Critique of PIL as a tool for environmental protection

In India, PIL has been used extensively as a tool to seek relief by the communities affected by industrial pollution. While Sawhney (2003) has stated that the pronouncement of remedies awarded by the courts can lead to environmental quality improvement in the country, there has also been some critique of the PIL as a tool to protect the environment. The use of this instrument to achieve environmental equilibrium is limited as the enforcement and monitoring of court orders may not always take place. This has been observed in practice too. For example in the Bichri village pollution case, the Supreme Court passed the final judgement in the PIL in 1996. Yet 15 years after the judgement, the litigation has been kept alive by the filing of some or other interlocutory application to avoid compliance. A similar situation can be observed in the case of the pollution of the Sabarmati, the Ganga and the Noyyal. Prasad (2004) has analysed the impact of PILs (in the Supreme Court and Andhra Pradesh High Court during the period 1990—99) on improving environmental quality. He has observed that a majority of the PILs pertained to water and air pollution. He concluded that PILs can lead to improvements in environmental quality if the court orders are strictly implemented and cases are disposed of in a timely manner. Sahu (2008) has analysed the role of the PILs filed in the Supreme Court of India for environmental protection. He has observed that PILs have ensured restitution of the fundamental right of the citizens to a healthy environment and have contributed to the evolution of new principles in environmental jurisprudence.

Sahu (2008) has also observed that the court’s approach in entertaining PILs for environmental protection has not been consistent. The courts have admitted PILs on environmental problems (such as water pollution, air pollution, forest degradation, etc.) resulting from industrial activities, but it has maintained a distance from PILs for environmental protection caused by infrastructure projects such as big dams, thermal power plants, airport and railway construction. The courts have held that in such cases the conception of the project is that of the government and the only thing that the courts can do is to ensure that the system works in the manner envisaged. It has held that with respect to public projects, the courts should not become the approval authority. The court has even set aside the adverse report of its own expert appraisal committee in the case of the Dahanu Thermal Power Plant. The courts have also tried to lay down the guidelines for entertaining PILs and have held that if a project is stayed on account of a PIL, which is subsequently dismissed, the petitioner should be made liable to pay for the damages due to the delay in the project. This has created fear among public-spirited persons in their fight for environmental justice.

Similar observations have been made by Rosencranz, Khan and Sahu (2019). They have observed that in sharp contrast to the pro-environmental judgements of 1980—00, the Supreme Court has, in its recent judgements, deviated from its principles and precedents of environmental protection. The outcomes of the Tehri Dam case, Narmada Dam case and Dahanu Thermal Power Plant case indicate the pro-development approach of the courts. The response of the courts in these cases has been that the petitioners have raised technical and policy issues which should be best left to the executive authorities. Similarly, in recent cases, the courts have favoured multi-national companies (MNCs) like Vedanta and have allowed its mining lease over large tracts of forest land, involving displacement of thousands of tribal families, who had been dependent on the forests for their livelihood.