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Role of Judiciary in Environment Protection

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Role of Judiciary in Environment Protection Legal Desire International Journal on Law November 2020 ISSN: 2347-3525 Role of Judiciary in Environment Protection Sristi Raichandani, Swati Anand, SweetySamara, Utkarsh Verma, Sujata Porwal ‘Saving our planet, lifting people out of poverty, advancing economic growth… these are one and the same fight. We must connect the dots between climate change, water scarcity, energy shortages, global health, food security and women’s empowerment. Solutions to one problem must be solutions for all.’ Ban Ki-moon ABSTRACT ‘The more clearly we can focus our attention on the wonders and realities of the universe, the less taste we shall have for destruction.’ Rachel Carson Environmental issues are a matter of major concern as they directly affect the human existence. Role of judiciary in India, in matters relating to environment protection has constantly increased leading to innovations and implementation till a certain level. The activist judiciary has Suo Motu taken up various initiatives to bring significant changes. This report tries to analyze the role of judiciary in environmental issues, the challenges faced by it and suggests ways to overcome the barriers and progress forward to provide for a healthier environment, without disturbing the balance of organs (of government of India) prescribed by the Constitution. INTRODUCTION The Constitution is known as the “basic law of the land” from which all other laws derive their sanctity or validity. Therefore, it must be a living and growing law that is able to cope up with the current situation and developments. The former Prime Minister of India, Mrs. Indira Gandhi, was the first head of state to address the International Conference on Human Environment at Stockholm in 1972.She voiced deep concern about the degradation of the environment and eco-imbalances and also emphasized that pollution, population and poverty are inter-related problems and there must be an integrated approach to deal with them. India is also one of the signatories of the Stockholm Declaration which is known as the ‘Magna Carta’ of environment protection. To fulfill the promises made at Stockholm conference, the Indian Parliament passed by the 42nd Amendment to the Constitution in 1976 and incorporated two articles related to protection and improvement of the environment. 34 Legal Desire Media & Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 ISSN: 2347-3525 Various constitution and international obligations along with the 42nd Amendment of 1976 and rights like Article 21, Article 14, Article 19, Article 32 & 226 in lieu with their environmental application have been incorporated in present-day scenario. Both the government and the judiciary are actively working for the betterment of environmental conditions. However, a significant change hasn’t been observed in the country prior to the lockdown situation. The lockdown due to COVID-19 has proved to be a boon for the environment as it has led to a huge reduction in use of vehicles and factory emissions for a significant amount of time. HISTORICAL BACKGROUND In the Hindu religious philosophy, the Vedas, Puranas, Upanishads, and different sacred writings gave a point by point portrayal of Trees, plants and untamed life and their significance to the individuals. The Rig Veda featured the possibilities of nature in controlling the atmosphere, expanding ripeness, and improvement of human life underscoring on a private family relationship with nature. Atharva Veda thought about trees as dwelling place of different divine beings and goddesses. Yajur Veda Emphasized that the relationship with nature and the creatures ought not be that of territory and oppression yet of shared regard and generosity. Numerous creatures and plants were related with Gods and Goddesses, so they were saved for the people in the future. Lord Ashoka of the Mauryan Empire did as much as possible to secure condition by making laws for safeguarding the environment of India. Same pattern proceeded in medieval India when Mughalscontrolled India however not at a similar pace. Notwithstanding, the most grounded ventures for the equivalent came uniquely from British. They contributed a great deal for the protection of the biological arrangement of India by authorizing a few laws, which truly were absent in the antiquated time. Environmental protection in British era British showed up in India at 1600 with the strategic exchanging merchandise from India the type of East India Company. However, there was an absolute lack of interest to the necessities of the woodland conservancy. They caused a wild invasion on Indian Forests. The attack on the timberlands was basically a direct result of the expanding interest for military purposes, nearby development of streets and railroads, exchanges and augmentation of horticulture to enhance income. The British government began control woodland in 1806, when a commission