Public Interest Litigation and environmental law in India

IntroductionThe increasing urbanization and rapid industrialization of contemporary India has led to a host of grave environmental problems such as air, water, and noise pollution. (Madsen, 1999). Guha and Gadgil (1993) underline this neglect towards the environment as a contemporary phenomenon in urban India:“Human history is, as a whole is a patchwork of, prudence and profligacy, of sustainable and exhaustive resource use. In contemporary India the instances of profligacy clearly outnumber (and outweigh) those of prudence although such was not always the case” (Guha and Gadgil, 1993:3) The “standard environmental narrative” employed by ecologists in South Asia emphasizes the management of “common property resources” by “local communities” to live in harmony with nature, a paradigm which is undermined by colonial exploitation. (Madsen, 1999) The neglect towards environmental concerns persists in post-colonial India manifest in the lack of a coherent environmental policy to address environmental concerns for several years after independence. The 1970s witnessed the framing of a coherent policy framework to address environmental concerns as well as attempts to control environmental pollution through legislation based on a “command and control structure”. (Divan and Rosencranz, 2001) The emergence of the Public Interest Litigation in the realm of environmental law was necessitated by the failure of this command and control structure to adequately address environmental concerns in India. (Dwivedi, 2008) This paper traces the growth of environmental jurisprudence in India as a result of the emergence of Public Interest Litigation to demonstrate that the judiciary is increasingly faced with the complex political, socio-economic ramifications of environmental problems in adjudicating on environmental issues. The analysis of the impact of the PIL on environmental law in India needs to go beyond a simplistic understanding of the PIL as an instrument of social justice, (Baxi,  ) or as a means of securing a pollution- free environment through a creative interpretation of the Constitution(Mehta, 1999) to bring out the diverse, often inconsistent responses of the Court towards environmental concerns that relate to larger policy issues. The transformation of Indian environmental law as a result of the emergence of the PIL needs to be examined in the backdrop of the larger political implications of judgements in response to PILs as well as the reflection of certain class interests in the application of PILs.

Environmental policy framework

The emergence of a coherent policy framework to address environmental concerns in India can be traced back to the setting up of an advisory body, the National Committee on Environmental Planning and Coordination (NCEPC) in 1972 following the 24th UN General Assembly meeting on Human Environment. (Dwivedi, 2008:120) The 42nd amendment of the Constitution in 1976 led to the incorporation of environmental concerns through the addition of Article 48 A to the directive principles of state policy. (Divan and Rosencrantz, 2001: 45). The article declares:“The state shall endeavour to protect and improve the environment and to safeguard the

forests and the wildlife of the country.”Also, Article 51 A of the Constitution imposed a fundamental duty on every citizen “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for all living creatures.”Further, Article 253 of the Constitution granted the Central government overriding powers to legislate on environmental concerns and implement India’s international obligations. (Divan and Rosencrantz, 2001:47) The insertion of the article can be perceived as an attempt to introduce global concerns about the environment within the paradigm of Indian environmental law. This endeavour towards a coordinated approach towards environmental concerns is further manifested in the enactment of environmental statutes that employed “a system of licensing and criminal sanctions to preserve natural resources and regulate their use.” (Divan and Rosencrantz, 2001:40). These include the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act 1981, the Water (Prevention and Control of Pollution) Cess Act 1977, the Forest (Conservation) Act 1980. In an attempt to bring together diverse environmental concerns under an ‘umbrella’ Act in the wake of the Bhopal gas tragedy, the Government of India enacted the Environmental Protection Act (1986) under Article 253 of the Constitution. (Divan and Rosencranz, 2001:66) This Act empowered the Centre to “delegate its powers or functions to any officer, state government or other authority.” (Divan and Rosencranz, 2001:67) The provisions of this Act override any other law. (Divan  and Rosencranz, 2001:67).

