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PUBLIC INTEREST LITIGATION AND ENVIRONMENTAL JURISPRUDENCE Data · January 2016 DOI: 10.13140/RG.2.1.4905.9929

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PUBLIC INTEREST LITIGATION AND ENVIRONMENTAL JURISPRUDENCE D r K N Sheth Director, Venus International College of Technology, Gandhinagar, Dean - Advancement, Alumni Affairs and Interdisciplinary Research, GTU Email: [email protected]

D r K C Raval Director, University School o f Law, Gujarat University, Ahmedabad, Email: [email protected]

ABSTRACT Environmental jurisprudence is an emerging field evolving a consistent legal, economic and ecological frame works for preservation of natural resources for the benefit o f the generations to come. The legitimacy and effectiveness o f environmental governance depend upon public interest in environmental issues. The public interest plays vital role in supporting environmental movements and public interest litigation Public interest litigation means a legal action which is initiated before the court of law for the purpose o f enforcement of general interest of public. This paper investigates the environmental jurisprudence and public interest litigation based on sound judgments pronounced by the High Courts and Supreme Court. It has been shown that judicial interference by way of public interest litigation is thus available if there is injury to public because o f dereliction o f constitutional or statutory obligation on the part of the Government. Courts will interfere only if there is a clear violation o f constitutional or statutory provisions of non-compliance by the State with its constitutional or statutory duties Public Interest Litigation is a weapon which has to be used with great care and circumspection Key Words: Environmental jurisprudence, Public Interest Litigation, Environmental Governance INTRODUCTION Public interest litigation (PIL) means a legal action which is initiated before the court of law for the purpose of enforcement of general interest o f public. Where a legal wrong or legal injury or illegal burden is threatened to the persons who are poor, helpless or disabled and unable to approach the court, under these circumstances an application can be moved by any member of the public by giving an application to the High Court under Article 226 o f the constitution of India or in the Supreme Court under Article 32 of the constitution o f India for seeking judicial redress.There have been various landmark judgments there by yielding far reaching positive results. DUTIES OF THE COURT W H ILE ENTERTAINING PIL BASED ON THE LAND M ARK JUDGEMENTS Public interest litigation is not in the nature of adversary litigation. The purpose of P.I.L is to promote the public interest which mandates that violation of legal or constitutional rights of a large number of persons poor; down trodden, ignorant, socially or economically disadvantaged should not go underdressed. The court can take cognizance in P.I.L is probono public and should not smack o f any ulterior motive and no person has a right to achieve any ulterior purpose through such litigations 1 (i)

The court must be careful that the members o f the public who approaches the court are acting bonafied and not in personal garb of private profit or political

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motivation or other oblique considerations. The court must not allow its process to be abusech (ii)

The role o f law requires to be played for the poor and ignorant who constitute a large bulk o f humanity in this country and the court must uphold the basic human rights o f weaker sections o f the society3

(iii)

Where the Court finds, on being moved by an aggrieved party or by any public spirited individual or social action group that the executive is remiss in discharging its obligation under the constitution or the law, so that the poor and the under privileged continued to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving o f their rights and benefits conferred upon them, the courts certainly can and must intervene and compel the executive to carry outfits constitutional and legal obligations and ensure that the deprived and vulnerable sections of the community are no longer subject to exploitation or injustice and they are able to realize their social and economic rights 4

(iv)

The Court should not take cognizance in such matters merely because o f its attractive name. The petitioner must inspire the confidence o f the court and must be above suspicions

(v)

The P.I.L is for making basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social, economic and political justice. The High court, while entertaining a P.I.L must indicate how the public interest was involved in the case 6

(vi)

It was for the aggrieved person to assail the illegality of the offending action and no third party has a locus stand to canvass the legality or correctness of the action. A case that his legal rights have been infringed 7

(vii)

If a person wants a relief in a Court independent o f a statutory remedy, he must show that he is injured or subjected to or threatened with a legal wrong. The courts can interfere only where legal rights are involved. In fact legal touchstoneto judiciability in injury to a legally protected right8

(viii)

No person has a right to waiver of the locus standi rule and Court should permit it only when it is satisfied that the carriage o f proceedings is in the competent hands o f a person, who is genuinely concerned in public interest and is not moved by other extraneous considerations, so also the court must be careful to ensure that the process of the court is not sought to be abused 9

