09 - Chapter 4 PDF

CHAPTER IV
PUBLIC INTEREST LITIGATION
AND
JUD ICIA L ENVIRONMENTALISM IN INDIA
India does not lack laws for the protection o f ‘ecology and environm ent’ and for
containing and preventing pollution. I have earlier reviewed in C hapter III o f my thesis
some of the legislative enactments to show that we have copious laws to attain the
objective. But, in India executive inaction is well known. Most of the states have pollution
control boards but they have not proved effective in preventing pollution o f water and
air. Municipalities are reluctant.to discharge their statutory duties on the plea o f inadequate
fond. Over and above, the forest department also, inspite o f having its sufficient forest
officials and forest protection force, alongwith adequate maintenance fond, is not able
to save the county’s fast depleting bio-diversity. Precisely, it is in this background that
the role o f the judiciary becomes important.
Environmental protection during the last few years has become not only a matter
o f national concern but o f global importance. It is now an established truth beyond all
doubts that without a clean environment the very survival of mankind is at stake.1Decline
in environmental quality has been evidenced by increasing pollution, loss o f vegetal cover
and biodiversity, excessive concentration o f harmfol chemicals in the ambient atmosphere
and food chains, growing risks o f environmental accidents and threat to life support
systems. This has drawn the attention o f entire world community and, therefore, they
resolved to protect and enhance the environmental quality.2 How could the judiciary
remain a silent spectator when the subject has acquired high importance and become
a matter o f caution and judicial notice.

1. Kailash Thakur, Environmental Protection Law and Policy in India,(1999), p. 305.
2. International efforts from Stockholm 1972 to Johannesburg 2002. The most significant
agreements reached at the Johannesburg Earth Summit on Sustainable Development was to
halve the 2.4 billion people living without clean water by 2015. Agreements were also made
to setup a solidarity fund to wipe out poverty and to restore depleted fish stocks and to reduce
the loss of species by 2015,
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In a developing country like ours, with uneducated masses, conditions of abject
poverty, where the awareness o f socio-economic and ecological problems is lacking, the
judiciary has to play an active role to protect the people’s right against the anti-people
order by infusing confidence in people as a whole for whom it exists, for as rightly put
by Justice Lodha, ‘'‘Judiciary exists fo r the people and not vice-versa ”.3 Judiciary,
therefore, can not sit in silence and helplessly but must come forward actively to make
good the deficiencies of law and provide relief wherever and whenever required. Besides,
the traditional role o f interpretation and application o f law, the judiciary can perform
the educative function of infusing an awareness o f the massive problems o f environmental
degradation through a series o f illuminating judgments and through judicial activism
it can evolve new jurisprudential techniques o f environmental jurisprudence.
This C hapter o f my thesis examines the role of judiciary in the context o f protection
o f environment. The main questions which have arisen for consideration in this regard
are :
1. What precisely :s the role o f courts in handling cases relating to environmental
protection?
2. Whether the technique o f Public Interest Litigation which is of recent origin
has contributed in tackling environmental issues and improving the quality
o f public health?
3. Whether the judiciary has been able to develop new principles for more
effective control and prevention of environmental pollution?
4. Whether the courts can be regarded as an effective agency to curb violation
o f environmental laws ?
5. What are the new areas where the courts have laid down specific guidelines
for protecting the environment?
These questions have been answered in the present Chapter.
3. Justice 0. M. Lodha in Krishna Devi Vs Vishnu Mitra, A.I.R. 1982 RAJ 281.
2 9 6
Almost 95 per cent action taken in a court of law to protect environment is through
public interest litigation.4 One name that comes out boldly in the protection of
environment is that of spirited public man, Shri M.C. M clita5 who single handedly has
filed a number of public interest litigations in the Supreme Court relating to different
aspects of the environment protection.
Since the 1980s, public interest litigation (PIL) has altered both the litigation
landscape and the role of the higher judiciary in India.6 Instead of being asked to resolve
private disputes, Supreme Court and High Court Judges were asked to deal with public
grievances over flagrant human rights violations by the state or to vindicate the ‘public
interest litigation.’7 Most environmental actions in India fall within this class.
V
In a public interest case, the subject mater of litigation is typically a grievance

against the violation of basic human rights of the poor and helpless or about the content
or conduct of government policy. The petitioner seeks to champion a public cause for
the benefit of all society.
Expanded Standing and the Emergence of PIL in India :
Public interest litigation in India was initiated and fostered by a few judges of the
Supreme Court.8 The method they used to redress public grievances was, to relax the
traditional rules governing standing (locus standi). Standing is required to have a court
hear one’s case. Since a court will not hear a party unless he or she has a sufficient stake
4. Paras Diwan and Parag Diwan, Environmental Management Law and Administration, (1998),
p. 310.
5. M.C. Mehta, a recipient of the Ramon Magsaysay Award and the Goldman Environmental
Prize, is a Delhi based public interest lawyer who has successfully fought and won several
landmark environmental cases in the Supreme Court.
6. Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India : Cases,
Materials and Statutes, (2001), p. 133.
7. The label ‘Social Action Litigation’ is preferred by some jurists.
8. The most notable contributions were made by Justice Krishna Iyer and Justice Bhagwati.
From an international perspective, the evolution of ‘public interest law’ is an American
contribution. Many trace its beginnings to the landmark desegregation decisions of the 1950s
when the U.S. Supreme Court required schools in southern American States to end racial
segregation. See Brown Vs Board of Education (Brown II) 349 U.S. 294,299 (1955), as cited
in Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India : Cases,
297
in the controversy, judicial perception of who has sufficient interest (i.e., ‘the person
aggrieved’) is critical. The Supreme Court has lowered the standing barriers by widening
the concept of ‘the person aggrieved.’
Traditionally, only a person whose own right was in jeopardy was entitled to seek
a remedy.9 When extended to public actions, this meant that a person asserting a public
right or interest has to show that he or she had suffered some special injury over and
above what members o f the public had generally suffered. Thus, diffuse public injuries,
such as, air pollution affecting a large community were difficult to redress.
Even under the traditional standing doctrine, a narrow exception has been available
to citizens bringing environmental actions against local authorities. A rate payer,10 for
example, may compel municipal authorities to perform their public duties although the
rate payer has suffered no individualized harm. Thus, a rate payer’s right to challenge
an illegal sanction to convert a building into cinema was upheld by the Supreme Court
in K. Ramdas Shenoy Vs the Chief Officers, Town Municipal Council, Udipi.*11
The traditional view of standing also effectively prevented the grievances o f India’s
poor from being heard by a court. Frequently, the poor and unprivileged are unwilling
to assert their rights because o f poverty, ignorance or fear o f social or economic reprisals
from dominant sections o f the community.
Standing for the Poor and Oppressed : Representative Standing :
In the 1970s, two forces combined to erode the doctrinal limitations o f standing.12
The first o f these arose at the start of the decade with the spreading concern for social
justice and the emergence o f the legal aid. movement. Justices Krishna Iyer and Bhagwati
o f the Supreme Court, who delivered the early judgements liberalizing standing, were
9. There are several narrow but notable exceptions to this traditional rule. For example, any
person can move a writ o f habeas corpus for the production o f a detained person; and a minor
may sue through his or her parent or guardian.
10. Some one who pays rate, cess or assessment on the value o f his or her property. Rates are paid
to the municipality and are applied to local public purposes.
11. A.I.R. 1974 S.C. 2177.
298
also deeply involved in fostering legal service institutions for the weak and the poor.13
Significantly, both judges served extra-judicially, on the National Committee on Juridicare,
which, in its final report, in August, 1977, expressly recommended the broadening o f
the rule o f locus standi as a means o f encouraging PIL.14 The report envisioned PIL as
a channel, by which the poor and oppressed could gain access to the courts and to judge-
fashioned remedies.
Donning their judicial robes, these Judges then proceeded to im plem ent the
recommendation o f their own report.15 In cases involving the unprivileged, the Supreme
Court began to override the procedural obstacles and technicalities that has until then
obstructed redress. Rather than reject a petition for lack o f standing the Court chose to
expand standing so that it could decide the substantive issues affecting the rights o f the
unprivileged.
This modification o f the traditional rule o f standing which permits the poor and
oppressed to be represented by volunteers may be described as ‘representative
standing ’ . 16 Representative standing cases in the Supreme Court have helped secure
the release o f bonded labourers,17 obtain pension for retired government employees18
13. Government of Gujarat, Report of the Legal Aid Committee (1971), (Chairperson : P.N.
Bhagwati, then the Chief Justice of the Gujarat High Court): Government of India, Ministry
of Law, Justice and Company Affairs, Report o f the Expert Committee on Legal Aid :
Processual Justice to the People (1973), (Chairperson: Justice V.R. Krishna Iyer), as cited in
Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India : Cases,
14. Government of India, Ministry of Law, Justice and Company Affairs, Report on National
Juridicare : Equal Justice-Social Justice, (1977), p. 61. [The Committee on Juridicare was
composed of Justice Bhagwati (Chairperson) and Justice Krishna Iyer (Member)], as cited in
15. .At least one Supreme Court judgment, delivered before the Juridicare Report, similarly urged
an expansion of standing, as cited in Shyam Divan and Armin Rosencranz, Environmental
Law and Policy in India : Cases, Materials and Statutes, (2001), p. 135,
16. Cunningham, ‘Public Interest Litigation in Indian Supreme Court: A Study in the Light o f
American Experience, ’ in (29) Journal o f the Indian Law Institute, (1987), p 494.
17. Bandhua Mukti Morcha Vs Union of India (Bonded labourers Case), A.I.R. 1984 S.C. 802
(The petitioners were an organization dedicated to liberate bonded labourers).
18. D.S. Nakara Vs Union of India (Pensioners Case), A.I.R. 1983 S.C. 130 (The principal
petitioners 'Common Cause’ were a voluntary organization).
299
and improve the living conditions o f inmates at a protective home for w om en.19 In
H u ssa in a ra K h ato o n Vs H om e S ecretary , S ta te o f B ih a r,20 the C ourt im plicitly
recognized the standing o f a public spirited lawyer to move a petition on behalf o f 18
prisoners awaiting trials for very long periods in jails in the State o f Bihar. The petition
led to the d is c o v e r o f over 80,000 prisoners,21 some o f whom had been languishing in
prisons for periods longer than they would have served, if convicted.22
Likewise, in People’s Union for D em ocratic R ights Vs Union o f India,23 the Court
allowed a group o f social activists to petition on b eh alf o f exploited governm ent
construction workers, who were being paid less than the statutory minimum wages. The
Court observed :
"Here the workmen whose rights are said to have been violated and to whom
a life o f basic human dignity has been denied are poor, ignorant, illiterate
humans who, by reason o f their poverty and social and economic disability,
are unable to approach the courts fo r ju d icia l redress and hence the
petitioners have under the liberalized rule o f standing, locus standi to
maintain the present writ petition.espousing the cause o f the workmen. ” 24
S tanding in Cases o f Executive Inaction o r A buse ‘Citizen S tan d in g ’ :
This second modification o f the classical standing doctrine, where a concerned
citizen (or voluntary organization) may sue, not as a representative o f others but in his
or her own right as a member o f the citizenry to whom a public duty is owed, may be
term ed ‘citizen s ta n d in g ’25 The force that impelled this liberalization o f standing
19. Dr. Upendra Baxi Vs Stale of Uttar Pradesh, (1983) 2 S.C.C. 308 (The petitioner was a law
professor).
20. A.I.R. 1979 S.C. 1360 and Hussainara (II) at 1369. There are two reported orders in the same
case.
21. Cunningham, supra n. 16 at p. 499.
22. Although essentially a habeas corpus case, it is widely recognized as the earliest example of
PIL in the Supreme Court. Though the case title carries the name of several prisoners, the
Petitioner was the advocate Kapila Hingorani.
23. A.I.R. 1982 S.C. 1473.
24. Ibid at 1483.
25. Once again, the phrase is Cunnighnm’s, supra n. 16 at p. 500.
300
stemmed from the need to check the abuse of executive authority in a modern welfare
state.
The early environmental cases decided by the Supreme Court, which have resulted
in the closure o f limestone quarries in the Dehra Dun region,26 the installation o f
safeguards at a chlorine plant27 in Delhi and the closure o f polluting tanneries on the
Ganges,28 fall within this categoiy of citizen standing cases.
In the G angs Pollution (Municipalities) Case,29 the Supreme Court upheld the
standing o f Sri M.C. Mehta, a Delhi resident to sue the government agencies whose
prolonged neglect had resulted in severe pollution of the river.
Judicial Activism :
A second characteristic o f many PIL cases is the Court’s ingress into fields
traditionally reserved for the executive. Finding the executive response to be absent or
deficient, the Supreme Court has used its interim directions to influence the quality of
administration, 'making it more responsive than before to the constitutional ethic and
law.’30 Occasionally, the Court has even created its own crude administrative machinery
to remove a public hardship.
Professor Upendra Baxi describes this gradual judicial takeover o f ‘the direction
o f administration in a particular area from the executive’ as ‘creeping jurisdiction’.31
A good illustration o f the Supreme Court’s ‘creeping jurisdiction’ is the Dehra Dun
Q uarrying Case where the Supreme Court considered, balanced and resolved competing
policies- including the need for development, environmental conservation, preserving
jobs, .and protecting substantial business investments - in deciding to close a number o f

26. Rural Litigation and Entitlement Kendra Vs State of Uttar Pradesh (Dehradun Quarrying
Case), A.I.R. 1985 S.C. 652.
27. M.C. Mehta Vs Union of India (Shriram Gas Leak Case), A.I.R. 1987 S.C. 965.
28. M.C. Mehta Vs Union of India [Ganga Pollution (Tanneries) Case], A.I.R. 1988 S.C. 1037.
29. M.C. Mehta Vs Union of India, A.I.R. 1988 S.C. 1115.
30. Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court o f
India’, 29 The Review (International Commission o f Jurists) 37, 42 (December, 1982), as
cited in Shyam Divan and Arinin Rosencranz, Environmental Law and Policy in India :
Cases, Materals and Statutes, (2001), p. 147.
31. Ibid.
30!
limestone quarries in the Mussoorie Hills and to allow others to continue operating under
detailed conditions. In rendering this judgement, the Court reviewed the highly technical
reports of various geological experts and gave varying weight to the expert opinions.32
The judicial response to almost ail environmental litigations has been very positive
in India. The primary effort o f the court while dealing with the environmental related
issues is to see that the enforcement agencies, whether it be the state or any other authority,
take effective steps for the enforcement o f the laws. Even though, it is not the function
o f the courts to see the day to day enforcement of the law, that being the function of
the executive, but because o f the non-functioning o f the enforcement agencies to
implement the law, the courts, as o f necessity, have to pass orders directing them to
implement the law for the protection o f the fundamental right o f people to live in healthy
environment,33 passing of the appropriate orders requiring the implementation o f the
law can not be regarded as the court having usurped the function o f the legislature or
the executive.34
Judiciary’s endeavour for protecting environment is commendable. It has proved
to be most effective instrumentality in protecting environment and containing pollution.35
Be it the quarrying in Doon Valley,36 be it Oleum Gas Leak,37 be it saving Ganga from
pollution,38 be it regarding radio-active contam inated butter39 or be it forcing
municipalities to install effluent treatment plants and better sanitation,40 the judiciary
has played a very constructive and active role. The judicial approach is summed up very
succinctly form the following passage :
32. Cunninghum, supra n. 16 at pp. 516-517.

33. P.S. Jaswal and Nistha Jaswal, Environmental Law, (1999), p. 27
34. Indian Council for Enviro-Legal Action Vs Union of India, (1996) 5 S.C.C. 281 at 294.
35. Paras Diwan and Parga Diwan, Environmental Management Law and Administration, (1998),
p. 319.
36. Rural Litigation and Entitlement Kendra, Dehradun Vs State of Uttar Pradesh, A.I.R. 1985
S.C. 652.
39. Dr. Shivrao Shantaram Wagle and Others Vs Union of India, A.I.R. 1988 S.C. 953.
40. Dr. B. L. Wadehra Vs Union of India, A.I.R. 1996 S.C. 2969.
302
“the consequences o f interference with ecology and environment have now
come to he realized. It is necessary that the Himalayas and the forest growth
on the mountain ranges should be left uninterfered with so that there may
be sufficient quantity o f r a in ........................... o f course we are not oblivious
o f the fa c t that natural resources have got to be tapped fo r the purpose o f
social development but one can not forget at the same time that tapping o f
resources have to be done with requisite attention and care so that ecology
and environment may not be affected in any serious way. It has always to
be remembered that those are permanent assets o f mankind and are not be
intended to be exhausted in one generation. ”41
In the 1990s, the Supreme Court set the n ational en v ironm ental agenda on a
range o f ecological issues. It did so through judicial orders in public in terest litigations
filed by citizens, non-governmental organizations and environmental groups. Dismayed
at the poor enforcement record o f government agencies, the Apex Court set apart large
amounts o f judicial time and resources to address public grievance. The Court evolved
a new procedure in the nature o f a ‘continuing m a n d am u s’,42 where a series o f interim
directions are issued to officials and their performance monitored through periodic
compliance reports. During this period, the emphasis shifted to implementation o f natural
resource laws. It was hoped that vigorous judicial scrutiny in select cases would have
a salutary effect on the w ork cu ltu re and p erfo rm an ce o f th e e n v iro n m e n ta l
bureaucracy.43
This C h a p te r o f my thesis while dealing with the concept o f ‘public in terest
litigation’ and ‘judicial activism ’ seeks to explore some major decisions o f the Supreme
Court and the High Courts on environmental protection and, thereby, to establish the
41. Rural Litigation and Entitlement Kendra, Dehradun Vs State of Uttar Pradesh, A.i.R. 1987
S.C. 359 at 373.
43. The lead provided by the Supreme Court, was followed by a number of High Courts, notably
Kerala, Gujarat, Bombay, Madras and Calcutta which also adopted similar strategies to improve
environment.
303
fact that the development of environmental law in the 1990s is largely the story o f India’s
judiciary responding to the complaints o f its citizens against environmental degradation
and administrative sloth.
The dynamism o f an institution is an indication o f its responsiveness and
effectiveness. When the executive fails in its constitutional duties and is considered to
be suffering from ‘executive lethargy’, there is no other recourse for people but to turn
to the judiciaiy. If this is perceived as ‘judicial activism ’, then it is the rope which a
citizen in distress can hold on to and hope to be saved, if the judiciary were to remain
a mute spectator to contemporary events, it would become a vestigial institution.44
In Dr. B.L. Wadehra Vs Union o f India,43 Hon’ble Mr. Justice Kuldip Singh observed
“Historic city o f Delhi the capital o f India is one o f the most polluted cities
in the world. The authorities responsible fo r p o llu tio n control a nd
environmental protection, have not been able to provide clean and healthy
environment to the residents o f Delhi. The ambient air is so much polluted
that it is difficult to breathe. More and more Delhites are suffering from
respiratory disease and throat infections. River Yamuna the main source o f
drinking water supply is the free dumping place fo r untreated sewage and
industrial waste. Apart from air and water pollution, the city is virtually an
open dustbin. Garbage strewn all over Delhi is a common right. The
Municipal Corporation o f Delhi (MCD) constituted under the Delhi Municipal
Corporation Act, 1957 (Delhi Act) and the New Delhi Municipal Council
(the NDMC) constituted under the New Delhi Municipal Council Act, 1944
(New Delhi Act) are wholly remiss in the discharge o f their duties under
law. It is no doubt correct that rapid industrialization, urbanization and
regular flo w o f persons from rural to urban areas have made major
44. M. C. Mehta, 'Judicial Activism : Unexpected Saviour’ in Natraj Publisher’s Handbook o f

Environment, Forest and Wildlife Protection Laws in India, (1998), p. 4.
45. (1996)2 S.C.C. 594.
304
contribution towards environmental degradation but at the same time the
authorities entrusted with the work o f pollution control can not be permitted
to sit back with folded hands on the pretext that they have not financial or
other means to control pollution and protect the environment. ..................... ”
As Earlier discussed in C hapter III o f this thesis, the Stockholm Conference 197246
was the starting point for India’s legislations for ‘ecology and environm ent’. Following
this Conference, the Parliament of India passed a number o f Acts and, thereby, initiating
appropriate steps to implement the decisions taken in the said Conference.
When environmental laws were first enacted in the 1970s, there was little to
distinguish the field o f environmental law from the general body o f law. Moreover, during
this early period the environment enjoyed no special protection from the judiciary.
All this was transformed, in part, by the spate o f fresh legislation passed after the
Bhopal Gas Leak Disaster47 of December, 1984. The new laws and rules are impressive
in their range. They cover hitherto unregulated fields, such as, noise, vehicular emissions,
hazardous waste, hazardous micro-organisms, the transportation o f toxic chemicals,
coastal development and environm ent im pact assessment.
Equally significant, we find in these laws a governmental effort to supplement the
old licensing regime with an array o f new regulatory techniques. Public hearings under
the Environment Impact Assessment Regulations o f 1994 provided a forum to non
governmental organizations to voice their concerns to project proponents. Citizen’s
initiative provisions, together with a statutory ‘right to inform ation’, now enable an
aggrieved citizen to directly prosecute a polluter after examining government records
and data. The technology-forcing deadlines, issued under the Central Motor Vehicles
Rules o f 1989, compel the manufacturers o f patrol and diesel vehicles to upgrade their
46. U.N. Conference on the Human Environment held at Stockholm, Sweden, from 5th to 16th
June, 1972.
47. On December, 3, 1984, just after the midnight about 40 tons o f highly toxic Methyl Iso
Cyanate (MIC) gas, which had been manufactured and stored in the Union Carbide
Corporation’s (U.S.A.) Chemical Plant at Bhopal, allegedly escaped in to the atmosphere
killing nearly 4000 people and inflicting injuries on more than 2,00,000 others.
305
technologies (perhaps even re-tool their plants) to meet the prescribed emission standards
by a particular date. Mandatory w orker’s participation in plant safety and stringent
penalties on high level management for the breach o f factory safety regulations, are
expected to reduce industrial accidents.
Another feature o f the new regime is the vesting o f enormous administrative power
in the enforcement agencies. For examples, a pollution control board may direct a polluter
to shut down an offending factory or order the w ithdraw al o f its pow er supply.48
Previously, the board had to approach a magistrate to enjoin the polluter. This shift away
form judicial to administrative enforcem ent o f environmental laws was intended to
improve compliance.
The new legislation has spawned new enforcement agencies and strengthened the
older ones. Some o f these agencies perform specialized tasks. The Union M inistry o f
Environment and Forests is responsible for evaluating ETA reports submitted by project
proponents. Generally, for large projects, the review is carried out in consultation with
a committee o f experts. Responding to a suggestion by the Supreme Court,49 the Union
G overnm ent has established a N a tio n a l C o a s ta l M a n a g e m e n t A u th o rity and
corresponding state level agencies. Further, the past decade has seen a growth in the
budget and stu ff o f the Central and State Pollution C ontrol Boards, charged with
implementing the Water and Air Acts.
Despite these initiatives, the quality o f the urban and rural environment continues
to decline. The root cause o f this problem is the slack performance o f the enforcement
agencies.50 Several factors inhibit agency functioning, not least among them being a lack
o f budgetary support.51 Political interference52 and a lack o f will to confront entrenched
48. Section 31 A of the Air (Prevention and Control of Pollution) Act, 1981.
49. Indian Council for Enviro-Legai Action Vs Union of India, 1996 (5) S.C.C. 281, 303.
51. The Bihar Pollution Control Board (BPCB), which administers pollution laws in the second
most populous State of the Union, is continuously starved of funds.
52. 'Haryana Pollution Board Disbanded, ’ The Times o f India, Delhi, 13, May, 1992. The Board
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industrial and commercial interests, also contribute to poor administration. Besides, it
is widely perceived that the effectiveness o f some agencies is curtailed by institutional
graft.53 This laxity and indifference has invited judicial strictures from the High Courts54
and the Supreme Court.55
Recently, the Supreme Court lamented :
“I f the mere enactment o f laws relating to the protection o f environment
was to ensure a clean and pollution free environment, then India would,
perhaps be the least polluted country in the world. But this is not so. There
are stated to be over 200 Central and State statutes which have at least some
concern with environmental protection, either directly or indirectly. The
plethora o f such enactments has, unfortunately, not resulted in preventing
environmental degradation which, on the contrary, has increased over the
years. ”56
■ India em ploys a range o f regulating instrum ents to preserve and protect its
natural resources. As a system for doing so, the law w orks badly, when it works at
all. The legislature is quick to enact laws regulating m ost aspects o f industrial and
developm ent activity, but chary to sanction enforcem ent budgets or require effective
im plem entation. A cross the country, g overnm ent agencies w ield v ast pow er to
regulate industry, mines and other polluters but are reluctant to use their pow er to
discipline violators. The judiciary, a spectator to environm ental despoliation for more
than tw o decades, has recently assum ed a proactive role o f public educator,57 policy
was dissolved shortly after it served a prosecution notice on the Chief Minister’s son-in-law.
53. The Punjab Pollution Control Board was superseded in 1996 after the State Government
received complaints regarding maladminstration and harassment. An enquiry revealed that
some of the board decisions were highly suspect. G.S. Oberoi Vs State of Punjab, A.I.R. 1998
P & H 67.
54. Bayer (India) Ltd. Vs State of Maharashtra, 1994 (4) BOM. C. REP. 309; 330; Pravinbhai
Patel Vs State o f Gujarat, 1995 (2) GUJ. LR 1210, 1234; V. Lakshmipathy Vs State o f
Karnataka, A.I.R. 1994 KAR 57,70; Suo Motu Vs Vatva Industries Association, A.I.R. 2000
GUI 33, 35.
55. M.C. Mehta Vs Union o f India, 1998 (3) SCALE 602 and 1998 (4) SCALE 326.
56. Indian Council for Envio-Legal Action Vs Union o f India, 1996 (5) S.C.C. 293.
57. M.C. Mehta Vs Union o f India, A.I.R. 1992 S.C. 382 (court directions to broadcast and
telecast ecology programmes on the electronic media and include environmental study in
307
maker;58 super adminstrator,50 and more generally, amicus environment. The flurry of
legislation, lax enforcement and assertive judicial oversight have combined to create a
unique implementation dichotomy : one limb represented by the hamstrung formal
regulatory machinery comprised of the pollution control boards, forest bureaucracies
and state agencies; the other, consisting of a non-formal ad hoc citizen and court driven
implementation mechanism.
Although courts are ill-equipped to take over enforcement functions, the dismal
performance of government agencies has compelled the higher judiciary to secure
compliance through Public Interest Litigations. Leading by example, the Supreme Court
has persuaded the High Courts of several states to set apart a greater share of judicial
resources to environmental cases.60 In numerous cases discussed in this Chapter, we
will find the Supreme Court stepping into the shoes of the administrator, marshalling
resources, issuing directions to close down factories, requiring the implementation of
environmental norms, cutting through bureaucratic grid lock and so on. As a result of
this drive, hundreds of factories have installed effluent treatment plants and there is a
heightened environmental awareness among administrators, the subordinate judiciary,
police and municipal officials, all of whom are involved in implementing the Court’s
orders. More generally, the Supreme Court has succeeded in building up a sustained
pressure on polluters, where the pollution Control Board had failed.
Judicial Activism in India :
More recently, law making has assumed new dimensions through ‘judicial activism’
of law courts. The judiciary has adopted a healthy trend of interpreting law in social
context. Hitherto, the rigidity of the ‘Locus Standi’ rule derived the poorer sections of
school and college curricula).
58 S. Jagannalh Vs Union oflndia, A.I.R 1997 S.C. 811 (directions prohibiting non-tradilional
aquaculture along the coast); M.C. Mehta Vs Union oflndia, A.I.R. 1996 (2) SCALE. 92
(court directions for the introduction of unleaded petrol vehicles).
59. T.N. Godavarman Thirumulkpad Vs Union oflndia, A.I.R. 1997 S.C. 1228 (judicial supervision
over the implementation of national forest laws) ; .M.C. Mehta Vs Union of India, 1992
(supp. 2) S.C.C. 633 (directions in the Ganga Pollution Cases to riparian industries, tanneries
and distilleries regarding abatement of pollution).
60. For example, the High Courts at Bombay, Calcutta, Madras and the Gujarat High Courts have
308
the society form approaching the courts for enforcement o f their fundamental rights
against the rich and affluent class o f society. Now, the public interest litigation has
liberalized the locus standi rule to such an extent that it has opened new vistas for the
redressal o f social problems. It must be stated that the strategy evolved though judicial
activism has come to be known as Public Interest Litigation in Western countries though
Professor Upendra Baxi61 prefers to call it as Social Action Litigation for the reason
that the problems which are brought before the courts under public interest litigation
relate to a much wider spectrum o f social justice needing extraordinary remedy to undo
them. ‘Environmental pollution problems’ have been effectively tackled through public
interest litigation writs. The public interest activists have dem anded extraordinary
remedies through public interest litigation writs without seeking recourse to traditional
lawyering or the adversarial court procedure.62
It may be noted that public interest litigation originated form United States where
it had been firmly established around 1965.63 In England, it started in the name o f Citizen
Action wherein any citizen could file a writ against public authorities for the cause o f
common man.64 In India, the beginning o f public interest litigation jurisprudence is
reckoned from late seventies when locus standi rule was given a decent burial in the
famous Judges Transfer Case.65
In this historic case, a 7- m em ber Bench o f the Suprem e C ourt, has firm ly
established the rule regarding the public interest litigation. The Court held that any
member o f the public having ‘sufficient interest’ can approach the court for enforcing
constitutional or legal rights o f other persons and redressal o f a common grievance.66 Speaking
for the majority, Justice P.N. Bhagwali (as he then was) stated the rule as follows :
a designated ‘green bench ’.

