IOSR Journal Of Humanities And Social Science (IOSR-JHSS)

Volume 21, Issue 1, Ver. 5 (Jan. 2016) PP 35-48

e-ISSN: 2279-0837, p-ISSN: 2279-0845.
www.iosrjournals.org

Application of Judicial Activism in Protecting The Environment:

An Analysis
Md. Al amin1, Zakir abu mohd syed (Bar at law from UK)2
1,2
Senior Lecturer, Northern University Bangladesh

Abstract: This article discusses and analyzes the Judicial Activism and its application in protecting
environment, and steps taken by judiciary to accelerate this objective. The main objective behind this research
is to identify the contemporary picture and study the nature and extent of till date developments in various
environmental statuses through judicial procedure. It also analyzes the role of judiciary, recent development
and improvement of environment protection. It further views upon the constitutional aspects and the new trends
in judicial approach in environmental protection.
Key Words: Judicial Activism, environment, role of judiciary, recent development, sustainable development,
precautionary principles, and polluter pays.

I. Introduction
Acid rain, depletion of the earths protective ozone layer, alarming level of global warming and climate
change; rapid diminishing of biological diversity, toxic and hazardous wastes, pollution of river, and depletion
of freshwater resources, the danger of nuclear and threaded wild life species posed a great concern to the
international community.1 Recently a considerable number of environmental disputes have been resolved by law
and international law such as; dispute between Sweden and Finland in respect environmental damage by cement
factory in north Finland, and dispute between Sweden and Denmark in respect of latters attempt to expand coal
production in Anger, and in respect of proposed expansion of chemical plant. 2
The great concern has been strained by the judicial body of Indian Subcontinent as regard to
environmental disputes resolution through the Judicial Activism.
Previously the Judiciary was totally reluctant to adopt the concept of Judicial Activism in where the
fundamental rights, principles of state & state constitution were interpreted in a static and colonial manner, but
recently it seems to be shifted towards Judicial Activism. The contemporary tendency of judiciary is to
safeguard and enlarge the individual rights through the medium of judicial decisions that depart from established
principles, precedent & legislative intent. Recently the judiciary delivering many landmarks verdict concerning
personal liberty, illegal detention, environmental & consumers matters, health related problems, rights of
children and women, minority affairs and human rights issues by interpreting the procedural rules and various
laws for a better regime of social justice of what is known as Judicial Activism.
A remarkable feature of this development is the growing application of the judicial activism in
environmental protection goes beyond the mere enforcement of the statutory provision of the environmental
laws and embraces restitutionary as well as injunctive relief on the basis of constitutional jurisprudence and
weaving environmental law buzzwords such as sustainable development, polluter pays, precautionary
principle, doctrine of trust, and intergenerational equity. 3
In Bangladesh, like many other developing countries, is facing multitude of environmental problems
such air pollution, hazardous waste, land degradation, water pollution etc. Pressure of rising population, rapid
industrialization, urbanization and agricultural development has largely contributed to the environmental
degradation in Bangladesh. It has large number of environmental legislation and many laws contain provisions
on environmental protection. In Bangladesh, there are about 180 laws, which deal with or have relevance to
environment. Apart from statutes, Bangladesh has also well-developed environment policy and many separate
policies which have relevance on preservation and conservation of environment.4
In todays emerging jurisprudence, environmental rights incorporates of collective rights are describe as third
generation rights. The first generation rights are called political rights while second generation rights are called

1
Md. Iqbal Hossain, International Environmental Law Bangladesh Perspective,( 5th edn, Ain Prokashan: Dhaka,2014) p.4.
2
Lachs, Manfred, The Challenged of the Environment, International Law and Comparative Law Quarterly, Vol. 39, July 1990, p. 663 as
cited in Md. Iqbal Hossain, International Environmental Law Bangladesh Perspective,( 5th edn, Ain Prokashan: Dhaka, 2014) p.3.
3
Harish Slave, Justice Generations: Environment and Social Justice in: B.N. Kirpal et al (edn), Supreme But Not Infallible, Oxford
University Press, New Delhi, 2000, p.360-380.
4
Syed Rizwana Hasan, Application and Reforms Needs of the Environmental Laws in Bangladesh, Bangladesh Journal of Law, Vol. 9
Nos. 1 & 2 2005, p. 85-108 at 89.
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

socioeconomic rights as found in the international convert on economic, social and cultural rights.5 There is
prominent saying the times have changed and you must too unless the times wont forgive you. So according
to the changing trends of the society from time to time, law also evolves accordingly. 6 And the judiciary is not
turned into deaf ear towards environmental problems. In a case 7 personal grudges of two parties the judiciary put
life in the cold letters of the constitution i.e. the environmental protection which previously was fundamental
duty under article 519(A) also came as a fundamental right under article 21 of the constitution of India. No
matters how criticized it is, no matter how unidentified it is but one thing to which everyone takes leave to doubt
is the massive contribution to the welfare of the environment.

II. Conceptual Frameworks Of Environment, Environmental Law & Judicial Activism

2.1 Meaning of Environment
Environment means the milieu in which an organism lives. It includes the sum of all of its
surroundings. This includes natural forces and other living things. It defines the conditions of danger and
damage to existence, as well as development and growth8 and it refer to environmental factors.9 It also refers
to living and non living things and how they interact with their surroundings including the atmosphere, air,
water and land. It is the surrounding which includes human as well as environment ecological dimensions and
physical environment.10
From a legal point of view, a substantial right regarding the environment is very often the paradigm
used for explaining the sort of protected position within a legal system that could be referred to the citizens
faced with the environment.11 It should mean that law ensures the guarantee of the final outcome the individual
is aiming at, since no one can interfere with his interest. As a consequence, environmental law might be defined
as the set of legal rules that protects these full rights. 12

2.2 Meaning of Environmental Law

Environmental Law means The field of law dealing with the maintenance and protection of the
environment, including preventive measures such as the requirement of environmental impact statements, as
well as measures to assign liability and provide cleanup for incidents that harm the environment.13 It also refers
to the body of international law relevant to issues. 14 Environmental law draws from and is influenced by
principles of environmentalism including ecology, conservation, stewardship, responsibility and sustainability.
Pollution control laws generally are intended to protect and preserve both the natural environment and human
health.15

5
Geetika Walia & Prashish Kanwar, Environmental Protection VIV-A- VIS Judicial Activism , walia and kanwar OIDA International
Journal of Sustainable development 02:05 (2010), ISSN 1923-6662, available at <http:// www.ssrn.com/link/oida-intl-journal--sustainable-
dev.html>.
6
Ibid.
7
Subhash Kumar vs. State of Bihar (1991) AIR SC 420.
8
Environment, <http://thelawdictionary.org/environment/> Accessed on 15.10.15.
9
Which means Known characteristics in an environment that impact the survival, operations, and growth of an organization. This
identifiable element exists as a physical, cultural, demographic, economic, political, regulatory, or technological characteristic.
10
Md.Iqbal Hossain, International Environmental Law Bangladesh Perspective,( 5th edn, Ain Prokashan:Dhaka,2014) p.8.
11
As for the Environmental Human Rights Doctrine, see 1972 United Nations Conference on the Human Environment, U.N. Doc. A/Conf.
48/14/Rev.1, U.N. Sales No. E.73.II.A.14 (1973). See e.g. Michaela. R. ANDERSON, Human Rights Approaches to Environmental
Protection: An Overview, in Human Rights Approaches to Environmental Protection 1, 4 (Alan E. BOYLE & Michaela R. ANDERSON
eds. 1996); Michael BURGER, Bi-Polar and Polycentric Approaches to Human Rights and the Environment 28 COLUM. J. ENVTL L, 371
(2003); John LEE, The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of
Customary International Law 25 COLUM. J. ENVTL L, 282 (2000). In Italy, for instance, see Amedeo POSTIGLIONE, Ambiente: suo
significato giuridico unitario, RIV. TRIM. DIR. PUBBL., 32 (1985); Luca MEZZETTI, Manuale di diritto ambientale passim (2002);
Salvatore PATTI, Diritto allambiente e tutela della persona, GIUR. IT., 859 (1980); Franco GIAMPIETRO, Diritto alla salubrit
dellambiente passim, (1980). See also Beniamino CARAVITA, Diritto dellambiente 33 (2001), and Antonello GUSTAPANE, Tutela
dellambiente, XLV Enc. Dir., 413 (1992). With regard to the distinction (and the relationship) between droit lenvironnement and droit
de lenvironnement see Michel DESPAX, Droit de lEnvironnement 810 (1980). As cited Fracchia, Fabrizio, The Legal Definition of
Environment: From Rights to Duties (November 17, 2005). Bocconi Legal Studies Research Paper No. 06-09. Available at SSRN:
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=850488 >. Accessed on 15.10.15.
12
The fact that the term right is often used in a indiscriminate way was pointed out by Wesley N. HOHFELD, in Fundamental Legal
Conceptions as Applied in Judicial Reasoning 13 (David CAMPBELL and Philip TOMAS eds. 2001). This Scholar described legal relations
in terms of various opposites (right/no-right, privilege/duty, power/disability, and immunity/liability) and correlatives (right/duty,
privilege/no-right, power/liability, and immunity/disability). As cited Fracchia, Fabrizio, The Legal Definition of Environment: From Rights
to Duties (November 17, 2005). Bocconi Legal Studies Research Paper No. 06-09. Available at SSRN:
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=850488>. Accessed on 15.10.15.
13
Bryan A. Garner, Blacks Law Dictionary, 8th edn, Thomson West. P. 575.
14
Md. Iqbal Hossain, International Environmental Law Bangladesh Perspective,( 5th edn, Ain Prokashan: Dhaka,2014) p.6.
15
Ibid.
DOI: 10.9790/0837-21153548 www.iosrjournals.org 36 | Page
 Application Of Judicial Activism In Protecting The Environment: An Analysis

