By Dr. Birendra Gupta,1
The Supreme Court has played the role of parrens paterea in the protection and improvement of environment.
The Supreme Court of India has declared time ad again that the right to healthful environment, polluting-free air, and potable water is one of the fundamental rights. Though the Indian Constitution does not expressly mention it but it is implcit with in the penumbra of the right to life and personal liberty guaranteed under Article 21.2
Right to environment information and the creation of environmental awareness. The right to information (an induvidual and group human right recognized in a number of international instruments.
They are-
Common article 19 of the Universal-Declaration of Human Rights and the International Covenant on Civil and Political Rights. On the importance of environmental information – Principle 19 of the Stockholm Declaration, Principle 10 of the Rio Declaration, the World Charter of Nature, 1982, 1972 UNESCO convention for the protection of the world cultural and natural heritage.
They are highly relevant to the environment. It not only constitutes an essential attribute of the democratic processes and the principle of popular participation but is also a key to the success of the environment management programmes and the implementation of the laws on the environment.3
Not only this right has been recognised traditional in the homespun environmental – jurisprudence but there is also a clear awareness of the necessity of creating environmental awareness through teaching and instruction at the different levels of education. The Suprime Court by an early order dated 22.11.1991 had directed the state governments and other authorities to create environmental awareness amongst the students through the medium of education. 4
In its recent order of December 18, 2003 the court accepted the partial compliance with by respondent states and other authorities, bearing in mind the burden that might be imposed on students by introducing an additional subject of environment. 5
Directions were given to make sure that all educational institutions implemented the respective steps necessary to implement the steps taken by the respondents in partial compliance with the Supreme Court’s earlier order, and for the taking of further steps towards full compliance with that order. The Court also directed NCERT to prepare a module syllabus to be taught at different grades and submit the same to the court by next hearing date. 6
Sustainable development:
Sustainable development is a vague and ambiguous term, which is in search of definition. 7
The Brunt land Report defined this phrase in terms of development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. It is a balancing concept between ecology and development and is seen as a variable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting system.8
According to Johanneshburg Declaration and Programme of Action 20029, economic development, social development and environmental protection are the three interdependent and mutually reinforcing pillars of sustainable development. Poverty eradication, changing unsustainable patterns of production and consumption and protecting and managing the natural resource base of economic and social development are overarching objectives of and essential requirements for sustainable development. Good governance within each country and at the international level, is essential for sustainable development. At the domestic level, sound environmental, social and economic policies, democratic institutions responsive to the needs of the people, the rule of law, anti corruption measures, gender equality and an enabling environment for investment are the basis for sustainable development.10
The apex court in Vellore Citizens forum stated that intergenerational equity, use and conservation of natural resources, environmental protection, precautionary principle and eradication of poverty are the essential components of the concept of sustainable development. In Narmada Bachao Andolan v Union of India and others11 the apex court observed that sustainable development means the type of intent of development that can take place and which can be sustained by nature/ecology with or without mitigation. At the heart of the apex courts approach to sustainable development is the recognition that both development and environment must go in hand. ” In other words, there should be development while taking due care and ensuring the protection of the environment.” 12
It is very interesting to compare the decisions of Sabharwal13 and Ruma Pal JJ14, all they have identical views on the meaning of sustainable development, the out come of their learned judgments are quite different, the first in favour of environment while the other in favour of development. Thus in Mehta, his lard ship instead of lifting ban on mining in Aravalli hill range adopted the safer course to constitute a monitoring committee, get a report from it and only thereafter consider on individual mine to mine basis, lifting of ban imposed in terms of order dated 6th May, 2002. The court made it clear that the mining activity can be permitted only on the basis of sustainable- development. Despite these stringent conditions there is an adverse irreversible effect on the ecology in the Aravilli Hill range area, at a later date, the total stoppage of mining activity in the area may have to be considered. Although in 1994 notification relating to Environment Impact Assessment is not applicable to the mining for minor mineral and clearance from the Central Government is not required, considering environmental degradation that had taken place in hill range. Sabharwal J. adpoted the safer course and directed the monitoring committee to examine the leases granted for minor mineral and file its report. Though the court did not suggest a total ban on the use of forest land as at present undertaking mining operating on sustainable development basis is possible, his Lordship felt that the grant of mining lease over area under plantation under Aravalli Project would be wholly arbitrary, unreasonable and illogical.
