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Why the Underdogs Came Out Ahead An Analysis of the Supreme Courts Environmental Judgments, 1980-2010
Geetanjoy Sahu

A study of judgments by the Supreme Court in environmental cases from 1980 to 2010 shows that a majority of them have supported the issues raised by underdogs such as environmental NGOs against the practices or policies of the powerful such as governments and industrial units. But prominent exceptions to this have been the outcomes of cases challenging infrastructure projects. This paper seeks to explain how and why the Supreme Court has frequently decided in favour of weaker parties, and to analyse the implications of this for environmental jurisprudence in India.

ver the last three decades, the Supreme Court has played a signicant role in protecting and improving the environment by recognising that the right to a healthy environment is part of the fundamental right to life, determining the compensation due to pollution-affected people, taking suo motu action against polluters, and allowing petitions on behalf of pollution-affected people and other things. In addition, it has directed the closure of polluting industries, ordered implementing agencies to discharge their constitutional duties, expanded the sphere of litigation, and introduced environmental principles such as the polluters pay principle, the precautionary principle, the concept of absolute liability, and the public trust doctrine (Sahu 2008). While there is a common perception in India that nancially, politically, and organisationally strong parties (such as the union of India, state governments, local governments, and industrial units) tend to win in environmental litigation against weaker parties (such as public interest citizens and environmental groups), an analysis of 184 environmental judgments by the Supreme Court from 1980 to 2010 reveals a different picture. According to our ndings, weaker parties, especially environmental non-governmental organisations (NGOs) and activists, have prevailed over stronger parties in most of the environmental disputes in India.1 In this connection, one caveat is in order. This paper seeks to explain how and why the Supreme Court has in a majority of environmental judgments supported the issues raised by weaker parties such as environmental NGOs and activists, and to analyse its implications for environmental jurisprudence in India. The ideological aspects of environmental judgments and their implications are not a part of this discussion.2 This study is based on a two-pronged approach. The rst part reviews environmental cases from 1980 to 2010 to understand how the concerns of underdogs are reected in the judgments of the Supreme Court.3 The second part examines the factors that have determined environmental judgments in support of underdogs, and different groups, such as judges, lawyers, and petitioners involved in environmental cases in the period under study, were interviewed for this.
Theoretical Perspective

I would like to thank Roopa Madhav and George H Gadbois, Jr for their comments on this paper. I am also thankful to an anonymous reviewer for comments on this paper. Geetanjoy Sahu (geetanjoy@tiss.edu) is with the Tata Institute of Social Sciences, Mumbai.

The theory of resource capacity is based on the premise that those who do not have access to resources (knowledge, power, nancial strength, and capacity to negotiate) nd it difcult to
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succeed, as in litigation against different types of power structures. Galanter (1974) argues that repeat players, or those possessing greater resources in terms of wealth, experience, and rapport with the political groups, are more likely to inuence judicial outcomes than powerless groups, or those possessing little of these resources. Applying Galanters framework, Songer and Sheehan (1992) nd that upperdogs (federal and state governments, and business groups) fare better than underdogs (individuals and communities) in the US Courts of Appeals. Similarly, other scholars have established that the status of litigants has a substantial inuence on judicial outcomes in the US and other countries.4 Likewise, there is a common perception in India that the state is more powerful than industrial units or other organisations as far as access to resources is concerned, and that industrial units are more powerful than communities or pollution-affected parties. So, both the state and industrial units are seen as having a better chance to win litigation. However, scholars such as Baxi (2000) observe that some judges of the Supreme Court have consistently supported the government in litigation involving individuals and private interests against the state, while other judges have consistently rejected the governments position by demonstrating support for individuals and private parties, depending on the nature of issues involved. Gauri (2009) nds a mixed pattern in judicial directions involving different types of litigants. His study shows that, on an average, decisions of the Indian judiciary before the 1980s were in favour of disadvantaged groups, whereas today upperdogs have higher rates of success than litigants who are not from among them. As far as the factors determining outcomes in environmental cases before the Supreme Court are concerned, legal expert Prashant Bhushan (2004, 2009) argues that judicial ideology has a stronger impact on success than differences in the resources and expertise of litigants. These studies show how the judiciary behaves in different circumstances. Yet, very little systematic empirical research has been conducted in India to fully explore the extent to which the resource capacity of litigants determines the outcomes of environmental cases in the Supreme Court. This paper is an attempt in that direction. The following section gives an overview of some environmental judgments that have favoured the concerns of environment groups over those of the state and industries.
Illustrative Environmental Judgments: An Overview

