There are two possible solutions to the issue of misusing PILs.

One possible solution is for huge costs

to be imposed on those filing FIRs out of personal self interest.

This essay examines the extent of the impact and progress that Public Interest Litigation has made in
tackling environmental issues.

Although PILs were established and practised from the late 1970s, the background to Public Interest
Litigations started much earlier. In the case of Romesh Thappar v State of Madras, the court held
that the role of the Court under Article 32 is to guarantee the protection of fundamental rights and it
cannot refuse applications by petitions seeking protection against violations of these rights. Article
226 applies to High Courts in the same way that Article 32 applies to the Supreme Court.

In the SP Gupta v Union of India 1981 case, Justice Bhagwati clarified that Public Interest Litigation
was designed to safeguard social collective rights for the purpose of public interest. Importantly, he
held that a PIL within the scope of Article 32 (for Supreme Courts) or Article 226 (for High Courts)
would apply when a legal or constitutional wrong that was committed and the person or group of
people who suffer from this right violation are unable to approach the court either due to their
disadvantaged economic or social condition.

Moreover, in the Upendra Baxi v State of UP, the court held that the inmates were living degrading
and squalid prison conditions which were a violation of the Article 21 right to life. Since the
prisoners were incarcerated, the courts accepted that locus standi could be extended to a law
professor to represent the prisoners because the prisoners were not in a position where they could
enforce their rights. Not liberalising the locus standi rule would essentially mean that the court was
denying the constitutional rights to be exercised by the prisoners.

The Court in SP Gupta accepts and acknowledges that traditionally locus standi applies if the
applicant can claim that there was a specific legal injury caused. However, it is reasoned that the
locus standi must be liberalised further because there are many cases where the legal injury caused
may affect public interest. or a class of persons at large. Another reason that the Court accepts that
locus standi needs to be liberalised is the fact that litigation is commonly being used to avail of social
rights and economic rights. These socio-economic rights are collective rights of different social
groups but not of individual rights. These collective rights often cannot be challenged in the usual
two party of litigation because it may not be possible to prove that a particular type of legal injury
happened to an individual or class of individuals. For example, the emission of poisonous pollutant
gases may threaten the health of a large group of citizens who breathe the air.

In terms of locus Standi, the PILS of Bandhua Mukti Morcha v Union of India and well as SP Gupta v
Union of India held that if an individual or group of individuals who has suffered a legal injury due to
a violation of a fundamental rights cannot bring a suit in the court due to being from a socially or
economically backward status, then under Article 32 of the constitution, on behalf of the victims,
any member of the public can move the court for relief.

Another notable achievement of PILs is that in MC Mehta v Union of India, the Supreme Court, in
one of the landmark Environmental PILs, held that the right to a healthy environment was part of
the Article 21 fundamental right to life. Article 21 of the Constitution prohibits any person from
being deprived of their life except when done according to a procedure of law. The court accepted
that it would be impossible for people to live a healthy and long life without a pollution free flora
and fauna because individuals are dependent on water resources for important aspects of life like
farming, drinking . As a result the Court ordered mining activities to be stopped within the local
area. The Right to life is not simply the right to be alive. The right to live also concerns the quality of
life. This view is supported by the PIL of Virender Gaur v State of Haryana which held that a hygienic
environment was an important aspect of living life with dignity and human dignity lies within the
scope of the Article 21 right to life. Importantly, the court in the Virendra Gaur case relied on the UN
Stockholm Declaration on Human Environment 1972 which affirms that there is a need for citizens
to have recourse to ensure that ruling authorities preserve the ecological environmnetal balance.
Although Directive Principles are not per se legally binding in the same way that Fundamental Rights
are, it is creditable that the courts reiterated the Article 48-A Directive Principle which enjoins the
state to preserve and safeguard the environment.

https://lead-journal.org/content/08001.pdf In formulating a right to a clean environment, the court

has basically transformed what were earlier formal guarantees into positive human rights . For
example, in the Doon Valley case, which involved a local mining company, the court increased the
scope of Right to a clean environment to be one with no avoidable hazard being caused to the air,
water, animals and local agricultural land. The court also added that economic growth must not
conflict with the right to a clean environment. In the Doon Valley case, the court acknowledged that
closing down the mines would lead to the loss of many jobs in the sugar industry and the mining
companies could cease to exist. Therefore, to balance the economic and environmental needs of
society, the court decidied that mining companies would have to stop its mining activities once the
lease license period of these companies end. However, the court ordered the setting up of a
monitoring committee which would help rehabilitate the employees and owners of the mining
companies. Thus the creation of new positive rights by the courts in Public Interest Litigations has
rebalanced justice between the individual right to carry out business and the collective right to
health as well as a environment.

The reason that this essay focuses deeply on the concept of locus standi is because locus standi was
the biggest barrier in environmental litigation. There are two types of Locus standi. Representative
standing is where an individual is bonafide file a suit on behalf of victims who have suffered a
violation of their fundamental rights but who are unable to file a petition on their own due to their
economic or social backwardness. The other type of standing is citizen standing. Under Citizen
standing, grievances affecting society as a whole are raised in court instead of just violations of
fundamental rights that affect an individual or group.

https://www.tandfonline.com/doi/pdf/10.1080/02688867.1989.9726733 Another advantage of

PIL’s is that anyone can file a petition even if they were unaffected. The standards required to be a
locus standi is less restricted. The Supreme Court held that as per Article 32 of the Constitution of
India, the Supreme Court can intervene in order to implement a fundamental right and there is no
need for the appellant to show that he has suffered an impact or loss. This liberalised definition of
locus standi under a PIL is particularly important in the context of environmental issues. This is
because enforcing environmental law rights must often be done before the environmental damage
starts. Environmental issues like soil degradation and air pollution are created over a period of time.
Moreover, it is often difficult for a petitioner to prove that the loss he suffered was caused by an
environmental issue. For example, a petitioner who lives near a factory emitting air pollutants and
who is diagnosed with lung cancer must prove that his illness was not materially caused due to
personal lifestyle habits.
https://www.i2e1.in/RedirectLogin/?login-user-session=b1ea7e65-62a2-4ec9-acda-3d88c5f922e0-
19658 While it is true that a more lenient rule of locus standi can open the flood gates for PIL
litigations. Professor Ferris rightly opines that PIL's are often very expensive and complicated and so
most people who file PIL's are represented by public interest environmental organisations . While
Ferris is referring to America,his view particularly holds true in a poor jurisdiction like India. Even
under the present system of Locus Standi, between a period of 11 years in USA, more than twenty
three thousand PIL petitions were filed out of which only 110 of these petitions were accepted by
the US Supreme Court.

https://core.ac.uk/download/pdf/1631095.pdf A comparative weakness in the English system of

environmental Public interest Litigation is that , is that the locus standi requirement to file a PIL is
much more strict and restricted. Section 7 of the UK Human Rights Act states that only victims of an
unlawful act can have "sufficient interest" to file a petition. According to English Law, to show locus
standi, it must be proven that that the petitioner has a continuing and genuine interest in the
environmental damage caused. In the case of R v Poole Borough Council, the decision of
granting of permission to build homes was challenged by both the World Wildlife Fund and the
British Herpetological Society. The court determined that World Wildlife fund lacked locus standi
because it had never been involved with the upkeep or work surrounding that area. Importantly,
WWF did not have any organisational base or supporters in the local area. The British Herpetological
Society had been conducting research studying the animals of the local environment and so they had
a genuine interest because if the same land was used to build homes then that would impact the
animal ecosystem and negatively impact the quality of their research. On the other hand, in the
case of R v Inspectorate of Pollution ex parte Green peace Ltd, the court accepted that Greenpeace
did have locus standi because unlike WWF in the above case, Greenpeace had 2500 members in
Cumbria- the place where the environmental problem was located- and Greenpeace had completed
work there.

Similarly the USA environmental legislation has a restricted scope of locus standi as well. Article 3
section 3 of the USA Constitution requires litigations to show either a direct injury or an imminent
threat of injury and this principle was reiterated in the case of Lujan v Defenders of Wildlife. One of
the US Supreme Court's justifications for having a strict approach to standing is that it would prevent
the opening of floodgates to litigation. By only permitting PILs where there is direct injury caused to
individuals, the US Supreme Court is blind to collective public interest in having a sustainable use of
natural resources.

Similarly, Australia has a complicated procedure in terms of which person can sue. In Australia, an
individual has locus standi to file a PIL if either, a private right has been interfered with due to the
environmental damage; or secondly, if the person has a special interest in the petition.

Importantly, special interest can not simply be established in an intellectual or emotional manner. So
a citizen or group cannot claim to have “special interest” for locus standi without some evidence of
interest. The objectives of the aims of the PIL litigant must show that they have the objectives and
experience of working in environmental conservation. For example,the case of North Coast
Environment Council v Minister Resources shows that an environmental pressure group or
environmental NGO can have a "special interest" because it was one of the largest environmental
organisations in that particular area and had regularly in the past attended advisory committee
meetings for the Council in the past.One way of establishing a special interest is if there is a spiritual
or cultural connection for the petitioner with the land. In the Australian case of Alcoa v Onus, the
petition consisted of a tribe whose land was going to be mined upon by a mining company Alcoa .
The court accepted that the tribe had locus standing because the tribes artefacts were endangered
by the mining company. Another way of establishing a special interest is by proving that the
environmental problem may effect the petitioner’s ability to use his land as in Day v Pinglen.

https://www.jstor.org/stable/pdf/43952408.pdf?refreqid=excelsior
%3Ac1f79ed353151fcb82a9e9361e7f0751&ab_segments=&origin=In the 1990 Chhetriya
Pradyushan Sangharsh Samiti case, the Supreme Court stated that environmental PILs can only be
entertained if they are in the public interest. The court warned that judges must be careful of how
many petitioners approach the court in order to further a personal profit or a political motivation. In
the Sangharsh Samiti case, the petitioner alleged the smoke being emitted from an oil mill plant
nearby, was causing serious environmental air pollution for the nearby residents. However, the court
dismissed petition because the petitioner was a business competitor of the mill owner and it
appeared on facts that the petitioner was only seeking to extract money from the respondent mill
owner by using the PIL as a tool. At the same time in the PIL of Ecil Rapiscan v Union of India , the
Supreme Court held that the public should be compensated if a commercial project which was
designed to benefit the public either became more expensive or took more time due to a fake PIL
case which was filed only to harrass or to protect a personal interest. In the ECIL Rapiscan case, the
petitioner claimed that there was wrongdoing in the awarding of a commercial contract because the
Government ( through the Airport Authority of India) had awarded a contract to the respondent
even though the petitioner had offered a price that was twice the value of what the petitioner had
offered. In this particular case, the court held that while the government has discretion to award a
contract because price is not the only reason to award a contract- it reiterated that the courts under
article 32 or 226 can review the government’s decision on the ground of arbitrariness. In the
Subhash Kumar v State of Bihar, the court found that there was a personal enmity by the PIL
petitioner because the petitioner had wanted more supplies to be provided for the petitioner's
business by the defendant. The petitioner claimed that the defendent company had spread effluents
of slurry into the nearby sea. However, the court found that the slurry business had received
permission from the pollution control board to send the pollutants into the water.

