The concept ‘the right to life’ under Article 21 of the Constitution of India was not given an expansive dimension in the beginning but gradually Courts in India started expanding the meaning of this term by playing an active role. The question, how to bring about a balance between the environment and development, poses a great dilemma.
The Rural Litigation and Entitlement Kendra v. State of U.P. is the first case where the Supreme Court of India made an attempt to look into this question. In this case, the petitioners, a voluntary organisation, feared that mining activities of the lessees caused ecological disturbance. The lessees had rights given by the Government and on conditions laid down under a specific law. According to a committee of experts, appointed by the Supreme Court, mining of limestone in certain areas was found dangerous and damaging ecological balance. The Supreme Court ordered to close the mining operations in these areas, though it allowed mining operations in certain areas reported as not dangerous. The Court considered the hardship caused to the lessee but thought that ‘it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance to ecological balance’. What is important is that the case was filed under Article 32 of the Constitution of India and orders were given with emphasis on the need to protect environment. Under Article-32 the Supreme Court of India can only be approached for the violation of fundamental rights and there is no specific fundamental right to environment mentioned as fundamental rights in our Constitution. This means that the Supreme Court treated the right to clean environment as a fundamental right and this can only be done by expanding the meaning of ‘the right to life’ as it appears in Article 21 of the Indian Constitution as one of the fundamental rights.
The right to humane and healthy environment is seen indirectly approved in the M. C. Mehta group of cases decided subsequently by the Supreme Court. In the first M. C. Mehta (M. C. Mehta v. Union of India) case, the Court had to deal specifically with the impact of activities concerning manufacturing of hazardous products in a factory. The activities were a threat to the workers in the factory, as well as members of the general public living outside. It was alleged that the leakage of Oleum gas from the factory resulted in the death of the person and affected the health of several others. The question was, whether or not the plant should be closed down. Many conditions were laid down under which industries of hazardous products should be allowed to restart. In doing so the Court found that the case raised ‘some seminal questions concerning the scope and ambit of Articles-21 and 32 of the Constitution’.
Although the second M. C. Mehta case, (M. C. Mehta v. Union of India) the Court modified some of the conditions, the third M. C. Mehta case, (M. C. Mehta v. Union of India) posed an important question concerning the amount of compensation payable to the victims affected by leakage of Oleum gas from the factory. The Court held that it could entertain a petition under Article 32 of the Constitution, and laid down the principles on which the quantum of compensation could be computed and paid. This case is significant as it evolved a new jurisprudence of liability to the victims of pollution caused by an industry engaged in hazardous and inherently dangerous activity. Although it did not specifically declare the existence of the right to a clean and healthy environment in Article 21, the Court evolved the principle of ‘absolute liability’ of compensation through interpretation of the constitutional provisions relating to the right to live and to the remedy under Article 32 for violation of fundamental rights. The basis for this decision is clear and unambiguous – the fundamental right to a clean and healthy environment.
In,Chhetriya Pardushan Mukti Sangharsh Samati v. State of U. P. and Subhash Kumar v. State of Bihar, the Honourable Supreme Court took a step forward. Chief Justice Sabyasachi Mukerji in Chhetriya Pardushan case observed:
“Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated in Art. 21 of the Constitution of India.”
Justice K. N. Singh in Subhash Kumar case observed: “Right to live………includes the right to enjoyment of pollution free water and air for full enjoyment of life.”
The decisions of the Courts have widened the scope of the right to life by reading into it, the right to a clean environment. Thus, Courts in India have lived up to the needs of the time and have made significant contributions in evolving new principles and remedies.
The right to a healthy environment is the product of judicial interpretations adding new dimensions to the right to life in article 21 of the Constitution. On the other hand, the forty-second amendment to the Constitution had imposed a duty on the state and the citizens to protect and improve the environment, by adding art 48A to directive principles and art 51A (g) as a fundamental duty. These insertions in the Constitution have acted as the foundations for building up environmental jurisprudence in the country.
AIR 1987 AP 171
In this case Andhra Pradesh High Court referred to art 51-A (g) and 44 art 48-A and prevented conversion of an open space to a residential complex. The court noted that the protection of the environment is the duty of the citizens, as well as the obligation of the state. The Rajasthan High Court found in L K Koolwal v State AIR 1988 Raj 2 that the unhygienic conditions in the city of Jaipur were largely due to the negligence of the municipal authorities. Directing them to clean the city, the judgement laid emphasis on the fundamental duty of the citizens under art 51-A (g) of the Constitution to protect and improve the environment. According to the court, the provision renders the citizens the right to move the court to see that the state performs its duties faithfully, and strives to protect and improve the natural environment. It is the primary duty of the municipal council to remove filth, rubbish, night soil, noxious odour or any offensive matter and financial inability cannot be a plea.