61. Former Vice Chancellor of Delhi University and a protagonist of ‘Public Interest Litigation'
which he prefers to term as ‘Social Action Litigation
62. Dr. N. V. Paranjape, Studies in Jurisprudence and Legal Theory, (1994), p. 241.
63. Ibid.
64. Ibid.
65. S.P. Gupta Vs. Union of India, A.I.R. 1982 S.C. 149.
66. Ibid at pp. 192, 194.
309
" Where a legal wrong or legal injury is caused to person or to a determinate
class o f persons by reason o f violation o f any constitutional or legal right
and such person or determinate class o f persons is by reason o f poverty,
helplessness o f disability, or socially or economically disadvantaged position
unable to approach the Court fo r relief, any member o f the public can
maintain an application fo r an appropriate direction or order or writ in the
High Court under Article 226 or in case o f breach o f any fundamental right
to this Court under Article 3 2 ................... ”67
However, the Court said that it would have to be decided from case to case as to
whether the person approaching the Court for relief has ‘sufficient interest’ and has not
acted with malafide or political motives.68 In the instant case, the Court upheld the right
o f the practising lawyers to maintain a writ petition under Article 32 on matters affecting
the independence o f judiciary. Justice Bhagwati (as he then was) held :
“We would, therefore, held that any member o f the public having sufficient
interest can maintain an action fo r judicial redress fo r public injury arising
from breach o f public duty or form violation o f some provision o f the
Constitution or the law and seek enforcement o f such public duty and
observance o f such constitutional or legal provision. This is absolutely
necessary fo r maintaining the ride o f law, furthering the cause o f justice
and accelerating the pace o f realization o f the constitutional objectives. "69
His Lordship also rejected the argument o f fear that such a liberal view would
lead the Court being flooded with writ litigation and, therefore, they should not be
encouraged.70
While expanding the scope o f the ‘Locus Standi’ rule, his Lordship Justice P.N.
Bhagwati (as he then was) expressed a note o f caution also.71 He observed :
67. Ibid at p. 189.

68. Ibid at p. 192.
69. Ibid. See also Dr. J.N. Pandey, Constitutional Law o f India, (2001), p. 315.
70. Ibid.
71. Ibid.
310
“But we must be careful to see that the member o f the public, who approaches
the Court in case o f this kind, is acting bonafide and not fo r personal gain
or private profit or political motivation or other oblique consideration. The
Court must not allow its process to be abused by politicians and others
This observation makes it clear that his Lordship was aware that this liberal rule
o f locus standi might be misused by vested interests. He, therefore, made it clear that
in that case the Court will not allow the remedy to be abused.
In Akhil Bhartiya Soshil Karmachari Sangh (Railway) Vs Union o f India ,72
Justice Krishna Iyer declared :
"Access to justice through class actions, public interest litigation and
representative proceedings is the present Constitutional jurisprudence. ’’
Public interest litigation is part o f the process o f participate justice .73 In the
Asiad W orker’s Case ,74 Justice P.N. Bhagwati observed :
“Public interest litigation which is a strategic arm o f the legal aid movement
and which is intended to bring justice within the reach o f the poor masses,
who constitute the low visibility area o f humanity, is a totally different kind
o f litigation form the ordinary traditional litigation which is essentially o f
an adversary character where there is dispute between the litigating parties,
one making claims or seeking relief against the other and that other opposing
such claim or resisting such relief. Public interest litigation is brought before
the Court not fo r the purpose o f enforcing the right o f one individual against
another as happens in the case o f ordinary litigation, but it is intended to
promote and vindicate public interest which demands that violations o f
72. A.I.R. 1981 S.C. 298.

73. Justice Krishna Iyer in Fertilizer Corporation Kamgar Union Vs Union of India, (1981) 1
S.C.C, 568 (587); A.I.R. 1981 S.C. 344 (355) : (1981) 2 S.C.R. 52.
74. People’s Union for Democratic Rights Vs Union of India (Asiad Worker’s Case), (1982) 3
S.C.C. 235 (240-41) : A.I.R. 1982 S.C. 1473 (1476-77).
311
Constitutional or legal rights o f large number o f people who are poor,
ignorant or in a socially or economically disadvantaged position should not
go unnoticed and unredressed. ”
The rule o f law does not mean that the protection o f law must be available only
to a fortunate few or that the law should be allowed to be prostituted by the vested
interests for protecting and upholding the status quo under the guise o f enforcement of
their civil and political rights. The poor too have civil and political rights and the rule
o f law is meant for them also though today it exists only on paper and not in reality.75
In the modem public interest litigation, the complaint is seldom o f denial o f human
rights to the petitioner but denial o f rights to 'an individual (other than the petitioner)
or a section o f society who have no means to approach the court. In the words o f Justice
P.N. Bhagwati :
“The narrow confines within which the rule o f standing was imprisoned fo r
long years as a result o f inheritance o f the Anglo-Saxon system o f
jurisprudence have been broken and a new dimension has been given to the
doctrine o f locus standi which has revolutionized the whole concept o f access
to justice in a way not known before to the western system o f jurisprudence. ”76
Article 32 of the Constitution :
The powers of the Supreme Court to issue directions under Article 32 and that o f
High Courts to issue directions under Article 226 have attained great significance in
environmental litigation. Courts have made use o f these powers to remedy past maladies
and to check immediate and future assaults on the environment.77
Dr. B.R. Ambedkar, architect o f the Constitution o f India, himself, laid down the
importance of Article 32 in the following words :
75. Ibid.
76. People’s Union for Democratic Rights Vs Union of India, (1982) 3 S.C.C. 235 (248-49);
A.I.R. 1982 S.C. 1473, 1482.
77. P. Leelakrishnan, Environmental Law in India, (1999), p. 141.
312
"If 1 was asked to name any particular Article in this Constitution as the
most important - an Article without which this Constitution would be a nullity
- 1 could not refer to any other Article except this o n e ........It is the very
soul o f the Constitution and the very heart o f it. ” 78
It is true that a declaration o f fundamental rights is meaningless unless there is
an effective machinery for the enforcement o f the rights. It is remedy which makes the
right real. If there is no remedy there is no right at all.
Article 32 (1) guarantees the right to move the Supreme Court by ‘appropriate
proceedings’ for the enforcement o f the fundamental rights conferred by Part III o f the
Constitution. Clause (2) of Article 32 confers power on the Supreme Court to issue
appropriate directions or orders or writs, including writs in the nature o f habeas corpus,
mandamus, prohibition, quo-warranto and certiorari for the enforcement o f any o f the
rights conferred by Part III o f the Constitution.
Under Article 32 (1), the Supreme Court’s power to enforce fundamental right is
w idest There is no limitation in regard to the kind o f proceedings envisaged in Article
32 (1) except that the proceeding must be ‘ap p ro p riate’ and this requirement must be
judged in the light o f the purpose for which’ the proceeding is to be taken, namely,
enforcement o f fundamental rights. It is nor obligatory for the Court to follow adversary
system. The Constitution makers deliberately did not lay down any particular form of
proceeding for enforcement o f fundamental right nor did they stipulate that such
proceeding should conform to any rigid pattern or a straight -jacket formula because
they knew that in a country like India where there is so much o f poverty, ignorance,
illiteracy, deprivation and exploitation, any insistence on a right formula o f proceeding
for enforcement o f fundamental right would become self defeating.79
Artiele 226 of the Constitution :
An important aspect of the Indian Constitution is the jurisdiction it confers on the
78. C.A.D. Vol. VII at p. 953, as cited in Dr. J. N. Pandey, Constitutional Law o f India, (2001), p.
313.
79. S.P. Oupla Vs Union of India ( The Judges Transfer Case), A.I.R. 1982 S.C. 149.
313
High Courts to issue writs. The writs have been among the great safeguards provided
by the British Judicial System for upholding the rights and liberties of the people. It
was an act o f great wisdom and foresight on the part o f the constitution makers to
introduce the writ system in India and, thus, constitute the High Court.into guardians
o f the people’s legal rights.80
Under Article 226, a High Court is empowered to issue direction, orders or writs,
including writs in the natures o f habeas corpus, mandamus, prohibition, quo-warranto
and certiorari , for the enforcement of a fundamental right and for any other purpose.
The jurisdiction, thus, conferred, on a High Court is to protect not only the fundamental
rights but even any other legal right as is clear form the words ‘any other purpose’.81
Locus Standi Today : Scope and Restrictions :
The traditional rule of ‘locus standi’ lays down that the right to move the Supreme
Court is only available to those whose fundamental rights are infringed.82 In other words,
the judicial redress is available only to a person who has suffered or is likely to suffer
a legal injury to body, mind, reputation or property by reason o f violation o f his legal
right or legally protected interest by the impugned action o f the state or some public
authority. In short, the person who knocks at the gates o f court o f justice must be a
person who has been refused something which he has a right to demand.
Public Interest Litigation : A Dynamic Approach :
The above traditional rule o f ‘locus stan d i’ that a petition under Article 32 can
only be filed by a person whose fundamental right is infringed has now been considerably
relaxed by the Supreme Court in its recent rulings. The Court now permits Public interest
Litigations or Social Interest Litigations at the instance o f ‘public spirited citizens’ for
the enforcement o f constitutional and other legal rights o f any person or group o f persons
who because of their poverty or socially or economically disadvantaged position are
80. M.P. Jain, Indian Constitutional Law, (1993), p. 207.

81. Ibid.
82. Dr. J. N. Pandey, Constitutional Law o f India, (2001), p. 314.
314
unable to approach the court for relief.83
‘Locus Standi’ no longer remains a hurdle, in environmental law cases in India.84
However, in USA, class action may not be possible in civil litigation relating to the
environment as it raises procedural difficulties, such as, proving o f locus standi and the
question, whether the complainant had suffered direct substantial injury.85 For example,
Sierra Club Vs Morton o f the United States,86 Supreme Court is often quoted as an
illustration to a case which showed difficulty in rendering locus standi to environmental
protection groups. Construction o f a ski resort in a valley was challenged by Sierra Club
on the ground that it would adversely affect the scenery, wildlife, natural and historical
objects and impair the enjoyment o f the valley for the future generations. The Court
held that this did not constitute an injury suffered by the Club and denied standing.
Although the rule o f ‘locus standi’ is liberalized in India yet the judiciary equally
gives importance to the fact that there is every likelihood o f misusing this liberalization
by vested interest to meet their personal end. For example, in some cases, frivolous or
vexatious writ petitions are filed in the name o f public interest litigation involving
environmental matters. It has been noticed that such litigations are filed malafide and
arise out of enmity between the parties.
In Subhash Kumar,87 the Supreme Court reprimanded the petitioner for abusing
the process o f the Court. Subhash Kumar, an influential businessman, wanted to carry
away slurry from the Tata Iron and Steel Company’s (TISCO) ponds. Kumar tried various
means to pressure the Company into giving him business. When the Company refused,
he filed a public interest litigation under Article 32, claiming that the slurry discharged
from the coal washeries was polluting the Bokaro river and was a serious health risk
to the neighboring community. He asked the Court to prohibit TISCO’s discharges. His
83. Ibid.
85. Ibid. See also ‘Development o f the L aw : Class Actions' in 89 Harv. L. Rev. 1319(1976), as
cited in P. Leelakrishnan, Environmental Law in India, (1991), p. 2.
86. 405 U.S. 727, 31 L. Ed. 2d 636, as cited in P. Leelakrishnan, Environmental Law in India,
(1991), p. 2.
87. Subhash Kumar Vs State o f Bihar, A.l.R. 1991 S.C. 420.
315
interim application, however, revealed the real purpose : Kumar sought the Court’s
permission to carry away the slurry (lowing into the river. The Supreme Court saw through
Kumar’s game, found no merit in the allegations o f pollution and held that the petitioner
was out to harass the Company and make a profit to boot. The Court dismissed the
petition with costs, holding :
“Personal interest can not be enforced through the process o f this court under
Article 32 o f the Constitution in the grab o f a public interest litigation. Public
interest litigation contem plates legal proceedings fo r vindication or
enforcement offundamental rights o f a group ofperson or community which
are not able to enforce theirfundamental rights on account o f their incapacity,
poverty or ignorance o f law. A person invoking the jurisdiction o f this court
under Article 32 m ust approach this court fo r the vindication o f the
fundamental rights o f affected persons and not fo r the purpose o f vindication
o f his personal grudge or enmity. It is [the] duty o f this court to discourage
such petition and to ensure that the course o f justice is not obstructed or
polluted by unscrupulous litigants by invoking the extra ordinary jurisdiction
o f this court fo r personal matters under the grab o f the public interest
litigation. ”8S
Likewise, in Chhetriya Pradushan Mukti Sangharsh Samiti Vs State o f U.P.,89 the
Supreme Court rejected a petition which was motivated by an ancient grudge and enmity.
Declaring, ‘we must protect society from so called p r o te c to r s the Court held that, in
view of, the long history o f animosity and the prima facia compliance with polluting
statutes, there was no justification for judicial intervention. During the hearing, the
industry furnished materials to show that the petitioner had a record o f blackmailing
people and that criminal charges were pending against him in this regard.
Protection of Ecology and Environment :
_ _ _Public
_ _ _Interest
_ Litigation (PIL) has come to stay in India. Contraiy to the past
89. A.I.R. 1990 S.C. 2060.

