Public Interest Litigation and environmental law in India

Introduction
The increasing urbanization and rapid industrialization of contemporary India has
led to a host of grave environmental problems such as air, water, and noise
pollution. (Madsen, 1999). Guha and Gadgil (1993) underline this neglect towards
the environment as a contemporary phenomenon in urban India:
Human history is, as a whole is a patchwork of, prudence and profligacy, of
sustainable and exhaustive resource use. In contemporary India the instances of
profligacy clearly outnumber (and outweigh) those of prudence although such
was not always the case (Guha and Gadgil, 1993:3) The standard
environmental narrative employed by ecologists in South Asia emphasizes the
management of common property resources by local communities to live in
harmony with nature, a paradigm which is undermined by colonial exploitation.
(Madsen, 1999) The neglect towards environmental concerns persists in post-
colonial India manifest in the lack of a coherent environmental policy to address
environmental concerns for several years after independence. The 1970s
witnessed the framing of a coherent policy framework to address environmental
concerns as well as attempts to control environmental pollution through
legislation based on a command and control structure. (Divan and Rosencranz,
2001) The emergence of the Public Interest Litigation in the realm of
environmental law was necessitated by the failure of this command and control
structure to adequately address environmental concerns in India. (Dwivedi, 2008)
This paper traces the growth of environmental jurisprudence in India as a result
of the emergence of Public Interest Litigation to demonstrate that the judiciary is
increasingly faced with the complex political, socio-economic ramifications of
environmental problems in adjudicating on environmental issues. The analysis of
the impact of the PIL on environmental law in India needs to go beyond a
simplistic understanding of the PIL as an instrument of social justice, (Baxi, ) or
as a means of securing a pollution- free environment through a creative
interpretation of the Constitution(Mehta, 1999) to bring out the diverse, often
inconsistent responses of the Court towards environmental concerns that relate
to larger policy issues. The transformation of Indian environmental law as a result
of the emergence of the PIL needs to be examined in the backdrop of the larger
political implications of judgements in response to PILs as well as the reflection of
certain class interests in the application of PILs.

Environmental policy framework

The emergence of a coherent policy framework to address environmental

concerns in India can be traced back to the setting up of an advisory body, the
National Committee on Environmental Planning and Coordination (NCEPC) in
1972 following the 24th UN General Assembly meeting on Human Environment.
(Dwivedi, 2008:120) The 42nd amendment of the Constitution in 1976 led to the
incorporation of environmental concerns through the addition of Article 48 A to the
directive principles of state policy. (Divan and Rosencrantz, 2001: 45). The article
declares:
The state shall endeavour to protect and improve the environment and to
safeguard the forests and the wildlife of the country.
Also, Article 51 A of the Constitution imposed a fundamental duty on every citizen
to protect and improve the natural environment including forests, lakes, rivers
and wildlife, and to have compassion for all living creatures.
Further, Article 253 of the Constitution granted the Central government overriding
powers to legislate on environmental concerns and implement Indias
international obligations. (Divan and Rosencrantz, 2001:47) The insertion of the
article can be perceived as an attempt to introduce global concerns about the
environment within the paradigm of Indian environmental law. This endeavour
towards a coordinated approach towards environmental concerns is further
manifested in the enactment of environmental statutes that employed a system
of licensing and criminal sanctions to preserve natural resources and regulate
their use. (Divan and Rosencrantz, 2001:40). These include the Water
(Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of
Pollution) Act 1981, the Water (Prevention and Control of Pollution) Cess Act
1977, the Forest (Conservation) Act 1980. In an attempt to bring together diverse
environmental concerns under an umbrella Act in the wake of the Bhopal gas
tragedy, the Government of India enacted the Environmental Protection Act
(1986) under Article 253 of the Constitution. (Divan and Rosencranz, 2001:66)
This Act empowered the Centre to delegate its powers or functions to any officer,
state government or other authority. (Divan and Rosencranz, 2001:67) The
provisions of this Act override any other law. (Divan and Rosencranz, 2001:67).

