Judicial interventions in saving the perilous environment in India

Article No: 58 on LinkedIn.

Hon’ble Supreme Court of India has always played a very active role in different cases related to the environment by way of—liberalising the locus standi where public interest is very much involved, enforcing public duties, evolving new principles and doctrines like Sustainable Development, Polluter Pays Principle, Precautionary Principle, Public Trust Doctrine, Absolute Liability, Intergenerational Equity etc., Reversing The Onus of Proof, Epistolary Jurisprudence of treating letters as a Writ Petition, Issuing ‘Continuing Mandamus’, Appointing Socio-Legal Commissions of Inquiry, Monitoring Laws and Judicial orders, Amplifying the scope and ambit of Article 21 ‘Right to life’ that includes Right to a clean and healthy environment, suggesting Alternative Dispute Resolution Mechanisms, suggesting Setting up of Environmental Courts for the speedy disposal of cases, Awarding Compensation in Writs, Directing for Proper Rehabilitation of Workers and Project Affected People and so on…..

The critical milestones that our judiciary has traversed till now in its beautiful journey to protect the precious environment, in brief, are as follows:

Hon’ble Courts have opened the concepts like

1. The concept of Locus Standi with Bavabasi Sewashram, Municipal Counsel Ratlam, Rural Litigation and Entitlement Kendra, Tarun Bhagat, and Ambica Quarry works cases.

2. Purposive Interpretation with Ambica Quarrying case

3. The Precautionary Principle came into existence with the Vellore Citizen welfare case

4. Extended meaning of Forest in Samatha case (even before the Godavarman case)

5. Polluter Pays Principle in Enviro-Legal Action vs Union of India

6. Right to wholesome Environment in Subhash Kumar vs State of Bihar and Virendra Gaur vs State of Haryana cases

7. Doctrine of Public Trust in Span Motels case

8. Absolute Liability Principle in Municipal Council Ratlam vs Vardhichand case

9. Sustainable Development in Goa Foundation Case

10. The Godavarman case is a class in its own right.

Judicial Decisions on Wetlands in India

The country has rich environmental protection jurisprudence available through a series of decisions by various High Courts and the Supreme Court of India, extending to wetlands.

In one of the early cases from the Calcutta High Court in 1992, Hon’ble J. U.C. Banerjee in People United for Better Living In ... v. State of West Bengal And Others,17 held that “in a developing country like India, there shall have to be developed, but that development shall have to be in closest possible harmony with the environment, as otherwise there would be development but no environment, which would result in total devastation, though, however, may not be felt in the present but at some future point of time, but then it would be too late in the day, however, to control and improve the environment.” It was pointed out that there must be a balance between developmental activities and environmental protection. The present case was about protecting wetlands in the eastern fringes of the city of Calcutta, which was declared a Ramsar site. The Court decided the case in favor of the petitioner by staying all developmental activities at the sites.

The Court held that:

“Wetland acts as a benefactor to the society, and there cannot be any manner of doubt in regard thereto, and as such encroachment, thereof would be detrimental to the society, which the Law Courts cannot permit. This benefit to society cannot be weighed on mathematical nicety to take note of the requirement of society - what is required today may not be a relevant consideration in the immediate future; therefore, it cannot really be assessed to what amount of nature's bounty is required for the proper maintenance of environmental equilibrium..”

The court aptly explained the importance of maintaining the ecosystem in this case. Later, and still today, this Judgment was considered a milestone in the interpretation of statutes and wetland protection.

In M.C. Mehta v. Kamal Nath, the SC confirmed the above proposition and invoked the Roman and English common law principle of “Public trust doctrine.” The court pointed out that

“……Thus, public trust is more than an affirmation of the State’s power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people`s common heritage of streams, lakes, marshlands, and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust”.

Thus, this decision makes the “Public trust doctrine” part of the law of the land. The Court also ordered the Motel to pay compensation for the cost of restitution for the area's environment and ecology.

The Hon’ble SC, again in M.C. Mehta v. Union of India (Taj Mahal Case), held that the development of the industry is essential for the country's economy. Still, at the same time, the environment and the ecosystems have to be protected. The above position was confirmed in Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group. The court held that treating the principle of sustainable development as a fundamental concept of Indian Law, it was opined that developing the doctrine of sustainable development indeed is a welcome feature. Still, while emphasizing the need for ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is impossible to ignore intergenerational interest, it is also impossible to ignore the dire need the society urgently requires. The two essential features of sustainable development are the precautionary and polluter-pays principles. Following the above judgments, Calcutta High Court in People United for Better Living In ... v. East Kolkata Wetlands Management Authority, the High Court allowed the construction of a water treatment plant in the East Kolkata Wetland Area, a declared Ramsar Convention site under the East Kolkata Wetlands (Conservation and Management) Act, 2006. Further, the court-appointed a monitoring committee and ordered the construction to be done in the most eco-friendly manner and remedial measures in the vicinity of the area. These Judgments should be seen in the background of the developmental needs of the developing countries without hurting the environment.

In a direct wetland-involved case from the State of Tamil Nadu, in M. Indira and Others v. State of Tamil Nadu, the petitioners questioned the de-notification of 317 hectares of the Marshland (swamp) near Pallikaranai, 20 KM south of Chennai, under the Tamil Nadu Forest Act, 1882 and Forest (Conservation) Act, 1980 by the Government. The government of Tamil Nadu argued that the 5000 hectares of wetland was reduced to 500 hectares in a period, and the state must protect the wetland, which the Government of India included under the National Wetland Conservation Programme. The Court declared that the Government could declare any land under the Forest Act against deforestation and environmental protection and affirmed the state government's decision. In this case, it is interesting to note that no special legislation protects wetlands in Tamil Nadu. However, the State found the Forest Act appropriate to invoke wetland protection. The absence of specific laws impedes the protection of wetlands in the States. This case substantiates the argument that there must be a Union law on wetlands to be followed by the states for the protection of wetlands in India, especially in urban cities.

The Hon’ble Supreme Court, in its judgement dated 25.07.2001, in WP No 26572 of 1999 between Hinch Lal Tiwari Vs Kamala Devi and others, spelt out that “……It is important to notice that the material resources of the community, like forests, tanks, ponds, hillocks, mountains, etc., are nature's bounty. They maintain a delicate ecological balance. They need to be protected for a proper and healthy environment, which enables people to enjoy a quality life, which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities, i.e. Respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same, which would, on the one hand, have prevented ecological disaster and, on the other provide a better environment for the benefit of the public at large….”

A series of landmark Judgements were delivered by the Hon’ble Supreme Court in Writ Petition No.230/2001, M.K. Balakrishnan & ors. Vs GOI and ors, primarily directing the state Governments to prepare the Brief Documents and declare them as Wetlands under Wetlands (Conservation and Management) Rules, 2017.

The above are only indicative cases and judgements by the Hon'ble Courts. The list is vast.

Our moral and obligatory duty is to protect our Environment, which is continuously under human onslaught.

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