316
practices,90 today a person acting bonafide and having sufficient interest can move the
courts for redressing public injury, enforcing public duty, protecting social and collective
rights and interest and vindicating public interest.91 In the eighties and nineties, there
has been a wave o f environmental litigation. M ost o f such cases were in the form o f
class action and PIL, obviously because environmental issues relate more to diffuse
interests than to ascertained injury to individuals.
The concept o f class action is embodied in the Code o f Civil Procedure 1908,92
where if numerous persons have common interests, one or more o f such persons can file
a suit. A recent example o f class action is B hopal d isaster litigation.93
It has been mentioned earlier that community interests can also be agitated under
the law o f public nuisance incorporated in the Code o f Criminal Procedure, 1973.94 An
individual, a group o f individuals or an executive magistrate, suo motu, can move the
courts. This provision has proved to be a potent weapon for regulatory measures,95 as
well as, affirmative action96 by the government and local bodies for ‘protection o f the
environm ent’.
The ability to invoke the original jurisdiction o f the Supreme Court and the High
Courts under Article 32 and 226 o f the Constitution is a remarkable step forward in
90. Locus Standi was the greatest hurdle. J.M. Desai Vs Roshan Kumar, A.I.R. 1976 S.C. 578
could be cited as an illustration. The District Magistrate gave no objection certificate for a
cinema house close to a burial ground, compost depot, a school and public latrines. The grant
was manifestly against rules. The High Court and the Supreme Court were, however, reluctant
to interfere on the ground that the rival applicants who challenged the decision had no locus
standi.
91 S.P. Gupta and Others Vs Union of India, A.I.R. 1982 S.C. 149 at p. 192. See also P.
Leelakrishnan, 'Access to Legal Service and Justice ’ in Cochin University Law Review, (1984)
at pp. 471, 476-477.
92. Order 1, Rule 8.
93. The most obvious use of class action is in mass disasters of the sort that occurred in Bhopal.
In the wake of the Bhopal tragedy, the Indian Government filed a class action suit on behalf
of all the victims, in accordance with the terms of the Bhopal Gas Leak Disaster (Processing
of Claims) Act of 1985.
94. Sections 133 to 144 of the Code of Criminal Procedure, 1973.
95. Madhavi Vs Thilakan, [1989] Cri. L.J. 499.
96. Municipal Council, Ratlam Vs Vardhichand, A.I.R. 1980 S.C. 1622.
317
providing protection for the environment. Courts have widened the dimensions o f the
substantive ‘rights to health and a clean and unpolluted environm ent’.97 In most cases,
this progress was made with the aid o f PIL. Thus, in order to reap the benefits o f
substantive environmental rights, courts have opened a path o f ‘proeessual ju stice’,
without enslaving themselves to procedural compulsions.98 In Tarun Bharat Sangh, Alwar,
Vs Union o f India,99 a social action group challenged the legality o f granting a mining
license in the protected area o f a reserved forest. Upholding the contention, the Supreme
Court observed :
“This litigation should hot be treated as the usual adversarial litigation.
Petitioners are acting in aid o f a purpose high on the national agenda.
Petitioner’s concern fo r the environment, ecology and the wildlife shoidd be
shared by the government. ”m
The observation o f the Court is important as it emphasizes the rationale o f PIL
in environmental issues. It is the duty o f the state to protect the environment - a duty
imposed by the Directive Principles and Fundamental Duties, incorporated by the Forty-
Second Amendment o f the Constitution.'01 Any person who raises an environmental issue,
whether individual, group or institution is equally concerned with the problem. Such
litigation can never be considered as one o f adversarial confrontation with the state.
The range o f issues has been very broad. It extends form compassion to anim als'02
and privileges o f tribal people and fishermen103 to the ecosystem o f the Himalayas and
97. Hinch Lai Tiwari Vs Kamala Devi ,(2001) 6 S.C.C. 496; V Lakshmipathy Vs State of
Karnataka, AJ.R. 1992 KANT 57 at p. 62, para 17; Kinkri Devi Vs State of Himachal Pradesh,
A.I.R. 1988 H.P. 4, 9.
99. A.I.R. 1992 S.C. 514.
100. Ibid at p. 517.
101. Article 48 A and 51A(g) were inserted in to the Constitution by the Constitution (42nd
Amendment) Act, 1976.
102. Satyavani Vs A.P. Pollution Control Board, A.I.R. 1993 A.P. 257.
103. Pradeep Krishan Vs Union of India, A.I.R. 1996 S.C. 2041; Suresh Lohia Vs State of
Maharashtra, (1996) 10 S.C.C. 397; Animal and Environment Legal Defence Fund Vs Union
oflndia, A.J.R.1997 S.C. 1071.
318
fo re s ts ,104 e c o -to u ris m ,105 land use p a tte rn s 106 and v in d ic a tio n o f an eco -m alad y o f
a v illa g e .107 T he cause o f en v iro n m en t being tak e n up th ro u g h P IL w as ch am pioned
by a w id e sp e c tru m o f p e o p le in so c ie ty . L a w y e rs, a s s o c ia tio n o f la w y e rs ,108
e n v iro n m e n ta lists,li),J groups and cen tres d ed icated to en v iro n m en tal p ro te c tio n 110
and fo re st c o n se rv a tio n ,**111 w elfare fo ru m s112 in clu d in g those fo r trib a l w e lfa re ,113
societies reg istered under the S o cieties R eg istratio n A c t114 and c o n su m e r rese a rc h
c e n tre s 114'* have su ccessfu lly ag itated e n v iro n m en ta l issues b efo re co u rts. U rban
Social a c tiv is ts,115 the w o m en ’s w ing o f a society fo r anim al p ro te c tio n ,116 chairm an
o f rural v o lu n tary a s so c ia tio n s 117 and resid e n ts o f h o u sin g c o lo n ie s 118 w ere also
involved in ad v o c atin g env iro n m en tal issues. W hile in som e cases, le tte rs 119 w ere
c o n sid ered as w rit p etitio n s, in som e others, p a p e r re p o rts 120 w e re resp o n sib le for
ju d ic ia l action.
104. Rural Litigation and Entitlement Kendra Vs State o f U.P., A.I.R, 1988 S.C, 2187; Banwasi
Seva Ashram Vs State of U.P., A.I.R. 1987 S.C . 374.
105. .Niyamma Vedi Vs Stale, A.I.R. 1993 KliR 262 at pp. 266, 271.
106. V. Lakshmipalhy Vs State, A.I.R. 1992 KANT 57; Bangalore Medical Trust Vs B.S. Mudappa,
A.I.R. 1991 S.C. 1902.
107. Indian Council for Enviro-Legal Action Vs Union oflndia, A.I.R. 1995 S.C. 2252; (Bichhri
Case), A.I.R. 1996 S.C. 1446.
108. The Mehta C ases: M.C. Mehta Vs Union o f India (Badkhal and Surajkund Lakes), 1997 (3)
S.C.C. 715; (Calcutta Tanneries Case), 1997 (2) S.C.C.-411; (Taj Trapezium Case), 1998 (2)
SCALE 7 (SP).
109. Pradeep Krishan Vs Union oflndia, A.I.R. 1996 S.C. 2040.
1lO.Dahanu Taluka Environment Protection Group Vs BSES, (1991) 2 S.C.C. 539; Rural Litigation
and Entitlement Kendra Vs Stale oi'U.P., A.I.R. 1988 S.C. 2187.
111. Banwasi Seva Ashram Vs State o f U.P., A.I.R. 1987 S.C. 374.
112. Vellore Citizen’s Welfare Forum Vs Union oflndia, A.I.R. 1996 S.C. 2715.
113. Nagarhole Budakatta Hakku Sthapana Samithi Vs State o f Karnataka, A.I.R. 1997 KANT
288.
114. Goa Foundation Vs Konkan Railway Corporation, A.I.R. 1992 BOM 471.
114A. CERC Vs Union oflndia, A.I.R. 1995 S.C. 922.
115. L.K. Koolwal Vs State of Rajasthan, A.I.R. 1988 RAJ 2
116. Satyavani Vs A.P. Pollution Control Board, A.I.R, 1993 A.P. 257.
117. Jagannulh Vs Union oflndia, (1997) 2 S.C.C. 87.
118. Bangalore medical Trust Vs B.S. Mudappa, A.I.R. 199! S.C. 1902
119. Banwasi Seva Ashram Vs State of U.P., A.I.R. 1987 S.C.375.
120. M.C. Mehta Vs Kamal Nath, (1997) 1 S.C.C. 388 at pp. 391, 397.
319
Environmental Care by the Constitution and Judicial Grammar of Interpretation
: Fundamental Norms :
As earlier discussed in Chapter II of this thesis, the Indian Constitution is amongst
the few in the world that contains specific provisions on environmental protection. The
directive principles of state policy and the fundamental duties chapters explicitly enunciate
the national commitment to protect and improve the environment. Judicial interpretation
has strengthened this constitutional mandate.
In a case where the Supreme Court intervened to protect the forest wealth and
wildlife from the ravages o f mining in and around Sariska sanctuary in the Alwar district
o f Rajasthan, the Court viewed its own constitutional role thus :
"This litigation concerns environment. A great American Judge emphasizing
the imperative issue o f environment said that he placed Government above
big business, individual liberty above Government and environment above
all. The issues and concerns in this case fa r transcend the trivialities and
inhibitions o f an adversarial litigation. All the parties must be forthcoming
in a concerted effort to fin d a satisfying solution to the problem which, in
more ways than one, is typical o f the Indian predicament. We are, therefore,
entitled to expect that the State Government and the mining-entrepreneurs
• in their own enlightened s e lf interest will discard the adversarial litigation
stance. The issues o f environment must and shall receive the highest attention
from this Court. ”l2!
This approach has led the Supreme Court to derive, adopt and apply a range of
principles to guide (he development of environmental jurisprudence. Notable amongst
the fundamental norms recognized by the Court are :
121. Emphasis supplied. Tarun Bharat Sangh, Ahvar, Vs Union o f India (Sariska Case), Writ Petition
(Civil) No. 509 o f 1991, Supreme Court, 14, May, 1992 (M.N. Venkatachaiiah and B.P.
Jeevan Reddy, J.J.).
320
(1) Eveiy person enjoys the right to a wholesome environment, which is a facet
o f the right to life guaranteed under Article 21 o f the Constitution o f India.522
(2) Enforcem ent agencies are under an obligation to s tric tly en fo rc e
environmental laws.123
(3) Government agencies may not plead non-availability o f funds, inadequacy
• o f staff or other insufficiencies to justify the non-performance o f their
obligations under environmental laws, m
(4) The ‘polluter pays principle’ which is a part o f the basic environmental
law o f the land requires that a polluter bear the remedial or cleanup costs,
as well as , the amounts payable to compensate the victims o f pollution.125
(5) The ‘precautionary principle’ requires government authorities to anticipate,
prevent and attack the causes o f environmental pollution. This principle also
imposes the onus o f proof on the developer or industrialist to show that his
or her action is environmentally benign.126
(6) Government development agencies charged with decision making ought to
give due regard to ecological factors including (a) the environmental policy
.of the Central and State Government; (b) the sustainable development and
utilization of natural resources; and (c) the obligation of the present generation
to preserve natural resources and pass on to future generations an
environment, as intact as, the one we inherited from the previous generation.127
(7) S tringent action ought to be taken against contumacious defaulters and
persons who carry on industrial or development activity for profit without
122. Subhash Kumar Vs State o f Bihar, A.I.R. 1991 S.C. 420,424; M.C. Mehta Vs Union o f India
(Delhi Stone Crushing Case), 1992 (3) S.C.C.256, 257; Virender Oaur Vs State o f Uariyana,
1995 (2) S.C.C. 577,581.
123. Indian Council for Enviro-Lcgal Action Vs Union oflndia (CRZ Notification Case), 1996 (5)
S.C.C. 2 8 1 ,2 9 4 , 301.
124. Dr. B.L. Wadehra Vs Union oflndia (Delhi Garbage Case), A.I.R. 1996 S.C. 2969, 2976.
125. Indian Council for Enviro-Legal Action Vs Union oflndia (Bichhri Case), A.I.R. 1996 S.C.
1446,1466; Vellore Citizen's Welfare Forum Vs Union oflndia, A.I.R. 1996 S.C. 2715,2721.
126. Vellore Citizen’s Welfare Forum Vs Union oflndia, A.I.R. 1996 S.C. 2715,2721; Jagannath
Vs Union ofln dia (Shrimp Culture Case), A.I.R. 1997 S.C. 811,846.
127. State ofllim achal Pradesh VsGancsh Wood Products, A.I.R. 1996 S.C. 149, 159, 163.
321
regard to environmental laws.128
(8) The power conferred under an environmental statute may be exercised only
to advance environmental protection and not for a purpose that would defeat
the object o f the law.129
(9) The State is the ‘trustee’ o f all natural resources which are, by nature, meant
for public use and enjoyment. The public, at large, is the beneficiary o f the
sea-shore, running waters, air, forests and ecologically fragile lands. These
resources can not be converted into private ownership.130
The growth of environmental law in India has been largely influenced and
accelerated by PIL.13’ It has generated tremendous awakening amongst people about
environmental protection, has ushered in the evolution o f innovative judicial techniques
to arrest environmental degradation and has transformed the jurisprudence o f public law
review.132 In a public interest case, the subject matter o f litigation is typically a grievance
against the violation o f basic human rights o f the poor and helpless or about the contents
or conduct o f government policy, where the petitioner seeks to champion a public cause
for the benefit of the entire society and the judge plays an activist role in contrast to
the passive umpire-ship traditionally associated with judicial functions.133
The compulsions o f constitutional promise of a social and economic transformation
to usher in an egalitarian social order and a welfare state have stimulated innovations
128. Indian Council for Enviro-Legal Action Vs Union oflndia (Bichhri Case), A.l.R. 1996 S.C.
1446; Pratibha Co-operative Housing Society Limited Vs Stale o f Maharashtra, A.l.R. 1991
S.C. 1453,1456; Pleasant Stay Hotel Vs Palani Hills Conservation Council, 1995 (6) S.C.C.
127, 139; M.I. Builders Vs Radhey Shyam Sahu, A.l.R. 1999 S.C. 2468, 2505.
129. Bangalore Medical Trust Vs B.S. Muddappa, A.l.R. 1991 S.C. 1902, 1911, 1924.
130. M.C. Mehta Vs Kamal Nath (Span Motels Case), 1997(1) S.C.C. 388; M.I. Builders Vs
Radhey Shyam Sahu, A.l.R. 1999 S.C. 2468, 2498.
131. Some Jurists prefer the label 'Social Action Litigation'. Professor Upendra Baxi prefers this
term to Public Interest Litigation in the Indian context.
132. G.S. Tivvari, ‘Conservation o f Dio diversity and Techniques o f People’s Activism ’ in Journal
o f the Indian Law Institute, Vol. 43 : 2, (2001), p. 192.
133. See generally Abram C hayes,1 The Role o f Judge in Public Law Litigation’ in 89 Harv, L.
Rev. 1281 (1976); Sheela Barsc Vs Union o f India, A.l.R. 1988 S.C. 2211.
322
o f judicial techniques.IM The technique o f PIL serves to provide an effective remedy to
enforce group rights and interest as the traditional judicial system is not equipped to
tackle such problems.135 The socio-economic demands o f a changing society, groaning
under the strains o f rapid industrial development adversely impacting the natural riches,
warrant a different kind of jurisprudence - dynamic, vibrant and resistent to address
people’s problems. PIL is one such tool to help the poor, under privileged and
downtrodden and exploited millions. It is essentially a cooperative or collaborative effort
on the part o f the petitioner, the state or public authority and the court to secure observance
of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable
sections o f the community and to provide social justice to them.136 It is part o f the process
o f participative justice , 137 where traditional patterns o f adversarial justice systems are
absent and the judiciary is called upon to meet the ends o f public good, interest or cause.
Therefore, a citizen has a right to have recourse to Article 32 o f the Constitution for
removal o f factors causing detriment or impairment to the quality o f life.138
PIL is more elTicacious in environmental disputes because such disputes do not
concern protection o f enforcement o f individual rights, but are more legitimately
concerned with community rights. The traditional system ofjustice administration, which
is adversarial in nature is inadequately equipped to deal with such disputes and also to
cope with a wide range o f problems associated with inequality o f means, opportunities
and entitlements in society. As was observed by the Apex Court in PUDR vs Union of
India . : 139
“Public Interest Litigation is brought before the court not fo r the purpose
o f enforcing the right o f one individual against another as happens in the
case o f ordinary litigation, but it is intended to promote and vindicate public
134. Sheela Barse Vs Union o f India, A.I.R. 1988 S.C. 2211 at 2214.
135. Ibid.
136. People's Union o f Democratic Rights Vs Union o f India, A.I.R. 1982 S.C. 1473 at p. 1477.
See also Bandhua Mukti Morcha Vs Union oflndia, A.I.R. 1984 S.C. 802 at p. 811.
137. Fertilizer Corporation Kamgar Union Vs Union oflndia, A.I.R. 1981 S.C. 344 at p. 355.
138. Subhash Kumar Vs State o f Bihar, (1991) 1 S.C.C. 598 at p. 604.
139. Supra n. 136 at p. 1476.
323
interest which demands that violations o f constitutional or legal rights o f
large number o f people who are poor, ignorant or in a socially or
econom ically disadvantaged position, should not go unnoticed and
unredressed. ”
The nature and scope o f PiL ensures that community rights and interests associated
with environment, in general and biological diversity, in particular, are effectively and
adequately safeguarded. The community rights and interests concern vast majority of
people who are deprived o f their rights of access to justice because o f ignorance, poverty,
remoteness and social and economic disadvantages. The Court has, therefore, to innovate
new methods and techniques to reach justice to the people. PIL is ‘strategic arm of
law’ whose social objective can only be achieved if people’s assertions, aspirations and
initiatives are actively and vigorously promoted and pursued. PIL reflects a shift from
Laissez-faire system bolstered and sustained by Anglo-Saxon system o f jurisprudence,
in which civil litigation reflected essentially an individualistic philosophy o f the right
o f man to a coflectivistic system in which social, collective and diffuse rights o f groups,
classes and communities are recognised.140The technique is in conformity with the current
thrust on contours o f processual justice opening up to encompass the needs of the common
man.
In India, the seeds of PIL were sown by Justice K rishna Iyer in 1976 (without
using the terminology) in M um bai K am gar Sabha Vs A bdulbhai,141 when the learned
judge observed : 142
"Public interest is promoted by a spacious construction o f locus standi in
our socio-economic circumstances and conceptual latitudinarianism permits
taking liberties with individualization o f the right to invoke the higher courts
where the remedy is shared by the considerable number, particularly when
they are weaker. ”
140.1.P. Massey, Administrative Law, (1990), p 259.

141. A.l.R. 1976 S.C. 1455.
142. Ibid at p. 1458.
324
The doclrinal limitations o f standing slatted getting diluted in the wake o f legal
aid movement and in 1977 the N atio n al C o m m ittee on J u rid ic a re expressly
recommended broadening o f the rule of locus standi as a means o f encouraging PIL.143
The report envisioned PIL as a channel by which the poor and oppressed could gain
access to the courts and to judge-fashioned remedies. The concept o f PIL was slowly
and steadily nourished, nurtured and developed by the Apex Court through a series of
landmark decisions in matters of public policy, executive excess, constitutional infractions,
environmental degradations etc. In Fertilizer Corporation Kamgar Union Vs Union o f
India,'44 the terminology PIL was used by Justice Krishna Iyer for the first time. With
spirited awakening coming to the forefront and complexities o f socio-economic problems
increasing manifold causing strains on the egalitarian principle o f access to Justice,
necessitating expansion o f the rule o f standing, PIL took its root firmly in the Indian
judiciaiy and fully blossomed with fragrant smell in S.P. G upta Vs President o f India.145
Techniques of Issuing Directions in Public Interest Litigation :
As earlier mentioned, the powers o f the Supreme Court to issue direction under
Article 32 and that o f High Courts to issue directions under Article 226 have attained
great significance in environmental litigation. Courts have made use of these powers to
remedy past maladies and to check immediate and future assaults on the environment.
1. Evolution of Doctrines in Environmental Jurisprudence :
The formulation o f certain principles to develop a better regime for protecting the
environment is a remarkable achievement. In this regard, I would like to refer to the
observation made by Justice P.N. Bhagwali in S.P. Gupta Vs Union o f India,146 His
Lordship observed :
“The Court has to innovate new methods and devise new strategies fo r the
143. Report on National Juridicare : Equal Justice 61 (1977). The Committee on Juridicare was
composed o f Justice P.N. Bhagwali (Chairperson) and Justice V.R. Krishna Iyer (Member),
as cited in Shyam Divan and Arinin Rosencranz, Environmental Law and Policy in India:
Cases, Materials and Statutes, (2001), p. 135.
144. A.I.R. 1981 S.C. 344 at p. 355.
145. A.I.R.'1982 S.C. 149.
146. Ibid.
325
• purpose o f providing access to justice to large masses o f people who are
denied their basic human rights and to whom freedom and liberty have no
meaning. ”
In M.C. M ehta Vs Union of India,147 the Supreme Court formulated the ‘doctrine
of absolute liability’ for harm caused by hazardous and inherently dangerous industry
by interpreting the scope o f the power under Article 32 to issue directions or orders,
‘whichever may be appropriate’ in ‘appropriate proceedings’. According to the Court,
this power could be utilized for forging new remedies and fashioning new strategies.148
The new remedy, based on the doctrine o f absolute liability, was later focussed in the
Sludge’s Case,149 when the people in a village suffering from lethal waste left behind
by a group o f chemical industries were asked to file suits in form a pauperis and the
State Government was directed not to oppose the application for leave to sue in forma
pauperis.l5°
No doubt the polluter is responsible for compensating and repairing the damage
caused by his omission. This is the quintessence o f the ‘polluter pays principle’. Absolute
liability o f hazardous and inherently dangerous industry is the high water mark o f the
development o f polluter pays principle. Despite its delenent impact on potential polluters,
the doctrine is limited in the sense that is it can be applied only at the remedial stage,
i.e., after pollution has taken place. On the other hand, the precautionary principle
emphasized by the Rio Declaration on Environm ent and Development, signifies a
preventive approach. It states :
“In order to protect the environment, the precautionary approach shall be
widely applied by states according to (heir capabilities. Where there are
threats o f serious or irreversible damage, lack offull scientific certainty shall
not be used as a reason fo r postponing cost effective measures to prevent
147. A.I.R. 1987 S.C. 1086.

148. Ibid at p. 1089.
149. Indian Council for Hnviro-I ,cgal Action Vs Union oflndia, A. I. R. 1996 S.C. 1446 at p. 1468.
150. Ibid.
326
environmental degradation. ”15'
Polluter Pays Principle and the Supreme Court of India :
Rapid and unprecedented industrial development has brought, in its wake, myriad
environmental and pernicious health problems. Though the industrial and technological
advancements have helped to improve food product, raise living standards, solve time
and space problems and control some health related problems : yet they have adversely
affected the natural environment and, thereby, disturbed the ‘balance of n atu re’. The
capability o f self-maintenance and self-regulation o f our ecosystem has been disrupted
by the continuous discharge o f pollutants by the industries and their products. Moreover,
improper treatment and discharge of the industrial waste and its unhygienic disposal has
created a serious problem for biotic and abiotic components of the environm ent.152
During the last 50 years, industries, especially manufacturing industries, nuclear
industry and those using hazardous or ultra hazardous material are the major contributors
to environmental pollution. Industrialists are, by and large, thriving on such pollution
disseminating units. But now, it has been realized that industries are also social units
with rights and duties towards the surrounding community and the consumer. They have
a duty not to harm the health o f the man and nature. It is recognized that pollution is
a form o f waste, and a symptom o f inefficiency in industrial production. Therefore, it
has been thought proper to devise various kinds o f measures to curb or minimize industrial
pollution. The W orld Commission oil Environm ent and Development, in its report,
has suggested that ‘environm ent cost’ o f ‘economic activity’ ‘can be internalized- paid
by the enterprises’.'53 It may be in the form o f investment to prevent the damages, or
to restore unavoidable damages, namely, afforestation, restocking fish, rehabilitation of
man and land, etc., or compensating the victims o f health and property damage. Thus,
151. Principle 15. See also David Freestone 'The Road from Rio : International Law After (he
Earth Summit' in Journal o f Environmental Law. (1994), 193 at pp. 210-215.
152. Satish C. Shastri, ‘ The Polluter Pays principle and the Supreme Court o f India' in Journal o f
the Indian Law Institute, Vol. 42, No. 1, January-March, 2000, p. 108.
153. ‘(9w Common Future', (1987). pp. 220-221 : Report o f the World Commission on environment
and Development.
327
enterprises may be encouraged to invest in preventive, restorative or compensatory
measures. But it was the O rganization o f Economic Cooperation and Development
(OECD), who for the first time, agreed to base their environmental policies on a ‘Polluter
Pays P rin cip le ’154(PPP) and it was recommended by the World Commission on
Environment and Development, as an ''essentially economic efficiency measure to
internalize environmental costs'. ‘Polluter Pays Principle’(PPP) which was initially
recognized as one o f the economic and administrative measures to restrain and contain
the pollution problem, has recently been adopted as a strong legal measure to minimize
environmental pollution.
The Supreme Court o f India, inexplicitly, applied the principle in the case o f M.C.
M ehta Vs Union of India,155 in the year 1986. It was declared by the Court that :
"We have to evolve new principles and lay down new norms, which would
adequately deal with the new problems which arise in a highly industrialized
economy’’156
The significance of this judgement lies in the Court’s formulation of the principle
of the measure o f liability of industry engaged in ‘hazardous or inherently dangerous
activities.’ Such measure must be correlated to the magnitude and capacity of the enterprise.
Secondly, the Court directed the industry either to shift form the present location or evolve
a green belt around it as a condition precedent to restart the industry. Further, the industry
was asked to deposit a sum of Rs. 20 lakhs in a bank and a guarantee o f Rs. 15 lakhs with
the Court for compensation to be paid to one who can prove before the Court of law that
he suffered because o f the oleum gas leakage from the Shriram Food and Fertilizer
Corporation. Thus, an innovative remedy was evolved by the Supreme Court o f India in
this case which was indirect recognition and application o f the ‘Polluter Pays Principles’
154. G u id in g Prin ciples C on cern in g International E c o n o m ic A sp e cts o f Environm ental P o lic ie s :

C ou n cil R ecom m en dation s C (7 2 ) 128 (1 9 7 2 ), as cited in Salish Ch. Shastri, 'The Polluter
Pays Principle and The Supreme Court ofIndia in Journal o f the Indian Law Institute, V ol.
42, N o . 1, January-M arch, (2 0 0 0 ), p. 108.
155. A .I.R . 1987 S.C. 1086.
156. Ibid at p. 1099, p er C h ie f Justice B hagw ati.
328
The ‘Polluter Pays Principle’ was for the first lime, applied and defined in the
case of Indian Council for Enviro-Legal Action Vs Union of India.157 It was declared
by the Court that redemption of the damaged environment is a part of the process of
sustainable development and, as such, polluter is liable to pay the cost of the individual
sufferers, as well as, the cost reversing the damaged ecology. Thus, the ‘Polluter Pays
Principle’ means the absolute liability for harm to environment extends not only to
compensate the victims of pollution but also to the cost of restoring the environmental
degradation. Remediation of the damaged environment is part of the process of sustainable
development.158
In this case, five chemical industries were producing H-acid (l-napthol-8-amino,
6-disciphonic acid). An azo dye and untreated toxic sludge was discharged into the
open compound which, in due course of time, flowed through a canal across entire area
and the rain water washed the sludge deep into the bowels of earth. It caused pollution
of river water and underground water upto 70 feet below the ground within a radius
of seven miles of the village Bichhari. It further lefl the fields of this area infertile. As
a result of which, residents of Bichhari and of nearby village had to migrate to other
places. The case was taken up by the Supreme Court of India on a petition from the
Indian Council for Enviro-Legal Action of Udaipur as a public interest petition. The
Court, while making a landmark judgement, kept in mind that any principle adopted by
it must be simple, practical and suited to the conditions prevailing in the country.159
Looking at the widespread ramification of the hazardous or inherently dangerous
activities, persons or the institutions would be held ‘liable absolutely’, though they have
taken all reasonable care while carrying out such activity. The liability to compensate
is two fold; one, to compensate the victims of pollution for inconvenience and health
loss; and the other, to restore the environmental degradation, namely, of the soil,
157. (1996) 2 J.T. (S.C.) 196.

158. Ibid. Quoted with approval in Vellore Citizen's Welfare Forum Vs Union oflndia, A.I.R. 1996
S.C. 2715, 2721.
159. Sal ish C. Shaslri, 'The Polluter Pays Principle and the Supreme Court of India' in Journal of
the Indian Law Institute, Vol. 42, No. 1, January-March, 2000, p. 110.
329
underground water and the vegetation cover o f that area. Such remediation o f damaged
environment is part o f the process o f ‘sustainable developm ent’,1611
The Supreme Court in Vellore Citizen’s Welfare Forum Vs Union of India,161
reiterated and declared in unequivocal terms that the ‘Precautionary Principle’162 and
the ‘Polluter Pays Principle’ are part o f the environmental jurisprudence o f this countiy.
These principles have been accepted as a part o f the law o f the land as Article 21 o f
the Constitution of India guarantees protection o f life and personal liberty.
In Vellore Citizen’s Forum Case, more than 550 tannery units were discharging
untreated effluent, thereby, causing water pollution and land pollution in 59 villages o f
three districts. 467 wells of two districts, which were used for drinking and irrigation
purposes, were polluted. This created acute shortage o f potable water. Looking to such
a grave state o f affairs, the Court ordered for the closure of industries involved in the
tannery business.163
The ‘Polluter Pays Principle’ and the ‘Precautionary Principle’ were accepted
as part o f the legal system in the Sludge’s C ase16'1 and the Vellore Citizen’s Forum
C ase,165 where the Court directed assessment o f the damage to the ecology and
environment and imposed on the polluters the responsibility o f paying compensation.166
Though in the latter case the Supreme Court ordered the closer o f all tanneries in certain
district, which are connected with common effluent treatment plants (CETPs), the
precautionary principle came to be directly applied in M.C. Mehta Vs Union o f India,167
160. Ibid.
161. A .I.R . 1996 S .C . 2715.

162. 'Precautionary Principle' means : ( i ) Environm ental measures by the slate govern m en t and
the statutory authorities must an ticipate, p reven t and attack the cause o f en viron m en tal
d egradation ; ( i i ) W h e re there are threats o f serious and irreversib le dam age, lack o f s c ien tific
certainty should not be used as a reason fo r p ostpon in g measures to preven t en vironm en tal
degradation.
163. Supra n. 1 5 9 a lp p . 111-112.
164. Indian C ou n cil fo r E n viro -lcg a l A c tio n V s U n ion o f India, A .l.R . 1996 S.C . 1446 at p. 1467.
165. V e llo re C itiz e n 's W e lfa re Forum V s U n ion o fln d ia , A .l.R . 1996 S.C . 2715.
166. O n another occasion , com pensation by w a y o f cost fo r restitution o f the en vironm en t and
e c o lo g y w as ordered to b e le v ie d in the case o f d iv ertin g the flo w o f riv e r fo r cco-tourism . S ee
M .C . M eh ta V s K a m al N ath, .(1997) S .C .C . 388 at p. 415.
167. A .i.R . 1997 S .C . 734.
330
for protecting the Taj Mahal from air pollution. Expert studies proved that emissions
from coke/coal based industries in the Taj Trapezium (TTZ) had damaging effect on the
Taj. The Court said :
"The atmospheric pollution in TTZ has to he eliminated at any cost. Not
even one percent chance can be taken when- human life apart - the
preservation o f a prestigious monument like the Taj is involved. "m
The observation o f the Court signifies the need to find an immediate solution to
the tragedy to protect the ‘w onder in m arble’ from further degradation. The Court
continued :
"The onus o fp ro o f is on an industry to show that its operation with the aid
of coke / coal is environmentally benigin. " I69
The Court ruled that industries, identified by the Pollution Control 'Board as
potential polluters, had to change over to natural gas as an industrial fuel and those that
were not in a position to obtain gas connections for any reason should stop functioning
in TTZ and relocate themselves in alternative plots outside the demarcated area within
as stipulated time.'70 International treaties, agreements, conventions and decisions taken
at international conferences have to be incorporated in to the law o f the land by
parliamentary legislation171. However, the Taj decision is an instance o f judicial strategy
o f applying a norm formulated at the international level in to the facts o f the case and
accepting it as part o f the legal system.
2. Balance the Conflicting Values :
Directions were given by courts for disciplining the developmental processes,
keeping in view, the demands o f ecological security and integrity. In one o f the earlier
cases, Rural Litigation Kendra, that posed an environment - development dilemma,172
168. Ibid at p. 761.