Need for judicial interventionThe inadequacy of these laws in controlling environmental pollution has been attributed to the essentially reactive nature of legislative approach towards environmental problems (Dam, 2004), the inefficiency and lack of accountability of enforcement agencies such as pollution control boards (Dwivedi, 2008: 123), and inadequate funds and technical expertise to implement a coherent environmental policy. (Dam, 2004) In fact, the need for judicial intervention and the consequent emergence of the Public Interest Litigation (PIL) as a method of addressing environmental concerns needs to be examined in the backdrop of the failure of environmental statutes to find long term solutions to problems of environmental pollution in India. (Dwivedi, 2008)The emergence of the PIL as a grievance redressal mechanism in the domain of environmental law has led to a creative re-interpretation of Constitutional provisions in India to link environmental concerns with fundamental rights, (Razzaque, 2007) the integration of international principles of environmental law into the Indian legal framework (Sahu, 2008) and an attempt by the Courts to balance environmental concerns with a model of sustainable economic development. (Dwivedi, 2008:131) The increasing intervention of the Courts to resolve problems of environmental pollution in the face of the failure of executive bodies to carry out their responsibilities has seen both a celebratory attitude towards judicial activism (Mehta, 1999) as well as a skepticism in more recent times towards the Court exceeding its brief through attempts at policy formulation and thereby defying the principles of separation of powers (Dam, 2005). This paper attempts to explore the social, political ramifications of Supreme Court decisions with respect to PILs to demonstrate that the creative interpretation of Constitutional

provisions in resolving problems of environmental pollution necessarily entail a political engagement with questions of social justice and sustainable economic development. In tracing the influence of PIL on environmental law in India, this essay attempts to argue that even while legal decisions are situated within the problematic of restraints on policy formulation and implementation by the judiciary, it is important to recognize and trace the political dimensions of judicial activism as legal decisions do not emerge in a social void. This paper attempts an analysis of case law to demonstrate how a treatment of the PIL as a means of securing social justice and extending the provisions of right to life by the Supreme Court (Divan and Rosencranz, 2001) becomes problematic as the Supreme Court is faced with more complex political questions that involve reconciling environmental concerns with sustainable economic development and negotiating with conflicting class interests.Emergence of PIL: judicial innovationThe emergence of the PIL as an innovative instrument of judicial interpretation and intervention in the 1980s led to increasing involvement of the judiciary in addressing environmental concerns in the backdrop of the failure of state enforcement agencies to adequately address problems of environmental pollution. (Razzaque, 2007) Razzaque (2007) identifies liberalization of locus standi for increasing access to justice, procedural flexibility, judicial supervision to ensure implementation of orders and creative interpretation of the Constitution as the defining characteristics of Public Interest Litigation in India.A creative interpretation of the Constitution to expand the scope of the fundamental right to life under Article 21 had a considerable impact on environmental jurisprudence in India (Sahu, 2008: 1) In the Dehradun quarrying case, the Supreme Court expanded the scope of right to life under Article 21 to include right to a clean environment with minimum disturbance of ecological balance. [1]However, even in the early phase of the application of Public Interest Litigation, the Court had to negotiate with complex political questions that are inextricably linked to environmental concerns. In M C Mehta v Union of India [2] the Supreme Court appointed expert committees to recommend adequate safety measures for the functioning of the Shriram chlorine plant from which harmful oleum gas had leaked affecting a large number of people. As the Court laid down the conditions for the operation and reopening of the plant, it noted that a “permanent closure of the plant” would have led to a loss of around 4000 jobs. The Court is therefore negotiating with the larger question of livelihood concerns inextricably linked to environmental problems in the present case. The appointment of a committee to monitor the operation and maintenance of the plant is an attempt to implement the recommendations of the Court. While this can be seen as a suitable mechanism of grievance redressal, it cannot be a long term method for the successful implementation of a coherent environmental policy. Dam (2004) observes that judicial intervention has merely led to administrative agencies “preparing knee-jerk responses to judicial orders.”Environmental pollution and fundamental rights

The M C Mehta v Union of India [3] provides an instance of the formulation of a“human rights jurisprudence” through a creative linking of environmental pollution with the

discourse of fundamental rights. The decision reflects the underlying conception of social justice and constitutionalism that informs the fundamental rights provisions of the Constitution. The Court’s approach to the PIL is informed by a socialist ethos that initially led to the popularization of social action litigation in the 1980s at a time when other “institutions of governance” were facing a “legitimation crisis”. (Baxi, 1985:107) In fact, Baxi (1985) conceives of social action litigation as a form of “constitutional intervention” that provides a remedy to “governmental lawlessness and administrative deviance”. In this instance, the Court relaxes locus standi to allow a “public-spirited individual” to approach the Court for the enforcement of the fundamental right of a citizen or a group of citizens “who cannot approach the Court for justice”. In formulating a fundamental right to a clean, unpolluted environment, the Court also articulates a principle of social equality:“It will thus be seen that this Court has not permitted the corporate device to be utilized as a barrier ousting the constitutional control of fundamental rights.”

