ENVIRONMENT WARRIORS AND GROWTH OF ENVIRONMENTAL JURISPRUDENCE IN INDIA

 

AUTHORED BY - ABHISHEK BHARDWAJ

Shree L. R. Tiwari College of Law Course Number: LLB (3 Year), 2nd Semester

Seat Number: L-311008

 

 

Abstract

The object of this paper is to analyze contribution environment warriors towards environmental jurisprudence in India. This paper gives information about how environment warriors have been contributing towards protection of environment in various ways such as environmental jurisprudence and judicial activism.

 

Post independence from Britain in year 1947, there was minimal jurisprudence related to environmental damage caused by industrial and other socio-economic progress. This is evident by two facts;

1. Environmental protection act came into force in 19th November 1986 almost 39 years of independence.
2. There are only limited number of laws in Indian penal code (section 268, 277, 278, and 290) and code of criminal procedure (section 133 and 144)
3. Since traditional times, all the issues of environment fall under the purview of law of torts. Tort law is yet to gain support and yet to recognize in India.

 

Eco-development has been neglected by many industries, ignorant common people, and shrewd politicians alike.

 

Overcoming all of these hurdles including the mindset of people, environment warriors ensured the safety of environment by working themselves, fighting cases in Hon ‘able courts, and movements such as

1. Jadav Payeng “Forest Man of India” – planted to a whole forest on an island in India
2. Rajendra Singh “Waterman of India” – revived over 12 water bodies in India
3. M.C. Mehta “Green Avenger of India” – single handedly won numerous landmark cases in India
4. Chipko movement
5. Municipal Council, Ratlam v. Vardhichandra

 

In this paper, let’s discuss evolution of environmental jurisprudence in India, how environment warriors contributed and still contributing towards environment protection by themselves (without any help from Law), contributed towards environmental protection with help of Law, and how Hon ‘able courts have contributed to environment protection by judicial activism.

 

Introduction

“We do not inherit the Earth from our ancestors; we borrow it from our children.”

–Common Aphorism1

Before, talking about environmental protection and jurisprudence; let’s talk about the greatest threat to the plant. It is nothing else but the thought that it is not my duty to save the environment but someone else will save it. From small actions of common people such as excessive use of single use plastic bag to save costs; to big industries openly flouting environmental laws created to safeguard the interest of every people including plants, animals, and generations to come. Almost everyone seems in a great hurry to destroying the home we all live-in thinking that I am a single person and my wrong doing does not impact the environment. The home is not limited to the four walls we will in but the complete environment.

 

In such times, some common people arise to the occasion to protect the environment by doing action to solve insurmountable environmental problems. The actions that an individual thinks that are impossible but these common people who are not common, known as environment warriors keep on doing the impossible work without any expectation of awards or accolades to ensure that there is a beautiful green world to see for generations to come. They are not only protecting the environment but also inspiring many to take appropriate action at individual level.

 

They are proving that a lone warrior can also won a war.

 

This paper discusses the contributions of environment warriors and their contribution to evolution of environmental jurisprudence in India.

 

Research questions

This paper is an attempt to find the answer to the following questions:

1. Is Law along sufficient to protect environment?
2. Without Law can an individual take an action to protect environment?
3. How does Law help environment warriors?

 

What is environmental Jurisprudence

To understand the meaning of environmental jurisprudence; let’s understand the meaning of Jurisprudence. Jurisprudence comes from Latin “juris purdentia” the meaning is “the study, knowledge, or science of law”. It also means theory or philosophy of law. When more and more people are aware of law then the possibility of application of law increases exponentially.

 

Hence, environmental jurisprudence means the study, knowledge, or science of law related to environment. This also includes regulations and agreements that are related to environment or environment is invariable part of the regulations and agreements.

 

Sections that deal with environment protection in Indian Penal Code

When it comes environment then in Indian penal code, there are only few sections that deals with and penalize the actions where damage is done the environment. They are as follows:

1. Section 268 and 290
2. Section 277
3. Section 278

 

IPC 268 and 290

IPC 268 mentions public nuisance. IPC 290 has the punishment of the act of environment pollution with a fine up to Rs. 200.

