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Title Indian Public Interest Litigation- an effective answer to deal with environment?
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Article by Samraggi Chakraborty
Category Law Student
Content

 Indian Public Interest Litigation- an effective answer to deal with environment?

 

Introduction-

 

Every one of us right from our moment of inception is dependent on the environment for our all round development and growth. Our very existence will come into question if there is no life support called environment. We are what because of the environment. But many a times we tend to forget this and engage in activities that results in harming the environment. We tend to forget that harming the environment means we are harming ourselves and posing a threat to our very existence. Lot of damage has been done to the environment in the name of development. To deal with such situation legislations have been passed. Passing legislations is not enough. Environment is for all. Everyone has to take care of it. What is required is effective participation by all in matters of protection and improvement of environment. An answer to this is public interest litigation. By the very term ‘public interest litigation’ it means that it is litigation in the interest of public. Environment is an interest of the public in general and so litigation in the interest of the public should be allowed. In India, public interest litigation has played an effective role in the field of environmental law. Various new dimensions to the environmental law have been added because of various public interest litigations. Any public spirited person can file a public interest litigation and bring any matter in the notice of the judiciary. This unique characteristic of the Indian Public Interest Litigation gives places it in a higher pedestal over the Citizens Suit of United States of America. In this paper the researcher has tried to find out how the public interest litigation of India has helped to deal effectively with its environmental matters and also tries to find out if the present system of public interest litigation in India perfect to deal with problems of environment or should it strictly follow the principle of locus standii as in the case of citizen suits in United States.

 

Public Interest Litigation (PIL) in India- Its birth and continuity

 

Indian civilization is proud to have its continuity from time immemorial irrespective of its geographical boundaries. The very term ‘environment’ in Hindu/Sanskrit language is “Pasyavaran” which means “Pari-aavaran”, i.e., external covering or a thing encircling or encompassing human existence. The Indian viewpoint or the Hindu philosophy viewed man and environment as part and whole of the same thing but this part and whole keep their position constantly interchanging in different context and situations and in this way man and environment is the condition of the other.[1]

India has shown a remarkable vigour in judicial activism from post 1980 onwards. Prior to this period it was only the aggrieved party who could personally knock the doors of justice and seek remedy. A person who was not personally affected could not raise his voice as a proxy for the person who was affected. But it is around 1980 that the Indian legal system brought about a sea change in this approach- particularly in the field of environmental law.

A host of problems crops up in matter pertaining to protection of the environment in developing countries like India. However, the Hon’ble Supreme Court of India through human rights jurisprudence and environmental jurisprudence initiated Public Interest Litigation in India. The traditional concept of locus standii is no longer applicable and acts as no bar in filing of community oriented Public Interest litigations. Any citizen can invoke the jurisdiction of the Court, especially in human rights and environmental matters even by writing a simple postcard.[2]

 The Indian Public Interest Litigation (PIL) is the improved version of Public Interest Litigation of U.S.A. According to “Ford Foundation” of U.S.A., “Public interest law is the name that has recently been given to efforts that provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others”.[3]

Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the interest of that nebulous entity i.e. the public in general. As already stated prior to 1980s it was only the aggrieved party who could personally knock the doors of justice and seek remedy for his grievance and no other person who was not personally affected could knock the doors of justice as a proxy for the victim or the aggrieved party. This showed that only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non affected persons had no locus standi to do so.

But there was a shift in this scenario gradually when the post emergency period Supreme Court tackled the problem of access to justice by people through radical changes and alterations made in the requirements of locus standi and of party aggrieved. It was all the results of the efforts of Justice P N Bhagwati and Justice V R Krishna Iyer who were instrumental in bringing about juristic revolution and converted the Apex Court of India into a Supreme Court for all Indians thereby providing access to justice to the poor and the exploited people. This Public Interest Litigation came into life as a result of an informal nexus of pro-active judges, media persons and social activists. This trend brings forth the difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing administrative judicial role.

Public Interest Litigation allows a third party to file a habeas corpus petition on the ground that the injured party cannot approach the court himself. It is in this regard that the Indian concept of Public Interest Litigation is much broader in relation to the American model of Public Interest Litigation. PIL in India is a modified version of class action suits.  It is acting as an important instrument of social change like in case of Murli S. Deora v. union of India, the court banned smoking in public places.

 

Environment and the Indian Constitution

 

Under the Indian Constitution, the environmental protection stems out from Article 21[4] which speaks about right to life. The Indian Constitution is primarily referred to in matters of all environmental regulations as matters of environmental protection stems out of the Indian Constitution.  Article 48 A of the Indian constitution says that the state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
 The 42nd Amendment to the Indian Constitution, passed in 1976, provided for the fundamental duties of citizens and the State to protect and improve the environment[5]. Also with the coming of the Environmental (Protection) Act of 1986, the Indian Parliament vested on the Central Government powers to regulate the polluting industries and close those industries that were not able to meet environmental standards[6]

Indian parliament through the passing of the Water(Prevention and Control) Act of 1974 and Air (Prevention and Control) Act of 1981 have set up the Pollution Control Boards (PCBs) both at the national and the state level.“Since their inception, the Boards have relied upon the Courts to assist them in closing industries that refused to comply with existing environmental regulations.”[7]

 

 

 

 

Judicial dynamism and environment

 

In India the development in the field of environmental law has been done mostly through the ‘judicial dynamism than legislation.’[8] The journey of judicial activism in the matter of environmental pollution started from the case Ratlam Municipality v. Virdhi Chand[9].Various cases where the judges have given a new insight as to matters related to environment are-