Need for judicial intervention

The inadequacy of these laws in controlling environmental pollution has been
attributed to the essentially reactive nature of legislative approach towards
environmental problems (Dam, 2004), the inefficiency and lack of accountability
of enforcement agencies such as pollution control boards (Dwivedi, 2008: 123),
and inadequate funds and technical expertise to implement a coherent
environmental policy. (Dam, 2004) In fact, the need for judicial intervention and
the consequent emergence of the Public Interest Litigation (PIL) as a method of
addressing environmental concerns needs to be examined in the backdrop of the
failure of environmental statutes to find long term solutions to problems of
environmental pollution in India. (Dwivedi, 2008)
The emergence of the PIL as a grievance redressal mechanism in the domain of
environmental law has led to a creative re-interpretation of Constitutional
provisions in India to link environmental concerns with fundamental rights,
(Razzaque, 2007) the integration of international principles of environmental law
into the Indian legal framework (Sahu, 2008) and an attempt by the Courts to
balance environmental concerns with a model of sustainable economic
development. (Dwivedi, 2008:131) The increasing intervention of the Courts to
resolve problems of environmental pollution in the face of the failure of executive
bodies to carry out their responsibilities has seen both a celebratory attitude
towards judicial activism (Mehta, 1999) as well as a skepticism in more recent
times towards the Court exceeding its brief through attempts at policy formulation
and thereby defying the principles of separation of powers (Dam, 2005). This
paper attempts to explore the social, political ramifications of Supreme Court
decisions with respect to PILs to demonstrate that the creative interpretation of
Constitutional provisions in resolving problems of environmental pollution
necessarily entail a political engagement with questions of social justice and
sustainable economic development. In tracing the influence of PIL on
environmental law in India, this essay attempts to argue that even while legal
decisions are situated within the problematic of restraints on policy formulation
and implementation by the judiciary, it is important to recognize and trace the
political dimensions of judicial activism as legal decisions do not emerge in a
social void. This paper attempts an analysis of case law to demonstrate how a
treatment of the PIL as a means of securing social justice and extending the
provisions of right to life by the Supreme Court (Divan and Rosencranz, 2001)
becomes problematic as the Supreme Court is faced with more complex political
questions that involve reconciling environmental concerns with sustainable
economic development and negotiating with conflicting class interests.
Emergence of PIL: judicial innovation
The emergence of the PIL as an innovative instrument of judicial interpretation
and intervention in the 1980s led to increasing involvement of the judiciary in
addressing environmental concerns in the backdrop of the failure of state
enforcement agencies to adequately address problems of environmental
pollution. (Razzaque, 2007) Razzaque (2007) identifies liberalization of locus
standi for increasing access to justice, procedural flexibility, judicial supervision to
ensure implementation of orders and creative interpretation of the Constitution as
the defining characteristics of Public Interest Litigation in India.
A creative interpretation of the Constitution to expand the scope of the
fundamental right to life under Article 21 had a considerable impact on
environmental jurisprudence in India (Sahu, 2008: 1) In the Dehradun quarrying
case, the Supreme Court expanded the scope of right to life under Article 21 to
include right to a clean environment with minimum disturbance of ecological
balance. [1]
However, even in the early phase of the application of Public Interest Litigation,
the Court had to negotiate with complex political questions that are inextricably
linked to environmental concerns. In M C Mehta v Union of India [2] the Supreme
Court appointed expert committees to recommend adequate safety measures for
the functioning of the Shriram chlorine plant from which harmful oleum gas had
leaked affecting a large number of people. As the Court laid down the conditions
for the operation and reopening of the plant, it noted that a permanent closure of
the plant would have led to a loss of around 4000 jobs. The Court is therefore
negotiating with the larger question of livelihood concerns inextricably linked to
environmental problems in the present case. The appointment of a committee to
monitor the operation and maintenance of the plant is an attempt to implement
the recommendations of the Court. While this can be seen as a suitable
mechanism of grievance redressal, it cannot be a long term method for the
successful implementation of a coherent environmental policy. Dam (2004)
observes that judicial intervention has merely led to administrative agencies
preparing knee-jerk responses to judicial orders.
Environmental pollution and fundamental rights

The M C Mehta v Union of India [3] provides an instance of the formulation of

ahuman rights jurisprudence through a creative linking of environmental
pollution with the discourse of fundamental rights. The decision reflects the
underlying conception of social justice and constitutionalism that informs the
fundamental rights provisions of the Constitution. The Courts approach to the PIL
is informed by a socialist ethos that initially led to the popularization of social
action litigation in the 1980s at a time when other institutions of governance
were facing a legitimation crisis. (Baxi, 1985:107) In fact, Baxi (1985) conceives
of social action litigation as a form of constitutional intervention that provides a
remedy to governmental lawlessness and administrative deviance. In this
instance, the Court relaxes locus standi to allow a public-spirited individual to
approach the Court for the enforcement of the fundamental right of a citizen or a
group of citizens who cannot approach the Court for justice. In formulating a
fundamental right to a clean, unpolluted environment, the Court also articulates a
principle of social equality:
It will thus be seen that this Court has not permitted the corporate device to be
utilized as a barrier ousting the constitutional control of fundamental rights.