 

 

IPC 268 defines public nuisance as:

1. If anyone commits an act which is illegal then that person is guilty.
2. This act must cause ‘common injury’ that annoys people, or such act violates right of anyone.
3. Nuisance cannot be excused just because it is advantageous to someone.

 

IPC 290 also defines noise pollution as an offence.

IPC 277 states that anyone who by this own will corrupts the water of public reservoir & because of that the water of public spring or reservoir is unfit for public usage then that person can be punished with imprisonment that can be up to 3 months or asked to pay fine up to INR 1000 or both punishments can be given.

 

Section 278 states that that anyone who by this own will corrupts the atmosphere of a place so that there is harm to anyone who is at that place. In this offence the person committing the office will be liable of fine up to INR 500.

 

Sections that deal with environment protection in

Criminal Procedure Code

When it comes environment then in criminal procedure code, there are only few sections that deals with and penalize the actions where damage is done the environment. They are as follows:

 

Section 133 to 143: These sections are also known as “summary remedies”.

Section 133 empowers sub divisional magistrate and district magistrate, or any other executive appointed by state government, to give an order with conditions to do the needful to stop the nuisance, when they receive any information about it by any source including report from police officer. If the person objects to the action done by police officer or relevant authority then the order can be made absolute.

 

Illustration:

Case: Municipal Council, Ratlam vs Shri Vardhichandra & Others on 29 July, 1980 Citation: 1980 AIR 1622

In this case residents of Ratlam city faced issues due to bad smell coming from open drains. The drains were overflowing because the waste of distilleries was discharged in the drains. Also, there was problem of open defecation in the nearby slum areas.

 

In this case municipal council was plaintiff and Shri Vardhichandra was defendant. The municipal council rather than taking action to clear the drains went to court to fight the case against Shri Vardhichandra and others.

 

This was a landmark case where the Hon’ble court ordered, via section 133, the municipality to keep the drains clean and mentioned that it is responsibility of municipality to keep the drains clean.

 

Rather than doing its duty and investing money in cleaning the city, it is investing the money in fighting the case.

 

This case removed the grey areas in environment jurisprudence regarding legal enforcement by the statutory bodies such as municipality in this case. Now, by section 133 Hon’ble court tackled the environment issue.

 

Furthermore, by this case, accountability of statutory or public bodies (municipality) and private bodies (distillery) was established. Distillery must follow emission norms and should treat the discharge before releasing it in drains. Municipality should keep the drains clean.

 

First in relation to environment protection in India

First act

Indian forest act 1865 was the first act brought into legislation by British related to environment. However, by this act they did not want to protect the forest but to extract forest resources to maximize the revenue. This act established monopoly of the British over the forest resources and to help acquisition of land for laying railway lines in India across forest. There was protest against this act by forest and tribal communities as it hindered them to utilize the forest resources.

 

 

First public movement

The foundation of environmental movement in India was laid by “Dasholi Gram Swarjya Sangh”2. It was a labour cooperative started by Chandi Prasad Bhatt. It was founded on land donated by Shyama Devi. Chandi Prasad Bhatt was an environmentalist and social activist. “Dasholi Gram Swarjya Sangh” was founded in Gopeshwar in 1964. This was the mother organization to the Chipko movement.

 

Although, the first public movement was in 1700’s known as Bishnoi movement. Here, Amrita Devi, a female villager hugged the sacred trees to protect them from being cut down. In this act, 363 Bishnoi villagers were killed. When king came to know about this, he immediately ordered soldiers to stop the task and designated the particular area as safe area and ordered that trees and animals are protected.

 

First environment legal firm

First environment legal firm is ELDF or Enviro Legal Defence Firm lead by Sanjay Upadhyaya. However, it also represents industries against whom there are allegations of violation of environmental laws.

 

LIFE3 short for Legal Initiative for Forest and Environment started by Ritwick Dutta and Rahul Choudhary do not represent industry or government. They have won several landmark cases, one of them being Vedanta industries where the industry was given mining rights in Odisha. They have been awarded with ‘Alternative Nobel Prize’. It is awarded to people who defend the rights of people whose livelihoods are affected by projects.

