When the public interest litigation movement was in its infancy in the 1980s, two Delhi University professors clipped a letter to the editor of a local daily describing the abominable conditions in the Agra resettlement home for women and sent it to the Supreme Court. The court turned the letter into a writ petition and started passing orders to the authorities (Upendra Baxi vs State of UP). The court specified the number of toilets, water taps, fans, radio and other basic facilities. This outraged a conservative judge of the same court. He went public making jibes such as: “The home at present is being run under the supervision of the Supreme Court.”
If the late judge were to visit “Green Bench II” of the court now, he would be even more astounded at the way the wildlife departments in several states are apparently being run by judges. The court has passed scores of orders in the past few months protecting not only land, rivers and trees, but also tigers, swamp deer, wild buffaloes and others that came out of Noah’s Ark (T N Godavarman Thirumulpad vs Union of India).
In these orders, you might also hear for the first time the existence of green tribunals in the main cities set up under the National Green Tribunals Act, 2010. The judges showed symptoms of environmental litigation fatigue when they asked the Uttar Pradesh government and the Centre, in one instance, to see “whether this matter can be placed before the National Greens Tribunal”.
Two Green Benches of the Supreme Court have before them a stupendous amount of work, which should have been the task of the state wildlife departments. The benches sit on two days a week to clear environmental cases. In the Godavarman batch of cases the Green Bench II has to deal with more than 3,200 applications. In another writ petition, Centre for Environment Law vs Union of India, the pile contains 2,800 applications.
The orders in such petitions indicate how the authorities neglect even small things and compel the court to intervene in executive function. Read some orders: speed breakers with fluorescent warnings shall be constructed in areas where wild animals usually cross the pathway; speed breakers at a distance of of 1.5 km to 2 km shall be provided; “no horn” signage shall be provided at spots where the road passes through wildlife sanctuary; the right of way shall be 60 metres; no night camping shall be allowed in the sanctuary area; any form of poaching will be strictly prevented, so also littering and dumping of debris from construction work inside the sanctuary. There are scores of orders that should not have been the job of the highest court of the land in the first place.
Such cases come to the court mainly because the officials in charge of routine matters are inefficient, negligent or corrupt. They do not implement the rules. Also, the Supreme Court has expanded the meaning of the fundamental right to life and liberty (Article 21 of the Constitution) to include not only mere existence but all things that make life worth living, short of the hedonistic. Some of the primary concerns are the right to clean air, water and protection of natural resources and biodiversity. When the authorities fail to do their duty, public interest groups move the Supreme Court or the high courts.
Even after petitions are moved in the Supreme Court, the states and their functionaries have to be prodded at every hearing to file their replies to the allegations. The two petitions mentioned above have been in the court since 1995. Even now the judges have to nudge or threaten the state counsel to file replies. Many of them do not comply with the directions, leading to contempt-of-court applications.
The court had long ago set up a “central empowered committee” with experts to study the details of the environmental issues. They coordinate with the wildlife boards and other parties concerned to recommend measures to protect the ecology of the forests. The orders are passed according to the committee’s suggestions.
This has turned out to be a stupendous task. The founding fathers of the Constitution could not have thought of the Supreme Court passing orders on the height and frequency of speed breakers on forest roads or fixing “no-horn” signs. Several jurists argue that the apex court should hear and decide only constitutional issues, considering the court’s stature and the infrastructure available. In environmental matters, grievances should be heard by regulatory bodies or tribunals and should not be taken straight up to the Supreme Court. Though this is plain horse sense, so far it has been a cry in wilderness.