Contrary to the past practices (strictly as per the locus standi principle) wherein, only a person himself/herself, being aggrieved, could have come knocking the doors of the courts, today a person acting bona fide and having sufficient interest can move the courts for redressing public injury, enforcing public duty or for protecting social and collective rights and interests. This is known as the dilution of the principle of locus standi. The ability to invoke the jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution of India is a remarkable step forward in providing protection for the environment. Courts have widened the dimensions of the substantive rights to health and a clean and unpolluted environment. In most cases, this progress was made with aid of PIL. The courts by allowing a case to be filed as PIL have shown that the procedure cannot come in the way of ensuring that the justice is done. In Tarun Bhagat Sangh Alwar v. Union of India, a social action group challenged the legality of granting a mining license in the protected area of a forest. Upholding the contention, the Supreme Court observed;
“This litigation should not be treated as the usual adversarial litigation. Petitioners are aid of a purpose high on the national agenda. Petitioners concern for the environment, ecology and the wildlife should be shared by the Government”.
The observation of the Court is important as it emphasises the rationale of PIL in environmental issues. Any person who raises an environmental issue, whether individual, group or institution is equally concerned with the problem as is the State. Such litigation can never be considered as one of adversarial confrontation with the State. In the 1984 case of ‘Bandhua Mukti Morcha v. Union of India’, Justice P. N. Bhagwati stated that if a person was physically or economically unable to approach the Court, he/she “may move the Court even by just writing a letter,” because the legal system would otherwise be inaccessible to some of its citizens.
The range of issues in PILs has been very broad. It extends from compassion to animals and privileges of tribal people and fishermen, to the eco-system of the Himalayas and forests, eco-tourism, land use patterns and problems facing a village due to ecological damage. The cause of environment has been taken up before courts through PIL by a wide spectrum of people in society. Lawyers, association of lawyers, environmentalists, groups and centres dedicated to environment protection and forest conservation, welfare forums, consumer research centres have successfully agitated environmental issues before Courts.
The powers of the Supreme Court to issue directions under Article-32 and that of the High Courts to issue directions under Article-226 have attained great significance in environmental litigation. There are several such directions which have resulted as milestones in the path of environmental protection.
The formulation of certain principles to develop a better regime for protecting the environment is a remarkable achievement of PILs. In ‘M. C. Mehta v. Union of India’, the Supreme Court formulated the doctrine of ‘absolute liability’ for harm caused by hazardous and inherently dangerous industries. In Sludge’s case (‘Indian Council for Enviro- Legal Action v. Union of India’, when the people in a village suffering from lethal waste left behind by a group of chemical industries were asked to be given the compensation by such industries by the Supreme Court, the Court applied the ‘Polluter’s Pay Principle’.
The ‘Precautionary Principle’ came to be directly applied in M. C. Mehta v. Union of India, for protecting the Taj Mahal in Agra from air pollution. Expert studies proved that emissions from coke/coal based industries in the vicinity of Taj Mahal had damaging effect on Taj Mahal. The Supreme Court ordered that the potential polluters had to change over to natural gas as an industrial fuel and those that were not in a position to obtain gas connections for any reason-should stop functioning in the vicinity of Taj Mahal and relocate themselves in alternative plots outside the demarcated area within a stipulated time.
The Supreme Court has also applied the principle of ‘Sustainable Development’ in several cases to balance the developmental concerns with the ecological balance. The Rural Litigation and Entitlement Kendra v. State of U.P. can be cited as an example here.
The rights to livelihood and clean environment are of grave concern to the courts whenever they issue a direction in an environmental case. Labourers engaged in the asbestos industry were declared to be entitled to medical benefits and compensation for health hazards which were detected after retirement by the Honourable Supreme Court in ‘CERC v. Union of India’.
In most cases courts have issued directions to remind Government authorities of their responsibility to protect the environment. Thus, directions were given to local bodies, especially municipal authorities, to remove garbage and waste and clean towns and cities.
The directives of the Supreme Court went to the extent of spreading environmental awareness and literacy as well as the launching of environmental education not only at the school level, but also at the college level. In M. C. Mehta v. Union of India, the Supreme Court emphasised the need for the awareness of environmental protection. The Court also required every State Government and Education Boards to take steps for environmental education. Thus, it is clear from the above discussion that the PIL has played a very important role in the field of environment protection by empowering the courts in India to do whatever it can for this noble cause.
