CV1. Name :- Author- Mayuri Bahuguna Co-author- Apoorva Gaur1. Contact :- Room No. 104, Block C, Abhiyan Appartment, Opp. To Hotel Cambay Grand, Sarkhej Gandhinagar Highway, Ahmadabad, Gujarat. Mobile no:- (1) 09898041156 (2) 09898030653 E-mail Id :- 12bal132@nirmauni.ac.in & 12bal121@nirmauni.ac.in2. Name & Address of Institute :- Institute of law, Nirma University, Sarkhej-Gandhinagar Highway Ahmadabad (Gujarat).3. Courses currently being pursuing: - B.A.LL.B. , 3rd year. 5. Topic :- JUDICIAL ACTIVISM : A STUDY OF COURT'S APPROACH TOWARDS ENVIRONMENT IN INDIA

DECLARATON

We hereby declare that the researched title JUDICIAL ACTIVISM: A STUDY OF COURT'S APPROACH TOWARDS ENVIRONMENT IN INDIA is true and complete in all material aspects to the best of our knowledge. The text reported is the outcome of our own effort and no part of it has been incorporated without due acknowledgment of the resources refereed to.

JUDICIAL ACTIVISM: A STUDY OF SUPREME COURT'S APPROACH TOWARDS ENVIRONMENT IN INDIAComment by Surabhi Kulkarni: Shorten the title.Suggestions-The Judicial Activism towards Clean Environment in India.The Supreme CourtsComment by Surabhi Kulkarni: Supreme Court, or Courts => Method adopted by courts.ABSTRACT:Judicial activism has been described as the provision related to the same as the Heart of the Constitution , since this power is used to protect and enforce the fundamental rights of the citizens. In todays emerging jurisprudence, an environmental right, which encompasses a group of collective rights, is described as tThird Ggeneration rights. The Ffirst Ggeneration rights are generallybeing political rights, while second generation rights are economic and social rights. The recognition of environmental rights as a fundamental right under Article 21 (Right to Life) of the Indian Constitution has given a constitutional sanctity to the right to enjoy a clean and healthy environment. At present most environmental actions in India are brought under article Article 32 and article Article 226 of the constitutionConstitution. Courts have made use of theirse powers to remedy past mala-fides and to check immediate and future assaults on the environment. The latest view adopted by the courts regarding environment and development is, that there can neither be development at the cost of environment, nor environment at the cost of development. Therefore in the light of this the judiciary not only exercises its role as an interpreter of the law but also had to take upon itself the role of the constant monitoring and implementations. In recent years, the Supreme Court has taken on the mantle of monitoring forest conservation measures all over India, and a special Green bench has been constituted to give directions to the concerned governmental agencies. Another crucial intervention was made in Council for Environment Legal Action v. UOI, wherein a registered NGO had sought directions from the Supreme Court, in order to tackle ecological degradation in coastal areas. Now, the main objective of this paper is to analyze: To study the role of Supreme Court in guaranteeying the right of pollution free environment.

INTRODUCTION:In Ttodays society, interaction with nature is so extensive that the environment in question has assumed proportions affecting all humanity. Industrialization, Urbanization, depletion of natural resources of energy, has have all led to the deterioration of environment. While sScientific and technological progress of man has invested him with immense power over nature, . it Simultaneously, it has also resulted in the unthinking use of the power, encroaching endlessly on nature[footnoteRef:1]. It is in the last forty years, that a growing concern has been shown for the environmental issues. Recycling of discarded polythene has assumed the same concern and importance, as was shown for the holes in the ozone layer. Thereby some Legislative legislative measures were taken in the last thirty yearssince, and some statutes were made regarding the protection of environment i.e., Air (Prevention and Control of Pollution) Act, 1981, Environment (Protection Act), 1986 etc. The objectives of the all the statutes pertain to the nature and the quantity of the pollutants and their effects on their immediate surroundings. The necessity to protect bio-diversity also engaged the attention of Supreme Court of India in Research Foundation for Science Technology and Ecology v. Ministry of Agriculture[footnoteRef:2]. Therefore a need to check environmental pollution was felt by the Supreme Court of India in the case of A.P. Pollution Control Board II v. Prof. M.V. Naydu[footnoteRef:3]. The law commission was requested to consider the review of environmental laws and suggestions were made that the environmental Courts be set up. [1: Sri Sachidanand Pandey v. State of W.B., AIR 1987 SC 1109] [2: (1999) 1 SCC 655] [3: (2001) 2 SCC 62]

