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Environmental Jurisprudence: “Role of Public Interest

Litigation”

1. Introduction

o Jurisprudence

o Environmental law

o Public Interest Litigation

2. Research and methodology

o Judicial Review as basic structure

o Introduction the Nation of ‘Due Process’

o The Emergency

o Executive Interface in Judicial Appointments

o Reports on Legal Aid

o Post-Emergency Period

3. Legislative Efforts(Facts of PIL)

o Access and Standing

o Relaxation of Procedural Requirements

o Appointment of Commission(er)s

o PIL Petitioners and Amicus Curiae

o Non-adversarial

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4. Judicial Efforts

o Human Rights

o The Judiciary

o Environment

o Public Accountability

o Issues and Controversies

5. Conclusion.

1. Introduction

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Jurisprudence

Jurisprudence is the theory and philosophy of law. Scholars of

jurisprudence, or legal theorists (including legal philosophers and
social theorists of law), hope to obtain a deeper understanding of the
nature of law, of legal reasoning, legal systems and of legal
institutions. Modern jurisprudence began in the 18th century and was
focused on the first principles of the natural law, civil law, and the law
of nations.[1] General jurisprudence can be broken into categories both
by the types of questions scholars seek to address and by the theories
of jurisprudence, or schools of thought, regarding how those questions
are best to be answered. Contemporary philosophy of law, which
deals with general jurisprudence, addresses problems in two rough
groups:[2]

• 1.) Problems internal to law and legal systems as such.

• 2.) Problems of law as a particular social institution as it relates
to the larger political and social situation in which it exists.

Answers to these questions come from four primary schools of

thought in general jurisprudence:[2]

• Natural law is the idea that there are rational objective limits to
the power of legislative rulers. The foundations of law are
accessible through human reason and it is from these laws of
nature that human created laws gain whatever force they have.[2]
• Legal Positivism, by contrast to natural law, holds that there is
no necessary connection between law and morality and that the
force of law comes from some basic social facts although
positivists differ on what those facts are.[3]
• Legal Realism is a third theory of jurisprudence which argues
that the real world practice of law is what determines what law
is; the law has the force that it does because of what legislators,
judges, and executives do with it. Similar approaches have been
developed in many different ways in Sociology of law.
• Critical Legal Studies is a younger theory of jurisprudence
that has developed since the 1970s which is primarily a

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negative thesis that the law is largely contradictory and can be

best analyzed as an expression of the policy goals of the
dominant social group.[4]

Also of note is the work of the contemporary Philosopher of Law

Ronald Dworkin who has advocated a constructivist theory of
jurisprudence that can be characterized as a middle path between
natural law theories and positivist theories of general jurisprudence.[5]

The English term is based on the Latin word jurisprudentia: juris is

the genitive form of jus meaning "law", and prudentia means
"knowledge". The word is first attested in English in 1628,[6] at a time
when the word prudence had the now obsolete meaning of
"knowledge of or skill in a matter". The word may have come via the
French jurisprudence, which is attested earlier.

Environmental Laws

In the Constitution of India it is clearly stated that it is the duty of the

state to 'protect and improve the environment and to safeguard
the forests and wildlife of the country'. It imposes a duty on every
citizen ‘to protect and improve the natural environment including
forests, lakes rivers and wildlife’. Reference to the environment
has also been made in the Directive Principles of State Policy as well
as the Fundamental Rights.The Department of Environment was
established in India in 1980 to ensure a healthy environment for the
country. This later became the Ministry of Environment and Forests in
1985.

The constitutional provisions are backed by a number of laws, acts,

rules and notifications. The Environment Protection Act of
1986(EPA) came into force soon after the Bhopal Gas Tragedy and is
considered an umbrella legislation as it fills many gaps in the existing
laws. Thereafter a large number of laws came into existence as the
problems began arising e.g. Handling and Management of Hazardous
Waste Rules in 1989.

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Environment Protection Law

The Environment protection Act provides for protection and

improvement of environment and for matters connected therewith.

The United Nations conference on human environment, held in

Stockholm in June 1972, proclaimed that " Man is both creator and
molder of his environment, which gives him physical sustenance and
affords him the opportunity for intellectual, moral, social and spiritual
growth. In the long and tortuous evolution of the human race on this
planet a stage has reached when through the rapid acceleration of
science and technology man has acquired the power to transform his
environment in countless ways and on unprecedented scale. Both
aspects of man's environment, the natural and man made are essential
to his well being and to the enjoyment of basic human rights even the
right to life itself.

"Environment" includes water, air, and land and the interrelationship

that exists among and between water, air and land and human beings,
other living creatures, plants, micro-organism and property.

"Environmental Pollutant" means any solid, liquid or gaseous

substance present in such concentration as may be, or tend to be
injurious to environment.

"Hazardous Substance" means any substance or preparation which,

by reasons of its chemical or physico-chemical properties or handling,
is liable to cause harm to human beings, other living creatures, plants,
micro-organism, property or environment.

Environmental pollution means imbalance in environment. The

materials or substances when after mixing in air, water or land alters
their properties in such manner, that the very use of all or any of the
air water and land by man and any other living organism becomes
lethal and dangerous for health.

Public Interest Litigation:

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In a system in which policy-makers and law-enforcers are perceived

as apathetic, if not corrupt, and politicians are perceived as
opportunistic demagogues rather than as visionary leaders, the
Supreme Court of India has assumed the mantle of a ‘Supreme Court
for Indians’1 and a ‘last resort for the oppressed and bewildered’.2 In
the past three decades, the Court3 has opened its doors to public-
spirited citizens,4 expanded the frontiers of fundamental rights,5 and
even ‘rewritten parts of the Constitution’.6 The Court has transformed
itself, through the exercise of its public interest jurisdiction, into an
arena in which political, social and economic battles are fought, and
socio-economic justice is delivered.7

The power of public interest litigation (PIL) in India lies in its

freedom from the constraints of traditional judicial proceedings. PILs
in India have come to be characterised by a collaborative approach,
procedural flexibility, judicially supervised interim orders and
forward-looking relief. Judges in their activist avatar reach out to
numerous parties and stake-holders, form fact-finding, monitoring or
policy-evolution committees, and arrive at constructive solutions to
the problems flagged for their attention by public-spirited citizens.
Judges have tremendous power, in particular in PILs, to design
innovative solutions, direct policy changes, catalyse law-making,
reprimand officials and enforce orders. And, they are not hesitant to
exercise this power in what they perceive as the public interest. Where
there is a perceived ‘vacuum in governance, the Court rushes to fill
it’.8

Although Justice Bhagwati, the doyen of the activist judges in the late
1970s and early 1980s, developed public interest jurisdiction for the
benefit of persons who by virtue of their ‘socially or economically
disadvantaged position are unable to approach the court for relief,’9 in
the last 15 years the judicial gaze has zeroed in on …

Public Interest Litigation is not defined in any statute or act. It has

been interpreted by judges to consider the intent of public at large.
Although, the main and only focus of such litigation is only `Public

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Interest' there are various areas where a Public Interest Litigation can
be filed

2. Research and methodology

(I) Judicial Review as basic structure:

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