ENVIRONMENTAL JUSTICE THROUGH JUDICIAL PROCESS

RATLAM TO RAMAKRISHNAN

We, the People of India, a sublime collective, is the ideological quintessence of our Constitution which is the law fundamental in the governance of the nation. Secular, socialist, democratic justice is the manifestation of this paradigm where all people matter equally and have equal title to the material resources of the country. This basic structure and all that flows jurisprudentially from it is implicit in the historic tryst with destiny Indians made as India awoke to Freedom. The right to life, in its myriad dimensions, the right to justice in its trinity of facets, social, economic and political, the right to human freedoms spelt out in the Fundamental Rights and Duties and Directive Principles of State Policy emerge from the nidus and nisus of the Grand Preamble to the Constitution. The people are declared supreme and their ethos and eidos as articulated in Parts III, IV and IVA, are the driving force of the constitutional process. The survival of Life needs an environment which sustains it and so it is that human rights make sense only where human life can flourish and this condition mandates preservation of propitious environment. Our Founding Deed therefore lays great stress on environmental and ecological justice sans which flamboyant phrases about fundamental freedoms are glittering gibberish. If life is dear, environment too is dear and environmental justice is thus a foremost constitutional value.

Realising this supreme significance of the battle against environmental pollution the Stockholm Conference, on a global basis, passed resolutions under U.N. auspices alerting the world for dynamic eco-enviro legislations. The Declaration of 1972 in Principle One states:

Dignity of life depends on the quality of environment, which in turn depends on the commitment of man to protect the nature.

The Stockholm Declaration is the spring board to the Magna Carta of Eco-Environmental Jurisprudence. The first report of the Club of Rome as the LIMITS OF GROWTH (1972) invited attention to the potential predicament of mankind if environmental conservation was neglected. The reports of the Group of Rome were collectively called the Predicament of Mankind. International awareness of the world problematique has grown, thanks to the Club of Rome. Environmental pollution was to be arrested by appropriate legislation and a series of laws were enacted. The third report of the Club of Rome was entitled “The R.I.O” reshaping the international order (1977). The Fourth report entitled Goal for Mankind pleads for protection of the planet. Thus we come to the Historic RIO Declaration, principle seventeen of which states “environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to decision of the competent national authority.

Principles 13 of the RIO gave support for special courts and also to ‘the Polluter Pays’ principle. Indeed, the RIO declaration is a revolutionary document laying down global responsibility for conservation.

On June 21, 1992 Earth Summit at Rio was attended by representatives of one hundred and seventy eight Governments—alas, sans the U.S. The Summit focussed world attention on the debatable claim and counter claim, as to the extent of responsibility, and who is more responsible for environmental crises, developed or developing Nations.

Principle 7 of the Rio Declaration states:

“States shall co-operate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem.

Stockholm, Rio and after, constitute cosmic jurisprudence on environmental conservation. The rule of law, in India which is a signatory to Stockholm and Rio, must be read in this background, and interpreted by the Courts to advance the cause of Ecology and Environment.

The Indian Constitution has given tongue to these principles through Article 21 (protection of life and personal liberty), Article 48 (A) (protection and improvement of environment and safeguarding of forests and wild life). Article 51(A) (g) (fundamental duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures) is also a mandatory obligation.

Legislative activism has concretised environmental protection jurisprudence. For instance, the following enactments are relevant:

1. The Air (Prevention and Control of Pollution

Act 1981.

2. The Environment (Protection) Act 1986.

3. The Forest (Conservation) Act 1980.

4. The Natural Environmental Tribunal Act 1975.

5. The Natural Environmental Appellate Authority Act 1997.

6. The Public Liability Insurance Act 1991.

7. Water (Prevention and Control of Pollution) Act 1974.

8. The Water (Prevention and Control of Pollution) Act 1979.

Central Rules to implement the Acts have also been made. Central schemes and Circulars have also been issued. All these together constitute the constellation which we may call the Environmental corpus-juris of India. Numerous central notifications and regulations have also been promulgated and authorities created.

