From Arati Davis, Bangalore
Compiled by Pankaj Kumar S., Resource Person; additional research provided by Ramya Gopalan, Research Associate, 14 September 2006
Original Query: Arati Davis, Svaraj, Bangalore
Posted: 21 August 2006
I work with a Bangalore based NGO which focuses on Integrated Water Resource Management in South India. We cover the four southern states with eleven local partner organisations to promote community management of natural resources, specifically water. Since the aim of our intervention is to provide sustainable community platforms for conflict resolution, our programmes give considerable emphasis to enable rural and urban communities to engage with existing government frameworks.
While working with these local field organisations, it has been my experience that more and more partners see the judiciaryrather than the government as a promising venue for fostering change. For example, a lot of our work is focused around urban and peri-urban areas, where drinking water for communities is being directly impacted by industrial water use and pollution. Our partners increasingly view Public Interest Litigation (PIL) as a key solution for resolving local conflicts in the short term, and equitable distribution in the long-term.
However, the problem in using the PIL as a strategy for equity and conflict resolution is that small field NGOs lack resources for research and adherence to the legal process to sustain the PIL against typically larger and more powerful opponents. Additionally, judgements by courts may offer short term, shortsighted or inappropriate solutions. For instance, closing down offending industries in a specific locale, with strict conditions on reestablishment, does not resolve the issue of relocation of the same industry to a different area or state. Finally, depending on the time taken for the case to be heard and resolved, NGOs who have filed cases are barred from continued agitation on the issue, which can ultimately work against the NGOs.
In the above context, I request members to please share experience on:
1. Examples where PILs have resulted in tangible benefits to poorest stakeholders or where PILs have proved to be barriers for ground level change.
2. Experiences, reactions, and opinions on the use of PIL for resolving water related conflicts and questions of distribution between multi-stakeholders with different inherent negotiating powers.
3. Mechanisms and processes by which time, reach and enforcement of legal decisions can be made better.
Responses received with thanks from:
1. V. Kurian Baby, Socio-Economic Unit Foundation (SEUF), Kerala (Response 1; Response 2)
2. Bikash Rath, Vasundhara, Bhubaneswar
3. Rahul Banerjee, Aarohini Trust, Indore
4. S.Janakarajan, Madras Institute of Development Studies (MIDS), Chennai
5. Arnab Bhattacharjee, Prakritika Jalasampada Punnarudhar Abhijan, Cuttack, Orissa
6. Saugat Ganguly, Gamana, Hyderabad
7. Jasveen Jairath, CapnetSA, Hyderabad
8. Jyotsna Bapat, Independent Consultant, New Delhi
9. Pankaj Kumar S., UNDP, New Delhi
Further contributions are welcome!
Read more
M.C. Mehta vs. State of Orissa, Cuttack (from Bikash Rath, Vasundhara, Bhubaneswar)
In Cuttack residents’ encountered health and sanitation problems because of sewage water clogging, sewage flowed directly into the river, and there was no sewage treatment plant. The Court ruled that Cuttack faced this crisis due to the inaction of the State in setting up a treatment plant to stop pollution entering the river. The Court directed the State to take immediate steps to prevent and control water pollution, and maintain water quality.
Vellore Citizen's Welfare Forum vs. Union of India (from Rahul Banerjee, Aarohini Trust, Indore)
This landmark case, involved tanneries situated around the river Palar in Vellore, Tamil Nadu. A citizens group charged that they were discharging toxic chemicals in the river, thereby jeopardizing the health of the residents. The Supreme Court allowed the Vellore Citizens’ Welfare forum to bring a case in order to protect the health of the Vellore residents. The Court asked the tanneries to close their business.
From Ramya Gopalan, Research Associate
Attakoya Thangal vs. Union of India Lakshwadeep Islands
The State administration evolved a scheme to augment the water supply- digging wells and drawing water from existing wells. Petitioners sought restraint as, ground water resources are limited, potable water is in short supply, and withdrawals with electric or mechanical pumps can deplete water sources, causing saline water intrusion. The Supreme Court directed CGWB to investigate aspects raised in the writ petition, and submit a report.
