Judicial Activism

In one line

Judicial activism is a description, not a doctrine, and the useful question is not whether Indian environmental law is judge-made but why it had to be.

MU uses the phrase three times: the role of public interest litigation and judicial activism, judicial activism in protecting environmental rights, and the concept of judicial activism with the help of various doctrines. All three want the same material, and the third is really asking for the next chapter.

What the phrase means

A court is described as activist when it does one or more of five things.

It makes law rather than applies it. The absolute liability rule of the Oleum Gas Leak case was not in any statute and was contrary to the English authority the Court declined to follow.

It relaxes its own procedure. Standing, the epistolary jurisdiction, and the treatment of a newspaper report as a petition.

It enters administration. Directing which fuel an industry shall burn, how much ore a State may extract in a year, or how a city shall manage its solid waste.

It supervises for long periods. The forest case since 1996, the Ganga since 1985.

It creates remedies the law did not provide. Compensation in a writ petition, restoration at the polluter's cost, a permanent fund out of the proceeds of a natural resource.

Indian environmental law shows all five, which is why the phrase is unavoidable in this paper.

Why environmental law produced so much of it

Four reasons, and an answer that gives them is explaining rather than describing.

The statutes had no one to enforce them

The Water Act is of 1974, the Air Act of 1981 and the Environment Act of 1986. Each created or empowered Boards. What none of them created was any way for a citizen to compel a Board to act. The courts filled that gap, and Almitra H. Patel v. Union of India, AIR 2000 SC 1256, put the underlying point bluntly: local authorities are constituted to provide services to citizens and not merely to provide employment.

The harm has no owner

A polluted river injures everyone and belongs to no one, so ordinary litigation does not reach it. The relaxation of standing was a response to the nature of the subject matter and not a preference of the judges.

The Constitution said the environment mattered but made it unenforceable

Articles 48A and 51A(g) declare an objective and provide nothing to achieve it with. A court told by the Constitution that the environment is fundamental in the governance of the country, and told in the same breath that the provision is unenforceable, will look for another route. It found Article 21.