the Government of Uttar Pradesh, the Court in its order observed that
the closing down of limestone quarry units would undoubtedly cause hardship to them, but it is a price that has to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance of ecological balance and without avoidable hazard of them and to their cattle, homes and agricultural land and under affectation of air, water and environment (AIR 1985 SC 656).

In Rural Litigation and Entitlement Kendra (RLEK) vs Union of India (AIR 1985 SC 652), the petitioner, the Rural Litigation and Entitlement Kendra (RLEK), Dehradun, pleaded that a large number of leases given to limestone quarries be cancelled on the grounds that they were polluting the environment, causing an ecological imbalance, and proving to be a health hazard. The respondents, the state and the limestone quarries, argued that closing down the quarries would throw the owners, who had invested large sums of money, out of business and that the state would lose revenue. Notwithstanding the resource capacity of the limestone quarries and
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The Supreme Courts order in Indian Council for Enviro-Legal Action vs Union of India best illustrates how environmental issues, not the resource capacity of the parties involved, are important. The petitioner, the Indian Council for Enviro-Legal Action, went to Court to reduce the pollution caused by several chemical industrial plants in Bichhri village in Udaipur district of Rajasthan. The respondents, including Hindustan Agro Chemicals and Jyoti Chemicals, were operating heavy industry plants producing chemicals such as oleum (fuming sulphuric acid), single super phosphate, and H-acid. Calling them rogue industries, the Court held that they had inicted untold misery on the poor, despoiled their land, water sources, and the environment in pursuit of private prot, and that they had failed to comply with the statutory acts for prevention and control of pollution (AIR 1996 [3] SCC 212). It ordered the closure of all the plants. Similarly, in Tarun Bharat Sangh, Alwar vs Union of India and Others (AIR 1992 SC 514) the petitioner challenged the government for giving licences for mining activities in protected areas and requested the Court to direct the government to cancel these. With all the resources at its disposal, the Government of Rajasthan could not substantiate its stand, and the licences given for the mining activities were cancelled. The Vellore Citizens Welfare Forum (VCWF) led a public interest litigation (PIL) against the large-scale pollution of soil and water by tanneries (more than 500) and other industries in Tamil Nadu (VCWF vs Union of India, AIR 1996 SC 2715). The tanneries and industries were given the option of either installing common efuent treatment plants (CETPs) for a cluster of industries or setting up individual pollution control devices. The Tamil Nadu Pollution Control Board prescribed standards for the discharge of efuents and the central government offered a substantial subsidy for the CETPs. However, matters proceeded very slowly, forcing the Court to eventually order the closure of several industries. In M C Mehta vs Union of India (AIR 1997 [11] SCC 327), or the Delhi industrial relocation case, the petitioner, Supreme Court lawyer M C Mehta, argued that several hazardous industries operating in Delhi were violating the Master Plan for Delhi, Perspective 2001, approved by the central government, while posing a serious threat to public health. The PIL resulted in 168 industrial units closing down and more than 1,000 industrial units shifting from Delhi to other parts of the country. Most importantly, this served as a precedent in the Delhi vehicular case when the Supreme Court had to face strong resistance from different quarters, including a strong industrial lobby and the Government of Delhi, after it directed that all buses be converted to run on compressed natural gas (CNG) and stressed that citizens should have a healthy
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environment to live in (Agarwal et al 1996). The industrial relocation case illustrates how environment and health issues can be more important than the resource capacity of the parties involved in litigation. However, the Supreme Court decisions in environmental litigations led against infrastructure projects have gone in
Table 1: State Governments vs Others
Type of the Petitioner Type of the Respondent Number of Decisions of the Court in Litigations Favour Favour No Decision Filed of the of the and Case against the Petitioner Respondent Transferred Respondent to High Court

