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Environmental Justice: Courts & Beyond
Introduction
Given the fact of poor and ill-conceived nature of law and ill-equipped administrative apparatus in wrestling with the twin challenges of meeting the demands of development and the concerns of environmental conservation and protection,1 attention naturally turns towards the third limb of the government - the judiciary - to examine its role in Environmental governance. This paper proposes to examine the role of judiciary at two levels: as facilitator and catalyst of better enforcement of laws and as pathfinder to the administration and panacea to environmental ills in India. This is followed by a critical overview of the downside of the formal frame, as symbolised by the hierarchy of Courts. The analysis ends off with the need to explore, recognise and evolve alternatives not as supplants and substitutes, but more as additional tools and techniques to broad-base environmental justice delivery in the country.2
Judicial Facilitation of Good Environmental Governance: Complementing & Catalysing Enforcement
The enquiry, more specifically, as attempted in this chapter, is to find out whether the Courts of law have played a complementary role as to make the environmental administration more effective and efficient. The higher judiciary has, as could be seen from the following, often times, supplied the details of procedures to be adopted in implementing a law; overseen the stages and processes of enforcement; clarified doubts as to the circumstances when the discretionary power of administrator be put to use; facilitated inquiry to enable the enforcer find facts and with the help of expert advice, strengthened implementation in a more effective way.
Judicial Innovations
Innovativeness, in putting to use the existing tools of justice delivery to facilitate better administration, has been the hallmark of judicial intervention over environmental issues. Reference to the following devices employed by the Courts, by way of illustration, would substantiate the observation :
Guidelines for Implementation:
By setting a detailed set of procedural guidelines for implementation, the Courts have constructively contributed for better enforcement. This can be illustrated by reference to what the Gujarat High Court evolved in relation to Public Hearing3 process. The notifica tion on Public Hearing, was devised by the Minister of Environment & Forests, Government of India, to provide an opportunity for the local people to get to know about and participate in the process of decision making over developmental activities that are likely to affect their lives. It involves a specific process of eliciting suggestions, views, comments and objections by all the concerned. Existence of wide discretionary power in favour of the district administration in the choice of the method and manner of conduct of the process had resulted in its abuse and neglect. These, at times, gave the impression of enactment of a farcical drama. This prompted a public spirited action group approach the Gujarat High Court seeking its intervention to uphold the spirit of the law. The Court responded positively by enunciating a set of guidelines for proper conduct of Public Hearing.4
The order issued by the Court is, indeed, a model for the administration for its clarity and lucidity as to the stages in the implementation of the law on the point. It spelt out with great detail the most appropriate way of going about the process and the nature of preparation required for the same. It covered details as to the most suitable place of conduct of public hearing; the nature of publication of information about it; the kind and the quality of information to be made available for public scrutiny before the commencement of the process; the quorum and the nature of composition of the committee; making available information of the follow-up action leading ultimately to providing the gist of the environmental clearance and the like.5 While the primary obligation of working out the details of procedures for implementation remains with the administration, inconsistency and non-uniformity in their adoption and the cavalier attitude in the organization of the activity in its entirety compelled the court to intervene in working out the details of procedure. The outcome was, indeed, a welcome one as it enabled the administration to minimise arbitrariness in the Public Hearing process.
Continuing Mandamus
In any given case, as a general rule, once the judgment is passed it is left to the administration to execute the judgment so as to give effect to it. In the judgment, though the court issues directions to the agencies of the state as to how its decision has to be implemented, it will not be there to oversee its actual execution. Nor, would the court examine the extent of its implementation and the nature of its impact. The enforcement agencies, in a number of instances that involve public interest, are found to have taken advantage by postponing or not implementing decisions, under one excuse or another. It became a common phenomena, compelling the very people who successfully fought the case earlier, to approach the court again and again to activate an unwilling and recalcitrant administration in order to give effect to the judgment. So, while the judgments on a number of litigations in public interest were hailed as path-breaking, the misery and suffering of people, to ameliorate which the court was approached, continued unabated. complacency, indifference and casual approach to human problems continued without much perceivable change, notwithstanding great judgments. This promoted the higher judiciary in recent times, to come up with yet another innovation: continuing mandamus.6 The technique adopted by the court is quite simple. Instead of passing a judgment and closing the case, the court would issue a series of directions to the administration, to implement within a time-frame, and report back to court from time to time about the progress in implementation. This, in a way, has helped people not turn cynical to landmark judgments rendered un-implementable or suffering the ignominy of non-implementation. The other advantage, more importantly, has been the extending of scope for the administration to be strengthened with the directions of the court, at every stage and clear the hurdles for effective implementation. This has further opened the avenue for the administration to plead with the court to revisit and modify its earlier directions, to make them more effectively implementable.
The case on point is the one concerning Vehicular Pollution.7 It started in 1985 as a case seeking directions from the apex court for closure of industries responsible for health hazards and to regulate pollution of the air caused by automobiles plying on the roads of Delhi and thermal power plant there.8 The case is yet to be finally decided. Instead, a series of orders passed by the Supreme Court that concern controlling vehicular pollution, is still in different stages of implementation.9 The court adopted a novel method in making the administration work. It made the government create a think tank, seek and secure expert opinion, make preparations for implementation of directions and report at every stage the progress made in achieving the objective. It was indeed an effort by the judiciary to assist, partner and guide the administration in cleaning the atmosphere of Delhi and present a model for the rest of the country to emulate.10
Finding Facts
With the relaxation of procedural requirements in presentation of petitions in public interest, the higher judiciary began receiving complaints that required further probing, to be entertained as cases fit for its consideration. The administration in question, under such circumstances, were either not forthcoming or found themselves deficient in supplying the required information for the court to arrive at a decision. In order to enable the administration to keep their records upto date, while deliberating to take developmental decisions and function effectively, the courts began instructing the government to appoint fact-finding bodies and to follow it up with action or receipt of the report.
In Banwasi Seva Ashram v. State of Uttar Pradesh,11 the complaint concerned efforts in the eviction of the inhabitants of the forest area by the Government, ignoring their claims, with the ostensible object of creating a reserve forest. The Supreme Court instructed the State Government to constitute a high powered Committee, to investigate the claims. Dubbing the already existing one as a biased committee, it ordered for a new one to be put in place. It even gave suggestion as to the composition of the body, so that it acted objectively and impartially. Upon being informed by the State Government, of making available the land under contention to the National Thermal Power Corporation (NTPC), the Court allowed for such a transfer only after extracting an assurance from the latter to provide certain facilities approved by it. The Court set out in detail the kind of safeguards to be taken to rehabilitate the oustees.12 The rehabilitation package evolved by the highest court, indeed, became a model for the NTPC to later develop its own policy of Resettlement and Rehabilitation.13
Amicus Curiae (Friend of the Court) :
Over a number of public interest issues, the Courts of Law, have put to use the services of Law Practitioners as to extend beyond offering services to the parties to the suit. Especially in environmental litigations, there have been increasing instances of their getting entrusted with the functions of amicus curiae, to assist the Court to peruse, analyse and collate materials submitted by the parties. They may also be required to do research and make submissions to the Court on points of law. This assistance in tackling complex environmental and policy issues, has without doubt helped the Court of Law pay focussed attention to the issues on hand. Moreover, this device is of great utility in opening up fresh avenues for the parties, especially the administration, to freely interact, in an informal atmosphere and secure environmental justice.
