Role of pil in enviroment protection PDF

Preview

Summary

PROJECT REPORT ON PIL...

Description

ABSTRACT Public interest litigation and judicial activism on environmental issues extends beyond India's Supreme Court. It includes the High Courts of individual states. India's judicial activism on environmental issues has, some suggest, delivered positive effects to the Indian experience. The Supreme Court has, through intense judicial activism, the proponents claim, become a symbol of hope for the people of India. As a result of judicial activism, India's Supreme Court has delivered a new normative regime of rights and insisted that the Indian state cannot act arbitrarily but must act reasonably and in public interest on pain of its action being invalidated by judicial intervention. India's judicial activism on environmental issues has, others suggest, had adverse consequences. Public interest cases are repeatedly filed to block infrastructure projects aimed at solving environmental issues in India, such as but not limiting to water works, expressways, land acquisition for projects, and electricity power generation projects. The litigation routinely delays such projects, often for years, while rampant pollution continues in India, and tens of thousands die from the unintended effects of pollution. Even after a stay related to an infrastructure project is vacated, or a court order gives a green light to certain project, new issues become grounds for court notices and new public interest litigation. Judicial activism in India has, in several key cases, found state-directed economic development ineffective and a failure, then interpreted laws and issued directives that encourage greater competition and free market to reduce environmental pollution. In other cases, the interpretations and directives have preserved industry protection, labor practices and highly polluting state-owned companies detrimental to environmental quality of India.

Introduction One of the most important developments that took place in the recent years is the process of social action and social reform through legal action known as Public Interest Litigation (PIL). 1|Page

Until the emergence of PIL, justice was a remote reality for our illiterate, underprivileged and exploited masses. This has been Largely due to three major difficulties: (i) lack of awareness amongst people; (ii) lack of assertiveness due to their low socio-economic status; and (iii) lack of an effective machinery to give them legal aid. It is only when the poor become aware that the wrong done to them is a legal wrong and that there is a legal remedy available to them, they will seek a legal redressal. Even if they are aware of their legal rights, the poor do not have the means nor the will to go for expensive litigation. And wherever a large number of people are victims of a common injustice or common exploitation, it is not possible for each one of them to file separate petitions and seek remedies individually. These are some of the major obstacles the poor face in the pursuit of justice. The reinterpretation of the concept of ‘locus standi’ by the Supreme Court has removed one of the major hurdles faced by the poor and has paved the way for easy access to courts of justice. According to the traditional interpretation only a person who had suffered a legal wrong himself could take recourse to the court of law for relief. The new position is that if a legal wrong is done to a person or a class of persons who, by reasons of poverty or any other disability, cannot approach a court of law for justice, it is open to any public-spirited individual or a social action group to file a petition on his or their behalf. This new approach to bring justice to the poor and the oppressed, it is hoped, will give meaning to the constitutional objectives of socioeconomic justice for all.

MEANING OF PIL Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. Therefore, PIL is a proceeding in which an individual or group seeks relief in the interest of general public and not for its own purposes. PIL is a strategic arm of the legal aid movement and is intended to bring justice within the reach of poor masses. It is a devise to provide justice to those who individually are not in a position to have access to the courts. It was initiated for the benefit of a class of people, who were deprived of their constitutional and legal rights because they were unable to have access to the courts on account of their socio-economic disabilities. Today millions of poor particularly those of the oppressed sections of society are looking at the courts for getting justice 2|Page

and improving their life conditions. Responding to the demands of the changing times and needs of the people, the courts are making efforts to become the courts of the poor, courts for the poor and the struggling masses in this country. Fortunately, this change is gradually taking place and PIL is playing a major part in bringing this change.

ORIGIN OF PIL The term “PIL” originated in the United States in the mid 1960s. In the nineteenth century, various movements in that country have contributed to public interest law, which are a part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the PIL movement began to receive financial support from the office of economic opportunity. This encouraged lawyers and public spirited persons to take up cases of the under-privileged and fight against various issues like--dangers to environment, harms to public health, exploitation of vulnerable masses, exploitation of consumers and injustice to the weaker sections. In England PIL made a mark during the years of Lord Denning in the 1970s. He as a petitioner brought several public issues to the court. PIL had begun in India towards the end of 1970s and came into full bloom in the 1980s. Justice V.R. Krishna Iyer and Justice P.N. Bhagwati, have delivered some landmark judgments which opened up new vistas of PIL. Some of the Supreme Court Judges felt the need for initiating PIL because they observed that the protection of law had so far been available only to the rich and the politically powerful. The civil and political rights of the poor people existed only on paper and not in reality. The poor and the illiterate were not able to understand their legal problems and did not have legal access to justice through the traditional type of litigation because of its high cost, complicated and slow procedures. Hence they believed that the time has come for the courts of the rich to become the courts also of the poor and the oppressed masses. They wanted to make the judicial system an effective instrument of social justice. Justice Bhagwati has encouraged PIL as chairperson of the committee for implementing Legal Aid Schemes. The Apex Court realized its constitutional power of intervention which could be used to mitigate the misery arising from repressive practices of government, lawlessness and administrative negligence and indifference. Judges, committed to the cause of

3|Page

social justice, recognized that they could play a proactive role to tilt the balance of governance in favour of the havenots.

