ENVIRONMENAL JUSTICE : RYLANDS TO MEHTA · Web viewIn Calcutta Tanneries case, again apex court...

WATER POLLUTION AND THE SUPREME COURT : RAW MATERIALS FOR DECISION MAKING

V.S. Mishra*

One of the ill effects of the industrialization and urbanization is the pollution of water having far reaching consequences on the multi-facet uses of water. The issues relating to water pollution have been brought to the notice of the Apex Court in many cases and the Court has been providing much needed relief through judicial decisions. Coming to raw materials used for administration of environmental justice in water pollution cases, generally judicial decisions were based on the affidavits and counter affidavits filed1 by the petitioners and respondents. It may be relevant to note that some of the affidavits were detailed and exhaustive and included all the available materials so as to convince the courts. The public interest litigation filed by the public minded individual/voluntary organization, illustrated this fact2. However in case of truncated, vague and confusing affidavits, the Court devised means to gather facts. The appointment of Committee3(s)/ Commission4(s)/Commissioner5/amicus-curial6 were such means invented by the court to bring all the available material pertaining to the case before the court.

It may not be out of place to say that some of the counter affidavits were also detailed and exhaustive and helped the court to arrive at rational conclusion.7 Further, polluting industries used counter affidavits to assure the court that they were fully conscious of the need to conserve and protect the environment and were prepared to fully cooperate in that behalf. Besides this, the Court also took note of complain made by the polluting industries about inconsistency in counter affidavit filed by regulatory authorities like pollution control board.8

* . Senior Lecturer, Law School, Banaras Hindu University, Varanasi1 . See, for example, the counter affidavit filed by the Polluting Industries,

Ministry of Environment and Forest, Govt. of India, State Government and Rajasthan Pollution Control Board in Indian Council for Enviro Legal Action v. Union of India, AIR 1996 SC 1446; Sec also for affidavit, Vineet Kumar Mathur v. Union of India (1996) 7 SCC 715.

2 . See, for example, the public interest petition filed by Sri M.C. Mehta, the green lawyer; M.C. Mehta v. Union of India AIR 1988 SC 1037; AIR 1988 SC 1115; (1997) 2 SCC 411; Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715.

3 . Sector 14 Resident Welfare Association and other v. State of Delhi (1999) 1 SCC 702.

4 . Indian Council for Enviro-legal Action v. Union of India (1996) 3 SCC 212. 5 . Dr. Ajay Singh Rawat v. Union of India (1995) 3 SCC 266. 6 . Re-Bhavani river-Sugar Shakti Ltd. (1998) 6 SCC 335. 7 . Supra note 1.

30 Ban.L.J.(2002) 131-153

83 THE BANARAS LAW JOURNAL [Vol.31

Since affidavit and counter affidavit consist of a lot of raw materials, the Court only relies on those materials which are relevant and indispensable to decide a case and reject or discard the rest of the raw materials which form part of affidavit and counter affidavit. Hereinafter, an attempt is made to analyse the raw materials which have been used for 'making' a judicial decision. The term 'making' conveys bringing something fresh into being.

For the sake of convenience, the raw materials have been classified further, as under :

1. PRECEDENT : INDIAN AND FOREIGN Coming to the use of precedent as a raw material, it has been

said that in the life of mind as in life elsewhere, there is a tendency toward the reproduction of kind. Every judgment has a generative power. It begets its own image.9 The above statement vividly tells the importance of precedent as a raw material for judicial decision.

In Ganga Pollution case (Municipalities) case10, justice Venkatramiah while referring to his own order in the tanneries case11, used foreign precedent to accord standing to Mr. Mehta who filed this case before the apex court. The court took support from common law and emphasized the duty of municipal corporation to remove nuisance. The court substantiated its arguments by citing an English case which was decided way back in 1953.12

In Calcutta Tanneries case13, again apex court used Indian precedents, specially cases related to water Pollution14 and shifting of industries15 decided by it. In brief, it may be said that the apex court relied heavily on the cases decided by it while deciding the cases pertaining to pollution of river Ganga.

In Bichhri Village case16, Sri M.C. Mehta, learned counsel of the petitioner invited the attention of the apex court towards the

8 . In Indian Council for Enviro-Legal v. Union of India AIR 1996 SC 1446; The apex court found some justification in the contention of the polluting industry that various counter affidavit filed by Rajasthan Pollution Control Board were self contradictory, hence directed the Board to adopt constructive attitude in the matter

9 . Benjamin N. Cardozo, "The Nature of Judicial Process", Second Indian reprint, 21 (1997).

10 . AIR 1988 SC 111511 . See, order dated September 22, 1987 AIR 1988 SC 103712 . AIR 1988 SC 1115, 1126. The said English case was Pride of Derby and

Derbyshire Angling Association v. British Celanise Ltd. (1953) Ch. 149.13 . (1997) 2 SCC 411.14 . Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715. 15 . M.C. Mehta v. Union of India (1996) 4 SCC 351. 16 . Supra note 8.

2002] WATER POLLUTION AND SUPREME COURT : RAW MATERIALS…. 84

Constitutional Bench decision in Oleum Gas Leak case17 and other decision of the apex court to determine the liability of polluting industries. Mr. Mehta also drew the attention of the Court to 'quite a few foreign decisions' as well.18

Sri K.N. Bhat, counsel of polluting industries argued that rule of absolute liability as evolved in Mehta case19 was not accepted in England or other commonwealth countries and the rule evolved by the House of Lords in Rylands v. Fletcher20, was the correct rule to be applied in the matter.

The apex court rejected the contentions of the respondent and pointed out that in view of decision in the Oleum Gas Leak case, this contention was untendable, for the said decision expressly referred to the rule in Rylands but refused to apply it by saying that it was not suited to the conditions in India. The court also cited the majority judgment delivered by Venkatachaliah, in Union Carbide case21 to reject the concurring opinion of justice Rangnath Mishra in Carbide case22, cited by the Mr. Bhat, counsel of the respondent. The court emphasized the fact that three judge Bench had not expressed any opinion on the principle of absolute liability.

Apart from the aforesaid Indian precedents the court also cited foreign precedents. On one hand, it quoted the decision of House of Lord23 which supported the traditional rule in Rylands and on the other hand it cited the decision of Australian High Court24 where majority held that the rule in Rylands having attracted many difficulties, uncertainties and exceptions, should now be seen for the purpose of Australian Common law, as absorbed by the principles of ordinary negligence.

On a consideration of the two lines of thought (one adopted by the English Courts and the other by the Australian High Court), the Supreme Court clearly stated that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country. Further, the court was convinced that the law stated by this court in Oleum Gas Leak case was for the more appropriate one apart from the fact that it was binding on the court. It may be noted that the court disagreed with the view that the law stated in the said decision was obiter.