One important characteristic of the legal framework of environmental law is that many of the
international conventions are not legally binding in domestic law. As a result, if the concept of PIL did
not exist, it is possible that important environmental legal principles like the doctrine of sustainable
development, the polluter pays principle or the Precautionary principle would not have been
enacted by Parliament because such environmental principles would be seen as over regulating
business activity which would discourage business For example, the polluter pays principle was
introduced in the case of Indian Council for Enviro-Legal Action v India . Polluter Pays Principle
requires the creater of pollution to pay all the remedial costs to not just clean up the pollution but
also to compensate victims who have suffered a loss (whether legal or economic) due to the
polluter. In the case of Indian Council for Enviro-Legal Action v Union of India, the respondents were
managing heavy indutry machinery which was releasing toxic acid which was being absorbed in the
earth causing water supplies to become polluted. The Court reasoned that the respondent (heavy
metals factory) had refused to obey the court orders which had directed the company to stop the
chemicals waste nor had the respondent installed appropriate equipment to treat the waste. Since
Section 3 of the Environment Act (1986) permits the Union Government to take required steps to
protect the environment, the courts allowed the central government to determined freely how
much compensation the respondent company would need to give.

Another principle introduced by Environmental PILs is the Precautionary Principle. The

Precautionary Principle is an obligation under which every industry and government agency must
predict and avoid the reasons causing environmental pollution and degradation. This principle was
highlighted in the PIL of Vellore Citizens Welfare Forum v Union of India where the Court decided
that if there is a possibility of grave and irreversible environmental degradation then industries
cannot use the lack of scientific certainty as an excuse for delaying their attempt to avoid
environmental damage. The industries or other large scale causers of pollution have the burden of
proof to show that their actions were not anti environment. The Vellore PIl case held that the
precautionary principle is an acceptable part of Indian Environmental Law because Article 48A
requires the state to protect forests,wildlife and the envornment and Article 51 A requires the state
to improve the natural environment such as rivers. Moreover, many statutes already implicitly
recognise the Precautionary Principle. For example, the Water Act does not allow river streams to be
used for disposing pollutants.

In the Vellore Citizens Welfare Forum case, certain tanneries were polluting the local Palar river with
Pollutants. The Court implemented the Precautionary Principle in practise by . directing the central
government to constitute an authority under section 3 of the Environmental Act 1986 headed by a
retired judge.The duty of the authority was to compute the compensation that would need to be
paid by identifying the families that had been affected by the pollution as well as the extent of
environment that had been damaged. The compensation would need to be collected by the local
District Magistrate and if there was a failure to pay compensation by the industry, then the authority
could close order the closure of the industry.

https://lead-journal.org/content/08001.pdf

https://lead-journal.org/content/08001.pdf Nevertheless, environmental principles that have been

introduced into the Indian Legal System such as the Polluter Pays Principle have never truly been
institutionalised. For example in the S Jagannath case, the court had directed shrimp companies to
pay compensation under the pollution pays principle for damaging the local ecology. However, soon
after the judgement, the Lok Sabha passed an act which overruled the directions declared in the
Jagannath case. This Jagannath case example also demonstrates the legitimacy problem of Public
Interest Litigation. The fact that the Parliament is the popular representative of the people makes it
more easy for principles which have been introduced by the Courts to be ignored and overruled such
as the Polluter Pays Principles.

Prior to the existence of Public Interest Litigations, the only remedies that were available for
environmental protection were provisions of the Law of Torts and CRPC in terms of public nuisance
cases for air or noise pollution.One way in which PIL’s have been adapted and modified for
Environmental law cases has been through the “Continuing Mandamus” . The Continuing Mandamus
permits to court to monitor the the extent to which the judiciary’s Orders and decisions have been
implemented. For example, the case of T.N. Godavarman v. Union of India, the court used
Continuing Mandamus to order the filling of monthly Reports of the level of implementation as well
as to form a Central Empowered Committee. Moreover, the court ordered that an Amicus Curiae be
appointed to assist the court in seeing whether the Courts orders were implemented. In the
abovementioned case of T.N. Godavarman, the supreme court ordered for the illegal logging of
forest trees to be stopped.

https://lead-journal.org/content/08001.pdf Another innovation of Environmental PILs is the way the

court has used its discretion to create environmental expert committees. Generally the most
common purpose of expert committes is to oversee whether orders are being implemented.
However,committees created by PILs have advised the courts on further developing the law
surrounding a particular environmental issue. For example, in the Doon Valley case, the court
appointed a committte to inspect whether unlimited mining by those with a license to mining had a
negative impact on the environment. Due to the committee's findings, it was decided to recommend
the government to ban not all but some of the mining operations in a slow manner.

One innovation of Environmental Public Interest Litigation has been how judge's have taken on the
spot visits to better understand specific environmental problems and how well the PIL order is being
implemented. In the Ratlam town v Vardhichand case, the judge not just reached the town but also
spoke to the local municipal corporation to under stand the problems with the drainage system.
Another example of an on the spot PIL visit was when Justice Bhagwati, in the Doon Valley case, on
the basis of his visit , appointed a committee to assess the vulnerable environmental ecosystem of
the area. This committee would later order the Uttar Pradesh government to shut mining companies
that were operating without the proper licensing.

It is important to note, that the vast majority of legislation initiated in critical areas of environmental
management like vehicular pollution or industrial pollution came into being only as a result of the
court rulings under Public interest Litigations. For example in the 1991 "Strategic Action" PIL case, a
committee on vehicle pollution was to be created within the next year. This eventually lead to
environmental standards for vehicles to be introduced so that in major cities like Delhi, older
commercial cars were phased out because those cars were more toxic for the environment. The
Saikia/Bhurelal Committees ordered for state owned buses and other publically owned vehicles to
start running on CNG (Coal and Natural Gas). It also recommended that the sulphur content in
Diesel should be restricted to not more than 0.05%.

Given the fact that environmental problems gradually become more dangerous over time- it is a
crucial benefit of the Public Interest Litigation system that since it is filed only in high courts and the
Supreme Court, it is less likely to face the same time duration that other cases take. Moreover, the
fact that environmental PIL's go straight to the High Court is beneficial because decisions by the
supreme court or High courts have greater applicability throughout the country.

file:///C:/Users/Vinayak/Downloads/SSRN-id1776923%20(2).pdf Often the damage caused due to

environmental degradation might be too dispersed and widespread. Therefore, the damages that
might be due to each victim might be so low that there is no incentive for individual victims to sue
because the legal expenses to file a suit may be much more than the damages. The advantage of
using Public Interest Litigation is that it is cheaper for victims to file a suit because PIL’s often
represent a large number of people in society. Therefore, the litigation costs get divided amongst
many litigants. For example in the Rural Litigation and Entitlement Kendra case, where mining was
carried out , some of the witnesses suffered losses as low as a few thousand rupees.

file:///C:/Users/Vinayak/Downloads/13WisIntlLJ57.pdf One important learning from the history of

Indian Environmental PILs is that creating coercive laws by parliament or vidhan sabha will never be
sufficient to protect the environment. This view is reflected in Indian Council for Enviro-Legal Action
v Union of India where the court remarked if drafting more environmental laws was to resolve the
environmental issue, India would have been the most environmentally clean country." The problem
is fundamentally that the local administrative agencies are corrupt.

file:///C:/Users/Vinayak/Downloads/SSRN-id2827327.pdf Another example of how legislation is not

sufficient can be witness within the domain of air pollution. Three legislations concerning Air
Pollution were drafted and enacted in the 1980s. However, Air pollution still not been resolved.
There already exists the 1981 Air (Prevention of Pollution) Act which established regulatory boadies
to monitor air pollution levels by granting licenses to industries. Similarly, the Delhi Master Plan set
out pollution emission standards for industrial and residential zones. Lastly, under the 1986
Environmental Protection Act, the central government can set the maximum permitted limits of
environmental pollutants for different areas. The EPA prohibits industries from discharging
pollutants more than the prescribed limit. In spite of this legislation, the case of MC Mehta v Union
of India case on vehicular pollution just fifteen years later depicts the problematic state of Air
Pollution.The case reported that 10,000 people died every year annually due to air pollution in Delhi.
The court also noted that there was a huge increase in pollution caused by the increase in number of
vehicles.

Another problem with Public Interest Litigations is that the judicial process takes a lot of time. A
good example of the long time span of the judicial process is Vellore Citizens Welfare Forum versus
Union of India . In that case, although the petition was filed in 1991, the decision was only declared
in 1996. The Court ordered the Union Government to create an Authority which would identify
individuals who had suffered due to the loss of ecology so that compensation would be paid to
them. Nevertheless, even though 2 decades have passed, the Authority has still not performed its
tasks.

file:///C:/Users/Vinayak/Downloads/SSRN-id2154537.pdf The Court even held that if a project is

stayed on account of a public interest petition which is subsequently dismissed, the petitioner
should be made liable to pay for the damages occasioned by the delay in the project. In the words of
the Court, ‘any interim order which stops the project from proceeding further must reimburse all the
cost to the public in case ultimately the litigation started by such an individual or body fails.

Moreover, in India like in the common law countries of the UK and USA, the principle of res judicata
can be a substantial deterrent to over-litigation. The principle of res judicata bars later siots
betweern new parties when the court has already adjudicated over the same legal question
previously. Thus, petitioners would need to raise a new legal point if they want different relief.

PIL’s allow a massive reform – which has no limits

https://lead-journal.org/content/08001.pdf One of the advantages of Public Interest Litigation is that

the court will not simply stop at adjudicating the petition at hand. In other words, under a PIL, courts
are able to go much beyond the petition at hand into creating an entire new jurisprudence of
environmental conservation. In the case of TN Godavarman Thirumulpad case, although the petition
was related to the protection of Nilgiris Forest, the court developed this petition into a reformation
of India's national foresting policy. In that case, the court suspended tree felling across the country.
Moreover, the Court tried to make the licensing procedure of forest companies much more strict by
making it forbidden for forestry activities to be done without permission of the central government.

