1. INDIA’S SUPREME COURT:
BITTER OR SWEET PIL?
SHANTANU BASU
NORTH CAROLINA STATE UNIVERSITY
RALEIGH, NC 27695
Date of Presentation: April 10, 2008
Date of Submission: April 24, 2008

2. Basu 1
TABLE OF CONTENTS
Abstract ______________________________________________________2
Introduction ___________________________________________________3
Theoretical Construct ___________________________________________3
Differences between Conventional Litigation and PIL ___________________3
Methodology __________________________________________________6
Practice of Public Interest Litigation ________________________________6
The Supreme Court – Political or Apolitical? __________________________8
PILs and Democratization of the Supreme Court _____________________10
Role of SC Judges ____________________________________________15
Judicial Rules of Enviro-PIL _____________________________________16
Sweet or Bitter Enviro-PIL? ______________________________________25
The Sweet PIL________________________________________________26
The Bitter PIL ________________________________________________27
Enviro-PIL: Legitimate or Illegitimate? _____________________________31
Directions for Future Research ___________________________________37
ANNEXURE – I _______________________________________________39
REFERENCES _______________________________________________40

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ABSTRACT
The Supreme Court of India has steadily and unilaterally extended its power of
judicial review to the public domain to include issues of governance through the medium of
Public Interest Litigation (PIL) during the last three decades. The Anglo-Saxon separation
of powers presumes a harmonious discharge of functions by all the three organs of state.
In India this traditional view has broken down as the Supreme Court entertains PIL and
directs and even participates in law-making and enforcement. Despite criticism of doubtful
legitimacy of PILs, citizens and interest groups have been flocking to the Court seeking its
intervention in securing overdue state action and accountability of the executive, a cardinal
underlying principle of the separation of powers. Notwithstanding the Court‟s partial
successes in environmental PILs, its extended role acts as a catalyst for the other organs
of state to act, even by provocation. While PILs are principally violative of the Anglo-Saxon
separation of powers, it may be difficult to question the legitimacy of the Court when the
other organs of state are not discharging their roles with due diligence as enshrined in the
Indian Constitution. Furthermore, it may also not be entirely fair to ground any judgment of
the Court‟s legitimacy of its PIL activism as a simplistic overstepping of legal bounds (and
violation of the separation of powers) without any reference to several other political, social
and economic factors that have played an important role in the creation, sustenance and
widening of the concept of judicial review. There is thus a fundamental divergence of
interpretation of depth and width in the concept of judicial review, and its extension to PIL,
between the American and Indian judicial systems. Such divergence may be explained by
constitutional and political circumstances that are ordinarily not witnessed in western
democracies. This hypothesis will be tested in the context of the Indian Supreme Court‟s
environmental decisions.

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Introduction
P ublic Interest Litigation (PIL) in India arose from liberal interpretations by courts of
their constitutional powers for legal wrongs and fostered by judges as also by
common law arising from court judgments, particularly judicial review. Over the last few decades
PILs have increased to more than 400 from 2001-08 (Manupatra) and are today emerging as a
major source of contemporary common law. PILs have generally been viewed both with skepticism
by the anti-judicial activists and warm welcome from pro-judicial activists. Despite very
conservative origins, India‟s Supreme Court (SC) today has emerged perhaps as the „most
powerful court in the world‟ regarded as „highly innovative‟, and „super innovative‟ (Jariwala, 469).
While the SC has declared itself the ultimate arbiter of India‟s Constitution, intervened in cases of
dowry deaths and human rights violations, yet its high-profile success has been in the field of
„green‟ PILs. The research questions this paper therefore raises are:
Is PIL conceptually distinct from judicial review?
How does PIL democratize the judicial process?
Does PIL, in the Indian context, violate the constitutional separation of powers and damage
the legitimacy of the Supreme Court?
Theoretical Construct
Differences between Conventional Litigation and PIL
How is PIL different from judicial review? Divan and Rosencraz (133-34) have distinguished
conventional litigation from PIL as follows:
While conventional litigation is bipolar and adversarial, in PIL the relation is not adversarial
and thus the scope of the controversy is flexible, primarily because the parties seeking relief
may not have locus standi and the relief they seek may be for a large population, rather
than limited to a single defendant as in conventional law suits. Unlike in an adversarial
system, PIL allows access to non-litigants in the form of experts and other groups and the
court‟s orders may affect a much wider constituency other than the litigants –

5. Basu 4
people/institutions similarly placed. The process is open and democratic, rather than
adversarial and limited to a defined set of litigants.
Secondly, while in conventional litigation each case has a retrospective orientation, in PIL
the orientation is prospective. Thus relief sought may extend long into the future;
Thirdly, in conventional law, right and remedy are closely related while in PIL “because the
relief sought is corrective rather than compensatory, it does not derive logically from the
right asserted”; (134)
Fourthly, a conventional lawsuit is bound in time and effect in PIL it is difficult to delimit the
duration and effect;
Last, in conventional litigation the whole process is driven and controlled by the actions of
the parties with the judge being a neutral and passive referee. In PIL relief primarily being
sought against government agencies, the judge plays an activist role. Such activism in India
includes appointment of experts, monitoring committees (Horowitz‟s feedback
mechanisms), etc. to aid and advise the process on behalf of the judge.
Divan & Rosencraz‟s definition of PIL contradicts Horowitz‟s views. Horowitz brings out severe
limitations imposed upon a court and the judge while judging social policy– “the person who stands
at the synapses and makes connections between subsystems and subcultures” (25) and says that
while the impartiality of a judge is his generalist knowledge is a virtue, this may also be a vice. Not
only is the judge ignorant of the full facts of a case, such ignorance is compounded by a general
lack of understanding of the social context of a case for which a judge is not trained. This leads to
piecemeal judgments at different points in time and makes implementation of orders difficult. The
judicial process also does not allow the courts to decide whether the case is representative,
frivolous or loaded (Horowitz, 41-42). Thus courts end up making law “for the worst case or for the
best, but it is not necessarily law for the mean or modal case” (Horowitz, 44). Such judgments then
skew social policy in favor of or against groups that are not represented in such cases. Judges are
also constrained by the pressure on their time to cause independent studies/surveys to ascertain
the social facts (Horowitz, 50). Compliance reporting is contingent on litigants who may or may not
return to the courts after the decision, thus negating the judgment itself and raising doubts about

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the legitimacy of such orders. In the absence of feedback mechanisms other than as follow-up
suits, policy review becomes ineffective. (Horowitz, 54) This paper would therefore examine
Horowitz‟s arguments in the context of environmental PILs adjudicated by the Indian SC.
In the context of the Indian Supreme Court (SC), environmental issues emerge mainly from
the failure of public policy or non-implementation of government rules and orders by state
agencies. The Indian judicial system with its multiple layers of appeal affords interest groups an
important venue. This is where judicial review and public interest litigation figure as the groups
compete with each other to „win‟. To this end, the Court, faced with numerous alternatives, may
decide to either cloak its orders in terms of violation of constitutional rights of the aggrieved parties
or interpret the law of the land in terms of the existing law and practice. In such decision-making
the SC may create new practices and conventions, jettison old ones, or even cause new principles
of justice and interpretation of rights to be created. In the process an entire gamut of issues arises
that have been discussed in the succeeding paragraphs. At the same time, faced with a powerful
executive, the Court may attract interest groups as a natural defense mechanism. In the process of
attracting more groups, the Court may lower access barriers and democratize the judicial system.
Thus the Court may transgress into the domain of the other organs of state in apparent violation of
the separation of powers (e.g. PIL from judicial review). However, faced with other dysfunctional
Empowerment of
organs of state and the partial breakdown of constitutionalAgencies and balances, such
State checks
transgressions may eventually come to be viewed as legitimate by citizens.
It would appear from the foregoing discussion that PIL is not a natural corollary of judicial
review;. The process is radically different in many important respects and therefore it is a creation
of the judiciary. Sathe stated, “This (PIL) was a subtle shift from a neutralist adversarial role to an
inquisitorial, affirmative judicial role. The judicial process changed from an adversarial, bilateral
process to a polycentric, conflict-resolving process” (210). This paper therefore hypothesizes that
the limitations pointed out by Horowitz do not apply to India‟s Supreme Court and its involvement
and its creation of the PIL system.

