SPEECH DELIVERED BY HON'BLE MR. JUSTICE VIJENDER JAIN, CHIEF JUSTICE, PUNJAB AND HARYANA HIGH COURT, ON THE OCCASION OF INAUGURATION OF PUNJAB AND HARYANA CHAPTER OF ASIA PACIFIC JURIST ASSOCIATION.

                   It gives me a great sense of satisfaction today as a  very large number of young lawyers, NGOs, who are interested in protection of environment, have assembled on such a short notice. I think it is not even 3 or 4 days back when Justice Anil Kumar, who was sitting with me in the Division Bench at Delhi High Court, gave this idea to have a chapter of APJA at Chandigarh. One day there was a special DB at Chandigarh. Justice Surya Kant  and Justice Rajeev Bhalla  were with me then I impressed upon them – the need of having environmental related forum in these two most prosperous States of India i.e. Punjab and Haryana on account of environmental degradation, pollution so that future generation and our children have a better place to live in,  the need of hour is that lawyers and judges to interact and understand the contemporary  International law, how far it is applicable, in the realm of the municipal law, and how far it will be inconsistent  with the concept of sustainable development.  India ratified in 1972 in Stockholm Conference. Justice Surya Kant and Justice Bhalla were candid enough to confess that in Chandigarh they do not have such kind of interaction, nor any forum, and there is a need to have such a forum.

A judge's job is to go to the court, hear the cases and decide the cases. A lawyer's job is, a client comes, he has to watch his interest, appear in the court and argue the matter and that is  the end of matter.  You have to take the lead, may be there are very few takers with you in the beginning but I am sure when you  talk to enlightened persons from all walk of life and generate interest, others will walk with you. Therefore, we have to come out of our traditional work.

I am the Chief Justice, Professor R.C.Sobti is the Vice Chancellor, Dr. Talwar is doctor and there are vacations but there is something beyond our routine life and that is life as an Indian Citizen, as an enlightened citizen a duty is cast upon us to lead and to understand, not only for own individual benefit but to do, what we can, for our generations to come.  In 2003, Justice Y.K.Sabharwal as his Lordship then was invited to Thai Supreme Court to speak and elaborate how the Indian Judicial system, judicial intervention deals with the cases of environment pollution and degradation. I do not know when he wrote back to Thai Supreme Court. He recommended to the Thai Supreme Court to call me to Thailand. I went to Thai Supreme Court, where we had a meeting, where we shared our experiences of invoking Article 226 of the Constitution of India, Art. 32 of Constitution of India by the Supreme Court and how the environmental issues have been taken up in the Courts right from the time Justice Bhagwati in 70's and 80's starting from Bandhu Mukti Morcha. How Supreme Court has been intervening to protect human dignity and environmental degradation and for them it was a great experience. Thai Supreme Court constituted green benches in Thailand. Then the question arose. This is not the only field of our activities, there are others in the realm of intellectual property right, ADR and so on.  I am telling you because you constitute the nucleus of the Chapter of the Asia Pacific Jurist Association in Chandigarh. Every body knows that there is pollution, from inside of the house if you clean the house and put everything in the street, the house is cleaned but street is polluted. Industries will maintain from inside nice green lawns but industrial effluent is discharged in a choe or in a rivulet or in a river that creates environmental hazards. Therefore, environmental problems, environmental enforcement and environmental awareness are three concepts, which cannot be simply left to the Government  Agencies. By Govt. functionaries level of pollution cannot be reduced. Therefore, until and unless, Citizens like you and me, who have the knowledge to understand the things in clear perspective, come forward and extend our help in understanding the issues  and work for its solutions by taking up the cause of finding out the best methods to do so, it is not possible to deal with environmental degradation. It is with the participatory role of the stake holders, we can have   something to do in making this country, this place or the States pollution free. It was with this idea, the need to have a forum at Chandigarh.

