Subhash Kumar v State of Bihar (1991)

This is the case every Environmental Law answer on Article 21 begins with, and it is the case most often mis-stated. It is the clearest short statement in the reports that the right to life includes the right to a pollution-free environment, and that Article 32 may be used to enforce it. It is also, on its facts, a dismissal with costs — the petitioner was found to be pursuing a private trade grudge under the cover of public interest litigation.

Both halves are examinable, and they are examinable together. The proposition that makes environmental litigation possible and the warning that limits it come out of the same three paragraphs. An answer that gives only the first half has read the headnote and not the judgment.

The petition was brought under Art. 32 by Subhash Kumar, seeking a direction to the Director of Collieries, West Bokaro Collieries at Ghatotand, District Hazaribagh, in the State of Bihar, and to the Tata Iron & Steel Co. Ltd., to "stop forthwith discharge of slurry/sludge from its washeries" into the Bokaro river. It was expressly framed as public interest litigation for preventing pollution of the river water.

The petitioner's case was that the surplus waste, in the form of sludge or slurry, was discharged as an effluent from the washeries into the Bokaro river, got deposited in the bed of the river, and also settled on land including his own plot. He alleged that the continuous discharge in heavy quantity posed "risks to the health of people living in the surrounding areas" and that as a result "the problem of pure drinking water has become acute". He alleged that despite representations, the State of Bihar and the State Pollution Control Board had failed to act, and had instead "permitted the pollution of the river water", granting leases on payment of royalty for the collection of slurry.

The respondents denied the allegations. The Bihar State Pollution Board filed a counter-affidavit setting out its regulatory history in some detail, and the detail is worth keeping because it is what defeated the petition on the merits:

• The company had applied for sanction "in accordance to Ss. 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974" to discharge effluent from its outlets, and the Board analysed the effluent before granting sanction.
• The Board "issued direction to the Director of Collieries to take effective steps for improving the quality of the effluent", and imposed conditions requiring two settling tanks for settlement of solids and rewashing.
• Regular samples were to be taken and tested for suspended solids, with results communicated to the Board each month.
• On inspection on 20 June 1988 all four settling tanks had been completed, embankment strengthening was in progress, and there was no discharge into the river "except that there was negligible seepage from the embankment".

The company's answer added a commercial point of some force: the slurry "contains highly carboniferous materials", is "considered very valuable for the purpose of fuel" because the ash content is almost nil, and has a high market value — so the company had every incentive to see that none of it escaped.

The Court then looked at who the petitioner was. On the counter-affidavits it appeared that he "has been purchasing slurry from the respondents Nos. 4 and 5 for the last several years", wanted more, and was refused. He is described as "an influential businessman" holding a licence for coal trading, who tried to put pressure on the company through various sources and, when it refused, "started harassing the Company".

The record included a criminal case under ss. 379 and 411 of the Indian Penal Code read with s. 7 of the Essential Commodities Act for unauthorised removal of the company's slurry, a private criminal complaint on the same sections, and a run of Art. 226 petitions in the Patna High Court for permission to collect slurry, dismissed on the ground of a title dispute. The Court found that "In order to feed fat his personal grudge he has taken several proceedings against the respondent-company including the present proceedings", and that there was "intrinsic evidence in the petition itself that the primary purpose of filing this petition is not to serve any public interest instead it is in self interest".

1. Does the fundamental right to life in Art. 21 extend to the quality of the environment — to clean water and clean air?
2. If it does, may it be enforced by petition to the Supreme Court under Art. 32, and at whose instance?
3. Was this petition a genuine public interest litigation?

The petition was dismissed with costs of Rs. 5,000. The propositions of law, however, were stated in the widest terms, and they are the ratio on the first two issues because they were the necessary route to holding the petition maintainable in principle before it failed on its facts.

On Art. 21 and the environment. "Right to life is a fundamental right under Art. 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life."

On Art. 32 as the remedy. "If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art. 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life." Note the four words "in derogation of laws" — the Court is not offering Art. 32 as a free-standing environmental jurisdiction untethered from statute; the impairment must be in breach of law.

On standing. "A petition under Art. 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists." But recourse to Art. 32 "should be taken by a person genuinely interested in the protection of society on behalf of the community".

On abuse of process. "Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity." If such petitions are entertained "it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this Court". And in terms: "Personal interest cannot be enforced through the process of this Court under Art. 32 of the Constitution in the garb of a public interest litigation."

On what public interest litigation is for. "Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community who are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law." The Court added that "It is duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants".

The ratio has three limbs, and they are cumulative rather than alternative:

1. Art. 21 includes the enjoyment of pollution-free water and air.
2. Art. 32 lies to remove pollution which impairs that quality of life in derogation of laws, at the instance of affected persons or of social workers or journalists acting for the community.
3. A petition under Art. 32 filed to serve a personal grudge is an abuse of process and will be dismissed with costs.

The observations on the incapacity, poverty or ignorance of law of the class for whom public interest litigation exists are the Court's account of the institution rather than a rule of standing; they are frequently cited as though they narrowed standing, and they should be handled as a description of the paradigm case, not as a test that excludes a middle-class petitioner.

Note what the case does not decide. It does not decide that the Bokaro river was unpolluted — the Court accepted the Board's account and did not need to go further. It does not hold that Art. 32 lies for any environmental complaint however small. And it lays down no procedure for the environmental writ.

The structure of the judgment is worth learning because it is the structure of the well-written environmental writ answer.

The Court first establishes the right, then establishes the remedy, then asks whether the person before it is entitled to invoke that remedy. It is the third step that decides the case, and it is decided on documents already on the record — pending criminal cases, dismissed High Court petitions, a commercial refusal — rather than on any finding about the environment.

The deeper point is about the cost of an open door. Once standing is relaxed so that a stranger may litigate for a community, the Court has no ordinary filter: there is no affected plaintiff whose interest the defendant can test. The only filter left is the Court's own scrutiny of motive. That is why the abuse-of-process passage is not an aside; it is the institutional price of the standing rule stated in the same paragraph.

The "in derogation of laws" qualification does similar work on the substantive side. Art. 21 is not converted into a licence to set environmental standards from the Bench; it is engaged where an existing legal standard is being broken. Read with the Board's affidavit — consent under ss. 25 and 26, conditions imposed, monthly testing, inspection — the case is in substance an example of the statutory machinery working, and the Court saying so.

The trap is to write the case up as a victory for environmental protection. It is not. It is a dismissal with costs against a coal trader.

The correct handling is to state the proposition, attribute it accurately, and then add the sting: the same judgment that gave Indian environmental law its Article 21 foundation refused relief because the petitioner came to court "to feed fat his personal grudge". Examiners award the second half.

The second trap is to attribute to Subhash Kumar things it did not say — the precautionary principle, polluter pays, absolute liability, sustainable development. Those come from Vellore Citizens Welfare Forum and the Bichhri case, seven and five years later. Keep the chronology straight.

• Chapter 1 builds the constitutional scheme around this case: Art. 21 as the operative right, Art. 48A as the State's directive, Art. 51A(g) as the citizen's duty, and Art. 32 as the route.
• Chapter 7 (Water Act) supplies the statutory background the Board relied on — consent under ss. 25 and 26, and the Board's power to give directions.