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Methodology
This paper relies for primary sources on the All-India Reporter and the case database
available on the Indian Supreme Court‟s web site. In addition, articles from journals and books
have been used as secondary source material. However, no quantitative analysis has been
attempted. This paper covers the period from the mid-1970s and onward. While tracing the rise of
PIL, this paper examines the role of the Court and the legitimacy or otherwise of its
pronouncements and stance with reference to environmental law in which nearly 700 suits have
been filed in State High Courts and The SC from 2001 and onward (Manupatra, 2008).
Practice of Public Interest Litigation
David Feldman categorizes the main types of public law players as representative and
surrogate activity groups. Representative groups are those that “sometimes represent the interests
of their members; at other times, they claim to be advancing interests which go beyond those of
their immediate membership.” The surrogate activists are those who “act as a substitute for people
who are unable or unwilling to represent themselves.” (45-46). Interest groups act as advocates
rather than decision-makers while representing the perceived interests of their members, about
where the public interest lies at a particular time on a specific issue. Litigation is a forum on which
these groups assert the importance of public accountability in the exercise of power. Controversy
about the legitimate interests of third parties in litigation is brought into sharp focus in public
interest litigation by surrogate plaintiffs. And the courts face major political and constitutional
choices. It follows that judges have to decide whether the constitution, as interpreted by them,
permits such an extended judicial role. The need for a judge to interpret the constitution in the light
of society‟s political arrangements and its dominant ideology emphasizes the political nature of
constitutional adjudication, and the link between constitutional and political legitimacy (49).
Supplementing Feldman, it is worth mentioning that the number of interest groups may also
be reduced as interest groups coalesce into advocacy coalitions (like the Narmada Bachao
Andolan in India or the Exxon Valdez case in the US). Deborah Stone says that interest groups

8. Basu 7
indulge in social construction of a problem using symbols (e.g. flags), numbers (e.g. statistics) and
causal stories (worsening situation) while setting the agenda for debate on public policy (Birkland,
125-29) A similar situation happens in the Court where such groups/coalitions present their cases.
The Benches of the Court then become the venue for such groups to try to overturn public policy,
after the latter have failed to do so with dominant groups that have succeeded in their efforts to
establish public policy in the executive and legislature (Birkland, 120-25) Thus the interest
groups/coalitions act as powerful actors in influencing the constitutional separation of powers.
National law differs in controlling access of interest groups to litigation. Thus an interest
group may not always be successful in the court as a venue despite its perception to the contrary.
In Gouriet v Union of Post Office Workers [I9781 AC 435) the House of Lords restricted standing to
obtain injunctions and declarations in respect of public rights to people protecting special interests,
and the role of private citizens in litigation to advancing their own interests. Securing general public
interests was, henceforth, to be the exclusive responsibility of the Attorney-General, representing
the state's monopoly of legitimate concern with such interests. The House thus upheld the principle
of locus standi. This decision was followed in Australia, where the High Court refused to allow an
incorporated association to claim to represent the public interest in nature conservation in litigation
against the Commonwealth (Lopez v. City of Brighton (1977)). Australia also streamlined its judicial
review system under the Administrative Decisions (Judicial Review) Act, 1977, but this provides
machinery for challenging only administrative decisions made under statute (Feldman, 52)
although it still requires that the applicant be personally affected by the decision (Kiocz v Minister
for Immigration (2nd Ethnic Affairs (1985) 62 ALR 321). Thus Australian and British courts have not
made any departure in flexing the locus standi requirements that automatically squeezed out
parties not directly affected by a legal wrong to represent those directly affected from the legal
process. However, in Canada, the Supreme Court had already relaxed the standing requirements
for obtaining injunctions in constitutional litigation (Thorson v. Attorney General of Canada (1971)
13 DLR (3d) I). One effect of this was to divert attention from the interest of the applicant to the

9. Basu 8
interest in lawful administration, which a private citizen could now properly assert. This principle
has also been followed in New Zealand, where the courts have exploited the relaxed standing test
to allow them to review environmental and sporting matters. US courts have dealt with debate over
abortion as an aspect of the mother's right to privacy (Roe v Wade (1973) 410 US 113) by way of
allowing amicus in a suit commenced by or against unrelated people that permitted a wide range of
interests to join the decision-making process, although cloaked in terms of constitutional rights. In
the UK, by contrast, there is no equivalent of the amicus brief, constitutional litigation is less a
means of fostering political disclosure than illegal intervention in the political process. Therefore the
system does not encourage a wide range of public interest plaintiffs or surrogate groups nor
supports venue shopping by such groups. The emphasis of the British system on parliamentary
sovereignty also discourages interest groups from shopping for venues in the judiciary; instead
they have to confine themselves to the political parties and the government for hearing their
plaints. How is India‟s SC different insofar as PILs are concerned?
The Supreme Court – Political or Apolitical?
In India if judicial review aimed at righting a legal wrong for people who were directly
affected by state action and kept the SC within the traditional bounds of Articles 13 and 31 of the
Constitution, PIL democratized the legal process. Unlike in the US, judicial review in India was
provided for expressly in Article 13 of the Constitution. Article 13(1) states that all laws in force in
the territory of India immediately before the commencement of the Constitution, in so far as they
are inconsistent with the provisions containing the fundamental rights, shall to the extent of such
inconsistency, be void. Article 31(2) prohibits the State from enacting any law that takes away the
fundamental rights of citizens and renders void any law that is repugnant to this principle (Sathe,
35). In order to adjudicate whether a statute is inconsistent with a fundamental right, the Court has
evolved formulae tailored to different sets of situations (Jain, 5), Such institutionalization of judicial
review at once laid the system open to interest groups and much larger democratization of the
legal process and provided the courts the constitutional plank from where they could officially

10. Basu 9
assume the referee‟s chair. At the same time, the Constitution also specified the principle of
separation of powers that has become the cause for tussle between the courts and the
legislatures.
This however, did not prevent the Supreme Court from asserting its power of judicial review
in AK Gopalan v. State of Madras (Sathe, 40) but set limits to the future exercise of such power. It
may be mentioned that in the first three decades after independence India had the monolithic
Congress political party at both federal and state levels with a Prime Minister, Jawaharlal Nehru,
largely committed to the Constitution. India was also preoccupied with problems of resettling
millions of refugees after Partition (1947). The only major departure by Nehru was including the
abolition of the landowner system (zamindari) in the IX Schedule of the Constitution over which the
SC‟s judicial review was prohibited. Given the monopoly of state power in a single political party,
the SC accepted this decision of the government. In this case, venue shopping by big landowners
and businessmen did not evidently succeed, having been overridden by the vastly larger populism
of social justice for the ruling party.
Even before evolving PILs, the SC has had a hoary past. From 1950-67, it struck down 128
pieces of legislation among which were 45 that were aimed at curbing judicial review (Mehta, 74).
In 1991, for the first time, India opened its economy in the wake of a severe financial crisis. An
open economy caused the rise of many more interest groups than at any time in the past. If
governments and political parties had been the primary venues for interest groups in a state
controlled economy with government controlled policy communities till the late-1980s, from then on
the courts, and SC in particular, filled in for lax implementation of public policy or even the absence
of public policy. With liberal interpretations of Constitutional provisions, an activist SC emerged as
the ultimate arbiter of India‟s Constitution, often ironically questioning the separation of powers laid
down in the same document.
If in Golak Nath v. Punjab (Sathe, 65) the Court held that Parliament did not have the power
to pass any amendment that took away or abridged fundamental rights of citizens, in Keshavanand

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Bharati v. Kerala it held that Parliament did not have the power to amend the basic structure of the
Constitution under Article 368 (Sathe, 65-70) which included judicial review. This landmark
judgment was perhaps the first time, the Court questioned the separation of powers enshrined in
the Constitution that transformed the court from a positivist to an activist role. In fact, Sathe
makes an interesting point when he relates the present-day judicial activism of the Court to
populism that was deemed essential by the Court for its survival against a powerful political
executive such as the government of Late Prime Minister Indira Gandhi (106-7). Subsequently, the
Court set aside the election of a Prime Minister, challenged the Union Government‟s authority to
impose President‟s Rule in a State and directed payment of maintenance to a Muslim divorced
woman beyond the prescribed period under Shariat law. Articles 23 and 24 of the Constitution that
had lain unused for over three decades since their promulgation were used by the Court in PUDR
v. Union of India (AIR 1982 SC 1473) and Bandhua Mukti Morcha v. Union of India (AIR 1984 SC
802) to abolish forced labor since this violated the ban by these Articles on traffic in human beings
(including forced labor). Perhaps in apprehension of a breach in its powers by a powerful political
executive, the SC increasingly turned to judicial review and PILs as an instrumentality of
preserving its power cloaked in the doctrine of public trust. This also opened the Court to
increasing venue shopping and power play between representative and surrogate interest groups
on issues of public interest and added complexity to the task of PIL adjudication. This was quite
unlike what had happened in most other countries with a similar Anglo-Saxon legal tradition. How
did the Court extend its hitherto constitutional mandate of judicial review to the domain of
governance? Has such voluntary extension added to the Court‟s legitimacy?
PILs and Democratization of the Supreme Court
The “offspring of judicial review” (Sathe, 198), PIL in India operates via two channels. For a
legal wrong the appropriate forum is the High Court of the state under Article 226 of the
Constitution. For infringement of a fundamental right (Art. 14) remedy may be sought from the High
Court or directly from the Supreme Court under Article 32(1). While appeals to a High Court may

