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I.

INTRODUCTION

JUDICIAL ACTIVISM: CONCEPT

While discussing the meaning of the term judicial activism, it is needed to be elucidated that
judicial activism is not the performance of the function of settling the disputes in accordance with
Constitution or law of the land. It is the adoption of pro-active approach by the judiciary. Judicial
activism reflects the situation when the judiciary comes out of its sphere of traditional rote and
becomes active in its working while laying down the policies and programs to ensure the protection
of rights and liberties of the people which otherwise is within the discretion of the executive and
the legislature. It is not overstepping its areas assigned by the constitutional framework rather it is
in tune with democratic norms. It is not judicial anarchy, judicial over activism and judicial
despotism.1

Judicial activism is a state of mind. It has its genesis in the inactivity and apathy of the legislature
and the executive. It is nothing but the performance of the judicial activities. It is creativity to fill
the gulf between the positive and the normative aspects of law.2

Judicial Activism was considered as one of the characteristics of PIL (Public Interest Litigation)
cases where the court ingresses into the 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. One of such examples of this ingress is the famous Dehradun Quarrying 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 number of limestone quarries in the Mussoorie Hills and to allow
others to continue operating.3

So the judicial activism is the expanded role of judiciary. It encompasses an area of legislative
vacuum in the field of human rights. Justice A.S. Anand holds that judicial activism reinforces the

1
M. M. SEMWAL AND SUNIL KHOSLA, Judicial Activism, The Indian Journal of Political Science , Vol. 69, No. 1
(JAN. - MAR., 2008), pp. 113, Available at, http://www.jstor.org/stable/41856396126 , Last accessed on 28th
March, 2018
2
Id.
3
SHYAM DIWAN& ARMIN ROSEZN CRANZ, Environmental Law and Policy in India, 2nd ed., 147, 2001

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strength of democracy and reaffirms the faith in the rule of law. It would not be in the interest of
the democratic society, if the judiciary shuts its door to the citizen who finds that the legislature is
not responding and the executive is indifferent. It must be seen that the “authorities come out of
the slumber and perform their due role.” It is a bold effort to revitalize the system through the
provision of simplest, fastest and cost free access to man. Being Constitutional courts, the Supreme
Court and High Courts have used this device to a greater extent in the eighties and onwards.4

GREEN BENCHES: INTRODUCTION

There are various examples and rea life scenarios to establish that the executive in India has been
unable to implement the laws to its full achievement. Although there has been framing of efficient
laws there has been a loss in the implementation ranging from loopholes in bureaucracy, red tapism
and favoritism in the executive branch of the government. There have been man instances in which
the money sanctioned has not been able to reach the required allocations within the constituency
and the reasons for this stand on corruption hoarding etc. this is why judiciary has taken the role
of executive in the past few ears and has been an overseeing body to observe the proper
implementation of the schemes and the policies of the government. The rationale provided by the
executive regarding this is the monetary constraints over the executive. Much of the difficulty of
the executive in implementing these laws can perhaps be attributed to resource constraints as well.5

On April 16, 1996, a division bench of the Supreme Court (SC) comprising Justices Kuldip Singh
and S Saghir Ahmed directed the chief justice of the Calcutta High Court to constitute a special
division bench to hear environment-related petitions - and the nation's first green bench was born.
The SC has directed this bench to meet once a week.6

4
SEMWAL, Supra n. 1
5
LAW RESOURCE INDIA, Judicial Activism and Role of Green Benches in India, Available at,
https://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-benches-in-india/, Last
accessed on 29th March,2018
6
INDIAN ENVIRONEMTNAL PORTAL, Green Benches, Available at,
http://www.indiaenvironmentportal.org.in/content/18739/green-benches/, Lasr accessed on 30th March 2018.

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II. JUDICIAL ACTIVISM AND ENVIRONMNETAL ISSUES

There was a structural fault in environmental jurisprudence in the nation after independence since
the environment harms were not looked out for in the first place. The development race and the
poverty elimination became the major target of the government that were being elected. The need
for environmental protection was becoming sore all over the world and thereby the then Indian
PM regarded poverty as the basic reason of pollution instead of large scale industries that were
employing thousands of machines which caused massive pollution. It can be understood by the
statement provided by her -

“On the one hand the rich look askance at our continuing poverty — on the other, they warn us
against their own methods. We do not wish to impoverish the environment any further and yet we
cannot for a moment forget the grim poverty of large numbers of people. Are not poverty and need
the greatest polluters? For instance, unless we are in a position to provide employment and
purchasing power for the daily necessities of the tribal people and those who live in or around our
jungles, we cannot prevent them from combing the forest for food and livelihood; from poaching
and from despoiling the vegetation. When they themselves feel deprived, how can we urge
preservation of animals? How can we speak to those who live in villages and in slums about
keeping the oceans, the rivers and the air clean when their own lives are contaminated at the
source? The environment cannot be improved in conditions of poverty. Nor can poverty be
eradicated without the use of science and technology.”7

And she added:

“The ecological crises should not add to the burdens of the weaker nations by introducing new
considerations in the political and trade policies of rich nations. It would be ironic if the fight
against pollution were to be covered into another business, out of which a few companies,
corporations, or nations would make profit at the cost of the many.”