Environmental issue is corned with international community because as Weiss aptly notes, no one
country or even a group of countries has the capability to protect the environment over time by its own isolated
efforts.16
So, International Environmental Law, is a branch of public international law, is a growing field of law
that is setting the legal standards to deal with various global environmental issues. It encompasses a separate
body of law for the protection of the environment. 17 Besides, a new horizon emerged, as international law of
sustainable Development which covers social and economical aspect of growth, participatory role of major
groups and financial and modes of implementation, which is more wider than international environmental law. 18

2.3 Concept of Judicial Activism

"Judicial activism" may be defined as a "philosophy of judicial decision making whereby judges allow
their personal views about public policy, among other factors, to guide their decisions 19 . An earlier version of
Black's is more partisan, proclaiming that it is "a philosophy which motivates judges to depart from strict
adherence to judicial precedent in favor of progressive and new social policies which are not always consistent
with the restraint expected of appellate judges 20. The term Judicial Activism has also been described by Judge
Robert Bork as a "judicial disease, one that knows no boundaries".21 As virtually the entire world has ratified
the International Covenant on Civil and Political Rights 22 an international bill of rights23 judiciaries are now
charged with authoritatively declaring what it prohibits, without meaningful legislative input.24
According to Menski, Judicial activism is inherent in judicial review. Whether it is positive or
negative depends upon ones vision of social change. Judicial activism is not an aberration but is
a normal phenomenon and judicial review is bound to mature into judicial activism. Judicial activism also has to
operate within limits.25
There have a correlation between Environment and Judicial Activisms. Judiciary keeps active role in
protecting environment. Keeping in mind the correlation the Supreme Court of Bangladesh have come forwards
and pronounced a number of judgments and issued various directions with the objectives of securing the
protection and preservation of Environment and Ecosystem.26 The Supreme Court of India worked from case to
case for making environment as a fundamental right and then extending its meaning to right for compensation,
clean water and air.27

III. Role Of The Judiciary In The Case Of Environmental Protection

3.1 Role of Judiciary in India
In recent years, there has been a sustained focus on the role played by the higher judiciary of India in
devising and monitoring the implementation measures for pollution control, conservation of forests and wildlife
protection. Many of these judicial interventions have been triggered by the persistent incoherence in policy

16
Edith Brown Weiss, International Environmental Law: Contemporary Issues and the emergence of a New World Order, 81 Geo. L.J. 706
(1993) AS quoted Anita Margrethe Halvorssen, Equity among Unequals in International Environmental Law: Differential Treatment for
Developing Countries, Westvies Press (1999) p. 3. As cited in Md. Iqbal Hossain, International Environmental Law Bangladesh
Perspective,( 5th edn, Ain Prokashan: Dhaka,2014) p.6
17
Patricia W. Birnie & Alan E. boyle, International Law and Environment, CLARENDON Press, Oxford (1992) as quoted in Anita
Margrethe Halvorssen, Equity Among Unequels in International Environmental Law: Differential Treatment for Developing Countries,
Westvies Press (1999) p. 1, also cited in Md. Iqbal Hossain, International Environmental Law Bangladesh Perspective,( 5th edn, Ain
Prokashan: Dhaka,2014) p.6.
18
Marry Pat Williams Silveira & with Baebara Ruis, International Law for Sustainable Development: An Attempt at Definition, 2 NAFTA
Law and Business Review of the Americas 13 (1996) as cited Md. Iqbal Hossain, International Environmental Law Bangladesh
Perspective,( 5th edn, Ain Prokashan: Dhaka,2014) p.7.
19
Judicial activism, < https://en.wikipedia.org/wiki/> Accessed on 08.102015 as cited in Black's Law Dictionary, 8th ed. (West Group,
2004), Bryan A. Garner, editor, ISBN 0-314-15199-0.
20
Bryan A. Garner, Blacks Law Dictionary, 8th edn, Thomson West. P. 847.
21
Judicial activism, < https://en.wikipedia.org/wiki/> Accessed on 08.102015 as cited in Robert H. Bork, Coercing Virtue: The Worldwide
Rule of Judges, i (AEI Press, 2010).
22
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly
on 16 December 1966, and in force from 23 March 1976. It commits its parties to respect the civil and political rights of individuals,
including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair
trial. As of April 2014, the Covenant has 74 signatories and 168 parties.
23
The generally-accepted definition is somewhat broader, including the hortatory Universal Declaration of Human Rights (which is
essentially coterminous with the ICCPR) and International Covenant on Economic, Social and Cultural Rights,
<https://en.wikipedia.org/wiki/International_Bill_of_Human_Rights>.
24
International Covenant on Civil and Political Rights, 4art. 3, 2, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (ratified by the
United States Sept. 8, 1992).
25
Werner Menski, Public Interest Litigation: Deliverance from All Evils? Bangladesh Journal of Law, Vol. 6, Nos. 1&2, 2002, pp.1-10.
26
M. Enayetur Rahim, Judicial Innovation in Environment cases in Bangladesh, <http://www.asianjudges.org/wp-
content/uploads/2014/03/Rahim_Judicial-Innovation-in-Environmental-Cases-in-Bangladesh.pdf-1.pdf>, last accessed 15.10.15.
27
Mhajan Niyati, Judicial Activism for environment protection in India, vol. 4(4 7-14, april (2015, Issn: 2319-3565)
<http://www.isca.in/IJSS/Archive/v4/i4/2.ISCA-IRJSS-2014-327.pdf> last accessed 15.10.15.
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

