CV

Name :- Author-

Mayuri Bahuguna

Co-author- Apoorva Gaur

1. Contact :- Room No. 104, Block C, Abhiyan Appartment,
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2. Name & Address of Institute :- Institute of law, Nirma University,
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3. Courses currently being pursuing: - B.A.LL.B. , 3rd year.
5.

Topic :- JUDICIAL ACTIVISM : A STUDY OF COURT'S APPROACH

TOWARDS ENVIRONMENT IN INDIA

DECLARATON

We hereby declare that the researched title JUDICIAL ACTIVISM: A STUDY OF COURT'S
APPROACH TOWARDS ENVIRONMENT IN INDIA is true and complete in all material
aspects to the best of our knowledge. The text reported is the outcome of our own effort and no
part of it has been incorporated without due acknowledgment of the resources refereed to.

JUDICIAL ACTIVISM: A STUDY OF SUPREME COURT'S

APPROACH TOWARDS ENVIRONMENT IN INDIA
ABSTRACT:

Judicial activism has been described as the provision related to the same as the Heart of the
Constitution , since this power is used to protect and enforce the fundamental rights of the
citizens. In todays emerging jurisprudence, an environmental right, which encompasses a group
of collective rights, is described as tThird Ggeneration rights. The Ffirst Ggeneration rights
are generallybeing political rights, while second generation rights are economic and social
rights. The recognition of environmental rights as a fundamental right under Article 21 (Right
to Life) of the Indian Constitution has given a constitutional sanctity to the right to enjoy a clean
and healthy environment. At present most environmental actions in India are brought under
article Article 32 and article Article 226 of the constitutionConstitution. Courts have made use of
theirse powers to remedy past mala-fides and to check immediate and future assaults on the
environment. The latest view adopted by the courts regarding environment and development is,
that there can neither be development at the cost of environment, nor environment at the
cost of development. Therefore in the light of this the judiciary not only exercises its role as an
interpreter of the law but also had to take upon itself the role of the constant monitoring and
implementations. In recent years, the Supreme Court has taken on the mantle of monitoring
forest conservation measures all over India, and a special Green bench has been constituted
to give directions to the concerned governmental agencies. Another crucial intervention was
made in Council for Environment Legal Action v. UOI, wherein a registered NGO had sought
directions from the Supreme Court, in order to tackle ecological degradation in coastal areas.
Now, the main objective of this paper is to analyze: To study the role of Supreme Court in
guaranteeying the right of pollution free environment.

INTRODUCTION:
In Ttodays society, interaction with nature is so extensive that the environment in question has
assumed proportions affecting all humanity. Industrialization, Urbanization, depletion of natural
resources of energy, has have all led to the deterioration of environment. While sScientific and
technological progress of man has invested him with immense power over nature, . it
Simultaneously, it has also resulted in the unthinking use of the power, encroaching endlessly
on nature1. It is in the last forty years, that a growing concern has been shown for the
environmental issues. Recycling of discarded polythene has assumed the same concern and
1 Sri Sachidanand Pandey v. State of W.B., AIR 1987 SC 1109

importance, as was shown for the holes in the ozone layer. Thereby some Legislative legislative
measures were taken in the last thirty yearssince, and some statutes were made regarding the
protection of environment i.e., Air (Prevention and Control of Pollution) Act, 1981, Environment
(Protection Act), 1986 etc. The objectives of the all the statutes pertain to the nature and the
quantity of the pollutants and their effects on their immediate surroundings. The necessity to
protect bio-diversity also engaged the attention of Supreme Court of India in Research
Foundation for Science Technology and Ecology v. Ministry of Agriculture2. Therefore a need to
check environmental pollution was felt by the Supreme Court of India in the case of A.P.
Pollution Control Board II v. Prof. M.V. Naydu3. The law commission was requested to consider
the review of environmental laws and suggestions were made that the environmental Courts be
set up.