17 . AIR 1987 SC 108618 . The Supreme Court has not explained or identified those few foreign decisions.19 . Supra note 1720 . 1866 (3) H.L. 330.21 . Union Carbide Corporation v. Union of India AIR 1999 SC 1248, 309 22 . Union Carbide Corporation v. Union of India AIR 199 2 SC 248, 261.23 . Cambridge Water Company v. Eastern Counties Leather, PLC (1994) (2)

W.C.R. 53.24 . Brunic Port Authority v. General Jones Pvt Ltd (1994) 68 Aus Law Journal

331.


It may be mentioned that the absolute liability principle was evolved and deliberated by the four Constitution Bench of the Supreme Court, it would have been better, had the issue could have been settled by a Constitution Bench consisting of seven judges. It may be mentioned that Bichhri Village's case which made this principle as binding law was decided by two Judges Bench.

It is interesting to note that justice B.P. Jeevan Reddy quoted the judgment delivered25 by B.N. Kripal, C.J. of the Gujarat High Court, as he then was, to illustrate the devastating impact of chemical industries. It may be pointed out that B.N. Kripal, J was one of the judge of the apex court constituting the Bench which heard the aforesaid case at the apex court.

It is submitted that this approach raises a fundamental question; will it not reflect that on a particular issue, the judges have 'pre-conceived notion about the subject matter?

It is further submitted that the Supreme Court strongly relied on the submission of the learned counsel of the petitioner pertaining to Indian and foreign precedents. Moreover, it appeared that counsel of respondent failed to impress the court while contradicting the submission of the petitioner, by citing specific foreign precedents.

In Vellore Citizens Welfare Forum case26, the Supreme Court conceded the fact that constitutional and statutory provisions protected a person's right to fresh air, clean water and pollution free environment but the source of the right was the inalienable common law right of clean environment. In the instant case, the court had not cited any specific case law in support of its argument but categorically declared its preference for British common law in following words :

Our legal system having been founded on the British Common Law, the right of a person to pollution free environment is a part of the basic jurisprudence of the land.27

In M.V. Nayudu case28, I, the apex court through Jagannadha Rao, J took cognizance of Indian and foreign precedents. The Court recognized the fact that in the environment field, the uncertainty of scientific opinion has created serious problems for the courts. In regard to different goals of science and law in the ascertainment of truth, the Supreme Court cited the decision of the U.S. Supreme Court in following words :

There is important difference between the quest for truth in the court room and the quest of truth in the laboratory. Scientific conclusions

25 . Parvin Jash Bhai Patel v. State of Gujarat (1995) 2 Guj LR 1210.26 . AIR 1996 SC 271527 . AIR 1996 SC 2715, 2722.28 . (1997) 2 SCC 718


are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.29

It also cited the precedent of New Zealand30 to emphasize that the risk of harm to the environment or to human health was to be decided in public interest, according to a 'reasonable persons' test.

Apart from foreign precedents, the apex court used Indian precedents31 which strongly recommended for the Constitution of a specialized body having a judge of the rank of a High Court judge or a Supreme Court judge, sitting or retired and a scientist or group of scientists of high ranking and experience so as to help a proper and fair adjudication of disputes relating to the environment and pollution.

In M.V. Nayudu case32 II, Jagannadha Rao, J, quoted the decision of the European Court at Starsbourg33, decision of the Philippine Supreme Court34, decision of the Constitutional Court of Columbia35, decision of the Supreme Court of South Africa36 to illustrate the right to healthy environment as a fundamental human right. So far the Indian precedent was concerned, the apex court recalled its earlier judgment and orders in M.V. Nayudu I case.37 Thus, Jagannadha Rao, J, enriched the quality of the judgment by using precedents from various countries as raw materials for producing judgment in the instant case.

It may be noted that a particular trend was also visible at the apex court. Some judges solely relied on Indian precedents in general and decisions of apex court in particular as a raw material for decision making. In S. Jagannath case38, Kuldip Singh J, relied on Indian precedents and used the decisions of the apex court as raw materials for decision making. It is interesting to note that Justice Kuldip Singh used his own judgment of an earlier case as a raw material to produce judgment in the instant case. Does it not create a doubt or suspicion in the mind of litigant that the concerned judge has foreclosed its mind? Will it not reflect that the justice delivered has not been on merit but on pre-conceived notion of a particular judge?

29 . Daubert v. Merrel Dow Pharmaceuticals Inc. (1993) 113 Sct 2786.30 . Ashburton Acclimatisation Society v. Federated Farmers of New Zealand.

(1988) 1 NZLR 78.31 . Oleum Gas Leak case AIR 1987 SC 1086, Vellore case AIR 1996 SC 2715.32 . A.P. Pollution Control Board v. Prof. M.V. Nayudu (2001) 6 SCC 62.33 . Lopez Ostra v. Spain 303-CEur Ct HR (Ser A, P.S.) 1990.34 . Minors Opasa v. Deptt. of Environment and Natural Resources, 33 ILM, 173

(1994).35 . Fundepublico v. Mayor of Bugala Grande (1992) as cited in Supra note 29 at

72.36 . Wildlife Society of Southern Africa Minister of Environmental Affairs and

Tourisn of Republic of South Africa (1996) 9 BCCR 1221 (JK).37 . Supra note 2838 . S. Jagannath v. Union of India (1997) 2 SCC 87.


It may be noted that some judges like Kuldip Singh of the Supreme Court relied more on Indian precedents39 than foreign precedents. This inclination towards Indian precedents was also visible in Bittu Sehgal case40 and Calcutta Tanneries case.41

It may not be out of place to say that similar judicial trend was maintained in Gopi Aqua Farms case42, even after the composition of the Bench had been changed. The apex court clarified its earlier judgment by saying that it was a judgment in rem, and binding on all irrespective of the fact that the affected person or group was a party or not to the proceedings.

In Delhi Water Supply and Sewage Disposal Undertaking case43, Sri K.K. Venugopal appeared before the court as the counsel of the petitioner at the instance of the apex court as the intricate questions of the law were found to be involved.

The learned counsel took pains to bring to court's notice some decisions of the American Courts, that drinking was the most beneficial use of the water and this need was so paramount that it could not be made subservient to any other use of water, like irrigation. So the right to use for domestic purpose would prevail over other needs.44 In the instance case, apex court relied on the submission of the counsel of the petitioner and opined that it found plausibility in the contentions and was inclined to unfold new jurisprudential arena.

