Recently, I have watched a film named “Section 375”. In that time there was a monologue that “Law and Justice are not same, law is a tool to sometimes get the justice”. Now, I think this monologue actually gives a perfect essence to the term Judicial activism which is coined by Arthur Schlesinger Jr., and it means that sometimes for the sake of people, courts can and should go beyond statutes, laws and try to help the public in order to provide justice.
In Environmental litigation, “Judicial Activism” really implies the uneasiness of courts to discover suitable remedies for natural ailments. At the worldwide level, the option to live is currently perceived as a fundamental right to a domain sufficient for the wellbeing and being of people.
With regards to such advancements in the global situations, the judicial choices in India are especially worth assessment. Justice V.R. Krishna Iyer held in Ratlam Region versus Vardhichand, (AIR 1980 SC 1622) that “the human rights requiring the unpolluted condition must be executed regardless of money related requirements. The open annoyance on account of poisons is a test to the social justice segment of the standard of law.”
Which means- Prior, in England, there were sorts of courts, to be specific: Equity Courts (Court of Chancery) and Common Law Courts. Equity courts used to choose cases applying the standards of equity for example justice, equity and heart.
While the common law courts used to choose cases based on common law for example the standards/rules advanced by the appointed authorities during judicial declarations. Consequently, the common law is otherwise called the “Judge-made law”.
The courts of Equity/Chancery assumed a critical job in defining the guidelines of law. The common law started in England had spread to English Provinces including India. In India, practically all laws are started from English Common Law.
Without alleviation in specific cases because of the faulty technique, the courts of equity or chancery structure new guidelines. The new principles figured to settle the clashing, questions are designated “Judicial Activism”. The equity courts and common law courts were converged with the death of the Judicature Demonstration, 1875.
Judicial Activism in India
The noteworthy element of the Indian Constitution is incomplete division of forces. The regulation of partition of forces was propounded by the French law specialist, Montesquieu. It is mostly in India since the official forces are vested in the official (President), administrative forces in the parliament and the judicial forces in the Supreme Court and the subordinate courts.
The standard of partition of forces in India is straightforward. The three organs of the Government viz. the Official, the Lawmaking body and the Legal executive are not autonomously free, but rather between conditionally autonomous.
The official infringes upon judicial force while naming the appointed authorities of Supreme Court and the High Courts. Thus, the Legal executive, by its audit power inspects the law passed by the governing body/parliament and the council additionally in regard of denunciation of the President.
Under article 32 and 226 of Indian constitution, the idea of judicial activism can be seen as in both of them we can file PILs. The Environment contaminations which are at the present worldwide consuming issue were acquired to the light 40 years back.
The Supreme Court assumed a vital job in figuring a few standards in ecological contamination cases. For example, the guideline of “outright risk” as propounded in Oleum Gas Release case, Open Trust Regulation in Kamalnath Case (1998 1 SCC 388) and so on.
Further, the Supreme Court is forcing most extreme obligation on the industrialists answerable for natural contamination applying the polluter pays standard. The court likewise developed the guideline of “Preventive Principles“.
The industrialists should carefully consent to the preventive guidelines to check and forestall ecological contamination. Further, the Supreme Court gave an assortment of rules in different cases to forestall natural contamination. For example Ratlam Region case, Oleum Gas Hole case, Ganga Contamination case and so forth.
M.C. Mehta v. Union of India (Ganga pollution case)
Facts of the case:
River Ganga is a very sacred river in Hindu religion, it is often known as “Ganga Maa” meaning a female god. River Ganga is actually situated in many north and eastern states of India. From Haridwar (Uttrakhand, North) to Kolkata (West Bengal).
So, if a river is a holy river then philosophically we should have assumed that it would be never contaminated, but the reality in our country unfortunately is very different. Many people in Kashi (Old Name of Varanasi) throws the corpse directly in the river as they believe that those people will directly go to heaven.
Also in Kanpur, also a town in the state of Uttar Pradesh, cattle population was about 80,000 so many fodder waste was included in the river ganga and thus it got contaminated. So, a Supreme court advocate filed a case under Article 32 of the Indian constitution in supreme court (Writ) against the union of India, Kanpur Municipal Corporation board and others for polluting the ganga river under Environmental Protection Act,1986, Water (Prevention and Control of Pollution) Act, 1974.
The court said that there should be a ban on the practice of throwing corpse in the river Ganga and also a ban on semi-burnt corpse in the river.
The Kanpur municipal corporations were directed to move the cattle’s on the outskirt of the city, so that there would be no waste in the river
The court also gave an order to all the central educational universities to arrange at least one hour in a week on the topic of “protection and improvement of environment”
It is a probably a leading case where Supreme Court emphasized more on “Sustainable development” rather than “absolute development”
The court also gave many instructions to the Government to not give license to new companies and also check what kind of chemicals they are actually using.