Implications Of Constitutional Remedies With Respect To Environmental Governance In India - An Analysis
Author: LawSphereX
Category: Constitutional & Human Rights
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IMPLICATIONS OF CONSTITUTIONAL REMEDIES WITH
RESPECT TO ENVIRONMENTAL GOVERNANCE IN INDIA:
AN
ANALYSIS
Gurmanjot Singh, LLM National University of Juridical Science, Kolkata Muskan, LLM, UILS, Panjab University, Chandigarh
ABSTRACT
This paper analyzes the evolution of environmental jurisprudence in India. The paper highlights the change in legal approach towards environmental governance from colonial government era to post enforcement of our constitution. This transmogrification in approach was from governments using legislations to legally exploit natural resources to holding them as trustee for its people. Major initiatives at international level encouraged national government to bring more legislations at par with international conventions. Suitable amendments were made in constitution to make it greener and environmental friendly. Beyond the role played by Legislature, the activist role of Supreme Court changed the environment governance in entirety.
The Apex court by entertaining PILs, taking suo moto cognizance on basis of news reports and using devices like continuing mandamus made the environmental activists call it green court of India. This paper tries to examine that whether existing environmental remedies have been successful in achieving objectives of environmental governance and is there a change in the role of Supreme Court, after constitution of National Green Tribunal. When International lawyers like Polly Higgins are urging to recognize “Ecocide” as international crime, where does Indian law stand? 1 1Saumya Kalia, Criminalising willful environmental damage is harder than it sounds, The Hindu, September 7,
INTRODUCTION
Environmental jurisprudence in India evolved quite gradually. If we delve deep into annals of history, we see that first legislation on environmental governance 2was “The Shore Nuisances(Bombay and Kolaba)Act,1853. ” Under the provisions of this legislation collector land revenue Bombay was empowered to remove any obstruction, nuisance or encroachment below high water mark. With the enforcement of Indian Penal Code,1860 some new penal provisions came into force which prohibited certain kinds of deviant acts. The Penal Code provided offences affecting environment under separate chapter titled “Offences Affecting The Public Health, Safety, Convenience, Decency And Morals. ’’ These provisions penalized defilement of water of public spring or reservoir and negligent acts with poisonous substances that endangered life or caused injury with imprisonment or fine.
Some other legislations like Indian Easement Act also provided for rights of Riparian owner against unreasonable pollution by upstream users. But it can be concluded that these legislations were for some specific object and their aim was not to protect environment. The Fisheries Act of 1897, The Indian Motor Vehicles Act and The Factories Act passed by British Indian government only had some incidental provisions that prohibited some harmful acts that had tendency to pollute environment. Indian Forest Act of 1927 was another major legislation that was product of British rule. Legislation granted uncontested rights over natural resources to government thus allowing unchecked exploitation of natural resources. The major contribution to environmental governance was only made post-independence as India really became welfare state.
However, the constitution during its adoption didn’t contain any substantive provisions relating to environmental governance. But post 1950s state laws pertaining to control of water started coming up. Since Indian state was still at infant stage , government had to bring in lot of legislations to promote developmental policies. These legislations included The Factories Act 1948, Prevention of Food Adulteration Act 1954, River Boards Act 1956, The Mines and Minerals (Regulation and Development) Act 1957, The Ancient Monuments and Archaeological Sites And Remains Act 1958, The Atomic Energy Act 1962, and The Insecticides Act 1968. These all legislations had trappings of environmental governance. The major shift in government’s approach 2 Environmental legislation in India, September 7, 2023, available at https://www. ecology. edu/environmentallegislation.
html#:text=In%201981%2C%20the%20air%20(Prevention,of%20the%20 Activities%20of%20various ( Last visited on September 7, 2023) towards environmental issues came only after historic Stockholm Conference of 1972 on Human Environment. The conference made it apparent for all the attendees to adopt comprehensive legislations addressing health, safety and issues pertaining to flora and fauna. Before 1972, the matters pertaining to environment were being handled by different ministries but after this conference as the obligations of government towards environment started increasing it realized a need for separate department in central government. On the recommendations of Tiwari committee, separate department of environment was created in 1980, which had to be eventually converted into proper Ministry of Environment and Forests (MOEF) in the year 1985.