making as well as the lack of capacity building among the executive agencies. Devices such as public
interest litigation have been prominently relied upon to tackle environmental problem. 28
In Ratlam Municipalty case (1980)29 where the Supreme Court directed a local body to make proper
drainage provisions there have been numerous cases where such positive directions have been given.
In the Dehradun Valley case (1985)30 the court itself appointed a committee to look into the adverse
effects of the illegal and indiscriminate mining activities being carried out in the Uttrakhand region. The
respondent government was also asked to show the national importance of the lime stone procured from those
quarries so as to determine whether the demand could be satisfied by mining in others area.
A similar approach was adopted in Tarun Bharat Sangh, Alwar v. Union of India (1992) 31 where the
court adopted a firm stand against the owners of mines that were being operated inside the reserve forest areas.
In both the cases mentioned above, the court appointed independent committees of experts to ascertain the
environmental impact of the commercial activities that were being undertaken.
Previously the judiciary of India was not so concerned to protect the environment effectively &
adequately. It was the incident of Bhopal mass disaster, in where the judicial & legal relief system came actively
to protect environment. In this incidence 40 tons of deadly toxic methyl isocynate from union carbides pesticide
factory, leaked into the atmosphere causing 3,500 causalities and injuring 200,000 people 32. The disaster caused
severe soil and groundwater pollution around the plant 33. However a number of policy and law reform measures
were catalyzed by the Bhopal tragedy, and in this effort, an already activist judiciary has been unwilling to play
the role of a passive spectator34. Supreme Court and High Court worked from case to case for making clean
environment as a fundamental right and extending its boundaries to formulate the right for compensation, clean
water and air. In the process, the court tried to fill gap between development and enforcement of environmental
laws such as mining laws, water act and environment protection act. The reason for adopting an activist stance
by the Supreme Court is based on its perception that there is no proper remedy in existing legislation and thus, it
has greatly extended its judicial activism to environmental issues and concerns. One of the major outcomes of
Bhopal disaster is the EPA (environment protection act), the umbrella legislation which has filled the existing
gap in the legislative framework. Before the enactment of the EPA, only government could prosecute under
Indian environmental laws, while there was no statutory remedy for public interest groups or citizens who were
willing to act against a polluter discharging an effluent beyond the permissible limit. However, under section 19
of the EPA, a citizen can now prosecute any offender provided a 60-day notice is given to the government of his
intention to prosecute. Other provisions like section 43 of the Air Act (amended in 1987) allow citizens to
participate in the enforcement of pollution laws. Both of these Amendments demands from pollution control
board to disclose their internal reports to citizens seeking to prosecute a polluter. The EPA and other Act have
been an important guideline to sort out the environmental problems. However, EPA can improve the situation to
a limited extent. The citizens initiative provision under section 19 of EPA appears to give public significant
power is characterized as mere eyewash. In practice, there are no significant reported decisions in cases arising
citizens complaint under section 19 of the EPA. Most environmental groups and concerned citizen prefer to
obtain redress through the PIL channel developed by High Court and the Supreme Court under their
constitutional jurisdiction.35

Public Interest Litigation (PIL): PIL is a result of judicial activism and a mechanism to agitate public issues
before the courts within the confines of legal and constitutional mould 36. The use of PIL through litigants
ensures them a wide locus standi. In addition, there are no adverse effects of the proceedings, prompt action is
taken on the decision, the court can also assist in examinations and investigations, the various judgments of the
courts shape up the future rulings and policy decisions and public hearing helps in mass awareness. The
judiciary evolves methods to bring justice to the victims by providing locus standi to persons or voluntary
organizations that act in public interest by taking up cases on behalf of affected people. As a leading Indian
jurist Dr. Upendra Baxi said that for the first time, the Supreme Court of India became a Supreme Court of

28
K.G. Balakrishnan, the role of the judiciary in environmental protection
<http://supremecourtofindia.nic.in/speeches/speeches_2010/dp_shrivastava_memorial_lecture_20-3-10.pdf > last accessed 15.10.15.
29
Municipal Council Ratlam v. Vardichan . (1980) 4 SCC 162 as cited
http://supremecourtofindia.nic.in/speeches/speeches_2010/dp_shrivastava_memorial_lecture_20-3-10.pdf > last accessed 15.10.15, p. 3.
30
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh and others, AIR 1985 SC 652.
31
AIR 1992 SC 514.
32
Rosencranz and Divan, Environmental Law and Policy in India, Oxford Uni. Press, 2nd edn, (2011).
33
Verma vs., Bhopal the unfolding of tragedy, alternatives, 11, 133-145(1986).
34
A Dias, Judicial activism in the development and enforcement of environmental law: some comparative insight from the Indian
experience, j. envtl l, 6(2, 243-262 (1994)
35
Mahajan Niyati, Judicial Activism for environment protection in India, International Research Journal of Social Science, vol. 4(4), 7-14,
April (2015).
36
S.K Verma and K. Kumar, Fifty Years of Supreme Court of India, Oxford Uni. Press (2000).
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

Indians37. Now citizens can challenge environmentally unsound practices on behalf of others, even though they
may not directly suffer any harm. The courts intervened in different ways in response to the plethora of
environmental cases brought before the courts through PIL.
The courts monitored implementation of existing laws and policies and issued directions in various
types of cases to ensure a safe and clean environment along with development. For the first time indication
towards a wholesome environment as part of life was given in the R.L and Kendra, Dehradun v. State of U.P
A.I.R 1985 SC 1259, popularly known as Dehradum Quarrying Case. The case categorically emphasized that the
right to life without clean and hygienic environment is meaningless. In this case the court observed that
industrial development is necessary for economic growth of the country. If, however, industrial growth is sought
to achieve by haphazard and reckless working of mines, resulting in loss of life, property and basic amenities
like the supply of water, creating thereby an ecological imbalance, there may ultimately be no real economic
growth and no real prosperity. It is necessary to strike a proper balance.
Often, financial deficiency, political pressure, technical and manpower incompetence serve as reason
for non-performance of government agencies. The court can intervene through appropriate order to make
implementing agency work, which deliberately not performing its duties. In sep. 2014, the supreme court while
acting on PIL filed by M.C Mehta for cleaning drive of river Ganges, alleged government by saying that it
seems that the steps taken so far will not lead to the cleaning of the countries holiest river even after 200 years
and asked for formulating stage wise plan38. The high volume of pollution in the river Ganges poses a severe
threat to its health and life. The situation is critical and cleaning of river is a subject of political agenda. About
Rs. 20,000 core has been spent on the cleanup programme called Ganges Action Plan, which was launched
under the then prime minister Rajib Ghandi in 1985, but with little to show on the ground 39. The project is
reinvigorated following Prime Minister Narendra Modis personal commitment to clean up the river and the
center has given clearance for six new sewage treatment plants (STPs). A number of case on the issue of ganga
pollution have been initiated through PIL in Supreme Court, in where the Central Government, state pollution
boards were asked to monitor the enforcement of its orders. In 1985, M.C. Mehta, filed the first river pollution
case as a writ petition under Article 32 of the Indian constitution. Among other thing, the petition was directed
at the Kanpur Municipalitys failure to stop sewage from polluting the Ganga River. Mehta in his PIL asked the
court to give directions to the government authorities and tanneries in Khanpur to prevent polluting the river
with waste water and trade effluents. Justice Kuldeep Sings expanded this petition to include all large cities in
the Ganga basin. In Ganga pollution (tanneries) case, the Supreme Court noticed industries were inevitably
disregarding the instructions of pollution board and deliberately violating the consent conditions for their
operation. It also observed negligence of boards in their functioning. According to Mehta the court ordered
more than 5000 industries located in the Ganga Basin to install effluent treatment plants (EPT) and air pollution
control devices40
In L. K. Koolwal v. State of Rajasthan, the Rajasthan High Court observed that a citizens duty to
protect the environment under Article. 51-A (g) of the Constitution bestows upon the citizens the right to clean
environment. The judiciary may go to the extent of asking the government to constitute national and state
regulatory boards or environmental courts. In most cases, courts have issued directions to remind statutory
authorities of their responsibility to protect the environment. Thus, directions were given to local bodies,
especially municipal authorities, to remove garbage and waste and clean towns and cities. 41
In Indian Council for Environ-legal Action v. Union of India, Supreme Court felt that such conditions
in different parts of the country being better known to them, the high courts would be the appropriate forum to
be moved for more effective implementation and monitoring of the anti-pollution law.42
In Subhash Kumar v. State of Bihar43, the Supreme Court upheld that affected persons or even a group
of social workers or journalists, but not at the instance of a person or persons who had a bias or personal grudge
or enmity could initiate PIL for environmental rights.
The apex court in landmark judgement of S.P.Gupta v. Union of India44, elucidated in the following
words: "but we must hasten to make it clear that the individual who moves to court for judicial redress in cases
of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for
personal gain or private profit or out of political motivation or other oblique consideration, the court should not
allow itself to be activised at the instance of such person and must reject his application at the threshold".

