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M.C. Bhandari Memorial Lecture
Environmental Justice In India
by Justice S.B. Sinha
Chief Justice, Delhi High Court
Cite as : (2002) 7 SCC (Jour) 8
I consider it to be an honour and privilege to be present here in this year's Memorial Lecture on Shri Mahaveer Chand Bhandari, the revered father of one of my colleagues, Justice Dalveer Bhandari. Shri Bhandari was a legend during his lifetime. Shri Bhandari was a man with a robust mind and had the most amiable and pleasant personality. Shri Bhandari, who was a jurist, had many achievements to his credit, was a gentleman to the core. An affable man with a fabulous brain, Mr Bhandari was a most sought-after lawyer. During his lifetime, Shri Bhandari was a leader of the Rajasthan High Court Bar and left behind a band of juniors and students; some of who are now leaders of the Bar and some elevated to the Bench. It is well known that Shri Bhandari treated junior members of the Bar like his own sons.
It is really a fitting tribute to the great noble soul that this Memorial Lecture in his honour on "Environmental Justice in India" has been organized and delivered by Hon'ble Mr Justice B.N. Kirpal, the Chief Justice of India on a subject, very dear to his heart. Judicial activism in the field of environmental law started its journey in the 1970s. The Apex Court in deciding the environmental issues not only based its decision on Part III and Part IV of the Constitution of India but also on Part IV-A thereof. Justice Kirpal has by now delivered over 30 judgments involving environmental issues, which are well known.
"Earth provides enough to satisfy every man's needs but not every man's greed." Mahatma Gandhi
Environmental degradation: always and everywhere
The power of society to destroy has reached a scale unprecedented in the history of humanity — and this power is being used, almost systematically, to work an insensate havoc upon the entire world of life and its material bases. Vedic hymns speak of the earth as an object of worship, of awe and beauty, but not of exploitation. They also speak of man's role on earth not as one of despoiling the earth of its possessions, but of enjoying its blessings.
In nearly every region, air is being befouled, waterways polluted, soil washed away, the land desiccated and wildlife destroyed. Rivers, lakes and oceans have become so polluted that in many places they can no longer support marine life. The tanneries around Uttar Pradesh, by discharging effluents into River Ganga and other rivers are polluting it, leading to the destruction of fish life on which poor persons downstream live. It has also rendered the water unusable for any domestic purpose. In Pattancheru near Hyderabad, well water has become unpotable on account of the discharge of effluents.1
I would like to make a reference to "Asian brown cloud", a dense blanket of pollution, which is hovering over South Asia with scientists warning that it could kill millions of people in the region, and pose a global threat. This cloud, as suggested by scientists is estimated to be 2 miles thick and is responsible for hundreds of thousands of deaths a year from respiratory diseases. This cloud can travel halfway around the globe in a week. We must take precaution now as time has still not run out but at this rate of environmental degeneration it will soon run out. It is estimated that if we stay on the same road of environmental degradation as we are on, the signs do not appear very encouraging. By 2050 the world's annual output of carbon dioxide will have more than tripled, while 9 billion people, 3 billion more than today mostly in developing countries will be tapping the earth's water, heavily straining the already strained resources.
Tragedies such as Bhopal and Chernobyl are testimony to the environmental hazards that have destroyed not only large segments of existing populations but have caused considerable ecological damage. Most industrial nations, including India, are polluting their rivers, contaminating the soil, exterminating wildlife, and using up the world's natural resources. Acrid air and foul water testify to the failure of society to recognize man's interdependence with nature. If we do not learn to care for the earth we do not learn to care for the people of the earth.
The Indian way of life recognizes air, fire, atmosphere, earth and water as panchabhuthas essential for making life meaningful. To keep the panchabhuthas free from detrimental changes is as much essential as protecting the right to life.
The beginnings of modern environmental degradation: The Industrial Age
As we enter the 21st century, concern for the problem of ecological backlash is mounting feverishly. Natural science, conceived as an effort to understand the nature of things, had flourished in several eras and among several peoples. Similarly there had been an age-old accumulation of technological skills, sometimes growing rapidly and sometimes slowly. But it was not until about four generations ago that Western Europe and North America arranged a marriage between science and technology, a union of the theoretical and the empirical approaches to our natural environment. The emergence of the creed that scientific knowledge means technological power over nature can scarcely be dated before about 1850, save in the chemical industries, which dates back slightly earlier to the 18th century.
The word "ecology" first appeared in the English language in 1873. Today, just a little more than a century later, the impact of the human race upon the environment has so increased in force that it has changed in essence. When the first cannons were fired, in the early 14th century, they affected ecology by sending workers scrambling to the forests and mountains for more potash, sulphur, iron ore, and charcoal, with some resulting erosion and deforestation. Our present combustion of fossil fuels, on the other hand, threatens to change the chemistry of the globe's atmosphere as a whole, with consequences, which we are only beginning to guess. With the population explosion, the carcinoma of planless urbanism, the new geological deposits of sewage and garbage, surely no creature other than man has ever managed to foul its nest in such short order.2
With growing affluence for an increasingly large segment of the population, there generally develops an increased demand for goods and services. The usual by-product of this affluence is waste from both the production and consumption processes. The disposal of that waste is further complicated by the high concentration of heavy waste producers in urban areas. Under these conditions the maxim that "dilution is the solution to pollution" does not withstand the test of time, because the volume of such waste is greater than the system can absorb and purify through natural means. With increasing population, increasing production, increasing urban concentration, and increasing real median incomes it is not surprising that our environment has taken a terrible beating in absorbing our filth and refuse.3
Protection of the environment by the guardians of the law
Constitutional courts have successfully handled this area of complex, complicated and fast-growing and changing technosciences and multidisciplines. Judicial activism has resulted in many innovations and has given important raw material for building up a comprehensive Indian envirojurisprudence. In the field of administration of envirojustice, constitutional courts have stood tallest not only before the other two organs of the "State" — the legislature and the executive — but also, before its other counterparts, age-old or young in the developed and developing countries.
