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LEGAL ISSUES
1. WHETHER THE PIL (PUBLIC INTEREST LITIGATION BROUGHT BEFORE THE
SUPREME COURT OF INDIANA IS MAINTAINABLE OR NOT?
2. WHETHER THE GOVT. OF INDIANA HAS DULY CONDUCTED PROPER
SURVEY BY AN INDEPENDDENT REGULATORY BODY?
3. WHETHER THE LAW VIOLATES THE CONSTITUTIONAL RIGHT OFHEALTHY
ENVIRONMENT OR NOT?
4. WHETHER THE LAW VIOLATES ANY PROVISIONS CONTAINED IN OTHER
LAWS?
5. WHETHER THE LAW VIOLATES INDIA’S INTERNATIONAL OBLIGATION
UNDER THE UNITED NATIUONMS FRAMEWORK CONVENTION ON CLIMATE
CHANGE AND PARIS AGREEMENT
SUMMARY OF ARGUMENTS
(1) WHETHER THE PIL (PUBLIC INTEREST LITIGATION BROUGHT BEFORE
THE SUPREME COURT OF INDIANA IS MAINTAINABLE OR NOT?
ARTICLE: 32
Remedies for enforcement of rights conferred by this part:- It entitles the citizens of Indiana to move the supreme court or high court for the enforcement of these rights. The state is forbidden from making any law that may conflict with the fundamental rights. A PIL is maintainable in case of violation of one or more fundamental rights. Under no other situation will a PIL be maintained. Any Indian citizen or organisation can move the court for a public interest/cause by filing a petition:
- In the SC under Article 32
- In the High Courts under Article 226 Public interest Litigation (PIL) means litigation filed in a court of law, for the protection of “Public Interest”. Any matter where the interest of the public at large is affected can be redressed by filing a Public Interest Litigation in a court of law such as Pollution, Terrorism, Road safety, Constructional hazards, violation of poor community ETC. For filing a PIL, the person should be a citizen of India and it should be a case of public welfare. If the fundamental rights of a group of people is being affected, a PIL can be filed in the Supreme Court under Article 32.
3 .WHETHER THE LAW VIOLATES THE CONSTITUTIONAL RIGHT OF
HEALTHY ENVIRONMENT OR NOT?
Article49-A: “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.” The said amendment imposed a responsibility on every citizen in the form of Fundamental Duty. By 42nd Amendment to the Constitution, the Parliament, with an object of sensitizing the citizens of their duty, incorporated Article 51A in the Constitution, inter alia, requiring a citizen to protect and improve the natural environment including the forests, lakes, rivers and wild life and to have a compassion for living creatures. The expression life enshrined in Article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure. Right to Equality and Environment Protection (Article 14): It casts a duty upon the state to be fair while taking actions in regard to environmental protection and thus, cannot infringe article 14. Right of life and Environment protection (Article 21): Right to life includes the right to have a dignified life and also the bare necessities of life like food, shelter, clean water and clothes. The right to live extends to having a decent and clean environment in which individuals can live safely without any threat to their lives. An environment shall be free from diseases and all sorts of infections.
4. WHETHER THE LAW VIOLATES ANY PROVISIONS CONTAINED IN
OTHER LAWS?
