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Unformatted text preview: ENVIRONMENT AL GOVERNANCE AND ROLE OF JUDICIARY IN INDIA CONTEKTS Contents Page No. Ueclaration I Certificate II Acknowledgement Ill-IV List of Chapter Contents V-VII List of Tables VIII CHAPTER I: INTRODUCTION 1-23 l. I Background of the Study 1 l.2 Debate on the Role of Judiciary in Environmental Governance 7 1.2.1 Literature on Ideological Content of Judicial Decisions 8 1.2.2 Literahire on Judicial Decision-;\-1aking Process 10 1.2.?, Literature on Impact of Judicial Intervention 14 1.3 Research Questions 18 1.4 J\-tethodology ·1s 15 I .imitalions o{ the Study 22 1. 6 Outline of the Dissertation 23 CHAPTER II: HOW GREEN IS THE 11\"UIAN JCDICIARY? 24-82 2.·1. Understanding the Concepl ol Green in India: C(mcephial Pramework 2-1 2.2 Different Shades of Crccn 30 2.2.1 Environmentalism. of Poor in India 30 2.2.2 Middh: C.Liss Indian Fnvironnwntalism Tl 2.) Iv1ethodolo3y 32 2.4 Summarv ot Environmental cases 33 2.4.l Environmental cases of the Industry versus Environment' type ::n 2.4.2 Environmental cases of the 'State versus Environment' type 50 2.4.2.1 Environmental Cases against State Agencies for 50 1 Implementation failure V 2.4.3 Environmental cases of the 'Community versus Environment' type 70 2.5 Different Dimensions of Judicial Approach toward Environmental Cases 75 2.5.1 Pro-Green Approach 75 2.5.2 Pro-Development Approach 76 2.:d Integration of Environment, Development and Human Rights 79 2.bSummary 80 CHAPTER III: JUDICIAL DECISIOK-MAKING PROCESS ON ENVIRONMENTAL ISSUES 1.1 Understanding Judicial Decision-Making Process: Conceptual 83-135 83 Framework 1.2 Methodology 91 1.3 The Process of Judicial Decision-Making in Environmental Cases 95 between 1980-2000 :1.1.1 Legal Factors 95 :1.1.2 Extralegal Factors 102 3.3.2.1 Ideological Values and Preferences of Supreme Court Judges 102 3.3.2.2 Impact of Previliling Soci~Economic and Political Environment 114 13.2.3 Resouro.'s of Litigants 1:29 3.4 Summary 134 CHAITJ'ER IV: IMl'ACT OF JUDICIAL INTERVENTION ON ENVIRONMENTAL GOVERKAKCE: CONTRlBL:T10NS AND COMPLICATIONS 4.1 Innovative Judgments in Environmental Litigations and its Implications 136-172 4.1.1 Right to Environment 137 4.1.2 Pro<;edur,,1 Ch,mgcs 142 4.1.1 Remedial Flexibility 147 ·1.1.4 Spot Visit 149 41.5 Evolution of Environmental Principles and Doctrines 150 4. 1.6 Independent Expert Committee 154 4.2 Judicial Intervention in the affairs of other organs "nd its Implications 161 4",'s _ umlllary ITI . VI 137 CHAPTER V: CONCLUSION 173-185 5.1 Summary and Findings 174 5.2 Policy Implications 181 5.:>' further Research 184 Appendices 186-200 Appendix-l 186 Appendix-II 191 Appendix-III 193 Appendix-IV 199 Appendix-V 200 Bibliography 201 VII List of Tables Title Page No. Tahle 2.1 Environmental Cases on 'Industry versus Environment' type 48-49 Table 2.2 Environmental Cases on 'State versus Environment 'type 68-69 Tahle 2.3 Environmental Cases on 'Community versus Environment' type 74-74 Table 3.1 Interview with Selected Respondents 94-95 lable 3.2 Dimensions and Preferences of Judges in Judicial Decisions on Environmental Cases 127-128 Table 3.3 Overall Picture of Environmental Cases in the Supreme Court VIII 133-133 CHAPTER I INTRODL'CTION 1. 1 Background of the Study The ecological degradation and economic deprivation generated by the resource intensive conventional model of development have resulted in environmental C\)Jlflicts across the \'\lorld. The various environmental problems such as depletion of ozone layer, acid rain, green house effect, soil erosion, deforestation, water pollution, air pollution, and noise pollution have had devastating impacts on human well being and are also culminating into a spectre of irreversible longterm d.amage to ecosystems. Like any other social, economic and political problems, these environmental problems have caught the attention of policyIIl,lkers, intellectuals, social movement activists and research scholars. To deal with these environmental problems, efforts have been made since 19705 both at tIll' inteTl1ational and national levels. At the international leveL the Unitcd '\atinns h )ok the first initiative for the preservation of the environment. Ijk('wis(', the U.N. Confercllc\' on the Human Environment at Stockholm in June 1')72 t"volvt'd Cl'rtain principlt"<; and action plan for controlling and regulating l'lwimnmental degrad.Hion. further, the U.'