The ecological problems created by stone crushing in the hills around Shimla (like devastation of forests; landslides and choking of hydrological systems), made the Himachal Pradesh High Court appoint a team of practitioners of law as amicus curiae to study the situation and evolve a legal solution, in the case of Court on its Own Motion v. State of Himachal Pradesh.14 This measure helped the court to frame a scheme to protect the eco-systems of the region while at the same time ensuring the economic interests of the quarry contractors were not adversely affected.
Special Commissions and Expert Opinions
In ascertaining facts, the Courts may, at times require the authorities to make available certain information through affidavits. When the Higher Judiciary is of the opinion that the information furnished is deficient, unreliable or unhelpful or when the concerned agency is not forthcoming in giving the information required, it may appoint Special Commissions to gather the required information and expert committees to examine scientific questions. Such appointments are made in exercise of inherent powers existing in the High Courts and Supreme Courts.15 The reports and findings so secured are invariably treated as prima facie evidence. In L.K. Koolwal v State of Rajasthan,16 the Rajasthan High Court relied upon the report about the unsanitary conditions in different parts of Jaipur, as submitted by the Commissioner appointed by it.
The Irish Butter case,17 involved enlisting of expert opinion. It was charged that the butter imported by the governmental agency for distribution in Bombay was irradiated on account of the Chernobyl disaster. The Supreme Court released the butter for distribution only after the expert committee reported that the butter was safe from contamination.
Special Commissions and Expert Committees have not just been approached only for the purpose of getting expert opinion.18 They have, at times, been employed for the purpose of overseeing the implementation of the orders of the Court as well.19
Orders & Directions
Issuance of clear and specific orders for execution, resulting in tangible results has made judicial intervention effective and significant. They also, in a way, helped the administration perform their functions, effectively and without hindrance. These have, indeed, been very helpful for the administration do their duties without fear or favour. The host of orders and directions issued in T.N. Godavarman Thirumulkpad v. Union of India,20 present a classic and illustrative example. Freezing all wood-based industries; regulating felling ; use and movement of timber across the country, catalysing the process of clear demarcation and recording of forested areas and many more forest conservation activities were achieved through this process.21
Jurisdiction Grabbing ?
These efforts of the higher judiciary are, without doubt, unprecedented. The measures appear to be an invasion over the administrative terrain. The courts, however, have denied any such usurpation. In their pronouncements,22 they have justified their action either under a statutory provision23 or as an aspect of their inherent powers.24 It is undeniable that the devices employed by the higher judiciary secured details of facts (when the information made available turned out to be sketchy), overcame complexities of social, economic and scientific issues (through expert testimony) and ensured continuous supervision of its orders. Environmental administration got a shot in the arm through such judicial interventions and innovations.
P.I.L. To Cure Environmental Ills: An Evaluation
PIL, Human Rights & Environmental Justice
The constant increase in policy and administrative interventions of the higher judiciary is due to a variety of factors like - reposition of confidence in them by the litigating members of public, as the final resort of justice; - as a matter of sheer necessity to activate and make the administration function well25 and - as an aspect of its legal and constitutional obligation of rendering justice.26 The most commonly used vehicle for this purpose has been the instrument of Public Interest Litigation (PIL).27 This has been by and large, a post-Emergency phenomenon in India.
The National Emergency declared in 1975 suspended all the political and civil rights of citizens. Soon after the Emergency was lifted, a group of activist judges at the highest court, in their attempt to reassert the institutional credibility as the protector of peoples’ rights and to curb excesses of State, through the device of PIL, virtually opened the doors of the court entertaining petitions in public interest. The inspiration to Indian judiciary for the employment of this tool was, indeed, the post-World War II liberalism and the broad-basing of public interest law actions by the Supreme Court of United States.28 More specifically, the manner in which Chief Justice Warren dealt with the problems of desegregation, discrimination and zoning through affirmative action in Brown v. Board of Education,29 is believed to have given the required impetus for Public Service Lawyering everywhere. In course of time, PIL encompassed a wide range of issues including problems concerning environmental protection. The contributions of the Indian Supreme Court, followed and developed by the High Courts in different states, in this regard, is perceived as a broader judicial commitment to rectify the failure of other branches of government.30
It must be noted here that while the higher judiciary in India is still expanding its pro-active environmental friendly jurisdiction, its counterpart in the U.S. is in retreat, as evidenced in the case of Steel Company, AKA Chicago Steel and Pickling Company v. Citizens for Better Environment.31 The Supreme Court of U.S. denied standing and refused to exercise jurisdiction to a citizens suit for violations in the part by industries that failed to file timely reports of storage of toxic and hazardous chemicals. The following analysis of the use of the PIL device by the courts of law, for rendering environmental justice, attempts to highlight its positive and negative features.
Positive Aspects
The positive impact of judicial intervention in relation to environmental problems has been such that it has dramatically transformed the form and substance of legal landscape in India. It has impacted the characterization of individual and collective rights guaranteed under the Constitution and the procedures established by law and practice in accessing them. This has also been responsible for creation of evolving new rights, approaches and principles to secure them.