State government Union of India Another department of state government Local government Industrial units Community Organisation Individual Total

01 02 00 11 00 00 28 42

01 02 00 11 00 00 24 38

00 00 00 00 00 00 04 04

00 00 00 00 00 00 00 00

favour of upperdogs in spite of petitioners making all efforts to prove that state-initiated policies violate statutory acts and constitutional provisions for the protection and improvement of the environment.5 For instance, in Narmada Bachao Andolan vs Union of India and Others (AIR 2000 SC 3751), the petitioner made all efforts, including mobilising the people, holding debates on development projects and alternatives to them, seeking the support of the media, submitting facts and material gathered through research activities, and highlighting the plight of the affected people, particularly tribals and other disadvantaged groups, but these arguments were sidelined by the judiciary. The outcomes of the Tehri dam case and the suit against constructing a thermal power plant in Dahanu taluk in Thane district of Maharashtra also saw the Court rejecting the pleas of underdogs for environmental protection. Despite these pro-upperdog judgments, there have been a number of environmental cases in which petitioners have been successful in drawing the attention of the Supreme Court to
Table 5: Local Government vs Others
Type of the Petitioner Type of the Respondent Number of Decisions of the Court in Litigations Favour Favour No Decision Filed of the of the and Case against the Petitioner Respondent Transferred Respondent to High Court

Table 2: Environmental Organisations vs Others

Type of the Petitioner Type of the Respondent Number of Decisions of the Court in Litigations Favour Favour No Decision Filed of the of the and Case against the Petitioner Respondent Transferred Respondent to High Court

Organisation

Union of India State government Local government Industrial units Community Organisation Individual Total

20 13 00 03 00 01 02 39

17 08 00 02 00 01 02 30

03 05 00 01 00 00 00 09

00 00 00 00 00 00 00 00

Local government Union of India State government Another local government department Industrial units Organisation Community Individual Total

00 00

00 00

00 00

00 00

00 00 00 00 01 01

00 00 00 00 00 00

00 00 00 00 01 01

00 00 00 00 00 00

Table 3: Industrial Units vs Others

Type of the Petitioner Type of the Respondent Number of Decisions of the Court in Litigations Favour Favour No Decision Filed of the of the and Case against the Petitioner Respondent Transferred Respondent to High Court

Table: 6: Suo Motu Action by the Supreme Court vs Others

Type of the Petitioner Type of the Respondent Number of Decisions of the Court in Litigations Favour Favour No Decision Filed of the of the and Case against the Petitioner Respondent Transferred Respondent to High Court

Industrial units

Union of India State government Local government Industrial units Community Organisation Individual Total

04 06 00 00 00 03 01 14

01 00 00 00 00 01 01 03

03 06 00 00 00 02 01 11

00 00 00 00 00 00 00 00

Suo motu action by Union of India the Supreme Court State government Local government Industrial units Community Organisation Individual Total

02 00 00 00 00 00 00 02

00 00 00 00 00 00 00 02

00 00 00 00 00 00 00 00

00 00 00 00 00 00 00 00

Table 4: Union of India vs Others

Type of the Petitioner Type of the Respondent Number of Decisions of the Court in Litigations Favour Favour No Decision Filed of the of the and Case against the Petitioner Respondent Transferred Respondent to High Court

Table 7: Supreme Court Monitoring Committee vs Others

Type of the Petitioner Type of the Respondent Number of Decisions of the Court in Litigations Favour Favour No Decision Filed of the of the and Case against the Petitioner Respondent Transferred Respondent to High Court

Union of India

Another department of union of India State government Local government Industrial units Community Organisation Individual Total

00 00 00 01 00 00 00 01

00 00 00 01 00 00 00 01

00 00 00 00 00 00 00 00

00 00 00 00 00 00 00 00

Supreme Court monitoring committee

Union of India State government Local government Industrial units Community Organisation Individual Total

