INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS VOLUME 1 ISSUE 3

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1 A CRITICAL ANALYSIS OF THE ROLE OF JUDICIARY IN ENVIRONMENTAL ADJUDICATION: RECENT JUDICIAL TRENDS *ABHISHEK.T INTRODUCTION Today, the conservation, protection and environment of human environment are major issues all over the world. Human environment consists of both physical environment and biological environment. Physical environment covers land, water and air. Biological environment includes plants, animals and other organisms. Both physical and biological environment are inter-dependent. Industrialisation, urbanisation, explosion of population, over-exploitation of resources, disruption of natural ecological balances, destruction of a multitude of animal and plant species for economic reasons are the factors which have contributed to environmental deterioration. 1 One country s degradation of environment degrades the global environment for all the countries 2. The problem of environmental pollution has acquired international dimensions and India is no exception to it. When Benjamin Franklin declared that: No nation was ever ruined by trade, he could not have been expected to foresee the catastrophic consequences of industrial production processes on the aggregate of nations. The politics and geo-politics of the craftsmen of our future, rather than the intrinsic danger of science itself, govern where proscription may feasibly occur. Whether by reason of an unprecedented orchestrated global movement or by some random collision of independently occurring incidents, the law of environmental protection has emerged as a sophisticated and developed machine pushing hard against the conflagration of pollutive processes that science has created. CONSTITUTIONAL AND LEGISLATIVE PRINCIPLES Stockholm Declaration of 1972 was perhaps the first major attempt to conserve and protect the human environment at the international level. As a consequence of this Declaration, the States were required to adopt legislative measures to protect and improve the environment. Accordingly, Indian Parliament inserted two Articles, i.e.,, 48A and 51A in the Constitution 1 Sachidanand Pandey v. State of West Bengal',AIR 1987 SC Armin Rosencranz, Shyam Divan and Martha L.Noble, Environmental Law and Policy in India (1991), p. 25 1

2 of India in ,Article 48A of the Constitution rightly directs that the State shall endeavour to protect and improve the environment and safeguard forests and wildlife of the country. Similarly, clause (g) of Article 51A imposes a duty on every citizen of India, to protect and improve the natural environment including forests, lakes, river, and wildlife and to have compassion for living creatures. The cumulative effect of Articles 48A and 51A (g) seems to be that the 'State' as well as the 'citizens' both are now under constitutional obligation to conserve, perceive, protect and improve the environment. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way 4. The phrase protect and improve appearing in both the Articles 48A and 51A (g) seems to contemplate an affirmative government action to improve the quality of environment and not just to preserve the environment in its degraded form. Apart from the constitutional mandate to protect and improve the environment, there are a plenty of legislations on the subject but more relevant enactments for our purpose are the Water (Prevention and Control of Pollution) Act, 1974; the Water (Prevention and Control of Pollution) Cess Act, 1977; the Air (Prevention and Control of Pollution) Act, 1981; the Environment (Protection) Act, 1986; Public Liability Insurance Act, 1991; the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997; the Wildlife (Protection) Act, 1972; the Forest (Conservation) Act, JUDGEMENT OF THE APEX COURT The conspicuous absence of right to environment, even after the amendment may be noted. But, the Bhopal gas tragedy case reminded the court that an unenforceable directive principle and inactive citizenry could lead to governmental inaction and serious damage to the public. This called for relaxation of norms for entertaining disputes relating to environment, which would in turn encourage participation by concerned individuals and keep a check on unrestrained governmental power. As a first step, right to a healthy environment as a right recognized in Subash kumar v. State of Bihar. 5 It was then included within the ambit of the ever-growing right to life 6.The scope of right to environment within the right to life was 3 Constitution (Forty-second Amendment) Act, State of Tamil Nadu v. Hind Store, AIR 1981 SC 711; see also Rural Litigation and Entitle Ji: at Kendra v. State of Uttar Pradesh, AIR 1987 SC Subhash Kumar v. State of Bihar, AIR 1991 SC Virender Gaur & Ors. v. State of Haryana & Ors., (1995) 2 SCC