37
U. Baxi, Taking Suffering Seriously: Social Litigation Before the Supreme Court, Third World Legal Stud., 4(6), 107-132 (1985).
38
Your Plan will take 200 years to clean Ganga: Supreme Court to Centre, Deccan Chronicle (2014).
39
Supreme Court for Stage-wise Plan to Restore Ganga to its Pristine Glory, Economic Times (2014).
40
M.C. Mehta, Growth of Environmental Jurisprudence in India, Acta Juridica, 75, 71-79 (1999).
41
AIR 1988 Raj 2, 1987 (1) WLN 134.
42
1996 AIR 1446, 1996 SCC (3) 212.
43
1991 AIR 420, 1991 SCR (1)5.
44
AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365.
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

3.2 Role of Judiciary in In Bangladesh

Judicial activism contributes to proper implementation of environmental laws and allows the vast
majority of the backward section access to the justice system. As a result of progressive interpretation by the
judiciary of some constitutional and legal provisions, right to environment has received express legal
recognition.45
PIL has helped the implementation of various laws related the protection of environment and control of
pollution in Bangladesh. PIL has remained main vehicle through which the higher judiciary asserted in the arena
of environment and thereby developed the new form of jurisprudence, which is known as environmental
jurisprudence. There are many examples of environmental PIL where the judiciary has displayed enthusiasm
and concern for the environment. 46
The judiciary developed the PIL in environmental matters with the help of numerous methods as the
relaxing of standing, suo motu actions, interpreting the law in a manner congenial to environmental protection,
framing various remedies and applying international environmental law in the national legal system.47
PIL is the most effective way to provide innovative and accessible remedies to the people affected by
environmental degradation. From civil societys point of view, PIL means awareness of the people and making
environmental justice accessible to the common people and thus, enhancing their participation in environmental
decision-making. PIL also helps initiates legal reform by filling the gaps in the law, the inconsistency in the
regulatory regime between law, policies and institutional framework. Even a wholly unsuccessful PIL can serve
several purposes. The publicity generated by a court action can a very useful tool as part of the wider political
process of attracting attention to environmental issues and persuading governments, businesses or individuals to
change their ways. Demonstrating the possibility of recourse to the courts may influence decision makers to act
differently in future.48 Judicial intervention and activism have made industry more aware of environmental
concerns. PIEL also facilitates accountability of the government for its failure to protect environment. 49
The judges through judicial activism have redressed the injustices committed by the agencies of the
government or persons in contravention to the fundamental rights guaranteed by the constitution. PIEL extended
meaning of fundamental rights under the Constitution of Bangladesh to protect environment 50
However, it should be remembered that PIL is not substitute of environmental laws and regulation. In
particular, three cautions have been articulated in regard to an optimistic use of PIL: First one is that the judges
and lawyers have a great responsibility towards avoiding an over-use of PIL. The legal profession must know
where this valuable resource can be used most efficiently. Second, PIL can cause disillusionment if it lingers on
for an inordinately long period.51
Third, the greatest care and vigilance, responsibility and sensitivity are needed before the extraordinary
jurisdiction in PIL goes into action.52
The environmental protection is apprehensive phenomenon for Bangladesh. The Constitution of
Bangladesh does not provide any direct protection to the environment. Nowhere of the constitution specifically
mentioned about the right to health and sound environment. 53 Article 31 states that every citizen has the right to
protection from action detrimental to the life, liberty, body, reputation or property unless these are taken in
accordance with law. It added that the citizens and the resident of Bangladesh have the inalienable right to be

45
Justice Mainur Reza Chowdhury, Legal and Institutional Framework in Promoting Environmental Management in Bangladesh, available
at <http://www.unep.org/law/Symposium/Documents/Country_papers/Bangladesh.doc,> also cited in Judicial Activism and Protection of
Environment in Bangladesh: A Critical Appraisal, available at
<http://www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf>.
46
Judicial Activism and Protection of Environment in Bangladesh: A Critical Appraisal, available at
<http://www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>, last accessed 12.11.15.
47
Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan and Bangladesh, Kluwer Law International, The Hague,
2004, p. 12., also cited in Judicial Activism and Protection of Environment in Bangladesh: A Critical Appraisal, available at
<http://www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
48
Colin T. Reid, Environmental Citizenship and the Courts, Environmental Law Review, Vol. 2, 2000, p. 188, also cited in Judicial
Activism and Protection of Environment in Bangladesh: A Critical Appraisal, available at
<http://www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
49
Altafur Rahman, Public Accountability through Public Interest Litigation, Bangladesh Journal of Law, Vol. 3, No. 2, (1999),pp. 161-180,
also cited in Judicial Activism and Protection of Environment in Bangladesh: A Critical Appraisal, available at
<http://www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
50
Judicial Activism and Protection of Environment in Bangladesh: A Critical Appraisal, available at <http:
//www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
51
Preface by S. P. Sathe in: Sangeeta Ahuja, People, Law and Justice: Casebook on Public Interest Litigation, Vol. 1, Orient Longman, New
Delhi, 1997, p. xliv xlv, also cited in Judicial Activism and Protection of Environment in Bangladesh: A Critical Appraisal, available at
<http://www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
52
V. R. Krishna Iyer, Judicial Justice, N.M. Tripathi Private Ltd., Bombay, 1985, p. 148, also cited in Judicial Activism and Protection of
Environment in Bangladesh: A Critical Appraisal, available at
<http://www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
53
Badsha Mia, Kazi Shariful Islam, Humane Rights Approach to Environment Protection: An Appraisal of Bangladesh, Journal of Law,
Policy and Globalization. Vol. 22, 2014, ISSN 2224-3240.
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

treated in accordance with law. If these rights are taken away, compensation must be paid. Article 32 states, No
person shall be deprived of personal liberty given in accordance with law. These two articles together
incorporate the protection of right to life. The next question peeps into mind is whether the right to life includes
the right to environment capable of supporting the growth of meaningful existence of life and includes the right
to healthy environment?54
In PIL cases on environment protection, the higher judiciary has provided directives and
injunctive relief against industrial pollution, vehicular pollution, river encroachment, unlawful filling of flood
plain zones, water and air pollution, violation of construction law, pollution from brick fields,
environmental hazards of shrimp cultivation, destruction of hills, gas explosion without environmental impact
assessment (EIA), protection from hazardous wastes.
The judiciary in PIL cases also provided directives for protection of wildlife, bio-diversity,
compensation for environmental damages and so on. 55
Injunctive relief: The judiciary of Bangladesh in several cases granted injunctive relief to reduce
environmental harm or pollution.
In Sharif N Ambia vs Bangladesh and Other, the High Court Division, after issuing a show cause
notice, granted an ad interim injunction on the construction of a 10 storied market in violation of the
Dhaka Master Plan causing environmental obstruction to its neighborhood.56
In Dr. Mohiuddin Farooque, BELA vs. Bangladesh, the judiciary granted injunction on government
body to prevent them from releasing radioactive milk in open market. 57
The judicial activism through PIL also helped protect river from encroachment. In the case of
Bangladesh Environmental Lawyers Association vs. Bangladesh and others, 58 judicial
Intervention was sought to protect the only river flowing through Dhaka from illegal Encroachment.
The HCD directed the concerned statutory authorities to submit before the
Court an action plan setting out definite time frame and measures to be undertaken for removing the
encroachers. Following the petition, the government acted to remove the encroachers and the river now stands
free from illegal occupation.
The HCD, in a recent decision in the case of Bangladesh Environmental Lawyers Association
vs. Bangladesh and others, gave six directives in a comprehensive judgment 59 to fight vehicular pollution at
different from.
In Mrs. Parveen vs Chairman, Rajdhani Unnayan Kartipakha, 60 the locus standi of the petitioner was
disputed as the respondent contended that the petitioner was not espousing any public cause or
grievance. The petition was framed as a personal as well as public interest litigation. The petitioner challenged
RAJUK action to construct a road and carve out some residential plots by filling up the Gulshan Lake and the
lakeside adjacent to her residential house at Gulshan. She asserted that the RAJUK action would destroy the
greenery and the beauty of the lake and effect the environmental situation in the Gulshan Model Town. The
action of the RAJUK had violated the petitioners fundamental right to protection of law and the right to
hold property. The court recognized that the petitioner has the locus standi.
The court held that the petitioner had come before the court with personal interest as well as interests of all other
residents who are sharing the beauty greenery of the lake and the environmental facilities. 61
Unregulated ship breaking industry produces profound negative environmental effect in the surrounding area of
operation. It is reported that ship breaking industry is causing serious environmental pollution with resultant loss
of biodiversity and ecosystem of marine life. In2003, BELA filed a writ petition 62 (No.-2911/2003) before the
High Court Division for a direction upon the ship breakers, concerned Government Agencies to ensure the