169. Ibid at p. 762.
170. Ibid.
171. Article 253 ofth e Constitution o f India.
172. A.I.R. 1985 S.C. 652 and A.I.R. 1988 S.C. 2187. More or less in the same period, the Himachal
331
the Supreme Court gave directions that were necessary to avert an ecological
imbalance, such as, constitution of expert committees to study and suggest
solutions, establishment of a monitoring committee to oversee afforestation
programmes and stoppage of mining operations that had an adverse impact on
ecology. Direction given in Banwasi Seva Ashram Vs State of Uttar Pradesh, 173
included rehabilitation of people who had been displaced due to the implementation
of a development project. Although the Court gave clearance to a thermal power,

plant in an ecologically fragile are, in Dahanu Taluka, an attempt was made at
balancing environmental concerns with developmental issues. 174
3. Protection of Social Environment :
The rights to livelihood and clean environment are of grave concern to the
courts whenever they issue a direction in an environmental case. Labourers engaged
in the asbestos industry were declared to be entitled to medical benefits and
compensation for health hazards which were detected after retirement. 175 Whenever
industries are closed or relocated, labourers losing their jobs and people who are,
thereby, dislocated were directed to be properly rehabilitated. 176 The traditional
rights of tribal people and fisherman are not neglected when courts issue directions
for protection of flora and fauna near sanctuaries or for management of coastal
zones. 177
Pradesh High Court directed in Kinkri Devi Vs State ofHimachal Pradesh (A.I.R. 1988 H.P.4)
that the State Government must examine whether the impugned mining activity in the case
was in tune with maintenance o f a proper balance between ecology and development, p. 9.
173. A.I.R. 1987 S.C. 374. The case also illustrated the Court’s concern in rehabilitation, in as
much as, a monitoring board o f commissioners was constituted, to supervise implementation
o f directions, p. 378.
174. Dahanu Taluka Environment Project Group Vs BSES, (1991) 2 S.C.C. 539 at pp. 547, 548.
175. CERC Vs Union o f India, A.I.R. 1995 S.C. 922 at p. 942.
176. M.C. Mehta Vs Union o f India, (1996) 4 S.C.C. 750 ; Vellore Citizen’s Welfare Forum Vs
Union o f India, (1992) 2 S.C.C. 87 at p. 150.; M.C. Mehta Vs Union o f India, A.I.R. 1997
S.C. 734 at p. 763 (relocation o f industries from Taj Trapezium); Banwasi Seva Ashram Vs
State o f U.P., A.I.R. 1988 S.C. 2187.
177. Pradeep Krishan Vs Union o f India, A.I.R. 1996 S.C. 2140 atp. 2047; Animal and Environment
Legal Defence Fund Vs Union o f India, A.I.R. 1997 S.C. 1071 at p. 1074; S. Jagannath Vs
Union o f India, (1992) 2 S.C.C. 87 at p. 150.
332
4. Filling Gaps in Law and Lacunae in Administration :
In some cases, courts issue direction to fill yawning gaps in existing law, 178 in
others, they may go to the extent o f assuring the government to constitute national and
state regulatory authorities or environmental courts. In most cases, courts 179 have issued
directions to remind statutory authorities o f their responsibility to protect the environment.
Thus, directions were given to local bodies, especially municipal authorities, to remove
garbage and waste and clean towns ’80 and cities. 181 This was done following the decision
in Ratlam , 182 which looked at environmental degradation from the point o f view o f the
law of public nuisance. The courts always wanted pollution control authorities to function
effectively in the spheres allotted to them by law. By entrusting them directly with the
responsibility of studying the state o f the environment and ecology, like identification
of hazardous industry, and asking them to issue notice of closer or relocation o f industries,
courts have moulded these bodies into dynamic independent environment protection
agencies . 183
Being conscious of its constitutional obligations to protect the fundamental rights
o f the citizens o f India, the Supreme Court has issued direction in various types o f cases
relating to protection o f the environment and prevention o f pollution, in order to, ensure
a safe and clean environment along with development and to deal with issues like the
local conditions. In Indian Council for Enviro-Lcgal Action Vs Union o f India, 184 the
Supreme Court felt that such conditions in different parts o f the country being better
known to them, the High Courts would be the appropriate forum to be moved for more
effective implementation and monitoring o f the anti-pollution laws. The Supreme Court
178. Supra n. 175; Samatha Vs State o f A.P., A.I.R. 1997 S.C. 3297.
179. Indian Council for Enviro-Legal Action Vs Union o f India, (1996) 5 S.C.C. 281 at p. 302;
A.I.R. 1996 S.C. 1426 at p. 1489.
180. L.K. Koolwal Vs Slate o f Rajasthan, A.I.R. 1988 RAJ 2.
181. Dr. B.L. Wadehra Vs Union o f India, (1996) 2 S.C.C. 594.
182. Municipal Council, Ratlam Vs Vardhichand, A.I.R. 1980 S.C. 1622.
183. M.C. Mehta Vs Union o f India, (1996) 4 S.C.C. 750; Vellore Citizen’s Welfare Forum Vs
Union o f India, A.I.R. 1996 S.C. 2715.
184. (1996) 5 S.C.C. 2 8 1 at p. 301.
333
said :
“[FJor a more effective control and monitoring o f such laws, the High Courts
have to shoulder greater responsibilities in tackling such issues, which pertain
to the geographical areas within their respective states. Even in cases which
have ramifications all over India, where general directions are issued by
this Court, more effective implementation o f the same, can in a number o f
cases, be effected, i f the High Courts concerned assume the responsibility
o f seeing to the enforcement o f the laws and examine the complaints, mostly
made by the local inhabitants, about the infringement o f the laws and
spreading o f pollution leading to degradation o f ecology. "m
In Vellore Citizen’s Welfare Forum Vs Union of India,186 after issuing various
directions for closure and relocation o f tanneries in Tamil Nadu, the Supreme Court
entrusted the Madras High Court with the responsibility of monitoring matters, as if,
they are part o f a petition to the High Court under Article 226. The notable ‘request’
made by the Supreme Court to the Chief Justice o f the Madras High Court was to
constitute a special bench- a ‘green bench’- to deal with the case and other environmental
matters, as is done in Calcutta, Madhya Pradesh and in some other High Courts.187
The Supreme Court only made a request to the High Court to constitute a ‘green
bench’. However, the rationale o f such request is obviously admission and an approval
o f the need for experienced judicial institutions with requisite environmental expertise,
at the regional and state levels, to deal with environmental and ecological issues o f local
and regional signficance.188
5. Environm ental Awareness and Education :
The directives o f the Supreme Court went to the extent o f spreading environmental
awareness and literacy, as well as, the launching of environmental education not only
185. Ibid.
186. A.I.R.1986 S.C. 2715 at p. 2727.
187. Ibid.
188. M.C. Mehta Vs Union oflndia, A.I.R. 1987 S.C. 965 at pp. 981-982.
334
at school level, but also at the college level. In M.C. Mehta Vs Union of India,189 the
Supreme Court stressed the need for introducing such schemes :
"In order for the human conduct to be in accordance with the prescription
o f law, it is necessary that there should be appropriate awareness about what
the law requires. This should be possible only when steps are taken in the
adequate measure to make people aware o f the indispensable necessity of
their conduct being oriented in accordance with the requirements o f law. 'm
The directions of the Court to All India Radio and Doordarshan, to focus their
programmes on various aspects of the environment, have been immediately complied
with. The Court also required every state government and education board to take steps
for environmental education.'91 It is also to be noted that in tune with these directions,
various authorities have taken up meaningful schemes of environmental education.192
Conservation of Biodiversity :
In the previous part of this Chapter, it has been explained that the growth of P1L
coincides with development of law representing a shill from legal centralism to legal
pluralism193 which denotes people’s empowerment. In more precise terms, it signifies
a shift from legal formalism and ‘neutrality’ of law to institutionalization of informal
justice. Thus, the conservation perspectives focus on people’s participation and initiatives
which are stimulated and strengthened by PIL. In this part will be discussed overall impact
of judicial activism associated with PIL in promotion of conservation of bio diversity.
PIL helps in promotion of conservation of biodiversity in the following ways :194
189. A.I.R. 1992 S.C. 382.
190. Ibid at p. 384.
191. Ibid at p. 385.
192. That the Bar Council oflndia decided to introduce environmental law as a compulsory paper
for legal education at the graduate level, is one o f the most welcome steps in recent times. See
LE (Cir. No. 4/1997) dated, 21, October, 1997, from the Bar Council oflndia to the Registrars
of all Universities imparting legal education, the Deans of Faculties of law of all the Universities
and the Principals o f all the law colleges, (University Law College, Gauhati University, also
received the Circular).
193. Marc Galantcr. 'Justice in Many Rooms • Courts Private Ordering and Indigenous Law' in
19/2 Journal of Legal Pluralism 17(1981).
194. G.S. Tiwari, ‘Conservation of Biodiversity and Techniques of People s Activism ’ in Journal
of the Indian Law Institute, Vol. 43 : 2, p. 199,
335
1. It creates mass awareness and sensitivity towards socio-economic need and
ecological perspective o f bio-diversity conservation ;
2. It is an instrument for effectuation o f rights associated with conservation of
bio diversity. Realizations o f social and economic rights is the essential
objective o f rights litigation represented by PIL.
3. Balancing o f environmental protection and development, thus, formulation
of normative paradigm of sustainable development synthesizing sustainable
use of biodiversity and economic development harmonized with social justice.
Each one o f these aspects will now be discussed in detail.
Creating Mass Awareness anti Sensitivity :
Most o f the environmental litigations are in the nature o f PIL, It arises from a
strong commitment to fulfil a sense o f urgency in preventing environmental degradation,
which has assumed serious magnitude in recent times. Environmental degradation can
be arrested through people’s initiatives only. PIL signifies an innovative technique to
represent people’s initiatives in arresting environmental degradation, a public interest
most universal and common. The purpose o f PIL is to promote the public interest which
mandates that violation of legal or constitutional rights o f a vast majority, who are poor,
ignorant and socially or economically disadvantaged, should not remain unredressed.
The awareness coupled with enthusiastic response form the common people regarding
protection o f environment has assumed the dimension o f a movement which will go a
long way in promoting and sustaining popular support for conservation of biodiversity.
The first and foremost imperative in arresting environmental degradation is to create
universal awareness about the extent and magnitude o f such degradation, its vital linkages
and criticality, in so far as, its integral relationship with existence oflife support systems
is concerned. People’s strategies and initiatives, both social and legal including
development o f rights jurisprudence or enforceable obligations on the part o f the state,
can be formulated only thereafter. In this respect, PIL represents an instrument or catalyst
of change symbolizing change in social altitudes, behavioral values and norms.

336
Highlighting the importance of environm ental education and mass awareness as
basic postulates for environmental protection in general (and conservation o f biodiversity
in particular), the Apex Court in M.C. Mehta ' 95 case, prescribed certain mechanisms to
i
be adopted to spread mass awareness. The Court directed that the cinema halls, touring
cinemas and video parlors would now be given license to run their establishment provided
that they exhibit at least two slides or messages on environment in each show undertaken
by them. The quality o f slides would be such that it not only 'efficiently carry the message
on various aspects o f environment’ but also ‘at once be impressive, striking and leave
an impact on every one who sees the slides'. The Court also issued direction relating
to teaching o f environment in the educational institutions.
Similarly, in an earlier case, 196 the Apex Court urged upon the government of India
to setup an Ecological Sciences Research Group consisting of independent, professionally
competent experts in different branches o f science and technology who would act as an
information bank for the court and the government departments and generate new
information according to the particular requirements o f the court or the concerned
government departments.
The cardinal principle that emerges form these pronouncements is that biodiversity
can primarily be safeguarded by the people who need to be made aware o f its vital
importance and encouraged to evolve indigenous and local initiatives and strategies. The
government efforts can at best strengthen and supplement these measures.
Instrum ent for Effectuation of Rights :
Michael R. Anderson 197 writes :
“Probably more than any other jurisdiction on Earth the Republic o f India
has forested an extensive and innovative jurisprudence on environmental
rights. Fifteen years aj'ter the onset o f public interest litigation, it is now
195. M . C . M e h t a V s U n io n o f l n d i a , A . I . R . 1992 S .C . 38 2 .
196. M . C . M e h ta V s U n io n o f l n d i a , A . I . R . 1987 S .C . 96 5 .
197. M ic h a e l R . A n d e r s o n , ‘Individual Rights to Environmental Protection in India’ in A la n E.

Human Rights Approaches to Environmental
B o y l e and M ic h a e l R . A n d e r s o n (E d it o r s ),
Protection, (1 9 9 8 ), p. 199.
337
common fo r lawyers representing environmental claims to turn in the first
instance to the terminology o f rights rather than the more traditional rules
o f tort and crime. Not only has the Supreme Court ruled that every individual
has a fundamental right to the ‘enjoyment o f pollution free water and air ’,
but it has been w illing to resolve complex matters o f environmental
management according to this test, and has fashioned a series o f innovative
procedural remedies to accompany the new substantive right. Moreover, in
a countiy where the most serious costs o f environmental damage fa ll upon
impoverished and illiterate groups with limited access to the courts, the new
environmental right is championed as a legal gate way to speedy and
inexpensive legal rem edy ............ ”
Since 1985, the Supreme Court and the High Courts have produced at least eighteen
major decisions on environmental rights.198 Because, these judgment reveal much about
the promises and problems of hum an rights approaches to environmental protection,
they merit close attention form both advocates and critics o f environmental rights. The
Indian case reveals how such rights may work in practice, and which types o f theoretical
questions arise in the course of their application. Moreover, since Indian Courts wield
jurisdiction over nearly one sixth o f the world’s population, as well as, some o f the most
threatened ecosystems on the planet, Indian law is o f more than casual interest to the
international community.
Deforestation and colossal loss o f wildlife will lead to large scale o f environmental
degradation and resultant disaster. A dynamic legal system can not allow this to happen
and must devise legal strategies and initiative to enforce protection of environment by
the state. A plethora o f rights and legal principles have been created in the legal system
through PIL to enforce protection o f environment so that the legal order continues to
promote sustainable development infused with equity and justice. The environmental
degradation adversely impacts on bio-physical resources and social conditions. Hence
198. Ibid.
338
integration of biodiversity conservation and sustainable development is a social imperative
in a developing society. The growth of P1L has helped to achieve this objective and is,
thus, part o f democratization o f rights jurisprudence.
Environmental degradation will invariably be caused due to lack o f enforcement
of public duty or non-redressal o f public injuiy. In order to redress such public injury
or enforce public duty preventing environment degradation, the law will have to devise
a mechanism to protect social, collective or ‘diffuse’ rights and interests. PIL offers such
mechanism199 through which the fundamental rights contained in the Constitution and
some o f the unenforceable obligations forming part o f the directive principles o f state
policy, have been creatively, imaginatively and expansively interpreted as sanctuary of
quintessential hum an values. In Indian Council for Enviro-Legal Action Vs Union of
India,200 the Apex Court ruled that failure to carry out their statutory duties by state
authorities will seriously undermine the right to life guaranteed by Article 21 of the
Constitution.
To illustrate, maintenance o f ecological balance and protection o f tribals residing
in or nearby a national park was held to be a public interest. Thus, the legality of impugned
grant o f lease hold rights to some private individuals of certain properties situated in
Nagarhole National Park was successfully assailed as the grant o f lease -hold rights was
in flagrant violation of the Wild Life (Protection) Act, 1972, and the Forest (Conservation)
Act, 1980.201 Where a public park was converted into private nursing home, it was held
to be in contravention o f the relevant statute, and local inhabitants were allowed to assert
their collective right flowing from matters o f public concern and vital interest relating
to protection o f environment, open spaces for recreation, fresh air etc.202
Thus, people’s aspirations and assertiveness spurred by judicial activism have
moulded the environmental policy into a dynamic and vibrant system o f jurisprudence
199. S. P. Gupta V s President o f India, A .l.R . 1982 S.C . 149 at pp. 214-215.
200. J.T. 1996 ( 2 ) S.C. 196 at p. 219.
201. N a g a ra h o le Budakhalla Hakku Sthapana Sam ithi V s Stale, A .l.R . 1997 K A R 288.
202. B an galore M e d ic a l Trust Vs. B.S. M uddappa. A .l.R . 1991 S .C . 1902 at p. 1913.
3 3 9
o f s o c io - e c o n o m ic in te r e s ts tr a n s f o r m e d in to le g a l r ig h ts . S o m e o f th e r ig h ts a re , in fa c t,
s till e m e r g in g a n d , th u s , in f lu id s ta te . I n a d d itio n , s o m e n o r m a tiv e p r in c ip le s o f f a r
r e a c h in g d im e n s io n a r e a ls o e v o lv in g . T h is a s p e c t o f P I L b e in g a n e f f e c tiv e in s tr u m e n t
f o r e f f e c tu a tio n o f c o lle c tiv e r ig h ts w ill n o w b e d is c u s s e d in d e ta il w ith th e h e lp o f
le a d in g c a s e s .
A n a l y s i s o f E n v i r o n m e n t a l R i g h t s a n d P r i n c i p l e s : R i g h t t o W h o l e s o m e
E n v i r o n m e n t
T h e M a n e k a G a n d h i C a s e 203 h e r a l d e d th e e r a o f r i g h t s j u r i s p r u d e n c e s y m b o liz in g
e m e r g e n c e o f n e w a n d p o s itiv e r ig h ts a s a s p e c ts o f f u n d a m e n ta l r ig h ts . T h e b o u n d a r ie s
o f f u n d a m e n ta l r ig h t to lif e a n d p e r s o n a l lib e r ty g u a r a n te e d in A r tic le 2 1 o f th e I n d ia n
C o n s t i t u t i o n w e r e e x p a n d e d to in c lu d e e n v ir o n m e n ta l p r o te c tio n . T h e D e h r a d u n
Q u a r r y i n g 204 c a s e is a p r e c u r s o r o f th is tr e n d . T h e C o u r t, in th is c a s e , w ith o u t e x p lic itly
a r t i c u l a t i n g th is r i g h t , im p l i c i t l y b a s e d its c o m p r e h e n s i v e in te r im o r d e r s o n th e
p r e s u p p o s itio n th a t A r tic le 2 1 h a s a n e n v ir o n m e n ta l d im e n s io n . S o m e o f th e l a t e r c a s e s 205
e s ta b lis h e d th e r e la tio n s h ip m u c h m o r e c le a r ly b y p r o c la im in g th a t A r tic le 2 1 o f th e
C o n s titu tio n e m b r a c e s th e p r o te c tio n a n d p r e s e r v a tio n o f n a t u r e ’s g if ts w ith o u t [ w h ic h ]
lif e c a n n o t b e e n j o y e d 206 a n d th a t e n v ir o n m e n ta l d e g r a d a tio n v io la te s th e f u n d a m e n ta l
r ig h t to l i f e . 207
R i g h t to E c o lo g ic a l S t a b i l i t y :
T h e e v o lu tio n o f in d ig e n o u s la w r e la tin g to m a in te n a n c e o f e c o lo g ic a l b a la n c e
a n d s ta b ility c o m m e n c e d in th e w a k e o f m a s s iv e in d u s tr ia l d e v e lo p m e n t to f u lf il s o c io
e c o n o m ic n e e d s o f v a s t p o p u la tio n a c c e le r a tin g d e p le tio n o f n a tu r a l r e s o u r c e s a n d
r e c e iv e d a f lip a f te r th e S to c id io lm C o n f e r e n c e o n t h e H u m a n E n v i r o n m e n t in 1 9 7 2 .
2 0 3 . M a n e k a G a n d h i V s U n i o n o f l n d i a , A . l .R . 1 9 7 8 S .C . 5 9 7 .
2 0 4 . R u r a l L i t i g a t i o n a n d E n t it le m e n t K e n d r a V s .S t a t e o f U .P ., A . l . R . 1 9 8 5 S .C . 6 5 2 .
2 0 5 . T . D a m o d a r R a o V s M u n ic ip a l C o r p o i a l i o n , H y d e r a b a d , A . l .R . 1 9 8 7 A .P . 1 7 1 ; K in k r i D e v i
V s S l a t e o f H .P ., A . l .R . 1 9 8 8 H .R 4 ; L .K . K o o lv v a ! V s S l a t e o f R a j a s t h a n , A . l .R . 1 9 8 8 R A J 2 .
2 0 6 . T . D a m o d a r R a o V s M u n ic i p a l C o r p o r a t io n , H y d e r a b a d , A . l . R . 1 9 8 7 A .P . 1 7 1 a t p . 1 8 1 .
2 0 7 . K in k r i D e v i V s S t a t e o f H .P ., A . l .R . 1 9 8 8 H .P . 4 a t p . 9 .
340
The Constitution (Forty-Second Amendment) Act, 1976, added Articles 48A and 51 A
which emphasizes protection and improvement o f the natural environment including
forests, lakes, rivers, wild life and other living creatures. It is important to mention here
that both the Articles use the phrase ‘protect ami improve’ which implies that the phrase
appears to contemplate affirm ative governmental action to improve the quality of the
environment and not just to preserve the environment in its degraded form. Section 3
o f the Environment (Protection) act, 1986, contains parliamentary mandate to improve
the environmental quality. The courts are increasingly relying on these directive principles
as complementary to fundamental rights.208 Also, while deciding matters o f ecological
concern the courts will certainly keep in mind these constitutional parameters. Thus, the
Supreme Court observed :209
“Whenever a problem o f ecology is brought before the court, the court is
bound to bear in mind Article 48 A o f the Constitution ........................ and Article
51A(g) .... when the court is called upon to give effect to the Directive
Principle and the fundamental duty, the court is not to shrug its shoulders
and say that priorities are a matter o f policy and so it is a matter fo r the
policy making authority. The least that the court may do is to examine whether
appropriate considerations are borne in mind and irrelevancies excluded. In
appropriate cases, the court may go further but how much further will depend
on the circumstances o f the case. The court may always give necessary
directions. However, the court will not attempt to nicely balance relevant
considerations. When the question involves the nice balancing o f relevant
considerations the court may feel justified in resigning itself to acceptance
o f the decision o f the concerned authority. ”
The paradigm o f ecological stability, which is of paramount importance to human
life, flows form this obligation to ‘protect and improve the natural environm ent’, an
obligation cast both on the government and eveiy citizen. Maintenance of environment
208. M.C. Mehta Vs Union oflndia, A.I.R. 1988 S.C. 1037 at p. 1038.
209. Sachidanand Pandey Vs State o f West Bengal, A.I.R. 1987 S.C. 1109 at p. 1114-15.
341
and ecological balance is an obligation cast upon and Central Government. Uncontrolled
and unregulated exploitation of natural environment causing massive despoliation o f flora
and fauna, affects the ecological balance, and might, therefore, be disastrous to human
life in the long run. Protection and preservation o f natural environment is an investment
in future and helps in maintaining of ‘ecological balance’ and stability. The judicial
approach to ecological stability was discernible for the first time in the I)c lira dun
Q uarrying Case210 as the Court itself observed:211
"This is the first case o f its kind in the country involving issues relating to
environm ent and ecological balance and the questions arising fo r
consideration are o f grave moment and significance not only to the people
residing in the Mussoorie Hill range ........................ but also in their implications tc
the welfare o f the generality o f people living in the country. ”
And further, while delivering reasoned judgem ent on 18, December, 1986, for its
order of 12, March, 1985, in the same case, the Court observed:212
"The natural resources have got to be tapped fo r the purpose o f social
development but one cannot forget at the same time that tapping o f resources
has to be done with requisite attention and care so that ecology and
environment may not be affected in a serious way ” ( emphasis supplied)
And, more specifically, while dealing with the issue o f workers who were rendered
unemployed after the closure o f the limestone quarries and the hardship o f the lessees,
the Court observed : 211
"This would undoubtedly cause hardship to them, but it is a price that has
210. Rural Litigation and Entitlement Kendra Vs State of U.P., A.I.R. 1985 S.C. 652. For the
critical analysis of this see Alice Jacob, ‘Responsible Development and Ecological Balance'
in 27 Journal o f the Indian Law Institute, (1986), p. 483, and M.K. Rainamurthy, ‘Environment
as a Public Interest Case : The Case o f Doon Valley ’ in India s Environment: Crises and
Responses, (1985), p. 241.
211. Rural Litigation and Entitlement Kendra Vs State of U.P., A.I.R. 1985 S.C. 652 at p. 653.
212 Rural Litigation and Entitlement Kendra Vs State of U.P., A.I.R. 1985 S.C. 363.
213. Rural Litigation and Entitlement Kendra Vs Stale of U.P., A.I.R. 1985 S.C. 656.
342
to be paid fo r protecting and safeguarding the right o f the people to live in
healthy environment with m inim al disturbance o f ecological balance
..........................................” ( emphasis supplied)
This linkage between conservation o f bio diversity i.e., preservation o f natural
environment (wild life, forests and other creatures) and ecological stability is the future
direction in which environmental law has to proceed. Thus, in Animal anti Environment
Legal Defence Fund Vs Union of India,214 the Apex Court held that on the promulgation
o f the. Constitution, the right to safeguard forests and wildlife has received constitutional
sanction.215 And, in order, to maintain ecological stability the Court observed that it could
not afford to allow any further shrinkage in the national forest cover.216
In Virender Gaur Vs State of Haryana, 217 while holding that the open lands vested
in the municipality were meant for purposes o f maintaining ecology, the Apex Court
ruled that the word ‘environment’ is of broad spectrum and brings within its ambit
‘hygienic atmosphere and ecological balance ’ 218 It further observed that :219
"Article 21 protects right to life as a fundamental right. Enjoyment o f life
and its attainment including their right to life with human dignity encompasses
within its ambit the protection and preservation o f environment, ecological
balance ........................... hygienic environment is an integral facet o f right to healthy
life .............................. ”
The judicial articulation about right to ecological stability (balance) is clearer. Thus,
ecological degradation is violative o f right to life enshrined in Article 21 o f the
Constitution o f India.220 In other words, right to wholesome environment, an internal
aspect of Article 21, has under gone a dimensional expansion and includes right to
214. J.T. 1997 (3) S.C. 298.

