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Writ jurisdiction and environment protection : the forever friendship

November 05, 2021
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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides an understanding of the friendship that exists between writ jurisdiction and environment protection by means of case studies. 

Introduction 

In the last few decades, the Indian courts have extended their support towards protecting the environment from degradation, pollution, ecological imbalance, and deterioration. The courts have recognized the right to live in a healthy environment as a fundamental right under Article 21 of the Indian Constitution, because of which writ jurisdiction has been enforced in frequent times. A lot of industries, tanneries, professions associated with environmental degradation such as mining, have been closed, advised, and directed by the courts to uphold environment protection as a serious issue. In many cases, it has been noticed that the Indian courts have referred to international conventions, treaties to explain the concept of sustainable development through their judgments. This article embraces such efforts by the Indian courts and intends to help the readers with a better understanding of the importance of writ jurisdiction in safeguarding our environment by means of notable case laws. 

Writ jurisdiction and environment protection

A writ petition can be filed before the Supreme Court, and the High Court under Articles 32, and 226 respectively, in order to safeguard the fundamental right that has been infringed. Writ petitions have often been restored in environment cases since the right to a free and healthy environment has been an implied fundamental right recognized by Part III of the Constitution of India. 

Subhash Kumar v. the State of Bihar (1991)

The Supreme Court of India in the well-known case of Subhash Kumar v. the State of Bihar (1991) clarified the fact that public interest litigation cannot include any personal interest of the person submitting a PIL before the court of law. In the present case, the petitioner had filed a writ petition before the top court by means of a PIL alleging that the respondents, TISCO were responsible for polluting the river Bokaro by discharging surplus waste in form of slurry as effluent from their washeries into the river thereby making the water unfit for drinking and irrigation purposes, and causing risk to the health of the people. The petition mentioned that the State of Bihar and the State Pollution Control Board had failed to take appropriate measures for the prevention of pollution and the State of Bihar had also granted leases on payment of royalty to various persons for collection of slurry. The petitioners had contended that Article 21 of the Constitution of India, 1950 includes the right to the enjoyment of pollution-free water and air, and this allows a citizen to invoke Article 32 for removing pollution. 

After finding out that there existed no concrete evidence on the part of the petitioner which could support his allegations on the respondent, the Supreme Court observed that public interest litigation should only be resorted to by a person in order to protect the interest of the society. Enforcing personal interests by grabbing public interest litigation is an abuse of the process of the court of law, and therefore the same must not be entertained. 

AP Pollution Control Board v. MV Naidu (1999)

A bench of Justices S.B. Majmudar, and M. Jagannadha of the Supreme Court of India while deciding on the case of AP Pollution Control Board v. MV Naidu (1999) accepted that the Precautionary Principle and the Polluter Pay Principle are significant parts of the environmental law of India. The respondent’s company was incorporated as a public limited company with the object of setting up an industry for the production of B.S.S. Castor oil came under the radar of the petitioner who contended that the respondent company could not have commenced civil works and construction of its factory, without obtaining the clearance of the petitioner.  

The judgment of the Apex Court in this present case is interesting to note because of the following observations that have been made by the Court in light of the present case;

  1. A suggestion regarding setting up of Environmental Courts on the regional basis with one professional Judge and two experts was provided to the Government of India concerning the increasing number of cases in relation to the environment protection involving assessment and evolution of scientific and technical data appearing before the Court. 
  2. The Supreme Court restricted its jurisdiction only to entertain appeals in cases mentioned in the previous pointer. 
  3. A need for amending the notifications issued under Rule 12 of the Hazardous Wastes (Management & Handling) Rules, 1989 was highlighted by the Supreme Court in this case. 
  4. A team of both judicial, and technical members are to be included appellate authority under the Water (Prevention of Pollution) Act, 1974, the Air (Prevention of Pollution) Act, and the appellate authority under Rule 12 of the Hazardous Wastes (Management & Handling) Rules, 1989, under the notification issued under Section 3(3) of the Environment (Protection) Act, 1986 for National Capital Territory and under Section 10 of the National Environment Tribunal Act, 1995 and other appellate bodies. 
  5. The principle of inter-generational equity was highlighted by this Court while reiterating the need for protecting the environment from degradation from the provisions of the 1972 Stockholm Declaration
  6. The respective state governments were directed to take adequate steps to communicate the present judgment to their respective State Pollution Control Boards and other authorities dealing with such subjects so as to adopt appropriate actions that can be taken expeditiously as indicated in this judgment.

