Chapter 9:
1. FUNDAMENTAL RIGHTS
2. DIRECTIVE PRINCIPLES
3. FUNDAMENTAL DUTIES
4. DOCTRINES OF ENVIRONMENTAL POLLUTION
5. JUDICIAL APPROACH
6. PUBLIC INTEREST LITIGATION
7. RIGHT TO INFORMATION
8.Fundamental Rights
9.Directive Principles
10.Fundamental Duties
11.Doctrines of Environmental Pollution
(The above four topics are already covered in the previous chapters Kindly refer to the
respective slides.)
5. Judicial Approach towards environmental law in India
► In recent years, there has been a sustained focus on the role played by the higher
judiciary in devising and monitoring the implementation of measures for pollution
control, conservation of forests and wildlife protection.
► Many of these judicial interventions have been triggered by the persistent incoherence
in policy-making as well as the lack of capacity-building amongst the executive
agencies.
► There are numbers of the following judgments which clearly highlight the active role of
judiciary in environmental protection these are follows:
► (a) The right to a wholesome environment
1. Charan Lal Sahu v. Union of India and Anr, 1987
► The Supreme Court of India upheld the constitutionality of the Bhopal Gas Leak Disaster
(Processing of Claims) Act, 1985, which was enacted in response to the Bhopal Gas
Tragedy, allowing the government to take over the responsibility of processing claims
from victims against the Union Carbide company, essentially acting as a "parens
patriae" (parent of the nation) to protect the interests of the disaster survivors;
► however, the case also saw arguments from petitioners like Charan Lal Sahu who
challenged the Act on grounds of infringing upon victims' fundamental rights under the
Indian Constitution, particularly Articles 14, 19, and 21.
► The Supreme Court in this case said, the right to life guaranteed by Article 21 of the
Constitution includes the right to a wholesome environment.
2. Damodhar Rao v. S. 0. Municipal Corporation Hyderabad, 1987
► The Court resorted to the Constitutional mandates under Articles 48A and 51A(g) to
support this reasoning and went to the extent of stating that environmental pollution
would be a violation of the fundamental right to life and personal liberty as enshrined
in Article 21 of the Constitution.
► (b) Public nuisance:
► Ratlam Municipal Council v. Vardhichand, 1980
► The judgment of the Supreme Court in instant case is a land mark in the history of
judicial activism in upholding the social justice component of the rule of law by fixing
liability on statutory authorities to discharge their legal obligation to the people in
abating public nuisance and making the environmental pollution free even if there is a
budgetary constraints.,
► J. Krishna Iyer observed that,” social justice is due to and therefore the people must be
able to trigger off the jurisdiction vested for their benefit to any public functioning.”
► Thus he recognized PIL as a Constitutional obligation of the courts.
► (c) Judicial relief encompasses compensation to victims
► Oleum gas leak case: M.C. Mehta v. Union of India, 1987
► In instant case, the Supreme Court laid down two important principles of law:
► 1) The power of the Supreme Court to grant remedial relief for a proved infringement of
a fundamental right (in case if Article21) includes the power to award compensation.
► 2) The judgment opened a new frontier in the Indian jurisprudence by introducing a
new “no fault” liability standard (absolute liability) for industries engaged in hazardous
activities which has brought about radical changes in the liability and compensation
laws in India. The new standard makes hazardous industries absolutely liable from the
harm resulting from its activities.
► (d) Fundamental right to water
► The fundamental right to water has evolved in India, not through legislative action but
through judicial interpretation.
► In Narmada Bachao Andolan v. Union of India and Ors., 2005 the Supreme Court of
India upheld that “Water is the basic need for the survival of human beings and is part
of the right to life and human rights as enshrined in Article 21 of the Constitution of India
… and the right to healthy environment and to sustainable development are
fundamental human rights implicit in the right to life
► Subhash Kumar v State of Bihar, 1991
► The apex court of our country recognized Water and Air are an inalienable part of life
under Article 21 of the Constitution of India.
6. PUBLIC INTEREST LITIGATION AND ENVIRONMENT
► Public interest Litigation (PIL) means a litigation filed in a court of law, for the protection
of "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards etc.
PIL is not defined in any statute or in any act.
► It has been interpreted by judges to consider the intent of public at large. Although, the
main and only focus of such litigation is only "Public Interest" there are various areas
where a PIL can be filed
► For example: -
► Violation of basic human rights of the poor
► Content or conduct of government policy
► Compel municipal authorities to perform a public duty.
► Violation of religious rights or other basic fundamental rights.
When a PIL can be filed?
► PIL can be filed only in a case where “Public Interest” at large is affected. Merely
because, only one person is affected by state inaction is not a round for PIL. There are
some of the possible areas where PIL can be filed:
► a) Where a factory/ industry unit is causing air pollution, and people nearly are getting
effected.
► b) Where some “Banquet Hall” plays a loud music, in night causing noise pollution.
► c)For keeping a check on corruption and crime involving holders of high political officer
in environment related matters.
► d) when unnecessarily trees are cut.
► e) For maintaining Roads, Sewer etc in good condition.
► f) For removal of Big Hoarding and signboards from the busy road to avoid traffic
problem and avoiding cutting of trees.
Who can file the PIL?
► Earlier it was only a person whose interest was directly affected along with others,
whereby his fundamental right is affected who used to file such litigation.
► Now, the trend has changed, and, any Public-spirited person can file a case (PIL) on
behalf of a group of person, whose rights are affected.
► It is not necessary, that person filing a case should have a direct interest in this PIL.
