INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS VOLUME 4 ISSUE 1

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1 THE SCOPE OF JUDICIAL ACTIVISM IN RIGHT TO ENVIRONMENT CASES 1 * SAYESHA BHATTACHARYA 1. THE EXPANSION OF ARTICLE 21 OF THE CONSTITUTION TO INLCUDE RIGHT TO ENVIRONMENT During the late 1970s and early 1980s, the Apex Court transformed its role in governance through a new sort of activism, which was trying to address the causes of social justice, basic living conditions and human rights for the poor and oppressed classes of India. 2 The substantive basis for this sort of an expansion of the Court's role was the expansion of Article 21 of the Constitution of India, through jurisprudential interpretation that supported the rapid extension of citizens' rights to various public goods, which included environmental public goods like clean air, drinking water, and reduced noise pollution. 3 Procedurally, as well, in order to make the fundamental rights widely accessible to the vast majority of the Indian population, the Court embraced a new phase of procedural activism. 4 A. SUBSTANTIVE BASIS OF EXPANSION Encouraged by an atmosphere of freedom and articulation in the aftermath of the Emergency, the Supreme Court entered one of its most creative periods, specifically in the context of expansion of the fundamental rights enshrined in Part III of the Indian Constitution. 5 Article 21 6 was one such fundamental right that was expanded to include environmental protection. 7 The Supreme Court strengthened Article 21 in two 1 This paper is original and is not published or under consideration for publication elsewhere. 2 UPENDRA BAXI, THE INDIAN SUPREME COURT AND POLITICS (1980). 3 Nupur Chowdhury, From Judicial Activism to Adventurism - The Godavarman Case in the Supreme Court of India, 17 Asia Pac. J. Envtl. L. 178 (2014). 4 Manoj Mate, The Rise of Judicial Governance in the Supreme Court of India, 33 B.U. Int'l L.J. 178 (2015). 5 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 49 (2d ed. 6 Article 21 states: No person shall be deprived of his life or personal liberty except according to procedure established by law. 7 Id. at

2 ways 8 ; first it required laws affecting life and personal liberty of the person to pass through the non-arbitrariness standard of Article 14 and the reasonableness review in Article 19 of the Constitution, for them to be in compliance with Article 21 of the Constitution. 9 Second the Court recognized certain unarticulated liberties and rights that were implied by Article 21 and it is through this second method that the Supreme Court interpreted the right to life and liberty to mean right to a wholesome environment. 10 The first case that tried to address the issue of Right to Environment was the Dehradun Quarrying Case. 11 The representatives of the petitioner, Rural Litigation and Entitlement Kendra, Dehradun wrote to the Supreme Court alleging that unauthorized and illegal limestone mining in the Mussoorie-Dehradun belt was adversely affecting the fragile ecology of that area. After nearly 5 years of complex litigation, lengthy arguments from both sides and several interim orders passed by the Court also, the court did not articulate the fundamental right of a healthful environment. It was eventually in the case of Subhash Kumar v. State of Bihar and Ors. 12, that the Supreme Court, for the first time, expanded the right to life and personal liberty to include the right to a wholesome environment. 13 Accordingly, a litigant could now approach the judicial authorities and assert his or her right to a healthful environment against the state, by a writ petition to either the Supreme Court or a High Court. 14 Then in the case of Virender Gaur v. State of Haryana 15, the Apex Court further 8 Id. at Manoj Mate, The Rise of Judicial Governance in the Supreme Court of India, 33 B.U. Int'l L.J. 177 (2015). 10 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 49 (2d ed. 11 Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, AIR 1988 SC AIR 1991 SC Subhash Kumar v. State of Bihar and Ors., AIR 1991 SC 420; Virender Gaur v. State of Haryana, 1995 (2) SCC 577, 14 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 50 (2d ed. 15 Virender Gaur v. State of Haryana, 1995 (2) SCC

3 expanded upon this theme 16. The court in this case observed that Article 21 encompasses within its ambit the protection and preservation of the environment, ecological balance, sanitation etc. without which life cannot be enjoyed. 17 Any actions, which would cause environmental pollution and ecological degradation, according to the court, would amount to a violation of Article The court also said that there is a constitutional imperative on the State Government and various other executive bodies to not only ensure and safeguard the environment, but also take adequate affirmative measures to protect and improve man-made as well as natural environment. 19 This is how the Apex Court began its journey of expanding Article 21, which allowed it to take a wide variety of decisions, especially in cases of environmental concern. B. PROCEDURAL ACTIVISM The writ powers of the Supreme Court and the High Courts under Article 32 and 226 are not in the nature of writs under English Law. Rather they extend to directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. 20 The term writs in the nature of in the Indian Constitution, if interpreted literally, widens the court s discretion in granting relief, by releasing Indian Courts from the procedural technicalities that writs under the English Law face. 21 Thus, an inherent notable feature of the writ process in India is the court s flexibility in choosing an appropriate relief, which is enabled through the broad language of Articles 32 and 226 of the Indian Constitution. 22 This is perhaps one of the major reasons because of which any sort of discourse on expansion of Fundamental Rights could take place in the Indian Courts, in the first place. 16 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 50 (2d ed. 17 Subhash Kumar v. State of Bihar and Ors., AIR 1991 SC Id. 19 Id. 20 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 123 (2d ed. 21 Id. at Id. at