Integration of international legal principles

The integration of the international principles of environmental law into the Indian legal framework is an important consequence of the emergence of Public Interest Litigation in the realm of environmental law. (Razzaque, 2004) In fact, the application and re-interpretation of international legal principles in the Indian context reflect a greater concern with making hazardous industrial enterprises responsible towards environmental concerns. In M C Mehta v Union of India [4] the Supreme Court extends the principle of strict liability drawing from the Rylands v Fletchers[5] case in English law to formulate a principle of absolute liability whereby an enterprise carrying out a hazardous activity is “absolutely liable” to compensate for any harm arising from such activity. The principle of strict liability in English common law states that “a person will be strict liable when he brings or accumulates on his land something likely to cause harm if it escapes, and damage arises as a natural consequence of its escape.” (Razzaque, 2004: 210) However, in formulating a principle of absolute liability, the Court contends that such liability is not subject to any of the exceptions “under the rule in Rylands v Fletcher.”In Vellore Citizens’s Welfare Forum vs Union of India[6] declared the precautionary principle and the polluter pays principle as components of the environmental law of the country. The precautionary principle implies “a duty to foresee and assess environmental risks and to behave in ways that prevent or mitigate such risks.” (Divan and Rosencranz, 2001:584) Razzaque (2004) notes that the “underlying implication of precautionary principle is to shift the burden of proof on those who want to undertake a particular activity which results in potential environmental harm, or forego an activity that could avert such potential harm.” (Razzaque, 2004: 344) In the said judgement, tanneries discharging untreated sewage into the river were instructed to set up pollution control devices in the form of effluent treatment plants so as to prevent pollution of the river which was the main source of water supply for the residents of the area. The Court also applied the polluter pays principle by imposing fines on tanneries as “compensation for reversing the ecology” and as “payment to individuals”. The polluter pays principle

implies that the polluters “should internalize the costs of their pollution, control it at its source, and pay for its effects…rather than forcing states of future generations to bear such costs.” (Divan and Rosecranz, 2001: 584)

Attempts at policy formulation

However, judicial intervention in the realm of environmental law has also led to attempts by the Court at policy formulation to create awareness about environmental issues. It is important to situate the emergence of PIL in the realm of environmental law within the larger context of the impact of judicial activism on the separation of powers in a democratic polity. In M C Mehta v Union of India [7] the Supreme Court, while holding the Municipal corporation of Kanpur responsible for the pollution of the river Ganga, instructs the “Central government to direct all educational institutions throughout India to teach atleast for one hour in a week lessons relating to protection and the improvement of natural environment”. This is clearly an instance of the Court attempting to enter into the domain of policy-making in its treatment of a PIL. Baxi (1985) coins the innovative term ‘creeping jurisdiction’ to denote this gradual intrusion of the judiciary into the domain of the executive. However, Baxi’s (1985) celebratory attitude towards such jurisdiction as an “apposite strategy for gradualist institutional renovation” does not take into consideration the limitations of such intervention in policy formulation. Shanmuganathan and L.M. Warren (1997) highlight the problem of enforcement of policies formulated by the Court:“Although the Indian judiciary has shown itself ready to uphold environmental rights of citizens and to decide cases on the basis of strict liability, the strong environmental stance of the courts' decisions has not been matched by effective enforcement of their decisions.” (Shanmuganathan and L.M. Warren, 1997: 402) This trend of policy formulation may lead to judicial activism lapsing into a form of adventurism (Dam, 2005) where the Court attempts to formulate policies that it doesn’t have the means to implement.