In order to provide effective and expeditious disposal of cases pertaining to environmental

protection and forest conservation, the National Green Tribunal was established in the year 2010.
The National Tribunal Act, 2010, vests the Tribunal with jurisdiction over all 8 civil cases with respect
to water, forest, air, environment and biological diversity, where a substantial question relating to
environment is involved. https://www.ajne.org/sites/default/files/event/7/session-materials/h.-
kohli.-session-7-public-interest-litigation-justice-hima-kohli.pdf

The problem with the Green Tribunal as of present is that its scope is limited to the provisions of its
Act which created the Green Tribunal i.e. the National Green Tribunal Act. Whereas the High Court
and Supreme Courts have a large scope of standi due to PILs, Section 14 of the NGT Act holds that
the Green Tribunal can only act in relation to 7-8 environmental acts that have been outlined in
schedule 1 such as the The Biological Diversity Act 2002 or the Public Liability Insurance Act 1991.

One excellent reform to the Environmental PIL system was the creation of new Environmental
Courts in the form of the National Green Tribunal Act. The effect of creating a new Environmental
court is that it would increase the speed with which environmental cases are concluded. The PIL of
Indian Council for Enviro Legal Action v Union of India has also remarked that environmental cases in
the ordinary courts ( particularly those cases involving the Environment Act and Air Act) due to
excessive number of pending cases in non environmental cases.
Unlike Environmental PILs, the National Green Tribunal has members who have a professional
working understanding of not just law but also the field of Environmental Science. There is a need
for more technical consultants for the Judge in PILs a question the High Courts must consider. This is
because Environmental PIL decisions must be based on scientific basis. For example in the case of
Vigyan Arogya Sanstha v Ministry of Environment, the National Green Tribunal had to review the
cumulative effect of power projects as well as to outline the permissible levels of radiation that can
be emitted .

One problem with regards to PILs is that courts often feel hesitant to their authority. This is because
one of the major roadblocks to the judicial activism is the concern that judicial decisions might
overreach or conflict with the decision making of different institutions or different elected wings of
government . Article 50 of the Indian constitution enshrines the principle of separation of powers by
stating that the powers of the executive and judiciary must be exercised separately from each other.

Justice Bhagwati defending the concept of the court assuming stronger powers to administer justice.
In the Bandhua Mukti Morcha case, Justice Bhagwati stated that the duty of Public Interest
Litigations is not to confront or conflict with the executive or legislature. Rather, the judiciary must
only ensure that social and economic programmes are implemented as the statute or constitution
demands. Bhagwati adds that the judiciary's task is of "judicial delineating". Judicial delineating
means that the court should issue remedies which furthers the intentions of relevant statutory
provisions.

One problem with Public Intervention Litigation in terms of environmental law is that the courts
often violate the theory of separation of powers by not sticking to the prescribed limits of the
judiciary.For example the Court ordered for all vehicles to start using Compressed Natural Gas in the
Delhi Vehicular Pollution case. In passing this order, the Court was bypassing the role of the Delhi
pollution regulator.

Another example of the Courts overstretching beyond their roles enunciated in the Constitution of
India is how the Court has taken away the powers of local tribes in the management of the forests
that these tribes live in that were tabulated in Schedule 5 and 6 of the Constitution. In the
Thirumulpad v Union of India case, the court held that its orders applied to all forest land
irrespective of whether that land was owned by the government or if the land was controlled and
owned by Tribals. This decision , by centralising power over forest lands adversly impacted the rights
the Constitutionally guaranteed and Legislatively guaranteed rights that forest tribals enjoy. This
case ignores the ruling made in Samata v State of Andhra Pradesh. In that case the court had held
that tribal forested land cannot be sold or leased to non tribal people because Paragraph 5 of the
fifth schedule guarantees that land can only be operated by the State Mineral Corporation or by a
tribal owned cooperative as long as one fifth of the profits arising from these commercial activities
go to building infrastructure in these local tribal forest areas.
However, one argument which justified the violation of separation of powers principle by the courts
in Environmental PILs was made in the case of MC Mehta v UNion of India. The Court argued that
upto 1998, there had been deteroration in the quality of the environment even though several PILs
had already directed the authorities to take some action to mitigate environmental damage. The
Court therefore opined that given how long Indian buereaucracy functioned in implementing orders,
any more delay could not be tolerated because that would only further damage the environment.

https://www.mse.ac.in/wp-content/uploads/2016/09/op_sankar.pdf One of the major difficulties

for Public Interest Litigation Petitioners is that there is a lack of information symmetry because
pollution regulators do not have accurate information of the quanty of emissions of waste . The lack
of information is because the regulators do not have sufficient funds.Most State Pollution Control
Boards do not even have enough employees to monitor all the polluting units. On the other hand,
the polluters know more about the source of the pollution as well as the amount of pollution
emitted.

file:///C:/Users/Vinayak/Downloads/SSRN-id2154537.pdf Despite the fact that the implementation

of PIL's have been weak, the courts have tried to over come this challenge by making it clear that
monetary fines and costs that industries must bear for causing pollution must reflect the social costs
that their pollution has inflicted on the air,water, and local ecologial habitat. The court added that
this rule for determining fines will apply even where businesses go out of operation for having to
fulfill these costs.

The Chinese Environmental Public Interest Litigation Law was initiated only very recently in 2016 as
a part of China's democratic reforms. China, being a developing country, has a PIL system that more
resembles India than the PIL system in the west. For example,under Article 58 of the Environmental
Protection Law, social organisations will have standing to petition against environmental pollution as
long as those social organisations have specialised in environmental activities for the last five years
and are registered with the civil affairs department.

file:///C:/Users/Vinayak/Downloads/
Environmentalpublicinterestlitigationnewrolesforcivilsocietyorganizationsinenvironmentalgovernanc
einChina.pdf A unique aspect of China's Public Interest Litigation policy is that China has tried to
involve government enforcement regulary agencies into PIL as an additional plaintiff under what it
calls the "Ecological Damage Compensation System" (EEDCS). The EEDCS enables government
regulators to file suits against businesses for environmental misconduct.

file:///C:/Users/Vinayak/Downloads/
Environmentalpublicinterestlitigationnewrolesforcivilsocietyorganizationsinenvironmentalgovernanc
einChina.pdf

A notable difference from India or the west in terms of Environmental PILs is that under the 2014
Environmental Law, private Individuals cannot file Environmental PIL’s . The disadvantage of this is in
transparency. China’s regulators are influenced by “guanxi” (meaning social connections) . Due to
the guanxi (or social connections ) regulating agencies overlook violations from industries either
because the industry is run by powerful individuals or because the regulators receive bribes from the
industry. If China were to liberalise standing so that citizens would be permitted to file PILs, this
would improve the accountability of regulating agencies and improve the effectiveness of
Environmental PILs. Another characteristic of Chinese Environmental PILs is that NGOs cannot on its
own petition or bring a suit against government agencies . Rather, NGO's ability to sue has to be
done through Public Prosecutors. This is a big drawback to China's Environmental PIL system
because a large section of China's industries even today are government owned and Public
Prosecutors are political appointments in China (the Supreme Prosecutor is appointed by the
Communist Party).

file:///C:/Users/Vinayak/Downloads/
Environmentalpublicinterestlitigationnewrolesforcivilsocietyorganizationsinenvironmentalgovernanc
einChina.pdf However, on the other hand, Professor Zhuang argues that involving Public
Prosecutors in Environmental PILs could be beneficial in achieving justice because in a bureaucratic
country like China, Prosecutors are like to have more access to court dockets and have the resources
to collect information.

One alternative to PIL's is for to negotiate an out of court settlement with the business which is the
source of the pollution. It might appear, prima facie that this is an optimal solution because this kind
of negotiated private settlement will not cost anywhere as much as a PIL. However, a big problem is
that businesses have much stronger negotiating power than individuals . Businesses have more
wealth, and so those businesses causing pollution may be able to afford a better negotiation team so
that the final settlement may not favour the environmental victims. Moreover, business know that
many environmental victims may not have the money or interest to pursue litigation in the form of a
PIL and so they can offer a compensation that is much less than what the courts would provide.

One possible reform to improve the effectiveness of Public Interest Litigations is for. something
similar to the tortious principle of Rylands v Fletcher. The Rylands v Fletcher states that where an
industry is involved in dangerous activity and this dangerous activity causes an accident or loss , the
industry causing this pollution is strictly and absolutely liable to compensate all victim for sizeable
costs. This reform was also suggested in the 1988 Mehta v UOI case.

Another reform is for sizeable costs if not jail punishment to be imposed on polluters even if they
unknowingly and mistakenly do not reveal the truth about the extent of their role in the pollution. In
other words there should be a strict liability requirement for the Defendent- they must be aware of
the quantity of pollutants that is being emitted by them. This would have the effect of forcing
industries to carry out a bit of an environmental impact assessment. After all the court already
imposes fines on petitioners who file PILs out of personal self interest and provide false information
such as in the recent G Kumar Swamy case . Moreover, section 193 of the Indian Penal Code already
penalises Perjury with a punishment of upto 7 years imprisonment or a Fine. There are many
advantages of requiring polluters to know their pollution levels. Firstly, given that there are
problems with the accuracy of data collected by environmental regulatory agencies ( due to being
under funded and under staffed) , imposing a strict liability requirement on industries will allow the
court to corroborate the industries information with that of the agencies. Moreover, these industries
are likely to have more money ( since they are enterprises) and so, it is would be less unjust to
require them to accurately report their emissions by carrying out a proper environmental impact
assessment.

Moreover, there is a need to increase the scope of Powers vested in Pollution Control Boards
because presently, in PILs, the Boards are unable to impose punishments on polluters. The PILs take
such a long time that the purpose of the Pollution bords are defeated. According to The Water
(Prevention and Control) Act 1974, for example, the only functions of the State Pollution board
include inspecting trade effluents, establishing laboratories for analysing samples, advising the local
government on pollution control and conducting mass education programmes on the need to reduce
environmental damage.

There are hundreds of national and regional laws relating with environmental issues. However, in
order to enforce legislation better- it is necessary to have a more unified and integrated act on
environmental regulation which includes environmental doctrines like Precautionary Principles,
Polluter Pays Principle which are common across all different types of environmental pollution and
Acts

file:///C:/Users/Vinayak/Downloads/The_analysis_of_the_Aarhus_convention_in_the_conte.pdf

One of the ways of strengthening Environmental Public Interest Litigations is by incorporating

provisions of the Aarhus Convention into national Law or if India would become a signatory to the
Convention. The Aarhus Convention would reduce the number of Public Interest Litigations because
it would ensure that institutions consider the environmental demands of the public during their
activity so that there would be no need to go to court. The Aarhus Convention would make the task
of the Courts much easier by giving citizens an alternative mechanism to enforce their rights to a
healthy environment.

