Standing: How Public Interest Litigation Opened the Environmental Courts
Chapter Thirteen
Syllabus topic 1, "Pollution"
Pages 54 to 57 of 783
In one line
Environmental law works in India because the courts let somebody who has not personally been injured bring the case, and it is limited because they will not let anybody bring any case.
In exam wording: the ordinary rule of locus standi requires a petitioner to show that his own legal right has been infringed, but in environmental matters the Supreme Court has held that a petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even of a group of social workers or journalists, subject to the qualification in Subhash Kumar v. State of Bihar that recourse must be taken by a person genuinely interested in the protection of society and that a personal grievance may not be pursued in the garb of public interest litigation.
What locus standi is, and why it was a problem
Locus standi is Latin for a place to stand, and in law it means the right to bring a case. The ordinary rule is that a court hears a complaint from the person whose right has been infringed and from nobody else. It is a sensible rule: it keeps busybodies out, it ensures the case is argued by somebody with a real stake, and it stops a defendant being sued twice over the same wrong.
Now apply it to pollution. A factory discharges effluent into a river.
- The fish have no standing, having no legal personality.
- The river has none, for the same reason.
- The people downstream may have standing in nuisance, but each must prove damage to himself, and most of them are poor, unorganised and unlikely ever to reach a court.
- Future generations have none, not existing.
- A conservation society has none, because nothing of its own has been infringed.
So the wrong that everybody suffers is a wrong nobody can sue for. That is the problem public interest litigation was developed to solve, and environmental cases are where it has done most of its work.
How the rule was relaxed
Two devices, both simple.
One, a letter may be treated as a petition. The Court has taken up matters on the basis of a letter or a newspaper report. In Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1987 SC 359, a letter from a voluntary organisation about limestone quarrying in the Dehradun valley was treated as a writ petition; that litigation ended with the closure of mines and the appointment of expert committees. In M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, a newspaper report that a motel had altered the course of the river Beas was taken up as a petition and produced the public trust doctrine.
Standing: How Public Interest Litigation Opened the Environmental Courts
Two, a stranger to the injury may petition. The rule now is the one stated in Subhash Kumar v. State of Bihar, AIR 1991 SC 420, (1991) 1 SCC 598: a petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists.
And how it is limited
The same case that states the relaxation is the case that limits it, which is why it is the one to know.
Facts. The petitioner alleged in a public interest petition that West Bokaro Collieries and the Tata Iron and Steel Company were polluting the river Bokaro with sludge and slurry from their washeries, and that the State and the Board had failed to act. It emerged that he had himself been buying slurry from the company, that the supply had been stopped, and that the petition was a vehicle for that grievance.
Held. Recourse to Article 32 must be taken by a person genuinely interested in the protection of society. Personal interest cannot be enforced in the garb of public interest litigation. The entertainment of petitions satisfying a personal grudge is an abuse of the process of the court, and it is the duty of the court to discourage such petitions. The petition was dismissed with costs.
So the doctrine is not that anybody may bring anything. It is that the requirement of personal injury is replaced by a requirement of genuine public purpose, and the court examines that purpose.
The four questions a court asks
Reduced to what a practitioner needs, the enquiry is:
- Is the subject matter a genuine public grievance, or a private dispute dressed up?
- Is the petitioner acting bona fide, or pursuing a commercial rivalry, a personal grudge or publicity?
- Is there material, or only assertion? In Subhash Kumar there was no material to substantiate the allegations, and that mattered.
- Is the petitioner in a position to conduct the case responsibly?
Where the case is brought now
This is the part most textbooks do not reflect, and it changes the practical answer.
Since 2010 the National Green Tribunal has jurisdiction under section 14 of its Act over all civil cases where a substantial question relating to environment arises out of the implementation of the enactments in its Schedule I. Under section 18 an application may be made by, among others, any person aggrieved, and the expression has been read broadly. The Tribunal is cheaper, faster and has expert members.
The consequence is that the ordinary environmental case begins before the Tribunal, and the writ jurisdiction is used where the Tribunal cannot help: where the grievance is outside the scheduled Acts, where a constitutional question arises, or where what is wanted is continuing supervision of a kind Module IV describes.