3 then developed to include right to clean water 7, clean air 8 etc. The recognition of these rights coincided with the development of public interest litigation and relaxation of locus standi principle, which led to an increase in the volume of litigation 9. Courts became more confident in dealing with and governing environmental disputes. In most cases, governmental apathy was noted as the major cause for disputes. The activist court began to actively involve itself in the environmental governance of the country on the basis of its interpretation of the Constitution and lack of directional policy. The shift from duty to rights created by the judiciary, influenced future judicial thought in a tremendous way. Though, in many cases, environmental disputes were resolved by reference to common law remedies, like actionable nuisance 10, negligence and strict liability 11, public interest litigation prompted the apex court to assume a role it had never even thought it could possess. Today, the Indian environmental decision-making has evolved to become an occupied field 12 of Indian judiciary. In spite of confessions of its inability to decide on complex scientific matters 13 and constant requests for setting up a specialised body 14 (whether courts or tribunals), it has forayed into various aspects of environment management. Environmental laws were mandated to be strictly enforced 15. It has affirmed that the principles of polluter pays principle 16, sustainable development, public trust doctrine and intergenerational equity are law of the land, though these principles have not been incorporated into any legislative framework. Whether incorporation of ungratified international obligations in binding judicial decisions is advisable is a different aspect. But, the point to note here is that, our courts used various strategies to evolve a mechanism within the existing court structure to deal with such issues. 7 Mrs. Susheta v. State of Tamil Nadu & Ors., (2006) 6 SCC Murli Deora v. Union of India, (2001) 8 SCC Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan and Bangladesh (2004). 10 Vellore Citizen s Welfare Forum v. Union of India, (1996) 5 SCC Mukesh Textile Mills Pvt Ltd v. H.R. Subrahmanya Sastri, AIR 1987 Kant Usually referred to in the context of constitutional interpretation. 13 In M.C Mehta v. Union of India, (1986) 2 SCC 176, popularly known as oleum gas leak case. The case dealt with the aspect of permission to continue for a factory, from which there was a fatal leakage of hazardous substances. Experts suggested relocation as the only measure to completely eliminate the risk. 14 Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212; A.P. Pollution Control Board v. M. V. Nayudu, (1999) 2 SCC Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212; 16 Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212; 3

4 In Taj Mahal's case 17 the Supreme Court issued directions that coal and coke based industries in Taj Trapezium (TTZ) which were damaging Taj should either change over to natural gas or to be relocated outside TTZ. Again the Supreme Court directed to protect the plants planted around Taj by the Forest Department as under: 18 The Divisional Forest Officer, Agra is directed to take immediate steps for seeing that water is supplied to the plants... The Union Government is directed to release the funds immediately without waiting for receipt of the proposal from the U.P. Government on the basis of the copy of the report. Funding may be subsequently settled with the U.P. Government, but in any set of circumstances for want of funds the officer is directed to see that plants do not wither away. In Almitra H.Patel v. Union of India 19, the Supreme Court reiterated the observations made in Wadehra's case 20 Historic city of Delhi, the Capital of India, is one of the most polluted cities in the world. The authorities, responsible for pollution control and environment protection have not been able to provide clean and healthy environment. to the residents of Delhi. The ambient air is so much polluted that it is difficult to breathe. More and more Delhites are suffering from respiratory diseases and throat infections. River Yamuna- the main source of drinking water supply- is the free dumping place for untreated sewerage and industrial waste. Apart from air and water pollution, the city is virtually an open dustbin. Garbage strewn all over Delhi is a common sight. The Court directed the authorities to take immediate necessary steps to control pollution and protect the environment. In the case of Oleum gas leak 21, a major leakage of Oileum Gas affected a large number of persons, both amongst the workmen and public. The Supreme Court held that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to any one on account of an accident in the operation of such hazardous and inherently dangerous activity resulting in the escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such a liability is not subject to any exception. 'Sustainable development' means development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. The Supreme 17 M.C.Mehta v. Union of India, AIR 1997 SC 734; see also M.C.Mehta v. Union of India, AIR 1999 S.C M.C.Mehta v. Union of India, (2001), 9 SCC AIR 2000 SC Dr. B.L Wadehra v. Union of India, AIR 1996 SC M.C. Mehta v. Union of India, AIR 1987 SC

