Order, Order

  • 14/05/1997

Order, Order P N BHAGWATI
DIRECT judicial activism is not a good idea. When it comes to environment, I do not think that the courts are equipped to deal with environmental issues. They do not have the expertise, the material on the basis of which they can judge the effects of what are alleged to be environmentally disastrous activities. Today there is no mechanism for the purpose of dealing with environment issue. The result is that any citizen, a public interest group or an environmental group which discerns an ecological imbalance created either by industry or by human interference, has no other remedy to pursue, but to go to the High Courts (HC) or the Supreme Court (sc) of India. I have been telling the government for a long time, almost 12-13 years now, that they must set up environmental tribunals, which can solely deal with environmental issues.

The first environmental matter that came before the sc: was the limestone quarrying in the hills of Debra Dun. A public interest group complained that the quarrying was affecting the environment. The limestone acts as an aquifer. On account of the quarrying, underground springs began drying up. In addition to this, the slopes were being denuded. Sahasradhara, an important natural water spring had almost become dry.

I took up this case on a letter petition. As I had no material on the issue, three geological experts were appointed in order to advise me on the geological impacts of quarrying on hillsides. We also appointed three environmental experts to study the effect of the quarrying. After the reports were made, I heard all the parties and ordered closure of 52 of the 64 quarries. But at the same time, I directed that the labour must not suffer and directed the government to employ them on a forest regeneration programme in the areas that had been denuded.

Experts" panel But I felt that I was not well equipped to deal with the case. While f had consulted experts, I believed that there should be a permanent body of experts that could advise the courts on these issues. I recommended in one of my judgments that the government must set up an environmental commission, consisting of a retired judge, representatives of industry and environment experts. This body should study the environmental impact assessments of various projects and prepare a whole brief to assist the environmental tribunal or the TICS or sc. In the us, the legal system follows what is termed the "Brandis BrieF (BB). Whenever any social or economic issue comes before the court, which of course involves constitutional issues and social rights, the court insists on the BB. Here, the entire material, both pro and con, is placed before the court so that the court does not take a decision that harms the public.

In the case of tanneries, it is clear that they cannot operate without effluent treatment plants. But I decided that they needed time to set up these treatment plants, failing which they should be closed down. Whenever eco logical disorders are created, obviously the government must step in with remedial actions. If the government does not, the courts have to step in. But as I have said, since the courts are not well equipped, there must be an environmental tribunal.

There may be a further appeal to the SC, but the first trial must take place before a tribunal. That is why there is a feeling, in some circles, that some parties have not been given a proper hearing because mass orders are made. That is not correct. Affected parties are entitled to be heard in court and if their work pollutes the environment, then they have to be closed down.

A few years ago, the minis- try of environment and forests had prepared a draft bill for setting up an environmental tribunal for the purposes of dealing with cases where any injury is caused on account of inherently dangerous or hazardous activities. But even that has not been made into a law. I really don"t know why nothing has been done.

I entirely blame the government for the sc becoming the first resort instead of being a last one. This is because the government has not set up an environmental tribunal. I am not in favour of one body or organisation being made responsible for technicalities in environmental cases. I have the highest regard for National Environment Engineering Research Institute and its head P Khanna, who is a competant and knowledgeable per- son. But there should be an independent body like an environmental commission which can gather its information from any source. This would inspire confidence in the people.

In the face of such activism shown by the courts, government agencies may tend to get careless. They may feet that the people would go to the courts. But the courts must hold the agency accountable. TI)e court must call upon the agency to make a report, and if the report indicates that pollution is being caused, the courts should ask it what steps it has taken to mitigate the pollution. I agree that these agencies need to be pulled up. But the court cannot take on the mantle to reform them in all cases. Ultimately, the object must be to strengthen these institutions, to make them transparent and accountable.