THE ENVIRONMENT (PROTECTION) ACT ,1985 to provide for the protection and improvement of environment and for matters connected there with: and relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property; THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981in this project a dam is constructed where 32 sq. km forest will be cut down resulting in production of methane gas resulting in increasing emissions of carbon dioxide in the environment. Hydropower projects are producing higher emissions than coal-fired powergenerating the same amount of electricity plants. VIOLATION OF THE ENVIRONMENT (PROTECTION) RULES, 1986 Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted. Standards for quality of environment in its various aspects laid down for an area. The biological diversity of the area. DISPLACEMENT AND RESETTLEMENT REHABILATION OF INDEGHINOUS COMMUNITIES AND JOB DISPLACEMENT Section 5 of FRA, regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the biodiversity are complied with. Under Section 41 and 42 of the RFCTLARR Act, 2013 which protect their interests. As per Section 41 (1), as far as possible, no acquisition of land shall be made in the Scheduled Areas. As per Section 41(2), where such acquisition does take place, it shall be done only as a demonstrable last resort. VIOLATION OF NATIONAL RIVER GANGA BASIN AUTHORITY ,
ARGUMENTS ADVANCED
LEGAL ISSUE 1
The right to access the courts of justice is available to individuals who are aggrieved by the action of others. It is only when you are the affected or aggrieved person youare able to approach the court of law for redressal. This means that there is a mechanism to address the violation of individual rights. But the peculiar socio- economic conditions that are unique to India strictly following the rule of locus standi i.e., whose right is violated alone can approach the court would result in restricting the access to judicial process. For example what happenswhen an individual cannot afford to reach out to the courts? Does his right remain violated forever or is there any other recourse in such situations? Thus, blindly following the rule of locus standi would cause greater injustice. Locus Standi is a Latin word which literally means ‘place of standing’. It refers to a person’sstanding in the court of law. It means the right or capacity of a person to bring a legal action or to appear in a court of law. In a Public Interest Litigation, any person can approach the court of law on behalf of those who are aggrieved persons the jurisdiction of the court. Without locus standi, one cannot be heard in a court of law. The predominant feature of Public Interest Litigation is liberalization of the traditional rule of standing by the Supreme Court. In a Public Interest Litigation, any person can approach the court of law on behalf of those who are aggrieved persons. This dilution in locus standi was done for reasons such as poverty, ignorance, lack of knowledge and exploitation of vast masses, high cost of litigation, democratization of justice, redress of public injuries and avoiding plurality of litigation, curbing arbitrary State action and ensuring a responsible government Public Interest Litigation is a judicial doctrine that has tried not only to address the circumstances in which a person is poor, ignorant, indigent or illiterate and cannot afford to handle the litigation but also used in enforcing social rights. The justice delivery system is brought to his doorsteps through Public Interest Litigation. The focus is shifted from individual rights to group rights. Any public spirited person who has interest in pursuing the wrongs done to others or a group of persons, can access the courts of justice and fight for the rights of the disadvantaged and needy group of individuals. Public Interest law includes all efforts made to provide legal representation to the unrepresented groups and interests. not only the poor and the disadvantaged but also ordinary citizens who cannot afford lawyers to represent them when their interests are affected by any action. Thus, the legal aid laid the foundation for building the edifice of Public Interest Litigation in the world.
The Fundamental Rights are attributed its true scope by providing a constitutional remedial mechanism for enforcement of these rights through an Mindependent judiciary. These provisions related to FundamentaL Rights, Directive Principles of State Policy and independent judiciary together provides a firm constitutional foundation to the evolution of Public Interest Litigation in India. In a report on legal aid in 1971, Justice P.N.Bhagwati observed that modifications may be brought in the present adversary system while retaining its basic feature. In Fertilizer Corp. Kamgar Union v. Union of India , the Supreme Court noted, “It may become necessary in the changing awareness of legal rights and social obligations to take abroader view of the question of locus to initiate a proceeding….” S. P. Gupta v. Union of India. The Supreme Court delivering itsjudgment through Justice P. N. Bhagwati evolved a new rule that any member of public having sufficient interest and with bonafide intention can maintain a petition for redress of public wrong or public injury. Such a claim may be filed by any individual, citizens, noncitizens, any groups or non-political, non- profit and voluntary organisations. Several specialized NGOs and lawyers started bringing matters of public interest to the courts on a much regular basis. The breadth of issues raised in Public Interest Litigation also expandedtremendously—from the protection of environment to corruption-free administration, right to education, sexual harassment at the workplace, relocation of industries, rule of law, good governance, and the general accountability of the Government. SUPEREME COURT OF INDIAVA issued guidelines to be followed while entertaining public intest litigation petitions received .clause 8 mentioned herein , states petitions pertaining enviornmental pollution , disturbance of ecological balance , maintainence and protection of forest and wildlife ., are acceptable under the purview of guidelines SECTION 19 (B) of ENVIORNMENT PROTECTION ACT , Any person who has given a notice of not less than 60 days of alleged offence and his intention to make a complaint to CG or authority or officer prescribed.
