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Idea Transcript


ENVIRONMENTAL GOVERNANCE AND ROLE OF JUDICIARY IN INDIA

A thesis submitted to the University of Mysore, Mysore, through the Institute for Social and Economic Change, Bangalore, for the Award of the Degree of Doctor of Philosophy in Political Science

By

SEETANJOy SAHU

Under the Supervision of Dr. M adhushree S ekher

Institute for Social and Economic Change, Bangalore December 2007

DECLARATION

I hereby declare that this thesis entitled "Environmental Governance and Role of Judiciary in India" is the result of my own work carried out at the Institute for Social and Economic Change (ISEC), Bangalore, under the guidance of

Dr.

AAadhushree Sekher, Assistant Professor, Centre for Political Institutions, Governance and Development, ISEC, Bangalore.

I further declare that it has not been previously submitted, in part or full, to this or any other University for any degree. Due acknowledgements have been made wherever anything has been referred from other sources.

Date: 2.^ '

0^

(Gcctanjoy Sahu)

CERTIFICATE

I hereby certify that the thesis entitled "Environmental Governance and Role of Judiciary in India" submitted by Mr. Geetanjoy Sahu in fulfilment of

the

requirements

for

the award

of

the

degree

of

DOCTOR

OF

PHILOSOPHY in Political Science is an original work.

I also certify that it has not been previously submitted for the award of any degree or diploma or associate fellowship of the University of Mysore or any other University.

Date:

»?•

(M adhushree Sekher) Supervisor Assistant Professor Centre for Political Institutions, Governance and Development (CPIGD) Institute

for

Social

and

Change, Bangalore-560072 India

11

Economic

ACKNOW LEDGEMENT I express my heartfelt gratitude and thanks to my supervisor Dr. Madhushree Sekher, Assistant Professor at the Centre for Political Institutions, Governance and Development (CPIGD), ISEC, who encouraged, inspired and guided me throughout the course of my research. I am really indebted to her for her valuable suggestions, constant guidance and moral support. I sincerely thank the members of my Doctoral Committee; Dr. N.Jayaram (Director, ISEC), Dr. R.S.Deshpande, Dr. Sharachchandra Lele, Dr. K.V.Raju for their valuable contributions to this thesis, I especially thank my major mentor. Dr. Sharachchandra Lele (Coordinator and Senior Fellow, CISED), for his wonderful guidance, insight, patience and moral support, without which this thesis could not hove been possible. Special thanks also go to Dr. M.K.Ramesh (Professor and Head, CEERA, National Law School, Bangalore), for both his patience and assistance with my persistent legal queries. I also take this opportunity to thank my internal thesis panel members. Dr. M.V.Nadkarni, Dr. G. Hargopal and Dr. Supriya Roychowdhary for their valuable inputs and critical feedback on different aspects of the thesis. Also, I express my thanks to Dr. S.N.Sangita, (Professor and Head, Development Administration Unit), Dr. N.Sivanna, Dr. T.V,Sekher and

Dr. B.S.Bhargava for their support

and co-operation in completing this work. This research work could not have been earned out without the financial and other logistic support of ICSSR, New Delhi and ISEC, Bangalore, respectively. I, therefore, take this opportunity to thank ICSSR and ISEC for awarding me the fellowship that enabled me to take up the study. I express my gratitude to all the judges and lawyers whom I interviewed in the course of my field work, who devoted their time and patience in sharing information with me on my work. I would especially like to acknowledge former judges of the Supreme Court of India; Justice V.R.Krishna Iyer, Justice P.N Bhogwati and Justice G.B.Pattnaik for sharing invaluable information and giving some interesting inside stories to this non-legal scholar. Special thanks to advocates of the Supreme Court of India, namely, Prashant Bhushan, Sanjay Parikh, Ritwick Dutta, and Raj Panjwani for all their legal inputs and information on environmental litigotions in India.

Ill

I sincerely acknowledge the help and assistance received from the members of different Library Staff of different institutes such as, ISEC, Bangalore; National Law School of Bangalore; CISED, Bangalore; National Judicial Academy of

Bhopal;

Andhra Pradesh

Judicial

Academy of

Hyderabad;

Indian Law

Institute of New Delhi, and Supreme Court of India. I also thank Mr. K.S.Narayanc and Sonu for their thorough and careful copyediting of the thesis draft. A special thanks to AAr. Kamath and Krushna Chandra for tKcir help in technical issues. Besides making my stay comfortable and homely in ISEC, my friends especially, Krushna, Sarbani, Badri, Sachi, Tunga, Sarala, Smitha, Anita, Poulomi, Subir, Nitin, Dharma and other friends have helped me in different ways and at different points of time. I am also grateful to my friends Saroj, Gopal, Srinivas, L-itu, and late Prashant for their help and support at a time when I needed it most during my field work in Delhi. I sincerely thank them all. Special thanks to my sister Geetanjali and brother AArutuyanjaya for their constant moral support all the way to finish this work. Finally, I thank my parents for their love, support and immense faith in me. I dedicate this thesis to them.

Geetonjoy Sahu

IV

CO N TEN TS Contents

Page No.

Declaration

I

Certificate

II

Ac know led geine n t

111-IV

List of Chapter Contents

V-VII

List of fables

VIII

CHAPTER I: INTRODUCTION

1-23

1 I Background of the Studv

1

1.2 Debate on the Role of Judiciary in Environmental Governance

7

L2.1 Literature on Ideological Content of Judicial Decisions

8

1.2.2 Literature on Judicial Decision-Making Process

10

1.2.3 Literature on Impact of Judicial Intervention

14

1.3 Research Questions

18

1 .4 Methodology

I^

1,3 LiinUations ol the Study

22

1.6 Outline of the Dissertation

23

CIIA FI’ER II: HOW GREEN IS THE INDIAN JUDICIARY?

