshtutlon stalE'S thelt thE' Supreme Court has origlllal Jurisdiction in any dispute
he-hveen the Government of India .:.nd ont' uf mOTe States; or behvt'f"ll the GOV(,Tnment of India dnd any
c,ti\te of States on one side and onE' or mOTe othrr Sidles on the other; or betw('C"n two or more States.
Article J3] ot Indidn Constilution states thitt the appellate jUrisdiction of the Supreme- Court includrs
,'ppeals from High Courls whethpf in CIvil or dilllltlal matter_
.. Sertion 133 of Code of Crunin,,) ProtpdllH'
. Section 123 of thp Municipalities Art of \-!a.lhya Pradesh

97
thereby asking for an order to the Municipal Council of Ratlam to do its duty
toward the member of the public by stopping the stench and stink caused by
open drain-; and public excretion bv nearby slum-dwellers. The Court observed
that the \lunicipalitY cannot extricate itself from its responsibility. The
;"Iunicipality made the plea that it is not financially viable to discharge its
st<1tuton' liabilit\·. rhl' Cnurt held that the Criminal Procedure Code operates
against statutllrY bodies and others regardless of the cash in their coffers, even as
human rights undl'r Part III of the Constitution have to be respected by the state
regardless (If budgetar\' proviSion. Likewise, Section 123 of the Municipalities
.-\n has no sa\'ing clause when the Municipal Council is short of finance.

OthL'rwisL', a pn1tllgate statutory body or gO\'ernment agency may legally defy


duties U11lil'r thL' law by urging in self-defence a self-created bankruptcy or
pl'rn'rted expenditure budget. TIlerefore, the Court, armed with the provisions
of the two codl's and justified bv the obligation under Section 123 of
J\lunicipalities A(-t directed the \:lunicipal Council to discharge its statutory
duties for the precise purpose of preserving public health.

In the Tarun Bh,uat Sangh, Alwar v. Union of India case, the Supreme Court saw
an open-and-shut case wherein mining activity in protected areas was a violation
of Statutory Acts such as Forest Act, Wildlife Protection Act and Environmental
Protection Act. The petitioner argued that license for mining has been given by
the State of Rajasthan in the pwtected forest areas without the prior permission
of the Government of India and therefore appealed the Court to direct the State
to cancel the license. The Court observed that once the area is declared as a
protected forest, it comes within the purview of the Forest (Conservation) Act,
1980. It becomes a forest land within the meaning of Section 2. The effect of this
position is that no non-forest activity can be carried out in the concerned area
except with till' prior approval of the Central Government Even the state
government cannot pUf-;ue such non-forest activity in this area without prior

98
approval. TIms, the Court held that the grant of mining leases/licenses and their
renewal b\' the state government, without obtaining prior approval of the
Central Government, is contrary to law.

In the Ganga Water Pollution case, the Court directed all the .'v1unicipal Councils
and authorities O\'er the areas through which the river flows to discharge their
statuhllT duties .. nd prevent and control pollution. The Court found that the
I\lunicipai Councils h .. d to bear the major responsibility for preventing the
pollution of Gang .. from tanneries and other pollution sources. It also directed
Pollution Control Boards to close down those tanneries that were releasing
effluents without pre-treatment into the river thereby violating Water
(Prevention and Control of Pollution) Act, 1974 and also ordered not to give
license to aI1\' new industry unless the industrv has taken adequate provision for
the discharge pf effluents.

Similarly, the Supreme Court directed the Central Government to adhere to the
main notification issued bv it for the coastal zone management. The main
notification for Coastal Zone I\Ianagement was issued in 1991 by the Central
Government under the Environmental Protection Act, 1986 to protect the
ecological balance in the coastal areas and to prohibit development activities in
coastal areas. The petitioner, Indian Council for Enviro-Legal Action, challenged
the Central Government's amendment of the main notification issued for the
coastal zone management in 1991. The amendments made in the main
notification as argued by the Central Government, was required for having
sustainable development of tourism in coastal areas and that these amendments
were effected after due consideration of all relevant issues pertaining to
environment protection and balancing the same with the requirement of
development. The Supreme Court, however, was of the view that the newly
added provision through amendment gives the Central Government arbitrary

99
power, the exercise of which may result in serious ecological degradation and
may make the' \Jo Development Zone' ineffective and therefore this provision
was quashed_ l\:ll suitable reason was given to persuade the Court that such
pro\'isions would not result in large scale ecological degradation and violate
A.rticle 21 of the citi7en<; living in those areas,

TIll' application of legal doctrine by the Supreme Court both in questioning the
\-alidih- of Parliamcnt power and reminding the administrative agencies to
dischargc their duties for environmental protection, however, has not been
uniform in all l'll\-imnmcntal cases_ The hands-off approach by the judiciary
towards go\'crnnwnt decision and administrative actions in environmental
qUl'stions MC l'\'ident in many of the environmental cases where judiciary has
l1(lt exercised its review power in othl'T environmental cases, The traditional
adjudicatoT\' mlldcl, which allows Judicial review of only the legality and not the
correctness (1f .ldministrative decision, looks at environmental decisions as mere
administrative matters and not as complex environmental problems_ For
instance, in the case of Dahanu Taluka Environment Protection Group and others
\' Bombay Suburban Electricity Supply Company Limited and others, the
petitioner objected to the clearance by the State of ;vlaharashtra and Union of
India, to set up a thermal power plant in Dhanu, lv1aharashtra violating
environmental guidelines under the Environmental Protection Act, 1986,
Allowing the government to set up the thermal power plant, the Court observed
that, on one hand, it is primarily for the governments concerned to consider the
importance of public projects for the betterment of the living conditions of
people_ On the other hand, it is for the necessity for preservation of social and
ecological balances, avoidance of deforestation and maintenance of purity of the
atrnosphen. and water in the light of the various factual, technical and other
aspects that may be brought to its notice by various parties thereby striking a
balance between these two conflicting objectives, The Court's role is resh"icted to

100
examine whether the government has taken into account all relevant aspects or
not and that it has neither ignored nor overlooked any material considerations
nor has been influenced bv extraneous or immaterial considerations in arriving
at its final decision.

Similarly, in the Tehri Bandh Virodhi Sangarsh Samiti v. State of Uttar Pradesh
case, the petitioner has argued that while planning for the Tehri Hydro Power
Proiect and the Tehri Dam, safety aspect has not been taken into consideration by
the government. Unlike the environmental litigation on Coastal Zone
Management, the Court however, has not que~tioned the decision of the
government and held that questions relating to the design of the dam, the
seismic potl'ntial of the concerned site and the various steps which have been
taken for l!J1Suring thl! ~afetv of the dam are highly intricate relating to science
and enginl!ering The Court does not possess the requisite expertise to render any
final decision on the ri\·al contentions of the experts. In its opinion, the Court can
only investigate and adjudicate the question as to whether the government was
conscious of the inherent danger or not as pointed out by the petitioner and has
applied its mind to the safety of the dam. In Rural Litigation Entitlement Kendra
v. State of ettar Pradesh case, the Supreme Court has admitted this fact and has
observed:

"It is for the gOl'enrment and tire IIlltioll, and not for the Collrt, to decide whetlrer
the l,mestone deposit should be exploited lit the cost of ecology and en·l'ironment
colIsideratlOns or illdustrial requirements should be otlzenl·isf satisfied.
GOI'cl'llInenf should tllkc il policy decision III lit firmly //Ilp/clI/ent tile sallu:"88

Likl'wise, in the Sachidanand Pandey v. State of West Bengal, a proposal for five
star hotel near a zoological garden was challenged on the ground that the hotel
would disturb the migrant birds visiting the region. The Supreme Court

.' Rural Litir,ation Entitlement Kendra v. State of Uttar Pradesh, AIR 1987, SC 363

101
rdrained from interfering with the project, observing that the state government
had perused all objections, expressed willingness to remove difficulties, if any, in
the management of the zoo and thus, had applied its mind to the environmental
consequences of the project. The executive makes decisions after balancing
development needs and environmental factors and Courts do not carry out such
balancing acts. TIle Supreme Court found itself justified III accepting the
decisions of the executive because it had balanced all the relevant
considera tions"9

As is e\·ident from the discussion above, the application of legal factors to resolve
em'ironmental disputes is a part of the constitutional duties of the judiciary,
which it has drawn from the existing green laws and policies in India.
:\cvertheless, its application has not been consistent in resolving all types of
environmental disputes. The hands-off approach of judiciary in certain nature of
cases and its observation on the validity of government's duty policy decisions
brought to the surface the fact that the application of legal doctrines is very
circumspective. These legal factors have also failed to explain why the judiciary
behaves differently in resolving environmental disputes. In this context, it is
important to analyse the applicability of legal factors in relation with other
factors such as; ideological values and preferences of judges, resource of litigants,
and the prevailing socio-economic environment to have a better understanding
about the' greenness' of the Indian judiciary.

3.3.2 Extra-legal Factors

3.3.2.1 Ideological Values and Preferences of Supreme Court Judges


It is argued that when various judges disagree and demonstrate consistent
patterns of voting behaviour in the choices of their decisions, it is evident that
not only non-legal considerations are operative, but that the judges, like any

"Sachidanand Pa ndey v State of West B~ngaJ, AJRJ987 SC 1109

102
other human beings, also have political, economic or social philosophies which
influence their own behaviour in the decisions. As pointed out by Gadbosis
(1970; 198.5), some judges have supported the government consistently in

litigation pitting the individualj private interest versus the State, while other
judges have been equally consistent in rejecting the government's position
therebv demonstrating support for the individual and private party.
Chakravarthy's (200D) research on Decision-Making of the Supreme Court of
India from 1977-88 has also categorized judges as pro-individual (Justice
Chinnappa Reddy, Justice Bhagwati, Justice R.N.Mishra, Justice Fazal Ali) and
pro-state (Justice Sen, Justice Datt, Justice Krishna Iyer) on the basis of the voting
behavirour of 21 judges in the unanimous decisions.

Following the an .. lysis of Gadbosis and Chakravarthy, the present study could
have reached to the conclusion that in environmental cases judges are pro-
individual and pro-environment in more than 90 percent of cases and pro-state
and anti-environment in less than 10 percent of cases. (Out of 104 total
environmental cases only in 10 cases judges have dismissed petitioners' appeal,
whereas in 9-t environmental cases judges have given pro-environment
judgments.) The present study, however, examines the ideological value of
judges in the context of, environmentalism of the poor or middle class
environmentalism in arriving at the decisions. Also, it seeks to explore what are
the factors that determine the ideological values of the judges and whether they
change or remain consistent.

As mentioned earlier, there has been a common thread of pro-environment


approach from 1980 to 2000 irrespective of the judges deciding the cases,
petitioners filing the case, and location of the environmental problem.
Importantly, in a majority of cases the judges have relied on statutory acts and
constitutional provisions to resolve environmental disputes. For example, when

103
a fudge directs to close down industries for non-compliance with law or order to
stop mining activities in forest areas for violation of Forest Act, it can be
attributed to the simple application of legal doctrines. The ideological values of
the fudges for resolving environmental disputes, however, can be captured when
the judge does something which is beyond the explanation of legal doctrines or is
a deviation from legal doctrines. In other words, it is not the interpretation of
environmental law as per its purpose that makes a judge green but it is the
infusion of new environmental values or application of innovative methods
beyond the legal text which makes the judge green. There are a number of
environmental cases that explain how the ideological values and preferences of
judges have made a difference in the outcome of environmental litigation. The
following section briefly examines selected cases to explain the ideological values
of judges in the deciSion-making process.

As discussed earlier, in the Dehradun Limestone Quarrying case, the Supreme


Court received a letter from Rural Litigation and Entitlement Kendra, an NGO
based in Dehradun, requesting to direct the Government of Uttar Pradesh to
close down large number of leases of lime-stone quarries, which were posing
threat to the ecology of that area and health of not only human beings but also of
all inanimate and animate things. The usual procedure to entertain litigation
should be through the registration of these cases in the Supreme Court which
should have invoked violation of legal doctrines for the protection of
environment. In this case, Justice P.N.Bhagwati accepted the letter as a writ
petition under Article 32 of the Constitution, and issued notice to the
respondents. YIl This procedural change to entertain letter for the protection of
environment is rooted in his personal understanding about environmental
problems as he believes that the environment cannot speak for itself and hence
cannot initiate the judicial process. Therefore, somebody has to take the initiative

'OIl: AII~ SC 653

104
to draw the attention of the judiciary for its protection and improvement. He has
also expressed his concern that in environmental cases, the parties affected by
pollution are a large, diffused and unidentified mass of people Y1 Therefore, the
question arises as to who ought to bring such cases to the court's notice where no
personal injury, in particular, has been noticed. In such circumstances, somebody
has to draw the attention of judiciary to ensure justice to people and protect the
eny iron men t.

One of the important factors contributing to the relaxation of the IOCIIS standI

principle and allowing third party to appeal before that Court is the individual
interest taken by the judges (especially Justice P.N.Bhagwah and Justice
V.R.Krishna Iver) in the post-emergency period. The idea behind introducing PIL
has been to help the poor, illiterate and disadvantaged sections of the society
who cannot afford to approach the court to get justice and hence on their behalf
citizens having resources can represent them in the Court of law 92 The same
logic has been extended to environmental cases allowing third party to speak on
behalf of the environment and also represent the voice of those affected party
from environmental pollution who cannot approach the court due to several
reasons.

The philosophy behind the entertainment of petitions for the protection of


environment without questioning the bonafide of the petitioner has been widely
shared by many other judges of the Supreme Court from 1980 to 2000 who in
delivering judgments on environmental cases has largely relied on the
precedents laid down by Justice P.N.Bhagwati. For example, in the Vellore
industrial pollution case (Justice Kuldeep Singh, R. Venketaswamy and Fiazun
Uddinen), in the case of Bichhri Village Pollution in Rajasthan (B.P.Jeevan Reddy

91 Interview with Justicf' P N.Bhagwati


42 In introducmg P'IL Justice Krishna Iyer was influenced by the Australian Law CommiSSIOn Report
(Int,',view with fustlCe V.R.Krishna Iv er )

105
and B.\J.Kripal), in the Patancheru industrial pollution case (Justice' A.M.Ahmedi
and KS. Paripoornan), in the Coastal :vlanagement case (Kuldeep Singh, S.
Saghir Ahmad and B.N.Kripal), in the case of M.C.Mehta v. Union of India
(Justice Kuldeep Singh and 5. Saghir Ahmad), in the Tarun Bharat Sangh v.
Cnion of India case (J ustice M.N. Venketachaliah and K. Jayachandra Reddy), etc.
the petitioners are not affected parties. TIley have drawn the attention of the
judiciary for the enforcement of legal doctrines aimed at the protection of
environment and the Supreme Court judges has entertained these cases and
applied the legal doctTines for the protection of environment.

It is, however, found that the concerns of judges for environment protection by
allowing third parties to speak on behalf of the environment has largely been
shaped bv the increasing awareness about the environmental issues since 1970s
and are not inheritably their individual understanding on environmental issues
through legal training. As it is found that endronment has become a part of legal
education in the mid-1990s and the judges who decided the cases from 1980 to
2000 had not been exposed to environmental issues in their legal education.
Nevertheless, individual judges like P.:\.Bhagwati, V.R.Krishna Iyer in the 19805
and Kuldeep Singh in the 19905 have taken special interest in understanding
different dimensions of environmental problems. For example, Justice Krishna
Iyer and P.N.Bhagwati made spot visits to Ratlam and Moussorie respectively, to
understand different dimensions associated with environmental problems before
giving judgements in the Ratlam Municipal v. Vardhichand and Dehradun Lime-
Stone Quarry cases. Not only that, Justice Krishna Iyer was the only judge who
made specific contribution to environmental law literature through his well
known book "Environmental Legal Defense" by highlighting the problems faced
by the judiciary in dealing with environmental problems and methods required
to ensure effective evolution of laws and policies for the management of the
environment. 111e precedents laid down by these two judges in environmental

106
cases have motivated other judges in the applicatinn of law ttl resolve
environmental cases Y'. However, what has motivated other jud~es most is the
increasing awareness among people about the environmental Issues and the way
they are being brought into the public discourse for preventing environmental
degradation and thereby finding solution for it.

As mentioned earlier, since the emergence of environmental movements in Idte


1960s, there has been an increasing demand for the incorporahon of environment
as a core component in the formulation and planning of economic and
development policies. The concern for the management of environment for
different purposes has been highlighted by different environmental movements
in different ways such as for livelihood, quality of life, protecting the intrinsic
value of environment or for the sustainable use of resources for development
activities, etc. n1ese issues are largelv shaped by the behaviour of judges in their
respective judgments but in different ways. for example, balancing the claims fpr
development and environment protection, in the Oleum Gas leak case, Justice
PN.Bhagwati, Justice D.P.Madon and Justice G.L.Oza, while allowing the caustic
chlorine plant of Shriram Foods and Fertilser Company by laying certain
stringent conditions held that "we cannot possibly adopt a policy of not ha\"ing
an" chemical or other hazardous industry merely because they pose hazard or
risk to the community. Industries, even if hazardous, have to be set up since they
are essential for economic development and advancement of well being of the
people"4". In this case, the judges could have closed dovvn the industry as it
violated the common law bv creating public nuisance through leakage of gas,
which in turn affected the health of the people. The judges, however, held that
the closing down of the caustic chlorine plant would be to throw about -l,OOO
workmen out of employment and that such closure would lead to their

9' [t is generally acknowledged bv Indian judges that the precedents [aid down by Justice KrIShna lnr and
P.:-.J.Bhagwah had IMved the way for other Judges to follow the" su11 In resolVing envlfonmenldl dISputes
q,~!C. :Vlehla v. Ulllon of India, AIR 1987 5C 975

107
impoverishment. Also, the Delhi Water Supply Undertaking, which gets its
supply of chlorine from Shriram would have to find alternative sources of supply
that may be quite distant from Delhi.

On the wntrary, in the Ganga water pollution case, Justice K.NSingh and
ESVenkataramiah, while directing to close down tanneries for discharging
unh"eated eftluents into river Ganga held that "we are conscious that closure of
tanneries may bring unemployment loss of revenue, but life, health and ecology
han' greilter importance to the people". Similarly, in the Vellore industrial
pollution case, Justice Kuldeep Singh, Justice Faizan Uddin and Justice R.
Venkctaswam\' also emphasized that the quality of environment: needs to be
protected even though the closing down of leather industry may lead to loss of
re\'enue for the state and unemployment for thousands of workers. Likewise, in
the Coastal Zone management case, Justice Kuldeep Singh and Justice S. Saghir
Ahmad directing to stop intensive and ~emi-inten5ive type of prawn farming in
the coastal areas observed that even though shrimp farming is regarded as
potential saviour of developing countries because, it is a short-duration crop that
provides a high investment return and enjoys an expanding market, coastal
zones need to be protected as they are ecologically fragile areas.

Quite different from the above judgments, in the cases of Tehri Bandh Virodhi
Samiti v. Lnion of India (Justice K.NSingh and Kuldeep Singh), in the Dhanu
Taluk Environment Protection Group v. Bombay Suburban Electricity Supply
Company Limited and others case vs. State of Maharashtra (Justice S. Ranganath
\ilisra, S.C Agarawal and N.D. Ojha) and in the Narmada Bachano Andolan v.
Lnion of India (Justice ASAnand and B.N.Kripal), while delivering their
judgments in the respective cases in the 1990s have emphasized that it is not: the
job of the Court to interfere in these development activities basically on the
premise that these cases have raised scientific and technical issues and policy

108
matters, which are best left to expert authorities of the executive. The vIews
expressed by these judges in all the environmental cases due to infrastructure
projects hiwe supported the arguments as made by the state to carry out its
development activities in the national interest. These judgments are uniform and
consistent in interpretation as well as adherence to certain principle of judicial
understanding that dam construction would meet larger interests of the public
and smaller interest has to be sacrificed for this or construction of power plant is
necessary to meet the increasing demands for energy consumption etc.

It has be ell observed that the judges who are well known for their historical
em'ironmental judgments in other cases have followed one principle of no
confrontatilln with the state. For example, judges like A5.Anand, B.N.Kripal,
K. '\ .singh, Ranganath Misra and Kuldeep Singh are well known for their
landmark judgments on other environmental cases but when they were part of
judgments on en\'ironmental cases due to infrastructure matters they failed to
follow their own principles and approach in the same way to ensure
em'ironmental protection. For example: Justice Kuldeep Singh, on one hand,
while delivering judgments in environmental cases like Delhi industrial
pollution, Ganga water pollution, coastal zone management, etc. gave priority to
the quality of environment overriding other arguments in cases, On the other
hand, he took a hands-off approach in the litigation against the Tehri dam where
he rejected the multi-dimensional problems including environmental issues and
safety of the dam and dismissed the petition on scientific, technical and policy
matter. Similarly, in the Delhi vehicular pollution case, Justice ASAnand,
B.:-':.Kripal and others who had made historical judgment in introducing C!'\G
for all commercial vehicles to reduce the pollution level and ensure right to
health and environment through the recommendation of expert committee,
failed to do so in the Narmada dam case. The common justification given by all
judges who were part of environmental cases involving infrastructure cases was

109
that these projects address larger interest of the nati'on and was necessary f or th e
nation's development and progress%.

Other important issues which reflect judges' restraint approach in environmental


cases were the judges' exercise of discretion power as to whether or not to seek
hL'lp of independent expert committee's view on the multi-dimensional problems
I"l'\'olving around environmental issues and to ensure the implementation of its
llrdl'rs thn 1 ugh monitoring committee. In a number of cases, the judges
<lCknowledging their incapacity to understand the scientific and technical
prnblems im'olving in environmental cases have appointed independent expert
(()l11mittel's to arrive at the decision, For example, in the Banwasi Sewa Ashram
caSl' in 191'7, Justice P,f',;,Bhagwati and Justice Ranganath Mishra, before
dL'li\'l'ring tlw judgl'nwnt appointed a High Power Committee to review the
claims made b\' the displaced people and based on the recommendations of the
wmmittee, the Court directed the National Thermal Power Plant and
Go\'ernmen t of Uttar Pradesh to stricth' follow the policy on facilities to be given
to land oustees, The judges also appointed a Board of Commissioners to
supervise the operations and oversee the implementation of the directions given
b\' them, In the I\I.C.Mehta v. Union of India (Oleum Gas Leak case), the judges
relied on the independent expert committee's report before arriving at the
decision to allow Shriram Food and Fertilser Company to operate with stringent
conditions, Likewise, in the A,P, Pollution Control Board v, M, y, Nayudu case,
tlw High Court of Andhra Pradesh based on the opinion of a single scientist
produced bv the industry, came to the conclusion that if the industry became
operationaL it would not pose any hazard to drinking water. But Justice M,
Jagannadha Rao felt that the opinion of the scientist was not tested or scrutinized
by any expert body and hence required throrough examination. He sought

expert advice from the National Environmental Appellate Authority (NEAA),

<)5 Interview with Former Chief Justice of India AS. Anand

110
which consisted of a retired Judge of the Supreme Co ur t an d 0 tl1er exper t 5. Base d
Oil the recommendation t1f t\:EAA, the Supreme Court set aside the judgment of
the High Court and the order of the Authority given under Sec. 28 of the Water
Act and rL'tused permission for the industry to operate. In the Dehradun Lime
StOI1L' Quarn' case, Justice P.N,Bhagwati, Justice Amarendra Nath Sen and
lustice Ranganath Misra had set up an independent committee for the purpose of
inspecting the limestone quarries and their effect on the local environment.

The judges, however, exercising their discretionary power did not appoint
independent committee to examine the impact of infrastructure projects on
em' ironment and people at large. For example, in the Tehri Dam case, the
g()\'ernment's own expert committee known as Hanumantha Rao committee had
gin'n elaborate report pointing out a series of violations of the conditions on
which environmental clearance to the project had been given by the Ministry of
Em'ironnwnt. The Committee had pointed out that a number of studies, which
\,'ere necessary to evaluate the environmental impact of the project had not been
((lnducted and recommended these to be immediately conducted. However,
despite this, though Justice Dharmadhikari held that in order to ensure
compliance with the conditions of environmental clearance, it was necessary to
cono;titute an independent expert committee which would monitor the
compliance and further construction of dam could only proceed on the green
signal of this expert committee, the majority judgment given by Justice Rajendra
Habu and G.P.Mathur allowed the government to construct the dam without
ensuring compliance with the conditions of environmental clearance of the
project. Similarly, in the Dahanu Taluka Environment Protection Group and
others vs. Bombay Suburban Electricity Supply Company Limited and others
case, the Supreme Court did not follow the report of the Appraisal Committee
which had the opinion that Dhanu is not a suitable location for the construction
of the thermal power plant as it violates environmental guidelines. In the

11 I
"armada Dam case, in giving his dissent judgment, Justice S.P.Bharucha felt
strongh' thilt construction of the dam should not be allowed as it violated
en\'ironmcntal guidelines and proper rehabilitation and resettlement of the
pHlJl'Ct affech:d people h.ld not been taken up by the Government of India.
HO\\'l'\'cr, till' Ilhl)(lrity judgmcnt given by Justice A.S.Anand and B.N. Kripal
found merit in the construction of the dam and report of the government on
rl'llabilitation and rcsettlemcnt measures.