5 Court of India in Vellore Citizens Welfare Forum v. Union of India 22,elaborately discussed the concept of 'sustainable development' which has been accepted as part of the law of the land. The 'precautionary principle' and the 'polluter pays principle are essential features of 'sustainable development'. The 'precautionary principle' makes it mandatory for the State Government to anticipate prevent and attack the causes of environment degradation. 23 The supreme court in M.C.Mehta v. Union of India observed that We have no hesitation holding that in order to protect the two lakes (Badhkal and Suraj Kund ) from environmental degradation, it is necessary to limit the construction activity in the close vicinity of the lakes. The Polluter pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause pollution. The polluter pays principle has been held to be a sound principle and as interpreted by the Supreme court of India 24, it means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environment degradation. Remediation of the damaged environment is part of the process of sustainable development and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. To conclude, Indian judiciary s efforts to revitalize environmental discourse through creative decisions are commendable, but it also reminds us of the urgent need to rethink our strategies in dealing with these problems. The problem is that even when judges review quite good evidence, there are numerous opportunities for errors 25. Moreover, increased recognition of the importance of international environmental law institutional recognition at international level has not had a corresponding impact on the modus operandi at the municipal level. 26 An essentially universal concern has thus been politically delimited there is no platform for a think global, act local approach. Thus, our problems are a combination of institutional 22 Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC M.C. Mehta v. Union of India, (1997)1 CAMP L.J.199(SC) 24 Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446; see also Vellore-Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715; M.C. Mehta v. Union of India (1997) i Camp L.J. 199(SC) 25 Carl F. Cranor, Toxic Torts Science, Law and the Possibility of Justice 205 (2006). 26 Most discussions are marred by political undertones. For example, climate change debate. 5

6 incapacities existing in the country and a lack of conceptual clarity at the decision making level owing to inadequacy of directional policy. 27 NATIONAL ENVIRONMENT POLICY AND NATIONAL GREEN TRIBUNAL India recently established its first comprehensive environmental court : the National Green Tribunal ( NGT ). The earlier courts/ tribunals were either non functional or with every limited mandate. India s environmental court is a result of the need repeatedly expressed by the Constitutional courts on the need to have specialized Judicial bodies to deal with compl ex environmental questions. The trigger for setting up Environmental Courts was through the Supreme Court of India which in its judgments, highlighted the difficulties faced by Judges in adjudicating on environment. In M.C. Mehta vs. Union of India 28, 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. The other judgment was Indian Council for Enviro- Legal Action vs. Union of India 29, in which 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. It was however, in in A.P. Pollution Control Board vs. M.V. Nayudu 30, the Court dealt at length on the need for establishing Environmental Courts which would have the benefit of expert advice from environmental scientists/technically qualified persons, In the subsequentfollowup judgment in A.P. Pollution Control Board vs. M.V. Nayudu 31, the Supreme Court, referred to the serious differences in the constitution of appellate authorities under plenary as well as delegated legislation (the reference here is to the appellate authorities constituted under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981), and pointed out that except in one State where the appellate authority was manned by a retired High Court Judge, in other States they were manned only by bureaucrats. These appellate authorities were not having either judicial or environment backup on the Bench. The Supreme Court opined that the Law Commission could therefore 27 The National Environment Policy, 2006, it is argued, was prepared in haste and did not bring in effect the principles enumerated in the documents enumerating 28 M.C. Mehta v. Union of India, AIR 1987 SC Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC A.P. Pollution Control Board vs. M.V. Nayudu, 1999(2) SCC A.P. Pollution Control Board vs. M.V. Nayudu, 2001(2) SCC 62 6

