Environmental risk regulation and the Indian Supreme Court: an exercise in de-formalization of the law?

Abstract

The Supreme Court of India has become a prolific positive legislator through the interpretation of Constitutional values and principles. Environmental rights and obligations has been one area in which the Supreme Court has been actively engaging in building rights-based jurisprudence ensuring the protection of environment and health. However, environmental risks emanating from technological intervention has been an area in which the Supreme Court has only intervened reluctantly by relying on individual technical experts, who assume the role of amicus curiae. Reliance on technical experts reflects a move away from democratic legitimacy that Max Weber had underlined as intrinsic to the formal character of law. The Supreme Court’s reluctance to intervene on issues of technology regulation is not surprising given that technological development is subsumed within a strong political narrative of national development and by implication for determining policy which is the domain of the executive. Interestingly, the Court has demonstrated no such reluctance in other areas – such as in addressing environmental risks from forest degradation (Godavarman case). It has shown scant regard for executive turf. Are there then two parallel narratives that exist? A closer inspection reveals that both these are expressions of the same macro narrative, that of narrowing of forms of participation and legitimate spaces for the participation of the public in the policy discourse on environmental risk regulation. This narrative is explored through three ongoing cases in the Supreme Court (T.N. Godavarman Thirumulpad v. Union of India; Aruna Rodrigues & Ors. v. Union Of India & Ors. and G. Sundarrajan v. Union of India & Ors.).

Keywords:

• risk assessment
• regulation
• case law
• India
• Supreme Court
• environment
• public participation

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Corrigendum

Acknowledgements

I would like to gratefully acknowledge comments received from M.P. Singh, Dick Ruiter, Videh Upadhyay and M.P. Ram Mohan on earlier versions of the paper.

Notes

This version has been corrected. Please see Corrigendum (http://dx.doi.org/10.1080/13669877.2013.857883)

1. Ministry of Environment and Forests, Environment Impact Assessment Notification, S.O. 60 (E), dated 27/01/1994.

2. Ganga action plan – CNG – GMO, etc.

3. This phrase ‘deference to defiance’ is inspired from James M. Lindsay’s usage of the term in the article: ‘Deference and Defiance: The Shifting Rhythms of Executive-Legislative Relations in Foreign Policy’; Presidential Studies Quarterly 33, No. 3 (September 2003) 530–546.

4. There were some exceptions – notably that of the right to property.

5. AIR 1950 SC 27. Paragraph 113.

6. AIR 1967 SC 1643.

7. AIR 1976 SC 1465.

8. AIR 1978 SC 597.

9. Article 19 (1) of the Constitution of India, recognizes the citizen’s right to freedom of expression and article 19(2) circumscribes this right by laying down certain reasonable restrictions. Article 21 provides for protection of life and personal liberty.

10. Sunil Batra v. Delhi Administration, AIR 1980 SC 1579.

11. Hussainara Khatoon v. Bihar, AIR 1979 SC 1360.

12. Bandhua MuktiMorcha v. India, AIR 1984 SC 802.

13. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; Sodan Singh v. New Delhi Municipal Corporation, (1998) 2 SCC 727, 743.

14. K. C. Malhotra v. M. P., AIR 1994 M.P. 48.

15. Shivsagar Tiwari v. Union of India, (1996) 6 SCC 558.

16. A.P. Pollution Control Board v. Prof. M.V. Nayadu 2000 SCALE 354.

17. Ishwar Singh v. State, AIR 1996 P&H 30.

18. Krishna Gopal v. State of M.P. 1986 Cr.L.J. 396 (M.P.).

19. Vellore Citizens’ Welfare Forum v. Union of India (1996) 5 SCC 647.

20. The Majra Singh v. Indian Oil Corporation, AIR 1999 J & K 81.

21. Glanrock Estate (P) Ltd. v. The State of Tamil Nadu (2011(8) SCALE 583).

22. AIR 1988 SC 2187.

23. AIR 1987 SC 374.

24. 1997 2 SCC 87.

25. See note 16.

26. 2001 AIR 184.

27. In framing the problem as such the Court relied on two earlier judgments: People United for Better Living in Calcutta Public and another vs. State of West Bengal and Ors. AIR 1993 CALCUTTA 215; and Indian Council for Enviro-Legal Action vs. Union of India and Ors. 1996 (5) SCC, 281.