54
Ibid.
55
See, Justice Mainur Reza Chowdhury, Legal and Institutional Framework in Promoting Environmental Management in Bangladesh,
available at< http://www.unep.org/law/Symposium/Documents/Country_papers/
Bangladesh.doc >, also cited <http://www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
56
Unreported Writ Petition No. 937 of 1995. Also cited in Judicial Activism and Protection of Environment in Bangladesh: A Critical
Appraisal, available at <http: //www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
57
Unreported Writ Petition No. 92 of 1996. Also cited in Judicial Activism and Protection of Environment in Bangladesh: A Critical
Appraisal, available at <http: //www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
58
Writ Petition No. 4098 of 2000, Bangladesh Environmental Lawyers Association vs. Bangladesh and others, also cited in Judicial
Activism and Protection of Environment in Bangladesh: A Critical Appraisal, available at
<http://www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
59
Writ Petition No. 300 of 1995, Judgment Delivered on 27 March 2002., also cited in Judicial Activism and Protection of Environment in
Bangladesh: A Critical Appraisal, available at <http://www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
60
18(1998) BLD 114, at p. 117. Also cited in Judicial Activism and Protection of Environment in Bangladesh: A Critical Appraisal,
available at <http: //www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
61
Ibid, at p. 124. Also cited in Judicial Activism and Protection of Environment in Bangladesh: A Critical Appraisal, available at <http:
//www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
62
Writ petition No.-2911/2003., also cited in Judicial Activism and Protection of Environment in Bangladesh: A Critical Appraisal,
available at <http: //www.culaw.ac.bd/files/judicial_activism_and_Environment_in_bangladesh.pdf.>.
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

compliance under the Environment Conservation Act 1995 and the Environment Conservation Rules 1997, the
compliance under the gas free certificate issued by the Department of Explosives, the compliance under
the Basel Convention 1989 for import of ship for scrapping etc.
The appellate division in the case of Dr. Mohiuddin Farooque vs. Bangladesh, has been expounded
that article 31 and 32 of Bangladesh Constitution protect right to life as fundamental right. It encompasses
within its ambit the protection and preservation of environment, ecological balance free from pollution air and
water, sanitation without which life can hardly be enjoyed. Any act or omission contrary thereto will be
violative of the said protection of right to life. The High Court Division in the case of Dr. Mohiuddin Farooque
vs. Bangladesh and others (Dr. Mohiuddin Farooque vs. Bangladesh, 1996) stated that right to life includes right
to fresh air and water and a situation beyond animal existence in which one can expect normal longevity of life.
As mentioned above that there is right to environment under the constitution of Bangladesh. However, due to
prolonged movement of civil society and environmentalists, provision on conservation and development of
environment has been inserted in part of fundamental principle of state policy of the constitution of Bangladesh
through 15th amendment. Obviously, this is a welcome development. But this provision imposes obligation on
the state to protect and develop environment and to ensure conservation and security of natural resources, bio-
diversity, wetland and wild lives (art. 18A). Thus, it does not establish right to safe environment for individuals,
rather it is proclaimed as one of the fundamental principles of state policies which can be used a guideline in the
interpretation of constitution and of the other laws of Bangladesh, shall be applied in making of laws and form
the basis of the work of the state (article 8(2). This constitutional duty to protect environment can be borne by
state, its agencies, individuals, and legal persons. The Government Bangladesh missed the opportunity to
include the right to environment as a fundamental right, which has already been established through judicial
interpretation.
In some environmental PIL cases, the judiciary invoked international environmental law to protect
environment and directed the government to adopt legislative and administrative measures under environment
treaties, which Bangladesh ratified or acceded to. In most recent and groundbreaking judgment pronounced in
the case of Bangladesh Environmental Lawyers Association (BELA) vs. Bangladesh63, the High Court
Division declared that allowing import of hazardous waste and vessels containing hazardous materials, without
proper scrutiny by the Ministry of Shipping is flagrant disregard to the safety and security of workers in the
ship-breaking yards as well as demonstrating blatant indifference to the integrity of the environment and
humans who live in the vicinity of the ship-breaking yards. The court observed that Bangladesh, being
a signatory to the Basel Convention, is obliged to follow the norms laid down in that Convention.
The Court issued the following directions:
Firstly, the Ministry of Environment and Department of Environment are directed to immediately take
steps to ensure closure of all ship-breaking yards which are operating without necessary Environmental
Clearance as required by law.
Secondly, the Department of Environment shall deal with the application expeditiously and supply the
clearance certificate only upon satisfaction that all the facilities required for proper dismantling of the
vessels, safety measures for the workers and in particular disposal of hazardous waste generated by the
dismantling process, are in place.
Thirdly, the Ministry of Environment is also directed to frame Rules and regulations for the proper
handling and management of hazardous materials and wastes, keeping in view the Environment Conservation
Act, 1995 and the Conservation Rules of 1997, and the Basel Convention, 1989.
Indiscriminate hill cutting in different municipal areas posed serious threat to bio-diversity and
ecological balance. In several PIL cases, the indiscriminate, unlawful and unauthorized cutting and
raising of hills was challenged.64 The court on hearing the cases directed the authorities to take steps against
hill cutting.
In another writ petition filed by BELA to stop pollution from some ultra hazardous industries, A.B.M
Khairul Hoque J. mentions that life meansa qualitative life among others, free from environmental hazards. 65
In another case, in where failure of the Government to seal tube-wells that were contaminated with arsenic, the
Appellate Division of Bangladesh Supreme Court recognized the connection between environmental pollution
and the violation of the right to life, as well as the need to improve the natural and manmade environment with a
view to protecting this right. In this case, Md. Tafazzul Islam, J., citing the decision of the Indian Supreme Court
the Virendra Gour v. State of Haryana,66 observed that:

63
Judgment on 05.03.2009 & 17.03.2009.
64
Dr. Mohiuddin Farooque vs. Bangladesh and others, Writ Petition No. 6020/1997, Bangladesh Environmental Lawyers Association vs.
Bangladesh and others, Writ Petition No. 2020 of 2006.
65
Dr. Mohiuddin Farooque v. Bangladesh and others, 55 DLR (HCD) 69 (2003)
66
(2)SCC 577 (1995), P. 7
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

Hyginic environment is an integral facet of right to healthy life, and it will be impossible to live with human
dignity without a humane and healthy environmental protection. Therefore, it has now become a matter of
grave concern for human existence. Promoting environment protection implies maintenance of environment
as a whole comprising the manmade and natural environment. Therefore, there is constitutional imperative
of the State government and the municipalities not only to ensure and safeguard proper environment but also
an imperative duty to take adequate measures to promote, protect, and improve both the manmade and the
natural environment.67

IV. Recent Development Of Environmental Jurisprudence In Bangladesh

Law informs societal actions and cultures such that judicial pronouncements seem to be one way to
introduce internationally recognized environmental principles into the national discourse in a jurisdiction where
official endorsement and application is slow. A survey of decided cases in Bangladesh reveals that the activists
shared this view, because one of the consequences of the sort of legal activism discussed in the foregoing
paragraphs is the development of the environmental jurisprudence of Bangladesh, including, in particular, the
recognition of emerging international environmental laws and norms in the domestic arena. The international
environmental law norms that the activists have sought to implement in Bangladesh include Intergenerational
Equity, the Polluter Pays Principle, and the Precautionary Principle.68
These they sought to highlight through PIL as well as legislative advocacy; however, the response from
the judiciary has been mixed at best. The Bangladesh Supreme Court mentioned intergenerational equity on
some occasions but has generally not been supportive of the principle, though there are signs that this attitude is
changing. However, the High Court Division adopted a slightly different view in a recently decided case filed by
BAPA.
In Bangladesh Paribesh Andolon and another v Bangladesh and others, Imman Ali, J., observed that
the right to have open space, parks, water bodies, etc. are rights accruing to Nature and the Environment, which
it is the bounden duty of the State to preserve for the sake of future generations.[emphasis added]69
This case equally heralded a new direction for environmental jurisprudence in Bangladesh. A group of
environmental activists challenged the legality of construction of residences for the Speaker and Deputy Speaker
within the National Assembly Area through alteration of the original plan of the National Assembly Complex.
The complex is recognized as a masterpiece: the work of a globally renowned architect, Louis Isadore Kahn,
which is regarded as one of the best monuments of International Architectural Modernism. The court prohibited
any kind of change in the original plan of the complex. 70
It directed the government to consider declaring the complex a National Heritage Site and to apply to UNESCO
to declare it a World Heritage Site in order to protect it from further defacement. 71
This judgment could result in the application of the terms of the World Cultural and Natural Heritage
Convention72 in Bangladesh, and perhaps pave the way for its implementation in the country. The Supreme
Court also indirectly recognized the Precautionary Principle when it recognized the rights of potential
consumers in the Radiated Milk Case.73
Additionally, in one of the more recent cases filed by BELA, the Supreme Court directed government
authorities to make necessary rules and regulations so that no hazardous ships can enter the territorial waters of
Bangladesh for breaking purposes. It reasoned that the breaking of ships with hazardous substances may cause
significant harm to the coastal and marine environment of the country. 74

