But does this system work? Where will the resources the energy, the wood, the minerals, the water - come from to feed the increased growth? Where will the effluents of the process - the solids and the toxics - be dumped? And what of the ecological results? Can ever-increasing consumption be sustained forever? When will the forests be gone? How many cars can be built and bought? How many roads can cover the land? What will become of the animals and the birds - does anyone care about that? Is life better from this? We have not yet found adequate answers to these questions.
We read of the ozone layer depletion, the pollution of the oceans, or the wars over resources such as oil and, perhaps soon, water. But few of these matters are linked directly to the imperatives of global economic expansion, the increase of global transport, the overuse of raw materials, or the commodity intensive lifestyle that corporations are selling worldwide via the culturally homogenizing technology of television and its parent, advertising. Obfuscation is the net result.
However, in India some measures are taken up by the Judiciary to curtail the negative impact of globalization on the environment. An attempt is made to study the role of the Judiciary in controlling Environmental damage resulted –either directly or indirectly- due to the process of Globalization.
Environmental law and Judicial Activism in protection of environmental damage in India:
The last four decades (1960-2000s) have seen an unprecedented rise in the number of Voluntary Organizations and Non-governmental organizations (NGOs) in India, particularly in some states. The growth in the NGO movement is attributed to the failure of public institutions to address social and environmental problems. Judicial intervention and activism by NGOs have together made industries more aware of environmental concerns.
Many protest and activist NGOs largely emerged in response to an imminent threat to local environments that would otherwise have remained un-addressed by policy and regulation.
In the 1980’s two remarkable developments in the Indian legal system provided a strong impetus to judicial activism in our country; there was a broadening of existing environmental laws in the country and judicial activity through public interest litigation began in earnest in India. These two developments gave more scope to citizens and public interest groups to prosecute a corporation or a Transnational Corporation, which violates environmental norms.
Until the enactment of Environment Protection Act of 1986, the government could only do prosecution under Indian environment laws. Public interest groups or citizens had no statutory remedy against a polluter who discharged an effluent beyond the permissible limit. But under the Environment Protection Act 1986, Section 19, a citizen can prosecute any company provided a 60-day notice is given of her/his intention to prosecute. Other provisions allowing citizens to participate in the enforcement of pollution laws are now found in Section 43 of the Air Act, as amended in 1987, and in Section 49 of the Water Act as amended in 1988. Both these Amendments require the Pollution Control Board to disclose internal reports to citizens seeking to prosecute a polluter. There has also been an expansion of citizens’ participatory rights in public interest litigation (PIL). Traditionally only an individual who had her or his rights violated could seek remedy under PIL. This meant that a person wishing to prosecute had to show that he/she had suffered some special injury over and above other members of the public. Thus cases of air or water pollution were difficult to redress. Now, however citizens can challenge environmentally harmful actions even though they may not suffer any greater harm than others. The closure of limestone quarries in the Dehradun district of UP, as well as polluting tanneries along the Ganges is important landmarks in the history of India’s public interest litigation.
According to one rather contentious definition, activism in India is marked by ‘that it has no territoriality, no hegemony, no competition for power, no lusting for eminence in the media market, no questing for recognition or rewards [Baxi: 1986]’ .
Is law effective in reducing environmental damage and protecting the right to pollution-free environment?
In India victims of environmental damage are able to bring their grievances to the courts, including to the supreme court of India- with relative ease. This has become possible due to the large volume of Public Interest Litigation and the liberal rules of Locus standi. The legal system in India offers citizens many gateways to judicial redress for the violation of right to pollution free environment. Yet, it has not done much to address the questions of how environmental damage should be identified, evaluated, and remedied when we take an individual as a unit of observation.