Elevating Environmental problems to the status of violation of Fundamental Rights
The credit for the creation of a host of environmental rights and enforce them as fundamental rights, goes to the higher judiciary in India. This is very significant, as one learns from experiences elsewhere. The legal system may guarantee a Constitutional right to Environment and statutes may accord the right to participate in Environmental protection. However, when no tools for their protection is made available, then they are as good as non-existent. This is the experience in Spain,32 Portugal,33 Brazil34 and Ecuador.35 Indian experience contrasts very significantly from this. There is no direct articulation of the Right to Environment anywhere in the Constitution or, for that matter, in any of the laws concerning environmental management in India. But this has been seized from below, by activist lawyers, motivating the courts to find and construct environmental rights from the available legal material. The salutary effect of such an articulation is of insulating the right, like any other fundamental right, from any legislative prescription or administrative action leading to its violation. Constitutional remedies, in the form of writs, are available for any violation of the right. One may approach the higher judiciary directly by challenging the state action for its violation.36
What the courts have achieved in a little over a decade and half, is to view the fundamental right to life37 to include different strands of Environmental rights, that are at once individual and collective in character. Thus, in the Doon Valley Litigation,38 the Supreme Court found the indiscriminate granting of licences to limestone quarries, that resulted in soil erosion, deforestation and silting of river beds, as affecting “the right of the people to live in a healthy environment with minimal disturbance of the ecological balance.”39 Several High courts observed that environmental degradation amounted to the violation of fundamental right to life.40
The content of the right, from its vague and general formulations, began getting viewed in far more clearer terms as the courts started addressing specific environmental problems. In a cluster of cases, it was considered as a right to protection of human health.41 Pollution free air and water as an aspect of the right got articulated in a few others.42 From characterising the right in a negative sounding obligation, the Courts have come up with the imposition of a positive obligation upon the State as to ensure enjoyment of the right to fresh, clean and potable water.43 In Mathew Lucose v. Kerala State Pollution Control Board,44 the Kerala High Court went a step ahead by holding that the discharge of effluents by a chemical industry, even when it was on one’s own premises, as violating the right to “clean air, water and wholesome environment.” An effort of municipal corporation to convert the land earmarked for a residential park into building a housing complex was thwarted by the Andhra Pradesh High Court. Such a measure, the court felt, was tantamount to violating the fundamental right to live in a well-planned hygienic environment.45
Expanding Horizons of Human Rights
The courts, in the protection of the environment, through the device of PIL, have not found themselves shackled by the need to tag on to human rights alone. As a matter of fact, they have used human rights as a just vehicle to drive home the point of the close nexus between protection of environmental and human rights, unplanned economic activity that would affect either of the two have drawn court’s censure. This approach encompasses conservation of specific eco-systems, protection of other life forms and a holistic perspective of environmental management. In the Centre for Environmental Law v. State of Orissa,46 a number of instructions were issued for the governmental agencies to observe while permitting any activity within the Bhitarakarnika Wildlife Sanctuary. The instructions were aimed at protecting the flora and fauna that were endemic to the region. In another case, the proposal for the Establishment of World Trade Centre on wetlands did not find favour with the Calcutta High Court, as such a move would have adversely affected the integrity of a very special eco-system.47
Environment-friendly activities that protected traditional rights of people found favour of the courts of law in a number of instances. The Aqua Culture cases,48 exemplify this stand of the judiciary, in which a number of directions were issued to caution against the practice of intense aqua-farming that violated a number of principles of good environmental management while, at the same time, encouraging promotion of traditional aqua-farming methods.
Protection of lives of birds, animals and wildlife and prevention of injury to them, both under Wildlife law and as an aspect of Environmental right, have engaged the attention of the superior Courts. Trading in articles of ivory, according to the court, under the Constitution, was akin to the pernicious activity of dealing in drugs and intoxicants. Trade and business at the cost of disrupting life forms and linkages necessary for the conservation of biodiversity and ecosystems, invited judicial censure and prohibition.49
When the environmental right apparently conflicted with certain fundamental rights, especially the freedom of trade, profession or calling,50 the courts have interpreted that the enforcement of public health care measures of ordering the closure of an industry for the release of polluted water into streets, as a reasonable restriction in public interest.51
Recognition of Customary Rights
The PIL tool has been employed by the Courts not just to enhance the status of a statutory right to that of a fundamental right, but to accommodate even traditional and customary entitlements to that status, as well. Thus, while in Gujarat, the diversion of a common grazing land was stalled52 and in Uttar Pradesh, the meadows and pasture lands in Garhwal region were prevented from being put to use to construct tourist lodges.53
Protecting the interests of tribals and conserving forests
At times the judiciary, through their imaginative interpretation of laws, has been able to harmonize the interests of the forest-dwelling community with that of the concerns for conservation of the forests. In Fatesang Gimba Vasava v. State of Gujarat,54 the legally recognized right of the tribals to obtain bamboo and earn livelihood by selling the articles made out of them, was attempted to be rendered unenforceable by the forest department officials by barring their transport from out of the forest area. The alleged motive of the action was to compel the forest dwellers to sell raw bamboo to the local paper mill. The court ordered that the forest department should not interfere in the transit of the bamboo articles from the forests to non-forest areas. In another case,55 the Andhra Pradesh High Court struck down a government order that permitted felling of trees and transport of timber from the forest area that was in contravention of law.56 The court reasoned that the statutory provisions were intended to safeguard the interests of Scheduled Tribes and to preserve forests. The executive order that violated this law was valid.
Promoting Right to Environmental Information
While the constitution guarantees the fundamental freedom of Speech and Expression,57 no such guarantee exists for right to information, Right to access relevant and authentic information is very crucial over environmental issues. It enables one to know and understand about the kind of impact any activity would have on his environment besides forewarning about mishaps, helping in taking precautionary measures and facilitating participation in the processes of environmental planning and decision-making. In the absence of a clear legal articulation of such a right, it was left to the Courts to clearly carve out this right as an integral aspect of the freedom of speech and expression. A catena of case law exists that demonstrates judicial recognition of the right of the citizen to know as flowing from the fundamental freedom of speech and expression and the fundamental right to life and personal liberty.58 Following on the recognition of a general right to information, the courts soon began getting into the specifics of the right. In a case that involved rejection of the demands of an environmental action group to access municipal records to examine the legality of certain of the actions of the Pune Cantonment Board, the Bombay High Court held that the right to know was implicit in the right of free speech and expression. As such, disclosures of information as to the functioning of the government should be the norm and secrecy an exception justified only where the strictest requirement of public interest so demanded, it opined.59
Thus, one can access governmental information, without any requirement of proving any irregularity. It would suffice if the group were to establish its bonafides of action. In another case, between the same parties, the Supreme Court extended this right to all persons residing within the area without limiting it to only interest groups and pressure groups.60
Prevention of Abuse
Entertaining petitions in Public Interest and creating a highway for justice by the higher judicial resulted in a phenomenal increase in initiation of judicial process by social action groups. While the courts have been more than accommodative in helping people access justice through this avenue, they have not hesitated in taking to task those who attempted to abuse the process. In a case, the Supreme Court found that the petitioner who failed to get the contract from a company for transporting the slurry discharged from the coal washeries, filed a Public Interest Petition claiming the discharge of untreated effluents into the Bokaro river by the company as having caused serious health hazards to the neighbours and sought the court’s permission to carry away the slurry. It saw through the game of the petitioner, who intended to harass the company and derive commercial benefit through the action ostensibly in “public interest.” The court categorically asserted that personal interest could not be enforced through the writ process and that it could not be used for the purpose of vindication of personal grudges or enmity.61
In another case, an industry used the arguments of atmospheric pollution, hazardous nature of activity and non-observance of siting guidelines against the neighbouring Solvent Extraction Factory, to pressurise the latter dispose of its plot of land in its favour so that it could expand its own industrial establishment.62 The Madhya Pradesh High Court came down heavily upon the petitioner with the remark,”the bogey of pollution should not be allowed to be raised for ulterior selfish motives by disgruntled litigants to hamper or stop the process of industrialization, and dismissed the petition.63
Relaxation of procedures
In addition to the use of PIL to imaginatively interpret the law to make activities responsible for environmental degradation as violative of fundamental rights and promote Environmental rights, the courts have also found this as a convenient vehicle for people, especially of poor and disadvantaged sections, access justice. Through this, one is witness to the amazing ability of the higher judiciary in demystifying the law and its processes, by relaxing procedures, so as to empower the affected, aggrieved and concerned entities, ventilate their points of view in the judicial forum and secure justice when the same was not readily forthcoming from the other aspects of governance. Thus, a concerned citizen, who did not suffer a specific legal injury, was permitted to sue to arrest the damage in public interest and to uphold rule of law.64 It has, indeed, been a trail-blazing effort that permitted volunteers to have ‘representative standing’ and a member of public, empowered, in his own right, to have ‘citizen standing’, in cases of executive in action or abuse, as a member of citizenry to whom a public duty was owed.65 Doon Valley litigation,66 Ganga Pollution cases67 and the Oleum Gas Leak case,68 are the early instances where the environmental concerns got judicial notice and approbation, through this device.