Integration of international legal principles

The integration of the international principles of environmental law into the Indian
legal framework is an important consequence of the emergence of Public Interest
Litigation in the realm of environmental law. (Razzaque, 2004) In fact, the
application and re-interpretation of international legal principles in the Indian
context reflect a greater concern with making hazardous industrial enterprises
responsible towards environmental concerns. In M C Mehta v Union of India [4]
the Supreme Court extends the principle of strict liability drawing from the
Rylands v Fletchers[5] case in English law to formulate a principle of absolute
liability whereby an enterprise carrying out a hazardous activity is absolutely
liable to compensate for any harm arising from such activity. The principle of
strict liability in English common law states that a person will be strict liable when
he brings or accumulates on his land something likely to cause harm if it
escapes, and damage arises as a natural consequence of its escape.
(Razzaque, 2004: 210) However, in formulating a principle of absolute liability, the
Court contends that such liability is not subject to any of the exceptions under
the rule in Rylands v Fletcher.
In Vellore Citizenss Welfare Forum vs Union of India [6] declared the
precautionary principle and the polluter pays principle as components of the
environmental law of the country. The precautionary principle implies a duty to
foresee and assess environmental risks and to behave in ways that prevent or
mitigate such risks. (Divan and Rosencranz, 2001:584) Razzaque (2004) notes
that the underlying implication of precautionary principle is to shift the burden of
proof on those who want to undertake a particular activity which results in
potential environmental harm, or forego an activity that could avert such potential
harm. (Razzaque, 2004: 344) In the said judgement, tanneries discharging
untreated sewage into the river were instructed to set up pollution control devices
in the form of effluent treatment plants so as to prevent pollution of the river which
was the main source of water supply for the residents of the area. The Court also
applied the polluter pays principle by imposing fines on tanneries as
compensation for reversing the ecology and as payment to individuals. The
polluter pays principle implies that the polluters should internalize the costs of
their pollution, control it at its source, and pay for its effectsrather than forcing
states of future generations to bear such costs. (Divan and Rosecranz, 2001:
584)

Attempts at policy formulation

However, judicial intervention in the realm of environmental law has also led to
attempts by the Court at policy formulation to create awareness about
environmental issues. It is important to situate the emergence of PIL in the realm
of environmental law within the larger context of the impact of judicial activism on
the separation of powers in a democratic polity. In M C Mehta v Union of India [7]
the Supreme Court, while holding the Municipal corporation of Kanpur
responsible for the pollution of the river Ganga, instructs the Central government
to direct all educational institutions throughout India to teach atleast for one hour
in a week lessons relating to protection and the improvement of natural
environment. This is clearly an instance of the Court attempting to enter into the
domain of policy-making in its treatment of a PIL. Baxi (1985) coins the innovative
term creeping jurisdiction to denote this gradual intrusion of the judiciary into the
domain of the executive. However, Baxis (1985) celebratory attitude towards
such jurisdiction as an apposite strategy for gradualist institutional renovation
does not take into consideration the limitations of such intervention in policy
formulation. Shanmuganathan and L.M. Warren (1997) highlight the problem of
enforcement of policies formulated by the Court:
Although the Indian judiciary has shown itself ready to uphold environmental
rights of citizens and to decide cases on the basis of strict liability, the strong
environmental stance of the courts' decisions has not been matched by effective
enforcement of their decisions. (Shanmuganathan and L.M. Warren, 1997: 402)
This trend of policy formulation may lead to judicial activism lapsing into a form of
adventurism (Dam, 2005) where the Court attempts to formulate policies that it
doesnt have the means to implement.

