Environmental Advocacy

By Adv P.B.Sahasranaman

 

 

The concept of the Green Bench to deal with environmental public interest litigation is suggested by the Supreme Court years back. Why should a special bench deal with environmental cases? Is the not the ordinary court capable of dealing with such cases?

 

An ordinary jurist dealing with an environmental case without the knowledge of environmental science will not be able to deal with the said modern law. 1Supreme Court had the occasion to consider such an issue, when an environmental appellate authority, headed by a retired ordinary judge, stated that it is a highly technical matter and no interference was called for, as if the Court is dealing with a matter in exercise of his powers under judicial review. SC interfered with the matter and also stated that “things are not quite satisfactory and there is an urgent need to make appropriate amendments so as to ensure that at all times, the appellate authority or tribunals consists of Judicial and also Technological personal well versed in environmental matters”. Such bodies should not be restricted to limitations of ordinary courts, the Supreme Court observed.

 

The Green Advocacy

 

There are no special rules of advocacy with regard to environmental matters. Often in environmental cases, the evidence of experts is of critical importance. An environmentalist, who happens to be a lawyer, once complained that he had difficulties in of presenting complex scientific information to a non-science oriented court. He cited an example wherein the judge was hearing a matter of water pollution. The counsel for the polluting company has submitted that initially, the pH value of the water is “ten” and now it has come down to “three”. The court immediately decided to dismiss the petition for the sole reason that the pollution from ten has come done to three. The court was under an impression that the reduction of pH value of water from ten to three has purified the water. The judge has forgotten the fact that the increase in pH value has made the water alkaline, and by reducing it below 6.5 pH has turned the same into acid. But it is the task of the lawyer to assist the court to arrive at the truth and to dispense justice.

 

When Mr. M.C.Mehta was arguing the famous Ganga Pollution case, the Pollution Control Board relied on its report stating that the water is not polluted and is of the prescribed standard. Mr. M.C.Mehta took a bottle of water from his bag. The colour of the water in the bottle was brown like that of Coca Cola. He laid it on the table and submitted that, if this is the water that the PC Board say is not polluted, let the official may taste it. The concerned official hesitated and Mr Mehta wittingly said, ‘Do not worry you will not die, you will only faint. ‘ The Court appointed an independent expert body, NEERI, to examine the water quality.

 

An Advocate once complained that when a judge went to inspect the site of the alleged pollution, the place has been cleaned and the party against whom such a complaint was lodged dipped his finger into the drain and put it in his mouth to show that there is no pollution. Since nothing happened the Court threw his case. According to the Counsel although the consumption of a small quantity of water is not harmful, due to “bio-accumulation”, it was highly toxic. In my view, it is the duty of the Counsel to point out the said fact by adducing evidence to refute the allegation that dipping the finger in the water was sufficient evidence of the harmlessness of the substance in question.

 

It is not a solution to cover the Ice at Artic with a plastic sheet. Nobody will suggest putting Ice cubes in the sea to prevent global warming.

 

The Green Interpretation

 

Supreme Court of India while widening the definition of 2"forest" in the Forest Act has held that it must be understood according to its dictionary meaning. It includes all statutorily recognized forests, whether designated as reserved, protected or otherwise. Such a green interpretation was given to protect the forest of our country.

 

In Kerala, a Geologist has incorporated an additional condition for the protection of the environment in the mining lease. The written law does not empower him to include such conditions. When the same was challenged before the High Court, the Geologist has taken the stand that he has done it by following the principle of Public Trust Doctrine, one of the green principles laid down by the SC. 3The writ court has upheld the insertion of the said green condition imposed by the geologist for the reason it is essential to protect the environment.

 

The maxims, salus populi suprema, lex (the safety of the people is the supreme law) and salus republican supreme lex (safety of the state is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. “The cynicism about 'equal justice under the law' sours into 'show me the man and I will show you the law'. The democratic system must ensure that the business of power - public power - shall not be doing business,” 4 words of Justice V.R.Krishna Iyer is to be reminded

 

The Green Court

 

In litigation, the judge is but one factor. It is said that an English lady once asked Lord Chief Justice what is necessary to win a case ?. “First you need a good case, then you need good evidence, then you need a good client, then you need a good judge, then you need a good jury and you need good luck”.

 

There is no shortcut to the road to proficiency in the art of advocacy. It is the experience that brings success and in exceptional cases the small minority groups in all walks of life who have been touched by the magic want of genius.

 

A lawyer has introduced me to his friend as an environmentalist. I asked him if it was because I practice dealing with cases on environmental law you introduced me as an “environmentalist”? If so, how will you introduce a lawyer practising in Criminal or Administrative Law? I was reminded of Albert Einstein, “ The environment is everything that isn't me”.

 

 

 

 

 

Adv.P.B.SAHASRANAMAN

sahasram@gmail.com 

 

 

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