24-82

2.1 Understanding the Concept ol Green in India; ConcepUial Framework

24

2.2 Different Shades of Green

30

2.2.1 Environmentalism of Poor in India

30

2.2.2 MidiHe Cla.ss Indian Environmeiitali.sm

31

2,3 Metliodology

32

2 4 Suinmary ot Enviroimiental cases

33

2.41 Fnviromuenlal cases of the 'Industry versus Environment type

33

2.4.2 Environmental cases o f tlio 'State versus Environment' ty^pe

SO

2,4.2,1 Environmental Cases against State Agencies for Implementation Eailuie

50

2.4.3 Eiwiroamenta 1 cases of the 'Communit)^ versus Environment' t\ pc 2.5 Different Dimensions of judicial Approach toward Environmental Cases

70 75

2.5.1 Pro-Green Approach

75

2.5.2 Pro-Development Approach

76

2.5.3 Integration of Environment, Development and Human Rights

79

2.5 Summary

80

CHAPTER III: JUDICIAL DECISION-MAKING PROCESS ON ENVIRONMENTAL ISSUES 3.1 Understanding Judicial Decision-Making Process: Conceptual

83 135 83

Framework 3.2 Methodology

91

3.3 The Process of Judicial Decision-Making in Environmental Cases

95

between 1980-2000 3.3.1 Legal Factors

95

3.3.2 Extralegal Factors

102

3.3.2.1 Ideological Values and Preferences of Supreme Court Judges

102

3.3.2.2 Impact of Prevailing Socio-Economic and Political Environment

114

3.3.2.3 Resources of Litigants

129

3.4 Summary

134

C H A n ER IV: IMPACT OF JUDICIAL INTERVENTION ON ENVIRONMENTAL GOVERNANCE: CONTRIBUTIONS AND COMPLICATIONS 4.1 Innovative Judgments in Environmental Litigations and its Implications

136-172

4.1.1 Right to Hnvironnaent

137

4.1.2 Procedural Cliaiiges

142

4.1.3 Remedial FlexihiliU-

147

4.1.4 Spot Visit

149

41.5 Evolution of Environmental Principles and Doctrines

150

4.1.6 Independent Expert Committoo

154

4.2 Judicial Intervention in the affairs of other organs and its Implications 4.3 Summary

137

161 171

VI

CHAPTER V: CONCLUSION

173-185

5.1 Summary and Findings

174

3.2 Policy Implications

181

5.3 Further Research

184

Appendices

186-200

Appendix-l

186

Appendix-Il

191

Appendix-Ill

193

Appendix-IV

199

Appendix-\^

200

Bibliography

201

vii

List of Tables Title_____________________________________________________ ____________ _______ Page No.

Table 2.1 Environmental Cases on Tndustry versus Environment type

48-49

Table 2,2 Environmental Cases on 'State versus Environment 'type

68-69

Table 2.3 Environmental Cases on 'Community versus Environment type

74-74

Table 3.1 Interview with Selected Respondents

94-95

[ able 3.2 Dimensions and Preferences of Judges in Judicial Decisions on Environmental Cases

127-128

Table 3.3 Overall Picture of Environmental Cases in the Supreme Court

Vlll

133-133

CH APTER I

IN TRO D UCTIO N

1 .1 Background of the Study The ecological degradation and economic deprivation generated bv the resource intensive conventional model of development have resulted in environmental conflicts across

the

world.

The various environmental

problems such as

depletion of ozone layer, acid rain, green house effect, soil erosion, deforestation, water pollution, air pollution, and noise pollution have had devastating impacts on human well being and are also culminating into a spectre of irreversible long­ term damage to ecosystems. Like any other social, economic and political problems, these environmental problems have caught the attention of policvniakers, intellectuals, social movement activists and research scholars. To deal with these environmental problems, efforts have been m ade since 1970s both at the international and national levels. At the international level, the Uni led Nations took the first initiative for the preservation of the environment. Likeudse, the U N, Conference on the Human Environment at Stockholm in June 1972 evolved cerlain principles and actil]u1ioii) .Act, 1*^74 ( t h e V\dler

\ii ( r i e v i ’ u l i o n a n d C o n t r o l o( P o l l u l i o i i ) .Act.

t h e M a n u t a c l u r e , S t o r a g e a n d I n ip o r l ol H a z a r d o u s C h e m i c a l R u l e s and

H an d lin g )

R u les

W S9, the

M a n u la ctu re ,

\Oi

(t h e Air .Acl), F i n i r o n m e n t ( P r o t e c t i o n ) Ai l, I98tt (EP.A}. U se .

Im p ort,

H a/ ard oiis w aste (M an ag em en I

Export

and

Sto rage

o r g a i K s m s / G e n e t i c a l l v E n g i n e e r e d O r g a n i s m s o r C e l l s R u l e s 19 8 9 , the C h e m i c a l

ot

hazardous

M icro-

A ccid en ts (E m e rg e n cy

P l a n m n g , P r e p a r e d n e s s , a n d R e s p o n s e ) R u l e I99f>, B i o m e d i c a l W a s t e ( M a n a g e m e n t a n d H a n d l i n g ) R u le s 1998, t h e M u n i c i p a l S o l i d w a s t e s ( M a n a g e m e n t & H a n d l i n g ) R u l e s 2(KK). R e c y c l e d P l a s t i c M a n u f a c t u r e a n d C s a g e R u le s 1999, O z o n e D e p le tin g S u b s ta n c e s (R e g u la tio n and C o n tr o l) R u le s 2 0 0 0 , the N o is e P ollution ( R e g u l a t i o n a n d C o n t r o l ) R u l e s 2 0 0 0 , B a t t e r i e s ( m a n a g e m e n t a n d H a n d l i n g ] R u l e s 2 0 0 1 , t h e P u b l i c L ia b i l iU Insurance

A ct

1991, N atio n al

E n v iron m en la l T rib u n a l

A cl

19 9 5 ,

the N a tio n a l

E n v iro n m en t

. A u t h o n h ' A c t 1997, B to d iv e r siW ' P r o t e c t i o n A ct 2 0 0 2 , N a t i o n a l E n v i r o n m e n t a l P o l i c y 2 0 0 b , e tc p r o v i s i o n s o f all t h e s e e n v i r o n m e n t a l l a w s a n d p o l i c i e s a r e a v a i l a b l e a t vs n w . e n v t o r . n i c . i n

A p p ellate

The

d etail

and prevent the degradation of environment. And their interpretation is a major task of Indian judiciary.