Environmental litigation and conflicting class interests

However, a critique of this mode of judicial activism with respect to environmental

concerns should not prompt us to think that judicial intervention should be
essentially apolitical in nature. The Supreme Court can position itself with respect
to policy and politics in applying the underlying spirit of the Constitution without
expressly engaging in policy formulation which should remain the preserve of the
executive. In fact, it will be seen that the Court increasingly faces complex
political questions whereby it has to strike a balance between developmental
aspects, human rights and environmental concerns. (Razzaque, 2007) The
inconsistent approach of the Court when facing larger questions of sustainable
development underlines how the PIL can no longer be conceived of merely as an
instrument of securing social justice. The appropriation of the PIL by diverse
interest groups with vested interests leading to the Court aligning itself with
diverse class interests and positions with respect to sustainable economic
development illustrates the need to conceive of legal discourse within a
framework of politics. In M C Mehta v Union of India [8] the Court while ordering
the closure of 292 industries within the Taj Mahal trapezium to prevent the
degradation of the Taj Mahal due to pollution, also ordered the government to
allot land for the relocation of these industries outside the
Taj trapezium. This can be read as an effort to balance environmental needs with
livelihood concerns.
However, the Court has also articulated an elite discourse mirroring middle class
interest in its response to PILs. In M C Mehta v Union of India [9] the Supreme
Court directed the phasing out of grossly polluting old vehicles and issued
orders for all the city buses to switch to the use of Compressed Natural Gas
(CNG). The lack of adequate supply of CNG posed practical difficulties in the
implementation of the order with an adverse impact on the livelihood of
commercial vehicle owners such as bus operators and auto drivers. (Dam, 2004)
The Supreme Court decision while articulating a concern for public health
displayed insensitivity towards social costs of the orders in insisting on hasty
implementation. In the above instances, environmental concerns are inextricably
linked to questions of livelihood. While in one case the Supreme Court tries to
accommodate livelihood concerns, it displays a lack of concern for the same in
the more recent case. However, the approach towards the PIL in both the cases
in political in nature.

PIL, environment and sustainable economic development

The complex interplay of a human rights discourse, environmental concerns and
sustainable economic development considerably influences the manner in which
the Supreme Court responds to the Public Interest Litigation in Narmada Bachao
Andolan v Union of India[10] case. Though the Court has attempted to distance
itself from the political implications of large scale industrial and infrastructure
projects that have a potential of causing damage to the environment, (Sahu,
2008:7) the approach of the Court towards environmental litigation involving such
projects has clearly demonstrated an engagement with the politics of
development. The stance of the Supreme Court with regard to the question of the
fundamental rights of the indigenous tribal population displaced as a result of the
Sardar Sarovar Project in Gujarat highlights how the Supreme Court aligns itself
with a neo-liberal, top-down approach towards development which has an
adverse impact on the environment and does not make indigenous tribals
stakeholders in the process of development. The need to generate hydroelectric
power through dams and thereby minimise environmental pollution from
conventional sources of energy here comes into direct conflict with the
fundamental rights of indigenous population. In fact, the Court in its judgement in
2000 refused to entertain any submissions from the Narmada Bachao Andolan
about the environmental effects of large dams. The judgement observed that a
conditional clearance for the project was given in 1987 and therefore pleas
related to submergence, environment studies and seismicity could not be raised
at this stage. In attempting to harmonise environmental needs with development
efforts, the Court imposes a conception of development on tribals. The Courts
response to the use of the PIL in this instance reflects a considerable departure
from an earlier activist judicial intervention to ensure social justice to the
economically deprived sections of society.
The Narmada Valley Project, consisting of 31 major dams, is spread across
Gujarat, Madhya Pradesh and Maharashtra. (Divan and Rosencranz, 2001: 441)
Of these, the Sardar Sarovar Project (SSP) in Gujarat, and the Narmada (Indira)
Sagar Project in Madhya Pradesh would lead to the displacement of a large
number of indigenous tribals as a result of the submergence of villages. (Divan
and Rosencranz, 2001: 448) In a writ petition filed in 1994, Narmada Bachao
Andolan argued that the work on the Sardar Sarovar dam must be stopped as the
fundamental rights to life and livelihood of the displaced people were being
violated by the project. The petition [11] pointed out that the rehabilitation and
resettlement of projected affected families had not been carried out in accordance
with the provisions of the Narmada Water Disputes Tribunal (NWDT). The Court,
initially granted a stay on the construction of the dam in June 1995. (Divan and
Rosencranz, 2001: 455) However, the Court issued an interim order in February,
1999 allowing the construction of the dam upto a height of 85 metres. [12] In
Narmada Bachao Andolan v Union of India[13], the approach of the Supreme
Court to the question of the displacement and rehabilitation of tribal population
mirrors an elite discourse of development whereby the ruling elite imposes a
vision of development on the indigenous population which disrupts traditional
modes of livelihood. The Court contended that the displacement of the tribals and
other persons would not per se result in violation of their fundamental or other
rights and their rehabilitation to new locations would ensure better living
conditions. The three-judge bench also said that the rehabilitation sites would
have more amenities than the tribal hamlets and the gradual assimilation of the
mainstream of the society would lead to their betterment and progress. Though
the Court here expressly advocates the construction of a dam in national
interest, it articulates a patronizing attitude towards the indigenous population as
it does not take into consideration the social and human costs of displacement
which cannot be completely compensated by rehabilitation. Divan and
Rosencranz (2001) question the position of the Court on the question of
rehabilitation, ..the court restricted itself to considering only issues of relief and
rehabilitation... Can a community ever be rehabilitated? (Divan and Rosencranz,
2001: 456) Also, the Courts contention that the construction of the dam might not
necessarily lead to an ecological disaster does not adequately consider the
social costs of rehabilitation of an entire community. The manner in which the
Court negotiates with questions of human rights and sustainable economic
development in this instance provides a remarkable contrast to the social justice
framework within which earlier decisions on PIL and the environment were based.
This is amply borne out by a concluding remark on the use of PIL in Narmada
Bachao Andolan v Union of India[14] case, Public Interest Litigation was an
innovation essentially to safeguard and protect the human rights of those people
who were unable to protect themselves But the balloon should not be inflated
so much that it bursts. Public Interest Litigation should not be allowed to
degenerate to becoming Publicity Interest Litigation or Private Inquisitiveness
Litigation.
Tehri dam project
The Supreme Courts disregard for the rights of indigenous people displaced by
the Tehri dam project is also an instance of the Court endorsing an elite, neo-
liberal vision of development that privileges development over environmental and
livelihood concerns. The completed dam would submerge several towns and
could enhance the occurrence of earthquakes in the region (Divan and
Rosencranz, 2001:431) The Supreme Court rejected a petition filed by the Tehri
Bandh Virodhi Sangarsh Samiti, a non-governmental organization working in the
field of conservation, after a very limited enquiry. (Divan and Rosencranz,
2001:432)

