Public Interest Litigation and Environmental law

Leading Public Interest Litigations

1. Public Interest Litigation and Environment By, Swathi K. Hosamani 4 th year B.A.,LL.B(Hons)

2. Introduction The term ‘ Environment’ is formulated on the word ‘ Environ’ derived from the French word ‘ Environner’, which means “to surround.” Thus, term ‘ Environment’ literally means “the surroundings and conditions under which man lives and works.” It is difficult to define the term ‘Environment’, but under section 2(a) of Environment Protection Act, 1986 is defined as: “environment includes water, air and land and the inter- relationship which exists among and between water, air and land and human beings, other living creatures, plants, micro- organism and property.”

3. Significance of PIL for Environmental Protection The Council for Public Interest Litigation set up by the Ford Foundation in USA defined the “Public Interest Litigation” in its report of Public of Interest Law, USA, 1976: “ Public Interest Law is the name that has recently been given to efforts provide legal representation to previously uninterested groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others .” PIL in India was initiated and fostered by a few judges of the Supreme Court. A complete change in the jurisprudence scenario in the 1970’s with efforts taken by Justice P. N, Bhagwati and Justice V. R. Krishna Iyer was marked by attempts to bring wider issues affecting the general public at large within ambit.

4. The ability to invoke the original jurisdiction of Supreme Court and the High Court under Article 32 and Article 226 of the Constitution is a remarkable step forward in providing protection for the environment. Community interests can also be agitated under law of Public Nuisance incorporated in Cr. P. C. An individual, a group of individuals, or an executive magistrate, suo motu, can move to the courts. A number of cases on environmental issues have been initiated through PIL. Beginning with the Dehradun limestone quarrying case in 1983, followed by the Ganga Water Pollution case, Delhi Vehicular case, Oleum Gas case, Tehri Dam case, Narmada Dam case, Dahanu Thermal Power Plant case, Bichhri village industrial pollution case, Vellore leather industry pollution case, Sariska wildlife protection case, and T. N. Godavarman case, all of them came to court’s attention through PIL.

5. Padma Shri MC Mehta Mahesh Chandra Mehta is a public interest attorney from India. He single-handedly won numerous landmark judgments from India’s Supreme Court since 1984, including introducing lead- free gasoline to India and reducing the industrial pollution fouling the Ganga and eroding the Taj Mahal. He was awarded the Goldman Environmental Prize in 1996 for his continuous fights in Indian courts against pollution-causing industries. He received the Ramon Magsaysay Award for Asia for Public Service in 1997. The Government of India awarded him the civilian honour of the Padma Shri in 2016. H e has made the fight to protect India’s environment his unending mission. He has pioneered legal activism for environmental protection and is proof that one man can make a difference.

6. Leading Public Interest Litigations Rural Litigation and Entitlement Kendra(RLEK) v. Union of India AIR 1985 SC 652 This case is also referred as ‘Dehradun limestone quarrying case,’ which was filed in 1983, was the first PIL filed for the environmental protection. In this case the court ordered for the closing down of certain category of lime stone quarries and observed: “ the consequence of this order made by would be that the lessees of lime stone quarries which have been directed to close down permanently, would be thrown out of business in which they have invested large sums of money and expended considered time and effort. This would undoubtedly cause hardship to them, but it is price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and under affection of air, water and environment .”

7. Ganga Water Pollution Case In 1985, M.C. Mehta filed a writ petition in the nature of mandamus to prevent these leather tanneries from disposing off domestic and industrial waste and effluents in the Ganga river. This writ petition was bifurcated by the Supreme Court into two parts known as Mehta I and Mehta II. Mehta I [M.C. Mehta v. Union of India , [1987] 4 SCC 463] In this petition the petitioner requested the court to restrain the respondents from releasing effluents into the Ganga river till the time they incorporate certain treatment plants for treatment of toxic effluents to arrest water pollution. The Court identified the polluters and ordered each of the firm to meet the effluent standards within a period of 3 months or else face closure. Court also observed that the financial capacity of tanneries should be considered irrelevant while asking them to install primary treatment plants. A tannery cannot be allowed to continue to be in existence just because it claims that it has no funds to install primary treatment plants.