Thus, in the Doon Valley litigation, a letter that crudely highlighted the environmental problem and the callousness of the administration in addressing it was elevated to the level of a writ petition. In Mahesh R. Desai v. UOI,69 a complaint by a journalist of the degradation of the coastal environment owing to unplanned development, promoted the Supreme Court to direct its Legal Aid’s Committee to take up the case and issued notices to the concerned governments by invoking its writ jurisdiction. In the Oleum Gas leak case, the court allowed the party to bring into its consideration an unconnected cause of action, without the requirement of amendments to the petition. The firm conviction of the apex court, in all these cases, has been that the requirement of sticking to the strict procedures and technicalities of the process, on matters of public interest, that includes environmental concerns, would defeat the ends of justice.
Broad-basing Environmental Administration
Another significant gain of the PIL process, has been the approach of the courts, in looking beyond Governmental institutions and formal structures of administration in managing the environment. In Indian Council for Enviro-legal Action v. UOI,70 the supreme Court categorically asserted that it was impossible for a single authority, a governmental institution, exclusively and effectively control environmental damage. Environment is best protected by the people themselves and the governmental agencies should seek and secure the assistance of voluntary groups in this regard. The court even suggested more imaginative application of the relevant provisions of the Environment Protection Act, 1986, in broad-basic environmental administration.71
Evolving New Principles of Good Environmental Governance
Interpretations of the higher judiciary have been of such a nature as would telescope some of the Directive Principles of State Policy into the Fundamental Rights part of the Constitution, to secure constitutional guarantees of protection to the Environment. In addition, the courts are also to be credited with the ability of evolving principles, drawn from a variety of experiences, both within India and elsewhere, that has become the building blocks for good environmental governance, in recent times. The Polluter Pays principle, as laid down in the Bichhri case72 requires that the polluter bears the costs of cleaning up and compensate the victims of pollution. The precautionary principle, as elaborated in Vellore Citizens’ case,73 imposes an obligation on every developer, industry and governmental agency to anticipate, prevent and attack the causes for environmental damage and to demonstrate that the activities carried out are environmentally benign. In the landmark judgment in Kamalnath case,74 the Supreme Court enunciated the Public Trust Doctrine. Setting at rest the role of the Government in Environmental management, the court held that the State occupies the position of a trustee of all natural resources. They are, as a general rule, meant for public use and enjoyment. The State has the primary obligation of using them for benefiting the public and not to divert it for any private benefit and enjoyment.75 The Sustainable Development Principle, found expression in the Ganesh Wood Products Case76 that combined the principle of Inter-Generational Equity, with it as well.
Negative Aspects
There is no denying the fact that PIL has enriched the content of the law, modified the traditional doctrine of locus standi and is responsible for devising new procedures for accessing and securing justice. However, the euphoria generated by the positive impacts of PIL has, over a period of time, exposed the drawbacks in the system of justice dispensation and the processes of accessing it, as well. The following are some of the short-comings, that deserve consideration of all concerned about Environmental justice.
PIL as Part of the Problem
The very same factors that justified the public spirited citizens to approach the higher judiciary, have turned out to be the hurdles for justice. Each of the factors like, the relaxation of procedures; doing away with the traditional requirement of locus standi and the very characterisation of public interest have become, in a manner of speaking, liabilities for rendering environmental justice. Instances of abuse of the process like, attempting to settle personal grudges or to put undue pressures upon the respondent to do one’s biding,77 have not become uncommon. What was considered an inexpensive and expeditious mode of redressal has taken decades to get settled. The Vehicular Pollution Cases,78 is a classic example of the court being seized of the problem for over a decade and its final resolution is a long way in coming. The case that began its life in 1985 as a petition seeking the intervention of the Supreme Court for closure of hazardous industries and to regulate air pollution caused by automobiles in Delhi, has grown into a case of mammoth proportions and mired in controversies of administrative lethargy in implementation of the court’s orders and political defiance bordering on contempt.
Taking advantage of the Superior Court’s non-insistence on observation of technicalities, PILs are being filed with little or no preparation. Actions are initiated by filing complaints without proper evidentiary materials to support them. Expectations are that once a petition is filed, the court would do the rest. That, it would activate the administration, approach research bodies to suggest solutions, appoint commissions of enquiry to find facts and, when there are difficulties in the presentation of argument, it would find a counsel to argue for the petitioner or, still better, act as an amicus to help render justice! True, the courts have done all this and much more.79 But, the heart of the matter is that most of the time, energy and resources of the judiciary is getting diverted for these purposes, so much so that the justice delivery system is under great stress and the cracks in it are becom ing visible. The highest court, has shown its annoyance at taking every conceivable public interest issue to its door-step when compliance with the orders made at the local level, in most of the cases, would have prevented the docket explosion at the highest level. As early as in 1980, in the Ratlam Municipal Council case,80 the Supreme Court upholding the orders of the Sub-Divisional Magistrate, expressed thus in unmistaken terms. Had the Municipal Council, the Court stated, spent half its litigative zeal of rushing from lowest to the highest court, in cleaning up the streets and complied with the orders issued at the local level, the civic problems would have been solved a long time back.