The first pillar of the Aarhus Convention gives individuals the right to get access to environmental
information which is with the state authorities and individuals seeking such information do not need
to show that they have a locus standi or legitimate interest in the information. Nevertheless, Article
4 of the Aarhus Convention does mention some reasons for which it is legitimate for state
authorities to refuse to provide environmental information. For example, if the environmental
information will affect a legitimate economic interest of a company or if the environmental
information may affect international relations.
The second pillar of the Aarhus Convention is the right of citizens to participate in environmental
decision making. Article 6 of the Convention requires countries that are a party to the convention to
notify the public about activities that may have a big affect on the environment. States must give
the public an opportunity to participate to share their concerns and opinions with regards to the
activity.

The third pillar of the Aarhus Convention is the access to Justice. Article 9 of the Aarhus Convention
permits citizens who have previously seeked environmental information to review in court whether
a party had complied with its request under Article 4 of the Convention. Moreover, under Article
9,citizens can also challenge activities of government authorities or private individiuals which conflict
with national environmental laws.
The advantage of interpreting the right to a healthy environment as a fundamental right is that it is
easier for private citizens to participate and enforce environmental protection through Article 32 as
a PIL. While in other jurisdictions like Spain and Brazil, although specific provisions have been made
of a fundamental right to a clean environment there have been no ways to enforce environmental
protection.
ty.6 However, it is important to note that the procedural rigidities should not be permitted to
frustrate the efforts of overcoming the magnitude of hazards caused as a result of multifarious
developments that are taking place in society as well as in polity. The extended use of this procedure
has facilitated poor, illiterate, non-governmental organizations, social action groups and the public-
spirited persons to bring cases before the appellate judiciary and thereby, get an easy access to
socioeconomic and environmental justice. Due to the innovative approach, the appellate courts have
entertained environmental petitions under PIL where a public park was converted into private
nursing home, against the use of polluted water, against the setting up of a project involving
environmental pollution, against the large scale withdrawal of ground water, against vehicular
pollution, against the establishment of a super thermal power industry in a forest area, and also for
prohibiting contractor from cutting bamboo in for

I https://www.mse.ac.in/wp-content/uploads/2016/09/op_sankar.pdf n Vellore Citizens Welfare

Forum v. Union of India and Others, a writ petition was filed in 1991 and after many hearings and
directions, the Court delivered judgement on August 29, 1996. After citing the Stockholm
Declaration of 1972, the constitutional and statutory provisions, and common law to protect a
person’s right to fresh air, clean water and pollution free environment, it endorsed the concept of
sustainable development and endorsed “the precautionary principle” and “the polluter pays
principle”. It directed the central government to constitute an authority under Section 3(3) of the
Environment (Protection) Act, 1986 to implement the two principles. It said: ‘the authority shall,
with the help of expert opinion and after giving opportunity to the concerned polluters assess the
loss to the ecology/environment in the affected areas and shall also identify the individuals/families
who have suffered because of the pollution and shall assess the compensation to be paid to the said
individuals/families. The authority shall further determine the compensation to be recovered from
the polluters as cost of reversing the damaged environment. The authority shall lay down just and
fair proceedure for completing the exercise’. It imposed a fine of Rs.10,000 on each of the 700
tanneries in Tamil Nadu and asked them to instal individual effluent treatment plants(IETPs) or
become members of CETPs. The Court also directed the Madras High Court to constitute a special
Bench, “Green Bench” to deal with this case and other environmental matters 20.
The subordination of environmental interests to the cause of development was also evident in
Supreme Court’s judgment in the PILs challenging the construction of Tehri Dam and the
construction of power plant at Dahanu Taluka in Maharashtra, where the government’s own expert
committee had given an elaborate report pointing out a series of violations of the conditions on
which environmental clearance to the projects had been given by the Ministry of Environment and
Forests.
https://www.scmsnoida.ac.in/assets/pdf/journal/vol1Issue1/An%20Overview%20of
%20Environmental%20Jurisprudence%20in%20India.pdf

It was Mr. M.C Mehta11 who revived the concept of environmental jurisprudence in India through
PIL. Others too had their silent but noteworthy roles to play. Some of the landmark judgements
having fair share in development of the environmental jurisprudence in India are:

Andhra Pradesh Polluting Industries Case: Nakka Vagu was a fresh water stream which provided
fresh water for drinking and 10 Satish C. Shastri, “ Environmental Law in India” Second Edition,
Eastern Book Company 2005 11 1997 Magsaysay Award Winner for Public Service irrigation to the
villagers living in 14 villages adjacent to it. But the indiscriminately set up 250 industries which did
not fulfill the condition of setting up water treatment plants turned the stream into a huge drain
carrying industrial effluents. The Supreme Court directed that an amount of 20 million should be
paid to the farmers who had lost their crops and cattle due to air and water pollution. The
authorities are directed monitor setting up of set up pollution control devices by the polluting
industries.

12 Delhi Ridge Case: To save the Delhi ridge from destruction an order from the Supreme Court was
obtained directing NCT of Delhi to declare it as ‘Reserved Forest’.13 Gamma Chamber Case: Against
the hazardous radiation a PIL was filed in the Apex Court. The Court’s timely intervention saved the
students and teachers of Jawaharlal Nehru University (JNU) from the radiation of Gamma Chamber,
New Delhi.14 Ganges Pollution Case: The Supreme Court of India reacting to the public interest
litigations has passed several judgments and a number of Orders against polluting industries
numbering more than fifty thousand in the Ganga basin. As a result of these directions millions of
people have been saved from the effects of air and water pollution in Ganga basin covering 8 states
in India.15

Kamal Nath’s Case: The irony of this case is that a Public Interest Litigation was filed against the
family members of Kamal Nath, the Minister of Environment and Forests, Govt. of India. The family
members of the Minister own the Span motel in the State of Himachal Pradesh. They diverted the
Course of River Beas to beautify the motel. The Supreme Court of India had directed the owners of
the Motel to hand over the forest land to the Govt. of Himachal Pradesh and further order the
removal of all sorts of encroachment spending the money from their own pocket.16 Taj Trapezium
Case: In and around Agra, several industries were set up. The Mathura Reinery, iron foundries, glass
and other chemical industries are first and foremost amongst them. The Supreme Court of India
delivered a historic Judgment in December 1996. The apex Court gave various directions including
banning the use of coal and cokeand directing the industries to switch over to Compressed Natural
Gas (CNG).17 In addition to this, every Friday a courtroom is set aside to adjudicate the cases of MC
Mehta. He has succeeded in getting 40 land mark judgements sole handedly from the Supreme
Court which it self is a reco
Rural Litigation and Entitlement Kendra vs. State of U.P., AIR 1988 SC 2187 (Popularly known as
Dehradun Quarrying Case). It involved issues relating to environment and ecological balance. The
R.L. & E. Kendra and others in a letter to the Supreme Court complained about the illegal /
unauthorized mining in the Missouri, Dehradun belt. As a result, the ecology of the surrounding area
was adversely affected and it led to the environmental disorder. The Supreme Court treated the
letter as writ petition under Art. 32 of the Constitution and directed to stop the excavation (illegal
mining) under the Environment (Protection) Act, 1986. The respondents contended / argued that
the write petition was registered in 1983 and the Environment (Protection) Act was passed in 1986
and hence the criminal proceedings cannot be initiated with retrospective effect. The court rejected
the contention of the respondents and held that the provisions of procedural law shall apply to
ordinary criminal cases and not to the environmental cases. The court directed the Central and State
Governments to take necessary steps to prevent illegal mining and to re-afforesation in the area of
mining.

In M.C. Mehta vs. Union of India, AIR 1987 SC 1086 (Popularly known as “Oleum Gas Leak Case”) –
The Supreme Court treated the right to live in pollution free environment as a part of fundamental
right to life under Art. 21 of the Constitution. Further the A.P. High Court in T. Damodar Rao vs. S.O.,
Municipal Corporation, Hyderabad, (AIR 1987 A.P. 171) laid down that right to live in healthy
environment was specially declared to be part of Art. 21 to the Constitution. The concept of right to
healthy environment as a part of right to life under Art 21 of our Constitution is developing through
judgements. Further the right to environment is often associated with human right, mostly right to
live. Right to life is guaranteed as a fundamental right under article 21. In order to live a healthy life
it is of utmost importance that our environment and surroundings be pollution free and clean. The
flora fauna also impact the lives of individuals and can also be of utmost importance for survival.
Therefore An Overview of Environmental Jurisprudence in India 13 there is emergence of the
concept of right to environment as a fundamental right as can be seen in various judgements
mentioned above

Specifically in relation to environment, the Indian Judiciary has been empathetic towards
environment, and visionary in its employment of legal principles, both domestic and international,
detailed below, to serve the cause of environmental justice.

Another notable achievement of PILs is that in MC Mehta v Union of India, the Supreme Court, in
one of the landmark Environmental PILs, held that the right to a healthy environment was part of
the Article 21 fundamental right to life. The court accepted that it would be impossible for people to
live a healthy and long life without a pollution free flora and fauna because individuals are
dependent on water resources for important aspects of life like farming, drinking . As a result the
Court ordered mining activities to be stopped within the local area.

n the basis of the two reports before it the Court concluded that the mining activities were harming
the environment and must be stopped. The Court considered the geographical features of the area
to determine the extent to which the ban must apply. It ordered that no mining activities would be
carried out in a two km radius around the tourist spots of Badkal lake and Surajkund and no
construction work would be undertaken in a five km radius. Also ordered the Forest Department and
Mining department to enforce all the recommendations made by NEERI. The court also held that
Articles 21, 47, 48A and 51A (g) of the Constitution of India give a clear mandate to the state to
protect and improve the environment including forests, lakes, rivers and wildlife and to have
compassion for living creatures. The “precautionary principle” makes it mandatory for the State
Government to anticipate, prevent and attack the causes of environment degradation

In order to live a healthy life it is of utmost importance that our environment and surroundings be
pollution free and clean. The flora fauna also impact the lives of individuals and can also be of
utmost importance for survival. Therefore

For instance, it declared the right to healthy environment as a fundamental right guaranteed under
Article 21 of the Constitution,20 directed several private sector organizations to take necessary
measures to protect the environment and reduce the pollution,21 and ruled against direct and
indirect harm caused by pollution to monuments, heritage buildings, and rivers.22

t when lawmakers take for too long for social patience to suffer, as in this very case of prison reform,
courts have to make-do with interpretation and carve on wood and sculpt on stone ready at hand
and not wait for far away marble architecture” opined Justice Krishna Iyer of the Supreme Court of
India in 1978.15 The need for an activist judiciary thus emanated from social wants. 16 The shift to
address social wants of the populace would only be actualized by addressing wants of all the citizens
of the country. In India’s case, this was close to half a billion citizens in 1970. This posed a challenge
—how does a judicial system address the wants of all when a part of the denizens were devoid of
fair access to justice? The answer necessitated judicial creativity, which came in the form of a shift
from the traditional meaning of locus standi to include public interest litigation, making the judicial
process more accessible, participatory, and democratic.

