August 5, 2018:
The Author, Pinky Dass is a 4th Year student of Amity Law School, Delhi. She is currently interning with LatestLaws.com.
According to Indian law, PIL means a mode of litigation which is carried out for protection of public interest. This type of litigation is introduced in a court of law, where the court itself takes cognizance or by any other private party and not by the aggrieved party. It is not necessary, for the exercise of the court’s jurisdiction, that the victim whose rights are violated should personally approach the court. Public Interest Litigation is the power which has been given to the public by courts through judicial activism.
These cases takes place when the victim is devoid of necessary resources to initiate litigation or his freedom has been subdued or infringed to move to the court. The court is empowered to take cognizance of the matter itself and can proceed by suo moto or cases can also be commenced by the petition filed by any public-spirited individual.
The definition of Public interest litigation is not mentioned in any statute or in any act. It has been interpreted by judges to consider the intent of public at large. However, the principal purpose of such litigation is exclusively “Public Interest”. There are diverse areas where a Public interest litigation can be filed. For e.g.
1) When basic human rights of a poor person is violated.
2) To question contents or conduct of any government policy.
3) To compel municipal authorities to perform a public duty.
4) When religious rights or other basic fundamental rights are violated.
Legal History of PIL
The Indian PIL is considered as upgraded version of PIL of U.S.A. According to “Ford Foundation” of U.S.A., “Public interest law is the name that has recently been given to efforts which provides legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services failed to provide such services to significant segments of the population and to significant interests. Such groups and interests include the environmentalists, consumers, racial and ethnic minorities and others”.
The emergency period (1975-1977) witnessed colonial nature of the Indian legal system.
During emergency period state repression and governmental lawlessness was widespread. Thousands of innocent people including political opponents were sent to jails and there was complete deprivation of civil and political rights. The post emergency period provided a motive to the judges of the Supreme Court to openly disregard the impediments of Anglo-Saxon procedure in providing access to justice to the poor.
Prior to 1980s, only the aggrieved party was able to knock the doors of justice personally and can seek remedy for his grievance and any other person was not entitled to represent that victim or the aggrieved party. In other words, only aggrieved party was having locus standi to file a case and continue the litigation and the non affected persons were not having locus standi to do so. And there was hardly any relationship between the rights guaranteed by the Constitution of India, the laws made by the legislature and the vast majority of illiterate citizens on the other hand.
The traditional view in regard to locus standi in Writ jurisdiction has been that only such persons who:
- a) Has suffered a legal injury by reason of violation of his legal right or legally protected interest; or
- b) Is likely to suffer a legal injury by reason of violation of his legal right or legally protected interest.
Thus before a person acquires a locus standi he had to have a personal or individual right which was violated or was threatened to be violated. He should have been a “aggrieved person” in the sense that he had suffered or was likely to suffer from prejudice, pecuniary or otherwise.
However, this entire scenario gradually changed post emergency period when Supreme Court tackled the problem of access to justice to people through radical changes and alterations were made in the requirements of locus standi and of aggrieved party.
The splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic revolution of eighties to convert the Apex Court of India into a Supreme Court for all Indians.
Justice V. R. Krishna Iyer and P. N. Bhagwati recognized the possibility of providing access to justice to the poor and exploited people by relaxing the rules of standing. In the post-emergency period when the political situations were changing, investigative journalism also began to expose gruesome scenes of governmental lawlessness, repression, custodial violence, drawing attention of lawyers, judges, and social activists.
PIL emerged as a result of an informal nexus of pro-active judges, media persons and social activists. This trend showed strake difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing administrative judicial role. PIL is necessary for rejection of laissez faire notions of traditional jurisprudence.
EMERGENCE OF PIL
The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar, the PIL was filed by an Advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of under trial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40,000 under trial prisoners. Right to speedy justice emerged as a basic fundamental right which was denied to these prisoners. The same set pattern was adopted in subsequent cases.
A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta v. Union of India. In this case it was held that “any member of the public or social action group acting bonafide” can invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation of a legal or constitutional right of persons who due to social or economic or any other disability cannot approach the Court. By this judgment PIL became a potent weapon for the enforcement of “public duties” which were executed in action or misdeed resulted in public injury. And as a result any citizen of India or any consumer groups or social action groups was able to approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake.