JUDICIAL ACTIVISM:Now a stage has been set for dealing with public health and the effects of pollutants on man, and also for the concern for the environment and the impact of the pollutants on the atmosphere, as a whole. This is all because of by the interest which the judicial System has taken in this discipline the judiciarys strong stance for clean environment. The Judicial Activism has played an active role in this regard. The fact that now we have a clear picture of earth Earth from the space and as to how much damage has already been caused, has led to an increasing interest in the planet we inhabit. The desire to leave a pollution- free planet for the generations to come, and the awareness of the danger which has already been caused, is responsible for this development. An examination of the skyline in Delhi would reveal clear sky, clean buildings and whenever strict measures have been taken water life is returning to the rivers and canals. Where strict measures were taken, the horizon revealed a clear sky, a sight of life returning to Nature.

ROLE OF JUDICIAL SYSTEM:The judiciary, in their quest for innovative solutions to environmental matters within the frame work of Ppublic interest litigation, looked to constitutional provisions to provide the court with the necessary jurisdiction to address specific issues. In the quest, Articles 142 afforded the Supreme Court of India with considerable power to mould its decision in the order that complete justice could be done. As the Supreme Court of India is the final authority as far as matters of constitutional interpretation are concerned, it assumed a sort of primal position in the Indian environmental legal sSystem. ButHowever, there is a constant controversy between development and environment. In Sachidanand Pandey v. State of W.B.[footnoteRef:4] (Calcutta Taj Hotel Case), the Court permitted the construction of a hotel near a land belonging to the Calcutta Zoological Garden, Stating stating that tourism was important to for the economic progress of the country. At other times, the Court has stated that it is not in the public interest to require the Court to delve into those areas that are the functions of the executive. The Supreme Court of India highlighted Professor Joseph Saxs doctrine Doctrine of public Public trustTrust, obligating conservation by the State. Thus in M.C Mehta v. Kamal Nath[footnoteRef:5], the court Court held that the State, as a trustee of all natural resources, was under a legal duty to protect them, and the resources were meant for public use and could not be transferred to private ownership. Thus, it is possible to see that although there have been initiatives from the legislature and the eExecutive, the Judiciary has taken a the lead in terms of the actual immediate effect its actions have had on environment.Comment by Surabhi Kulkarni: Is there any other Article along with 142, in this?Is it a grammatical error?Comment by Surabhi Kulkarni: Is Earlier the more appropriate word?Comment by CL9: We are referring to the Supreme Court, as previously. Hence, it is felt that the Court would deliver the much required meaning that it has been stated by the Supreme Court. [4: AIR 2007 SC 1109] [5: (1997) 1 SCC 388]

THREATS TO ENVIRONMENT SHOULD BE ANTICIPATED AND MET:Keeping in mind, the level of pollutants in the atmosphere and its consequences, like on Taj Mehal Mahal, which had a damaging effect by the industries near to it which were causing air pollution, the Supreme Court gave several directions. It was observed by the court that this pollution has to be eliminated at any cost. Not even one percent chance can be taken where the human life apart, from the preservation of the a prestigious monument like the Taj is involved. Taking note of the precautionary principle, it was observed it was observed that pro-environment measures must anticipate, prevent and attack the cause of environmental degradation. It was further observed that the burden of proof is on the industries and they have to show that the operation with the aid the of coke, or coke is environmentally benign. 292 industries were directed to switch over to the natural gas as an industrial fuel. Those industries which were unable to get the gas connections were supposed to bring an end to their activities. Reference was also made to the decisions given in Vellore Citizen Welfare Forum v. Union of India [footnoteRef:6], and also to the Enviro Legal Action v. Union of India[footnoteRef:7]. In the case, of Rural Litigation and entitlement Kendera v. State of U.P[footnoteRef:8], the Supreme Court was aware of the fact that the order pertaining to the closure of limestone quarries would cause hardship. but However, this has to be done and it is observed that it is a price which had to be paid for protecting and safeguarding the rights of a people, to live in a healthy environment with a minimal disturbance of a ecological balance and without avoidable hazards to them, to their cattle, to their home and agriculture. Directions were given regarding land use were both for relocating the industries as well as for those individuals who decide to close down and not to relocate. With regard to the package of compensation proposed for the workman the view expressed was that the earlier directions given were on the lower side and as more than three years had elapsed between the matters being reconsidered, directions were accordingly given to pay six years wages instead of one years wages. These six-year-periods were to be applicable to those industries who were not relocating and which had been closed down.Comment by CL9: It was damaged. It is quite clear from the nature of the structure that it has very little or negligible damaging effect.Comment by Surabhi Kulkarni: Please re-shape the sentence.Comment by Surabhi Kulkarni: You have a chance to give a precise idea of the pollution and its effects on the Taj-Mahal. Please develop this sentence with accuracy of information. It will help the reader acknowledge the need for judicial activism.Comment by Surabhi Kulkarni: Please look for a stronger direction by the SC, if found, would garland the judiciarys effort.Comment by Surabhi Kulkarni: An a is used when the sentence intrComment by Surabhi Kulkarni: Can there be scope for a more accurate adjective.Comment by Surabhi Kulkarni: Reshape the sentence.Comment by Surabhi Kulkarni: If setting a standard for minimal, use a; else keep the minimal wide.Comment by Surabhi Kulkarni: Stray A again. [6: 1996 AIR SCW 339] [7: 1996 AIR SCW 1069] [8: AiR 1987 SC 359]