Against whom a PIL can be filed?
► A PIL can be filed against a State/ Central Govt., Municipal Authorities, and not any
private party.
► However, “Private party” can be included in the PIL as “Respondent”, after making
concerned state authority, a party.
► For exampleif there is a Private factory in Delhi, which is causing pollution, then people
living nearly, or any other person can file a PIL against the Government of Delhi,
Pollution Control Board, and against the private factory.
► However, a PIL cannot be filed against the Private party alone
What are the various reliefs available by PIL?
► There are many kinds of remedies, which can be given in a PIL, to secure the public
interest, at large.
► They are:
► (a) The court can afford an early interim measure to protect the public interest,
► (b) The court may appoint a committee, or commissioner to look into the matter and
► (c) The court may also give final orders by way of direction to comply within a
stipulated time
Case laws
► Indian Council for Enviro-Legal Action vs. Union of India, 1989
The SC issued a warning to industries that discharge dangerous substances like Oleum and H
acid. The court stated that such pollution is a violation of the right to a safe and healthy
environment and, ultimately, the right to life.
► M.C. Mehta vs. Union of India, Delhi Pollution Case 1991
► The Supreme Court declared that vehicular emissions causing air pollution in Delhi
constitute a violation of the right to life under Article 21 of the Constitution. The court
directed all commercial vehicles operating in Delhi to switch to CNG fuel mode to
safeguard the health of the public
► Church of God (Full Gospel) inIndia vs. KKR Majestic Colony Welfare Association, 2000
The Supreme Court ruled that noise pollution amounts to a violation of Article 21 of the
Constitution.
► Vellore Citizens’ Welfare Forum vs. Union of India, 1996
► The Supreme Court allowed a public-spirited social organization to represent the
residents of Vellore to protect their health. In this case, the tanneries located around
the Palar River in Vellore, Tamil Nadu, were found to be discharging toxic chemicals
into the river, endangering the health of the residents. As a result, the Court ordered the
tanneries to close their businesses.
7. Right to Information and Environment
► This Right is one of the most important right which empowers ordinary citizens to
question the government and its working.
► This has been widely used by citizens and media to uncover corruption, progress in
government work, expenses-related information, etc.
► Principle 10 of the Rio Declaration on Environment and Development (1992) states
that “Environmental issues are best handled with participation of all concerned citizens,
at the relevant level.
► At the national level, each individual shall have appropriate access to information
concerning the environment that is held by public authorities, including information on
hazardous materials and activities in their communities, and the opportunity to
participate in decision-making processes.
► States shall facilitate and encourage public awareness and participation by making
information widely available.
► Effective access to judicial and administrative proceedings, including redress and
remedy, shall be provided.”
► Nature of RTI
RTI is based on three key principles.
► State needs to understand that RTI is to be guided by maximum disclosure: Giving
information as much as possible, whenever possible.
Section 6 of RTIA 2016 is an example for this proposition, as even though the requested
information falls under section 5 of the Act and cannot be provided, but if the information is
reasonably severable, then information that can be provided has to be provided.
► Necessity of proactive disclosure: Public Authority does not have to wait for a request or
an interference to disclose information.
Section 9 of RTIA 2016 mandates a Minister to provide all information available with him to
the public about initiation of projects, 03 months prior to their commencement. If it is an
urgent project, information has to be provided one week prior to the commencement of
such a project, and reasons for urgency have to be notified to the RTI Commission.
► Preserve credibility: Provide surrounding information related to the public request.
Protection of honest officials who are accountable and transparent within the RTI framework
is important as RTI is not only about exposing corruption, it is also about protecting officers
who are doing their jobs right.
How can RTI help in EIAs
► Subject to the provisions of section 5 of this Act, every citizen shall have a right of
access to information which is in the possession, custody or control of a public authority
according to section 3 of RTIA 2016.
► Definitions – Section 43 of RTIA 2016
► RTIA 2016 defines ‘information’ as including any material recorded in any form and
provides examples. The definition of ‘public authority’ (PA) captures any governmental
institution (Ministry, Department, Public Corporation, Local Authority, certain
companies, a body created by a Provincial Council, Higher Education Institution),
private entity or organisation carrying out statutory or public function or service, private
educational institutions, non-governmental organisations substantially funded by the
government or international organisations and all courts and tribunals.
► A ‘citizen’ is defined as including a body whether incorporated or unincorporated, if
not less than three-fourths of the members of such a body are citizens.
► Therefore, it is clear how vast the accessible information is and the public needs to be
informed of their right to know and be assisted to reap the benefits of the process
better.
►
► The RTI Procedure
► Section 24 onwards of the Act depicts the procedure for any citizen to obtain
information held by a PA. The request for information has to be in writing.
► Why use RTI for EIA Process
► As stated previously, the public can engage in effective decision-making regarding
prescribed projects only if they are provided with full and accurate information by the
authorities.
► RTI acts as a tool to bring the inaccessible information in the hands of PAs to the grasp
of the citizens, enabling the public to deliberate on the available information and
request further information where necessary.
► Simply, it makes the project approval process of the Project Approving Agencies (PAA)
which are State Agencies that are also PAs, subject to public scrutiny.
► The public, empowered by RTI, is not a mere party that comments, but a stakeholder
that holds the PAAs accountable and keeps check on their activities.
► Moreover, the ability of the public to engage with the PAAs closely also makes the EIA
process transparent and public-friendly.
► When the public is aware about the real circumstances of the projects, projected
impacts and then participates to comment, it will uplift the legitimacy of the decisions
made.