By contrast in Essar Oil Ltd., Ruma Pal J. held pipelines carrying crude oil could be permitted to go through the Marine National Park and Sanctunary. Her Lordship rejected the plea that the laying of pipelines through a sanctuary necessarily results in a destruction of the wild life and observed that “there has been no study of an recognised expert body that the environment impact of laying the pipeline would be such as would lead to irreversible damage of the habital or the destruction of the wild life.
Precautionary Principle
While the legal issues involved and facts and circumstances of these two cases are quite different, the adoption of the precautionary approach, while has already been followed in Vellore Forum ( Vellore Citizens Forum v Union of India,15 Taj Trapezium and Narmada,16 to the facts and circumstances of the Mehta case played a crucial role in stopping the disparities in this case. Support for this view may be found in the following observations of the court:- ” In case of doubt however protection of environment would have precedence over the economic interest. Precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environemtn.
The “Polluter- Pays Principle” seems to be well entrenched in the domestic environmental jurisprudence, yet, there still exists doubt with regard to its content and scope. The decisions of the Gujrat High Court in17 lends support to this observation. A public interest litigation was filed before the High Court alleging large scale pollution caused by industries located in Gujrat Industrial Development Corporation Industrial Estate at Nandes. It was alleged that effluents discharged by the said industries had exceeded certain parameters fixed by the Gujrat Pollution Control Board (GPCB) thereby causing damage to the environment. The high court following the payment of one percent turnover method already indicated in Pravinbhai Jashbhai Patel18 passed an order directing the industries to pay one percent of the maximum annual turn over of any of the preceding three years towards compensation and betterment of environment within a stipulated time. Surprisingly, the high court applied the “Polluter Pays Principle” to the facts of the case without making a finding that there had been degradation of environment or any damage caused to any of the victims by the activities of the industrial units. On appeal, the apex court directed the high court to further investigate the matter in each of the cases. The court made it clear that compensation to be awarded must have some broad correlation not only with the magnitude and capacity of the enterprise but also with the harm caused by it19. Therefore, the polluter pays principle can be applied when there is a finding that damage has been caused to the environment by the industrial units by their activities.
To say that mere violation of law in not observing the norms would result in damage/degradation of environment is not correct.20
Doctrine of Public Trust :
The ‘doctrine of public trust’ propounded by professor Sax 21 and redefined by the apex court in M.C. Mehta V. Kamal Nath and Ors22 has also been redirected in Nayamavedi v Union of India.23 In this case, the applicant sought to grab evergreen forest belonging to state and its people and governed by the Forest (Conservation) Act, 1980 by practicing fraud and misrepresentation of the facts before the forest Tribunal and Forest Authorities. The Kerala Hingh Court confirmed the order of the tribunal. A review petition filed before the Tribunal under Section 8B was rejected holding that the said petition was not maintainable since the order reviewed was concluded by the judgment of the High Court. A division bench of the High Court also rejected review petition. Special Leave Petition preferred before the Supreme Court in 1994 was also dismissed. But the applicant had filed a writ petition before the High Court for issuing mandamus directing restoration of the property and writ petition was allowed. The State as the custodian filed a petition to review the judgment.
In the guise of implementing the judgment in the original application twenty acres of ever-green thick forest was symbolically delivered to the applicant by the State to wiggle out of the contempt court proceedings initiated by the applicant. An organization named, “Niyamavedi” filed a writ petition challenging the said transfer. The order passed by the division bench of the High Court was sought to be reviewed by the State. The issue raised in the petition filed by “Niyamavedi” is this a classical struggle between members of the public who would like to preserve forest and those charged with administrative responsibilities and the property grabbers.24 Niyamavedi, at 85.
This also shows how property grabbers, tax evaders, bank loan lodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely.25 Niyamavedi at 82 also S.P. Chengalverya v Jagannath (1994) ISCC 1.
It is gratifying to note however, a division bench of the Kerala High Court unearthed not only the fraud and misrepresentation perpetrated by the applicant but also saved twenty acres evergreen forest with thick trees of more than 300 years, from the forest grabber by condoning the delay suo-moto. The Court found that the land the applicant claimed on the strength of a document and the land sought to be restored were distinct and different lands.26 Niyamavedi, at 89-90.
