The Writ Jurisdiction, and Continuing Mandamus

In one line

Articles 32 and 226 turned a right to life into a right to clean air, and the courts kept the cases open for decades to make the orders work.

In exam wording: the writ jurisdiction of the Supreme Court under Article 32 and of a High Court under Article 226 became the principal route for environmental litigation in India because the right to life in Article 21 was held to include the right to a wholesome environment; the technique the courts developed is the continuing mandamus, in which the petition is not disposed of but kept pending, expert committees are appointed and directions are issued and supervised over years.

How pollution became a fundamental right question

The chain is short and it should be given in order.

Article 21. No person shall be deprived of his life or personal liberty except according to procedure established by law.

Subhash Kumar v. State of Bihar, AIR 1991 SC 420. The right to life includes the right of enjoyment of pollution-free water and air for the full enjoyment of life, and a petition under Article 32 lies for its enforcement.

And the constitutional support. Article 48A, a Directive Principle, requires the State to endeavour to protect and improve the environment and to safeguard the forests and wild life; and Article 51A(g) makes it a fundamental duty of every citizen to protect and improve the natural environment, including forests, lakes, rivers and wild life, and to have compassion for living creatures. Neither is enforceable of itself, and both were used to give content to Article 21.

The consequence. A person affected by pollution need not find a statute, a cause of action or a defendant with a duty to him. He may move the Supreme Court under Article 32 or a High Court under Article 226.

Why the writ jurisdiction was used so heavily

Four reasons, and all four are examinable.

One, the statutes were not enforced. The Water Act had existed since 1974 and the Air Act since 1981, and the Boards prosecuted very little. The citizen-complaint provisions requiring sixty days' notice were seldom used. A person with a real grievance had a right and no remedy.

Two, standing was relaxed. Public interest litigation removed the requirement of a personal injury. In the Oleum gas leak case the Court held that where the rights of persons who cannot approach a court by reason of poverty or a disadvantaged position are violated, any public-spirited individual or social action group may bring an action, including by addressing a letter to the Court, and that such a letter should not be rejected for want of the preferred form or of an affidavit.