Environmental litigation and conflicting class interests

However, a critique of this mode of judicial activism with respect to environmental concerns should not prompt us to think that judicial intervention should be essentially apolitical in nature. The Supreme Court can position itself with respect to policy and politics in applying the underlying spirit of the Constitution without expressly engaging in policy formulation which should remain the preserve of the executive. In fact, it will be seen that the Court increasingly faces complex political questions whereby it has to strike a balance between developmental aspects, human rights and environmental concerns. (Razzaque, 2007) The inconsistent approach of the Court when facing larger questions of sustainable development underlines how the PIL can no longer be conceived of merely as an instrument of securing social justice. The appropriation of the PIL by diverse interest groups with vested interests leading to the Court aligning itself with diverse class interests and positions with respect to sustainable economic development illustrates the need to conceive of legal discourse within a framework of politics. In M C Mehta v Union of

India [8] the Court while ordering the closure of 292 industries within the Taj Mahal trapezium to prevent the degradation of the Taj Mahal due to pollution, also ordered the government to allot land for the relocation of these industries outside theTaj trapezium. This can be read as an effort to balance environmental needs with livelihood concerns.However, the Court has also articulated an elite discourse mirroring middle class interest in its response to PILs. In M C Mehta v Union of India [9] the Supreme Court directed the phasing out of “grossly polluting old vehicles” and issued orders for all the city buses to switch to the use of Compressed Natural Gas (CNG). The lack of adequate supply of CNG posed practical difficulties in the implementation of the order with an adverse impact on the livelihood of commercial vehicle owners such as bus operators and auto drivers. (Dam, 2004) The Supreme Court decision while articulating a concern for public health displayed insensitivity towards social costs of the orders in insisting on hasty implementation. In the above instances, environmental concerns are inextricably linked to questions of livelihood. While in one case the Supreme Court tries to accommodate livelihood concerns, it displays a lack of concern for the same in the more recent case. However, the approach towards the PIL in both the cases in political in nature.

PIL, environment and sustainable economic developmentThe complex interplay of a human rights discourse, environmental concerns and sustainable economic development considerably influences the manner in which the Supreme Court responds to the Public Interest Litigation in Narmada Bachao Andolan v Union of India[10] case. Though the Court has attempted to distance itself from the political implications of large scale industrial and infrastructure projects that have a potential of causing damage to the environment, (Sahu, 2008:7) the approach of the Court towards environmental litigation involving such projects has clearly demonstrated an engagement with the politics of development. The stance of the Supreme Court with regard to the question of the fundamental rights of the indigenous tribal population displaced as a result of the Sardar Sarovar Project in Gujarat highlights how the Supreme Court aligns itself with a neo-liberal, top-down approach towards development which has an adverse impact on the environment and does not make indigenous tribals stakeholders in the process of development. The need to generate hydroelectric power through dams and thereby minimise environmental pollution from conventional sources of energy here comes into direct conflict with the fundamental rights of indigenous population. In fact, the Court in its judgement in 2000 refused to entertain any submissions from the Narmada Bachao Andolan about the environmental effects of large dams. The judgement observed that a conditional clearance for the project was given in 1987 and therefore pleas related to submergence, environment studies and seismicity could not be raised at this stage. In attempting to harmonise environmental needs with development efforts, the Court imposes a conception of development on tribals. The Court’s response to the use of the PIL in this instance reflects a considerable departure from an earlier activist judicial intervention to ensure social justice to the economically deprived sections of society.The Narmada Valley Project, consisting of 31 major dams, is spread across Gujarat, Madhya Pradesh and Maharashtra. (Divan and Rosencranz, 2001: 441) Of these, the Sardar Sarovar Project (SSP) in Gujarat, and the Narmada (Indira) Sagar Project in

