Around 1980, the Indian legal system, particularly the field of environmental law, underwent a sea change in terms of discarding its moribund approach and instead, charting out new horizons of social justice. In a modern welfare state, justice has to address social realities and meet the demands of time. Protection of the environment throws up a host of problems for a developing nation like ours. Administrative and legislative strategies of harmonization of environmental values with developmental values are a must and are to be formulated in the crucible of prevalent socio-economic conditions in the country. In determining the scope of the powers and functions of administrative agencies and in striking a balance between the environment and development, the courts have a crucial role to play. Principle 10 of the Rio Declaration of 1992 specifically provides for effective access to judicial and administrative proceedings, including redress and remedy. The judiciarys anxiety for combating environmental assaults has already been well elucidated. Its concern for the maintenance and preservation of forests, one of our depleting natural resources has also been highlighted.
Public Interest Litigation (PIL) has come to stay in India. Contrary to the past practices, today a person acting bona fide and having sufficient interest can move the courts for redressing public enquiry, enforcing public duty, protecting social and collective rights and interests and vindicating public interest. In course of time there has been a wave of environmental litigation. At present most environmental actions in India are brought under Articles 32 and 226 of the Constitution. The writ procedure is preferred over the conventional suit because it is speedy, relatively inexpensive and offers direct access to the highest courts of the land. Nevertheless, class action suits also have their own advantages. The powers of the Supreme Court to issue directions under Article 32 and that of the high courts under Article 226 have attained greater significance in environmental litigation. Courts have made use of these powers to remedy past malafides and to check immediate and future assaults on the environment.
The formulation of certain principles to develop a better regime for protecting the environment is a remarkable achievement. These directions were given by courts for disciplining the developmental processes, keeping in view the demands of ecological security and integrity. The rights to livelihood and clean environment are of grave concern to the courts whenever they issue a direction in an environmental case. ]Labourers engaged in the asbestos industry were declared to be entitled to medical benefits and compensation for health hazards, which were detected after retirement. Whenever industries are closed or relocated, labourers losing their jobs and people who are thereby dislocated were directed to be properly rehabilitated. ] the Rajasthan High Court observed that a citizens duty to protect 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. ] have issued directions to remind statutory authorities of their responsibility to protect the environment.
] 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. The liberal use of PIL against assaults on the environment does not mean that the courts, even if it is tainted with bias, ill will or intent to black mailing will entertain every allegation. This amounts to vexatious and frivolous litigation. When the primary purpose for filing a PIL is not public interest, courts will not interfere. The right to humane and healthy environment is seen indirectly approved in the MC Mehta group of cases, decided subsequently by the Supreme Court. ] enlarged the scope of the right to live and said that the state had power to restrict hazardous industrial activities for the purpose of protecting the right of the people to live in a healthy environment.
] posed an important question concerning the amount of compensation payable to the victims affected by the leakage of oleum gas from the factory. The Court held that it could entertain a petition under Article 32 of the Constitution and lay down the principles on which the quantum of compensation could be computed and paid. This case is significant as it evolved a new jurisprudence of liability to the victims of pollution caused by an industry engaged in hazardous and inherently dangerous activities. ]was regarding the tanning industries located on the banks of Ganga was alleged to be polluting the river. The Court issued directions to them to set up effluent plants within six months from the date of the order. It was specified that failure to do so would entail closure of business. The four MC Mehta cases came before the Supreme Court under Article 32 of the constitution on the initiative of the public-spirited lawyer.
He filed the petitions on the behalf of the people who were affected or likely to be affected by some action or inaction. The petitioner had no direct interest in the subject and had suffered no personal injury. Still standing to sue was not raised at the threshold question to be decided by the Court. The Supreme Court has further expanded Right to life in recent years. The court held that this fundamental right to health and medical aid should continue even after retirement. The concept of compensation for environmental degradation has evolved at a snails pace over a period. It started with the strict liability principle followed by the absolute liability principle and then compensation under Article 32 and finally the polluter pays principle. The Pollluter Pays Principle as interpreted by this court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. The society shall have to prosper, but not at the cost of the environment and in the similar vein, the environment shall have to be protected but not at the cost of development of the society. The need of the hour is to strike a balance between the two i.e., development on one side and pollution free environment on the other. A process by which development can be sustained for generations by improving the quality of human life while at the same time living in harmony with nature and maintaining the carrying capacity of life supporting eco-system. It focuses at integration of developmental and environmental imperatives. Thus, sustainable development is the only answer and administrative actions ought to proceed in accordance therewith and not dhors the same. ] Blacks Law Dictionary. ] AIR 1988 Raj.