The world has reached a level of growth in the 21st century as never before envisaged. While the
crisis of economic growth is still on, the key question which often arises and the courts are asked to
adjudicate upon is whether economic growth can supersede the concern for environmental
protection and whether sustainable development which can be achieved only by way of protecting
the environment and conserving the natural resources for the benefit of humanity and future
generations could be ignored in the garb of economic growth or compelling human necessity. The
growth and development process are terms without any content, without an inkling as to the
substance of their end results. This inevitably leads us to the conception of growth and
development, which sustains from one generation to the next in order to secure “our common
future.” In pursuit of development, focus has to be on sustainability of development, and policies
towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it,
“conservation, however, always takes a back seat in times of economic stress.” It is now an accepted
social principle that all human beings have a fundamental right to a healthy environment,
commensurate with their wellbeing, coupled with a corresponding duty of ensuring that resources
are conserved and preserved in such a way that present and future generations are aware of them
equally.

S. No. Case Particulars Decision 1. Indian Council for Enviro-Legal Action v. Union of India, (1996) 5
SCC 281. Enforcement agencies are under an obligation to strictly enforce environmental laws. The
‘polluter pays’ principle which is a part of the basic environmental law of the land requires that a
polluter bear the remedial or cleanup costs as well as the amount payable to compensate the victims
of pollution. Stringent action ought to be taken against contumacious defaulters and persons who
carry on industrial or development activity for profit without regard to the object of the law. 2.
Subhash Kumar v. State of Bihar, (1991) 1 SCC 598. Every person enjoys the right to a wholesome
environment, which is a facet of the right to life guaranteed under Article 21 of the Constitution of
India.

Dr. B. L. Wadehra v. Union of India, AIR 1996 SC 2969. Government agencies may not plead
nonavailability of funds, inadequacy of staff or other insufficiencies to justify the non-performance of
their obligations under environmental laws. 4. Vellore Citizens’ Welfare Forum v. Union of India, AIR
1996 SC 2715. The ‘precautionary principle’ requires government authorities to anticipate, prevent
and attack the causes of environmental pollution. This principle also imposes the onus of proof on
the developer or industrialist to show that his or her action is environmentally benign. 5. State of
Himachal Pradesh v. Ganesh Wood Products, AIR 1996 SC 149. Government development agencies
charged with decision making ought to give due regard to ecological factors including: (a) the
environmental policy of the Central and state government (b) the sustainable development and
utilization of natural resources; and (c) the obligation of the present generation to preserve natural
resource and pass on to future generations an environment as intact as the one we inherited from
the previous generation. 6. Bangalore Medical Trust v. B.S. Muddappa AIR 1991 SC 1902. The power
conferred under an environmental statue may be exercised only to advance environmental
protection and not for a purpose that would defeat the object of the law. 7. M.C. Mehta v. Kamal
Nath 1997 1 SCC 388. The state is the trustee of all natural resources which are by nature meant for
public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air,
forests, and ecologically fragile lands. These resources cannot be converted into private ownership

des Article 13 of the Constitution of India which implicitly bestows the Supreme Court of India with
the power to test each legislative action on the cornerstone of Fundamental Rights guaranteed
under Part III of the Constitution of the country. One such fundamental right, as detailed above, is
the right of every citizen to a clean and decent environment. Under Article 32 violation of a citizen’s
fundamental rights can be redressed directly by the Supreme Court. Furthermore, Article 142 of the
Constitution allows the Supreme Court to pass any order necessary for doing complete justice in any
cause or matter pending before it.

The problem with the Green Tribunal as of present is that its scope is limited to the provisions of its
Act which created the Green Tribunal i.e. the National Green Tribunal Act. Whereas the High Court
and Supreme Courts have a large scope of standi due to PILs, Section 14 of the NGT Act holds that
the Green Tribunal can only act in relation to 7-8 environmental acts that have been outlined in
schedule 1 such as the The Biological Diversity Act 2002 or the Public Liability Insurance Act 1991.

the green tribunal, unlike the Constitutional Courts, the Supreme Court and the High Courts, is a
creature of a Statute. It is thus limited by the provisions of its parent act, for example the NGT Act.
This poses an inherent dichotomy vis-à-vis access to the green tribunal. While the Supreme Court
and the High Courts of India have the luxury of expanded scope of standi under the Public Interest
Litigation, the green tribunal, not being a Constitutional Court, does not. Section 14 of the NGT Act
states: “the Tribunal shall have the jurisdiction over all civil cases where a substantial question
relating to environment (including enforcement of any legal right relating to environment), is
involved and such question arises out of the implementation of the enactments specified in
Schedule I.”

Two cases examine the Indian Judiciary’s intervention to correct Executive inaction in the context of
water pollution in the Kanpur Tanneries case and air pollution in the Delhi Diesel Ban case. In both,
while responding to public interest litigation, the courts issued sharply worded orders directing the
Executive to enforce existing laws and the courts’ decisions, in spite of administrative reluctance to
do so. For example, in the diesel ban case, the Judiciary outlined the implementation plan by
mandating (inter alia) that Delhi’s transportation fleet switch from using diesel compressed natural
gas (CNG). However, in two other cases, the Judiciary has chosen to look the other way although the
Executive has manifestly not complied with its orders. The first case concerns the protection of
wetlands where the Executive has disregarded multiple judicial directions to demarcate the
wetlands. In the second case, the Judiciary has chosen not to use its considerable powers to compel
the Executive to stop crop burning in states close to New Delhi—an activity that causes severe air
pollution in Delhi each winter. Using these four cases, our exploratory study examines the possible
reasons for varying level of judicial assertiveness by drawing on the theory of tactical balancing.

Why selective assertiveness of the courts ?

irst, enforcement shortfalls reflect endemic corruption [47]. Laws often provide good leverage for
regulators to harass those regulated and extract bribes and gratifications. Poorly paid regulators are
often willing to look the other way and not crack down on illegal acts. While the above research
emerges from the literature on administrative enforcement, it might offer insights to understand for
judicial inaction to compel the Executive to enforce the law. For example, could the courts’ failures
to address enforcement failures reflect corruption within the Judiciary? While there is some
evidence to suggest that the Indian Judiciary is not immune to issues of corruption [48], in the
absence of robust research, it is hard to make a case that judicial corruption motivates courts to
overlook Executive inaction. Second, even if the Executive is honest, it may not have the capacity to
enforce complex laws [49,50]. These capacity deficits can range from their lack of technical expertise
to budgetary issues. In numerous cases, Indian courts have cited their deference to the Executive on
matters of technical complexity by either setting up committees or granting the Executive more time
to enforce a ruling or a law. However, courts have not been consistent in their approach towards
such cases. Furthermore, the issue of technical complexity often arises before the courts pass a
judgment: we are focused on cases where courts have ruled, the Executive has not enforced the
rulings, and the courts have only selectively insisted that the Executive enforce its rulings. The third
explanation, and the focus of this paper, highlights the political incentives facing regulators. While
the Executive may enact regulations, often in response to policy crises, its enforcement incentives
erode if the regulations are opposed by well-entrenched interest groups [51,52]. As social actors,
judges are not oblivious to this political reality when they are called upon to address enforcement
failures. As we discuss in this paper, judges might recognize that the state simply does not have the
coercive capacity (or is not willing to exercise it) to enforce these laws and that forcing the Executive
to act might redirect the public wrath from the Executive to the Judiciary. Thus, instead of forcing an
issue and losing face, the judges seek a tactical retreat by not seeking to correct enforcement
failure.\

Why did the Court assert itself in the Tanneries case?

As noted above, there are multiple factors that judges consciously and sub-consciously rely upon
in their decision making and we argue that institutional interests, preferences of the elected wings
of government, the decision0 s consequences, public opinion, and legal considerations all play a
role in their orders and judgments. For example, the Court repeatedly cites the municipal
authorities’ non-compliance with their statutory responsibilities in justifying their decision to
entertain the case as public interest litigation. This justification showed the court couching its
intervention as a response to government inaction—an effort which could be seen as a way to pre-
empt charges of judicial activism. Moreover, the Court sought to ground their order in existing
laws and policies instead of environmental principles in an effort that might reflect their interest in
showing that their intervention was based on law rather than perception. Such an approach works
to signal that the Judiciary is directing compliance rather than engaging in policy-making

Arguably, the court believed that local authorities had the capacity to implement its order, and the
political costs for doing so would be marginal for the court. This is because most of the groups
affected directly by the order did not have the political clout: the majority of the tanners are
Muslims, migrant workers, and from the lower castes [69]. Furthermore, there is a very large
constituency that favors the cleaning of Ganga since it is widely recognized that Ganga, the holiest of
all Indian rivers, is polluted

al rulings but one of the most significant of these was the orders against the tanneries near the city
of Kanpur and their continued and long-standing practice of discharging toxic chemicals into the
river. The issue of environmental consequences of the leather industry has drawn media attention
since, in addition to polluting the environment, the chemicals used in the tanning process cause
severe health problems for workers, an issue noted by Human Rights Watch. The documentary, The
Toxic Price of Leather, by Sean Gallagher, is a powerful narration of the pollution and public health
impact of the tannery industry in Kanpur [66]. In a wide-ranging order, the Supreme Court alluded to
both the spiritual significance of the river in the lives of millions of Indians and also to the
constitutionally guaranteed right to health and a clean environment to rule that the tanneries must
set up effluent treatment plants. The judgment cast a dual responsibility on public and private
entities to prevent the dumping of effluents and noted that financial incapacity was no basis to claim
an inability to prevent the dumping. In the Court’s words: “Just like an industry which cannot pay
minimum wages to its workers cannot be allowed to exist, a tannery, which cannot set up a primary
treatment plant, cannot be permitted to continue to be in existence for the adverse effect on the
public at large.” [64]