Thc other .lrea of judicial restraint includes the failure of judiciary to implement
its decisi\l!l~. Theoretically speaking, judiciary is not supposed to implement
,ldministratin' decisions. However, in view of the lethargy shown by the
implementing agencies it took special interest in the 1980s not only in giving
dIrections but also continuouslv monitored and implemented its own decisions
thl1ugh it failed to do so consistently in the 19905. The most important reason for
judicial rl'str.lint to implement its own decision was the inconsistent bench. For
l',ample, in the 19805 Justice P.N. Bhagwati and Ranganath I\lishra were part of
m(l~t of the l'll\ironmental cases which resulted in keeping the record of
IInplementation on the directions given by both of them. In the Dehradun
Limestone Quarrying case and in the Oleum Gas leak case, both of them
monitorl'd their decision by appointing a special committee to ensure the
impiL'mentation of thc judicial directions. Similarly, in the 19905, initially Jusitce
Kuldl'cp Singh's CIlntinuation in the bench and his special interest to monitor the
dIrections givl'n by him brought changes in the implementation of judicial
dirl'ctions. For l'xample, in the Veil are industrial pollution case, Justice Kuldeep
Singh asked thl' Green Bench of Tamil Nadu High Court to continuously monitor
judicial dirl'ctions and keep informing the progress in that direction. In the late
19905, Justice A.5.Anand, B.N.KripaL V.N.Khare also ensured the
implementation of judicial directions. For example, in the Delhi Vehicular
Pollution case, these 3 judges made it mandatory on the part of both the

112
G()H'nlml'tlt of Indid dnd the Delhi Government to convert all commercial
n'hicles intn eNG within a snecified
. t
date . There werI' many illS
. tances 0 f suc h
\1,lhlre \\'here the continuatil)J1 of the bench made a difference not only in giving
directipns but aisl) in implementing their decisions. The continuation of the
bench also made a significant difference in terms of resolving the case within a
specified period of time in cnmparison to resolution of cases bv different bench
on a particular case.

Tlw l1(1n-implementation of judicial decisions in most of the cases can also be


,lttributl'd h' the non-continuation of the bench which gave the directions to
I'rptl'ct ,mel improve the enviwnment. For example, in the Ganga "Vater
1'"llll tlpn (,lSI', Justice K. :\Singh and E.5.Venkataramiah gave a number of
prPlllising directions but after the retirement of both the judges, successive
Judges did npt P,l\" IllLlch ,1ttention to monitor or direct the implementing
,lgl'ncil's t" submit periodical reports on the progress of implementing the
Judicial dl'cisipns. It is also found that successive judges did not take much
IIltl'H,.,t in the earlier directions gil'ell bv their predecessors. As a result, there
\\,lS total chaos in till' implenll'ntation of judicial directions. For example, since
the final :\,lrn1.1d,l dam judgment in 2000, there has been continuous struggle
and judicial attention has been drawn several times for the implementation of
rehabilitation and rcsettil'ml'nt of project- affected people. Even the Government
appointl'd Group of .\hnisters' committee found that rehabilitation and
re'iettknll'nt of thl' pn1Ject-affected people had not been completed but
'iUccl'5sin' judg,,<; did not think it mandatory on their part to stop the
construction of the dam and rather allowed the Government of India to raise the
height of the dam. Similarly, in the Delhi industrial relocation case, the judges
while giving directions to close down industries or to locate outside Delhi made
it clear that the workers should get the compensation .,... hatever they deserve
according to law and industries must be relocated from Delhi. The direction of

113
the Court, however, was not implemented by the government on the ground of
non-availablility of land to shift the industries and workers' right to
compensation appeal was also rejected by the subsequent judges.

3.3.2.2 Impact of Prevailing Socia-Economic and Political Environment


The a bo\'l' judgments from 1980 to 2000 given by different benches comprising of
lhfterent judges might have derived their ideological preference for
l'm'ironml'nt,ll protection from constitutional provisions like Article 48A and
:; 1.-'1 and a number of statutory act and common law principles but the emphaSiS

of different \'aIUl's in arriving at the decision seems to be largely shaped by the


prevailing public discourse on environmental issues. As rightly pointed out by
Cllbind D,lS (20m), the current political mood of the country, the prevailing
l'conomlC situati(ln, and the dominant ideas prevalent in the society at a
particular time have governed the activities of the Indian judiciary. TIle values
th,lt thl' court seeks to uphold during any particular period are determined by
such ideas and the Court's own appreciation of the needs of society .

.-'1 closer hluk at the history of judicial functioning in India offers good illustration

ot the fact that hllW the prevailing socio-economic and political environment
dl'tl'rmined till' outcome of judiciary. In the early years of independence, in a
Nehruvian era of economic progress and political stability while apparently
maintaining a balance of power, the three wings of the State functioned with
respect to each other. However, in the subsequent years, a struggle over custody
of the Constitution began between the judiciary and the Parliament. These
struggles first revolved around the interpretation of the Directive Principles of
State Policy to bring social revolution by the State and judiciary'S emphasis on

114
Fundamental Rights as superi()r to Directive Principles of State Policy%. The
Congress governments continued carrYing . out socJ'al an d economIC
'fre orms,
pMticularlv land refnr l1ls, confronted with the Supreme Cnurt's interpretation of
tIll' written Constitution technicallv and its insistence to uphold Fundamental
Rights, particularh' property rights (Rudnlf et. al 1987; Sudarshan, 1(90). These
stTUggles resulted in bringing a number of amendments 97 tn the constitution by
the Parliament to keep the judiciary away from its socia-economic policies98

In thl' culmination of till' tussle of constitutional amendments and judicial


rC'\'il'w, the Supreme Court questioned the competence of the parliament to
changL' thL' basic structure of thL' Constitution. TIle resentment of the executive
n'M)wd Its height during the emergency when the government seriously
wnsidl'f<.'d abolishing a Supreme Court capable of judicial review. The
CI'ntn'nt,]tiun between the rudiciary and parliament was, however, normalized to
SUIlIl' c'\.IVllt during thl' Janata Party regime (1977-80) During this period, the
l,lIl,H,] ['.Hty brought several amendments"" to restore the image of Indian
JudiciarY )n the pre-l'nlL'rgency period the judiciary was uncomfortable with Mrs
Indira Gandhi's politica) and economic reform policies. As rightly pointed out by
G(lbind Das (200 L p.2.!), whenever the Court opposed her policies it had to pay
the pena)t\· in the form of supersession of judges and constitutional amendments

'" In C;ol.,k ".th \. Stdt" of PIII1ldb ,-\lR 1%7(2) SCR 7l'>2. the Supreme COUrt held thdt rdrhdment WdS not
fumpett'nllo 411lH'nd tilt' (hrtplt'f on luntirUlW'l1tal fights In the Constitution so as to ~akf:' aWdj' or r'lbridge
thosp rights
"~ First Fourth dnd SevP'lltf'f'nth Amendnwnt contained thf" Ninth SchedulE" ",.. hlfn propospd that land
ft'nurt'" lltW5 \'\'('r("lu ht" (>'lCempted Irom ;udkiaJ SfTlJtmy The Tv.enty-FouJ Amendment gavE" P"rllamr-nt full
(on-;lttut"nt PO\''I"r-r over tht" COnstitutIon for addLtion, variation or repeal. The T\.\'enty-Fifth Amendment
dpllit'd (ourb jUr15,didion over governmpnt dcquIsltlon and requisition oj proJ}C'rty dnd conlp.ens~tion f~r ,tt
"11 In response to government's sonar revolution policy (havmg to d~ dh'cly ""'lth pf"rs.o~a] h,be,rty, aS5~s.tll\g

hdckwdrd Sf"t"ilOIlS of tht' soc jet\', Zal11UH.iMi abolition, taking ov('r pnvate propf>rty) nhzens hied petitIOns
<md sevpral High Courts and tl~p Suprf>l1u' Court re-ad Article 31 and inte-rpreted the \'\ford.compensation in
tht' cldssicill IlMl1Iler to mean a fair I?qun,.'dlpnt Vdluf" for the property taken In d number 01 (.1SE'S. tht> Cour~
"',:"50 indignant that thp Ir'lndloros ". . ·erl? heing unjustly d£"prived .of the (Olllpel15fitlOn due to them hp(iUlS(" ot
Ihe ilboht)(lll of their ziuninddris. TIlE" Court was sympatheh( to the ClalInS for (OmpensdtlOll and the
proviSions of the various stdtutes connected "'ith compensation ..,:ere struC"k down because ot IIMdequate
proviSIOns made for giving (ompensahon. . . .
.", 42"" and 44" Amendments during Janata Regime dismantled the ConstItutional amendments brought mto
Idw by the Congress party.

115
and \,'hell it Supp(lrted her policies it was criticized by public. In the post-
l'llll'rgl'llC\' period, the C(lurt sought a revival of the pre-eminent position that it
h,ld It)st d millg till' 1'IllL'rgencl', In the post-emergency period, the court did not
lllterfefe \\lth the majnr political and ecollomic questions and opened up new
fields pf intl're"t ,md difft'rl'nt Meas of judicial activities, It chose the poor, the
hl'lpless, tilt' I 'ppre""l'd in tIll' name ()f ensuring s()cial justice, constitutional
(l(hcil'IKl' ,\l1d till' rule pf law, The battle with the executive shifted from the
... tructurl· "I till' b"I1\' p"litic ttl the dl'tails of the w()fking of the executive (Rudolf
\'t. ,\1 IlJl"7, ..... oltllt', Il)l)~)

I hu", in till' pI ,..,t-l·l111'rgl·nCl' period. the Supreme Court started pursuing the
public C,lU",' olnd th,lt of labouf and disa,h'antaged groups, The chapter on
FUl1d.lllll'nt,\1 Right~ in tl1\' Comtitution of India protects freedom of individuals
Irpm I,l\"lllol]"lllg P(l\\'l'fS (If the state, The Supreme Court has expanded the
llll'ollllll)!, p' tl1l' ..,t,lk ,\.., defined in Article 12 to include almost all description of
b"dil· ... \\Inch cpuld be' ckenll'd instrumentalin' ()r agency of the state, It has even
lllc!Ulkd pnl'.ltl· ([lll1p,lI1il's if thefe is an unusual degree of state control. Article
21 "I tl1l' l \lllstitutinn rl'stricts the state from depriving any person of his life or
IIbert\' l'"n'pt ,KC(lfding tn the procedure established by law. The Supreme Court
1Il till' pre-l'ml'rgl'lln' efa just satisfied itself whether there was a procedure or
not and \\'lll'tl1l'r that procedufe was followed or not. It did not review the very
pwn'dufe itself, After emergency, the COUft has asserted that if it does not
I'l'l (l'W till' procedure, the state could make any procedure and render the

pflltectinll gll'l'll to the individuals meaningless, The court has insisted that the
pl'l".;cribed pl'OCeduTt' should be fair. just and reasonable HK1 , Going a step further
it 11,1<; interprett'd life to include livelihood arguing that if this is not so then the

i,", 111 tilt' MC"Hdkrl CmzdlJl v limon of India Cdse, (AIR 1978 SC 597) whifh rC'id't"d to thE" Issue of a passport,
th .. rourt under tht> leadPrship of Justice Bhdgwati held 11M! the procedure established by law in ArtIcle 21
mus( satisfy the test of Just. fair and reasonable in Arlide 14.

116
simplcst thing for the state would be to deprive a person of his life by depriving
hlln ()f his lin'lihood.

In thL' fonn,11 organization of the judicial system, only an aggrieved party could
gll to ,1 (ourt for secking remedy. The Supreme Court under the leadership of the
tlwn JUStiCL' \·R.Krishna IYerli)1 and Justice P.N.Bhagwati have exposed the
Cllurts to public spirited persons who are pursuing a public cause thereby
L'nsuring access to Justice for all including those who themselves are not capable
tll approach thL' court and alhnving any third party on their behalf to bring their
sutlL'rings to the notice of judiCiary. Further, Article :12 vests powers in the
SuprL'I11L' C(lurt to pnl\'ide remedies to the aggrieved persons, which includes the
p(lWL'r ttl Issue directions and writs. As a result, a number of cases have been
brought ttl judicial ,1tlL'ntion including violation of prisoners' right, women's
right, p)'ohibltll1g child labour and more specifically protection and improvement
of l'Il\'jr(ll1l11L'nt.

It W,1S dUring this period that India has also witnessed the emergence of
L'lwironl11ental nHl\'ements challenging the state-centric development policy that
f,1iled to take ('I1\'ironment into consideration and marginalized the interest of
PO(l)' pcople. El1\'ironmental movements such as Chipko Movement, Appiko
;,,]o\'cmenl, Gandhamardhan Movement in Orissa, etc. worked in collaboration
with threatened communities and demanded that the State should recognize the
rights of local people in the use and management of natural resources, Similarly,
animal rights activists and wild life preservationists demanded the protection of
wild life bv creating national parks and sanctuaries and prohibiting human
activity in the protected areas, After the Bhopal Gas Tragedy, the urban
environmental movement emerged in India demanding the preservation of

101In introducing PIL in India Justice V.R.Krishan Iyer was influenced by thf' Australian Law Commission
Rl'port (Intervil'w with the Judge)

117
qualit'r', of environment to live in a health",_ environmen,t In tl1e In d'Ian context,
however, there are \'ery rare occasions
. where teh '
enVlTonmenta I movements

ha\'e succeeded in convincing the state to take measures for prevention and
degradation of environment. In most of the occasions, the state has either rejected
tlw initiatives of the environmental movements or has not paid any attention on
\'arillUS )!;rounds, It was under such circumstances that the environmental
nlll\"L'!11L'nts scek the help of judiciary, which they consider as the last resort to
,]ddrcss cJ1\'ironmental problems, Although there are environmental movements
\\'hich see judiciary as a part of state institutions and continue their struggle
outside thL' state sphere, the activism shown by the judiciary in the post-
l'nWr)!;enc\' period to uphold the fundamental rights of people and Constitutional
pW\'isions through due process of law has made environmental movements to
seck tl1L' 11l'Ip of judiciary for the protection and improvement of environment
(1.1\,]1. 2IHHI)

...\s ,] result, sincL' lYHOs there has been a flurry of environmental cases filed by

l'J1\'Irlll1l11ental movcments/activists for the protection of environment for


diffvrcn t purposes, For instance, the movement for preserving the quality of
L'Il\'lronment to live in a healthy environment through scientific and technical
kn(JwiL'dge, especially by urban middle class groups/ NGOs had a significant
Impact in the public discourse on environmental issues in India, Similarly, the
em phasis on the protection of wild life and prohibiting human activity in
'\anonal Parks and Sanctuaries as argucd by the animal activists and wild life
pn'servationists through state intervention had become a dominant force not
only in the legislation of Wild Life Protection Act but also seemed to shape the
behaviour of judges in the decision-making process on environmental issues, The
judicial outcomes from 19RO to 2000 subscribe these values when it emphasizes
that the quality of environment needs to be protected even though it may lead to
close down of industries, loss of revenue to state, unemployment for thousand of

I J8
workers or deprivation of local people over the use of forest resources, Whereas
the rights of industrial workers due to close down of industries and rights (If
local and tribal people over the use of forest resources as advocated bv social
activists are not much concern of judges in the process of preserving the quality
of environment.

An overview of the Supreme Court judgments on infrastructures cases in the


[9905 also suggests that the court has moved forward and backward, eventuallv
drawing a line, combining the judicial function with policy making, One of the
important factors which shape judicial decision in infrastructure cases can be
ath'ibuted to the changing public discourse on development and environmental
issues in the 1990s, As we know, in the early 19905, there has been a shift in the
economic policy of government from mixed and state controlled economy to
lihrillisation of national economy, which has an impact on the use and
management of natural resources (Sundaram, 2002), [n response to the fiscal and
balance of payments crisis in 1991, India launched a program of economic policy
reforms, The program consisting of stabilization-cum-structural adjustment
meilsures was put in place with a view to attain milcroeconomic stability and
higher rates of economic growth, The post-economic reforms witnessed a series
of economic plans for rapid expansion in industry, transport and other
infrastructure, with the aim of achieving sustainable acceleration in growth,
increased production and employment. to reduce poverty and inequality of
incomes and wealth and to establish a society based on equality and justice, Since
till' intn)duction of L'cpnnmic rl'iPTI11S in India. till' major thrust (If the cpuntlY has
bl'l'll to achieve faster l'colwmic gwwth, higher eXpllrt earnings, greatl'r foreign
e>.chilllge reservl'S and L'nhancl'd foreign direct iIWl'shllent. EnormPlls dfllTt~
ha\'c bel'll directed tt1\vards <1chie\'ing the dcsired gO<lls in all these maCHl-

<'cnnnmic paranll'tcrs,

119
\\'hile it is heartening tll note the accomplishln"llts
. ~."
~t th e macro-eCOn(lmIC
- . t-ron t,
it is equall\' disturbing th'lt the enhanced rate of eCOlHll1lic growth has failed to
,lddress certain issues of vital importance; especidlh' its impact on the physical
environment. According to the Ministry of Agriculture (1993), soil erosion and
land degradation have assumed serious proportions in the p(lst-1990s. Similarly,
forest cover has come down in the 1990s. There has also been increase in air
pollution level in different parts of the country (Dursbeck, Erlandsson and
\\'('a\"('r, 2001). Although the policy-makers in bringing development activities
feel it necessary that natural resources have to be used in a sustainable manner,
the\' arc not able to reconcile development activities with the environment and in
tIlt' process environment became secondary issue in the planning process. The
(lPP(lsitions to these development activities by any societal forces are branded as
<1nti-de\'elopment and anti-national groups. Environmentalists argue that
unconstrained economic growth would lead to the exhaustion of non-renewable
resources and to levels of environmental degradation that would seriously affect
economic production and the quality and existence of life (\1eadows et aI, 1972),
The de\'elopment activities, however, are rather considered necessary to make
India a progressive nation and to meet the increaSing needs and demands of the
people such as water supply, power, energy, transportation, etc. through
industrialization, railway lines, airports, construction of dam and thermal power
plants. For this purpose, the Government of India has opened up its economy for
more inveshnent in various public and private projects subscribing to the
principles of globalization_

At the same time, the forces of neo-liberalism and globalization are so strong that
nation-states, especially developing countries like India, could not find out any
other alternative for sustaining their economic activities, The policy perspectives
advocated bv international agencies such as the World Bank and the IMF also
dominated the policy discourse in 19905 in India. At the domestic level, the

120
policy. outlines of post-liberalisation period llas b een proJec
. t ed to h ave
dccelerated GDP growth (Ahluwalia, 1997); reduced poverty (Tendulkar, 1997);
increased foreign direct investment in development sectors and infrastructure
building (Ahluwalia, 1998), etc. In the name of development, successive
go\'ernments have allowed private contractors, mme owners, industrialists,
multi-national companies to encroach upon public lands and pastures and
tl1l'reby causing destruction of forest resources and other natural resources.
"either the planners nor the bureaucrats have given any serious thought to the
environmental degradation and the suffering of poor people implied in the
dl'\'elopnwnt process. Rather, these development initiatives have been widely
followed by successive governments and political parties both at the centre and
state level, irrespective of their ideological differences on economic reforms.

Judiciary as part of the state institution has not been able to find out its own way
of interpreting the development policies, which have not shown any concern
either for the environment or rights of the poor and disadvantaged sections of
the society. The study finds that most of the judges believe that India needs
dl'\'dopment activities for the larger interest of the public or for the national
interest as pronounced by the state. Several public interest cases were filed
during this period challenging alleged perversions, corruption and other
illegalities involved in the implementation of the new economic policies but
judiciary rejected almost all these cases. For example, in the BALeO Employees
Union v. Union of India, the petitioner B.LWadhera on behalf of the employee's
union of the government company had challenged its disinvestment on various
grounds including arbitrary and non-transparent fixation of its reserve price. The
Supreme Court observed that "public interest litigation was not meant to be a
weapon to challenge the financial or economic decisions which had been taken
by the government in exercise of their administrative power. :\10 doubt, a person
personally aggrieved by such decisions which he regards as illegal, can impugn

121
the same in the court of law, but, public interest litigation at the behest of a
stranger could not to be entertained 1Il2".

Similarl\', in Centre of Indian Trade Unions v. Union of Maharashtra, where the


validity of the Enwn power project had been challenged on the ground that it
was being set up in violation of Section 29 of the Electricity Supply Act, that the
project would be ruinous to the finances of the state electricity
, board , and that

there was adequate circumstantial evidence of corruption in the sanction of the


project. The court, however, refused to examine the challenge to the project itself
(Ill the ground that they did n0t think it to be in public interest to go into the
\'alidity of a project which had been substantially set up and against which
scveral previous challenges had been rejected by the courts, In Union of India v,
;\zaadi Bachao Andolan, the High Court had struck down a government circular
which compelled the Income Tax (IT) authorities to exempt post box companies
rcgistered in :vlauritius as offshore companies, from taxation in India on the
ground that such a direction vi(llated the IT Act and prevented the IT authorities
from lifting the corporate veil of these post box companies in order to examine
thcir real place of residence, The Supreme Court, h0wever, reversed the high
court decision, Iwlding that the government could in terms of its economic
policies grant a tax holiday to f0reign companies in order to attract foreign
ilwcshnent t ''', Likewise, in the Centre for Public Interest Litigation v, Union of
India case, the Supreme Court dismissed the plea for an independent
investigation into the government's decision to sell off developed offshore gas
and oilfields from ONCC to a private joint venturelll~,

The above decisions of the Supreme Court judges were largely shaped by the
way government took initiative and prescribed its economic and development

" AIR 2002 sec (2) 343


:>1AIR 2003 SCALE (8) 287
'" AIR 2000 SCC (8) 6D6

122
activities. Importantly, tl1ese kinds of adherence to government economic policy
and development projects were also reflected in judicial decisions on
infrastructure projects. As indicated earlier, in the :\"armada Bachao Andolan
\"l'l"SUS Union of India case, despite the dissenting judgment of justice
5. P. Bharucha, pointing out that the Sardar Sarovar Project was proceeding
without a comprehensive environmental appraisal, majority of the successive
judges allowed the government to construct the dam without any comprehensive
L'11\'ironmental impact assessment which was necessary even according to the
g(l\'ernment's own rules and notifications. The underlying reasons and ideology
IX'hind the subnrdination of the cause of the environment to the cause of
dcvelopmcnt is also evident from majority of the judgments in public
infrastructure projects. The judges were so impressed by the development
acti\'ities of the big dams that the\' could not even restrict themselves in
highlighting the benefits of development brought in by large dams. For example,
the judges remarked that big dam like the Bhakra dam was responsible for the
grl'l'll re\'lllution in tIll' country.

The court. however, did not allow :\armada Bachao Andolan from making any
submissinns on the pros and cons of large dams. All the judges, irrespective of
their background and concern for individual rights and environment in other
nilture of cases, held that in case of conflicting claims relating to the need and the
utilit\' of any development project. the conflict had to be resolved by the
executive and not b\" the courts. The same subordination of environmental
interests to the cause of development was evident in Supreme Court's judgment
in the Tehri Dam case and the construction of power plant at Dhanu Taluk in
I\laharashtra, .vhere the government's own expert committee had given an
elaborate report pointing out a series of violations of the conditions on which
environmental clearance to the projects had been given by the =V1inistry of

Environment and Forests.

123
The judges even held that if a project is stayed on account of a public interest
petition which is subsequently dismissed, the petitioner should be made liable to
pa\' for the damages occasioned by the delay in the project In the words of the
cnurt, "anv interim order which stops the project from proceeding further must
rl'imburse all the cost to the public in case ultimately the litigation started by
slich an individual or body fails" (Ranauk International v, IVR Construction and
others, AIR 1998 (6) SCALE -156), Cnlike the use of discretionary power in
entertaining environmental cases, the judges maintained a distance with regard
ttl cases against public infrastructure projects, The efforts made by the petitioner
through variolls strategies including mobilization of people, intensive critical
debate and discussion on development projects and its alternative, use of media,
submission of facts and materials through research activities, highlighting the
plIght of affech'd people, particularly the tribal and other disadvantaged groups,
h,]H' had not been able to influence the decision of judiciary in a significant
manner and failed to achieve their respective objectives, In such nature of cases,
the thl'or\' (If resource inequalitv is not applicable as the petitioner had all
rl",(lUrCl'S but tailed to convince the court

;\[) these Judgments given bv different judges correlate with the policy outlines
sl't by the government of India underlying the economic reforms and facilitating
the interests of free markets and aIlO\ving investments in major infrastructure
projects, These judgements also undermine the role of the state in safeguarding
the environment and right to life to its citizens which deviate from judiciary'S
own judgments in other cases upholding constitutional provisions for the
protection of environment The economic reforms carried out by the government
of India are largely a complex and contradictory process. Scholars have argued
that the economic reforms brought transformation in the Indian economy where
India becomes a proud partner in global economic exchange, The present
scenario, however, suggests that instead of creating congenial and favoruable

124
conditions for the state ' the process of Il'berall' za ti' on III
, Ini.j'la IS
' harnesse d
relentlessly to the ends of the most advanced countries of the North (Baxi, 1996),
The forces of globalization and liberalization are also counter to the
constitutionally desired forms of social order of an independent India and the
thoughts of Gandhi, The Constitutional provisions, especially Parts III and IV,
elwision a model of just Indian development according to which only those
de\'L'i()pment poliCies are just which disproportionately benefit the masses of the
Indian imp()\'Crished,

Similar"', Gandhi l'lwisioned a just society where the policy maker while making
polic\' should kL'l'P in mind that the policy which he makes has to help the
P(l(ll'l'st of the poor in the society, Instead of benefiting the poor and the larger
masses of tIll' society, the forces of globalization, have been widening the gap
between rich and poor and a global North and global South is emerging within
India, The judges, being the protector of constitution, must keep the vision of
constitution t() ensure justice to all people of India rather than sidelining minor
in terest for the larger in terests of the society, Neither the hegemony of the state
managers of Indian globalization nor of a free market should come in the way of
Judges' dl,tl'rmination to protect the constitution, Their judgments on
i.'!1\'ironmental cases should not only be aimed at disorganizing small business or
IIld ustry owners by closing down for polluting the environment while leaving
multinationals in principle, but should also ensure strict accountability at law
,lnd constitution thereby allowing state to formulate public policy for larger
interest of the society without paying due attention to the poorer sections of the
society,

The government's decision on any infrastructure development project, however,


had been seen as a policy decision that could not be interfered with, The court
did not substitute its judgment for that of the legislature or its agents as to

125
matters which fall in the domain of other organs. TIle court did not even take the
suggestion of independent committee to arrive at decisions. In all such cases,
judicial enquiry was confined to the question of whether the findings of fact are
reasonablv based on evidence or not and whether such findings are consistent
with the laws of the land or not;r6 These judgments had made it clear that in the
context of environmental issues, the judges alone had the prerogative to draw the
line of interference as in its own words, these issues were too important to be left
to the officers drawn from the executive. The summary of the individual judges
positions on different issues in resolving environmental cases are given in Table
3.2.