Ambuja Petrochemicals vs. Andhra Pradesh Pollution Control Board (APPCB)
The APPCB serviced one industry in the Patencheru belt of treatment plants with a notice for violating the Water (Prevention and Control of Pollution) Act. According to Board, the treatment plant (which belongs to a ‘high pollution potential industries’) was not in full operation and discharging partially treated effluents outside factory premises. The industry replied to the Board’s petition. The High Court ruled that the Board had a mandate to take the necessary steps.
Cases on Other Environmental Issues
PIL in Municipal Solid Waste Management (MSWM) (from V. Kurian Baby, Socio-Economic Unit Foundation (SEUF), Kerala; response 2)
A PIL was filed before the Supreme Court of India seeking to direct all state and Urban Local Bodies (ULBs) to improve the MSWM situation. The Court, basing its ruling on expert recommendations, directed Grade I cities to improve waste management systems and the GoI to frame appropriate rules. The Government accordingly framed MSWM (and Handling) Rules 2000, however despite the mandate that only around 12-15% of cities adhere to all the Rules.
Indian Council for Enviro Legal Action and Others vs. UOI and Others (from Saugat Ganguly, Gamana, Hyderabad)
This case relates to industrial pollution of the environment in Medak District, Andhra Pradesh. In 1997, the Supreme Court ordered the CPCB and Andhra Pradesh Pollution Control Board (APPCB) to formulate some immediate and long-term steps to prevent industrial pollution. Despite efforts from various quarters, many of these industries are still polluting the environment.
From Rahul Banerjee, Aarohini Trust, Indore
Rural Litigation and Entitlement Kendra (RLEK) vs. State of Uttar Pradesh
This is the first case involving issues relating to the environmental and ecological balance. RLEK brought it on behalf of the Mussoorie Hill community. The Supreme Court decision prohibited limestone mining quarries to continue operating, stating they have adverse effects on the environment. The Court also held that the right to unpolluted environment, and preservation and protection of nature’s gifts is a right under Article 21 of the Constitution of India.
Indian Council for Enviro-Legal Action vs. Union of India
In Bichhri village, problems began when Hindustan Agro Chemicals Limited started producing Oleum and Single Super Phosphate. Subsequently Silver Chemicals and Jyoti Chemicals produced 'H' acid in plants located within the same complex resulting in highly toxic effluents. The Supreme Court cautioned industries against discharging inherently dangerous Oleum and H acid, holding that this type of pollution infringes right to wholesome environment and ultimately right to life.
M.C. Mehta vs. Union of India
Mainly with the objective of protecting people’s health in Delhi, the Supreme Court issued directions to persuade government authorities to adopt steps to reduce the air pollution. The Supreme Court held that air pollution in Delhi caused by vehicular emissions, violates right to life under Article 21 of the Constitution and directed all commercial vehicles operating in Delhi to switch to using Compressed Natural Gas (CNG) to safeguard health of the citizens of Delhi.
Church of God (Full Gospel) in India vs. KKR Majestic Colony Welfare Association
The KKR Majestic Colony Welfare Association registered a complaint with the Tamil Nadu Pollution Control Board against the Church of God, claiming that the Church by using loudspeakers, drums and other instruments, during its services was causing ‘noise pollution,’ disturbing the residents of the colony. The Association also lodged complaints with the Chief of Police. TheSupreme Court ruled in their favor, stating ‘noise pollution’ is a violation of Article 21.