00 01 00 00 00 00 00 01
EPW

00 01 00 00 00 00 00 01

00 00 00 00 00 00 00 00

00 00 00 00 00 00 00 00

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the apathy of state agencies in protecting the environment. The tables indicate that in terms of overall outcomes a majority of the Supreme Court decisions from 1980 to 2010 have been in favour of underdogs even when the ght has been against upperdogs.6 There were a total of 184 environmental litigations, of which individuals initiated 84, various state governments 42, environmental organisations 39, industrial units 14, the union of India 1, a local government 1, suo motu action by the Court 2, and the Supreme Court monitoring committee 1.7 Tables 1, 2, 3, 4, 5, 6 and 7 (p 54) provide detailed information on these environmental litigations.
Why Underdogs Prevailed

This section discusses the key factors that impelled the Supreme Court to protect the environment and uphold the issues raised by underdogs even though they lacked the resource capacity of upperdogs.
Active Role of Supreme Court in Post-Emergency Phase

Many scholars have argued that the Supreme Court evolved from a positivist court into an activist one in the postEmergency period (Sathe 2001; Das 2001). However, as Baxi (1997) points out, the Supreme Court did not, as is generally believed, suddenly become activist in the post-Emergency period. It took a while to reach that position and the process was gradual. Judicial activism in the post-Emergency period has witnessed a more liberal interpretation of constitutional provisions (especially Articles 21 and 14), and a relaxation of the basic rules of the judicial process with a view to making it more accessible and participatory. This progressive transformation of the role of the Court corresponded with the political changes that took place in the country in the postEmergency period.8 It was during this period that India witnessed the emergence of a rights discourse, including a greater awareness of environmental rights issues, which contributed to increasing judicial intervention in the eld of human rights and environmental protection. The changing role of the judiciary in the postEmergency period was perceived by environmental and human rights group as a positive development, with this branch of government seen as more reputable, impartial, and effective at decision-making than the legislature and executive, which were viewed as besieged by insincere and biased interests at the state and national levels. One important task that was undertaken by the Supreme Court in the post-Emergency period was to ensure effective enforcement of environmental laws and policies by implementing agencies. The normative position of the Court vis--vis industrial pollution was very consistent as it underscored that industrial activities aimed mainly at prots with no social commitment could not be allowed to continue, thereby making the point that an obligation to societal concerns took precedence over prot-oriented industrial interests (Ambika Quarry Works vs Union of India, AIR 1987 SC 1078). The Court has maintained that the deterioration of the environment due to industrial activities, or for that matter negligence, cannot be
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tolerated because natural resources such as water, land, and air contribute to overall human well-being, not only of present generations, but also of future ones. The Courts approach to preventing and controlling water and air pollution has been strict, irrespective of whether they occur in rural areas such as Bichhri or Patancheru villages or in urban areas such as Delhi, or whether the affected people are rich or poor. The Court has, on occasion, directed the closure of industrial units regardless of the status of the parties affected, be it workers or businessmen, because the ecology and health of the people are to be protected even if it means unemployment for some, hardship for businessmen, and loss of revenue for the state.9 Quite different from its interest in protecting the environment and rights of people, especially poor people, the Courts approach has been defensive in a number of environmental cases challenging infrastructure projects. The outcomes of the Tehri dam case, the Narmada dam case, and the Dahanu thermal power plant case illustrate that the Court has not always followed its own principles and been undeviating in protecting the environment and the rights of the people to shelter and livelihood. It is seen that judges well known for their environmental judgments in other cases have followed a policy of nonconfrontation with the state. For example, justices A S Anand, B N Kripal, K N Singh, G P Mathur, and S Rajendra Babu, who delivered a number of landmark judgments in environmental cases, were part of decisions on environmental matters to do with infrastructure projects in which they did not uniformly follow their own principles. The justication given by most of the judges in such cases was that these projects addressed the larger interests of the nation and that they were necessary for the nations development and progress.10
Ideological Values and Individual Preferences of Judges

