This article is written by Kushang, a student from Himachal Pradesh National Law University (HPNLU). This article talks about various substantive and procedural innovation and their impact on environmental jurisprudence.

Introduction

“The only way forward, if we are going to improve the quality of the environment, is to get everyone involved.” The environment needs protection. But, this has to come by the efforts of everyone. In India, all three main organs namely the judiciary, executive, and legislature need to work together to achieve the aim of a healthy and safe environment. However, many times people question the role of the judiciary in this goal. Thus, the time has come to assess the role of the judiciary in this important issue.

Role of judiciary in the development of environmental law in India

With the change in time, the importance of environmental protection has gained more recognition not only by the people but also by the courts in India. The Supreme Court has actively participated in contributing to environmental jurisprudence for the last three decades. This participation of the court has not been restricted only to the conventional role of adjudicating and interpreting the environmental law of the country but also playing an active role in the formulation of new principles to protect the environment, creation of institutions for protecting the environment and conferring powers to them through various judgements and directions. This role of the court has lead to innovative methods in environmental jurisprudence like hearing a petition filed on behalf of another affected party, referring international environmental principles to solve domestic environmental problems, making spot visit to places to know the ground realities, the appointment of amicus curiae in environmental matters and seeking their opinion, and appointing various expert committees to implement the decisions and give suggestion in regard to environmental law.

The implication of the Supreme Court’s innovations for environmental jurisprudence

Procedural and substantive innovations and their impact

The innovative methods include both procedural and substantive features. Procedural innovations mean the judicial activities which develop or enhance the existing procedure of the environmental jurisprudence for protection and improvement of the environment. These include activities like expanding the sphere of litigation, hearing cases filed on behalf of another affected party, the appointment of expert committees, conducting field visits to know ground realities, and appointment of amicus curiae to represent affected parties. Whereas, the substantive innovations refer to the decisions of the court that creates, defines, or rejects policy and governance structure for environment protection and prescribes the method of implementation of such policies. These innovations include the application of new environmental principles, expansion of fundamental rights, and the creation of new structures and protection of the environment through the implementation of court orders. 

In simple terms, substantive innovation is the opposite to procedural innovations. Procedural innovations mainly deal with the procedure. However, they cannot be termed as mutually exclusive. Substantive innovation can lead to procedural innovation as well. For example, the inclusion of the Right to a healthy environment within the ambit of fundamental rights which can lead to the polluter paying damages for harming the environment. This would be a procedural innovation ensuring a healthy environment.

Concept of PIL

Public Interest Litigation (PIL) was one of the most important procedural innovations that took place in the 1980s. It allowed hearing petitions filed on behalf of the affected party even by third parties having sufficient interest in order to assert diffused and meta-individual rights. Earlier, this was not the case. When the third parties approached the court for seeking relief against an injury they did not suffer directly, the action was not maintainable as the focus of the court used to be on the identity of the petitioner and not the subject of the petition. PIL has helped to gain more attention towards environmental issues as earlier due to lack of knowledge not many had awareness about the problem of the environment.

The first PIL on environmental issues before the Supreme court was initiated in 1983. In the Rural Litigation and Entitlement Kendra & Ors. vs. State of Uttar Pradesh & Ors, quarrying activity created environmental problems. Due to this, landslides occurred which killed many villagers and destroyed their property. In 1961, mining was prohibited. However, the operations were started again in 1982 without any safety rules. Thus, PIL was filed before SC to seek remedies. After proper evaluation of the case, the SC ordered the closure of 101 mines in the area.

After the success of the above case, many PIL came before SC relating to environmental law. Ganga Water Pollution Case, Tehri Dam Case, Narmada Dam case, and Oleum Gas leak case, all were the result of PILs. Thus, PIL has helped change the form and substance of environmental jurisprudence. It provides many benefits like giving voice to inanimate objects,  which cannot represent themselves in litigation. However, there are certain concerns related to PIL which need attention. For instance, the PIL method can become an attention-seeking mode for a few individuals, and sometimes the case takes more than a decade to settle and thus, becomes an expensive mode of redressal.

