PUBLIC INTEREST LITIGATION

A TOOL FOR ENVIRONMENTAL MANAGEMENT

Group 3, Section B Akhandal Mohanty Anuj Khemka Gaurav Dasgupta Nidhi Pandey Sandeep Tripathy PGP/14/63 PGP/14/75 PGP/14/83 PGP/14/97 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.

Table of Contents
ACKNOWLEDGMENT INTRODUCTION PUBLIC INTEREST LITIGATION AIR POLLUTION ROLE OF JUDICIARY POLICY GAPS WASTE MANAGEMENT MAJOR ISSUES WATER POLLUTION MAJOR ISSUES ECOLOGICAL IMBALANCE: FORESTS & WILDLIFE PROBLEMS WITH THE PIL SYSTEM PIL IN FOREIGN COUNTRIES RECOMMENDATIONS REFERENCES 1 3 3 4 4 4 4 4 5 5 6 6 7 8 8

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 theM.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.

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.

CASE
 M.C.
Mehta
iled
PIL
Supreme
a
in
Court
against
the
rise
in
air
pollution
levels
due
increase
traf ic
Delhi
to
in
in
 Charges
ere
lai d
ag ai n st
t he
g o v e r n m e n t
a n d
i s s u e
r a i s e d
concerning
lack
effort
the
the
of
on
part
of
various
governmental
agencies
that
had
resulted
in
spiralling
pollution
levels.

 The
quality
air
as
of
decreasing
no
and

VERDICT
 The
Supreme
Court
took
issued
an
af idavit
directing
the
Government
of
ndia
take
to
initiative
promoting
in
the
use
Compressed
of
Natural
Gas
(CNG),
an
established
clean
in
fuel
the
orld
as
transport
fuel
in
Delhi
to
control
the
increasing
levels
of
ambient
air
pollution

 Follo ing
Challenges
ere
faced
:
Multiplicity
agencies
of
involved
Reluctance
transportation
of
system
Infrastructural
Constraints
Lack
indigenous
of
technology

amongst
most
the
Delhi
hich
as
polluted
cities
the
in
country

sa a
drastic
improvement
the
quality
in
air
and
reduction
air
in
pollution
levels

Role of Judiciary

effective
steps
ere
being
taken
the
by
In recent years, the judiciary has administration
this
in
behalf.
played a prominent role in done
inspite
Air
being
of
Act
 This
as
environmental protection. A number a
already
place
hence
as
failure
in
and
of
discharge
of
duties
by
the
State
to
of judgements relating to stringent secure
health
the
the
of
citizens
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 momen tum 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

CASE
 In
Surat
after
outbreak
plague,
the
of
Mr.
R.
S.
Rao,
new
the
Municipal
Commissioner,
worked
build
team
to
a
city
of
motivated
ef icient
of icials
and
and
sweepers
transformed
that
India s
dirtiest
into
cleanest
eighteen
city
its
in
months.

 Mr.
Velu
J.S.
ably
supported
in
him
this
task.
Velu
Mr.
along
with
Almitra
Ms.
Patel
then
went
to
on
lead
100-city
a
clean
India
campaign.

VERDICT
 The
Supreme
Court
appointed
a
committee
eight
of
members
under
the
Ministry
Urban
of
Development.

 This
to
led
formulation
country s
irst
of
Municipal
Waste
Management
Rules.

 The
committee
submitted
its
report
titled
Solid Waste Management in Class1 Cities which
has
become
a
widelyaccepted
bible
waste-management
of
practices
the
in
country.

 The
Supreme
Court
had
this
Report
circulated
the
to
300
Class
cities
of
1
every
State
it
widely
and
was
endorsed.

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

Major Issues

 Looking
the
at
pathetic
condition
the
of
cities,
Patel
Ms.
decided
to
ile
PIL
a
in
the
Supreme
Court
asking
the
all
States
and
Union
Territories
follow
to
hygienic
waste-management
practices.

Administration 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  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.

