PUBLIC INTEREST LITIGATION

Group 3, Section B

Akhandal MohantyPGP/14/63

Anuj Khemka PGP/14/75Gaurav Dasgupta PGP/14/83Nidhi Pandey PGP/14/97Sandeep Tripathy PGP/14/114

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ACKNOWLEDGMENT

We as a group take this opportunity with much pleasure to thank all the people who have helped us through the course of this term paper report. We sincerely thank our Environmental Management teacher, Prof. K. Balooni, for giving this term paper topic to us and his continued guidance, help, motivation and encouragement throughout the course of this paper. Apart from the subject of our term paper, we learnt a lot from him, which we are sure will be useful in different stages of our life.

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Table of Contents

ACKNOWLEDGMENT 1

INTRODUCTION 3

PUBLIC INTEREST LITIGATION 3

AIR POLLUTION 4

ROLE OF JUDICIARY 4POLICY GAPS 4

WASTE MANAGEMENT 4

MAJOR ISSUES 4

WATER POLLUTION 5

MAJOR ISSUES 5

ECOLOGICAL IMBALANCE: FORESTS & WILDLIFE 6

PROBLEMS WITH THE PIL SYSTEM 6

PIL IN FOREIGN COUNTRIES 7

RECOMMENDATIONS 8

REFERENCES 8

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INTRODUCTION

India has an extensive body of environmental jurisprudence since 1972. The judiciary and legislature in particular has been extremely active in developing this ideal. By declaring a fundamental right to a healthy environment and liberalizing locus standi requirements, the judiciary has become active and influential.The statutory remedies for environmental protectionincludes: Citizen’s suit, e.g., an action brought under section 19 of the Environmental (Protection) Act, 1986, an action under section 133, Criminal Procedure Codefor public nuisance covered with the framework of section 268, Indian Penal Code, 1860 and an action brought by filling a writ petition under Article 32 in the Supreme Court of India or under Article 226 in the High Court.

PUBLIC INTEREST LITIGATION

Public Interest Litigation (PIL) can be broadly defined as litigation in the interest of thepublic in general. Prior to 1980s, only the affected parties had the locus standi to file a case and continue the litigation.Hence, the poor people who were mostly affected could not take recourse to this. However, the splendid efforts of Justice PN Bhagwati and Justice Krishna Iyer were instrumental of this juristic revolution of eighties as a result of which any citizen of India or social action groups can approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake, giving birth to PIL. Further, PILs could be filed without investment of heavy court fees as required in private civil litigation.The environmental PILs in India can be divided into 3 phases – late 70s and 80s (when most cases filed were individual and stray), the 90s (when this took an organized stand and NGOs got involved) & 21st century (the decline due to unsympathetic attitude of judges). As per the common law remedies, an environmental management group can claim Damages, Injunction, Nuisance, Negligence and action under Strict Liability. The Supreme Court evolved the concept of Absolute Liability akin to the Polluter Pays principle to formulate unconditional compensation for organisations causing environmental damages in the M.C. Mehta v. UOI (Oleum Gas leakage case). Even though this was evolved to get relief to the Bhopal Gas Tragedy case, till now there has not been too many compensations awarded by Indian courts in environmental PILs. The ideal situation would be if Indian judicial system follows the class action suits of USA, where law firms take up causes of people affected due to environmental degradation and brings relief to them.At present, the Environment Ministry has plans to set up green benches all over the country to deal with these cases and to treat Right to environment as a part of Right to Life.

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AIR POLLUTION

With increased industrialization and urbanization the quality of air has decreased significantly. Reduction in air pollution is a necessary condition for the sustainable development and maintenance of inter-generation equity.

Role of JudiciaryIn recent years, the judiciary has played a prominent role in environmental protection. A number of judgements relating to stringent vehicle emission norms, fuel quality, introduction of cleaner fuels, phasing-out of older vehicles, and shifting of hazardous industries have provided a great deal of momentum to the efforts for improvement of air quality.

Policy gaps Prevention based environmental policy needs to be strengthened. Issues such as

cleaner technology and land use planning incorporating environmental considerations need to be given priority

Effectiveness and impact of various policy measures not assessed No separate transport policy exists at the national and state levels No well-defined policy to promote private participation in public transport Lack of coordination between various government agencies to improve transport

services

WASTE MANAGEMENT

With so much concern recently about being greener and economically friendly, waste management has become a subject of concern.

Major IssuesAdministration apathy is clearly indicated by the lack of presence of policies by at bothstate and central level regarding waste management. Waste not only degrades the environment but may also lead to widespread diseases. With India becoming economically competent it is essential to have cleaner and

hygienic cities in the country.

Other issues contributing to improper waste management include: Lack of awareness

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Unplanned Growth & development of cities Improper planning, design & operation

WATER POLLUTION

The scarcity of available usable surface water is now evident in all major towns and cities across the country during the peak of the summer season. Hence when our sources of usable surface water are under extreme duress, the case of water pollution assumes great significance.

Major IssuesVarious issues related to water pollution in India can be categorized into a few neo – institutional economic and environment management concepts. These primarily include:

Property rights – Water pollution is blatant case of negative externalities. Negative externalities in most cases owe their existence to ill-defined property rights. India’s stance on rivers as open property regimes in the past encouraged lack of culpability and accountability for major industrial units which dumped their harmful effluents without treatment into these sources of water.

Institutional Failures – Failures of institutions set up at the state and central level for enforcing and monitoring the laws made to protect the environment in general and water bodies in particular is another sad highlight. The State Pollution Control Boards have mostly failed due to a myriad of reasons ranging from inefficiencies to bureaucratic red tapism to political vendetta.