Individualistic Character
PILs as a general rule, are fought in public interest and decided for protecting the interests of a large number of people. But, there are certain alarming and emerging trends. One of the most significant ones has been that of the tool becoming personalized, individualistic and attention-seeking. There are instances of their identification with the personality of a judge or a litigant.81 It becomes a gamble when the outcome of the case depends on the judge before whom it gets posted.82 No doubt, the personality of the judge and the litigant, and their deep commitment to social justice and protection of the environment contributed, in a major way, to the evolution of the jurisprudence on the subject. But, without such a concern and commitment spreading and percolating to the different layers of justice-delivery, administrative arrangement and legal policies, in any significant way, it exposes the system to the dangers of facing a vacuum (in their absence) and becoming influenced by different whims and fancies that may pull governance in every possible direction. As a matter of fact, owing to this factor, Environmental legal advocacy, in India is getting exposed to this situation.
Scope for Arbitrariness and Inconsistency
Another danger of the phenomenon is the scope for arbitrariness and inconsistency in the entire process. Once the PIL process gets identified with certain judges and practitioners of law and the kind of impact their approach would have on the course of justice, it becomes very difficult to expect consistency and uniformity, both in approach and final outcome in similar cases argued and adjudicated in all other similar cases. The Narmada Judgment,83 perhaps, presents a study in contrast, especially for the approaches adopted and the conclusions drawn for the majority (of two) and by the minority (dissent of one) in the Supreme Court. The judges dealt with the same fact situation and profusely referred to the very same grounds. But, in the end, opinions differed between the majority and the minority. While the former approved of the execution of the proposed developmental project “for greater common good,” the dissenting opinion desired a thorough review of the entire decision-making process.
The Supreme Court, in a stunning judgment ordered shutting down of a number of hazardous industries in Delhi and relocate them beyond the capital city.84 The sweeping closure orders appears to have improved the air quality and reduced risks to public health and safety in those parts of Delhi. But, the impact on the work force, was nothing short of being traumatic. The court order was used as an excuse by some of the managements to close their ailing establishments85 and to postpone payment of compensation under some technicality or another, till clarification by the Supreme Court, two years hence, upon an application from the aggrieved workmen.86 In a later case,87 the apex court further clarified as to the obligation of the corporate entity to take all such precautionary measures as are required to ensure their activities did not cause harm or alarm in their establishments to such places where the residential areas could be kept wide apart from their location. It is interesting to observe the earlier version of the same case, in the Bombay High Court88 produced a different kind of reasoning, diametrically opposite to the one adopted by the Supreme Court. There, the High Court rejected the contention of the petitioner to relocate the hazardous industry. The reasoning included, the need for locating an industry in close proximity of the area where the infrastructural facilities are available, that the dislocation would render thousands of workers jobless and make them suffer the trauma of displacement and that the situation demanded getting satisfied with taking appropriate safety measures in and around the place they are located.
Problems Resulting from Reliance on Expert Opinion
In dealing with the complexities of environmental issues, the higher judiciary has taken the initiative of seeking and obtaining expert advice to help them arrive at a decision. But there are instances when the opinions so obtained are either based on erroneous assumptions or insufficiency of data. In either case, the damage resulting from the decisions based on shaky scientific foundations may prove irreversible. The Taj Trapizium case,89 may be cited to illustrate this point. In that case, in order to save the famed Taj Mahal from pollution and degradation the Supreme Court, relying upon the report of NEERI, ordered closure and relocation of several small-scale units, especially the foundries in the area. The Report, unfortunately was not based on all relevant facts and its methods, analysis and conclusions left a lot to be desired from a reputed scientific and research organization. While the implementation of pollution-control measures ordered by the court is proceeding at a tardy pace, the small scale sector which bare the brunt of the judgment is still to recover from its impact.90
The Vehicular Pollution Cases91 presents another interesting, if not perplexing situation. While the Court ordered for conversion of vehicles to operate on Compressed Natural Gas (CNG),92 based on the expert opinion made available to it, the Tata Energy Research Institute (TERI) subsequently came up with the idea that Ultra-Low Sulphur Diesel (ULSD) could be a better option. As things stand now, the Delhi Administration has not, as yet been able to fully implement the orders of the apex court.
Non-exhaustion and Neglect of Other Remedies
Remedy for public suffering has been sought, with great degree of regularity by approaching the higher judiciary by taking recourse to the writ remedy. Non-technical nature of procedure, expeditiousness, economy, limited requirement of adducing detailed evidence and reduction of the likelihood of prolonged litigation in appeals by directly approaching the highest court, have all contributed to this astounding phenomenon in India. But, the downside of it has been the blunting of other available tools of justice which, perhaps, are more appropriate and effective than the PIL route could achieve, at times.
It must be realized that the relief through PIL is general, prospective and, as a general rule, without compensation. On the other hand, in individual and private actions remedial orders are case-specific in nature and conclude with tangible and concrete results with clear directions for actual implementation. The Civil Procedure Code (CPC), provides scope for Class Action Suits or Representative Suits in which a number of people, having similar interests can bring action at the lower court level.93 Such lawsuits enable clustering of issues and presentation of petitions and responses on behalf of a number of persons having the same interest. No separate lawsuit for each one would be required and the litigation cost could be shared by all the members of the group. Scope for adducing detailed evidence, through this process, lessens the strain on the Judges, which a writ process invariably imposes. This device can be employed in instances where mass torts occur, as attempted by Government of India on behalf of the victims of Bhopal Gas Disaster.94 This was also initially employed in the Ganga Pollution (Tanneries) Case,95 in proceeding against a number of polluters. Remedies available under specific environmental legislations, the common law and criminal law remedies are the other alternative avenues for justice delivery that could be prompt and effective. PIL process has been so abused that these options are scarcely put to use by all the concerned.
There is another danger of directly approaching the highest court. Since, in such cases, the outcome of the case is entirely dependent on the whims and fancies of the particular judge, should an adverse opinion be given by the court, it would mean the end of the road for the seeker of justice, as there is no one to receive further appeal. It would bring to an abrupt end the quest for justice without its realization.96
Limits of PIL and the formal legal process
PIL is not always a smooth path to tread. Limits exist to the extent to which the law, its processes and the machinery of enforcement, even when it is positively inclined, can enforce duties, protect rights and secure redressal. This indeed, is the limiting factor of law itself. Habits, attitudes, patterns of behaviour and the like do not get altered over night, even when the highest authority demands. PIL is more of a fire fighting mechanism. It cannot be expected to bring attitudinal change every time it is employed. Executive decisions do find a method of circumventing court orders, as to ensure that the ground realities do not get altered. Corporate entities have, time and again, demonstrated that they are adepts in taking advantage of situations, even when decisions apparently unfavourable to them are made. This is very well illustrated in the follow-up on the decision of the Supreme Court ordering relocation of hazardous industries.97 It required another order of court,98 that too two years hence, to redress the mischief of non-payment of compensation to the workers by the employers upon closure of the industries. It is true that the courts have devised the technique of continuing mandamus to appraise themselves of satisfactory compliance of their directions from time to time. But, it must be understood that this is intended to make the administrators and the addressees of the orders realise that their actions are being constantly monitored judicially.
