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ROLE OF JUDICIARY IN PREVENTING AIR POLLUTION

By: Riya* |



INTRODUCTION


With great emphasis on globalisation and industrialisation, and a rise in degeneration of the environment, sustainable development has become the need of the hour. The concept of ecological preservation and protection is not new to mankind. It has been an intrinsic part of our civilization since time immemorial. Various ancient Indian texts highlight that it is the dharma of each individual in the society to protect nature and the term ‘nature’ includes land, water, trees and animals which are of great importance to us for our survival on mother earth. The judicial system being the backbone of our country, also plays an important role in enunciating principles and imposing liabilities on those who destruct the environment. This article attempts to appraise the laws on environmental protection and the Indian judiciary's notable role in interpreting these provisions for environmental justice in India.




MEANING OF ENVIRONMENT


According to Section2(a) of The Environment (Protection) Act, 1986 - Environment “includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property”.

The Hon’ble Supreme Court in the case of Virender Gaur v. State of Haryana,[1] said that the word “Environment” was of broad-spectrum “ which brings within its ambit hygienic atmosphere and ecological balance”, free from pollution of air and water, sanitation without which the life cannot be enjoyed. After analysing the above definition, the basic idea that can be concluded is that environment means the surroundings in which we live and is essential for our life, thus it needs to be protected for our survival.




ALARMING RATE OF POLLUTION LEVEL

It has been ruled by Apex court in case of M.C. Mehta v. Union of India,[2] that balance has to be struck between environmental protection and development activities, which can be attained by following the principle of Sustainable development, sans which the environmental resource accounts of the future generations will be bankrupt.[3]


Right to live in a clean and healthy environment is the fundamental right[4] which includes the right of enjoyment of pollution-free water in sufficient quantity and air[5] for full enjoyment of life, which is not a new invention of our Judicial system but the difference lies here that only now its violation has been taken into consideration and provisions of law is now necessary to safeguard this right. The Apex Court in case of M.C. Mehta v. Kamal Nath,[6] was concerned that any disturbance of the basic environment elements, namely air, water, soil, which are necessary for “life” would be hazardous to life within the meaning of Article 21.[7] Similarly, in the case of Ratlam Municipality v. Vardicha[8], where the pollution was due to private polluters and unplanned town planning, it was held by the Apex Court to be a violation of pollution-free environment and hazardous to public health and thus amounting to public nuisance.[9]




STUBBLE BURNING

The burning of the agricultural waste is called stubble burning which after harvesting has led to many problems and increasing air pollution in the country especially in Delhi, Punjab and Haryana. In the case of Vikrant Kumar Tongad v. Environment Pollution (Prevention & Control) Authority and Ors., It was noted that- “Agriculture residue burning, causes serious environmental hazards. It pollutes the air as excessive matters combine with other pollutants, causing serious issues in relation to public health. Therefore, in the present day, it is not acceptable to advance an argument that crop burning is a necessity. There are clear and specific technical alternative resolutions to utilization instead of agriculture residue burning.”




JUDICIAL REMEDIES


The remedies available in India for environmental protection comprise of Tortuous as well as Statutory law remedies. The tortuous remedies available are trespass, nuisance, strict liability, and negligence.[10] The statutory remedies entail:-

  • the matter brought under Section 19 of the Environmental (Protection) Act, 1986.

  • the matter under Section 133 Criminal Procedure Code, 1973 for removal of the nuisance.

  • the matter brought under Section 268, 277, 426, 430, 431, 432, 368 [11] for Public Nuisance and pollution under Indian Penal Code,1860.




SOME CONSTITUTIONAL PROVISIONS FOR ENVIRONMENT PROTECTION


In the Indian Constitution, it was for the first time when the responsibility of protection of the environment was imposed upon the states through the Constitution (Forty Second Amendment) Act, 1976.


· Article 48A states that the “State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country.”


· Article 51A (g) “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, and wildlife and to have compassion for living creatures.”


In Sachidanand Pandey v. State of West Bengal,[12] the Supreme Court observed “whenever a problem of ecology is brought before the court, the court is bound to bear in mind Article 48A and Article 51A (g).


· Apart from this, a writ petition can be filed under Article 32[13] in the Supreme Court of India or under Article 226[14] in the High Court in case of infringement of their fundamental rights.



DOCTRINES ADOPTED BY THE COURTS


The doctrines evolved by courts are a significant contribution to the environmental jurisprudence in India. Article 253[15] indicates the procedure of how decisions made at international conventions and conferences are incorporated into the legal system. The formulation and application of the doctrines into the judicial process for environmental protection are remarkable stepping stones in the path of environmental law in India. Some of the tenets are:-

  1. The Polluter Pays Principle.

  2. Principle of Non-discrimination.

  3. Precautionary principle.

  4. Principle of Intergenerational Equity.[16]

  5. Doctrine of Common but differentiated responsibility.

  6. Public Trust Doctrine

The ‘Precautionary Principle’ was elucidated by the court in case of Vellore Citizen’s Welfare Forum v. Union of India and others[17] that it’s the duty of the state to prevent environmental degradation, and that “the lack of scientific certainly cannot be the reason for postponing measures”. ‘Polluter Pays Principle’ was affirmed in Indian Council for Enviro-Legal Action v. Union of India. It was stated that liability would be on the polluter to compensate the sufferers as well as remedy the damaged ecology by paying a cost. Principle of Intergenerational equity implies that the present generation has a duty towards the future generations.[18] The Public Trust Doctrine provides that certain resources like air, water, sea, forests cannot be made a subject of private ownership.[19]




EMERGENCE OF PILs FOR ENVIRONMENT PROTECTION


PIL is the new advanced tool to secure public interest which can be filed either by the aggrieved party or any other person or Non-Governmental Organisations (NGO’s). Various judgements have increased the momentum to prevent air pollution and improve its quality: -

1. In the case of M.C. Mehta v. Union of India and Ors.,[20] also known as the ‘Taj Trapezium Case’, a writ petition was filed by the renowned environmentalist advocate M.C. Mehta regarding the effects of air pollution caused to Taj Mahal in Agra. Consequently, glass and chemical industries, refineries, etc. were directed to clear the area. The Apex court on 30.08.1996 directed the Mahajan Committee to inspect the progress of the green belt development around the area and secure it.

