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Critical Developments in the Essential PILs filed on Environment Protection in India to the SC

Public Interest Litigation, as a concept is very well entrenched in India. But in the earlier days, there used to be problems of Locus Standi. In JM Desai v. Roshan Kumar1, the SC and the relevant HC refused to interfere in a matter where a non-objection certificate (NOC) was granted to a cinema house when such a grant was against the rules. This happened because the courts were of the view that the applicants had no locus in the matter. The situation now seems to have changed as any person acting bona fide and having sufficient interest can move to court for redressing public injury, enforcing public duty, protecting social and collective rights and interests, and vindicating public interest.2

Courts have widened the dimensions of substantive rights to health and a clean and unpolluted environment. In most cases, this progress was made with the aid of PIL. Thus, in order to reap the benefits of substantive environmental rights, courts have opened a path of processual justice, without enslaving themselves to procedural compulsions. In Tarun Bharat Sangh, Alwar v. UOI3, the SC upheld the contentions of the petitioners and allowed the writ in the case where the legality of grant a of mining license was into question. The observation in the case was important as it laid emphasis on the rationale of PIL in environmental issues.

The cause of the environment is taken up through PIL was championed by a wide spectrum of people in the society- lawyers, an association of lawyers, environmentalists, groups and centers dedicated to environment protection and forest conservation, welfare forums including those for tribal welfare and consumer research centers. While in some cases, letters were being considered as writ petitions, in some other paper reports induced judicial action. The power of the courts to issue a direction under Articles 226 and 32 has attained great significance in environmental litigation. Courts have used these powers to remedy past maladies and to check immediate and future assaults on the environment. PIL has now come to stay in the field of Environmental Litigation.

Landmark Cases before the Apex Court of India and the Evolution of Doctrines-

In MC Mehta vs. UOI4, the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industry by interpreting the scope of Article 32 to issue directions and orders. According to the court, this power could be utilized for forgoing new remedies and fashioning new strategies. The new remedy, based on the doctrine of absolute liability, was focused on the sludge case. 5

Besides directing to give compensation, the court held the view that people suffering from lethal waste left behind by a group of chemical industries could file suits as indigent persons and if they did so, the state government should not oppose the application for leave to sue in such manner. The polluter is responsible for compensating and repairing the damage caused by his omission. This is the quintessence of the polluter pays principle. Absolute liability of hazardous and inherently dangerous industry is a high watermark for the development of the polluter pays principle. Despite its deterrent impact on potential polluters, the doctrine is limited in the sense that it can be applied only at the remedial stage, ie, after pollution has taken place.

In Sterile Industries Limited v. Union of India6 the appellant company was running its plant for a period from 1997 to 2012 without renewal of the consent and without compliance with essential conditions. The court ordered to pay a heavy deterrent compensation after considering the magnitude, capacity, and prosperity of the company. When it decided to base the correlation theory in determining liability, Deepak Nitrite was not seen to have been brought to the notice of the court. However, the court clarified that the award of compensation of Rs. 100 crores will not be bar against any claim for damages for the period in a civil court or any other forum in accordance with the law.

Another important principle is the precautionary principle. Polluters try to hide behind the need for scientific certainty. The Precautionary Principle does not brook this hide and seek the policy of the polluters and potential polluters. The ‘polluter pays’ principle and ‘precautionary principle’ was accepted as a part of the Indian Legal system in the Sludge and Vellore Citizens Forums Case7, where the apex court directed assessment of the damage to the ecology and environment and imposed on the polluters the responsibility of paying compensation8. Though in the latter case, the SC ordered the closure of all tanneries in certain districts, which were not connected with common effluent treatment plants, the precautionary principle came to be applied in MC Mehta v. Union of India9, for protecting the Taj Mahal from air pollution. Expert studies proved that emissions from coke or coal based industries in the Taj Trapezium had damaged the effect of Taj.

In a later MC Mehta Case10, Mathura refinery was found emitting inexorably high quantities of SO2 per hour causing health hazard to human beings and creating harmful impact upon Taj Mahal. Having noted the inordinate delay of authorities in examining the matter, the court issued notice for examining the orders as well as for taking contempt proceedings.

