executive in coping with the pressures on the environment brought about by change

The shortcomings of the executive in coping with the pressures on the environment brought about by change in the country’s economic policies had thrust the responsibility of environmental protection upon the judiciary. This has meant that in India, the Judiciary in some instances had had to not only exercise its role as an interpreter of the aw but has also had to take upon itself the role of constant monitoring and implementation necessitated through a series of public interest litigations that have been initiated in various courts. However, in the defence of the executive, it must be said that India has actively participated in several multilateral treaties and has been active in admitting its commitments to the environment in accordance with the general principles of International Law while incorporating them into its national laws. Much of the difficulty of the executive in implementing these laws can perhaps be attributed to resource constraints as well.

In its efforts to protect the environment, the Supreme Court and the Indian Judiciary in general have relied on the public trust doctrine, precautionary principle, polluter pays principle the doctrine of strict and absolute liability, the exemplary damages principle, the pollution fine principle and inter-generational equity principle apart from the existing law of the land. Another guiding principle has been that of adopting a model of sustainable development. The consistent position adopted by the courts as enunciated in one of its judgments has been that there can neither be development at the cost of the environment or environment at the cost of development.

Thus, the Supreme Court recognizes the need for development and proper utilization of our natural resources for the betterment of our society. However, this cannot be done at the expense of the environment itself.

The courts in India have, thus, played a dynamic role in preserving the environment and eco-system. In a series of cases, the superior courts of India issued various directions and orders to prevent the environmental degradation. To understand the role of the courts in this regard, the structure of the judicial system and also the constitutional and statutory provisions are to be taken note of.

It is true that there were various laws even in the nineteenth century to prevent vandalism of human beings. The Indian Penal Code which came into existence in 1860 imposes fine on a person who voluntarily fouls the water of any public spring or reservoir. The Code penalizes acts with poisonous substances that endanger life or cause injury and proscribes public nuisance.  The Indian Easements Act 1882 protected the riparian owners against unreasonable pollution by upstream uses. The Indian Fisheries Act passed in 1897 penalises the killing of fish by poisoning water and by using explosives.

Thereafter series of enactments were passed to protect the purity of air and water and degradation of forests. But the provision contained in these enactments were not seriously being implemented by the authorities.

In December, 1984, India witnessed one of the greatest man-made calamities in Bhopal, the capital city of the State of Madhya Pradesh, from a factory owned by Union Carbide India Limited. Methyl Isocyanate, a highly poisonous gas leaked out and it resulted in the death of more than two thousand persons who were mostly the hutment-dwellers in the near vicinity of the factory. The air carried the leaked deadly poisonous gas to the thickly populated areas and about two lakhs people suffered various bodily injuries. The Union Carbide India Limited is a company incorporated in India by Americans. The Bhopal Gas Tragedy was an eye opener and the protection of environment was taken as a serious matter. The Indian Parliament passed the Environment Protection Act, 1986. The Environment Protection Act empowers the Central Government to take measures to protect and improve the environment. Rules were also framed for implementation of the provisions of the Act. The various provisions of this Act give power to the Central Government to take measures to protect and improve the environment and they include:

• Power to take all measures necessary for purpose of protecting and improving the quality of environment and preventing, controlling and abating environmental pollution,
• Coordination of actions of state governments, officers and other authorities under any law,
• Planning and executing of nationwide program for prevention, control and abatement of environmental pollution,
• Laying down standards for quality of environment in its various aspects,
• Laying down emission standards from various sources,
• Restriction of areas in which any industry, operations etc. will not be carried out,
• Inspections of plants etc.,
• Constitution of authorities,
• Issue of directions,
• Lay down rules to regulate environmental pollution,
• Emissions to meet standards,
• Power of entry and inspection Power to take samples.