Politely but firmly, the man in line to be the next chief justice of India has indicated that the debate over judicial activism on environmental issues is misguided, because protecting the environment is the court’s constitutional duty. At an international conference over the weekend, Justice T.S. Thakur of the Supreme Court spoke plainly in response to power minister Piyush Goyal’s perception that on certain green issues, “judicial overreach and sensationalisation” were problematic. The minister later clarified that the courts and the government were on the same team. But since it has been fashionable to accuse the courts of green activism — it is often a thread in a dodgy discourse in which public concerns are depicted as anti-development — a reminder of the real role played by the judiciary was in order.
Indeed, the courts entertained green causes not because of a desire to infringe on the government’s territory, but to protect the right to life. The judiciary stepped into the breach since the government was remarkably uncaring about several life and death issues, including environmental problems like industrial pollution and the loss of tree cover. The courts did not just wade in. They were petitioned by activist lawyers like M.C. Mehta, who filed public interest litigation against industry and the government, which became the nucleus of Indian green law. For instance, the basis of the “polluter pays” principle can be traced to the landmark case concerning Bichhri in Rajasthan, where groundwater and wells were poisoned by industrial effluents. In another landmark order, in 1992, in the midst of a construction boom in Delhi, the Supreme Court banished a couple of hundred stone crushing units from the heavily polluted city to neighbouring Haryana. The dramatic deterioration in the capital’s air quality was slowed as levels of suspended particulate matter fell. In the mid-Nineties, when a boom in automobile traffic darkened the capital’s skies, the court stepped in again with directions to promote CNG.
The government should pay heed to Justice Thakur because 20 years on, this process is still in court. Earlier this month, Justices R.S. Endlaw and G. Rohini of the Delhi High Court agreed to hear a petition seeking directions to the Centre to contain the capital’s air pollution. The PIL is modern in scope, citing threats to tourism, trade and commerce and the (monetisable) image of the capital. But finally, it is about the very concern that drove the trend towards public interest litigation in the Eighties — the right to life and liberty. While that is under threat, the courts must remain vigilant, even as they maintain a judicious balance to negate charges of overreach and activism.