Perhaps the most signicant factor supporting the concerns of environmental groups and activists was the progressive and innovative approach adopted by individual judges. Gadbois (1970) argues that when various judges disagree or demonstrate consistent patterns of differing behaviour in arriving at their decisions, it is evident that not only non-legal considerations, but also other factors are operative. This means that judges, like other human beings, have political, economic, or social viewpoints of their own that inuence their decisionmaking behaviour. There are a number of environmental litigations where the ideological values and preferences of judges have made a difference in outcomes. For example, in the Dehradun limestone quarrying case, justice P N Bhagwati received a letter from the RLEK, seeking a direction to the Government of Uttar Pradesh to close down the leased-out limestone quarries, which were posing a threat not only to the ecology of the area, but also to the health of humans and other living creatures. Justice Bhagwati accepted the letter as a writ petition under Article 32 of the Constitution, and issued a notice to the respondents. This procedural change for entertaining the letter was rooted in his personal understanding of environmental problems and the fact that the environment could not have spoken for itself to initiate
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the judicial process. Therefore, it was up to somebody to take the initiative in drawing the attention of the judiciary to its protection and improvement.11 The relaxation of the locus standi principle, which encouraged petitioners to bring environmental issues to the Supreme Court, has been hailed as one of the most important factors in addressing the rights of poor and disadvantaged sections of society affected by environmental pollution. This has paved the way for the development of a body of environment law through judicial edict. It is also observed that the disposition of judges towards environment protection between 1980 and 2010, which allowed third parties to speak on behalf of the environment, was largely shaped by their individual interest and concern for environmental rights and social justice. It is important to note that the environment became a part of legal education only in the mid-1990s and that the judges presiding over cases from 1980 to 2010 had not been rigorously exposed to environmental issues in their legal education. Nevertheless, a number of them took a special interest in understanding the different dimensions of environmental problems. It may perhaps be invidious to mention specic judges for their signicant contribution to environmental jurisprudence, but a few names have to be mentioned for the great interest they showed in resolving environmental disputes. Justice V R Krishna Iyer and justice Bhagwati made visits to Ratlam and Musoorie respectively to understand the various issues associated with environmental problems before delivering judgments in the Ratlam Municipal vs Vardhichand and Dehradun limestone quarry cases respectively. Further, in the Narmada dam case, justice S P Bharuchas visit to the dam site prompted him to express, in a dissenting judgment, his dissatisfaction with the rehabilitation process and the manner in which environmental clearance had been given for the construction of the dam. The pro-environment philosophy of judges is also reected in the interpretation of environmental judgments. For example, in Tarun Bharat Sangh vs Union of India, popularly known as the Sariska case, justice M N Venkatachalaiah and justice B P Jeevan Reddy argued in favour of robust environmental regulation and drew inspiration for this from a US case.
A great American judge emphasising the imperative issue of environment said that he placed government above big business, individual liberty above government and environment above all. The issues of environment must and shall receive the highest attention from this Court (AIR 1992 SC 514).

prioritising its responses. Justice Kuldip Singh, who was part of a large number of environmental judgments, said that reading environmental law literature and learning how other countries across the world behaved was critical to his understanding of environmental problems.12 The individual interest of judges and their innovative methods led to the evolution of environmental principles, while creating increased opportunities for public-spirited citizens and lawyers to speak out about the rights of poor and marginalised communities who lacked the power to challenge the people or policies that denied them social and environmental injustice. Another way in which the individual interest of judges helped to protect the concerns raised by underdogs was the active interest they took in the implementation of their own orders. For example, in the 1980s, justice Bhagwati and justice Ranganath Mishra in the Dehradun limestone quarrying case and the oleum gas leak case respectively monitored their decisions by appointing a special committee to ensure the judicial directions were implemented. In the 1990s, justice Kuldip Singhs continuation on the bench and his interest in monitoring the directions given by him brought about changes in the implementation of judicial verdicts. Likewise, justice Anand, justice Kripal, and justice V N Khare ensured the implementation of judicial directions in the Delhi vehicular pollution case.
Role of Citizens and Lawyers