Hovve\ cr, the plethora of such enactments and Constitutional provisions has not resulted in preventing environmental degradation in the country. The last two decades have been a period of rapid degradation in the Indian environment. The enactment of a number of laws both by the C en h al and State governments relating to en\ ironment has not made much head wav in conholling depletion

process

misadministered

and

the

laws,

or mismanaged.

by

and

large,

remained

the

unenforced,

Further, despite existence of a national

environmental policy, the constitutional mandate of environmental protection, the flurry of legislations and administrative infrastructure of implementation and the problem of environmental degradation still remain a great cause of concern in India and have intensified over the years. Most Indian rivers and frcshw'ater stieam s are polluted by industrial wastes or effluents. There has also been a rapid increase in casualties due to respiratory disorders caused by widespread air pollution. A widely cited study conducted in Delhi estimates that 10, 000 people die every year due to complications from air pollution, a staggering total of one person every hour.- In the Citizen's report on Indian Environment, forests have been singled out as the element of environment, subjected to most destruction and degradation. The effects of forest destruction on soil erosion, floods, siltation of reserviours, loss of genetic diversity, etc. are also well documented {CSE, 1985).

The reasons for this state of affairs are varied and complex but one major factor has been ineffective implementation of the concerned laws (Baxi, 1985; Ramesh, 2002). This has prompted environmentalists and the people, as w'ell as non' C e n tre for S t i e n t e and E n v ir o n m e n t

P rc n i> R

c Il u h l ’

o f IS

2000.

.A vaila ble at w u v v . e .s e in d i a .o i y . / b t m l / c m p / a ir / p r e s s 2 0 0 0 0 7 1 8 . h t m

governmental organizations, to approach the Courts, particularly the higher juciiciaiv, for suitable remedies. Interestingly, juciiciarv has also responded in a pro-acti\ e manner to deal with these different nature of environmental problems (Divan and Kosencranz, 2001; Ramesh, 2002). W hile conventionally the executive and the legislature play the major role in governance, the Indian experience, particularly in the context of environmental governance, is that the judiciary has begun to plav a very important role in the environmental governance process.

The increasing intervention of judiciary to resolve environmental disputes has led to the occurrence of a now phenomenon - the emergence of Courts of Law in India, as perhaps, the sole dispenser of environmental justice. International legal experts have been unequivocal in terming the Indian Courts of law as pioneer, both in terms of laving down new principles of law and also in the introduction ('► f innovations in the environmental justice delivery system

(Peiiis,

1991;

Anderson, 1998). Although it is not unusual for courts in Western democracies to play an active role in the protection of en v iro n m en t the way Indian Supreme Court has been involved since 1980s in interpreting and bringing new changes in the environmental jurisprudence is unique in itself. Perhaps no judiciaiy in the world has devoted as much time, effort and innovativeness to protect the environment as the Supreme Court of India has for the last two decadesd Besides the assigned role of interpretation and application of law, the judiciary has also performed an educative and innovative function bv creating awareness about environmental problems am ong the public through a series of illuminating directions and judgments.

During a short span of time, the Indian judiciary has expanded locus standi, laid down new principles to protect the environment, reinterpreted environmental ^ t h e S u p r e m e C o u r t o f o l h e r c o u n t r i e s s u c h a s , U S A , C a n a d a , .A u stra lia , N e iv Z e a l a n d , a n d B ra z i! also h e c o m e p a r t o f e n v i r u m n e n t a l j u r i s p r u d e n c e in th e ir r e s p e c t i v e c o u n t r i e s ( 1 8 6 ''’ In d ia , 2 0 0 3 )

L a w

C o m m i s s i o n R e p o r t of

laws, created new institutions and structures, and conferred additional powers on the existing ones. The protection and improvement of environment through various directions are being seen as a part of the precipitant role of the Supreme Court in the form of continual creation of successive strategies by way of judicial inters enhon. In view of the frequency of judicial orders/directions passed periodically b\ the apex court, scholars like Dwivedi (1997) have lebeled Supreme Court as the 'Green court', directing and monitoring the progress of the en\ ironmental

project as

its chief concern

and

preoccupation.

Thus,

an

impression has been created that the Supreme Court of India plays a major role in environmental governance not onlv in comparison with legislature and executive branches of the state but also in comparision with its counterparts in the developed and developing countries. Tliis interesting phenomenon is the primary focus of this dissertation.

1.2 Debate on the Role of Judiciary in Environm ental G overnance Over

the

last

two

decades,

this

increasing

role

of

Indian

judiciary

in

environmental governance has been an important area of inquiry among legalpolitical scholars. There have been considerable num ber of studies on the role of judiciary m en\ ironmental governance in India, though compared to many other areas and the tussle betw'een judiciary and Parliament power, this number is small. Majorit\' of studies are recent, published after the mid-1980s. Most of them are by legal experts, environmental and human rights activists or journalists, and the opinions vary. Many welcome it for the good that it is perceived to have done; others are somew^hat uneasy at this development; and some strongly feel that it is improper. To judge by recent literature, this ambivalence has increased. The following section examines some of the key assessments and interpretations of the Suprem e Court's role in resolving environmental disputes in India, It begins by highlighting briefly the ideological content of judicial interpretations of different issues involving in environmental litigation. This is followed by

unraveling literature on the factors for different types of judicial decisions on environmental issues. Finally, an attempt is made to trace out the literature on the major impact of judicial intervention on environmental governance.