---P N Bhagwati is a former Chief Justice of India

JUDICIAL activism manifests itself through PILS, the first step towards which could be just a postcard by a citizen to a court, or a newspaper report brought to the notice of the court. The onus of deciding whether the issue thus brought to the notice of the court is worth taking up or not, lies with the court. There are two main reasons for the emergence of judicial activism:
Rampant corruption amongst politicians and legislators, as well as, to a smaller extent,machinery, in the executive including bureaucrats at all idea )) levels

Total failure of the executive and politicians machinery with regard to being fair to the underprivileged and the powerless

The emergence of judicial activism as a means of imparting justice which would have been otherwise denied, is based on the assumption that the judiciary is well-meaning, sensitive, uncorrupt, courageous, fair, and has the mechanism and the desire to obtain all the information necessary for an objective and fair decision on the case.

Spate of litigations
A major consequence of judicial activism has been a spate of PILs. There is no question that in some cases this has led to the surfacing of scams on a large scale and consequent exposure of leaders who have been taking the people for a ride. PILs have also opened the way for articulate people to obtain a certain advantage by playing on emotions and parading cliches that appeal to a certain section of our population. An example would be the case in which environmental fundamentalists have made use of the provision Of PJLS to prevent legitimate development and to deny the traditional rights of people over land or to earn their)ivelihood.

It would, thus, appear that judicial activism, while highly desirable in principle, has not always been an unmixed blessing. I feel concerned that people employed at the lower levels in the prawn industry on the eastern coast of Andhra Pradesh would be rendered jobless if these industries are closed under coastal zone regulations, or those employed in inter-state timber movement would have no work when such movement is prohibited. It is surely a matter of concern if a PIL comes in the way of development of Kutch, one of the most deprived regions of the country.

Problem areas
judicial activism, therefore, has its limitations. Firstly, the personal views of the members of the judiciary itself have not always been rational or scientific. Many cases Of PIL concern issues where, to arrive at an opinion conceived in reason, one must have all the complex and often highly technical facts at command- Unfortunately, all such facts that would be needed to arrive at an appropriate judgment are either not made available or are misrepresented by those who file such cases. The much publicised case of Narayan Sarovar Sanctuary would be an example. Our official investigative agencies are under pressure either not to investigate, or to investigate inadequately, or to suppress the facts that have emerged on investigation, and they often succumb to such pressure.

There is no national policy conceived in reason and well argued, with regard to sustainable development. There is thus, no policy which would define the nature and extent of the trade-off between developmental strategies and environmental consideration that would bring long-term and sustamable gain for the people of the region concerned. We have no policies for declaration of an area as a sanctuary or a national park; we have rarely done so on the basis of a thorough study and indisputable facts. And we do not have a policy or a set of rules that an industry set up in a backward region, which enjoys concessions on account of its location, must satisfy so that it becomes an instrument of progress of the people of the region and not merely a means to earn more money for investors.

We have seen a mushrooming of nongovernmental agencies in the country. While this process must be welcomed, it would be disastrous not to analyse it in detail. For example, one of the consequences of this process has been the emergence of many NGOS which are highly politicised or which have as much self-interest in their work as an average politician in the country has in his. These organisations are, therefore, as much exploiters of the public CC There and the oppressed as, in a way, the politicians are. We have not devised a mechanism to distinguish such organisations from those which provide dedicated and selfless service.

There is a general disdain in the country for facts, objectivity and social justice. What wins is self-interest and not the larger interests of the community or the nation. When this is the all-pervading culture of our country, it would be a miracle if our PILS are not tainted by it. What should then be done? Jn balance, judicial activism is a good thing. We must, however, ensure that it is tempered with reason, with a penchant for facts, with a genuine concern for the people, and with caution.

