Friday, June 17, 2011

Indian Public Interest Litigation- an effective answer to deal with environment? by Samraggi Chakraborty


Every one of us right from our moment of inception is dependent on the environment for our all round development and growth. Our very existence will come into question if there is no life support called environment. We are what because of the environment. But many a times we tend to forget this and engage in activities that results in harming the environment. We tend to forget that harming the environment means we are harming ourselves and posing a threat to our very existence. Lot of damage has been done to the environment in the name of development. To deal with such situation legislations have been passed. Passing legislations is not enough. Environment is for all. Everyone has to take care of it. What is required is effective participation by all in matters of protection and improvement of environment. An answer to this is public interest litigation. By the very term ‘public interest litigation’ it means that it is litigation in the interest of public. Environment is an interest of the public in general and so litigation in the interest of the public should be allowed. In India, public interest litigation has played an effective role in the field of environmental law. Various new dimensions to the environmental law have been added because of various public interest litigations. Any public spirited person can file a public interest litigation and bring any matter in the notice of the judiciary. This unique characteristic of the Indian Public Interest Litigation gives places it in a higher pedestal over the Citizens Suit of United States of America. In this paper the researcher has tried to find out how the public interest litigation of India has helped to deal effectively with its environmental matters and also tries to find out if the present system of public interest litigation in India perfect to deal with problems of environment or should it strictly follow the principle of locus standii as in the case of citizen suits in United States.

Public Interest Litigation (PIL) in India- Its birth and continuity

Indian civilization is proud to have its continuity from time immemorial irrespective of its geographical boundaries. The very term ‘environment’ in Hindu/Sanskrit language is “Pasyavaran” which means “Pari-aavaran”, i.e., external covering or a thing encircling or encompassing human existence. The Indian viewpoint or the Hindu philosophy viewed man and environment as part and whole of the same thing but this part and whole keep their position constantly interchanging in different context and situations and in this way man and environment is the condition of the other.[1]

India has shown a remarkable vigour in judicial activism from post 1980 onwards. Prior to this period it was only the aggrieved party who could personally knock the doors of justice and seek remedy. A person who was not personally affected could not raise his voice as a proxy for the person who was affected. But it is around 1980 that the Indian legal system brought about a sea change in this approach- particularly in the field of environmental law.

A host of problems crops up in matter pertaining to protection of the environment in developing countries like India. However, the Hon’ble Supreme Court of India through human rights jurisprudence and environmental jurisprudence initiated Public Interest Litigation in India. The traditional concept of locus standii is no longer applicable and acts as no bar in filing of community oriented Public Interest litigations. Any citizen can invoke the jurisdiction of the Court, especially in human rights and environmental matters even by writing a simple postcard.[2]


Medical Jurisprudence related articles by Dr L. Ananda kumar

Saturday, June 11, 2011

Evolving capacity of children-an understanding by Samraggi Chakraborty

The United Nations Convention on the Rights of the Child (UNCRC) gave a new dimension to child rights. Prior to this Convention, children were understood to be dependent on their parents, elders and guardians for their protection. But with the coming of this Convention, children are considered to be subjects of rights i.e. they could exercise and claim those rights. This Convention bestows on children various rights and these rights are to be exercised in accordance with their evolving capacities. Why is this concept of evolving capacity important? Does consideration of evolving capacity of children help in advancing their rights?

I. Introduction
Evolving capacity is the concept in which education, child development and youth development programs led by adults takes into account the capacities of the child  or youth to exercise rights on his or her own behalf.

The concept of evolving capacity has been for the first time recognized by the United Nations Convention on the Rights of Child (UNCRC) under Article 5. It states that States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Thus we find that Article 5 of the UNCRC provides that the direction and guidance provided by the parents or other persons who are in responsibility of the child must be taken by taking into consideration the capabilities of the child to exercise rights on his or her behalf.

Article 5 is no doubt an important provision of the convention.  This is so because of its recognition of ‘the exercise by the child’ of rights mentioned under the convention and also in the repetition of its language in Article 14. Article 14 provides that

1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in amanner consistent with the evolving capacitiesof the child.

The principle of evolving capacity is very much stitched to Article 12 which provides that every child capable of forming her or his own views has the right to freely express those views and to have them duly considered in all decisions that will affect that child, in accordance with the child's age and maturity. This directly points to “evolving capacities”.

Article 5 speaks about evolving capacity of a child. But then what is meant by evolving capacity of a child? Evolving capacities refers to processes of maturation and learning whereby children progressively acquire knowledge, competencies and understanding, including acquiring understanding about their rights and about how they can best be realized.[1]

Why is the concept of evolving capacity of children important? “Respecting young children’s evolving capacities is crucial for the realization of their rights and especially significant during early childhood, because of the rapid transformations in children’s physical, cognitive, social and emotional functioning, from earliest infancy to the beginnings of schooling.”[2] Evolving capacity should be viewed as an enabling process and not as an excuse for authoritarian practices that actually curtails and limits the independence and autonomy of children. Parents and others should be encouraged to enhance their children in exercising their rights (their right to participation under Article 12 ).[3]