Role of Indian Judiciary in Protecting the Environment
Abstract
The protection of the environment wasn’t significant in the post-independence era of India, due to the need for industrial development and political aggravations. The main concern at that time was to set up markets, industries, and to make new jobs for the citizens. But after realizing the evil effect of industrial development on the environment, Court came forward vehemently to protect the environment much before the legislature and executive and the area of Environmental law broadens in the nation and judicial activity additionally increases. Albeit various legislative steps have been taken to give results to the huge right of man to live in a sound environment and the corresponding duty on state and individuals to ensure environment preservation and conservation.
Introduction
The environment is the wellspring of life on earth like water, air, soil, etc., and decides the presence, development, and improvement of mankind and all its activities. The idea of ecological protection and preservation isn’t new. It has been intrinsic to many ancient civilizations. Ancient India’s message features that it is the obligation of every person in society to protect nature.
Simultaneously, new developments like – thermal power, atomic plant, etc., with no adequate natural assurance, represent another danger to the circumstances, the eventual outcome of which brings issues like global warming, climate change, acid rain, etc. Moreover, according to the pattern of the legislature, to make a number of legislations as opposed to addressing the reason for failure and disappointment, and passing new bills consistently is just like ‘old wine in a new bottle’. In this manner, there emerges a necessity for a far-reaching analysis of the protection of the environment. Lately, there has been a supported spotlight on the pretended by the higher judiciary in concocting and observing the usage of measures for pollution control, conservation of forests, and wildlife protection. A considerable lot of these legal intercessions have been set off by the steady confusion in policy-making as well as the lack of capacity-building amongst the executive agencies. Instruments, such as Public Interest Litigation (PIL), have been conspicuously depended upon to handle environmental problems, and this approach has its supporters as well as critics.
After 1986, when the first Act related to environmental protection was passed, individuals indicated some worry about it. The fundamental motivation behind the demonstration of the act was to actualize the decisions of the United Nations Conference on the Human Environments. The Act resembles a safeguard for nature from the recently emerged industries and urbanization. Before the demonstration of the 1986 Act, a significant enactment came out just after 2 years after the Stockholm Conference in 1974. The Indian Parliament rolls out significant improvements in the jurisdiction of environmental management to execute the decisions that were taken at the conference. It was this time when environmental protection was conceded a Constitutional status and the environment was included in DPSP by the 42nd Constitution Amendment. The constitution additionally gives obligations under Article 48 A and Article 51 A (g) to both the State and citizen to preserve and protect the environment. These provisions have been broadly utilized by courts to legitimized and build up a lawfully restricting fundamental right to the environment as a part of the Right to life and personal liberty under Article 21. Parliament sanctioned cross country comprehensive laws; like The Wildlife Protection Act, 1972 and the Water (Prevention and Control of Pollution) Act, 1974.
What is Environment?
According to Section 2(a) of The Environment (Protection) Act 1986, the Environment includes water, air, and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism, and property.[1]
Constitutional aspects related to Environment
Following are the Provisions which are related to the Environmental Protection –
Article 48 A “Protection and improvement of environment and safeguarding of forests and wildlife” – The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.[2]
Article 51A (g) – To protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures;[3]
Article 32 – Remedies for enforcement of rights conferred by this Part:[4]
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
Article 226 – Power of High Courts to issue certain writs:[5]
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo-warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
Roles played by Judiciary for Environment
Professor Upendra Baxi, who has often supported the judicial activism in India, has also said that the Supreme Court of India has often become “Supreme Court for Indians”. By the powers vested in the Judiciary, and through its activism, it has effectively contributed to fortifying the fundamental rights conceded by the Constitution. Also, the Stockholm Conference on Human Environment, 1972 has additionally contributed to fortifying the environmental law regime in India and furthermore went about as the facilitating agent behind enacting the 42nd Constitutional Amendment Act, 1972. This amendment has presented certain environmental obligations both on the part of the citizens [Article 51(A) (g)] and on the state (Article 48A).
Under the constitutional scheme, the lawful status of Article 51(A) (g) and 48A are empowering in nature and not lawfully restricting in essence, in case, such provisions have frequently been deciphered by the Indian courts as legally binding. Also, these provisions have been utilized by the courts to legitimize and build up a legitimately restricting fundamental right to the environment as part of the right to life under Article 21.
In Asbestos Industries Case[6], the Supreme Court widely cited numerous worldwide laws specifically the ILO Asbestos Convention, 1986, Universal Declaration of Human Rights, 1948, and International Convention of Economic, Social and Cultural Rights, 1966. In this case, the court managed the issues relating to the occupational health hazards of the workers working in asbestos industries. The court held that privilege to the health of such workers is a fundamental right under Article 21 and gave nitty-gritty bearings to the authorities. In Calcutta Wetland Case[7], the Calcutta High Court expressed that India is involved in the Ramsar Convention on Wetland, 1971, is bound to promote conservation of wetlands.
Judicial Remedies for Protection of Environment
Tortuous liability and statutory law remedies are the two remedies that are available in India for the protection of the environment. The tortuous remedies available are trespass, nuisance, strict liability, and negligence. The statutory remedies incorporate a Citizen’s suit, e.g. an activity brought under Section 19 of the Environmental (Protection) Act, 1986, an activity under Section 133, Criminal Procedure Code, 1973. and, and an activity brought under Section 268 for open irritation, under Indian Penal Code, 1860. Aside from this, a writ appeal can be documented under Article 32 in the Supreme Court of India or under Article 226 in the High Court.
Conclusion
Indian Judiciary has played a very crucial role in the protection of the environment. It has expanded and stretched the existing legal provisions to address environmental issues. It has evolved new principles and laws to deal with the conflicting interests of various groups of society. The justice system attempts to fill in the gaps when there is an absence of legislation. These new advancements and developments in India through judicial activism open numerous ways to deal with helping the country. In India, courts are extremely aware and careful about the specific nature of environmental rights, as the loss of natural resources cannot be renewed. It gave various directions, guidelines, and orders from time to time to check the menace of environmental pollution. There are recommendations that need to be considered.
[1]. envfor.nic.in/legis/env/env1.html
[2]. https://www.latestlaws.com/bare-acts/central-acts-rules/coi-article-48a-protection-and-improvement-of-environment-and-safeguarding-of-forests-and-wild-life-/
[3]. https://indiankanoon.org/doc/1644544/
[4]. https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2032
[5]. https://indiankanoon.org/doc/1712542/
[6]. Consumer Education and Research Centre vs. UON [(1995) 3 SCC 42]
[7]. People United For Better Living In Calcutta vs. East Kolkata Wetlands Management Authority [AIR 1993 Cal 215]
Author: Ayush Patria,
Sangam University, Bhilwara (Rajasthan); 3rd Year; Law Student