“Sustainable Development” & “Precautionary principle” The traditional concept that development and ecology are opposed to each other is no longer acceptable. “Sustainable Development” is the answer. “Sustainable Development” has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting Eco-systems. “Sustainable Development” as defined by the Brundtland Report means “Development that meets the needs of the present without compromising the ability of the future generations to meet their own need “Sustainable Development” as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient features have yet to be finalised by the International Law Jurists. Some of the salient principles of “Sustainable Development”, as culled-out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle; Polluter Pays principle. Obligation to assist and cooperate, Eradication of Poverty and Financial assistance to the developing countries. “The Precautionary Principle” and “The Polluter Pays” principles are essential features of “Sustainable Development”. (Vellore Citizens Welfare Forum vs. Union o India and others. JT 1996(7) SC 375 = AIR 1996 SC 2715=(1996) 5 SCC 281. Kuldip Singh, Faizan Uddin & K. Venkitaswami(JJJ)

Precautionary principle – Reversal of burden of proof – While the inadequacies of science have led to the “precautionary principle”, the said “precautionary principle” in turn has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, is placed on those who want to change the status quo. The party attempting to preserve the status quo by maintaining a less-polluted State should not carry the burden of proof and the party who wants to alter it, must bear this burden. Principles explained. (A.P.Pollution Control Board vs. Prof. M.V. Nayudu. AIR 1999 SC 812 = 1999 (I) JT 162 = 1999 (1) SCALE 140 = 1999 AIRSCW 434. S.B. Majumdar & M.Jagannadha Rao (JJ).

The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Three types of restrictions on governmental authority are often thought to be imposed by the public trust, first, the property subject to the trust must not only be used for a public purpose, but it must be held available for se by the general public, second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses.” Of the statutory grant of the authority. (M.C.Mehta Vs. Kamal Nath and others. (1997)1 SCC 388 = 1996 (9) SCALE 141 =JT 1996(II) SC 467 Kuldip Singh & S.Sagir Ahmad)

In sum, we have a comprehensive idea of Environmental Law which Judges and Lawyers will do well to implement as integral to the Rule of Law and Life in India.

In this context it is useful to recapitulate an early landmark case, popularly known as Ratlam Municipality case, which may be regarded as locus classicus.

The facts of the case are brief. A public nuisance was directed to be abated by the Executive Magistrate under 133 of the Code of Criminal Procedure. The positive direction was to construct drains to prevent the discharge of malodorous fluids into the public stream, to provide sanitary facilities and public conveniences. The Municipal Council resisted this direction, but the Supreme Court overruled the objection.

(1) Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer section, is a challenge to the social justice component of the rule of law.

(2) The public power of the Magistrate under the Code of Criminal Procedure 1973 is a public duty to the members of the public who are victims of the nuisance and so he shall exercise, it, when the jurisdictional facts are present.

(3) Wherever there is a public nuisance, the presence of section 133 G.P.C. must be felt and any contrary opinion is contrary to the law.

(4) A responsible municipal council constituted for the precise purpose of preserving public health and providing better facilities cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are a first charge on local self-governing bodies. Similarly, providing drainage systems, not pompous and attractive schemes, but in working condition and sufficient to meet the needs of the people; cannot be evaded if the Municipality is to justify its existence.

(5) The State will realise that Article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties. The municipality, also will slim its budget on low priority items and elitist projects to use the savings on sanitation and public health. The officers in charge and even the elected representatives will have to face the penalty of the law if what the Constitution and follow-up legislation direct them to do are defied or denied wrongfully. The wages of violation is punishment, corporate and personal.

The Supreme Court held that the Magistrate’s judicial power shall, passing through the procedural barrel, fire upon the obstruction or nuisance, triggered by the existence of the nuisance. “The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile; Therefore the court, armed with the provision of the two codes and justified by the obligation under S.123 of the Act, must adventure into positive directions as it has done in the present case. Section 133 Cr.Pr.Code authorises the prescription of a time limit for carrying out the order. The Court further observed:

This is a Public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding. Failure to comply with the direction will be visited with a punishment contemplated by S.188 I.P.C. Therefore the Municipal Commissioner or other executive authority bound by the order under S.133 Cr. P.C shall obey the directions because dis-obedience, if it causes obstruction or annoyance or injury to any persons, lawfully pursuing their employment, shall be punished with simple imprisonment or as prescribed in the section.

Environmental protection and legal defense have a decentralized dimension gaining more importance since pollution itself is becoming ubiquitous and local. Sand mining is a ravage to our rivers and inflicts other damage to local people. Municipal and hospital waste management is being neglected inflicting serious nuisance affecting life. In these matters distance and delay can be best avoided by jurisdictional activism at the trial court level. This dimension of Ratlam, sanctifying decentralization, must be appreciated if social justice is to enjoy people’s entitlement.