We saw how ‘judicial activism’ has contributed immensely to the field of environmental protection. There are hundreds of such judgements which have collectively contributed to this cause, yet some of these judgements can be specifically highlighted which have considerably impacted the field of environmental protection. Most of these landmark judgements have also come through the means of Public Interest Litigation (PIL). From making the polluter to compensate for the pollution caused by it to declaring the concept of absolute liability for industries involved in inherently dangerous or hazardous activities, from forest preservation to initiatives for addressing the lack of civic amenities, from pollution of river Ganga to the kind of air people breath in Delhi, from directing the closure of mining operations posing environmental risk to protecting Taj Mahal from losing its shine because of air pollution; all these issues have been taken up by the courts in India to promote the objective of a clean and healthy environment. Some of such landmark cases include-
The PIL was filed by M.C. Mehta, an established environmental activist and lawyer, in 1985. It is a citizen standing case. Mehta expressed his concern about the alarming rise in the levels of air pollutants and suspended particulate matters in the atmosphere over the city of New Delhi and the surrounding region. The result was pollution-related illnesses that included tuberculosis, asthma, and bronchitis and lung cancer. Mehta argued that the respondents, the Union of India and Delhi Administration and the DTC had acted against the common law of India and the environmental legislation. He claimed that he and Delhi residents had a right to live in a clean environment and this right had been breached by the respondents. He prayed that the Court would make an order against the respondents to take action to stop those vehicles that were emitting noxious gases.
The case was filed in 1985 but no action was taken until 1990. Thereafter, a series of directions were passed by the Supreme Court. There was progress, albeit slow. From 1990 to 1992 the Court ordered periodic vehicle emission checks, particularly focusing on public buses, with the power to cancel the registration certificates of faulty vehicles. As the litigation progressed, the Court responded by directing the authorities to introduce and use unleaded fuel in a three-phased manner, starting in Delhi and encompassing all India by 2001; converting Government vehicles to compressed natural gas; ensuring two- and three-wheeler vehicles had catalytic converters and compressed gas or unleaded fuel; and that a body be established to oversee the implementation of the Court’s orders. In January 1998, the Supreme Court endorsed the Central Government’s proposal to create an expert authority, to be known as the Environment Pollution (Prevention and Control) Authority (EPCA). However, in July 1998, the Court passed an ‘historic’ order which became the public battleground for the various stakeholders over an issue which claims more victims than the terrorists’ guns. It included the phasing out of all commercial vehicles and taxis which were more than 15 years old as of October 1998; a ban on the supply of 2T oils at petrol stations by December 1998; the increase of public transport to 10,000 buses by April 2001, the stoppage of leaded petrol within NCT Delhi by September 1998; replacement of all pre-1990 auto rickshaws and taxis to new vehicles on clean fuel by 31 March 2000; no eightyear-old buses to ply except on CNG (Compressed Natural Gas) or other clean fuel by 1 April 2000; entire city bus fleet (DTC and private) be steadily converted to single fuel mode on CNG by 31 March 2001. The Court further stressed and directed that the authorities must take effective and adequate steps to bring to the notice of the public, both through print and electronic media, the directions issued by the judiciary from time to time. The July 1998 order provided time lines to be adhered to for bringing the change in the city. The judges, while delivering the order, stated: ‘This timeframe, as given by EPCA and today by this Court, in consultation with the learned counsel for the parties, shall be strictly adhered by all the authorities. We administer a strong caution to all the concerned that failure to abide by any of the direction would invite action under the Contempt of Court Act against the defaulters.’
The next target of the Supreme Court was diesel vehicles, accounting for 90 per cent of the nitrogen oxide and respiratory suspended particulate matter. The diesel particulate is toxic and chronic exposure to such toxic air would lead to 300 cases of lung cancer per million. In 1999, restrictions were imposed on the monthly registration of diesel driven vehicles. Also, diesel taxis were prohibited in National Capital Region (NCR) Delhi unless they conformed to safety standards.
From 2000-2003, the focus of the Supreme Court was on the implementation of its orders. The Court applied the ‘precautionary principle’ to the auto fuel policy. The auto fuel policy focused upon the measures to anticipate, prevent and attack the cause of environmental degradation. These efforts eventually meant that all buses now run on CNG. The transport sector, including private vehicles, was given priority over the industrial sector with regard to the allocation of CNG. Thus, the mission embarked upon by the Supreme Court was successfully accomplished. The ‘Delhi Vehicular Pollution’ case reflects the commitment and dedication shown by the Supreme Court of India to protect the lives of the citizens. Judicial progress was slow, as was the implementation of its directions, but as a consequence of PIL actions Delhi’s atmosphere is now relatively clean.