It may be noted that aforesaid observation of the apex court revealed the fact that the court wanted to give due weightage to foreign precedents where Indian law was ambiguous.

Understanding the dilemma faced by environmental litigants, the Supreme Court in Kamal Nath case45 ruled that the common law doctrine of 'public trust' was a part of the Indian legal system.46

It also held that this doctrine imposed a definite obligation upon the government to preserve the existing natural resources as they were. The court also referred to its earlier decisions of Vellore Citizens Welfare 39 . Kanpur Tanneries case AIR 1988 SC 1037; Vellore case AIR 1996 SC 2715;

Rural Litigation Entitlement Kendra (1986) Supp. SCC 517.40 . Bitu Sehgal v. Union of India and others (2001) 9 SCC 181, (Kuldip Singh and

Sagir Ahmad decided the case on 31.10.1996); see also, Indian Council for Envio Legal Action v. Union of India (1996) 5 SCC 281 (Kuldip Singh, S. Sagir Ahmad, B.N. Kripal, JJ decided the case).

41 . M.C. Mehta v. Union of India (1997) 2 SCC 411 (Kuldip Singh and Sagir Ahmad decided the case).

42 . Gopi Aqua Forms and others v. Union of India, (1997) 6 SCC 577. (S.C. Sen and S.P. Kurdukar, JJ decided this case)

43 . (1996) 2 SCC 57244 . Id. at 57445 . (1997) 1 SCC 388.46 . Ibid.


Forum47 and Indian Council for Enviro Legal Action48 to fix the liability of polluters for the harm caused to the neighbouring villagers as a result of its activities around the river and for the restitution of the ecology of the area. In the instant case, the apex court reviewed a number of decision of U.S.A. courts, particularly the judgements of the Supreme Court of California in Monolake case.49 It also cited the most celebrated case in American public trust law which was called as loadstar.50 The decision in the instant case signified that in case of resources held by the Government for public use such as parks, water fronts etc the courts would lookupon any Government conduct that converted those resources to public use.

It may be pointed out that the Supreme Court of India made this doctrine a part of our legal system by referring to common law. It also took help of decisions of U.S. federal Supreme Court and State Supreme Court of California, U.S.A.

It is submitted that the apex court should not blindly follow the decisions of U.S. courts but nevertheless, it must be conversant with the techniques used/evolved by the courts in U.S.A. Further, it should mould these techniques to suit the Indian condition and needs.

In Kanoria Industries Ltd case51, the issue before the court was related to claim for refund of money by the which respondents had paid under protest as water cess under the provisions of the Water (Prevention and Control of Pollution) Cess Act, 1977. The petitioners contested the claim before the High court. The High court directed the petitioners to refund the sums realised from the respondents as water cess. Hence, petitioner filed special leave petition before the Supreme Court. The learned counsel for the petitioner strongly relied on a constitution Bench judgment of the apex court in Mafat Lal Industries v. Union of India52 where it was held that petition under Article 226 could not be entertained having regard to legislative intention evidenced by the provisions of the Act. Another decision of the apex court was also cited in support of the submission that a writ petition seeking mandamus for mere refund of money was not maintainable.

Rejecting the claim of petitioner, apex court pointed out that it was one thing to say that the High Court had no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected. It was yet another thing to say that such power

47 . (1996) 5 SCC 64748 . (1996) 3 SCC 21249 . National Audubon Society v. Superior Court of Alpine Country 33 Cal 3d 419.50 . Illinois Central Rail Road Company v. Illionois 146 U.S. 387 (1892).51 . U.P. Pollution Control Board v. Kanoria Industries Ltd. (2001) 2 SCC 549.52 . (1997) 5 SCC 536.


could be exercised sparingly depending upon the facts and circumstances of each case.53

It is interesting to note that petitioner relied on another judgment of apex court which was delivered by S. Rajendra Babu, J. who as member of the Bench, also heard the Kanoria Industries Ltd case. In the instant case, the apex court speaking through Shivraj Patil, J made a distinction between aforesaid cases and pointed out that it could not be said that there were laches on the part of respondents or that they had abandoned their claim for refund.54

The apex court rejected the claim of petitioner that the relief should be denied to the respondents on the basis of delay and laches in approaching the High Court for claiming the refund of water cess paid under protest. The court again took help of one of its judgment delivered in Saraswati Sugar Mill case55, and pointed out that the claims for refund were made by the respondents within a reasonable time after the judgment was rendered by this court in Saraswati Sugar Mill case.56

It may be noted that apex court relied strongly on the submission made by the respondents. The court also accepted the proposition laid down in Saraswati Sugar Mill case that the collection of cess was not authorized by law as entry 15 of the Schedule I of the Act did not cover sugar industry and distillery prior to the amendment of the Schedule. The court refused to interfere with the judgment and order of Allahabad High Court. And dismissed the application of U.P.P.C.B. One can say that the apex court solely used its decisions and decisions of the High Court as raw materials for producing judgment in the instant case.

In Goa Foundation, Goa case57, Goa Foundation filed an appeal against the judgment of Bombay High Court which dismissed the writ petition filed by the appellant regarding construction of hotel on the disputed plot of land situated in coastal regulation zone; an environmentally sensitive area. The apex court used Indian precedents which included the decision of the apex court and Calcutta High Court to decide the case. G.B. Pattanaik, J, speaking for the court, cited a case58

from Calcutta High Court to emphasize the necessity of harmonising two competing interest i.e. Environment and Development. It may be noted that U.C. Banerjee J, decided this case alongwith Pattanaik, J at the apex court. Incidentally U.C. Banerjee J as a single Judge, as he then, was decided the People's Union case at Calcutta High Court. Further, Pattanaik, J quoted the observation of the learned single judge (U.C. Banerjee, J as he then was) to emphasize that :

53 . Id. at 558.54 . Id. at 559.55 . (1992) 1 SCC 41856 . Ibid.57 . (2001) 2 SCC 97.58 . People United for Better Living in Calcutta v. State of W.B. AIR 1993 Cal 215.


'There shall have to be both development and proper environment and as such a balance has to be found out and administrative actions ought to proceed in accordance there with and not dehors the sance.59

The apex court also used its decision in Indian Council for enviro-Legal Action case to substantiate the aforesaid proposition and observed that the 'Courts must scrupulously try to protect the ecology and environment and should shoulder greater responsibility of which the court can have closer awareness and easy monitoring.60 Banerjee, J, Supplementing and concurring with the judgement of Pattanaik J, again quoted his own judgment delivered at Calcutta High Court. It may be noted that Banerjee, J recorded his concurrence with Pattanaik, J and emphasized that harmonisation of the two namely, the issue of ecology and development project.

