"The awareness here is dismal"

Karnataka High Court's Justice M F Saldanha has emerged as one of judiciary's standard bearers in the ongoing battle to save the environment. His judgement on tree felling in Mumbai (in 1994, when he was with the Maharashtra High Court) stipulated the need to transplant and maintain two saplings for each tree cut. He will also appear as a witness in a tree felling case that he had personally filed. Justice Saldanha speaks to Keya Acharya on the state of environmental affairs in Karnataka's judiciary

Published: Saturday 15 March 1997

On not being assigned any environmental cases, although he is known for being interested in environmental affairs:
I have been deliberately kept away from anything to do with the environment as far as assignments are concerned. The reason for not assigning any such case to me can only be answered by the Chief Justice. I can tell you that immense damage has been done to the Cubbon Park case (public interest litigations (pil) were filed against official negligence of Bangalore's main park) as a result of my being shifted. This case was suo moto .

On how the restriction on taking up cases suo moto by judges affected him:
It has not affected me in the least. I can still do personally whatever I want to for environment protection.

On being effectively sidelined:
It makes no difference to me, unlike others. But the other point is that there are a very large number of environmental issues in Karnataka that the court should take up. I can even catalogue them. There is the example of the level of elephant poaching and that of smaller animals like deer and wild boar in Karnataka's forests, which are being mercilessly butchered and their meat sold openly in markets. In my view, the devastation of forest life in Karnataka is amongst the highest in the country. Poaching cases are hardly registered, and when they are, the culprits go free.

On the kind of pressures that can be brought to bear on a case, considering the state's aggressive policies that have come into conflict with environmental safeguards and the interests of local communities. The government's 1996 guidelines mention ecological measures, but nothing has worked as yet. On how this bears in court:
The court has done absolutely nothing. The court in Karnataka should have come down heavily with regard to poaching and pollution of waterways. Another thing is that no environmental 'cases' as such come to court. Who's going to file these cases? pils come up regarding these matters, but the courts go on adjourning them.

On the reason the courts adjourn environmental matters:
That question you'll have to ask the concerned judges. But I can say that as far as the Karnataka court is concerned, it is hopelessly allergic to pils, as its track record shows. A large number of pils are filed, but I can count on my fingertips the ones which have either been entertained or any effective judgement passed. This, according to me, is a fault of the judiciary.

On possible future rectifications:
As far as our High Court is concerned, I don't visualise this, because our High Court has issued a direction to the judges saying they are not to take action in such cases. As far as I am concerned, it doesn't bind me, because constitutionally I know my powers. If I feel that the need arises, I will take action.

The awareness here is dismal. Let me give you an example: my interest in environmental matters was a source of amusement to others in the field last year. A senior lawyer termed it as "extracurricular activities" or "dabbling in environmental matters".

On the level of environmental teaching in the law curricula:
This subject is unheard of in law colleges -- there is no teaching of even environmental laws. This, maybe, is a reason for the poor awareness in the judiciary. But whatever it is, it's a sad reflection. And now whatever is happening is due to lack of knowledge in this field. Some judgements, in my view, are even wrong.

On 'judicial activism':
This word, to start with, has been given a somewhat bad connotation by the media. This is because the courts have been dormant and inactive for a long time, especially in environ mental and developmental cases. This has been the real fault. The judges are required to do their work boldly according to the need of the time. If a river is being polluted, the judges should be required to stop it then and there and not worry of what the government thinks. The judiciary could, of course, say that they are already overloaded with traditional types of cases. This is one excuse used by the judiciary. Also, there are very few judges who have enveloped these cases. Justice Krishna Iyer, Justice Bhagwati and Justice Kuldip Singh have been doing it confidently.

On the general lack of interest in environmental matters.
Should the judiciary not lead the way in creating interest? For instance, I'm told that in Karnataka male elephants are being trapped and sold to poachers under the guise of being sold to temples. How many temples can afford to keep elephants? Who is looking into the matter? In situations like these, where one knows that politicians and bureaucrats are doing nothing and the legislature of course is too involved with its own games, the only body left is the judiciary. Should the judiciary then not come out when it has the power to uphold laws, particularly when people point it out to them? People come to me with problems. Why? Because they know I'll listen and take the trouble to try and redress them. It's not just complaints that come; sometimes there are very good suggestions too.

On the future of enviro-legal issues:
You have to force them. You don't have to file a pil; that's a total misnomer. You can very well file it in your own name, saying as a citizen of this country you are aggrieved by what is happening. The judge cannot tell you it's none of your business. In the old days, you might have been called a 'busybody'. Justice Pandian would call such people filing cases as 'mischief mongers', 'wayfarers'. Not any more. I had suggested to the Chief Justice of Karnataka and Justice Rajendra Babu to set up a green bench, but they did not take it seriously. But sooner or later this will happen.

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