ECOLOGICAL IMBALANCE: FORESTS & WILDLIFE

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India contains some of the most bio- diverse regions of this world. In order to protect this wide range of diversity, India has also evolved a set of conventional laws which include:

Indian Forest Act, 1927 Forest Conservation Act, 1980 amended in 1988 Wildlife Protection Act, 1972 amended in 1993 Biological Diversity Act, 2002

Despite having a well-defined legal policy framework for protecting India’s forests and wildlife, there are a host of issues which have hindered the successful implementation of these statutes. They include:

Economic Development at the cost of Environment – The strong focus on accelerated economic growth as a means of reducing disparity within the Indian population had resulted in the governments at various levels dilute their stance on environmental protection. The notion that environment can be sacrificed to achieve a level of economic growth had gained currency

Institutional failures and policy gaps – Failure of Institutions to upheld the environmental laws both is spirit and practice has also been a major bottleneck.

PROBLEMS WITH THE PIL SYSTEMDespite the large-scale benefit to the Indian citizen in terms of protecting one’s fundamental or constitutional rights, it has also attracted a lot of criticism that is supposed to be counter-productive. The various problems are explained below:

Abuse of PIL for private/political gain PIL is now treated as a resort to solve private problems and thus leading to frivolous cases, which is making it difficult for courts to manage.1

Judiciary Overreach When courts formulate policies to be followed without consulting Government, legislature opposes stating that policy making is not the job of judiciary.Another problem is that the court has not made its stand clear on whether it has any say on matters in which no policy/law is violated.2

1) In MC Mehta Vs Union of India case on air pollution in Delhi, Supreme Court directed the govt to take steps.

2) However, in Niyamgiri and Silent Valley case, court said that it is not in the scope of judiciary.

Procedural ProblemPIL system is so flexible in India, that at times, the scope of cases is widened to such an extent that the primary purpose of filing the particular PIL gets diluted and administration becomes even more difficult.

Beneficiary InequityDue to legal procedures and costs, rural citizen have not yet benefitted from the system to a satisfactorily. It failed to benefit every stakeholder of the nation.5

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Policy Area InequityPost economic reforms, people have become obsessed with Economic development and are increasingly overlooking environmental implications. Being Judges are mostly from middle-class urban family and educated in professional institutes, judiciary is inherently biased towards development.

PIL IN FOREIGN COUNTRIESStudying PIL system in advanced countries will let one compare it with Indian standards and also suggest potential improvements in the Indian context.

RECOMMENDATIONS1. Current PIL system is abused with excessive filing of trivial issues. Thus exemplary

penalty should be imposed on people for filing such cases.2. To bring more social/environmental problems of people, awareness needs to be

spread around and in those NGOs play a very important role.3. Currently judges do not understand the environmental problems to a greater extent

because of their bringing up in sophisticated surroundings. Thus, training should be arranged for judges so that they understand concerned problems in depth.

Germany & France

PIL can be filed only by bodies registered with Environmental authorities, not by ordinary citizen.Another constraint is that the case should be filed within one year of occurrence of the dispute.Also, French laws demand procedures to be followed strictly even for PILs.

CanadaPIL can be filed only when there’s a serious flaw in the system and the person is directly affected by the problem.The court also accepts cases in its discretion when it believes that a large section of the society can benefit from the case.

South AfricaPIL originated because of the caste discrimination. Throughout the years, PIL has been filed for benefits of the people in order to gain equal rights and not much PIL have been filed for environmental concerns.

ChinaPIL can be filed only if one is having direct interest in the consequences.Being a communist country there is fear among people to file PIL against the state.Procedures are not very well defined to file PIL

U.S.A.PIL was started on the issue of entrance of black students in public school in 1960s and now is most advanced and free in terms of filing PIL. Judicial system supports the filing of PIL and as a result many PILs are filed and many decisions are taken into the favor of people.

AustraliaIn Australia can be filed in case of Locus-Standi.Procedures to file PIL are very well defined and fact finding is not limited to inquisitorial nature but adversarial role could be taken by the defendant.

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4. Right now we do not have many Eco-PIL benches in our country. Thus, in order to respond to environmental problems in a better way courts should be equipped with Eco-PIL benches.

REFERENCES

1. India’s Forest Rights Act -The anatomy of a necessary but not sufficient institutional reform byMadhu Sarin with Oliver Springate-Baginski,Institutions for pro-poor growth Discussion paper series

2. ENVIRONMENTAL REGULATIONS AND LEGAL FRAMEWORK IN INDIA – A report3. Public Interest Litigation – Potential and Problems by Ashok H Desai and H

Muralidhar,International Environment Law Research Centre4. Ecological Destruction vis-à-vis Environmental Jurisprudence in India: A Survey by Kirti

Singh Chauhan and Surender Singh Chauhan, Jaipur National University5. Air pollution with special reference to vehicular pollution in urban cities – A Report

(http://envfor.nic.in/soer/2001/ind_air.pdf)6. A case study of using CNG as a transportation fuel in Delhi; International Journal of

Applied Environmental Sciences, Sept, 2009 by Amit Pal, S. Maji, O.P. Sharma7. Waste Management & Policies: Report by Almitra Patel8. Silent Valley – Created by Nature, Preserved by Mankind By K Sasidharan Nair9. EM Profile No 3 – Public Interest Litigation (6 oct 2009) by Christoph Scwarte10. http://www.environmental-mainstreaming.org/documents/ 11. J. Mijin Cha; A CRITICAL EXAMINATION OF THE ENVIRONMENTAL JURISPRUDENCE OF

THE COURTS OF INDIA; Albany Law Environmental Outlook Journal 200512. Ruchi Agarwal; Role of Supreme Court in Environment Protection; JurisOnline.in

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