Madhya Pradesh would lead to the displacement of a large number of indigenous tribals as a result of the submergence of villages. (Divan and Rosencranz, 2001: 448) In a writ petition filed in 1994, Narmada Bachao Andolan argued that the work on the Sardar Sarovar dam must be stopped as the fundamental rights to life and livelihood of the displaced people were being violated by the project. The petition [11] pointed out that the rehabilitation and resettlement of projected affected families had not been carried out in accordance with the provisions of the Narmada Water Disputes Tribunal (NWDT). The Court, initially granted a stay on the construction of the dam in June 1995. (Divan and Rosencranz, 2001: 455) However, the Court issued an interim order in February, 1999 allowing the construction of the dam upto a height of 85 metres.[12] In Narmada Bachao Andolan v Union of India[13], the approach of the Supreme Court to the question of the displacement and rehabilitation of tribal population mirrors an elite discourse of development whereby the ruling elite imposes a vision of development on the indigenous population which disrupts traditional modes of livelihood. The Court contended that the displacement of the tribals and other persons would not per se result in violation of their fundamental or other rights and their “rehabilitation to new locations would ensure better living conditions”. The three-judge bench also said that the rehabilitation sites would have more amenities than the tribal hamlets and “the gradual assimilation of the mainstream of the society would lead to their betterment and progress”. Though the Court here expressly advocates the construction of a dam in “national interest”, it articulates a patronizing attitude towards the indigenous population as it does not take into consideration the social and human costs of displacement which cannot be completely compensated by rehabilitation. Divan and Rosencranz (2001) question the position of the Court on the question of rehabilitation, “..the court restricted itself to considering only issues of ‘relief and rehabilitation.’.. Can a community ever be rehabilitated?” (Divan and Rosencranz, 2001: 456) Also, the Court’s contention that the construction of the dam might not necessarily lead to an “ecological disaster” does not adequately consider the social costs of rehabilitation of an entire community. The manner in which the Court negotiates with questions of human rights and sustainable economic development in this instance provides a remarkable contrast to the social justice framework within which earlier decisions on PIL and the environment were based. This is amply borne out by a concluding remark on the use of PIL in Narmada Bachao Andolan v Union of India[14] case, “Public Interest Litigation was an innovation essentially to safeguard and protect the human rights of those people who were unable to protect themselves… But the balloon should not be inflated so much that it bursts. Public Interest Litigation should not be allowed to degenerate to becoming Publicity Interest Litigation or Private Inquisitiveness Litigation.”  Tehri dam projectThe Supreme Court’s disregard for the rights of indigenous people displaced by the Tehri dam project is also an instance of the Court endorsing an elite, neo-liberal vision of development that privileges development over environmental and livelihood concerns. The completed dam would submerge several towns and could enhance the occurrence of earthquakes in the region (Divan and Rosencranz, 2001:431) The Supreme Court rejected a petition filed by the Tehri Bandh Virodhi Sangarsh Samiti, a non-governmental organization working in the field of conservation, after a “very limited enquiry”. (Divan

and Rosencranz, 2001:432)

ConclusionThe instrument of Pubic Interest Litigation in the realm of environmental law had emerged as a means of securing social justice for the deprived sections of society through a creative interpretation of the Constitution. (Baxi, 1985) While the emergence of the PIL leads to the integration and appropriation of international legal principles in Indian environmental law, (Razzaque, 2004) it increasingly compels the Supreme Court to negotiate with complex questions of conflicting class interests, sustainable development and livelihood concerns. The “existence of complex technical and scientific questions” in environmental jurisprudence has led to suggestions for the setting up of green courts for more “effective resolution” of environmental disputes. (Sharma, 2008)The analysis of case law brings to the fore the limitations of a simplistic understanding of the impact of PIL as a form of ‘social action litigation’ that leads to an expansion of the scope of the fundamental rights guaranteed by the Constitution. In fact, the use of the PIL as well as the response of the Court to conflicting class interests increasingly mirrors a privileging of elite, middle-class interests. Also, the stance of the Court towards questions of sustainable development reflects a degree of skepticism towards the use of the PIL and attempts towards imposing a neo-liberal vision of development on indigenous tribal populations that leads to the disruption of traditional modes of living. The emergence of the PIL, while paving the way for creative environmental jurisprudence, also brings to the fore the political ramifications of judicial decisions and the manner in which the Courts are increasingly compelled to engage with the politics of class and development.

[1] Dehradun quarrying case AIR 1988 SC 2187[2] M C Mehta v Union of India AIR 1987 SC 965[3] M C Mehta v Union of India AIR 1987 SC 1086[4] M C Mehta v Union of India AIR 1987 SC 1086[5] Rylans v Fletcher (find citation)[6] Vellore Citizens’ Forum v Union of India AIR 1996 SC 2715[7]  M C Mehta v Union of India AIR 1988 SC 1115[8] M C Mehta v Union of India AIR 1997 SC 734[9] M C Mehta v Union of India AIR 2002 SC 1696[10] Narmada Bachao Andolan v Union of India  AIR 1999 SC 3345[11] Narmada Bachao Andolan v Union of India Writ petition (Civil) No. 319 of 19994[12] Narmada Bachao Andolan v Union of India  AIR 1999 SC 3345[13] Narmada Bachao Andolan v Union of India AIR 2000 10 SCC 664[14] Narmada Bachao Andolan v Union of India AIR 2000 10 SCC 664