December 3, 2020

Judicial Restraint on Environment Protection

Development of ecological jurisprudence in India was notable. Indian Constitution is one of the world’s 90 constitutions with unique pieces of legislation and laws to protect, encourage and conserve the natural environment. The position of the Indian judiciary is of paramount importance, apart from various progressive laws.

The development of environmental jurisprudence in India, following the Constitutional amendment, has been notable for the last four decades in the sense that it has contributed to the useful creation of a constitutional right to a clean environment. This is part of the public policy structure recognised by the Indian Constitution, i.e. land law, and emerges to be based not only on revolutionary notions of basic human rights but also on original notions of social justice[1] spoken of by John Rawls, which involves a specific human rights concept adopted by affirmative action.[2]

Judicial initiation and activism for preservation of the environment in India commenced in earnest after the Stockholm Conference, 1972[3]. Environmental provisions were incorporated under Article 48 (A) and 51-A (g) by the Constitution of India

The concept of PIL and epistolary jurisdiction in India was started by the Hon‟ble Supreme Court and evolved through human rights jurisprudence and environmental jurisprudence. The traditional concept of locus standi is no longer the barrier for the society oriented PIL. Having given its raison d‟etre for taking a proactive approach in matters pertaining to the enviro-crimes, the SC entertained not only an aggrieved party, but the environmentally conscious persons; group or NGOs may have access to the Supreme Court or High Courts by way of PIL. Even mere letter or postcard has been treated as Writ petition under the epistolary jurisdiction of the court.

The Supreme Court in Subhash Kumar v. State of Bihar & Others , held that:

“Right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution of India for removing the pollution of water or air which may be detrimental to the quality of life.”

In Rural Litigation and Entitlement Kendra, Dehradun and Others v. State of U.P. and Others, the Supreme Court ordered shutting of all limestone mining in the Doon Valley taking notice of the fact that limestone mining in the region had unfavorably affected water springs and ecosystem.

The Court in T.N. Godavarman Thirumulpad v. Union of India, has stated that it would not be feasible or in the larger interest to allow mining activities based on earlier licenses.

The Indian legislature has come up with numerous important legislations such as: · The Environmental Protection Act 1986; · The Air (Prevention and Control of Pollution) Act 1981; · The Water (Prevention and Control of Pollution) Act 1974; · The Water (Prevention and Control of Pollution) Act 1977; · The Wild Life (Protection) Act of 1972; · The Public Liability Insurance Act of 1991; · The National Environmental Tribunal Act of 1995; · The National Environmental Appellate Authority Act of 1997; · The Mines and Minerals (Regulation and Development) Act of 1957; · The Indian Forest Act of 1927; The Forest (Conservation)Act of 1980; · The Atomic Energy Act of 1948, etc.

Pollution boards and other government bodies have been repeatedly accused of dereliction of Government Duty. The Supreme Court has expressed its frustration at their work on several occasions, and has criticized their lethargy.

They often fail to take coercive action against violaters. In the case of Uttar Pradesh Pollution Control Board v. Modi Distillery “Restrictions and depth were available to the prosecuting authority. The case also raised the question of the competence of criminal penalties against enviro-crimes and demanded greater vigilance on the part of pollution control agencies when the trial was launched. In that case, the respondent, Modi Industries Limited, an industrial unit of the group, was prosecuted for releasing hazardous industrial waste without the State’s approval Pollution Control Board. The industry as such was not made a party to the proceedings. In application filed under Sec. 482 of the Cr.P.C., the Allahabad High Court stated that:

“This lapse was detrimental to the validity of process against the managing director, chairman, vice chairman and directors of the company who were in the array of parties.”

Whereas examining that such technical defects could have been corrected by an modification of the complaint. The higher judiciary was of the view that:

“The office bearers of a company shall deem to be guilty of the offences committed by the company. The court found it regrettable that due to sheer negligence of the board and its legal advisors, large business houses were allowed to escape with impunity for the consequences of breaches of the provision of the law committed by them.”

[1] A Theory of Justice has used it as a pseudonym of distributive justice.

[2] “the notions of liberty, fairness and equality are not jointly exclusive, the justice system guides him to conclude that for justice to be truly just and fair, everybody must be afforded the same rights and privileges under the law”

[3] “Judicial Activism to Judicial Adventurism for the protection of Environment: An analysis in the context of Expansive meaning of Article 21 of Indian Constitution”

Author Details: Rajat Gautam

The views of the author are personal only. (if any)

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