4 The Court's popular activism consisted of a couple of innovations. First, the Court expanded popular access to the Court by liberalizing formal pleading and filing requirements and broadening standing for PIL suits. In the case of S.P. Gupta v Union of India 23 the court acknowledged that it had jurisdiction to advance the right of the disadvantaged and poor, although this might be claimed by individuals or groups who themselves did not claim disability. 24 Through this new way of legal action i.e. Public Interest Litigations (PILs), the court diluted the rule of locus standi 25 in case of Fundamental Rights litigations. Second, the Court innovated new judicial, non-adversarial procedures of investigation and fact-finding. PIL, itself is characterized by a non-adversarial approach, with the participation of amicus curiae 26, appointment of experts for technical know-how in certain fields, monitoring committees by the court, and the issue of detailed interim orders in the form of continuing mandamus under Article 32 and 226 by the Supreme Court and the High Courts of the States respectively 27. Finally, the Court expanded the scope of its equitable and remedial powers. For example, the Court effectively developed new doctrines of tort law, adopted the doctrine of strict liability as well as absolute liability, etc. 28 The Supreme Court s procedural activism, in the ways mentioned above, also allows it to embark upon affirmative action, in the attempt to remedy constitutional imbalances within the social order. 29 Similar actions taken by the Court in some cases, which are discussed below, have and can lead to inherent problems within a democracy, and must be 23 AIR 1982 SC Amit Singh, Judicial Activism on Environment in India, NLUJ 9 (2014). 25 Locus Standi would mean that a legal standing is required for a party seeking to present a case before a court for redress and the party must be competent to ask for relief as the person has an interest in the case; See, Amit Singh, Judicial Activism on Environment in India, NLUJ 8 (2014). 26 Amicus Curiae means a person who is not party to the case and is also not there to help any of the parties specifically, but yet gives information that is important to the case. 27 Amit Singh, Judicial Activism on Environment in India, NLUJ 10 (2014). 28 Manoj Mate, The Rise of Judicial Governance in the Supreme Court of India, 33 B.U. Int'l L.J. 185 (2015). 29 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 150 (2d ed. 161

5 immediately dealt with. 2. CASES WHERE THE SUPREME COURT ENTERED INTO THE REALM OF POLICY MAKING AND ENFORCEMENT The Indian Supreme Court has enabled major reforms for the protection of human rights, through enforcement of expanded Fundamental Rights. 30 However, although some might see the Court as a beacon of hope for the oppressed, others warn that the Court's eagerness can easily develop into judicial excess and contend that the Justices "ought not soil their judicial robes by entering the administrative area and taking decisions which are within the province of specialist enforcement agencies. 31 The following cases are examples of instances where the Courts have entered into the realm of creating and enforcing policy, which is prima facie problematic due to a number of reasons and these reasons will be discussed in the next section. A. VEHICULAR POLLUTION CASES Alarmed by the unchecked pollution and its health impacts on the Delhi population, environmental lawyer M.C. Mehta filed a PIL suit in the Supreme Court of India against the Union of India, charging that existing environmental laws obligated the government to take steps to help reduce Delhi s air pollution levels in the interests of public health. 32 The Court interpreted the Directive Principles of State Policy and Article 21 of the Constitution, and reached the conclusion that right to life includes the right to clean air. 33 During the course of the litigation, the Supreme Court kept shifting focus between different schemes, commission reports and several orders as well. 34 In 1990, the emphasis was on the prosecution of defaulters 35, which shifted 30 Armin Rosencranz and Michael Jackson, The Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power, 28 Colum. J. Envtl. L. 224 (2003). 31 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 148 (2d ed. 32 S.C. Writ Pet. (Civil), M.C. Mehta v Union of India (1985) (No /1985). 33 M.C. Mehta v. Union of India, (1991) 2 S.C.C SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 277 (2 nd ed (2) SCC

6 to bringing down emissions from public buses in early From they put immense pressure on the government to ensure that vehicles are fitted with catalytic convertors, there is use of lead free petrol in all the four metros etc., all of which the government was not in favor of, merely because of the administrative difficulties such decisions would bring along with them. 37 By late 1996 and 1997, the Supreme Court had reached an ultimatum in terms of pressurizing the government to take certain policy decisions. The Apex Court pressed the Central Government to convert its vehicles to operate on a cleaner fuel compressed natural gas 38 and also sought a number of technical solutions to reduce emissions from different vehicles. 39 All these orders and decisions that the Court took over a period of 15 years in this series of cases, by embracing its activist role, were decisions in the nature of policy making and enforcement, a function that is undertaken by the Executive organ of any Democratic State. B. THE GODAVARMAN CASE In 1995, T.N. Godavarman Thirumulpad filed a writ petition with the Supreme Court of India to protect the Nilgiris forestland from deforestation by illegal timber operations. 40 A number of orders passed during this case (the longest-running continuing mandamus in the history of environmental protection in India) have certainly pushed the general limits of judicial activism. 41 Assisted by an amicus curiae, the court firstly froze all wood-based industrial activity, especially in the North East, then reinforced the scope of the embargo on forest exploitation, issued detailed orders and directions for sustainable use of forests and even created its own monitoring and implementation machinery through regional and state level 36 Writ Petition (Civil) No of 1985, order dated 8 January SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 277 (2 nd ed. 38 Order dated 26 April 1996 reported at 1997 (4) SCALE 7 (SP). 39 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 277 (2 nd ed. 40 (WP 202/1995) CDJ 2005 SC Nupur Chowdhury, From Judicial Activism to Adventurism - The Godavarman Case in the Supreme Court of India, 17 Asia Pac. J. Envtl. L. 180 (2014). 163

