November 30, 2020

Role of Judiciary in Preventing Air Pollution

My grandparents adored the rivers,

My parents cherished the tanks,

I cut the mustard with the buckets.

My son will venerate the bottles and

My grandson will celebrate that in pictures.

The concept of protection of environment is not new and have been emphasized by various ancient scriptures and texts. It is elucidated there that it is the dharma (duty) of the individual to protect ‘nature’, the elements of it, they worshipped to. The nature includes air, water, forests etc. It further stresses upon the fact that an individual has right but it has some correlative duty to be followed. Lord Krishna in Gita ordains, “one should perform one’s duty without any expectation of fruit”.[1] This clearly shows that if an individual claims right then he must follow his duty. Just judiciary or any other organ of government alone cannot protect environment. Though Judiciary has never failed to take cognizance of growing needs and demand for protection of environment, be it air, water or any other kind of pollution. Supreme court has power to issue directions to central or state government and it has done so frequently seeing the pressing need.[2]

Degradation and pollution of environment is a serious issue and requires urgent attention.[3] The court takes it account in various forms like in form of cases or taken by it as suo moto. There was also a wave of Public Interest Litigation through which judiciary has given wonderful pronouncements to protect environment. There is nowhere mentioned about the air pollution or any other specific one in Constitution. The court has interpreted Article 21[4] as individual has right to ‘pollution free air’.[5] The court has also made special reference[6] to certain articles of Constitution like Article 48A[7] and 51A(g)[8] and hence, in Virender Gaur v State of Haryana[9], SC held that every citizen possess right to healthy environment and the state is bound to protect and preserve this right. There is an urgent need to regulate air pollution as a finding of a 2010 report of the Central Pollution Control Board that particulate matter in the air of 180 cities of India was six times higher than the standards prescribed by World Health Organization. Recently, the Yale Environmental Performance Index has ranked India 174 out of 178 countries on air pollution.[10] Two legislations, Air (Prevention and Control of Pollution) Act, 1981 and Environmental (Protection) Act, 1986 are important.

There are many aspects of air pollution like industrial pollution, vehicular pollution, smoking, noise pollution and open burning of waste. In sphere concerning industrial pollution, Supreme Court has given a landmark judgement in MC Mehta v. Union of India[11] wherein it has given preference to environment protection over economic and industrial developments. This case is also known as Taj Trapezium Case, wherein court was concerned with pollution of Taj Mahal, one of the wonders of the world due to pollution caused by foundries, industries and Mathura refinery. Supreme Court applied precautionary principle with the idea to anticipate, prevent and attack the causes that lead to environment degradation. The onus of proof lies on such industries. However, court held that such emissions from industries have caused a huge damage to the monument and citizens living in TTZ. Court issued directions to such factories to switch to natural resources or exit or relocate themselves. The economic development and industrialization acts as antithesis to preservation of environment as when such industries are shut it leads to unemployment and poverty, which has further implication. However, such social and economic issues can be taken into consideration at the cost of environment which violates individual’s fundamental right. Hence, concept of Roscoe Pound applies which stresses upon the fact that conflicting interests should be met by minimum fiction and wastes.[12]

SC gave a landmark judgement in Indian Council for Enviro-Legal Action v. Union of India[13] wherein the industries in Bichchari district in Rajasthan were emitting toxic fumes harming environment. The court gave order for closure of the industry. Further, the principle of absolute liability (Torts) as developed in Oleum Gas Leak case[14] has entirely changed the ‘environmental jurisprudence’ as evolved by the court.[15]

The court with the passage of time has evolved certain principles. One such was ‘Public Trust Doctrine’ in M.C. Mehta v. Kamal Nath[16], wherein court held that government is the trusteeship for the common properties like river, forest, air for public use rather than to use for private or selfish purposes. Similarly, in Rajiv Ranjan Singh v State of Bihar[17], considered the rights to pollution free environment of inhabitants and asked industries emitting toxic fumes and polluting environment to shut down by considering articles 14, 21, 47, 48A of the Indian Constitution.