\ General Assembly passed a rcsolution cmphasizing the 11('pd for activt" co-operation among the States in the field of human environment on December 15,1')72 (Kaur, lYY2). In ~ubseljU('nt years, there have been many conferences ;md ay,reemenb not only at the intl'rnatinnal level but also at the state \cvel, directed towards the protection 01 the environment and halting environmental degradation. To achieve this objective, a number of acturs arC' involved such as, international and national institutions, civil s()cieties, environmental groups, firms and local p('ople III the decision-making process relating to environment protection. C()ncomitantly, a large number of states have not only enacted various laws for environmental protection but have also provided space fOT the participation of other actors in the environmental decision making process. The involvement of \'arious actors other than the state as the sole representative of environmental polic,,-maker has led to the development of the concept of environmental governance'. This concept involves interactions among formal (Legislature, Executive and JudiciiH\,) and informal institutions and actors within society that influence how environmental problems are identified, framed and dealt with. El1\'ironmental governance, in other words, addresses how decisions concerning the environment are made and who participates in the decision-making process. More specifically, environmental governance can be referred to the set of regula ton' processes, institutional mechanisms and organizations through which different actors influence environmental actions and outcomes. This includes the role of formal institutions and laws to make, enforce and resolve disputes re\(llving around elwironmental problems; role played by the people who claim and conte"t the rules over the use and management of resources and represent in the decision-making process on natural resource management; the way market influences authority over the use and control of natural resources; and finally the part played by ecological and social sciences in the decision-making process on natural resources' use to reduce risks to people and eco-systems (Kurukulasuriya, 20m; Lemos and Agarwal, 2(06). Tht:' lOIlCt.-"pl 'gl'VE:'rtMnn" (rlllle to prominPllct' (lInong de-vr!opment priorities following Its USE" in a "Long Tprm Pprspeftive Study" of development in Suh·Saharan Afnca publrshed by the World Bank (World Bank, 1989,. Tlw concept of goverl1rlncp hcls hf>t'n used in various contexts Its Illeaning today: (ove"rs the objedives. of 1n,II1agenwnt as well as the method, the tdsk of choosing \-",hat to do i'S wen as how to do it. A common lllHierstdnding of the term has, ho\vt-'ver, enabled not only government but also v.uious other actors to form nurms and/or rules for solving probtems 011 their own. GoverniUlC€: in other \\'Or05, is a more {~I1(nIl1IMssing ph{,l1omC'non than gm/C'rnmpI1L It not only embraces governmental institutions (legislature, t"-:...rnJtivp and judiciary), but also subsumE"s informaC non-governmental mechanisms ".. hereby those pt'r~ol1s dnd organizations \,vithin its purvLt'\V lllt'lnage thelf common affans. GovC'"rnance is thus a system of rule that is d5 drpendent 011 inter-subjective meanmgs as on formaIly sanctioned constitutions and charters Scholars and clifferent organizations hc\Ve abo identified rule of la\-v. freE'" press, accountabLlity. transparency. effectiveness, responsibility:, devolution of power r participation, less regulations., etc. as key elements of governance (1:vIF, 1997; \'Iule, 2001; f\eumayer, 2002). [n this ((}nll'xt, \'eMS 111 .l