Author: Shashank Sahay, Research Associate
The right to live in a clean and healthy environment is not new to the Indian Judiciary. This right has been recognized by the legal systems and by the judiciary in particular over a reasonable passage of time. The only difference in the enjoyment of the right to live in a clean and healthy environment today is that it has attained the status of a fundamental right whose violation is not permitted by the constitution of India. It was only from the late eighties and thereafter that the Supreme Court of India and the various High Courts of India designated this right as a pertaining right.
The expression `Judicial Activism’ signifies the anxiety of courts to find out appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the event of lawlessness or uncertain laws. The Judicial Activism in India can he witnessed with reference to the review power of the Supreme Court under Article 32 and Article 226 of the Constitution particularly in Public Interest Litigation ((S Shantakumar’s Introduction to Environmental Law, (Wadhwa & Company Nagpur) p 93)). In today’s emerging jurisprudence, environmental rights, which encompass a group of collective rights, are described as “third generation rights”. The” first generation rights” are generally political rights such as those found in the International Covenant on Civil and Political Rights while “second generation” rights are social and economic rights as found in the International Covenant on Economic, Cultural and Social Rights ((John Lee. “Right to Healthy Environment”, Columbia Journal of Environmental Law, Vol. 25, 293-394 (2000) cf. A.P. Pollution Control Board II v. Prof. M.V. Nayadu, 2000 SOL Case No. 673)).
Earlier, in England there were two kinds of courts namely. Equity Courts (Court of Chancery) and Common Law Courts. Equity Courts used to decide cases applying the principles of equity i.e. Justice, equity and good conscience. Whereas the common law courts used to decide cases basing on common law i.e. the principles’ rules evolved by the Judge; during judicial pronouncements ((Pritam Kumar Ghosh, JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION IN INDIA, Galgotias Journal of Legal Studies, ISSN. 2321-1997)). Hence the common law is also known as the ‘Judge-made-law:’ The courts of Equity / Chancery played significant role in formulating the new piles of tart. The common law originated in England was spread in British Colonies including India. In India, almost all laws are originated ham the fairish Common law. In the absence of existing rules for relief in certain cases and predictive procedure, the court’ of equity or chancery took the initiative to draw up new rules. ‘The new rules to settle the conflicting positions that had arisen in certain cases are called ‘Judicial Activism’. The equity court- and common law courts were merged with the passing of the Judicature Act, I875 ((Ibid)).
Right to Live in a Healthy Environment as a Basic Human Right
Right to life being the most important of all human rights implies the right to live without the deleterious invasion of pollution, environmental degradation and ecological imbalances. The Universal Declaration of Human Rights 1948 has declared that everyone has the right to life ((Article UDHR, 1948))and everyone has a right to live in a standard living environment adequate for the health and well being of himself and of his family ((Article 25,UD)).
Covenant on Economic, Social and Cultural Rights, 1966 declares that the States Parties to the covenant recognized the right of everyone to an adequate standard of living for himself and his family and to the continuous improvement of living condition ((Article 11, ICESCR, 1966)). The Covenant further declares that the States Parties recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health ((Id at Article 12(1).)).
Evolution of the Fundamental Right to Live in a Healthy Environment in India
In India the higher judiciary has interpreted the existing constitutional provisions viz., “the right to life” guaranteed under in Article 21 to mean and include the right to live in a healthy environment. The courts have intervened by writs, orders and directions in appropriate cases and recognized the constitutional right to a healthy environment ((S Shantakumar’s Introduction to Environmental Law, (Wadhwa & Company Nagpur) p 94)).
The Supreme Court of India while deciding that certain limestone quarries in the Doon Valley should be closed down due to soil erosion, deforestation and river silting, declared for the first time in Rural Litigation and Entitlement Kendra v State of UP ((AIR 1985 SC 652))that the right of people to live in a healthy environment with minimal disturbance to ecological balance shall be safeguarded. In this case though the Supreme Court evolved a new right to environment-right of people to live in healthy environment it did not mention or discussed the source of right.
Though the Supreme Court of India did not clearly and explicitly recognize the right to healthy environment, it has indirectly approved in many cases. For example in the MC Mehta Case ((AIR 1987 SC 985)), which was filed against the alleged leakage of oleum gas from a factory by a Public Interest Litigation filed via support of various environmental activists, the Supreme Court found that the case raised some seminal questions concerning the scope and ambit of Articles 21 and 32 of the Constitution. By making such comment the Court was manifestly referring to the concept of right to life in Article 21 and the process of vindication of the right in Article 32 ((Refer Leelakrishanan P Environmental Law in India (Butterworths) p.114)).
The Supreme Court and the right to clean and healthy environment
The Supreme Court of India in Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P ((AIR 1990 SC 2060)) for the first time declared that the right to environment is contemplated in Article 21 of the Constitution of India. Further, In Subash Kumar v. State of Bihar ((AIR 1991 SC 420)) the Supreme Court observed that “the right to life” as enshrined in Article 21, includes the right to enjoyment of pollution free water and air for the full enjoyment of life. Moreover, In Virandar Gaur v. State of Haryana (([1995]2 SCC 577)) the Supreme Court after reciting, reaffirming and applying principle 1 of the Stockholm declaration held that “Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection of and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed and any act giving rise to Environmental Pollution that includes air, water, ecology etc would be termed as violation of Article 21 of the Constitution of India.
There have been plethora of various judgments like T.N Godavaraman Thirumalpad v Union of India (([2002] 10 SCC 606)), Ramji Patel v Nagrik Upbhokta Marg Darshak Manch (([2000] 3 SCC 29)), State of Madhya Pradesh v. Kedia Liquor and Leather Limited (([2003] 7 SCC 389))etc, in relation to various economic activities leading to environmental hazards where the Supreme Court has come down heavily on the protection of Environment and giving it protection as a Fundamental right by including it as an aspect of Right to Life as per Article 21 of the Constitution of India.
Judicial Activism in India
The doctrine of separation of powers was propounded by the French Jurist Montesquieu. It has been adopted in India as well since the executive powers are vested in the President, Legislative powers in the Parliament and State Legislative Assemblies and the judicial powers in the Supreme Court and subordinate courts. However, the adoption of this principle in India is partial and not total.
This is because even though Legislature and the Judiciary are independent yet Judiciary is entrusted with implementation of the laws made by the legislature. On the other hand, in case of absence of laws on a particular issue, judiciary issues guidelines and directions for the Legislature to follow.
The executive also encroaches upon judicial power, while appointing the judges of Supreme Court and High Courts. Similarly the Judiciary, by its review power examines the law passed by legislature and the legislature on the other hand intervenes in respect of impeachment of the President of India, who is a part of the Union Executive ((M.C. Mehta v Kamal Nath (1998) 1 SCC 388)).
Conclusion
The Indian Judiciary has come a long way in dealing with increasing the ambit of protection against the various environmental hazards hovering around the Indian sub continent. It has managed to widen the ambit of Article 21 to include Right to Life in a healthy environment as a fundamental right under Part III of the Constitution of India, but the effect of such judicial pronouncements has not come out as desired. Further it is important for the Courts to check whether Public Interest Litigations for the protection of Environmental Law do not become Publicity Interest Litigation hampering the growth of the economy. To conclude, India as a nation still has a long way to achieve in order to ensure Environmental Protection and induce Sustainable Development in its utmost practical sense.