Diesel case

We suggest that the Court’s willingness to pass orders to correct enforcement failures cohere well
with elements of Kapiszewski’s theory of tactical balancing. First, the CNG cases posited a relatively
discrete technical solution to the problem at hand with little adverse political and economic
consequences. This is because while the costs of this change were substantial, they were still
reasonably concentrated in a small group of stakeholders: transport operators. While the citizens did
face considerable inconvenience, the Court was quick to highlight that this was attributable to
Executive inaction rather than its orders. Moreover, given the visibly high levels of air pollution in
Delhi, the court0 s actions had widespread public support [74]. Indeed, once the conversion from
diesel to CNG was completed and air pollution came down, all political parties rushed to take credit
for it. The Court is keenly aware of its position vis-à-vis the other wings of Government as well as the
manner in which it is perceived by the public at large. One could, thus, argue that the Court’s
position was at least in part derived from its desire to both enforce the orders that it believed would
benefit the public as well as emphasize its standing, a finding that reflects well with the Court’s
consciousness of its institutional interests as well as its consciousness of the importance of public
support

e Court’s intervention received some level of pushback from organized interests, who were arguably
more powerful than the ones in the Kanpur tanneries case. Transport companies and even the Delhi
Government noted the technical difficulties, infrastructural deficiencies, commuter welfare, and
prohibitive costs were hampering their ability to change over to cleaner fuels and argued that the
Court’s timelines should be extended. In an interesting contrast to the Court’s stance in its later
judgments regarding Delhi’s air pollution, the Court pushed back against most of such efforts to seek
extensions. Indeed, when, in 2001, the Delhi Government even announced its unwillingness to
comply with the Court’s directions even at the risk of facing contempt proceedings in order to
protect the interests of Delhi’s residents the Court delivered a sharply worded criticism [72] which
ultimately ensured that the Government reversed its rhetoric and filed an affidavit in Court pledging
to comply with the Court’s directions [73].

nvironmentalist MC Mehta to file a public interest litigation case before the Supreme Court of India.
In his petition, Mr. Mehta called attention to the rising levels of air pollution in New Delhi and
accused the administration of violating both the right of Delhi’s residents to breathe clean air as well
as the country’s environmental statutes. He called upon the Delhi Government to file an affidavit
detailing the steps it had taken to counter air pollution in the capital and, among other things, asked
the Court to take up the case against vehicles polluting the city’s air [70].

lthough wetlands cover an estimated 4.7% of India’s surface and perform a variety of critical
ecosystem services [75], India0 s protection for these critical habitats has been surprisingly weak. In
spite of extensive Wetlands Protection Rules (Rules) framed under the EPA in 2010, state
governments have flouted several of the Rules’ mandatory provisions

How does one explain the unwillingness of the Court to assert its institutional authority to demand
compliance? The answer to the Court’s actions may lie with the framework for wetlands
management in the country. India has an astonishing diversity of wetlands in different parts of the
country and this diversity has made it difficult for the central management of the wetlands—this, in
large part, is the reason why the 2010 Rules and the 2017 Rules both envisage a two-tier structure
where the competencies are divided between central and state authorities for wetlands
management. Even within states, the issue of wetlands is heavily fragmented with the states’
environmental ministries and municipal authorities frequently blaming the other for not taking
adequate action to protect these areas. At this level of fragmentation, the Supreme Court would
need to summon a veritable galaxy of persons if it wanted to hold all the responsible authorities to
account for their lapses. Moreover, there is no easy solution available to deal with the wetlands
issue—some wetlands are suffering from encroachment while others are suffering from pollution-
related impacts (to take just two examples). A policy that demands eviction of encroachers would
cause major political upheaval that no political party is willing to face. Given the granularity of the
issue, the federal complications and the number of stakeholders involved (in addition to the
governmental authorities, residents, fisherpersons, building developers, construction workers, and
grass-cutters are just some of the different groups of affected communities), there are limitations to
the courts’ ability to effect change on such a widespread and complex issue.
In contrast, the crop burning issue involves not just multiple authorities, but it also crosses state
boundaries. The political implications are obvious: the costs of curbing crop burning are borne by
farmers of Punjab, Haryana and Uttar Pradesh while the benefits of clean air are predominantly
accruing to citizens of Delhi. Furthermore, the elections to the state governments in these states are
highly competitive; it is not surprising that no political party there has come out in favor of a burning
ban. All ask for federal subsidies for the farmers to buy machines that would allow them to remove
the crop stubble in a short time period so that the land could be prepared for the planting of the
next crop [83].

The air pollution cases highlight the limits of granting powers to co-equal bodies and the need for
Central Governmental intervention in order to break the deadlock, as it were. It also reveals that
legal and political mechanisms are intertwined and that no Court, howsoever powerful it might be,
operates in a vacuum. The air pollution cases have witnessed, for instance, that the State
Government pleads an inability to convince its counterpart governments to curb crop stubble
burning. While it is possible that the Delhi Government could take the errant government to court
for its failure to abide by court orders, doing so would have political costs. The Indian federal system
has had cases of states suing other each other—for example, in the cases relating to the division of
river waters (with the Supreme Court enjoying original jurisdiction in such matters) but there has
been no known precedent in environmental cases. The air pollution cases also reveal substantial
limits to the authority of courts in the country. The courts are immensely powerful but they are also
reliant on the other wings on government for the enforcement of their orders and this contradiction
makes them more open to criticisms of ineffectualness.

In the air pollution cases, what makes the issue more difficult is that few state governments admit
to a desire to flout the court’s orders—they are far more likely to plead for more time and note their
inability to enforce the orders. Without technical and cogent evidence to the contrary, the Courts’
Sustainability 2019, 11, 7234 14 of 18 hands are, thus, tied. The Delhi crop burning case shows the
Court’s consciousness of the reasons for non-compliance and its willingness to come to a conclusion
as to the extent to which governments can be ordered to follow a certain course of action. In this
case, while there is significant public support within New Delhi, such public support is likely to be
missing across the areas where the decision will need to be enforced (and, indeed, it is likely that
negative

https://www.environmental-mainstreaming.org/documents/EM%20Profile%20No%203%20-
%20Public%20Interest%20Litigation%20(6%20Oct%2009).pdf

Pros (main advantages) and Cons (main constraints in use and results) PIL can: ƒ encourage
government accountability – government agencies perform better when they know that they can be
held accountable by the courts; ƒ provide enforcement assistance – no government has enough
resources to monitor and enforce all potential violations of the law; ƒ allow courts to clarify and
interpret the law, close existing gaps and raise human rights, environmental and social protection
standards; ƒ supplement the criminal justice system if, for example, fines are relatively low compared
to the amount of environmental degradation caused; and ƒ result in restitution and compensation
for damages and injustices suffered by individual, groups and communities. But PIL may also: ƒ be
abused by individuals or groups to further their personal or commercial interests; ƒ lead to a large
number of complex, long lasting cases which can ‘clog up’ the legal system and create substantial
costs; ƒ give judges wide discretion in interpreting and defining the public interest which, arguably,
could violate the separation of powers doctrine and may be better done by a democratically elected
legislature; ƒ be constrained through existing law which often does not reflect the current actual
conditions on the ground; ƒ leave public interest litigants that are unsuccessful with an obligation to
pay the often substantial costs of the state and other parties; ƒ depend heavily on the lawyers
involved and the financial backing of parties; and ƒ result in court judgments which government
agencies fail to implement properly

INDIA In Vellore Citizens' Welfare Forum vs. Union of India (1996) the Supreme Court allowed
standing to a public-spirited social organisation for protecting the health of residents of Vellore. In
Vellore, tanneries situated around a river were found discharging untreated effluents into the river,
jeopardising the health of the residents. The Court noticed that the leather industry was a major
foreign exchange earner and Tamil Nadu's export of finished leather accounted for 80% of the
country's export of that commodity. Nevertheless, the Court pointed out that the leather industry
had no right to destroy the ecology, degrade the environment and pose a health hazard. The Court
asked the tanneries to close their business.

https://ielrc.org/content/a9503.pdf

look at pages 3-7 and analyse PILs in terms of issues like locus standi,abuse of process and being
bona fide

https://www.sbsc.in/pdf/resources/1586097435_environmental_law.pdf

Sustainable development' means development that meets the needs of the present without
compromising the ability of the future generations to meet their own needs. The Supreme Court of
India in Vellore Citizens Welfare Forum v. Union of India30, elaborately discussed the concept of
'sustainable development' which has been accepted as part of the law of the land. The
'precautionary principle' and the 'polluter pays principle1 are essential features of 'sustainable
development'. The 'precautionary principle' makes it mandatory for the State Government to
anticipate prevent and attack the causes of environment degradation31. The Supreme Court in M.C.
Melna v. Union of India32 observed thus: We have no hesitation holding that in order to protect the
two lakes (Badhkal and Suraj Kund) from environmental degradation, it is necessary to limit the
construction activity in the close vicinity of the lakes. The 'polluter pays principle' demands that the
financial costs of preventing or remedying damage caused by pollution should lie with the
undertakings which cause pollution. The 'polluter pays principle' has been held to be a sound
principle and as interpreted by the Supreme Court of India33, it means that the absolute liability for
harm to the environment extends not only to compensate the victims of pollution but also the cost
of restoring the environment degradation. Remediation of the damaged environment is part of the
process of 'sustainable development' and as such polluter is liable to pay the cost to the individual
sufferers as well as the cost of reversing the damaged ecology. The aforesaid study of cases clearly
reveals that the Supreme Court of India has played a vital role for protection and improvement of
environment. The jurisdiction of the Court has been expanded by way of Public Interest Litigation.
The creative role of judiciary has been significant and laudable.

The right of a person to pollution free environment is a part of basic jurisprudence of the land.
Article 21 of the Constitution of India guarantees a fundamental right to life and personal liberty. The
Supreme Court has interpreted the right to life and personal liberty to include the right to
wholesome environment.13 The Court through its various judgements14 has held that the mandate
of right to life includes right to clean environment, drinking-water and pollution-free atmosphere.
Taj Mahal Case In Taj Mahal's case15, the Supreme Court issued directions that coal and coke based
industries in Taj Trapezium (TTZ) which were damaging Taj should either change over to natural gas
or to be relocated outside TTZ. Again the Supreme Court directed to protect the plants planted
around Taj by the Forest Department as under16: 12 e.g., Caustic soda, cement, electroplating, man
made fibers, oil-refinery, sugar industry, thermal power plants, cotton textile, stone crushing unit,
composite woollen mills, etc. 13 Rural Litigation and Entitlement Kendra, Dehradun V. State of U.P.,
AIR 1988 SC 1037 14 See for example, Subhash Kumar v. State of Bihar, AIR 1991 SC 420; M.C. Mehta
V. Union of India. AIR 2000 SC 1997 15 M.C.Mehta v. Union of India, AIR 1997 SC 734; see also
M.C.Mehta v. Union of India, AIR 1999 S.C. 3192. 16 M.C.Mehta v. Union of India, (2001), 9 SCC 520
Agarwal: Environmental Laws in India 233 The Divisional Forest Officer, Agra is directed to take
immediate steps for seeing that water is supplied to the plants... The Union Government is directed
to release the funds immediately without waiting for receipt of the proposal from the U.P.
Government on the basis of the copy of the report. Funding may be subsequently settled with the
U.P. Government, but in any set of circumstances for want of funds the officer is directed to see that
plants do not wither away. Dehradun Valley Case In that case17, carrying haphazard and dangerous
limestone quarrying in the Mussorie Hill range of the Himalaya, mines blasting out the hills with
dynamite, extracting limestone from thousand of acres had upset the hydrological system of the
valley. The Supreme Court ordered the closing of limestone quarrying in the hills and observed18:
This would undoubtedly cause hardship to them, but it is a price that has to be paid for protecting
and safeguarding the right of the people to live in healthy environment with minimal disturbance of
ecological balance…

SPEND TIME TALKING ABOUT HOW ENVIRONMENTAL TRIBUNALS NEED TO BE STRENGHTENED TO

REPLACE PILS MENTION HOW ENVIRONMENTAL LAWS HAVE TO BE QUICK WITHOUT MUCH
PENDENCY BECAUSE IT IS PREVENTIVE IT CANNOT LET ENVIRONMENTAL DAMAGE COME .

