Public interest litigation and the environment
Contents
Meaning of public interest litigation
Public interest litigation describes legal actions brought to protect or enforce rights enjoyed by members of the public or large parts of it. It has been used as a tool for great social change in India, Pakistan, Bangladesh, Tanzania, Uganda, Australia, the Philippines, etc., on such diverse issues as the environment, health and land issues.
"Public interest Litigation", is not defined in most statutes or Acts, however judges have interpreted it to mean bringing a court action for or on behalf of public interest. According to Bhagwati J. in Bandhua Mukti Morcha-Vs-Union of India, AIR 1984 S.C.
“Public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice, which is the signature tune of our Constitution”.
In Australia, the criteria used by the Public Interest Law Clearing House (Vic) Inc. and the Public Interest Law Clearing House Inc. (NSW) to determine public interest cases to support are:
The matter must require a legal remedy and be of public interest, which means it must:
- a) Affect a significant number of people not just the individual or;
- b) raise matters of broad public concern or;
- c) impact on disadvantaged or marginalized group, and
- d) it must be a legal matter which requires addressing pro bono publico (‘for the common good’)
In Tanzania, in Mtikila-Vs-Attorney General No. 5 of 1993 the judge observed that:
“It is not the type of litigation which is meant to satisfy the curiosity of the people, but it is a litigation which is instituted with a desire that the Court would be able to give effective relief to the whole or a section of the society…the condition which must be fulfilled before public interest litigation is entertained by the Court is that the court should be in a position to give effective and complete relief. If no effective relief can be granted, the court should not entertain public interest litigation.”
An action can be brought for public interest litigation under the following:
- Environmental degradation
- Violation of basic human rights of the poor
- Content or conduct of government policy
- Compel municipal authorities to perform a public duty
- Violation of religious rights or other basic fundamental rights
Public interest litigation and environmental protection
Public interest litigation has been used as an effective tool to control acts of environmental degradation. In Uganda for example, civil societies have been active in compelling government and private organizations to observe measures to protect the environment. In TEAN Vs Ag and NEMA Application No. 39 of 2001, court forced a tobacco company to increase the size of the cigarette warning on cigarette packs and advertisements; the court also held that public smoking pollutes the environment and is a danger to the health of non smokers. In India smoking was held to be a violation of the right to life of non-smokers in Ramakrishnan and others Vs State of Kerala 1999 Kerala 385, while in Enviro-Legal Action Vs Union of India [1996] 2 LRC 226, the Indian supreme court held that uncontrolled pollution of water sources and air by industrial wastes was a threat to right to life.
What is common with all the above court actions was that they were brought by individuals against a violation or a threat of environmental destruction. This has made public interest litigation part of and partial to environmental protection.
Why public interest litigation
Public interest litigation is important because of several factors. Important among these are:
- In most developing countries, the legal regime of environmental laws is weak and the laws are difficult to enforce and sometimes ambiguous. Public interest litigation has helped bridge this gap.
- Public interest litigation is important where the government is not willing to promote/protect the environment. The government may not be willing to prosecute those who violate environmental laws and at times the government is a violator of environmental laws. In some jurisdictions an injunction can be brought to compel or stop the government from degrading the environment.
- In most developing countries governments lack resources to prosecute and investigate all the criminal cases that take place within its jurisdiction. Public interest litigation enables individuals to bring action on behalf of the community, a role the government may not play.
- Where criminal remedies are not enough, e.g. a fine may be too small compared to the amount of environmental degradation. A civil suit is well suited for orders such as restitution and compensation which may not be provided for by criminal laws of a country.
- Where criminal remedies are not enforceable, e.g. where a crime is committed by a company and yet the punishment for the crime is imprisonment, it becomes hard to punish the company.
Litigation on behalf of the public can be brought as a tort under negligence, nuisance and the rule of strict liability in Rylands Vs Fletcher.
Further Reading
- Bandhua Mukti Morcha-Vs-Union of India, AIR 1984 S.C.
- Enviro-Legal Action Vs Union of India [1996] 2 LRC 226.
- Farooque, M. & Hasan, S.R., 1996. Regulatory Regime on Environment in Bangladesh. BELA and the Ford Foundation, Dhaka.
- Habib, Ehsanul. Public Interest Environmental Litigation: A Tool to Ensure Compliance and Enforcement.
- India Supreme Court Cases.
- Karugaba, Phillip, 2005. Public interest litigation in Uganda: practice & procedure. The Environmental Action Network (TEAN).
- Mtikila-Vs-Attorney General No. 5 of 1993
- Narayama, 2001. Public Interest Litigation Edn.
- Penny, Martin, 2003. Defining and refining the concept of practicing in the public interest. Alternative Law Journal, 28(1). February 2003.
- Ramakrishnan and others Vs State of Kerala 1999 Kerala 385
- Razzaque, Jona, 2002. Human Rights and the Environment: the national experience in South Asia and Africa. Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment, 14-16 January 2002, Geneva: Background Paper No. 4.
- Sangal, P.S., 1992. ”The Law as a Tool for Environmental Conservation and Management in India”, LEADERS Nepal, Proceedings of the International Conference and Environment and Law, 1992.
- The Environmental Action Network (TEAN). TEAN Vs Attorney General and NEMA Application No. 39 of 2001.
- Uganda Judiciary.