This is the solemn duty o f the Court to protect the society from the so called protectors o f the society and, thus, while entertaining P.I.L. the court should be conscious and try to ascertain thebonafides of the petitioner and further, find out whether he is really a public spirited person or he has approached the court to settle his ulterior score through the legal process. ENVIRONMENTAL GOVERNANCE AND LANDMARK JUDGEMENTS It is settled law that when a person approaches the court of equity in exercise o f its extraordinary jurisdiction under Article 226 of the constitution of India, he should approach the court not only with clean hands but with clean mind, clean hart and with clean objectives. 11The courts must do Corporate Governance: Contemporary Issues & Chalenges in Indian Economic Environment | 639


justice by promotion o f good faith and prevent the law from crafty evasions. Courts must maintain the social balance by interfering where necessary for the sake o f justice and refuse to interfere where it is against the social interest and public good12 No litigant has a right to unlimited drought one the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions.12 Environmental Protection is a constitution mandate as reflected inCharanlalSahu v. Union of India,it was held that “State should not play a passive role. When assaults on environment caused by adverse socio- economic policies, pose a threat to the ecology, Courts cannot sit with their eyes closed environment protection is a constitutional mandate. It is the commitment o f the country wedded to welfare.13 Environmental questions affecting humanity: In ShriSachidanandPandey v State o f Biharthe Supreme Court had held as under 14 “Today society’s interaction in with nature is so extensive that the environmental question has assumed proportion affecting all humanity. Industrialization , urbanization, explosion of population over exploitation of resources, depletion o f traditional sources energy and raw materials and the search for new sources of energy and raw materials the disruption of natural ecological balances the destruction o f multitude o f animal and plants species for economic have contributed to environmental deterioration. While the scientific and technological progress of man has invested him with immense power nature, ithas also resulted in unthinking use o f the power nature, it has also resulted in unthinking use of the power, encroaching endlessly on nature, if man is able to transform deserts into cases, he is also leaving behind deserts in the place of cases. In the last century great German materialist philosopher warned mankind Let us not however, flatter ourselves overmuch on account o f our human victories over nature. For each of such victory nature takes its revenge on us. Each victory, it is true, in the first place brings about the result we expected, but in the second and third places it has quite different unforeseen effects which only too often cancel the first. Ecologists are of the opinion that the most important ecological and social problem is the widespread disappearance all over the world of certain species of living organisms. Biologists forecast the extinction o f animal and plant species on a scale that is incomparably greater than their extinction over the course o f millions of years. It is said that over half o f the species which became extinct over the last 2,000 years did so after 1900. The International Association for the protection o f Nature and Natural Resources calculates that now on average, one species or subspecies is lost every year. It is said that approximately 1,000 bird and animal species are facing extinction at present. So, it is that the environmental question has become urgent and it has to be properly understood and squarely met by men. Nature and history, it has been said are two component parts of the environment in which we live, move and prove ourselves. In India as elsewhere in the world uncontrolled growth and the consequent environmental deterioration are fast assuming menacing proportions and all Indian cities are afflicted with this problem. The once imperial City o f Calcutta is no exception. The question raised in the present cause is whether the Government o f West Bengal has shown such lack o f awareness o f the problem environment in making an allotment o f land for the construction of a Five Star Hotel at the expense of the zoological garden that it warrants interference by Court, Obviously, if the Government is alive in the various consideration requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for Court to interfere 6401 Gujarat Technological University