67
Rabia Bhuiyan, MP v. Ministry of LGRD and others, 59 DLR (AD) 176 (2007), P. 25
68
J. Razzaque, Public interest environmental litigation in India, Pakistan and Bangladesh (The Hague: Kluwer
Law International, 2004, p.33373., also cited in Md. Saiful Karim & Mia Mahmudur Rahim, legal activism for ensuring environmental
justice, Asian Journal of Comparative Law, Volume 7, Issue 1, (2012), available at http://eprints.qut.edu.au/61471/4/61471.pdf
69
Bangladesh Paribesh Andolon and another v Bangladesh and others, 58 DLR (HCD) 441 (2006)p. 28, also cited in Md. Saiful Karim &
Mia Mahmudur Rahim, legal activism for ensuring environmental justice, Asian Journal of Comparative Law, Volume 7, Issue 1, (2012),
available at <http://eprints.qut.edu.au/61471/4/61471.pdf.>.
70
Ibid, p. 29, also cited in Md. Saiful Karim & Mia Mahmudur Rahim, legal activism for ensuring environmental justice, Asian Journal of
Comparative Law, Volume 7, Issue 1, (2012), available at <http://eprints.qut.edu.au/61471/4/61471.pdf.>.
71
Ibid, p. 34, also cited in Md. Saiful Karim & Mia Mahmudur Rahim, legal activism for ensuring environmental justice, Asian Journal of
Comparative Law, Volume 7, Issue 1, (2012), available at <http://eprints.qut.edu.au/61471/4/61471.pdf.>.
72
Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972, 23 November 1972, 1037 UNTS 151 (entered
into force 15 December 1975), also cited in Md. Saiful Karim & Mia Mahmudur Rahim, legal activism for ensuring environmental justice,
Asian Journal of Comparative Law, Volume 7, Issue 1, (2012), available at< http://eprints.qut.edu.au/61471/4/61471.pdf.>.
73
Radiated Milk Case, supra note 61. See Razzaque, Public interest environmental litigation in India, Pakistan and Bangladesh, supra note
59, at 35758, also cited in Md. Saiful Karim & Mia Mahmudur Rahim, legal activism for ensuring environmental justice, Asian Journal of
Comparative Law, Volume 7, Issue 1, (2012), available at <http://eprints.qut.edu.au/61471/4/61471.pdf.>.
74
Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others, Writ Petition No. 3916 of 2006, judgment delivered on
6 July 2006, unreported (hereinafter MTAlfaship Case) at 4, also cited in Md. Saiful Karim & Mia Mahmudur Rahim, legal
activism for ensuring environmental justice, Asian Journal of Comparative Law, Volume 7, Issue 1, (2012), available at
<http://eprints.qut.edu.au/61471/4/61471.pdf.>.
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

This, indeed, is a tacit precautionary approach to environmental protection. Furthermore, in one of the
writ petition cases now pending for further hearing in the High Court Division, government authorities were
directed to undertake investigation to identify and measure the areas within a pristine island, Sonadia, where
shrimp cultivation/forest clearing is taking place or has taken place. The government is also to list those who are
involved in such cultivation/clearing and the enabling arrangements; assess, in monetary terms, the loss of forest
resources for such individual shrimp cultivation/forest clearing; and submit a report to the court within two
months.75
The activists hope is that the court will apply the polluter pays principle. In yet another Writ Petition,
also related to commercial shrimp cultivation, the High Court Division issued a Rule
Nisi, calling upon the respondents to show cause as to why they should not be directed to compensate
the affected people for the loss suffered by them due to the flow of saline water over their lands. 76
The activists also hope that the Supreme Court would consider these pending cases from a different
viewpoint by positively responding to their arguments and, thereby, play an instrumental role in implementing
emerging international environmental law norms in Bangladesh. While intergenerational equity, the
precautionary principle, and the polluter pays principle may not be said to have become firmly established legal
norms in Bangladesh, these dicta represent important strides in the right direction. 77

V. . Improving The Role Of Judiciary In Bangladesh And India For Protecting The
Environment
Recently, Judiciary of Bangladesh as well as India, improving its part by disseminating the concepts of
Sustainable Development, Polluter pay and Precautionary principle.

5.1 Sustainable development

Sustainable development 78 reflects the principle of sustainable and equitable use of natural resources
and its integration in the Bangladesh legal system. As an umbrella concept, 79 it tends to reconcile the conflicting
goals of economic development and environmental protection.
It needs to be based principles that would apply to all issues whether they are classified as environmental, social,
economic or any mix of the three. Haughton (1999) outlines five equity principles: (i) futurity-inter-generational
equity; (ii) social justice-intra-generational equity; (iii) transfrontier responsibility-geographical equity; (iv)
procedural equity-people treated openly and fairly-and (v) inter-species equity-importance of biodiversity. 80
In the FAP case, the Bangladeshi court applied sustainable development in an indirect manner and gave
priority to a development project funded by international donors. 81 Taking an anthropocentric view, the court
defined sustainable development which integrates a quality of life that is economically and ecologically
sustainable. Though the national environmental policy and legislation reflect the concern for a balance between

75
Bangladesh Environmental Lawyers Association (BELA) v. Ministry of Land and others, Writ Petition no. 4286 of 2003, also cited in Md.
Saiful Karim & Mia Mahmudur Rahim, LEGAL ACTIVISM FOR ENSURING ENVIRONMENTAL JUSTICE, Asian Journal of
Comparative Law, Volume 7, Issue 1, (2012), available at <http://eprints.qut.edu.au/61471/4/61471.pdf.>.
76
Gaurang Proshad Roy and Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others, Writ Petition No. 5732 of
2005, also cited in Md. Saiful Karim & Mia Mahmudur Rahim, legal activism for ensuring environmental justice, Asian Journal of
Comparative Law, Volume 7, Issue 1, (2012), available at <http://eprints.qut.edu.au/61471/4/61471.pdf.>.
77
Md. Saiful Karim & Mia Mahmudur Rahim, legal activism for ensuring environmental justice, Asian Journal of Comparative Law, Volume
7, Issue 1, (2012), available at <http://eprints.qut.edu.au/61471/4/61471.pdf.>.
78
The Brundtland Report defined sustainable development as 'development that meets the needs of the present without compromising the
ability of future generations to meet their own needs'. WCED: Our Common Future (Brundtland Report) London 1987, p.43. According to
G. Handl: the essence of this concept is rather living off natures income than squandering its capital. G. Handl, Environmental Security
& Global Change: The Challenge of International Law YIEL (1990) at 24. Also cited in Jona Razzaque, Access to Environmental Justice
Role of the Judiciary in Bangladesh, available at < http://www.eng-consult.com/ben/papers/paper-jona.pdf.>. p. 4.
79
The principle of sustainable development has been linked to various other concepts, such as, intergenerational and intergenerational
equity, principle of integration, sustainable use of natural resources and biological diversity. (28) The 1972 Stockholm Conference
acknowledges the need to provide assistance to developing countries to enable them to meet their obligations towards the environment and,
on the other hand, to secure their right to development. Principle 4 of Rio Declaration 1992 states that in order to achieve sustainable
development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation
from it. At the same time, it talks about the right to development which has recently been recognized by the General Assembly. According
to many academics: this article, which is required to be read with article 4, is a part of a bargain struck between developing and developed
countries. For GA Resolution, See: Environmental Policy and Law 28/1, 1998 at 51. Also cited in Jona Razzaque, Access to Environmental
Justice Role of the Judiciary in Bangladesh, available at < http://www.eng-consult.com/ben/papers/paper-jona.pdf.>. p 4.
80
Bob Giddings, Bill Hopwood and Geoff O Brien (2002), Environment, Economy and Society, Sustainable Development 10, 187-196,
Sustainable cities research institute, new castle upon tyne, UK.
81
M. Farooque V Bangladesh (WP no. 998 of 1994): The petitioner alleged that FAP was adversely affecting and injuring more than a
million people by way of displacement, causing damage to soil and destruction of natural habitat, of fishes, flora and fauna. The High Court
declined to interfere with the FAP project as foreign assistance was involved and the whole project was meant to be for the benefit of the
public. The court directed the concerned Ministries that no serious damage to the environment and ecology is caused by the development
activities. Also cited in Jona Razzaque, Access to Environmental Justice Role of the Judiciary in Bangladesh, available at <http://www.eng-
consult.com/ben/papers/paper-jona.pdf. >. p. 4.
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

the trade, development and environment, no case directly mentions this concept. In India, however, the court
adopted a balancing approach to deal with pollution from leather industries or tanneries, to prevent
encroachment of wetlands or to preserve forests and vegetation. 82