Expansion of fundamental right to life

The constitution of India provides 6 fundamental rights to its citizens specified in Articles 14–32. Right to life is a very important fundamental right specified in Article 21 of the Constitution. The court started interpreting this right in the light of environmental protection and safety. Thus, the scope of the fundamental right started to expand.

For example, in the Dehradun Limestone quarrying case, it was held that economic growth should not be done at the cost of the environment and people’s right to a healthy environment. In the Ganga water pollution case, the right to life was expanded to include the right to defend the human environment for the present as well as the future generation. In M.C. Mehta v. Union of India, the court agreed that environmental pollution and industrial hazards lead to violation of the right to health.

In a country like India, where there is no direct law relating to the right to a healthy environment, it is the various interpretations by the Supreme Court which have helped in developing and formulating the environmental jurisprudence of the country.

Application of environmental principles and doctrines

Apart from the provisions in the environmental law of the country, there are various principles and doctrines laid by the court for the protection of the environment. These principles are taken from international environment principles and are used to solve domestic problems. Some of them has been listed below-

Polluters Pay Principle

It means that absolute liability for harm to the environment extends not only to compensate the victim of the pollution but also the cost of restoring the environmental degradation. This was laid out in case India Council for Enviro-Legal Action v. Union of India.

Precautionary Principle

This principle imposes an obligation on parties to anticipate, prevent and attack the causes of environmental degradation. In simple terms, the parties should take all necessary precautions for protecting the environment. Also, the industrialists carry the onus to prove that their activities are not against the environment. This principle was applied in various cases like M.C. Mehta v. Union Of India and Vellore Citizens Welfare Forum v. Union of India.

The doctrine of Public Trust

This doctrine relates to the obligation of the states to conserve natural resources. The state holds natural resources as a trustee and cannot commit a breach of trust. This doctrine was referred in the case M.C. Mehta v. Kamal Nath wherein states order to grant a lease to a motel located at the bank of Beas river was quashed as the motel interfered in the natural flow of the river.

These were few principles that expanded the scope of environmental jurisprudence in the country.

Expert committee

Various expert committees appointed by the Supreme court have made contributions to the results of environmental litigation. These committees help the court to analyse the case in a better manner. Some instances of expert committees playing a vital role –

• In the RLEK v. State of Uttar Pradesh and others (also known as Doon Valley case), the court appointed a committee headed by D.N. Bhargava to find whether indiscriminate mining had any inverse effects on the ecology. Based on the recommendations of the committee, certain mines were ordered to close their operation.
• In S. Jagannath v. Union of India, the intensive and semi-intensive aquaculture was declared harmful based upon the reports of the Central Pollution Control Board and the expert committees.
• In T.N. Godavarman v. Union of India, the court also ordered the state and central government to appoint committees to study problems and implementation of various programs for the protection of the forest.

Thus, expert committees play a vital role in helping the court in interpreting environmental jurisprudence. However, there are still certain issues that need attention like the composition and working of these committees.

Analysis of innovations affected by the court

Interference in the affairs of executive actions

The doctrine of separation of power has not been strictly implemented in India but rather a system of checks and balances exists between the judiciary, executive and legislature. However, it is now seen that this system has been lost. For instance, the intervention of the judiciary in every work of governance like environmental protection, human rights protection, etc. which are mostly dealt with by legislature and executive. But it is important to note that despite various statutory acts and constitutional provisions for the protection of the environment, the purpose of protection from environmental degradation was not achieved. Thus, the court had to step in and take measures for protecting the environment. This process is known as judicial activism where the judiciary expands its scope of jurisdiction and intervenes in matters not considered to be its domain.

This judicial activism has often been debated upon. The supporters are of the view that these interventions of the court help in correcting shortcomings on environmental issues. It helps to make the executive implement the policies in the correct manner. The court direction to the implementing agencies to implement the environmental law or following the ‘Polluter Pay Principle’ has been applauded by people.