1.2.1

Literature on Ideological Content of Judicial Interpretations

The Court directions in environmental litigation recognizing that the poor and disadvantaged sections of the society pay the heavy price due to environmental degradation and therefore their rights need to be protected have been viewed bv inanv scholars (Gaur, 1992, Dwivedi, 1997; Thakur, 1997; Leelakrishnan, 2005) as recognition of social justice and human rights aspects as part of environmental protection. The Supremo CourTs direction to prevent and control pollution of natural resources from indiscriminate development activities has also been considered

as

pro-environmental

judgements.

Allowing

a

third

party'

to

represent on behalf of affected people through filing PlLs is seen as bringing justice to the door step of people, especially for the poor and disadvantaged sections of the society' (Peiris, 1991; Baxi, 2000). Leelakrishnan (2005) argues that allowing the public to represent on behalf of inanimate objects has established the intrinsic \'alue of nature, which needs to be preserved for the sustenance of the ecos\'stem.

Recent scholarly writing by Amita Baviskar et al. (2006) emphasises that the judicial direction in environmental litigation is more concerned atx.mt middle class people's right to public health and quality' of environment and that it sidelines other different claims revolving around environmental problems. She argues that to protect the environment in the name of public interest from industi'ial pollution, the Court, the Pollution Control Board, Lawyers, and NGOs have worked in collaboration with each other and hav^e thrown out the small business groups and workers out of employment. Tliis kind of judicial direction, she has labeled as a part of middle class environmentalism in India, which does

8

not associate itself with other social structures v%hile protecting the en\ ironment in (lu‘ name ot public interest.

I hrough

its intervention,

some other scholars

( I hakur,

1997,

Di\ an and

Rosencran/, 20(H) have emphasized that the Court has made an attempt to reconcile different claims such as dev elopment, environment and human rights [ he concern of judiciarv that the dev ek^pment activ ities to meet the increasing deinan(.ls of the people need to be earned out in balance with the av ailable resources and recognizing the claims of affected paitv reflects the principle of sustainable development in the outcome of environmental litigation and has become an integral p a rto t the Indian environmental jurisprudence.

Xev ci theless,

the Suprem e Court's

problems

some

m

other

cases

has

restrained been

approach

criticized

as

to environmental subordination

of

env [I'onmental interests to the cause of development and economic policv (Baxi, 1990; Lpadhvav, 2000; 2001; Visvanathan, 2000; John, 2001; Bhushan, 2tX>4; Iyer, 2000; 2006). Importantly, the human and environm ent consequences of big dev elopm ent activities have not been giv en equal priority' in judicial decisions (Cuilet, 2001). These kinds of judgements, which sideline environmental and human rights issues, have raised doubts about the concern of judiciary for env ironment.

Its apprv>ach to env ironmental litigation has been, therefore,

\ ievved as selective and symbolic. The judicial outcomes m such nature t>f env ironmental litigation have also been criticized as anti-env ironment and anti­ people, lacking a rigorous understanding of the multi-dimensional

issues

revolving around environmental problems (PUDR, 2(102). For instance, the Supreme

Court's

order

concerning

the

inter-1 in king

of rivers-

offers

an

illustration of the court's lack of interest m understanding the multi-dimensional

^ T h e iss u e ot i t i t e r - l i n k i n g o l r i v e r s t a i u e lo c o u r t s n o t i c e a s a n i n t e r l o c u t o r v ap|ilu a t i o n Itleii bv t h e riiiiK us c u r i a e in the V a n u i n a |iol[ution c a s e in 2 0 0 0

aspects of developm ent projects that involves environmental issues (Bhushan, 21X14; Iyer, 2006). Critics argue that the order has been given by the Supreme Ctmrt

without

either

hearing

any

interested

party'

(including States)

or

Lindertaking a feasibilitv study to examine the im pact of the p ro ject The court order has also failed to take into account the questions of social, environmental and economic assessments, which may subject the country to face certain dismal consequences.

The above review of literature on the idelogical content of judicial interpretations suggests that there have been different strands of ideology in resolving eiivironmcntal disputes. However, what needs to be traced out is how the ideological aspects of judicial decisions are reflecting the nature and extent of environmentalism in India and with what effect In this context, it would be necessary to conceptualise the judicial decisions in the realm of the existing theoretical debate on environmentalism in India. This would essentially provide a better understanding about the 'greenness' of Indian judiciary.

1.2.2

Literature on Judicial D ecision-M aking Process

The conceptualizations of different values in judicial decisions in different ways have made scholars to identify different factors contributing to the judicial decision-making process on environmental issues. The different outcomes of judicial decisions as argued by Baxi (2000) and Sathe (2001) could be attributed to the attitudinal differences among the justices to environmental litigation, which play an important role in the judicial decision-making process. They point out that like any other institutions, judiciary is run by human beings and reflects the values and preferences of judges who are in charge of resolving the problems in the litigation

As human values and preferences differ from individual to

individual, it is obvious that decisions on litigation may also vary' from case to case as decided by different benches headed by- different judges.

10

According to hJaxi, there are two important reasons for the different approaches bv judiciary in any nature of litigation including environmental litigation. First, is the distinction between an active judge and an activist one. judges, bv detimtion, have to exercise a fraction of sovereign power of the state every time the\ pronounce a judgment. The distinction bchvcen activist judges from an active judge lies in the self-image of a judge. To quote U. Baxi "A n active judge regards himself as a trustee of state regime and authorit\e Accordingly, he usually defers to the executive and legislature; reject any appearance of policy­ making; supports patriarchy and other form of violent social exclusion; and o\ erall promotes stabilih’ over change. In contrast, an activist judge regards himself as holding judicial power for the protection of civil and democratic rights of all peoples, especiallv the disadvantaged, dispossessed, and the deprived. He does not regard adjudicatory power as repository of the reason of the state rather he constantly re-works the distinction between the legal and political sovereign which legitimates judicial action as an articulator of the popular sovereign (Baxi, 2l)0(J, p. 165-66)" In this sense, activist adjudication becomes possible only when a judge retains the power to contest a given political regim e's claim to be the sole articulator t>f the common good. The intervenhon of judiciary in the affairs of other organs and in challenging state policies w ithout regard for environment could be attiibuted to the activist part played by the judges in environmental litigation.