LEGAL ISSUE 2
Eco-Sensitive Zones (ESZs) or Ecologically Fragile Areas (EFAs) are areas around Protected Areas, National Parks, and Wildlife Sanctuaries. The purpose of declaring ESZs is to create a shock absorbers space in the protected areas by regulating and managingthe activities around such areas. The Supreme Court ordered in June 2022 that an eco-sensitive zone (ESZ) be required to extend for at least one mile from all national parks, wildlife sanctuaries, and protected forests across the nation.Over the years there have numerous protests against eco-sensitive zones arguing that enforcement of the Environmental Protection Act of 1986 and the Wildlife Protection Act of 1972 has caused government officials to violate the rights of forest communities and adversely damage their way of life and livelihood.It seeks to lessen ecological imbalances and the conflict between humans and the natural world.Declaring ESZs aims to create protected areas by regulating and limiting specific activities, particularly in the vicinity of natural parks and wildlife sanctuaries.The Environmental Protection Act of 1986 requires state governments to designate land within 10 kilometers of the borders of national parks and wildlife sanctuaries as eco-fragile zones or Eco- Sensitive Zones (ESZs)This was notified according to the National Wildlife Action Plan (2002-2016) of the Ministry of Environment, Forest and Climate Change (MoEFCC). The establishment of industries, the use of commercial timber, mining, and tourism are prohibited in these Zones. Additionally, it is completely forbidden to produce dangerous substances, release solid or liquid waste, or engage in any activity that results in pollution of any type. The lands around forests and animal corridors are frequently essential for preserving biological relationships and should be protected as a result. By doing so, the loss of biodiversity and the organic expansion of flora and wildlife would be avoided. Prohibited Activities: Commercial mining, sawmills, industries causing pollution (air, water, soil, noise, etc), the establishment of major hydroelectric projects (HEP), and commercial use of wood. Regulated Activities: Felling of trees, the establishment of hotels and resorts, commercial use of natural water, erection of electrical cables, drastic change of agriculture system, e.g., adoption of heavy technology, pesticides, etc, widening of roads. Permitted Activities: Ongoing agricultural or horticultural practices, rainwater harvesting, organic farming, use of renewable energy sources, and adoption of green technology for all activities. The establishment of ecologically sensitive zones aims to preserve biodiversity and ecological balance in various parts of the nation where the rapid expansion of various development projects, such as the establishment of industry, mining, the
construction of dams, and the building of roads, pose a threat to the natural environment and animal habitat. Due to rising pollution, these development efforts have resulted in the depletion of forest lands and hampered their natural expansion. The regions designated for the survival and development of native plants and animals mustbe shielded from human interference by erecting a barrier around them. The impact of human-made activities, such as industrialization and other developmental activities, would be reduced in areas designated as ecologically sensitive zones. By providing a sustainable environment, creating ecologically sensitive zones helps to avoid the loss of forestland, preserve biodiversity, stop soil deterioration, and lessen human- animal conflict. These areas were established to safeguard the environment while taking the socio- economic development of nearby populations into account. Improving the local environment helps the people living in around the zones as well. The creation of the ESZ around protected places like national parks and wildlife sanctuaries serves as a safeguard to lessen the detrimental effects of pollution and the generation of hazardous waste.These are site-specific, based on local characteristics, and deal with the preservation of a particularly endangered species through safeguarding their natural environment. The Eco-sensitive Zones regulations outline the 10 km perimeter around protected areas that, in many jurisdictions, fall inside habitat zones and have an impact on development activities. The limits may impact the locals’ ability to go about their daily lives, therefore they have generated some concerns. The locals’ traditional customs have been negatively impacted by the current restrictions, which has raised concerns that it may worsen their socioeconomic situation. Execution of The Environmental Protection Act 1986 and the Wildlife Protection Act 1972 makes the authorities ignore forest communities’ rights and impact their life and livelihood. In 2022, MoEFCC removed the clauses requiring recognition of forest rights and gram sabha’s consent as preconditions for proposals under the forest rights act 2006. SOCIAL IMPACT ASSESSEMENT ( SIA ) WITH RESPECT TO REHABILITATION AND RESTETTLEMENT SECTION 4 CHAPTER II OF RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION ,REHABILITATION AND RESETTLEMENT ACT ,2013 states that where land is acquired social impact assesement shall be carried out. SUB SECTION 3 OF THE SAID ACT STATES that SIA report made under subsection (1) shall be made available to public.
CASE LAWS
PUDUCHERRY ENVIORNMENT PROTECTION ASSOCIATION VS UNION OF
INDIA.