Thus the statement itself bears the sheer indifference to the government for all the environmental
harms and constraints. Prior to 1972 in India, the environmental damages were being dealt b the
ministeries with no roper funding and working. The functioning was a lacunae and therefore no

7
Supra Note 6

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proper environmental protection plans and policies was able to be implemented. But in 1972, the
twenty-fourth UN General Assembly decided to convene a conference on the human environment
in 1972, and requested a report from each member country on the state of the environment. Due to
the soaring international concern over environmental problems India in its sixth five-year plan
prepared a proper functioning modus operandi for environmental protection which included urban
migration, pollution, and exploitation of natural resources and dealt with the problems of scarcity.
A commission was setup to deal with the environmental problems and large scale and continuing
environmental problems were targeted such as industrial waste, rural to urban migration etc.8

In its efforts to protect the environment, the Supreme Court and the Indian Judiciary in general
have relied on the public trust doctrine, precautionary principle; polluter pays principle, the
doctrine of strict and absolute liability, the exemplary damages principle, the pollution fine
principle and inter-generational equity principle apart from the existing law of the land. Another
guiding principle has been that of adopting a model of sustainable development. The consistent
position adopted by the courts as enunciated in one of its judgments has been that there can neither
be development at the cost of the environment or environment at the cost of development.

Thus, the Supreme Court recognizes the need for development and proper utilization of our natural
resources for the betterment of our society. However, this cannot be done at the expense of the
environment itself. Due to the active participation of the judiciary within the environmental sphere
there was a massive increase in the number of PIL filed relating to the environmental problems.
The PIL became one of the instruments of the people against the atrocities of the fianancially
funded industries that were in direct collaboration with the government. Under this any person
could file a suit without himself being affected on behalf of the victims. A clear example of the
PIL would be the suo moto considering a letter to the court as a PIL against the quarrying in the
Dehradun district which was resulting in large scale pollution.

One of the earliest cases which came to the Supreme Court of India was Municipal Council,
Ratlam, v. Vardhichand.9 Ratlam is a city in the State of Madhya Pradesh in India. Some of the
residents of the municipality filed a complaint before the Sub-Divisional Magistrate alleging that
the municipality is not constructing proper drains and there is stench and stink caused by the

8
Supra Note 4
9
AIR 1980 SC 1622

4
excretion by nearby slum-dwellers and that there was nuisance to the petitioners. The Sub-
Divisional Magistrate directed the municipality to prepare a plan with six months to remove the
nuisance. The order passed by the SDM was approved by the High Court. The Municipality came
in appeal before the Supreme Court of India and contended that it did not have sufficient funds to
carry out the work directed by the SDM. The Supreme Court of India gave directions to the
Municipality to comply with the directions and said that paucity of funds shall not be a defense to
carry out the basic duties by the local authorities.

An extensive number of cases went to the Supreme Court of India to ensure and protect the nature
and condition. It is intriguing to take note of a portion of the choices of the Supreme Court of India
which gave different bearings to help in shielding nature from facilitate debasement. Be that as it
may, for the headings by the Supreme Court in these cases, there would have been substantial scale
deforestation and the air and water would have been contaminated to such a pretended by the
Supreme Court of India in securing the earth can be looked through a portion of its choices.

In M.C. Mehta case, there was a leak of oleum gas from an industrial establishment in Delhi and
then the matter went to the court. Thereby the court expanded the scope of Article 32 and said that
in appropriate cases the court can award compensation to the affected party. And within this the
court applied the principle under the Rylands vs Fletcher and held that the absolute liability would
be there for bringing a hazardous product within the land.

Forest Conservation Law has also been significantly been impacted through another case, Centre
for Environmental Law (WWF) – India v. Union of India,10 concerning national parks and
sanctuaries. While hearing this case, the Supreme Court through one of its interim orders on 13-
11-2000 has restrained all State Governments from de-reserving national parks, sanctuaries and
forests.

It is evident that there is ample of constitutional and legislative provisions on environment


protection in India. But despite of these legislations, rules and regulations, protection and
preservation of the environment is still a pressing issue. Hence there is a need for an efficient
enforcement of the constitutional mandate and the other environmental legislations. A strong

10
(2013) 8 SCC 234

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foundation for environmental jurisprudence in India helped in the protection and preservation of
its environment as well as its people.