7 examine the disparities in the constitution of these quasi- judicial bodies and suggest a new scheme so that there could be uniformity in the structure of the quasi judicial bodies which supervise the orders passed by administrative or public authorities, including orders of the Government. ADJUDICATION OF ENVIRONMENTAL TOXIC TORT One can sue on the basis of the problem caused due to toxicity level in the environment, but problems are far larger in number then the solutions. The problem lies in the accretion of proof. A substance s toxicity and source may be uncertain or unknown. In such type of cases the effect of the substance may be causing an injury over a period of days, months and even in some cases may be up to a year that is the reason why it is so difficult to trace their source 32. Many a time the victims don t recognise their injuries to be tortious in nature and never receive any compensation. The paradigmatic traditional tort case involves a single identifiable plaintiff, a single identifiable defendant, and a readily determinable cause of the tortious event 33. These cases are easy to handle, but our judicial system is not that equipped to deal with mass tort cases that occur. Our judicial system is able to handle classic strict liability claims, such as a dynamite explosion, a sudden flood from a reservoir, or even a catastrophic Bhopal type accident. 34 But thankfully our judicial system has evolved the rule of absolute liability 35 to deal with Bhopal type accident. In India, affected communities have recently filed a number of cases [MC Mehta v Union of India, The Bhopal Gas tragedy case, Vellore Citizens Welfare Forum v. Union of India & Subash v State of Bihar], which have sought to use national law to tackle cases of personal injury or environmental damage claims against MNCs. However environmental toxic tort cases hold many obstacles for plaintiffs. Cases are generally slow and expensive. Environmental Toxic tort cases often have very high standards for providing certain legal elements such as causation and liability, which make it difficult for plaintiffs to meet 32 newsletter/legislation/ch20dec02a.htm (last visited on December 23,2013 at 15.00) 33 Cf. Glen O. Robinson, Probabilistic Causation and Compensation for Tortious Risk, 14 J. LEGAL STUD. 779, 780 (1985) 34 See Peter Huber, Environmental Hazards and Liability Law, in LIABILITY: PERSPECTIVES AND POLICY 128, Evolved by the Supreme Court in the case of M.C. Mehta V. Union Of India. This rule doesn t provide with any of the defences that were available in the rule of Strict liability. 7

8 evidentiary burdens. 36 While tort cases are reasonably good at assessing personal injury and property damage, tort cases are clumsy and inflexible in assessing, evaluating and quantifying environmental goods and processes outside the market. Often, questions arise about the appropriate forum for the case and the applicable law. The application of the doctrine of forum non conveniens, like in the Bhopal gas tragedy case, can often determine whether a case will succeed or fail. Even if cases are allowed, awards can be small if a court decides it is proper to use the more limited law of the state in which the tort occurred. Courts may also choose to apply the doctrine of limited liability, which allows corporations to hide behind the corporate veil, effectively prohibiting the enforcement of any damages awarded. MNCs are also problematic for torts because they defy assumptions about the mapping of legal persons to territorial jurisdiction, the basis of traditional tort law. In recent years, there has been a shift of hazardous or polluting industries, so-called dirty industries, to low-income nations, such as India (McCallion and Sharma 2001). This shift is prompted by what Lawrence Summers while at the World Bans, called the impeccable economic logic of dumping a load of pollution on the lowest wage country. Potentially hazardous industries and companies from the developed world will move to host states in the developing world that offer the lowest level of environmental regulation and compliance costs, and the least liability for international investment. 37 States, particularly developing ones, are unable to adequately regulate hazardous industries that move into their nations for fear of driving investment elsewhere. Indeed even the deaths of thousands did not prompt any steps by the Indian government that the multinationals that brought in millions by way of profit actually adhered to the same safety standards abroad as they did at home 38. Proof of causation has been the biggest stumbling block to recovery in environmental toxic torts cases. Both negligence and strict liability require the plaintiff to prove that the substance in question caused the plaintiff's disease or injury. That inquiry often involves a number of sub issues, including whether: (1) the toxic substance is capable of causing the harm complained of; (2) the plaintiff was exposed to the toxic substance in quantity sufficient to cause disease, and (3) the toxic substance exposure caused the particular plaintiff's injury or disease. Proof of any of these propositions is likely to require expert testimony on scientific 36 newsletter/legislation/ch20dec02a.htm ( visited last December 22,2013 at 12:00) 37 (Visited last on December 21, 2013 at 10:00) 38 (visited last on December 22,2013 at 21:00) 8

