Jul 29, 2020 07:52 UTC
Aug 4, 2020 at 05:13 UTC
JUSTICE KULDIP SINGH: Remembering the ‘Green Judge’
“This royal throne of kings, this sceptered isle… This blessed plot, this earth, this realm, this England.”
Undoubtedly, holding a judicial office or being a judge is ruminated as a grandiose and appanage embodiment of God. Sacrosanct functions, which a judge is expected to perform makes a Judge no less than a baronial King. ‘My Lord’ as used in common parlance (although deprecated by some judges) res ipsa loqitor volumes of inviolability annexed with the profession of being a Judge. As rightly said “with great power, comes great responsibility” likewise, Judges are not immune from mammoth power, only a Judge possesses the power to legally award a capital punishment (issue a warrant of death) in accordance with governing provisions of Indian Penal Code and Criminal Procedure Code. Such powers are surmounted and while exercising the same judicially and impartially, it turns into an act of incumbency and devoir.
A judge may come, a judge may go but his judgment remains forever. It is believed that a judge speaks through his judgments. Lord Denning in his book untangles that a judge must be a thorough gentleman with robust common sense and some knowledge of the law . What stands out from such a view is that law is not principally necessary to do Justice, perhaps it’s just a tool used to achieve the desired result that is Justice. What can conceivably be appreciated from the writings of Lord Denning is that prudent and rational application of mind is all what a judge entails to dispense Justice. Parallelly, Socrates describes a judge as a courteous person who must soberly and impartially decide cases. Therefore, it is evident from the plods of philosophers/jurists from centuries that a judge must possess stout common sense and empathetic concern with humane qualities while deciding a case.
In common law system, a litigation whether private or public which exists between the parties rests or the ends of Justice is met mostly when the wrongdoer goes behind bar, or when unjust enrichment is reversed or damages or compensation is awarded to the victim. Since, disputes are mostly between two human beings or akin legal entities, smearing settled principles governing the adversarial system makes the life of a judge less problematic while delivering verdicts. However, in extant status where horizons of litigation have expanded and stretched in diverse streams of law, especially environment law, delivering Justice with a conventionally held set of rules becomes a painstaking effort. On the turf of environment law, breaking all odds, Justice Kuldip Singh was one such Judge who brought a revolution via introducing varied concepts such as sustainable development, intergenerational equity, polluters pay principles etc.
A lot is said about judges, as to how they should work or what all qualities they should possess, This article strives to empathize works of a Judge who made exorbitant contribution in the genre of Environmental Law that he has been honoured affectionately with the title of ‘Green Judge.’ The views hereinbelow expressed are purely personal in nature, with whatever little understanding the author could gather from verdicts of Justice Kuldip Singh and these views are not intended to hurt feelings/sentiments of any person or class of persons.
The tenure of Justice Singh as a Judge of the Supreme Court of India was a little over eight years. His tenure marked a plethora of prodigious landmark judgments in the realm of environment law. Some key features which find mentions in his pioneering judgments are as under:-
Fine Balance of Heart and Head
As commonly said “Though the Distance is just 14 inches from mind to heart yet it is extremely difficult to strike a balance between the two. It’s most difficult to decide whether to go with the Heart or Mind.” Howbeit, one thing writ-large which can be culled out from the majority of judgments delivered by Justice Singh, especially on Environment Laws is that his lordship has a fine balance between his head and heart. Justice Singh in plethora of his verdicts has let his heart do the writing. He has a prodigious love for nature. The amount of empathy enumerated in his writings clinchingly points that flora and fauna have always attracted him. In M C Mehta v. Kamal Nath (hereinafter referred as Kamal Nath’s Case), while passing strictures against Span Resort for changing the flow of River Beas, his lordship held that area around the land in question situated on Kullu-Manali highway is ecologically fragile and full of scenic beauty and such area should not be allowed to be converted into private ownership for commercial gains. In the same para, Justice Singh calls River Beas as young and dynamic. It is prima-facie candid that Justice Singh has a deep sense of affection towards nature and despite several attempts of Span Resort and it’s management to avert the river flow or to subjugate the area around the river, Justice Singh stood firm on his stand and did not let even an inch of forest land to be utilized by Span Resorts for commercial purposes.
