ACTIVE ROLE OF JUDICIARY IN THE ENVIRONMENT

THIS ARTICLE WAS WRITTEN BY N. SETHU KIRAN A STUDENT OF V.R. LAW COLLEGE.

     In recent years, there has been a sustained focus on the role played by the higher judiciary of India indevising and monitoring the implementation measures for pollution control, conservation of forests and wildlife protection. Many of these judicial interventions have been triggered by the persistent incoherence in policy, yes in India, rights regarding to the environmental protection gradually increased by various decisions. Especially for the welfare of the environmental protection, since it gains importance from 1980’s. The Acts regarding for the protection of environment and forest and wildlife the government came forward with many acts such as Environmental Protection Act (1986), Forest Conservation Act (1980), Wildlife Protection Act of1972and other various acts regarding to pollution free environment. The Government also announces key policies regarding environment some of them are National Forest policy of 1988, Pollution Statement for Abatement of pollution (1992). There are nearly two hundred laws connected for benefits of the environment before and after the independence in our country. The department of Environment was established in the year 1980 to ensure healthy environment in the country. This later became the ministry of Environment and Forest in 1985. The Environment Protection Act came into force in the year 1986, after the Bhopal Gas Tragedy. Later on National Environmental Tribunal Act 1995, created the award for compensation of damages to person property and the environment arising from any activity involving hazardous substances.

In modern India, failure of the state agencies in effective enforcing the environmental law non- compliance of the polluters, degrading norms has resulted in degrading of the environment, responsibility of environmental protection upon the Judiciary. In some instances the judiciary has to not only exercise its role as an interpreter of the law, Judicial Activism in Environmental protection especially by means of various Public Interest Litigation has been initiated in various courts has gained importance. In accordance with the growing national awareness and with the global perspectives of environment and development, Right to healthy environment is established in constitutional interpretations of Article 21 of the Constitution of India. The provisions inserted in the Constitution by the 42^nd Amendment which is relating to the protection of environment. It is the part dealing in Directive Principles of State Policy as Article 48A and Article 51A (g) imposes duty on citizens to protect the environment and improve it.

Major environmental issues are forest and agricultural degradation of land, resources depletion like water mineral and forest sand rocks, environmental degradation. The major sources of pollution in India includes the burning of fuel wood and biomass such as dried waste form livestock is primary sources of energy, Air pollution poor management of waste, growing the water scarcity. The Supreme Court of India directly engaged in interpreting and introducing new changes in Environment Jurisprudence. The court laid down new principles to protect the environment and reinterpreted environmental laws created new institutions and structure and conferred additional powers to the existing ones through a series of direction and judgments

The Judiciary has come up with the judge-driven implementation of environmental administration in India like Public Interest Litigation which is the result of the relaxation of the locus standi rules by the Judiciary is the characteristic features of the environmental litigation in India. The disputes relating to the environment are treated as cases related to violation of fundamental rights rather than claiming under torts. The policy statements of the Government which observes as to enforceable in courts have been used as aids by the Judges for interpreting environmental statutes and for spelling out obligations of the Government. Some of the cases that makes remarkable judgments regarding to the environment, M.C Mehta vs. Kamalnath 1996 1SCC 38, M.I Builders Pvt.Ltd vs Radley shyamsalu AIR 1996 SC 2468, M.C Mehta vs. Union of India AIR 1997 SC 734 (Taj Trapezium case) emissions from the Mathura Oil Refinery had on the Tajmahal, The Supreme Court applied the principle of sustainability development to the case and apart from passing various directions stepped in to execution.

M.C Mehta has pioneered legal activism for environmental protection and is a proof that one makes a difference. He right to humane and healthy environment is seen indirectly approved in the MC Mehta group of cases, decided subsequently by the Supreme Court. The first MC Mehta cases enlarged the scope of the right to live and said that the state had power to restrict hazardous industrial activities for the purpose of protecting the right of the people to live-in healthy environment although the second MC Mehta case modified some of the conditions, the third MC Mehta case posed an important question concerning the amount of compensation payable to the victims affected by the leakage of Oleum gas from the factory. The Court held that it could entertain a petition under Article 32 of the Constitution and lay down the principles on which the quantum of compensation could be computed and paid. This case is significant as it evolved a new jurisprudence of liability to the victims of pollution caused by an industry engaged in hazardous and inherently dangerous activities. The fourth MC Mehta case was regarding the tanning industries located on the banks of Ganga River was alleged to be polluting the river. The court issued directions to them to set up effluent plants within six months from the date of the order. It was specified that failure to do so would entail closure of business. The four MC Mehta cases came before the Supreme Court under Article 32 of the constitution on the initiative of the public-spirited lawyer. He filed the petitions on the behalf of the people who were affected or likely to be affected by some action or inaction. The petitioner had no direct interest in the subject and had suffered no personal injury. Still standing to sue was not raised at the court. The Supreme Court has further expanded Right to life in recent years. In Consumer Education and Research Centre v. Union of India, the Court said, that this fundamental right to health and medical aid should continue even after retirement. Significantly, the Court said that in appropriate cases, appropriate directions could be issued to the state or private employer with a view to protecting the environment, preventing pollution in the workplace safeguarding the health of the workmen or preserving free and unpolluted water for safety and health of the people. Directions were issued to the asbestos industry, and the union and state authorities are meant to fill up the yawning gap in the interpretation of the law. The concept of compensation for environmental degradation has evolved at a pace over a period. It started with the strict liability principle followed by the absolute liability principle and then compensation under Article 32 and finally the polluter pays principle.

In our country, according to the Article 48A of constitution it is the one of the duty of the Government to protect and improve the environment and safeguarding of forests and wild life. So that Parliament of India, pass the Act of National Green Tribunal (2002). The NGT Act which enables creation of special tribunal to handle the expeditious disposal of the cases pertaining to environment issues. It is enacted under India’s Constitutional provision Article 21, which assures the citizens of India the right to healthy environment. The origin of National Green Tribunal was in June 1992, summit of United Nations Conference on Environment and Development, India vowed to provide Judicial and administrative remedies for the victims of the pollutant, other environment damages. Some of the orders of NGT was Yamuna Conservation Zone, Coal Blocks in Chhattisgarh forests, Ban on decade old Diesel Vehicles at Delhi (NCR) Region.

The court directs the issues relating to the environment laws beyond the general question of law as usually expected from highest court of the country. The Supreme Court of India in its order includes executive actions and technical details of environmental actions to be implemented some critics of India’s Supreme Court describes as the court as the Lords of Green Bench. The Supreme Court terms of laying down new principles of law and in delivering Environmental Justice. The proponent claims that the Supreme Court has through intense judicial system become a symbol of hope for the people of India, as result of judicial activities in the country rights of persons on the environment as been diversely increased.

The rules and regulations, protection and preservation of the environment is still a pressing issue. Hence there is a need for an effective and efficient enforcement of the constitutional mandate and the other environmental legislations. A strong foundation for environmental jurisprudence in India helped in the protection and preservation of its environment as well as its people. The judiciary is also criticized for overstepping the administrative function and for lack of expertise on the environmental matters. In the past few years, there are several judgments have not been implemented for lack of political or administrative will or because of other lacunae. Nevertheless Judiciary is actively playing its role in spite of repetitive failure of other organs. In public perception, the judiciary is the last hope and it is necessary that the executive enforces its orders. In addition, the role of concerned citizens, NGOs and the media visual enactment of various provisions of the law, especially related to development and environmental issues, have become phenomenal.