5.2 The precautionary principle

The precautionary principle provides guidance in the development and application of international
environmental law where there is scientific uncertainty. The purpose is to encourage the decision- makers to
consider harmful effects of their activities on the environment before they pressure those activities 83
Precautionary principle is considered in Bangladesh as a guiding non-binding principle for policy
making. Because of the frequent use of this principle in the substantive law, 84 the judiciary in Bangladesh, while
deciding environmental cases, can apply this principle with considerable ease.
In one case 85, the court examined the seriousness of environment damage to determine whether there is
any need for precautionary approach. However, the threshold of the seriousness of such damage was not
examined and the court did not accept it as part of customary law. In order to avoid the strict rules and
procedures of evidence and causation, the Indian courts, on the other hand, applied precautionary principle as
part of the customary law.86

5.3 Polluter pays principle

The polluter pays principle (hereafter, PPP) is used to prevent, control and reduce environmental harm.
This principle expects polluters to bear the costs of measures carried out by the public authorities with respect to
potential and actual environmental damage. 87 There is no uniform way and the states are free to determine their
own national standard. It is only after these standards are set by the public authorities, the polluters will take
steps to comply with them. It should also be noted that minimum pollution is allowed by the legislation. The
Indian court applied absolute liability for the polluters to pay up the cost of pollution and adopted more stringent
threshold of liability than required by international law 88. Moreover, the Indian courts followed the clean up or
close down formula and believed that the industries should be liable to pay the social cost of carrying out
inherently dangerous activities. Having examined the treatment of other principles by Bangladesh judiciary, it is
unlikely that PPP will be treated as a part of customary international law. However, if any cases on this issue are
presented before the judiciary of Bangladesh, it should follow the absolute liability and should not allow any
concession to the polluters, be it a company or a public body.

82
For example: Sustainable forest management: 1990 Forest Law Times, 119; AIR 1988 All 121. See generally: P. Leelakrishnan, Law and
Sustainable Development in India (1991) Journal of Energy and Natural Resources Law, Vol. 9:3, at 195. Restriction on mining operation
causing ecological hazard: (1987) 1 SCR 637; AIR 1988 HP 4. Sustainable use of natural resources: 1990 KLT 580 at 583. Leather
industries were closed in favor of environment: AIR 1996 SC 2715and (1996) 5 SCC 647. Also cited in Jona Razzaque, Access to
Environmental Justice Role of the Judiciary in Bangladesh, available at < http://www.eng-consult.com/ben/papers/paper-jona.pdf.>. p. 5.
83
The Stockholm Declaration 1972 and the Rio Declaration 1992 both recognized the urgent need to safeguard the natural resources. These
documents agreed that there is a need to adopt cost-effective measure to reduce environmental damage. Also cited in Jona Razzaque, Access
to Environmental Justice Role of the Judiciary in Bangladesh, available at < http://www.eng-consult.com/ben/papers/paper-jona.pdf.>, p. 5.
84
In Bangladesh, the Wildlife Acts, the Fisheries Act, and the Forest Act integrate the precautionary principle. The Bangladesh
Environmental Conservation Act 1995 integrates the precautionary approach as well as the polluter pays principle. Any person affected or
likely to be affected from the pollution or degradation of environment may apply to the Director General for remedying the damage or
apprehended damage. (sec. 9 of the 1995 Act). Furthermore, a company would be liable for the violation of any provision of the Act. The
burden of proof is shifted on them to show that they were ignorant of such contravention or exercised due diligence (sec. 16 of the Act).
Also cited in Jona Razzaque, Access to Environmental Justice Role of the Judiciary in Bangladesh, available at < <http://www.eng-
consult.com/ben/papers/paper-jona.pdf.>, p. 5.
85
Dr Mohiuddin Farooque vs. Bangladesh and Others, (WP No. 92 of 1996): A potential customers right to file a suit has been recognized
by this case. The court simply assumed that such injury either had occurred or were likely to occur and proceed to issue remedial
directions. In the FAP case, cited earlier, the court took account of the seriousness of damage that could be caused to the environment by the
project. However, the court did not apply the precautionary principle and did not bar the development project. Also cited in Jona Razzaque,
Access to Environmental Justice Role of the Judiciary in Bangladesh, available at <http://www.eng-consult.com/ben/papers/paper-
jona.pdf.>, p. 6.
86
(1996) 5 SCC 647 at 658; (1997) 2 SCC 353; (1997) 3 SCC 715; (1997) 2 SCC 87; (1997) 2 SCC 411: All these cases, in effect, stated
that precautionary principle is considered as part of the land, that the allegation would require to be proved beyond reasonable doubt and that
burden of proof would be shifted to polluting industries to show that there was no pollution. Also cited in Jona Razzaque, Access to
Environmental Justice Role of the Judiciary in Bangladesh, available at < http://www.eng-consult.com/ben/papers/paper-jona.pdf.>, p. 6.
87
H. Smets, The Polluter Pays Principle in the Early 1990s in Luigi Campiglio et al. (eds.) The Environment After Rio: International Law
and Economics (1994)136-137; S.E. Gaines, The Polluter pays principle: From Economic Equity to Environmental Ethos, 26 Tex.
International Law Journal 463 (1991)467-475. Access to Environmental Justice Role of the Judiciary in Bangladesh, available at <
http://www.eng-consult.com/ben/papers/paper-jona.pdf.>, p. 6.
88
(AIR 1987 SC 965); (1996) 3 SCC 212; (AIR 1996 SC 2715; (1997) 2 SCC 411: all these cases dealt with the application of PPP, payment of the cleanup cost and absolute liability of
the polluters. Access to Environmental Justice Role of the Judiciary in Bangladesh, available at < http://www.eng-consult.com/ben/papers/paper-
jona.pdf.>, p. 6.
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

VI. Contemporary Judicial Approach In India And Bangladesh For Protecting The
Environment
The anthropocentric approach of the judiciary is deep rooted and the unqualified right to environment
has not been established. The express constitutional provisions in the Indian Constitution89 have made the task
of the environmentalists and of the judiciary much easier. The trend in South Asia shows that the environmental
activists continuously used the constitutional writ petition to protect the environment90. Along with the legal aid
and the environment court, perhaps, it is the right time to have environmental protection integrated in the
Constitution.
The judiciarys good will would be of little use if the public does not have access to funding to move
the petition. This includes the initial expenses of the applicant, the overall cost of the case, availability of legal
aid and cost order of the court. At the moment, majority of the funding comes from private foundations and
from foreign assistance. The unreliable nature of the source made it more important to have a state fund on
environment. The Jatiya Sangsad has just passed the Legal Aid Bill 200091 and it is not yet clear how much
access to public funding is there for environmental litigation. The prospect of having to pay the other side is
usually one of the greatest deterrents to litigants. Another problem area is the cost order of the court. In most of
the cases in India, the cost was decided in a case by case basis92. In two of the environmental cases in
Bangladesh, the court disposed of the matter without any order regarding cost93.
Moreover, no-win, no-fee could be an option to encourage more environmental litigation. This would
allow the lawyers to take on cases without charging their clients. In a successful case, the other party is usually
ordered to pay most of the lawyers nominal fees. The client or the lawyer can also take out insurance to cover
the risk of losing or having to pay the other sides cost. In that way, if the applicant loses the case, the insurance
would cover the cost of the case. Though this system can help to reduce the number of unnecessary litigation
and help the lawyers to accept cases with better chance to win, it has its own drawbacks94. To cope with that, a
special fund for cases perceived as plainly in the public interest could help to examine environmental test cases
with complex points of law and to establish precedents. At present, the Environment Court Bill is under the
consideration of the Parliament95. The court will certainly help to create more expert judges, ease the standing
and provide a better and consistent case law.
Therefore, it is expected that proper financial assistance will be offered to the judges for training and
research. By encouraging more non-governmental organizations to be involved in the policy making and by
appointing environmentally aware judges in the higher courts, the government can easily make the public
interest environment litigation an interesting option for the general people. Following the examples in India, the
court should use their power96 to appoint a commission to examine any person, to question the conflicting
scientific reports97, to make a local investigation, to examine or adjust accounts or to make a partition. It should