Conclusion
The instrument of Pubic Interest Litigation in the realm of environmental law had
emerged as a means of securing social justice for the deprived sections of
society through a creative interpretation of the Constitution. (Baxi, 1985) While
the emergence of the PIL leads to the integration and appropriation of
international legal principles in Indian environmental law, (Razzaque, 2004) it
increasingly compels the Supreme Court to negotiate with complex questions of
conflicting class interests, sustainable development and livelihood concerns. The
existence of complex technical and scientific questions in environmental
jurisprudence has led to suggestions for the setting up of green courts for more
effective resolution of environmental disputes. (Sharma, 2008)
The analysis of case law brings to the fore the limitations of a simplistic
understanding of the impact of PIL as a form of social action litigation that leads
to an expansion of the scope of the fundamental rights guaranteed by the
Constitution. In fact, the use of the PIL as well as the response of the Court to
conflicting class interests increasingly mirrors a privileging of elite, middle-class
interests. Also, the stance of the Court towards questions of sustainable
development reflects a degree of skepticism towards the use of the PIL and
attempts towards imposing a neo-liberal vision of development on indigenous
tribal populations that leads to the disruption of traditional modes of living. The
emergence of the PIL, while paving the way for creative environmental
jurisprudence, also brings to the fore the political ramifications of judicial
decisions and the manner in which the Courts are increasingly compelled to
engage with the politics of class and development.

[1] Dehradun quarrying case AIR 1988 SC 2187

[2] M C Mehta v Union of India AIR 1987 SC 965
[3] M C Mehta v Union of India AIR 1987 SC 1086
[4] M C Mehta v Union of India AIR 1987 SC 1086
[5] Rylans v Fletcher (find citation)
[6] Vellore Citizens Forum v Union of India AIR 1996 SC 2715
[7] M C Mehta v Union of India AIR 1988 SC 1115
[8] M C Mehta v Union of India AIR 1997 SC 734
[9] M C Mehta v Union of India AIR 2002 SC 1696
[10] Narmada Bachao Andolan v Union of India AIR 1999 SC 3345
[11] Narmada Bachao Andolan v Union of India Writ petition (Civil) No. 319 of
19994
[12] Narmada Bachao Andolan v Union of India AIR 1999 SC 3345
[13] Narmada Bachao Andolan v Union of India AIR 2000 10 SCC 664
[14] Narmada Bachao Andolan v Union of India AIR 2000 10 SCC 664