8. Mehta I I [M.C. Mehta v. Union of India , AIR 1988 SC 1037] This petition was taken up by the Court against the municipal bodies, the Kanpur Nagar Mahapalika. The Supreme Court noted that the Kanpur Nagar Mahapalika was established under the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959. The Court relied on Section 114, 251, 388, 396, 398, 405 and 407 of the Adhiniyam. These provisions deal with the duties of the Nagar Mahapalika or the Mukhya Nagar Adhikari appointed under the Adhiniyam with regard to the disposal of sewage and protection of the environment. The Court directed the Kanpur Nagar Mahapalika to take appropriate action under the provisions of the Adhiniyam for the prevention of water pollution in the river. Kanpur Nagar Mahapalika was ordered to increase the size of sewers in the labour colonies and increase the number of public latrines and urinals for the use of poor people. Whenever applications for licenses to establish new industries are made in future, such applications shall be refused unless adequate provision has been made for the treatment of trade effluents flowing out of the factories.

9. M. C. Mehta v. Union of India and ors. AIR 1987 SC 1091 This case is famously known as “Oleum Gas case.” There was a leakage of Oleum gas from the unit of Sriram Foods and Fertiliser industries in December 1985. This caused the death of one person and affected many people in the city of Delhi. M. C. Mehta filed a petition in Supreme court to claim compensation for the damage and losses caused to health of public and the environment and also pleaded that the closed establishments should not be allowed to restart. In this case the court observed that “ we cannot possibly adopt a policy of not having any chemical or other hazardous industry merely because they pose hazard or risk to the community. Industries, even if hazardous, have to be set up since they are essential for economic development and advancement of well being of the people. We can hope to reduce the element of hazard or risk to the community by taking all necessary measures for locating such industries in a manner which pose least risk or danger to the community and maximizing safety requirements in such industries .” The court also ordered to give compensation to all those affected under “ absolute liability” by the respondent. This was the first time compensation was paid to victims. The principle of absolute liability was first introduced in this case.

10. Vellore Citizens Welfare Forum(VCWF) v. Union of India and ors. AIR 1996 SC 2715 The petitioner filed PIL under Article 32 of the Constitution. This was filed against the large- scale pollution caused to River Palar due to the discharge of untreated effluents by the tanneries and other industries in the state of Tamil Nadu. Due to this nearly 35,000 hectares of agricultural land had become unfit for cultivation. The court observed that “ the ‘ Precautionary Principle’ and ‘ The Polluter Pays’ principle are essential features of ‘ Sustainable Development’. The ‘ Precautionary Principle’ was declared to be an essential feature of sustainable development. This principle has been incorporated into municipal law to include: ( i ) Environment measures - by the State Government and the statutory Authorities must anticipate, prevent' and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage lack of scientific certainty should not be used as the reason for postponing, measures to prevent environmental depredation. (iii)The "Onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign.”

11. Indian Council for Enviro- legal Action v. Union of India and ors. 1996(3) SCC 212 This case is also known as Bichhri village industrial pollution case. The petitioner filed PIL to stop the pollution in Bichhri village, Rajasthan, caused by chemical industrial plants located there. The court ordered closure of all these plants, also the industries were directed to deposit compensation. Court applied “Polluter Pays “ principle. It was also held that: “ While economic development should not be allowed to take place at the cost of ecology or by causing widespread environmental destruction and violation, at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice- versa, but there should be development while taking due care and ensuring the protection of environment .”

12. M. C. Mehta v. Union of India , AIR 1992 SC 382 This case is popularly known as “Delhi Vehicular case”, where the Supreme Court delivered a landmark judgment against vehicular emissions in India. Court ordered that all government vehicles in the Delhi city to be converted to “Compressed Natural Gas”(CNG) and mandated the phasing out of lead from all fuel in major cities of India. The Delhi Government failed to comply with the direction of Supreme Court. Later a committee known as Bhure lal committee was set up to look into the problem of Vehicular Pollution in Delhi and to find methods to arrest pollution. Later, Bhure lal committee’s statutory recommendations mandated all buses in the city must be converted to CNG before March 31, 2001. As a result, Delhi has become the first city in the world to have complete public transformation running on CNG.

13. Tarun Bharat Sangh, Alwar v. Union of India AIR 1992 SC 514 Tarun Bharat Sangh, a voluntary Organisation interested in protection of environment, approached the court complaining that widespread illegal mining activity was going on in the area declared as Tiger Reserve in Altar District of Rajasthan. In the interest of ecology, environment and rule of law, it said, the activity should stop. The petitioner alleged that Government of Rajasthan illegally issued 400 mining license to carry on mining of lime and dolomite stones inside the protected area. The court observed that once an area is declared as protected forest, it comes under the purview of the Forest(Conservation) Act, 1980 and no non- forest activity must be carried out except with prior approval of Central Government. The Supreme Court held that no mining operations shall be carried on within the protected area as it is a non- forest activity.