9 evidence. Several characteristics of the typical environmental toxic tort case diminish the prospects of recovery by deserving plaintiffs. The long latency period between exposure and disease manifestation decreases the likelihood that the plaintiff will even suspect the causal connection, as well as decreasing the likelihood that the plaintiff will be able to marshal the facts on issues such as exposure necessary to prove his case 39. Typically there is no clinical evidence capable of linking the substance to the disease. The situation is further complicated by the fact that exposure to the toxic substance, even at relatively high levels, may not result in disease in most persons. Moreover, many of the diseases caused by toxic chemicals, particularly cancers and birth defects, occur in the general population. The absence of any unequivocal linkage between the disease and the toxin, together with the absence of clinical tests that could establish a linkage, means that proof of causation, if it can be made out at all, must be made indirectly, from comparisons between exposed and unexposed groups, or from studies where surrogates such as animals or single-celled organisms are used. Further, there may be other known risk factors for the claimed injury, whose role in the disease process must be considered. Moreover in environmental toxic torts cases the source is mostly unknown or uncertain about. The reason for the same can be that, process of the chemical affecting an individual or a group in environmental toxic tort cases is very indirect. They are indirect in the sense that the diseases caused by the chemical come from the polluted source, but from where did the pollutant came from is difficult to ascertain for. Toxic Tort is a new and emerging tort. There is no particular case in India to refer to as the benchmark case. Due to a real high number of environmental laws, campaigns and protests, easy access to justice in a toxic tort cases is becoming more and more of a reality. People are becoming more aware of environmental concerns and the state is eager to punish industries that end up polluting the environment. The MoEF has become more cautious in providing environmental clearances to industries. Environmental toxic tort is still in a nascent state in our country. It is just a matter of time that it will take to develop a dedicated law for this particular field, till then we have to find our way around or thought other laws to fight out for out right stable/pdfplus/ pdf (visited last on December 22,2013 at 22:00) 9

10 CONCLUSION To sum-up, it can be argued that the issue of environment has remained misplaced priority in India and even it was not the priority for couple of years after independence. Of course, the priority of the newly liberated country was the development and it was prepared to make certain sacrifices including environment. The alarming problem of environmental pollution was taken into cognizance much later. Although, Indian state started responding to problem of environment by inserting the provisions related to protection of environment in the chapter dealing with the Directive Principles of State Policy and as one of Fundamental Duties in the Article 51(A) of the Indian Constitution by the 42nd amendment, which was later followed by the enactment of statutory laws related to protection of environment, but the state response has remained neither adequate nor appropriate. The state approach has remained more cosmetic which led to the articulation of judicial activism in the domain of environment. Public Interest Litigation has remained main vehicle through which the higher judiciary asserted in the arena of environment and thereby developed the new from of jurisprudence, which is known as environmental jurisprudence. The Supreme Court and different High Courts of states in India, delivered path breaking verdicts in the cases related with environment and raised the right to clean and healthy environment to the level of right to life and that of human rights While reconciling development with ecology, the higher judiciary argued that the development is possible while taking care of environment in India. However, the contribution of Judicial Activism has remained enormous in the subject under discussion but most of the time even the judicial activism has remained the judge driven phenomenon. In the last few years, the environmental jurisprudence has been characterized by a new from of litigation wherein the Precautionary Principle is applied but the success rate in such kind of cases is very low. As the problem of environment is huge and multifaceted, therefore the urgency of the situation requires to move beyond judicial activism because it is not sufficient to ensure the protection of the environment in the given crisis situation. Indian state has the mandate and obligation to protect environment, but its failure to perform its duty in the past has proved detrimental to the Both state activism and public activism are closely related with each other because the former has the potential to sensitize the public regarding the environmental pollution, whereas the later has potential to command the state to do needful in this regard. 10