Role of PIL in Environment Protection in India
Vijay Oak; Legal Services India.Com
http://www.legalserviceindia.com/articles/peiln.htm
Discusses cases wherein the tool of PIL is used for the cause of environmental protection
Environmental Justice: Emerging Trends
By Colin Gonsalves; Environmental Support Group
Click here to read article
Discuses law & policy relating to environmental protection, developments and problems of PIL including various cases related to the environment and specifically on water
PIL Plea on Sharing of Neyyar Water
The Hindu, Tamil Nadu; October 8, 2005
http://www.hindu.com/2005/10/08/stories/2005100806240400.htm
Write up on the PIL petition seeking a direction to Kerala and Tamil Nadu governments on sharing waters of the Neyyar dam in Kerala.
Mahakali Impasse and Indo-Nepal Water Conflict
By Dipak Gyawali and Ajaya Dixit, Economic and Political Weekly Special Article; February 27-March 5, 1999
http://www.epw.org.in (Free registration required)
Discusses treaty between Governments of Nepal and India on Integrated Development of Mahakali River including Sarda and Tanakpur Barrage and Pancheshwar Project
Conflict-Resolution: Three River Treaties
By Ramaswamy R Iyer; Economic and Political Weekly Special Article; June 12, 1999
http://www.epw.org.in (Free registration required)
Paper discusses conflict-resolution of water resources in south Asia structured on The Indus Treaty 1960 (Indo-Pak), The Mahakali Treaty 1996 (Indo-Nepal), & Ganges Treaty
Was the Indus Waters Treaty in Trouble
By Ramaswamy R. Iyer; Economic and Political Weekly Commentary; June 22, 2002
http://www.epw.org.in (Free registration required)
Discusses the Indus Treaty between India and Pakistan having an international reputation internationally of being a successful instance of conflict-resolution.
Inter-State Water Disputes Act 1956- Difficulties and Solutions
By Ramaswamy R. Iyer; Economic and Political Weekly Special Article; July 13, 2002
http://www.epw.org.in (Free registration required)
Argues that repeal of the Inter-State Water Disputes Act, as recommended by The National Commission to Review the Working of the Constitution was ill advised
Rahul Banerjee, Aarohini Trust, Indore
The Indian judiciary has responded positively on the whole to PIL on environmental protection in many cases -
1. In Rural Litigation & Entitlement Kendra vs. State of U.P. (AIR 1985 SC 652) the Supreme Court prohibited continuance of mining operations, terming it to be adversely affecting the environment.
2. In Indian Council for Enviro-Legal Action vs. Union of India (AIR 1996 SC 1446), the Supreme Court cautioned the industries discharging inherently dangerous Oleum & H acid. The court held that such type of pollution infringes right to wholesome environment & ultimately right to life.
3. In another case M.C. Mehta vs. Union of India (AIR 2001 SC 1948) the Supreme Court held
that air pollution in Delhi caused by vehicular emissions violates right to life under Article 21 & directed all commercial vehicles operating in Delhi to switch to CNG fuel mode for safeguarding health of the people.
4. In Church of God (Full Gospel) in India vs. KKR Majestic Colony Welfare Association (AIR 2000 SC 2773) the Supreme Court observed that noise pollution amounts to
violation of Article 21 of the Constitution.
5. In landmark case Vellore Citizens' Welfare Forum vs. Union of India (AIR 1996 SC 2715) the Supreme Court allowed standing to a public spirited social organization for protecting the health of residents of Vellore. In this case, the tanneries situated around river Palar in Vellore (T.N.) were found discharging toxic chemicals in the river, thereby jeopardising the health of the residents. The Court asked the tanneries to close their business.
However, in some cases like the famous Narmada Bachao Andolan, where the basic paradigm of modern development was questioned, the Supreme Court has not been able to uphold the radical demands of the petitioners (Bhushan, P (2004): Supreme Court and PIL: Changing Perspectives Under Liberalisation, Economic and Political Weekly, Vol. 39 No 18)
Our own experience here with the High Court of Madhya Pradesh with smaller matters has shown that only if the petition is supported by thorough research and argued cogently by a senior lawyer does it get accepted. Even after this, getting the authorities to comply with the Court orders is a difficult proposition requiring further litigation, as Bikash Rath has averred. All in all, PIL should be filed only as a last resort because it is extremely expensive and time consuming and out of reach of poor people. Only if an organisation has good financial support, which is very rare for organisations fighting for the poor, can a PIL bring them relief.
