The Constitution of India and Environment:

The constitution of India deals with following article dealing with environment they are:-

a. Article 48 A and Article 51(A) (g)

b. Article 14

c. Article 21

Article 48 A and Article 51 (A) (g):-

“the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”.

“to protect and improve the natural environment including forest, lakes, rivers and wildlife, and to have compassion for living creatures”.

The 42nd amendment to the Constitution was brought about in the year 1976. Two new Articles were inserted: Article .48-A and Ariclet.51-A (g). The former, under Directive Principles of State Policy, makes it the responsibility of the State Government to protect and improve the environment and to safeguard the forests and wildlife of the country. The latter, under Fundamental Duties, makes it the fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.

In L.K Kollwal V State of Rajasthan³, a simple writ petition by citizens of Jaipur compelled the municipal authorities to provide adequate sanitation. The court observes that when every citizen owes a constitutional duty to protect the environment (Article.51A), the citizen must be also entitled to enlist the court’s aid in enforcing that duty against recalcitrant State agencies. The Court gave the administration six month to clean up the entire city, and dismissed the plea of lack of funds and staff.

Article 14 :-

Article. 14 states: “The states shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’’ The right to equality may also be infringed by government decisions that have an impact on the environment. An arbitrary action must necessary involve a negation of equality, thus urban environmental groups often resort to Art.14 to quash arbitrary municipal permission for construction that are contrary to development regulations.

Article: 21

Environment and life are interrelated. The existence of life on earth depends on the harmonious relationship between ecosystem and environment. Especially homo-sapiens have very close interaction with nature. Human beings are at the centre of concerns for sustainable development and that they are entitled to a healthy and productive life in harmony with nature.

Article 21 of the Indian Constitution states:

‘No person shall be deprived of his life or personal liberty except according to procedures established by law.’ Article 21 is the heart of all other fundamental rights. Article 21 has very expansive scope and has immense content into of with lesser words. Law is never still, it is ever evolving and ever changing accordingly to meet the challenges of time. Therefore constitution provisions, especially fundamental rights and in particular Article 21 has been broadly construed by the judiciary. The judiciary has resolved most of the environmental cases where they considered right to good environment as fundamental for life and upheld as fundamental right. Thus we can consider article 21 as mandate for life saving environment. This article focuses on some of the landmark cases that have a bearing on the person’s right to life and right to pollution free environment.

Shortcomings of the Present Judiciary

Lack of Technical Training:

Environmental cases involve, along with compassionate judicial circumspection, a finely tuned and accurate scientific investigation and these two elements constitute imperative tools in determining and adjudicating an environmental dispute.⁴ Moreover Environmental laws, unlike other laws, require a scientific understanding of the problem and its implication on the environment.⁵ Environmental laws differ from others because they respond to the scientific evidence of the problem.⁶ The higher judiciary has frequently referred the environmental matters for the opinion of the scientific experts and the reports which are produced before the court by these experts involve complex and versatile matters of science and technology. The judges who adorn the bench are inept to appreciate and fathom the intricate issues of scientific information inscribed in those reports and are thus unpromising and abortive. One of the compelling reasons is that the environmental law has been included .by the bar council as a compulsory law subject only of lately and hence the present judges were never taught this subject. Another contemporaneous reason is that environmental law remained unexplored for quite a long stretch of time and only contemporarily, when the damage to environmental assets bruised the mother earth in a substantial manner that the growth of this law initiated at its fullest. These two reasons reveal the significant problems judges face while dealing with environmental matters and make them unable to predict the scientific nuances involved with environment related cases. Due to lack of scientific and technical training, the judges find themselves unaided, and thus incapable of handling intricate environmental matters involving complex science-rich matters. Thus there exist a grave need of experts at the bench who could lend a hand to the judges in complex environmental matters and can save the environmental fate of the nation as otherwise a slight misconstruction of facts can impinge upon the existence of millions.

Ambiguity of Science:

In Daubert VS. Merrel Dow Pharmaceuticals Inc.,⁷ the U.S. Supreme Court differentiated between the tryst for truth persuaded by science and law and thus observed:

"….there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.”