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be made under Article 226 for any legal wrong, including violation of fundamental rights, Article 32
(1) limits the SC only to hearing violations of fundamental rights. The constitutional guarantee of
direct access ensures that less advantaged individuals and groups are able to assert their interests
through the courts. By liberal interpretation of these provisions the courts have further sought to
rebalance the scales of justice. Notwithstanding floodgate arguments, courts have also redefined
the concept of „standing‟ from the traditional understanding of litigation that required participants to
have some real interest. Thus the Supreme Court declared in 1976:
Where a wrong against community interest is done, 'no locus standi' will not always be a
plea to non-suit an interested public body chasing the wrong doer in court . . .Locus standi
has a larger ambit in current legal semantics than the accepted, individualist
jurisprudence of old.” (Maharaj Singh v. Uttar Pradesh, A.I.R. 1976 S.C. 2602, 2609.)
Relaxing the locus standi requirement instantly opened the Court to unprecedented
democratization and encouraged diverse groups to approach it for redress of their grievances,
often for entirely frivolous purposes.
Although PIL had its genesis in the Court‟s power of judicial review, yet PILs had the effect
of democratizing the judicial process. Another major qualitative difference between judicial review
and PILs was the Court‟s insistence on its authority to branch into issues of public governance that
were hitherto outside its traditional mandate by broadening the interpretation of the Constitution
with concomitant increase in its own jurisdiction and powers such as in the Delhi Air Poluution
case. This also led to extending the concept of justiciability using the instrumentality of mandamus
(Sathe, 219). Other qualitative differences included the Court going beyond the doctrine of
prematurity and adjudicating cases, particularly on the environment, into the future. The Court has
also used the private law remedies of injunction and stay orders given by the Civil Procedure Code
in the discharge of its public law function (Sathe, 199). This was possible since Article 32
empowered the Court to issue writs and orders in the nature of habeas corpus, mandamus, etc.
that the Court interpreted to cover both statutory and common law rights (Sathe, 199). Last, but not

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the least, was the rule that no PIL, once filed, could be withdrawn (Sheela Barse v. Union of India
1988 4 SCC 226), however, unfair it may seem or be.
PILs have been initiated by individuals on behalf of other individuals and groups, by
academics, journalists and by many social action organizations – Feldman‟s representative and
surrogate groups. The Indian judiciary has thus shown its willingness to alter the rules of the game
where necessary. Legal actions may be commenced not only by way of formal petition, but also by
way of letters addressed to the court or a judge who may choose to treat it as a petition (Supreme
Court of India, 2006). This was perhaps done by taking a cue from the US Supreme Court‟s
acceptance of a post card from a prisoner as a petition in Gideon v. Wainwright (372 US 335,
1963). Legal aid has been established as a fundamental right in criminal cases and in others the
courts often waive fees, award costs and provide other forms of litigation assistance to public
interest advocates (some cases have been briefly discussed in the succeeding paragraphs). The
Court also appoints commissions of enquiry or socio-legal committees to investigate and collect the
necessary facts, thus relieving the petitioner of the financial burden of proof. These commissions
not only investigate the facts, but may also be directed to recommend appropriate remedies. The
Court often orders that they receive expenses and an honorarium from the defendant. In this
manner the Court has socialized the legal process and involved people who were not even
plaintiffs within the expanded locus standi definition of the Court.
While the court has sought to enhance access, it has also sought to increase the impact of
its decisions that has forcibly drawn more unaffiliated groups into the action arena. It has extended
the socio-economic justice argument to impart greater public legitimacy to its verdicts. Thus the
Court has treated a particular case as a representative action and issued orders binding on the
entire class. In a case dealing with massive pollution of the river Ganga, the Court published
notices in newspapers drawing the litigation to the attention of all concerned industries and
municipal authorities inviting them to enter an appearance. The final order, closing a large number
of industries and prohibiting the discharge of untreated effluents, was addressed to scores of

14. Basu 13
enterprises ex parte (M.C. Mehta v. Union of India (1987) 4 S.C.C. 463, (1987) 2 SCALE 611). The
court based its authority to do so on Order 1, Rule 8 of the Code of Civil Procedure. This measure
further enlarged the zone of conflict between interest groups and widened the authority of the
Court.
The fundamental rights of Indian citizens are specified in Articles 12-35 of the Indian
Constitution. Article 21 provides that no person shall be deprived of his life or personal liberty
except according to procedure established by law. The initial construction of this provision was
confined to procedural observance of violation that resulted in inconvenient Supreme Court
decisions on the constitutionality of state action being overturned by amending the constitution until
the basic structure of the Constitution was declared unalterable by the Court (Golak Nath v. State
of Punjab and Kesavananda Bharati v. State of Kerala).
It was in 1978 that the Court breathed substantive life into Article 21 by subjecting state
action interfering with life or liberty to a test of reasonableness; requiring not only that the
procedures be authorized by law, but that they are "right, just and fair." (Maneka Gandhi v. Union
of India, (1978) 2 S.C.R. 621, A.I.R. 1978 S.C. 597.) Even though this was a procedural case, yet
the principle it enunciated would be followed by the SC in the years to come in most PILs. Such
major transformation paved the way for a substantive reinterpretation of constitutional and legal
guarantees and positive judicial intervention. Clearly, the Court cast itself in the robes of the
ultimate arbiter of the country‟s Constitution.
Most Constitution-based PIL in India is aimed not at challenging the validity of legislative
measures, but rather at enforcing existing laws and forcing public agencies to take steps to
enhance the welfare of the citizens. The Court declared in one case that positive action is required
"if the theory of equal protection of laws has to take its place in the struggle for equality. . . . The
profound rhetoric of socialism must be translated into practice . . .” (Olga Tellis v. Bombay
Municipal Corporation, (1985) 3 S.C.C. 545. A.I.R. 1986 S.C. 180.) Through an expansive reading
of fundamental rights, supported by a commitment to the non-justiciable social welfare objectives

15. Basu 14
of the Directive Principles of State Policy, the Court has read substance into otherwise formal
guarantees on the basis of Art. 37 which states that the provisions contained in Part IV (Directive
Principles) are not enforceable by any court, but the principles therein laid down are fundamental in
the governance of the country.
Such reliance on Directive Principles is particularly apparent in legal aid, prison and
environmental litigation. The relevant Directive Principles are 39-A (state to provide free legal aid)
and 48-A (environmental protection). In Hussainara Khatoon v. Bihar (AIR 1979 SC 1360), the
Court therefore relied on Art. 39-A to support its finding that legal aid was a fundamental right
under Art. 21 and suggested, even in the absence of legislation, that if legal aid was not provided
by the state criminal trials might be void. In PUDR v. Ministry of Home Affairs (Bandhua Mukti
Morcha, A.I.R. 1985 268) Article 21 was said to include the right to be free from exploitation and
therefore, must include protection of the health and strength of workers, men and women, and of
the tender age of children against abuse, etc.
To reduce the work load and multiplicity of appeals, Indian courts often require that the
applicant exhaust all other forms of redress before seeking a judicial remedy in a higher court.
However, in this area too, courts have flexed conventions. Article 31(2) of the Constitution
empowers the Court to issue the usual remedies of habeas corpus, mandamus, prohibition, quo
warranto and certiorari. In M.C. Mehta v. Union of India, (A.I.R. 1987 S.C. 1086) the Court ruled
that cases of personal injuries and unlawful confinement should not limit the victim to the usual civil
process alone. Therefore petitions are allowed directly to the Court under Article 31(1); damages
may be awarded to compensate the victim and deter the wrongdoer. Deterrence strategies have
witnessed the Court ordering, in Bandhua Mukti Morcha, local officials to identify oppressed
workers, and to affect their release and physical economic and psychological rehabilitation. For this
purpose the Court directed the authorities to accept the assistance of social action groups, to carry
out surprise checks on local quarries, to set up labor camps to educate workers about their legal
rights, and to ensure a pollution-free environment with adequate sanitary, medical and legal