Likewise, in the coastal zone management case, justice Kuldip Singh and justice S Saghir Ahmad, while directing that intensive and semi-intensive prawn farming cease in coastal areas, observed that even though shrimp farming was regarded as a potential saviour in developing countries because of it being a short-duration crop that provided high returns, coastal zones were in need of protection because of their ecologically fragile nature (S Jagannath vs Union of India and Others, AIR 1997 SC 811). Clearly, the judges not only emphasised the importance of environmental concerns above economic considerations, but also established new standards for the Court in
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A third signicant factor in judicial decisions in favour of environmental protection and the rights of the poor and disadvantaged was the active involvement of well-meaning citizens and lawyers who raised environmental issues in the public interest. From 1980 to 2010, a number of citizens, lawyers, and NGOs and their networks fought for the protection and improvement of the environment and also drew the attention of the judiciary to the disproportionate distribution of environmental goods and burdens in different parts of the country.13 The RLEKs suit for the protection of the environment in Dehradun in the early 1980s was perhaps the rst nationally known environmental case. Though, in the beginning, citizens were more concerned about water and air pollution, many environmental NGOs subsequently took an active interest in demanding the protection of wildlife and forests, and also the rights of people living in and around forests. Describing the crucial role played by citizens and environmental groups, Avdesh Kaushal of the RLEK said in a telephone interview,
Public interest citizens brought three things to the environmental jurisprudence process in India. They showed that in a number of cases people affected by environmental hazards cannot afford and be aware of the legal and scientic issues to appeal to a court of law. They brought a perspective that recognised the unequal distribution of environmental goods and burdens. And nally, they exposed the failure and lack of will among the implementing agencies entrusted with the duty of protecting and improving the environment.

Environmental groups and NGOs were represented by a group of lawyers who took an active and consistent interest in arguing public interest cases, bringing their experience to
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bear on issues to do with the protection and improvement of the environment.14 One of the main reasons for the success of underdogs in drawing the attention of judiciary and getting favourable decisions has been the legal mobilisation strategies of lawyers and citizens. Legal mobilisation in environmental litigation requires having and deploying particular resources, such as scientic and technical inputs, laws and constitutional provisions related to environmental protection and marshalling evidence for legal claims, and contending with upperdogs who have their own legal, scientic, and technical resources. Legal translation has been an important instrument in this context. It involves invoking favourable legal doctrines to appeal to the legal authority, and the selection and representation of adequate environmental pollution-related facts, documents, and evidence. Using these two means, environmental lawyers and petitioners have played a crucial role in inuencing environmental decisions in favour of relatively disadvantaged groups.15 Referring to the active and progressive role of the Indian judiciary in supporting environmental issues raised by underdogs, environment lawyer Raj Panjwani said, It was the subject matter of the petition and not the personality of the petitioner or the resource capacity of the parties involved in the litigation that determined the outcome.16
Evolution of Environmental Law and Policy

fundamental rights of the citizens is now well settled by various decisions of the Supreme Court. Though the Court has been criticised for its interference in affairs of the executive, it has made it clear that its primary effort when dealing with environment-related issues is to see to it that the enforcement agencies take effective steps to implement the laws.
Challenges Ahead

One of the major challenges for underdogs has been the inconsistency of the judiciary in dealing with environmental cases. An overview of the Supreme Court judgments on infrastructure cases suggests that the Court has moved forward and backward, eventually favouring upperdogs. In the recent past, judges have even observed that if a project is stayed because of a PIL that is subsequently dismissed, the petitioner can be made liable to pay for the damages caused by the delay. In the words of the Court,
Any interim order which stops the project from proceeding further must reimburse all the cost to the public in case ultimately the litigation started by such an individual or body fails (Ranauk International vs IVR Construction and Others, AIR 1998 [6] SCALE 456).

The evolution of various environmental laws and policies that afrm the need to protect and improve the environment has also contributed to the judicial decisions in favour of underdogs. Since the 1970s, India has employed a range of regulatory instruments for protecting the environment. However, the many enactments and constitutional provisions have not made much headway in controlling environmental pollution, and the laws, by and large, remain unenforced or mismanaged. This has prompted environmental groups and NGOs to draw the attention of the judiciary to effective implementation of environmental laws. The judiciary has responded by taking an active interest in using its judicial review power to ensure laws are effectively implemented by the implementing agencies and directing them to discharge their constitutional duties. Justifying its intervention, the Supreme Court observed,
Enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued infringement of law, over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilised society (Indian Council for Enviro-Legal Action vs Union of India, AIR 1996 [5] SCC 282-83).