Uncertainty, resulting from inadequate data, ignorance and indeterminacy, is an inherent part of science.⁸ The scientific reports placed before the courts embroil the judges fathomlessly and drag them to wrestle with the twin challenges of solving the worries of the injured and assurances of the polluter. One eminent example of scientific uncertainty is the A.P. Pollution Control Board VS. M. V. Nayudu⁹ case where both-the Appellate Authority constituted under the Water Act and the High Court, relied upon the opinion of a single scientist which was produced by the industry and came to the conclusion that if the industry became operational it would not pose any hazard to the underground drinking water. In appeal, the Supreme Court after obtaining expert reports from National Environment Appellate Authority (NEAA) and National Geophysical Research Institute, Hyderabad (NGRI) came to the conclusion that there was sufficient scope for poisonous residual substitutes like nickel percolating underground and reaching the drinking water sources. Consequently, the Supreme Court set aside the judgment of the High Court and the order of the Appellate Authority given under sec. 28 of the Water Act thus refusing permission for the industry to operate. The case is a clear example of the benefit of extensive scientific investigation. The fact that the Appellate Authority and the High Court did not have the benefit of the opinion of any scientific bodies the decision went in favor of the industry and as the Supreme Court had the benefit of the Reports of scientific institutions, it could arrive at a different conclusion.

Limitations of Judiciary:

Apart from the superior courts, the subordinate civil courts exercise powers in regard to public and private nuisances.¹⁰ Criminal Courts exercise powers under various sections of the Indian Penal Code¹¹ and Criminal Procedure Code¹² dealing with offences relating to environment. In addition, new offences are created by water (Prevention and Control of Pollution) Act¹³ 1974, Air (Prevention and Control of Pollution) Act¹⁴, 1981, Public Liability Insurance Act¹⁵, 1991, Forest (Conservation) Act¹⁶, 1980, Wild Life (Protection) Act¹⁷, 1972 and Environment (Protection) Act¹⁸, 1986.

The National Environmental Appellate Authority constituted under the National Environmental Appellate Authority Act, 1997, for the limited purpose of providing a forum to review the administrative decisions on Environment Impact Assessment, was entrusted with only 15 cases in the last eight years. A scrutiny of the past and present of the authority postulates it as a body that is not only underutilized, but also under promoted. There was no judicial member with the body till 2000.

So far as the National Environmental Tribunal Act, 1995 is concerned, the legislation has yet to be notified despite the expiry of eight years. Since it was enacted by Parliament, the Tribunal under the Act is yet to be constituted. Thus, the two tribunals constituted to render environmental justice to the country are actually non-functional and are a mere eye wash.

The National Green Tribunal has been established on 18.10.2010 under the National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.

The Crave for Sustainable Judgments:

Environment and development are two sides of the same coin and both are equally important for our better future. Anyone of these cannot be sacrificed for the other. Given the fact of poor and ill-conceived 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,¹⁹ attention naturally turns towards the third limb of the democracy the judiciary-to examine its role in Environmental Governance. There are abundant problems before the courts today, scientific as well as technical, and they come in a variety of ways and at various stages. A closure of an industry will result in large scale unemployment, loss of excise duty or sales tax to the government but at the same time if it is allowed to function it would cause hazards to the health of the citizens.

There are industrialists who would think of abusing the legal procedures for their own gain. Some polluting industries would like to close down under court orders and would thereby want to escape the statutory procedures which otherwise have to be followed for 'closure' of industries as contained in the Industrial Disputes Act, 1947 and thus escape paying compensatory wages to workmen.²⁰ Some others would like to close down or dismantle the plant and sell away prime land to builders. Some others would want concessions from government for shifting their industries to other places. PIL's are now euphemistic with guns. They are being filed against the industries as a measure of blackmail. These problems which are like under-currents should also be taken care of.

Proposal for environmental protection:

Environmental courts:

The lacunae in the present judicial system dealing with environment related issues calls for an efficient and specialized judicial forum which is well versed with the dynamic aspects of the environmental jurisprudence and is equipped with scientific and technical inputs required to settle environmental disputes in a proficient manner. The previous discussion establishes that the present judiciary cannot be regarded as an acceptable platform for proper adjudication of environmental disputes and thus we require a specialized court where the parties can confidently present their grievances in order to get desired heel. Several countries around the world have established environmental courts particularly for adjudicating environmental matters. The deplorable state of the environmental regulation in India too craves for such forum where these disputes can be settled efficiently.

Environment Courts Abroad:

Australia and New Zealand have taken the lead in establishing Environmental Courts which exclusively take cognizance of the cases related to environmental problems and are manned by Judges and Commissioners.²¹

In Australia, in the State of New South Wales, the Land and Environmental Court was established by legislation in 1980 under the Land and Environment Court Act 1979. It is a superior court of record and is composed of Judges and nine technical and conciliation assessors. Its jurisdiction combines appeal, judicial review and enforcement functions in relation to environmental and planning law. There is no strict rule regarding the commencement of proceedings and anyone can ignite the proceedings. In New Zealand, the New Zealand Environment Court was established under the Resource Management (Amendment) Act, 1996 and is an independent specialist Court consisting of Environment Judges (who are at the level of the District Judge) and the Environment Commissioners (technical experts) appointed by the Governor-General on the recommendation of the Minister of Justice. In appointing the Judges and Commissioners, the Governor-General is to have regard to the need to ensure a mix of knowledge and experience including commercial and economic affairs, local government, community affairs, planning and resource management, heritage protection, environmental science, architecture, engineering, minerals, and alternative disputes resolution processes.