 

Environment warriors and their contribution

Following environment warriors set the example for everyone that if one decides that he/she alone can move the mountains. They did not wait for the government to act and started the action to protect the environment. They did not break any law and did everything to protect the environment.

 

They proved that if one decides to save the environment then they can do it. There will be hardships but the goal can be achieved. They lead by example and did not wait for the law to take action and brought the change that they wanted to see in the world.

Though this list has many names. I am mentioning some of the brightest and most influential environment warriors that did not wait for the law and acted within boundaries of law, in India. They are:

1. Sundarlal Bahuguna: he was the leader of Chipko forest conversation movement. This movement was non-violent resistance began in 1973 to protect the forests from large-scale cutting by timber merchants in Uttarakhand. Here, people surrounded the tree so that timber merchants cannot cut the trees. Sundarlal Bahuguna has been fighting for the preservation of Himalayan forests from long time and was awarded Padma Vibushan award in 2009 for Chipko movement. Tehri dam movement was also led by him.
2. Rajendra Singh: popularly known as “waterman of India”, he is well known for his 30 years of work to review water bodies in India. Due to his continuous efforts 12 water bodies were revived in Karnataka, Maharashtra, and Rajasthan. Rajendra Singh won Magsaysay Award in year 2001 and Stockholm Water Prize in year 2015.
3. Jadav Payeng: popularly known as “forest man of India”, he alone created a man-made forest on Majuli Island in assam. This island was prone to water erosion because it has very less trees. Also, it was in the middle of Brahmaputra River where there are floods during rainy reason. Due to this livelihood of people living on that island was in danger and were forced to migrate. During a period of 30 years, he created a forest in 550 hectares of land. Now, this forest has reached to 1350 hectares of land. It also has flora and fauna not found anywhere else in India.
4. M.S. Swaminathan: he is awarded “Bharat Ratna” in year 2024, best known as father of India’s Green Revolution. The work he did increased the yield of wheat and rice multi-fold and helped making India self-sufficient. This eradicated famine in India and Asia by providing food security to all in the country and in Asia.

 

Landmark public movements related to environment protection

As mentioned in environment jurisprudence, when people are aware of the law related to environment then the possibilities of application and adherence to the law increase exponentially. Similarly, when people realize their power and take action to protect the environment by joining hands promulgated by common cause then this gives birth to public movements that changes the face of the society in best way and also set example for future generations. This also show that unity has strength and by working together seemingly powerless people can even shove away the powerful industries that are threatening their eco-system.

 

A few landmark movements related to environment protection are:

1. Chipko forest conservation movement: in year 1973, to protect the forests from large-scale cutting by timber merchants in Uttarakhand. Here, people surrounded the tree so that timber merchants cannot cut the trees. The prominent leader was Sundarlal Bahuguna.
2. Save the silent valley movement: in the year 1978, to protect the Palakkad tropical forest in Kerala, KSSP (Kerala Sastra Sahitya Parishad) lead by Sughatha Kumari protested the build of a hydroelectric project. Due to the protest government abandoned the idea of the project and in 1981, silent valley was declared protected area.
3. Jungle Bachao Andolan: In year 1982, against the government decision to cut the the natural sal forest and then plant teak forest to increase revenue; local area tribals protested and within no time the protest also reached to Jharkhand and Odisha.
4. Appiko Movement: in the year 1983, people of Shimoga and Uttar Kannada that are districts of Karnataka state surrounded the trees of forest as same as Chipko movement. This movement was also known as southern Chipko movement. Pandurang Hegde was the facilitator. Not only they protected the trees but also worked to afforest the denuded lands.
5. Narmada Bachao Andolan: in year 1985, the movement began when people impacted by Sardar Sarovar dam on Narmada River were not provided proper rehabilitation. Later, they protested to restrict the peak of the dam to minimize the negative impact of dam on the environment and supreme court allowed to increase height only by 2 meters where the plan was to increase the height by 50 meters. This was led by Medha Patkar and Baba Amte. This movement was spread across multiple states.

 

Environment warriors and law

As mentioned above while some warriors contributed by leading public movements, single handedly afforested multiple hectares of land, and revived multiple water bodies in India; to name a few.