JUDICIAL ACTIVISM:
Now a stage has been set for dealing with public health and the effects of pollutants on man, and
also for the concern for the environment and the impact of the pollutants on the atmosphere, as a
whole. This is all because of by the interest which the judicial System has taken in this discipline
the judiciarys strong stance for clean environment. The Judicial Activism has played an active
role in this regard. The fact that now we have a clear picture of earth Earth from the space, and as
to how much damage has already been caused, has led to an increasing interest in the planet we
inhabit. The desire to leave a pollution- free planet for the generations to come, and the
awareness of the danger which has already been caused, is responsible for this development. An
examination of the skyline in Delhi would reveal clear sky, clean buildings and whenever strict
measures have been taken water life is returning to the rivers and canals. Where strict measures
were taken, the horizon revealed a clear sky, a sight of life returning to Nature.

ROLE OF JUDICIAL SYSTEM:

The judiciary, in their quest for innovative solutions to environmental matters within the frame
work of Ppublic interest litigation, looked to constitutional provisions to provide the court with
2 (1999) 1 SCC 655
3 (2001) 2 SCC 62

the necessary jurisdiction to address specific issues. In the quest, Articles 142 afforded the
Supreme Court of India with considerable power to mould its decision in the order that complete
justice could

be done. As the Supreme Court of India is the final authority as far as matters of

constitutional interpretation are concerned, it assumed a sort of primal position in the Indian
environmental legal sSystem. ButHowever, there is a constant controversy between development
and environment. In Sachidanand Pandey v. State of W.B.4 (Calcutta Taj Hotel Case), the Court
permitted the construction of a hotel near a land belonging to the Calcutta Zoological Garden,
Stating stating that tourism was important to for the economic progress of the country. At other
times, the Court has stated that it is not in the public interest to require the Court to delve into
those areas that are the functions of the executive. The Supreme Court of India highlighted
Professor Joseph Saxs doctrine Doctrine of public Public trustTrust, obligating conservation by
the State. Thus in M.C Mehta v. Kamal Nath5, the court Court held that the State, as a trustee of
all natural resources, was under a legal duty to protect them, and the resources were meant for
public use and could not be transferred to private ownership. Thus, it is possible to see that
although there have been initiatives from the legislature and the eExecutive, the Judiciary has
taken a the lead in terms of the actual immediate effect its actions have had on environment.

THREATS TO ENVIRONMENT SHOULD BE ANTICIPATED AND MET:

Keeping in mind, the level of pollutants in the atmosphere and its consequences, like on Taj
Mehal Mahal, which had a damaging effect by the industries near to it which were causing air
pollution, the Supreme Court gave several directions. It was observed by the court that this
pollution has to be eliminated at any cost. Not even one percent chance can be taken where the
human life apart, from the preservation of the a prestigious monument like the Taj is involved.
Taking note of the precautionary principle, it was observed it was observed that pro-environment
measures must anticipate, prevent and attack the cause of environmental degradation. It was
further observed that the burden of proof is on the industries and they have to show that the
operation with the aid the of coke, or coke is environmentally benign. 292 industries were
directed to switch over to the natural gas as an industrial fuel. Those industries which were
unable to get the gas connections were supposed to bring an end to their activities. Reference
4 AIR 2007 SC 1109
5 (1997) 1 SCC 388

was also made to the decisions given in Vellore Citizen Welfare Forum v. Union of India 6, and
also to the Enviro Legal Action v. Union of India7. In the case, of Rural Litigation and
entitlement Kendera v. State of U.P8, the Supreme Court was aware of the fact that the order
pertaining to the closure of limestone quarries would cause hardship. but However, this has to
be done and it is observed that it is a price which had to be paid for protecting and safeguarding
the rights of a people, to live in a healthy environment with a minimal disturbance of a ecological
balance and without avoidable hazards to them, to their cattle, to their home and agriculture.
Directions were given regarding land use were both for relocating the industries as well as for
those individuals who decide to close down and not to relocate. With regard to the package of
compensation proposed for the workman the view expressed was that the earlier directions
given were on the lower side and as more than three years had elapsed between the matters
being reconsidered, directions were accordingly given to pay six years wages instead of one
years wages. These six-year-periods were to be applicable to those industries who were not
relocating and which had been closed down.

