Environmental Protection in India: Role of Judiciary

Environmental Protection has been taken up by Lawyers and Courts as their duty in recent times. In fact, Courts have gone ahead to include Right to a clean Environment as a part of Right to Life. Read along to find out more!

Introduction

Laws related to environmental protection in India reflect a country’s stronghold against environmental degradation and exploitation. India being a developing country has shown an immense dedication towards environmental protection in the latter half of the 20th century which was influenced by the United Nations Conference on the Human Environment and World Summit on Sustainable Development. In India, the provisions regarding environmental protection have got their place in the Directive Principles but the active role of Judiciary in recent years has included it under Fundamental rights guaranteed by the Constitution of India, thus, including it under Article 21 of the Constitution of India[1].

Early Environment Legislations

Apart from forest laws, the 19th-century legislation also partially regulated two other aspects of India’s environment. The Shore Nuisance Act, 1983, one of the earliest laws concerning water pollution authorized the collector of land revenue in Bombay to order the removal of any nuisance below the high water mark in Bombay harbor. The Indian Penal Code, enacted in 1860 imposed a fine on a person who voluntarily ‘fouls the water of any public spring or reservoir’. The Indian Easements Act, 1882 protected riparian owners against ‘unreasonable’ pollution by up streamers. The Indian Fisheries Act, 1897, penalized the killing of fish by poisoning water and by using explosives in the river. Legislative provisions regulating the discharge of oil into ports waters[2] and prohibiting the poisoning of water in forests[3] were also enacted prior to independence.

Section 12 of the Factories Act, 1948 required all factories to make ‘effective arrangements’ required for waste disposal and empowered state government to frame rules implementing this directive. Coming to the next rivers boards established under the River Boards Act, 1956 for the regulation and development of inter-state rivers and river valleys were empowered to prevent water pollution.

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Earlier laws which also aimed at controlling air pollution were the Bengal Smoke Nuisance Act, 1905 and the Bombay Smoke Nuisance Act, 1912. In the area of wildlife earlier legislations were limited. In 1873 Madras enacted the first statute for the protection of wild elephants. The first effort by Central Government came 6 years later when Elephants Preservation Act, 1897 was passed. In 1912, the Central Government enacted a broader Wild birds and Animals Protection Act. The first comprehensive law for the protection of wildlife and its habitat was perhaps the Hailey National Park Act, 1936 which established the Hailey National Park now known as Corbett National Park in the state of UP.

 Constitutional and Legislative Provisions

  1. Right to wholesome environment

The Supreme Court fortified and expanded the fundamental rights enshrined in Part III of the Constitution. In the process, the boundaries of the fundamental right to life and personal liberty guaranteed in Article 21 were expanded to include environmental protection[4]. The first indication or remark of the right to a wholesome environment may be traced to the Dehradun Quarrying Case[5]. In 1983, representatives of the Rural Litigation and Entitlement Kendra, Dehradun wrote to the Supreme Court alleging that illegal limestone mining in the Mussoorie-Dehradun region. Supreme Court appointed several expert committees and passed at least 5 comprehensive interim orders. In Subhash Kumar v State of Bihar[6] the court held that the right to life includes the right to enjoy unpolluted air and water and a citizen has right to move the Supreme Court under Article 32 of the Constitution.

  • The Right to Livelihood

The Supreme Court recognized the right to livelihood in the case of Olga Tellis v Bombay Municipal Corporation[7].The court decided the municipal corporation to provide alternative areas or accommodation to the slum and pavement dwellers within a reasonable distance of their original sites.

  • The Right to Equality
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Urban environmental groups frequently resort to Article 14 to quash ‘arbitrary’ municipal permissions for constructions that are contrary to developments regulations. In State of Himachal Pradesh v Ganesh Wood Products[8], the Supreme Court held that a decision making authority must give due weight and regard to ecological factors such as the environmental policy of the government and the sustainable use of natural resources. A government decision that fails to take into account relevant considerations affecting the environment is invalid.

There are over 200 central and state statutes like The Air (Prevention and Control of Pollution) Act of 1981, The Water (Prevention and Control of Pollution) Act of 1974, The Wildlife (Protection) Act of 1972, The National Environment Tribunal Act of 1995, The Factories Act of 1948, and the famous The Environment (Protection) Act of 1986.

Judicial Remedies and Measures

Most pollution cases in tort law fall under the categories of nuisance, negligence and strict liability. To these, SC has added a new class based on the principle of ‘absolute’ liability.

  1. Damages and Injunction

Damages may be either ‘substantial’ or ‘exemplary’. Substantial damages are awarded to compensate the plaintiff for the wrong suffered. Exemplary damages are intended to punish the defendant for the outrageous nature of his or her conduct.

Injunctions are of 2 kinds: temporary and perpetual. Purpose of a temporary injunction is to maintain the state of things at a given date until trial on the merits. Perpetual injunctions are regulated by sections 37 to 42 of the Specific Relief Act, 1963[9].

  • Writs and PIL

Writ of Mandamus, Prohibition and Certiorari can be filed in case of a violation. A mandamus can also be issued to undo what has been done in contravention of a statute. The writs of certiorari and prohibition are issued where an authority acts in excess of jurisdiction, acts in the violation of the rules of natural justice, acts under a law which is unconstitutional, commits an error apparent on the face of the record and reaches factual findings that are not supported by the evidence.

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Public Interest Litigation in India is mostly governed by the theory of locus standi which precludes such representation, and thereby keeps the grievances of the poor from reaching the courts. The new judicial emphasis on the effective implementation of the environmental laws has prompted judges to monitor compliance through periodic reports filed in courts by the government agency. Generally, short interim directions in the nature of a ‘continuing mandamus’ is passed at frequent intervals. Non-compliance with court orders is met with judicial strictures, action in contempt of court or fines.

Also read Environmental Threats to Human: An Inter-Relationship between Environmental Protection and Human Rights in India


[1] Viplav Baranwal & Rachi Singh, Constitutional Jurisprudence Towards Environmental Protection In India, 8 MADRAS LAW JOURNAL, 9 (2013).

[2] Section 21, Indian Ports Act of 1908.

[3] Section 26, Indian Forest Act of 1927.

[4] Shyam Diwan & Armin Rosencranz, Environmental Law And Policy In India, 35-37 (2d ed., 2012).

[5] Rural Litigation and Entitlement Kendra, Dehradun v State of Uttar Pradesh, AIR 1988 SC 2187.

[6] AIR 1991 SC 420, 424.

[7] AIR 1986 SC 180.

[8] AIR 1996 SC 149, 159, 163.

[9] DIWAN AND ROSENCRANZ, Supra note 4, at 88-90.