2.Delhi diesel case -M.C. Mehta v. Union of India and Ors.,[21] In 1985, New Delhi’s worsening air quality led M.C Mehta to file a PIL before the Apex Court of India. In his petition, he called attention to the rising levels of air pollution in New Delhi and accused the administration for violating both the right of Delhi’s residents to breathe clean air as well as the country’s environmental statutes. The Court directed a changeover to CNG as the fuel for all commercial vehicles in the capital and the phase-out of old commercial vehicles, increasing the number of public buses on Delhi’s roads and banning certain fuels from being supplied or used within the city.


3. Similarly in the case of Vardhaman Kaushik v. Union of India,[22] a PIL was filed on rising air pollution in the capital city of Delhi which has forced people to leave the capital of India, to greener places, free from pollution. NGT directed various measures such as the ban on 10-year-old diesel vehicles and issuance of guidelines with respect to covering of building construction materials when being transported or stored, burning of waste and so on were put in place. The idea behind these measures was to make basic and necessary environmental conditions such as good air quality suitable for habitation.


NATIONAL GREEN TRIBUNAL


In India, the higher judiciary is loaded with an excessive weight with a large backlog of cases. It may be appreciated that to have effective prevention of environmental pollution and environmental complaints should be decided in an efficient manner which is not possible in the present context of judicial administration. Therefore, in the case of Indian Council for Enviro-Legal Action v. Union of India,[23] the Supreme Court observed that the environmental Court having Civil and Criminal jurisdiction must be established to deal with the environmental issues speedily. Following which the National Green Tribunal was established in 2010 under the National Green Tribunal Act 2010 for giving effect to “right to a healthy environment” as interpreted under Article 21 of the Constitution and imposes rigorous punishment to the offenders. The tribunal is a special fast-track quasi-judicial body comprising of judges and environment experts who will ensure fast disposal of cases related to environmental protection.



CONCLUSION


Despite the fact that the judiciary has tried its level best to forestall the air contamination and through its different decisions, arrangements and embracing PILs, but all come to a standstill when it comes to the implementation and role of the executive in it. Even individuals should be aware of not only their rights but also their duties towards the environment and its betterment. Each one should contribute at their level to sustain the environment for the future generation, despite the fact that Judiciary and other organs of Government trying to eradicate and control Air pollution level through various means.

This judicial renaissance is responsible for widening India's enviro-equity horizons. Hence, after the entirety of the previously mentioned instances, it becomes clear that while confined in numerous regards by its legal dynamism, the Indian legal framework has developed as a saviour of humanity.


***


* The author is a student at Army Institute of Law, Mohali. Constitutional Law, Contracts, Criminal Law keep her on her toes and she’s always up researching new legal reforms and widening the horizons. She has a keen interest in volunteering for NGOs and Social Law programmes. Apart from law, she has an artistic hand and loves to read.




[1]Virender Gaur v. State of Haryana, (1995) 2 SCC 577. [2]M.C. Mehta v. Union of India, AIR 2001 SC 1948. [3] Harmonization of the two needs. Report on “Our Common Future”, 1987 submitted by Brundtland Commission headed by the Norwegian P.M. Harlem Brundtland. [4] Subhash Kumar v. State of Bihar,1991 AIR 420 [5] S. Joseph v. State of Kerala, AIR 2007 NOC 545. [6] M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997. [7] Art. 21, Constitution of India, 1950. [8] Ratlam Municipality v. Vardicha, 1980 AIR 1622. [9] Art.21, Constitution of India, 1950. [10]The Role of Government in Environment Protection, https://www.lawctopus.com/academike/role-indian-judiciary-protection-environment-india/ (last visited 2nd July 2020) [11] § 268, Indian Penal Code, 1860. [12] Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109. [13] Art.32, Constitution of India, 1950. [14] Art.226, Constitution of India, 1950. [15] Art.253, Constitution of India, 1950. [16] V. Kulkarni, T.V. Ramchandra, Book of Environmental Management (TERI Press, New Delhi, 2009). [17] Vellore Citizen’s Welfare Forum v. Union of India and others, AIR 1996 5 SCC 647. [18] A.P. Pollution Control Board v. Prof. M.V. Nayudu and Ors., 1999 (2) SCC 718. [19] M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388. [20] M.C. Mehta v. Union of India and Ors., W.P.(C) No.13381/1984. [21] M.C. Mehta v. Union of India and Ors., WP (civil) 13029 of 1985.

[22] Vardhaman Kaushik v. Union of India, 2016 SCC OnLine NGT 4176. [23] Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.




Image Source: https://www.inkhabar.com/national/supreme-court-on-air-pollution-sc-seeks-reply-from-delhi-ncr-up-madhya-pradesh-punjab-other-state-government-over-not-able-to-control-pm-2-5-pm-10-level-air-pollution




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