Standing: How Public Interest Litigation Opened the Environmental Courts
A worked example
A residents' association in a Mumbai suburb finds that a construction project is dumping debris in a mangrove area. No member of the association owns the mangrove, none can show damage to his own property, and the association is a registered society with no proprietary interest at all.
Under the ordinary rule the association has no standing and nor does any member.
Under the relaxed rule the association may proceed, because it is a group acting for a public purpose, the subject matter is a genuine public grievance, and there is material in the form of photographs and municipal records.
Where it goes. Dumping construction waste in a mangrove engages the Environment (Protection) Act, the coastal regulation notification and the construction and demolition waste rules, all of which are scheduled Acts or made under them, so section 14 of the NGT Act is satisfied and the Tribunal is the forum.
What would defeat it. Evidence that the association was formed by a rival developer, or that its office bearers had been negotiating with the builder and had fallen out. That is Subhash Kumar, and it would end the case whatever the merits of the mangrove complaint.
What it does NOT mean
It does not mean standing has been abolished. It has been relaxed. A petitioner must still be genuinely interested in the protection of society, and the court will examine whether he is.
It does not mean the environment has standing. Indian law has not conferred legal personality on rivers in a way that has survived, and the petitions are brought by persons on the environment's behalf.
It does not mean a private grievance can never be raised. It means it cannot be raised in the garb of a public interest petition. The same complaint may be perfectly good as a civil suit or as a complaint to the Board.
Limits and criticism
The line between a genuine and a disguised interest is hard to draw, and the cases are inconsistent. A neighbour objecting to a plant is affected and interested at once.
Relaxed standing produces cases without an adversary. Where nobody with a real stake defends, the court hears one side and appoints committees, which is how the Dehradun and Almitra Patel litigations were run and why they lasted decades.
And the Tribunal has changed the argument. With a specialised forum, cheap access and expert members, the case for a wide writ jurisdiction in ordinary environmental matters is weaker than it was in 1986, and the honest position is that the writ court is now the exception rather than the rule.
Standing: How Public Interest Litigation Opened the Environmental Courts
Quick revision
- Locus standi: a place to stand, the right to bring a case. Ordinarily the person whose right is infringed.
- The environmental problem: the wrong everybody suffers is a wrong nobody can sue for.
- Subhash Kumar, AIR 1991 SC 420: maintainable at the instance of affected persons or a group of social workers or journalists, but recourse must be by a person genuinely interested in the protection of society, and a personal grudge is an abuse of process. The petition was dismissed.
- A letter or a newspaper report may be treated as a petition: Dehradun quarrying, and Kamal Nath.
- Since 2010 the ordinary forum is the National Green Tribunal, section 14 and section 18.
Test yourself
1. Why does the ordinary rule of locus standi fail in environmental cases? Because the entity harmed cannot sue and the persons harmed usually cannot. A river and its fish have no legal personality, future generations do not exist, and the people downstream must each prove damage to themselves and are usually unable to reach a court. The result under the ordinary rule is that a wrong suffered by everybody is actionable by nobody.
2. State the rule and the limit from Subhash Kumar in one sentence each. The rule: a petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even of a group of social workers or journalists. The limit: recourse must be taken by a person genuinely interested in the protection of society, personal interest may not be enforced in the garb of public interest litigation, and a petition satisfying a personal grudge is an abuse of the process of the court which the court has a duty to discourage.
3. Give two cases begun otherwise than by a formal petition, and say what each produced. Rural Litigation and Entitlement Kendra, begun on a letter from a voluntary organisation about limestone quarrying in the Dehradun valley, which produced the first closure of an industry on environmental grounds and the technique of the court-appointed expert committee. And M.C. Mehta v. Kamal Nath, begun on a newspaper report that a motel had altered the course of the river Beas, which produced the adoption of the public trust doctrine into Indian law.
4. Where would an environmental complaint about a scheduled Act be filed today, and why does it matter? Before the National Green Tribunal, under section 14 of the National Green Tribunal Act 2010, which covers civil cases raising a substantial question relating to environment arising out of the implementation of the scheduled enactments, on an application under section 18. It matters because the Tribunal is cheaper and quicker and has expert members, so the writ jurisdiction is now the exception, used where the Tribunal cannot give the relief sought.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.