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Judiciary's pro-development tilt is making activists seek recourse at the societal level
In most cases of environmental litigation, the parties affected by pollution are, typically, large, diffused and unidentified groups of people. Since nature and inanimate objects cannot represent themselves in judicial proceedings, the Supreme Court, since the late 1970s, has allowed any member of the public, having sufficient interest, to initiate a legal process to ensure the protection and improvement of the environment. This has come to be called Public Interest Litigation (PIL).
A number of cases of environmental issues have been initiated through PILs. Beginning with the Dehradun limestone quarrying case in 1983, followed by the Ganga water pollution case, the Delhi vehicular pollution case to the Vellore leather industry pollution case and the T N Godavarman case, all the cases were brought to the attention of the court through PILs. These cases have been initiated by non-governmental organisations (NGOs) and environmental activists on behalf of other individuals, groups or the public at large. In all these cases, the courts have been approached to ensure the implementation of the statutory Acts and the Constitutional provisions that aim to protect the environment and enforce fundamental rights.
The reasons for the sudden spurt in the number of environmental cases are varied and complex, but one major factor has been the ineffective implementation of environmental laws and policies. This has prompted environmentalists, NGOs and affected citizens to approach the courts, particularly the higher judiciary, for suitable remedial action. Between 1980 and 2000, the higher judiciary dealt with a diverse variety of environmental problems and contributed significantly to the evolution of environmental jurisprudence principles in the country. In a series of judgements, it held that the right to clean and healthy environment is also a part of Article 21 of the Indian Constitution (see 'How judiciary has interpreted right to life'). While doing so, individual judges used their own subjective understanding of what was needed for a healthy and clean environment.
However in the past one decade, there has been a gradual shift in the approach of the state high courts and the Supreme Court in resolving disputed between corporate interests on one hand and the advocates of environmental and human protection rights protection on the other. If recent judgements are any indication, the Supreme Court seems to be tilted in favour of development and infrastructure projects, side-lining environmental issues and the rights of people dependent on the environment for their livelihood.
Advocate Prashant Bhushan has pointed out that the recent record of the Supreme Court in environmental litigation reveals two clear pictures. First, when environmental protection comes in conflict with socio-economic rights of the poor and the marginalised, the poor usually get sidelined. Second, when environmental protection comes in conflict with projects backed by powerful and vested commercial and corporate interests—perceived by the court as “development”—environmental protection issues again take a back seat.
In stark contrast to to its 1980-2000 pro-environment judgements, there are a slew of recent cases where the Supreme Court has deviated from its own principles and precedents for protecting the environment, upholding the rule of law of law and ensuring citizens’ right to livelihood. The outcomes of the Tehri Dam case, the Narmada Dam case, and construction of the thermal power plant in Dahanu taluka, near Mumbai, offer notable illustrations of the more recent pro-development approach. The grounds of challenge in these cases include issues like adverse environmental impacts, safety aspects, loss of ancient monuments, forced displacement and inadequate resettlement and rehabilitation of people ousted by these development activities.
The general response of the Supreme Court has been that of non-interference, on the premise that these cases have raised technical issues and policy matters which are best left to the executive authorities. Similarly, in recent years, the Court has favoured large multinational corporations like POSCO and Vedanta in allowing them mining leases over large tracts of forest land. This was allowed, despite the fact that these mining leases in forest lands would displace thousands of tribal families who depend on forests for a living. In doing so, the Supreme Court ignored the recommendations of its own expert committee which had strongly recommended not granting these leases.
The Court’s recent questioning the bona fides of the litigants has also put a question mark over its two decades of progressive attitude in entertaining public interest litigation for the protection of environment. The Court has made it categorically clear that if a project is stayed on account of a public interest petition, which is subsequently dismissed, the petitioner should be made liable to pay for the damages occasioned by the delay in the project. In the words of the court, “any interim order which stops the project from proceeding further must reimburse all the cost to the public in case ultimately the litigation started by such an individual or body fails” (Raunaq International Limited v I V R Construction, AIR 1999, SC 393).
Some judges want petitioners filing PILs to adhere to certain strict guidelines
before initiating any litigation on environmental issues. Such an inhospitable approach to the environment has caused environmental groups as well as social activists working with poor and disadvantaged groups to pursue their issues at the societal level and not through the courts.
Armin Rosencranz is co-author of Environmental Law and Policy in India. He teaches at Stanford. Geetanjoy Sahu teaches at Tata Institute of Social Sciences in Mumbai. Ayesha Khan is in her final year at NUJS, Kolkata