  • Murali S. Deora v. Union of India,[10] - In this case the question under consideration was what is the effect of smoking in public places. The Supreme Court of India held that smoking in public places has adverse effect. The persons not including in smoking cannot be compelled to or subject to passive smoking on account of acts of the smokers. The Supreme Court observed that there is no reason to compel non- smokers to be helpless victims of air pollution.[11]
  • Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P.,[12] - In this case the court for the first time gave the “indication of the right to wholesome environment”[13]
  • M.C.Mehta v. Union of India,[14]- This case is also known as Ganga Pollution (Tanneries) case. In this case Supreme Court of India observed:

                 “We are conscious that closure of tanneries may bring unemployment and loss of revenue but life, health and ecology have greater importance to the people.”[15]

The Public Interest Litigation in India has worked successfully. In general the value of Public Interest Litigation are-

               “1[16]. Provides effective judicial protection of weaker sections of community.

2. Makes officialdom accountable.

3. Makes real the considerations of transparency in decision-making processes.

4. Remedies democracy deficit.

5. Creates structures for change: force the pace.

6. Allows the most effective proponents to bring cases: promotes effectivity in use of judicial institutions.

7. Allows diffused interests to be represented: air, water, environment, biodiversity, and such like.

8. Ensures access to justice.

9. Allows for participative justice

10. Ensures government acts according to its established duty to abide by and enforce legal norms.

11. Protects and sustains democratic governance and the rule of law.”

 

Citizen suits in US

 

As already mentioned earlier the Indian Public Interest Litigation is an improvement over the Public Interest litigation of USA. In US a private citizen can file a citizen suit for the purpose of enforcing a statute. This type of citizen suits is mostly prevalent in the field of environmental law.[17] In US citizen suits are mainly of three types. “First, a private citizen can bring a lawsuit against a citizen, corporation, or government body for , engaging in conduct prohibited by the statute. For example, a citizen can sue a corporation under the Clean Water Act (CWA)for illegally polluting a waterway. Second, a private citizen can bring a lawsuit against a government body for failing to perform a non-discretionary duty. For example, a private citizen could sue the Environmental Protection Agency for failing to promulgate regulations that the CWA required it to promulgate. In a third, less common form, citizens may sue for an injunction to abate a potential imminent and substantial endangerment involving generation, disposal or handling of waste, regardless of whether or not the defendant's conduct violates a statutory prohibition. This third type of citizen suit is analogous to the common law tort of public nuisance. In general, the law entitles plaintiffs who bring successful citizen suits to recover reasonable attorney fees and other litigation costs.”[18]Under the US law, a citizen can file a citizen suit only if he has a standing to sue. In order to establish standing, the courts have “required proof of three elements. First, the plaintiff must have suffered an ‘injury in fact’-an invasion of a legally protected interest which is (a) concrete and particularized and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical.’  Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be redressed by a favorable decision.”[19]Thus, it can be rightly said that Public Interest Litigation in India is structurally of much better built as it gives opportunity to any person (whether he is a victim or not) to file a case  and knock the door of justice.

 

Conclusion-

Indian judiciary has no doubt played a proactive role in matters relating to environment. Thanks to the various public interest litigations filed by public spirited person. The relaxation of the traditional approach of locus standii has become a boon for India in dealing with environmental matters. As environment belongs to every one any harm done to it  will result in the harm of everyone and so the Indian approach in relaxing the locus standii in filing a case helps each and everyone in the society as everyone’s interest is protected. It could be rightly said that Indian Public Interest Litigation is an improvement over the United States Citizen Suits and it is an answer to effectively deal with environmental matters.

 

 



[1] See also H.N.Tiwari, Environmental Law, Allahabad Law Agency, Faridabad(Haryana)2006

[2] PIL newsletter, Central Pollution Control Board, India, 2002 & Mr M.C. Mehta was a public spirited 

   lawyer not affected by “injured” in these cases

[4] Article 2. Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.

 

[5]Government of India, supra note 3, amend. 42. The Forty-Second Amendment includes two relevant “Directive Principles of State

Policy.” Article 48A states, “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild

life of the country.” Article 51A(g) imposes a similar responsibility on every citizen “to protect and improve the natural environment

including forests, lakes, rivers and wild life, and to have compassion for living creatures.” (DIVAN & ROSENCRANZ, supra note 1, at 45.)

 

[6] See, The Environment (Protection) Act, 1986.

[7] Armin Rosencranz and Michael Jackson, “The Delhi Pollution Case: The Supreme Court of India and the limts of judicial power” at indlaw.com

[8] H.N.Tiwari, Environmental Law, Allahabad Law Agency, Faridabad(Haryana)2006, p.81

[9] A.I.R. 1980 S.C. 1622

[10] A.I.R. 2002 S.C. 40

[11] H.N.Tiwari, Environmental Law, Allahabad Law Agency, Faridabad(Haryana)2006, p. 82

[12] A.I.R. 1985 S.C. 652

[13] H.N.Tiwari, Environmental Law, Allahabad Law Agency, Faridabad(Haryana)2006, p. 84

[14] A.I.R. 1988 S.C. 1037

[15] See H.N.Tiwari, Environmental Law, Allahabad Law Agency, Faridabad(Haryana)2006, p. 85

[16] Gurdial Singh Nijar, Public Interest Litigation:A matter of Justice an Asian Perspective, Kaula Lampur, 2006

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karthikeyan v

i like these,,,,TOPIC very much,,,But plz i want some more information about 

Role of PIL in protection of Environment.....

 
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