The role of the Indian Supreme Court in resolving environmental disputes has contributed immensely to the evolution of environmental jurisprudence principles in India. These principles include: recognizing the right to a healthy environment as part of the fundamental right to life; directing polluters to follow environmental norms and regulations; ordering implementing agencies to discharge their constitutional duties to protect and improve the environment; determining the quantum of compensation for affected persons; taking suo motu actions against polluters; entertaining petitions on behalf of affected parties; and expanding the sphere of litigation.
The Indian Supreme Court also has introduced environmental principles for the environmental safety, protection, and the well-being of the people. These environmental principles include the “polluter pays” principle, where the polluting party pays for the damage done to the natural environment; the precautionary principle, which aims to provide guidance for protecting public health and the environment in the face of uncertain risks, stating that the absence of full scientific certainty shall not be used as a reason to postpone measures where there is a risk of serious or irreversible harm to public health or the environment; the absolute liability doctrine, in which legal responsibility for an injury can be imposed on the polluter without proof of carelessness or fault; and the public trust doctrine, a principle that certain resources are preserved for public use, and that the government is required to maintain it for the public’s reasonable use. In this paper, I have discussed how the judicial activism of the Indian Supreme Court has been extended to implement its own directions and the major implications of this development for environmental jurisprudence in India.
Although the Indian Supreme Court’s directions have been implemented in a number of cases, there remain a fair number of cases where the Court’s directions have not been implemented or have been only partially implemented. In M.C. Mehta and Others v. Union of India, AIR 1987 SC 965 (“Oleum Gas Leak case”), the Court created the doctrine of absolute liability, while clarifying the principle of strict liability set forth in the landmark English case Rylands v. Fletcher. The Indian Supreme Court has also developed the principle of claiming compensation under its writ jurisdiction by creating a public remedy. However, ultimately, victims of gas leaks have been left to the ordinary relief of filing suits for damages. In Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 (3) SCC 212 (“Bichri Village Industrial Pollution case”), concerning the contamination of ground water, the Court, after analyzing all the provisions of law, rightly observed that damages can be recovered under the provisions of the Environment Protection Act. However, the assessment of compensation, payment, and the appropriate remedial measures remain unsettled. See Sanjay Parikh, Development of Environmental Law: A Critical Appraisal, a paper presented at the National Consultation on Critiquing Judicial Trends on Environmental Law, organized by the Human Rights Law Network in New Delhi, February 23-24, 2008.
The Court’s directions set forth in M. C. Mehta v. Union of India, AIR 1988 SC 1115 (“the Ganga River Pollution case”) also were not implemented properly. The tanneries continue to operate despite the Court’s direction that strict action be taken against the polluting industrial units in Kanpur. It has been observed by many scholars that both the sewage treatment plants and the common effluent treatment plant have failed to treat waste adequately. See Praveen Singh, Bridging the Ganga Action Plan: Monitoring failure at Kanpur, Economic and Political Weekly, Vol. XLI, No. 7 (2006), pp. 590-592. In S. Jagannath v. Union of India, which involves the destruction of coastal ecology through extensive shrimp farming, the Court directed the closure of shrimp farms and issued orders for the payment of compensation pursuant to the “polluter pays” principle in addition to directing that the cost of remedial measures be borne by the industries themselves. See S. Jagannath v. Union of India and Others, AIR 1997 (2) SCC 87. However, post-judgment, the Court curiously stayed its own directions under review; and thereafter, the Parliament enacted legislation that effectively overruled the Court’s directives in the case. As a result, no compensation has been paid to the farmers and the people who lost their livelihood and the damage to the environment has not been remedied. In yet another case, the Court imposed a fine on Span Motel for harming the ecology of the river Beas. See M.C. Mehta v. Union of India, AIR 1997 (1) SCC 388. The Court ordered Span Motel to make restitution of the environment and ecology of the area. Subsequently, the Court clarified that no fine could be imposed under its writ jurisdiction and that the matter was required to be adjudicated under the provisions of the Environment Protection Act of 1986. An attempt to recover damages for environmental harm caused by dumping of waste oil by various importers also failed.
In a democratic set up with separation of powers, however, in any given case, once the judgment is passed it is left to the administration to implement the judgment. Although the Court in its judgment issues directions to the agencies of the state with respect to the implementation of its decisions, it will not oversee their actual implementation. Nor will the Court examine the extent of its implementation and the nature of its impact. Enforcement agencies like State Pollution Control Board, in a number of instances that involve serious environmental problems and public interest, are found to have taken advantage either by postponing or not implementing decisions, notwithstanding the importance of judgments. See M. K Ramesh, Environmental Justice: Courts and Beyond, Indian Journal of Environmental law, Vol. 3, No. 1, (June 2002), pp. 20-37. This has provoked the Court in recent times, to come up with an innovative method to see that its orders are implemented: continuing mandamus. See Vineet Narrain v. Union of India and Others, Supreme Court of India, Judgment of 18 December 1997, 1997 (7) SCALE 656. According to the Court, its continuing mandamus authority arises from the Constitutional framework of judicial review. The technique enables the Court to closely monitor the investigations by the government agencies.