28. Quoting Lord Diplock in Council of Civil Service Unions (CCSU) v. Minister for the Civil Service [1984] 3 All ER 935; in Tata Cellular v. Union of India (1994) 6 SCC 651).

29. Heinz India Pvt. Ltd v. State of U.P. (2012) AIR SCW 2059; Reiteration of jurisprudence in State of Punjab v. Gurdial Singh (1980) 2 SCC 471.

30. (1991) AIR SCW 1760.

31. Union of India v. S.B. Vohra, (2004) 2 SCC 150.

32. (2012) AIR SCW 1670.

33. Two examples of this are MK Balakrishnan v. Union of India and others, WP (civil) No. 230 of 2001, Order dated 26th March 2009 and M.C. Mehta v. Union of India, W.P. (C) No. 13029 of 1985 (with W.P. No. 939 of 1996) Order dated 28/07/1998. In the former case the Court ordered the setting up of a Technology Mission headed by the guidance of the Secretary, Department of Science and Technology, Government of India to provide technological solutions to the problem of water scarcity in India. Similarly in the latter case the Court took up one of the recommendations of the Bhure Lal Committee and ordered that all public transport in Delhi from a specific deadline should only ply on CNG (compressed natural gas) fuel in order to bring down vehicular pollution levels.

34. 1992 AIR 920.

35. Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors. 2009 (12) SCALE 474.

36. See Maria Margarida Sequeria Fernandes and Ors v. Erasmo Jack de Seuqria (2012 AIR SCW 2162) where the Supreme Court discusses the role of the judge not to act as a neutral umpire during the trial but to play an active role in establishing the truth. This is akin to a more inquisitorial role that judges in the civil law system play in contrast to the role played by judges in common law countries.

37. 2012 AIR SCW 3340.

38. ITEM NO.53 COURT NO.12 SECTION PIL; Supreme Court of India; Dated: 09/11/2012.

39. Civil Appeal No. 4440 of 2013.

40. Reference may be made to the judgments of this Court in State of Bihar v. Asis Kumar Mukherjee (Dr.) (1975) 3 SCC 602, Dalpat Abasaheb Solunke v. B. S. Mahajan (1990) 1 SCC 305, Central Areca Nut & Cocoa Marketing & Processing Coop. Ltd. v. State of Karnataka (1997) 8 SCC 31, Dental Council of India v. Subharti K. K. B. Charitable Trust & Another (2001) 5 SCC 486, Basavaiah (Dr.) v. Dr. H. L. Ramesh (2010) 8 SCC 372 and Avishek Goenka v. Union of India (2012) 5 SCC 275 and University of Mysore v. C. D. Govinda Rao AIR 1965 SC 491.

41. NDTV, “Top Scientists Express Safety Concerns over Kudankulam Nuclear Plant”, News report, Accessed May 14, 2013. http://www.ndtv.com/article/india/top-scientists-express-safety-concerns-over-kudankulam-nuclear-plant-366949?pfrom=home-health.

42. Writ Petition (C) No. 202 OF 1995.

43. Another case in which the Court explored this remedy was Union of India & Ors v. Sushil Kumar Modi & Ors [1997] INSC 68.

44. I.A. No. 502.

45. See order dated 23.11.2001.

46. Circular No. 13-1/90-FP of Government of India, Ministry of Environment & Forests, Department of Environment, Forests & Wildlife dated 18.9. 90 addressed to the Secretaries of Forest Departments of all States/Union Territories. The six circulars under this were: (1) FP (1) Review of encroachments on forest land (2) FP (2) Review of disputed claims over forest land, arising out of forest settlement (3) FP (3) Disputes regarding pattas/ leases/ grants involving forest land (4) FP (4) Elimination of intermediaries and payment of fair wages to the labourers on forestry works (5) FP (5) Conversion of forest villages into revenue villages and settlement of other old habitations (6) FP (6) Payment of compensation for loss of life and property due to predation/ depravation by wild animals.

47. Ministry of Environment and Forests, File No.1-1/CEC/SC/2002; Dated: 3.6.2002.

48. Ministry of Environment and Forests, File No. 13-1/2009 – CAMPA; Dated: 13.8.2009.

49. I.A. Nos. 826,859, order dated 01.08.2003.