215. Ibid alp. 302.
216. Ibid at p. 306.
217. (1995) 2 S.C.C. 577. This case is not a P1L, bul is being cited because of its importance.
218. Ibid alp. 580.
219. Ibid at pp. 580-81 (emphasis supplied).
220. J.T. 1996 (4) S.C. 263.
343
ecological stability (balance) also.
Right to Livelihood :
Environmental protection in general and conservation o f bio-diversity in particular,
envisages conflict between socio-economic interest o f people impinging on their right
to wholesome environment and ecological balance, on the one hand, and rights o f
livelihood221 oftribals or local inhabitants, on the other. Conservation signifies sustainable
use i.e., controlled, restricted or regulated use of natural resource. This, however, perforce
affects the livelihood patterns o f local people, whose survival depends on various uses
o f forest produce and wildlife. In order to keep them in harmony with natural environment
and to also meet their survival needs, the courts have given recognition to their right
to livelihood.
The process o f balancing the aforementioned conflicting interests has generated
two different responses. Whereas in the Doon Valley Case , 222 the Apex Court though
acknowledging the hardship to the people engaged in limestone quarrying business and
being uprooted accorded precedence to the environment and ecological balance, 223 in
Anihial and Environm ent Legal Defence Fund 224 Case, the Apex Court observed :225
“ While every attempt must be made to preserve the fragile ecology o f the
forest area, and protect the Tiger Reserve, the rights o f the tribals formerly
living in the area to keep body and soul together must also receive proper
consideration. Undoubtedly, every effort should be made to ensure that the
tribals, when resettled, are in a position to earn their livelihood. ”
221. The right to livelihood was recognized by the Supreme Court in Olga Tcllis Vs Bombay
Municipal Corporation, A.I.R. 1986 S.C. 180.
222. Rural Litigation and Entitlement Kendra Vs State o f Uttar Pradesh, A.I.R. 1985 S.C. 652.
223. The Apex Court, in order to, mitigate the hardship to the displaced persons, directed the Stale
o f U.P. to give priority to their claims in other parts o f the Slate thrown open for the quarrying
o f limestone dolomite. The workmen were directed to be rehabilitated in programme o f
forestation and soil conservation to be undertaken in the reclamation o f the area by the Eco-
Task Force o f the Department o f the Environment. Ibid at p. 658.
224. J.T. 1997(3) S.C. 298.
225. Ibid at p. 305 (emphasis supplied).
344
It is clear that the enumeration o f legal right to livelihood has received emphatic
recognition which more or less assures o f the guarantee to earn livelihood. This right
assumes another dimension which has the potential to check government actions
connected with developmental planning and execution with an environmental impact
that threatens to dislocate poor people and disrupt their life-styles. In Banwasi Seva
Ashram Vs State o f Uttar Pradesh,226 the Supreme Court prescribed the detailed safeguards
to protect tribal forest dwellers who were being ousted from their forest land by the
National Thermal Power Corporation Limited (NTPC) for the Rihand Super Thermal
Power Project. The Court permitted the acquisition o f the land only after the NTPC
agreed to provide certain court approved facilities to the ousted forest dwellers.227 During
the course o f its order, the Court accepted the traditional rights o f tribafs who ‘for
generations had been using the jungles around for collecting the requirements for their
livelihood - fruits, vegetables, fodder, flowers, timber, animals by way o f sport and
fuelwood.’228 In two other cases under Article 32, the Court passed interim orders
requiring the state agencies to resettle and rehabilitate tribals who were being displaced
by dams.229
The right to livelihood o f oustees displaced in the wake o f industrial development
causing massive depletion of forests, wildlife and natural resources will bring the entire
gamut o f developmental economics in the sharp focus vis a vis the social parameters
o f development. The future will beckon a serious conflict between prioritization of
competing social and economic interests and values. The interplay o f human rights will
govern the future course o f development, and, thus, the developmental process can not
overlook the interests o f tribals and local people. N or can the problem o f forest
preservation and protection be separated form the life style o f tribals because the two
226. A.I.R. 1987 S.C. 374,

227. Ibid at p. 378.
228. Supra n. 226.
229. Karanjan Jalasay Y.A. S.A.S. Samili Vs Stale of Gujarat, A.i.R. 1987 S.C. 532 and Gramin
Scwa Sanstha Vs Slate of Uttar Pradesh, 1986 (Supp) S.C.C. 578. In all these three cases
neither the right to livelihood nor Article 21 has been explicitly mentioned.
345
are interdependent. Therefore, the approach to preservation o f forests and biodiversity
conservation requires a shift from the dependences on law and executive implementation
to dependence on the conscious and voluntary participation o f the masses .230 This can
only fructify if the survival and dependence needs of local communities and tribals can
be integrated with conservation initiatives and strategies. Therefore, the right to livelihood
o f tribals and local communities will be superimposed on the new developmental and
conservation paradigm in a developing society.
Sustainable D evelopm ent:
In the Doon Valley Case, 231 the Supreme Court reconciled the conflict between
development and conservation and reaffirmed that development is not antithetical to
environment and conservation. Both can co-exist with interplay o f mutually supportive
parameters which will determine the development o f public policy and law in India.
Thus, in Indian Council for Enviro-Legal Action Vs Union of India , 232 the
Supreme Court observed .233
“W hile ...............................the Government has to balance various interests including
economical, ecological, social and cultural. While economic development
should not be allowed to take place at the cost o f ecology or by causing
widespread environmental destruction and violation; at the same time, the
necessity to preserve ecology and environment should not hamper economic
and other developments. Both development and environment must go in hand,
in other words, there should not be development at the cost o f environment
and vice-versa, but there should be development while taking due care and
ensuring the protection o f environm ent ............... in other words, in order to
prevent ecological imbalance and degradation that developmental activity
is sought to he regulated. "
230. G. S. Tiwari, 'Conservation o f Biodiversity and Techniques o f People’s Activism ’ in Journal

o f the Indian Law Institute, Vol. 43 : 2, p. 207.
231. Ibid at pp. 210-212.
232. J.T. 1996 (4) S.C. 263.
233. Ibid at p. 277.
346
The Court accepted that there is a need to have sustainable development.234 And
then in Vellore Citizen’s Welfare Forum Case ,235 the Court held that ‘the traditional
concept that development and ecology are opposed to each other, is no longer
acceptable*,m ‘Sustainable development as a balancing concept between ecology and
development’ is the answer237. In State o f Himachal Pradesh Vs Ganesh Wood Products,238
the Apex Court while discussing the relevance o f environment, ecology and preservation
o f forest yvealth in the matter o f location and regulation o f industry,239 stressed on the
significance o f the concept o f ‘sustainable development’ and ‘in terg en eratio n al
equity ’ .240 The Court made it amply clear that the present generation has no right to
deplete all the existing forests and leave nothing o f the nest and future generations .241
The restrictions on economic and industrial development connected with forest produce,
are to be tempered by considerations o f sustainable use and intergenerational equity,
i.e., requirements o f future generations. Hence, the Court, observed :242
“The obligation o f sustainable development requires that a proper assessment
should be made o f the forest wealth and the establishment o f industries based
on forest produce should not only be restricted accordingly but monitored
closely to ensure that the required balance is not disturbed. ”
Thus, sustainable use, conservation and intergenerational equity are all integrated
to promote sustainable development. The salient principles o f ‘sustainable development’,
as held by the Apex Court in Vellore Citizen’s Welfare Forum are intergenerational
equity, use and conservation o f natural resources, environmental protection, precautionary
234. Ibid.
235. Vellore Citizen's Welfare Forum Vs Union of India, .1.1'. 1996 (7) S.C. 375. See also Consumer
Education and Research Society Vs Union of India, (2000) 2 S.C.C. 599.
236. Ibid at p. 384.
237. Ibid at p.385.
238. J.T. 1995 (6) S.C. 485. This case is not a PIL.
239. See Section 3 (2) o f the Environment (Protection) Act, 1986.
240. Supra n. 238 at 505.
4 241. Ibid at p. 510.
242. Ibid.
347
principle, eradication of poverty etc .243 The precautionary principle, which has been
accepted as part o f the law o f land, means, in the context o f the municipal law, :244
(i) Environmental measures by the state government and the statutory authorities
must anticipate, prevent and attack the causes o f environmental degradation ;
(ii) Where there are threats o f serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measures to prevent
environmental degradation ;
(iii) The ‘onus o f proof’ is on the actor or the developer / industrialists to show
that his action is environmentally benign.
Doctrine of Public T rust :245
This doctrine, based on Professor Joseph Sax’s exposition, is the latest entry in to
the Indian law pertaining to conservation o f forest resources.246 In M.C. Mehta Vs Kamal
Nath , 247 the Apex Court held that the state as a trustee o f all natural resources is under
a legal duty to protect them and that the resources are meant for public use and can not
be converted into private ownership. It is submitted that this doctrine can also be extended
to arrest depletion o f forest wealth because degraded resource may deprive local
inhabitants and tribals o f their life-support base.
In M.I. Builders Private Limited Vs Radhey Shyam Sahu ,248 the Supreme Court
observed :
“Jhandewala Park, the park in question, has been in existence fo r a great
number o f years. It is situ a ted in the heart o f A m inabad a bustling
243. Supra n. 237. See also S. Jagannath Vs Union o f India, JT 1997 (1) S.C. 160 atpp. 212-14;
and M.C. Mehta Vs Kamal Nath, J.T. 1996 (II) S.C. 467.
244. Ibid.
245. M.C. Mehta Vs kamal Nath, J.T. 1996 (1) S.C. 467. The Public Trust Doctrine is elaborately
discussed in Chapter II of this thesis.
246. G.S. Tiwari, ‘Conservation o f Biodiversity and Techniques o f People s Activism' in Journal
o f the-Indian Law Institute, (2001), Vol. 43 : 2, pp. 209-10.
247. J.T. 1996 (1) S.C. 467 at pp. 485 and 491.
248. A.I.R. 1999 S.C. 2468.
348
commercial-cum-residential locality in the city o f Lucknow. The park is o f
historical importance. Because o f the construction o f underground shopping
complex and parking it may still have the appearance o f the park with grass
grown and path laid but it has lost the ingredients o f a park in as much as
no plantation can be grown. Trees can not be planted and rather while making
under ground construction many trees have been cut. Now it is more like a
terrace park. Qualitatively it may still be a park but it is certainly a park
o f different nature. By construction o f underground shopping complex
irreversible changes have been made. It was submitted that the park was
acquired by the State Government in the year 1913 and was given to the
Mahapalika fo r its management. This has not been controverted. Under
Section 114 o f the [Municipal Corporation Act] it is the obligatory duty o f
the Mahpalika to maintain public places, parks and plant trees. By allowing
under ground construction Mahapalika has deprived itself o f its obligatory
duties to maintain the park which con not be perm itted...............Mahapalika
is the trustee fo r the proper management o f the park when true nature o f the
park, as it existed, is destroyed it would be violative o f the doctrine ofpublic
trust as expounded by this Court in Span Resort Case (1997 (I) SCC 388).
Public Trust doctrine is part o f Indian law. ”
Protection of Forests and Wildlife and the Supreme Court of India :
Forests help in maintaining the ecological balance ,249 They render the climate
equable, add to the fertility o f the soil, prevent soil erosion and promote perennial stream
flow in rain-fed rivers. They shelter wild animals, preserve gene pools and protect tribal
people. The Supreme Court took note o f this role in Rural Litigation and Entitlement
Kendra Vs State of Uttar Pradesh .250 Convinced o f the need to stop mining that caused
an ecological imbalance in a forests area, the Court said :
249. V.P. A g a rw a la , F o r e s t s i n I n d ia , (1 9 8 5 ), p. 3; and A .K . Singh, F o r e s t R e s o u r c e s E c o n o m y

a n d E n v i r o n m e n t , (1 9 8 7 ), p. 15, as cited in P. Leclakrishnan, E n v i r o n m e n t a l L a w i n In d ia ,
(1 9 9 9 ), p. 9.
250. A .I.R . 1988 S.C . 2187.
349
“The trees in the forest draw waterfront the bowels o f the earth and release
the same into the atmosphere by the process o f transpiration and the same
is received back by way o f rain as a result o f condensation o f clouds form ed
out o f the atmospheric moisture. Forests thus help the cycle to be completed.
Trees are responsible to purify the air by releasing oxygen in to the
atmosphere through the process o f photosynthesis. It has, therefore, been
rightly said that there is a balance on earth between air, water, soil and
plant. Forests hold up the mountains, cushion the rains and they discipline
the rivers and control the floods. They sustain the springs; they break the
winds; they foster the bulks; they keep the air cool and clean. Forests also
prevent erosion......... ”2SI
In a recent case, State of T ripura Vs Sudhir K um ar R anjan N ath , 252 when a
state regulation on transit o f timber and other forest produce was challenged as violative
o f freedom o f trade and commerce, the Supreme Court did not dismiss the law as a
mere taxing enactment. However, the Court considered it as one to preserve, protect and
promote the forest wealth in the interests o f the nation.
Sustainable Use of Forests : The R ight of Forest Dwellers :
For industrial growth and progress, energy is indispensable; exploitation of resources
available from forest can not be ruled out. The location o f development projects in or
near a forest area raise complex questions, conflict between short-terms benefits and
long term gains, the social impact, rehabilitation of the local people and reforestation
etc. In approving the advent o f a super thermal plant o f National Thermal Power
Corporation Limited (NTPC) in a location that extended to a forest area, the Supreme
Court said in Banwasi Seva A shram Vs State of U.P .253
“Indisputably, forests are a much wanted national asset. On account o f the
depletion thereof ecology has been disturbed; climate has undergone a major
251. Ibid alp. 2198.

252. A.I.R. 1997 S.C.1168.
253. A.I.R. 1987 S.C. 374 at p. 376.
350
change and rains have become scanty. These have long term adverse effects
on national economy as also on the living process. At the same time, we
cannot lose sight o f the fact that fo r industrial growth and also fo r provision
o f improved living facilities there is great demand in this country fo r energy
such as electricity. ..................... ”
A scheme to generate electricity, therefore, is of national importance and can not
be deferred. The Court said the concept o f sustainable development demanded that the
oustees be rehabilitated after examining their rights. While endorsing the project, the
Court gave equal importance to this question and issued various orders for the
determination o f the rights .254 In the second Banwasi Seva Ashram ,255 the Court imposed
more responsibilities on the NTPC to find out alternative plots, render resettlement and
subsistence allowance, give free transportation, reserve jobs and provide facilities of
roads, water supply, health care and electricity.
Eco-Tourism and Forest Protection :
There are different views on the benefits of eco-tourism. While it provides
opportunities for nature lovers to experience its beauty and appreciate its importance,
its promotion also results in polluting and harming the environment.
Eco-tourism was one of the objects o f the project for a biological park, which was
examined in Niyamma Vedi Vs State . 256 Eco-rcstoralion o f degraded locality, scientific
conservation o f flora and fauna, maintenance o f bio-diversity, breeding and enhancement
o f stock of endangered species and provision for facilities of research were the other
objectives. The project was designed after consulting many experts who gave full support
to watching wildlife at close quarters, without interfering with the sanctity of flora and
fauna. The Kerala High Court held that the government’s decision to establish a park
after such consultation was a policy decision which could not to be interfered with.
254. Ibid at pp. 376-378.

255. Banwasi Seva Ashram V s State o f U.P., (1992) 2 S.C.C. 202 at pp. 204-206.
256. A .I.R . 1993 Kf-R 262 at pp. 266. 271.
351
According to the Court, the object o f a biological park, not being a non forest purpose,
prior approval of the Central Government was not necessary.257
In Nagarahoie Budakatta Hakku Sthapana Samithi Vs State of Karnataka,258
the establishment o f a restaurant with boarding and lodging, in the midst o f a National
Park was the main issue. On the basis o f an eighteen year lease from the government,
the lessee, a private company, renovated old buildings for the establishment of the facility.
The Court held that once an area was declared a National Park no one has any right on
or over the land unless it is specifically granted.259 Further, after the 1988 amendment
to the Forest (Conservation) Act, 1980 no forest land or portion could be assigned by
way of a lease or otherwise to any body.260 The Court noted that the expression ‘otherwise’
made a lease or even an easement incapable o f being assigned. The lease being contrary
to laws to both, wildlife and forest conservation, the Court ordered to hand over the
possession o f the building to State Government.261
An artificial deviation o f the flow o f a river in forest land for the purpose of
augmenting facilities of a motel was challenged in M.C. Mehta Vs Kama! Nath .262
Questing prior approval for the lease and imposing on the motel the responsibility of
restoration o f environment and ecology o f the area, the Supreme Court observed :
“Our legal system - based on English Common Law includes the public trust
doctrine as part o f its jurisprudence. The state is the trustee o f all natural
resources, which are by nature meant fo r public use and enjoyment. Public
at large is the beneficiary o f the sea-shore, running waters, air, forests and
ecologically fragile lands. The state as a trustee is under a legal duty to
protect the natural resources. These resources meant fo r public use can not
be converted into private ownership. "263
257. Ibid at p. 267.

258. A.I.R. 1997 KANT 288.
259. The Wild Life (F’rotcction) Act, 1972, Section 20.
260. The Forest (Conservation) Act, 1980, Section 2 (iii).
261. Supra n, 258 at p. 294.
262. (1997) 1 S.C.C. 388.
263. Ibid at p. 413.
352
The Court referred to the struggle between members of the public who would
preserve our rivers, forests, park and open lands in their pristine purity and those charged
with administrative responsibilities who under the pressure o f changing needs o f an
increasingly complex society, find it necessary to encroach to some extent, upon open
lands. In the opinion of the Court, this conflict had to be resolved by the legislature and
not by the courts. If there is a law, the courts can act as an instrument of determining
legislative intent. The Court pointed out :
“/ « the absence o f any legislation, the executive acting under the public trust
doctrine can not abdicate the natural resources and convert them into private
ownership, or fo r commercial use. The aesthetic use and the pristine glory
can not be permitted to be eroded fo r private, commercial or any other use
unless the courts fin d it necessary, in good faith, fo r public good and in
public interest to encroach upon the said resources. "m
On the facts o f the case, the Court found that the bank of the river, which was
part o f protected forest, had been leased out for commercial purpose and held that the
State Government committed a patient breach o f public trust by leasing out the
ecologically fragile laud for a hotel. 265
The formulation and application o f the public trust doctrine in the contest of
protection o f forests and preservation of natural resources, is a land mark in the growth
o f Indian environmental law. Disagreeing with the argument that the lease for a snack
bar and restaurant was necessary for visiting tourists in the reserved forest, the Supreme
Court in Union of India Vs K am ath Holiday Resorts 266 observed :
“All current streams o f thought lead towards protection o f environment and
preservation o f forests wealth. On the other hand there are demands in
2 6 4 . Ib id .
2 6 5 . Ib id .
2 6 6 . ( 1 9 9 6 ) . l S .C .C . 7 7 4 at p. 776.
353
justification o f other use telling on the forests. A balance would have to be
struck in a cool and dispassionate manner ”
The High Water Mark in Forest Protection Measures :
Beginning December, 1996, the Supreme Court issued sweeping directives to
oversee the enforcement o f forest laws across the nation. Assisted by an amicus curiae
the Court froze all wood-based industrial activity, reinforced, the scope of the embargo
on forest exploitation, issued detailed directions for the sustainable use o f forests and
created its own monitoring and implementation machinery through regional and state
level committees. The Supreme Court assumes the role o f a super-administrator,
regulation the felling, use and movement o f timber across the country in the hope of
preserving the nation’s forests.267 The balance between environment and development
is necessarily to be maintained. This idea o f sustainable development had its influence
on the judiciary in interpreting the provisions o f laws relating to the forests.268 Various
dimensions o f this problem came to be examined by Courts. T.N, Godavarman
Thirumulkpad Vs Union of India269 is a remarkable illustration. There are a number
o f orders in the case.270
The Supreme Court o f India issued its first interim directions on 12-12-1996 to
conserve bio diversity o f our forest wealth. The interim directions were issued in a Public
Interest Litigation filed by Shri T.N. Godavarman Thirumulkpad under Article 32 of
the Constitution oflndia vide Writ Petition (Civil) No. 202 o f 1995. The Union o f India
and other State Governments were made respondents. The Writ Petition (Civil) No. 171
o f 1996, was also combined with this petition.271
The Supreme Court Bench o f Justice J.S. Verma and Justice B.N. Kripal passed
267. Shyam D iva n and A rin in R osen cran z , E n v i r o n m e n t a l L a w a n d P o l i c y i n I n d i a : C a s e s ,

M a t e r i a l s a n d S ta tu te s , (2 0 0 1 ), p. 294.
268. P, Lcelakrishnan, E n v i r o n m e n t a l L a w i n I n d i a , (1 9 9 9 ), p. 24.

