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, socioeconomic 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 reinterpretation 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.

Dehradun
quarrying
case
AIR
1988
SC
2187
C
Mehta
v
Union
of
India
AIR
1987
SC
965
[3]
C
Mehta
v
Union
of
India
AIR
1987
SC
1086
[4]
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
[1]

[2]

M
M
M