The aforesaid judicial approach raises certain doubts or misgivings. Is it proper for a Supreme Court judge to quote his own judgment of High Court where he has served as a judge to substantiate his views?

It is interesting to note that in few cases, counsel, for the petitioner like M.C. Mehta, had done their home work seriously and quoted the foreign precedents to substantiate their arguments. In such cases, the apex court had shown its inclination to follow or adopt those foreign precedents as raw materials for delivering judgment/orders. However, it appeared that counsel of respondents had not done their home work seriously in the area of comparative environmental precedents and even in isolated cases where they referred to foreign precedents, failed to impress the apex court.

(ii) LITERATURE : INDIAN AND FOREIGN :The Supreme Court, in the water pollution cases, also took

cognizance of the literature on environment in general and water pollution in particular. For the sake of convenience, it can be categorized under the following subheads :

(a) Books and Articles :

The Supreme Court used Indian and foreign books and articles to rationalise its decision. In Ratlam Municipality case61, Krishna Iyer, J for himself and Chinnappa Reddy handed down a master piece opinion depending mostly on the foreign literature which included book and writing of leading foreign authorities.62

59 . (2001) 2 SCC 97,102.60 . Indian Council for Enviro Legal Action v. Union of India (1996) 5 SCC 281,

298.61 . AIR 1980 SC 162262 . Id. at 1628-1629.


In Ganga Pollution case63, Venkatramiah and K.N. Singh, JJ, extensively used Indian literature including book and the passages from the Will or the 'Testament' of Pt Jawahar Lal Nehru64 K.N. Singh, J gave Indianized flavour to environmental/water justice by paying a long tribute to the "mother Ganga' supported from India's mythology, geography, history culture and civilization.65 It may be pointed out that in most of the Water Pollution cases66, this fragrance of Indian Culture, tradition and heritage was missing. It may be mentioned that Orissa High Court took note of ancient Indian culture while deciding a case related to Water Pollution. In view of these omissions, Prof. Jariwala gave a call to Indian Judiciary not to dissociate with ancient Indian roots, a treasure house of important actions and lessons in the name of modernity.67

In the instant case E.S. Venkatramiah devoted two and half pages of two books written by two Indian authors. The first book explained the effect of water pollution and the other book dealt with nature of problem, benefits of control, urgency of problem pertaining to water pollution. It is interesting to note that in view of aforesaid books and writings brought to the Court's notice, the judges simply assumed that such injuries had occured or were likely to occur. Thus, the apex court dispensed with the need for hard scientific proof on the health effects of the pollution, the damage it caused to riparian property and the manner in which it harmed the livelihood of those living downstreams. One can say that apex court took judicial notice of 'facts' and eased the petitioner's burden.68

It is submitted that this kind of 'judicial notice' of 'facts' may lead to denial of justice to other party or absurd result. For example, the apex court in a case69, decided by Madhy Pradesh High Court reprimanded the High Court that it should have been careful in selecting the materials on which it sought to rely on and that every article published or a book written could not ipso facto be regarded as conclusive or worthy of acceptance.70

63 . AIR 1988 SC 103764 . Id at 104765 . Ibid.66 . Talcher Swasthya Surakshya Parishad v. Chairman-cum-M.D., M.C.L. AIR

1996 Orr. 195, 197, where justice Pasayat cited an article written by a 'learned author, C.M. Jariwala, to emphasize the traditions in ancient India.

67 . C.M. Jariwala, "Environmental Justice : A Journey from Ratlam Municipality to M.C. Mehta", in Nagbooshnam (ed) Environmental Law, Policy and Perspective, 32,37 (1995).

68 . Shyam Divan and Roscucranz, "Environmental Law and Policy in India : Cases Materials and Statutes (2001).

69 . Hasmattullah v. State of M.P. AIR 1996 SC 207670 . Id at 2081. In the instant case, the High Court referred to and relied on number

of articles and books written by different persons in coming to the conclusion that bulls and bullocks were useful animals even if they become old, and slaughter should be banned.


In Dr. Ajay Singh Rawat Case71, the apex court relied on the booklet written by the petitioner pertaining to pollution of lakes in the city of Nanital72. In the instant case, the court not only took judicial notice of the booklet but also constituted a committee to verify the facts mentioned therein. One can say that apex court adopted a balance approach in deciding the aforesaid case. However, in Bichhri Villlage case73, the apex court took note of foreign books and writings on the environmental law which was placed before the court by the counsel of the petitioner.74

In Vellore Citizens Welfare Forum case75, the apex court quoted the book written by Blackstone entitled as commentaries on the law of England to substantiate its decision76 but it is unfortunate that the court ignored the Indian treatise on common law in India.77

It is submitted that the present case law reveals that apex court was using foreign literature which was more than hundred years old. Does it reflect the strong influence and craze for foreign literature which has made the Indian judges, as a matter of habit to quote foreign literature to rationalize their decisions? Does it not reflect that the Indian judges were not upto date with the literature which are pouring every day in the market? In the present information age, one can get instant information on latest development pertaining to any subject or literature from any part of the world. It is desirable that Indian judiciary must use modern means of communication to assimilate latest information and developments in the concerned field to decide a case so the judiciary administer upto date environmental justice and also stand tall with its counter part in other parts of the globe.

In M.V. Nayudu case78, the Supreme Court through justice Jagannadha Rao profusely quoted articles from journals of U.K.79 and U.S.A.80 to highlight the difficulties faced by the environmental courts in dealing with highly technological or scientific data and characterized it as a global phenomenon.

This judicial trend continued in M.V. Nayudu case II, the apex court recalled its observation in Nayudu case I with regard to the need

71 . Dr. Ajay Singh Rawat v. Union of India (1995) 3 SCC 266.72 . Id at 26773 . AIR 1996 SC 144674 . Id at 145875 . AIR 1996 SC 271576 . Id at 2722;77 . M.C. Setalvad, "Common Law in India", (1960) See also Joseph Minattur, "The

Indian Legal System", (1978)78 . A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718-742.79 . See for example, Lord Woolf, "Are the judiciary environmentally Hyopict", the

Journal of Environmental Law, 798-896 (1992)80 . See for example Wyne, "Uncertainity and Environmental learning", 2 Global

Environmental Change, 111 (1992)


for constituting environment court and referred to a published report entitled environment court project published by a research team at the Department of Land and Economy, University of Cambridge, U.K, headed by Prof. Malcoum Grant.81 The said research report was quoted to elaborate the concept of the environment court and the need for Constituting Environment court in the light of experience of other countries. Thus it is evident that the Supreme Court used Indian and foreign books and articles for producing judgments/orders.