---P M Bhargava is a distinguished molecular biologist based in Hyderabad

THE advent of Justice Kuldip Singh has been a veritable tour deforce. In a relatively short but decisive span - and amidst murmurings of tough justice - he has cleared the industry from the Taj trapezium in Agra and from the Okhla Industrial Estate in New Delhi, enforced uniform coastline regulation, and issued many environmental orders ranging from garbage collection in Delhi to the pollution of the Ganga. He nearly moved the entire chemical industry from Mumbai under circumstances which would have led to their closure. He left behind a sense of responsibility towards the environment, in government and citizenry alike, founded on what he recognised as the "precautionary" principle and the "polluter pays" principle. But will the court pursue Justice Singh"s tour de force, or will it soften it or abjure it altogether?

Misguided governance
The justification offered by Justice Kuldip Singh for his almost nagging persistence was that the institutions responsible for environmental protection had failed to discharge their duties, necessitating strong supervisory action by the court. But such failure is endemic in governance in India. What the court usually does in most ordinary cases is to issue (mandamus) orders to is a remand the matter to the authorities to do their job. Judges are convinced that in public interest litigation (PIL) cases, a soft mandamus will not do. The distinguishing feature of Pit cases are four-fold: democratic access, investigative procedures, wide scope of non-adversarial inquiry and schematic remedies.

To enter into a mindless controversy over pruning PIL seems silly. Suffice it to say, myopic remedies such as introducing a Rs I lakh deposit for PH. cases are violative of fundamental rights. The more serious proposal, that if judges are going to be reposed with such fantastic powers, they must be more carefully selected by a"judicial appointments commission , needs to be followed through. But the proposal of the erstwhile Deve Gowda government to place the judges in a minority, and to include the attorney-general who appears for the govern- ruent before the courts in such a collegium, shows that the government does not want to make good appointments but to retain control over the higher judicial appointments.

What next?
However, the crucial question is what happens next in the field of environmental law and policy. One view of the advent of Justice Kuldip Singh is that these judicial interventions were transitional in nature; and, the court will retreat into its normal neutral, as opposed to activist, oversight role. If this is so, it follows that the major responsibility for protecting the environment reverts back to the statutory pollution boards, governments, magistrates and ordinary courts. By this logic, henceforth, the courts will issue "soft" as distinguished from "harsh" mandamus orders whereby they will remand the issue to the appropriate authority rather than make and implement decisions themselves. But will this work?

The test case for this is the forest case before Justices I S Verma and B N Kripal in which all mining and non-forest activities in forest areas have been temporarily stopped, all timber movement out of the north- eastern states has been curtailed and severe restraints have been placed on felling trees and the timber industry. This ban is tem- porary. Consistent with justice Verma"s judicial style, the judges hope that a mixture of soft and harsh directions will make the various governments do what the law expects them to do. To this extent, discern- ing observers feel that the swashbuckling era of judicial activism (in the limited sense described here) was a necessary interlude to wake up everybody. But is it now over? More importantly, is it wise to bring it to an end?

Back to square one?
The implications of judicial restraint have to be understood before a misplaced euphoria takes us back to the bad old days when various authorities were - and conceivably are - making money trying not to enforce various environmental regimes. The question we now face is this: Will the pollution boards do their job? Will forest officers and the government enforce forest legislation and refer matters to the Union government? Will magistrates issue appropriate directions on garbage? Will administrators be able to hold unscrupulous politicians, builders and industrialists at bay, resist temptation and overcome fear?

After the four deforce, will flue system suddenly spring back into proactive enforcement? An inactive and inept government regulatory system invited judicial activism. If judicial activism reverts to its previous less- activist discipline, will the system (consisting of government and various authorities) suddenly find an activist environmental courage which has so shamelessly deserted it in the past?

What most people do not realise is that environmental law, policy and enforcement is very complicated. Devising an environ- mental law and policy for one billion people, where a large number of people live off the land and forest and where a greedy few are ever-willing to "rape" the environment for money, is not easy.