The courts have not, as yet, evolved a mechanism for ensuring compliance with their directions both in letter and spirit, for all times to come. They do not have the tool that would assess the quality, content and level of compliance of their orders. Moreover, their time is so stressed that they cannot even think of monitoring, on an individual basis, whether the instructions are indeed observed.
Even the practitioners of law, who take up public interest issues, pro bono (without charging a fee) are hard to come by. The work is enormous. It is back-breaking as, they are required to start from scratch without a ready-made case brought before them to argue.99 Environmental legal advocacy requires a very high level of understanding of this emerging area of law and not many are there in India in taking up the challenge and successfully argue the cases before the higher judiciary.
Further “public interest” is not something that is homogenous and common, in the Indian context. There may exist divergent interests even among the claimants like, for example, among the people threatened with displacement for the execution of a development project, some of them may be satisfied with monetary compensation, some with alternative employment and others desiring to stay put and fight till they are totally rehabilitated.100
Some of the principles enunciated by the Supreme Court are either vaguely formulated, a little confusing or not capable of implementation in its totality. The “Absolute Liability” principle formulated in the Shriram case101 referred to liability without fault upon the occupier of the premises for industrial accidents, escape or discharge of toxic substances.
The principle was sought to be applied in the Vellore Citizens’ case,102 which did not involve any of the situations for which it was first applied. The latter case, rolled together the polluter pays principle’ (applicable to non-toxic pollution cases) with the absolute liability standard (applicable to toxic torts).103 In the Bichhri case,104 the “polluter pays principle” extended the absolute liability for harm to the environment not only for compensating the victims of pollution but also the cost of restoring the environmental damage. The legal logic, apparently, has been stretched too far as to make it very difficult to implement.
Neither the legislature, nor the executive has taken kindly to this “judicial take over” of their functions. This assumption of “creeping jurisdiction,”105 has not found favour with many of the judges themselves. In Asif Hameed v. State of Jammu & Kashmir,106 the Supreme Court asserted that the constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize on matters that lie within the spheres of activities of the legislature or executive. In the Calcutta Taj Hotel Case,107 Justice Khalid advocated judicial restraint in PIL, so that the salutary type of litigation did not lose its credibility.
Need for Fresh Initiatives
It is a humbling feeling that PIL, that started its life in India, to straighten and tighten the system of governance has, over a period of time, owing to some of its inherent weaknesses, not retained many of its therapeutic and curative qualities. PIL, as the highway for judicial justice, is experiencing a lot of wear and tear exposing many a pot-holes all along the way. Besides redefinition of its goals and relaying of the lanes that lead to them, a number of alternatives has to be evolved to supplement and strengthen the principal mechanism of environmental justice delivery.
The aberrations leading and resulting from environment justice delivery by Courts of law, require a fresh look at the system o environmental management in India. It has become a common occurrence for State administration and the Voluntary groups to take turns to question the competence of the judiciary, each time its verdict did not meet either of their requirements. Taking the cue, the lawmakers, law enforcers and voluntary groups are constantly endeavouring to device mechanisms to rein in the courts of law. The judiciary on the other hand appears to have done everything to add fuel to fire. It is time for a constructively critical evaluation of the environmental justice delivery breaks fresh ground for better environmental governance in India.108
* Additional Professor, National Law School of India University, Bangalore
1 See M K Ramesh, “Environmental Justice Delivery in India: In Context,” 2 IJEL 2 (2001) 10.
2 Broadbasing environmental justice delivery system is the subject matter for a separate study.
3 First issued S.O. 318(E), Apr. 19, 1997; Gazette of India, Extra, Part II, Sec. 3(ii), Apr. 10, 1997, pp 3-4, No. 244 (No. 2012013/4189-1A.I).
4 Centre for Social Justice v. Union of India, Spl. Leave Appln. No. 8529 of 1999, Gujarat High Court.
5 Ibid.
6 In Vineet Narrain v. Union of India and Anr., 1997(7) SCALE 656, popularly known as the ‘Hawala case’, the Supreme Court adopted this technique which enabled it to closely monitor investigations by Government agencies, in respect of serious accusation made against prominent personalities. Ac cording to the court, the innovation was a procedure within the constitutional scheme of judicial re view to permit intervention by the court on the complaint of inertia by the Central Bureau of Investiga tion and to find solution to the problems.
7 M.C. Mehta v. UOI, wrt.ptn. (Civil) No. 13029 of 1985.
8 M.C. Mehta v. UOI (Vehicular pollution case), 1991 (2) SCC 353.
9 Some of the significant orders issued by the Court are the following: (i) clarification given as to the jurisdiction of the Environment Pollution (Prevention and Control) Authority for the National Capital Region (EPPCA), to extend to all aspects of environmental pollution in the region (AIR 1998 SC 617 & 773); (ii) Instruction issued to the Union Ministry of Environment and Forests to test the appropri ateness of the suggested pollution control device (order dt. 14 Nov. 1990) ; (iii) Direction given to the Union Government to set up a high power committee to examine and recommend, in a comprehensive way, the technological, administrative and legal solutions for dealing with Vehicular Pollution ; (iv) Directions to Government to ensure new vehicles were fitted with catalytic converters and lead free petrol was introduced in four metropolitan cities by April, 1995 (Orders dated 12.8.1994, 21.10.1994 and 28.3.1995, reported at 1997 (4) SCALE 4 (SP), 1997 (4) SCALE 5 (SP & 1997(4) SCALE 6 (SP); (v) Direction to Central Government to convert its vehicles to operate on compressed Natural Gas (CNG) (Order dt. 26.4.1996, reported at 1997(4) SCALE 7 (SP), (vi) Endorsement of the suggestions of EPPCA like, fixing a time-frame for elimination of aged vehicles from operating on roads etc. (1998 (6) SCC 63 and AIR 1999 SC 291) and (vii) Imposition of Super norms (Bharat Stage I and Bharat Stage II norms on the lines of Euro I and Euro II Norms) for vehicles registered in the National Capital Region (1999(6) SCC 12 & 14).
10 It is another matter that the court, in its enthusiasm to present such a model, got itself mired in the complexities of a problem that was at once political, economic and technological in nature. For a fairly detailed analysis of the case, See, Shyam Divan & Armin Rosencranz, Environmental Law & Policy in India, Oxford University Press, New Delhi (2001) 2nd Ed, pp.274-279. (hereafter Divan & Rosencranz).