89
The Constitution (42nd) Act 1976 explicitly incorporated environmental protection and improvement. Article 48A and 51A (g), both
directive principles of state policy and not directly justiciable, state that both the state and the citizens have duty and responsibility to protect
and improve the environment.
90
Favoring the use of constitutional provisions, some Asian environmentalists argue that lack of developed procedural law in these countries
paved the way for this resort. There are quite a few other supporting arguments, such as the nature of the legal system, non-implementation
of the substantive law and lack of an integrated environmental management.
91
Under the law, the state will finance lawyers for those who are needy, helpless and unable to get justice for various socio-economic
reasons. Such people can apply for legal assistance from the state. A state-financed panel of lawyers will come in aid to the deserving person
after scrutiny of their applications by a committee. Source: The Daily Star (January 25, 2000). Website: www.dailystarnews.com/.
92
In many of the public interest litigation, the court either did not make any cost order or the cost and the expenses of the inquiry were
ordered to be paid by the respondents. For examples of some of these cases: S. Ahuja, People, Law and Justice: A Casebook of Public
Interest Litigation Vol. II (New Delhi, Orient Longman, 1997).
93
Mohiuddin Baroque V. Bangladesh and others (48 DLR 1996) p.438 and Bangladesh Environmental Lawyers Association V. Election
Commission and Others (46 DLR 1994) P235.
94
In UK, this system is being used in personal injury cases where the injury arises from exposure to toxins or pollution or injuries resulting
from a one-off accident. The critics say that this system will destroy the chance of environmental test cases as most of the lawyers would not
take such risk under the conditional fees system. Moreover, the insurance companies may not be willing to provide commercial cover with
reasonable premiums. Most of the environmental lawyers may be unwilling to take such cases due to the high investigative costs, time taken
and overall risk in terms of success.
95
According to the bill, six environment courts shall be established in six divisional head quarters. All cases about conservation of
environment and environmental pollution shall be filed and dissolved in these courts. Any aggrieved person whose right has been infringed
can directly file a suit in the Environment Court. No case filed in the Environment Court shall be adjourned for hearing more than three
times. Every suit shall be dissolved within a period of 6 months from the date of filing a suit. There is a provision for damages to be
determined depending on the facts and circumstances of each case. The maximum level of fine and imprisonment is Tk.10 laces and 10
years respectively. Moreover, the draft bill states that this court will be recognized as criminal court and it will enjoy all powers and
jurisdiction like criminal court according to the Code of Criminal Procedure1898.
96
Art. 104 of the Constitution: Appellate Divisions power in providing complete justice; 102(1) and (2): enforcement of fundamental
rights; Art.109: High Courts power to intervene suo motu.
97
There was a possibility in the case where the radioactive milk was questioned in the court.[W. P. No. 92/1996]
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

have more power to monitor the development of the case and to ensure that the directions are carried out98.
Moreover, tortuous claim and class suit99 should be encouraged as there is an added advantage of monetary
compensation and courts generally opt for detailed evidence.
Furthermore, the NGOs involved in the environmental protection and public interest litigation can
build a database of lawyers to provide free legal assistance, at least for the first consultation, to people suffering
with environmental problems. In that way, the general people would be aware of their environmental rights and
the options available to them.
At the same time, the lawyers would be able to participate actively in the environmental protection, not
to mention having a successful profession at the same time. Also, the court can ask amicus to provide them with
supporting legal documents. In that way, the court will have some useful legal research prepared for them and,
on the other hand, the NGOs would be able to introduce their own views for the knowledge of the court100.

VII. Recommendations
The judiciary is responding to the global call for protection of environment. With the adoption of new
sets of laws and rules, the legal regime as it stands today sounds more progressive and sensitive.
The following recommendations may add a new value to keep the environment free from pollution through
judicial activism:
1. Besides the regular court procedure, alternative dispute settlement mechanism should be initiated for better
protection of environment.
2. The mediation process should be incorporated to provide a better solution between local groups and big
companies.101
3. A strong and comprehensive regulatory framework should be made in protecting the environment.
4. The non-government organization requires participating more in the policy making and making the
politicians aware of the loopholes in the environment; and an environment law reform body should be made
for analyzing the environmental law. 102
5. Public consciousness and effective public participation should be ensured through different government and
non-government organization.103
6. Criminal liability should be ensured to the wrongdoer of environment polluters.
7. A check and balance system should be introduced between the judiciary and the environmental activists.
8. A special committee should be established to monitor the direction of the court.
9. Awareness and special education system relating to the environmental law and its protection can be taken to
enhance its strong base.
10. Contribution of Public Interest Litigation in the protection of environment should be more wide

Furthermore, different regulatory bodies, instead of co-operating with one another, appear to be at odds
due to their lack of understanding and communications. At the moment, the Department of Environment is in
charge of bringing together the fragments of the authorities and to promulgate the necessary guidelines. But,
there is a lack of personnel, budgetary resources and motivation to enforce the existing legislation. Nevertheless,
better public consciousness, effective public participation in the environmental decision making and strong
environmental regulations would certainly help to strengthen the role of judiciary in the environmental field.104

98
For example: in India, in the R. L .and E Kendra case (AIR 1985 SC 652; AIR 1987 1 SCR 637; AIR 1987 SC 359; AIR 1988 SC 2187
and AIR 1989 SC 594): concerned with illegal limestone quarries which were posing considerable hazard to environment. The court
appointed an expert committee to inspect the mines and a working committee to classify the mines. Based on the report, the court decided
which mines should stop operating and set up a monitoring committee to examine whether any mining operation was being illegally
undertaken. The court ordered the government to establish an initial fund to set up the monitoring committee.
99
These are actions prescribed by the Civil Procedure Code (1908). Less used because of longer time frame, delays and cost. Moreover, it is
sometimes difficult to narrow down the expansive issues of environmental damage.
100
The amicus appears to have been originally a bystander who, without any direct interest in the litigation, intervened in his own initiative
to make a suggestion to the court on matters of fact and law within his knowledge. An amicus brief should generally contain materials
submitted to the court and are additional to that submitted by any other parties. It may support the argument of one party or indeed support
the argument of one party in part and another party in part.
101
It allows parties to resolve disputes quicker, more efficiently and more privately than judicial process. Participation in the mediation does
not waive the right to use more formal means of dispute resolution. If the environmental problem is of complex nature and settlement
process is difficult because of the number of the parties, mediation would be a suitable option.
102
In India, there are several incentive-based mechanisms. For example, the Trade in Environmental Services Technologies (TEST)
programme was created to improve environmental protection and productivity in Indian industries. TEST, an assistance programme between
USA and India, is provided in the form of loans, conditional grants and technical assistance. Moreover, under the eco-labelling scheme, any
product is made; used or disposed of in a way that significantly reduces the environmental harm would be considered as environmental
friendly product.
103
Jona Razzaque, Access to Environmental Justicee Role of the Judiciary in Bangladesh, available at < <http://www.eng-
consult.com/ben/papers/paper-jona.pdf.>. p. 13.
104
Ibid, p.8.
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 Application Of Judicial Activism In Protecting The Environment: An Analysis

VIII. Conclusion
After discussing the above all it is apparent that the concept of Judicial Activism has provided an
important tool for the protection environment. The liberalization of the traditional role of locus standi has
brought the better access to justice in case of environmental protection by invoking public interest litigation.
Besides, the judiciary has initiated the concept of social justice, which led to remarkable judicial activism and
innovations. The contemporary judiciary has blazed a new trial of constitutional and legislative interpretation;
and that build up a new era in the environmental jurisprudence through the judicial activism.105 Despite
legislations, rules and regulations, protection and preservation of the environment is still a pressing issue.
Hence, there is a need for an effective enforcement of the constitutional mandate and other environmental
legislations. A strong foundation for environmental jurisprudence helped in the protection and preservation of its
environment as well as its people.106

105
Bharat H. desai, Enforcement of the Right to Environment Protection through Public Interest Litigation in India, Indian Journal of
International Law, Vol. 331993, p.39.
106
Mhajan Niyati, Judicial Activism for Environment Protection in India, International Research Journal of Social Sciences, Vol. 4(4), 7-14,
April (2015), ISSN 2319-3565.
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