The law should vary with time and with changing needs of the generations . The legal theory of Social Engineering propounds that there should be an improvement in the law in the light of social wants of the time. Instead, if the law remains static and blind towards social reality, it would fail to achieve its ends. The responsibility to make positive laws, dynamic rests on various organs of the Constitution. When one such organ fails to respond to the needs for a law reform, it is necessary that other organs undertake that responsibility. It may often happen that the Parliament which is the legislative body may be slow in realizing and reforming the laws to the needs of a given society. In such circumstances the judiciary has to play a dynamic role. Though it is beyond the scope of the judiciary to create a law, when responding to the changing needs of the society if judiciary fulfills the ends, it assumes an activist role. Such judicial activism has become an effective instrument to guarantee a responsive law to the changing times.
An active judiciary may adopt various means to meet the growing needs of a society. One of the major vehicles of justice in this regard is the public Interest Litigation (PIL). Indian judiciary started adopting the concept of Public Interest Litigation for protecting various interest of the society including its environment. Judicial activism may not only serve to improve the dynamism of the existing laws and jurisprudence but also lead to newer directions and fields where legal system has not developed at all. One of the classic example in this regard would be the environmental protection. Two decades ago many of the countries including India did not have environmental protection legislations. However, since the Stockholm conference on Human Environment there was an increasing realization for the need to protect environment. Gradually laws were enacted in furtherance of protecting the environment. In India legislations to protect water and air quality were enacted during this period for the first time. Until then only some penal laws were existing which had only an indirect effect in protecting the environment. The enactment of these laws, itself was not the solution for the ever increasing environmental degradation. At this juncture Indian judiciary assumed a major role in protecting the environment. With the limited number of new legislations the judiciary went on to adopt newer strategies to fill the gaps. In 1980s the judiciary started playing an active role.Though the activism of the Supreme court of India was in different fields, the enthusiasm shown by the judiciary in protecting the environment is remarkable.It may not be an exaggeration to say that the active period of the Indian judiciary is overwhelmingly focussed in rendering environmental justice.
This active period saw the adoption of new techniques by the Supreme Court of India in recognizing liberal rules of standing (locus standi). It was a time when environmental consciousness was not as strong as of today and judiciary realized that limiting the standing to raise environmental issues to the traditional bodies, may not prove effective in saving the threatened environment. Therefore, the judiciary utilized various tools of standing like the Public Interest Litigation (PIL) or Social Action Litigation, Representative Action and Citizen Suits to liberalize locus standi. The adoption of these tools of judicial activism has proved to be very effective as most of the environmental cases raised were made possible only by the adoption of such tools.
The Supreme Court of India is popularly known for recognizing Public Interest Litigation. By a Public Interest Litigation the Court allowed any interested person of the society to raise an issue before the Court which may affect the public at large. The Court has recognized Public Interest Litigations in various fields. But the recognition of Public Interest Litigations in environmental field has proved to be very effective in serving the ends of environmental justice.
In M.C.Mehta vs. Union of India (All India Reporter(A.I.R.) 1987 Supreme Court (S.C.) p.1086) a five judges Bench of the Supreme Court held that even a letter addressed to an individual justice of the Supreme Court can be admitted in case of a Public Interest Litigation. The Court in admitting such letters even dispensed other procedural requirements like affidavits which are otherwise necessary to initiate a litigation. The Court pointed out that such letters would ordinarily be addressed by poor and disadvantaged persons or by social action groups who may not be in a position to know the procedures and file the litigations accordingly. Therefore, the admission of their letters as public interest litigation is very crucial.If such letters are required to be addressed only to the Court or to the Chief Justice, it would exclude from the judicial ken a large number of letters and the same would result in denial of access to justice to the deprived and vulnerable sections.Therefore, the Court decided to admit letters addressed even to any individual judge of the Court.
This case is a land mark one in the field of Public Interest Litigation. A writ petition was filed by The Legal Aid and Advice Board, and The Bar Association for closure of certain units of a company on the ground of health hazard. While this petition was pending before the Court there was a leakage of Oleum gas. Therefore, the present case was filed against the company for the leakage.The Court held that, it could entertain applications for compensation for damages even though the writ petitioner did not amend the writ petition to include the claim for compensation.This active interest of the Court not only shows its determination in creating liberal rules of compensation to the victims, but also making such rules act as a deterrent to the polluting industries. While attaching liability to the polluting industry in this case the Court declared the liability to be absolute and refused the limit itself to the english decision in Rylands vs. Fletcher (1868 (19) LT 220) which evolved a strict liability.In this classic english case the decision was that if a person collects something in his land which is likely to cause damage to others, then he is held to be prima facie liable for any damages caused by the escape of that dangerous thing. The liability in Rylands vs. Fletcher is considered to be a strict liability because no defense is permitted on the grounds that the thing escaped without that persons wilful act, default or neglect or even that he had no knowledge of its existence. However, this rule was limited because it applied only to non-natural user of a land and it did not apply to the things naturally on the land where the escape was due to an act of God or an act of a stranger or the default of the person injured etc. But the Supreme Court of India refused to follow this decision of the english court saying that it need not be inhibited by the law that prevails in England or any other foreign country. By refusing to recognize the defenses of Rylands vs. Fletcher the Supreme court went on to attach an absolute liability on the polluter.It observed that an enterprise which is engaged in a hazardous or inherently dangerous industry owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone by such acts. Ultimately, the Court held that any such industry which causes harm by its hazardous operations is strictly and absolutely liable to compensate all those affected by the accident and such liability is not subject to any of the exceptions recognized in Rylands vs. Fletcher. In this progressive judgement the Supreme Court emphasized the significance of judicial activism. It observed (at p.1098),
Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy .
The need for a judicial activism is weIl emphasized by the Court. When the society is facing newer challenges through industrialization, such challenges can be met through legislative measures. However, legislative changes cannot be expected to take place at frequent intervals. Frequent amendments to a legislation may weaken its essence. However, the challenges can be effectively met by newer interpretations of the legislations without amending them. This lies in the hands of a judiciary. A classic example could be this case. For creating a rule of absolute liability instead of enacting a new law or amending existing laws the same is achieved through judicial interpretation. It is easier for the judiciary to realize the changing needs of the time and interpret the law accordingly. However, the same can be achieved only if the judiciary is active. The implications of the judgement of the Supreme Court in M.C.Mehta cases are positive in this direction. Realizing the potential risk to the environment and mankind by the growing industrial activities. The Supreme Court has felt it appropriate to throw away the century old rule of strict liability and impose a stricter liability. The Court has well recognized that the Rylands vs. Fletcher rule was evolved in 19th century when science and technologies hazardous to environment had not developed and the same rule has to be made stringent to the needs of the present day economy and social structure. Therefore, by creating an absolute liability the judiciary has satisfied the need of the present day to restrain the polluting industries. This recognition and response to the ecological needs, make the Indian judiciary environmentally an active mechanism.
The recognition of liberal rules of Public Interest Litigation is a major sign of judicial activism. However, in furtherance of protecting the environment the Supreme Court had taken various opportunities to prove itself an active mechanism. Those cases are worth analyzing as it would expose the profound interest of the judiciary to become a champion of environmental causes. The trend for protecting the environment actually started from early 1980s itself. At the beginning the Supreme Court seized the opportunities in different cases to protect the environment, even though those cases were not filed for the protection of the environment as such. The leading example in this regard would be Municipal Council, Ratlam vs. Vardhi Chand (A.I.R.1980 S.C 1622). The people of Ratlam municipality were affected by inaction of the Municipal Council which failed to provide proper facilities or services in cleaning various discharges. Due to poor sanitation and drainage facilities the health of the people as well as the environment were affected. The Court invoked the general public nuisance remedy to take action against the Municipal Council. Although the case was filed on the grounds of health hazards to the people, ultimately the judgement served to prevent the degrading environment of Ratlam Municipality.
The Municipality argued that it could not carry out its duty because of budgetary constraints. However, the Court refused to accept the plea, and held that budgetary constraints would not absolve the Municipality from carrying out its duty to provide sanitation facilities. The Court also in its active response directed the State Government to take action to stop the pollution. The Court also directed the Sub-divisional Magistrate to use his power under Section 133 of the Indian Penal Code to abate the nuisance caused by the discharge. The Court made it clear that industries cannot make profit at the expense of public health . This dictum of the Court, no doubt may be claimed to have set the trend for future environmental jurisprudence which has come a long way in line with the Principles of Sustainable Development. Therefore, at the beginning of 1980s when the environmental laws have not developed much, the Court in its active spirit utilized legislations of different fields to meet the ends of environmental justice. The State High Courts have followed this trend in many cases. For example, in Rampal vs. State of Rajasthan (A.I.R. 1981 Rajasthan 121). The Rajasthan High Court decided a similar case and utilized Rajasthan Municipality Act, 1959 as a tool to protect the environment.
On many occassions the Supreme Court had voluntarily undertaken administrative exercises. In Rural Litigation and Entitlement Kendra vs. State of Uttar Pradesh (A.I.R. 1985 S.C. 1259) a writ petition under Article 32 of the Constitution of India was filed for closing down of some mining operations in certain limestone quarries which were causing severe environmental pollution. The Court in this case appointed several expert committees to probe into the matter and accordingly gave directions. It also made arrangement for the supervision of the restoration of the places affected by the quarrying. Appointment of such committees and supervision are usually issues that may fall in the periphery of administrative matters. But the Court had in its active spirit exercised quasi-administrative function, thus assumed newer roles in protecting environment.
In M.C.Mehta vs.Union of India (A.I.R. 1988 S.C. 1037) which is otherwise called as Ganga Pollution (tanneries) Casethe Supreme Court admitted a Public Interest Litigation filed to protect the environment of river Ganges. The petition was filed requesting the Court to restraint the tanneries in Kanpur city which were discharging effluents into the river. The Court in this case faced the question of preference between environment and development. The Court ultimately ordered the tanneries that they should install necessary effluent treatment plants or close down the units. The Court expressed that we are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people . This shows the interest of the Supreme Court of India to hold the environment in a higher pedestal. This case adds yet another evidence of judicial activism as the Court treated this case as a Representative Action . Though this case was filed by an active social worker/lawyer, when the petition came for the preliminary hearing the Court directed the issue of notice under Order 1 Rule 8 of the Civil Procedure Code treating the case as a Representative Action. The notice was published in the news papers which called upon the industrialists and municipal corporations and the town municipal councils having jurisdiction over the areas through which the river Ganga flows, to appear before the Court. Treating a single petition by an individual as a representative action is no doubt an active trend of the judiciary in furtherance of protecting the environment.