 

Other environment warriors resorted to law. It is important to note that there are limited sections available in IPC and CrPC to protect the environment. Hence, the warriors took help tort law. This is because since traditional times, environmental issues fall under law of torts.

 

Law of tort in India is not yet recognized and works based on case laws. Although, it was contributed tremendously to protect the environment. Under law of torts, violators may face charges related to public nuisance, trespass, negligence, strict or absolute liability. The punishment can be in form of compensation, injunction. Let’s have a look at some landmark cases related to environmental law.

 

Judicial Activism

As mentioned above there are not many sections under IPC and CrPC where appropriate punishment can be awarded to the violator. In this case, judicial activism comes into picture. Indian constitution grants power to the court under article 141 to make judicial decisions. In judicial activism the decision of the case is based on judge’s own discretion and not based on legislation or any previous legal precedent. This is also because in some cases there is no legislation or any previous legal precedent available to refer to. This is required to protect the interest of the public and to upload the law.

 

Public Interest Litigation

Indian constitution allows people to file public interest litigation when basic human rights, religious rights or fundamental rights people are violated, conduct of government policy is improper, or to compel statutory authorities to perform their legal duty. Under article 32, people can approach Supreme Court directly, or under article 226 people can approach high court, and plead for speedy trial so as to protect the people rights and in this case environment.

 

Landmark cases related to environmental law

When it comes to cases related to environmental law, it is worthy or rather required to mention Mr. Mahesh Chandra Mehta, popularly known as “green avenger”. Mr. M.C. Mehta devoted his life to the protection of the environment and cases fought by him are known as landmark cases that has shaped environmental protection in India.

 

Following is some of landmark cases related to environment protection that Mr. M.C. Mehta fought:

1. M.C. Mehta vs Union of India and Others, 1997 AIR SCW 552, known as Taj Trapezium Case In this case, he observed that Taj Mahal marble colour is changing to yellow due to acid rain and due to the pollution around Taj Mahal emitted the local industries and factories.

Supreme court gave the verdict to either close the premises of work or use fuel that does not harm the environment.

1. M.C. Mehta vs Union of India and Others, 2002 (5) SRJ 150, known as CNG Vehicles Case In this case, he observed that air pollution due to smoke emitted from vehicles and highly hazardous gases emitted by industries is impacting people badly in Delhi. Supreme court highlighted precautionary principle, and polluter pays principle under sustainable development. Because of this case diesel and petrol buses were phased out of Delhi. This led to introduction of CNG buses in Delhi.
2. M.C. Mehta vs Union of India and Others, 1987 SCR (1) 819, known as Oleum Gas Leak Case In this case, thousands of people and animals died, and lacs were affected by mismanagement of Union Carbide that led to leak of poisonous gas methyl iso cyanate. This case led Supreme court create “absolute liability” so that violators do everything what is needful to safeguard the industry premises where hazardous chemicals and gases are used. This will help to protect people, animals, and the environment which can be impacted in very bad way if there is any leak of such hazardous gas or chemical as in the case of Bhopal gas disaster. Because of absolute liability, the violators cannot take benefit of exceptions under “strict liability”.

It is also said that Bhopal gas disaster led to creation of Environmental Protection Act, 1986.

1. M.C. Mehta vs Kamal Nath and others, 2000 AIR SCW 1854, known as Span Motel Case In this case, Kamal Nath builds a resort known as span motel next to Beas River. The construction, though approved by local authority, lead to flooding in nearby areas and affected several people. Supreme court did an amazing job of interpreting “Public Trust Doctrine” and enabled it so that it can be applied in India. Due to this case “Polluter Pays Principle”, and “Precautionary Principle” were also established.

Supreme court rejected the approval by local authority. Supreme court ordered Kamal Nath to pay the money equivalent to environmental damage caused by construction of the resort. Supreme court also ordered to reverse and remove the construction.

1. M.C. Mehta vs Union of India and others, 1988 (2) COM LJ 81, known as Ganga Pollution Case

M.C. Mehta observed that Ganga River, which is considered Holy River by Hindus and also the water is consumed, is continuously polluted by the tanneries, factories that are dumping the untreated waste directly into the river. It is essential to protect the river as it is vital for people.