This argum ent of Baxi is shared by Sathc (2001) as well, but with a different connotation. Fo Sathe (2001), the differences of judicial decision by different judges lie m the distinction between the conservative and progressive justices. According to him, a ctmservative judge interprets the Constitution not in terms of what it should be but in terms of what it is. The conservative judge believes that the courts need not be concerned with what the effect of an interpretation would be but should instead state what the law is. If the law is to be changed, it

11

is the tunction of the legislature. This is termed as the 'black leffcr laio Irnrlitioti' in which law is divorced from morality. The function of a court is conceived as that of a mere interpreter of the constitution with emphasis on the 'letter' rather than spirit' of the constitution

The progressive judges interpret the provisions of a

constitution liberally in the light of the emerging socio-economic and political situations A judge giving new meaning to a provision such as right to healthv en\ iromnent as a part of fundamental right to life or interpreting the law so as to suit the changing socio-econtnnic conditions or expanding the horizons of the riglUs of the indi\ idual is said to be progressive

SeHtuid reason for differences in judicial approach to environmental litigation, according to Baxi, is the parties in\'ol\ ed in litigation, ludiciai disposition has ctune down hea\ ih on micro-structures of power leaving intact the macro­ structures of political power. In environmental litigation, judiciary has ordered close down of small tannery business that pollutes the Ganges and yet finds itself unable to take a coherent human rights stance in mega-irrigation projects such as l ehn and Narmada dams and hazardous nuclear power plants that present long­ term environmental and human hazards.

l.ooking at judicial decision-making on environmental litigation from a different perspective, Venketesan (2000) attributes the different approach of judiciary on em ironmental litigation to the location of environmental problems i.e. urban or rural. According to him, if the environmental problem is located in urban areas then outcome of judiciary is different than the rural environmental problems. According to Upadhyav (2001), in its approach to environmental problems, the judiciary has been following a particular tiend in all environmental cases to address v'arious issues involving human rights and social justice components, while it has failed to apply the same principle in resolving env-ironmental problems

resulting

from

infrastructure

projects.

Tlve

history

of judicial

intct\cntion in the infrastructure projects reveals that the judiciary has not followed its precedents in these cases. Analyzing judicial decision on different environ mental issues differently, Pathak (1994) argues that the Supreme Court approach to envirtinmental litigation followed a dual strategy. He finds that in ft'rest related issues where the state has claimed its environmental agenda, the court has protected the rights of the forest dwellers, while in pollution related issues where the state has been reluctant, it has cast duties on it to be concerned about the eiu ironment.

W liile undei standing the role ol judiciary in environmental governance, other scholars ha\ e concentrated on judicial review power and thereby attributed jLuiicial

mter\ enrion

to the

failure

of other

organs

in performing

their

constitutional duties (Pal, 1997; Thakur, 1997, Ramesh, 2002). They argue that existing institubonal mechanism and legal framework gives judiciary the power to play an important role in environmental governance process. The intervention of the jLidiciarv in environmental governance is a part of the Constitutional duties of the Court to uphold the rule of law, enforcement of individual rights and protecting the propriety' of the Constitution. It has been largely confined to remoy ing structural impediments to the implementation of environmental laws, hich has pixivided a space for judicial intervention in environmental protection. In such circumstances, the Courts have assumed the affirmative executive powers of issuing directions, appointing commissions, collecting and verifying information, monitoring and supervising the running of public institutions to discharge then Constitutional obligation for the protection and improvement of eny ironment. Whether it is the question of civil liberties, minority rights, issues of distributive justice, problems of good governance or industrial pollution for that matter, almost every arena of governance has been scrutinized by the judiciary as part of its constitutional duties and environmental governance is no exception to this.

Scholars like Sathe (2001) further argue that the Court's power to review^ administrative achons and legislations under a written constitution with a bill of rights cannot remain merely technocratic because the expressions used in the bill of rights (such as; equality before law, equal protection of \aw, personal liberty, the procedure established by law, or freedom of speech or expression) are subject to acquire new meanings as society' evolves and social change occurs. A constitutional court, therefore, cannot remain a mere technocratic court when there is violation of laws and polices aimed at protecting and improving the environment and ensuring people their fundamental right over the use and management of natural resources.

The above-discussed studies broadlv✓ address the role of different factors in the judicial decision-making process on environmental issues in India. What is lacking, however, is conceptualisaton of the theoretical debate on judicial behaviour and application of different analytical variables emerging therein to explain

why

the judiciary behaves differently in resolving environmental

disputes. The analysis of judicial decisions in the realm of the appropriate theoretical formulation would in turn facilitate the exploration of different kinds of 'greenness' associated with judicial interpretation of the environmental litigation.

1.2.3

Literature on Im pact of Judicial Intervention

The application of innovative legal doctrines and their adaptation to the emerging socio-economic and political environm ent by the Court have been viewed

as

contributing

immensely

to

the

evolution

of

environmental

jurisprudence in India. Many scholars (Reddy, 2001; Divan and Rosencranz, 2001; Mishra, 2002; Aparajit and Badhe, 2003; Leelakrishnan, 2005) assert that the expansion of the meaning and nature of constitutional provisions through the Supreme Court's interpretation and its directions to ensure individual right to

14

liealthy

environment

have

significant! v

contributed

to

the

evolution

of

environmental jurisprudence in India. In a number of cases, the Court has noted at length the right to environment as a part of the fundamental right to life and has recognized this as one of its main planks in giving the judgement (Pathak, 1904; Dvvivedi, 1997; Anderson, 2001).