Illinois Supreme Court Justice Mary Jane Theis has announced an application process for two Cook County subsicruit judicial vacancies, according to press releases issued today by the Illinois Supreme Court. A vacancy was created in the 7th Subcircuit with the passing of Judge Anthony L. Burrell. A 4th Subcircuit vacancy was created by the July 2 retirement of Judge William J. Kunkle. Justice Theis has a screening committee in place to evaluate judicial applicants. The committee is co-chaired by retired U.S. District Court Judge Wayne R. Andersen and retired Illinois Appellate Court Justice Michael J. Gallagher. Persons interested in being considered by the screening committee must obtain an application. The application can be requested on the Illinois Courts website (follow the links under “Latest News”). Completed applications must be returned by August 8. The evaluation process also includes screening by the Chicago Bar Association and the Alliance of Bar Associations for Judicial Screening. Under the Illinois Constitution, judicial vacancies are filled on an interim basis by Supreme Court appointment until the next general election. Justice Theis will make a recommendation to the Supreme Court concerning these two vacancies after applicants for the positions complete this screening and evaluation process.
The case of self-proclaimed “investigative blogger” Crystal Cox took another turn as the Ninth Circuit reversed and remanded the case against her. The decision gives greater First Amendment protection to bloggers than the stingy view taken by the District Court. However, it also recognizes that trustees are not public figures entitled to less deferential review. The case is Cox v. Obsidian Finance Group, No. 12-35238 (9th Cir. I have previously blogged about the case here and here. Since I have already written extensively about the case, I will just quote the Ninth Circuit’s excellent summation of what happened here. Kevin Padrick is a principal of Obsidian Finance Group, LLC (Obsidian), a firm that provides advice to financially distressed businesses. In December 2008, Summit Accommodators, Inc. (Summit), retained Obsidian in connection with a contemplated bankruptcy. After Summit filed for reorganization, the bankruptcy court appointed Padrick as the Chapter 11 trustee. Because Summit had misappropriated funds from clients, Padrick’s principal task was to marshal the firm’s assets for the benefit of those clients.
After Padrick’s appointment, Crystal Cox published blog posts on several websites that she created, accusing Padrick and Obsidian of fraud, corruption, money-laundering, and other illegal activities in connection with the Summit bankruptcy. Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1. Padrick and Obsidian sent Cox a cease-and-desist letter, but she continued posting allegations. This defamation suit ensued. The district court held that all but one of Cox’s blog posts were constitutionally protected opinions because they employed figurative and hyperbolic language and could not be proved true or false. Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220, 1232-34 (D. ] a reasonable reader could understand . 174,000 in taxes owed by Summit. Id. at 1238. The district judge therefore allowed that single defamation claim to proceed to a jury trial.
1 million in compensatory damages. After trial, noted First Amendment scholar Eugene Volokh (who contributes to the excellent Volokh Conspiracy blog) agreed to represent Ms.Cox on a pro bono basis. The First Amendment is an interesting thing. It allows anyone to say almost anything without prior restraint from the government. However, that does not mean that free speech is free of consequences. However, whether speech can be punished as defamatory depends on both the situation of the speaker and the identity of the person spoken about. The Supreme Court’s landmark opinion in New York Times Co. v. Sullivan began the construction of a First Amendment framework concerning the level of fault required for defamation liability. Crystal Cox had argued that she was entitled to be protected under the First Amendment but the District Court would have none of it. Cox does not contest on appeal the district court’s finding that the December 25 blog post contained an assertion of fact; nor does she contest the jury’s conclusions that the post was false and defamatory.
She challenges only the district court’s rulings that (a) liability could be imposed without a showing of fault or actual damages and (b) Padrick and Obsidian were not public officials. The Ninth Circuit conclusively rejected the argument that the institutional media is entitled to greater protection under the First Amendment than other speakers. We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers. Citizens United v. Federal Election Commission, 558 U.S. The Court concluded that the professional media were not entitled to greater protection than anyone else so that the identity of the speaker was constitutionally irrelevant. Instead, the critical issues were whether the plaintiff was a public figure and whether the speech related to a matter of public concern. We therefore hold that the Gertz negligence requirement for private defamation actions is not limited to cases with institutional media defendants.