126
Tahl~ 3.2 [)im~nsions and I'r~h:r~nccs of .Judgt.·s in .Judicial [)~cisions on Environmcntal Cascs

SI I"ar-t of Elpandt"d TOlttl numbtr of dtcision~


of
['<iil' Lef!al Total number of
No. lolal the MODi'orin!! Rl!ainSI en' ironment
independent Spot Training on decisions in
en,"iroom principlt' Court (a\'our of
expert ,"isit en\·ironmcnt
'amt of th ... judgt''i enlal of locus directions
committet' issues ("n"i.-onmen'
cases standi
I VR Krishna IYl.!r I Yes No Yc:; No I 0
No
COlllll1itkl.:
COllllllllh:c

2 2 Ye~ Yes No No I I
[)t'htnnapa Redd\

3 4 Yes Yes Yes Yc;s Nu 4 0


I' N IIhag"ati

4 10 Yes Yes Yes Nu No 9


Ranganath Mishra I

5 Jcc\'an Rcdd~ 4 Yes Yc;s Yes No No 4 0

6 (i l4 Patlnail, , YC\ Yes Yes No No 5 0

7 I Y l!S Yes Yes No No


Santhosh Ilcgdc I 0

8 I Yes Yes Yes No No 0


I
A'Jil P,a.,h).1

'I I Yes Yes Yes No No I


l' K.lhal.kar
0

10 I Yes Yes Yes No


DPW.dh .... No I

No ~
.-
II ~ Yes Yes Yes No
K Vcnk_wam;
0

127
11 I Y,-" No
V Kh"lid N"
( 'i,lIllIlHtk..: ( 'OIl1Ill11h.:~
r\o No (I I

" Kuldeep Singh


19 Yc.:~ Yes Yes Yes No IX I

14
J S Verma 0
6 Yes Yes yc~ No !"<o 6

15 M Jagadananda
Rao 4 Yes Yes Yes No '!'':o 4 0

16
A.S.Anand
6 Yes Yes Yes No No 5 I

17
V.N.Khare 0
10 Yes Yes Yes No ]\;0 10

18 0
A.MAhmedi
10 Yes Yes Yes No No 10

19
Asho" Bhan 0
1 Yc'\ Yes Yes No ]\;0 I

20
Faizan Uddin
4 Yes Yes Yes No No 4 0

21 M.
N.Venketchaitah 5 Yes Yes Yes No Ncl 5 0
--
22
s. Rajcndra Babu
No No 1 I
2 Yes No No

Source: Scholar's own compilation hased on All India Reporter of Supreme Court on Environmental Cases (1980-2000)

128
3.3.2.3 Resources of Litigants
In sen'ral studies throughout the literature, resources of litigants have been
significantlv related to court outcomes (Galanter, 1974; Songer and Sheehan,
1992), though the results have been somewhat mixed (Gadbosis, 1985; Haynie,
199-1; Baxi, 1996). One important aspect of resources of litigants in India is that

most of the environmental cases appear in the judiciary with the initiative taken
by the !\IGOs, environmental activists or public-spirited persons who have been
\\'orking on \'arious socio-economic. scientific and technical issues revolving
around el1\'ironmental problems, In India, there are selective environmental
t\GOs such as Centre for Science and Environment (CSE), Tata Energy Research
Institute (TERI). World Wildlife Fund-India (WWF-I), Indian Council for Enviro-
I.egal Action (ICELA), Tarun Bharat Sangh, Vellore Citizens' Welfare Forum,
~1.e.J\leht,l Em'ironmental Foundation, Environmental Society, Rural Litigation
& Entitlement Kendra etc. Some of these NGOs such as CSE, TERI, M,e. Mehta

Environmental F(lUndation, etc. are well-equipped and structured with multi-


disciplinan' experts to produce facts and materials before the court and counter
the respondents' argument.

It is also found that the local \:GOs either hire experts or work in collaboration

with \rational I\:GOs tn convince the Court about a particular environmental


problem, The activities of these organizations range from scientific and technical
research on environmental problems to creating awareness about environment
among the public through organizing seminar and conference on environmental
problems and mobilizing people against environmental degradation; drafting
and filing petition and arguing before the Court for the affected party, It is found
that these NGOs/ activists have established network among themselves which
has in turn helped them to address the multi-dimensional problems of the
environment. While the NGOs/ activists working at the grassroots level provide

129
the basic information such as nature of environmental problem and who are
affected, the urban based 1'\GOs examine the extent of impact of environmental
problems on ecology and health of the people through scientific and technical
research and draft and file the petition through their network with legal experts.
I\.lost of the environmental !\JGOs take interest in environmental cases if it is in
proximity to them in terms of distance as well as their experience in the problem.

The Supreme Court Advocate 1\.1.C.\<lehta, has drawn the attention of judiciary in
maximum environmental cases voluntarily and as a part of his fundamental duty
to l'IlSUre the enjoyment of fundamental rights by the citizens and hence to
protect and improve the environment Wh Further, PIL gives environmental NGOs
an opportunity to bring environmental cases to the attention of judiciary and
raise all issues involving legal and constitutional aspects of the problem as well
as scientific and technical part of the environmental cases which is not possible
on the part of the affected people to address. For instance, the local people of
Patancheru filed a petition in 1989 but were not able to convince the Court about
the impact of industrial pollution in the area till 1996. The intervention of
I\I.C.Mehta and his personal visit to the place to gather facts and materials
helped him to argue in the Court about the impact of industry on land, water
bOllil's and health of the people 1'F. The Court in 1996 gave a number of directions
such as closing down of industries, ensuring water supply facility, providing
health care facilih', compensation for the affected party etc.

[n the NBA v. Union of India case while the petitioner did all ground work in
gathering facts and details of the impact of dam construction on people and
environment, urban based activists and research groups took great interest in
creating awareness about the facts; while legal experts examined the facts with

"'InterVIew with M.CMehta


..-. Intervlew
. . I P co.f I' uruso th'lll
\\-"It) " Reddv~ , Chairmdll oi Patancheru Anti-Pollution Committee and Dr.
Kishan Hao, leader of Pf1tdncheru Envlronmenlcll f\.·1ovemenl

130
legal doctrines and subsequently drafted the petition thereby arguing in the
Court to address various issues concerned with Constitutional importance 10R .
Likewise, in the Tehri Dam Case, the local organization Tehri Bandh Virodhi
5angrash Samiti mobilized people against the construction of the dam; while the
urban based research groups examined the seismic impact of the dam and
facilitated in filing the petition in the Court lO".

There are a few other environmental cases in the Supreme Court where litigant
resource of the parties has not made a significant impact on the overall judicial
decision-making process, For instance, in the Dehradun Limestone Quarry case,
the petitioner RLEK, a local NGO, wrote a letter to the Supreme Court Justice
P.I\:.Bhagwati requesting him to close down mining units in the area that were
affecting the ecology and health of the people in that area. Based on the letter, the
Court directed the mining units to file their affidavits explaining why mining
units should not be closed in that area. The mining units and Government of
Cttar Pradesh with all their resources tried to convince the Court but failed to get
the decision in their favour. Similarly, in the Ganga water pollution case, hearing
till' public interest litigation filed by Advocate M.e. Mehta against 77 tanneries
for discharging untreated effluents into the river, the Supreme Court directed to
close dmvn all tanneries that had no proper treatment plants.

Likewise, in the Tarun Bharat Sangh, Alwar v. Union of India case, the local
NGO challenged the Government for giving license for mining activities in
protected areas and requested the Court to direct the government to cancel the
license of all mining units. With all resources, the Government of Rajasthan
could not substantiate its decision and had to, therefore, cancel license for mining

.,
. InferVH:'W
' \VI tl 1 r ras Ilan t BI,usl'd"
. I'"",,,-
"dvocate of Supreme Court) and Ilimanshu Thakar (Coordinator of
South Asia 'Jetwork on Dams, [<iver and People). , '
,.1 ~ Intervl(>\-v
' ,I
Wit S ' r an'kl 1 (Advocate
1 dllId,. _
of Supreme Court) and Sekher ~.
SlI1gh (Former Director
.
of [nd'dn
.
,
Instltute f t I' \d " ' t t'
0 Pu J If ,< mllllS fa Ion
and also mf'-mber of Hanumanta Rao Comnuttee appointed to exam Ill€'
til€' Impdct of Tehri Dam.

[3 [
rlctivities in the protected areas, In the Delhi industrial relocation case, the public
Interest litigation filed by Supreme Court Advocate M,CMehta had resulted in
cll1sing down 168 industries and relocation of more than a thousand industries
from Dl'lhi to other parts of the country,

I\lost importanth', in the Delhi Vehicular case, the Supreme Court had to face
strong resistancl' from different quarters when it directed to convert all buses to
C:\G. In an attempt to avoid the infrastructure overhaul necessary to convert
Dl'lhi's buses hl C\lG, opponents to the CNG C(lJlversion had argued that ultra
lo\\' sulfur diesel (ULSD) might be an attractive alternative, Citing a study
cond lIcll'd by a research team at Harvard Vniversity1l0, several ULSD
proponl'nts, including the Lieutenant Governor of Delhi, had charged that the
reduction in sulfur content in diesel fuels red lices nitrogen oxides and particulate
lll<ltter emissions tn levels comparable to CNGln The findings of this study
were called into question by the petitioner supported by CSE's findings, when it
was disco\'ered that this "study" was just a four page pamphlet containing no
references to its claims and was funded by Navistar InternationaL the world's
largt'st truck manufacturerll~, The Court relied on the findings of CSE produced
b\ the petitioner and directed the government agencies to ensure that all citizens
have a healthy l'l1\'ironment to live and sidelined other arguments uf the
Gm'ernment which wefe based on certain scientific and technical feports that

supported ultra low sulfur diesel.

There were a number of environmental cases where the petitioner invoked legal
doctrines in drawing the attention of the court against the state agencies for the
protection of environment. In a majority of environmental cases, the state and

11'1 HcH\.'drd Ct"lllC"f for Rlsk Analvsis. January 2000. .


II CPlltre for SriE'lln? ilnd Ellviro;lnl€nt .Pr(,5~ RcktlSC 29/1wc 1998 AViHlaLJle at
http! / www.csemdie.org/hlmi/cmp/.If!press_19980629.htm
11<' Cf"l1tre for Science ilnd Environment Prts~ Release 30 }v1anh 2001. Available dt

http://www(seindie.org/hlml/(mpi.ir/press_20010330.htm

l .1_
~'
administrative agencies were the accused parties and individual and
organizations were the initiators but the final outcome of Court primarily
suggest that Galanter's (1974) thenry of resource inequality is not applicable to all
judicial decisions, The following table explains that in the overall outcome, a
majority of judicial decisions are in favour of the underdogs (individuals) even
thl)ugh they lack resources and expert knowledge as compared to the upperdogs
(Union, State and Local Government and Industry), It is found that there are a
tntal of 104 environmental cases out of which individuals filed 56 cases, followed
b\' tIll' :'\IGOs who added 33 and then the Union of India, States' and pollution
bOMds contributing I, 10 and .t cascs, respectively,

Table: 3, 3 Overall Picture of Environmental Cases in the Supreme Court


Outcome

Total Number of Environmental cases 104 Favour Against

,, Petitions filed by Organisations :n ?-


_I 06

, Petition, filpd by Individuals 51> 52 04

Petitions filed by State/ Union Gov!. 11 11 -

I
Petitions filed by Pollution Control Boards O~ 04 --

I
-
Sourre: Scholar sown compllahon based on All IndIa RepOIter 0 f Su P reme Court (lO

Env irl'nllwll!,,1 Caw, (1980-2000)

TIll' Court decisions, however, on environmental cases against economic and


dl'\'clopment policy have gone in favour of the uppl'rdogs even though the
,,
petitioner II efforts to prove
h as rna de a the state initiated
. policy is violative of
Statutory Acts and Constitutional Provisions, For instance, in the !\!BA v, Union
of India, although the petitioner made all efforts through various strategies
, I u d'111g mo b'l'
mc 1 lza h' on of people , intensive critical debate and discussion on

,
development projects amt 1'ts alternative, use of media, submission of facts and

133
materials through research activities ' highlightin g th e p I'Ig ht 0 f a ff ecte d peop Ie,
particularly the tribal and other disadvantaged groups, it has had not been able
tIl intluence the decision of judiciary in a significant manner and therefore failed
ttl achieve their respective objectives. In a nutshell, the study finds that the other
j,ldol"s including judicial ideology, the prevailing socio-economic and political
c-unditi(ln, legal doctrines have a stronger impact on the success of environmental
,,1<;l'S thall till' d iitL'rL'nces among the litigants in terms of their resources and
l"pertisl' in rl's(lh-ing cases rel,ltcd to public infrastructure cases.

3.4 Summary

rill' chaptcT bL'gan with the purpose to determine how legal and extralegal
j,Khns ailL'd till' judici,ll dL'cisilln-making process. The idea behind this analysis
i, r(luted in till' t,Kt that thL'ories of judicial behavi(lr are rarely subjected to such
,111 l'"lIlllllatillll .-h is ('vid('llt from the analysis, both factors are significant in
tl'rlllS of their Cl lntributi(lll tll the w\e of judiCial in resolving environmental
dlspuks. Intl'l"l'stingh', it Clluld ha\'e been c(lllcluded herein that both legal and
("tr,lll'gal fachlrs prm'ide L'quall\' good frameworks to assess Court decision-
making. Such ,l cunclusion, hlnH'\'er, would have been premature since upon
furthL'r L'\'aluatioll thl' stmh' finds that both factors are not mutually exclusive in
("'plaining Judicial decision-making.

TI1L' stuc!\' finds th'lt ,1 complete elucidation of judicial outcomes involves


incorp(lra tion oj both legal ,m(\ extralegal factors. In this context, it can be argued
that thl' principlL's of neither the mechanical theory of jurisprudence nor the free
Ie'gal decisilln tIll'OfV are incorrect; but they are incomplete. All factors including
law, the prL'\,ililing spcio-economic and political conditions and litigant resources
as the present study finds, play significant roles in the Supreme Court's decision-
making process. Nevertheless, these roles may not necessarily be equivalent. The
analysis reveals that tile legal factors have the greatest impact on environmental

134
litig,1tinll where tlll're was clear .' I t' f environmental
.
'dO a Wll 0 laws involving
public or environment. However, a number of environmental
(,1Sl'S ill\"olving competititve claims and counter-claims have been resolved by
tIll' ludiciary thrllugh resorting to innovative methods such as: spot visiting.
'1pppinting ind"pl'ndent committee, monitoring its directions, entertaining post-
(,ud as petitions. appointing amicus curie on behalf of the affected party and
l'I1\' il"Ilnllll'nt l''-1',1I1d ing the menaing of existing constitutional provisions, etc. In
It'I' other cases. tIll' judiciary has intervened in the affairs of other organs by
asking the admilllstrative agenCies to follow its directions within deadline,
lilokrlllining ,lIld questioning thl' validity of policy decision, appointing and
rl'll'cting l''-pl'rt nwmbers, de. tp ].lre\·l'nt and control environmental degradation.

III Cl1Iltr,1St, ill cl'rt,1ill (lther l'nViWnlllL'ntal cases, especiallv against economic and
d"\l'i"pnll'llt "I tIll' stall', tlll'sl' inno\'ative methods have not been part of the
Ililtil'ial deCISI(,n-m,1king process. [n such types of environmental cases, the
ludgl's han' been maintaining a distance from state initiated public projects by
subscribing t(1 till' principle pf pnKl'durl' established by law rather than due
process of law, In such h'pl's of cases, the gl'nera[ response of the Supreme Court
h,1S been that (1f n(1n-inll'rfl'rL'nCl' basically on the ground that these cases have
r,li"l'd tl'chnical issues and pnlin' matters. But, thl' same Court has not hesitated
to intern'nl' in other cases in\'{lh'ing polic), and scientific and technical matters.
rill' ide(llogical \'alul'<; of Judges' with regard to these environmental cases have
bel'n caught l1l'h\'een till' principles of mechanical theory of jurisprudence and
the frel' I"gal decision theory It is surprising to find that the judges who have
given numerou~ pro-environmental judgements challenging the state agencies
and <;howing thl'ir activist approach, have failed to follow their own precedents
about protl'cting the environment and people's right to life in environmental

cases against development and economic policy.

135
CHAPTER IV

IMPACT OF JUDICIAL INTERVEI\TION ON ENVIRONMENTAL


GOVERNANCE: CO~TRIBUTIO:-.JS AND COM PLICA nONS

,\ cl(lser l(l"k at tlw Judicial decision-making process on environmental issues


make,> it Cle.H th.lt the efforts made bv judiciary to arrive at the decision in
resoh'ing l'n\irllnn1l'ntal disputes has gone beyond the interpretation of the law
in II'> strict '>l'l1"l', It<, decisions are innovative and often deviate from the
c(ln'>titutilll1.11h' .1ssigned wle to Judiciary to interpret the law, For instance,
apP(linting l'''pert c(lmmittee to gi\'e inputs and monitor judicial decisions,
l'ntert.lllllng petitions on behalf l1f the affected party and inanimate objects,
t.1klI1g '11<' 111<'111 ,lCtit>n against the pnlluter, expanding the meaning of existing
prll1rIpk'" ,1n<l 1,\\\,>, 'lpplving intl'rnatinnal environmental principles to domestic
l'I1\'lrl1nnll'nt,11 problems, spot visiting to assess the environmental problem,
'lppllll1ting (11111,11' ,'/Ii'll' tn speak on behalf of the environment, encouraging
pt'titilll1ers and law\'l'rs for drawing the attention of judiciary about
l'lH'iwnnll'nt.ll problems through cash award, expanding the sphere of litigation,
de. Tlll'se JlIdgnll'nts arc projected as innovative because the Court has gone

L1L'\'(lIld the legal text to protect the environment thereby bringing and adding
l1ew dimensions to the em'ironmental governance process, On the other hand,
LllIl'sti()l1ing tIll' validih' of government policy, interfering in the appointment of
expert committee members, creating parallel structure for protection of forest,
etc. have been seen as deviation from the traditional notion of judicial function as
an adjudicatory body, The interference of judiciary in the affairs of other organs
for thl' protection of em'ironment has been lebeled as a violation of the theory of
separation of powers and against the spirit of democracy,

136
,-\gainst this backdrop, this chapter explores what are the impacts and
implications of these innovative judgments and interference of judiciary in the
affairs of other organs on environmental governance in India, The impact of
ludiriar\' on em'il'llnmental governance can be studied with respect to different
criteria such as improvement in the environmental quality, implementation of
ludicial directions, and changes in the policy and structural aspects of
e[1I'iWllment governance process etc. In this study, however, the impact of
ludiciM\' on environmental governance is limited to the analysis of policy and
,tructur,ll changes bwught in by judiciary through its innovative judgments and
int<'rfL'rence in thL' affairs of other organs for the protection of environment. This
l',\ncisl' begins bv e'\plaining various innovative judgments of the Court and
thereby examining tlll'ir implications for environmental governance process in
Indi.l. TIll'rL'.lftl'r ,111 attL'mpt has been made to unravel the impact of judicial
inll'rn'nti(ln in thl' affairs of (lther organs for the protection of environment
thwugh an ,lpprai'ial of \'ari(lUS judicial decisions.

oJ,l Innovative Judgments in Environmental Cases and their Implications


\\'[th tIll' intl'['\'ention of judiciar\' in environmental governance, a number of
1Il11()\',lhvl' pnnciples ha\'l' been introduced to resolve issues revolving around
l'[H'iwnmental issues. The following section focuses on some of the key
IIln()\'.ltivl' methods to understand their impact on environmental governance.

4,1.1 Righi 10 Environment


Tlw fundanll'ntal rights of Indian citizens are specified in Articles 14-32 of the
Ind ian Comtitution such as right to equality, right to freedom, right against
l'xploitatio[l, right to freedom of religion, cultural and educational rights and
right to constitutional remedies, Article 21 declares that '1\:0 person shall be
deprived of his/ her life or personal liberty except according to procedure
established by law'. There are four constitutional provisions that are particularly

137
dirl'ctl"
- rdl'\'allt to protect the fundamental rl'ghts 0
f CILJZenS,
''''; U n d er Article
' 13,
the SuprL'lllL' Cpurt is granted power to judicially review legislation, so that the
1.1\\'5 in((lIlsistcnt with the fundamental rights may be held void, In addition,
,-\rticiL' :'>2 l'(lllfl'rS llll even' citizen the court's original jurisdiction for the
l'lll,lrCL'nll'llt of his or her fundamental rights_ Through this provision,

IIldll'iduals can 'lppn>ach the court to seek the protection of their fundamental
rights, :'l.rtick ~2 ,1I1d 22h (If thL' Indian constitution grant wide remedial powers

t(l till' C;uprl'I11" Cpurt and High Courts in constitutional cases, Specifically,
:\rticl,' ~2 pn1\idl'" that thc Suprellle Cpurt has the power to issue directions,
"rd,'r., and "'rit'> III cnt(lrce fundamcntal rights of the citizens, Under Article 226,
dlH cllI/l'n (,In ill\'"ke the High Courts' jurisdiction for the vindication of
tlilldallll'nt,ll righI'>, :\rtlci,' 22h pwvides the High Courts with the power to issue
\\rtl juri"dicti(lll lor till' cnf(lrcellll'llt ()f fundamental rights, Finally, under Article
1'h, till' c,lIprCIllL' Cpurt has discretlonary power to grant special leave to appeal

IrPIll allv Ilidici,ll "I'dcr, judgment, or decree in the land thereby providing
,lIlllther rpul(' fpl' ludicial review,

Iht' carli""t ullderst,lI1ding (If these provisions had been a narrow procedural
"lll' whcrl- fUlld,lllll'ntal rights and other constitutional provisions were
int,-rpn.t,'d a ... pnlCl'dure established by law_ Ivlorcover, inconvenient Supreme
Court decision ... on the constitutionality of state action were simply overturned
b\- .11l1L'llding the constitution until the 'basic structure' of the constitution was
declared unalterable ll ' It was in 197R that the Supreme Court breathed substan-
tin' life into Article 21 by subjecting state action interfering with life or liberty to

" tl'st of reasonableness; reljuiring not only that the procedures be authorized by
law, but that they are "right, just and fair" ,II~ This transformation has paved the
way for a substantive reinterpretation of constitutional and legal guarantees and

'11A K (;0Prlldl1 v. Lnloll of Indict, AIR 1950 SC 27


" \ldlwkd Gdndhi v, L'nion ollnd", AIR 1978 SC 597

138
positive judicial intervl'ntion. The former Chief Justice of the Supreme Court,
Jusitce P.N.Bhagwati, has made quite clear his rejection of the "bureaucratic
traditilln" III mechanical and rule-bound adjudication. He has suggested that
pl1siti\'ism is a myth, "deliberately constructed to insulate judges against
\ulnl'rabilih' to public criticism, and to preserve their image of neutrality. It also
lwlps judgl's t(l esca~1L' accountability for what they decide, because they can
ah,'a\'s plc',ld hl'lplcssness, In interpreting the Constitution, the Supreme Court is
IWI tlwr bpli nd bv doctrines of literal meaning or original intent, nor constrained
ttl I'l',hi mtp it pnh- tormal rights and liberties. Instead, the text can be read as one
which is 'nbrant \\'ith a socia-economic ideology geared to the goal of social
Ilhticl" and l',111 I", infused with principles that transcend mere formal equality,
,1I1d transtllrm Il'g,ll rights into positive social entitlements lI5 ".