The cases of violation will be appraised by respective sector Expert Appraisal Committees constituted under sub-section (3) of Section 3 of the Environment (Protection) Act, 1986 with a view to assess that the project has been constructed at a site which under prevailing laws is permissible and expansion has been done which can be run sustainably under compliance of environmental norms with adequate environmental safeguards; and in case, where the finding of the Expert Appraisal Committee is negative, closure of the project will be recommended along with other actions under the law. A.P. Pollution Control Board v. Prof. M. V. Nayudu (Retd.) & Ors., Court observed that even otherwise the above- said principles are accepted as part of the Customary International Law and hence there should be no difficulty in accepting them as part of our domestic law. In fact on the facts of the case before this Court, it was directed that the authority to be appointed under section 3(3) of the Environment (Protection) Act, 1986 "shall implement the Precautionary Principle' and thePolluter Pays Principle'." The learned Judges also observed that the new concept which places the Burden of Proof on the Developer or Industralist who is proposing to alter the status quo, has also become part of our environmental law.
LEGAL ISSUE 3
VIOLATION OF CONSTITUTIONAL PROVISIONS
The protection and improvement of environment is now a fundamental duty under Constitution Act of 1976. The Indian Constitution contains specific provisions for environment protection under the chapters of Directive Principles of State Policy and Fundamental Duties. The absence of a specific provision in the Constitution recognizing the fundamental right to clean and wholesome environment Initially, the Constitution of India had no direct provision for environmental protection. Global consciousness for the protection of environment in the seventies, Stockholm Conference and increasing awareness of the environmental crisis prompted the Indian Government to enact 42nd Amendment to the Constitution in
- The Constitution was amended to introduce direct provisions for protection of environment. This 42nd Amendment added Article 48-A to the Directive Principles of State Policy. Article49-A: The Article states: “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.” The said amendment imposed a responsibility on every citizen in the form of Fundamental Duty. Article 51-A, Clause (g): Article 51-A (g) which deals with Fundamental Duties of the citizens states: “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.” Thus, protection and improvement of natural environment is the duty of the State (Article 48- and every citizen (Article 51- A (g)). In Sher Singh v. Himachal Pradesh , It was held that the citizens of the country have a fundamental right to a wholesome, clean and decent environment. The Constitution of India, in terms of Article 48A, mandates that the State is under a Constitutional obligation to protect and improve the environment and to safeguard the forest and wild life in the country.
(ii) Imposing on every citizen in the form of fundamental duty to help in the preservation of natural environment. This is the testimony of Government’s awareness of a problem of worldwide concern. Since protection of environment is now a fundamental duty of every citizen, it is natural that every individual should do it as personal obligation, merely by regulating the mode of his natural life. The citizen has simply to develop a habitual love for pollution. ARTICLE 14 Right to Equality and Environment Protection (Article 14): Equality before the law and equal protection of the law has been granted under article 14 of the Constitution. This fundamental right impliedly casts a duty upon the state to be fair while taking actions in regard to environmental protection and thus, cannot infringe article 14. In cases of exercise of arbitrary powers on behalf of the state authorities, the judiciary has played a strict role in disallowing the arbitrary sanction. Use of discretionary powers without measuring the interest of the public violates the fundamental right of equality of the people. Government in accordance with the laws has good reason to believe that any works or installations erected by the or any operations conducted endangering or may endanger persons or any property of any person, or are causing or may cause pollution, or are harming or may harm fauna or flora or the environment to a degree which the Government deems unacceptable, the Government may require the Contractor to take remedial measures within such reasonable period as may be determined by the Government and to repair any damage to the environment. If the Government deems it necessary, it may also require the to discontinue Petroleum Operations in whole or in part until the Contractor has taken such remedial measures or has repaired any damage caused. The prevailing situation relating to the environment, human beings and local communities, the flora and fauna in the Contract Area and in the adjoining or neighbouring areas; To establish the likely effect on the environment, human beings and local communities, the flora and fauna in the Contract Area and in the adjoining or neighbouring areas.