The most characteristic feature of Indian environmental law is the important role played by public interest litigation, which has significantly shaped the law relating to environmental damage. Public interest litigation in India is purely a matter of constitutional law in which the writ jurisdiction of the Supreme Court or any one of the provincial High courts is invoked, normally to enforce the fundamental rights guaranteed in Part III of the Constitution. While Part III does not relate explicitly to environmental matters, the Supreme Court has interpreted the right to life enshrined in Article 21 to include a right to a healthy and pollution-free environment. [Anderson: 1995: Divan & Rosenranz: 1989]
When we try to observe the available remedies to an individual victim of environmental damage in India, we always start with Torts law. Suits in tort are not popular in India. Moreover, wherever they do occur, plaintiffs normally seek injunctions rather than damages. Under torts law, the common law principles of negligence, trespass and nuisance are adhered by our Courts. The torts law provides compensation/monetary award to the individual victim. To secure a monetary award, the plaintiff must prove actual damage. In negligence cases, real damages are awarded on a compensatory basis only. The operative test is not how much the defendant can afford, but how much material loss did the plaintiff suffer. Our Courts never showed any excessive generosity to plaintiffs in calculating the quantum of damages. Not only that, certain characteristics is typical to Indian tort cases- a few of them are protracted litigation, not giving much importance to the process of stagflation and delayed execution of the court order/judgment . In personal injury cases, awards for non-pecuniary loss are infrequent. Among the lower courts, the level of damages awarded is ‘notoriously low’, with little compensation for either non-pecuniary loss or the effects of inflation [Rosencranz: 1991 ].
One main deficiency that persists in the entire environmental movement is the lack of scientific inquiry. Individuals and NGOs lack scientific capacity and technical know-how to understand industrial ecology. Also, industries (and Pollution Control Boards) make little effort to publicize their environmental impact assessments (EIAs), project plans and Environmental Reports, which makes people suspicious. State Pollution Control Boards (SPCB) too lacks technical staff and facilities to assess each and every project and industry. This has made people’s perception of projects a vital factor in the establishment of an industry. One important issue that remains uncorrected is that public review of EIAs projects is only through their summaries.
What happens when local communities/individuals are not consulted?
Individuals acting on a pro bono basis have brought the majority of environmental cases in India since 1985 before the courts as writ petitions, normally. Such petitions are lodged directly in the superior courts, which are not equipped to deal with lengthy and technical questions of discovery and evidence. In these circumstances, the superior courts have relied heavily upon appointed expert committees to determine questions of fact, to assess environmental damage, and to make recommendations as to remedial measures and restitution.
The expert committees typically consist of both government and independent experts appointed by the courts, normally in consultation with the parties. The Supreme Court has also occasionally appointed amicus curiae to assist in gathering and evaluating evidence. Supreme Court of India and several High Courts have appointed expert committees to assess environmental questions including: the severity of alleged water pollution , the incidence and causes of air pollution , the best means of handling chlorine gas in industry , the impact of mining on local ecosystems , the state of sanitation in urban areas , the consequence of urban encroachment upon park land [Brijnath: 1995] , the impact of tourism and development on coastal zones , and the effects of Chernobyl radiation on imported butter .These Committees not only assess the degree of environmental damage involved, but also make recommendations as to appropriate remedial measures. Normally the judges prefer to validate the Committees’ findings with a constitutional order. No doubt, the Expert Committees enhance the legitimacy of the court orders that follow, but at the same time, they reduce the opportunities for the local communities to express views on damage assessment process. Another objection is that such expert committees deal with the questions, which are fundamentally about values and social choice as if they are purely technical in nature. There are also some cases where the executive has used the expert committees to justify delay and inaction
Is there any other remedy other than Tort available to the individual victim of environmental damage?
It is now settled law that the superior courts under their writ jurisdiction can award monetary compensation for infringement of a guaranteed fundamental right. Compensation granted under public law serves to penalize the wrongdoer, the State, for failing in its public duty to protect the fundamental rights of citizens . The Supremne Court of India has held that such awards are in the nature of exemplary rather than substantive damages, and thus are not to be construed as compensating the victim; for restitutio in integrum plaintiffs must still turn to the law of torts. Until 1995 the Court was reluctant to award direct compensation to the individual victim of environmental damage. In M.K.Sharma v. Bharat Electronics Ltd. , the Court in principle supported the idea of compensation in environmental pollution cases, but declined to make an award specifically on the facts and circumstances of the case at hand. Instead, it ordered a comprehensive insurance scheme for certain workers exposed to X-ray radiation. However, in Consumer Education and Research Centre v. Union of India , the Supreme Court ordered asbestos mines and industries to pay a sum of
Rs. 1,00,000, to any worker certified by the National Institute of Occupational Health to be suffering from asbestosis. In another case , the Gujarat High Court found that the pollution in question affected 11 villages directly, resulting in an estimated loss of Rs.6, 40,00,000 per annum in reduced agricultural yield, and un-quantified damage to the health of the residents. In compensation, the Court ordered that the industries make a lump sum payment to the Ministry of Environment equivalent o 1 % of their annual turnover, and that this sum should be used for the provision of educational, medical, and veterinary facilities in the said villages. The Court also recognized that possibly irreversible damage was done to the natural environment, but did not levy any damages for purposes of environmental restoration.