M. C. Mehta v. Union of India 1)
The tanning industries located on the banks of Ganga were alleged to be polluting the river. The Supreme Court issued directions to them to set up effluent plants within six months from the date of the order. It was specified that the failure to do so would entail closure of business. The Court issued directions to the Central Government, U. P. Pollution Control Board and the District Magistrate concerned. The Court concluded that the closure of industries might result in unemployment and loss of revenue- life, health and ecology had greater importance. The Court is still monitoring the task of cleaning the river Ganga.
The Bichhri Village Case Bichhri is a little-known village in the Udaipur district of Rajasthan. However, in 1988, a group of chemical industries established plants to produce hydrochloric acid and related chemicals for export. Although the production of this acid is prohibited in European countries, there remains a need for it. Thus, a remote village in India became a site for the production of this lethal chemical. ‘Rogue Industries’ commenced production of these chemicals without obtaining the appropriate ‘no objection certificates’ from the pollution control authorities. The factories’ waste products amounted to between 2,400 and 2,500 metric tonnes that were highly toxic. At least 400 farmers and their families in eleven villages were directly affected by the groundwater pollution.
However, in October 1989, a PIL was filed in the Supreme Court by a Delhi based NGO, the Indian Council for Enviro-Legal Action, led by Mr M.C. Mehta. The NGO presented the subhuman living conditions being experienced by the villagers and requested remedial action by the court. The Supreme Court accepted the petition and thus began the legal struggle which continues to this day. Between 1989 and 1994, Orders were passed by the court. They included a request to establish an expert committee to examine the situation in and around the affected area and thereafter provide recommendations for both short- and long-term remedial action.
In February 1996, the Court declared the final order. It stated that ‘absolute liability’ rested with the rogue industries to compensate for the harm caused by them to the villagers in the affected area, to the soil and underground water and that they were bound to take all necessary measures to remove the sludge and other pollutants and defray the costs of remedial measures required to restore the land and underground water. The Court invoked the ‘polluter pays’ principle and empowered the central Government to determine and recover the cost of remedial measures from the industries. The Court ordered the closure of all chemical plants located in the Bichhri area. It is noteworthy that the Court suggested the establishment of dedicated environmental courts for the adjudication of such matters and the establishment of the National Green Tribunal fulfils this long standing demand made by the Court.
In November 1997, the Court required the industries to pay Rupees 37.38 Crores towards the cost of environmental remediation and Rupees 34.28 Lakhs to the villagers, which were not immediately complied with. Finally, in 2011, the Supreme Court imposed a compound interest of 12 per cent on the remedial amount of Rupees 37.38 Crores on the polluter for the 15-year delay in making the payment. The polluters were given two months to make the payment; failure to do so would result in the recovery being made as arrears. The polluting industries had no other option but to comply with the orders of the Court this time. The importance of the Bichhri case is that it allowed the villagers’ grievances to be heard via PIL. The application of Article 21, ‘absolute liability’ and the ‘Polluter Pays Principle’ makes the case a landmark judgment in India’s emerging environmental jurisprudence.
AIR 1997 SC 1228
The idea of ‘sustainable development’ had its influence on the judiciary in interpreting the provisions of law relating to forest. Various dimensions of the problem came to be examined by the Supreme Court in this case. The decision of the Court can be summarised as follows:
The case came back within four months for review of the follow up action as directed by the Court. Interestingly, the Court proceeded to constitute a committee to oversee the implementation of its orders in the north-eastern region of India. Unlicensed saw mills and veneer and plywood industries in the States of Maharashtra and Uttar Pradesh were directed to be closed. All trees felled in the janman areas of Tamil Nadu were ordered to be delivered by the plantations to the State Government.
The orders passed by the Supreme Court clearly demonstrates the failure of executive to ensure compliance with the forest laws of India, so much so that even for the supervision of the implementation of the Court orders, the Court had to constitute a committee, a work which otherwise should have been done by the executive.
Many developing countries look to India as a country where human rights are championed by an independent judiciary and certainly in the area of environmental protection through the means of PIL, the Indian judiciary has led by some landmark examples which aptly shows the commitment of the Courts in India towards this cause.
2003 SC 724, P 731
In this case the court held that preservation of material resources of the community such as forests, tanks, ponds, hillocks is needed to maintain ecological balance so that people would enjoy a quality of life, which is the essence of right guaranteed under art 21. Explaining the concept of the right to life in art 21 of the Constitution, the Supreme Court held in KM Chinnappa v Union of India. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution.