Powerful words that provided the base for judicial activism in India. How potent are the judgments delivered in favour of the environment? Will the enthusiasm shown by the judiciary to reform an indolent government machinery continue? A cross-section of lawyers and environmentalists debate on the issue
P N BHAGWATI
DIRECT judicial activism is not a good idea.
When it comes to environment, I do not
think that the courts are equipped to deal
with environmental issues. They do not have
the expertise, the material on the basis of
which they can judge the effects of what are
alleged to be environmentally disastrous
activities. Today there is no mechanism for
the purpose of dealing with environment
issue. The result is that any citizen, a public
interest group or an environmental group
which discerns an ecological imbalance created
either by industry or by human interference,
has no other remedy to pursue, but to go
to the High Courts (HC) or the Supreme
Court (sc) of India. I have been telling the
government for a long time, almost 12-13
years now, that they must set up environmental tribunals, which can solely deal with environmental issues.
The first environmental matter that came
before the sc: was the limestone quarrying in
the hills of Debra Dun. A public interest
group complained that the quarrying was
affecting the environment. The limestone acts
as an aquifer. On account of the quarrying,
underground springs began drying up. In
addition to this, the slopes were being denuded.
Sahasradhara, an important natural water
spring had almost become dry.
I took up this case on a letter petition. As
I had no material on the issue, three geological
experts were appointed in order to advise me
on the geological impacts of quarrying on
hillsides. We also appointed three environmental experts to study the effect of the quarrying. After the reports were made, I
heard all the parties and ordered closure of 52
of the 64 quarries. But at the same time, I
directed that the labour must not suffer and
directed the government to employ them on a
forest regeneration programme in the areas
that had been denuded.
In the case of tanneries, it is clear that they
cannot operate without effluent treatment
plants. But I decided that they needed time to
set up these treatment plants, failing which
they should be closed down. Whenever eco
logical disorders are created, obviously the
government must step in with remedial
actions. If the government does not, the
courts have to step in. But as I have said, since
the courts are not well equipped, there must
be an environmental tribunal.
There may be a further appeal to the SC,
but the first trial must take place before a
tribunal. That is why there is a feeling, in
some circles, that some parties have not been
given a proper hearing because mass orders
are made. That is not correct. Affected parties
are entitled to be heard in court and if their
work pollutes the environment, then they have to be
closed down.
A few years ago, the minis-
try of environment and forests
had prepared a draft bill for
setting up an environmental
tribunal for the purposes of
dealing with cases where any
injury is caused on account
of inherently dangerous or
hazardous activities. But even
that has not been made into a
law. I really don't know why
nothing has been done.
I entirely blame the government for the sc becoming the
first resort instead of being a
last one. This is because the government has
not set up an environmental tribunal. I am
not in favour of one body or organisation
being made responsible for technicalities in
environmental cases. I have the highest regard
for National Environment Engineering
Research Institute and its head P Khanna,
who is a competant and knowledgeable per-
son. But there should be an independent body
like an environmental commission which can
gather its information from any source. This
would inspire confidence in the people.
In the face of such activism shown by the
courts, government agencies may tend to get
careless. They may feet that the people would
go to the courts. But the courts must hold the
agency accountable. TI)e court must call upon
the agency to make a report, and if the report
indicates that pollution is being caused, the
courts should ask it what steps it has taken
to mitigate the pollution. I agree that these
agencies need to be pulled up. But the court
cannot take on the mantle to reform them in
all cases. Ultimately, the object must be to
strengthen these institutions, to make them
transparent and accountable.
---P N Bhagwati is a former Chief Justice of India
P M BHARGAVA
JUDICIAL activism manifests itself through PILS,
the first step towards which could be just
a postcard by a citizen to a court, or a
newspaper report brought to the notice of
the court. The onus of deciding whether
the issue thus brought to the notice of
the court is worth taking up or not, lies
with the court. There are two main reasons
for the emergence of judicial
activism:
Rampant corruption amongst politicians and legislators,
as well as, to a smaller extent,machinery,
in the executiveincluding bureaucrats at all
idea )) levels
Total failure of the executive and politicians machinery
with regard to being fair to
the underprivileged and the
powerless
The emergence of judicial
activism as a means of imparting justice which would have
been otherwise denied, is
based on the assumption that
the judiciary is well-meaning,
sensitive,uncorrupt, courageous, fair, and has the mechanism and the
desire to obtain all the information necessary
for an objective and fair decision on the case.
A major consequence of judicial activism has
been a spate of PILs. There is no question that
in some cases this has led to the surfacing of
scams on a large scale and consequent exposure of leaders who have been taking the people for a ride. PILs have also opened the
way for articulate people to obtain a certain
advantage by playing on emotions and parading cliches that appeal to a certain section of our population. An example would be the
case in which environmental fundamentalists
have made use of the provision Of PJLS to prevent legitimate development and to deny the traditional rights of people over land or to
earn their)ivelihood.
It would, thus, appear that judicial
activism, while highly desirable in principle,
has not always been an unmixed blessing. I
feel concerned that people employed at the
lower levels in the prawn industry on the
eastern coast of Andhra Pradesh would be
rendered jobless if these industries are closed
under coastal zone regulations, or those
employed in inter-state timber movement
would have no work when such movement is
prohibited. It is surely a matter of concern if a
PIL comes in the way of development of
Kutch, one of the most deprived regions of
the country.
judicial activism, therefore, has its limitations. Firstly, the personal views of the members of the judiciary itself have not
always been rational or scientific. Many cases
Of PIL concern issues where, to arrive at an
opinion conceived in reason, one must have
all the complex and often highly technical
facts at command- Unfortunately, all such
facts that would be needed to arrive at an
appropriate judgment are either not made
available or are misrepresented by those who
file such cases. The much publicised case of
Narayan Sarovar Sanctuary would be an
example. Our official investigative agencies
are under pressure either not to investigate,
or to investigate inadequately, or to suppress
the facts that have emerged on investigation,
and they often succumb to such pressure.
There is no national policy conceived in
reason and well argued, with regard to
sustainable development. There is thus, no
policy which would define the nature and
extent of the trade-off between developmental strategies and environmental consideration that would bring long-term and sustamable gain for the people of the region concerned. We have no policies for declaration of
an area as a sanctuary or a national park; we
have rarely done so on the basis of a thorough
study and indisputable facts. And we do not
have a policy or a set of rules that an industry
set up in a backward region, which enjoys
concessions on account of its location, must
satisfy so that it becomes an instrument of
progress of the people of the region and not
merely a means to earn more money for
investors.
We have seen a mushrooming of nongovernmental agencies in the country. While this process must be welcomed, it would be
disastrous not to analyse it in detail. For
example, one of the consequences of this
process has been the emergence of many NGOS
which are highly politicised or which have as
much self-interest in their work as an average
politician in the country has in his. These
organisations are, therefore, as
much exploiters of the public CC There
and the oppressed as, in a way,
the politicians are. We have
not devised a mechanism to
distinguish such organisations
from those which provide
dedicated and selfless service.
There is a general disdain
in the country for facts, objectivity and social justice. What
wins is self-interest and not the
larger interests of the community or the nation. When this is
the all-pervading culture of
our country, it would be a miracle if our PILS are not tainted
by it. What should then be
done? Jn balance, judicial
activism is a good thing. We
must, however, ensure that it is tempered
with reason, with a penchant for facts, with a
genuine concern for the people, and with
caution.
---P M Bhargava is a distinguished molecular
biologist based in Hyderabad
RAJEEV DHAWAN
THE advent of Justice Kuldip Singh has been a
veritable tour deforce. In a relatively short but
decisive span - and amidst murmurings of
tough justice - he has cleared the industry
from the Taj trapezium in Agra and from the
Okhla Industrial Estate in New Delhi,
enforced uniform coastline regulation, and
issued many environmental orders ranging
from garbage collection in Delhi to the pollution of the Ganga. He nearly moved the entire chemical industry from Mumbai under circumstances which would have led to their closure. He left behind a sense of responsibility towards the environment, in government
and citizenry alike, founded on what he
recognised as the 'precautionary' principle
and the 'polluter pays' principle. But will the
court pursue Justice Singh's tour de force, or
will it soften it or abjure it altogether?