Sweden has established a systematic approach towards the adjudication of environmental matters. The Environmental Code consolidates Swedish legislation on the environment, and also comprises broader based legislation that unites social and economic development in society with effective protection of the environment.²² As tools to achieve the objectives ordained in the Code, the Environmental Courts are established.

Environmental Courts: Vision of the Supreme Court:

The Apex court of the land, which has far reaching influence over almost every state instrumentality also felt feebleness while dealing with environmental matters and desired the establishment of special ist courts to deal with the complex environmental matters. In M. C. Mehta vs. Union of India²³ the Supreme Court said that in as much as environment cases involve assessment of scientific data, it was desirable to set up environment courts on a regional basis with a professional Judge and two experts, keeping in view the expertise required for such adjudication. Then in Indian Council for Enviro- Legal Action vs. Union of India²⁴ the Supreme Court observed that Environmental Courts having civil and criminal jurisdiction must be established to deal with the environmental issues in a speedy manner. In A.P. Pollution Control Board v. M. V Naidu²⁵, the Court referred to the need for establishing Environmental Courts which would have the benefit of expert advice from environmental scientists/technically qualified persons, as part of the judicial process.

In the subsequent follow-up judgment in A.P. Pollution Control Board vs. M. V Naidu²⁶, the Supreme Court, referred to the serious differences in the constitution of appellate authorities under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, and pointed out that they were manned only by bureaucrats. These appellate authorities were not having either judicial or environment back-up on the Bench. The Court required the Law Commission to go into this question. In this regard a Law Commission was set up which was headed by Justice M. Jagannadha Rao. The Commission in its voluminous report emphasized on the need of environmental.coiurts and finally rcccomended:

It is the duty of the Parliament to provide for the establishment of additional Courts and the Central Government has to beat, the cost of establishing and maintaining these Courts under Art 247 of the Constitution of India.

Development of Environmental Law Principles

The Court has successfully isolated specific environmental law principles upon the interpretation of Indian statutes and the Constitution, combined with a liberal view towards ensuring social justice and the protection of human rights. The principles have often found reflection in the Constitution in some form, and are usually justified even when not explicitly mentioned in the concerned statute.

The Precautionary Principle:

Beginning with Vellore Citizens’ Welfare Forum v. Union of India, the Supreme Court has explicitly recognized the precautionary principle as a principle of Indian environmental law. More recently, in A.P. Pollution Control Board v. M.V. Nayudu, the Court discussed the development of the precautionary principle. Furthermore, in the Narmada case, the Court explained that “When there is a state of uncertainty due to the lack of data or material about the extent of damage or pollution likely to be caused, then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution.”

The “Polluter Pays” Principle:

The Supreme Court has come to sustain a position where it calculates environmental damages not on the basis of a claim put forward by either party, but through an examination of the situation by the Court, keeping in mind factors such as the deterrent nature of the award. However, it held recently that the power under Article 32 to award damages, or even exemplary damages to compensate environmental harm, would not extend to the levy of a pollution fine. The “polluter pays” rule has also been recognized as a fundamental objective of government policy to prevent and control pollution.

Sustainable Development and Inter-generational Equity:

The definition which is used most often comes from the report of the Brundtland Commission, in which it was suggested that the phrase covered “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” the Supreme Court in Narmada Bachao Andolan v. Union of India wherein it was observed that “Sustainable development means what type or extent of development can take place, which can be sustained by nature/ecology with or without mitigation.” In this context, development primarily meant material or economic progress.

Holistic Adjudication:

The Supreme Court, in recent years, has been adopting a holistic approach towards environmental matters. This is usually done through detailed orders that are issued from time to time, while Committees appointed by the Court monitor the ground situation. The origin of this tendency may be seen in cases such as Ratlam and Olga Tellis.

The Doctrine of Public Trust:

To further justify and perhaps extract state initiative to conserve natural resources, the Court enunciated Professor Joseph Sax’s doctrine of public trust, obligating conservation by the state. In M.C. Mehta v. Kamal Nath, the Court held that the state, as a trustee of all natural resources, was under a legal duty to protect them, and that the resources were meant for public use and could not be transferred to private ownership.