1. Advantages/Disadvantages of PIL method

2. Comparison with abroad
3. National Green Tribunal should be strengthened
 4. Ways in which PIL system can be reformed

1. One important characteristic of the legal framework of environmental law is that many of
the international conventions are not legally binding in domestic law. As a result, if the
concept of PIL did not exist, it is possible that important environmental legal principles like
the doctrine of sustainable development or the Precautionary principle would not have been
enacted by Parliament because such environmental principles would be seen as over
regulating business activity which would discourage business. The “precautionary principle”
makes it mandatory for the State Government to anticipate, prevent and attack the causes
of environment degradation

Another notable achievement of PILs is that in MC Mehta v Union of India, the Supreme Court, in
one of the landmark Environmental PILs, held that the right to a healthy environment was part of
the Article 21 fundamental right to life. The court accepted that it would be impossible for people to
live a healthy and long life without a pollution free flora and fauna because individuals are
dependent on water resources for important aspects of life like farming, drinking . As a result the
Court ordered mining activities to be stopped within the local area. The problem with the Green
Tribunal as of present is that its scope is limited to the provisions of its Act which created the Green
Tribunal i.e. the National Green Tribunal Act. Whereas the High Court and Supreme Courts have a
large scope of standi due to PILs, Section 14 of the NGT Act holds that the Green Tribunal can only
act in relation to 7-8 environmental acts that have been outlined in schedule 1 such as the The
Biological Diversity Act 2002 or the Public Liability Insurance Act 1991.

2. In order to provide effective and expeditious disposal of cases pertaining to environmental

protection and forest conservation, the National Green Tribunal was established in the year
2010. The National Tribunal Act, 2010, vests the Tribunal with jurisdiction over all 8 civil
cases with respect to water, forest, air, environment and biological diversity, where a
substantial question relating to environment is involved.
https://www.ajne.org/sites/default/files/event/7/session-materials/h.-kohli.-session-7-
public-interest-litigation-justice-hima-kohli.pdf

One problems with regards to PILs is that courts often feel hesitant to their authority. This is because
one of the major roadblocks to the judicial activism is the concern that judicial decisions might
overreach or conflict with the decision making of different institutions or different elected wings of
government .

https://www.tandfonline.com/doi/pdf/10.1080/02688867.1989.9726733 Another advantage of

PIL’s is that anyone can file a petition even if they were unaffected. The standards required to be a
locus standi is less restricted. The Supreme Court held that as per Article 32 of the Constitution of
India, the Supreme Court can intervene in order to implement a fundamental right and there is no
need for the appellant to show that he has suffered an impact or loss. This liberalised definition of
locus standi under a PIL is particularly important in the context of environmental issues. This is
because enforcing environmental law rights must often be done before the environmental damage
starts. Environmental issues like soil degradation and air pollution are created over a period of time.
Moreover, it is often difficult for a petitioner to prove that the loss he suffered was caused by an
environmental issue. For example, a petitioner who lives near a factory emitting air pollutants and
who is diagnosed with lung cancer must prove that his illness was not materially caused due to
personal lifestyle habits.

One way in which PIL’s have been adapted and modified for Environmental law cases has been
through the “Continuing Mandamus” . The Continuing Mandamus permits to court to monitor the
the extent to which the judiciary’s Orders and decisions have been implemented. For example, the
case of T.N. Godavarman v. Union of India, the court used Continuing Mandamus to order the filling
of monthly Reports of the level of implementation as well as to form a Central Empowered
Committee. Moreover, the court ordered that an Amicus Curiae be appointed to assist the court in
seeing whether the Courts orders were implemented. In the abovementioned case of T.N.
Godavarman, the supreme court ordered for the illegal logging of forest trees to be stopped.

https://www.mse.ac.in/wp-content/uploads/2016/09/op_sankar.pdf One of the major difficulties

for Public Interest Litigation Petitioners is that there is a lack of information symmetry because while
pollution regulators do not have accurate information of the quanty of emissions of waste . The lack
of information is because the regulators do not have sufficient funds.Most State Pollution Control
Boards do not even have enough employees to monitor all the polluting units. On the other hand,
the polluters know more about the source of the pollution as well as the amount of pollution
emitted.

Another problem with Public Interest Litigations is that the judicial process takes a lot of time. A
good example of this is the case of the judicial process is Vellore Citizens Welfare Forum versus
Union of India . In that case, although the petition was filed in 1991, the decision was only declared
in 1996. The Court ordered the Union Government to create an Authority which would identify
individuals who had suffered due to the loss of ecology so that compensation would be paid to
them. Nevertheless, even though 2 decades have passed, the Authority has still not performed its
tasks.

Since 1986, all major Indian statutes and their amendments have incorporated liberalised rules
about standing and speedier procedures. The Environment (Protection) Act, 1986 is only the most
relevant example in the present context.

In R.R. Delavoi v. The Indian Overseas Bank case, 1991, the Madras High Court pointed out: ‘Being
aware of the limitations of legalism, the Supreme Court in the main and the High Courts to some
extent for the last decade and a half did their best to bring law into the service of the poor and
downtrodden under the banner of Public Interest Litigation. The range is wide enough to cover from
bonded labour to prison conditions and from early trial to environmental protection’. This is a new
remedy available to public spirited individuals or societies to go to the court under Article 32 for the
enforcement of the fundamental right to life (including clean air and water) contained in Article 21.
Second, Another problem with Public Interest Litigations is that the judicial process takes a lot of
time. A good example of this is the case of the judicial process is Vellore Citizens Welfare Forum
versus Union of India . In that case, although the petition was filed in 1991, the decision was only
declared in 1996. The Court ordered the Union Government to create an Authority which would
identify individuals who had suffered due to the loss of ecology so that compensation would be paid
to them. Nevertheless, even though 2 decades have passed, the Authority has still not performed its
tasks. time-consuming. For example, the writ petition relating to the Vellore Citizens Welfare Forum
versus Union of India and others on the tannery pollution case was filed in 1991 and the judgement
was delivered in 1996. Even after that The Court directed the central government to constitute an
Authority under Section 3(3) of the Environment Protection (Act), 1986 before September 30, 1996
to assess the loss to the ecology in the affected areas, and to identify the individuals/families who
have suffered because of the pollution to assess the compensation to be paid to the said individuals/
families. This Authority was constituted only in 1998 and the assessment has not yet been
completed. Even when the assessment is done, many litigations would arise at the time of
disbursement of the compensations to the said 34 individuals / families

https://www.mse.ac.in/wp-content/uploads/2016/09/op_sankar.pdf There is a lack of information

symmetry because while pollution regulators do not have accurate information of the quanty of
emissions of waste whilst the polluters know more about the source of the pollution as well as the
amount of pollution emitted. The lack of information is because the regulators do not have sufficient
funds.Most State Pollution Control Boards do not even have enough employees to monitor all the
polluting units.

amount of pollutantThird, the existing information base and the capacity of the regulatory agencies
for monitoring and enforcing the regulations are weak. Poor enforcement of the laws/rules occurs
due to the following reasons. First, the pollution control authorities do not have reliable information
regarding the quantities of effluents/emissions/solid wastes and their characteristics. There is
information asymmetry: the polluters know more about the sources, magnitudes and concentrations
of pollutants as well as the costs of controlling pollution than the regulators. It is very difficult and
perhaps there is no motivation on the part of the regulated agencies to acquire and process the
information from thousands of units dispersed in their regions. Second, the regulators face budget
constraints. Most SPCBs do not have adequate technical facilities and skilled manpower for
monitoring the polluting units and filing charges against the units violating the standard

https://www.mse.ac.in/wp-content/uploads/2016/09/op_sankar.pdf It is obvious that the Court has

taken quasi-legislative and quasi-administrative functions. While the judgements have been helpful
in pressurising the non-complying polluting units to comply with the legislations, in reminding the
responsibilities of the enforcing agencies and also in awakening public awareness of the
environmental problems, they have generated some issues for public discussion. Third, the existing
information base and the capacity of the regulatory agencies for monitoring and enforcing the
regulations are weak. Poor enforcement of the laws/rules occurs due to the following reasons. First,
the pollution control authorities do not have reliable information regarding the quantities of
effluents/emissions/solid wastes and their characteristics. There is information asymmetry: the
polluters know more about the sources, magnitudes and concentrations of pollutants as well as the
costs of controlling pollution than the regulators. It is very difficult and perhaps there is no
motivation on the part of the regulated agencies to acquire and process the information from
thousands of units dispersed in their regions. Second, the regulators face budget constraints. Most
SPCBs do not have adequate technical facilities and skilled manpower for monitoring the polluting
units and filing charges against the units violating the standard

https://vidhilegalpolicy.in/wp-content/uploads/2021/04/Courting-the-Environment-Full-Report.pdf
entre-state conflict is a significant factor when it comes to implementation. Environmental issues
such as pollution sometimes tend to be from multiple sources, thereby requiring coordination
between administrative agencies from several states. When all implementing agencies, whether
they are from the centre or the states, are considered equal in the spirit of federalism, there is
inevitable finger-pointing and courts are left with the task of forcing one or the other party to
comply. This has been seen in the cases of the Delhi Vehicular Pollution case as well as the Ganga
pollution case, the effects of which are spread across several states.4

https://vidhilegalpolicy.in/wp-content/uploads/2021/04/Courting-the-Environment-Full-Report.pdf
One way in which PIL’s have been adapted and modified for Environmental law cases has been
through the “Continuing Mandamus” . The Continuing Mandamus permits to court to monitor the
the extent to which the judiciary’s Orders and decisions have been implemented. For example, the
case of T.N. Godavarman v. Union of India, the court used Continuing Mandamus to order the filling
of monthly Reports of the level of implementation as well as to form a Central Empowered
Committee. Moreover, the court ordered that an Amicus Curiae be appointed to assist the court in
seeing whether the Courts orders were implemented. In the abovementioned case of T.N.
Godavarman, the supreme court ordered for the illegal logging of forest trees to be stopped.