7 committees. 42 Rather than directing, guiding, and motivating the existing national and state bureaucracies to realign their infrastructures and goals toward more stringent and effective forest management, the Supreme Court themselves assumed responsibility for enforcing its own interpretations and regulations, again a role that is intuitively supposed to lie with the Executive PROBLEMS WITH THIS OVERSTEPPING OF POWERS BY THE SUPREME COURT A. THREAT TO SEPARATION OF POWERS When the Supreme Court performs the functions of a different organ of the State, there is an immediate threat to the basic principle of Separation of Powers. The separation-of-powers doctrine has been recognized as a critical part of the basic structure of the Indian Constitution in other words, one of its fundamental precepts as well. 44 Judicial Activism i.e. taking an active role and affirmative actions to remedy a constitutional imbalance within the social order 45, is something that the Court can indulge in, as long as it does not assume the powers of government actors. 46 This is so because such a situation can be extremely detrimental to the working of the other organs of a Democratic State. The Supreme Court has, many a times, restricted the growth of a responsible and independent bureaucracy as well, through judicial activism in excess. 47 For example, in the Godavarman 48 case, rather than guiding and motivating the existing national and state bureaucracies to realign their infrastructures and goals towards more stringent and effective forest management, the Supreme 42 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 294 (2 nd ed. 43 Armin Roscncranz, Edward Boenig, and Brinda Dutta, The Godavarman Case: The Indian Supreme Court's Breach of Constitutional Boundaries in Managing India's Forests, 37 ELR (2007). 44 Abhimanyu George Jain and Dr. Armin Rosencranz, The Indian Supreme Court Promotes Interlinking of India s Rivers: Judicial Overreach?, 44 ELR (2014). 45 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 150 (2 nd ed. 46 Armin Roscncranz, Edward Boenig, and Brinda Dutta, The Godavarman Case: The Indian Supreme Court's Breach of Constitutional Boundaries in Managing India's Forests, 37 ELR (2007). 47 Armin Roscncranz, Edward Boenig, and Brinda Dutta, The Godavarman Case: The Indian Supreme Court's Breach of Constitutional Boundaries in Managing India's Forests, 37 ELR (2007). 48 (WP 202/1995) CDJ 2005 SC

8 Court bypassed their authority and attempted to selectively micromanage the entire country's forests. 49 B. INCAPABILITY OF THE COURTS TO TAKE DECISIONS ON BEHALF OF THE EXECUTIVE The Judiciary is clearly not very competent to make policy decisions and implement them, as they do not possess the manpower, time, or expertise to research, create, and implement policy. 50 The Indian SC has responded to these physical inabilities by relying on writs of mandamus to require government action 51, which is problematic in its own way because these writs of mandamus generally become continuous in nature and over a period of several years, like in the Vehicular Pollution Cases, the Courts are likely to have different members in the bench, quite frequently, with different degrees of interest in a particular aspect of the environmental problem. 52 Thus, the judiciary would not be able to match up with the uniformity and swiftness with which the bureaucracy can take and implement policy decisions. 4. CONCLUDING THOUGHTS We can see that, with the Judiciary overstepping its powers and taking up the powers of the executive upon itself, through judicial activism, the doctrine of separation of powers is getting threatened. This violation of this doctrine adversely affects the implementation of policies at the most basic level also, as the Supreme Court is incompetent to take these policy decisions at the first place. Thus, the line that the Supreme Court must draw in the context of judicial activism should be at a much more preliminary level, before it can take up policy making decisions onto itself and implement them on its own too. In a case similar to the Vehicular Pollution Cases, before the Kerala High Court, the Court achieved a much more modest agenda by just requiring the Kerala Government to strictly implement vehicular emission 49 Armin Roscncranz, Edward Boenig, and Brinda Dutta, The Godavarman Case: The Indian Supreme Court's Breach of Constitutional Boundaries in Managing India's Forests, 37 ELR (2007). 50 Id. at Id. at SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 279 (2 nd ed. 165

9 regulations framed under the Motor Vehicles Act. 53 This is how the Supreme Court also initially expanded the scope of its powers under Article 21 by interpreting the Right to Life more liberally and asking the Executive to implement environment protection laws strictly. However, any sort of expansion in the scope of the Judiciary s powers, which imposes a restriction on the Executive s powers, is problematic and should be limited to every extent possible. 53 SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA 279 (2 nd ed. 166