LANDMARK JUDGEMENTS BY SUPREME COURT:

1. Dehradun Lime Quarries Case9:
While closing down lime Quarries in Dehradun mining area, the court held that:
Preservation of the environment and keeping the ecological balance unaffected is a task which
not only government, but every citizen must undertake, as well. It is a social obligation and every
citizen is reminded that it is his fundamental duty as enriched in Article 51A (g) of the
Constitution.

2. Ganges Case10
6 1996 AIR SCW 339
7 1996 AIR SCW 1069
8 AiR 1987 SC 359
9 (1987) 1 SCR
10 MC Mehta v. Union of India, (1987) 4 SCC 463.

In this case, Supreme Court in 1985 closed down 185 tanneries and 191 other industries in U.P
and many other states of West-Bengal and Bihar. It has ordered industries to install effluent
treatment plants and air pollution control devices. While closing down the court held that we are
conscious that the closing of the industries may bring unemployment, loss of revenue but life,
health and ecology have greater importance to people.
3. Vehicular Pollution Case11
On a petition filed for reducing vehicular pollution in the country, the Supreme Court of India in
a far reaching order directed the Union Government to provide lead free petrol to four
metropolitan cities and to supply petrol with maximum lead content in the entire country. The
automobile manufacturers were ordered to equip new vehicles with catalytic converters so that
they could run on lead free petrol. The court also asked the Union Government to convert all
Government vehicles and public transport to run on CNG fuel or lead free petrol with catalytic
converters.
4. Stone Crushers Case12
The Supreme Court in other landmark judgment closed down stone crushing units in Delhi and
made them shift to Stone-crushers Zone in the state of Haryana. The court held that we are
aware of the fact that environmental changes are the inevitable consequences of industrial
development in our country, but at the same time the quality of environment cannot be permitted
to be damaged by polluting the air, water and land to such an extent that it becomes a health
hazard for the residents of the area.
5. Environmental Awareness Case13
The Supreme Court of India delivered another landmark judgment for promoting environmental
education and awareness in country. The centreCentre directed the Central and State
Governments to make Environment a compulsory subject in schools. The court also directed that
the Central Government to issue appropriate directions to the state and the Union territories to
enforce, as a condition for issuing of a license to cinema halls, video parlors, the showing, free of

11 W.P No. 13029 of 1985.

12 MC Mehta v. Union of India.
13 (1992) 1 SCC 358.

charge at least two slides or messages on environment in each show undertaken by them. It was
directed to show one regular programme of a longer duration each week.
6. Taj Mahal Case14
In order to save the Taj Mahal, and other historical monuments at Agra, the Supreme Court of
India gave directions that no coal-based industry could operate in the Taj Trapezium around the
Taj Mahal. The polluting industries have been directed either to switch over to gas fuel or to
relocate outside the Taj Trapezium and the State Government has been directed to provide
assistance and incentives to such relocating industries. The Court also directed that the
Government of India and the State of Uttar Pradesh should develop a Green Belt around the
Taj Mahal and provide uninterrupted power supply to Agra to curb the use of diesel generators.
7. The Coastal Area Case15
The coastal area of India is having a fragile and unique ecology are being threatened by the
setting up of a hazardous industries, mis- utilization of beaches, mushrooming of unplanned
developmental activities, thereby damaging the delicate eco-system.
In a notification issued under the Environment Protection Act, 1986 and Environment Protection
Rules, the ministry of Environment and forest declared coastal stretches as Coastal Regulation
Zone (CRZ)16. In the notification it was stated that the State Government and Union Territories
have been slow to formulate coastal management plans.
8. The Prawn farming Case17
The Supreme Court in this case after due admonition gave judgment that:
a. No shrimp cultural pond could exist within the coastal regulation zone and only traditional and
improved traditional shrimp farming could be carried out in the area.
b. The authority was to enforce the precautionary principle and the polluters pay principle.