The government also brought Wildlife protection act 1972, with the aim of providing protection to certain animal and plant species. The Water (Prevention and Control of Pollution) Act 1974 3was passed to create central and state pollution control boards. The water being state subject, the act was in form of enabling legislation. Since constitutional framework lagged behind in provisions relating to environment, the 42nd constitutional amendment of 1976 was brought in to add Article 48A 4, 51A (g) 5 and two entries in list III of seventh schedule 17A and 17B were added. To preserve the forests and check exploitation of their resources, The Forest Conservation Act, 1980 was passed by parliament.
While all these legislations were in force the Bhopal gas leak tragedy of 1984 exposed that still the existing laws were insufficient to keep check on industrial activities those were proliferating due to increase in developmental activities across country. In aftermath of tragedy, The Environmental protection Act of 1986 was passed to promote coordination between central and state governments on environmental issues and to also promote coordination among existing bodies under various statutes. Another major shift came when Supreme Court started invoking article 32 in environmental cases. With the development of PILs, concept of locus standii got diluted which further paved way for class litigation. Article 32 and Article 226 were widely invoked to promote environmental activism.
Article 32 and 226 were so liberally interpreted that court even started awarding hefty compensations in suitable cases. This new trend of environmental litigation emerged and the apex court was flooded with petitions pertaining to environmental
3 Act No. 6 of 1974
4 State shall endeavor to protect and improve environment
5 duty of citizen to protect and preserve environment
matters. Due to increasing pendency of cases, Supreme Court also flagged the issue of creating environmental courts. The government brought in National Environmental Tribunal Act of 1995 but it failed to serve the purpose. Finally National Green Tribunal Act of 2010 was brought to create a central tribunal which would have experts as its members and would adjudicate all environmental matters. After 2010, NGT with its circuit benches is taking up all matters which were previously being taken up by Green Benches of various High Courts and Supreme Court. Now let us try to examine that whether these plethora of legislations and judicial creativity of Supreme Court has been successful in achieving objectives of environmental governance and whether Supreme Court should intervene post constitution of NGT.
WHETHER EXISTING CONSTITUTIONAL AND STATUTORY REMEDIES HAVE
BEEN SUCCESSFUL IN ACHIEVING
OBJECTIVES
OF ENVIRONMENTAL GOVERNANCE?
After going through the history of plethora of legislations we realize that there were abundance of statutory remedies existing under various statutes but the authorities were reluctant to implement them. This forced the judiciary to intervene by exercising powers under various constitutional provisions like Article 32, Article 226, and Article 136. Negligence and ignorance on part of executive led to increase in writ petitions before High Courts and Supreme Court. Initially parties moved courts to challenge decision taken by quasi adjudicatory authorities under various statutes but then with proliferation of PILs parties started directly moving to higher courts. Environmental activists felt it necessary also because sometimes the delinquents were so powerful corporations or multinational companies enjoying patronage of executive that only judiciary could restrain them.
The law of country provided both civil and criminal remedies. But criminal provisions of IPC being insufficient and lenient were rarely invoked. Tort remedies were rarely availed in civil courts since law of torts in India is not expressly recognized. However Supreme Court while exercising jurisdiction under Article 32 widened the scope of these tort remedies by awarding hefty compensations which were subsequently incorporated under various statutes also. The first important case which initiated some concern for environmental issues indirectly was Cooverjee B. Bharucha vs. Excise Commissioner Ajmer6 in which it was held that right
6 Writ Pe((on (Civil) 232 of 1953
of every citizen to pursue any lawful trade or business is subject to such reasonable conditions as may be deemed by governing authorities of country essential for safety and health of its people. The courts have to balance environmental interests with fundamental rights to carry on any occupation under Article 19 of constitution of India. Another case which discussed some environmental issues was Municipal Council Ratlam vs. Shri Vardhichand & Ors7. in which it was held that magistrate can compel municipality to make drains and improve sewage affecting the health and convenience of residents under section 133 of Code of Criminal Procedure. This decision permits enforcement of civic rights under municipal law also where neglect has led to public nuisance. The decision of Supreme Court in State of Himachal Pradesh vs.
Umed Ram Sharma8 opened the gates for filing PILs in environmental issues. It was held that affirmative action can be taken by court by issuing specific directions in cases of government inaction or lethargy. However first landmark decision on environmental governance came in Rural Litigation & Entitlement Kendra vs. State 9 also known as Dehradun quarrying case. The case was in the form of PIL filed under Article 32 of constitution of India. It was held that due to adverse impact of mining quarries need to be categorized under various categories and the ones having most hazardous impact directed to be closed down permanently. The court further held that in matters of grave public importance court is not bound by procedural technicalities and it can issue suitable orders.