ESSENTIALS OF PIL The main presumption behind PIL was that radical changes in society would come about through the courts of justice if fundamental rights of weak and poor citizens are enforced effectively. The new technique fashioned by the architects of PIL would bring about far reaching changes in the judicial system of the country. Public enterprises are owned by the people and those who run them are accountable to the people. The accountability of the public sector to the Parliament is ineffective. In such cases the court would be under duty to interfere. (Fertiliser Corporation V/s Union of India, AIR 1981, SC 434.) There are three new elements incorporated in PIL: (a) Liberalisation of law relating to “locus standi”. (b) Adoption of simple procedure in entertaining PIL petitions. (c) Expansion of the meaning and scope of Articles 14, 21 and 32 of the Constitution. Justice Bhagwati in S.P. Gupta’s case pointed out the essentials of PIL, as under a) There must be a legal wrong caused to a person or to a determinate class of person, on whom burden is imposed in violation of law or without legal authority. b) The wrong must arise from violation of any constitutional or legal right. c) The wronged person (or determinate group of persons) must be unable to approach court for relief by reason of – (i) poverty, (ii) helplessness; or (iii) social or economic disability or socially or economically disadvantaged person. d) If the above conditions are satisfactory, then any member of the public can seek judicial relief for the above wrong. e) But the court should be anxious to ensure that the person initiated the proceeding to acting bonafide to get redress for a public grievance and not to pursue personal gains or from malicious motives. f) If the case is otherwise appropriate for PIL then the court can act even on letter addressed to it. (SP Gupta Vs Union of India, AIR 1982SC 149)

4|Page

PERSONS DISQUALIFIED TO FILE PIL The following persons are not entitled to file a PIL case. (a) a person without sufficient public interest; (b) a person acting for self gain or personal profit; (c) a person with political involvement; and (d) a person with malafide intentions. A third party who is a total stranger to the prosecution which ended in the conviction of the accused has no ‘locus standi’ to challenge the conviction and sentence awarded to the convicts through a PIL. It was upheld by the Supreme Court in Simaranjit Singh Mann vs. Union of India, 1992 (4) SC 65. In this case the two assassins of General Vaidya were found guilty of murdering him. They were awarded death penalty which was confirmed by the Supreme Court. The President of Akali Dal filed a PIL under Article 32 challenging the conviction and the sentence on the ground of violation of Article 22, 21 and 14 of the Constitution. The court held that the petitioner has no ‘locus standi’ to file the petition as he was a total stranger to the prosecution and more than that he was not even authorised by the convicts. The fear expressed by certain people regarding the liberal view of the Supreme Court on ‘locus standi’ is that it would lead the court being flooded with writ litigation and therefore they should not be encouraged. To the above criticism the court declared, “No State, had the right to tell its citizens that because a large number of cases of the rich are pending in our courts, we will not help the poor to come to the courts, for seeking justice until the staggering load of cases of people who can afford rich lawyers is disposed off.” (AIR 1983 SC 339).

PROCEDURE TO FILE A PIL IN THE COURT :Any public spirited citizen can move/approach the court for the public cause (in the interests of the public or public welfare) by filing a petition: 1. In Supreme Court under Art.32 of the Constitution; 2. In High Court under Art.226 of the Constitution; and 3. In the Court of Magistrate under Sec.133, Cr. P.C.

Article 32 in The Constitution Of India 19495|Page

Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and (2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

Article 226 in The Constitution Of India 1949Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without (a) Furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and 6|Page

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32

Section 133 in The Code Of Criminal Procedure, 1973

Conditional order for removal of nuisance

(1) Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate specially empowered in this of behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers(a) That any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped; or (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighborhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or 7|Page

(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order(i) to remove such obstruction or nuisance; or (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or (iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or (v) to fence such tank, well or excavation; or (vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be made absolute. (2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation- A" public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes. The Indian judiciary adopted the technique of public interest litigation for the cause of environmental protection in many cases. The Supreme Court & High Courts shaded the inhibitions against refusing strangers to present the petitions on behalf of poor and ignorant individuals. 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. In PIL a public spirited individual or organization can maintain petition on behalf of poor & ignorant individuals In the area of environmental protection, PIL has proved to be an effective tool. In Rural Litigation and

8|Page

Entitlement Kendra vs. State of U.P. (1) the Supreme Court prohibited continuance of mining operations terming it to be adversely affecting the environment.

In Indian Council for Enviro-Legal Action vs. Union of India (2), the Supreme Court cautioned the industries discharging inherently dangerous Oleum and H acid. The court held that such type of pollution infringes right to wholesome environment and ultimately right to life.

EMERGENCE OF PIL IN INDIA The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar, the PIL was filed by an Advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of under trial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40,000 under trial prisoners. Right to speedy justice emerged as a basic fundamental right which was denied to these prisoners. The same set pattern was adopted in subsequent cases.

SOME OTHER SIGNIFICANT CASES Parmanand Katara vs. Union of India Parmanand Katara, a human rights activist, filed a writ petition in the Supreme Court on the basis of a newspaper report concerning the death of a scooterist who was knocked down by a speeding car. Doctors refused to attend to him and directed that he be taken to another hospital around 20 km away, one that was authorized to handle medico-legal cases. Based on the petition, the Supreme Court held that:-



Preservation of human life is of paramount importance.



Every doctor, whether at a government hospital or otherwise, has the professional obligation to extend his or her services with the expertise for protecting life.

9|Page



There should be no doubt t...