It may be pointed that apex court has not mentioned/referred a book82 written by prof. Upendra Baxi while discussing the principle of absolute liability. The said book provide a solid framework on any discussion on principle of absolute liability. Apart from the aforesaid book, one article entitled as Remedies and Remediation : Foundational issues in environmental liability written by Jenny Steel reference could have enriched the discussion on principle of absolute liability.83

(iii) REPORTS :The Court’s ability to handle complex science rich cases has

been called into question, with the allegation that judicial system is increasingly unable to manage scientific and technological issues. The difficulty of interpreting the complex techno-science environmental cases is not a unique phenomenon confined to India alone. This difficulty is also felt in the scientifically advanced countries. Even in the U.S.A., the position is not different. The concern over the problem led the Carnegic Commission of Science and Technology (1993) and the U.S.A. Government to undertake a study of the problem of Science and Technology in Judicial decision making. The position in India is not different from U.S.A. The most complicated problem is of the mass data, complexity of law fact issue, absence of formal legal research to analyse those data and absence of any statistics on similar points relating to environmental pollution.

The Supreme Court frequently relied on the National Environment Engineering Research Institute, Nagpur (NEERI) to visit the affected site, inspect and submit its report to the Court. Apart from the NEERI, the Apex court had also sought expert opinion of leading. Scientific Institutions laboratories, academic institutions including Universities, Central Pollution Control Board and State Pollution Control Board, individual experts, advocate and bureaucrats to decide the issues pertaining to science and technology. Recognizing the role of ‘experts’ and expert bodies or Institutions having specialized knowledge for environment justice delivery system, often, the apex court appointed its

81 . Malcoum Grant, "The use for Environment Court", The Journal of Planning and Environment 453 (2000).

82 . See Introduction to Valiant Victims : Lethal Litigation', P. xxii (1990).83 . Jenny Steele, 'Remedies and Remediation : Foundational Issues in

Environmental Liability, 58 Mordern Law Review (Sep) 615-636 (1995).


own committees/commissions or relied on commission/committees appointed by the Government or allowed the parties to place on record before the court, the report of expert bodies/commission/committees. In most of the cases, the committees had not only assessed the degree o environmental damage involved, but also made recommendation as to appropriate remedial measure. The Judges have normally refrained from considering the technical evidence in court preferring on the whole to validate committees findings with constitutional order. The analysis of environmental cases reveal the fact that the Apex court simply converted the recommendations of the National Environment Engineering Research Institute, Nagpur into a court order.84 In view of the above problems, the Supreme Court in the Oleum Gas Leak85 case advocated for a neutral scientific expert as ‘an essential input to inform judicial decision making”. The Supreme Court deliberately used the word neutral to emphasize the impartiality of such expert so that vested interest don’t prevail on the balancing scales and simply to protect their self-interest. In this connection, it may be relevant to note that in 1986, Dr. Upendra Baxi, suggested to the Chief Justice of India to establish a special cell on Science and Technology in the Supreme Court itself, where scientists would interpret scientific evidence for the judges to enable resolution disputes. He had also suggested a refresher course for atleast appellate judges on problems of science and technology which appear frequently. Unfortunately, these two suggestions have still to receive attention of the Supreme court of India.

(iv) RESOLUTION :In the National Hydroelectric Power Corporation Limited case86,

the Supreme Court found an opportunity to use resolution of Parliament as raw material to produce an order.

In the instant case, issue was related to imposition of cess under the provisions of the water (Prevention and Control of Pollution) Cess Act, 1977 (hereinafter referred as the said Act) on the hydropower generating industry. The bone of contention was the Section 16(2) of the 'said Act'. It required that the notification adding any industry to the Schedule 1 to the Act must fulfill two conditions : one, the notification shall be laid before each House of Parliament; and two, the Central Government shall seek approval of Parliament to the issuance of such notification. In the instant case, the Additional Solicitor General misled the court by saying that the notification was referred to a Parliamentary Committee and as such provisions of Section 16 were complied with. But 84 . S. Jagannath v. Union of India (1997) 2 SCC 87, 126; M.C. Mehta v.

Union of India (1997) 2 SCC 411, 426; Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715, 2720; M.C. Mehta v. Union of India (1997) 3 SCC 715, 718; Goa Foundation, Goa v. Diksha Holdings Pvt. and others (2001) 2 SCC 97, 106.

85 . M.C. Mehta v. Union of India AIR 1987 SC 96586 . Union of India v. National Hydroelectric Corporation Ltd. (2001) 6 SCC 307.


he was exposed by the Additional Director in the Ministry of Environment and Forests who categorically stated in his affidavit that from the record of Parliament, there was nothing to support that a notification as contemplated under section '16(2) had been moved'.87 Moreover, pleadings clearly disclosed that 'no such approval was in fact sought for'.88 The court further pointed out that :

Mere perusal of sub-section (2) shows that there has to be a positive act of approval by Parliament to the issuance of the notification before it can be held that Schedule I has been amended. Merely laying the notification before each House of Parliament is not sufficient compliance within the provisions of Section 16(2).89

Using 'resolution' as raw material, the court concluded that no resolution relating to the notification had been moved in Parliament. If no resolution had been moved, the question of Parliament giving approval did not arise. Though the first step of placing the notification in each House of parliament had been taken, subsequent steps leading to passing of the resolution were not even commenced with the moving of the resolution.90 The court reached to the conclusion that ' realisation of the cess was not in accordance with law.

(v) Debates :Deliberations in Parliament has also been used as raw material

for decision making. In Bichhri Village case91, the apex court took notice of debates in Parliament woes of people living in the vicinity of chemical industrial plant in Udaipur district of Rajasthan. Since toxic untreated waste waters were allowed to flow out freely and because the untreated toxic sludge was thrown in the open and around the complex, the toxic substance had percolated deep into the bowels of the earth polluting the acquifers and the subterranean supply of water. The water in the wells and stream had turned dark and dirty rendering it unfit for human consumption.

It had become unfit for cattle to drink and for irrigating the land. The soil had become polluted rendering it unfit for cultivation, the main stay of villagers. It spreaded disease, death and disaster in village and the surrounding areas. While explaining the impact of pollution caused by chemical industry, the apex court referred to deliberations in parliament. The court emphasized the fact that this sudden degradation of earth and water had an echo in parliament too. It went on to quote an Honb'e Minister who assured the House that 'action was being taken' and lamented the fact that nothing meaningful had been done on the spot.87 . Id. at 31088 . Ibid.89 . Ibid.90 . See also, Ramjee Patel with Manohar S. Marwah v. Nagrik Upbhokta Marg

Darshak Manch and others (2000) 3 SCC 29..91 . AIR 1996 SC 1446


(vi) DICTIONARIES AND ENCYCLOPAEDIA :Foreign dictionaries and encyclopaedia have been used by the

Supreme Court to ascertain the meaning of a word or expression.