,\n ,1lcpunt llf till' Intnpretation of right to environment as a part of fundamental


right to lif" \\'ould dlustrate the efforts of judiciary to give substantive meaning
tt' l',isting fund,1I11l'ntal rights. This process of substantive interpretation of
fundaml'ntal nghh in l'm'ironmental cases has started in the Ratlam Municipal
,llld [)l'hradun Lime Stone Quarrying cases. In the former case, the judiciary has
uphl'id that public nuisance is a challenge to the social justice component of the
ruil' of la\\' ..'\ rl'sponsible r-.lunicipal Council constituted for the precise purpose
of presl'r\'ing public health and providing basic amenity of public conveniences
cannot a\'(lld ih principal duty by pleading financial inability. Decency and
dignity are non-negotiable facets of human rights and are a first charge on local
sl'if-governing bodies, Likewise, in the latter case, the apex Court has made it
cIL'ar that economic growth cannot be achieved at the cost of environmental
destruction and pl'oples' right to healthy environment. Through an expansive
reading of fundamental rights, informed by a commitment to the (non-

"'. Blldgwdll, r.N. The Times of Indid,21 Seplember 1986

139
l'nforceable) socidl welfare obJ'ectives of the Dire\.'h',
"e p' ' I es, the court h as
nnClp
sought to read substance into otherwise formal guarantees 116

In the Dlllln \ 'alle\' case, concerning mining environment, the apex court has
inll'rprekd c\ rticle 21 to include the right to live in healthv environment with
J

mlllll11Um di.,turb,l11ce of ecological balance and without avoidable hazard to


tlll'l11 ,1I1d tll their cattle, house and agricultural land and undue affection of air,
\\'dkr ,1I1d l'l1\'ironl1ll'nt, It is submitted b\' the Court that the vague words would
gin' l,,,tl'n.,in' ,'''CUSl'S to the unconcerned authorities to restrict the scope of the
right. But the pr,'sl'nt exercise deserves appreciation as it includes other
,Ilmp"nl'nb III l'lwi],(lnnll'l1t. This exercise has been further emphasized in the
(;.1ng,l walL'r p"lIutllln case by Justice Venketaramiah, who has extended the

l'Ight t(1 lite t" include the right tll defend the human environment for the present
and tuturl' generation, The polluted environment makes the environment
unhl"llth\', affl'cting the public health, It is this aspect which attracted the
attention of the Supreme Court also in the Consumer Education case: 17 The
pditiolll'r has approached the court against pollution caused by the asbestos
II1dustril's, The .l"bestos dust has a far reaching adverse impact on the life of
peopll', The (Our!, supporting a long list of cases decided by it on the earlier
occasions, has taken the stand that the right to good health is an integral facet of
ml'dningful right to live,

II., Artide 37 slates that the provisions contained in Part IV are not enforceablE'" by any court, .but ~he

prinl"lples thprt'lll [did down arf' fundamental in the governance of.the country. Though t.he DH€'(tIVE'
Prlllnpies are no! pnfoTc(>ablt". the (ourts consistently use the ..n to mterpret f'nfoTceabl£' tundal~entaI
IIghls (to th ..... tent of reading th .. m into fundamental rights), to ground therr assumptIOn of
· t'Ion over
JU rlSlt Ie n~gu d
I tor,'
~
Inatters , and to support the remedIal strategIes thev~ adopt, The rchance
_.
01 Directive Principles is particularly dPp~ren~ in environmental cases. The relevan~ DIf€ctrv€'
rrlllcipies are 39-A (State to prOVIde free I.. gal aid) and 48,A and 51,A (g) for envllonmental
Improvement dnd protection. . .
'" Consumer Education and Research Forum v Umon of IndIa, AIR 2001 SC 1948

140
In M.e. Mehta v. Union of India llS the Supreme Court has accepted that
environmental pollution and industrial hazards are not only potential civil torts,
but also violations of fundamental rights, redressable directly by the Supreme
Court through a public interest petition 119 In this case, the court has taken the
opportunity to forge a doctrine of absolute liability with respect to hazardous
operations, unrestricted by the traditional qualifications and exceptions that
have grown about the common law rule in Rylnllds I' FletciIer. The Court has rea-
soned that injuries to workers and others caused even by necessary industries
are part of the social cost of development and should not be borne by the
victims. The decision of the court has made the polluter not only to pay
compensation to the victims affected by the pollution but also to pay for the
environmental damage resutting therein. In this way, through the interpretation
of Article 21, the court has sought to convert formal guarantees into positive
human rights.

The above judicial interpretations in expanding the meaning of right to life have
brought new dimensions not only in the environmental jurisprudence but also in
the human rights discourse in India. The recognition of right to environment as a
part of fundamental right to life has made strong impact in the adjudication of
environmental cases throughout the period from 1980 to 2000. Through its
interpretation, the Supreme Court has provided a space for fundamental right to
live in a healthy environment in the Constitution that would otherwise not have
merited sufficient attention. It also has made an impact in the subsequent
environmental policy of the state. For example, the National Environmental

'" Me Mehta v. Union of Ind"" AIR 1987 SC 1086, the Court declined to determine whether or not the
defendant in this case Was sufficiently under government control to be dl1 authority and therefore
susceptible to constitu tiona 1 control. _, .
11') The infringement of the right must be gross and patt'llt and I:"lther such II1fnnge~nents should be
on a large scale affecting the fundamental rights of a large number of persons or It should ap~,ear
unjust or unduly harsh or oppressive on account of their ~o~erlJ; or dIsabIlity ?f sOClall~ , ~r
economically disadvantaged pOSition to require such persons to Inltldte and pursue Clctlon In the CI\ iI
courts (AIR 1987 SC 1091)

141
Pl,IicY t>f ::!OO() recognises right to environment as a part of the fundamental right
tt> Iife_ FurtilL'l', the expansion of right to life has pave d th e way for t h I' sOCIal
- and
ellnnlllll1l'nt.li activists to invoke Article 12
- for cons h-tuh- ona I remed-les I-f t h ere IS
-
01111-
-
thl'l'at til the indi\'idual's right to en,'o"J a health'
YenVIronment an d qua I'Ity 0 f
lik

4.1.2 Procedural Changes

11ll' pTlle,"" III lu,licidi intervention 1I1 governance Issues 10 general and in
l'm-lr"nn1l'ntal ~(l\·lTn.lIlCl' in particular has witnessed a number of procedural
,-hang"', l'ach (ll which seems to be contrary to the traditional legalist
und"I",tanding "I thl' judicial function. First, it includes entertaining petitions for
till' pfllll'dl(ln ,,' l'Il\'irnnn1L'nt [;\' the third party. The traditional understanding
01 lttig.ltll l n rl'qulr," that the participants have some real interest to promote in
Of del' that truth willl'fiectin'l\- llC fe\'caled through adversarial proceedings. The
IMrTlll\' .1ppTll.lch III ,tanding ha, bcen justified further by floodgate arguments,
thl' dl'Sln' tIl ,'\dude third parties and the unwillingness or inability of the courts
to .1tijudKdtl' ,'n 111,ltters that arl' lwst left to the discretion of policy makers,
,1t1"n1t'\S generdL and oll1l'r administrative agenCies to ensure public interest.

Ilo\\'('\'('r, in the ['",>I-emergency period, in 1976 the Indian Supreme Court de-
clared thaI "where a wrong against community interest is done, the principle of
/0(11<; <;tlllldl will 1Wt always be a pre-requisite to draw the attention of judiciary
againsl public bndv for their failufe in discharging constitutional duties. Locus
5tlllUIl has a largeT ambit in current legal semantics than the accepted, indi-
\'idualist jurisprudence of 0Id I2 (1". Since that time the Indian approach to PIL has
extended the rulcs of standing to the point that they may be said to have ceased
to present any feal obstacle to the public interest litigant. Public interest litigation
has been initiated by individuals on behalf of other individuals and groups, by

,,, Mahara) Singh v. Uttar Pradesh, AIR 1971> SC 3602

142
academics, journalists and bv
. man"-' socI'al ach' on orgal11zahons
" to protect
ditferl'nt socio-economic and tnoli tical issues l'ncludl'I1g'
envlrcmmen t a I Issues,
'

:\s a rl'sult, a number of cases on environmental issues are available, Right from
tIll' Dl'hraLioon lime stone quarrying case to the NBA v, Union of India case,
tlll'rl' arl' a pldhora of el1\'ironmental cases like the Ganga Water Pollution, Delhi
\'l'hiCl!l,lI' Pollution, Oleum Gas Leak, Tehri Dam Case, Coastal Management
C<l~l', de. \,'hlch haH' come to the judiciary through PIL. In many cases, the

Court h,l~ held that any degradation of environmental conditions should be


action,lbll' b\' the community at large or by any interested member of the
communitv 1c1 TIll' C(lurt has ruled that any member of the public having
,utticil'nt ll1tl'rL'St m<1\' be allowed to initiate the legal process in order to assert
dittu'l'd and nwta-indi\'idual rights in environmental problems, It has been
h'und th,lt (lut ,)f Ilq l'l1\'ironmental cases in the Supreme Court of India, 54
(.l'l" arl' hIL'd b\ ll1di\'iduals who are not directly affected parties in all cases and
2K petitions arl' fill'd b\' NGOs on behalf of the affected parties, This suggests that

till' rela >.,1 tion of PI L has enabled those people who have access to information

and l'>'pl'rtise knowledge to convince the courts about the environmental


pn)biL'l11s to make ,1n attempt to ensure a healthy environment to citizens,

'X'cond, the Supreme Court has also shown a willingness to alter the rules of the
game wherever neCl'ssarv to entertain environmental cases, Actions have been
commenced not only by way of formal petition, but also by way of letters
addressed to the court or a judge who has chosen to treat it as a petition, For
example, in 19H:I Justice P,N,Bhagwati received a letter from the NGO namely
Rural Litigation and Entitlement Kendra, alleging unauthorised and illegal
mining in the Dehradun area, which adversely affected the ecology of the region
and caused environmental damage, Based on RLEK's letter, he accepted the

'" RLEK v, Slale 01 Ult" Pradesh, AIR SC 1985652

143
letter as a writ petition under Article 32 of the Constitution and thereby issued a
notice to the respondents (AIR SC 65::1)
' . The most im par tan t prace d ura I c h ange to
l'ntertain petition and direct the implementing agencies to protect and improve
the l'm'irnnml'nt Was found in the News Item "Hindustan Times" v. CPCB.
rhL'rl' was a newspaper report on environmental problems, which had prompted
tIll' Celurt to take SilO 1110/11 action against the polluter and to protect the
l'nl'lnlnml'nt, In the News Item Hindustan Times v. CPCB case, where the
p"lIutiL1n of ri\'er Yamuna continued even after the orders of the apex court, the
Supreml' Cpurt paid attention towards the irresponsive authorities and held that
thl'\' were .)Iso responsible for allowing continuous illegal operation of such
lI1c1ustril's in tl1(' cit\" of Delhi, Therefore, it directed the Chief Secretary, Delhi
.\dministration to h()ld an enquiry and fix responsibility of the officers/officials
,,'h(l had bl'l'n wlllllh' negligent in the performance of their statutory duties.

Jill' Supreme Cllurt h.)s also used its discretionary power by directing orders to a

nllml1l'r pf pplIlIlL'l"'i through a single petition. For example, where there are a
\,'ide \'aril'h' pt ()ttenders, the court has chosen to treat a particular case as a rep-
H'''l'ntative action and issued orders binding on the entire class. In one case
concerning massiH' pollution of the river Ganga, the court has published notices
in the newspaper drawing the litigation to the attention of ali concerned
industries .md municipal authorities inviting them to enter an appearance 122 In
thiS Case, thl' petition was filed against the Kanpur tanneries and Kanpur
\Iunicipal Council to stop polluting the river Ganga. The Court, however, asked
all the industrialists and the MuniCipal Corporations and the town Municipal
Councils having jurisdiction over the areas through which the river flows in
India to appear before the Court. Thl'Se parties were also asked to show cause as
to why directions should not be issued to them as appealed by the petitioner
asking them not to allow the trade effluents and sewage into the river Ganga

'" :-l.C M"ht. v UnIOn of Indl. (1987) 4 SCC 463

144
without trt'ating them before discharging them'In t0 t h '
e rIver. S'Iml'1 ar1y, m
' 1995,
'th tl
T,\:, C(ld,l\',HIll,ln I'hirumulpad filed a writ petiti on Wile Supreme C ourt 0 f

Inei 1,1 t( 1 PI'(lt( 'll tIll' Nilgiris forest land from deforestation by illegal timber
OPl'I',]ti(ln ... , I Ill' C,Upl'l'lllL' COUl't L'xpanded the CadapamlllJ1 case from a matter of
n\l,ing illl'g,]1 (lp('J',lti(lns in (lnL' forest into ,1 reformation of the entire country's
t"l'l' ... t f'(l/ill

The most importallt positive implication of allowing the third party to appeal
bl'f(ll'l' till' court (lll bl'half of the affected party due to environmental degradation
i, the Court's atll'mpt to bring justice to the door step of the common mass,
[\l'COUI'W to judll"i,11 proceedings is a costl\, exercise for those who suffer
'U[,..,tantiaI inJulw", InlJl1 environmental pollution, Even if the aggrieved party
takl's I'l'courw t(l Judicial proceedings, the court may only settle disputes
bl'l\\'ecn the cOlllplamt and the polluter, and the rights of other aggrieved
pl'I''i(lnS rcmain ull'il'ttll'ei, Judicial remedies for environmental maladies would
hal'l' l'ffl'ctJ\'C n',ulh (In II' if the rl'medies benefit those who arc not parties to the
litigation, rh' l'ntl'l't,llning petitions on behalf of poor and disadvantaged sections
"I tIll' socid\', fl'(llll different 'COs and public spirited people, the court has

tnl'd I< I l'n..,url' till' rights of people in terms of deciding compensation and
pr(ll'id ing (ltrwr rl'llledies to thL' affected people, The procedural changes have
al..,,, an import,lnt bcaring on inanimate objects, which are sometimes parties in
litigation, Thl' \'oiCl' of the inanimate object has been represented by concerned
'.:COs and environmental activists through the instrument of PIL The polluter
has been asked to pay fur thL' damage done to the natural objects and restore the

l'nvironInl'nt to Its natural position,

Third, it has also made the decision-making process more participatory as the
Supreme Court has provided a right platform for the NGOs, Civil Society groups
and other legal communities concerned for environment, to draw the attention of

145
J'udlci,H',' wh ..'n L'ver tl lere Me environmental problems in the country, By taking
(111 b(l.Hd till' citizens' concern about an inactive 0 'Iature anl:t
II1l J eren t IegiS
r ':\'ff
l"l'cutl\'l', thl' SuprcmL' Court has provided the pi a tf()rm for thI' CL"I '
VI society

gr"up~ to eng,lgl' as acti,'e partiCipants in the scheme for protecting the

l'I1\'il'!lnllll'llt ,1I1d en~uring individual right to a healthy environment. As a


rl'~lllt, 111 ,1 number of casps civil society groups have put forward different views
(1n ,kn'l(lpnll'nt ,Kti\'itics such as the socio-cultural and environmental impact of
cinch 'pllwnt p"lin' III the ellvironmental decision-making process, The
IIKIl\l~ing ,ltkntH 1n paid b,' Judiciary to environmental issues has also brought
.l\\.Hl'Ill'~~ ab(llit l'll\'ir(lnllll'ntal issues across the legal community who was

hitl1l'rt(1 PIl'-(1COII'IL'd with trdditional legal issues only and was least concerned
,lb"l1t isslI,'s n'\'olnng ar(llind l'll\'ironmental problems,

\:otwithstdnding till' ab(lH' progressive implications for liberalizing the principle


of /"'11" ,tlllllli. certain practical difficulties and constraints have emerged in
recent \'eMS trelJll Judin,ll intern~ntion in dealing with environmental cases, A
'lIIYl',' of till' l'll\'irunmental casps suggests that with the liberalization of the
ic1nl5 ,til 11,1, prinCIple, tlwl'l' has been a flurry of PILs on environmental issues,
rhi, l',pansin' ,1pproach towards standing has put pressure on the court to
den'lup tlw(lries (1( )ustlCl,lbility ll\' which issues that arc unsuitable to resolution
Il\' litigation C(luld bl' winnowl'd out, Perhaps of more immediate consequence,
till' [('laxed Il''>t of .. tanding and the expedited fashion in which cases could be
brought in public interest matters put enormous strains on already extremely
scarCl' judicial Tl'sourccs (Rosencranz, Boenig and Dutta, 2007). Importantly, a
permanent PI L cdl has now been established in the Supreme Court to act as an
in i tia I fi Iter for a pp lica tions, However, this PIL cell does not have experts to
scrutinize whether environmental cases are supported with all necessary
documents and other scientific and technical details or not. At the same time, the

146
problem (1f backlo~s and delays " remains a serl'ous concern and appears to
underlil' ,I recent rl'trenchment in PlL matters,

,-\nptlll'r I III lllL'd iatl' concern is the increasing number of cases on environmental
issuL's that h,I\"(' (llme III judiciary in the name of public interest but are found to
bl' iri\'"l(llls in re,llity, TIlt' Supreme Court has itself recognized and articulated
tlH'sl' C(lIlCl'rns p,'riodicalh', I\.lanv of the environmental cases that have appeared
bd"rl' tilt' ,lpex (llurt b\' way of PlL are highly technical, involving complex
qlll'stwns pi pplin'-makin);, financial support for development projects, and
industrial dl'\"l'I"1'1l1l'1l1 III the absence of proper guidelines to entertain or reject
1'1 Ls, therL' is l'\"l'r\ po'>sibiIih' that frivolous cases may get a chance and genuine
(,I'>,'" 111.1\' Il(lt bl' able to draw the attention of judiciary, As Justice Khalid has
fl'I11.U\..,'d 111 all "l1nnml11ental liti~ation case, PIL is now a firmly established
pMt oi lnd I,ll! 1.11\', but "(lj1l' is k'd to believe that it poses a threat to courts and
I'll blic all\..L' SlKh ,".I'l'S Ml' no\\' fik,t! without any rhyme or reagan 121", He has
l'\pn'ssl'd hi' (onCl'rn ill the fact that the courts are becoming flooded with PIL
ll1.1tll'rs and th,lt other areas of judicial operation are consequently suffering,
Calling fllr ciL'ar guidelines, he has suggested that PIL might be limited to cases
of 'gross \'iolations' wl1l're the conscience of the court was shocked,

4,1.3 Remedial Flexibility


In rcs()h'ing cll\'ironmental disputes the Supreme Court has also gone beyond
till' usual remcdies of habeas corpus, lIIalldt1lllll5, prohibition, quo warranto and
liT/loran I:', The court has not restricted its remedial power to these traditional

orders and has insisted on a flexible interpretation of their inherent power to do


Justice For example, in the Oleum Gas leak case, the Supreme Court first

""M,hidallalld Pdndt'v v Stdte of West Bengal AIR 1987 SC 1109


I::.. Article 32 of Intiidl; Constitution provides remC'dies for enforn·l1wnt.of fun~am~ntal rights In appeal. to
s til a S"I,r""le
5 UprE"flle C our t b\' n ·t'Izen,.. ..- Court shall havE' power to Issue duechons or orders . or. Writs,
.inC IUlj 109 wnts
." th t ot" h.b"as '"""PH" Htt1ndmHll" prl1h1bHHln. ,lIlt} !['arnmlo rlnd crrtl!Jr.ln, whIChever
10 e na Ufo.
a -..- -, . -, - ,
nMy be .pproprlate, for the enforcement of any of the rights conferred by Part III.

147
expanded the scope of Article 21 bv_ extendl'ng l't to a pnva
' te company an d
re\'ersed a century old judgment on liability, The court ruled that when an
enterprise is engaged in a hazardous or inherently dangerous activity, it owes a
dun' tll the workers and local people that no harm results, The enterprise is
Llndl'r an llbligation ttl tollo\\' the highest standards of safety, In case any harm
rl'~lIlh lln aC((lunt of such activity of the enterprise, it must be absolutely liable to

Cllmpl'ns.1tc fllr the harm and it cannot get away by claiming to have taken
rl'a<;l1nabk (.1I'l', The court further ruled that the compensation should be
cl1rrl'latcd \\'ith till' m.1gnitude and capacity to pay, The larger and more
prl1<;pL'rou<; till' l'nlL'rprisL', the greater must be the amount of compensation, This
principle applies to the statL' enterprise as well as other enterprises, In cases of
[1L'r~nnal inluril'slc' the Cllurt has refused to limit the victim to the usual civil
pr(1(l's<; PL'litions are allowed directly to the Supreme Court under Article 31 and
dam,lgl's han' bL'l'n awarded to compensate the victim and deter the wrongdoer,

[')w rell1L'dial fkxibilin' has become part of environmental jurisprudence in


~lIbseL)lIL'nt Clses where the Court has asked the polluter, especially private

['Mtil's tn 1',1 \' till' d,lmage done to the environment and to the people affected by
ih acti\'itiL'S, F(lr example, in the Vellore Industrial Pollution case, Patancheru
Indu<;trial Pollution case, Coastall\'\anagement Case etc., the Court has directed
the CL'ntral Gm'L'rnment to coilect the compensation from the polluter for the
d,lmage done to thl' environment and to the affected people, The Court's idea of
compensating the affected party, who are in many cases poor and disadvantaged
sections of the socidy, has reinforced the principle of social justice and equality

in the preservation of environment.

m M.C Mehta v. Union of (ndid, A.I.R 1987 S,C 1086

148
4.1.4 Spot Visit

The most important innovative method in resolving environmental dispute has


been ft1und in judges' personal interest to have first-hand information through
Spt1t \'isits to understand the nature of environmental problem and the issues
r"\'oh'ing around it. In the Ratlam Municipal v. Vardhicahnd case, before
arri\"lng at am' decision, Justice V.R.Krishna Iyer visited the Ratlam town and
a~'l'~sl'd the problem 120 and then asked the Ratlam Municipality to take
apprt1priatLo ml'asurl's to construct proper drainage system in the city. Similarly,
in thl' Doon \' alll'\' C,lSl', Justice P.N. Bhagwati 127 visited the area and found that
the l'Il\'ironml'ntal litigation invoh'ed certain complex issues including the rights
of the wt1rkl'rs, traders and fragile ecology of the area. He then appointed an
InLiL'pl'ndL'nt ct1mmittee to assess the problem and based on the recommendation
pI this committee, till' judiciar\' directed the state government of Uttar Pradesh to
e1,,,,' d(l\\"n CL'rt,llll mining units which were illegally operating and allowed
otlwl' mining units to operate only with certain conditions to ensure the
pr()tL>ction of 1'11\·iwnml'nt. In the Narmada Dam case, the visit of Justice
c; r. Bharucha to the dam site also made a difference in the outcome of the case. In
his dissent Judgellll'llt, Justice S.P.Bharucha expressed dissatisfaction with the
rehabilitation process and the way environmental clearance was given to
cpnstruct the dam in the river valley.

The spot \'isit of judges has had enabled them to assess the environmental
problem from different perspectives involving socio-economic and
l'I1\'ironmental issues and hence the decisions given by these judges has had
made a difference in the outcome of the case. However, most of the judges share
the view that it is neither feasible nor possible for them to make spot visit to
arrive at the decision always. Therefore, the innovative method to arrive at the

Intt"fview With Justin:' Krishna lyN


121,
Ir InterView \'\'Ith Justice P N,Bhilgwati

149
dl'cisilll1 through snot visit IllS b f
t ,ecome part 0 individual interest of judges
\,lll1l'r th,1I1 ,1 sl'riouc; phel1Pllll'non in the l iecisio
. ll-ma k''mg process.

·u.s Evolution of Environmental Principles and Doctrines


The SUprl'llll' Court llf India, while administering environmental justice, has
l'\llIYl'd llTtcllll principll's and doctrines within and at times outside the
Ir.1Illl'wpr" "I thl' "\isting l'Il\·iwnnlL'ntallaw. Environnll'ntal principles, such as
1','llukr~' 1',1\ I'rillnpk prl'Cclutionary principle and public trust doctrine have

""l'll ,1dllptl'd b\ 11lL' ,1pL'\ (purt in its (oncern to protect the environment from
turtIll'1 dq;r,ld.1tllln ,1I1d improH' thl' same. It is important to note that these
l'III1(Jpk.. h,ld \'l'l'n dl'\'l'lopl'd III \'arious international agreements and
,pnll'n'nCl'" ", I'll'\l'nt further environmental degradation and protect the
,'IlY In ln III ell t.

llr.1wlIlg III k'rl'IKl' fWIll these agreelllents, the Supreme Court of India has
.1l'l'hl'd YMU1U", principles to res(llve environmental disputes. For example, the
Ppllull'r Pap; Principll'lc' was adverted bv the Supreme Court of India in the
llllhan Cpuncil for Enviw-legal Action \'5. Union of India. Giving the judgement,
till' ludge", held that "we are of the opinion that any principle evolved in this
""h,llf SllllUld Lll' simple. practical and suited to the conditions obtaining in this
c"unln·. OI1Cl' thl' acti\'ity carried on is hazardous or inherently dangerous, the
P(,lIutl'r carn'in!!; on such activit\' is liable to make good the loss caused to any
"ther affected party by polluter's activity irrespective of the fact whether the
polluter took reasonable carl' while carrying on his activity". Under this
principle, the polluter is responsible for compensating and repairing the damage
caused by his omission. In the case of Vellore Citizens' Welfare Forum vs. union

I~" [Iw Polluh'f PdVS Pnnciplt> IS tl prindple when" ~he polluting p.ut), pays. for the' damage done to the
IMIllfdl pnvironmenl This principle was first cldoptt"d (ll interndtiondl Ie-vel in the 1972 OrganisatIOn for
Economic Cooperation and Development Council Rel-ommenciatJOn on GuidIng PrmCtples (oncermng the
Inlernallonat Aspects of Environmental Policies.

150
of India, thl' Supreme Court has stated that uthe 'po II u tcr Pays P"
r!nClp Ie ' means
th,j( .. the abst,luk liability
. for harm to the envi ronmen t ex ten d s not on Iy to
«llllpl'nS,lk the \'ictims of the pollution but also the cost of restoring the
l'nnrllnnll'ntal degradation . Remediation of the dama gc d '
envlfonmen t'IS part 0 f

tilt' PWCl'SS p( ·Su .. tainable Development' and as such the polluter is liable to pay
the cost to till' indi\'id ual sufferers as well as the cost of reversing the damaged
l'C\llogy ...

Thi .. principk of compensating the victim as wdl as the environment is laid


d(lwn 111 Sl'ctitlll ~ t'f the :\ational Environment Tribunal Act, 1995 Section 3(1),
a .. ,1 Ire,llh' .. t,lted, rdl'r-; to the compensation payable and it would be as per the
Ill',ld .. "pl'cihl'd in the Schedule. The Schedule contains items (a) to (n) out of
which itl'm" (a) to (el relate ttl the individual affected by the polluter while items
(f) It, (n) rl'latl' tn the em'ironmental damage, including that to the flora and

f,llIna The Court Ordl'fl'd the Celltral Government to establish an authority to


deal \\"lth the situ,ltion created by the tanneries and other polluting industries in
till' Statl' 01 T,lI11d :\,ldu. This authority should implement the polluter pays
prll1cipk, and identify the loss to the ecology/environment; and
indi\iduals/ familil's who have suffered because of the pollution, and then
dl'll'rrninL' the compensation to reverse this environmental damage and
COmpl'IlS,lte those who have suffered from the pollution. The Collector/District
\Iagistratl's shall collect and disburse this money. This is the quintessence of the
polluter pays principle. Absolute liability of the hazardous and inherently
dangerous industry is the high-water mark of the development of polluter pays
principle. In this way, "polluter pays" rule as interpreted by the judiciary has
been recognized as a fundamental objective of government policy to prevent and

control pollution.