S. Janakarajan, Madras Institute of Development Studies (MIDS), Chennai
It is necessary to discuss what is judicial activism. All judgments - whether one calls it judicial activism or otherwise, are delivered only according to what is permitted in law. The so-called judicial activisms are in a way delayed justice and I do not see any activism in them.
Arnab Bhattacharjee, Prakritika Jalasampada Punnarudhar Abhijan, Cuttack, Orissa
Your query asks whether PIL has proved to be an effective instrument to resolve conflicts in grass roots development activities. Many activists may agree that litigation is a form of action which cannot bring a final solution to any conflict, and in every litigation the two parties need to converge at a point for resolution. However, if they take parallel lines, the case may drag on. It is also crystal clear that after the decision of the court of law, you cannot do anything more about the said decision. So it is not a proper solution to any conflict, rather we can adopt the process of Public interest Negotiation (PIN) to resolve the conflict as a core strategy. The public issue would be resolved in this method of negotiation, which may take time but the outcome will be helpful both in the short term and in the long term. PIL is the last weapon – and I would call it the BRAHMASTRA, before applying which, a lot of ground level preparation needs to be done in proper way with adequate consultation.
V. Kurian Baby, Socio-Economic Unit Foundation (SEUF), Kerala (response 2)
In Continuation to the ongoing discussions, I would like to site the case of PIL in municipal solid waste management (MSWM) in India. A PIL was filed before the Supreme Court of India seeking directions to all States and Urban Local Bodies (ULBs) to improve the pathetic SWM situation expeditiously. The Hon’ble Supreme Court, based on the recommendations of an expert panel, directed all Grade I cities to improve the systems of waste management and directed Government of India to frame appropriate rules for the management of municipal solid waste in the country. The Ministry of Environment and Forest, accordingly framed “Municipal Solid Waste (Management and Handling) Rules 2000 under the
Environment Protection Act, 1986 making it mandatory for all Municipal authorities in the country irrespective of size and population to implement the directions contained in the rules by 31st December, 2003.
However, the overall adherence to the seven steps, right from door to door collection to process and disposal, on an average still remains around 12-15%, on account of various reasons. The experience shows that, PIL though a very potent instrument in specific cases, in itself may not make any significant dent into the systemic/structural inefficiencies like issues of institutional weakness and weak enforcement. It can at best give a shock necessary as a wake up call. I do agree with Prof. Janakarajan that ‘’judicial activism’ is always with in the permissible law. However, it occurs when the judiciary departs from the established precedent and opens new windows to the law through interpretations and judgments that make the law itself dynamic.
Saugat Ganguly, Gamana, Hyderabad
PILs, if used, should be used at the last phase of a process of conflict resolution. The following points should be taken care of before taking the issue to the court:
1. The petitioner has to do a lot of homework before filing the case. Judicial path should not be opted for if the chances of winning are slim. After judicial intervention, there is very little scope to take the issue to a different platform.
2. The petitioner should have adequate resources, and a high enough motivational level to persist with the case while it goes on for a long time.
Our experience with legal interventions in an industrial pollution related problem in Medak District of Andhra Pradesh (Writ Petition (Civil) No.1056/1990 (Indian Council for Enviro Legal Action & Others Vs. UOI & Others) can be summarized as:
1. Even if the Court gives a decision in favour of the petitioner, the subsequent problem of implementation remains. In the above case, the Supreme Court ordered the Central Pollution Control Board (CPCB) and Andhra Pradesh Pollution Control Board (APPCB) to formulate some short term, mid term and long-term steps to prevent industrial pollution, way back in 1997. Despite all efforts from various quarters, many industries are still polluting the environment.
2. The affected community/petitioner should also have the authority and capacity to monitor the progress in implementation of the Court orders. We feel that government institutions - because of the lack of manpower, skill and willingness - are not able to do this job properly.
