Updated: Feb 26, 2020
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 Delhi Vehicular Pollution Case
(This case may be cited in question relatd to judicial activism as well in upsc exam)
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 eight- year-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, Ganga Pollution case (AIR 1998 SC 1037)
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.
Indian Council for Enviro-legal Action v. Union of India, 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.
T. N. Godavarman Tirumulkpad v. Union of India, (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:
Mining license in forest area without proper approval by the Government is violative of the Forest (Conservation) Act. All on-going activities under such invalid license must cease.
The State Governments have to take necessary remedial measures.
Running saw mills of any kind is a non-forest activity. All saw mills within a distance of 100 kilometres from the border of the State of Arunachal Pradesh are to be wound up.
Responsibility was imposed on each State Government to report on the number of saw mills, actual capacity of mills, proximity to the nearest forest and their sources of timber.
CompletebanonfellingoftreesintheforestsofArunachalPradesh.Felling of forests in other States also suspended except in accordance with working plans.
Movement of cut trees and timber banned.
Each State Government to constitute expert committees to identify forest areas and forests covered by plantation trees and to assess the sustainable capacity of the forest in relation to saw mills.
In State of Jammu & Kashmir, no private agencies should deal in felled trees or in timber.
In Tamil Nadu the tribals who are residing in the forest area to continue to grow and cut trees according to the Government scheme and in accordance with the law applicable.
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.