People interested in wildlife, bird watchers, or those who have run a wildlife park think that they know it all. Unfortunate allegations are often made against lawyers involved in environment cases, no less because lawyers pick up strong environment briefs to appear for forests in some cases and against sanctuaries in others. At the same time, environmental activists and organisations squabble amongst themselves to give expression to personal rivalries and personality clashes.

If environmental law and policy is to advance with even a tolerable efficacy, we need strong knowledgeable policymakers and impeccable environment bureaucracies. Battles over the environment have to be fought with rigour. The loci of these struggles is not and cannot be centered around the Supreme Court and High Courts which in lesser and lesser degrees can, and should, only preserve an anxious and rigorous oversight. We need to evolve meaningful procedure and structures which can yield knowledgeable, pragmatic and balanced decisions with democratic accountability, public participation and decisional integrity. After justice Kuldip Singh, chaos will surely continue to reign if we do not get our total act together. But after such an inspirational tour de Jorce, we have less excuses for not turning the various environmental regimes into effective implementing nodes.

---Rajeev Dhawan is a senior advocate in the Supreme Court

T DOUBT whether whatever is called activism of the judiciary could at all be called so, for the term "activism" bears a political meaning- to an action carried out with a heightened tempo. Any vigorous action, or performance of duty is not activism. If the judiciary has acted in a manner which could be clearly seen as treading political grounds, then it may be called judicial activism. Activism does involve confrontation which results in a certain change in respective powers of the parties involved - one may say that power relations change in a process of confrontation.

All this talk about confrontation between the judiciary on the one hand and the legislative and the executive on the other seems to be imputing more meaning to it than it really deserves. Did the judiciarv, in this process, redefine its powers in its own favour or did it only bring such of its powers to light which were hidden so far? Or, did the judiciary usurp some more power than what legitimately belonged to it but were so far unused?

However, the issue does not invite mere definition. It is a practical situation where certain quarters in the system of governance did get alarmed at the new-found role of the judiciary. Somewhere the question of authority of supremacy arose in matters of defining and executing the law, and therefore of sharing of power. It is a matter, in fact, which is internal to the institutions of the state and therefore a concern, grave or otherwise, for the ruling class.

An illusion even of the redefinition of power disturbed them. What an old peasant in the gallows tells an evangelist in Leo Tolstoy"s Resurrection is indeed very true about Indian society and its present state: "First they robbed us of our land and our rights, then they sat down among themselves to make laws for us." Indian judiciary, whether it encroaches upon the powers of the executive or of the legislature through its activism, should bother a common Indian peasant less than those who are uncommon, for he is already robbed jointly by each of the arms of the modern nation state.

Power to the people
A true judicial activism would be one when the judiciary gears itself up to give up a lot of its powers, and therefore as a consequence, of the legislative and similarly of the executive in favour of empowerment of the various social, political, economic and cultural units of the perennial India as against the modern India, which were robbed of their authority and power in the process of building up this modern state.

However, the inefficiency and corruption in the system has made judiciary exercise powers which surpass the authority of political and executive arms.

Consequently, the nation has come to see judiciary as the ultimate saviour and protector. Though it has given a sense of reassurance, it has wrongly put the judiciary in a focus which should not be its. After all, it is the only institution out of bounds for any open public scrutiny; you cannot even cast a doubt about its moral upright ness even if stories of judicial corruption do circulate.

For such an institution to acquire a public posture is dangerous- It makes the process of justice vulnerable to the human feelings of ambitious persons in high judicial positions. Courts and judicial process need not be theatres or public shows. Our state is still new for common people, what it does is beyond their comprehension and also beyond their sense of justice, morality and public conduct. A balance between the rights of the people and those of the ruling class has yet to be arrived. In a situation like this, if the judiciary plays a role to assist people, various sections of whom need to set a balance for themselves in the process of negotiating justice with the more powerful and therefore corrupt ruling class, then such a role would be a very positive kind of"activism".

---Rajiv Vora is a writer and commentator and is associated with the Gandhi Peace Foundation, New Delhi.

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