While the Bhopal gas leak tragedy was being addressed another unfortunate oleum gas leak incident happened in premises of Shriram foods and fertilizers which was subsidiary of Delhi textile mills. Thus Petition was filed by Mr. M. C. Mehta in the nature of PIL under Article 32 to not allow Shriram fertilizers to operate its plants. The court in M. C. Mehta vs. Union of India10 (Oleum gas leak case) held that industry can operate its plants but subject to strict observance of conditions laid by court. The court impressed upon government to evolve a national policy for location of chemical and other hazardous industries where population is scarce. Since environmental cases were increasing, court also expressed need to set up environmental courts on regional basis with one professional judge and two experts from ecological sciences.
After this verdict, the series of landmark decisions one after another, changed the course of environmental jurisprudence in
7 (1980) 4 SCC 162
8 (1986) 2 SCC 68
9 AIR 1988 SC 2187
10 AIR 1987 SC 965
India. In M. C. Mehta vs. Union of India & Ors. (Mehta–I11), PIL was filed against Ganga water pollution caused by effluent discharge from tanneries located at Jajmau area in Kanpur. No effective steps were being taken up by authorities under suitable legislations. The court held that tanneries cannot be allowed to carry on industrial activity unless they set up at least primary treatment plants, which is minimum requirement irrespective of their financial capacity. The court also held that life, public health and ecology have priority over unemployment and loss of revenue problem. Just like industry without minimum wages cannot be allowed to exist, a tannery which cannot set up primary treatment plant cannot be allowed to exist. Again in M. C. MEHTA vs.
Union of India12 (Mehta-2), the Supreme Court directed High courts to not to grant stay ordinarily in criminal proceedings initiated by boards constituted under various environmental statutes against industrialist responsible for causing such pollution. In the year 1989, Bhopal gas leak verdict also came out. In Union Carbide vs. Union of India[(1989)2 SCC 540], Union Carbide was held to be subject to jurisdiction of Indian courts and was ordered to pay US $470 million as compensation for negligence on its part. Whether this amount was adequate or not is still debated. But in this case court used the tortuous remedy to award compensation. Another case of Virendra Gaur vs. State of Haryana13 imposed more obligations on government with respect to its approach towards environmental issues.
It was held that Article 21 includes within its ambit protection and preservation of environment, ecological balance free from air and water pollution without which life cannot be enjoyed. Constitutional imperative on state governments and municipal corporations to not only ensure and safeguard environment but also its their adequate duty to take measures to promote, protect and improve natural environment. The word ‘’Environment’’ includes within its spectrum hygienic atmosphere and ecological balance. However, the landmark judgement of Vellore citizens case14 made the underpinnings of environmental jurisprudence more consolidated in India. In this case Supreme court discussed in detail two most important principles of environmental jurisprudence i. e. precautionary principle and polluter pays principle.
The court in this case held that principle of sustainable development has to be adopted as balancing concept and while industry is necessary for
11 (1987) 4 SCC 463
12 1988) 1 SCC 471
13 (1995) 2 SCC 577
14 Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647
development but high pollution caused by them cannot be sustained. The court laid emphasis on precautionary principle and polluter pays principle and held that these two principles are acceptable as part of domestic law of country and should be implemented strictly. The court further held that precautionary measures should be taken by state governments and statutory authorities and that lack of scientific certainty cannot be a ground for postponing such measures where there is serious threat to ecology. The onus is always on polluter industries to prove that their actions were environmental friendly. The polluter industries were held liable to pay compensation to individuals affected and as well as make good ecological damage. The court also held that tanneries rendering river water unfit for human consumption cannot be allowed to operate unless they install pollution control devices.
Such industry was also held liable to compensate for past pollution generated by them. So, pollution fine of Rs. 10,000 imposed on each tannery. Madras High Court was also directed to constitute green bench to deal with all environmental matters. The developments in international law on environmental governance influenced the domestic legislation of India. UN conference on human environment held in Stockholm in year 197215 was a landmark event towards protection of deteriorating environment at international level. Also, the Rio Declaration on environmental development in 1992 16led the jurisprudence on environmental protection to reach another milestone. Supreme Court in Indian Council for Enviro Legal Action vs.