In 1981 the case of Anil Yadav v. State of Bihar, exposed the brutalities of the Police. News paper report revealed that about 33 suspected criminals were blinded by the police in Bihar by putting the acid into their eyes. Through interim orders Supreme Court directed the State government to bring the blinded men to Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen. The court also read right to free legal aid as a fundamental right of every accused. Anil Yadav signaled the growth of social activism and investigative litigation.
In Citizen for Democracy v. State of Assam, the S. C. declared that the handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit from one jail to another or to the court or back.
IMPORTANCE OF PIL
Public interest litigation provides a wider interpretation to the right to equality, life and personality which is guaranteed under part III of the Constitution of India. It has also introduced some types of reliefs or remedies under the writ jurisdiction. It also functions as an effective instrument to bring changes in the society or social welfare. Through public interest litigation, any public or person can seek remedy on behalf of the oppressed class by introducing a PIL.
ROLE OF JUDICIARY IN DEVELOPMENT OF ENVIRONMENTAL JURISPRUDENCE
Professor Upendra Baxi, who has often supported the judicial activism in India, has also said that the “Supreme Court of India” has often become “Supreme Court for Indians”. Many observers of the Indian Supreme Court including Professor Sathe and Baxi have rightly opined that the Indian Supreme Court is one of the strongest courts of the world. Power and judicial activism of the Indian courts have resulted into a strong and ever expanding regime of fundamental rights. Stockholm Conference on Human Environment, 1972, has generated a strong global international awareness and in India it facilitated the enactment of the 42nd Constitutional Amendment, 1976. This amendment introduced certain environmental duties both on the part of the citizens [Article 51A (g)] and on the state (Article 48-A).
Under the constitutional scheme the legal status of Article 51(A)-(g) and 48-A is enabling in nature and not legally binding per se, however, such provisions have often been interpreted by the Indian courts as legally binding. Moreover, these provisions have been used by the courts to justify and develop a legally binding fundamental right to environment as part of right to life under Article 21. Hereinafter, an effort was made to demonstrate that how both the ‘soft’ and ‘hard’ international environmental laws were used by the Indian courts to develop a strong environmental jurisprudence in domestic law.
The deemed Second Period of Judicial Adoption (1985-1995) was of growing Influence of International Environmental Law globally as well as on national level. During this period international environmental law was used to interpret the character of state obligations with respect to the right to life (Article-21), which was interpreted to include the right to a healthy and decent environment.
Before 1996 there were very few references to international environmental treaties though by 1990 India was party to more than 70 multilateral treaties of environment significance .In Asbestos Industries Case the Supreme Court extensively quoted many international laws namely ILO Asbestos Convention, 1986, Universal Declaration of Human Rights, 1948, and International Convention of Economic, Social and Cultural Rights, 1966. In this case the court dealt the issues relating to occupational health hazards of the workers working in asbestos industries.
The court held that right to the health of such workers is a fundamental right under article 21 and issued detailed directions to the authorities. In Calcutta Wetland Case the Calcutta High Court stated that India being party to the Ramsar Convention on Wetland, 1971, is bound to promote conservation of wetlands.
IMPORTANT LANDMARK JUDGMENTS BY JUDICIARY
- Sanitation in Ratlam: In a landmark judgment in 1980, the Supreme Court explicitly recognized the impact of a deteriorating urban environment on the poor. It linked basic public health facilities to human rights and compelled the municipality to provide proper sanitation and drainage
- Doon Valley Quarrying: In 1987, the Rural Litigation and Entitlement Kendra, on the behalf of residents of the Doon valley, filed a case in the Supreme Court against limestone quarrying. This case was the first requiring the Supreme Court to balance environmental and ecological integrity against industrial demands on forest resources. The courts directed the authorities to stop quarrying in the Mussoorie hills
- Gas leak in Shriram Factory: In the historic case of the oleum gas leak from the Shriram Food and Fertilizer factory in Delhi, in 1986, the Supreme Court ordered the management to pay compensation to the victims of the gas leak. The “absolute liability” of a hazardous chemical manufacturer to give compensation to all those affected by an accident was introduced in this case and it was the first time compensation was paid to victims.