151
Drawing inferencl.' from the international agreements
relating to the
l
precauti()lhlr~' principle "', the Supreme Court of India, in the case of VeLlore
Citizens' \\'df<lre FPTUIll \'5, Union of India , has re ferre d t 0 th e precautionary
'

principk ,1I1d tlll'rpt)\' declared it to be a part of the customary law in India In


- '

thl~ case, the ((lurt has CIlnfronted with the problem on the one hand, to handle
t[ll' mattl'r r"[atin~ hl Illdustrial pollution caused by large number of tanneries,
dl~chMhinh untrl',lk'd tr,lde effluents in the agricultural fields, open lands and
\\,lh'r wan; ,1Ild on the other, to save the environment from further degradation.

In (l.der til b,l[,lIKl' the scale in such a complicated and techno-science matter, the
court has looked hl the international efforts made in this regard. The Court has
yil'Wl'd tlll' Ill1pllrtant d"\'l'I(lpnll'nts from 1972 to 1992; wherein the traditional
r< lnn'pt th,lt dl'\'l'lnpllll'nt and ecology are opposed to each other has been
gr ,1 d 1I,11 h" n·pI.Kl·d b\' till' concept of susta i na b[e de\'elopmen t.

One (\\ the 'i,llicllt principles or what the court calls the essential feature of
su~t,llllab[l' dl'\'('[opllll'nt is the Precautionary Principle. In the context of
municipal law, according to tIll' court, it means three things: Olle, environmental
nll',lSurI'S to be taken b\' thL' state or other authorities must be such that it
,1IltICiP,1tl's, prl'H'nts ,md attacks the causes of environmental degradation. Two,
if th"re are threab (If serious and irreversible damage then any lack of scientific
certaint\' ~h(luld not be used as a reason for postponing measures to prevent
environmental degradation. And third, the onus of proof shall be on the actor or
the developer/industrialist to show that his action is environmentally benign.

,> :'n undt"'rlnng tndnddte of tht" precautiOllary principle IS Ihat. lfl the fdn:" of s.c-ienhfIC uncprlainly. a party'
')hould reJrdi;l trom ddlOIlS thett might hdrm thE' envLronment. and tlldt those ",\:1'10 oppose thts prohibition
hdVt:' thE" burdt.~n of proof for c'4ssurlllg thr safety of the proposed action. The precdutionary prInciple had Its
origin in thE:" mid.1980s (rOin thE' Genl1dll VorsorgE'prinzip. the d(,Clsions ddopted by St(lfes \vilhm the
"orlh Seil ~:linistNial ConterE;'l1c(' mdrk the first use of this principle in mternat[OIldl law. ExplIcit reference
IS Illdde to it III the 1984 Bremen lI.:1injsterial Declaration of the International Conference on the Protection of
:\orlh Sea Ihe 1987 London Minisl.,i.l Declaration of the Second Internahonal Conference for the
Prolection 'Of Ihe North Sea, Ihe 1990 Hague Declaration of the Third Conference on Ihe Prolection of the
North Sea and the 1995 Dectuation of Ihe Fourth Conference on the Protection of Ihe 1'\ orlh Sea.

152
The Supreme Court has tried to locate the precautionary principle in the
pn)\'isions of the Constitution. For example, Article 21 guarantees the protection
[If life and personal liberty. Similar are the provisions of Articles 48A and 51A
(g): one imposes obligation on the state to protect and improve the environment
and the second proVides for one of the fundamental duties of the citizens to
pn1tL'ct and impwve the environment. Apart from these, according to the apex
Cllllrt, the ell\'ironmental laws have also recognized the aforesaid principle. In
\Il'\\' of this constitutional and statutory position, the Supreme Court concludes
that tIll' principlL' has become a part of the Indian environmental law. In view of
this pOSItion, tlw Supreme Court has gone ahead and has directed that an
<llltlwrit\' be appointed under Section 3 of the Environment Act to implement
this principle. TIluS, the Vellore industrial pollution case was the starting point in

llw prl'C<llltionar\' principle had also been emphasized in the M.C.Mehta case BO
where tIll' historical monument, the Taj Mahal, received a severe attack of
pollution l1\' the industrial activities around it. The Supreme Court, applying this
principle, has taken the stand that the pollution has to be eliminated at any cost,
and that no chance could be taken when human life apart from the preservation
of such a prestigious monument is involved. In view of this, the court has issued
nl'(l'SS<ln' lhrections to the industries polluting the environment in and around
the Tal 1'>i,lhal. The MV.Nayudu case nt is another example which supports the
staml that the precautionary principle has become the law of the land and the
courts do not have to wait for its universal acceptance or its implementation

through the municipal law.

'''' 1v1.CMphtJ v Union of IndlJ. AIR 1997 5C 734


111 M.V "'Jyudu v. APPCB. AIR 1999SC 812

153
To further justih'
, t
and perhans extract the state l'nl'ti'ati' ve t0 conserve natura I
rl'S(lUl"CCS, the Cllurt cnunciated the doctrine of 'public tr us t' th ere by 0
bl'19ating
,

consely,ltion b\' till' state, The 'public trust' doctrine has been referred to bv the
"

SuprCllle Cllurt 111 \LC. l'.lehta \', Kamal !'\ath: 1997 (1) SCC 388, The doctrine

c'\knds to ndtur,11 rl'Sllurces such as rivers, forests, sea shores, air etc., for the
purpllsl' \1( proll'cting the eco-systelll, The State holds the natural resources as a
trustl'e ,1Ild Cdnn\lt C\llllillit breach of trust. In the above case, the State's order for
gr,lIlt 01 a Il',1sl' Itl d nwkl located on the bank of the river Beas, which resulted in
till' \hllL'l interiL'nng \\'ith the natural flow of the water, has been quashed and

tIle' public Cpmpdnl' whICh got thc kasL' has been directed to compensate the cost
('I l'estJtutJ(ln (If l'Il\'inll1l1wnt and l'cology in till' area,

Lnh'rtunateJ\', most pf the ahove innovative principles borrwowing from


inll'rnati(ln.ll <1gn'l'n1l'nts b\' the judiciarv have neither been followed
(ulhisll'ntJ\' nor been in'>tituti\lllalized to make a long term impact on the
l'l1\lronl11l'nt,11 gOVl'rI1.lIlCl' proCl'SS, For example, the precautionary principle has
nut bel'n ,1pplwd 111 the Tehri Dam case where the petitioner as well as the
En\'lrOlllllental Appraisal committee of the Government expressed concern about
tIll' safety pI the dam, As far as the Court's emphasis on polluters pay principle is
concerned, it has not been able il' control pollution, especially created by the big
l'nterprise rather provided an instrument to the polluter to pay and pollute, The
Court has failed to assess the utility of the application of the principle in the
Indian context.

4.1.6 Independent Expert Committee


Recognising its limitation on complex issues like environment, the judiCiary has
been seeking the help of scientific and technical committee in a number of

154
l'IlYin 1nl11l'ntal cases, In the Doon Valley case , 1:12 th e court requITe
' d 1Il
' formahon
'

llil II'hl'thl'I indiscriminate mining, continued under a legally valid license, had
all\ ,1d\'l'rsl' I111 pact on the ecology, Several committees, consisting of experts,
\\l'll' ,1pP"inkd tll l''\amine the question, On the basis of their reports, certain
I11111II1g lIPl'l,ltlllns I\'l'rl' (Jrdered to be closed immediately, and others in a
ph'l~l'd 111,1I11lL'1 C;imil.1l'I\', in Tarun Bharat Sangh, Alwar v, Union of India,m the
C;ul'rl'IllL' Cl lurt ']PP(III1kd a committee to oversee compliance of notifications
,1I1d l lrdl'r~, ,]~ 1\ ell a~ to identify the limits of the protected area in a reserved
fllrl'~t, In till' C;ludg" C,hl',1 q the c(Jurt relied on the reports of experts from the
\llllI~tl'\' llf Fll\llllnIlll'nt and Forests, the State Pollution Control Board, and
\'I'TI~L il1 "rdl'r tll dl'tl'rmil1L' \\'11L'ther the waste left behind by the chemical

Il1dll~trIl'~ h,ld ,1Il ,llh'l'r~e impact Uplll1 the health of the villagers or not, and

thl'Il,by tll Ii, ,]b'Llllltl' liability lll1 such rogue industries for the damage caused,
111 C; Jag,1I1n,lth \, LlllllIl "f IIldia,I" intensive and semi-intensive aquaculture,

"l'I'l' dl'cl.1l'l'd tll bl' l'Il\'inH]llll'lltalh- harlllful bv the C(Jurl,


, '
011 the basis of studies
bl' the Cl'ntr,]1 1\lllutl<ll1 ClH]tr,,1 Board, the experts and the expert committees at
till' 11,] tl< ll1,] I ,1I1d II1tl'rIl,] tl< lIla I Il'I'l'Is, III C(Jdavarman TIlirmulkpad,l<h the court
a~kl'd till' ~t.lte gll\'l'rIlIlll'Ilt al1d the Central gll\'ernment to appoint committees

tll stud,' ~l'\'l'r,ll pnlbIl'Ill~. ,11ld tll oversee implementation of orders relating to

forl'st pnl!L'cl!on,

These and otllL'r l'Xpl'rt committees in different environmental cases show the
,1llxidv of thl' (ourt in arriving at a clear and objective assessment of the
situation, \\'1lL'r(' chalk'nges and ((1unter challenges relating to pollution potential
(1f an industn' arl' made, The judicial technique of appointing committees and
, , f ' t ert bodl'es is ingenious as these result
commissions and re ernng matters 0 exp ,

'" AIR 19H5 SC 652


'" AIR 1992 SC < I~
'" AIR 1996 SC 1446
'" A IR 1997 S(, HI I
"', AIR 1997 SC 122H

155
111 more light being shed on areas of environmental and ecological knowledge.
The feL'db,1Ck helps courts substantially to arrive at conclusions and to Issue
appropriilte (lrders.

however, certain problems with expert committees' report and the


have been used at the discretion of the Supreme Court. Much
l'llIiWnnlL'lltill decisions of the Supreme Court are developed and sustained by
the scil'ntific community. Scientists engage with law when they give evidence to
Cnurt, ((,lied dilta on the state of the environment, develop sampling techniques
,mel makL' predictions for the purpose of environmental assessments. This crucial
c(lntributi(ln from scientists gives environmental law its distinctive flavour.
Lnlike other areas it is not developed primarily by the accidents of litigation.

lhe fel,ltinn<;hip lwtween scientific knowledge, policy and law is complex and
ch'lIlging. Law relies on science for its legitimacy. In practice, much
l'llI'ironmentallaw operates in conditions of scientific uncertainty and hence may
struggle for legitimaC\·. While the advances in science and technology in the last
few decades han' been extraordinary, the fact remains that in certain areas
concerning environment, where the data play a crucial role, the results of
experiments conducted by scientific institutions have remained tentative. The
results are aCCUf,lte in proportion to the accuracy of data and to the extent that
experiment by use of technology has been able to eliminate all chances of
inaccurate conclusions. It is stated that "faced with the growing complexity and
globality of ecological phenomenon, science has ceased to be omnipotent. Strictly
speaking, it is no longer possible to have so-called technical standards that
express the facts in a definitive manner. Complete scientific certainty is the
exception, rather than the norm" (Sadeleer, 2002). The U.s. Supreme Court, in its
landmark judgment in Daubert vs. Merrel Dow Pharmaceuticals Inc (1993) 113

156
S.ct. 271'6, whilc refcrring to the different goals of sCience and law in the
ascertilinmcnt of truth observed that "there are important differences behveen
till' 'lucst Inr h'uth in the court-room and the quest for truth in the laboratory.
SCIentific Clll1c1usions are subject to perpetual revision. Law, on the other hand,
I1lU~t rcsoln' disputes finillly and quickly."

On thl' sanll' lincs, \Ir. Brian Wyne (1992) states in his article "Uncertainty and
Elwiwnnll'ntal hcaring" that "Uncertainty, resulting from inadequate data,
ignllr,lIlcc ,mel indeterminacy, is an inherent part of science." Uncertainty
beCllnll'S a prnblem when scientific knowledge is institutionalized in policy-
Illaking or uscd as a basis for decision-making by agencies and Courts. Scientists
nl.l\ rdinc, Illodify or discard variables or models when more information is
ill',lilablc H()\\'cvcr, ,lgcncies and courts must make choices based on existing
scil'ntific kno\\lcdgc. In ilddition, agency decision-making evidence is generally
prl'sented in a scientific form that cannot be easily tested. Therefore,
lI1adcquacil'" in the record due to uncertainty or insufficient knowledge may not

be properh considered. (Barton, 1991').

The survey of the above views reveals that the opinions as to science which may
be placed before the Court keep the Judge always guessing Ivhether to accept the
fears cxpresscd bv an ilffected party or to accept the assurances given by a

polluter.

In an L'arlicf case, namely, Vincent v. Union of Indi a l'17, a direction Ivas sought in
public interest, for banning import, manufacture, sale and distribution of certain
drugs as recommended by the Drugs Consultative Committee. In this case the
Supreme Court of India did not think of referring the matter to an independent
scientific body but felt compelled to accept the Committee's Report. It said:

'" Vincent v. Union Df India, AIR 1987 SC 990

157
"ll,lI'ing regard to the magnitude ' complexl'tv ,and tec h'
mca I nature 0 f the
eIllJuiry. im'oIH'd in the matter and keeping in vie ....,th e far reac h"mg Imp I'Kahons
.
,)1 till' tntal b,lIl of cL'rtaiIl medicines for which the p e h'h' oner h as praveL,
. 1 we must

at the (lutsl't cle,ul\- indicate that a judicial proceeding of the nature initiated is
11I't ,111 apprnpri'ltl' PI1L' fnr determination of such matters." The Court felt that
PIKl' tlw experts appw\'ed or disapproved the drugs, the Court would not go
into the cnrn'ctness nf their deci~i(}n.

But. 111 a I,lter caSl" the Supreme Court made an effort to rder the issues to an
indepl'll<knt C(lmmittl'L' of experts. In A.P. Pollution Control Board v, lvI,V.
:-':anltiu ('l'>l'': is till' Court pWCL'edl'd to have the claims of the party tested by
l'X!",rt". l!1l'rl' till' qUl'sti(ln was whether the industry was a hazardous one and
\\lwtl1l'r In ca"l' it bl'came operatilmal, the chemical ingredients produced would
'>PPI1l'!' pr 1,1ter percolate mtn the substratum of the earth, gets mixed up with the
underground walt'rs which flow into huge lakes which are the main sources of
,lrinking watl'r to t\\'l) metro citics namely Secuderabad and Hyderabad, The
industr,· filed ,1 report of an expert which was accepted by the appellate
,lUthorit\'
.
cllnstltutl'd ul1lkr Scc. 2~ .
of the Water Act. 1974 manned bv a retired
High Court ludgl'. 'n1l' High Court based on the decision of a Single scientist
produced b\' till' industry, came to the conclusion that if the industry became
opl'rational, it would not pose any hazard to the drinking water. This decision
was affirmed b\ the High Court in writ jurisdiction under Art 226 of the
Constitution of India, The High Court too simply went by the opinion of the

expert scientist produced by the industry.

But the Supreme Court felt that the opinion of the scientist was not tested or
scrutinized by any expert body and therefore required to be thoroughly
examined. The Supreme Court sought expert advice from the National

'" A P PuliullOn c.:onlroi BOdfd " MV. Nayudu 1999(2) sec 718

158
Elwiwnll1l'ntal Appellate Authority" (NEAA) , I
who h . d f .
C conslste 0 a retired Judge

ot thc SUprl'11le Court and other experts . The NEAA was permltte
. d to take

l'\'idencc ,md obtain tl'chnical help from other scientific institutions. The NEAA
\'i,ltL'd till' sitl', took oralcvidence ' examined various t ec h'
mca l td
aspec s an gave
,)n l'iabor,)1L' repprt, Cl)J1taining vast scientific data, as to why the industry should
n[)t bl' fWrIlllttl'd tp \)f1L'ratc The NEAA Report went against the industry. It
st,lkd th,)t tl1<'r" was sufficient sen pc for poisonous residual substitutes like
I1lcl--,,1 PL'rC[ >Iatin~~ underground and reaching the drinking water sources. On
th,lt b,),i.,. the Suprl'111e Court Sl't asidc the judgment of the High Court and the
[)rder pI the .\utlwrit\' gin'n under sec. 28 of the Water Act and refused
pl'r111ISsi[)n h)r tlw ind ustn' to pperate. (A.P. Pollution Control Board v. M.V.
'\,1\udu 2()()1 (2) sec (12).

fiw caw is ,1 cil'.u l',a111ple (If the bl'nl'fit of extensive scientific investigation. If
thiS scil'ntJfic inn'stigation was not done, the life of millions of citizens in the two
Cltll'S could han' bl'l'n endangered. The precautionary principle clearly applies
here. Bec,lu'>l' the ;\ppl'liate Authority and the High Court did not have the
lwnl'fit pI till' ('pinion of any scientific bodies to test the correcbless of the report
of till' single '>cil'ntist. the decision went in favour of the Industry. But, as the
C,uprl'111l' Court h,)d the benefit of the Reports of these institutions, it could arrive
,)I a differl'nt conclusion.

;\., statl'd l'arlier, scientific cllnciusions are based on the 'data' and 'procedures'
applied In' the scientific institutions concerned, The conciusions are correct to the
extent of the data available or to the extent of the efficacy of the procedure or
technology adopted for analysis, With more data and by application of better
scientific procedures, or better technology, a more accurate conclusion can
always be arrived at. In the absence of a permanent independent expert to give

159
inputs to the Court, the Judges have had been using their discretion whether to
refer or not to refer scientific issues to independent experts.

The reports (1f expert committee given to apex court also raise problems of their
e\'identiarv \·alue. No court can base its decisions on facts unless they are proved
according to law. This implies the right of an adversarv to test them bv cross-
. "
examinatiun or at least counter affidavits. However, in the S.Jaganath vs. Union
of India Cl~l', the Court did not permit even counter affidavits to be filed in
rL'sponse tu NEERl's report thL'reby making it difficult for individual affected
partil's to set out their own cause. In such instances, the Court has unnecessarily
indted criticism as using its discretionary power by not allowing other parties to
participate in the decision-making process.

ThL' courts strategy (1f appointing committees, which are supposedly expert
buLiiL's some times also results in leading to a different set of unforeseen
probkms while solving disputes. The Centrally Empowered Committee, for e.g.,
in the T.:'>J.Codavarman case, which was constituted vide a court's order is
pt'rhdps one of the most glaring examples. Almost an equal number of cases or
more as compared to the Supreme Court, which are undecided, lie pending in
till' Centralh' Empowered Committee today. Numerous applications and lack of
tl'l,th of the Committee has made such Committees only partially effective. The
proced ural requirements mandate that the Centrally Empowered Committee can
recommend certain things to the Supreme Court in the light of facts presented
before them. Again, it is only when the Supreme Court endorses such
recommendations that the order would be more effective.

TherL' have bel'n serious concerns over the functioning and composition of such
court appointed committees. It is also being strongly felt that this statutory

160
obligation of the Executive
being diluted by creation of such committees
IS
,
which now ha\'e assumed a s ta t us 0 f permanent statutory bodies as such

committees arc now being created under the E '


nVIronment P
ro d '
ucbon Act as
Special En\'ironment Protection Authorities and their terms depend on the
Central Gon'rnment"s will. In other wor d s, court initiated committees or

commissions are being converted into statutory authorities thereby creating a


p,lraIIl'l power structure within the governance frame.

4.2 Judicial Intervention in the affairs of other organs and its Implications
The in tl'rn'n tion of Su prl'me Court in a wide range of issues, including those
illl'll/\'ing l'Il\'il'onnll'ntal problems, has generated a debate about the
competency and legitimacy of the judiciary in entering areas which have for long
bl'l'n ~wrcei\'ed as belonging within the domain of the other organs of the state.
T(l place till' debate in its perspective, it is necessary to understand the theoretical
fllrmulations abllut the judicial power and functions in a democratic country.

TIll'orl'ticalh, thl' dominant understanding of the judicial functioning in the


COIllmon law world is that it can be rendered compatible with liberal democratic
principles only if adjudication remains distinct from legislation. Indeed, ever
since 1\1ontl'syuieu clearly formulated for the first time the theory of separation
of powers way back in 17.tR, it has been argued that for the smooth functioning
of democracy, judicial power needs to be separated from the legislative and the
executive. This is the sense in which Montesquieu, the exponent of the doctrine,
asserted "\'Vhen the legislative and executive powers are united in the same
person, or in the same body or magistrates there can be no liberty. Again, there is
no liberty if the judicial power is not separated from the legislative and executive
powers. Were it joined with the legislative power, the life and liberty of the
subject would be exposed to arbitrary control; for the Judge would then be the
legislator. Were it joined with the executive power, the judge might behave with

161
\-il'll'nce and oppression_ There would be all end o f every tho109 were th e same
man or the same body to exercise these three powers"139.

He based thi .. ll1odl'l (l\1 till' British constitutional system, in which he perceived a
Sl'p.H.ltion pi powl'rs .1mnng thl' monarch, Parliament, and the courts of law.
\Illntl'squil'u did spl'cih' that 'thl' independence of the judiciary has to be real
and npt ,1pp,Hl'nt l11l'rl'l:--" "Thl' judiciary was generally seen as the most
irnpl'rtant <11 ppwl'rs, independent and unchecked", and was also considered the
Il'a.,t d,1I1gl'rpus. SUb'>l'qUl'nth', this doctJine of separation of power was
inc, 'rl'pr,lll'd in traming thl' Constitution of different countries in the world.
B,l'>l'd 1I1'"n this pnncipil', thl' framers of the American Constitution vested the
lc'p,>latJn', l'wcuti\'l' ,1I1d judicial powers in three distinct authorities, bv the
l''\prl's,> kltl'I''> ni the Constitutinn. Similarly, differl'nt constitutions of the world
such as that <11 L K, India, Canada, and Switzerland have imported the doctrine
of sl'paration of powcr in different ways, believing that it protects democracy
and forl'stall .. tlT.111l1\' (Basu, 19:-;6, p..26)_

Ihl' impos_sibilitl (If ha\'ing a rigid separation of powers has, however, been
i1lu'itratcd in the constitutilln of U_K.., America and India. For example, under
..-\nll'rican C(lilstitution thl' President has got legislative powers in his right to
send n1l'ssages to Congress and the right to veto, while Congress has the judicial
power of trving impeachments and the Senate participates in the executive
powcr of making treaty and appointments. Similarly, in U_K., the emergence of
thL' Cabinet S\'stem of governmL'nt presented a standing refutation to the
doctrine of separation of powers because Great Britain has a very closely
connected legislature and executive, with further links to the judiciary.

"" MOllle'qUl"" Dp L'Esplril des Lois, 1748

162
TIll' fr,1ll11'r<; IIf tlw lnd i,1ll Constitution have not incorporated a strict doctrine of
SI'p.n,lholl lIt 1''''''''1<; but have rather envisaged a system of checks and balances,
rl,[)(\'-I\l'I~ll1g ,lilt! Implementation of policy are conventionally regarded as the

l',du~i\"t, dOIll,lin 01 the e'-l'cutive and the legislature, with judiciary enforcing

thl' 1,1\\' rlll' ~uprl'nw Court has itself recognized that the Indian Constitution
h,l~ n(lt IIldl'l'd rl'(ogllised the doctrine of separation of powers in its absolute

J'I gl ,lJ t\ but t hl' 'Ulldl(l1l S (It the d i Herent parts or branches of the government
11,1\ t' b"t'll <;utlit"lt'nth dilll'rentiatl'd, Consequently, it can be argued that the
Inti l,lIl ("(111<;11 tu tl(lll dpt" not (ontl'lllplate assumption, by one organ or part of
till' ,I,ltt', (I' IUJldIPn" th'lt eS"l'ntialh- belong h' another i.". Howl'ver, the IlIdi,lll
c:,Ul'fl'1ll1' «lurl. 111 till' Iklhi Laws ,\ct case has noticed that the Indian
('PIl'tllllll(l1l d"I" III II \ ",I 11ll' Il'gl .. latin' .llld rudicial powers in the Legislature
,mel tl1t' IUt!llI.H\' III dt',1f tl'1'II1", TIll' framers, in effect, hil\"e imported the essence
1.1 tllt' 1lI1.t!t'rr1 d"drJI\t' 01 ..l'p.ual)(lll of powers, applying the doctrines of
,"Iln,tlluh"l1dl IlIllllall(ll1 ,mel tru .. t. \:Olll' 01 the organs of government under the
C(lIl<;tilutl"l1 c,m, therefore, usurp 11ll' function or powers which are assigned to
,lIl(ltlll'r orgall b\ the COJlstihlti(ln On the same principle, none of the organs can
dl\ 1,,1 ihdl l.1 the essential functi(HlS which belong to it under the

C"n .. llllltion ", :\ .. Justice Kania observed-

"A/lh"lIgh III II(e COIISIIIIIII"11 "r /n./ia lirert' IS tl<' l'xpre,sioll 'f scraralioll oj pmpcys, it
I> d.-,ll' 1/1.lt II l.-gIslatllr!' " ,mlted by tilt' COII<;lrtIlIrOlI alld detailed prm'isiolls are made

Jnr lIIaklllX tll.,t Legi,llltllre Pi/,S Imt" , I, it thm top milch to Sill! tlull IIl1da the

C,"htltlltl<'11 til,' dl/htlp make hlll'S, tilt, dllhl to ('xallS!' its ml'lI wisdolll, ]lIdgml'llt lind

r.llrr"II"" III IIIclklllX lal(', I' rrilllarily etlst Oil the L<'gislature' Doc" il not imply that


tlna'~';' I
'- (\fi III('r (' I "frI"II
·t «(ltr P!' .
,'Iher P"'I';'li'l1<;
. - .
of
.-
tile Canshtu/wll atiza bodies-excclltive

.111.1 III.buIII, are 11('1 IlIte/liled 10 dlsdrarge iegi-;lllti""junctiolls?"142

"" Rdm jdwaVd KalJur v Slate of Punjab, AJR 1955 (2) SCR 235
'41 Delh, Law'sease v Umon of Ind'd, AIR 1951 SC 332
.. , O"lh, Laws rase v Ulllon ollndia, AIR 1951 SC 332

163
Importantly, the most visible aspect of the doctrine of separation of powers in
India has been reflected in the Indira Gandhi· \' . RaJnarall1
. . case 111
. 1975. It has
been held bv
. the COurt that" though the doctrine of rl·gl·d separa ti· on 0 f powers 111
.

the .-\merican sense docs not obtain in India, the principles of checks and
balances, underlying that doctrine constitutes a part of the basic structure of the
constitution or one of its basic features which cannot be impaired even by
amending the Constitution; if any such amendment of the Constitution is made,
the Court would strike it down as unconstitutional and invalid w ". The Court
has elevated this feature of separation of powers to the basic inviolable structure
(If the Constitution in the landmark judgment of the Supreme Court in
I\(·~"ri'illltll/(ill Blm,.!r r'. LiIlIOII or [I/I/ra. The separation of powers is accepted so as to
prL'sL'rve the freedom and independence of the organs of the state, whose
indq1L'lllll'nce is Ill'CeSSarv for their proper functioning.