The application of the continuing mandamus procedure suggests that instead of closing the case once the Court enters a judgment, it may issue a series of directions to the relevant administrative body or appoint a monitoring committee to implement the Court’s orders, both of whom would periodically report to the Court about the progress that is being made in the implementation process. For example, in several environmental cases, monitoring committees have been constituted to implement the Court’s orders, including the Loss of Ecology Authority in the Vellore Industrial Pollution Case, the Central Empowered Committee in the T N Godavarman Case, the Bhurelal Committee in the Delhi Vehicular Pollution Case, and the Dahanu Taluka Environmental Protection Authority in the Dahanu Power Plant Case For more details, one can see Sahu, G (2008), Implications of Indian Supreme Court’s Innovations for Environmental Jurisprudence, Journal of Law, Environment and Development (LEAD), International Environmental Legal Research Centre, London, Number 4/1)
A representative example in which the Court invoked its continuing mandamus authority is T.N. Godavarman v. Union of India, which involved forest conservation. T.N. Godavarman v. Union of India, AIR 1997 SC 1228 The action was commenced in 1996 for the purpose of seeking an order from the Indian Supreme Court to stop the felling of trees and to regulate the indiscriminate cutting of timber in the Nilgiris Forest. The case is yet to be finally decided. The Court in this case has entertained at least 2000 interlocutory applications and keeps hearing on every Friday afternoon.
Over the years, the Court has passed a series of orders that concern the protection of forests, wildlife, biodiversity, and national parks, and the eviction of encroachers, including tribal communities. All of these orders are in different stages of implementation. A significant order issued by the Court is the December 12, 1996 order, which clarified certain provisions of the Forest (Conservation) Act, 1980 and also extended the scope of the Act. The Court held that the word “forest” shall be understood according to the dictionary meaning and that all ongoing activity, such as mining, timber cutting, saw mills etc., within any forest in any state throughout the country, without the prior approval of the Central Government, must cease forthwith. Another significant order is the Court’s May 9, 2002 order, which constituted the Central Empowered Committee, a national-level authority charged with the responsibility to monitor the implementation of the Court’s orders, remove encroachments, implement working plans, and handle other conservation issues in the T N Godavarman Case. The constitution of the Central Empowered Committee was an effort by the Court to assist, partner, and guide the administration in protecting the forests across the country, thereby presenting a model for the rest of the county to emulate. However, in the process of implementation and in its enthusiasm to present such a model, the Court became mired in the complexities of a governance issues mainly managed by the bureaucracy, local institutions and the traditional form of forest management. These efforts on the part of the Court are, without doubt, unprecedented, even though they appear to be an invasion into the administrative terrain. The Court, however, has denied any such usurpation. In its pronouncements, the Court has justified its actions either under a statutory provision (the power to appoint commissioners in matters of civil nature is found in Order XXVI Civil Procedure Code and Order XLVI Supreme Court Rules, 1966) or as an aspect of their inherent powers (Inherent power of the Supreme Court under Article 32 and of the High Courts under Article 226 of the Constitution).
It is undeniable that the devices employed by the Court have helped get detailed facts, understand complexities of social, economic and scientific issues revolving around environmental problems so as to arrive at decisions. However, accordingly the environmental governance process has become more complex through such judicial interventions and innovations. For a more detailed analysis of the case, see Armin Rosencranz, Edward Boenig and Brinda Dutta (2007), The Godavarman Case: The Indian Supreme Court’s Breach of Constitutional Boundaries in Managing India’s Forests (Washington DC: Environmental Law Institute).
At the theoretical level, advocates of the theory of separation of powers among the legislative, executive, and judiciary branches argue that the Court should not have any role in the implementation of its own decisions and that its functional scope is confined to the adjudication of laws and policies, and that the implementation of the Court’s judgments rests solely with the state’s own implementing agencies. Going further, they argue that the Court’s intervention in the implementation of its judgments would not only violate the principle of separation of powers but would also be contrary to the spirit of democracy. The question then is how to ensure the implementation of the Court’s orders in environmental litigation cases. The orders issued by the Court are obviously not self-executing, as they must be enforced by state agencies. Consequently, if state agencies are not enthusiastic about enforcing the Court orders and do not actively cooperate in the task, the purpose of environmental justice would remain unfulfilled. Such failure of state agencies to ensure enforcement of the Court’s orders would not only deny effective justice to the affected people on whose behalf the litigation is brought, but also would have a demoralizing effect on the people who might lose faith in the capacity of the environmental litigation system to deliver justice.
Referring to the non-implementation of the Indian Supreme Court’s orders, Justice S.P. Bharucha stated:
This Court must refrain from passing orders that cannot be enforced, whatever the fundamental right may be and however good the cause. It serves no purpose to issue some high profile mandamus or declaration that can remain only on paper. It is counter-productive to have people say, the Supreme Court has not been able to do anything or worse. It is of cardinal importance to the confidence that people have in the Court that its orders are implicitly and promptly obeyed and it is, therefore, of cardinal importance that orders that are incapable of obedience and enforcement are not made.
See Justice S.P Bharucha’s Inaugural lecture as part of the Supreme Court Bar Association’s Golden Jubilee Lecture Series on Supreme Court on Public Interest Litigation (2001). The success or failure of environmental litigation would necessarily depend on the extent to which it is able to provide actual relief to the persons affected by pollution and correct the damage done to the environment at the grassroots level. If the Court’s orders in environmental litigation were to remain merely as paper documents, then the innovative method of allowing Public Interest Litigations (“PILs”) to resolve environmental conflicts by the Indian Supreme Court would lose all of its meaning and purpose. It is, therefore, absolutely essential for the success of PILs that a methodology be devised to secure the enforcement of the Court’s orders issued in environmental litigation.
Geetanjoy Sahu is an Assistant Professor, School of Habitat Studies, Tata Institute of Social Sciences (TISS), Mumbai, India. He can be contacted at email@example.com.