Another major challenge has been the inconsistency of petitioners involved in environmental cases. It has been observed that environmental groups and NGOs nd it difcult to get involved in environmental cases in a consistent manner for various practical reasons. Broadly, environmental groups and activists cite three main reasons for this as well as their lack of involvement in the post-judgment period to ensure the implementation of Court orders at the grass-roots level. First, environmental cases involve not only legal issues, but also complex scientic and technical issues, and it is not always easy to convince the Court of socio-economic and environmental problems in a sustained manner when stronger parties are on the other side. Second, most environmental problems are diffuse and have an impact on a large number of people. It is, therefore, practically difcult to address the major concerns of each and every individual in the litigation process, and produce facts, gures, and statistics to support them. Third, though India now has a group of well-meaning citizens and lawyers supporting the cause of pollution-affected people, what is missing is the active support of scientists in the environmental jurisprudence process.17
In Conclusion

With the widespread indifference of government authorities and development taking place for personal gains at the expense of the environment, public-spirited citizens have been initiating PILs. The legal position on the jurisdiction of courts to prevent environmental degradation and thereby protect the
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The factors discussed in this paper that have determined judicial decisions going in favour of underdogs have developed from an interplay of initiatives taken by public-spirited citizens, environmental groups and lawyers, and individual judges. Despite some setbacks and inconsistencies, the Supreme Court has contributed immensely to the evolution of environmental jurisprudence principles in India. Dealing with environmental issues in different parts of the country began as a small attempt by a few judges in the 1980s, but it has today become a feature of the Indian judiciary. Not a single week goes by now without an environmental judgment being delivered either by the Supreme Court or the high courts in the country. The setting
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up of a National Green Tribunal in 2010 to resolve environmental disputes in the country was an outcome of the Supreme Courts emphasis on creating a multidisciplinary expert group to deal with environmental problems. An analysis of the tribunals orders suggests that it has been sympathetic
Notes
1 Though specic information about the resource capacity of parties involved in environmental litigation is not available, following the classication of litigants as upperdogs and underdogs by Galanter (1974) and other studies Songer and Sheehan (1992), the union of India, state governments, and industrial units are categorised as stronger parties, while citizens and environmental groups are perceived as weaker parities. 2 For more details on the ideological aspects of environmental judgments, see Sahu (2007). 3 The details of these cases, including appeals made by the petitioner and the nal judgments/orders, are collected from the All India Reporter of the Supreme Court (AIR, SC), the All India Reporter of the Supreme Court Cases (AIR, SCC), and the All India Reporter of the Supreme Court Alumina (AIR, SCALE). 4 For more details, see Tate (1981). 5 Personal interview with Medha Patkar of Narmada Bachao Andolan. 6 The Courts decisions have been categorised as for or against weaker parties based on an analysis of the arguments made in petitions, and the extent to which the court has upheld the arguments made by weaker parties. 7 The study does not cover the orders and judgments of the Court in T N Godavarman vs Union of India and Others. This case has been going on in the Supreme Court since 1996 and there are now more than 2,000 interlocutory applications pending in it for orders and directions. It is not possible to discuss the large number of interim orders and their implications for underdogs in this paper. 8 For more details on the changing role of the Indian judiciary in the post-Emergency period, see Das (2001). 9 It is important to mention here that the proenvironment approach of the judiciary in India has failed to recognise the strong link between the livelihoods of workers and environmental protection. 10 Personal interviews with former justices Anand, Mathur, Rajendra Babu and Kripal. 11 Personal interview with justice Bhagwati, former Chief Justice of India. 12 Personal interview with justice Kuldip Singh. 13 Environmental activist and lawyer M C Mehta and social activist Vimal Bhai of the Matu Peoples Organisation have led a number of public interest litigations for the protection and improvement of the environment in different parts of India. Environmental NGOs that have shown a continuing concern for the state of the environment and led public interest litigations include the Indian Council for Enviro-Legal Defence Forum, VCWF, RLEK, Goa Foundation, Bombay Environmental Action Group, Dahanu Taluka Environment Protection Group, Research Foundation for Science Technology and Natural Resources Policy, and Environment Support Group. 14 Lawyers like Raj Panjwani, Sanjay Parikh, Prashant Bhushan, Colin Gonsalves, Claude Alvares, M C Mehta, T Mohan Rao, Ritwick Dutta, and Rahul Chowdhary, among others, have gured in a number of environmental cases in India. 15 Personal interview with Ritwick Dutta, environment lawyer.