Howevcr. in thL' post-emergency period in general and with the decline of one
part\' dominatL' system in India in particular; the power equation between the
thrL'e (lrgans of the government has been changed (Sathe, 2001). A closer look at
the functioning of the Indian Supreme Court shows that its function is not totally
subscribing to the doctrines of theory of separation of powers laid down by itself
for the smooth functioning of the Indian democracy. The judicial power has
surged ahead in recent times and its presence is felt in every arena of governance
such as environmental protection, human rights protection, protection of
prisoners' right, workers' right, etc. This process of judicial intervention is no
longer confined to a particular arena of governance; rather it has become a part
of every arena of governance process and more specifically in the environmental
governance process of India. The outcome of judicial decisions in several cases,
in general, and in environmental cases, in particular, reveals that the court has
entered into areas that traditionally did not belong to it and were ought to be the

'4' Indira v. Rrljl1Mrlin, AIR 1975 SC 2299

164
concern of the legislature and the executive Thl's f' d' . I' .
. process 0 JU !Cia llltervention
in governance matters is viewed . d' . I .
as JU ICla activism in present days. Judicial
activism means essentially that the judiciary expands its own scope and
Jurisdiction and gOL'S into matters not normally considered to be within its own
dl)lllain and that the JudiciarY often goes beyond giving of judgments and
issuing l)f specific directions for executive action and sometimes even monitoring
tlw progrL'ss ot ,lction, resorting to what is known as "continuing mandamus"
(I \'L' r, 2()()b).

Thl' l'xpansion [)f judicial activism through environmental cases, in particular, is


widl'l\' debatl'd ,1Ild discussed in India. On the one hand, those who believe in
tIll' h\'ing constitutiunal approach to judicial philosophy view judicial activism as
a sign of IHlpl' to set shortcolllings right. They argue that the approach of the
Court in polio' l11attl'rs is to ask whether the implementation or non-
impknwntatlon of thl' policy results in a violation of fundamental rights or not.
It thl' Court finds thl' violation of constitutional provisions then it can direct
,luthoritil's tp dischargl' their duties. In M.C.Mehta v. Union of India,I~4 the Court
h,lS l'xplainl'd how, dl'spite the enactment of the Environment Protection Act,
ILJHh, therl' had bL'l'n a considerable decline in the quality of environment. The
Court hilS noll'd that despite several PILs, the required attention does not appear
to han' bl'en paid by the authorities concerned to take the steps necessary for the
dischargl' of duty imposed on the state. Any further delay in the performance of
duty imposed by the Central Government cannot, therefore, be permitted.
Suitable directions by the Court to require performance of its duty by the Central
Government need to be mandated by the law. The Court, however, required the
central government to indicate what steps it had taken thus far and also place
before it the national policy, if any, drawn up for the protection of the

environment.

'" M.CMehld v Ullion of India, AIR 1998 (9) see 589

165
The Supreme Court's directions to the implementing agencies to implement the
l'Iwil"l1I1l11ental la\\'s l)r when it asks the pollut t h '
. er a pay t e compensation for the
daInage it h,)s dOIll' to the el1\'ironment and to til e peop' Ieave
h b een we Icomed,

rhis proCl'ss l)t Judicial intL'n'eIHion to ensure better quality of life and an
attl'mpt tll chl'ci-. glln'rIlInental lawlessness are said to have 'transformed the
SUPrL'Illl' Cllurt (l/Indi,) into a SupreIne Courtfor Indians' (Baxi 2000),

\1.111\ (It till' rl'Cl'nt (h,mges in law and policy relating to environmental

f'I!lll'di(ln Ml' al~ll (1\\'L'd to the Judicial decision in environmental cases, For
"\,lmpiL', thl' rl'Cl'llt d,'cisllln of the government of India to set up a national
l'n\lI'Illln1l'nt (lurt ,md fllur Illore at the regional level, one each for the
\:(lltllL'rIl, c,outllL'rll, l:astl'rl1 & \;mtheastern, and Central & Western regIOns
(lIlSIStIllg llf JUdlCi,ll ,md scientific experts, is reflecting the Court's earlier
dIrl'ctioll 11l ,1 Ilumber of caSl'S to set up environmental court to deal with
,', Impll''\, I~~llL'" iIlI'llh'ing in l'I1\'ironIllental cases, Similarly, the Environment
Imp,Kt :\~~,'ssml'nt Ilotificatilln of 199.t issued by the Ministry of Environment
,md Forl'st tlll'\'alualL> the socio-economic, cultural and environmental aspects of
"\"'1'\' PHIJl'ct bdllrl' gi\'l'1l clearance has become mandatory due to the
Clliltinullus eIllphasis llf judiciary on environmental clearance in infrastructure
proJl'cts,

The Supreme Court directions in environmental cases in several key areas have
bl'cllme benchmarks and indicators for High Courts to resolve environmental
disputes at the state level. The Supreme Court directions in the T.N Godavarman
\'S, Unioll of India to prohibit any non-forest activities in forest areas has become
a precedent for the High Courts to resolve environmental cases of this nature,
For example, in Pyari Devi vs, State of Uttar Pradesh,Hs the Allahabad High
Court endorsed the prohibition of mining in the reserved area, Similarly, in the

14; PYdfi Devl v, State 01 Uttar Pradesh, AIR 2004 All 70

166
Goa foundatiPIl caseI4~, the Bombav High Court held that prior approval of
Cenh',ll G,wCrlll1lent was necessarv
' . not onl\'. for use of fores,t bu talso f or use 0 f
dlT cwp land ... Cl'I1tigUOU5 to the forest.

On the other hand, the originalists argue that the intervention of judiciary is

\'inlating the principil' of separation of powers as the theory of separation of


pO\\'l'r suggests that cach organs of the government has to perform within the
prcscribed limits as ,ksigned by the constitution of the state. In a number of
(,lSCS the Supreme Glllrt has gone beyond its adjudication function to protect the
l'llyimnment, tlll'H'bl \'iolating the principle of separation of powers and
creating problems for other organs of the State. Its continuous intervention in the
affairs of executi\'e, questioning the validity of government policy and resuming
administratin' powers to protect the environment aggressively has invited
steadfast resistance from administrative branches. F(lr example, in the Delhi
\'ehicular polluti(ln case, the Court directions to convert all commercial vehicles
IIltp C\JG has \\ Itnessl'd protest not only from the private companies but also
from the gO\'l'rnment of India and the Delhi state government. Steadfast
resistance fmm the agencies responsible for enforcing the court order has raised
'il'riou<; que'>tions abllllt the wisdom of this decision. 'vlany opponent'> have
disputed the rL'liabilitl' and practicality of CNG arguing that the technology is
'>till in dC\'l'lopment. making the conversion both risky and costly. By
di<'fl'gardillg till' pleas of the Delhi government and insisting upon the
implementation (If its orders, the Court seems to be usurping the authority of the
existing pollution control structures to fulfill their duties independently. This
raises both institutional and constitutional questions, as the Court wrestles to
determine which branch of government is best suited to handle pollution control

matters.

"" Goa FOllndd[lon \'. State 01 Maharashtra A!R 200! Bom 316

167
In thL' matkr rdating to fOrL'sts in TN G d .
, avarman Tlrmulkpad v. Union of
.. 0
Indl.1. the Court has set un a Cl'ntral Pow C ' .
t er ommlttee to examme the issue of
depiL'tion nf forL'st covef, and to consider questions such as who could be
f'L'J'mitted tn U~L' forest produce and in which circumstances this is permissible.
1Ill' <-'nurt ha~ imposL'd J'L'strictions on the felling of trees and sale of timber. In
of continuing mandamus, it has closely monitored the
lI11pll'nll'nt.1tion 01 ih orders.

It " .11~o .ugul'd th.1t JlIdician' is indfective in implementing its orders and
dlrl'dl<'lh "I '·.HIU1I~ 1l.1tllres. Fllr instance, in the Delhi Industrial Pollution Case,
tl", c.,1I1'J'l'1l1l' '-'Plll't ul Illdia has difected the Delhi administration to relocate all
till' Indu,tl'll" In'lll 11l'lhl to Rohtai-. without understanding that relocation of
I'"lill tlllg III d 1I ,t Ill" Ml' llut gnlllg tll red uce the pollution level and would rather
lIll II rl'inc.11L' till' plllill tJlln probIL'm. J11 this case, the Supreme Court has also
1.1liL'd tll l'1l~Url' till' Iml'll'1111'ntatHlll of its directions and workers' right.

III .1 llumbl'r ul utilL'r ca~e~, hll\\'L'\'l'f, the continuous non-implementation of


JlId1U.11 urdl'r~ h.l~ bL'L'1l Sl'en as undermining the Court's authority. There is a
dllll'I'l'IKL' bL'lwl'L'n the judgment of the court to uphold the principle of justice
.1Ild the ~en~L' of justice being felt b" the aggrieved parties. The latter aspect of
Judgl'llll'IlI is assessed based on thl' implementation of judicial orders. A review
of the Supreme Court direction on the environmental cases through secondary
~llllrCl'S suggests that the Court has failed in a number of cases to ensure the
lI11pkmeIltation of its directions to protect the environment. For example, the
JudIcial directions to close down polluted industries in Patancheru has invoked
Il'mporary action by the government but no permanent solution has been
provided to ensure better environmental conditions like safe drinking water and
clean air. The directions of the judiCiary to give drinking water without any cost
to the affected villages, remediation of the tanks, and health facility to all the

168
affected Yillages, to carry wastewater from Patancheru to Amberpet bv
((ll1structing a pipeline of 18 km before January 2001 have not been implemented
Ihus far. lhe judiciarY has also failed to implement its directions in the Ganga
m'l'r pollution case. The tanneries continue to operate even though strict action
has been prdered by the judiciary against the polluted industries both in the case
pI till' Kanpur and Calcutta tanneries (Singh, 2006).

Tlll~ h,lS madc till' critics to argue that the court is not cljuipped with the skills
and C(1mpetL'ncl' III discharge functions that essentially belonged to other organs
(If the g(lH'rtlIlll'Ilt. Its institutional equipment is not adequate for undertaking
ll'gislatiPIl or administrative functions. It does not have the equipment for
f)1onitl'nng \'acious steps that are required for the protection of the environment.
II ,,1I111(1t l'tHird,' stop environmental degradation or government lawlessness. Its
<lelt()t]', III till''>'" areas arc largely symbolic. A judicial system can suffer no greater
lack of Ctl'dibilih' than a perception that its orders can be flouted with impunity.
JU'itin' 5.P.Bharucha of the Supreme Court has expressed this concern as
follows I~~:

"Tll/s COllrl 1111/51 refrllill frOIll ptlssillg ordcrs Ihat mil/lOt be enforced, 1l'lUltel'l'r
llie(lIl1ritllw'lIttll right IIIIlY 1,1' IIIlIt ilOIl'1'1'n good Iilc musc. It sen'es no plllpose 10

,,,,,111' 501111' lugh profile IIl1llldlllllllS or dec/llmlioll thllt (1111 rellllllll only 011 pllper,

It 15 rPllIltcrl'rotillclll'C 10 IIIH'c people SflY, "The Suprell/e Court hilS 110t bee I! flb/e

to do IIIII{lillllg or 11'01'51'. It is of mrdillaiullportllllCC /0 the cOllfidence that people

Iwl't' III tilc COllrt that its orders IIrc ullpllcltly lind prolllptly obeyed lind it is,

Iherefore, of mrdil1ni lfllpor/flllce t/rllt orders t/wt lire illcapflble of obedience and

I'llforCelllc lI/al'C 110/ fIlllde, "

_ ' I I . f SUI'reme Court Bar Association's Golden Jubilee's Lecture


14,Ju:stl((' S.P Bildrucild 5 [ndugura edure 0 ~ _ .
Series (2001) on Su !,reme Cou rl on PublIC Interest LIllgatlOn.

169
TIll' Apex Court after recording its distress 0 'I ' ,
' n non-Imp ementatIOn of Its orders
h\' tile' Stall' Government hilS constitut d I'
, e severa regIonal and national
Ctl!1l111ittl'l'-; for implementation of its orders H ' f f '
, owever, even a tef ormahon of
thl',>e l \ '111 Illitll'l'" the problems persist which hints at the fact that the solution
pl'rhaps dpc" nl)t lie in formation of committees hut more effort is required on
the part pt the l'V'ClIti\'l' which is the actual implementing body, Unless fuIl-
fledged CIH'pcratipn fn)111 it is sought, real and effective implementation of any
Court orliL-r is \"l'n' difficult

Thl'Sl' ,1Ild <1thl'r dL'cisional law on environmental cases of the Indian Supreme
Cuurt h<l\l' highlighted that the Court has clearly transcended the limits of the
JlIdici,ll fllnctillns and has undertaken functions that really belonged to either
1'"\I'Cllti\"L' llr Il'glslature, According to critics, while law-making through
lIltl'rprl'tati<ln and expansion of the meanings is a legitimate judicial function
\\'Ill'rl'.ls the lll.li--.ing of .1n entin'l\' new law, which the Supreme Court has been
dOlllg thTl1Uf~h dirl'ctillns in a number of environmental cases, is not a legitimate
jud ic ial function,

Hmn'\'l'r, l'\'l'n those who disapprove of judicial intervention in the affairs of


other organs of the stiltl' do not ask for its abandonment but only that it is kept
within reasonabk' limits; and those who approve of it would still condemn what
tIll'\' consider to be judicial excesses, Given the pervasive failures of governance,
callousness (IT excesses by the executive, non-performance by the legislature,
wide'ipread corruption, and the dismal state of affairs, there is a tendency in this
country to turn to the judiciary as the only reliable and functioning organ of the
stiltl' in comparison to other organs and the last source of relief; and hence this
reinforcl's the judicial strength for an activist role (Sathe; 2001, Iyer, 2006), Now it
has been it widlv recognised fact that not only in environmental cases but also in
other Cilses on socio-economic issues, the intervention of judiciary in

170
environmental governance has been taking place d ue t0 th 10' fal'I ure 0 f otler I
organs to discharge their constitutional duties ' Precisal 't
~ y, 1 COU
Id b10' argue d tat
h

there is broad recognition of the role played by judiciary in the governance

4.3 Summary

The examination of the impact of judicial intervention on environmental


glllTrnance through an appraisal of innovative methods and its interference in
tht' attair~ "f other (lrgans to protect and improve the environment reveals that
tIll' .11'(" C(lurt has gOIlt' beyond its traditional functions of interpreting the law,
\\'htlt' tIlt' adnlCatl's (It the traditional theory of environmental jurisprudence
h,1\"(' bt't'n critical ab(lut departure from the mould of adversarial litigation with
it-; prl'ci<,(' pleadings and procedure, and while administrators have been uneasy
,1bllut 11Ititlial enlT\l,lChment into the area of executive, the intervention of
,ud iCIM\" in resolving l'1H'ironmental disputes has led to evolution of several new
pnnciples in the l'I1\'ironmental governance process, The innovative methods
"lIch as entertaining post card as litigation, allowing third party to file petition,
~p"t n<,it, t'1l-..ing ';11(1 11/(1111 action against the polluter, deciding compensation
bllth for t'1l\"ironl11l'nt and affected party, applying international environmental
prinCIples to dlll11estic environmental problems have widened the scope for
justice and recognition of the values of environment and awarness among people
about their eIH'ironmental rights and duties, However, most of these innovative
nlL'thods introduced by the judiciary have neither been followed consistently nor
institutionalized to make a l(lng term impact on the environmental governance
process, In such situations, it is necessary on the part of the Court to lay dO\"\in
cl'rtain basic guidelines to be followed while introducing innovative methods to

resolve environmental disputes in India,

171
As far as the interference of judiciary in the affairs of th h
- er organs to protect t e
0
environment is concerned , it is found thIt
,~
tho fa r-reac h"mg JU d gments In
' cases

liI-.e coastal zone protection, Court decision in the Bicchri village industrial
pollution, closing down of industries discharging effluents into river Ganga, and
protl'cti()n ()f forest ha\'e exposed executive failures, Despite the problems of
judicial predictability and the feeling that the constitutional balance may be
'lfferted, till' Court decisions ha,'e been effective in protecting the environment in
,1 IllI111bl'J' (1f environmental cases, Given the present executive and legislature's
failul'l' in discharging their constihltional duties and bearing in mind the Court
,1S till' fin'll Interpreter of thl' constitution and protector of fundamental rights, it
IS important to \'iew these criticisms as indicators of the safeguards and checks
th'lt thl' court must now build into its environmental jurisprudence, The
in ll'rfl'rl'ncl' of judiciar\' in the affairs of other organs to protect the environment
gPl'S bl','pnd the traditional judicial function but where laws are not seen to be
l'nfnrcl'd, pMticularl\' where the environmental cases draw the attention of court
b,' l'spou.,ing a public or community and not a private cause and to restore the
intrinsic ,'aim' (If nature, the Court intervention has to be seen as a part of its
constitutional dutil'S. What needs to be prevented is that the activism of judiciary
should n(1t turn into judicial adventurism, Justice A.5.Anand has rightly
cauti(1lll'd th,lt "the Courts ha\'e the duty of implementing the constitutional
safeguards th'lt protl'ct individual rights and uphold rule of law but that cannot
push bad., till' limits of the Constitution to accommodate the challenged
\'iolation, All it means is that judges are expected to be circumspect and self-
dISCIplined in thl' discharge of their judicial functions HH ", The future of judicial
rol(' in environmental governance, therefore, will depend much on where and
h()w the Cnurt strikes a balance between the law, and its quest for protection of
environment through increasing intervention in the affairs of other organs,

lH~ Justin:' A S, Andnd's (1997) Krishllc1 Rao \1emoriral Lectllrp 011 ProtectiDn of Human Rights-Judicial
ObIigdiion or Judicial ActIvism

172
CHAPTER V

CONCLUSION

Since the 19S0s, thl' role of Indian Supreme Court in the evolution of
el1\'irOnllH'ntal Jurisprudence has been significant, innovative and also partly
C(1ntrp\l'r~lal ttlr dl'\'iating from its constitutionally assigned powers and
functipm I Ill' present study has been designed to seek answers to some of the
ill1port,lnt questions \'i/" how 'green' is the Indian Supreme Court? If it is 'green'
thell \\IlL'n is It 'grl'en' and why is it' green'? And finally, what is the impact of its
'grl'l'l11lL'S< l\ll l'l1\'inHlll1l'ntal governance? I have examined the broad objective
of 'gl"l'l'nl1l'SS' of the Supreme Court, judicial decision-making process on
el1\'irnnnlL'ntal Issues and the impact of judiciary on environmental governance,
TIll' "greenness" of Ind ian Supreme Court from 1980 to 2000 has therein been
e\plored III till' realm of two broad conceptual perspectives: environmentalism of
pOllr ,lllel Illlddle class Indian environmentalism through an appraisal of judicial
outCOlllL'S In different environmental cases in the Supreme Court. The judicial
deClsilln-m,li-.ing on l'l1\'ironmental issues has been examined by applying an
integr,ltl'el approach consisting of both legal and extralegal factors, The legal
factors Ml' captured through an examination of legal doctrines and facts relating
to l'l1\'Irll1ll1ll'ntal protection and improvement; while the extra-legal factors are
Identifil'd b,lsed on a dL'tailed review of selected environmental cases and by
USll1g information collected through personal interviews willi different
petitiOlll'rS, law\,efs and judges, The impact of judiciary on environmental
gm'l'rnancl' has been explored through an appraisal of different innovative
methods and principles and structures created by the judiciary in interfering in
the affairs of other organs of the state and its implications, The details of the

findings of the study have been discussed below,

173
5.1 Summary and Findings

Assessing the' greenness' of the Indian Supreme Court, the study has found that
there h,ld bl'l'n a . com mon
pro-em'lronmental thread running through
ud<Tenwnh
o
trom 1980 to :WOO. TI1e C ourt Ilali made no distinction in its pro-
"
enviwnml'nt ,)pproach irrl'specti\'e of the parties (state, industries and people)
who pollUll'd tIll' elwirnnnll'nt and the people (rich, poor and middle class) who
\\'L'rl' .1ttl'cted by the polluti(ln. In a number of cases, even the Court had taken a
pn 1',lCtin' ,md ,) ggressin' .1 ppl'll,1(h t(1 protect the environment. The Court held
that dL'tl'rl<lrati(ln of l'n\'iTonment through industrial activities or non-
iml'll'nll'nt.1tl<ln ot elwir(lnl11entallaws by the implementing agencies cannot be
It 11l'1',) tl'd ,1' 11,1 t u I'a I I'l"OU ['Cl' , It ke \\'a ter; land and air are an integral part of
o\'l'r.111 hUl11,m \\·,'II.h,'ing and tlwir future generation.

Corn lh, 11,1 tlllg \\. itil till' find i ngs of earlier studies on Indian environmentalism
(Kn,hn,), lYlJh; Ba\l,k.u, 'illlha and Philip, 2(06) that finds the failure of state to
under-tand ,md a,'(lci,ltl' itself with other social structures, (viz" migrants,
labour, p'l(lr ,llld d 1".1ll\' ,111 tagl'd sections of the society, etc. in the process of
l'll\'inlnl11l'llt,ll PI(lll'ctionj, the present study also shows that the outcomes of
judiCial d,'cI'I,ln, Ml' n(lt based on the dominant understanding of
el1\' iTOnl11l'll t,lit ,m III Ind ia, i.l'., em'iron men tal protection needs to be done for
the 1i\'L'lih(Hld tit the peop'" thT(lugh devolution of power to the community for
the u'e ,1I1d m,lnagen1l'nt (If llatural resources. The Supreme Court's greenness
was more ill till' forl11 of middle class environmentalism, i,e., to preserve the
qlhllitv of enVilOlll1lL'nt for its intl'insic value and to enjoy a quality of life,

H(l\\'l'\'l'r, in certain cases thl' Court decisions deviated from its own precedents
and inll'rprL't<ltions to protect tIll' environment. Unlike its pro-environment stand
in water and air pollution and forest degradation cases where judiciary has come
down heavily against state agencies, the Court has followed a hands-off

174
approach in enYironmental problems due to inf .... . .
raSLl ucture projects carned out
. ~ ..
anti pnlllHlted by. the 'state . In such nature ()f cases, JUlllClary has subscribed
' tI.'d tllelr
Ilci ther h 1 till' \' a Iues of em' iron men talism of poo r as I.t relec ' ng
. h t over

fprl'~t rl'~(lUrCl'~ and right to habitat nor to the values of middle class
l'llI'ironnll'ntalism as it also rl'J'ected their clal'm to preserve the biodiverstiy,

conccrn Il1r safety of the dam, etc. Similar to the findings of Baxi (1996);
L" p,ld 11\-.1\' (2000) and Bhushan (2004), the study also finds that the Court has
uplwld till' "tate de\'clppment initiati\'es whether it is construction of the dam by
displacing fW(lpll' ,1Ild degrading the forest covers or construction of thermal
Pl"H'I" pl'\I1t \'llllatlllg l'n\'iwnnll'lltal guidelines in the name of larger interest.

To undeht,llld these diHerent patterns and trends in judicial decisions, the role of
iL'g,ll and c\.tra-ll'g,11 factors such as individual approach of judges, resources of
litig,ll1ts, ,md the prl'\',liling s()cio-l'conomic and political environment in the
jUdlCi,li dl'cl~ion-making process on environmental issues has been examined, It
is nbsl'f\'ed that legal facltlrs including Constitutional provisions, Statutory Acts
and COmllltln Law principles have made a difference in the decision-making
pwces., but as the case l'\'o\ves, extra-legal factors have dominated the outcome,
TIll' main t(l(lls that han' been used in the justice delivery mechanism are the law
and the pn'Cl'dl'nts But there are some judges of the Supreme Court, namely,
JustiCl' P.:'-J. Bhagwati, Justice V. R.Krishna Iyer, Justice Kuldeep Singh, Justice
S.P.Bharucha wht> have gone beyond the traditional tools and have thereby
<;ought answers to thl' issues from foreign comparative laws and precedents,
international environmental law position, law literature, and the multi-
diSCiplinary information. In case of complex questions, generally the Supreme
Court has taken the help of experts. A few judges even visited the concerned

sites to form their own opinions.