The justification offered by Justice Kuldip
Singh for his almost nagging persistence was
that the institutions responsible for environmental protection had failed to discharge their duties, necessitating strong supervisory
action by the court. But such failure is
endemic in governance in India. What the
court usually does in most ordinary cases is to issue (mandamus) orders to
is a remand the matter to the
authorities to do their job.
Judges are convinced that in
public interest litigation (PIL)
cases, a soft mandamus will not
do. The distinguishing feature
of Pit cases are four-fold:
democratic access, investigative procedures, wide scope
of non-adversarial inquiry and
schematic remedies.
To enter into a mindless
controversy over pruning PIL
seems silly. Suffice it to say,
myopic remedies such as
introducing a Rs I lakh deposit
for PH. cases are violative of
fundamental rights. The more
serious proposal, that if judges
are going to be reposed with
such fantastic powers, they
must be more carefully selected by a'judicial appointments
commission , needs to be
followed through. But the
proposal of the erstwhile Deve
Gowda government to place
the judges in a minority, and
to include the attorney-general
who appears for the govern-
ruent before the courts in such
a collegium, shows that the
government does not want to
make good appointments but
to retain control over the higher
judicial appointments.
However, the crucial question
is what happens next in the field of environmental law and policy. One view of the advent of Justice Kuldip Singh is that these
judicial interventions were transitional in
nature; and, the court will retreat into its
normal neutral, as opposed to activist, oversight role. If this is so, it follows that the major responsibility for protecting the environment reverts back to the statutory pollution boards, governments, magistrates and
ordinary courts. By this logic, henceforth,
the courts will issue 'soft' as distinguished
from 'harsh' mandamus orders whereby they
will remand the issue to the appropriate
authority rather than make and implement
decisions themselves. But will this work?
The test case for this is the forest case
before Justices I S Verma and B N Kripal in
which all mining and non-forest activities in
forest areas have been temporarily stopped,
all timber movement out of the north-
eastern states has been curtailed and severe
restraints have been placed on felling trees
and the timber industry. This ban is tem-
porary. Consistent with justice Verma's
judicial style, the judges hope that a mixture
of soft and harsh directions will make the
various governments do what the law
expects them to do. To this extent, discern-
ing observers feel that the swashbuckling era
of judicial activism (in the limited sense
described here) was a necessary interlude to
wake up everybody. But is it now over? More
importantly, is it wise to bring it to an end?
The implications of judicial restraint have to
be understood before a misplaced euphoria
takes us back to the bad old days when various
authorities were - and conceivably are -
making money trying not to enforce various
environmental regimes. The
question we now face is this:
Will the pollution boards do
their job? Will forest officers
and the government enforce
forest legislation and refer matters to the Union government?
Will magistrates issue appropriate directions on garbage?
Will administrators be able to
hold unscrupulous politicians,
builders and industrialists at
bay, resist temptation and
overcome fear?
After the four deforce, will
flue system suddenly spring
back into proactive enforcement? An inactive and inept
government regulatory system
invited judicial activism. If
judicial activism reverts to its previous less-
activist discipline, will the system (consisting
of government and various authorities)
suddenly find an activist environmental
courage which has so shamelessly deserted it
in the past?
What most people do not realise is that
environmental law, policy and enforcement
is very complicated. Devising an environ-
mental law and policy for one billion people,
where a large number of people live off the
land and forest and where a greedy few are
ever-willing to 'rape' the environment for
money, is not easy.
People interested in wildlife, bird
watchers, or those who have run a wildlife
park think that they know it all. Unfortunate
allegations are often made against lawyers
involved in environment cases, no less
because lawyers pick up strong environment
briefs to appear for forests in some cases and
against sanctuaries in others. At the same
time, environmental activists and organisations squabble amongst themselves to
give expression to personal rivalries and
personality clashes.