towards environmental litigation, including cases against infrastructure projects.18 One hopes that it will continue to address the unequal distribution of environmental goods and burdens in an effective manner, and ensure the sustained protection of rights and social justice to underdogs.
R Dhavan and R Ramachandran (ed.), Supreme But Not Infallible (New Delhi: Oxford University Press). Gadbois, H George, Jr (1970): Indian Judicial Behaviour, Economic & Political Weekly, Vol 5, Nos 3, 4, 5, pp 149-66. Galanter, Marc (1974): Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change, Law and Society Review, Vol 9, No 1, pp 95-160. Gauri, V (2009): India in Transition, Public Interest Litigation in India: Time for an Audit, available at http://casi.ssc.upenn.edu/iit/gauri Sahu, G (2008): Implications of Indian Supreme Courts Innovations for Environmental Jurisprudence, Journal of Law, Environment and Development, No 4/1. Sahu, G (2007): Environmental Governance and Role of Indian Judiciary, PhD thesis, Institute of Social and Economic Change (ISEC), Bangalore. Sathe, S P (2001): Judicial Activism in India: Transcending Borders and Enforcing Limits (Oxford University Press: New Delhi). Songer, D R and R S Sheehan (1992): Who Wins on Appeal? Upperdogs and Underdogs in the United States Courts of Appeals, American Journal of Political Science, Vol 36, No 1, pp 235-58. Tate, C Neal (1981): Personal Attribute Models of the Voting Behaviour of US Supreme Court Justices Liberalism in Civil Liberties and Economics Decisions, 1946-1978, American Political Science Review, 75, pp 355-67.

16 Personal interview with Panjwani, environment lawyer. 17 This inference is made based on my discussions with Medha Patkar, Vimal Bhai, Rajendra Singh, and Debi Goenka, and the VCWF, RLEK, Goa Foundation, Bombay Environmental Action Group, and others. 18 National Green Tribunal orders and directions are available at www.greentribunal.in

References
Agarwal, A, Anju Sharma and Anumita Roychowdhury (1996): Slow Murder: The Deadly Story of Vehicular Pollution in India, Centre for Science and Environment: New Delhi. Baxi, U (1997): Judicial Activism: Usurpation or Re-Democratization?, Social Action, Vol 47, No 4. (2000): The Avatars of Indian Judicial Activism: Explorations in the Geographies of (In) Justice in S K Verma and Kusum Kumar (ed.), Fifty Years of the Supreme Court of India: Its Grasp and Reach (New Delhi: Oxford University Press). Bhushan, P (2004): Supreme Court and PIL, Economic & Political Weekly, Vol 39, No 18, pp 1770-74. (2009): Misplaced Priorities and Class Bias of the Judiciary, Economic & Political Weekly, Vol 44, No 14, pp 32-37. Das, Gobind (2001): The Supreme Court: An Overview in B N Kripal, A Desai, G Subramanium,

REVIEW OF WOMENS STUDIES

October 26, 2013
Paid Domestic Work: Making Sense of the Jigsaw Puzzle Housing, Homes and Domestic Work: A Study of Paid Domestic Workers from a Resettlement Colony in Chennai Living in Domesti-City: Women and Migration for Domestic Work from Jharkhand Neetha N Karen Coelho, T Venkat, R Chandrika Neha Wadhawan

Bargaining over Wages: Part-time Domestic Workers in Kolkata Nilanjana Sengupta, Samita Sen Organising Domestic Workers in Pune City Towards Recognition through Professionalisation: Organising Domestic Workers in Kerala Minimum Wages for Domestic Work: Mirroring Devalued Housework Domestic Work, Unpaid Work and Wage Rates Kiran Moghe Sonia George Neetha N Kamala Sankaran

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