175
How{'n'r, as far as the ideololTical values of" d ' 'h
tJ JU ges wit regard to environmental
case'" due to dl'\"e!opnll'nt activities of tIle statI' are concerned "
, unlIke other
shldies" the preo;l'nt study
,
finds that the activist J'u l i ges are caug Ilt b etween theIr
'
idl'plllgical \'alues and the F1revailinvtJ socio-econo'
mlC an d po I'h'
I ca I envIronment
'

in rl'sllh"ing CIl\'I)'(Hlll1l'ntdl disputes, It is surprising to note that the judges who


ha\'l' gi\'cn 1l1lIlll'l'PUS pro-L'Il\"ironmental judgements that challenge the state
dgl'!lCil's and h,l\'l' shown their activist approach have at times failed to follow
tlll'ir own prl'll'dl'nts til protect the L'nvironment and people's right to life in
L'n\'!n lnnll'ntal C,1Sl'S ,1gainst dL',"l'Iopment and economic policy,

\\ith ll'gMd to till' Il'S(lurCl'S of litigants in environmental cases due to


intrao;tructllll' C,l'l'," thL' thl'on' of resource inequality as argued by Galanter
(l q::--/) Iwld" t rlll'" ,1 S thL' peti tioners have often fai led to convincL' thL' Supreme

Cllurt ab"ut thl' l'll\"irnnnwntal problems, However, in other environmental


case's, thl' Irtq,~'lIlt rl'sourcpo; have not made any difference in the overall outcome
of ludlcldl deci")on,,, l'nlike the 19805, the environmental cases in the 19905 have
im'''h-ed nwrl' technical and complex issues and competitive parties, but the
appn laeh pf llldiciar," has remained consistent in the outcome whether it is filed
b\ indinduals p[ :'\rGOs or legal experts, The network among different social,
scil'ntific and kgal eXpl'rts in addressing the environmental problems through
rudicial inll'n"ention has also wihll'ssed the emergence of 'intellectual coalition,
which i~ graduallv proving strong for the 'upperdogs' in environmental cases,

Filldllv, the impact of ]udiciary in environmental governance through its


innll\"atin' methods and interference in the affairs of other organs has
dcmonstrated that during the last two decades the Supreme Court has exhibited
its k'gal scholarship in the development of environmental jurisprudence" First, it
has made it clear that in initiating judicial process on environmental issues, it
does not require to ask the bonafide of the petitioner in order to address a larger

176
public interest and more i t I I
mpor ant y t 1<' rights of the poor and disadvantaged
sections of the societv. Second for the first ti . d" h .
~, me JU Icwry as made It mandatory
that the right to healthv
" environment and right to health are an In
. tegra I part 0 f

the right to life under Article 21 of the Indian constitution. Third, judiciary has
compelled the state and other implementing agencies to discharge their
constitutH1nai duties to ensure the above-mentioned rights of the citizens and
al~ll in prll\L'cting ,md improving till' environment. Fourth, judiciary has also
applied 1,1\\'<; and I'lllicil's initiated at the international level to solve domestic
elH"lwnll1l'ntal problelll-; and thereby setting the trend for new principles in the
l'nvironnll'ntal jurisprudence of India. Fifth. b\' '1ggressivcly and controversially
'lddr"'>'ln.'~ ,'(ll1tlilh Mllund l'll\'irunmental problellls, the Supreme Court has
,11"" rolL'>",l .1\\',H"Lh'''' ,,,LKl'rlling Illdia's l'n\'ironnwntal issues.

In till' pr"cl'"'' (11 intL'rn'ntion. judiciary has discharged its constitutionally given
judicial n'\'il'\\' ~',,\\'er in some cases and in other cases it has innovated new
prll1cipil'" ,mel crl'atl'd new structures to implement its decisions, which are
labell'd a, [udici,11 activism. However, the study finds that the most of these
inllU\'atin' methods have not been consistently applied 111 resolving
ennronmental diputl's bv the judges and have also not been institutionalized to
bl' more effective in the judicial decision-making process on environmental
Issues.

TIw stud \' abo finds that in a number of cases the Supreme Court has gone
beY(lnd its adjudication function tll protect the environment thereby violated the
principle of separation of powers and has created problems for other organs of
the State. Ito; continuous intervention in the affairs of executive, questioning the
\'alidity of government policy and resuming administrative powers to protect the
environment aggressively have invited steadfast resistance from administrative
branches. Through intervention in others affairs, it has been found iliat the Court

177
has prevented the executive branches to emerge as an effective body for
protection of the environment. An examination of the environmental legislation
and bureaucracy in India makes it clear that the infrastructure is already in place
for dfective environmental management. While the Court evidently intended to
protect the health of the citizens, it may in fact be impeding the development of
m,lrl' dfecti\'e environmental controls in the country,

In <;ome caSl'S, it is obselTed that the court is not equipped with the skills and
Cllmpl'tence t(1 discharge functions that essentially belonged to other organs of
thc gll\'ernnll'nt. Its institutional equipment is not adequate for undertaking
legislation pr administrati\'c functions, It cannot create new rights, such as right
to l'I1\'ironnll'nt. right to health and right to information, It docs not have the
equipment for mpnitpring various steps that are required for the protection of
the elwironml'nt, It cannot entirely stop environmental degradation or
gOH'rnnll'nt l,lwlessne5s, Its actions in these areas are bound to be symbolic.
:\Ith"ugh Ih h,,~tinl'~<; h,15 caused man\' predictable and perhaps avoidable
l'Itl'(t,>, tlw~l' dtlll'h h,1\'l' in m,m\' wavs bendited India's environment and has

tl1('re[1\' gilL'n ci\'il '>ocieh and l'l1\'iwnmental advocacy groups a renewed


opportunity to prolL'ct ,md lI11pnl\'e environment in India,

On till' ba'>is ot till' ,1b(lI'l'-discussed findings, it can be concluded that the


C,upn'llll' e<Hlrt h,)<' bl'l'n ,lCtin'ly engaged in resol\'ing environmental disputes,
f\, is l'\'idl'llt fnllll thl' analysis, there has been a flurry of environmental cases
cOllling ttl thl' Suprl'ille Court against industrial activities, state development
polin' ,mel l'nCl'oachnll'nt by' people in forest areas for the purpose of preserving
environnll'ntal qUillitv and protecting natural resources from further
degradation, The Supremc Court has intervened in environmental issues and has
, I I't as JUs
USCl 't't"
I lca t'Ion t',r
l imnlcillenting
t
and administering cnvironmental laws
and policcs to an extcnt that gocs beyond the traditional function of judiciary,

178
The Suprenll' Court has made interpretatiolls and'Issue d or d ers for the
pwll'ctinn (11 t'n\'inlllllll'nt irreslJective
r
(11 partie

'I ii' ,
S V10 a ng environmental laws

.1nd p(lli(ll'~; IOl"<ltiPIl of the environnlt'ntal problem', a ffec te d par h' es; an d
pl'b til lilt' 1'-;' b,le kg)'( 11111 d ,

I hi" 1I1(J', '.1 .. ing «(lll(t· rn 1'Illt'rgeJ from the judiciary due to sevt'ra I factors, viz"
tlw r"lc' I'l.l\('d h\' till' l'Il\'irpnmental mm'ements in creating awareness about
1'111 Jr(lll1111'llt,1I i,,,uv" hpth ill the public discourse and at the policy making level;

"Illt'rgl'lllC' "I "ll\in'IlI11"llt,11 \IGOs/activists and their role in drawing the


.lttl·llti(l1l <>, jllt!i,'i,lrl b\ dr'lfting ,1Ild filing P[Ls, the attention paid bv individual
[lIdg"" h ,·nkrt.lil1lng pt'titions ,lilt! most importantly the continuous
dl'gr,1tl.Jti<ln ,'l "Il\'lrOlll1ll'l1t f(lr del'l'lnplllent acti\'ities and private interest and
1,lllm,· ell "t,lt,· .I);l'T1l'i('" t(l di"charge their constitutional duties, As mentioned
'·Mlil'r. 0\('1' till' ,,·,n ... tIWH' has bl'el1 increasing degradation of forest cOI'er;
illt'Il',I,ing !ton' I 01 .IiI' p"lluti(lil. "',lll'r p(lllution, soil erosion; l'te. which have
had dt'I'astating impacts (111 human well being and are also raising the spectre of
irrt'\'l'rsible long-tt·rm damagt' to ecos\,stems, If these environmental problems
,1I1d I.... U,'" are ntlt rl''ioln·d then the counh'Y's ecological stability and
bi"din'r<;it\, would p"rhap'i ... uffer immensely to the detriment of future
gt'llt'r,ltitln~ (t· ... p,·cialll- the p,)or) through deterioration in the quality of

PIl\ 'i r<)n men t.

Thrllugh it ... inll'rn'ntillll, the c;upreille Court has recognin'd the importance of
pr"~l'I,\"lti,'n 01 n,ltur,ll resources for Illultipk' purposes and has also observed

th,lt thl' increasing destruction and dl'gr,ldation of nahlral resources would pose
thl"',lt ttl future gt'nerations. Thl' SUprl'llll' Court has noticed that those national
and .,tatl' agl'ncil''i rt'spon"ibk for pJ)\'ironmental protection and its improvement
h,1\'l' largt'!\' filii,'" in their duties, [n the light of national and state governments'
inuctioll, the Suprt'ml' Court's ullusual assumption of powers seems to be

179
ill'>tlti,"!. "~I"'li'lll\' given India's '
IIlcreaslllg environmental problems. In many
I\',l\'~. thl' '-,1I1'l"l'Illl' ("(lurt's aggr '5'" t . .
" Sl\ e s ance towards environmental protection

h,l~ h,ld ~"I1)(, pll~ itr \'" ('{fects. . IIld ia alread\' " h as h a d environmental
. laws to
rnr(lll'd "Il \ in llllll"llI 11"'lll (II'!'!' "'r 'Ilt ac n' \'1'n' es, b ut d ue to several reasons
ilKlutiillg
implellll'nting ilgl'ncil's, sub-competencc, insufficient
51,] t lin g. 1,,,1 i I1(,]1 iIlkrf,'rl'IK" ,md corru ptilln, the executive brilnch and its

IIIl,krhll1)~ '])~"llCi,',> likl' 111l' \ loEr ,md fl'gulator\' bodies likt' P(llIution Control
~O>.lrd '> h,l\,' b",'n I'l"l'\'t'ntl'll frnlll enlorcing policies ilnd adapting them to
Indi,]' '> ,hdn)~ing ,'n\inlnllll'nt,]1 Ill"'ds. H,'nel', the Supreme Court's increasing

inh'rn'nli,'n ,md if<.. \\'Ide ,lS'>ulllptipn of pl'\\'l'rS has slowed and possiblv
r,'\ ,'r,>,'tI 1"0 """lpgl"llh tI,lllg"l"PUS trends: that of an indfective government
,md Ih,1t pi tI,'ll'l'1pr,]ting n,ltural r,',>pUITl'S.

,\[th,'ugh d",'i"l\,' ,1dlPfl m,,\ h,)I'l' bel'n nl'Cl'S~dIT, tIll' Supreme Court's orders

h,1\" I:OIh' t,ll" b('\ (lnd tIll' ,l"siglll'd po\\"ers given to it by the C(lnstitution. It mil}'

b" ,lTglH'd tll,,1 t[lt' '-,upr"Ill" Cpurt h,lS aS~lInll'd too much power in a too short
"P,lll 0' tlfllt' to> n'",,[\'(' ('ll\'jwl1l111'ntal disputes. Its orders ma\' be sounding
1"I',ie,ll. th(lll)~h int"l'lllpll'l(' fr(llll a pnlin' perspective but from a practical
pl'r"pl'dll'l' th('\ dl'm,lIld ,<>" much, gill'll the ineffecti\'e implementing agencies
,llld rq.;ulatlln b"di('~ likl' the ['"lIutiun Control Boards. Thl.' Supreme Court has
not ('Al'l"l·i.,l,d ... ulficil'llt r,llItiull in l'xtl'nding its roll' to directly over5ee the
('l1\'ironnh'nt,)1 i... .,lll·". lk"pitt' tlw Supreme Court's defense of the right to a clean
dnd Ill',llth\' ,'n\'ironnll'nt ,l~ ,l part "I thl' right to life. the Court's aggressive

polic\,Ill'lking \iol,ltl'd ['<'''pit-'s right to lifl', such as workers' right to


l'lllp[O\ll1l'llt b\' rl(l.,ing dpwn industril's and pcopll"s right to livelihood by
taking ,)("ti(ln ,lg,lill"" trib,ll ,llld h,ca[ p,'ople for encroaching into forest areas. In
case of rL'~()h'ing tribal peopll.'s' right over forest resources, the Supreml.' Court
could hd\"(' t,lken into consideration the livelihood, socio-cultural and religious
ilSPl.'cts ()f environment ilnd the way people associall' these values with

180
el1\'ironnlL'l1t, Similarl\', in closing down industries it could have given equal
pri(\rity tll \\',)rkl'l's' right in preselYill<' th> ' I' f '
. n l qUd It}' 0 environment. While the
Supr"I1ll' Court h,l~ ill ~ome wayS im[1r 1\" j I j". '
, ( Ct nl la s appIOach to environmental
is"ul'~, it, ,lggrl''',in' roll' in the process has also disrupted the balance of powers
,111Wl1g gOI'l'rI1Il1l'l1t org,1I1isations thereby causing several administrative
prllblc'lll' ,lIlel pr,lCtic,ll ditficulties both for the executive and the judiciarv itself.
HI ,l"ulllillg such Plll\('1', the Suprellle Court has perpetuated an incompetent
g(\\l'rI1I11l'llt l'UI\'<lULT,KI' that defers to the Supreme Court for polic\'Inaking,
\ \h ill' th,' 111,1 t tns (\/ pmtl'cting envirol1lllent. human rights and upholding the
pn)1 is)()IlS ,,/ till' c(lllstitutioll arl' core issues before the court, it can be argued
th.lt kgisl.ltil" .llld .)dlllil1istr,1til'l' wings would more properly decided them, In
I,ld, 111,1111 "')Ilstitutillll.lll'xpl'rts h,1\'e expressed such concerns,

5,2 Policy Implications

(>II l'1l till' iIlLrl,.hlll); 1l1l111bl'r of l'I1\'iJ'()lll11elltal cases involving various social-
(""IH)I11I,', ",'il'lltific .11ld nilturdl i~Slll'S, thl' Supreme Court of India in its present
c(llllp(lsititlll .llld ,trlldllrl' ,.,l'l'I11S to lw in a disadvantagl'd position. The Court
n",'e!., to illitl,)1l' (L'rl,llll rdOrnl., ,lnd ch'1I1ges in its ilpproach to deal with
l'llllr(lIlI11<'lltal cases, :\s i., l'I'idl'nt, environmental issues are complex and need
to dwell ()n points of scientific and technical relevance. The Court in such
circumstances finds it difficult to form its independent opinion and therefore
takl'., recourse to the help of expert committees which is a long and time-
consuming exercise, In order to overcome such difficulties it is important that
tlwre .,IHlllld be ,1 speri')l cnvironment,ll bench in the Supreme Court, which
~h()lIle! ~it rq~ul.1rl\' (()n~isting of not onh' jUdgl'S but also experts from different
dis(Jplin<'~, Environmental cases, keeping in view its complex nature and the
l1L'cessity of spl'cdier justice, should be adjudicated by multi-disciplinary courts.
TIll' judges who do not have legal h'aining on environmental issues need to be
tra iIlee! to h,lI1d Ie ell v i ron men ta I cases. For those judges who are part of legal

181
education on environmental Issues sh ou Id b e a IIowe d to be a part of the
environmental bench.

TIlE' recent decision of the government of India to set up a national environment


court and four more at the regional level. one each for the Northern, Southern,
Eastern & Northeastern, and Central & Western regions consisting of judicial and
scientific experts, is considered one of the long awaited requirements to deal
with the flurry of environmental cases across the country. A closer look at the
different pW\'isillll<; of the bill raises hope for the advocates of environment
whose efforts to initidte judicial process for the protection and improvement of
en\'ironment would at least not be rejected on the ground that the environmental
pfllblem iIwolves an intricate scientific and technical questions. Because the new
courts, besidl's the chairperson and one member from the judiciary, would have
imlependent statutorY panel of eight experts from the fields of physics,
chemistry, botam', zoology, engineering, environmental economics and social
sciences (either s(lciology or cultural anthropology) and forestry to help and
ad\'ise judges {11l regular basis. The inclusion of different experts to deal with
different aspects ()f the environmental problem by the courts will undoubtedly
go beyond the cost-benefit aspect of a project or a production unit and can serve
several long-term interests of the environment and development.

It I~, how('\'('r, important that the government of India should la\' down certain
glliddines for the l'ffectivl' l'xercise of powers of these courts to be created to deal
with l'I1\'inlnml'ntal cases. The powers of these courts and expert groups should
O\'l'rridl' ,III olhl'r departn1l'nts judiciously and objectively. If this happens, and
thl' l'Xpl'rt body is l'mpowerl'd to take indqK'ndent decisions, the Supreme

Court'.., I'll/l' wil I Ilave been l, "n·,fl'cl'al


~ ~
f"I'
, ,11"II'a's
, long term environmental

rl'gulJtion prospects. There -;hnulJ also be sO'ingent guidelines for the


,
appomtment () fexpel
. t me mbers. to these environmental courts based on certain

182
criteria Ihn'ugh ConSl'nsus of diffl'r"I1t
c environmental groups, legal experts,
J·lld,('e~.
h
,llld ac,ldl'mics.
TI h'
1e en re process should not be done in a state of
seCITc\' bu t be a mena ble to pu bl'IC scrutiny and review by judicial bodies

preferably bv experts of different sections including scientists, technicians, judge


and NGOs.

To l'ntertain petitions and prevent frivolous nature of environmental cases, the


PIL cell of the Supreme Court should be equipped with all resources to scrutinize
and review the petition and investigate the intention of the petitioners for
drawing the attention of the Court. Its function should be more transparent than
a~ It is tnd.lv. Importall th', thl.' procedure of PIL should be institutionalized with

cl'rtain guidl'lines emphasizing under what conditions the Court can entertain or
relect pl'htIon drawing attentIon for elwironmental protection.

Gi\'L'n the ~C.uCl' resources of Supreme Court, it is very difficult on its part to
monitor its directions to be implemented in each and every case. In order to
effecti\'l,l\' Impll'mcnt the Supreme Court directions, it is necessary to make the
impll'ml'ntdtion process more effective through bureaucratization of agencies
rl'sponsible for the control of pollution such as local-government bodies,
Pollution Control Boards and also involving the petitioner in monitoring court
directIons.

Apart from thI~, the Il'gal framework needs to be comprehensive and suitably
dl'sIgned for obJective interpretation of the environmental laws and policies.
TI1ere is a plethora of legislations on environment in India. Many of the laws are
of pre-independence era, which do not match with the policies of the post-
independence period. Hence, they need to be reviewed or if required repealed.
Forest Law of 1927, the Land ACljuisition Act, 1894 and Waste Claims Act, 1863,
in particular, need to be re-enacted so as to bring them in harmony with the

183
constitutional proclamations of environment protection and the objectives of the
new Forest Polin'
' of 1988 and other policies of Ian d use,.v
'1any uncovere d areas
of eJl\'iwnmental protection need to be covered unde r new I ' Ia ti' ons such as
egis
n,)ise pollution and radioactive pollution, for they are inadequately covered
under the existing legislations, EIA and industrial zoning must also be provided
with adequat . . legal support.

1>1 lI1~il1)~ I'd, '1'11]<, in '"i~tiJlg l'l1\ iroJlIlll'Jlt,ll I,]tvs in adaptatioJl with l'OJerglllg

t'1l\'in'nlllc'llt,ll prpbl"Ill~ ,lIld rdkding diver';e l'lwironmental values in the law,


~tl "l1gth"I1JJl~ ","cuti\(' b"die~ "'ith the required resources to deal with
"11\ inlllllwl1t,ll I'r(lb"'lll~, d"\"(ll\'ing P(l\\'l'r t<l local institutions and community
,,'Iwr,'\'" I' nl'Cl'';sa)'\' wtlul d ,'1]<, u 1',' bl'ttl'r managelllen t of na tu ral resources in
Indl,1. The d .... ar guidelines in environmental laws and policy would also provide
till' Cpurt utmost independence in dealing with environmental cases, Instead (If
l'I.l\'ing till' I'll'" pI till' legi..,l,lhH,' and till' executive bodies, the Suprem . . Court
\'Pldd ~I"'nd Ih tin1\' intl'rprl'ting constitutional rights, It would motivate
n,ltipn,ll prg,lIlI/.lti,'ns to dearlY delegate responsibilities to "rganizati(lnS whose
intr.htl'udIJr"~ ,lilt! Iwr~,'nncl exi"t tll OJ,mage India's environment. \Vith these

eh,II1)'."'>, till' '-,UI'l'l'Jl1l' Court would st,1\' in the background to check that national
,lilt! ~tak "rg.lI1i/,lti(ln~ iuliill thl'ir dutil''> dfectievlv, B\' not trving tll replace

gmerllnwnt (lrg.1Jli/'lti"n~, the Supreme Court would alsll help to build a


strongl'r ,111<1 m(lJ'l' dfectin' bureaucraC\' to prevent and control environmental

5,3 Further Research


Much "f the analysis 111 understading the role of judiciary in environmental
governance in the present study has focused on both the structural and
behavioural aspects of judicial decision-making process on environemtnal issues,
The analysis, however, could not establish whether or not there is any

184
relationship behn'en the ideological stand of judges in the judicial decision-
making prtlcess and their background such as: class, legal training, gender, party
.lffiliati(lll, l'tc. This kind of anlalysis could have further helped to establish
strongh ho\\' their id,'ological values are shaped bv these variables and their
linkages with the pre\'alent socio-economic and political conditions, Such an
endea\'(lur l'ssl'nti.lll\' rl'ljuires a comprehensive ethnography of the judges and
dl'lailL'd data rq~ardillg career patterns of the judges, their socia-economic
b.lckgwunds, l'te. Tlll'r,' also lies a scope to identify the interlinkages between the
incrl',1sing n1alitiun ,1IllPng the legal experts, environmental activists, :--:GOs and
ac,1lkmi,'i,lll'> ,mel h,,\\' thl'Y work together and for what end, The other issue
which h,1'> nut been appwpriatelv addressed in the study and therefore needs
turtl1l'r ,ltll'ntioll is thl' impact of judicial decision at the implementation level,
1(', \\'Iwllwl' thl' C()url's decision has improved the ljuality of environment.
Fin,1lh, ,1lwtlll'r l]lIl,'>tion which remains unanswered in the study is the impact
0\ judic),11 IIlIl')Tl'ntill]1 on the civil society groups working on such
"11\' i rllll ll1l'n I,ll iss Ul'S, These caveats of the study provide a scope for further

rt'sl'arch 011 the arena of environ metal governance,

185
Appendix I

:'\ame of the Environmental Cases in Supreme Court

• ,-\ P pt)lI11ti.m Board \'. \\. V. \:aylldu, AIR 1999 SC 812

• Aja\' Singh Rawat v. Lninn of India AIR 1995 (3) SCC 266
• .-\Imitra II.Pakl \'. Union of India 1997 (6) SCALE 10

• ,\mblka Qll,llH Works \'. State of Gujarat AIR 19871m7

• ,-\nil "UIll.H KManwal \'. State of U.P. AIR 1996 SCALE 61

• ..\ n 1111.1 I & Environment Legal Defence Fund Y. Union lOf India AIR 1997
5C 1071

• .·\RC Celllent Ltd. V. St.1k of U.P. AIR 1993 SUpp (1) SCC 57
• ..\si1ok \'. Cninn ()f India, AIR 1997SC 2298
• ..\ssistant Fnrl.'st Conservator and Others Y. Sharad Ramchandra Kale, AIR
19l)H C;C ~l)~7

• B.L. \\,ldlwr,1 \'. Cninn of India, AIR 1996 SC 2969

• l3angalore l\ledicaI Trust 1'. BS l\ludappa, AIR 1'191 SC 1902


• Bal1\\'asi 51.'\',1 Ashram v. State of U.P. AIR 1987 SC 374

• Bhopal Gas Pl.'erit l\Ianila Udyog Sanghatan v, Union of India 1992 (2)

SCALE 49H.
• Butfalo Traders' \Velfare Association v. Menaka Gandhi 1996 (11) sec 35
• Calcutta Youth Front v. State of West Bengal AIR 1988 SC 436
• Centre for Environmental Lal'\!, WWF-l v. Union of India AIR 1999 SC 354

• Chamdi Singh \'. State of U.P. AIR 1996 SC 1051


• Charan LaI Sahu v. Lnion of India AIR 19'10 SC 1480
• Chhetriya Pardushan Mukd Sangharsh Samiti v. State lOf U.P. AIR 1990 SC

2060
• Church of God. V. K.K.R.:vl.c. Welfare Association, AIR 2000 SC
• Consumer Education & Research Centre v, Union of India, AIR 1995 SC

922

186
• Consumer Education & Resealc
' I1.5 oCIetv
' ,
v, Umon of India 2000(1) SCALE

• O,K ")shi \' Chll'fSecretarv of H P 1999 (7) SCALE 181

• D,P, Bh,ltt,lchdrMVd v lVest Bengal Pollution Control Board 1996 (3)


<-;(-,,\1.1- ,c:' (SP)

• D.lh,lnu j'lluka !:'in'ironment P['()tection Group \" Bombay Suburban


Ell'drleIt, Suppl\' CtllllpanvLtd, 1991 (2) SCC 539

• I )i\'j,jpn ('()rest Ofticl'J' v, S Nageswaramma 1996 (6) SCC 442

• DLF L'nin'rsa[ Ltd \, Pwf ,.\,Lakshmj Sagar AIR 1998 SC :r~69


• Ell\'irnIlIlll'nt,11 Spcich' \', Ulllon of India 1999 (1) SCALE 687

• F,Il LU,lPPI,1\\,ll,l \', B.lYer India Ltd, AIR 1997SC 1846

• Gnpl :\qud F.ll'IllS \', l;nilln of India AIR 1997 SC 3519

• Cr,l'IIll -;l'\\'.1 S.IIhtha \, Statl' of Cttar Pradesh AIR 1986 SCPP SCC 578

• Cw.1lipr r~,1\'nnS '-,rlk \Ifg Cll, Ltd, \', Custodian 1990 (Supp) SCC 785

• Cpa h'lrndation \', Dibha Holding PoL Ltd" AIR 2001 SC 184
• I lu'>muttulI.lh \', St.ltL' (If I\1.P, AIR 1996 SC 2076
• Indi.lI1 Council for EI1\'ifll-LL'gal Action y, Union of India (Bichhri Case)
,,\11{ 19% SC IHh