Ratlam Municipality case emphasises the substantive law and, equally importantly, the procedural law bearing upon environmental and ecological conservation and the defence against pollution. The Constitutional provisions have to be read broadly, with the right to life and dignity as the cornerstone of Constitutional guarantee.

Access to Justice, sans which rights become a rope of sand, is also stressed in Ratlam. Processual law is the instrument of substantive provisions. Equal Justice is basic to the rule of law and the Court, instead of being elitist, must remember the egalitarian ethos of Article 14 and inspiration of Article 39. It is for the Court, high or low, Civil, Criminal or Constitutional, to ensure under Article 39(A) that the operation of the legal system functionally offers equal opportunity to the little man of India, as much as to the purse-proud corporate power.

Pollution today has become pervasive and human life is in peril.

One reads everyday about the degradation of the environment, rape of the earth, traumatic subversion of the eco-system, poisoning of air, water and food and technological plunder of the resources of Nature. I may perhaps prove this industrial robbery with murderous impact on mankind by citing from a Soviet publication of old:

The pollution of air, water and soil, and consequently the contamination of food with chemicals in the economically advanced countries has led scientists to believe that the bacteriological era has come to an end and the new, chemical era has set in.

* * *

The pollution of soil and water reservoirs is also increasing. This creates a situation where no more trees, shrubs or even grass grow in large cities. The damage, and the consequent loss, inflicted upon farming and the timber and fishing industries are truly tremendous.

That is why environmental hygiene is a very urgent problem. Its solution would save nature, while failure could mean the destruction of the natural environment. Measures to protect the environment have assumed particularly massive dimensions during the past decades, which can be explained by the growing rate of nature consumption due to the rapid progress of technology.

Dealing with air pollution, Yuri Sinyakov says:

Let’s take, as an example, the effect industrial and household aerosols have on the behaviour of our atmosphere. It has been established that in humid air the aerosols stimulate the formation of fogs which, in turn, intensify the concentration and, consequently, the toxicity of additives in the atmosphere. Formed under specific conditions, smog is very dangerous, indeed. The city over which it forms becomes shrouded in a cloud of its own waste matter.

* * *

….the scientific and technological revolution makes it impossible to completely eliminate the dangerous effect of man’s economic activity on the atmosphere. (Environmental Pollution & Law P-4)

Our automobile escalate pollution and even in Delhi the Supreme Court is using its jurisdiction to control the enormity of the lethal gases emanating from the vehicular traffic.

The power of eco-imperialism, what with lobbies of oil and coal industries, automobile companies and electric utilities, backed by the Governments of developed countries, form such a powerful force that the struggle to defeat them on the crucial issue of reducing the emission of greenhouse gases is proving tough, but it has made some headway.

PUBLIC CONSCIOUSNESS about environmental protection and preservation has contributed immensely in furtherance of administration of environmental justice in India since late nineties. Indian courts are heeding the plea of environmentalist and conservationist bodies to protect and preserve the environment through judicial intervention. At times, the courts have failed to balance the scale of environmental justice and development.

There is an impression that pollution control is more the concern of the superior courts with their wide jurisdiction under Article 226 (High Court) and 136, 142 and 32 (Supreme Court). True, vast are the powers of the Higher Courts, but it is wrong to imagine that Public Interest Litigation is more a matter of the writ jurisdiction than a process available to the numerous pan-Indian subordinate judiciary : All power is a public Trust and judicial power is equally so. Where jurisdiction exists and cause of action is set out, the subordinate judiciary can and must rely upon the processual jurisprudence of Public Interest Litigation and exercise its power to grant relief to the aggrieved. There is a democratic dimension to judicial jurisdiction and the trial court or first Appellate Court can take cognizance of grievances of the public except where tribunals have been set up and court jurisdiction barred. The new meaning given to “person aggrieved”, “legal standing” and “cause of action” expounded in a series of Supreme Court Rulings widen the jurisprudence vis a vis the Subordinate Court as well.