269. A .I.R . 1997 S.C. 1228.
270. I lere in this C hapter I V o f this thesis, I excerpt from four principal orders dated, 12, Decem ber,
1996 ; 4 M arch 1997 ; 8 M ay, 1997 and 15 January, 1998. S om e o f the latest orders in T .N .
G od avarm an Thirum ulkpad V s U nion o f ln d ia are 17 D ecem ber, 19 99,2000 ( 1 ) S C A L E 71;
13 January 2000, 2000 (1 ) S C A L E 412; and 1 i M a y 2000, 2000 (5 ) S C A L E 125.
271. G .N .S in h a , 'J u d i c i a l I n t e r v e n t i o n t o C o n s e r v e B i o - D i v e r s i t y ' in N a lra j Publisher’s T h e I n d ia n
F o r e s t 'A c t , 1 9 2 7 , (1 9 9 7 -9 8 ), p. xxx iv.
354
orders272 for the protection o f (he forests by prohibiting new felling and movement of
timber. The interim directions issued by the Apex Court have made it mandatory on the
part o f Union o f India and State Governments to take measures to protect forest wealth
and conserve the richness o f floral and faunal bio diversity. The interim directions also
touched upon complex issues concerning interpretation o f the terms ‘forest’ for the
purpose o f the Forest (Conservation) Act, 1980, and the policy pronouncements of the
Government of India as contained in the National Forest Policy 1988.273
The Supreme Court observed274 that the Forest (Conservation) Act, 1980, was
enacted witli a view to check further deforestation which ultimately results in ecological
imbalance; and therefore, the provisions made, therein, for the conservation o f forests
and for matters connected therewith, must apply to all forests irrespective o f the nature
o f ownership or classification thereof, The word ‘forest’ must be understood according
to its dictionary meaning. This description covers all statutorily recognized forests,
whether designated as reserved, protected or otherwise for the purpose o f Section 2(1)
o f the Forest (Conservation) Act. The term ‘forest land’ occurring in Section 2, will not
only include ‘forest’ as understood in the dictionaiy sense, but also any area recorded
as forest in the Government record irrespective o f the ownership, This is how it has to
be understood for the purpose of Section 2 of the Act. The provisions enacted in the
Forest (Conservation) Act, 1980, for the conservation of forests and the matters connected
therewith must apply clearly to all forests so understood irrespective of the ownership
or classification thereof. This aspect has been made abundantly clear in the decisions
of this Court in Ambica Quarry Works and Others Vs State of Gujarat and Other [1987
(1) SCC 213], Rural Litigation and Entitlement Kendra Vs State o f U.P. [1989 suppl.
(1) SCC 504], and recently in the order dated 29th November, 1996, in Writ Petition
272. Ibid.
273. India is one o f the few countries which has a forest policy since 1894. It was revised in 1952
and again in 1988 and 1998. Main plank o f the forest policy o f 1988 is protection, conservation
and development o f forests. For details see India 1998 o f the Ministry o f Information and
Broadcasting, Government o f India, p. 155.
274. T.N. Godavarman Thirumulkpad Vs Union o f Indian, A.I.R. 1997 S.C. 1228.
355
(Civil) No. 749/95 (Supreme Court Monitoring Committee Vs Mussoorie Dehradun
Development Authority and Others). The earlier decision o f this Court in State of Bihar
Vs Banshi Ram Modi and others (1985 (3) SCC 643J has, therefore, to be understood
in the light o f these subsequent decisions.
There are a num ber o f orders o f the Suprem e C ourt in this case. The
pronouncements o f the Court can be summarized as follows :275
1. In view o f the meaning o f the word ‘forest’- in the Act, it is obvious that
prior approval o f the Central Government is required for any non-forest

activity within the area o f any ‘forest’. In accordance with Section 2 o f the
Act, ail on going activity within any forest in any state throughout the country,
without the prior approval of the Central Government, must cease forthwith.
It is, therefore, clear that the running o f saw mills o f any kind including
veneer or ply-wood mills, and mining o f any mineral are non-forest purposes
and are, therefore, not permissible without prior approval o f the Central
Government. Accordingly, any such activity is prima facie violation o f the
provisions o f the Forest (Conservation) Act, 1980. Every state government
must promptly ensure total cessation o f all such activities forthwith.
2. In addition to the above, in the tropical wet ever-green forests o f Tirap and
Changlang in the State of Arunacha! Pradesh, there would be a complete
ban on felling o f any kind o f trees therein because o f their particular
significance to maintain ecological balance needed to preserve bio-diversity.
All saw mills, veneer mills and ply wood mills in Tirap and Changlang in
Arunachal Pradesh and within a distance o f 100 kms. from its border, in
Assam, should also be closed immediately. The state governments o f
Arunachal Pradesh and Assam must ensure compliance of this direction.
3. The felling o f trees in all forests is to remain suspended except in accordance
with the Working Plans of the State Government, as approved by the Central
Government. In the absence of any Working Plan in any particular stale, such
275. Ibid. See also Sliyuni Divan and Arinin Kosencran/,. Environmental Law and Policy in India
: Cases, Materials and Statutes, (2001), pp. 295-296, and P. Leelakrishnan, Enviivnmental
law itrlndia, (1999). pp. 24-25.
356
as, Arunachal Pradesh, where the permit system exists, the felling under the
permits can be done only by the Forest Department o f the State Government
or the State Forest Corporation.
4. There shall be a complete ban on the movement o f cut trees and timber form
any of the seven north-eastern states to any other slate o f the country either
by rail, road or water-ways. The Indian Railways and the State Governments
are directed to take all measures necessary to ensure strict compliance of
this direction. This ban will not apply to the movement o f certified timber
required for defence or other Government purposes. This ban will also not
affect felling in any private plantation comprising o f trees planted in any

area which is not a forest
5. Each State Government should constitute expert committees to identify forest
areas, denuded forests and covered by plantation trees and to assess the
sustainable capacity o f the forest qua saw mills.
6. In the State of Jammu and Kashmir, no private agencies should deal in felled
trees or in timber. No permission should be given for saw mils within a
distance o f eight kilometers from the boundary o f demarcated forest area.
7. In Tamil Nadu, the tribals who are part o f the social forestry programme in
respect o f patta lands other than forests may continue to grow and cut trees
according to the government schemes and in accordance with the law
applicable.
8. Plantations are not allowed to expand further and encroach upon forests by
way o f clearing or otherwise.
The case came back within four months for review of the follow up action as
directed by the Court.276 Interestingly, the Court proceeded to constitute a High Power
Committee to oversee the strict and faithful implementation o f its orders in the North
Eastern region. Directions were given that this Committee should prepare an inventory
o f all timber, whether in transit or lying in mills and to examine whether the use or sale
o f timber or timber products could be permitted through the state forest corporations
276. T.N. Godavarman Thirumulkpad Vs Union oflndia, A .l.R . 1997 S.C. 1233.
357
under its overall supervision. That the collection of minor forest produces, including
bamboo, could be exempted from the ban, is a significant holding of the Court. Unlicensed
saw mills and veneer and ply wood industries in the Slates of Maharashtra and Uttar
Pradesh were directed to be closed. All shade trees foiled in Janmana areas in Tamil
Nadu were ordered to be delivered by the plantations to the State Government. However,
Plantations were permitted to fell fuel trees subject to certain restrictions. No further
clearing in Janmam lands by Plantations was allowed by the Court.
In Sabia Khan Vs State of U.P, 277 the petitioner claimed that the directions issued
in the Forest Conservation Case were not ‘judicial verdicts’ but were ‘ad hoc o rd ers’.
The petitioner submitted that these orders breached the citizen’s fundamental right under
Article 19 (1) (g) to operate saw mills. The Supreme Court rejected the petition with
costs assessed at Rs. 10,000, holding that the petition was an abuse of process.
Applying the principles laid down by the Court in the Forest Conservation Case,278
a Division Bench o f the Bombay High Court in Goa Foundation Vs C onservator of
Forests,279 quashed the permissions granted to the Tata Housing Development Company
to construct a residential complex on a hill to the north of Mandovi river. The High
Court directed Tata to remove all development work and restore the hill to its original
vegetation. While so directing, the Court rejected the developer’s plea that 28 units in
the residential complex has already been sold for Rs. 45 million and that more than Rs.
55 million was spent on the project.
A Public Interest Litigation was filed in the Gauhati High Court by All Barpeta
District Aranyak Gosthi280 to check the destruction o f forests in the district of Barpeta
whereby it was alleged that the office bearers o f Gaon Panchayal and Divisional Forest
Officer o f Rangiya and Goalpara Division, without knowledge and required permit of
the concerned Deputy commissioners, issued licence for opening o f new saw mills. It
277. A.l.R. 1999 S.C. 2284.

278. Supra n. 274.
279. A.l.R. 1999 BOM 177.
280. Ail Barpeta District Aranyak Gosthi Vs Stale o f Assam, Civil Rule No. 5375 o f 1996.
358
was also alleged that the interested parties have already started damaging the forest. The
Single Bench (Justice Meera Sarma) o f the Gauhati High Court on 24-10-1996, passed
an interim order directing the concerned Dy. Commissioner and the Chief Conservator
o f Forests, Assam, to enquire about the matter immediately. The Court further directed
all the concerned respondents to restrain from issuance o f any licence to any shifting
/ transferred / new saw mills within Barpeta district and not to allow any person from
felling trees o f any forestry o f Barpeta district till further order passed by Division Bench
o f the Court.
The Division Bench o f the Gauhati High Court comprising Justice V.K. Khanna
(Chief Justice) and Justice A.K. Patnaik, by its order dated 06-01-1997 , held that ‘in
view o f the orders passed by the Supreme Court281 in Writ Petition (Civil) No 202 o f
1995 we are not inclined to vacate or modify our interim order dated 24-10-1996’.
Aranyaak Nature’s Club, Samannoy Path, Beltola, Guwahati - 28, represented by
its Secretary General, Shri Bibhob Kumar Talukdar, filed a Public Interest Litigation282
in the Gauhati High Court, on 19-12-1989, challenging the State Government’s decision
to (i) lease out fishery mahals in Dibru Soikhowa Wildlife Sanctuary (ii) lease out nine
fisheries in Burachapori Reserved Forest and (iii) illegal settlement of Kochmara Thatch
Mahal.
The petitioner accused the State Government for violation o f Article 48A and
Article 51 A(g) of the Constitution and provisions o f the Wild Life (Protection) Act,
1972, the Forest (Conservation) Act, 1980, and the Environment (Protection) Act, 1986.
The Dibru Soikhowa Wildlife Sanctuary is primarily riverain area with about 640
sq.km, which includes within its limit the merging o f lofty Lohit and Dibang rivers to
form the mighty Brahmaputra. The forest o f Dibru Soikhowa includes moist deciduous
forest, tropical rain forest, tall reed salia swamps and large and small aquatic bodies.
The terrain includes alluvial flood plains o f Brahmaputra. The main attraction of this
281. T.N. Godavarman Thirumulkpad Vs Union ol'India, A.l.R. 1997 S.C. 1228.
282. Civil Rule No. 2035/89.
359
Sanctuary is the presence o f the extremely endangered ‘while winged wood duck’
( Deohah). The Sanctuary is rich in aquatic fauna and avifauna. The habitat o f Dibru
Soikhowa Wild Life Sanctuary attracts large number o f migratory birds.283
The serenity o f the Sanctuary was disturbed as a result o f the State Government’s
decision to lease out fishery mahals inside Dibru Soikhowa. Fact remains that, in view
o f the W.T. message dated, 18-10-1989, issued by the Secretary to the Government of
Assam, Forest Department, to the Divisional Forest Officer, Tinsukia, the Dibru Reserved
Fishery Mahal No. 1 was leased out to one Shri Dinanath Das.284
The petitioner alleged that some fisherman poured poison in Dibru river and also
in the beels where the ‘white winged wood duck’ generally resides.
The petitioner preferred an another writ application in connection and continuation
to the Writ Petition filed in Civil Rule No. 2035/89 after he procured some more
documents in connection with some other settlement of Thatch Mahal and Fishery Mahals
with private individuals inside the Reserved Forests, which he could not procure earlier.
Inspite of several request not to allow any person to collect thatch from Kochmara
Reserved Forest, the Department o f Forests, Govt, of Assam, made a further settlement
o f Kochmara Thatch Mahal with M/S Doss Associate and supply Agencies and allowed
the party to procure 70 lakhs bundle of thatch vide settlement order no FRS 298/89/22,
dated 7-I2-1989.285 .
The Department o f Forest, Govt, of Assam, again settled nine fishery mahals within
Burachapori Reserved Forest with one Shri Dhaniram Das for three years vide settlement
order no. IRS 331/89/19, dated, 14-12-1989.
Alter a series o f orders passed by the Gauhati High Court and before the case
listed for hearing by the High Court on 16-3-1990, the Forest Department (Settlement
283. Information received from Shri Bibhob Kr. Talukdar, Secretary General, Aranyaak Nature’s
Club, Bcltola, Guvvabali-28, and (he petitioner in this PIL.
284. Ibid.
285 Ibid.'
360
Branch), Government of Assam, had to cancel the settlement order of Dibru Soikhowa
Reserved Fishery Mahal No 1 and Kochmara Thatch Mahal with effect from 1st April, 1990.
The Under Secretary to the Government of Assam, Forest Department, vide memo
no. FRS 165/88/pt/l 12, dated, Dispur the 16th March, 1990, informed the Senior
Government Advocate, Assam, Gauhali High Court, that the settlement of Burachapori
Fishery Mahal could not be cancelled as it was not within wild life sanctuary.
Mining in Reserved Forests :
Forests constitute a very importance part o f the ecology. Certain areas are declared
to be reserved forest so as to protect the flora and fauna o f that area and no such activity
should be carried on there which is detrimental to the flora and fauna of the area. Mining
activity is one such activity which adversely affects the reserved forest. Whenever any
case has been brought before the court regarding the operation of mining in the reserved
forest, it has always directed to stop it.
In Tarun Bharat Sangh, Alwar, Vs Union of India,2®6 the petitioner through a
Public Interest Litigation brought to the notice o f the Court that the State Government
o f Rajasthan, though professing to protect the environment by means o f the notifications
and declarations, itself permitting the degradation o f the environment by authorizing
mining operations in the area declared as ‘reserved forest’. In order to protect the
environment and wild life within the protected area, the Supreme Court issued directions
that no mining operation o f whatever nature shall be carried on within the protected
area.
In Kinkri Devi Vs State,287 a public interest litigation was filed in which it was
alleged that the unscientific and uncontrolled quarrying of the limestone has caused
damage to the Shivalik Hills and was imposing danger to the ecology, environment and
inhabitants of the area. The Himachal Pradesh High Court relied on Doon Valley Case288
286. 1992 Supp (2) S.C.C. 750.

287. A.I.R. I988 H.P.4.
288. Rural Litigation and Entitlement Kendra, Dchradun Vs Slate of U.R, A.I.R. 1987 S.C. 363.
361
and pointed out that if a just balance is not struck between development and environment
by proper tapping of natural resources, there will be violation of Articles 14,21, 48A
and 51A(g) of the Constitution. The Court rigidly observed that natural resources have
got to be tapped for the purpose of social development but the tapping has to be done
with care so that ‘ecology and environment’ may not be a Heeled in any serious way.
The natural resources are permanent assets of mankind and are not intended to be
exhausted in one generation. If the industrial growth sought to be achieved by reckless
mining resulting in loss of life, loss of property, loss of amenities like water supply and
creation of ecological imbalance there may ultimately be no real economic growth and
no real prosperity. The Court issued an interim direction to the State Government to
setup a Committee to examine the issue of proper granting of mining lease and the
necessity of granting leases keeping in view the protection of the environment.
Wild Life Protection :
Courts had the opportunity to examine the provisions of the Wild Life Protection
Act, (1972), on more occasions than one. In State of Bihar Vs Murad Alikhan,289 the
question was whether the first class magistrate, before whom a range officer makes a
complaint, could take cognisance of the offence while an investigation by the police is
pending with regard to the same offence. The allegation was that the respondents shot
and skinned an elephant and removed the tusks. The Supreme Court disagreed with the
High Court and held that the magistrate can proceed with the case290 even while the
police investigation is pending, as the law allows the magistrate to lake cognizance of
the case on-complaint by forest officials. The significance of the case lies in the Court’s
observation that the laws on wildlife were the result of the compelling need to restore
the ‘ecological balance’ over turned by human actions. The Court went on :
"The stale to which the ecological balance and the consequent environmental
damage have reached is so alarming that unless immediate, determined and
289. (1988)4 S.C.C. 655.

290. Ibid at p.669.
362
effective steps were taken, the damage might become irreversible. The
preservation o f fa m e and. flora, some species o f which are getting extinct
at an alarming rate, has been a great and urgent necessity fo r the survival
o f humanity and these laws reflect a last ditch battle......... "29>
Tarun Bharat Sangh, Alwar, Vs Union of India292 is an illustration where a mining
licence relating to the area within a sanctuary was challenged as contrary to laws on
forest conservation and wildlife and as a threat to wildlife habitat leading to degradation
o f the ecology. The State Government pleaded that the licence was valid, as the area
was not yet declared as reserved forest. Describing this plea as odd, the Court said that
the State Government allowed mining operations in a protected area and, in turn, allowed
degradation o f environment while they preferred by notifications and declaration to protect
the environment.293 However, as there was some doubt with regard to the limits o f the
area, the Court appointed a committee to identify the protected area and assess the damage
to the environment if mining was carried out in the area. Till the committee submitted
its report, the granting of a licence was prohibited.294
Maintenance of Water Quality and the Supreme Court of India :
The Indian legal system provides four major sources of law for addressing water
pollution problems :295
1. A comprehensive scheme o f administrative regulation through the permit
system of the Water (Prevention and Control o f Pollution) Act, o f 1974 ;
2. Provisions o f the Environment (Protection) Act of 1986, relating to water quality;
3. Public nuisance action against polluters, including municipalities charged with
controlling water pollution ; and
4. The common law right o f riparian owners to unpolluted water.
291. Ibid at p. 662.

292. A.I.R. 1992 S.C. 514.
293. Ibid atp. 516.
294. Ibid at p. 518.
295. Shyarn Divan and Arm in Roscncranz, Environmental Law and Policy in India • Cases,
363
In-addition, the Union Government’s Department of Environment, Forests and Wild
life has developed an action plan for the Prevention of Pollution of the Ganga and a
National River Conservation Plan which is scheduled to be completed in March, 2005.296

The Supreme Court of India and the High Courts have added to the force of these laws
by hearing public interest writ petitions that seek implementation of measures to prevent
water pollution.
The Ganga Pollution Cases are the most significant water pollution cases to date.297
In 1985, M.C. Mehta, an activist Supreme Court advocate, filed a writ petition under
Article 32 of the Constitution.298 Among other things, the petition was directed at the
Kanpur Municipality’s failure to prevent waste water from polluting the Ganga. M.C.
Mehta asked the Court to order governmental authorities and tanneries at Jajmau near
Kanpur to stop polluting the Ganga with sewage and trade effluents.
Considering the large number of respondents (89 in the case, including Union
Government, Chairman of the Central Pollution Control Board and the U.P. Pollution
Control Board and Indian Standard Institute)299 during the preliminary hearing, the Court
directed the issue of notice under Order 1, Rule 8 of the Code of Civil Procedure, 1908,
treating this case as a representative action by publishing the gist of the petition in the
newspapers in circulation in northern India and calling upon all the industrialists and
municipal corporation and town municipal councils having jurisdiction over the areas
through which the river Ganga flows to appear before the Court and to show cause as
to why directions should bot be issued to them asking them not to allow the trade effluents
and sewage into the river without appropriately treating them before discharging them
into the river. Pursuant to the said notice, a large number of industrialists and local bodies
entered appearance before the Court by filing counter affidavits explaining their stand
296. Ibid.
297. Ibid at p. 210 ; M.C. Mehta Vs Union of India, A.I.R. 1988 S.C. 1037 where the Court ruled
against the Kanpur tanneries, the municipalities (A.I.R. 1988 S.C. 1115) and the Calcutta
tanneries [A.I.R. 1997(2) S.C.C.411J.
298. Ibid.
299. Kailash Thakur, Environmental Protection Law and Policy in India, (1999), p. 323.
364
on the issue o f treatment of effluents. The Court bifurcated the iitigation dealing separately
with pollution caused by tanneries and municipalities. The Court, in Mehta l , 300 made
order against the tanneries while, in Mehta II , 301 ruled against municipalities and other
governmental authorities.
In Mehta 1 (Kanpur tannaries),302 Justice Venkataramiah observed :
“This is a public interest litigation. The petitioner who is an active social
worker has file d this petition, interalia, fo r issue o f a writ / order/ direction
in the nature o f mandamus to the respondents ................. restraining them
from letting out the trade effluents into the river Ganga till such time they
p u t up necessary treatment plants fo r treating the trade effluents in order to
arrest the pollution o f water in the said river.......
Water is the most important o f the elements o f nature. River valleys have
been the cradles o f civilization fo rm the beginning o f the world. Aryan
civilization grew around the towns and villages on the banks o f the river
; Ganga. Varanasi which is one o f the cities on the banks o f the river Ganga
is considered to be one o f the oldest human settlements in the world. It is
the popular belief that the river Ganga is the purifier o f all but we are now
led to the situation that action has to be taken to prevent the pollution o f
the water o f the river Ganga since we have reached a stage that any further
pollution o f the river water is likely to lead to a catastrophe. There are today
large towns inhabited by millions o f people on the banks o f the river Ganga.
There are also large industries on its banks. Sewages o f the towns and cities
on the banks o f the river and the trade effluents o f the factories and other
industries are continuously being discharged into the river. It is the complaint
o f the petitioner that neither the government nor the people are giving
300. M.C. Mehta Vs Union of India (Kanpur Tanneries), A.I.R. 1988 S.C. 1037.
301. M.C. Mehta Vs Union of India (Municipalities), A.I.R. 1988 S.C. 1115.
302. A.I.R. 1988 S.C. 1037. For convenience, the opinions of the Court are referred to as Kanpur
Tanneries, Municipalities and Calcutta Tanneries.
365
adequate attention to stop the pollution o f the river Ganga. Steps have,
therefore, to be taken fo r the purpose o f protecting the cleanliness o f the
stream in the river Ganga, which is infact the life sustainer o f a large part
o f norther India. "m
The Court gave specific directions to the tanneries either to setup at least primary
treatment plants (PTP) or to stop their functioning. It asked304 the Central Government,
State Pollution Control Board and the District Magistrate to monitor the enforcement
o f its orders. Assignm ent o f such a watch dbg function to the authorities was
unprecedented. It gave them more awareness and strength for taking up anti pollution
measures.
The Court, further, observed that the closure o f tanneries may bring unemployment,
loss o f revenue, but life , health and ecology have greater importance to the people. Just
like an industry which can not pay minimum wages to its workers can not be allowed
to exist, a tannery which can not setup a primary treatment plant can not be permitted
to continue to be in existence .305
In the Ganga Pollution (Municipalities) Case,306 the Supreme Court upheld the
standing o f the petitioner, a Delhi resident to sue the government agencies whose
prolonged neglect had resulted in serve pollution o f the river. Justice Venkataramiah’s
opinion, in this case, supports the notion o f citizen standing :
“[The petitioner] is a person interested in protecting the lives o f people who
make use o f the water flowing in the river Ganga and his right to maintain
the petition can not he disputed. The nuisance caused by the pollution o f the
river Ganga is a public nuisance, which is wide spread in range and
indiscriminate in its effect and it would not be unreasonable to expect any
303. M.C. Mehta Vs Union of India,, A.l.R. 1988 S.C. 1037.

304. Ibid at pp. 1045, 1046. According to the Court, financial capacity was not a relevant
consideration.
305. Ibid.
306. M.C. Mehta Vs Union oflndia, A.l.R. 1988 S.C. 1115.
366
particular person to take proceedings to stop it as district from the community
at large. The petition has been entertained as a Public Interest Litigation.
On the facts and in the circumstances o f the case we are o f the view that
the petitioner is entitled to move this Court in order to enforce the statutory
provisions which impose duties on the municipal authorities and the Boards
constituted under the Water A ct"307
In the instant case, Justice Vcnkataramiah observed : •10S
“Shri M.C. Mehta, the petitioner herein, drew our attention to the Progress
Report o f the Ganga Action Plan (July 1986 - Januaiy 1987) prepared by
the Industrial Toxicology) Research Centre, Council o f Scientific and Industrial
Research. At page twenty o f the said report the details o f the analysis o f the
Ganga water samples collected during August 1986 to January 1987 from
Uttar Pradesh region are furnished. That report shows that the pollution o f
the water in the river Ganga is o f the highest degree at Kanpur. In the
concluding part o f the said Progress Report it is stated thus : The Ganga
is grossly polluted at Kanpur. All nullahs are discharging the polluted waste
water in to river Ganga. But Jajmau bypass channel, Sismau, Muir Mill,
G olf Club and Gupta Ghat nullahs are discharging huge qualities ofpolluted
waste water. To improve the quality o f the Ganga all major nullahs should
be diverted and treated. Combined treatment should be provided Jar Jaimau
tanneries. Effluent treatment plants should be installed by all polluting
industries. It is needless to say that in the tropical developing countries a
large amount o f misery, sickness and death due to infectious disease arises
out o f water supplies .................................”
T he’Supreme Court fixed the responsibility on the N agar Mahapalika o f Kanpur
and asked it to improve its sewerage system within six months with better interaction
307. Ibid at p. 1126.

308. M.C. Mehta Vs Union of India, A.l.R. 1988 S.C. 1115.
367
with the State Board.309 General directions issued by the Supreme Court in the case are
notable. High Courts were asked not to grant stay310 o f proceedings to prosecute
industrialists and other persons who pollute the water in the river Ganga. In extra ordinary
circumstances, the High Court should dispose o f such cases within two months form the
date o f institution. These directions were particularly significant as the Court said that
they applied mutatis mutandis to all other mahapalikas and municipalities which had
jurisdiction over the areas through which the river Ganga flows. Although, the observation
and directions were related to the pollution o f the river Ganga they had the force of law
in relation to similar cases o f pollution throughout the country. They pointed to the need
for quick prosecution o f criminal proceedings against industrialist, official and other
persons responsible for pollution.
The Supreme Court, in continuation to Kanpur Tanneries311 Case, took up the issue
o f Calcutta tanneries312 which were, discharging untreated noxious and poisonous effluent
in to Ganga river and, thus, polluting the land and the river.
Justice Kuldip Singh observed :
“This petition - public interest - under Article 32 o f the Constitution o f India
was initially directed against the tanneries located in the city o f Kanpur.
This Court by the order dated 22-9-1987 (M.C. Mehta Vs Union o f India
A.I.R. 1988 S.C. 1037) issued various directions in relation to Kanpur
tanneries. While monitoring the said directions, the scope o f the petition was
enlarged and the industries located in various cities on the banks o f River
Ganga were called upon to slop discharging untreated effluent into the river.
In this judgement we are concerned with the tanneries located at Tangra,
Tiljala, Topsia and Pagla Danga the four adjoining areas in the eastern fringe
o f the city o f Calcutta (the Calcutta tanneries). These areas accommodate
309. Ibid at p. 1126.