• Indi,lIl Council for EnnTO-Legal Action y, Union of India (CRZ

'\otificatipn CISL') AIR 1995 SC 2252


• Indian Coullcil for Enviro-Lt:'gal Action v, Union of India (Patencheru

Case) 1995 (6) SCALE 578


• K.udnjan Jalasay Y,ASAS Samiti v, State of Gujarat AIR 1987 SC 532

• Kennedy Valley Welfare Association v, Ceylon R.LW & SOCiety AIR 2000

(2) SCALE 14'

• KL'shub Mahindra \', StatL' (1f \Iadhva Pradesh AIR 1996 (6) SCC 129
• Krishna Mohan Shukla v, L;nion of India, AIR 1995 (6) SCALE 410

• Kuldip Singh v. Subash Chandra Jain, AIR 2000 (4) SCC 50

187
• \1.C Mehta v. Lnion of India, AIR 1987 se 1086 (Oleum Gas Leak)
• :-"I.C i\lehta \'. Union of India , AIR 1988 se 10~7 v later P 0 II uhon
" (G anga '\. .
caSe: K'lllpUf T,1I1ncry case)

• :-"I.C :-"kht.l \'. Lnil'n of India, AIR 1992 SC 382 (Environment Awareness
ca~l')

• \I.C :-"khta \'. Lnion (11 India, AIR 1996 SC 2231 (Industrial relocation in
Dl'lhi)

• \I.e. :-"khta \'. Lnion ollndiol, AIR 1997 se 734 (Taz Trapezium)

• \I.e \kllt,l Y. l'nipn pf India AIR 1997 (2) sce 411 (Ganga Water
P"lIl1tl(ln (,l'ol': Cllcutt.l Tannery case)

• \I.e \!vhta \'. l'nilln of India AIR 1997 (11) sec 312 (Ground Water
pnllutltln in Dl'Ihi)

• \1 C \khta \'. l'nion of India AIR 1997 (3) sec 715 (Badkal and

• \I.e. \kht.l \. union of India, AIR 1998 SC 617 (Delhi whicular pollution)

• \I.e \klll .. \'. LnHln (If India, AIR 1996 (1) SCALE 29 (SP) (Delhi Stone
eru~hing C.1Sl')
• \I.e. :-"khta \'. Cnion of India, AIR 1999 se 2367 (Hazardous products in
a irpoft)
• \I.e \khta \. Kamal !\.'ath (Span Motel case), AIR (1997) 1 sec 388
• \I.L Sud \. Union of India, AIR 1992 surp (2) sce 123
• \lunicipal Council of Ratlanl Y. Vardhichand, AIR SC 1980SC 1622
• \lavin 1\1 Rl'I1Ja Y. Cnion of India, 1999 (4) SCALE 333
• \l.R. \lair,'. Union of India, AIR 2001 SC 2337
• \larmada Bachao Andolan \'. Union of India, AIR 2000 SC 3751
• !\'cws Itl'm 'Hindustan Times Y. c.P. C, AIR 2000 SC 3510
• Bhavani River v. Shakti Sugar Ltd., AIR 1998 SC 2578
• Prad ........ p Krishna v. Lnion of India, AIR 1996 SC 2040

188
• Pyarelal v. Delhi Administration, AIR 1995 SC 1159
• RL'search Foundation for S.T . L . N . R. P 0 I'ICy v. l.]nlOn
. of India, AIR 1998 SC
31 16

• Rural Litigation &


Entitlement Kendra v. State of Uttar Pradesh
(DL'hrad un Quarn'ing Case) AIR 1985 SC 652, AIR 1988 SC 2187
• Siagann,llh I'. Lnion of India, AIR 1997 SC 811

• S,lchid,ln,lIld PandL'\, I'. State of West Bengal AIR 1987 SC 1109

• Sall'hbh,ll \Julia \Iphmaddi I'. State of Gujarat. AIR 1993 SC :B5

• <-;al11,lllu \. ~1,11L' pf Andhra Pradesh and Others, AIR 1997 SC 3297

• SL'Ct< 'r l-i r~l'''ldl'nts \ \'elfare Association v. State of Delhi AIR 1999 SC 308
• S.ll.l'aIL'1 \ L'nion pf India AIR 2000 se 1

• Shi\'ar,w Sh,lIllaram Wagle Y. Union of India (Irish Butter Case) AIR 1988
SC <):)2

• '-it,lIL' "t RlhdJ' \'. Banshi R,lln i\lodi, AIR 1985 se 814

• '-it,llL' nt 13Ill<lJ' \'. \Iurud Ai Khan AIR 1989Se 1

• SUb,lSh KUI11M I'. SlatL' of Bihar AIR 1991 SC -i20

• C,urL'sh Singh Lphi,'a I'. Stall' of Maharashtra, AIR 1996 (10) SCC 397

• Statl' of Him'Khal Pradesh I'. Ganesh Wood, AIR 1996 SC 149

• Statl' of Karnataka I'. V. Krishnan, AIR 2000 se 2729

• StatL' of KL'r,ll,l I' JOSL'ph Antum' AIR 1994 se 721

• State of \1,1dhl,1 Prildesh I'. Krishna Das Tikaran, AIR 1995(1) sec 587

• StatL' of \lanlpur I'. CM. Singh, AIR 1999 se ::1730

• State of Orissa I'. Duti Sahu, AIR 1997 SC 1040


• StatL' of Tripura Y. Sudhir Kumar Ranjan Nath, AIR 1997 se 1168

• SuprL'me Court Monitoring Committee v. Mussoorie Dehradun

Dl'vdopmL'nt Authority, AIR 1997 (11) sec 605


• Surl'l1Lira Kumar Singh v. State of Bihar AIR 1991 SUPP (2) sce 628

• Sus hila Sa w Mills v. State of Orissa, AIR 1995 SC 24i'4

189
• Swarcane G&S Share Assoc. v. TN,P.B" AIR 1998 se 2614
• T!\. Godavarman v. Cnion of India, AIR 1997 se 1228
• T!\. Glld,1\',mn,1l1 \'. Cnion of India, AIR (1997) 7 see.J.40
• T.N, Goda\'annan y, Union of India, AIR 1998 se 769
• T.:-.J. Clld,l\'arrn,lll \', Union of India, AIR (1999) 9 see 216
• T.:-.J, Cod,l\',mnan \', Union of India, AIR (2000) 6 seALE 582
• T,:-.J, Cod,nMIll,1l1 \', Cnion of India, AIR (2000) 7 SeALE 380
• TMun Bharat Sangh \', Union of India, AIR 1992 SC 514
• rd1ri Handh \'irodhi Sangarsh Samiti v. State of Uttar Pradesh AIR 1992
scrr (I) sec ....
• Cnion Clrbide e(lrporation \', Cnion of India, AIR 1992 se 248
• Cnil)n pI [nel],l \', Kamath Holiday Resorts, AIR 1996 se 1040
• CI' ['<)[[ulion Control Board \'. \Iohan \Ieakins, AIR 2000 se 1456
• cr I'p[[uli'lll Control BOilfd \', Kanoria India Ltd" AIR 2001 SC 787
• L. r P(ll[utilln ClIltrol Board v. :--"Iodi Distillery AIR 1988 se 1128
• \', Subr.l!n,lllinan \', Union of India, AIR 1990 SUPP see 775
• \'elll)re Citizens' Welfare Forum v, Union of India AIR 1996 SC 2715

• \,inel't Kumar I\lathur \', Union of India, 1996 (1) see 119
• \'irend [,1 C,mr \', State of Harayana, AIR 1995 (2) see 577

190
Appendix II

Selected Fnvironmental Cases to understand th e G reenness 0 f '


IndIan
Supreme Court

• :\Imitre ['.ltd \', Lni~)Jl of India, AIR 199R (2) SCC 416
• ,\mbJi"l 011MIT Works \'. State of Gujarat, AIR 1987 SC 1037
• .'\nim.11 ,1I1d FI1\'irnllnll'nt Legal Defence Fund v, Union ofIndia, AIR 1997
SC W7"1

• 1l,111\\.N '-,~'\'.1 :"'hr.lIll \', State of L,P, AIR 1987 SC 374

• H.I . \\'.ldl1<'r,l \' L'nion (If India, AIR 1996 SC 2969

• 1\lh'lllll l,llllk.1 Fm'irpnlllellt Protection Group \', Bombay Suburban


Fkctll(it\' '-.lll'ph C"lllp.1111 Ltd. 1991 (2) SCC 539

• Ind l,lIl C~ lUlll iI t,'r En \' i rll- Legal Action v , Union of Ind ia (CRZ
'\(llitllatilln Case) :\IR IYY5SC 2252

• Indi,1I1 Council for hll'irn-Legal Action v, Union of India (Bichhri Village


I'ollution), :\IR lYYh SC 14-16

• Indian ('<,uncil for Em'iro-Legal Action & Others v, Cnion of India &
Otlwr'i (f'atancheru pollution), AIR 199R(9) SCC 580
• \I.C,\\cohta \', Union llf India (Ok'umGas Case), AIR lY87(1) SCC 395
• \I.C,\ll'hla \', Cnitln ~)f India, (Ganga Pollution Case), AIR 1988 SC 1037
• \I.C \Iehta \', Lnion of Imba, Delhi industrial pollution case, AIR

19Y7( 11) SCC 327


• J\.l,C \Idlla \', Kamal Nath (Span Motel case), AIR (1997) 1 SCC 388
• \1.C \\cohta \'. Union of India, (Calcutta tanneries matter), AIR 1997(2)

sec 411
• I\.-I.C Mehta v, Cnion of India & Others (Vehicular Pollution case), AIR

1998(6) sec 6(1


• Narmada Bachao Andolan v, Union of India, AIR 2000 SC 3751

• Pradeep Krishl'n v, Lnion of India, AIR 1996 SC 2040

191
• Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622
• RFSTNRP v. Union of India, AIR 1999 (1) sec 221
• RLEK v. State of Uttar Pradesh, AIR 1985 se 652
• S. Jagannath v. Union of India, Shrimp Culture Case, AIR 1997 se 811
• TBVSS and others v. the State of Uttar Pradesh and Others :\IR 1990 (-!) SC
519, AIR 1992 (1) SCC 44 (Supp)
• TBS, Alwar v. Cnion of India, AIR 1990 (4) SC 519
• T. N.Goda\'arman v. Union of India, AIR 1997 SC 1228

• Vellore Citizens Welfare Forum v. Union of India, AIR 1996 se 2715

192
Appendix III

List of Supreme Court Judges in India

No. HOI/'I1It' Justice From To Remarks


001 IIJ Kania 2601.1950 06.11.1951 Expired in office as I" C]I
002 Sdivid Fazal Ali 26.011950 19.01.1951

003 1\1. PatanjaJi 5astri 2601.1950 0:Hll.1954 Retd. as 20 " CJI


OW t\I.C Mahajan 26.011950 22.12.1954 Retd. as 3'" CJI
005 IlX. Mukherjea 26,0].1950 31.01.1956 Retd. as 4'J , CJI

006 S.K Oass 2601.1950 30.09.1959 Retd. as 5 th CJI

007 Ramach,lnder I\aik 28.08.1950 30.12.1950

00t' Khaleelu77.,lman Siddiqui 28.08.1950 30.12.1950

009 :\.Chandrashek,lT Aivar 23091950 24.011953

010 Vi\'ian Rose 0503.1951 09.06.1956

011 Ghulam Hasan 01.08.1951 05.111954

012 I\.HRhagwati 08.09.1952 07.08.1959

on fl.Jagannath DdS 09.03.1953 27.08.1958

01.+ T.LVenkatdrdma Ayyar 04.011954 25.11.1958

OJS H.PSinha 03.12.1954 31.011964 Retd.as 6,10 CJI

01h Sved Jafar Imam 10.01.1955 31.01.1964

017 SKDas 30.041956 28.07.1963

018 I'.Govinda t\knon 03.09.1956 16.10.1957

019 14.011957 13.12.1962


J.L.Kdpur
17.011957 15.03.1966 Retd .as 7'" Cn
020 1'. fl.Gajendragad kar
04.031957 29.06.1966 Retd.as 8'" CjI
021' A.KSarkar
31.01.1958 11.04.1967 Retd.as 9 tl, CJI
022 KSubha Rao
11.08.1958 24.02.1968 Retd.as 10 tl • CJI
023 KI\.Wanchoo
16.12.1970 Retd.as 11 tl, CJI
024 M.Hidayatuliah 01.12.1958

O~~ 24.08.1959 02.01.1965


~J KCDas Gupta

193
026 j.CShah 12.10.1959 21011971 Retd.as 12111 CJI
027 Raghuvar Dayal 27.07.1960 25.10.1965
028 :'-J.Rajgopala Ayyangar 27.07.1960 lU2.1%!
029 j.R.\1udlwlkar 03. lO. 1960 03.07.1966
03(1 S.M'sikri 03.02.1964 25.04.1973 Retd.as 13111 CJI
031 R.5.BaclMwat 09.07.1964 01.08.1969

032 V.Rilll1a<;wami· I 0401.1965 3110.1969

0.,3 RSiltvdnardYiln Raju 20.10.1965 20.0·1.1966

03~ jJ'.,I,Shelat 24.02.1966 30.04.1973 Resigned


035 V. Bharga v,1 08.08.1966 04.02.1971

036 G K.\litter 29.08.1966 23.09.1971

037 C.A.Vaitiialingam lO.10.1966 30.06.1972

031' KSI1egde 17.07.1967 30.04.1973 Resigned

03<J :\.N.Gro\'cr 12.02.1968 31.05.1973 Resigned

04(1 AN Ril\, 01.08.1969 27.01.1977 Retd.as 14tl< CjI

1141 P.jagilnll1ohan Reddy 01.08.1969 22.011975

04~ I.D Dua 01.08.1969 03.10.1972

043 5.CRov 19.07.1971 12.11.1971 Expired in Office

04./ DGPalekar 1907.1971 03.09.1974

045 I LR.Khanna 22.09.1971 12.03.1977 ]{esigned

04f. K.K.Mathew 04.10.1971 01.02.1976

047 M.ll.lleg 10.12.1971 21.02.1978 Retd.as 15'" CjJ

S.[\;.l)wivetii 14.08.1972 08.12.1974 Expired in Office


O·H'
049 14.08.1972 23.10.1973 Expired in Office
A.KMukherjea
28,013.1972 11.07.1985 Retd.as 16tl, Cjt
050 Y.V.Chandrilchud
051 17.10.1972 17.10.1975
/\.Alilgiriswami
17.07,1973 20.12.1986 Retd.as 17th CJI
05~ P,N,Bhagwati
053 17.07.1973 15.11.1980
V.R.Krishna Iyer

194
05.! P.K.Goswami 10.09.1973 01.01.1978
055 RSSarkaria 17.09.1973 16.01.1981
05n A.C.Gupta 02.09.1974 3112.1981
0--
Ji N.I..Untwalia 03.10.1974 01.08.1980
OSH Syt'd M.Fazal Ali 02.04.1975 20.08.1985
059 P.N5hinghal 11.06.1975 15.10.1980

060 Jaswant Singh 23.01.1976 25.01.1979


0(, I 1'5.Kailasam 03.01.1977 12.09.1980

062 V. D.Tulzapurkar 30.09.1977 08.03.1986

063 O.A.Desai 30.09.1977 08.05.1985

Oh.J R.S.Palhak 20.02.1978 18.06.1989 18th qI, Appointed as judge Iq

Oh5 i\.D.Koshal 17.07.1978 07.03.1982

06(; O.Chinnappa Reddy 17.07.1978 24.09.1987

067 A.P.5en 17.07.1978 19.09.1988

068 E.S. Venkalaramiah 08.03.1979 17.12.1989 Retd. as 19th CJI

Ob9 Kahdrtll Islam D-l.12.1980 12.01.1983

070 A. V aradarajan 10.12.1980 16.08.1985

071 A.N.Sen 28.01.1981 30.09.1985

O~'"
l- V B.Frildi 30.01.1981 18.06.1987

OT. R.B.).,1i<;ra 3001.1981 14.06.1986

07.! D.I'.Madon 15.03.1983 06.04.1986

075 Sabyasachi Mukharji 15.03.1983 25.09.1990 Expired in office as 2()th qI

07b M.P.Thakkar 15.03.1983 03.11.1988

,,
077 Ranganalh Misra 15.03.1983 25.11.1991 Reid. as 21" CJI

U78 V.Khalid 25.06.1984 30.06.1987

079 C.L.Oza 29.10.1985 12.12.1989

080 29.10.1985 01.11.1991


B.C.Ray

081 10.03.1986 30.10.1989


\!I.M.Dutt

195
OR2 K.N.5ingh 10.03.1986 12.12.1991 Retd. as 22"d CJI
mn S.Natarajan 10.03.1986 29.10.1989
08-1 :\1.H.Kania 01.05.1987 17.11.1992 Retd. as 23,d CJI
085 K.Jagannatha Shetty OJ.05.1987 12.12.1991
08b L.M.Sharma 01.05.1987 11.02.1993 Retd. as 241h CJI
Ole :\1.N. V enkatachaliah 01.05.1987 25.10.1994 Retd. as 25 1h CJI
ORx S.Ranganathan OJ.05.1987 30.10.1992

Of;9 ".D.Ojha 18.01.1988 19.01.1991

090 S.R.P,lnLiian H.12.1988 13.03.1994

091 Dr. T. K.Thollllllen I·U2.19RR 26.09.1993

on A.M.Ahmo1di 14.12.1988 25.03.1997 Retd. as 2&h CJI

09~ K.~.Saikia 14.12.1988 01.03.1991

(m Kuldip Singh 14.12.1988 01.01.1997

095 J.5.Verma 03.06.1989 18.01.1998 Retd. as 27th CJI

0% V. Rama~\\'allli - II 06.10.1989 14.02.1994

097 P.B.Sawant 06.10.1989 30.06.1995

09K N.M.Kasliwal Oh.IO.1989 03.04.1993

09'l M.M.Punchhi 06.10.1989 10.1 0.1998. Retd. as 28'" CJI

100 K.Ramaswamy 06.10.1989 13.07.1997

HI] 1\ Is l\ISFathima Beevi Ob.1U.1989 29.04.1992

III 2 K.Jayachandra Reddy 11.01.1990 15.07.1994

103 S.C.Agrawal 11.01.1990 05.09.1998

104 RMSahai 11.01.1990 2506.1995

105 Yogeshwar Dayal 22.031991 18.11.1995

lOh S.:vlohan 07.101991 11.021995

lO7 07.10.1991 14.03.1997


B.P.Jeevan Reddy

lOR 07.10 1991 01.051998


C.N.Ray
18.11.1991 01.11.2001 Retd. as 29th CJI
109 Dr.A.S.Anand

196
]10 KC.Patnaik 03. ]21991 30.05.1992 Expired in office
111 t\ PSingh 1:i06.]992 2512.]996
1]2 S.P. Bharucha 02.07.1992 06.05.2002 Reid. as 3()th CJI
II' N.Venkalachala 02.07.1992 03.07.1995
114 \IK\luklwrjel' ]4.12.1993 0112.1998
] 15 Faizanuddin 14.12.1993 05.02.1997
lib B 1..1 [,)nsMia ]4.121993 2512.1996
117 SCSc'l1 11061994 21.12.1997
1!~ K.S.Paripoornan 11.06.1994 12.06.1997
]]9 S.B.Majmudar 19.09.]994 2008.2000
120 Sujala V.:\1anohar 08.11.1994 28.08.1999
12[ G.T.Nanavali 06.03.1995 17.022000
I~2 S.Saghir Ahmed 06.03.1995 01.07.2000
123 K.Venkalaswami 06.03.1995 19.09.1999
12-1 B.N.Kirpal 11.09.1995 08.11.2002 Reid. as 31" CJI
1"'"
-) G.B.Pallanaik 11.09.1995 19.12.2002 Reid. as 32nd CJI
]26 S.P.Kurdukar 29.03.]996 16.01.2000
p"
-, K.T.Thomas 29.031996 30.01.2002
128 :\1.J agannadha Rao 21.03.1997 02.12.2000
]29 V.N.Khare 21.03.1997 02.05.2004 Reid. as 33'" CJI
BO D.P.Wadhwa 21.03.1997 05.05.2000

B1 l\lSri niv aSill1 25091997 12.01.2002 Expired in Office

132 S.R.8abu 25.09.1997 01.06.2004 Reid. as 34'h CJI

1""
_1_1 A.P.Mishra 0-112.1997 01.09.2001

B4 S5 \lQuadri 04.12.1997 05.04.2003

135 M.B.5hah 09.12. ]998 2509.2003

136 D.P.Mohapatra 09.12. ]998 03.08.2002

137 U.C.Banerjee 09.12. ]998 18.11.2002

197
138 R.C.Lahoti 09.12.1998 01.11.2005 Retd. as 35 th qI
139 N.Santosh Hegde 08.01.1999 16.06.2005
HO R.P.Sethi 08.l11.1999 0707.200:2
1~1 S.N.Phukan 28.01.1999 01.04.2002

J.l~ Doraiswam~, Raju 28.01.2000 02.07.2004

143 Y.K.Sabharwal 28.01.2000 14.01.2007 36 th Chief Justice of India


144 Ivlrs.Runl<l I'al 28.01.2000 03.06.2006 Sitting Judge
145 S.N.Varid\'a 15.03.2000 08.11.2005

14b Shivaraj V.I'alil 15.03.2000 12.01.2005

147 K.G. Balakrishnan 08.06.2000 12.05.2010 Sitting Judge

14H Brijesh Ku mar 19.10.2000 10.06.2004

149 BS.;\garwal 19.10.2000 15.10.2009 Sitting Judge

150 Ashok Bhan 17.6.20Cl 2.10.20CB Sitting Judge

151 A. Passayat 19-10-2Q01 10-05·20J9 Sitting Judge

r'
)- B.rSingh :,;/\ :\'A Sitting Judge

153 Il.KS<.'ma 09.04.2002 01.06.20C8 Sitting Judge

IS~ S.HSinha 0110 2002 OS.OR.2008 Sitting Judge

155 Arun Kumar ~A :-.JA Sitting Judge

156 B.N. Srikrishna :-.JA ~A Sitting Judge

157 i\. R.l,akshmanan NA NA Sitting Judge

158 G.P.\1athur 20.12.2802 19-01·2008 Sitting Judge

159 S.H.Kapadia 18' 2.2003 29092012 Sitting Judge

160 AK.I\lathur 07.06.2004 07.08.2007 Sitting Judge


-- ------
07.06.2004 NA Sitting Judge
161 C.K.Thakkar
NA NA Sitting Judge
162 Tarun Chatterjee

Source: Available at: ...-.supremecourtofindia.nic.in


W1,.V\.

:\ote: The bold letter names of the judges were part of different environmental cases.

NA: Information not available

198
Appendix IV

List of Interviewed Petitioners, Lawyers and Judges

Name of the Petitioners : Name of the Lawyers I Name of the Judges


APPCB Harish N Salve ' A.M.Ahmedi
llimanshu Thakkar Indirani Jai Singh Ari;it Prashvat
Kishan Rao Me :Ylehta Ashok Bhan
K. Puru.,otham Reddv l\ Santosh Hegde A. 5. Anand
\1 C \Iehta Prashant Bhushan . B.P.Jeevan Reddv
, Prashant I3hushan Rajindra Sachar . C.K.Thakkar
RLI-.K Rit"ick Dulla D.PWadhwa
Sekher Singh Sanjay Parikh Faizan Uddin
Subba Rao S. Muralidhar G.B Pattnaik
Vimal Kumar Videh l:padhyay J.5 Verma
Vijay Panjwani K.Jayachandra Reddy
Kuldeep Singh
K. Venkctaswamv
\1 Jagannadha Rao
:-\. Santosh Hegde
;
O. Chinnappa Reddv
f--- .
P.N.Bhagwati
Ranganath \lishra
! S. Rajendra Babu
V. Khalid
V S. Khare
V.R. Krishna Iver

199
Appendix V
Selected Environmental Cases to understand Judicial Decision-Making
Process

• Animal & Environment Legal Defence Fund v. Union of India


• APPCB \'. 1\1.V. :\'ayudu, AIR 1999 SC 812

• Indidn Council for Enviro-Legal Action & Others v. Cnion of India &
Otlll'rs (Bichhir Industrial Pollution Case) AIR 1996 SC 1446

• Indian Council for Enviro-Lcgal Action & Others v. Union of India &
Others (Patancheru pollution), AIR 1998(9) SCC 580

• 1\ I.C1\1ehta Y. Union of India (Ganga Water Pollution Case) AIR 1988 SC


lln7

• \1.C\lehta \'. Cnion of India (Delhi Industrial Pollution Case) AIR


1997( 11) sec 127
• t\1.CMl'hta Y. Union of India (Delhi Vehiculrar Pollution Case) AIR 1998
SC 617
• NBA \'. Union of India AIR 2000 SC 3751
• Ratlam Municipal Council v. Vardhichand AIR 1980 SC 1622
• RLEK v. State of Uttar Prdaesh AIR 1985 SC 652
• Sachidanand Pandey v. State of West Bengal AIR 1987 SC 1109
• S. Jagannath v. Union of India, Shrimp Culture Case, AIR 1997 SC 811
• Tarun BharatSangh, Alwar v. Union of India AIR 1990 (4) SC 519
• TBVSS v. the State of Uttar Pradesh AIR 1990 (4) SC 519

• T.:'--J. Godavarman v. Cnion of India AIR 1997 SC 1228

• VCWE v. Union of India (Vellore Industrial Pollution Case) AIR 1996 SC

2715

200