In S. Jagannath case92, Mr. Kapil Sibal, counsel of respondents (farmers), relied upon 'Oxford English Dictionary. Mr. Sibal contended that 'water front' means land abetting on the sea, that part of a town which fronts on a body of water. According to him 'foreshore' in terms of the said dictionary means the part of the shore that lies between the high tide and the low tide.

After taking note of the aforesaid definition from Oxford English dictionary, the apex court took help from and Webster's Comprehensive Dictionary, International Edn. in defining the expression, foreshore' which according to court means that part of a shore uncovered at low tide.

In Goa Foundation, Goa case93, U.C. Banerjee, J in his supplementing and concurring judgement took help of foreign dictionaries and Encyclopaedia to define 'Sand' and 'Sand dunes'. He defined, Sand with the help of concise Oxford Dictionary, McGraw-Hill Encyclopaedia of Science and Technology (6th ed), and 'Sand dunes' with the help of the New Encyclopaedia Britanica (Vol. 10).94

Similarly the word 'vegetable' had been defined with the help of Concise Oxford Dictionary, Webster International Dictionary and Encyclopaedia Britannica (Vol. 23) in Saraswati Sugar Mills case.95

If one looks to the judgments of High Court on environmental matters, he will find that a large number of High Courts used Indian literature96 only. However, few High Courts used foreign law dictionaries and encyclopaedia to ascertain the meaning of a word or expression.97

It may be emphasized that the apex court made liberal use of foreign dictionaries and encyclopedia, whereas large number of High Courts relied on Indian literature exclusive of foreign dictionaries and encyclopaedia.

(III) LAW : NATIONAL AND INTERNATIONAL

92 . (1997) 2 SCC 87.93 . Goa Foundation, Goa v. Diksha Holding Pvt. Ltd. (2001) 2 SCC 9794 . Id. at 110-111.95 . M/S Saraswati Sugar Mills v. Haryana State Board.96 . See for example, Centre for Env. Law W.W.F. for Nature v. State of Orissa

AIR 1999 Ori 15.97 . See for example, M.P. Rambabu v. District Forest Officer, AIR 2002 A.P. 256,

Bijajanand Patra v. D.M. Cuttack AIR 2000 Ori. 70.


The Supreme Court used national law and International law to produce a judgment/order. These materials can be further classified as under :

(A) NATIONAL LAW :The materials included under this head are the Constitution of

India, environmental legislations, rules and notifications.

(I) THE CONSTITUTION OF INDIA :The Constitution of India had the largest references wherein the

various Articles dealing with Directive Principles of State Policy, Fundamental Duties, Fundamental Rights were used by the apex court in large number of cases.

It may be noted that Articles 21 and 19(1)(g) were cited frequently, followed by Articles 14, 48A and 51A(g) and other provisions of the Constitution of India.

In Ganga Pollution case98, the apex court recognized the importance of protecting and preserving the 'Wholesomeness' of water and admitted the writ petition under Article 32 without expressly referring to Article 21 of the Constitution. Though in the present case, the apex court had not referred to Article 21 but a microfine reading of the judgment of justice K.N. Singh would show that in the heart of the heart, judges wanted to bring 'right to live in clean environmental within arena of Article 21.

This is supported from observation made by justice K.N. Singh when he said that the 'closure of tanneries may bring unemployment, loss of revenue but life, health and ecology have greater importance to the people'.99 However, in Subhas Kr. case100, justice K.N. Singh expressly referred to Article 21 by saying that 'right to live....includes the right to enjoyment of pollution free water and air for full enjoyment of life.101 This judicial trend continues in most of the water pollution cases decided by the apex court.102

It has been pointed out that liberal interpretation of Article 21 is bound to be the approach of any court interpreting fundamental rights. If a constitution contains fundamental right, any court is found to interpret it liberally.103 However, H.M. Seervai was critical of the above approach

98 . M.C. Mehta v. Union of India AIR 1988 SC 103799 . Id at 1048.100 . AIR 1991 SC 420101 . Id at 424.102 . See for example, Indian Council for Enviro-Legal Action v. Union of India

AIR 1996 SC 1446; Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715, 2721, A.P. Pollution Control Board v. Prof. M.V. Nayudu (2001) 2 SCC 62, 69-70.


and on the necessity of 'extending the rich and ambit of fundamental right.104

It may be noted that another scholar supported the liberal interpretation of Article 21 and observed :

The liberal interpretation of Maneka and other cases may be flawed by a literal and disjunctive interpretation of the articles of the Part III, but is justified under this higher logic which confers on the rights a depth and penumbral ambit giving a noble 'natural law' content to these rights.105

In view of the aforesaid observation, liberal interpretation of Article 21 and its use as raw material in water pollution cases is justified to provide justice t o victims of water pollution.

The scope of Article 142 of the Constitution was also considered in Kamal Nath case106 by the apex court. It was held that the

Plenary powers of this court under Article 142 of the Constitution are inherent in the court and are 'COMPLEMENTARY" to those powers which are specifically conferred on the Court by various statutes. This power exists as a separate and independent basis of jurisdiction apart from the Statutes.

The court further observed that though 'the powers conferred on the court by Article 142, are curative in nature, they can not be construed as powers which authorise the court to ignore the substantive rights of a litigant. The court went on to observe that this power can not be used to supplant substantive law applicable to the case of cause under the consideration of the court. Article 142, even with the width of its amplitude cannot be used to build a new edifice. Where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which can not be achieved directly.107

In view of the above proposition, the court held that pollution fine could not be imposed upon M/S Span Motel without therebeing any trial and without therebeing any finding that M/S Span Motel was guilty under the Act.

103 . T.S. Rama Rao, "Supreme Court and the 'Higher' logic of Fundamental rights" 25 JILI, 193 (1983).

104 . H.M. Seervai, "Constitutional Law of India", Vol. 3 at 1935-1936 (2nd ed, 1979), For Contra Opinion, See also, C.M. Abraham, "Environmental Jurisprudence", 13-36 (1999).

105 . Supra note 102 at 194.106 . M.C. Mehta v. Union of India (2000) 6 SCC 213, 223.107 . Ibid.


It may be recalled that apex court issued a show cause notice to the Span Motel company for imposition of pollution fine in its previous judgment108 pertaining to the aforesaid case.