310. Ibid alp. 1127.
312. M.C. Mehta Vs Union of India, 1997 (2) S.C.C. 411.
368
about 550 tanneries. According to the examination report dated 30-9-1995
by the National Environmental Engineering Research Institute (NEERI),
ninety percent o f the Calcutta tanneries use chrome-based tanning process
while the remaining utilize vegetable tanning process. The present status o f
the four tannery clusters in Calcutta, according to the NEERI Report is as
under
It was observed by the inspection team that no appropriate waste water
drainage and collection systems are available in any o f the tannery clusters.
The untreated waste water flow s through open drains causing serious
environmental, health and hygiene problems. Also, no waste water treatment
facilities exist in any o f the four tannery clusters.
The observations by the NEERI team, regarding the Calcutta tanneries in
the report are as under ;
Tannery units are located in highly congested habitations, offering little or
no scope fo r future expansion, modernization or installation o f effluent
treatment plants (ETPs). Tannery units are located in the thickly populated
residential areas. Surroundings o f the tanneries are extremely unhygienic
due to discharge o f untreated effluents in open drains, stagnation o f waste
water in low-lying areas around the tannery units and accumulation o f solid
waste in tanneries...... ”3n
In the case of M.C. Mehta Vs Union of India (popularly known as Calcutta
Tanneries Case), it was found that the Calcutta tanneries were not co-operating in their
relocation to new complex even after giving clear undertaking in that behalf to the
Supreme Court.
The Court held that even otherwise, these tanneries had been operating in violation
o f the mandatory provisions o f the Water (Prevention and Control of Pollution) Act,
313. Ibid.
369
1974, and Environment (Protection) Act, 1986. The Court applied one o f the essential
principles o f sustainable development i.e., the ‘polluter pays principle’ and accordingly
issued various directions including the direction for unconditional closer o f the tanneries
on 30-9-1997, their relocation, payment o f compensation by them for reversing the
damage to the ecology and for rights and benefits to be made available by them to their
workmen. In view of the comprehensive directions issued for achieving the end result
and the fact that ‘Green Bench’ was already functioning in the Calcutta High Court, the
Supreme Court directed that the further monitoring o f the case was to be done by the
Calcutta High Court. The Supreme Court also imposed the cost o f Rs. 25,000 on the
Calcutta tanneries,314
In M.C. M ehta Vs Union of India (Badklial and Surajkund Lakes),3'5 a public
interest litigation was filed seeking direction from the Court to stop the mining activities
in the vicinity o f touring resorts o f Badklial and Surajkund lakes in Haryana. The Haryana
Pollution Control Board recommended that mining activities within a radius o f 5 km.
from the tourist resorts should be stopped. Similar recommendations were also made by
the National Environmental Engineering Research Institute (NEERI).
The Court observed :
“The Haryana Pollution Control Board (the Board) has notified the ambient
Air Quality Standards by the n o tif cation dated 11-4-1994. The notification
fixes limiting standards ofpollution in respect o f sensitive areas, industrial
areas and residential areas. The standards fo r sensitive areas are more
stringent than the standards prescribed fo r industrial and residential areas.
The Board has recommended that the area o f 5 kms. around the periphery
o f a centre o f tourism be notified as ‘sensitive area'................... We have on
record the inspection Report in respect o f these lakes by the National
Environmental Engineering Research Institute (NEERI) dated 20-4-1996
314. P.S. Jaswal and Nishtha Jaswal, Environmental Law, (1999), p. 132.
3 1 5 . (1997)3 S.C.C. 715.
370
indicating the surroundings, geological features, land use and soil types and
archaeological significance o f the areas surrounding the lakes. According
to the report Surajkund lake impounds water from rain and natural springs.
Badkhal Lake is an impoundment form ed due to the construction o f an earthen
dam. The catchment areas o f these lakes are shown in a figure attached with
the report. The land use and soil types as explained in the report show that
the Badkhal Lake and Surajkund are monsoon fe d water bodies. The natural
drainage pattern o f the surrounding hill areas feed these water bodies during
rainy season. Large scale construction in the vicinity o f these tourist resorts
may disturb the rain water drains which in turn may badly affect the water
level as well as the aquifers which are the source o f ground water. It may
also cause disturbance to the aquifers which are the source o f ground water.
The hydrology o f the area may also be disturbed.
The two expert opinions on the record - by the Centrals Pollution Control
Board and by the NEERI - leave no doubt on our mind that the large-scale
construction activity in the close vicinity o f the two lakes is bound to cause
adverse impact on the local ecology. NEERI has recommended greed belt
at one km. radius all round the two la k e s.............”316
The judgement refers to the ‘precautionary principle’ which makes it mandatory
for the government to anticipate, prevent and attack the cause o f environmental
degradation. The Court concludes : ‘ We have no hesitation in holding that in order to
protect the two lakes from environmental degradation it is necessary to limit the
construction activity in the close vicinity o f the lakes’?'1
The judgement is significant because it recognizes a key environmental concept,
namely, the ‘carrying capacity’ o f an ecosystem. This notion is central to the sustainable
use of resources, as well as, proper management of wildlife. Loading a river with excessive
316. Ibid.
317. Shyani Divan and Arinin Rosencranz, Environmental Law and Policy in India : Cases,
371
pollutants beyond its regenerative or carrying capacity may cause long term damage. To
prevent such harm, source-specific effluent and emission norms are supplemented by
general ambient water and air quality standards. The carrying capacity o f a forest
determines the size o f its animal population. Reducing the size o f a National Park or
permitting logging operations in a forest may reduce the carrying capacity o f the
ecosystem.318
The Madras High Court in Palani Hills Conservation Council Vs Union of
India,319 considered a challenge to a holiday resort which threatened kodaikanal lake
and its environs. The Court directed the State Government to constitute an expert
committee. Recognizing the lake as a priceless and unique feature o f the hill station,
the Committee recommended several measures specific to the hotelier, Sterling Resorts,
and more general steps including setting up a common sewage treatment plant. The Court
directed the State Government to take appropriate measures on the lines recommended
by the Committee.320
Troubled by ‘N ainital, a beautiful b u tterfly ........... tu rn in g into an ugly
c a te rp illa r’,321 the Supreme Court stepped in to save the hill station’s lake from
degradation. Responding to a public interest litigation filed by a member o f the Nainital
Bachao Samiti, the Court appointed a Commission to inspect the town and report on
the grievances. The September, 1994, report supported the petitioner’s case :
“A perusal o f that report shows that on local inspection it was found that
the lake has turned dark green with an oily surface and is now fu ll o f dirt,
human faeces, horse dung, paper-polythene hags and all sorts'of other waste.
Most o f the sewer lines which leak, open into it. The Commissioner also
found that wherever the drains open at the shores o f the lake, big heaps o f
318. Ibid at p. 238.

319. Writ Petition No. 4257 of 1988, Madras High Court, 20, December, 1991.
320. The same citizen’s group thwarted another hotelier in kodaikanal in Pleasant Stay Hotel Vs
Palani Hills Conservation Council, 1995 (6) S.C.C. 127.
321. Ajay Singh Rawat Vs Union of India, 1995 (3) S.C.C. 266, 267.
372
rubble used in construction o f the buildings are collected and these materials
ultimately settle down on the shores o f the lake thereby reducing the length,
depth and width o f the lake, besides polluting the water to a great extent.
It has been mentioned in the report that ecologists feet that if nothing was
done to prevent this siltation then the lake will dry up. ”3n
Accepting the recommendations made by the Commissioner, the Court urged the
authorities to constitute a monitoring committee to implement remedial measures, such
as, preventing sewage from entering the lake, maintaining the drains and restricting
Lakeshore construction.
Groundwater:
In many parts of India, industry, agriculturists and municipalities are increasing
their dependence on groundwater resources. For the user this is an attractive option since
the source is continuous (unlike monsoon-fed rivers and streams), the water is generally
clean and the user need not depend on an external agency for the supply . The rights
to the groundwater attach to the land and hence land owners may draw on the groundwater
and use it as if it were their own private property.323 According to Chhatrapati Singh this
private ownership regime is inequitable because it leaves out all the landless and tribals
who do not enjoy private ownership.324
Since the exploitation o f groundwater has a bearing on the user’s fundamental
right to life under Auricle 21 o f the Constitution, her right to dig bore wells cannot be
restricted by an executive fiat. This right may be restricted or regulated only by an Act
o f the legislature.325
There is no national statute regulating groundwater resources and apart from Gujarat
322. Ibid at p. 268.

323. Singh, '‘Water Rights and Principles o f Water Resources Management, 39(1991), as cited in
324. Ibid.
325. Puttappa H. Taiavar Vs Deputy Commission, A.l.R. 1998 KAR 10.
373
none o f the states have legislated in this field. The Gujarat amendments to the Bombay
Irrigation Act introduced a licencing procedure for sinking tube wells and prohibited the
sinking o f tube wells beyond a depth o f 45 metres.226
Until the Supreme Court judgment in M.C. Mehta Vs Union o f India,227 the Union
Government was of the view that central legislation may not be permissible since ‘Water’
was a state subject under Schedule VII o f the Constitution. Each state would need to
introduce separate legislation to regulate and control groundwater resources and to assist
the states, a model bill was circulated in 1970. The Supreme Court, however, expressed
a prima fa cie view that Article 253 o f the Constitution and the provisions o f the
Environment (Protection) Act o f 1986 (EPA) empowered the Centre to regulate
groundwater exploitation. The Court’s observation were made on an application filed
by M.C. Mehta urging the Central Government to constitute a national authority under
Section 3(3) of the EPA to ensure that ground water resources are managed sustainably.
Noting the recommendations made by the N ational E nvironm ental Engineering
R esearch Institu te, Nagpur, the Supreme Court directed the Union Ministry o f
Environment and Forests to constitute the Central Ground Water Board as an authority
under Section 3 (3) o f the EPA to regulate the indiscriminate exploitation o f underground
water in the country.;
The need for good management o f ground water resources was recognized earlier
by the Kerala High Court in a public interest litigation filed by local islanders seeking
to protect the fresh water resources on the Lakshadweep Islands. The petitioners
apprehended that the government scheme to pump out ground water on the island would
cause saline intrusion in the fresh water table which would in turn, imperil the potable
water supply on the islands. The Kerala High Court commissioned an expert committee
which opposed the government scheme. Recognizing the importance of fresh water to
the islanders and holding that the right to fresh water was an aspect o f the fundamental
right to life, the High Court prohibited the government from implementing the scheme
3 2 6 . S u p ra n. 3 2 3 .
3 2 7 . 1997 ( I I ) S .C .C . 31 2.
374
until it was reviewed and modified by the Union Ministry of Environment and the Ministry
o f Science and Technology.328
Responding to a public interest litigation alleging failure and neglect by the State
in providing safe drinking water to villagers in Mandla district, a Division Bench o f the
Madhya Pradesh High Court directed the State to extend free medical treatment and
compensation to the affected persons. Water drawn from hand pumps sunk by the State
contained excessive fluoride which caused bone diseases, deformities and dental
fluorosis.329
In January, 1996, an expert committee appointed by the Gujarat High Court
submitted its report on pollution caused by Gujarat Fluorochemiclas Ltd. (GLF) in the
Panchmahals district. Several residents o f the villages neighboring GFL complained of
crop failures, health problems and a loss o f mild production. The report ( a model of
sound methodology and clear analysis) records that most water samples drawn from
tubewells indicated fluoride and chloride concentrations exceeding potable water limits.
Prima facie GFL appeared to be responsible for the adverse environmental impact.330
Binani Zinc Limited was directed by the Kerala High Court to supply drinking
water to the affected villagers after test samples drawn from neighboring wells were
found to contain ‘acidic’ water unfit for drinking. The water contained very high
concentration of zinc, cadmium and total dissolved solids which may have been caused
by seepages from the factory.33’
A writ petition was filed by Almitra H. Patel in Civil Rule no 888/1996 against
Union o f India and others concerning the urban environment, interalia, for sanitation
328. Attakoya Thangal Vs Union oflndia, 1990 (I) KER. L.T. 580.
329. Hamid Khan Vs Stale o f Madhya Pradesh, A.l.R. 1997 M.P. 191. There is no indication in
the judgment whether the excessive fluoride was a natural occurrence or caused by pollution.
330. Gupta, Pandey, Rao and Shukla, Report o f the Expert Committee (1996), submitted in
Adarsingh Parmar Vs State o f Gujarat Spl.Civ. Applin. No. 5280 o f 1995, as cited in .Syam
Divan and Armin Rosencranz, Environmental Law and Policy in India : Cases, Materials
and Statutes, (2001), p. 241.
331. Edayar Environment Protection Council Vs Government oflndia. Original Petition No. 4419/
96, Kerala High Court, 10th April 1997.
375
and scientific management of Municipal Solid Wastes (MSW) and Municipal Waste Water
(MWW).
The Supreme Court of India, in its order dated 28-7-1997, directed the Central
Pollution Control Board and all the State Pollution Control Boards to ensure compliance
o f the provisions o f the Water (Prevention and Control o f Pollution) Act, 1974, as
amended, by everyone including the urban local governments.
Considering the urgent need for mitigating the pollution caused by MWW and
MSW, the Central Pollution Control Board issued directions under Section 18 (I) (b)
o f the Water Act for compliance. Following the directions of the Central Pollution Control
Board, Delhi, the Pollution Control Board, Assam, issued notices to all urban local bodies
o f the State for taking care of the MSW and MWW and to apply for consent under the
provisions o f the Water Act of 1974. The Regional Executive Engineer, Head quartered
at Dibrugarh, Sibsagar, Golaghat, Guwahati, Silehar and Bongaigaon were directed to
issue notices to ail urban bodies under their jurisdiction with guidelines for scientific
disposal o f the MSW.312
Dr. B.L. W adehra Vs Union of India,333 is an important judgment where the
Supreme Court highlighted that the residents have constitutional, as well as, statutory
right to live in a clean city. At the same time the Court held that the authorities concerned
(Municipal Corporation of Delhi and New Delhi Municipal Council in this case) have
a mandatory duty to collect and dispose of the garbage / waste generated from various
sources in the city.
In this case, it was pointed out that the river Yamuna, the main source of drinking
water supply, was the free dumping place for untreated sewage and industrial waste.
Apart from air and water pollution, the city o f Delhi, was virtually an open dustbin.
Garbage strewn all over Delhi was a common right. It was further pointed out that in
Delhi most of the hospitals either did not have their own incinerators or they were not
332. Assam Pollution Control Board News letters,! 1997).

3 3 3 . (1 9 9 6 ) 2 S .C .C . 594.
376
o f enough capacity to burn the entire hospital waste. This resulted in the open disposal
o f the hospital waste and this causing environmental degradation.
The Supreme Court observed that the Municipal Corporation of Delhi (MCD) and
the New Delhi Municipal Council (NDMC) had been wholly remiss in the performance
o f their statutory duties. The Court directed them to perform their duties under the law.,
The Court observed :
“Non-availability offunds, inadequacy or inefficiency o f staff, insufficiency
o f machinery etc., cannot be pleaded as grounds fo r non-performance o f their
statutoiy obligations, ”-U7
The Supreme Court issued directions, interalia, to MCD and NDMC to have the
city scavenged and cleaned every day; to the Government and the authorities concerned
to construct and install incinerators in all hospitals / nursing homes with 50 beds and
above under their administrative control ; to All India institute o f Medical Science
(AIIMS), New Delhi, to install sufficient number o f incinerators or equally effective
alternate to disposed o f the hospital waste; to MCD and NDMC to issue notice to all
private hospitals / nursing homes to make their own arrangements for disposal of garbage
and hospital wastes.335
Maintenance of Air Quality and Supreme Court of India :
Stone crushing operations around Delhi caught the attention o f the Supreme Court
on an application under'Article 32 o f the Constitution. M.C Mehta objected to the
quarrying because the dust particles polluted the air and the quarries violated town
planning regulations.336 The Court directed the Central Pollution Control Board to inspect
the plants and verily the allegations.337 On 15th May, 1992, the Court issued a detailed
order fo r the reasons to he recorded and pronounced at a later stage’.m Quarries in
334. Ibid at p. 607. S e e a lso M u n icip a l C ou n cil, Ratlam V s Vardichand, A .I.R . 1980 S.C. 1622.
3 3 5 . Ib id at pp. 607-610.
336. M .C . M eh ta V s U n ion o f In dia (S to n e C rushing C ase), 1992 Supp ( 2 ) S .C .C . 85 and 86.
337. Ib id at p. 87.
338. M .C . M eh ta V s U n ion o f India (S to n e Crushing C a s e), 1992 ( 3 ) S.C .C . 25 6 ,2 5 7 . It is unclear
377
Delhi and in the surrounding areas o f Haryana were told to close down in three months.
Quarry owners operating without licences from the town planning authorities or who
were issued closure orders under Section 31 A o f the Air Act or Section 5 o f the
Environment (Protection) Act of 1986, were directed to forth with cease operations. The
Haryana authorities were asked to allot alternative sites in a new ‘crushing zone’ located
at a suitable distance from the capital. The Supreme Court prefaced it directions with
this observation :
“We are conscious that environm ental changes are the inevitable
consequences o f industrial development in our country, but at the same time
the quality o f environment can not be permitted to be damaged by polluting
air, water and land to such an extent that it becomes a health hazard fo r the
residents o f the area. We are constrained to record that Delhi Development
Authority, Municipal Corporation o f Delhi, Central Pollution Control Board
and Delhi Pollution Control Committee have been wholly remiss in the
perform ance o f their statutory duties and have fa ile d to protect the
environment and control air pollution in the union territory o f Delhi. Utter
disregard to environment has placed Delhi in an unenviable position o f being
the world's third grubbiest, most polluted and unhealthy city as per the study
conducted by the World Health Organization. Needless to say that every
citizen has a right to fresh air and live in pollution free environment. ”m
Pushing the quarry operators away from Delhi and further in to Haiyana was fraught
with danger. Haryana has an abysmal record for protecting bonded labourers working
in stone quarries in the Faridabad district o f the state. A few months earlier, the Supreme
Court in B andhua M ukti M orcha Vs Union of India,340 urged the State to ensure that
2000 quarry workers received better health care, education and other facilities.
Anticipating the orders in the Stone Crushing Case, the Court observed :
whether any reasons followed. If so, the law reports appear to have missed them.
339. Ibid.
340. 1991 (4) S.C.C. 177, 193, 195.
378
“The State o f Haryana must come forward to play its role in a better way.
As already pointed out these are quarries near about the industrial belt o f
Haryana and not fa r away from Delhi. Ecology is not only a local problem
but must be taken to be a problem o f Delhi also. Dust emanating from the
working area in Haryana is bound to affect adversely the Delhi atmosphere.
In fact, i f adequate importance is given to the angle o f pollution the industry
itself has to be regulated or may have to be stopped. ”
The Haryana government permitted the quarry operators to re-locate their operations
in the new ‘crushing zones’ around Pall and Mohabatabad. Predictably, the operators
were quick to despoil the environment around the new sites, forcing M.C. Mehta to
revive the case in the Supreme Court in late 1995. On 20 November, 1995, the Court
directed a team o f scientists and environmental engineers from the Central Pollution
Control Board to inspect the new locations. The report submitted to the Court projected
a dismal picture, The air pollution was intense, chiefly because the dust contaminant
systems, although installed, were not being operated by any o f the quarry owners and
a water shortage prevented the sprinklers from being used. The report revealed that the
mining operations were being conducted haphazardly and warned o f an imminent
ecological disaster. The Supreme Court directed the parties to arrange for the sprinkler
water supply. The quarry owners were granted two months time to install necessary
pollution control devices and the State Government was asked to lay a road to the
quarrying zone besides implementing the suggestions and directions given by the Central
Board.341
Preserving the Taj Mahal :
On the eve o f his retirement, Justice Kuldip singh delivered the Supreme Court
judgement in the Taj Trapezium Case, culminating a long and arduous battle fought by
M.C. Mehata, a conscientious advocate practising at the Bar of the Supreme Court, placed
before the Court the material he had gathered and warned of damage to the Taj Mahal
341. M.C. Mehta Vs Union oflndia (Delhi Stone Crushing Case), 1996 (1) SCALE 29 (SP).
3 7 9
f r o m a ir p o l l u t a n t s . 342 T h e T a j C a s e w a s M e h t a ’s f ir s t te n ta tiv e s te p in th e n a s c e n t f ie ld
o f e n v ir o n m e n ta l l i t i g a t i o n . 343 I n th e f o llo w in g y e a r , h e file d A r tic le 3 2 p e titio n s to c le a n
u p th e G a n g a , 344 r i d D e lh i o f h a z a r d o u s a n d h e a v y i n d u s t r y , 345 c lo s e d o w n a n d r e lo c a te
S h r ia m ’s in d u s tr ia l c o m p le x in th e h e a r t o f th e c a p i t a l 346 a n d r e g u la te a ir p o llu tio n c a u s e d
b y a u to m o b ile s , th e r m a l p o w e r s ta tio n s a n d i n d u s t r i e s . 347 O v e r tim e , e a c h o f th e s e c a s e s
g r e w in to fu ll b lo w n c la s s a c tio n s in v o lv in g s c o r e s o f p a r tie s .
M e h t a ’s c a s e s r o d e o n th e p a s s io n o f th e p r e s id in g ju d g e . T h e S h r ia in G a s L e a k
C a s e w a s th e f ir s t to k ic k o f f u n d e r th e s te w a r d s h ip o f C h ie f J u s tic e B h a g w a ti w h o w a s
a n x io u s to h e lp th e B h o p a l v ic tim s b y a r tic u la tin g th e p r in c ip le s o f m a s s to r t l i a b i l i t y . 348
T h e n e x t o f M e h t a ’s c a s e s to g a in m o m e n tu m w a s th e G a n g a P o llu tio n c a s e w h e r e J u s tic e
V e n k a ta r a m ia h is s u e d a s e r ie s o f o p in io n s to d is c ip lin e th e K a n p u r ta n n e r ie s a n d r ip a r ia n
m u n i c i p a l i t i e s . 349 T r o u b le d b y th e d e te r io r a tin g a i r q u a lity in D e lh i, C h i e f J u s tic e
R a n g a n a th M is r a p u lle d th e M o to r V e h ic le s C a s e o f f th e b a c k b u r n e r in 1 9 9 1 . 350
M .C . M e h t a V s U n io n o f I n i d a . 351 ( P o p u la r ly k n o w n a s T a j M a h a l C a s e ) is y e t
a n o th e r c a s e in w h ic h th e ju d g e m e n t o f th e C o u r t is b a s e d o n th e p r in c ip le o f s u s ta in a b le
d e v e l o p m e n t a n d w h e r e th e C o u r t a p p l i e d ‘ p r e c a u t i o n a r y p r i n c i p l e ’ . T h e ‘T a j
T r a p e z i u m Z o n e ’ r e f e r r e d to b y th e C o u r t is a 1 0 ,4 0 0 s q .k m , tr a p e z iu m - s h a p e d a r e a
c o v e r in g th e f iv e d is tr ic ts o f th e A g r a r e g i o n . 352
3 4 2 . S h y a m D i v a n a n d A r m i n R o s e n c r a n z , E n v ir o n m e n ta l L a w a n d P o lic y in In d ia : C a s e s ,
M a te r ia ls a n d S ta tu te s , ( 2 0 0 1 ) , p . 2 6 1 .
3 4 3 . M . C . M e h t a V s U n i o n o f I n d i a , W r i t P e t i t i o n ( C i v i l ) N o . 1 3 3 8 1 o f 1 9 8 4 .
3 4 4 . M . C . M e h t a V s U n i o n o f I n d i a , W r i t P e t i t i o n ( C i v i l ) N o . 3 7 2 7 o f 1 9 8 5 .
3 4 5 . M . C . M e h t a V s U n i o n o f I n d i a , W r i t P e t i t i o n ( C i v i l ) N o . 4 6 7 7 o f 1 9 8 5 .
3 4 6 . M . C . M e h t a V s U n i o n o f I n d i a , W r i t P e t i t i o n ( C i v i l ) N o . 1 2 7 3 9 o f 1 9 8 5 .
3 4 7 . M . C , M e h t a V s U n i o n o f I n d i a , W r i t P e t i t i o n ( C i v i l ) N o . 1 3 0 2 9 o f 1 9 8 5 .
. 3 4 8 . S e e t h e j u d g m e n t s o f J u s t i c e B h a g w a t i i n M . C . M e h t a V s U n i o n o f I n d i a , A . I . R . . 1 9 8 7 S . C .
9 6 5 a n d A . I . R . 1 9 8 7 S . C . 1 0 8 6 .
3 4 9 . S e e t h e j u d g m e n t s o f J u s t i c e V e n k a t a r a m i a h i n M . C . M e h t a V s U n i o n o f I n d i a , A . I . R 1 9 8 8
S . C . 1 0 3 7 a n d A . I . R . 1 9 8 8 S . C . 1 1 1 5 .
3 5 0 . S e e t h e j u d g m e n t s o f C h i e f J u s t i c e M i s r a i n M . C . M e h t a V s U n i o n o f l n d i a , 1 9 9 1 ( 2 ) S . C . C .
3 5 3 .
3 5 1 . A . I . R . 1 9 9 7 S . C . 7 3 4 ; ( 1 9 9 7 ) 2 S . C . C . 3 5 3 .
3 5 2 . S h y a m D i v a n a n d A r m i n R o s e n c r a n z , E n v ir o n m e n ta l L a w a n d P o lic y in In d ia : C a s e s ,
M a te r ia ls a n d S ta tu te s , ( 2 0 0 1 ) , p . 2 6 1 .
380
According to the petitioner the Taj a monument o f international repute is on its
way to degradation due to atmospheric pollution and it is imperative that preventive
steps are taken and soon, The petitioner has finally sought appropriate directions to the
authorities concerned to take immediate steps to stop air pollution in the Taj Trapezium
Zone (TTZ) and save the Taj.
Justice Kuldip Singh observed : 353
“The Taj, apart from being a cultural heritage is an industry by itself. More
than two million tourists visit the Taj every year. It is a source o f revenue
fo r the country. This court has monitored this petition fo r over three years
with the sole object o f preventing and protecting the Taj from deterioration
and damage due to atmospheric and environmental pollution. It can not be
disputed that the use o f coke / coal by the industries emits pollution in the
ambient air. The objective behind this litigation is to stop the pollution while
encouraging development o f industry. The old concept that development and
ecology can not go together is no longer acceptable. Sustainable development
is the answer. The development o f industry is essential fo r the economy o f
the country, but at the same time the environment and the ecosystem have
to be protected. The pollution created as a consequence o f development must
be commensurate with the carrying capacity o f our ecosystems. ”
The Court followed the path o f ‘sustainable development’ and applied the
‘precautionary principle’ by holding that the environmental measures must anticipate,
prevent and attack the causes o f environmental degradation. Thus, it directed that all the
industries operating in TTZ must use natural gas as a substitute for coke / coal, as an
industrial fuel. The industries which are not in a position to obtain the natural gas
connections for any reason, they must stop functioning with the aid o f coke / coal in
the TTZ and they may relocate themselves as per directions of the Court. The shifting
industries on the relocation in the new industrial estates were to be given the incentives.35'1
353. A.I.R. 1997 S.C. 734.