A wave of PILs were filed during 1990s by M.C. Mehta with regard to vehicular pollution, seeing the worsening condition, court issued certain orders like mandatory use of catalytic invertors in vehicles, time frame to remove old vehicles, use of unleaded petrol conversion of diesel or petrol vehicles into CNG ones, etc. Considering Delhi Vehicular case[18], the Apex Court considered the high level of pollution caused due to emissions from vehicles. Again, the court considered Article 47 and 51A(g) of the Constitution and issued certain directions like educating masses through television or in schools. Directions to Ministry of Environment and Forests to form committee to acknowledge technology for alternative vehicles at low cost and make suggestions to control pollution. Realizing the situation in 2014, the court directed central government and state government of various states to set up BS IV vehicles, maintain huge difference between CNG and petrol cost, lower taxes on buses or public transport.[19] Now, BS VI has been rolled out to reduce such emission and pollutants in air.[20]

Regarding noise pollution, In re Noise Pollution– Implementation of Laws for Restricting Use of Loudspeakers and High Volume Producing Sound Systems with Forum, Prevention of Environment and Sound Pollution v Union of India,[21] Court held that nobody has a right to claim noise even in his premises if it causes nuisance to others. If anyone through his voice or using artificial means disrupts other person’s living disturbs the right guaranteed by article 21.

Court from time to time has issued certain directions regarding fire crackers as they cause air and noise pollution. The court has completely banned use of fire crackers or tom-tom, trumpet etc., between 10 pm to 6 am.[22] If such directions are not followed, then devices can be seized. Whereas during Diwali, firecrackers were banned temporarily because it creates heavy pollution seeing previous year trends.[23]

With regards to smoking, Kerala High Court[24], has banned smoking in public places like malls, theatres, parks or open spaces that are visited by public and further accepted by Supreme Court[25].

Another, major issue that required court’s attention was the open burning of waste. NGT banned the unregulated open burning of plastic or rubber or any other related material.[26] This crop burning has worsening effect especially in Delhi and NCR region. Even Harvard university study shows that this has a devastating effect on environment and human lives.

In Vikrant Kumar Tongad v Environment Pollution (Prevention and Control) Authority &Ors,[27] National Green Tribunal, it was argued that burning of crop residue is a common practice followed by Indians. However, the tribunal held that there are serious environmental haphazard of burning the residue. It was further directed that government should take initiative to educate the farmers and make them aware about the ill-effects of crop burning, also, that the state government must take initiative for collection, transportation and utilization of residue.

The apex court in Rural Litigation and Entitlement Kendra v. State of UP[28] and Vellore Citizen’s Welfare Forum case[29] developed idea of sustainable development meaning thereby to meet the demands of the resources in such a way that they are not being compromised for future generations. It is rightly claimed that we do not own the earth, we have inherited from ancestors and borrowed from our children or future generation.

However, critics say that SC pays heed to the demands of bourgeoisie or the upper class and the working or poor class are neglected as in many industrial pollution cases.[30] Further, the Apex Court fails as it just takes into consideration the issues and not causes or genesis of the problem.[31] Had more focus been given on causes, it would have been easier to wipe out the problem. Also, there lies a difficulty in implementation as committees formed become dysfunctional and sometimes there are no fixed capacity, as in Vardhaman Kaushik versus Union of India (2015), it is unclear as to who has the capacity to impose fine in case of burning of waste. However, such problems can be solved by being little cautious and make person or department accountable for such activities. Judiciary or any government instrumentality alone cannot be successful in prevention of air pollution but we as individual must join our hands together and pledge not to pollute our environment.

[1] Bhagwat Gita, Chapter 2, Verse 47.

[2] Furqan Ahmad, Origin and Growth of Environmental Law in India, 43 JILI, 2001, 358.

[3] Ayesh Dias, Judicial Activism in the Development and Enforcement of Environmental Law: Some Comparative Insights from the Indian Experience, Journal of Environmental Law, no 6, (1994).