in the absence o f mala tides. On the other hand, if relevant considerations influence the decision, the court may interfere in order to prevent a likelihood o f prejudice to the public. Whether a problem of ecology is brought before the court, the court is bound to bear in mind Article 48A of the constitution. Directive Principle which enjoins that, “The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife o f the country” and Article 51 A (g) which proclaims it to be the fundamental duty o f every citizen o f India to protect and improve the natural environmental including forests, lakes, rivers and wildlife and to have compassion for living creatures” . When the Court is called upon to give effect to the directive principle and the fundamental duty, the court is not to shrug its shoulders and say that priorities are a matter o f policy and so it is a matter for the policy making authority. The least that the court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. In appropriate cases, the court may go further, but how much further must depend on the circumstances of the case. The court may always give necessary directions. Evaluation of New Law Role in the process o f social transformation is shown in M.C. Mehta v. Union o f India15, it was held that where a law of the past does ot fit in the present contexts, the court should evolve a new law and in National Workers Union v. PR Ramakrishnan16 it was held, if the law fails to resound. To the needs of the changing society, then either stifles the growth or the society and chokes its progress or if the society is vigorous enough it will cast away the law which stands in the way o f its growth. Law must therefore, constantly be on the move adopting itself to the fast changing society and not stand lag behind. It must shake off the inhibiting legacy of its colonial past and assume dynamic role in the process o f social transformation. The truth is that the law is uncertain. It does not cover all the situations that may arise. Time and gain, practioners are faced with new situations, where the decision may go either way. No one can tell what the law is until the Courts decide it. The Judge do everyday make law, though, it is almost hearsay to say so if the truth is recognized then court may hope to escape from the dead hand of the past and consciously mould new principles to meet the needs o f the present.17 The Public Interest Litigations (PIL) in India initiated by the Hon’ble Supreme Court emerged through human rights jurisprudence and environmental jurisprudence. PIL in Indian Law has been introduced by the Hon’ble judges. The traditional concept o f Locus Standiiis no longer a bar for the community oriented Public Interest Litigations. Though not an aggrieved party, environmentally conscious individuals, groups or NGOs , may have access to the Supreme Court/High Courts by way o f PIL. The Hon’ble Supreme Court while taking cognizance on the petitions has further relaxed the requirement o f a formal writ to seek redress before the Court. Any citizen can invoke the jurisdiction of the Court, especially in human rights and environmental matters even by writing a simple postcard18 According to Hon’ble Mr. Justice Kuldip Singh, Former Judge, and Supreme Court of India- the Constitution of India is a living tree and is not a static document. The Courts have to interpret the Constitution keeping in view the needs o f the present generation. Some o f the leading public interest litigations are TajMahal case, Hazardous industries matter in Delhi, Vellore Citizen’s Welfare Forum case and Rural litigation and Entitlement Kendra case relating to lime stone queries in Dehradun 19

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Im portant and very popular decisions of the H on’ble Suprem e C ourt in the public interest litigation m atters are: •

TAJ POLLUTION MATTER: M. C. Mehta Vs UOI &Ors. W .P.(C) N o.13381/1984

•

GANGA POLLUTION MATTER: Writ Petition (Civil) No. 3727/1985 (M.C.MehtaVs UOI &Ors.)

•

VEHICULAR POLLUTION (M.C.MehtaVs UOI &Ors.)

•

POLLUTION BY INDUSTRIES IN DELHI: M.C.MehtaVs Union o f India &Ors. Writ Petition (Civil) N o.4677/1985,

•

POLLUTION IN RIVER YAMUNA: Writ Petition (Civil) N o.725/1994, News Item ‘HT’, dated 18.7.1994, A.Q.F.M. Yamuna Vs Central Pollution Control Board &Ors.

•

POLLUTION IN NOIDA, GHAZIABAD AREA: Writ Petition (Civil) No.914/1996, Sector 14 Residents’ Welfare Association &Ors. Vs State o f Delhi &Ors. NOISE POLLUTION BY FIRECRACKERS: Writ Petition (Civil) No.72/1998 (Noise Pollution - Implementation of the laws for restricting use o f loudspeakers and high volume producing sound systems) Vs UOI &Ors. IMPORT OF HAZARDOUS WASTE: Writ Petition (Civil) No. 657/1995 (Research Foundation for Science, Technology and Natural Resource Policy Vs UOI &Ors.)

•

•

IN

DELHI:

Writ Petition

(Civil) No. 13029/1985

•

POLLUTION IN PORBANDAR, GUJARAT : Dr. KiranBediVs Union o f India &Ors. Writ Petition (Civil) No. 26/98

•

MANAGEMENT OF MUNICIPAL SOLID WASTE No.286/1994, Dr.B.L. WadehraVs Union o f India &Ors.

•

MANAGEMENT OF SOLID WASTE IN CLASS-I CITIES- Writ Petition (Giil) N o.888/1996 (Almitra H. Patel Vs Union of India &Ors.) POLLUTION IN MEDAK DISTRICT, ANDHRA PRADESH: Writ Petition (Civil) N o.1056/1990 (Indian Council for Enviro Legal Action & Others Vs. UOI & Others) POLLUTION BY CHEMICAL INDUSTRIES IN GAJRAULA ARE/Writ Petition (Civil) N o.418/1998 (Imtiaz Ahmad Vs UOI &Ors.) —Pollution by Chemical Industries in Gajraula area POLLUTION IN RIVER GOMTI : Writ Petition (Civil) No. 327/1990 (Vineet Kumar MathurVs UOI &Ors.)