was named to enquire into the accessibility of teak in Malabar and Travancore. Until many years of nineteenth century, the British Raj completed a monstrous surge on the subcontinent's woodland. With the Oaks woods evaporating in England, a strong lumber was required for the British Navy on the grounds that the security and protection of the British Empire relied fundamentally upon its naval force. In the time of furious rivalry between the pilgrim 35 Legal Desire Media & Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 ISSN: 2347-3525 powers, Indian teak, the most solid of shipbuilding, spared British during a war with Napoleon and the later oceanic development. On 3 August 1855, Lord Dalhousie, the senator general of India, turned around past free enterprise strategy to build up the India Forest Department and added enormous regions of meagerly populated terrains in India. After around 1853, extraordinary lumps of woods were wrecked to satisfy the need for railroad sleepers and the sub-Himalayan woodlands of Garhwal and Kumaon, for instance were completely felled in even to devastation and a large number of trees were felled which were rarely expelled, nor was their evacuation conceivable. The efficient administration of woods assets started with the arrangement of the First Inspector General of Forest in 1864; Dietrich Brandis who served from 1864 to 1883. Till 1935, the legislature of India authorized the Forest Act. In 1935, the British Parliament through the Government of India made common assembly and the subject of the backwoods as remembered for the commonplace council list. From that point, a few areas made their own laws to control woodland. A large portion of these laws were inside the structure set down in the 1927 Act. The British up and down their reign in India framed numerous different Acts in the field of Environment. The Historical Role of Law of Torts in Environmental Protection The J.C. Galstaun vs. Dunia Lal Seal case of the Calcutta High Court in 1905 is one of the earliest and an important case of nuisance. In this case, the plaintiff complained that the defendant of neighboring factory is discharging the refuse-liquid of his manufactory into a Municipal drain that passes along the plaintiff’s garden. Consequently, the Subordinate Judge decreed the suit, granted a perpetual injunction, and awarded the plaintiff a thousand rupees as damage. The Mukesh Textile Mills (P) Ltd v. H. R. Subramanya Sastry case is another case under which damages were rendered under the negligence category of law of tort. In this case, the plaintiff complained that the neighboring textile mills earthen tank full of molasses collapsed because of being dug by the rodents and the molasses overflowed into the water channel and plaintiff’s land damaging the paddy and sugarcane crop. The Mill defended it by stating the burrowing of rodents as an act of God. The court attributed to actionable negligence on the part of the appellant and damages were awarded to the other party. ENVIRONMENT AND CONSTITUTION OF INDIA The protection and improvement of the environment is a constitutional mandate. The Indian Constitution contains specific provisions for environment protection under the chapter of Directive Principles of State Policy and Fundamental Duties. Directive Principles of the State Policy Article 48-A Sher Singh v. State of HP on 6 February, 2014 36 Legal Desire Media & Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 ISSN: 2347-3525 The citizens of the country have a fundamental right to a wholesome, clean and decent environment. By 42nd Amendment to the Constitution, Article 51-A was incorporated in the Constitution. The legislative intent and spirit under Articles 48A and 51A (g) of the Constitution find their place in the definition of ‘environment’ under the Environment Protection Act, 1986. The expression of ‘life’ enshrined in Article 21 also has a widemeaning. The court stated that the facilities for medical care and health to prevent sickness, ensure stable manpower for economic development and generate devotion to duty and dedication to give the workers’ best performance, physically as well as mentally. The Court particularly, while referring to the workmen made references to article 21, 39(e), 41, 43 and 48-A of the Constitution of India to substantiate that social security, just and humane conditions of work and leisure to workmen are part of his meaningful right to life. Small Hydro Power Developers’ … v. Transmission Corporation of A.P. on 8 May, 2008 The said decision itself is an authority for the proposition that what is granted can be withdrawn by the Government except in the case where the doctrine of promissory estoppels applies. Thus, the State has discretion to alter its policy. The court cannot interfere with the policy decision unless it is found that the decision to change the policy it’s arbitrary, unreasonable and unfair. The policy directives contained in GOMs are also not inconsistent with the expressed or implied provisions of any statue.
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