Having reached this conclusion, the Court still had to analyze whether Cox’s speech was in fact related to a matter of public concern and whether Padrick was a public figure. The Court had little difficulty ruling for Cox on the first issue. However, the Court did support the trustee on the public figure issue. Although bankruptcy trustees are “an integral part of the judicial process,” (citation omitted), neither Padrick nor Obsidian became public officials simply by virtue of Padrick’s appointment. Padrick was neither elected nor appointed to a government position, and he did not exercise “substantial . ” (citation omitted). A Chapter 11 trustee can be appointed by the bankruptcy court for cause or when the best interests of the estate or creditors dictate. But, an appointed trustee simply substitutes for, and largely exercises the powers of, a debtor-in-possession. We also reject Cox’s argument that Padrick and Obsidian were “tantamount to public officials” because they received compensation from the court for their efforts.
Finally, the Court affirmed the District Court’s ruling that Cox’s most outrageous and inflammatory statements were non-actionable. Padrick and Obsidian argue on cross-appeal that the district court erred in granting Cox summary judgment as to her other blog posts. In Milkovich v. Lorain Journal Co., the Supreme Court refused to create a blanket defamation exemption for “anything that might be labeled ‘opinion.’” (citation omitted). This court has held that “while ‘pure’ opinions are protected by the First Amendment, a statement that ‘may . ’ is actionable.” (citation omitted). We have developed a three-part test to determine whether a statement contains an assertion of objective fact. As to the first factor, the general tenor of Cox’s blog posts negates the impression that she was asserting objective facts. ] feelings rather than assertions of fact.” (citation omitted). As to the second factor, Cox’s consistent use of extreme language negates the impression that the blog posts assert objective facts.
Cox regularly employed hyperbolic language in the posts, including terms such as “immoral,” “really bad,” “thugs,” and “evil doers.” Id. Cox’s assertions that “Padrick hired a ‘hit man’ to kill her” or “that the entire bankruptcy court system is corrupt” similarly dispel any reasonable expectation that the statements assert facts. And, as to the third factor, the district court correctly found that, in the context of a non-professional website containing consistently hyperbolic language, Cox’s blog posts are “not sufficiently factual to be proved true or false.” (citation omitted). I have quoted large portions of the opinion because I think that Judge Hurwitz wrote a masterful opinion and said it better than I could have. In my view, this opinion is an important contribution to First Amendment jurisprudence in the internet age. The District Court’s ruling appeared to be based on the elitist construct that only the professional media are entitled to speak on matters of public concern.
It is my belief that the founding fathers, who were well acquainted with the pamphleteering of citizen journalists, would have been appalled at the District Court’s attempt to distinguish between speakers instead of speech. In case I haven’t been entirely clear, the Ninth Circuit corrected an egregiously misbegotten ruling from the lower court. Part 2–Who Is a Public Figure? The Court’s ruling on who is a public figure is interesting. Previously I did not think that public figure was synonymous with public official. However, it is something that I have wondered about. A few years back there was a case from Austin that suggested the issue. Franco v. Cronfel, 311 S.W.3d 600 (Tex. In that case, an attorney was appointed as a state court receiver. The judgment creditor became disenchanted with the receiver’s performance and posted a report on a site called the Ripoff Report. On motion for summary judgment, State District Judge Scott Jenkins held that the receiver was a public figure, but denied the defendant’s motion that there was no evidence of actual malice.
The Court of Appeals affirmed the summary judgment ruling that actual malice had not been negted but found that it lacked jurisdiction over the appeal of the public figure ruling. Because the court of appeals assumed that the receiver was a public figure for purposes of appeal but did not ultimately reach the issue, the case is intriguing but not substantive. In my view, a person does not become a public figure merely by being appointed trustee of a bankruptcy case. However, I think that a trustee or other court-appointed official could become a public figure based on either the importance of the case or the trustee’s efforts to seek the limelight. To paraphrase Shakespeare, some are born public figures, some achieve public figure status and some have public figure status thrust upon them. Attorneys are shameless self-promoters. When an attorney or a trustee gets a really big case, it is human nature to want to proclaim it to the world since media exposure is free marketing.