11 AIR 1987 SC 374.
12 Ibid at 378.
13 For the Text, See Rehabilitation policy & Law in India: A Right to Livelihood, Fernandes W. and Paranjpye V. (Eds) Indian Social Institute, New Delhi 91997), at Pp. 331-344.
14 1994, FOR.L.T. 103.
15 Under Articles. 226 & 32 of the Constitution respectively.
16 AIR 1988 RAJ 2.
17 Shivarao Shantaram Wagle v. Union of India, AIR 1988 SC 952
18 In M.C. Mehta v. UOI, (Shriram Gas Leak Case), AIR 1987 SC 965 at 969, the Nilay Choudhary Committee was not only involved in advising the Supreme Court about the dangers of operation of the industry, it was also asked to suggest measures to reduce the environmental threats the plant posed.
19 In Rural Litigation & Entitlement Kendra, Dehradun v. State of U.P. (Doon Valley Litigation), AIR 1988 SC 2187, an expert committee evaluated the environmental impact of limestone quarrying opera tions in the region besides supervising the execution of the orders of the Court. A few of other commit tees appointed by the Court followed closely the reforestation measures undertaken by the Miners and the process of rehabilitation of miners whose business operations were closed without payment of compensation.
20 AIR 1997 SC 1228
21 For a detailed analysis and excerpting of the orders and directions issued by the Supreme Court in the case See, Divan & Rosencranz, Supra, n. 10 294-308.
22 For instance, in Bonded Labourer’s case, AIR 1984 SC 802.
23 Order XXVI CPC and Order XLVI of Supreme Court Rules, 1966.
24 Inherent power of the Supreme Court under Arts. 32 and of the High Courts under Art. 226 of the Constitution, See, L.K. Koolwal v. State of Rajasthan, AIR 1988 RAJ 2.
25 Chs. II & III. See, n.1.
26 This aspect is dealt in detail in this part of the paper.
27 In the Indian context, some of the legal scholars prefer the expression “Social Action Litigation” to “Public Interest Litigation”, as this tool for justice to protect basic rights of individuals and
communities has, through innovations of higher judiciary in India, for richer content in both
substantive and procedural aspects of law for greater positive impacts on the social lives of the people in India than the United States, where the PIL movement took roots. See, Baxi, Upendra, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India,” in Tiruchelvan & Coomaraswamy, (Eds.) The Role of the Judiciary in Plural Societies (London, 1987).
28 See, Chayes, “Foreword : Public Law & Litigation and the Burger Court,” 96 Harvard Law Review 4 (1982) ; See, Sheela Barse v. U.O.I., AIR 1988 SC 2211.
29 349 U.S. 294 (1955).
30 Francois Du Bois, “Social Justice & Judicial Enforcement of Environmental Rights & Duties”, in Boyle & Anderson, (Eds.) Human Rights Approaches to Environmental Protection, Clarendon Press, Oxford (1998), at p. 156.
31 U.S. Supreme Court dt. 4 Mar. 1998.
32 Art. 45, Para 1, contains a right to enjoy an “environment suitable for the development of the person”. It is more of a statement of policy, disguised in the language of rights. Similarly are the provisions worded in the constitutions of Austria, Greece and Netherlands, without really providing a means for their enforcement. See, S. Douglas - Scott, “Environmental Rights in the European Union - participa tory Democracy or Democratic Deficit”, in Boyle & Anderson (Eds.), supra, n.24, at pp. 110-111.
33 Art. 66. It has a very limited individual action to enforce it. See, S. Douglas - Scott, Ibid.
34 Art. 335 recognizes the collective right to a balanced environment. The enforcement of the right is not in the hands of either the individual or the collectivity. See, Edesio Fernandes, “Constitutional Envi ronmental Rights in Brazil”, in Boyle & Anderson(Eds.) Supra, n. 24 at 276-284.
35 Art. 19(2) guarantees the fundamental human right to an environment free from contamination, with out prejudice to other rights necessary for a complete moral and material development. No substantive tools exist for their protection. See, Adriana Fabra, “Indigenous Peoples, Environmental Degradation and Human Rights: A Case Study”, in Boyle & Anderson (Eds.) Supra n. 24 at p. 251.
36 Art. 32 to approach the Supreme Court and Art. 226 in accessing the High Court of a State.
37 Art. 21
38 Rural Litigation & Entitlement Kendra v. State of U.P., AIR 1985 SC 652
39 Ibid at 656
40 See, Arvind Textiles v. State of Rajasthan, AIR 1994 RAJ 195 AT 197 ; See, Madhavi v. Tilakan, 1988 (2) KER.L.T. 730 at 731 ; See, Kinkri Devi v. State of Himachal Pradesh, AIR 1988 HP 4 at 9 ; See, V. Lakshmipathy v. State of Karnataka, AIR 1994 KAR 57 at 67 ; and See, K.C. Malhotra v. State of Madhya Pradesh, AIR 1994 MP 48 at 52
41 In Koolwal v. Rajasthan, AIR 1988 Raj 2, poor sanitary conditions in the city of Jaipur was considered to be in violation of the right to human health. Similarly, in Virender Gaur v. State of Haryana 1995(2) SCC 577, hygienic environment was regarded as an integral facet of right to healthy life.
42 See, Charan Lal Sahu v. UOI AIR 1990 SC 1480
43 See, Attakaya Thangal v UOI, AIR 1990(1) KER L.T. 580
44 1990(2) KER L.R. 686
45 T. Damodar Rao v. S.O. Municipal Corporation of Hyderabad, AIR 1987 AP 171
46 1998(86) CLT 247
47 People United for Better Living in Calcutta v. State of West Bengal, AIR 1993 Cal. 215. The project was later permitted to take off after the court was satisfied of safeguards proposed for environmental protection. See, Divan & Rosencranz, Supra n. 10 at p. 507.
48 See, S. Jagannath v. UOI, 1997 2 SCC 87 ; Gopi Aqua Farms v. UOI, 1997 6 SCC 577 and Kholamuhana Primary Fisherman Cooperative Society & Ors. v. State of Orissa, AIR 1994 Ori. 191.
49 Ivory Traders and Manufacturers Association v. UOI, AIR 1997 DEL 267
50 Art. 19(1)(g).
51 Art. 19(6), See, Abhilash Textile v. Rajkot Municipal Corporation, AIR 1988 Guj. 57.
52 Nabipur Gram Panchayat v. State of Gujarat, AIR 1995 GUJ 52.
53 Omprakash Bhatt v. State of U.P., AIR 1997 ALL 259.
54 AIR 1987 G U J 9.
55 Shankar Reddy v. State of A.P., 1992(2) A N D H. L.T. 514
56 Ch. III A of the Andhra Pradesh Forest Act, 1967. It prohibited the transfer of any forest or forest produce or the denudation of a forest, without the prior approval of the District Collector.
