INTRODUCTION
Environmental protection in the past few decades has assumed not only national importance but also global importance. It is now an established truth beyond all doubts that without a clean environment the survival of mankind is at stake.
“The black ebony starves at judiciary which has thumped time and again for the protection of man miniature against excruciating blows of evil is known on the aspiration for protecting environment”.
In developing countries like that of India where there are a large number of uneducated masses, conditions of poverty, where the awareness of the socio-economic and ecological problem is lacking, the Judiciary has to play an active role to protect the people’s right against the anti-people order by infusing confidence in people as a whole for whom it exists for, as rightly remarked by Justice Lodha, “Judiciary exists for the people and not vice versa”.
“Nature is an eternal storehouse of great mysteries and enchanting beauties. She is a sincere friend who embalms man when his heart is wounded. She is a great philosopher who answers many a question of men. So spellbound the men to become by her overall beauties that he finds tongues in trees, books in brooks, sermons in stones and good in everything. Nature is a thing of beauty and being in the company of Nature means a joy forever”.[1]
Man is both the creature and molders of his environment, which gives him physical sustenance and affords him the best opportunity to develop himself into a spiritual being. In the long and tortuous evolution of the human race on this planet, a stage has been reached when through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspect’s of man environment, natural and manmade are essential to his well-being and to the enjoyment of basic human rights and the right to life itself.[2]
The environment is the wellspring of life on earth like water, air, soil, etc., and determines the presence, development and improvement of humanity and all its activities. The concept of environmental protection and preservation is not new. It has been intrinsic to many ancient civilizations. Ancient India texts highlight that it is the dharma of each individual in the society to protect nature and the term ‘nature’ includes land, water, trees and animals which are of great importance to us. . In the ‘Atharva Veda’, the ancient Hindu Sceptres’ stated: “What of thee I dig outlet that quickly grow over”.[3] Thus the word “environment” includes surroundings. It can be defined as anything which may be treated as covering the physical surroundings that are common to all of us including land, air, water, space and wildlife.[4] The Environment (Protection) Act, 1986, Section 2(a) environment “includes water, air and land and inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property”.[5]Almost 95% of action taken place in the court of law to protect the environment is through Public Interest Litigation.[6] One of the names that come out boldly in laying the foundation of environmental Jurisprudence and environment protection is that of Spirited Public man, Shri M.C. Mehta[7] who single-handedly has filed a number of Public Interest Litigation in the Supreme Court relating to the different aspect of environmental protection. Since the 1980’s the Public Interest Litigation has altered both the litigation landscape and the role of the higher Judiciary in India.[8] Instead of being asked to solve the private disputes, Supreme Court and High Court Judges were asked to deal with the public grievances over flagrant human rights violations by the state or to vindicate the “Public Interest Litigation”.[9] In Public Interest Litigation in India the subject matter of the litigation is typically a grievance against the violation of the basic human rights of the poor and helpless people or about the content or conduct of government policy. The petitioner seeks to be the champion of a public cause for the benefit of all society.
Protection of Ecology and Environment
Public Interest Litigation in India has to come to stay in India. Contrary to the past practices[10] today a person acting a bonafide and having sufficient interest can move to the court for redressing public injury, enforcing public duty, protecting social and collective rights and interest and vindicating Public interest.[11] In the 19th century, there has been a wave of much environmental litigation. Most of such cases were in the form of class actions and PIL, obviously because environmental issues relate more to diffuse interests than to ascertained injury to the individuals. The concept of a class action is embodied in the Code of Civil Procedure 1908 [12] where numerous people have common interests; one or more of such person can file a suit. An example of the class action was Bhopal Disaster Litigation.[13] The interest of the community can also be agitated under the law of public nuisance incorporated under the Criminal Procedure Code, 1973.[14] An individual or any group or an executive magistrate, suo moto can move the courts. This provision proved to be a very important and potent factor and weapon for regulatory measures[15] as well as affirmative action by the government and local bodies for “the protection of the environment”[16]
The ability to invoke Jurisdiction under Article 32 and Article 226 of the Indian Constitution is a remarkable step forward in providing protection of the environment. Courts have widened the aspect and dimensions of the substantive “Right to health and clean and unpolluted environment”.[17] In most of the cases, this was made possible only due to because of PIL. Thus in order to reap the benefits of substantive environment rights, the court has opened the path of “Processual Justice” without enslaving themselves to the procedural compulsions.[18] In Tarun Bharat Sangh, Alwar v. Union of India[19] a social action group of people challenged the legality of granting a mining license in the protected area of forest cover. Upholding the contention the Supreme Court observed that-
“This litigation should not be treated as the usual adversarial litigation. Petitioners are acting in aid of a purpose high on the national agenda. Petitioners concern for the environment, ecology and the wildlife should be shared by the government. ”[20]
This observation of the Supreme Court is important as it emphasizes the rationale of PIL in environmental issues. It is the duty of the state to protect the environment- a duty imposed by the Directive Principle of State Policies and Fundamental Duties, incorporated by the Forty second Amendment Act of the Constitution.[21] Any person who raises environmental issues, whether an individual, group or any institution is equally concerned with the problem. Such Litigation can never be considered as one of the adversarial confrontations with the State.