16. Basu 15
facilities. By emphasizing Articles 14, 19 and 21, the Court brought in many reforms in prison
administration that preserved the fundamental rights of undertrials (Jain, 29).
In time the SC became the favorite haunt of many interest groups and the Court came to
question even the wisdom of public policy and creating judge-made law and policy. Equally it gave
the Court the opportunities it needed to assert itself at a time when weak coalition governments
populated the political system. Upendra Baxi remarked that PIL has changed the character of the
judicial process from adversarial to polycentric and adjudicative to legislative (1990, 3-15). Baxi
(2000, 180) also classified the PIL decisions of the Court as “constituency relief” (consumer
protection, compensation for violation of human rights) and “transformation of structures or
practices of governance” (assailing corrupt governance, new principles of human rights). Unlike
their US and Canadian counterparts, Indian courts abated the PIL that has partly been the reason
for accusations of judicial activism being thrown at the judiciary. It was therefore inevitable that key
principles of public interest law would find their way into environmental law too. However, there
was a key qualitative difference. The SC also evolved new principles of environmental law.
Role of SC Judges
No discussion on the Court would be complete with the men who man it for it is perhaps these
men who design and deliver what Baxi calls “instant outcome-based strategies” (2000, 180). What
is important to note is the role of the SC judges‟ vis-à-vis their stands on various issues of social
litigation. Upendra Baxi (2000, 173-76) classifies the judges on the “levels of reflexivity by judicial
actors and the ways in which they shape the pattern of demand and supply for activist judicial role”,
e.g. foundational, restraintivist, etc. It is apparent from Baxi‟s classification that the SC is far from
being a homogenous entity. Yet the Court‟s activist role has remained mainly unchanged over the
years as evidenced from the filing of an average of 269 civil writ petitions per annum from 1985-
2007 (Annexure-I) and the fact of the Court having passed orders in 171 environmental PILs from
2001-March 27, 2008 (Manupatra). The variety of cases dealt with by the Court has also increased
and now includes environmental hazards from breaking of ships (Research Foundation for

17. Basu 16
Science, Technology and Natural Resource Policy v. Union Of India & Ors. (AIR 657 of 1995),
confiscation of vehicle carrying forest products (State of West Bengal v. Mahua Sarkar & Anr. AIR
991 of 2002) and regulation of sound levels of firecrackers and loudspeakers (Forum for
Prevention of Environment and Sound Pollution vs. Union of India & Anr. WP (C) 72 of 1998). It
may therefore be presumed that either ideological changes caused by cyclical appointments to the
Court or else a focusing issue that causes a judge to change from one category (Baxi) to another;
or else, when a stand defies classification, it is simply due to disposition that Baxi himself finds it
difficult to quantify! (179). Notwithstanding the limitations Baxi identifies three “points of arrival”
(2000, 190) of judges to provide a social-psychological view of why judges behave the way do.
Impulse is the first point, e.g. Justice K Ramaswamy‟s jailing in contempt of the Chief Secretary of
Karnataka and Justice Kuldeep Singh‟s decision on Delhi street vendors (1992 (2) SCC 458).
Some of this impulsive behavior is geared to symbolism that “seeks to transform sensibilities of
state and in civil society” (Baxi, 2000, 192). Another factor is disposition that Baxi says is presently
in tune with globalization and economic rationalism (197). It also attempts to reconcile caste and
class distinctions that bedevil Indian society. Evidently, the judges‟ ideology or their conversion to a
cause (such as for Kuldeep Singh, J) was therefore central to democratizing the country‟s higher
judiciary. Such democratization also allowed interest groups to raise fundamental questions about
the efficacy of government policies and their implementation that often attempted to strike at the
very basis of such policies. If the higher judiciary was the action arena for PILs, the judges were
the arbiters and referees prescribing rules for each case that came up for hearing before their
respective benches. In the process, judicial activism became a byword for India‟s higher judiciary,
although lately there are trends of a slowdown by revisionist SC judges like M Katju, J. (Times of
India, 2007)
Judicial Rules of Enviro-PIL
The route the SC has taken starts with the plaintiff that may either be an individual or a
representative/surrogate group that files the petition with the Court alleging absence of state

18. Basu 17
enforcement of pre-existing legislation or violation of rights. Initially, the Chief Justice assigns the
case to a single judge bench which is the starting point of the Indian PIL process. The Bench
issues notices to the defendant (mostly the State and polluters) as also uninvolved proximate
parties (if applicable) while admitting the case. In cases where the plaintiff is able to establish
failure on the part of the defendant(s), the Bench issues orders of enforcement. The Bench may
also appoint specialist committees to advise it on technical matters (Supreme Court, 2006). Bench
orders may be in the form of a one-time verdict or continuous that requires monitoring by its
appointed committees. Following such enforcement by the Bench, the rules are enforced by the
Executive and the plaintiff gets the relief prayed for. Fig. 2 gives a diagrammatic representation of
the judicial process in the SC:
Committees Amicus Curae 5. Enforcement
2. SC 4. Defendant
3. Rules
8. Committees
1. Plaintiff 7. Continuous 6. Episodic
Read sequence as 1-2 with ref. to 3; 2-4 with ref. to 3; 2-5 with ref. to 4; 2-8 with ref. to 7; 4-5; 5-6&7; 6-1
and 7-1
Fig.
2
India has over 200 statutes, State and Central, which directly or indirectly contain provisions
relating to environmental protection. The major ones are The Factories Act, 1948, The Mines and
Minerals (Regulation and Development) Act, 1957, The Atomic Energy Act, 1962, The Insecticides
Act, 1968, The Wildlife (Protection) Act, 1972, The Water (Prevention and Control of Pollution) Act,

19. Basu 18
1974, The Water (Prevention and Control of Pollution) Cess Act, 1977, The Air (Prevention and
Control of Pollution) Act, 1981, The Environment Protection Act (1986), The National Environment
Appellate Authority Act, 1997, The Public Liability Insurance Act, 1991, The National Environment
Tribunal Act, 1995 and The Forest Act, 2007.
In 1975, the 42nd Amendment to the Constitution inserted two new Articles 48-A as a
Directive Principle of State Policy and 51 (A) (g) as a fundamental duty of citizens. While Article 48-
A stated that “the state shall endeavor to protect and improve the environment and to safeguard
the forests and wildlife of the country", Article 51(A)(g) laid down protection of environment as one
of the fundamental duties of every citizen (Krishnan, 2004). The 42nd Amendment also expanded
the list of concurrent powers in the Constitution. Article 253 of the Constitution and Entry 13 of the
Union List empowered Parliament to make laws discharging India‟s international treaty obligations,
were used to pass keynote legislation in pursuance of the UN Conference on the Environment
(Stockholm, 1972). This series of amendments by the federal government provided the grist to the
judicial mill as the relative equilibrium of the pre-1975 era was about to be disturbed by the courts.
These amendments also had the double effect of further democratizing the judicial system and
socialized many more players into participating in it, both as representative and surrogate groups
or even as individuals without any locus standi, other than an active interest in the matter.
The passage of the Environment Protection Act by India‟s Parliament in 1986 gave the first
real teeth to enforcement of environmental legislation. Section 3(1) of this Act conferred very wide
powers on the federal government „to take all such measures as it deems necessary or expedient
for the purpose of protecting and improving the quality of the environment and preventing,
controlling and abating environmental pollution.‟ (Divan & Rosencraz, 73). This provision was to
become the anchor for many of the Court‟s rulings in the years to come. In tandem with basic
principles drawn from the power of judicial review, the courts proceeded, post-haste, to establish a
new PIL regime and re-establish the Doctrine of Public Trust that the Emergency (1975-77) had
diminished. Thus was born environmental PIL, an extension of PIL created by the judiciary, and the

20. Basu 19
judiciary‟s transition to environmental activism. However, for a change, environmental PILs
generally did not result in judge-made law nor did they involve striking down of legislation; rather it
was confined to the observance/enforcement of legislation, although the subjects/persons covered
by the Constitution or such subordinate legislation were frequently redefined by the courts to make
them more inclusive, particularly by the SC.
The Court applied an increasingly widening interpretation of Article 21 of the Indian
Constitution that protected the fundamental right to life and personal liberty of the people of India. It
envisaged that no person shall be deprived of his life or personal liberty except to a procedure
established by law. It was in this legal framework that the Court began its „greening‟ of the law
(this paper does not discuss the commendable role of the High Courts) as if inviting other
uninterested groups to join the arena. In Subhash Kumar v. State of Bihar the Court observed that
Right to live is a fundamental right under Article 21 of the Constitution and it includes the
right of enjoyment of pollution-free water and air for full enjoyment of life (1991). If anything
endangers or impairs that quality of life in derogation of laws, a citizen has the right to have
recourse to Article 32 of the Constitution” (Leelakrishnan, 604).
Similarly, the right to equality in Article 14 has been used by PIL plaintiffs to get the Court to
declare illegal government contracts for mining and other activities with high environmental impact.
The Court cited intergenerational equity (preservation of the environment for future generations) as
major ground against the government in State of Himachal Pradesh v. Ganesh Wood Products
(AIR 1996 SC 149, 159, 163) and CRZ Notification Case (1996 (5) SCC, 281, 293). Latterly, under
Chief Justice of India, Y.K. Sabharwal, the Court further expanded Article 21 in two ways. Firstly,
any law that affected personal liberty should be reasonable, fair and just. Secondly, the Court
recognized several unarticulated liberties that were implied by Article 21 (Sabharwal, 2006). By its
broad interpretation of the second principle the Court interpreted the right to life and personal
liberty to include the right to the environment. D.M. Dharmadhikari, J, stated that “Article 21 has
been one single article which by interpretation has been expanded to progressively deduce a