A LEGAL PATHWAY: BROAD RIGHTS

14 (1997) 2 SCC 353

15 (1996) 5 SCC 281
16 Environmental Guidelines for Development of Beaches and Coastal Regulation Zone
Notification , 19 February 1991.
17 (1997) 2 SCC 87

The justices have worked with lawyers and citizens to encourage conformity of government
practices, and create policy change18.The case material shows that the petitioners and justice both
have invoked the Directive Principles and Fundamental Rights pertaining to environmental
quality, and remedy of advance problem solving over crucial pollution problems. The justice in
the environmental cases described here has demanded response and actions from the government
organizations and industrial agencies and also from those who made the policies and
enforcement of laws.

They have also appointed commissions and reviews to deliberate

problems, analyze them, find their solutions and check the practice of government agencies.

RECENT

ORDERS

BY

SUPREME

COURT

IN

ENVIRONMENT

PROTECTION CASES:
Recently Supreme Court in the mission of Clean River Ganga asked and gave a task to the
National Green Tribunal that the industries that are polluting the river Ganga must be closed
down which fails to install adequate anti-pollution measures to treat the industrial effluents. The
court asked the Centre and the Central Pollution Control Board to suggest as to what actions was
taken against the heavily polluting industries which were inspected and found to violate Zero
discharge norm.
Another in ongoing Haryana Mining case, the hearing is likely to get priority over other cases
since it is a project related to the forest areas, which are of utmost importance.
The order delivered by National Green Tribunal in the matters of Vardhman Kaushik v. Union of
India & Ors., which was regarding air pollution resulting from the various activities i.e. motor
vehicles, plastic burning, fire crackers and industrial emissions.
Again Supreme Court declared that the mining of iron ore and Manganese ore in the forest land
of Odisha was illegal. This must have been obtained due to the instance that the environmental
clearance might have got cleared but not the forest clearance.
Supreme Court had applied a stay on the hydro projects on the river Alaknanda and Bhagirathi
river basins in Uttrakhand unless the centre comes out with the detailed environment and
ecological impact report on each of the 24 ventures.

CONCLUSION:
18 Although justices initiate this breadth, they are also frustrated by it. In Cmdr Sinha v. Union
of India, justice Kirpal reprimanded the petitioner for straying from its original prayers. Personal
observations during February 8, 2001 court hearing.

In India, the courts are very conscious of the special nature of environmental rights, considering
that the loss of natural resources cannot be replenished. It is easier In in India, the courts are very
conscious of the special nature of environmental replenished. It is easier to reform the
malfunctioning of human institutions, and to provide redress for most injuries stemming there
from, than to restore a polluted river or a denuded mountain to its pristine glory or to bring back
the rain forests and rare species that have disappeared from many parts of the world. Almost all
the nations in the world are signatories to the Rio Declaration and various other International
covenants and treaties on environmental issues, and have enacted laws in this respect, although
the enforcement of such laws has sometimes been slow and tardy. The time has come for NGOs
and concerned citizens to use the law effectively for the defense of the environment in their own
countries. To achieve this, it is imperative that awareness be created, at the grass roots level, of
environmental laws, constitutional rights and obligations to protect the environment, as well as
the landmark judgments delivered by various courts. The authorities will not protect the
environment unless there is a strong people's movement supporting environmental issues. The
use of law, environmental awareness and grass roots action can play a major role in the
protection of the environment and human rights.
Now overall the study emphasizes the necessity of improving the functioning of the liability
system by making necessary changes not only in the substance of law but also in the working
condition of the courts to protect and improve environmental quality in India.

BIBLIOGRAPHY:
1. W.P. No. 13029 of 1985 Doabia T.S. Justice, Environmental & Pollution Laws in India, 2 nd
Edition, Volume 1, LexisNexis Butterworths Wadhwa Nagpur.
2. Doabia T.S. Justice, Environmental & Pollution Laws in India, 2 nd Edition, Volume 2,
LexisNexis Butterworths Wadhwa Nagpur.
3. Jain M.P., Indian Constitutional Law, 6th Edition, Volume 1, LexisNexis Butterworths
Wadhwa Nagpur.

4. Dube Indrajit, Environmental Jurisprudence, 1st Edition, Volume 1, LexisNexis Butterworths

Wadhwa Nagpur.
5. Diwan Shyam , Rosencranz Armin , Environmental Law and Policy in India, 2nd Edition,
Volume 1, Oxford India Paperbacks.