In the same year the Court also accepted another petition by the same petitioner in M.C.Mehta vs. Union of India (A.I.R. 1988 S.C.1115). The case popularly known as Ganga Pollution (Municipalities) Case was filed against Kanpur Municipality for discharging sewage water into the river Ganges, causing a major pollution. This case was also admitted as a Public Interest Litigation. In this case the petition was admitted as a Citizen Suit. The recognition of the Citizen Suit enables a concerned citizen to sue not as a representative of others but in his own right as a citizen to whom a public duty is owed by public authorities. Accordingly the Supreme Court held in this case that the petitioner is a person who is interested in protecting the lives of people who make use of the water flowing in river Ganga and he is, therefore, entitled to move the court in order to enforce the statutory provisions which impose duties on municipal authorities and other bodies. The Court held that the Kanpur Municipality was the major pollutant of the river Ganges near Kanpur Municipality and directed to take various measures to stop the discharge of sewage in the river. The Court went a step further and ordered that all the municipalities and nagarmahapalikas in the State of Uttar Pradesh along the Ganges should take steps to prevent any pollution caused to the river. It also gave proper directions to stop the practice of throwing the corpses and semi-burnt corpses into the river. The Court in its active spirit also emphasized a duty on the Central Government of India to direct all the educational institutions in India to impart environmental education. This, the Court felt, would enable the citizens to realize their Fundamental Duty of the Constitution of India under Article 51-A to protect and improve natural environment. The recognition of the Citizen Suit provisions in protecting the environment, directions in furtherance of environmental education are some of the major evidences of environmental activism in this case.
The judicial activism in protecting the environment continues to grow in the 1990s as well. In M.C.Mehta vs.Union of India (1996 (4) SCALE 422), a writ petition was filed challenging the continuance of mining operations in Ballabgarh and Faridabad areas in the State of Harayana. The Court admitting the Public Interest Litigation prohibited mining activities for two kilometers around Surajkund and Badkhal lake, which are more vulnerable to the mining activities. Again in M.C.Mehta vs.Union of India (1996 (4) SCALE 33) the Court entertained the Public Interest Litigation which challenged the pollution caused by the industries in Delhi. The Court appointed a special committee to examine into the issue. Also in M.C.Mehta vs. Union of India (A.I.R. 1996 S.C. 2231) the Supreme Court ordered 168 hazardous industries to be shifted and relocated outside Delhi. Later the Court also gave extensive orders regarding how to utilise the land which would become available on account of shifting/relocating these hazardous industries (M.C. Mehta Vs. Union of India and Others 1996(4) SCALE 427). The Court directed that the majority of the lamd made available should be used only to develop green belts for creating lung spaces. In all these cases the common element is the recognition of Public Interest Litigation filed by an independent petitioner. Therefore, the judicial trend of being active in admitting Public Interest Litigation for protecting the environment continues even today.
The judicial activism developed in 1980s in the form of recognizing liberal rules of standing (locus standi) in challenging environmental degradation has come a long way in protecting the environment. This judicial activism has prompted various legislative innovations in the field of environmental protection which are the clear examples of the positive impact of an environmentally active judiciary. As a machinery sensitive to social needs, the judiciary has responded at the right time by adopting various tools of judicial activism. The tools like Public Interest Litigation, Representative Actions, Citizen Suits etc., adopted at first by the judiciary has encouraged the legislature to give legislative recognition to such tools ultimately. The trend set by the judiciary in 1980s resulted in new legislations and amendments in that line. Earlier the environmental laws gave the power to prosecute a polluter exclusively to the government. The citizens had no direct statutory remedy against a polluter. Due to these shortcomings judiciary recognized various tools of liberal standing to enable citizens to sue the polluter. However, ultimately the legislature gave recognition to the judicial trend by the new Environmental Protection Act of 1986 and amending the existing Air Act of 1981 and Water Act of 1979. Section 19 of the Environment Protection Act, 1986, for example, enabled a citizen to prosecute a polluter. Likewise, Section 43 of the Air Act was amended in 1987 and Section 49 of the Water Act was amended in 1988 to include provisions to enable the citizens to sue a polluter. This is a classic example to understand the significance of judicial activism as it is apparent that an active judiciary not only fulfills the growing needs of a given society but also prompts positive changes in other fields of governmental mechanisms. As emphasized throughout, the judiciary being a sensitive mechanism to the social needs may become a trend setter by assuming a judicial activism.
* R. Muruga Perumal,
International Legal Studies Division,
School of International Studies,
Jawaharlal Nehru University
,
New Delhi - 110 067, INDIA.