Union of India [(1996)3 SCC 212] held that once principles accepted as part of international customary law also then there would be no difference in accepting them as part of domestic law. From analyzing the major landmark judgements and going through the evolutionary history and framework of plethora of legislations we see that existing constitutional remedies and statutory remedies have been widely successful only due to activist approach followed by Indian Supreme Court. Since post LPG reforms the industrial activity increased the conflict between environment and humans also increased. This led to increase in litigation before Supreme Court directly because sometimes violator being powerful multinational corporations seldom exercised influence over executive and it was always judiciary which had to intervene.
Sometimes Apex court even used devices like continuing mandamus to issue multiple directions and have court monitored policy implementation and it was largely successful also except few cases like that of interlinking
15 Stockholm Conference of 1972 on Human Environment,” UN Environment Programme, available at
https://www.unep.org/
16 UN Documents, 1992, accessed https://www.un.org/documents/
of river projects across country where court failed to achieve the desired outcome. However, with the constitution of NGT, the work of Supreme Court has been largely taken over by NGT. The next question that arises is will the tribunal be equally powerful as Supreme Court and will continue to carry forward that legacy. Whether Supreme Court should intervene post creation of NGT? The 186th report of Law Commission of India had recommended the constitution of specialized tribunal to strengthen and revitalize environmental governance. Since the litigation on environmental issues increased before High Courts and Supreme Court, the pendency of cases also started increasing which led to delays in final decision. Another challenge was that judges were not the experts in ecology.
Since judicial intervention was always necessary due to shoddy environmental impact assessments done by executive, the courts also lacked experts as its members. After LPG reforms of 1991, the conflict between development and ecology also increased. So, in order to ensure that developmental projects are not delayed or compromised it was necessary to have mechanism which could bring in expediency in judicial decision-making process. The Parliament of India finally enacted National Green Tribunal Act of 2010. The act of 2010 conceived NGT as specialized forum to deal with all multidisciplinary issues, both as original as well as appellate authority. The specialized forum was also made free from the rigors of Evidence Act applicable to normal courts.
So, post incorporation of NGT, the way environmental remedies can be availed under Indian law has changed as now NGT has assumed the central role in environmental litigation with Supreme Court acting just as monitoring authority. Section 14 of NGT Act gives powers to tribunal to settle disputes. The Tribunal is conferred with jurisdiction over all civil cases where substantial question relating to environment arises with respect to statutes in 1st schedule of act. Section 16 confers right to file second appeal with tribunal if first appellate authority under various statutes has already decided matter in appeal. Further Section 22 of NGT Act provided that appeal can be made to Supreme Court within 90 days from date of communication of award. The conferment of jurisdiction under these sections created lot of confusion regarding use of already existing remedies.
Since High Courts and Supreme Court were already entertaining PILs under Article 32 and Article 226 of constitution of India which were being listened by green benches, the role of tribunal came in question. The questions that came before courts were that: whether high courts have been bypassed by providing direct appeal to Supreme Court under section 22 of NGT Act? Whether petitions can still lie with High Courts under Article 226/227 of constitution? What will be the scenario if High Court and NGT bench takes up matter concurrently? Whether Supreme Court should still entertain PILs directly as it enjoys more powers than tribunal? Whether the decision by tribunal will provide proper justice when right to environment is fundamental right under Article 21 which should have been instead dealt carefully by Supreme Court?
We get answers to these questions after analyzing number of judgements of various High Courts and Supreme Court after the enforcement of NGT Act. The High Court of Bombay in case of Vanshakti & anrs. Vs. Union of India 17 held that keeping in view the scheme of NGT Act it can be safely concluded that the environmental issues and matters covered under NGT Act should be litigated before NGT. Such approach was necessary to avoid likelihood of conflict between orders of High Court and NGT. Thus, it was directed by High Court that after coming into force of NGT Act the matters which are covered under schedule 1 stand transferred to tribunal and can be instituted only before NGT. This will help in rendering expeditious and specialized justice in the field of environment.
It was further held that litigating party must realize that in any event if the opposite side approaches the Supreme Court litigant of other side would have to defend the case before Supreme Court. The remedy of direct appeal to Supreme Court from NGT’s decision under NGT Act cannot be seen as denial of access to justice to litigants in field of environment law. In Mantri techzone vs. Forward foundation and ors18. It was held by Supreme Court that NGT has special jurisdiction for enforcement of environment rights. The court recognized that NGT was set up under entry 13 of list-1 of seventh schedule to enforce Article 21 with respect to environment. The landmark judgement of Municipal Corp. of Greater Mumbai vs. Ankita Sinha 19 further clarified the role of NGT.