It may be pointed out that the apex court reiterated its proposition regarding Article 142 in E.S.P. Raja Ram v. Union of India109 by a five-judge Constitution Bench that the exercise of power under Article 142 of the Constitution can not be pressed into aid in a situation under it would amount to contravention of the specific provisions of a Statute.110

It has been pointed out that complete justice provision can be invoked for procedural purposes only. Article 142 does not confer substantive power on the Supreme Court to do "complete justice".

It is submitted that the decision rendered in Kamal Nath111, and E.S.P. Rajaram112 reflect the correct position in law and the contra view taken in Delhi judicial113 Services Association, UCC114 and Re V.C. Misra115 is not correct.

Dr. R. Prakash also supports the aforesaid contention by saying that Article 142 is an Article which deals with procedural aspects and the two words "complete justice' can not enlarge the scope of the Article. In Construing the expression, Complete justice", the Scheme of the Article should be looked into. It is not right to construe words in a vaccum and then insert the meaning into an Article.116

(b) Environmental Legislations Rules and Notifications :Apart from the Constitution of India, environmental legislations

got the attention of the court most. The environmental legislations which had been cited frequently were the Water Act, 1974, Water Cess Act, 1977 and Environment (Protection) Act, 1986. It may not be out of place to say that Air Act, 1981 was referred to indirectly in some water pollution cases.117 The apex court also referred to the Water Rules, 1975, the Water Cess Rules, 1978, the Environmental (Protection) Rules, 1986. 108 . M.C. Mehta v. Kamal Nath (1997) 1 SCC 388; See also Subsequent judgment

pertaining the same issue, M.C. Mehta v. Kamal Nath AIR 2002 SC 1515, 1519.109 . (2001) 2 SCC 186110 . Id. at p. 195.111 . (2000) 6 SCC 213.112 . (2000) 2 SCC 186.113 . (1991) 4 SCC 406114 . Union Carbide Corporation v. Union of India (1991) 4 SCC 584, See also,

Maniyeri Madhavan v. Sub Inspector of Police (1994) 1 SCC 536115 . (1995) 2 SCC 584.116 . R. Prakash, "Complete Justice under Article 142", (2001) 7 SCC J, 14-20, See

also, Mora Simha Murthy, "Article 142, - A charter for judicial absolutism?", The Lawyers Collective Vol. 10. No. 4, 21-22, (1995). For contra opinion, see, Indira Jai Sing, "A profession on Trial", The Lawyers Collective Vol. 10, NO. 4, 23 (1995).

117 . Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715, 2721.


Further, the Hazardous Wastes (Management and Handling) Rules, 1989, the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989, the Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996 and host of other Rules and Notifications were cited in some water pollution cases. This trend was visible in Kamal Nath case.118

In Ganga Pollution case119, the apex court began with the history of the Water Act, 1974, definition of various terms under the Act, authorities under the Act and their powers and functions. Thus the apex court used primary sources as well as secondary sources for making a decision.120

In Vellore case, the apex court devoted more than two and half pages to explain the statement of objects and reasons to the Environment Act, 1986, important provisions and Rules under the said Act.121

In M.V. Nayudu case122, the apex court took notice of notifications issued under the Environment (Protection) Act, 1986123 and other environmental legislations. In Bittu Sehgal case124, direction was sought from the Court pertaining to Dahanu Taluka, State of Maharashtra, which was declared by the Central Government as an ecologically-fragile area by the notification dated 20.6.1991. In the instant case, the apex court took cognizance of the notification issued by the Government of India, dated 19.2.1991 in exercise of the powers under Section 3(1) and sub-section 3(2)(v) of the Environment (Protection) Act, 1986, declaring coastal stretches as coastal Regulations Zone (CRZ). The court conceded the fact that the notification was self contained and cited its own decision in Indian Council for Enviro Legal Action125 to clarify that the notification was made operative by this court in the aforesaid case. One can say that use of notification as a raw material has helped the court to arrive at rational conclusion.

118 . See, for example, M.C. Mehta v. Kamal Nath 2000 (5) SCALE 69,73; S. Jagannath v. Union of India (1997) 2 SCC 87.

119 . Ibid.120 . See generally, M.C. Mehta v. Union of India (1997) 2 SCC 411, 428-429;

Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715, 2722.121 . Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715, 2722-

2724.122 . A.P. Pollution Central Board v. M.V. Nayudu (1999) 2 SCC 718123 . The Ministry of Environment and Forests, Government of India, Vide its

notifications dated September 27, 1988 included "Vegetable oil including solved extracted oil under the "RED" hazardous category. Further, the Ministry put such category under "RED" for the Doon Valley Vide its notifications dated Feb 1, 1989.

124 . Bittu Sehgal v. Union of India, (2001) 9 SCC 182, 183, See also, Union of India v. National Hydro Electric Power Corporation Ltd. (2001) 6 SCC 307.

125 . Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281;


C. Municipal Laws and Other Laws :The apex court took cognizance of municipal laws and other

laws as 'raw materials' for 'decision making'. The other laws included factory laws, industrial laws, procedural laws, Fisheries Act, 1897. The Indian Forest Act, 1927, the Forest Act, 1980 the Wildlife (Protection), 1972.

In Ratlam Municipality case126, the apex court took help of section 133 of the Criminal Procedure Code to activise the public duty of the Municipality under Section 23 of M.P. Municipal Act, 1961. The court also cited section 188 of Indian Penal Code to remind the municipal authorities to perform their statutory duties.

In Ganga Pollution (Municipalities case) case127, the apex court devoted more than two and half pages to describe in detail the provisions of U.P. Nagar Mahapalika Adhiniyam, 1959 and the U.P. Water Supply and Sewage Act, 1975.128

Similarly in the Vellore Citizens Welfare Forum case129, the apex court quoted the provisions of Madras District Municipality Act, 1920 to remind the Municipalities to perform their statutory duties. In the instant case, there were large number of tanneries, exceeding more than 900, emitting untreated trade effluent into agricultural fields, road sides, water ways and open lands, thus polluting these objects badly. To all this, it was stated that the Municipality remained a silent 'spectator' for more than 10 years. This according to the court, was probably due to the fact that 'it does not want to antagonize the highly influential and stupendously rich tanners.

Thus we found that Municipal laws were used as raw materials but the court ignored/these 'laws' while writing the operative part of the judgment/order. Does it not show the non-concerned attitude of the court towards the omission or commission of the local authorities?

In S. Jagannath case130, the apex court referred to Fisheries Act, 1897, Wild Life (Protection) Act, 1972 and the Forest Conservation Act, 1980 and pointed out that they contained useful provisions for environment protection and pollution control. The court lamented the fact that authorities responsible for implementation of various statutory provisions were wholly remiss in performance of their duties under the said provisions.