If environmental law and policy is to
advance with even a tolerable efficacy, we
need strong knowledgeable policymakers
and impeccable environment bureaucracies.
Battles over the environment have to be
fought with rigour. The loci of these struggles
is not and cannot be centered around the
Supreme Court and High Courts which in
lesser and lesser degrees can, and should, only
preserve an anxious and rigorous oversight.
We need to evolve meaningful procedure and
structures which can yield knowledgeable,
pragmatic and balanced decisions with
democratic accountability, public participation and decisional integrity. After justice
Kuldip Singh, chaos will surely continue to
reign if we do not get our total act together.
But after such an inspirational tour de Jorce,
we have less excuses for not turning the
various environmental regimes into effective
implementing nodes.
---Rajeev Dhawan is a senior advocate in the
Supreme Court
RAJIV VORA
T DOUBT whether whatever is called activism of
the judiciary could at all be called so, for the
term 'activism' bears a political meaning- to
an action carried out with a heightened
tempo. Any vigorous action, or performance
of duty is not activism. If the judiciary has
acted in a manner which could be clearly seen
as treading political grounds, then it may be
called judicial activism. Activism does involve
confrontation which results in a certain
change in respective powers of the parties
involved - one may say that power relations
change in a process of confrontation.
All this talk about confrontation between
the judiciary on the one hand and the legislative and the executive on the other seems to be imputing more meaning to it than it really
deserves. Did the judiciarv, in this process,
redefine its powers in its own favour or did it
only bring such of its powers to light which
were hidden so far? Or, did the judiciary
usurp some more power than what legitimately belonged to it but were so far unused?
However, the issue does not invite mere
definition. It is a practical situation where
certain quarters in the system of governance
did get alarmed at the new-found role of the
judiciary. Somewhere the question of authority
of supremacy
arose in matters of defining
and executing the law, and
therefore of sharing of power.
It is a matter, in fact, which is
internal to the institutions of
the state and therefore a concern, grave or otherwise, for
the ruling class.
An illusion even of the
redefinition of power disturbed
them. What an old peasant in
the gallows tells an evangelist in
Leo Tolstoy's Resurrection is
indeed very true about Indian
society and its present state:
"First they robbed us of our
land and our rights, then they
sat down among themselves to
make laws for us." Indian judiciary, whether
it encroaches upon the powers of the executive or of the legislature through its activism, should bother a common Indian peasant less
than those who are uncommon, for he is
already robbed jointly by each of the arms of
the modern nation state.
A true judicial activism would be one when
the judiciary gears itself up to give up a lot of
its powers, and therefore as a consequence, of
the legislative and similarly of the executive in
favour of empowerment of the various social,
political, economic and cultural units of the
perennial India as against the modern India,
which were robbed of their authority
and power in the process of building up this
modern state.
However, the inefficiency and corruption
in the system has made judiciary exercise
powers which surpass the authority of
political and executive arms.
Consequently, the nation has come to
see judiciary as the ultimate saviour and
protector. Though it has given a sense of
reassurance, it has wrongly put the judiciary
in a focus which should not be its. After all,
it is the only institution out of bounds for
any open public scrutiny; you cannot
even cast a doubt about its moral upright
ness even if stories of judicial corruption do
circulate.
For such an institution to acquire a public
posture is dangerous- It makes the process of
justice vulnerable to the human feelings of
ambitious persons in high judicial positions.
Courts and judicial process need not be
theatres or public shows. Our state is still new
for common people, what it does is beyond
their comprehension and also beyond their
sense of justice, morality and
public conduct. A balance
between the rights of the people and those of the ruling
class has yet to be arrived. In a
situation like this, if the judiciary plays a role to assist people, various sections of whom need to set a balance for themselves in the process of
negotiating justice with the
more powerful and therefore
corrupt ruling class, then such
a role would be a very positive
kind of'activism'.
---Rajiv Vora is a writer and
commentator and is associated
with the Gandhi Peace
Foundation, New Delhi.
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