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JUDICIAL ACTIVISM IN ENVIRONMENTAL LEGISLATIONS

Apr. 19, 2020   •   anshu sharma

Introduction

“Earth provides enough to satisfy every man's needs, but not every man's greed”

-Mahatma Gandhi

The basic needs of every human being are fulfilled by the environment and natural resources. But due to various acts of human being in ever developing society has now become a threat to our environment. Acid rain, deforestation, soil erosion, depletion of protective ozone layer, global warming, climate change, hazardous wastes and nuclear energy threats are matter of great concern at national and international level.

The matter of environment protection is taken into consideration by the Indian judiciary especially the Indian Supreme Court. In recent years, the approach taken by judiciary has been shifted from the reluctant judicial restraint towards Judicial Activism. It recognizes the right to live in a fresh environment as a fundamental right and gave its rulings for the protection of environment in various landmark cases.

What is Judicial Activism?

Judicial Activism is a legal terminology that refers to court decisions that are partially or fully based on the judge’s personal or political considerations, rather than existing laws or legislations. The judiciary protect or expand the individual rights by its decision even though it departs from the established rules and precedents.

Judicial Activism is inherent under the principle of judicial review embedded in the Constitution of India. It is also under Article 141 of the Constitution of India which provides law making power to the Supreme Court of India. Professor Upendra Baxi, has also said that the “Supreme Court of India” has often become “Supreme Court for Indians”

Constitutional Provision/Reforms for Environment Protection

Environment Protection is a crucial matter for everyone and necessary for sustainable development. The Constitution of India incorporates some provisions to meet out these aims:

  • Public Interest Litigation (PIL): In general terms, a PIL means a legal action in a constitutional court for the purpose of enforcing public or general interest by which their fundamental rights are being affected. A public spirited person can approach the court for the rights of public at large. PILs are often filed in environmental issues.
  • Article 32 and 226: The writ jurisdiction of the Supreme Court under article 32 and of the High Courts under Article 226 proves to be a boon for the environmental actions in India. It is inexpensive, speedy and provides easy access to the highest Constitutional courts of the country by class action.
  • Article 48A: It was inserted by 42nd Amendment Act, 1976 which states that, The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.” Although it is a Directive Principle but has crucial consideration in judicial undertakings.
  • Article 51-A (g): A Fundamental Duty which states that “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.”

In L.K.Koolwal v. State of Rajasthan, the Rajasthan HC observed that a citizens duty to protect the environment under Article 51-A (g) of the Constitution bestows upon the citizens the right to clean environment. The judiciary may even ask the government to constitute national and state regulatory boards or special environmental courts.

  • Article 21: In the recent years, our judiciary has expanded the scope of Article 21 i.e. ‘Right to Life and personal liberty’ to include right to fresh and clear environment.

JUDICIAL ACTIVISM & ENVIRONMENT

The Right to Wholesome Environment

In Subhash Kumar v. State of Bihar, the court stated that the right to life granted under Article 21 of the Constitution includes the right of enjoyment of pollution free air and water for full enjoyment of life. The court recognized the right of wholesome environment as a part of right to life.

In M.C. Mehta v. Union of India (Vehicular Pollution Case), the Hon’ble Supreme Court recognizes the right to healthy environment as a basic human right and right to fresh air emerge out of right to life. This case leads to lead-free petrol supply in Delhi.

Fundamental Right to Water

This fundamental right to water has brought into the Indian system by the Indian Judiciary not by any legislation. In case of Narmada Bachao Andolan v. Union of India and Ors, the Hon’ble Supreme court has upheld that the right to pure and fresh water is a fundamental right embedded under right to life under Article 21 of the constitution of India.

In case of M.C. Mehta v. Union of India (Ganga Pollution Case), the Supreme Court issued strict directions for the industries and factories related to emission of harmful substances in the river. Setting up primary treatment plant was also ordered.