CASE
 A
was
iled
the
PIL
by
Vellore
Citizen s
Welfare
Forum

public
a
spirited
body,
challenging
the
discharge
of
untreated
ef luents
the
into
river
Palar.
 Palar
was
the
only
source
of
drinking
water
for
the
residents
of
Vellore
and
adjoining
59
villages.
In
due
course,
even
ancillary
the
ground
water
sources
were
affected
due
to
seepage
of

through
the
ields
into
harmful
luents
ef which
they
were
discharged.
 Vellore
region s
tanneries
contributed
to
more
than
80%
of
India s
leather
expor ts
thus
helping
India
e arn

valuable
foreign
exchange
&
provided
employment
a
to
substantial
number
of
peo ple
e nsuring
t heir
me ans
o f
livelihood

VERDICT
 TALCO
was
given
strict
deadline
set
to
up
Common
Ef luent
Treatment
Plants
(CETPs)

 The
court
was
of
the
view
that
the
P o l l u t e r P a y s P r i n ci p l e a n d Precautionary Principle
in
spirit
are
the
of
Sustainable Development  The
court
also
observed
that
there
should
be
a
sharper
de inition
of
water
bodies
which
should
exclude
the
ephemeral
sources
water
of
 The
one kilometer rule
put
place
was
into
to
ensure
that
no
industry
units
are
established
within
one
kilometer
of
sources
of
water
like
rivers,
lakes,
embankments

etc.
 Finally
the
damages
imposed
on
the
tanneries
Rs.
crores)
to
used
(~
60
was
be
for
both
compensating
affected
the
victims
and
for
reversing
the
damage
caused
to
the
water
bodies

.

Major Issues

Various 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.

CASE
by
 With
help
a
the
of
PIL
iled
RLEK,
was
it
brought
the
to
notice
of
court
the
the
that
ecosystem
of
Doon
Valley
the
in
Mussoorie
Hills
of
Himalayas
being
the
was
destroyed
illegal
by
and
unauthorized
mining
activities
for
dolomite
 RLEK
further
informed
court
the
that
destruction
local
the
of
ecosystem
having
adverse
was
an
impact
the
on
residents
the
of
area.

VERDICT
 The
Supreme
Court
famously
observed
We are not obliviousto the fact that natural resourceshave got to be tapped for the purpose of social development but one cannot forget at the same time that tapping of resourceshasto be done with requisite attention and care, so that ecology and environment may not be affected in any seriousway, there may not be depletion of water resources, and long-term planning must be undertaken to keep up the national wealth. It has alwaysto be remembered that these are permanent assets of mankind and are not intended to be exhausted in one generation.

ECOLOGICAL IMBALANCE: FORESTS & WILDLIFE

India contains some of the most biodiverse 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 SYSTEM

Despite 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 counterproductive. 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.

Proc dural Probl m PIL sys is s flexible in India, that at times, the sc e of cases is widened to s ch an extent that the primary purpose of filing the particular PIL gets diluted and administration becomes even more difficult. B neficiary nequity Due 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 Policy Area nequity Post 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 F

IGN C

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

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.

China
PIL 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

NTRIES

Canada

South Africa

PIL 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.

PIL 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.

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.

Australia
In 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.

RECOMMENDATIONS
1. 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. 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 report 3. Public Interest Litigation Potential and Problems by Ashok H Desai and H Muralidhar,International Environment Law Research Centre 4. Ecological Destruction vis--vis Environmental Jurisprudence in India: A Survey by Kirti Singh Chauhan and Surender Singh Chauhan, Jaipur National University 5. 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. Sharma 7. Waste Management & Policies: Report by Almitra Patel 8. Silent Valley Created by Nature, Preserved by Mankind By K Sasidharan Nair 9. EM Profile No 3 Public Interest Litigation (6 oct 2009) by Christoph Scwarte 10. 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 2005 12. Ruchi Agarwal; Role of Supreme Court in Environment Protection; JurisOnline.in