Supreme court ordered the tanneries and factories build treatment plants, in case if the government is not able to build them. The court also ordered that central government should commission textbooks so that children are taught about importance of cleanliness both inside the home and outside the home.

 

Following is some of the landmark cases related to environment protection fought by other environment warriors:

1. Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, AIR (1985) SC 652, commonly popular in public as Mussoorie Hills Litigation

In year 1985, citizens approached the Supreme court as continuous mining was threatening lives of people, flora, and fauna alike and also a threat to environment. This is because, due to mining trees were cut that lead to soil erosion. Due to lack of soil or loosened soil there were frequent landslides in area and underground resources of water were also blocked.

The court rules that all mines in valley to stop the operations, except for three operations.

1. Jagannath vs Union of India and others, (1997) 1 KER LT 32

Here Supreme court mentioned, sea beaches are given by nature to every human being. Hence, if there is any activity due to which sea beaches are getting polluted then it should be stopped immediately. Hence, the shrimp farms need to be installed in such areas should be allowed only after passing environmental impact assessment.

1. Murli Deora vs Union of India and others, (2002) 1 ALL WC 26

Here Supreme court ordered ban on smoking in public places. Supreme court mentioned that a non-smoker has every right to remain disease free. It should not suffer from the disease because he needs to go to public place and people are smoking there.

1. Orissa State (Prevention & Control) of Pollution Board v. M/s Orient Paper Mills, AIR (2003) SC 1966

Here the mill was using caustic soda and chlorine but not complying with the conditions to remediate the air pollution because the mill was in Air Pollution Control Area. The Supreme court ordered that it is state has right to mark can area as “Air Pollution Control Area” even if there is no prescribed manner.

1. Pradeep Krishen vs Union of India and others, (1996) 2 CURCC 296

Here the case was filed by Pradeep Krishen in opposition to MP government where the government permitted villagers / tribals to collect tendu leaves for their livelihood.

The Supreme court refused to quash the order of MP government. But Supreme Court also mentioned that because of the villagers / tribals going in the forest, the area of forest is shrinking. Hence, it asked MP government to take urgent steps to prevent the same.

 

Conclusion

To conclude, the research paper answers the research questions as follows:

1. Is Law along sufficient to protect environment?

No, it is the knowledge of the law i.e. environmental jurisprudence that is required to protect the environment. Hence, it is important that each individual is aware of the laws related to environment. One should also be aware of its duties towards the environment that are mentioned under article 51A(g) for individual and under article 48A for the state. Also, one should do the needful to protect and enhance the environment as environment warriors did. Even though, it is not mandated by law to plant trees and take care of them; one must plant trees to safeguard the future so that generations to come enjoy the environment and continue the tradition.

1. Without Law can an individual take an action to protect environment?

Yes, it is evident that one can take appropriate action as shown by many environment warriors such as Jadhav Payeng, Rajendra Singh, M.S. Swaminathan to name a few. They did what was required adhering to the law of the India. They went a step ahead and set an example as to what an individual can do to safeguard the environment for generations to come.

But this does not mean that one cannot take help of law when required. It is most evident that one must take help of law as various environment warriors such as Mr. M.C. Mehta did to protect the environment.

1. How does Law help environment warriors?

As mentioned above, though law has limited sections related to environmental law and tort is yet to gain support in India. At the same time, tort has tremendously helped environment warriors to shape environmental jurisprudence in India. Though late response but government also introduced following acts:

1. Environmental Protection Act
2. The Air (Prevention and Control of Pollution) Act 1981
3. The Water (Prevention and Control of Pollution) Act, 1974
4. The Forest Conservation Act 1980
5. The Wildlife Protection Act 1972

 

Now, courts are delivering judgements by referring to these acts for environment protection and enhancement.

 

In Summary, it is responsibility of each individual to save and safeguard the surroundings so that future generations can enjoy the environment and continue the tradition.

 

Bibliography

1. https://harmony1.com/recycling-sustainability-quotes/
2. https://en.wikipedia.org/wiki/Environmental_movement
3. https://www.civilsocietyonline.com/interviews/we-approach-environmental-litigation-like-  criminal-lawyers/