The Judiciary and Environmental Security
25 May, 2002 · 774
Col Gautam highlights the active role that the judiciary has placed in protecting the environment
The Indian Constitution
India
, perhaps the environment and ecology are good examples of an active judiciary involved deeply in restoring and saving our natural capital.
Gujarat
now have a "green" bench. It has also been observed by judges of many High Courts that environmental degradation violates the fundamental right to life. In many instances the courts has behaved like administrators and have come down heavily on the polluters. Some examples of judicial intervention to save the environment from degradation are:-
Narmada
Dam. In the historic judgement by the SC (one judge out of a bench of three opposed the judgement) the environmental debate over issue of large dams also provided an important world view of the judiciary on infrastructural projects . The judgment mentioned:
India
. The judiciary can not take on the work of the executive. The decline in environment is basically due to slack performance of enforcing agencies. On the ground, due to lax enforcement and different shades of interpretation and vested interests, the poor people suffer the most. This can only be set right by a vibrant executive under transparent public scrutiny.
The three pillars of Indian democratic Constitution are the Legislature, Executive and the Judiciary. In the history of independent
The Forty Second Amendment Act of 1976 incorporated environmental protection and improvement. Article 48A was added to the Directive Principles of the State Policy thus: "The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country." Similarly Article 51(g) of the "Fundamental Duties" expects the citizens "to protect and improve the natural environment including forests, lakes, rivers and wild life." The Environment (Protection) Act (EPA) of 1986 was enacted in 1986.
Contribution of Judiciary to Environmental Security: Some Examples
As a result of the directive of the Supreme Court (SC), the High Courts at Mumbai, Kolkatta, Chennai and
(a) The Dehradun Quarrying case. This is the landmark case which saved the Dehradun valley and Mussoorie hills from environmental degradation due to illegal lime quarrying. Ecological task forces of the Territorial Army have since restored the situation. It was judicial activism that caught the attention of the government and the people.
(b) The Shrimp Culture case. This is an important Supreme Court judgment on coastal ecology. Commercial shrimp farms along the coast under the new economic policy of early 1990s were causing serious environmental degradation. Aquaculture had great national level potential to export quality fish to the developed world and thus earn foreign exchange. But this came at a cost. The aquaculture marginalised the traditional shrimp farming communities and also degraded the land converted for the farming. Excess nutrients caused eutrophication, toxicity, salinisation and depletion of ground water. When environmentalists sought judicial intervention, all coastal aquaculture activities, except traditional activities, were banned upto 500m from the high tide line (HTL) by the SC.
(c) Sardar Sarovar and the
“… surface water resources (out of 1869 cu km) can be utilised by storage. At present the storage capacity of all dams in India is 174 cu km, which is incidentally less than the capacity of Kariba Dam in Zambia/ Zimbabwe (180.6 cu km) and only 12 cu km more than Aswan High Dam of Egypt.
“It will not be wrong to say that the biggest dams to the smallest percolating tanks meant to tap the rainwater are nothing but water harvesting structures to function by receiving water from the common rainfall.
“Dams serve a number of purposes. They store water, generate electricity and release water throughout the year and at times of scarcity. Their storage capacity is meant to control floods and the canal system which emanates therefrom is meant to convey and provide water for drinking, agriculture and industry. In addition thereto, it can also be a source of generating hydro-power. The Dam has, therefore, necessarily to be regarded as an infrastructure project.”
(d) Ban on Felling of Trees in the North East (1996). The national forest cover is now less than 17 per cent (forest policy of 1988 has a target of 33 per cent in plains and 66 per cent in hills). Concerned over this decline the SC banned the felling of trees in the Northeast where the forest cover was decreasing.
Analysis
There is no dearth of environmental laws and policies in
Another consideration is the poor and local community’s livelihood. The ban on felling of trees is reported to have caused great hardship to forest dwellers and people in the Northeast region who earn their livelihood with forest products. Similarly, project-displaced people are not urbanites but mostly tribals and landless labourers who may find relocation and rehabilitation not in tune with their cultural and traditional identity and way of life.
It is now the responsibility of future planners and decision makers to follow in the direction indicated by our vibrant judiciary in the context of environmental security.
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