ke\' actor invoked 111 l'n\·ironn1l'nt.l[ g(l\'l'I'Il.lIKc' in the ren'nt man\' parts of the w(l[[d IS the Illdici,u\' TIll' TlllL' pf JUl!Jn,lI'\' 111 rl'sl,h-ing dl'>Pllks on el1\'ironnll'ntal issues, e<;pl'C1,llh' in Inelhl ha ... bl'((lllll' illl !,(lrtant ,1S then' are competing cl,lims and ((lunll'r-d,lims (}\'l'r tht' u ...,' .]nel m.Jlhlgl'l11l'llt (If n<ltura[ rl'source .... c\1l\ alteration in tIll' IIlstitlltJ( l ll,l[ Illl,,'h.1ni ... m<, gO\'L'rn ing this use n()t onl\' impacts d i fferell tia Ih' u plln d i ffl,Tt'nt str at,l, bu t .11<;() gin's risl' to conflicts. This needs to bc resol\'cd through different "ll,'i,1I ,mel insti tu tion,] [ mechanisms lOf which j ud icia rv is ani m pl)rtan t ,md fi n.ll .nbl t r,l t(lr t() !l's(}I\'L' tIll' contlicts in India, Apart from resolving the contlicting c1,lIl11S, tIll' J'(l\c> of Judici.u\' has also been well recognized by the constitution not onl\ ttl ,'n"UrL' that tIll' enactment of laws bv the legislature is in conformity with the constitutiondl provisions but also to confirm that these laws ,He implemenll'd [,\' the administrative agencies. which are aimed at the protection and impn)\'l'nll'nt of the environml'nt, Constitutionall\, and through its own inter\'('ntion. JUlhci.u\, h,1S becoml' ,1n illlpllftant actor in en\'ironml'lltal jurisprudence l)f Indi,l. ThIS raises the qUl'stioll as to wI1\' thl'n~ is .1 need for Judicial intl'rn'ntinll Itl resolving disputes rl'\'ol\'ing around environmental problems, [n \'iew of tIlt' Stockholm Conference on Human Em'ironment and growing awareness of tIll' l'Il\'lrOnml'nt,ll crises in the countn', India made amendment to its Constitution and addl'll direct provisions for protection of environment (Bansal and Gupta. 1Slt)2; Bai\\ a and Bains, [9S12). TIll' Constitution (Forty-Second Amendment) Act. IlI71> has made it a fundanll'lltal dun' to protect and imprO\'l' the natural ell\'ironment. Article -18-:-\ states that: "TIle state shallendl'a\'(lur to protect ,llld improve the em'ironment and to safeguard forests and wildlife of the country", COITl'sp(lnd ing to the obligation imposed on the State, Article 51 A (g). which "C(tlfS in P,lrt [V (..l.,) ()f the Constitution dealing with Fund,lllll'nt,11 Dutil'S, casts a dut\' ,)Jll'\'ery citizen of India, Article 51-:'\ (g) provides that it shall be tIll' dun' pf L'\','n' citi7.en of [ndi,l t(1 prlltect and impf()\'l' the natural l'lwin)nnll'nt dJ!l'dll1~ thl' L,t,lll' Ill! till' protl'ction and illll'rlll'l'llll'nt "I l'nl J!pnnll'nt "'p,'ds citi/l'll" til hl'lp JJ1 ,lJhl the pre ... ervatioll "I [1.1tllf,lll'llli!onnll'nt prptl'ctiOIl ,md irnp!PI'l'nll'nt of l'IlI'i!onnll'nt (l'rl·I'\.'llti(l1l ,1I1d COlltrol Ilf Pollutioll) Act of 1'17-1 !'Ill' en,Ktnwnt pi the \\',llef ha~ ~il'l'n till' .. I.llllie hllPk It~ lir .. t n',ll "'lInd,ltion I(lr l'nl'iwnnll.'lltal protection, Other maJor \,·n.Klnll'nh Ih,lt h,l\\.' IplI(llq'd .HI.': The ForL'~t ConS\.·[Tation :'I.ct (IYKI). JIll' ..\ir Prl'l'l'ntion and CIlntrol of Pollution .-\ct (I YKh). Thl' Em']wnmentdl I'n'kctioll :\1.'( (I YKh). Thl' Ndtiolldl I'm'ironment Tribunal Act (1'193). TIll.' \;atiollal Fnl'!runnll'nt :\ppl'llatl' Act (1997) and Biodin'rsit\' Proll'ction Act (2()()2). In this WdY. lllllid ha ... l'nacted r,lng" of n'guldton' in .. h·Ulllents t{l prL'serve and proll'ct it'< natural .l R· ... Oufn· .. ['rior to I CJ70s. polluti,'n and cl1\'ironlllental degradation hold bel'n addn· .....ed Il')'\' gl'tll'r.llh· in tl'rms of lluisancL'. llegligL'nce. liability. dnd a few principll" III tort 1.1\\' (Curtnalh'. 2ll(2), At presL'nt. therL' are stated IL' be Ol'l'r two hundfed C,'ntr,ll ,md Stoll\.' st,ltutes.~ which hal'l' at least somc conn'rn with elll'iwnmL'nt,ll protl'ction. l'itlwr direct'" or indirecth' (Dil'an and Rosencr,m/. 20tH. p.:\) 01 \Iam tl1l'se Acts ,lnd Constituti'lJlal provisions attl'mpt 10 prol'ide dfectin' solutions thrnugh diffl'rL'llt instihltional mL'chanisms to deal with l'nliwnnll'nt.ll pwhll'm .. Illl' SPdtl" ot h.'glslo:lllllnS mdude- \\'''tt''r (Pr(,\"Pllhon dnd Cnntrnl ot PullutlOn) ..