Narmada Bachao Andolan v. Union of India (1998)

A well-known case that received worldwide attention in concern with the fifth largest river in India, Narmada knocked the doors of the Supreme Court of India by the name of Narmada Bachao Andolan v. Union of India (1998). The issue, in this case, was the construction of the Sardar Sarovar Dam on the Narmada river. The petitioners, in this case, had sought to contend that it was extremely necessary for some independent judicial authority to review the entire Sardar Sarovar Dam project thereby carrying out examination on the basis of the current best estimates of all costs (social, environmental, financial), benefits and alternatives in order to determine whether the project was required in its present form in the national interest or whether it needs to be re-structured for the future. The petitioners went ahead to point out that no work should proceed till environment impact assessment had been fully carried out and its implications for the project viability was being assessed in a transparent and participatory manner. This would therefore serve as a comprehensive review of the project. 

The Supreme Court of India while disposing of the case laid down ten directions that were to be adopted by the respondent in the process of construction of the said dam;

  1. The construction of the dam should abide by the directions provided by the tribunal;
  2. Environment clearance was required to be given by the Environment Sub-group under the Secretary, Ministry of Environment & Forests, Government of India.
  3. Clearance on the construction of the dam was to be given by the Relief and Rehabilitation Sub-group.
  4. Permission as to whether the height of the dam could be raised beyond 90 meters was to be provided by the Narmada Control Authority, from time to time.
  5. The states of Madhya Pradesh, Maharashtra, and Gujarat were to abide by the reports of the Grievances Redressal Authorities.
  6. The Environment Sub-group was to continue monitoring and ensuring that all steps were taken not only to protect but to restore and improve the environment.
  7. The Review Committee was to mandatorily meet whenever it was required to do so in order to solve unresolved disputes.
  8. An Action Plan was to be implemented in order to ensure relief and rehabilitation of pari passu with the increase in the height of the dam.
  9. The Grievances Redressal Authorities were provided with the necessary liberty in order to issue appropriate directions to the respective States for environmental protection.
  10. Every possible measure was to be adopted to see that the project was to be completed expeditiously. 

MC Mehta v. Union of India (2008)

The case of MC Mehta v. Union of India (2008), familiarly known as the Taj Trapezium case, involved the Supreme Court of India to direct the Uttar Pradesh government to implement protective measures for securing the environment that was being affected by the industries surrounding the Taj Mahal monument. With the monument being threatened with deterioration and damage not only by means of the traditional causes of decay, but also by changing social and economic conditions, and the latter being in a much more aggravated form in comparison to the former, it drew the attention of the top court. The major sources of damage caused to the Taj according to the petitioners are the chemical and hazardous industries and the refineries at Mathura. The particular matter contributing to the overall pollution, and degradation of the monument in totality was sulphur dioxide as was found by the Report of the Expert Committee called “Report on Environmental Impact of Mathura Refinery” (Varadharajan Committee) and was published by the Government of India in 1978. Further, the Apex Court had also taken note that due to the rapid industrial development in the Agra-Mathura region, acidic emissions have resulted into the atmosphere at an alarming rate thereby not only affecting the monument but also the people residing in the region. The directions that were given by the Court in light of this case as a part of the judgment have been listed below;