LANDMARK JUDGEMENTS BY SUPREME COURT:1. Dehradun Lime Quarries Case[footnoteRef:9]: [9: (1987) 1 SCR]

While closing down lime Quarries in Dehradun mining area, the court held that:Preservation of the environment and keeping the ecological balance unaffected is a task which not only government, but every citizen must undertake, as well. It is a social obligation and every citizen is reminded that it is his fundamental duty as enriched in Article 51A (g) of the Constitution.

2. Ganges Case[footnoteRef:10] [10: MC Mehta v. Union of India, (1987) 4 SCC 463. ]

In this case, Supreme Court in 1985 closed down 185 tanneries and 191 other industries in U.P and many other states of West-Bengal and Bihar. It has ordered industries to install effluent treatment plants and air pollution control devices. While closing down the court held that we are conscious that the closing of the industries may bring unemployment, loss of revenue but life, health and ecology have greater importance to people.3. Vehicular Pollution Case[footnoteRef:11] [11: W.P No. 13029 of 1985.]

On a petition filed for reducing vehicular pollution in the country, the Supreme Court of India in a far reaching order directed the Union Government to provide lead free petrol to four metropolitan cities and to supply petrol with maximum lead content in the entire country. The automobile manufacturers were ordered to equip new vehicles with catalytic converters so that they could run on lead free petrol. The court also asked the Union Government to convert all Government vehicles and public transport to run on CNG fuel or lead free petrol with catalytic converters.4. Stone Crushers Case[footnoteRef:12] [12: MC Mehta v. Union of India.]

The Supreme Court in other landmark judgment closed down stone crushing units in Delhi and made them shift to Stone-crushers Zone in the state of Haryana. The court held that we are aware of the fact that environmental changes are the inevitable consequences of industrial development in our country, but at the same time the quality of environment cannot be permitted to be damaged by polluting the air, water and land to such an extent that it becomes a health hazard for the residents of the area.5. Environmental Awareness Case[footnoteRef:13] [13: (1992) 1 SCC 358.]

The Supreme Court of India delivered another landmark judgment for promoting environmental education and awareness in country. The centreCentre directed the Central and State Governments to make Environment a compulsory subject in schools. The court also directed that the Central Government to issue appropriate directions to the state and the Union territories to enforce, as a condition for issuing of a license to cinema halls, video parlors, the showing, free of charge at least two slides or messages on environment in each show undertaken by them. It was directed to show one regular programme of a longer duration each week.6. Taj Mahal Case[footnoteRef:14] [14: (1997) 2 SCC 353]

In order to save the Taj Mahal, and other historical monuments at Agra, the Supreme Court of India gave directions that no coal-based industry could operate in the Taj Trapezium around the Taj Mahal. The polluting industries have been directed either to switch over to gas fuel or to relocate outside the Taj Trapezium and the State Government has been directed to provide assistance and incentives to such relocating industries. The Court also directed that the Government of India and the State of Uttar Pradesh should develop a Green Belt around the Taj Mahal and provide uninterrupted power supply to Agra to curb the use of diesel generators. 7. The Coastal Area Case[footnoteRef:15] [15: (1996) 5 SCC 281]

The coastal area of India is having a fragile and unique ecology are being threatened by the setting up of a hazardous industries, mis- utilization of beaches, mushrooming of unplanned developmental activities, thereby damaging the delicate eco-system.In a notification issued under the Environment Protection Act, 1986 and Environment Protection Rules, the ministry of Environment and forest declared coastal stretches as Coastal Regulation Zone (CRZ)[footnoteRef:16]. In the notification it was stated that the State Government and Union Territories have been slow to formulate coastal management plans. [16: Environmental Guidelines for Development of Beaches and Coastal Regulation Zone Notification , 19 February 1991.]