14. T. N. Godavaram Thirumulkpad v. Union of India (1997) 2 SCC 267 In 1995, T.N. Godavarman Thirumulpad filed a writ petition with the Supreme Court of India to protect the Nilgiris forest land from deforestation by illegal timber operations. In this case, the Supreme Court in 1996 reinterpreted the Forest (Conservation) Act, 1980 and expanded the scope of the term "forest". This case is being heard for the last twelve years and is a part of what is termed as "continuing mandamus", whereby the Court, rather than passing final judgments, keeps on passing orders and directions with a view to monitor the functioning of the executive. Court in one of the interim orders of the Godavarman case, the Supreme Court asked for measures such as relocation of industries, identification of ecologically sensitive areas, consultation with leading institutions and non-government organizations having expertise in forest ecology, intensive patrolling and vigilance against exploitation of vulnerable areas and institution of state level committees to evolve licensing regulations. In another interim order in 1999, the Court detected absence of faith on the part of government agencies and prohibited cutting of trees, even those considered as diseased till further orders.

15. Tehri Bandh Virodhi Sangharsh Samiti and ors. v. State of Uttar Pradesh and ors. (1992) 1 SCC 44 (Supp). This petition under Article 32 of the Constitution of India has been filed in public interest by Tehri Bandh Virodhi Sangarsh Samiti and others. The petitioners have prayed that the Union of India, State of Uttar Pradesh and the Tehri Hydro Development Corporation be restrained from constructing and implementing the Tehri Hydro Power Project and the Tehri Dam as this would lead to serious threat of life to North India people as well as environment and the place where the dam was to be constructed is prone to earthquakes. The court dismissed the petition on grounds that it was satisfied with the efforts made by Union of India to ensure the safety of the dam and highly relied on the High level committee appointed by the Government of India and Prof. Jai Krishna’s report which stated that all questions of safety of the project was considered more than once.

16. Dahanu Talukha Environment Protection Group and anr. V. Bombay Suburban Electricity Supply Co. Ltd. And ors. (1991) 2 SCC 539 The petition filed an appeal against the decision of the Bombay High Court whereby the High Court had upheld the sanction granted to the Company for setting up a thermal power plant. The company had sought to set up various thermal power plants at various sites in Maharashtra, and Dahanu was one of them. Court in this matter rejected the contention and stated that this committee do not represent the decision of the government and cannot be binding on the Central Government. The court, rejected both the arguments of the petitioner which was regarding that the approval was contrary to the Environmental Guidelines for Thermal Power Plants, 1987 and that it violated Coastal Regulation Zone guidelines. It was satisfied that the Government fully considered all aspects of the environmental pollution before granting the clearance to the thermal power station.

17. Narmada Bachao Andolan v. Union of India and ors. AIR 2000 SC 3751 The petitioner filed a PIL in 1994 before Supreme Court challenging that the Government of India had not considered all relevant issues particularly that it had not given project affected people to make representation before it regarding the Sardar Sarovar Project . The Court observed that the clearance was given in 1987 and was challenged in 1994 and stated that the pleas relating to height of the dam and other issues except implementation of relief and rehabilitation, cannot be permitted to be raised at this belated stage. It is one of the most controversial judgments on PIL by Supreme court regarding environment protection and violation of human rights.

18. M. C. Mehta v. Kamal Nath ( 1997) 1 SCC 388 A private company had built a motel Span Motel pvt. Ltd. on the Bank of Beas. It was owned by Kamal Nath who was the Minister for Environment and Forests. They diverted the course of river Beas to beautify the motel and also encroached upon some forest land. The court delivered a landmark judgment and established principle of exemplary damages for the first time in India. The court said polluter must pay to reverse the damage caused by his act and imposed a fine pf Rs. 10,00,000 on Span Motel as exemplary damages. The Supreme court of India recognised the Polluter Pays principles and Public Trust Doctrine.

19. Recent Public Interest Litigations Vanashakti Public Trust and ors v. Union of India and ors. decided on 4 th October, 2019 2 . Bombay Environmental Action Group v. The State of Maharashtra and ors. decided on 17 th September, 2018 3 . Kalia Sethi v. State of Odisha and ors. decided on 9 th August, 2017

20. Conclusion “Earth provides enough to satisfy every man’s need but not every man’s greed” - Mahatma Gandhi Public Interest Litigation has been used by courts as an effective tool in dealing with issues relating to environment and its protection. Also, the courts must ensure that the use of PIL for private interest should not be entertained because it defeats the very purpose for which the PIL was introduced in the first place. Another concern is the increasing number of cases on environmental issues due to which other areas of judicial operation are suffering. But close analysis of PIL on environmental issues reveals that there has been a fundamental change in the environmental jurisprudence. Certain new principles and declaration of new doctrines as part of domestic legal system for the environmental protection is a remarkable achievement of Indian Judiciary.