  1. The Court ordered the setting up of the hydrocracker unit and various other devices by the Mathura Refinery so as to curb the growing degradation of the environment.
  2. The Court directed the Mathura Refinery to set up a 50-bed hospital and two mobile dispensaries, so as to provide medical aid to people living around the refinery.
  3. The construction of the Agra bypass to divert all the traffic which passes through the city was also directed.
  4. The construction of Gokul Barrage for the supply of drinking water to the residents of Agra was ordered by the Apex Court.
  5. The green belt was to be set up on the recommendation of NEERI.
  6. The Planning Commission (presently the Niti Ayog) was suggested to sanction a separate allocation of land for the city of Agra and the creation of a separate cell under the control of the Central Government to safeguard and preserve the Taj.
  7. Shops functioning within the Taj monument were directed to be closed. 

Lafarge India Pvt. Ltd. v. Union of India (2011)

The High Court of Himachal Pradesh while deciding the case of Lafarge Emami Pvt. Ltd. v. Union of India (2011) took note of the danger possessed by environment clearance for the purpose of infrastructural development in the nation. Appeals were filed by the National Environmental Appellate Authority concerning the same. The petitioner company had contended in this case that the environment clearance was granted to the company following the process laid down by the Environment Impact Assessment. The Hon’ble High Court was of the view that even if the matter in concern was an administrative one, the doctrine of judicial review will be applicable as the administrative authorities are bound by the common law doctrines just like the judiciary. 

Gulf Goans Hotel Company Ltd. v. Union of India (2014)

A bench of Justices Ranjan Gogoi and M.Y. Eqbal took note of an appeal filed by the Gulf Goans Hotel Company Ltd against the respondent, a non-Governmental body who had claimed to be dedicated to the cause of environmental and ecological safeguard, and well being of the state of Goa, in the present case of Gulf Goans Hotel Company Ltd. v. Union of India (2014). While deciding on this case also, the Apex Court took reference to international conventions and treaties, majorly focusing on Principles 7,11,14, 23, 24 of the Stockholm Conference. While dismissing the writ petition filed by the appellants, the Supreme Court of India noted that the respondents’ contention involved the well-being of a large number of people living in the state and their right to life under Article 21 of the Constitution. The Court further held that violation of Article 21 cannot be subjectively and individually determined when parameters of permissible and impermissible conduct are to be legislatively determined under Sections 3 and 6 of the Environment Protection Act, 1986

Indian Council for Enviro-legal Action vs. Union of India (2011)

The Supreme Court of India made an extraordinary observation in the case of the Indian Council for Enviro-legal Action vs. Union of India (2011), a case which was breathing for over 15 years to reach a logical conclusion. This case sets a classic example of the abuse of the process of law by the respondent company. Familiarly known as the Bichhri village case, the present case shows the sanctity and credibility of the judicial system in general. The Apex Court directed that all chemical industries irrespective of their size should be allowed to be established only after taking into consideration all the environmental aspects that are to be abided by and monitoring their functions to ensure that they do not pollute the environment around them. Taking into account that most of the industries in association with this case are water-intensive industries, it was advised that the establishment of these industries in arid areas may also require examination, and appropriate directions were directed to be issued as per need, in accordance with Sections 3 and 5 of the Environment Act. It is the responsibility of the Central Government to mandatorily ensure that the directions given by it are implemented efficiently. 

Conclusion 

There exist a plethora of case laws that have been a guiding light for the citizens of the nation to extend their help towards environmental protection. Judicial interpretation of different existing constitutional provisions and environment legislations have been the only possible way to secure the environment for the coming generation. Important concepts like sustainable development, precautionary principle, polluters pay principle, intergenerational equity has seen the light of the day because of the decisions made by the Indian courts in connection with the environment. The power of the judicial precedents has been such that the entire environment law jurisprudence has acquired a shape due to the same. This article puts forth a list of seven necessary case laws that are to be well-acquainted with to understand the significance of environmental protection. With the development of the nation at its peak, one cannot ignore the relevance that the environment holds in modifying the development process. 

References 


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