21. Basu 20
whole lot of human rights from it, such as, right to means of livelihood, right to dignity and privacy,
right to health and pollution-free environment, right to education; right to legal aid and speedy trial”
etc (Dharmadhikari, 2004). Thus, expanding the scope and ambit of Article 21 to cover in it the
rights which are not expressly enumerated and using the principle of intentionality (intentions of the
Constitution‟s makers), the Supreme Court has interpreted the word “life” to cover in it “all aspects
of life which go to make a man‟s life meaningful, complete and worth living”. In effect, Article 21
would also cover the Indian‟s traditions, culture, heritage and health.
With a view to increasing access to justice, the Court also changed the rules regarding
locus standi and public participation in the judicial process as stated elsewhere in this paper.
Although not an innovation, changing the focus of interest from a private person to a non-affected
party to represent a public interest issue, the Court allowed citizens “to speak on behalf of a large
unorganized but silent majority against bad governance, wrongful development or environmental
degradation” (Sathe, 17). This democratization was revolutionary since it was a paradigmatic
change; it altered the applicability of res judicata (previously judged) in personam (to an individual
party) and made its judgments binding not only to the litigants but also to all those similarly situated
(Sathe, 17-18).
In addition to its pre-existing repertoire of principles, the SC has expounded four new
principles in environmental law in India in the 1990s and beyond, viz.
Doctrine of Public Trust
Absolute liability
Sustainable development
Balancing of interest
Doctrine of Public Trust: The doctrine of public trust calls for affirmative state action for effective
management of resources and empowers the citizens to question ineffective management of
natural resources. Y.K. Sabharwal, CJ, pointed out that when the Court applied the public trust
doctrine, it has considered it not only as an international law concept, but also as one which is well

22. Basu 21
established in our domestic legal system (2006). In M.C. Mehta v. Kamal Nath (1997) 1 SCC 388)
the Court held that the State, as a trustee of all natural resources, was under a legal duty to protect
them, and that the resources were meant for public use and could not be transferred to private
ownership. In the case of M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu it was observed by the
Court that public trust doctrine have developed from the Article 21 of Constitution and is very much
a part of the Indian legal jurisprudence. This only added to the rising power of the Court.
Considering the large geographical, financial and demographic implications of major environmental
cases this added substantially to the Court‟s armory of powers of adjudication by implication and
extension.
Absolute Liability: In the case of M.C. Mehta v. Union of India (1987, 1 SCC 395) Chief Justice
Bhagwati came up with the absolute liability principle. In this case the leak of oleum gas from the
factory injured several Delhi citizens. Justice Bhagwati developed the concept of absolute liability,
which replaced the strict liability of Rylands v. Fletcher (1868, LR 3 HL 330). As expounded by CJ
Bhagwati, absolute liability applied to an enterprise that was engaged in inherently dangerous or
hazardous activities. The duty of care of the enterprise was absolute and the exception to the strict
liability developed in the Ryland v. Fletcher (1868, LR 3 HL 330) was therefore not applicable. The
liability was on the enterprise rather than on the company. Lastly, the larger and the greater the
industry greater should be the compensation payable; the Court related the damage to the size of
the factory and its potential to cause future harm, rather than the present damage caused by the
factory. The transition from the strict liability to absolute liability was an example of
“constitutionalization of the tort law” (Sathe, 179). Thus in Consumer Education and Research
Center v. Union of India (AIR 1995 SC 992) the Court ordered several asbestos mines and
industries to pay compensation to any worker certified by the National Institute of Occupational
Health to be suffering from asbestosis. Absolute liability thus raised the penalty for non-conformity
manifold and acted as a powerful disincentive to polluters, irrespective of whether they were part of
the judicial proceedings or were made party by the Court. Given the high costs of non-compliance,

23. Basu 22
more hitherto prospective interest groups either filed PILs in similar cases or sought extension of
existing Court orders to such cases. There was thus a socialization of the conflict – such
socialization led to the democratization of the judicial process– and the Court became the most
powerful arbiter and enforcer of public policy.
Sustainable Development: The SC has used the principle of intergenerational equity (future
generations also to receive benefit) derived from the Rio Declaration whose main objective was to
ensure that the present generation should not abuse the non-renewable resources so as to deprive
the future generation of its benefit. This principle was used in the cases of and has also been
recognized by the Court in the M.C. Mehta v. Union of India (AIR 1997 SC 734)). In State of
Himachal Pradesh v. Ganesh Wood Products (AIR 1996 SC 149), the Court invalidated forest-
based industry, recognizing the principle of inter-generational equity as being central to the
conservation of forest resources and sustainable development. The Court has also given effect to
the Precautionary Principle, again derived from the Rio Declaration. In the case of Vellore Citizen
Welfare Forum vs. Union of India (AIR 1996 SC 2715) the Court through Justice Kuldip Singh
opined “… we have no hesitation in holding that the precautionary principle and the polluter pays
principle are part of the environmental law of the country”. Similarly, in N.D Jayal v. Union of India
((2003) 6 SCC 572 at 586), the Court declared that „the adherence to sustainable development is a
sine qua non for the maintenance of symbiotic balance between the right to development and
development‟. This concept is an integral part of life under Article 21.” As elucidated in the case of
Vellore Citizen Welfare Forum vs. Union of India, precautionary principle includes the following
points:

24. Basu 23
Environmental measures by the state government and the local authority must anticipate,
prevent and attack the causes of environmental degradation;
Where there are threats of serious and irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent environmental
degradation;
The 'onus of proof' is on the actor or the developer to proof that his action is
environmentally benign.
Justice Kuldeep Singh went on to state that customary international law that was not in conflict with
the domestic law shall be deemed to be the part of the domestic law. The SC has also
incorporated the „polluter pays‟ principle of the Rio Declaration whose object was to make the
polluter liable not only for the compensation to the victims but also for the cost of restoring of
environmental degradation. Once the actor is proved to be guilty, he is liable to compensate for his
act irrelevant of the fact that whether he is involved in the development process or not.
Balancing of Interest: Unlike in cases of environmental pollution, the Court adopted a stance of
“judicial restraint” when they decided on major infrastructural projects. A brief discussion of the
Narmada Bachao Andolan v. Union of India (2000, 10 SCC 664) case would illustrate the Court‟s
stance. The Court opined that “….. we are not concerned with polluting industry...what is being
constructed is a large dam. The dam is neither a nuclear establishment nor polluting industry. The
construction of a dam undoubtedly would result in the change of environment but it will not be
correct to presume that the construction of a large dam like Sardar Sarovar will result in ecological
disaster. The experience does not show that construction of a dam ... leads to ecological or
environmental degradation.” The Court thus limited its role to examining whether the government
had taken into account all relevant aspects and had neither ignored or overlooked any material
considerations nor was influenced by extraneous considerations in arriving at its final decision. The
Court was therefore not apparently willing to interfere with a policy decision and create judge-made
law.

25. Basu 24
Unlike in non-environmental cases where the Court‟s judgments covered other parties as
well, its environmental verdicts were mainly against the governments and their statutory authorities
for violation of the Environment Protection Act, 1986 and existing legislation enumerated
elsewhere in this paper as Table 1 shows:
Table 1
Case SC Judge Issue Verdict Principle(s)
involved
MC Mehta v. Kamal Kuldeep Singh, J Water pollution by Land lease cancelled; Public trust
Nath 1997 (1) SCC 388 hotel Compensation for restitution
of environment;
Industries in trapezium to
switch over to LNG;
Shifitng of non-LNG units to
other industrial parks;
MC Mehta v. Union of 3-man Bench Damage to the Taj No operation of industries Sustainable
India (Taj Trapezium Mahal by Indianoil near Taj without LNG; development
Case) AIR 1997 SC Corporataion‟s Incentives for switching over
734 Mathura refinery & to LNG;
industrial units in Workmen‟s‟ benefits for
the area closed industries;
Monitoring of refinery
pollution;
Creation of green belt
around Taj Mahal;
Tarun Bharat Sangh, BP Jeevan Reddy, Preservation of Closed all mines in the Balancing
Alwar v. Union of India J wildlife and EPA Sariska tiger sanctuary interests
1993 SUPP (3) SCC
115
S. Jagannath v. Union Kuldeep Singh, J Stoppage of Establishment of federal Polluter pays and
of India AIR 1997 SC shrimp farming Authority to regulate such precautionary
811 industries principles
Ban on shrimp farming in
CRZ
In Indian Council for Enviro-Legal Action v. India (1996) the Court reasoned that the failure
of statutory agencies violated the rights of citizens to life and liberty guaranteed by Article 21 of the
Constitution. In doing so, the Court has enunciated guiding principles such as „polluter pays for
pollution‟ (MC Mehta v. Union of India, 1987) and that the burden of proof would lie on the party
that wanted to change the status quo (AP Pollution Control Board v. MV Nayudu, 1999). At the
same time the Court has sought to balance development and environmental concerns and thereby
limit its role to review of decision-making by governments only. The Court has intervened where
relief and rehabilitation of people displaced by a project was not paid (Narmada Bachao Andolan v.