What were handed over to the applicant through contempt of court proceedings were evergreen forests. Accordingly, the court held that state cannot restore evergreen forest for complying with order of High Court or to get over contempt proceedings.27
Due to pain staking effort of the division bench truth ultimately prevailed and valuable natural resources, which are necessary, for the purpose of protecting the ecosystem, were restored to the people. The judgment also points to the failure of forest officials and the counsel in not properly conducting the case in the earlier part of the proceedings. It is also manifested from the judgment that the preceding division bench erred in examining the question of condonation of delay. The above judgment although originated in a different way but took the right direction because of the natural demand for the protection of natural resources and it is the duty of the state to protect them in order to prove its trusteeship.28
In the above case, the court directed the State to notify in gazette all water bodies in the state to prevent alienation and remove encroachment and take urgent measures to rejuvenate them. The judgement also states that as a precautionary and interim measure, high court can grant an interim order to prevent construction that may harm the natural resources, which are required to the protected, preserved and improved. The court said that interim direction not to construct within the area specified from the water bodies was given on a subject matter on which no statutory provision existed. Therefore such an order cannot be branded as an exercise of legislative or executive powers by the High Court, the court added.
Closure of illegal unauthorized slaughter houses:-
In M.C. Mehta v Union of India,29 the Supreme court directed closure of slaughter houses located near Taj Mahal and new slaughter houses were proposed to be located at Kuberpur, Agra. The Rajasthan High Court in Residents of Sanjay Nagar and others V State of Rajasthan and others,30 relying on the principles laid in Mehta, ordered the immediate closure of the unauthorised and illegal slaughter housed and illegal skin stores and said that the dislocated persons could move the concerned authorities for allotment of land in the area which may have been earmarked for selling up of the slaughter-housed. Thus the court came to rescue of affected citizens and prevented the pollution caused by slaughtering of animals and strong smell emanating from the area when all the authorities namely, the State of Rajasthan, Municipal Council Board and Superintendent of Police despite their confirmed views that the slaughter housed should be closed, feigned their helplessness in the matter.
Yamuna Pollution:-
Pollution of the river Yamuna, especially on entry into Delhi continues to attract the attention of the apex court.31
During the period under survey, the apex court having noted that monitoring in the last more than 4 years had not resulted in improving the quality of water and set up a high level committee to draw up a plan to tackle the problem in achieving results at the ground level and directed it to submit report within six weeks of the order suggesting the mode and manner in which the quality of water could be improved and the measures required to be taken by various authorities therefore.
News item published in Hindustan Times titled ‘And Quit Flows the Maily Yamuna’ In re. (2004), 8 SCC 638.
Vehicular Pollution
The Supreme Court has been anxious to make Delhi free from the vehicular pollution and has passed a series of orders and directions for the purpose.32
During the survey period, the apex court passed an order on pricing of CNG.33
If one were to name a single international environmental conference which had the deepest impact on the codification of Indian Environmental Laws a well as generated penetration in the decisions of the Supreme Court and High Courts of India, it would be the United Nations Conference on Human Environment, popularly known as the Stockholm conference, held in 1972. It was the largest ever international conference with representation from 113 countries and 400 NGOs. The Supreme Court’s judgement in case of M.C. Mehta v Union of India and others reported in 34 points out that- “The proclamation adopted by the United Nations Conference on the Human Environment which took place at Stockholm from June 5 to 16, 1972 and in which the Indian delegation led by the Prime Minister of India took a leading role, runs
1. Man is both creature and moulder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evaluation of human race on this planet, a stage has been reached when through rapid acceleration of scene and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man’s environment, the natural and the manmade, are essential to his well being and to the enjoyment of basic human rights even the right to life itself.
2. The protection and improvement of the human-environment is a major issue which affects the well being of people and economic development through out the would. It is the urgent desire of the people of the whole world and the duty of all governments.
3. Man has constantly to sum up experience and go on discovering, inventing, creating and advancing. In our time, man’s capacity to transform his surroundings, if used wisely, can bring to all people, the benefits of development and the opportunity to enhance the quality of life. Wrongly and heedlessly applied, the same power can do incalculable harm to human beings and the human environment. We see around us growing evidence of manmade harm in may regions of the earth, dangerous levels of pollution in water, air, earth and living beings, major and undesirable disturbances to the ecological balance of the biosphere destruction and depletion or irreplaceable resources; and gross deficiencies harmful to the physical, mental and social health of man, in the manmade environment; particularly in the living and working environment.
The Supreme Court of India, the apex court of the country expressed its views regarding environment and made its intention clear about the nature of protection in Sachidanand Panday v State of West Bengal,35 1987 (2) SCC 295, in a very sacred way when the court quoted a complete passage of a communication sent by a Red Indian- Chief to Washington. The following few quoted statements will clear the trends to be taken by the apex court in the coming disputes regarding environment.