While the extraordinary jurisdiction vested in the higher courts makes Judge Power vast, remedial resources for the citizen, vis a vis the subordinate courts, have special advantages, given judicial dynamism. The country is large, distances and expenses considerable and logistics beyond the poor man’s means. Docket explosion causes delays making higher courts disadvantageous. On the contrary, the superstition that writs from far-off capitals, wait and waste unlimited resources, must be eliminated. I stress here the potential power of local, though subordinate courts. Public Interest Litigation, social action and pro bono process can be entertained by the munsif, district judge and magistrate, once it dawns on them and the local bar that wide is the jurisdiction of ‘lower’ courts too. The Ratlam case began with an effective order under sec. 133 Criminal procedure Code by a magistrate. Judge Sirica in America passed original orders, upheld by the U.S. Supreme Court, resulting in the resignation of Richard Nixon, the President of the United States. My point is that higher courts have writ power but the trial courts have original jurisdiction nearly as large and more easily accessible. PIL is no manthra for higher courts justices, but is equally available from the judicial personnel at lesser levels. Indeed it is cheaper, easier to reach, more aware of local conditions and, in environmental matters, more effective and prompt. My emphasis is on environmental litigation being effectively handled by the subordinate judiciary. It is obdurate juridical obscurantism to regard environmental public interest litigation as a matter only for the higher courts. The conceptual expansion of jurisdiction, through representative litigation, Good Samaritan Initiative and socially sensitive individuals and Institutions making forensic experiments, applies as much to subordinate as to higher courts. The expenses are lesser, the trial judge appreciates better (being local), the process is served sooner and enforcement on the spot is prompter. A local Commission to ascertain environmental pollution is possible. It is more prompt to make a local inspection and executed at the Trial Court level. Witnesses can be summoned and discovery procedures pushed through quicker in the local court. Questions of fact, can be investigated by local inspection and final adjudication made, if the new scheme of Fast Track Court and one year limit becomes a practical success. Matters of environment are essentially local. The injury caused is locally ascertained, the evidence is gathered fast and fresh. In short, environmental litigation, particularly public interest process, find feasible disposal in the nearest court, be the Court high or low. Remember, the bar must expand its vision and perception even at the District level so that parties need not travel far and delay long for getting High Court writs. Long distance justice, high priced justice, docket-delayed justice are the handicaps of the Higher Courts. I plead to the Bench and the Bar to make the subordinate court a potent Instrument of instant environmental justice—a consummation devoutly to be wished.

The expanding horizon of judge power must meet the pollutive challenge of corporate might which inflicts on society, micro and macro damage. The Executive and the Legislature must set up effective institutions and evolve action plans to counter industrial poisonous operation. Unfortunately, pollution control boards are ineffective and the Executive, from Ministers to minions, are not beyond purchase. The management of power in a complex society is a tough task. Corporate terrorism is a new power with corrupt tools to tackle eco-enviro restraints. Our legal system, with a wealth of legislation has failed to make corporations accountable or transparent. Corporate crime such as chemical pollution, outwits the law. Why? It is easy to answer—Corporate power has sway over executive power. If environmental justice is to be a reality, regulatory mechanisms must call to order corporate misbehaviour. The Bhopal disaster caused by Union Carbide has proved the impotency of the three instrumentalities, the executive, the legislature and the judiciary. Visible and invisible technological violence, operated by North Inc. and India Inc can be checked by the court rising to new heights of activism. The fail-safe judicial process is the last hope of the common people against pollutive giants, dressed in propagandist attractiveness.

We have one classic case where the cigarette industry, with all its charms and blandishments, failed to convince the court about its innocence. In Ramakrishnan v/s State of Kerala, after a trial of curial strength, the court mastered the subject so expertly as to produce a classic judgement, demonstrating how the golden leaf is a lethal leaf, how tobacco use is the route to cancer and death. Justice Kurup, speaking for a Bench of the Kerala High Court, produced an amazing judgement proving beyond reasonable doubt that tobacco was among the great killers of our time and the prohibition of its use was implicit in Article 21, read with Article 47 of the Constitution. The Bench relied on the Ratlam Municipality case for empowerment to ban smoking which is not only not innocent pleasure to the smoker but nocent to the neighbour called passive smoker inhaling the vicious vapour. Ramakrishnan paved the way for judicial excellence in controlling pollution and now this law has found favour with the Supreme Court of India making smoking in public places an offence. From Ratlam to Ramakrishnan we have a vast vista of judicial jurisdiction and environmental jurisprudence which if radically used will usher in a healthy biosphere.

Pollution takes on myriad forms, with new technology and chemical methodology making the air we breathe, the food we eat, the water we drink, the plant we cultivate and the factory in which we work nosious; dangerous and lethal.

Cui bono? New diseases caused by technology are a great menace. Sustainable development must inhibit Hi-tech culture. The rule of law finds its finest hour when it checks environmental pollution and promotes biosphere conservation. I conclude with a brief but revolutionary appeal for environmental radicalism.