- Construction in Silent Valley: In 1980, the Kerala High Court threw out a writ filed by the Society for the Protection of the Silent Valley seeking a ban on construction of a hydro-electric project in the valley. However, despite an unfavorable judgment, active lobbying and grassroots action by environmentalists stopped the project.
- In 1985, Activist-Advocate M C Mehta filed a writ petition in the Supreme Court to highlight the pollution of the Ganga by industries and municipalities located on its banks. In a historic judgment in 1987, the court ordered the closure of a number of polluting tanneries near Kanpur. Justice E S Venkataramiah, in his judgment, observed: “Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence.”
- Mining in Sariska: A writ petition was filed in the Supreme Court in 1991 by the Tarun Bharat Sangh to stop mining in the Sariska wildlife sanctuary. The court banned mining in the sanctuary
- Against vehicular pollution in India the Supreme Court delivered a landmark judgment in 1992. A retired Judge of the Supreme Court was appointed along with three members to recommend measures for the nationwide control of vehicular pollution. Orders for providing Lead free petrol in the country and for the use of natural gas and other mode of fuels for use in the vehicles in India have been passed and carried out. Lead-free petrol had been introduced in the four metropolitan cities from April 1995; all new cars registered from April 1995 onwards have been fitted with catalytic convertors; COG outlets have been set up to provide CNG as a clean fuel in Delhi and other cities in India apart from Euro 2 norms. As a result of this case, Delhi has become the first city in the world to have complete public transportation running on CNG.
- In the State of Himachal Pradesh, Span motel, owned by the family members of Shri Kamal Nath, Minister for Environment and Forests, Govt. of India diverted the Course of river Beas to beautify the motel and also encroached upon some forest land. The apex court ordered the management of the Span motel to hand over forest land to the Govt. of Himachal Pradesh and remove all sorts of encroachments.
The Court delivered a land mark judgment and established principle of exemplary damages for the first time in India. The Court said that polluter must pay to reverse the damage caused by his act and imposed a fine of Rs Ten Lakhs (Rs 10,00,000) on the Span motel as exemplary damages. The Supreme Court of India recognized Polluter Pays Principle and Public Trust Doctrine.
- Despite Coastal Zone Regulation Notification of February 1991, none of the coastal states had formulated coastal zone management plan, with the result that haphazard construction and industrial activity was being permitted anywhere in the coast leading to large scale damage to coastal ecology and loss of livelihood to lakhs of fishermen and other indigenous communities dependent on marine resources. A writ petition was filed on behalf of Indian Council for Enviro- Legal Action (ICELA) and the Supreme Court delivered a landmark Judgement banning industrial/ construction activity within 500 mtrs of the High Tide Line and set a time limit for the coastal states to formulate coastal management plans.
Many more such cases could be added from the history of Indian Judiciary which are more vocal in support of Environment and healthy life than other pillars of Indian Democracy. They have capitalized the provisions mentioned in the constitution itself while taking advantage of cardinal principles of International treaties and conventions.
REASONS FOR JUDICIAL ACTIVISM IN PROTECTION OF ENVIRONMENT
The year 1972 holds significance for the Environment Jurisprudence as it has changed the course of action altogether. The Stockholm conference is milestone from where this country and other developing countries had to look environment from different perspective. United Nations Conference on the Human Environment, having met at Stockholm from 5 to 16 June 1972, having considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment. They have set some illuminated and cardinal principles to be observed while interacting with nature for man-made development. At the end of the summit, following principles were adopted-