Some other scholars (Mathur, 2001; Ramesh, 2002; Leelaknshnan, 2005) view the process of judicial decision-making as innovative and

deviating from its

tiaditional forms of exercising power and functions. The Court in a number of cases recognizing its inability has relied on scientific expert committee to pass judgements. In this context, it is important to note that environmental decisions iiwolve scientific and technical matters, which are not the usual way of judicial functions to deal wiXh this nature of litigation Yet, in a sharp departure from this position, the last two decades have shown that in a large number of cases, and especiallv in those relating to the protection of environment, policy and technical constraints h av e not prevented the court from taking remedial action.

A sure

testimony t>f this has been the plethora of committees appointed and relied upon bv the courts for this purpose in cases such as Doon Valiev case, Delhi Vehicular pollution case, .MA'.Nayudu case, Godavarman case, etc. The proliferation of court-appointed committees has been rightly seen by scholars as an innovative method and the inevitable consequence of the failure of executive to bring in timely correcbves (Upadhvay, 2000, p. 3790). It has handled on its own very delicate and complex environmental issues successfully. Its decision in dealing witli complex environmental issues has been recognized as very progressive and innin ative in the field of environmental justice. These innovativa^ processes have given

impi^rtant

raw

material

for

building

up

a

comprehensive

Indian

en\'ironmental jurisprudence (Jariwala, 2000).

15

The relaxation of the locus stniuii principle and encouraging petitioners to bring cn\ ironiiiontal litigation bv the apex court has been hailed as one of the most important factors for the evolution of environmental jurisprudence in India (Deshpande, 1992; Sathe, 1999; Jarivvala, 2000; Desai and Muralidhar, 2001). The initiation of PiL, the timely demise of the law of standing, and the expansive interpretation tif Article 21 of the Constitution, argues Salve (2001) have paved the wav for the development of a bodv t>f environment law through judicial edict. Similarl\ , the court's suo motu notice to the State agencies to prevent and conti'ol pollution

is being viewed as innovative, which deviates from its

tradititinal doctrine of resolving disputes. The court's effort to ensure the implementation

of its directions

in few cases

bv appointing

monitoring

committee has also been projected (Mathur, 2001) as a kind of innovative method to improve environmental conditions. Analysing the role of Supreme Court in the Delhi \ ehiciilar Pollution case, Kumar (2002) finds that the court has taken a denianding decision when it directed the Delhi government to use CNG as an alternative fuel and implement its orders latest bv March 31, 2001. This decision has been termed bv Kumar (2002) as precipitant i.e., precipitating the issue of compliance with directions given by the court to the governm ent and other users t>f vehicles. The other areas of judicial decisions in environmental litigation such as deciding ct>mpensation for the damage done to environm ent and for the \ictims; giving award to petitioner ft>r taking the initiative; setting up Green benches in different state High Courts; applying international principles to environmental protection etc., have also been considered as well thought-out steps in the directions of strengthening environmental jurisprudence in India.

Of

late,

however,

this

process

of judicial

interv'ention

in environmental

go\ ernance has been seen as v iolation of the principle of separation of power and against the spirit of democracy. By usurping the role of existing agencies and directing policies through its orders, it has been argued that the Court risks

16

making decisions that may not be the most efficient solutions to the cases that come before it. Steadfast resistance from the implementing agencies responsible for enforcing the Court order and people affected due to close down of industries has made critics to question about tlie credential of judicial decision. By forcing the implementing agencies to implement its orders, the Court seems to be usurping the authority' of the existing pollution control structures to fulfill their duties indepondentlv. This raises both institutional and constitutional questions, as the CciLirt grapples to determine which branch of governm ent is best suited to handle pollution control matters thorobv impeding the development of more effect! \e environ mental controls in the countrv (Rosencranz and Jackson, 2003; Bell, Mathur, Narain and Simpson, 2004). It is also argued that the Indian Court has not been com petent to handle matters of great technological complexity inv oh ed in env ironmental litigation. Tlie most important criticism against judicial interv ention in eiwironmental litigation has boon its failure to ensure the implementation of its directions which has been vTevved as a kind of challenge to the kgitimacv' t4 judicial interv^ention (Dembt)wski, 1999; Desai and Murlidhar,

2001 ) ] he above-mentioned studies hav'e broadly identified two important aspects of judicial intervention in environmental governance. First, the innovative methods introduced in environmental jurisprudence through judicial intervention and second, the problems associated with the interference of judiciary in the affairs of other organs to protect the environment. Xevertlieless, tliese studios have by and large ignored the long-term contributions and complexities of judicial decisions to environmental governance, A detailed examination of the innovative methods and increasing intervention of judiciarv in environmental governance is further required to capture the overarching impact of judiciary on environmental governance.

17

1.3 Research Q u estio n s In the light of the above literature, it is clear that the S u p rem e Court of India is an important institution

in resolving environmental

disputes.

It has created,

through its interventions, a set of changes in the environmental governance process signih ing a shift both in its tiaditional function to interpret the law and also in the concern for environmental protection in India. Scholars belonging to different disciplines have tried to grapple with specific dimension of the role of the Suprem e Court of India in resolving environmental disputes from their particular disciplinary perspective. Hence, it is essential to srutinise the whole process of judicial intervention in environmental issues in a more comprehensive manner through a detailed and scrupulous analysis of the entire phenomenon. Specificalh', it is vvtirth investigating the following research questions:



How Green is the Indian judiciary?



If it is Green then when is it Green and why is it Green?



What is the impact of its Greenness on the environmental governance process?