As a result of these cases, there are statutory provisions against the dispersion of any polluting matter in the water stream or well [Section 24 of Water (Prevention and Control of Pollution) Act, 1974]

Compensation to the victims

In M.C. Mehta v. Union of India (Delhi Gas Leak Case), the Supreme Court of India laid down principles for providing compensation to the victims of any hazardous environmental accident. It leads to radical changes in the matter of compensation. It also affirmed the power of Supreme Court to grant compensation on the breach of any fundamental right of an Individual.

Judicial Response against Public Nuisance

In Ratlam Municipal Council v. Vardhichand, the Supreme Court states that if there is any type of public nuisance, the state should make every possible effort to remove it even if there is any financial restraint. It is for the cause of social justice and people should be getting the benefit of every public functioning.

Conclusion/ Recommendations

Our judiciary has taken a wider approach for protection of individual rights and emerged as protector of environment. But the protection of environment is a global issue and requires public participation. There should be harmony between development actions and environment. Moreover, the special environmental courts and tribunals should work in efficient manner to render speedy justice and protect our environment.

The author, YOJIT KAUSHIK is a law student pursuing BA LLB from Institute of Law, Kurukshetra University, Kurukshetra, Haryana


References

  1. Dinesh Kumar Samanta, ‘Role of Judicial Activism in Environmental Legislation’ (Academia)<https://www.academia.edu/40004462/ROLE_OF_JUDICIAL_ACTIVISM_IN_ENVIRONMENTAL_LEGISLATION> accessed 12 April 2020.
  2. Raagya Zadu, ‘Judicial Activism in Environmental Legislation in India’ (Academia)<https://www.academia.edu/10362033/JUDICIAL_ACTIVISM_IN_ENVIRONMENTAL_LEGISLATION_IN_INDIA>accessed 12 April 2020.
  3. Legal Dictionary <https://legaldictionary.net/judicial-activism/> accessed 12 April 2020.
  4. Merriam-Webster <https://www.merriam-webster.com/legal/judicial%20activism> accessed 12 April 2020.
  5. The Constitution of India 1950.
  6. Supriya Guru, ‘The Role Played by Indian Judiciary in Environmental Protection’ (Your Article Library) <http://www.yourarticlelibrary.com/essay/the-role-played-by-indian-judiciary-in-environmental-protection/38440> accessed 13 April 2020.
  7. Kanchi, ‘The Role of Indian Judiciary in Protection of Environment in India’ (Lawctopus, 14 February 2015) <https://www.lawctopus.com/academike/role-indian-judiciary-protection-environment-india/#_edn23> accessed 13 April 2020.
  8. Rohan Bagai, ‘Judicial Activism and Environmental Jurisprudence in India’ (Legal Services India) <http://www.legalserviceindia.com/articles/jjj.htm> accessed 13 April 2020.
  9. Amit Singh ‘Judicial Activism on Environment in India’ (2014) SSRN <https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2383144_code843398.pdf?abstractid=2383144&mirid=1> accessed 13 April 2020.
  10. M.C. Mehta v. Kamal Nath [1997] 1 SCC 388 (SC).
  11. Union Carbide Corporation v. Union of India [1990] AIR 273 (SC).
  12. Vellore Citizen’s Welfare Forum v. Union of India [1996] AIR 212 (SC).
  13. A P Pollution Control Board v. Prof. M. V. Nayudu [1999] 2 SCC 718 (SC).
  14. State of Himachal Pradesh v. Ganesh Wood Products [1996] AIR 149 (SC).
  15. Subhash Kumar v. State of Bihar [1991] AIR 420 (SC).
  16. M.C. Mehta v. Union of India [1991] 2 SCC 353 (SC).
  17. Narmada Bachao Andolan v. Union of India and Ors [1999] AIR 3345 (SC).
  18. M.C. Mehta v. Union of India [1988] AIR 1115 (SC).
  19. Water (Prevention and Control of Pollution) Act, 1974.

20. M.C. Mehta v. Union of India [1987] AIR 965 (SC).


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