Humanity, on the eve of the third millennium, has an astonishing record of material progress, controlling the forces of Nature, making science and technology the founding fathers of a cultural revolution and transforming the Stone Age into the Space Age:

The world of today, with its unprecedented level of development of human civilisation, stands on the verge of still more grandiose accomplishments, social changes, cultural and technical innovations. The scientific and technological revolution opens up before the man new and unheard-of possibilities for re-making Nature, creating enormous material wealth, and enhancing man’s abilities many times over.

Francis Bacon, long centuries back, stated ‘knowledge is power’. And knowledge, through systematic study, research and discovery, incarnates as science. Technology, rooted in science, transmutes its discoveries into direct application as processes of producing new things or in new ways. Karl Marx envisioned science as a productive force. But what is power? Whom is the productive force which technology multiplies meant to benefit? Why is the radical impact of science and technology, instead of blessing all mankind with universal happiness and social justice, responsible for competitive, cannibalistic struggles, wars for domination and annihilation of those natural conditions where the survival of homo sapiens itself is threatened?

One day, the fields will stay green

and the earth black, sweet and wet.

Our children will grow tall on that earth

and our children’s children…

And they will be free as the mountain trees

and birds.

They will wake each day, happy to be alive

knowing the land was conquered once more, for

them.

One day…

Now we plough dry fields

each furrow wet with blood.

A militant, progressive phenomenon in the battle against pollution is the remarkable emergence of plural people’s organizations with awareness campaigns, ready to launch environmental education schemes, and wage forensic war against violations. M.C. Mehta, the paradigmatic advocate, is a rare litigative phenomenon in environmental law. So too many ‘Mehtas’ operate in the High Courts—Advocate Sahasranaman in Kerala. A democratic offensive in environmental preservation, followed by State encouragement for such invigilatory movements, crowned by judicial activism promotive of anti-pollution curial curative developments, are a progressive process which deserves legislative encouragement and judicial innovation. Not verbal paparazzi but serious Fourth Estate support, will go a long way in making eco-environmental justice a macro-jurisprudential reality in a country otherwise primitive, illiterate and meek and over-powered by corrupt tycoons and corporatocracy. In our developmental era, we will do well to remember that the purpose of development should not be to develop things, but to develop Man. ‘We owe it to our ancestors to preserve entire those rights which they have delivered to our case. We owe it to our posterity not to suffer their dearest inheritance to be destroyed.’

It may be proper to refer to two matters. One is the vain attempt by President Bush to rein in powerful American corporations and their irresponsible conduct, leading to not merely financial collapses but also environmental destruction. The Kyoto Treaty, seeking to save man’s right to safe atmosphere from lethal gases has not been signed by the United States. While the world is a global village ecologically, we cannot accept one headman (the U.S) who does not take the human rights to enviro-justice seriously.

The other point is the failure of environmental justice delivery system and infra-structural vigilance machinery:

In Charan Lal Sahu v. Union of India, the Supreme Court reiterated the need to create a special forum and asserted the need to appoint a body of experts to advise the government on environmental issues. In 1996 the Supreme Court once again stressed the need for setting up of environment court when it opined.

The experience shows that the prosecutions launched in ordinary criminal courts under the provision of the Water Act, Air Act and Environment Act never reach their conclusion either because of the work load in the courts or because there is no proper appreciation of the significance of the environment matters on the part of those in charge of conducting those cases. Moreover, any order passed by the authorities under Water and Air Acts and Environment Act are immediately questioned by the industries in courts. Those proceedings take years and years to reach conclusion. Very often, interim orders are granted meanwhile which effectively disable the authorities from ensuring the implementation of their orders. All this points to the need for creating environment courts which alone should be empowered to deal with all matters, civil and criminal, relating to environment.

It further went on to add that:

These courts should be manned by legally trained persons/judicial officers and should be allowed to adopt summary procedure. This issue, no doubt required to be studied and examined in depth from all angles before taking any action.

The philosophy of Public Interest Litigation has been recognized in Sec. 4(1)e of NETA(National Environment Tribunal Act). Nevertheless, the Supreme Court in a litigative padayatra has struggled to control fuel pollution and has hardly succeeded in gaining complete control of Delhi’s environment. It is the constitutional duty of Parliament and the court to provide clean environment so that We, the people of India may breath and live and not die of breathing poisonous vapours.

July 16, 2002 V.R. KRISHNA IYER