57 Art. 19(1)(a).
58 As enshrined in Arts. 19(1)(a) & Art. 21. See, State of U.P. v. Raj Narain, AIR 1975 SC 865, See, S.P. Gupta v. UOI (Judges’ Transfer Case), AIR 1982 SC 149 and See Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd., AIR 1989 SC 190.
59 Bombay Environmental Action Group v. Pune Cantonment Board, Bombay H.C., A.S. Writ Petition No. 2733 of 1986, 7 Oct. 1986, excerpted in Diwan & Rosencranz, Supra n. 10 pp. 162-163.
60 Bombay Environmental Action Group v. Pune Cantonment Board, Supreme Court of India, SLP (Civil) No. 11291 of 1986, 13 Oct. 1986.
61 Subhash Kumar v. State of Bihar, AIR 1991 SC 420 at 424. In Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P, AIR 1990 SC 2060, the tactic of the petitioner in using the PIL to blackmail people was exposed and the court refused to intervene in the situation.
62 Jayant Vitamins Ltd. v. Rampur Distillary & Chemical Co. Ltd. 1992(3) COMP. LA. JR. 1.
63 Ibid, at 13
64 S.P. Gupta v. Union of India (Judges’ Transfer Case), AIR 1982 SC 149, 194.
65 For an interesting analysis of relaxation of procedures as to Standing to sue See, Diwan & Rosencranz, at 135-139.
66 AIR 1985 SC 652.
67 AIR 1988 SC 1037 and 1115.
68 AIR 1987 SC 965.
69 Wrt. Ptn. No. 989 of 1988.
70 1996(5) SCC 281.
71 The reference was to two specific provisions under EPA. S. 3 of the Act, empowers the Central Gov ernment to constitute one or more authorities to perform such of its functions under S.5 of the Act.
72 Supra n. 64. See also, Vellore Citizens’ Welfare Forum v. UOI (Vellore Citizens’ Case, AIR 1986 SC 275.
73 Ibid. Also See, A.P. Pollution Control Board v. Prof. M.V. Nayudu, AIR 1999 SC 2468, 2505 and S. Jagannath v.UOI (Shrimp Culture Case) AIR 1997 SC 811, 846.
74 M.C. Mehta v. Kamalnath (Span Motels Case), 1997(1) SCC 388, followed in M.I. Builders v. Radhey Shyam Sahu, AIR 1999 SC 2468 at 2498.
75 The principle, evolved in an interesting way. The inspiration was without doubt the MonoLake case (National Audibon Society v. Superior Court of Alpine Country, 33 Cal 3d 419), in which the Califor nian Supreme Court made use of the doctrine. While, it was a gradual process of evolution of the principle in U.S., the rule found expression, all of a sudden, in the Indian case.
76 State of Himachal Pradesh v. Ganesh Wood Products, AIR 1996 SC 149, 159, 163.
77 See, Supra, n 61, n 62, and n.63.
78 M.C. Mehta v. UOI, Wrt. Ptn. (Civil) No. 13029 of 1985.
79 See Diwan & Rosencranz, Supra n. 10, pp. 141-145.
80 Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622.
81 See, Diwan “Cleaning the Ganga”, EPW, 1 July 1995, 1551, in which the activist role played by Justice Kuldip Singh & M.C.Mehta in Ganga Pollution and other cases finds mention.
82 Relaxation of procedures to enable the indigent impoverished and underprivileged ones access the portals of justice is considered to be the lasting contribution to the judicial process by the Judges like Krishna Iyer & Bhagwati. Both the judges, having served on the National Committee on Juridicare that in its final report expressly recommended for widening the rule of locus standi to facilitate PIL (Report on National Juridicare : Equal Justice - Social Justice, 61(1977), Govt. of India, Ministry of Law, Justice & Company Affairs), began implementing their own recommendations in their judg ments, that liberalized standing, fostered legal service institutions for the weak and disadvantaged sections of society.
83 Narmada Bachao Andolan v. UOI, Wrt. Ptn. (c) NO. 319 of 1994, 18 Oct. 2000. A three member Bench comprising of Chief Justice A.S. Anand and Justices S.P. Bharucha and B.N. Kirpal, decided the case. The dissenting opinion was given by Justice Bharucha.
84 M.C. Mehta v.UOI, AIR 1996 SC 2231.
85 See, N. Dasgupta, “Tall Blunders,” Down to Earth, 30 Sept. 1998, p. 22.
86 M.C. Mehta v. Union of India, 1999(2) SCC 91.
87 F. B. Taraporawala v. Bayer India Ltd., AIR 1997 SC 1846.
88 Bayer (India) Ltd. v. State of Maharashtra 1994(4) BOM.C. REP. 309, 353.
89 M.C. Mehta v.UOI, AIR 1997 SC 734.
90 See, Raghuram, “The Trouble with the Trapizium,” Down to Earth, 15 Apr. 1996, p. 32 and the Report of the Tripathi Committee set up by the Uttar Pradesh Government in 1994 to study the impact of the pollution on the Monument, cited in the same article.
91 See, Supra, n. 72
92 Order dt. 26 Apr. 1996 (4) SCALE 7 (SP)
93 Order 1 Rule 8, CPC 1908
94 As provided under Bhopal Gas Leak Disaster (Processing of Claims) Act,1985
95 AIR 1980 SC 1037, 1038
96 Once a writ petition is rejected on its merits by the Supreme Court or a High Court, no subsequent writ petition can be moved in the same court on the same course of action. It also precludes a petition to Supreme Court for alleged violation of a fundamental right, if the High court had dismissed the peti tion earlier on merits. See, Daryao v. State of U.P.., AIR 1961 SC 1457, 1465, 1466
97 Supra, n. 78.
98 Supra, n. 79 and n. 80.
99 See Public Interest Litigation, Anuradha Rao, Public Affairs, Centre, Bangalore (1999), p. 23.
100 Ibid.
101 M.C. Mehta v. Union of India (Shriram Gasleak Case), AZIR 1987 SC 965.
102 Vellore Citizens’ Welfare Forum v. UOI, AIR 1996 SC 2715.
103 See, Diwan & Rosencranz, Supra, n. 10, P. 111.
104 Indian Council for Enviro-Legal Action Litigation v. UOI, AIR 1996 SC 1446.
105 U. Baxi “Taking Suffering Seriously : Social Action Litigation in the Supreme Court of India,” 29 The Review (International Commission of Jurists), Dec. 1982, 37.
106 AIR 1989 SC 1899.
107 Sachidananda Pandey v. State of West Bengal, AIR 1987 SC 1109.
108 This would form the base for analysis in the third and final of the series of articles on the subject. The article is proposed to be carried in the next issue of the journal.