126 . Ratlam Municipality v. Vardichand AIR 1980 SC 1622.127 . M.C. Mehta v. Union of India AIR 1988 SC 1115.128 . Id at 1118-1119.129 . AIR 1996 SC 2715130 . S. Jagannath v. Union of India (1997) 2 SCC 87; See also M.C. Mehta v.

Kamal Nath 2000(5) SCALE, 69, 73.


It may be pointed that though the apex court had referred to the aforesaid 'other laws' which included forest laws, Wild Life (Protection) Act, 1972 but it ignored the provisions of the 'other laws' as raw materials in writing the operative part of the judgment/order.

(B) INTERNATIONAL LAW :Coming to International Law, the apex court focussed its

attention mostly on Stockholm and Rio Conferences, basic of International Environmental Law in most of the water pollution cases. In Ganga Pollution (Kanpur Tanneries) Case131, the apex court took notice of development at International level. The court devoted almost two pages for Stockholm Declaration on Human Environment and Development.132 Besides this, it also used customary international law principles, various reports of U.N.O and their allied organization, text of the European Economic Community. Further, the court culled out the passages from the document, like 'Caring for the Earth', prepared by the World Conservation Union and United Nations Environment Programme in Association with World Wide Fund for Nature133 and from the report of International Law Commission.134

In Bichhri Village Case135, the apex court used customary international law principles and Fourth Action Programme of European Economic Community and Article 130-R(2) of European Act of 1986 to produce the judgment/orders.

In Vellore Citizens Welfare Forum case136, the apex court took cognizance of developments at international level. While emphasizing the concept of 'sustainable development', it quoted Stockholm Declaration (1972), Brundtland report (1991) and documents entitled as 'caring for the Earth', Rio Conference and Agenda 21 'of the Conference (1992). The court adopted customary International Law principles like polluter pays and precautionary principle as a part and parcel of Indian Environmental Law.137

In Bittu Sehgal case138, M.C. Mehta, learned counsel for the petitioner, invited the attention of the apex court to various paragraphs relating to the protection of Oceans, all kinds of seas, from Agend 21 adopted by Rio Conference. He also referred to the report by the Department of Ocean Development, Government of India, regarding the status of marine pollution in coastal offshore water in India. It was further

131 . M.C. Mehta v. Union of India, AIR 1988 SC 1037.132 . Id at 1038-40.133 . Supra note 1 at 2720134 . A.P. Pollution Control Board v. M.V. Nayudu (1999) 2 SCC 718, 736.135 . Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.136 . Supra note 1137 . Id at 2721-22. See also M.C. Mehta v. Kamal Nath (2000) 6 SCC 213, 220.138 . Bittu Sehgal and another v. Union of India (2001) 9 SCC 181.


pointed out that 'the guidelines given in Agenda 21 and the report of Department of Ocean Development have to be considered by the State Governments while protecting the area declared by the Government of India as ecologically fragile areas.139

It one looks to the judgment in the instanct case he will find that the apex court conceded the point raised by counsel of the petitioner, Mr. M.C. Mehta.140

ConclusionThe Supreme Court extensively/widely used Indian case laws in

most of the water pollution cases. There were also cases where apex court referred to its earlier judgment and orders. In some cases, the Court looked to the English141 and American cases.142 However, only in few cases, the judiciary looked beyond these countries and referred to the cases of Australia143 and Newzealand.

It is submitted that apart from the lawyers of the Supreme Court and High Courts, the judges of the Supreme Court must be exposed to the comparative environmental precedents by organizing refresher course/workshop.

The perusal of the aforesaid cases reveal the fact that in case of comparative literature, the U.K. and U.S.A. materials were cited most. It may be noted that in few cases, the Supreme Court took note of Indian literature, however, the foreign books and articles dominated the field. Jagannadha Rao, J cited maximum number of articles from the U.K. and U.S.A. K.N. Singh and E.S. Venkatramiah JJ, relied on ancient Indian literature and books written by Indian authors. One can find that even in the case of comparative literature, the Supreme Court was using materials which were 10-12 years old. It is imperative for the Indian judiciary to keep track with the latest developments so as to keep pace with fast developing world.

The court exposed the maneuvering of higher official of the government by using 'resolution' as raw material and brought on record the utter disregard of law by the Governmental official.

The Supreme Court relied more on foreign dictionaries and encyclopaedia than Indian literature. It seems that by using foreign dictionaries and encyclopaedia, the judges wanted to rationalize their conclusions which has become a habit or a judicial fashion.

139 . Id at 183.140 . Supra note at 196141 . Surpa note 22. 142 . Supra note 41 143 . Supra note 28 Some high courts have referred foreign precedents on other

environmental matters which are not connected with water pollution.


In this connection, it is relevant to note that Articles 47, 48-A, 51A(g) alongwith Article 21 were used by the Supreme Court in water pollution cases144 what Abraham called as 'India's new public law rationale as a basic legal ideology which was most relevant for the current legal development for the protection of environment.145

It is submitted that the Supreme Court has used the Constitution of India as a source of reservoir for imparting environmental justice in India. It is evident from the fact that the apex court used extraordinary remedial power under Article 32 of the Constitution which contributed immensely in the evolution of the new Constitutional national.

The history of legislations was also used as raw materials for decision making.146 It is submitted that the detailed discussion of provisions and Rules of relevant Act makes the judgment unnecessary long and monotonous. It may be pointed out that it has become judicial habit or fashion to cite all environmental legislations and rules while deciding a case pertaining to environmental/water pollution. However, indoing so, the judiciary, unwittingly indulged in padding of unnecessary materials in the judgment. It is desirable that judiciary should make use of relevant materials while deciding a case relating to water/environmental pollution.

It is submitted that use of International Conventions and Customary Principles of International Law as raw materials helped the court to rationalise its conclusion. It is further submitted that many of the international conventions and principles which have been incorporated into domestic law by the courts are extremely general in nature and uncertain in the precise scope of the legal obligations involved. What matters most is how the courts interpret these principles, and how they are implemented in practice.

144 . Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715, 2721; M.C. Mehta v. Union of India (1997) 3 SCC 715, 720; Bittu Sehgal and another v. Union of India (2001) 9 SCC 181, 194, M.C. Mehta v. Union of India (2000) 6 SCC 213, 218-219.

145 . C.M. Abraham, "Environmental Jurisprudence in India", 22, (1999)146 . M.C. Mehta v. Union of India AIR 1988 SC 1037; See also, Indian Council for

Enviro-Legal Action v. Union of India, AIR 1996 SC 1446

ENVIRONMENAL JUSTICE : RYLANDS TO MEHTA · Web viewIn Calcutta Tanneries case, again apex court...

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