Freedom of Speech and Expression and Environment (Article 19(1) (a)): Right of speech and expression is a fundamental right expressly mentioned in article 19(1) (a) of Part III of the Constitution. There have been a number of cases where people have approached the court through the way of speech and expressing themselves by writing letters like that in the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh[8 ] where they have expressed the violation of their right to have a clean and safe environment and a right to livelihood. Right of life and Environment protection (Article 21): Article 21 of the constitution provides for the fundamental right of life. It states that no person shall be deprived of his right to life or personal liberty except in accordance with procedures established by law. The words except in accordance with procedures established by law can be interpreted to mean that this provision is subject to exception and is regulated by law which varies from case to case. Right to life includes the right to have a dignified life and also the bare necessities of life like food, shelter, clean water and clothes. The right to live extends to having a decent and clean environment in which individuals can live safely without any threat to their lives. An environment shall be free from diseases and all sorts of infections. This is crucial because the right to life can be fulfilled only when one lives in a clean, safe and disease-free environment, otherwise granting such right would prove to be meaningless. In L.K Koolwal v. State of Rajasthan and Ors , Rajasthan High Court held that maintaining the quality of the environment, sanitation and health is covered under the purview of Article 21 of the Constitution. Because non-compliance to do so can adversely affect the lives of many citizens and slow poisoning along with reducing the life of a citizen. In Charan Lal Sahu v. Union of India , it was held that the duty of the state is to take adequate and effective steps for the enforcement and protection of Constitutional rights guaranteed under Article 21, 48-A and 51-A(g).
LEGAL ISSUE 4
Water quality and physical changes Upper reaches of the reservoir may not be affected very much as the original riverine conditions are still retained in most. Downstream of the dam the flow rate in the river will depend on the amount of the compensation flow. Water volume is considerably reduced during the dry season. As a result, the downstream may change to pools alternating with dry stretches for about nine months from November to June. Due to decreased water discharges, water temperature will rise in daytime and decline sharply at night. Rooted plants will grow in the riverbed due to the decrease in water volume. LEGAL PROVISION Water (Prevention and Control of Pollution) Act, provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water due to construction of dam the wholesomeness of water is destroyed .and also result in violation of NATIONAL GANGA BASIN AUTHORITY ACT , THE ENVIRONMENT (PROTECTION) ACT ,1985 to provide for the protection and improvement of environment and for matters connected there with: and relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property; Greenhouse gases: The flooding of surrounding habitat around dam’s kills trees and other plant life that then decomposes and releases large amounts of carbon into the atmosphere. Because the river is no longer flowing freely, the water becomes stagnant and the bottom of the reservoir becomes depleted of oxygen. This lack of oxygen creates a situation where methane (a very potent greenhouse gas) is produced from the decomposition of the plant materials at the bottom of the reservoir that eventually gets released into the atmosphere, contributing to global climate change. THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981in this project a dam is constructed where 32 sq. km forest will be cut down resulting in production of methane gas resulting in increasing emissions of carbon dioxide in the environment. The water gathers behind the dam, creates an unnatural, stagnant lake that often kills off a lot of the existing ecosystem. Bacteria in the water decompose these plants and generate carbon dioxide and methane (potent greenhouse gas). Methane from reservoirs accounts for more than 4% of all human-caused climate change comparable to the climate impact of the aviation sector. In some cases, hydropower projects are producing higher emissions than coal-fired power generating the same amount of electricity plants
Production of methyl-mercury: The stagnant water in reservoirs creates a situation where the decomposition of organic matter from decaying plants can transform inorganic mercury into methyl-mercury. Unfortunately, methyl-mercury tends to bio-accumulate and cause toxic effects in humans and wildlife that eat the fish in reservoirs Water (Prevention and Control of Pollution) Act, 1974 VIOLATION OF THE ENVIRONMENT (PROTECTION) RULES, 1986 states that operations in different areas shall be carried (I) Standards for quality of environment in its various aspects laid down for an area. (ii) The maximum allowable limits of concentration of various environmental Pollutants or an area. (iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted. (iv) The topographic and climatic features of an area. (v) The biological diversity of the area which, in the opinion of the Central Government needs to be preserved. (vi) Environmentally compatible land use. (vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted. (viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified as such under the Wild Life (Protection) Act, 1972 or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international confcrcnce association or other body. (ix) Proximity to human settlements. DISPLACEMENT AND RESETTLEMENT REHABILATION OF INDEGHINOUS COMMUNITIES AND JOB DISPLACEMENT he Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA in short), in section 4(5) states that save as otherwise provided, no member of a forest dwelling Scheduled Tribes or Other Traditional Forest Dweller shall be evicted or removed from the Forest Land under his occupation till the recognition and verification procedure is complete.