[1] United Nations Educational, Scientific and Cultural Organization [UNESCO] Small Islands Voice – Voices in a Changing World (2004) Coastal Region and Small Island Papers ch 4 www.unesco.org (accessed 10 February 2018).
[2]Declaration of the United Nations Conference on the Human Environment UN Doc A/Con/48/14/Rev.1 (1973) Preamble, para 1 [Stockholm Declaration].
[3] MC Mehta, GROWTH OF ENVIRONMENTAL JURISPRUDENCE IN INDIA, p.71, 1999
[4] Dr. Jai Ram Upadhyay, ENVIRONMENTAL LAW, p.2, Allahabad: Central Law Agency, (2005).
[5]Available at envfor.nic.in/legis/env/env1.html (accessed 10 February 2018).
[6] Paras Diwan and Parag Diwan, Environmental Management Law and Administration, (1998),p. 310.
[7] M.C. Mehta, a recipient of the Ramon Magsaysay Award and the Goldman Environmental Prize, is a Delhi based public interest litigation in India lawyer who has successfully fought and won several landmark environmental cases in the Supreme Court.
[8] Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India : Cases, Materials and Statutes, (2001), p. 133.
[9] The label ‘Social Action Litigation’ is preferred by some jurists
[10] Locus Standi was the greatest hurdle. J.M. Desai Vs Roshan Kumar, A.I.R. 1976 S.C. 578 could be cited as an illustration. The District Magistrate gave no objection certificate for a cinema house close to a burial ground, compost depot, a school and public latrines. The grant was manifestly against rules. The High Court and the Supreme Court were, however, reluctant to interfere on the ground that the rival applicants who challenged the decision had no locus standi.91 S.P. Gupta
[11] S.P. Gupta and Others Vs Union of India, A.I.R. 1982 S.C. 149 at p. 192. See also P.Leelakrishnan, ‘Access to Legal Service and Justice’ in Cochin University Law Review, (1984) at pp. 471, 476-477.
[12] Order 1, Rule 8.
[13] The most obvious use of class action is in mass disasters of the sort that occurred in Bhopal. In the wake of the Bhopal tragedy, the Indian Government filed a class-action suit on behalf of all the victims, in accordance with the terms of the Bhopal Gas Leak Disaster (Processing of Claims) Act of 1985.
[14] Sections 133 to 144 of the Code of Criminal Procedure, 1973.
[15] Madhavi Vs Thilakan, [1989] Cri. L.J. 499
[16] Municipal Council, Ratlam Vs Vardhichand, A.I.R. 1980 S.C. 1622.
[17] Hinch Lai Tiwari Vs Kamala Devi,(2001) 6 S.C.C. 496; V Lakshmipathy Vs State of Karnataka, AJ.R. 1992 KANT 57 at p. 62, para 17; Kinkri Devi Vs State of Himachal Pradesh, A.I.R. 1988 H.P. 4, 9.
[18] P. Leelakrishnan, Environmental Law in India, (1999), p. 140.
[19] A.I.R. 1992 S.C. 514.
[20]Ibid at p. 517.
[21] Article 48 A and 51A(g) were inserted into the Constitution by the Constitution (42nd Amendment) Act, 1976.