III. JUDICIAL RESPONSE TO ENVIRONMENTAL PROBLEMS

The basic assistance that the environment got from the forward looking Indian Judiciary was the
interpretation provided to the Article 21 of the Indian constitution stating that the right to life and
personal liberty includes the right to heath environment and basic natural amenities such as clean
air, water etc. After the propounding of the interpretation of Article 21 Indian judiciary has
provided the nation with well-established principles and doctrines for the protection of the
environment which are as follows –

 Doctrine of Absolute Liability – the Bhopal Gas Tragedy case was the first case that
brought the hazardous effects of the industry on the environment and human life to the
spotlight and it remains a benchmark in India. This was a case under which an industrial
leak resulted in deaths and genetic mutations in thousands of the people living nearby. It
was a clear example of how non-compliance of industrial regulations can damage the
environment and effect the human life. The court although was unable to extract efficient
damages from the industry due to political restraints, came up with the principle of
absolute liability under which if any establishment has brought upon a hazardous
substance within its land permits then it would be responsible for any leak or outburst of
the substance irrespective of the fact that due care and responsibility was taken for the its
protection.
 Polluter Pays Principle – the basic concept behind this principle is that if any establishment
is profiting from the harms caused to the environment then it should pay back for the
restoration or protection of such environment. This principle single handedly requires the
polluters to switch to cleaner and efficient methods of production so that harm is not
caused to the environment. ‘If you make a mess, it’s your duty to clean it up’ – this has
become the fundamental slogan of the principle.11 In Vellore Citizen’s Welfare Forum v.

11
Atisha Sisodiya, The Role of Indian Judiciary in Protection of Environment in India, available at
https://www.lawctopus.com/academike/role-indian-judiciary-protection-environment-india/.

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Union of India12, this principle has been said as fundamental to the concept of sustainable
development.
 Public Trust Doctrine – this very specific doctrine try to protect the lower class of people from
their exploitation through the financially strong multinationals who earlier used to claim that the
land belongs to them and including that the basic amenities are under their control such as air,
water etc. The Public Trust Doctrine primarily rests on the principle that certain resources like air,
water, sea and the forests have such a great importance to people as a whole that it would be wholly
unjustified to make them a subject of private ownership.13
 Right to life and personal liberty – as provided above the judiciary happened to transgress over the
basic interpretation of life and personal liberty by establishing that the right includes the right to
enjoy the environment and its gifts such as clean air and water. In Damodhar Rao v. S. 0.
Municipal Corporation Hyderabad, the court explained that the right includes the right to safe and
clean environment with the support of Articles 48A and 51A(g) and further stated that any
substantial harm to the environment would be the breach of the right guaranteed by the
constitution.
 Compensation to the Victims – since the court held that the right to safe environment is a
fundamental right then anyviolation of such right would attract compensation to the victims and
thus in M.C. Mehta vs Union of India14, court provided that immediate remedial relief would be
granting if the person suffers due to damages to the environment.

12
AIR 1996 SCC 212
13
Supra Note 13.
14
AIR 1987 SC 965.

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IV. PROBLEMS IN PRESENT SCENARIO

The courts has now been dealing with numerous issues of public concern and is now reaching
new heights in the executive sphere which includes the cancelling of licensing of hazardous
pesticides, forming regulations for the establishment of industries in National Capital Region
and requiring the municipal bodies for measuring the plastic use within their territory. In 2012,
the court was anguished and chided upon the central and the state government for continuing
pollution of the river Ganges and Yamuna and stated, “It is important for this court to take this
matter to its logical conclusion and not permit state authorities and its officers to leave it mid-
way particularly when thousands of crores [nearly $2 billion on sewage plants to treat
effluents] have been spent by the union of India and other public bodies.” Importantly, the
empathy of the Court for the common man is reflected in the following statement: “It’s common
man’s money that has been spent and nothing has happened.”15

Further recently the courts have targeted the sand and the mining mafia and formed a
committee to look into the illegal sources of mining within the nation. Another recent
illustration of the court’s activism can be considered from the banning of firecrackers in Delhi
during Diwali due to the rising pollution all over the city. The court has been providing
guidelines to the municipalities of Kanpur and other industrial cities that stand on the banks of
the river for controlling the pollution within the nation. It has also dealt with the case of
providing a legal entity to the rivers and the water bodies in the country for their protection
from pollution and excessive exploitation.

15
Romi Jain, The Indian Supreme Court as Environmental Activist, available at
https://thediplomat.com/2014/01/the-indian-supreme-court-as-environmental-activist/.

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V. CONCLUSION

The NGT is the most consistent and progressive environmental authority in India. Unlike the
Supreme Court, the NGT does not routinely favor infrastructure projects, nor does it cause a
delay in resolving the cases before it. It had redefined the role of environmental experts and
the criteria to select such experts. It has been largely successful in implementing its orders,
which usually relate to staying environmental clearances. The regional green tribunals seem
even more active and aggressive than the NCT in Delhi, as the regional judges are fearless and
have no ambition for national positions. Finally, the NGT seems to have encouraged a number
of lawyers all over India to specialize in environmental law. Thus, judicial activism has given
rise to a very big achievement towards securing the rights and liberties of people.