The Courts considered matters of causation, and duty of care to assess damage to the environment under the writ jurisdiction. In fact, our courts have developed environmental jurisprudence whereby fundamental rights apply horizontally between private entities as well as vertically between state and citizen.
The Indian courts have acted more effectively to abate environmental damage rather than to prevent future damage or remediate the consequences of past damage. Our Judges frequently emphasize the intangible benefits and spiritual importance of flora and fauna, but apart from abatement orders, they have not yet proceeded to develop practical remedies to translate the rhetoric into action.
Unfortunately, Indian courts are yet to recognize the value of intangible services and benefits of ecosystems. They also need to act more on developing practical remedies. Legislation is by far the most effective instrument in shaping the corporate response to the environmental challenge. The deployment of policy instruments and public pressure has demonstrated that a smart mix of instruments and strategy is effective.
Unfortunately a legal instrument that remains un-enforced gradually acquires a status of a policy or a statement of good intent.
People think that the Trans National Corporations are driven by ‘the financial bottom-line at home which precedes deliberate ecological destruction in distant lands. Corporate responsibility is weakest when idealist programmes such as industrial ecology are involved.
Within the developed countries such as US and Europe, it moves gingerly, prodded by environmentally sensitive legislatures and hyperactive non-governmental organizations. But this is not the case in Inida. Indeed multinational corporate responsibility differs from country to country
In India, Public Interest litigation has emerged to address the issues of environmental management in Industrial areas only recently. Despite the awareness and effort by government agencies, citizens and NGOs, this several industrial areas languish in abject pollution and depravity. This can largely be attributed the role of government agency’s focus on a few showcase industrial areas while neglecting other industrial areas
Despite this, the role of NGOs is questionable. Often NGOs address environmental and development issues from an emotional rather than an informed view. The weakness in NGOs approaches arises because of lack of scientific and technical perspectives [[Pillai: 1996] .
A powerful legal instrument with the community for protecting their environment from damage is the public hearing process. Here the community is empowered to voice their opinion and choose from development options and then reject or accept the proposal. This is an excellent means of educating the public on enviro-legal issues and brings forth the initiative in the people to organize them to protect their rights and their environment. Unfortunately, the concept has not taken-off in India , primarily because the public is not sufficiently well informed before hand of such hearings. [Rosencranz,Diwan & Noble:1991]
Conclusion:
Judiciary in India has acted more effectively to abate environmental damage rather than to prevent future damage or remediate the consequences of past damage. Our Judges frequently emphasize the intangible benefits and spiritual importance of flora and fauna, but apart from abatement orders, they have not yet proceeded to develop practical remedies to translate the rhetoric into action.
While globalization is strengthening the negative aspects of the development era, it is dismantling the positive aspects of a state focusing on the basic needs of people, a state committed to equality and justice, a State protecting resources and livelihoods through policy and regulatory mechanisms. Basic needs have been replaced by import of luxury goods like cars and cosmetics and export of luxury products like flowers and shrimps. Land ceilings have been removed in urban and rural areas, transferring land and real estate to speculators or big corporations. Globalization has rendered the relationship between the community, the state and the corporation totally fluid. In this context there is a need to bring more awareness among the people who are the victim of environmental damage. The academicians could play a major role in this regard.
Craig Willis is an associate staff writer. Upon graduation, he started a career in writing college papers and essays and has been providing quality custom essays and term papers. His specialty subject is American history essays