Supreme Court not only affirmed the suo motto powers of NGT but also held that NGT being distinct from other tribunals can hardly remain mute spectator till time when someone knocks at its door. It is not desirable for NGT to wait till it receives application during exigency but it has to act on its own motion. It was further held that NGT is not at par with other tribunals but its most special among all
17 2021 Bom HC
18 (2019) SC
19 Civil Appeal no.12122-12223 of 2018
tribunals as it protects fundamental right to environment under Article 21 of Constitution. Now NGT is even entertaining PILs like High Courts and Supreme Court. Now the trend is emerging that High Courts and Supreme court are refusing to entertain even PILs pertaining to environmental matters. On 21st August 2023 Supreme Court dismissed petition against construction of Tamil Nadu government’s planned offshore memorial for DMK patriarch Karunanidhi20. The court remarked that if this pertains to environmental issues why not let NGT hear it. Mr. Dave tried to persuade bench that PIL has been filed by fishermen to enforce their fundamental right to livelihood and therefore plea can be directly maintained before Apex court. However, the bench was not convinced and thus petition was dismissed.
The Supreme Court is only dealing with cases which were pending with it before NGT Act came into force. Once the tribunal started working, Supreme court stepped aside and acted only if Appeal came to it against decision of NGT or only if some confusion arose as to powers and working of tribunal. While testing the constitutionality of Section 22 of NGT Act in M. P. High Court Advocates Bar Association vs. Union of India21 it was held by Supreme Court that by way of providing direct appeal to Supreme Court, the section is not bypassing High Courts. But the decision of tribunal can be challenged before High Court also. The jurisdiction of High Courts under Article 226 is not barred. So the constitutional remedies can still be availed but now they can rarely be availed at first instance.
The party is now expected to approach first circuit bench of NGT even if it doesn’t exist in his state and once it gets decision it can either challenge it before High Court under Article 226 of constitution or by virtue of section 22 of NGT Act can directly file appeal before Supreme Court. But since Supreme Court being highest court of land, it should continue direct intervention also at first instance in rarest of rare cases if the matter involves glaring public interest. This direct intervention should not be rule but only exception because it being a constitutional court still enjoys much higher powers than that of NGT. Currently NGT operates with its principal place of sitting at New Delhi and four other circuit benches at Bhopal, Pune, Kolkata and Chennai.
Due to lack of regional benches the access to justice gets denied if at first instance High Courts refuse to entertain petition pertaining to environmental matters. Thus, direct intervention by courts sometimes become necessary in public interest. 20 Utkarsh anand, SC rejects PIL against Tamil Nadu’s proposed pen statute in Karunanidhi’s memory, August 1 2023, available at https://www. hindustantimes. com/india-news/supreme-court-dismisses-pil-against-tamil-nadus-offshore-memeorial-for-karunanidhi-101690873383056. html
21 2022 livelaw SC
495 CONCLUSION
After going through the above discussion, we analyze that the evolution of environmental jurisprudence in India has been influenced by number of factors. These included the developments at international law and activist approach of Supreme Court. The liberal and environmentally friendly interpretations given by Supreme Court further ensured that the object of legislations is served in promoting environmental governance. However, now the focus should shift from mere environmental protection to environmental justice. The fact that emerge after analyzing these judgements is that courts were always more concerned about protection of environment than promoting environmental justice. 22 Access to environmental justice23 means access to benefit sharing from natural resources with the tribal and local communities.
In the year 2006, The Forest Dwellers (Recognition of Forest Rights) Act was passed to address the historical injustice experienced by tribal communities and establishes their rights over natural resources. The Act ensures this by providing for prior consent of local community before forests land can be acquired by state for extraction of resources or other developmental projects. While still from achieving its goals the act has triggered number of new cases led by tribal communities. So now the debate is not only about environmental protection but also about environmental justice. Our constitution may need some amendments to make it more green when innovations around globe are going on.
The purpose of environmental justice is to protect the rights of tribal and local communities and to ensure that the benefit of development reaches to them equally and the process doesn’t become exploitative for them. The aim should be to increase the access to environmental justice for poor and sustainable governance of environment. In India we cannot achieve this by merely having 5 environmental tribunals. We need to create a greater number of green courts to ensure environmental justice or the High Courts should keep intervening at first instance to prevent access to justice. 22 “Environmental Justice: Protecting Rights of Local Communities,” World Resources Institute, accessed https://www. wri. org.
23 UN Environment Programme, https://www.unep.org.