CONCLUSION:

Right to wholesome environment is a compelling priority: the moot question is how this right may be transformed to veracity without a proper and accessible adjudicating forum. Though the judiciary has played a responsible role in bequeathing jurisprudential dimensions to environmental issues, but a close scrutiny of the accessibility of these courts with regards to the masses of a developing nation marked by illiteracy and poverty reveals that the existing system is not sufficient and efficient enough to combat the present environmental problems. Moreover the emergence of complex environmental matters, need for sustainable development and importance of environment in the human existence requires a specialized environmental forum to solve the problems of rational importance in a steady and efficient manner.

In India there exists a need for the courts which would deal specially with environmental matters and are accessible and would be able to provide an efficient remedy taking into consideration the scientific facts and environmentalist dimensions involved to protect the right of the citizens of enjoying a clean and healthy environment. It is therefore recommended that Environmental Courts be established in each constituency district consisting of judicial members assisted by a statutory panel of environmental experts attached to these courts. The proposed Court shall have original jurisdiction on environmental disputes with all powers of a Civil Court and shall grant all relief’s which a Civil Court can grant under the Code of Civil Procedure, 1908 or other statutes like the Specific Relief Act, including declaration, setting aside of orders by public authorities or the State, permanent injunction, appointing receivers to manage the property, damages or compensation, possession etc.

These Environmental Courts will not only be instrumental in obliterating the ever creeping technical and scientific irregularities but being an exclusive court for the adjudication of environment related matters, will reduce the judgment delay strikingly. This apparatus for environment matters will allow the judges and experts to get close view of each dispute and will facilitate spot inspections and oral evidences. That apart, the golden principles of environmental law (Precautionary Principle, intergenerational Equity, Polluter Pays Principle etc.) can be turned binding by incorporating those in the new legislation establishing environmental courts. Viewed from environmental focal point, these principles which are of utmost importance, but does not find place in any of the enactments till date will emerge as a statutory obligation and this will act as a watch dog for the polluters.

Therefore the government must pioneer in the direction to set up environmental courts so as to ensure a better environmental future for the nation.

REFERENCE:

1. Refer, 39(b), Art. 47 and Art.49 of The Constitution of India.

2. See, Articles 48-A, 51-A(g), inserted by 'The Constitution (42^ndamendment) Act 1976, which came into force from 3rd January, 1977.

3. AIR 1988 Raj 2, 1987 (1) WLN 134

4. Pushpakumar, L, Expertise of Experts: The Indian Experience in Environmental Justice. Paper Presented at The International Workshop on Environment and Authorities-The Indian and Australian Experience' organized by ILS Law College, Pune on January 17,2000.

5. Singh, Gurdip, Global Environment Change and International Law. The Indian Society of International Law, New Delhi. 1991. p. 55.

6. Id.

7. Dauberl v. Merrel Daly Pharmaceuticals and Co. (1993) 113 S.Ct. 2786, 509 U.S. 579, 125 L.Ed. 469, 61 USLW 4805, 27 U.S.P.Q.2d 1200,23 Envt. L. Rep. 20,979, 37 Fed. R. Evid. Serv I, judgment dated June 28, 1993.

8. Wyne, Brian, Uncertainty and Environmental Hearing, Vol. 2, Global Environmental Change, 1992, p. 111; A.P. Pollution Control Board v. M. V Navudu, 2001(2) SCC 62.

9. Id.

10. See Sections 9 and 9A of the Code of Civil Procedure Code. 1908.

11. Sections 269-271. 277-278, 284-289. 336-337., 425. 430-432.

12. Section 133 of Cr.P.C.

13. Sections 41-50 (Chapter VII)

14. Sections 37-46 (Chapter VI)

15. Sections 14-18.

16. Sections 3A, 38

17. Sections 51-58 (Chapter VI)

18. Sections 15-17.

19. Supra note 2.

20. Law Commission of India, One Hundred Eighty Sixth Report on Proposal to Constitute Environment Courts September, 2003, 19.

21. Commissioners are generally persons having expert knowledge in environmental matters. See also, www.internat.environ/selindex/php3 as accessed on December 31, 2005 at 9.35 Hrs

22. Id.

23. M.C. Mehta vs. Union of India, 1986(2) SCC 176, p. 202.

24. Indian Council for Enviro- Legal Action v. Union of India, 1996(3) SCC 212, p. 252.

25. A.P. Pollution Control Board v.. M V Naidu, 1999 (2) SCC 718.

26. Id.

Received on 05.04.2017

Modified on 20.05.2017

Accepted on 09.06.2017

Research J. Humanities and Social Sciences. 8(2): April- June, 2017, 177-182.

DOI: 10.5958/2321-5828.2017.00025.0