8. The Prawn farming Case[footnoteRef:17] [17: (1997) 2 SCC 87]

The Supreme Court in this case after due admonition gave judgment that:a. No shrimp cultural pond could exist within the coastal regulation zone and only traditional and improved traditional shrimp farming could be carried out in the area.b. The authority was to enforce the precautionary principle and the polluters pay principle.A LEGAL PATHWAY: BROAD RIGHTSThe justices have worked with lawyers and citizens to encourage conformity of government practices, and create policy change[footnoteRef:18].The case material shows that the petitioners and justice both have invoked the Directive Principles and Fundamental Rights pertaining to environmental quality, and remedy of advance problem solving over crucial pollution problems. The justice in the environmental cases described here has demanded response and actions from the government organizations and industrial agencies and also from those who made the policies and enforcement of laws. They have also appointed commissions and reviews to deliberate problems, analyze them, find their solutions and check the practice of government agencies. Comment by Surabhi Kulkarni: Justices? Or justice? [18: Although justices initiate this breadth, they are also frustrated by it. In Cmdr Sinha v. Union of India, justice Kirpal reprimanded the petitioner for straying from its original prayers. Personal observations during February 8, 2001 court hearing.]

RECENT ORDERS BY SUPREME COURT IN ENVIRONMENT PROTECTION CASES:Recently Supreme Court in the mission of Clean River Ganga asked and gave a task to the National Green Tribunal that the industries that are polluting the river Ganga must be closed down which fails to install adequate anti-pollution measures to treat the industrial effluents. The court asked the Centre and the Central Pollution Control Board to suggest as to what actions was taken against the heavily polluting industries which were inspected and found to violate Zero discharge norm. Another in ongoing Haryana Mining case, the hearing is likely to get priority over other cases since it is a project related to the forest areas, which are of utmost importance.The order delivered by National Green Tribunal in the matters of Vardhman Kaushik v. Union of India & Ors., which was regarding air pollution resulting from the various activities i.e. motor vehicles, plastic burning, fire crackers and industrial emissions. Again Supreme Court declared that the mining of iron ore and Manganese ore in the forest land of Odisha was illegal. This must have been obtained due to the instance that the environmental clearance might have got cleared but not the forest clearance.Supreme Court had applied a stay on the hydro projects on the river Alaknanda and Bhagirathi river basins in Uttrakhand unless the centre comes out with the detailed environment and ecological impact report on each of the 24 ventures.CONCLUSION:In India, the courts are very conscious of the special nature of environmental rights, considering that the loss of natural resources cannot be replenished. It is easier In in India, the courts are very conscious of the special nature of environmental replenished. It is easier to reform the malfunctioning of human institutions, and to provide redress for most injuries stemming there from, than to restore a polluted river or a denuded mountain to its pristine glory or to bring back the rain forests and rare species that have disappeared from many parts of the world. Almost all the nations in the world are signatories to the Rio Declaration and various other International covenants and treaties on environmental issues, and have enacted laws in this respect, although the enforcement of such laws has sometimes been slow and tardy. The time has come for NGOs and concerned citizens to use the law effectively for the defense of the environment in their own countries. To achieve this, it is imperative that awareness be created, at the grass roots level, of environmental laws, constitutional rights and obligations to protect the environment, as well as the landmark judgments delivered by various courts. The authorities will not protect the environment unless there is a strong people's movement supporting environmental issues. The use of law, environmental awareness and grass roots action can play a major role in the protection of the environment and human rights. Comment by CL9: Please dont repeat things when you have to be precise.Comment by CL9: Please mention the lacunae, as you are summing up the issuesNow overall the study emphasizes the necessity of improving the functioning of the liability system by making necessary changes not only in the substance of law but also in the working condition of the courts to protect and improve environmental quality in India.

BIBLIOGRAPHY: 1. W.P. No. 13029 of 1985 Doabia T.S. Justice, Environmental & Pollution Laws in India, 2nd Edition, Volume 1, LexisNexis Butterworths Wadhwa Nagpur.2. Doabia T.S. Justice, Environmental & Pollution Laws in India, 2nd Edition, Volume 2, LexisNexis Butterworths Wadhwa Nagpur.3. Jain M.P., Indian Constitutional Law, 6th Edition, Volume 1, LexisNexis Butterworths Wadhwa Nagpur.4. Dube Indrajit, Environmental Jurisprudence, 1st Edition, Volume 1, LexisNexis Butterworths Wadhwa Nagpur.5. Diwan Shyam , Rosencranz Armin , Environmental Law and Policy in India, 2nd Edition, Volume 1, Oxford India Paperbacks.