“We are part of this earth end it is part of us. The perfumed flowers are our sisters, the deer, the horse, the great eagle, these are our brothers. The rocky crests, the juices in the meadows, the body heat of the pony, and man- all belong to the same family…..
“This we know: the earth does not belong to man, man belongs to the earth. This we know. All things are connected like blood which unites one family. All things are connected. Whatever befalls the earth befalls the sons of the earth. Man did not weave the web of life: he is merely a strand in it whatever he does to the web, he does to himself….
In 1991, the Supreme Court of India realised that individuals were not living environmentally sustainable lifestyles, either because they did not have the knowledge, practical skills or tradition or community spitir. Recognising the importance of Environmental Education, the Apex Court ordered that the subject be incorporated into the curriculum. The techniques so far adopted in Environmental Education have not helped people realise that they must themselves bring about a positive change and improve their own surroundings and communities by taking responsibility and becoming proactive, ” community- minded” citizens.
Thirteen long years late the Supreme Court in 2004 reasserted that Environmental Education be made a mandatory, independent subject in all schools and undergraduate colleges and that it must be on ‘action-oriented’ subject. For example, practicing energy conservation, waste management, rainwater harvesting, edible landscaping and greening service learning and other important socio-environmental issues.
A landmark interim order of the Supreme Court in December 1996, in a public interest litegation (PIL) against illicit felling36 T.N. Godawarmen Thirumulpad vs union of India was an example of judiciary’s environmental activism. The order imposed an urban middle class notion of forest conservation of forest management in the country. The court extended the sweep of the PIL to every nook and corner of the country and ordered felling bans except in accordance with “working plans’ prepared by state forest departments. As neither the Indian Forest Act, 1927 (IFA) nor the Forest Conservation Act actually define what a ‘forest’ is, the Court ruled that its orders would apply to any area confirming to the dictionary meaning and definition of forest, irrespective of ownership. Any land entered in government records as forest would come also within the ambit of the court’s order.
Environmental concerns arising in the Supreme Court under Article 32 or under Article 136 or under Article 226 in the High Courts are of equal importance as human rights concerns. Both are to be traced to Article 21, which deals with the fundamental right to life and liberty. While environmental aspects concern “life”. Human rights aspect concern “liberty”. In the contest of emerging jurisprudence relating to environmental matters — as is the case in matters relating to human rights. it is the duty of the Supreme Cort to render justice by taking all aspects into consideration. 37
The Supreme Court in order to ensure the correctness the technology or there is neither danger to the environment nor to the ecology, and, at the same time, ensuring sustainable development, it has to be held that the Supreme Court can refer scientific and technical aspects for investigation and open on to expert bodies such as the appellate authority under the National Environmental Appellate Authority Act, 1997. Any opinion rendered by such authority would of course be subject to the approval of the Supreme Court. Such a procedure can be adopted in matters arising in the Supreme Court under Article 32 or under Art. 136 or arising before the High Courts under Article 226 of the Constitution of India. 38
The uncertainty “of scientific proof and its changing frontiers from time to time has led to great changes in environmental concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. A three – Judge Bench of the Supreme court has referred to these changes, to the precautionary principle” and the new concept of “burden of proof” in environmental matters.39
A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier, the concept was based on the “assimilative capacity” rule as revealed from Principle 6 of the Stockholm Declaration of the UN Conference on Human Environment, 1972. The said principle assumed that science could provide policy makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm produced and there would be sufficient time to act in order to avoid such harm. But in the 11th Principle of the UN General Assembly Resolution on would charter for Nature 1982, the emphasis shifted to the “precautionary principle” and this was reiterated in the Rio Conference of 1992 in its Principle 15. The inadequacies of science is the real basis that led to the precautionary principle of 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm, which may indeed become irreversible.
The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to “serious” or “irreversible” as adjectives qualifying harm.40
While the inadequacies of science have led to the “precautionary principle, which in its turn, has led to the specific principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the statuesque. This is often termed as a reversal of the burden of proof because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure that is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. If the environmental risk being run by regulatory inaction are in some way “uncertain but non-negligible”, then the regulatory action is justified. This will lead to the question as to what is the “non negligible risk”. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. If insufficient evidence is presented by them to alleviate concern about the level of uncertainly, then the presumption should operate in favour of environmental protection.
The role played by the Supreme Court of India in the projection and preservation of environment is outstanding. The concept of maternalism and paternalism being borne by the state but it is the judiciary. One of the organs of the state proved itself as the real custodian of the rights of people and understood properly that without proper environment, rights cannot be enjoyed.