Whereas, on the other hand, judicial activism has been criticised on grounds that it violates the principle of separation of power. This has led to resistance from administrative branches. Some argue that the court goes beyond the scope of its jurisprudence. For instance, the Godavarman case, which dealt with illegal timber operation in Nilgiris forest land led to the reformation of the entire country’s forest policy. It also neglects the right of tribals in the forest which in itself is contradictory to its policy of protecting tribal rights as held in Samatha v. State of Andhra Pradesh.

Thus, judicial activism of the court may have both positive and negative effects. It is no doubt that these interventions have helped in the jurisprudence of environmental law. But one cannot deny that due to such intervention and innovation, the environmental governance process has become more complex.

Implementations of court directions

Once the judgement is passed, it is the duty of the administration to implement it. The court may give directions on how the judgement has to be implemented but it doesn’t oversee or check its implementation. This allows the administration to take advantage of and not implement the judgement in the right manner or at the right time. There have been various instances where such events took place. The courts have issued judgement but they haven’t been implemented till. To cope with this, courts came up with the innovation of Continuing mandamus. This refers to conditions specified by the court wherein the administration has to implement the judgement within a time frame and give reports from time to time about the progress in implementation.

Thus, the court should pass orders that are feasible and can be implemented without much restraint. This doesn’t mean compromising on the issue but giving the decision on implementation considering all factors.

Advantages and disadvantages

Advantages

The substantive and procedural innovations have led to many benefits for Environmental Jurisprudence. Some of them are-

• The introduction of PIL helped in the representation of the people who were not aware of the environmental law or didn’t have enough means to fight in litigation.
• PIL also helped in the representation of inanimate objects, who were not capable enough to raise their issue.
• Expansion of Right to life added more dimension to environmental Jurisprudence.
• The introduction of Spot Visits by the judges helped in evaluating the ground realities of the environmental problems and thus led to better outcomes of the case.
• Various International principles and doctrines helped in solving domestic disputes. The application of such principles enhanced the scope of environmental jurisprudence.
• The appointment of the Expert Committee helped in evaluating the situation in a better way as the courts were not always specialised in the subject matter involved in the environmental dispute.

Disadvantages

The innovations also had certain limitations and shortcomings. Some of them are-

• In most of the cases of PIL, it was found that it was filed with little or no preparation.
• Sometimes, PIL was filed just for personalised and attention-seeking purposes without any intention to raise the real issue.
• The process also took a lot of time. Thus, the basic purpose of the innovation was undermined.
• Inconsistency in the filing of PIL and application of principles and doctrine also poses a great problem.
• The Polluter Pay Principle also gave an opportunity to ‘Pay and Pollute’ which did not pose many problems to large industrialists as they could pay and then again pollute.
• The creation of the Expert Committee led to statutory dilution and interference in the work of the administration. 

Issue and challenges in implementation 

There are certain major issues with the implementation of substantive and procedural innovations. Some of them are:

• Proper implementation is missing: The court’s direction in the Ganga river pollution case has not been implemented. The tanneries continue to operate even after strict action has been ordered against such industries. Similarly in the Oleum gas leak case, the victims of the gas leak have been left to ordinary relief of filing suits for damages.
• The conflict between the judiciary and executive regarding the separation of power: This resistance also leads to a delay in the implementation of the judgement.
• The court doesn’t follow up with the implementation process: This gives the opportunity for the administration to handle the issue as per their wish. Thus, proper supervision is lacking.
• The vagueness of legislative and executive roles in environmental protection
• The innovative methods have not been implemented consistently and have not been institutionalised properly.

Thus, for proper implementation, the above-stated challenges and issues have to be resolved. 

Conclusion 

The substantive and procedural innovations have contributed to a great extent in environmental jurisprudence. It has helped in protecting the environment. Although, there are certain issues related to the implementation of the decisions of the court relating to environmental disputes. Proper coordination is required among all organs of the country. The role of the court in environmental jurisprudence is very evident. However, only when the issues relating to the implementation are resolved, then only people’s belief on the court for intervening in environmental matters would become more clear.

References

• https://123doc.net/document/1103187-implications-of-indian-supreme-court-s-innovations-for-environmental-jurisprudence-potx.htm
• Law Environment and Development Journal Volume 4- Geetanjoy Sahu

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