Astoundingly, while dealing with Taj Trapezium Case the same affection and tenderness is depicted in the opening lines of the judgment in that case. Justice Singh contemplates Taj Mahal as a final achievement and acme of Mughal Art. He further writes that Taj Mahal is the perfect epitome of the artistic interplay of the architects skills and jewellers’ inspiration. In this case, Justice Singh had directed more than 300 industries to shift their work from Agra to various other places. However, Justice Singh while being solicitous about the workmen working in all such industries, observed that employers should not retrench workmen amid the period when industries are to be shifted from the vicinity of Agra to other places of the country, as the poor would become penniless which would aggravate their miseries. His lordship’s judicial consciousness and a fine sense of judgment through such crafty pronouncements unequivocally indicate that Justice Singh had a fine balance between his heart and head. He acted judicially but empathetically, sternly but affectionately and lastly vigorously but realistically.
Impudent way of Imparting Justice
Time and again an astonishing fact which outshined in most of the verdicts passed by Justice Singh is his lordship’s audacious way of delivering Justice. Be it, Taj Trapezium case or Delhi Air pollution matter, Justice Singh through his equivalent decisions has remained unbothered by internal or external forces while delivering those Judgments. In Taj Trapezium, Justice Singh audaciously directed to relocate more than 500 industries in toto which were causing mutilation of Taj Mahal or air pollution in and around Delhi. His Lordship with his gallant approach placed a caveat over the government to facilitate the shifting of industries from Delhi and Non-Capital Regions to other parts of the country. The effect of such boastful judgments was that within a quick span of the passing of such order, more than 50 percent of the Industries had already shifted their businesses.
Justice Singh unequivocally made it clear that it is the duty of the government to protect and preserve the environment. While extensively speaking on the doctrine of public trust, for the bench, Justice Singh observed in Kamal Nath’s Case that forest lands, lakes, rivers, air, etc are all under the trusteeship of government and are ultimately for free and incessant use of the public. Therefore, the government is ipso-facto liable and responsible for reserve forests, rivers, riverbeds, air, etc. In S. Jagannath v. Union of India, where a bench consisting of Justice Singh was dealing with a matter of shrimp farming and its ill-effects on the environment, Justice Singh observed that shrimp farming through modern techniques is directly responsible for environmental degradation, especially in coastal areas. While reminding constitutional mandate to government, enshrined in Article 48-A of the Constitution of India, Justice Singh held that State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. Justice Singh further pointed out that there are other legislations such as Fisheries Act 1987, Wild Life Protection Act, 1972 and Forest Conservation Act, 1980 which postulate relevant provisions for environmental protection and pollution control but unfortunately, the authorities responsible for the implementation of various statutory provisions are wholly remiss in the performance of their duties under the said provisions. Resultantly, Justice Singh made strict rules and held that environmental clearance is sine qua non for all shrimp farming industries, and any industry found working in a clandestine manner would be sternly dealt in accordance with the law.
With such verdicts, Justice Singh sent a clear message, be it industries, employers, government, or any ‘rank and file’, no one would be spared if he/she tries to cause disruption to the environment in any manner. The audacity with which such orders/judgments were passed speaks volumes of valiant and dauntless decision-making ability which Justice Singh possessed.
Inevitably, significant it is to note that with every other decision, Justice Singh, especially in the 1990s, gave new dimensions in the genera of environment law. His lordship brought to light varied doctrines which became summum bonum for present-day environment law. Starting from the case of Vellore Citizens Welfare Forum v. Union of India, concept of sustainable development, doctrine of intergenerational equity, polluters pay principle and precautionary principle were interpreted in India. Although, Indian Council For Enviro-Legal v. Union Of India had set the stage for polluters pay principle, however, this principle was extensively discussed and carry forwarded in Vellore Citizens Case. In the same case, Justice Singh in his vivacious approach also directed the Madras High Court to constitute a ‘Green Bench‘, which would especially hear matters with respect to environmental law and matters incidental thereto. Worthwhile it is to appreciate that this was the first time any directions were issued by the court to specifically dedicate a court for adjudication of environmental law cases.