26. Basu 25
India, 1998) and in cases where projects were approved by governments without considering
environmental hazards (DLF Universal Ltd. V. Prof. A Lakshmi Sagar, 1998). The Court supported
development in the Narmada Bachao Andolan v. Union of India (2000, 10 SCC 664) thus:
….. we are not concerned with polluting industry...what is being constructed is a large
dam. The dam is neither a nuclear establishment nor polluting industry. The construction
of a dam undoubtedly would result in the change of environment but it will not be correct
to presume that the construction of a large dam like Sardar Sarovar will result in
ecological disaster. The experience does not show that construction of a dam ... leads to
ecological or environmental degradation.
As Sathe stated, the Court appears to be abiding by the Wednesbury (Associated
Provincial Pictures Ltd. V. Wednesbury Corporation, 1948) principle by which a court does not
substitute its own judgment for that of the agency that has been entrusted this responsibility by the
legislature. However, the Court has not found it always feasible to strictly adhere to the
Wednesbury principle, primary on account of executive inaction (as in allowing vehicular pollution
to assume alrming proportions in Delhi). Thus the Court modified its initial order banning vehicles
older than 15 years for their polluting potential to a gradual phase-out while holding auto
manufacturers liable for violation of the right to life of people by air pollution (MC Mehta v Union of
India, 1999). Such inaction is also reflected in the increasing level of pollution near the Taj Mahal
and many other cases such as the Ganga Action Plan.
Sweet or Bitter Enviro-PIL?
Enviro-PIL provides an appropriate area for testing whether the judicial activism of the
Court harms its legitimacy. Opinion is divided on this issue. Meese believes that “an activist
jurisprudence, one which anchors the Constitution only in the consciences of jurists, is chameleon
jurisprudence, changing color and form in each era.” (35) Klug argues that directives of state policy
in constitutions act as interpretative guides giving socioeconomic rights a “jurisprudential reality”

27. Basu 26
(607) He also states that there has been a global expansion in the application of laws to defense of
rights, including in their ambit the actions of private parties that impugn the rights of other private
parties (608).
The Sweet PIL
Sathe feels that a major achievement of the Court has been to retain its apolitical character
by developing a unique identity of its own. Although attitudinal differences existed between judges,
yet this did not skew the rulings of the court such that its legitimacy could be questioned on political
grounds (284). The Court‟s espousal of socio-economic justice and the frequent failure of other
avenues of redressal have attracted people to the Court, seeking justice (285). The low cost of
filing civil writ petitions has lowered the access for people to the Court. The cost of filing a civil writ
petition is only INR 50 per person ($1.25) plus INR 1.50 ($0.04) per page of the petition. The
petition can also be e-filed by a lawyer with supporting documents scanned and uploaded to the
Court‟s server and payment made by credit card (Supreme Court Practice & Procedure
Handbook).The Court has also brought to the fore pressing social and economic issues such as
gender issues and environmental justice (284). Media reportage of judicial proceedings has made
people more aware of their rights and duties (284); this was made possible by the democratization
of the judicial process. The Court has also not been parochial or communal in its decisions, as a
result of which it remains the symbol of the highest integrity and rectitude, a glaring contrast to a
discredited political and legislative system (284).
Baxi defines an activist judge as one who “holds judicial power in fiduciary capacity for civil
and democratic rights of all peoples, especially the disadvantaged, dispossessed and the
deprived.” (2000, 165) He says that such judges balance the distinction between the legal and
political sovereign in a manner such that legitimate judicial action remains the articulator of the
popular sovereign (2000, 166). It is in this role that an activist judge prepares a level playing field
for practices of national and sub-national politics (2000, 185). However, Baxi‟s optimistic potrayal
of the moral authority of a judge appears to be misplaced considering the fact that policy making

28. Basu 27
yet continues to be a function of Parliament and popular sovereignty reposes primary care of the
people to the legislature than the judiciary. Baxi‟s optimistic view of the Court being a champion of
the downtrodden also runs counter to the impartiality of judges that is a major pillar of the judicial
process.
The Court‟s decision in 2006 to allow the construction of the Sardar Sarovar Dam to
continue as per its original height after ensuring that legitimate compensation was paid to the
oustees and alternative resettlement locations to a large degree were found by the defendant
state (Gujarat) was an example of positive activism. While the Court decided social justice, it did
not question reasoned state policy in the matter, in a significant departure from Horowitz‟s criticism
of courts for espousing social policy. Baxi further feels the Court has achieved an important
milestone by creating a new judicial normativity on rights, governance and justice by social action
groups (192). Such normativity has encouraged more groups and public spirited people (like MC
Mehta and the Late Ajit Padiwal) to come out and take up causes of the public interest.
Divan and Rosencraz (21) have pointed to generalist judges who have a broader vision of
national policies and interests and are not involved in electoral politics as a unique strength of the
Indian higher judicial system. They also feel that the Court‟s frequent insistence on greater public
funding on the environment (for conservation and enforcement) is leading to more responsible
Environmental Impact Assessments (EIAs) and pollution abatement (21). Last, but not the least,
Divan & Rosencraz mention the role of the Bar in environmental jurisprudence (21). Given the
support from social action groups and the Bar, the Court has adopted a cooperative stance insofar
as environmental PILs are concerned. This also ties in with Baxi‟s judicial normativity argument in
the previous paragraph.
The Bitter PIL
The first fundamental question raised by the Court‟s detractors relates to the assumption of
vast administrative responsibilities by the Court without adequate supporting infrastructure. As
Divan states,”The massive administrative tasks assumed by the Court, will sooner or later expose

29. Basu 28
judges to criticism previously directed at administrators” (149). Despite the initial pressure on State
Pollution Control Boards (SCBs) in the Ganga case, continuing inadequate budget allocations and
shortage of inspectors continue to plague the SCBs that raise serious doubts about maintaining the
enforcement pressure created by the Court‟s initial judgments. The Court‟s activism has not been
followed up by governments by updating legislation or closing loopholes in legislation. Thus while
the SC coerced industries and state agencies into expending funds for preventing water pollution,
the basic principle of polluter pays as a standing administrative arrangement has never been
incorporated in the rules (Divan & Rosencraz, 209). Similarly, while the Ganga Action Plan
stipulates advice from non-governmental agencies and citizens it is silent on the means of giving
effect to their advice. Nor are there any provisions in the rules as to whether private industry should
have a say in the implementation of the project although they are the principal polluters. The
ambiguous nature of government rules that are sought to be given statutory force by legislation
such as the Water Act renders appeals under Article 32 ever more likely to higher courts while the
fundamental issues remain unattended. A decade after the Court‟s verdict there are no major
changes either in the enforcement of neither the existing law nor any modifications in the rules to
make for greater monitoring and enforcement by state agencies. In their compendium Divan &
Rosecranz (2001) have listed hundreds of cases wherein administrative action could either have
resolved environmental problems or have failed to take any action notwithstanding the SC‟s strong
espousal of environmental issues. Horowitz‟s valid concerns therefore in this regard would thus
point to the Court being deprived of its legitimacy. Or is this an executive reaction to years of
judicial activism? Answers could range from an emphatic „yes‟ to an indifferent acceptance of the
executive branch‟s traditional ennui.
Secondly, the Court‟s repeated incursions into the executive domain is manifested in
polemical decisions seeking to relocate tanneries, allotment of land by states to relocated units,
asking states to provide budgetary support to PCBs, etc. Nor were the Court‟s solutions without
questions. For instance, in MC Mehta v. Union of India (AIR 1996 SC 2231) the basis of

30. Basu 29
determining adequacy of the compensation authorized to retrenched workers remained doubtful
and inadequate. In the Tehri Dam Case (1992 Supp (1) SCR 44), the Court relied on the Ministry
of Energy (that was interested in seeing the project through) for environment impact assessment
(EIA) rather than the Ministry of Environment and Forests (that had the technical knowhow for this
task and was not a beneficiary of the project).
Third, the Court has been viewed as being insensitive to economic realities and exceeding
the scope of the petition. Its decision to relocate 5,000 industries in the Taj Trapezium area based
on a faulty data set of the National Environment Engineering Research Institute (NEERI) adversely
affected the livelihood of over 50,000 people (Divan & Rosencraz, 267). Similarly, the decision of
the Court (1999 (6) SCC 14) to bring forward the adoption of Euro automobile norms in the
National Capital Territory of Delhi was not extended to any other city. Thus in Indian Council for
Enviro-Legal Action v. Union of India (1996, 5 SCC 281) while ordering closure of industries, the
Court did not hear many industries before passing the order. This departure by the SC from due
process resulted in these industries approaching the Court with interlocutory appeals that
consumed an inordinate amount of time, while leaving the parties aggrieved. Similarly, in the
aftermath of the Bombay Hawkers‟ Union verdict (AIR 1985 SC 1206) led to fresh litigation that not
only dragged on for many years but also resulted in fresh encroachments by street vendors (Divan
& Rosencraz, 385). The Court has also often bypassed enforcement processes enshrined in
legislation. In the Dehradun Quarrying Case (AIR 1988 SC 2187, 2195), the Court and the federal
government‟s nominated expert was the same person, thus the report to both the court and
government were identical and there was limited reference, if any, to alternative sources of
information (Divan & Rosencraz, 311). When the Court‟s jurisdiction under Article 32 was
questioned by one of the defendants (the miners), the Court brushed aside all objections and ruled
against an earlier decision of the same court where clearly the Court had stated that:

31. Basu 30
”It is for the Government and the Nation – and not for the Court – to decide whether the
deposits should be exploited at the cost of ecology and environmental consideration or the
industrial requirement should be otherwise satisfied” (AIR 1987 SC 359, 363).
Fourth, there appears to be some ambiguity about the Court‟s application of Article 32 to
private bodies as was done in the MC Mehta v. Union of India (Kanpur Tanneries) (AIR 1988 SC
1037). Equal ambiguity persists in the Court‟s stand in taking remedial action in apprehension of
probable harm being caused such as in the case of the Kanpur Tanneries (Divan & Rosencraz,
219). In MC Mehta v. Kamal Nath (1997 (1) SCC 388), the SC issued orders giving general
directions that went beyond the scope of the petition. Fifth, the Court has suffered from lack of
technical knowledge, inter alia, on environmental issues. The agencies that were appointed by the
Court to assist it, like NEERI, have not always been reliable, nor was the Court able to resolve the
complexities of such a large issue that had major political, economic and technological
considerations. Sixth, the Court has also been seen as often wasting time in minor parts of their
judgments. In Sachidanand Pandey vs. State of West Bengal (AIR 1987 SC 1109), the Court used
a large amount of its time in pontificating on issues that had already been decided and agreed
upon between the parties (Divan & Rosencraz, 400). While the above criticisms may seem to be an
aggregation of similar cases and may not be entirely fair to the Court‟s environmental record, yet
the fact remains that such pitfalls raise serious doubts about the technical credibility of the Court‟s
judgments and ultimate its legitimacy.

32. Basu 31
Enviro-PIL: Legitimate or Illegitimate?
Horowitz‟s principal concerns may be summarized as follows:
Limitations of a civil law adversarial system and lack of technical knowledge of a
judge and the absence of expert advise
Doubtful representativeness, limited focus, timing and ad hoc nature of PILs leading
to ad hoc and piecemeal judgments
Incapacity of enforcement that impacts legitimacy of courts
Presumably, Horowitz‟s concerns are based on the US judicial system and therefore may not have
taken into account regional and local realities, value systems, etc. in other countries. Let us deal
with Horowitz‟s concerns individually in the context of India‟s Supreme Court.
Lack of technical knowledge of a judge and the absence of expert advise: Unlike courts in
the US that have to rely on the adversarial system and its lawyers to build the record, India‟s
judicial system relies on the judge to collect and collate the evidence. India therefore has a civil
service judicial system that places priority in training its officers and growing as part of a fraternity
that promotes espirit de corps, unlike in the US where judging is a secondary occupation of
lawyers when appointed to the Courts. As in all civil service systems judges move from local,
district, state and national level courts in an unified system (unlike the fragmented US system)
during a career span of 41-44 years and deal with a variety of cases, many of which fall in similar
categories. It has also been discussed above that the SC of India appoints its own experts to assist
the Benches. Thus with a mix of extensive professional judging experience, a civil service judicial
system and independent expert opinion, many of India‟s SC judges (e.g. Kuldeep Singh, J) are
much better equipped to deal with technical cases than their US counterparts.
Doubtful representativeness, limited focus, timing and ad hoc nature of PILs leading to ad
hoc and piecemeal judgments: The Indian Constitution also provides for judicial review (and by
extension PIL) writs to be filed only in the High and Supreme Courts where scrutiny is much more

33. Basu 32
stringent and very few PIL cases eventually are admitted. This is unlike the US system that permits
judicial review at all levels of the judicial system. While there is every chance of doubtful cases
being filed, the process of admitting cases is very rigorous which explains why an average of
0.83% of letters/petitions received by the SC per annum from 1985-2007 were admitted as civil writ
petitions under PIL (Annexure-I). Nor do Horowitz‟s concerns of limited focus, timing and ad hoc
nature of PILs remain valid in the SC‟s context. By eliminating the locus standi requirement and
taking suo motu cognizance of facts, the Court has overcome Horowitz‟s concerns. Combined with
the non-adversarial nature of the judicial process, the Court‟s relaxation of all norms attracted
interest groups to approach it in larger numbers. When in the Delhi Air Pollution case the SC made
new policy by driving diesel-operated public transport vehicles off the city‟s roads and replacing
them with Compressed natural Gas (CNG), albeit at high costs to their owners, the Court perhaps
acted under the premise that unless stringent holistic restrictions were placed and hard, even
expensive, decisions were taken, the critical air pollution in Delhi would continue. The fact of
Delhi‟s‟ government and the federal government having been ineffective in their enforcement of
existing law and enforcement machinery was also cited in the judgment of the SC; the Court
sought to make its judgment more representative by applying it to a slew of related sub-sectors,
such as other commercial transport vehicles. In many other cases, similarly, the Court sought to
impart representativeness to the PIL process by removing the locus standi norms to increase
representativeness of PILs. This was unlike the US courts that insist on locus standi. Apart from
this the relatively high cost of litigation in the adversarial US system (primarily for the cost of
lawyers) deters PIL being filed.
Incapacity of enforcement that impacts legitimacy of courts: Horowitz has rightly pointed to
the enforcement of Court decisions that is contingent upon executive willingness. Although the
SC‟s landmark decisions have provided major relief to wide segments of Indians, yet government
response to enforcement continue to be tardy. It is therefore at this point that the question of
legitimacy as raised by Horowitz arises. It may be mentioned that legitimacy arises when the

34. Basu 33
constitutional separation of powers is functional and the three organs of state are discharging their
respective roles. What happens if the legislature and the executive are relatively unresponsive (as
they were decades before the PIL phenomenon)? Horowitz presumes that the unfortunately limited
American context may not apply in all regions of the world. With unresponsive legislature and
executives, does the third organ of state take a cue from the other two or does it try to step in and
redeem the failings of the other two? Is judicial indifference on procedural grounds the preferred
alternative to preserve the „legitimacy‟ of the SC? Horowitz does not touch upon these issues in
other than the harmonious American context.
In a similar Anglo-Saxon tenor on judicial review, Gardbaum states, “This rule of deference
represents both a procedural attempt to justify judicial review by tempering its acknowledged
tension with democratic decision making……………….by limiting the scope of power.” (750). As
shown in the above discussion on environmental jurisprudence in India, the Supreme Court has
confined itself to enforcing environmental law and essayed a “checking” rather than a “trumping”
function (Gardbaum, 755). Finally, Gardbaum makes an important point when he states that the
hybrid constitutional model in vogue in some Commonwealth nations is in response to permit
greater legal protection of rights within political cultures where parliamentary sovereignty has had a
long and established tradition of constitutional democracy (760). Separation of powers therefore
presumes a level of specialization for each branch of government, not a forced usurpation of the
jurisdiction of one branch by another. The concept of checks and balances equally presumes the
willingness and ability of all three branches to support each other and check arbitrariness on the
part of the other branches. The Anglo-Saxon tradition also presumes relatively high levels of
education among citizens and developed political and legal culture that do not exist in India.
The failure of successive governments and other forms of redressal of public grievances
have legitimized the Court‟s repeated incursions into the executive domain, albeit mostly with
doubtful efficacy of enforcement and piecemeal nature of decisions. India‟s Supreme Court is