1.4 M ethodology I he study is based on a two-pronged approach. In the first part, the study has review-ed a large number of environmental cases to understand different dimensions of judicial intervention in environmental cases. There have been a total of 104 environmental cases'’ (Appendix J) in the Suprem e Court fiom 1980 tti 2000. O f these, 25 cases (Appendix II) have been reviewed purposK-ely for the study purpose to understand the different approaches of judiciary tow-ards environmental litigation. The selection of the cases has been made in a manner that represents cases ov^er a span of time (1980-2000), different types of environmental cases (viz., air pollution, water pollution, forest degradation, and '' The iniormdhoi'i is based on llie A fl India Reprter till December 2000. Supiem e Court Cases.

cnvii'onmontal problems related to infrastructure projects etc.), cases from both rural and

urban areas, cases filed by State, NGOs and common citizens,

iin olvcinent of State as a partv^ to the litigation and involvement of a private partv to the litigation and cases relabng to the protection of wildlife and bi(Kli\ ersitv .

From the Public Interest Litigation Section of the Suprem e Court and the All India Reporter of Supreme Court, I have obtained the list of environmental cases filetl in the Suprem e Court from 1980 to 2000. The details of these cases, including appeals made bv the petitioner, arguments by the respondent and the )udgment/orders are available in the All India Reporter of the Supreme Court (AIK, SC), All India Reporter of the Supreme Court Cases (AIR, SCC), All India Reporter of the Suprem e Court Alumina (AIR, SCALE)/ Tlie study has relied on these archival All India Reports of Supreme Court to trace out various issues im olved in different environmental litigation stretching from 1980 to 2000. These documents are available in the library of the Suprem e Court, State High Courts and in Judicial Academy of each state of India. As far as the draft petitions are concerned, 1 have relied on the photocopies available in the NGO networks of civil society groups who have taken the initiative to file these cases in the Supreme Court. Importantlv', these legal files of petitioning parties include many rehwant papers and therefore constitute an appropriate source of information. Also, Governm ent Committee

Documents on Environment Policy

Reports

like

Bhurelal

Committee

Report,"'

and

Law A various

Hanumantha

Rao

' T h e s e t h r e e d o c u m e n t s g i v e f i u t h e n t i c a n d d e t a i l e d i n t o r m a t i o n on all l i t i g a t i o n w h i c h c o m e to S u p r e m e C o u r t fo r r e s o l u t i o n . It c o n t a i n s the a r g u m e n t s m a d e by th e b o t h p a r t i e s a n d th e d i r e c t i o n s / o r d e r s o f the S u p r e m e C o u rt o f India d ifferen t p riv ate

T h e s e d o c u m e n t s ( A I R , S C ; A I R , S C C ; .AIR, S C A L E ) a r e p u b l i s h e d b y throe

p u b lica tio n c o m p a n ie s from

th re e d ifferen t

places

lik e N a g p u r , L u c k n o w a n d

D e lh i

respectiv ely ^ The p r o v i s i o n s o f d i f f e r e n t e n v i r o n m e n t a l a c t s h a v e b e e n r e v i e w e d to u n d e r s t a n d t h e o b je c t i v e o l the l a w s In the D e l h i v e h i c u l a r p o l l u t i o n c a s e , the S u p r e m e C o u r t a p p o i n t e d th e B h i i r a l a l C o m m i t t e e to g i v e i n p u ts to c o u r t a b o u t the fu e l q u a l i t y a n d a l s o to m o n i t o r S u p r e m e C o u r t d e c i s i o n s .

19

Committee Repoitd'^ Bhargava Committee and Niley Upadhyay Committee Report;*’

Cohra

Committee

Report;'-

and

v^arious

reports

of

National

Fnvironment Engineering Research Institute*' recommended to the Supreme Court have been analysed to strengthen the understanding on judicial approach to the environmental litigation.

In the second part, to examine the dynamics of judicial decision-making in en\ ironmental cases, 1 have reviewed the environmental cases and have also interviewed different groups, such as judges, lawyers, and petitioners. ITiese groups have been selected based on their involvement in the environmental cases taken for the purpose of the stud)' or in other environmental cases. In general, environmental cases are filed either by environmental activists/NGOs and legal groups working on environmental litigation and not necessarily by the affected party always. In such circumstances, interaction with the petitioners has been necessitated by a need to understand the motivation of their initiative; their selective approach; and the strategies they had adopted to draw and influence judicial decisions. The lawyers have been interviewed because environmental cases come to judiciary through writ petition or PIT where there is no role of oral evidence or eyewitness for environmental problems and in such situations the role of lawyers therefore becomes crucial. The lawyers interviewed represent both on behalf of petitioner and respondent.

"

[ l\ e

G o v e r n m e n t of Indifi a p p o i n t e d a c o m m i t t e e u n d e r the c h a i r m a n s h i p o f H a n u i n a n t h a R a o to lo o k

m t o th e d i f f e t e n t d i m e n s i o i r s o f T e h r i D a m p ro je c t. T h e G o v e r n m e n t o f I n d i a a p p o i n t e d W o r k i n g G r o u p o n M i n i n g o f L i m e - S t o n e u n d e r th e C h a i i in a n s h i p of D >J B h a r g a v a to re v ie w th e l i m e - s t o n e q u a r r y l e a s e s for th e ir c o n t i n u a t i o n or d i s c o n t i n u a t i o n in t h e D o o n V a lle y . T h e G o v e r n m e n t o f I n d ia a p p o i n t e d a c o m m i t t e e h e a d e d hv M r . B . B . V o h r a in r e s p o n s e to the n e e d for e x a m i n i n g t h e i s s u e s r e l a t i n g to d e v e l o p m e n t o f t o u r i s m a n d h o t e l i n d u s t r y in c o a s t a l a r e a s a n d to r e g u la t e the s a m e keepiing in v i e w the r e q u i r e m e n t s o f s u s la in a h E e d e v e l o p m e n t a n d f r a g i l e c o a s t a l e c o l o g y . M a t io n a l E n v i r o n m e n t a l E n g i n e e r i n g R e s e a r c h I n s t i t u t e is b a s e d in N a g p u r w h i c h is t h e p r e m i e r r e s e a rc h i n s t i t u t e o n e n v i r o n m e n t a l is s u e s in In d ia a n d h a s b e e n p a r t o f m a n y i n v e s t i g a t i o n s in to e n v i r o n n i e n t a ! p r o b l e m s a n d g i v i n g i n p u t s to t h e S u p r e m e C o u r t for r e s o l v i n g e n v i r o n m e n t a l d i s p u t e s