3. In some cases, the same cause affects people from various aspects of life at different times. Usually, although the problem looks straightforward in the beginning, the complexity of the problem increases with time. For example, beginning from just a problem of infertility of land and lack of safe drinking water caused by industrial pollution, the above quoted issue has now taken new dimensions like destruction of other forms of livelihood (e.g. fish in lakes being killed by illegal discharge of industrial effluents into the lakes), illegal sand filtration in agricultural lands and other social problems. This has happened due to the long drawn nature of the legal battle without an actual resolution of people’s problems.
Jasveen Jairath, CapnetSA, Hyderabad
PIL is useful and effective when there is a clearly identified offender, as defined/existing by the law - and can be undertaken by an agency that is 'literate" about the process/procedures of PIL. When complementing a social/mass movement (even at a local level) it can create pressures that discourage repeating of such actions.
However - in case of domestic sanitation - the "adversary" is some times diffused - very often it also comprises certain constituencies within the civil society that makes targeted legal action difficult. Secondly - the unsanitary situations that we witness in all our cities/towns are a result of planning failure. It is difficult to use legal tactics in such situations as the problem has a complex origin.
Publishing information on the role of offending parties (public and private), using RTI for seeking information on the failure of government departments to perform along with media support and the use of community radio and campaigns may provide a more effective method for creating public pressure, which can then be followed by a well-publicized PIL with strong social support. Legal actions taken after requisite social mobilization tend to create a more powerful impact.
Jyotsna Bapat, Independent Consultant, New Delhi
I would say there are two ways of looking at PIL. Firstly, the most popular and useful way in which NGOs and social activists are making use of the PIL is to ensure accountability of service delivery by the relevant public authority for solid waste management, and maintenance of water supply and local drainage systems.
Secondly and more importantly, the PIL is used to rectify areas where policy for a sector are still evolving. Thus using PILs, a pattern of complaints slowly emerges, which then provides guidelines for what is missing and where policy changes need to be incorporated.
In my opinion, it is the latter function of a PIL that is more relevant in the long run. Thus a PIL is a barometer of social discontent in the public service sector and it is important that the mechanism be kept alive.
Pankaj Kumar S., UNDP, New Delhi
In addition to the points already discussed, I wish to bring to members’ notice the following points made in some papers in the Economic & Political Weekly on the PIL issue:
1. Paper by Bhushan, P, “Supreme Court and PIL”, Economic & Political Weekly, May 1, 2004.
The paper discusses three cases related to water conflicts - Narmada Bachao Andolan, Tehri Dam and Interlinking of rivers. In all three cases, Bhushan finds the court favouring ‘development’ over the rights of oustees.
2. Paper by Dembowski, H, “Environmental Litigation in Calcutta”, Economic & Political Weekly, January 2-9, 1999.
The author contends that in judging PILs, the judiciary is proceeding largely on a case by case basis rather than applying an overarching, consistent body of law on environmental concerns. In fact, at times we see that a change of judges may radically change the net outcome of Litigation. He feels that this is because there is a huge gap between Environmental Legislation and the reality on the ground. The author feels that the only way to ensure that this gap reduces is for the judiciary to improve governance by making the bureaucracy more transparent.
3. Paper by Iyer, Ramaswamy R, “Some Constitutional Dilemmas”, Economic & Political Weekly, May 27, 2006.
The paper discusses PILs in the overall context of amendments to the Constitution and role dynamics between the legislative, executive, and judiciary. In the water arena, it discusses the cases of Interlinking of Rivers, Narmada, and setting up of the Central Groundwater Authority. It does not go into the merits of the judgements given by the court, but questions whether these judgements can be seen as instances of judicial activism or as encroachment of the executive and legislative spaces. Iyer also feels that while PILs have delivered some very good results, they stem from gaps in good governance, responsible and responsive legislatures, and from ensuring a good and easily accessible system of justice.
Many thanks to all who contributed to this query!
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