1. Human rights must be asserted, apartheid and colonialism must be condemned
2. Natural resources must be safeguarded
3. The Earth’s capacity to produce renewable resources must be maintained
4. Wildlife must be safeguarded
5. Non-renewable resources must be shared and not exhausted
6. Pollution must not exceed the environment’s capacity to clean itself
7. Damaging oceanic pollution must be prevented
8. Development is needed to improve the environment
9. Developing countries therefore need assistance
10. Developing countries need reasonable prices for exports to carry out environmental management
11. Environment policy must not hamper development
12. Developing countries need money to develop environmental safeguards
13. Integrated development planning is needed
14. Rational planning should resolve conflicts between environment and development
15. Human settlements must be planned to eliminate environmental problems
16. Governments should plan their own appropriate population policies
17. National institutions must plan development of states’ natural resources
18. Science and technology must be used to improve the environment
19. Environmental education is essential
20. Environmental research must be promoted, particularly in developing countries
21. States may exploit their resources as they wish but must not endanger others
22. Compensation is due to states thus endangered
23. Each nation must establish its own standards
24. There must be cooperation on international issues
25. International organizations should be eliminated.
The Government of India was though signatory at later stage but strong votary of protection as agreed upon. Post 1972, The National Governments had pursued the development path in much vigour and command but less interested in protection of environment and ecology. Somewhere around 1982, concept of Public Interest Litigation was gaining importance due to recognition given by Honourable Judge like P.N. Bhagvati. Government had made no comprehensive plan, lay out of industrialization and on the other hand , vested groups had eye on green lands and cheap natural resources without taking any ethical and social responsibility against those communities who protected and maintained such valuable ecological balance.
Supreme Court of India came to the rescue for the plights of those people who either had to migrate to some other places due to mining or industry or were facing the ill effects of any activity. Before the Pro-active role of Indian Judiciary, Government had no mechanism to deal with such situations.
No comprehensive law existed prior to 1986. Environment Protection Act came into existence in 1986 after 14 years of Stockholm Conference. Though Water Act, 1974 and Air Act, 1981 were there but they were in sufficient to deal with.
Indian Judiciary, especially, Supreme Court of India had consolidated the environment Jurisprudence on case to case basis and developed some outstanding principles to be followed by lower courts while dealing environment cases. They have tried to fill the vacuum created by legislature and paralyzed by administrative machinery. Indian Judiciary have got the necessary impetus from Civil Society’s activism in environment protection, some stalwarts like M.C. Mehta, International Conventions like Earth Summit, Kyoto Summit, which maintained the focus of such issues among the business of the Governments.
The interpretation by the Indian Judiciary in favour of marginalized people while counting protection of environment as investment by the community live by the side of nature and entrepreneur has to share economic fruits with those communities as ecological balance contributed the industrial output also. Such strong ethical and legal backing provided by Indian Judiciary has modelled the whole Environment movement in India and now they are leading the world. Indian Environment jurisprudence shaped by and large by the Indian Judiciary within the Indian Constitution is major achievement after Stockholm conference. Many more things yet to be done and many strictures, comments and orders have yet to be followed by different governments in this country.
The failure of the state agencies to effectively enforce the environmental laws apart from non-compliance with statutory norms by the polluters resulted into further degradation of the environment which has affected the health of the people and forced the environmentalists and the residents of polluted areas as well as the non-governmental organizations to approach the judiciary, particularly the higher judiciary, for the suitable remedies. Of course the initiative for the protection of environment came from the legislature but the failure of the executive to implement the environmental laws in India created the ground for the intervention of the judiciary.
The judiciary made several attempt to resolve the conflict between the development and environment. The environmental jurisprudence in India developed through the instrument of Public Interest Litigation (PIL).
Under the PIL, the judiciary liberalized the concept of locus standi and thereby empowered the people to approach the judiciary when the public interest is harmed by either the action of the state, organization or individual. Unique feature of the Indian environmental jurisprudence is the important role played by the PIL. The activism of the higher judiciary regarding the cases related with violation of environment and human rights has acquired the name of judicial activism. The Supreme Court has not only played a leading role in the implementation of environmental laws but also interpreted the right to life under Article 21 to include a right to healthy and pollution free environment, as a fundamental right.
- Contents on indianenvironmentalportal.org.in
- UN report on United Nations Conference on the Human Environment 1972 Stockholm
- Principles of International Environmental Law and Judicial Response in India by Dr. S.K. Gupta
- Judicial Activism and Environmental Jurisprudence in India written by Shri Rohan Bagai
 Municipal Council, Ratlam vs Vardhichand And Ors 1980 AIR 1622, 1981 SCR (1) 97
 Rural Litigation & Entitlement Kendra vs State of U.P. 1989 AIR 594, 1989 SCC Supl. (1) 537
 M.C. Mehta & ANR. ETC. vs Union of India & Ors. ETC 1987 AIR 965, 1986 SCR (1) 312
 M.C. Mehta vs Union of India & Ors 1988 AIR 1115
 M.C. Mehta vs Union of India & Ors 1991 SCC (2) 353
 M.C. Mehta vs Kamal Nath & Ors (1997) 1 SCC 388