35. Basu 34
evidently caught in a bind – on the one hand faced with public ire at growing government inaction,
on the other having to reckon with the same inaction and yet trying to enforce the rule of law
without radically upsetting the constitutional balance between the organs of state. This perhaps
explains the receipt of 379,937 letters/applications to the Court for PIL from 1985-2006 against
which the Court admitted only 3096 civil writ petitions and 510 criminal writ petitions. In percentage
terms this translates to about 0.8% of the total receipts for civil writs and 0.1% of criminal writs.
From 1980-85 the average rate of admission was 0.61% while in the nineties the average rose to
0.73% and from 2000-06 to 1.12% (Supreme Court, 51-52). In numbers, the increase is not
dramatic. The first decade of the new century also coincides with major decisions of the Court such
as the Delhi Air Pollution case, Bhopal Gas Disaster case, etc. in all of which executive inaction
over a long span of time was the primary cause of the PILs. The table at Annexure-I of this paper
would also show that the range of letters/petitions received by the Court ranged from 14,000-
18,000 in 16 years of the two decades. Thus there is no major indication that PIL litigants have
been adversely affected by the inability of the Court, in many instances, to obtain enforcement by
the State. Such litigation therefore legitimizes the catalytic nature of the Court‟s actions while
appreciating its limits. In environmental matters the Court has sought to bring a collaborative
regime into being; that itself is a major improvement as it partly opens public policy making and
implementation to popular participation, albeit ex-post facto.
However, the above figures of PIL cases mask the effort and time of the Court that has
been consumed at the cost of other pending litigation. The Court‟s intrusions have cost people
dear with Indian courts reporting staggering arrears of over 3 million cases in 2007, of which close
Pendency of Arrears in SC of India*
120000 109027
Number of Cases
100000
80000
60000 46926
40000 37851
20000 8663 22145
690 2656
0
1950 1960 1970 1980 1990 2000 2008
Year

36. Basu 35
to 50,000 in all categories are pending at various stages in the Supreme Court alone. Chart 1
shows the rising pendency of cases in the Supreme Court:
Chart 1
* Data from Supreme Court of India, Annual Report 2006-07, 76 and
http://www.supremecourtofindia.nic.in/new_s/pendingstat.htm extracted on March 28, 2008
In effect, the Court, with its penchant for repeated intrusions into the executive domain, has
placed itself in an unenviable position by delaying long overdue justice to its regular cases while
expending vastly larger amounts of time and effort on PILs. Judicial review in defense of human
rights in the Indian context was a legitimate exercise of jurisdiction by the Court and response to
the need of the 1970s. However, the radical democratization of the higher judicial process by the
Court from the 1980s and onward was perhaps ill-conceived, considering the absence of
corresponding physical resources to add credibility to its efforts, though not illegitimate in the
context of poor governance.
If the Court‟s verdicts have been on a piecemeal basis, the executive has not made any
serious efforts either to carry out systemic reviews of laws or make amendments to them for more
effective enforcement or to strengthen the PCBs and other enforcement agencies in the states,
regardless of repeated court directions at all levels. Thus the state of Karnataka SPCB had a
budget of Rs. 41.416 million in 1993 to pay for the monitoring of over 138,000 industrial units in the
state. This amounts to about Rs. 300 per industrial unit, or a U.S. equivalent of about $6.139 (Kuik,
100) As a result, the Karnataka SPCB was only able to monitor 8,966 of the state‟s industrial units,
a meager 6.5 percent (Kuik, 101). Furthermore, the Karnataka SPCB has lacked the resources to
effectively prosecute and shut down offending industries. From the inception of the Water and Air
Acts, in 1974 and 1981 respectively, until 1994, it had launched only eighty-seven prosecutions
under the Water Act and thirty-seven prosecutions under the Air Act, resulting in the closing of only
twenty-two industrial units (Kuik, 98). Such cases are more the rule than the exception and only

37. Basu 36
show the high level of executive indifference that has today caused interest groups to appeal to
India‟s higher judiciary for their intervention.
Nor has the legislature forced the executive to take corrective action and remained content
with occasional criticisms in the Court‟s activism (Chatterjee, 2007). The limits of legislative control
over the executive are apparent when one considers that India‟s Parliament passed the country‟s
budget (including taxation proposals for $ 104 billion) in 2004 without any debate (BBC, 2004).
Similarly, as on March 10, 2008 there are 32 Government Bills pending for passage in the Lower
House of Parliament, some since 2004 (Lok Sabha, 2008). Between May 2004 and December
2006, the Lower House lost 192 hours of debate time on account of boycotts, walk-outs, unruly
behavior that forced adjournment, etc. – the cost was a million dollars! (Times of India, 2006)
Considering that debate time per session is about 150 hours, India‟s powerful Lower House of
Parliament had wasted over a single session without any debate on governance (Times of India,
2006). Even in the presently ongoing Budget session, question hour has not been possible even
on a single day since the session commenced on Feb 25, 2008 (Yahoo News, 2008). The
centerpieces of the Budget presented to the Lower House by India‟s Finance Minister on Feb 28,
2008 is a $15 billion loan waiver for small and marginal farmers and reduction of personal income
tax (Ministry of Finance, 2008) to assuage the middle class – another classical case of
governance being sacrificed in a year when India prepares itself for the next general election in
2008-09.
Even if it is argued that PILs were a response to poor governance, the unilateral extension
of the scope of petitions and expounding state policy, particularly in matters of the environment,
and beyond the competence and skill sets available with the Court, were principally violative of the
Anglo-Saxon conception of separation of powers. Not only did substitution of the executive by
courts take place as Horowitz has argued, it may also be argued that this vastly reduced the
incentive for executive and legislative innovation and remedial action on its own and ultimately
reduced the accountability of the executive. Yet, paradoxically, the Court‟s decisions on

38. Basu 37
environmental issues have resulted, inter alia, in a cleaner capital city, an extended lease of life for
a World Heritage monument and preserved the endangered Royal Bengal tiger. Notwithstanding
Horowitz‟s reservations the Supreme Court‟s decisions and activism are in order in a state of
imbalance of the organs of state, though not infinitely. The Court is essaying the role of a catalyst
of change; of reform of a dysfunctional legislative and executive system that requires much higher
levels of accountability to the people.
While the Court has certainly exceeded its brief of judicial review, again per the Anglo-
Saxon view of separation of powers, yet the relatively stable flow of petitions/letters to the Court
shows that the limited action upon the Court‟s verdicts by the executive, has endowed the Court
with legitimacy in the eyes of the public who continue to petition it. While there may be some
element of frivolous litigation that the Court has taken action against, yet to question the legitimacy
of the Court‟s action in the light of the Anglo-Saxon theory of separation of powers seems
unjustified. In any case even in countries where the separation of powers is prevalent, the power of
judicial review has often been viewed with consternation by the other organs of state even though
the latter‟s inaction or negative action may have been the cause of PIL. The Brown vs. Board of
Education case in the US Supreme Court attracted charges of judicial activism but ultimately did
not delegitimize the Court. Therefore legitimacy of legal and constitutional concepts is peculiar to a
geographical region or a nation, its origins, history and culture, track record of governance, socio-
economic complexities and does not necessarily fit into the straitjacket of the Anglo-Saxon concept
of separation of powers and public interest law as Horowitz has stated in the American context.
Directions for Future Research
Judicial activism manifested in PILs started in the early 1980s; more than three decades
after India became independent. Did judicial activism therefore owe its origins and sustenance to
the excesses or inaction of the political executive and politicization of the Court, slowly advancing
stages of political and legal development and acculturation, rising levels of education and income,

39. Basu 38
liberalization of the economy, winds of globalization and a dynamic realignment and manifold
increase in interest group politics or is it a simplistic reflection of the people‟s disillusionment with
the legislature and executive‟s cumulative lackadaisical performance in delivering good
governance? Indeed it may be more important to analyze these causes rather than delivering
simplistic normative opinions of judicial activism being legitimate or otherwise.
Future research should therefore be directed to evolving a multi-dimensional view that
would place the Indian Supreme Court‟s activism in a more rounded perspective. The Indian
Constitution, while being a hybrid of the Westminster and the US models also serves as a delivery
system for socio-economic justice. Whether piecemeal justice as doled out by the Court is better
than no justice, whether governance by a judicial oligarchy is better than executive
maladministration or even whether the separation of powers in the Indian Constitution needs to be
revisited on the lines of Gardbaum‟s Commonwealth model, or whether courts should be excluded
from interfering in matters of social policy are major value concerns that a researcher would have
to address in such a multi-dimensional study. The overlap between the virtue and the vice and
even their interpretation as „good‟ or „bad‟ no longer conforms to the restrictive Anglo-Saxon
perception of separation of powers even as they apply to the world‟s largest democracy.

40. Basu 39
ANNEXURE – I1
Year No. of Letters/Petition No. of civil writ petitions Percentage of admitted writs
Received for PIL admitted by the Court to total letters/petitions
purposes (PIL) received
1985 24716 105 0.42
1986 25419 286 1.10
1987 18411 119 0.65
1988 16271 71 0.43
1989 17769 76 0.43
1990 17971 92 0.51
1991 17474 61 0.35
1992 16961 62 0.37
1993 15749 96 0.61
1994 16466 83 0.50
1995 15094 109 0.72
1996 19180 185 0.96
1997 15503 180 1.16
1998 13087 160 1.22
1999 15339 137 0.89
2000 17764 161 0.91
2001 17198 159 0.92
2002 15518 186 1.20
2003 14293 156 1.09
2004 15653 171 1.09
2005 14261 215 1.51
2006 19840 226 1.14
TOTAL 379937 3096 0.83
AVERAGE 269.22 0.83
1
Supreme Court of India (2007): Annual Report 2006-07. 52-53

41. Basu 40
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