Chapter 8

Legislation that Enable Checks and Balances by the People 27 8 Green Judgements Courts support a vigilant public The Constitution of India guarantees every citizen the fundamental right to life and personal liberty. Under Article 48 (A) of the Constitution, the State of India is also required to endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. The Constitution also makes it the duty of every citizen of India to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures. The fundamental Right to Life is guaranteed under Article states that “No person shall be deprived of his life or except according to the procedure established by law”. two decades, this Article has undergone progressive include a number of rights, which interpret the right to life in the broadest sense. The Supreme Court in a landmark judgment (Francis Coralie vs. The Administrator, Union Territory of Delhi and others, AIR 1981) observed “We think that the Right to Life includes the right to live with human dignity and all that goes along with it…. The magnitude and content the components of this right would depend upon the extent of development of the country, but it must, in any view of the matter, include the right to the basic necessities of life . This now includes the right to clean and hygienic environment and above all, the right to live with basic dignity.” Over the years, Public Interest Litigation (PIL) has become one of the most important tools of legal aid and has served to bring justice in many cases involving social and environmental concerns. Under a PIL, any public-spirited individual or group can move the court of law (under Article 226 of the Constitution for High Courts, and Article 32 for the Supreme Court) in case of breach of any fundamental right, to seek judicial redressal. The PIL is a form of writ petition which can be filed by anybody, even if he or she is not directly affected by the perceived injustice. This has enabled environmentally-conscious, public-spirited individuals or groups, which are not an aggrieved party, to have easy access to the highest court of the nation. PILs become a collaborative effort between the petitioner, State or public authority, and the court, to redress the breach of a fundamental right. The Supreme Court has played a pro-active role in enhancing the use of PILs. It has simplified technical procedures to encourage more grievances to be addressed through this mechanism. It has relaxed the requirement of a formal writ to seek redress. Any member of the public can move the court for a social cause even through a letter, which would be entertained as a writ petition by the court. Moreover, the fees in the case of a writ petition are very nominal. Right to Life A Useful Tool

Towards Sustainability: Stories from India 28 The Constitutional Bench of the Supreme Court observed in the M.C. Mehta v. Union of India (1987) case: Procedure being merely a hand-maiden of justice it should not stand in the way of access to justice to the weaker sections …this Court will not insist on a regular writ petition and even a letter addressed by a public spirited individual or a social action group acting pro bono publico would suffice to ignite the jurisdiction of this Court. Court verdicts in a PIL are usually not self-executing; they have to be enforced by some state agency. The Court often has to deal with polluting industries, municipal bodies and concerned authorities to see that the decision is actually being enforced. Courts have used a variety of techniques to ensure that they do not act as a parallel government in such cases, but act only to enforce the constitutional rights of the citizens. They have devised methods for monitoring implementation. Often, this means keeping the litigation pending before the Court so that the petitioner can seek the Court’s intervention, as and when required. Generally in all environmental cases, the Supreme Court has prescribed time limits within which the order is to be implemented, asked for periodic reports from the concerned authorities and has even instructed the State High Courts to monitor enforcement. In the Shriram Gas Leakage Case, where a gas leak in the factory caused one person to die and hundreds of others were taken ill in an area adjoining Delhi, the Court ordered closure of the chlorine plant, the setting up of a victim compensation scheme, and reopening of the plant under specific directions, all within a span of ten weeks of the gas leak. In the Doon Valley case (see Box), it was brought to the notice of the Court that fresh mining had started in spite of the Court’s order. The Court imposed serious sanctions and fines on the lessee, and after ensuring the stoppage of mining in the area, asked the lessee to pay a sum of Rs. 3,00,000 ($ 6000) to fund the monitoring committee set up by the Court. It is generally by passing strictures, asking for personal appearances and explanation of officials, ordering closure of faulty units, extending time limit for compliance etc. that the Court is able to enforce its decisions. The ultimate sanction which the Court can use for non-compliance of its order is to haul up the concerned party for contempt of court. There have not been many occasions when the Court has needed to exercise this clause. Over the years, the Supreme Court has seen PILs as opportunities for the government to fulfill wider environmental and social rights. PILs have not only brought community causes, concerns and rights to the notice of the Enforcing the Verdicts Perhaps the first case which directly addressed the conflict between environmental balance and misguided development was the Doon Valley case. Doon Valley (in the state of Uttaranachal) receives plentiful rainfall during the monsoon season. In the Valley, roots of trees helped water to infiltrate the soil, and the limestone beds occurring below the ground acted as large aquifers. The streams originating from this Valley used to flow even in the dry season, and provided a perennial supply to the river Yamuna. But uncontrolled limestone quarrying in the region and large scale deforestation endangered the delicate ecological balance of the area, causing the streams to dry up. The issue was raised by the Rural Litigation Entitlement Kendra (RLEK), a voluntary organization based at Dehra Dun, through a letter addressed to the Hon. Supreme Court about the situation. The Court treated this letter as a writ petition. It directed the District Magistrate of Dehra Dun to stop the quarrying operations in the Valley, taking note of the fact that excavation of limestone was adversely affecting the perennial water springs. Further, the Court directed the State to pay RLEK a sum of Rs. 10,000 for the service rendered by the organization. The Court in its judgement also reminded citizens of their duty with respect to the environment. The verdict states: ‘Preservation of the environment and keeping the ecological balance unaffected is a task which not only Governments, but also every citizen must undertake. It is a social obligation and let us remind every Indian citizen that it is his fundamental duty as enshrined in Article 51- A (g) of the Constitution.’ Saving the Doon

Legislation that Enable Checks and Balances by the People 29 Evolution of democracy is not possible if we are not prepared to hear the other side. Mahatma Gandhi highest constitutional authority, they have also served as a tool in the law-making process. They ensure observance of basic human rights by both legislative and executive wings of the government, thus fulfilling their overall constitutional objectives. Crusader for the Environment For more than seven long years starting 1984, Mahesh Chander Mehta battled in the Supreme Court every Friday on behalf of the Taj Mahal. His crusade was to convince the Supreme Court to either move or shut down the iron foundries, glass factories and the Mathura Petroleum Refinery, situated in the vicinity of the Taj, which were enveloping it in sulphurous, acidic smoke. In 1993, after nearly a decade of court battles, the Supreme Court ordered 212 small factories surrounding the Taj Mahal to close down because they had not installed pollution control devices. Another 300 factories were given notices to install necessary devices. The Agra thermal power plant was also shut down. Over the years, nearly 50,000 trees have been planted around the Taj to provide a green cover against the surrounding pollution. The Taj Campaign is only one of the enviro-legal battles that M.C. Mehta has fought. In another case, he has secured a Supreme Court order closing 30 polluting factories in the State of West Bengal on the basis of a PIL against industrial pollution of the river Ganga. Mehta’s Ganga case, which reportedly began the process of cleaning up the river, is possibly one of the biggest PILs in India, affecting people, towns and villages all the way from the Northern States of Uttaranchal and U.P., to Bihar and West Bengal on the east coast of India. Apart from the 30 units that were hauled up in West Bengal, 157 other factories have been indicted and 300-odd municipalities have been asked to clean up their operations. There have been a number of other significant cases where Mehta has got favourable judgments for his petitions. In the Shriram Gas Leakage Case and the Stone-Crusher Case, not only were the units ordered to close, but compensation was also granted for victims in the former case. Acting on another of his PILs in 1992, the Supreme Court directed the Union of India to spread information relating to environment in national and regional languages through the audio-visual media and also to introduce environment as a compulsory subject in schools and colleges.