In furtherance of the same, germane it is, to point out that plantation which is witnessed between road bisectors on National Highways, especially at outskirts of Delhi on Badkal road is because of the judgment passed by Justice Singh in M.C. Mehta v. Union of India. Through his lordship’s order, the entire area was afforested which at present stands as a green belt. While introducing the concept of Public Trust, Justice Singh graciously accepted the rule of Roman Law and supported the view that natural resources are owned by none (res nullious) and cannot be possessed by private persons. Considering such resources as gifts of nature, Justice Singh acceded to doctrine applicable by the Supreme Court of Massachusetts, in Gould v. Greylock Reservation Commission.
One astonishing fact about Justice Kuldip Singh evident from his decisions is that he regarded the environment as a living being and had deep compassion for it. Because he had such a sympathetic attitude towards nature he was able to remarkably contribute through his judgments. In the present time, the dynamics of environmental law have changed. With the introduction of National Green Tribunals Act, 2010, the jurisdiction of environmental courts is now commanded by National Green Tribunal (hereinafter referred as NGT). Some orders of NGT which are worthwhile to mention are – Restrictions on the movement of vehicles to Rohtang pass, Systematic collection and disposal of solid waste management in Haryana and Prosecution of Ashapura Group of Companies for violating orders of Pollution Control Board. Per contra, it is utmost imperative to note that more than one year has elapsed after passing of such orders and only trifle ground implementation has taken place in Haryana with respect to solid waste management disposal. Some news reports are also making rounds that certain officers have colluded with the wrongdoers which are hampering the process of implementation of the judicial order. It would not be incorrect to suggest that time has come for India to see more judges like Justice Singh.
Justice Singh was of one his kind. The quality of such judges is rare to find even in a population of 137 crores. Noteworthy it is that after Justice Singh no judge has earned the title of Green Judge in India. However, some of the eminent jurists who made their name in the environment law are Louis Claiborne, Judge Skelly Write (United States District Judge), and Professor Joseph Sax but interestedly no one save Justice Singh hails from India. Although Mahesh Chandra Mehta has done remarkable work on the turf of environment law, yet time urgently mandates for others also to take the torch and march towards protection and preservation of the environment.
Interestingly, inspiration can be drawn from neighboring countries such as Sri Lanka. Sri Lankan Courts from the recent past have been proactive in environmental law and made significant contributions in the same. In a book titled ‘Judges and Environmental Law’ Justice J.A.N de Silva, former Chief Justice of Sri Lanka highlighted the importance of environmental education and observed that modern environmental law provides for a system of regulation by statute. Administrative agencies established under the environmental statutes are required to implement legislative mandates. Justice de Silva also introduced The Environmental Foundation Limited which was an initial step for educating the public about the importance, conservation, and protection of the Sri Lankan environment. Justice de Silva forwarded this book to Judges in Sri Lanka to deal with environmental law cases with ease and effectiveness.
Conspicuously, Switzerland is one such country that has maximum EPI (Environmental Performance Index ) score. Meaning thereby that Switzerland has minimum environmental dilapidation in the entire world. Per contra, India stands at 155th rank in overall Environmental Performance Index which is indicative of the fact that a lot is required to be done in this regard. One of the reasons attributed for such high environmental performance index score for Switzerland is that anyone who is found violating environmental laws is strictly dealt with and the wrongdoer is heftily penalized. The fines imposed are as high as 300 to 500 U.S. Dollars.
It is for people of India to understand that Justice Singh has done his job, now need of the moment is for other stakeholders, not only judges, but all human beings to unitedly stand up for the just cause of the environment. In achieving the same, inspiration can be drawn from the plods of John Rawls. Rawls in his book ‘The Theory of Justice‘ asked individuals to introspect their conduct in public which could be termed as unfair or unreasonable. Rawls believed that unless and until a person is not directly affected by injustice, he or she would not raise his or her voice, which would create a veil of ignorance. Rawls suggested that at the outset human beings know where unjust activities lie and if they start raising their voice, veil of ignorance would vanish. Similarly, it goes without saying that a person knows where he or she is causing harm to environment, but ignorantly he or she still causes the same. It is for such being to understand that his or her mistake is creating a veil of ignorance in the society which is to be eradicated at all costs. the same can only be by acting as a prudent being while interacting with the environment. One must realize that human beings need an environment and natural resources for their survival, the environment doesn’t necessarily require human beings. Be that as it may, human beings have to act responsibly and respect the integrity of the environment. Otherwise, if the environment starts to demand back its rights from human beings, it might lead to death and destruction of human specie in the most hostile manner.