AP Pollution Control Board v. MV Nayudu11 is a remarkable landmark in the growth of precautionary doctrine. The Nayudu case highlighted the precautionary principle and reiterated the dictum that ‘ the burden is on the developer or the industrialist to prove that his action is environmentally benign ‘. In Narmada Bachao Andolan v. UOI12, the court considerably narrowed down its scope. The doctrine was held to apply only in the case of polluting or other projects or industries where the extent of damage likely to be inflicted is not known. In the State of TN v. State of Kerala13, the plea of a possible dam breakage was raised but downed in the Narmada proposition of foreseeability of dangers. Different from Narmada, the extent and intensity of the damage that may be caused by the bursting of a dam is unascertainable and irreversible, especially when apprehension was on the breakage of a dam built more than a century ago. The court missed the opportunity to apply the precautionary principle and to seek at least for further real scientific studies as was done in a few cases in the past. In the same year of 2004 in one of the MC Mehta Cases14, the SC suggested anticipatory action to prevent harm, saying that ‘ harm can be prevented even on reasonable suspicion and that it is not always necessary that there should be direct evidence of harm to the environment’.

Two Research Foundation for Science cases of 2005 is significant in the application of the precautionary approach. For protecting coastal ecology, the apex court applied the precautionary principle, in S Jagannath v. UOI15, and gave a direction to demolish all intensive, semi-intensive, and aquaculture farms.

Another very important doctrine in environmental jurisprudence is the doctrine of ‘Public Trust’. Recognition of this doctrine for the protection of natural resources is another judicial innovation. In MC Mehta v. Kamal Nath16, the SC did not hide its indignation at the deviation of the natural flow of a river and using the forest for non-forest purpose, namely, permitting a motel to extend its facilities.  The SC approved the doctrine of public trust and imposed on the motel; the responsibility of restoration of the environment and the ecology of the area. In MI Builders Pvt. Ltd. v. Radhey Shyam Sahu17, the SC applied the doctrine when it found that the Lucknow mahapalika entered into a contract with the petitioners for constructing an underground shopping complex beneath a park, the only busiest open space in the busiest part of the area. Although the major part of the work was over, the court held that the contract was without tender, and also against public trust doctrine as the mahapalika had deprived themselves of their obligatory duties as a trustee to maintain parks. The underground market changed the garden of historical importance into a terraced garden.

The SC over the years has also stressed on the concept of sustainable development. It has condemned the unlimited exploitation of natural resources. It has stressed upon the fact that natural resources shall be used in such a way that they are saved for future generations. In Common Cause v. Union of India,18 indiscriminate and haphazard mining operations in Odisha were held to be contrary to this universally accepted principle. The court found it necessary to impose controls on mining, have a fresh and effective mining policy.

In Rural Litigation Kendra v. State of UP19, limestone quarrying was ordered to be stopped in a phased manner when it was found hampering the ecological balance of Missouri. Those who were deprived of their occupation were rehabilitated. In one of the Godavarman cases,20the court ruled that balancing between the maintenance of natural resources and protection of livelihood of people was important and was the crux of the matter. In Arjun Gopal v. UOI21, the SC went into the evil impact of fire crackers and said that they make serious inroads into the rights of the citizens, especially those of the poor and underprivileged who must breathe polluted air without any protective means. In Govindvarman’s case22, the court asked the state government and the central government to appoint committees to study several problems and to oversee the implementation of orders related to forest protection.

There are a large number of PILs as WPs pending to be decided by the apex court. Most of the matters related to environmental clearances and industrial pollution.

Endnotes

1.  1976, SC.

2.  SP Gupta v. Union of India, 1982 SC.

3.  1992, SC.

4.  AIR 1986 SC

5.  Indian Council for Enviro-Legal Action v. UOI, 1996 SC.

6.  2013,SC.

7.  Vellore Citizens Welfare Forum v. Union of India, 1996, SC.

8.  MC Mehta v. Kmal Nath, 1997, SC.

9.  1997, SC.

10.  MC Mehta v. UOI, 2012, SC.

11.  AP Pollution Control Board v. MV Nayudu, 1999 SC.

12.  2000, SC.

13.  2014, SC.

14.  2004, SC.

15.  1997, SC

16.  1997, SC

17.  1999, SC

18.  2017, SC.

19.  1985, SC

20.  TN Godavarman Thirumulpad v. UOI, 2006, SC.

21.  2017,SC

22.  TN Govindvarman v. UOI, 1997, SC.

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