Xx the court will not simply stop at adjudicating the petition at hand. Under a PIL, courts are able to
go much beyond the petition at hand into creating an entire new jurisprudence of environmental
conservation. to create a completely new legal jurisprudence on diffwhat started off as a writ
petition for protecting the forest land of the Nilgiris from illegal logging, led to an entire
jurisprudence on forest conservation. The case has been kept pending since 1995 with the court
having passed several landmark rulings on issues such as the definition of ‘forest’, forest land
conversion, illegal felling, mining operations in forest land, compensatory afforestation, among a
few.16 As the scope of the case expanded, other strategies deployed by the court in this case
included the appointment of Amicus Curiae, expert committees at the central and state level, filing
of bi-monthly Action Taken Reports, and most importantly, the formation of Central Empowered
Committee in 2002 for monitoring the implementation of its own orders.17 18 Other examples of
continuing mandamus include the M.C. Mehta v. Union of India19 (Delhi Vehicle Pollution case),
Bichri case20 , Research Foundation for Science, Technology and Natural Resource Policy v. Union of
India21 on hazardous waste disposal, and Almitra H. Patel v. Union of India22 on waste
management, to name a few. Both in the continuing mandamus cases and regular environmental
cases, the courts have resorted to tools such as spot visits by judges and inspections by State PCBs,
independent expert committees or institutions like National Environmental Engineering Research
Institute, court-appointed Commissioners and even amicus curiae.23 Apart from the higher judiciary,
the subordinate judiciary can also exercise both civil and criminal jurisdiction in cases involving the
environment using provisions under Code of Civil Procedure, 1908 (“CPC”), Code of Criminal
Procedure, 1974 (“CrPC”) and Indian Penal Code, 1860 (“IPC”).24 A civil suit can be instituted by the
Advocate General, or two or more members of the public with the leave of the court, for a
declaration or injunction or any other relief against environmental violations.25 Section 133 of the
CrPC empowers the district magistrate or sub-divisional magistrate to impose criminal liability on
wrongdoers if they do not remove the nuisance causing pollution. While passing such orders, the
magistrate may resort to taking evidence by directing local investigation or examining experts.26 The
judgement in Municipal Council, Ratlam v. Vardhichand was landmark in this regard wherein the SC
upheld the magistrate’s order directing the municipal authorities to provide drainage and sanitation
facilities. 27 Non-implementation of orders passed by civil and criminal courts can only be addressed
as per provisions of the CPC and CrPC and the concerned judges do not have any discretionary
powers to ensure implementation. Thus, for instance, in a matter, if an order is passed in a

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/
8776773582C54FE6715472733A8516D4/S2071832221000857a.pdf/climate-change-litigation-indian-
perspective.pdf hooks for climate litigation, there is no comprehensive legislation on climate change
in India.36 It does have a National Action Plan on Climate Change (NAPCC) adopted on June 30, 2008
in addition to India’s Intended Nationally Determined Commitments (INDC) submitted to the UN
Framework Convention on Climate Change (UNFCCC) in October 2, 2015. The NAPCC has an
essentially domestic focus. The INDC is a statement of intent on Climate Change action announced in
the run up to the Paris Climate Change summit held in December the same year.37 However, due to
the non-enforceability of the two, the citizenry substantively does not have a specific legal provision
to resort to for agitation for their rights against climate change. In Gaurav Kumar Bansal v. Union of
India & Others, 38 the applicant prayed for steps to be undertaken to implement the National Action
Plan on Climate Change, and that State governments should finalize and implement the State Action
Plans and be restrained from violating them. This being the case, the judiciary is constrained to
innovate dicta that falls within the legal provisions of environmental law, to deal with the challenges
that causation and consequences of climate change pose. In its final order, the green tribunal did not
directly rule on its jurisdiction over the implementation of the NAPCC but held that in future, specific
cases regarding violation of the NAPCC, its impact, or consequences could be filed before it, further
adding to the confusion. Additionally, the tribunal directed states that had yet to draft their state
action plans in accordance with the NAPCC to prepare them and get them approved expeditiously by
the Ministry of Environment, Forest and Climate Chang

https://www.tandfonline.com/doi/pdf/10.1080/02688867.1989.9726733

Another advantage of PIL’s is that anyone can file a petition even if they were unaffected. The
standards required to be a locus standi is less restricted. The Supreme Court held that as per Article
32 of the Constitution of India, the Supreme Court can intervene in order to implement a
fundamental right and there is no need for the appellant to show that he has suffered an impact or
loss. This liberalised definition of locus standi under a PIL is particularly important in the context of
environmental issues. This is because enforcing environmental law rights must often be done
before the environmental damage starts. Environmental issues like soil degradation and air pollution
are created over a period of time. Moreover, it is often difficult for a petitioner to prove that the loss
he suffered was caused by an environmental issue. For example, a petitioner who lives near a factory
emitting air pollutants and who is diagnosed with lung cancer must prove that his illness was not
materially caused due to personal lifestyle habits.

In the past, courts never used to entertain cases where appellants had no locus standi. While dealing
with broader issues, the Supreme Court agreed to entertain public interest litigation even if the
appellant is not directly involved. A bench of the Supreme Court held that as per Article 32 of the
Constitution of India, the Supreme Court can intervene to enforce a fundamental right, if violated,
and also that public interest litigation is part of the process of participation in justice. (All India
Reporter, 1981).

This makes it necessary for management to be very careful not to degrade the environment, and
public cooperation and confidence is important as it can approach the court directly and easily when
the environment is being affected. Public interest litigation has been made possible because of an
amendment to the Constitution of India in 1976 (Goswami, 1988). Originally only Article 39 - A
existed: Article 48 - A and Article 51 - A (g) relating to environment were added, by an amendment in
1976 Article 51 - A(g) It is the fundamental duty of every citizen of India to protect and improve the
natural environment, including the forests, lakes, rivers and wildlife and to have compassion for
living creatures. In recent years the Supreme Court has taken up three types of public interest
litigation (Shastri, 1988) case: 0 cases filed by voluntary organisations; 0 cases filed by public-minded
individuals; and 0 cases intiated by judges on their own. In one of the judgments it was reported that
there is no limitation to clause (1) of Article 32 of the Constitution of India, that the hndamental right
which is sought tobe cnforced by moving the Supreme Court should be one bclonging to the person
who moves the Court, nor does it say that the Supreme Court should bc moved only by a particular
kind of proceeding (Shastri, 1988)

For a recent example, see Kishwar, Madhu, "Public interest litigation: one step forward, two steps
back", in (MarchApril, 1994) 81 Manushi, 11-23. 84 115. Nagasaila, D. and V. Suresh, "Arbitrator, not
authority", in (August 16-29, 1993) Business India, at 132. 116. C.K. Raj an v State of Kerala and
others, AIR 1994 Ker 179 at 198-208.

https://imrjournal.info/wp-content/uploads/2020/05/Pallavi-Goyal-and-P.-Kaur.pdf Comparative
Study
The advantage of a public interest litigation suit under Articles 32 and 226 of the Constitution is that
it allows a direct access to the Supreme Court in a fast way.

The judiciary has contributed to environmental protection in India in two ways. It has introduced
procedural innovations to provide much wider access to justice. And it has, by a positive and
expansive interpretation of the 'right to life' enshrined in Article 21 of the Constitution, included
within its ambit a 'right to a healthy environment'. The right to environment was given judicial
recognition in the Dehradun Lime Quarries Case, 5 where the Supreme Court prohibited the
continuance of mining operations terming it to be adversely affecting the environment, and
reaffirmed in the Sriram Gas Leak Case.6 The ability to invoke the original jurisdiction of the Supreme
Court and the High Courts under Articles 32 and 226 of the Constitution is a remarkable step in
providing protection to the environment. The writ procedure is preferred over the conventional suit
because it is speedy, relatively inexpensive and offers direct access to the highest courts of the land.
Hon’ble Supreme Court while taking cognizance on the petitions has further relaxed the requirement
of a formal writ to seek redressal before the Court. Any citizen can invoke the jurisdiction of the
Court, especially in human rights and environmental matters even by writing a simple postcard. The
basic ideology behind adopting PIL is that access to justice ought not to be denied to the needy for
the lack of knowledge or finances. It has been used as a tool for great social change in India and
other countries on such diverse issues as the environment, health and land issues. PIL is not in the
nature 2 JAMES A. CRONE, HOW CAN WE SOLVE OUR SOCIAL PROBLEMS? 216 (David Repetto ed.,
Pine Forge Press 2011) (2010). 3 Id. at 215. 4 Id. at 217. (The reason being, the United States of
America produces 20% of all the carbon dioxide and is the wealthiest and most powerful nation in
the world, when it backs out of an agreement, the original agreement can be hurt considerably.
Proceeding without the USA has been very difficult, not only because it produces around one-
quarter of global carbon dioxide emissions, but also because its failure to be involved affects the
willingness of others to participate, and particularly the fast-developing economies of the South.)
5Rural Litigation and Entitlements Kendra Dehradun and Ors v. State of Uttar Pradesh, A.I.R. 1985 SC
552. 6M.C. Mehta vs. Union of India, 1987 SCR (1) 819. Vol 111, Legal Studies (July 2019): Pages 43-
46 Enforcement of the Right to Environment Protection through Public Interest Litigation - Pallavi
Goyal and Parminder Kaur Sahota 45 of adversary litigation but a challenge and an opportunity to
the government and its officers to make basic human rights meaningful to the deprived and
vulnerable sections of the community and to assure them social and economic justice.

United States of America can be said to be the originator of the concept of Public Interest Litigation.
In 1876, the first legal aid office was established in New York City in connection with the famous
Gideon's case7 of USA. The case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua8 is of
major significance because it is the first time that the Inter-American Court issued a judgment in
favour of the rights of indigenous people to their ancestral land. It is a key precedent for defending
indigenous rights in Latin America. Further the European Court ruled that "severe environmental
pollution may affect individuals' well-being and prevent them from enjoying their homes in such a
way as to affect their private and family life adversely". 9 The case reveals a successful strategy to
claim economic, social and cultural rights through civil and political rights where the regional human
rights system does not provide an effective protection of economic, social and cultural rights. "The
minors’ assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the generations to come".
10 In the Pascua Lama Case, a project under construction involving investments for more than 5
billion dollars was stopped until certain conditions related to preventing water pollution and other
human rights violations are met. It is also significant that the Court of Appeals based its decision on
the failure to comply with the Environmental Assessment Resolution and the "threat" posed by such
failure to comply on the environment and the health of the population, without seeing the need for
verifying the actual existence of pollution. The Court adopted a broader view of the environment
and acknowledged the fact that the impact goes beyond a specific community and covers future
generations, stating the need to ensure sustainable development.