354. M.C. Mehta Vs Union oflndia, (1997) 2 S.C.C. 353 atpp. 384-385.
381
Pollution of air caused by emission from a factory becomes a cause not only of
nuisance,355 but also o f unhygienic conditions356 o f a locality. In M.R. Pillai Vs Executive
Officer, Pathiyoor Panchayat,357 the petitioner complained that black smoke emitted
from the respondent cashew factory increases his asthma and adversely affected the health
o f all people in the locality and prayed for a mandamus to direct the authorities to enforce
the Environment (Protection) Act, 1986. It was found that the respondent factory had
not obtained consent from the Board under the Water Act and under the Air Act. For
about three years, the factory disobeyed the directions of the Board to increase the
diameter and height of its chimney, plant trees in the property o f the factory and to keep
the surroundings clean. The Court held that the factory should not be allowed to operate
until all the directions were carried out and consent obtained from the Board.
Justice Sankaran Nair o f the Kerala High Court expounds the dangers of air
pollution in M athew Lukose Vs Kerala State Pollution Control Board,358 where the
residents o f Chingavanam organized themselves to confront Travancore Electro Chemicals
Industries. The company manufactured calcium carbide and acetylene block in large
quantities. In addition to the complaints about the slurry which was polluting streams
in the neighborhood, the petitioners claimed that the intense atmospheric pollution was
causing pulmonary disease and ailments. Though seven chimneys spewed carbon di oxide
and sulphur di oxide in to the air, the authorities did little to control the emissions. The
State Board conceded violations by the polluter but pleaded that it was doing its best
in the circumstances. The company drew attention to its earnest efforts and claimed that
raising the chimney heights and installing a Rs 35 lakh 'multiple cyclone guided inlet
dust collector’ had reduced the problem. Holding that the sweep o f Article 21 of the
Constitution includes the right to a healthy environment, the Court granted the company
three months to attain the limits prescribed by the Board. The Board was directed to
355. Krishna Gopal Vs Stale of M.P., [19861 Cri. L.J. 396.

356. M.C. Mehta Vs Union oflndia, A.I.R. 1987 S.C. 1086.
357. A.I.R. 1997 KFR 162.
358. 1990 (2) KBR. L.T. 686.
382
close down the plant if the company failed to achieve these norms. In prescribing the
time frame, the Court recognized that the company had over two years since the filing
o f the petition to eliminate the deficiencies.
Justice N air’s judgment is notable for introducing several features that came to be
accepted by the Supreme Court in later judgments. Among these are the express
articulation of the right to a wholesome environment as a facet of the right to life under
Article 21 ; securing assistance from an amicus curiae : and reference to the emergent
norm o f inter-generational equity. The judge also urged the government to prescribe
ambient air quality standards, ambient noise levels and environment impact assessment
regulations all o f which now appear in the statute book.
For years, the residents of the Bombay Suburb, Ghalkopar suffered very poor air
quality due to burning o f garbage at the city’s garbage dumping ground at Deonar, located
a few kilometres upwind from the Suburb. T hick clouds o f smoke rose from Deonar
and drifted over the residential localities in Ghatkopar, posing a nuisance and health
hazard to the residents. The State Board confirmed that the levels of ambient air quality
exceeded the statutory limits. Considering the provisions of the Air Act, the ambient air
quality and the statutory obligations o f the Municipal Corporation, the High Court issued
comprehensive directions to the respondents to abate the nuisance. The directions included
proper management o f the solid waste disposal site.359
Protection from Pesticide and Radiation :
In Dr. Ashok Vs Union of India,360 the Supreme Court treated a letter addressed
to the Chief Justice o f India as a public interest petition. Dr. Ashok complained that
several widely used insecticides, colour additives and food additives ought to be banned
since they were carcinogenic. Most o f the 40 chemicals complained of were banned in
the U.S.A. The Union Government filed a detailed affidavit explaining the measures it
had taken to prohibit these chemicals or restrict their use. In the judgement, the Court
359. Slianli Park ‘ S orcn to ' C o -o p e ra tiv e H ou sin g S o c iety Ltd. V s M u n icipal C orporation , W rit
Petition N o . 1138 o f f 996. B om bay H igh C ourt. 6th A ugu st, 1996.
360. A .l.R . 1997 S.C. 2298.
383
acknowledged that broad spectrum pesticides upset the ecosystem and possibly caused
cancer. The Court was satisfied with the measure taken by the government in respect o f
the impugned items, but directed an inter-ministerial committee to review the causes of
other chemicals and recommended additional measures in the fixture.36'
Exposure to radio active substances can occur in a variety of ways, most commonly
through leaks from nuclear power plants, mining o f radio active compounds, such as,
uranium and improper disposal or transportation o f radio active wastes. India, is plagued
by all these threats, but by far, the most prevalent threat to human life and the environment
is the decay of India’s atomic energy programme. Not simply limited to one faulty plant,
the entire national programme has been called in to question by activists, journalists and
international NGOs and their governments.
In 1996, a series o f newspaper reports and editorials criticizing the safety record of
the atomic energy programme appeared in the Indian press. The articles referred to a report
prepared by the Atomic Energy Regulatory Board (AERB) listing about 130 safety violations
and defects in various nuclear power plants in India and the statements o f Dr. A
Gopalkrishnan, former Chair o f AERB, expressing his concern at safety features in the
nuclear establishment. The People’s Union for Civil Liberties petitioned the Bombay High
Court demanding disclosure of the AERB report and also seeking appropriate directions
against the respondents to rectify each of the defects. The petitioners asked for an expert
body to investigate whether there were any incidents o f negligence in respect of the nuclear
installation. The respondents resisted disclosure, citing the secrecy provisions under the
Atomic Energy Act of 1962. A Division Bench of the Bombay High Court held for the
respondents. The Court upheld the government’s claim of privilege in respect of the report;
upheld the constitutional validity o f Section 18 of the Atomic Energy Act which enabled
the government to withhold information from the public; and found that the authorities
were sufficiently alive to the safety concerns expressed by the petitioners, having themselves
constituted a committee to review the regulatory framework.362
361. T h e harm ful effe c ts o f pesticides are surveyed in C entre fo r S c ien c e and Environm ent, A .
A garvva! (E d ito r), Homicide by Pesticides, (1 9 9 7 ).
362. P e o p le 's U n ion fo r C iv il L ib erties V s U n ion o f India, W rit Petition N o. 1785 o f 1996, order
384
One widely publicized case decided by the Supreme Court involved imported Irish
butter, which was alleged to have been contaminated by the radio active fallout from
the Chernobyl (USSR) nuclear disaster. Following the example of Shriram, the Court
in the Irish Butter Case,363 appointed a three person committee of experts to determine
whether the butter was sea for human consumption. The expert committee concluded
that the butter was indeed safe. On the basis o f the committee’s report, the Supreme
Court rejected the petitioner’s challenge and permitted distribution o f the imported butter.
The expert committee seemed to rely heavily on the fact that India’s AERB has
stricter standards than most other countries for permissible radioactivity in dairy products.
But no one really knows whether low levels of radioactivity arc in fact harmless, and
there will always be some reputable scientists advising against taking any risk. The Courts,
its experts, the AERB, and the entire scientific community must simply do the best they
can within the limits o f scientific uncertainty.
One of the complicating factors in the Shriram Gas Leak Case was the proliferation
o f expert committees. In the Irish Butter Case, the Bombay High Court had already
consulted the Bhabha Atomic Research Centre and the Secretary o f he AERB.
Radio-Active Contaminated Butter Case :
Dr. Shivrao Shantaram, Wagle and Others
Vs
Union o f India, A.I.R. 1988 S.C.952
Soon after the Chernobyl disaster36'1 when it was realized that the imported milk
and food products particularly form the EEC countries had the possibility of radio active
dated. 30 January, 1997.

363. Dr. Shivrao Shantaram Wagle Vs Union o f India, A.I.R. 1988 S.C. 952.
364. ‘The 1986 Chernobyl Explosion’ had transboundary effect. The explosion was not due to
dropping o f the bomb like that o f Hiroshima, but an accident due to technical default in the
project. The explosion at the Chernobyl Nuclear Reactor, in the former Soviet Republic o f
Ukraine, resulted in radiation deaths o f 31 people and die radio-active material released by
the explosion, drifted, as far as. the United Slates [Jnstiee Ashok A. Desai, Environm ental
Jurisprudence. (2002), p 2 0 0 1.
385
contamination, and so the Bhabha Atomic Reassert Centre took up the mailer with the
respective agencies and advised them to get the representative samples lor radio-active
analysis before releasing them for public distribution in India, it further appears that the
Atomic Energy Regulatory Board which is a statutory body, has set limits for radio activity
for the imported foodstuffs.365
India had imported 7500 Cartons (200 Mt) o f Irish Butter under the EEC grants-
in-aid for Operation Flood Programme for the Greater Bombay Milk Scheme to the
National Dairy Development Board.366 A Writ Petition was filed for prohibiting the
National Dairy Development Board from releasing the butter for public distribution. The
High Court rejected the petition and observed :
“We are satisfied that the best scientific brain available in the country has
applied itself to the question. The question is whether in the product with
which we are concerned here there is radio activity above the permissible
limit. This question has been sought to be answered by the respondents on
the basis o f laboratory tests conducted on their behalf Fixation o f the
permissible limit o f radio activity in a product, naturally, is fo r the scientists
to decide, but the rests themselves are carried on by persons working in the
laboratory, naturally, again under guidance o f the scientists concerned. We
have not found that any defect is disclosed in the material which has been
placed before us in the manner o f testing. We have also not been shown that
any other better method is available. Mr. Setalvad appearing fo r respondent
No. 2 has told us that i f any other method o f sampling is suggested the
respondents w ill w illingly exam ine the sam e and conduct the tests
accordingly. ”m
Thereafter, the case came before the Supreme Court . The Supreme Court,
considering the complicated nature of the matter, thought it appropriate to appoint and
365. Paras Divvan and Parag Diwan, Environmental Management Law and Administration, (1998),
p. 427.
366. Ibid.
367. Ibid at pp. 427-428.
386
expert committee consisting of (i) Professor M.G.K. Menon , (2) Dr. P.K. Iyengar, and
(3) G.V.K. Rao.168
The committee o f experts after due deliberation examined the question in depth
and by its report dated, February, 19, 1988, lias expressed its opinion that the consignment
o f imported butter was safe and harmless for human consumption.
Protection of Wetlands :
Wetlands arc bogs, swamps and marshes. They provide numerous ecosystem
services including water purification, maintaining surface moisture, curbing soil erosion,
reducing the impacts o f flood and droughts and re-charging wells. Wetlands support a
host o f wildlife, such as, birds, fish, reptiles, amphibians and insects. There is not specific
statute regulating wetland use or conversion, leaving the field open to judicial control
on a case to case basis. The pioneering judgement in this field was delivered by Justice
Umesh Chandra Banctjee of the Calcutta High Court, who responded to a petition filed
by PUBLIC, a citizen’s group concerned about the rapid dredging and filling o f the
marshes near Calcutta.-161’
In People United for Better Living in Calcutta (PUBLIC) Vs State of West Bengal,370
Justice Umesh Chandra Banerjee observed :
"Turning attention on to the Calcutta wetlands we fin d that there are 40
species o f algae and 2 species o f fern, 7 species o f monocods and 21 species
o f dicods. Latest datas suggest the presence o f about 155 species o f summer
birds o f which 64 species are resident birds and 91 are migratory. There are
90 species o f winter birds o f which 44 are residents and 46 are migratory
.......... Calcutta wetlands present a unique ecosystem apart form the material
benefit to the society at la rg e ............ Before proceeding further, however,
it is to he noted that India is a contracting party to the Ramsar Convention
368. Ibid.
369. Shyam Divan and Arinin Rosencranz, Environmental Law and Policy in India : Cases,
Materials and Statutes, (2001), pp. 503-504.
370. A.I.R. 1993 CAL 215.
387
an Inter Governmental treaty on Wetlands under which she is obliged to
promote the conservation o f wetlands habitat in her territory ........................ As matter
o f fact, it is in the Directory o f Asian Wetlands and a wetland o f international
im portance - it m eets all accepted criteria fo r identification o f an
internationally important wetland. ...................... When considered as an ecosystem,
the wetlands are useful fo r nutrient recovery and cycling, releasing excess
nitrogen, inactivation o f phosphates, removing toxins. Chemicals, heavy
metals through absorption by plants and also in treating waste water. ........................
There is no manner o f doubt, therefore, that wetlands being a bounty o f
nature do have a significant role to play in the proper development o f the
society- he it from environmental perspective or from economic perspective
............................................................... Therefore, it can not really be assessed to what amount nature‘s
' bounty is requiredfo r the proper maintenance o f environmental equilibrium.
It can not be measured in terms o f requirement and as such, the court o f law
can not, in fact, decry the opinion o f the environmentalist in that direction.
Law courts exist fo r the benefit o f the society . Law Courts exist fo r the
purpose giving redress to the society when called fo r and it must rise above
t
all levels sot that justice is meted out and the society thrives thereunder. I
do not fin d any justiciable reason to disagree with the opinion expressed by
the environmentalists, that wetland should be preserved and no interference
or reclamation should be permitted. ’’
The Court, thus, realizing the importances of the wetlands in the maintenance of
ecological balance, passed an order of injunction restraining the State Respondents from
reclaiming any further wetland and also prohibiting the respondents from granting any
permission to any person whatsoever for the purpose of changing the use of the land
from agricultural to residential or commercial in the area as indicated in the map annexed
to the petition. The State Respondents were further directed to take steps so as to stop
private alienation and if required, by extending the statutory provisions in regard thereto.371
371. Ibid.
388
However, it is to be noted that on 30th November, 1994, Justice Bancrjee modified
his pievious order on an application by the piomoters o f the Woikl Trade Centre.
Reiterating the importance o f wetlands and the need to balance development with
environment, the Court modified the injunction to permit the project.372
In Consumer Action Group Vs Union of India , 373 the Madras High Court
prevented the destruction o f wetlands in the Adyar estuary which were being reclaimed
to erect a memorial to Dr. Ambedkar. The petitioners complained that while they had
no objection to the construction o f a memorial, they objected to the wetlands being
converted into an auditorium and car park. Allowing the petition, the High Court directed
the respondents to restrict construction to the eastern end of the 5 acre plot, restore the
rest of the plot to its original condition and refrain from constructing an auditorium.
The Madras Metropolitan Development Authority was told to preserve about 45 acres
o f low lying wetlands and not permit any construction in the area.
Protection of Heritage :
In Nyamavcdi Vs Government of India,37’1 the Kerala High Court observed :
“It is (he duty o f every citizen to protect and preserve the ancient and historic
monuments fo r future generations. It is a basic source o f study fo r the
archaeologists and are o f national and state importance which can not be
permitted in any way to be interfered with or affected. Even i f there is
possibility o f remotest chance o f being affected we feel it is the duly o f this
Court to extend out jurisdiction to protect and preserve these ancient
monuments. We are o f the view that Niyamavedi the appellant herein has
made out a case fo r the issue of the writ prayed for. ”
Accordingly, the Court issued a direction prohibiting the respondents from
permitting any quarrying operation from Sy. No. 373 o f Marayur village, Devikulam
372. Supra n. 369 at p. 507.

373. 1994 ( I ) MAI). I.J. RHP. 481.
374. W.A. No. 1427 I 1994-B, Kerala High Court. 6!h November, 1995.
389
Taluk, Iddukki District. The Court further directed the respondents to lake appropriate
steps to declare the ‘Sage Cages’ (Muniyarca) o f Marayur village as monuments and
antiquity under the provisions of the Ancient Monuments and Archaeological Sites and
Remains Act o f 1958 and the Ancient Monuments Preservation Act o f 1904 and the
Kerala Ancient Monuments and Archaeological Sites and Remains Act of 1968.
Without specificality articulating the norms, the Court appears to have been guided
by the ‘precautionary principle’, as well as, the principles of sustainable development
and inter-generational equity. These international law norms have been assimilated in
to the domestic regime by the Supreme Court. The precautionary principle requires
government authorities to anticipate the causes o f environmental degradation and shift
the onus of showing that an action is environmentally benign-on the developer. Sustainable
development and intergradational equity require the prudent use o f natural resources so
that economic growth is sustained and the cultural and natural heritage inherited form
the previous generation is preserved intact for the next.375
Responding to a petition field by Bombay Environmental Action Group, the Bombay
High Court directed the Maharashtra government to afford statutory heritage protection
to designated buildings in the Mahabadeshwar region.
“With regard to the Heritage Committee constituted by the State Government
vide the Government Resolution dated 21 July 1998, we are informed that
a meeting o f this committee was held on 9 November, 1998. The Heritage
Committee is directed to finalize the list o f heritage structures and sites (both
natural and man made), including scenic points, walks, rides, etc. within
four months from today. The Heritage Committee shall also within the said
p e r io d fo rm u la te an d fin a liz e the d ra ft H eritage R eg u la tio n s fo r
Mahabaleshwar. Panchgani Region in conformity with the Draft Model
Regulations fo r conservation o f Natural and Manmade Heritage formulated
by the Union Government Is Ministry o f Environment o f Forest and which
375. Shyam Divan and Armin Roscncranz, Environmental Law and P olicy in India : Cases,
M aterials and Statutes , (2001), p. 512.
390
has been circulated to all State Government in 1995. Within one month o f
the receipt o f the said list and draft regulations, the State Government shall
publish and notify the same following the procedure stipulated in Sections
37 and 20 o f the Maharashtra Regional and Town Planning Act, 1966. "m
The Supreme Court has issued directions to the Archaeological Society o f India
(ASI) to protect the monuments in the Fatehpur Sikri area,377 as well as, the tomb of
Mirza Ghalib.378 In Surendra K u m ar Singh Vs State of B ihar,379 the Supreme Court
consider a special leave petition against orders passed by the Patna High Court preventing
stone crushing operations within a distance of 500 m. o f three hills that had been declared
as protected monuments. Dismissing the petitions, the Court directed the State Electricity
Board to aid the petitioners in shifting their operations away from the prohibited zone.
In R ajiv M ankotia Vs the Secretary to the President of India,380 the Supreme Court
delved in to the history and origin o f the Viceregal Lodge at Shimla and issued directions
to preserve the building and prevent its conversion into a hotel. In Ram Sarup Vs State
o f H aryana,381 the Punjab and Haryana High Court examined the provisions o f the
Ancient Monuments and Archaeologicla Sites and Remains Act, 1958, and upheld the
government notification under Section 4 o f the Act declaring an area around Brahm
Sarovar at Kurukshetra to be a controlled area for the purpose o f the Act.
Now, it can be concluded that the development of Environmental Law in the
1990s is largely the story o f India's judiciary responding to the complaints o f its citizens
against environmental degradation and administrative sloth. Probably more than any other
jurisdiction on earth, the Republic o f India has fostered an extensive and innovative
jurisprudence on environmental rights.
3 7 6 . B o m b a y E n v ir o n m e n ta l A c t io n G r o u p V s S ta te o f M a h a ra s h tra , W r it P e titio n N o . 2 7 5 4 o f
19 97 , 18th N o v e m b e r , 1998.
3 7 7 . W a s im A h m e d S a e e d V s U n io n o f In d ia , 1997 ( 5 ) S C A L E 4 5 1 ; 1 9 9 9 (1 ) S C A L E 6 8 3 ; and
1 9 9 9 ( 1 ) S C A L E 68 5 .
3 7 8 . M . C . M e h t a V s A r c h a e o lo g ic a l S u r v e y o f l n d i a , (1 9 9 6 ) 8 S C A L E 11 ( S P ) ; 1997 ( 2 ) S C A L E
25 ( S P ) and 1997 ( 5 ) S C A L E 1 (S P ).
3 7 9 . 1991 S u p p ( 2 ) S .C .C . 6 2 8 .
3 8 0 . 1 9 9 7 ( 4 ) S C A L E 368.
3 8 1 . 1993 P & I I 2 0 4 .

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CHAPTER IV

PUBLIC INTEREST LITIGATION

JUD ICIA L ENVIRONMENTALISM IN INDIA

the role o f the judiciary becomes important.

and biodiversity, excessive concentration o f harmfol chemicals in the ambient atmosphere

a matter o f caution and judicial notice.

the educative function of infusing an awareness o f the massive problems o f environmental

degradation through a series o f illuminating judgments and through judicial activism

it can evolve new jurisprudential techniques o f environmental jurisprudence.

1. What precisely :s the role o f courts in handling cases relating to environmental

2. Whether the technique o f Public Interest Litigation which is of recent origin

has contributed in tackling environmental issues and improving the quality

effective control and prevention of environmental pollution?

4. Whether the courts can be regarded as an effective agency to curb violation

for protecting the environment?

These questions have been answered in the present Chapter.

In a public interest case, the subject mater of litigation is typically a grievance

the concept of ‘the person aggrieved.’

in K. Ramdas Shenoy Vs the Chief Officers, Town Municipal Council, Udipi.*11

from dominant sections o f the community.

Standing for the Poor and Oppressed : Representative Standing :

Significantly, both judges served extra-judicially, on the National Committee on Juridicare,

oppressed to be represented by volunteers may be described as ‘representative

H u ssa in a ra K h ato o n Vs H om e S ecretary , S ta te o f B ih a r,20 the C ourt im plicitly

recognized the standing o f a public spirited lawyer to move a petition on behalf o f 18

allowed a group o f social activists to petition on b eh alf o f exploited governm ent

petitioners have under the liberalized rule o f standing, locus standi to

maintain the present writ petition.espousing the cause o f the workmen. ” 24

S tanding in Cases o f Executive Inaction o r A buse ‘Citizen S tan d in g ’ :

This second modification o f the classical standing doctrine, where a concerned

Ganges,28 fall within this categoiy of citizen standing cases.

prolonged neglect had resulted in severe pollution of the river.

to remove a public hardship.

o f administration in a particular area from the executive’ as ‘creeping jurisdiction’.31

policies- including the need for development, environmental conservation, preserving

jobs, .and protecting substantial business investments - in deciding to close a number o f

the executive, but because o f the non-functioning o f the enforcement agencies to

environment,33 passing of the appropriate orders requiring the implementation o f the

Judiciary’s endeavour for protecting environment is commendable. It has proved

to be most effective instrumentality in protecting environment and containing pollution.35

pollution,38 be it regarding radio-active contam inated butter39 or be it forcing

succinctly form the following passage :

32. Cunninghum, supra n. 16 at pp. 516-517.

be sufficient quantity o f r a in ........................... o f course we are not oblivious

o f the fa c t that natural resources have got to be tapped fo r the purpose o f

intended to be exhausted in one generation. ”41

filed by citizens, non-governmental organizations and environmental groups. Dismayed

a new procedure in the nature o f a ‘continuing m a n d am u s’,42 where a series o f interim

a salutary effect on the w ork cu ltu re and p erfo rm an ce o f th e e n v iro n m e n ta l

This C h a p te r o f my thesis while dealing with the concept o f ‘public in terest

judiciary responding to the complaints o f its citizens against environmental degradation

and administrative sloth.

The dynamism o f an institution is an indication o f its responsiveness and

a mute spectator to contemporary events, it would become a vestigial institution.44

in the world. The authorities responsible fo r p o llu tio n control a nd

environment to the residents o f Delhi. The ambient air is so much polluted

Municipal Corporation o f Delhi (MCD) constituted under the Delhi Municipal

law. It is no doubt correct that rapid industrialization, urbanization and

44. M. C. Mehta, 'Judicial Activism : Unexpected Saviour’ in Natraj Publisher’s Handbook o f

contribution towards environmental degradation but at the same time the

other means to control pollution and protect the environment. ..................... ”

appropriate steps to implement the decisions taken in the said Conference.

hazardous waste, hazardous micro-organisms, the transportation o f toxic chemicals,

the Environment Impact Assessment Regulations o f 1994 provided a forum to non