What is new to the present generation is that we have the knowledge and technical capacity — for the first time — to choose to leave for posterity an inhabitable planet. The urgency of the situation became apparent in the decades that lie behind us. The 1970s, 1980s and 1990s brought immense volumes of new knowledge about pollution and overuse of natural resources. In the last ten years since the Rio Earth Summit the green house emissions have increased by 1.3 per cent in the US alone. It has been a failure because the big industrial pollutants have been unable to clean up their act. In the Earth Summit of 2002 being held in Johannesburg, more than 100 environmentally active Judges got together at a meeting and have agreed that they must do more to promote the legislation and enforcement of environmental laws in their countries. The jurists unanimously adopted the Johannesburg principles on the rule of law and sustainable development, a document that affirms that an independent judiciary is vital for the implementation, development and enforcement of environmental laws. Further generations will judge how we acted when we had that knowledge at hand. Let us not fail them. Before leaving for Johannesburg Earth Summit, Afifa Raihana (President of Bangladeshi Environment Youth Organisation) reminded the participants by saying:
"When you meet in Johannesburg, keep in mind, it is your children and their children that will suffer if action is not taken now."
From symptomatic responses to planned systematic pre-emption
The ecological crisis is grave, far more serious than the current publicity indicates. Much of the current debate still focuses on symptoms, not causes. New and more radical solutions are necessary. There is an imperative and urgent need for a shift in emphasis from the curative approach towards environmental protection, to the preventive. Human resources are finite. Permitting environmental degradation with the fond hope of undoing the damage caused will have disastrous consequences on mankind.
Environmental pollution has to be prevented. A detailed and analytical study should be undertaken by environmental experts and necessary solutions be found at the earliest to prevent further ecological damage to our environment.
Equitable concerns that arise in legally imposing environmental conservation as an economic constraint
The consequences of such solutions on all segments of society and the structural changes needed to offset the consequences must also be dealt with. If economic justice for all is not an essential part of the debate, the ecology issue, despite its importance, will inadvertently be used as a club over the heads of the poor and lower-middle income groups4, which includes a majority of the Indian population.
The challenges should be clear to us. Although environmental problems are becoming critical, they must be interpreted in the light of other problems and priorities. If the cost of pollution control is passed directly on to the consumer on all items, low-income families will be affected disproportionately. If new technologies cannot solve the environmental crisis and a slowdown in material production is demanded, the low-income families will again bear the brunt of it, as more and more of them will join the ranks of the unemployed.
We should also realize, that the problems from the outset are not just national but global. As a result, ecology and distributive justice have to be considered in an international context. Unfortunately, the wider global aspects of economic development of poor nations, the gap between the rich and the poor nations, the ecological problems associated with full worldwide industrialization, has not received the required attention.
Balancing environmental conservation and sustainable development
Striking a balance between protection of the environment and sustainable development is an onerous and delicate task. In a given case the court has to weigh on which side the balance of public interest tilts. I quote a couple of cases decided by the Supreme Court, which highlight this point. One is Narmada Bachao case5 where the Supreme Court negatived the threat perception to the environment in favour of economic development of the area. No doubt in the process, directions were given to ensure that degradation of the environment does not take place. The importance of sustainable development has been stated in M.C. Mehta v. Union of India6 by the Apex Court holding that it is one of the principles underlying environmental law. The Apex Court broadened the scope of environment pollution by bringing into its ambit noise pollution and health care of the people.
Encroachment on liberty of others
An important case with respect to noise pollution is Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Assn.7 It was held in this case that no religion prescribes that prayer should be offered by disturbing the peace of others by using amplifiers or by beating of drums. In a civilized society, in the name of religion, activities which disturb old and infirm persons, students or children having their sleep in the early hours or during daytime cannot be permitted. It was also held that rights of the aged, sick people and children below the age of six years, who are sensitive, are required to be honoured.
In Murli S. Deora v. Union of India8 the Supreme Court gave utmost importance to the health of the public affected by smoking and banned smoking in public places. It was stated that non-smokers cannot be compelled to become helpless victims of pollution caused by cigarette smoke.
These cases thus highlight how we have to achieve sustainable development and strike a balance between the economic development and protection of the environment as also the rights of the people. Let us hope and pray that we will have a better world tomorrow for our children to live in.
- Almitra H. Patel v. Union of India, (2000) 2 SCC 679
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- The Historical Roots of Our Ecological Crisis by Lynn White Jr.
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- The Cultural Basis of Our Environmental Crisis by Lewis W. Moncriff
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- Ecological Responsibility and Economic Justice by Norman J. Faramelli
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- Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664
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- (2002) 4 SCC 356
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- (2000) 7 SCC 282
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- (2001) 8 SCC 765
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