20

Finally, a sam ple of judges has also been interviewed for the purpose of this study This need has been felt due to the interest shown by a few judges in en\ ironmental cases. A section of judges are well known for their environmental judgments, whereas, there are judges who are selective in their approach on environmental issues. Tlie study has adopted purposive sampling to understand the individual approach of judges. There had been a total of 149 judges'^ (Appendix 111) in the Supreme Court from 1950 to 2000.-^ As far as environmental judgements are ccnicerned, frt>m 1980 to 2000, 66 judges had been part of different environmental lihgation either in the form of giving interim orders or final judgments. In this studv, 22 judges (Appendix IV) have been interviewed, including 4 sitting judges and 18 retired judges who had been involved in different nature of environmental

litigation.

An open-ended

unstructured

questionnaire has been used for the interview purpose. The duration of the interviews ranged from 30 minutes to 2 hours. Most of the interviews have been recorded in the form of notes taken bv the researcher revolved around judges

Interviews primarily

experiences of dealing with environmental cases, as

well as thoii understanding on different dimensions of environmental problems. Apart from the mformation collected from the respondents through interviews, the studv has also closely analyzed the outcome of selected 16 environmental cases (Appendix V) to understand the significant determining factors in the judicial decision-making on environmental issues.

Relatively

less

literature

exists

on

the

anaysis

of judicial

approach

to

environmental litigation, and in this regard the study has exclusiv'ely drawn on Armin Rosencraz and Syham Diwan's (2001) book on "Environm ental Law and

^ Avciilfibie

at

vv wvs’.s u p r e n u x u t i r l o t i n H i a . i i u . : n .

R N K rip a l, A s b o k

H .D esa i, G o p a l S u b ra m a n iu n i.

A ls o K aje e v

see

Suprem e

Bui

Dhavan and

R a ju

Not

I n f a ll i b le ',

ed ited

by

R a m c l i a i i d r a n ( 2 0 0 1 ) , M ew

D e lh i; t>xforci U n i v e r s i t y P r e s s T h i s i n f o r m a t i o n w a s c o l l e c t e d in N o v e m b e r 2 0 0 5 . T h e S u p r e m e C o u r t h a d 1 6 2 j u d g e s d u r i n g 1 9 5 0 - 2 0 0 5 a n d c u t o f t h e m t h e r e w T r e 1 4 9 ju dge.s d u r i n g 1 9 5 0 to 2 0 0 0 m t h e S u p r e m e C o u r t .

21

Polic\' in India ' There is also a dearth of literature on indivieiual approach of judges, where the study has been unable to explore anything but a seminal piece of article on Indian Judicial Behaviour published in Economic and Political Weekly (Cadbosis, 1970) which contains some useful information. Secondly, the stiidv has drawn on literatures dealing with different decisions of judiciary on environmental cases since the 1980s such as Ram asw am y Iver s (2006), Videv Upadhyav's

(2000),

Prashsant

BhusaiVs

(2004),

Ashok

II.

Desai

and

S,

Murlidhar's (2001), Chattrapati Singh's (1992), C. \T Jariwala's (2000), etc. have helped to explore judicial decision-making process on environmental issues.

1.5 Lim itations of the Study ContempoiaiA

Indian politics has witnessed a flurry of environmental cases

coming up to the judiciary. These cases find their place from the subordinate court to the highest court of the land. Tliis study has focused only on the role of the Supreme Court in the environmental gov^ernance process of India. The rationale for focusing on the role of the Supreme Court lies in the fact that most of the environmental cases have been dealt either bv the High Courts or at the Supreme Court level. More so, environmental cases dealt by the High Courts again reappear in the Suprem e Court through the appeal made by the losing part\c In this way, an overwhelming number of environmental cases had been resolved bv the Suprem e Court particularly. Tlie analysis of the cases also confined to a period stretching from 1980 to 2000 because, prior to 1980, there hai-1 been no environmental litigation in the Suprem e Court of India. 1 have specifically selected onlv those environmental cases, which had been resolved by 2000. Tine studv could not include the post-2000 environmental cases for several practical reasons. The stuelv is not dealing with the pending cases or the on­ going cases in the Supreme Court. The data collection for the stueiy has been done in two phases ranging from August 2004 to November 2005. The ov'erview of the cases is limited in detail because some of these cases took many years to be

97

settled and consisted of a number of interim orders and directions by the judiciarv'. Nevertheless, the conclusions drawn are robust.

1.6 O utline of the D issertation In this chapter, I have summarized the debate around the increasing role of judiciary in environmental governance process of India and the way it has been perceived from different standpoints. In pursuing this exercise, I have raised different questions that need to be appropriately addressed.

In Chapter 2, I

examine the theoretical and empirical studies of environmentalism in India to understand different shades of 'green' in India. Based on this understanding, I locate the different trends of judicial intervention in environmental cases through a critical rev levv of the selected environmental cases. In Chapter 3, explore the judicial decision-making process bv identifv ing the different factors contributing to the role of judiciarv in the environmental decision-making process and also the manner in which judiciarv arrives at a decision. In Chapter 4, I attempt to anah se the impact of judiciarv' tin environmental governance process in terms of its conti'ibutitin tti the environmental jurisprudence in India and its larger implications In Chapter 5, I have summarised the study and reflected on the implications of the findings for policy and future research.

23

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