\...-t. )q.74 (tilt' \\dtl'r '\\ tl·\11 (Pll'\"\'ntlon dnd Control 01 rollulLon) At_ t. ]1:)81 Ulw Air ..\rl}, En\ Ifonm ..'nl (Proh·dlon) :\('1. 1980 {EPA}. tlw \1i1llut.,cluft', Stordgc- dnd Imporl 01 HdZdHlous. Cht'mlfdl Rulps t9S9. Hd7drliou5 waslf' (Mandgf'mt'nl ,md II;mdlingl Rules )q.Sq. the f\.ldltuldcturt', Lst', Import. Export dnd S-tordgf> ot hdLdrdou5 ~h(r(\­ org<HHsms/ Grllt"ticdlly Eng(Ilf't"rf"d Orgamsms or C('lIs Rules 1989, thr Cht"-llllCdl :\rolients (Emt"rgf'nc~ PldlHlIIlf,.. Pn..~p,updnt"ss, clnd Response) Rule 1990. BlOmetiu,_ al \\'dstf" (\Ialldy.t"mr-nt dmi Hdndling) RulM. 1')<)1\, Ih(' ~lu"',il"l Solid wdslt's (Mdllagell1(>nl & Hdndhng) Rules ~OOO, Rffnled Plas", ~Idnufaclur. and L".lgt.· Rules )999, Ozone Ot.·plf'tlng Substdllt.'es (Reguldtwn dl1d Contft1lJ Rules 2O(k). ttv ~OI.St" Po[lutlon (Rt'f~III.I,on .lId Conlrol) Rule,:'OOO, Bdtte"e, (R1dnag.'nwnt dlld Handhngl Rules ~OOl, Ih.. Public l",bll,t\ In.surdll(t'' ,".d 1991. I\:aholldl Elwironmenlal Triilundl Act lQQ5. (he ~dtlonal EnVironment Al'l'eUIIt"" . \ulho"t" A.'I 1997. B'od"· ... s'I" ProlecllOn Acl 2002, l\:alional E,w,wnmt'ntal Polin' 200b ... Ic T1w d .. I6,1 proYlsions of "II ~h("5t"" (>n\,lrOnmf'nldll~ws tlnd polKIf's arE" d\'dlld~lt' dt \.... " \\".t"n\"tor.llicm and prevent the degradation of environment. And their interpretatioll is a major task of Indian judiciary Howc\'('\", the plethora of such enactments and Constitutional provisions has not resulted in pre\'enting environmental degradation in the country. The last two del'ddes h,ln~ bcen a period of rapid degradation in the Indian environment. The endctment of a number of liH\,s both by the Cenb'al and State governments rel'lting to cm'ironment has not made much head wa\' in conb'olling the depletion process and the laws, by and large, remained unenforced, mi<;<lllministcred or mismanaged. Further, despite existence of a national environmental policy, the constitutional mandate of environmental protection, the flurry of legislations and administrative infrastruchlre of implementation and the problem of environmental degradation still remain a great cause of concern 1Il India and havc intensified over the years. Most Indian rivers and freshwater sb'cams arc polluted by industrial wastes or effluents. There has also been a rapid increase in casualties due to respiratory disorders caused by widespread air pollution. A widely cited study conducted in Delhi estimates that 10, 000 people die every year due to complications from air pollution, a staggering total of one pcrson every hour.' In the Citizen's report on Indian Environment, forests han' been singled (lut as the element of environment, subjected to most dcstruction and degradation. The effects of forest destruction on soil erosion, floods, siltation of reserviours, loss of genetic diversity, etc. are also well documented (CSE, 1985). Thc reasons for this state of affairs arc varied and complex but one major factor has been ineffective implementation of the concerned laws (Baxi, 1985; Ramesh, 20(2). This has prompted environmentalists and the people, as well as non.. Ct'ntre for SLienre rind Environment Pre:;.'!;. Rdrd~(, l:flS }HI'~/200Q. /\vdilable at \\'\\'w.l'st'illdia.orp Illtmll (mp / airl prt'55 20000718.hlm 5 governmental organizations, to approach the Courts, particularly the higher Judiciarv, fm suitable remedies. Interestingly, judiciary has also responded in a pw-actin' manner to deal with these ditferent nature of environmental problems (Divan and l{osencranz, 2001; Ranll'<;h, 2002). \tVhile conventionally the executive and the legislature play the major role in governance, the Indian experience, pilfticularJv in the context of environmental governance, is that the judiCiary has begun to play a very important role in the environmental governance process. rhe increasing interventi(lll of judiciary to resolve environmental disputes has il'd t(l the "ccurrence of a new phenomenon - the emergence (If Courts of Law in India, as perhaps, the sole dispenser