• •

•

: Writ

Petition

(Civil)

• OLEUM GAS LEAK CASE ON STRICT LIABILITY: Writ Petition (Civil) No. 12739 of 1985, M.C.MehtaVs Union of India &Ors. • BICHHRI CASE ON STRICT LIABILITY AND POLLUTER PAY PRINCIPLE: Writ Petition (Civil) No.967/1989 with 94/1990, 824/1993 and 76/1994 (Indian Council for Enviro-Legal Action and Others Vs Union of India &Ors.) • POLLUTION BY TANNERIES IN TAMIL NADU CASE ON PRECAUTIONARY PRINCIPLE AND POLLUTER PAYS PRINCIPLE: Vellore Citizen Welfare Forum Vs Union of India &Ors., W.P.(C ) No. 914/1991

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SUMMARY Judicial interference by way of PIL is thus available if there is injury to public because of dereliction of constitutional or statutory obligation on the part of the Government. Courts will interfere only if there is a clear violation of constitutional or statutory provisions o f noncompliance by the State with its constitutional or statutory duties Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice , vested interest and / or publicity seeking is not lurking It is to be used as an effective weapon in the armoury o f law for delivering social and justice to the citizens. The attractive brand name of Public Interest litigation should not be used for suspicious products o f mischief. REFERENCES 1. PM Bakshi, “ Public Interest Litigations” 2nd edition Ashoka Law House New Delhi 2004 p VII preface to the first edition 2. S.P Gupta v. Union o f India, AIR 1982 SC 149,Kazi LandupDorji V Central Bureau of Investigation, 1994 Supp (2 ) 5CC 116 1994 AIR SCW 2190 3. VeenaSethi V. state o f Bihar, AIR 1983 SC 1983 Cri L.J.675, State o f H.P. v. Parent of a student, AIR 1985 SC 910 4. SachidanandPandey V. State o f West Bengal, 1987 (2 ) SCC 295: AIR 1987 SC 1109 5. Ram Saran AyotanParasi v. Union o f India, 1988 (4 ) JT 557: AIR 1989 SC 356 6. GyaniDevender Singh SantSepoy Sikh V. Union of India, AIR 1995 SC 1847 1995 AIR SCW 2878 7. R.K. Jam v. union o f India, AIR 1993 SC 1769 : 1993 AIR SCW 1899, Mohammad Anis v. Union of India, 1994 supp (1 ) SCC 145 8. JasbhaiMotibhai Desai V Roshan Kumar Haji Bashir Ahmad, AIR 1976 SC 578 9. S.P. Anandv. S.D. Devegowda 1996 (6 ) SCC 734: AIR 1997 SC 272 10. RamjasFoundationvUnion of India, AIR 1993 SC 852: (1992 AIR SCW 3460) G. Naraiswami Reddy V Government of Karnataka, AIR 1991 SC 1994 (6 ) SCC 620 11. State of Maharashtrav. Prabhu, 1994 (2 ) SCC 647 AIR 1994 SC 2151 12. Dr. B.K. Subbarao V. Mr.K. Prasaran 1996 (7 ) JT 265: 1996 Cri. LI 3983: rajeshRathi. V. State of Rajasthan, 1998, Cr. LJ 1524 (Raj). 13. AIR 1990 SC 1480, quoted in 1997 Criminal Law Journal, Journal Section 57 at 61. 14. AIR 1987 SC 1109, quoted in obayyaPujari v Member secretary, K.S.P.C.B, Bangalore AIR 1999 Kant 157 at 162 15. M.C. Mehta v. Union o f India AIR 1987 SC 1086. 16. National Workers Union v. P R Ramakrishnan ,AIR 1983 SC 75, 17. The reform of Equity in C.J. Hamson(Ed.) Law Reform and Law Making (1953 at 310. 18. Samantaray and Sharma, “Public Interest Litigation: A Conceptual Framework”, Interscience Management Review (IMR), Volume-2, Issue- 3 ,2 0 1 2 , p.29 top.32

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