[4] Article 21: No person shall be deprived of his life or personal liberty except according to a procedure established by law.

[5] Subhash Kumar v State of Bihar, AIR 1990 SC 420.

[6] Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.

[7] Article 47: Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.

[8] Article 51A(g): To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

[9] Virender Gaur v State of Haryana, (1995) 2 SCC 577, (1997) 10 JT 600.1994.

[10] India’s Air Pollution Emergency, New York Times, 2014, Available At: https://www.nytimes.com/2014/02/14/opinion/indias-air-pollution-emergency.html, Last Accessed: 04.04.2020.

[11] MC Mehta v Union of India and Others (Taj Trapezium case), (1997) 2 SCC 353: AIR 1997 SC 734.

[12] James A. Gardner, The Sociological Jurisprudence of Roscoe Pound, Villanova University, Vol.7, No..1, Available at: https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1522&context=vlr, Last Accessed: 04.04.2020.

[13] Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 647.

[14] M.C. Mehta v. Union of India, AIR 1987 SC 965, 982, and 1086.

[15] Paramjit S. Jaswal, Directive Principles Jurisprudence and Socio-Economic Justice in India, 543(1996). Also, Paramjit S. Jaswal and Nishtha Jaswal, Human Rights and The Law, 172-180 (1996).

[16] M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.

[17] Rajiv Ranjan Singh v State of Bihar, AIR 1992 Pat 86.

[18] M.C. Mehta v. Union of India, 1991 SCR (1) 866, 1991 SCC (2) 353.

[19] Bharat stage IV emission standards for two-wheelers in India, International Council on Clean Transportation, Aug 2014, Available At: https://theicct.org/sites/default/files/publications/ICCTupdate_BSIV-motorcycles_aug2014.pdf, Last accessed: 04.04.2020.

[20] BS VI emissions norms explained, News18, Available at: https://www.news18.com/news/auto/bs-vi-emission-norms-explained-will-they-make-vehicles-and-fuel-expensive-2267107.html, Last Accessed: 04.4.2020.

[21] re Noise Pollution– Implementation of Laws for Restricting Use of Loudspeakers and High Volume Producing Sound Systems with Forum, Prevention of Environment and Sound Pollution v Union of India, (2005) 5 SCC 733.

[22] Forum, Prevention of Env. And Sound Pollution v Union of India, (2005) 5 SCC 733.

[23] Fire Crackers Ban, The Economic Times, Aug. 2018, Available At: https://economictimes.indiatimes.com/news/politics-and-nation/firecrackers-ban-supreme-court-says-need-to-consider-both-economic-and-health-aspects-of-people/articleshow/65405958.cms?from=mdr, Last Accessed: 04.04.2020.

[24] K. Ramakrishnan v. State of Kerala, AIR 1999 Ker 385.

[25] Murli S. Deora v. Union of India, (2001) 8 SCC 765: AIR 2002 SC 40.

[26] NGT bans burning of plastic, rubber across the country, The Economic Times, December 2013, Available At: https://economictimes.indiatimes.com/news/environment/pollution/national-green-tribunal-bans-burning-of-plastic-rubber-across-the-country/articleshow/27306999.cms?from=mdr, Last Accessed: 04.04.2020.

[27] Vikrant Kumar Tongad Vs. Environment Pollution (Prevention and Control) Authority &Ors (National Green Tribunal).

[28] Rural Litigation and Entitlement Kendra v. State of UP, AIR 1987 SC 1037.

[29] AIR 1996 5 SCC 647.

[30] Amita Bhaviskar, The Politics Of The City, Available At: https://www.india-seminar.com/2002/516/516%20amita%20baviskar.htm, Last Accessed: 04.04.2020.

[31] Yogini Oke, Why judiciary steps in to solve India’s air pollution crisis every time & why it’s not enough ,The Print, Available At: https://theprint.in/opinion/judiciary-steps-in-to-solve-india-air-pollution-crisis-its-not-enough/315807/, Last Accessed: 05.04.2020.

Author Details: Naina Agarwal

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

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