of environmental justice. International legal experts have been unequivocal in terming the Indian Courts of law as pioneer, both in terms of laving down new principles of law and also in the introduction of innovations in the em'ironmental justice delivery system (Peiris, 1991; Anderson, (998). Although it is not unusual for courts in Western democracies to play an active wle in the protection of environment, the way Indian Supreme Court has been involved since 1980s in interpreting and bringing new changes in the environmental jurisprudcllcc is uniquc in itself. Perhaps no judiciary in the world has devoted as much time, effort and innovativeness to protect the environment as the Supreme Court of India has for the last two decades. 4 Besides the assigned role of interpretation and application of law, the judiciary has also performed an educative and innovative function by creating av.rareness about env ironmcntal problems among the public through a series of illuminating directions and judgments. During a short span of time, the Indian judiciary has expanded IOClls standi, laid down new principles to protect the environment, reinterpreted environmental ~ ThE' Sllpreme Court 0: other countries such dS, LSA, Canada, Austrillicl, ~'e\v Zealand, ilnd Bran: ,1]50 be,,_ ome part of E::'lwirul1m~lltcd jurisprudence ill their respective (ountrj(,s (186 11> Law Commisswll Report c-f IlldM,2003) 6 laws, created new institutions and structures, and conferred additional powers 011 the existing ones. The protection and improvement of environment through various directions are being seen as a part of the precipitant role of the Supreme Cuurt in the f\)rm of continual creation of successive strategies by way of judicial intl'rl'l'ntipn. In view of the frequency of judicial orders/ directions passed periodicilllv by the apex court scholars like Dwivedi (1997) have lebded Supreme Court as the 'Green court', directing and monitoring the progress of the l'nyironmental project as its chief concern and preoccupation. Thus, an impression has been created that the Supreme Court of India plays a major role in environmental guvernance not onlv in comparison with legislature and l'Xl'cutin- branches of the state but also in comparision with its counterparts in the de\'eloped and developing countries. This interesting phenomenon is the pri ma rv focus of this dissertation. 1.2 Debate on the Role of Judiciary in Environmental Governance Over the last t\'\!o decades, this increasing role of Indian judiciary in environmental glwernance has been an important area of inquiry among legalpolitical ~ch()lars. There have been considerable number of studies on the role of Judiciarv in elwironmental governance in India, though compared to many other areas and the tussle between judiciary and Parliament power, this number is small. Majority of studies are recent, published after the mid-1980s. Most of them are by legal experts, environmental and human rights activists or journalists, and the opinions vary. Many welcome it for the good that it is perceived to have done; otlwrs are somewhat uneasy at this development; and some strongly feel that it is improper. To judge by recent literature, this ambivalence has increased. The following section examines some of the key assessments and interpretations of the Supreme Court's role in resolving environmental disputes in India. It begins by highlighting briefly the ideological content of judicial interpretations of different issues involving in environmental litigation. This is followed by 7 tlnraVelill~ literahlre tln the factors for different types of judicial decisions on environmental issues. Finally, an attempt is made to trace'out the literature on the major impact of judicial intervention on environmental governance. 1.2.1 Literature on Ideolo...
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  • Summer '09
  • Environmentalism, Supreme Court of the United States, Environmental protection, environmental governance

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