                   I may like to tell that now the standard which has been fixed, let's say by the Americans for dealing with pollution, cannot be mutatis mutandis be made applicable in the Indian conditions. Why? They have reached the stage of development whereas we are still in the process of development. If we apply those standard mutates mutandis to our environmental framework, then we are hitting at the growth of this country. That will be against the principle of sustainable economic development. Sustainable economic development means that we must preserve, we must conserve our resources so that the future generation may not accuse that our forefathers never thought of and they plundered all the recourses. We have to develop we have to exploit our  resources, but it should be in consonance with our requirement, so that it does not affect and degrade the pollution. The concept of American jurisprudence in environmental law is prevailing and the test applied is Fletcher's case basics emerges  polluters pay principles.  But these principles take into consideration exceptions of the Industry that it was beyond its control or industry could not apprehend the danger of activity resulting in pollution.  In such cases, damages were not levied.  It was the concept which was  known for almost a century.  Courts in India that is Supreme Court went far ahead from these principle. In Oleam Gas leak case, Supreme Court held as far as India is concerned there is strict liabilities clause.  One can not take the plea that a polluter never knew that activity indulges in by industry will not result in degradation of environment. 

                   The Japanese nuclear waste passes through the pacific.  I will give you an illustration. It goes via Carribbean countries, it goes to other countries of South America, which has its ill affect on the citizens and flaura and fauna of those countries.  Now if we apply the principles of `Fletcher’s case than Japanese can take the plea that they never intended to cause any harm to the countries of carribbeans or its flaura or fauna. 

                   Similarly, environmental degradation in our region is same everywhere.  What the farmers do and how they pollute the air by burning husk or leaves in India, in the same manner in the paddy fields of Vietnam or Thailand or Colombo  or Indonesia farmers degrade the air.  The  habits of our people in Southeast Asia and Pacific Region is almost similar. The developmental  process is almost similar, therefore, it was in this background that we thought that we must share our experiences in this region. We have got similar problems we might have similar solution to offer and we can enrich ourselves with  experiences of our people with the other people in the rest of the region. Now coming to  environmental  problems because it is in this context requirement of chapter of APJA in Punjab and Haryana is relevant.  I am really grateful that all of you have started a chapter with determination to address these issues in its prospective and enrich yourself and enrich others who are less fortunate in knowing or not knowing these issues.

                   The second subject which we must address is of Intellectual Property Right.  Arbitration as a tool of Alternative Disputes Redressal Mechanism has not been given to us from the University of California or other legal system, it is a myth.  From time immemorial my grandfather your grand father, great  grandfather in the matter of resolving  disputes used to appoint a ''Salish'' (Arbitrator). The parties having faith in the integrity and independence of a person was appointed as an arbitrator in this country from  centuries.  When other countries of the world never knew what is the meaning of a society ruled by principles of law. Our legal jurisprudence have administered this Country  from time immemorial. Under British jurisprudence, the  jurisprudence is 'King can do no wrong'. While in our legal jurisprudence even the king is bound by the Dharma i.e. the Rule of Law so how can we be inferior  as far as the jurisprudence is concerned.

Intellecutal property rights, Alternative Disputes Mechanism System, i.e. arbitration, meditation and conciliation, we have to create infrastructure at India and other cities of our regional neighbors. Time has come when lawyers, corporate, industrialist should have a clause in this agreement for having place of arbitration in this region.  Why should  we have an arbitration clause having place of arbitration only in Landon or Zurich or in New York.  Whey we have in the arbitration clause between a Company of  Thailand and India that place of arbitration should be this region.  Contract has been sighed between Philippine and India, the Arbitration is taking place at Landon or elsewhere, in spite of a sound system of law, inspite of eminent lawyers, inspite of eminent judges, why we cannot create  confidence that the International Arbitration, the  Disputes Redressal Mechanism can be adhered to the laws of the countries of this region, which will benefit the industries, the lawyers and will create an atmosphere even in the developed world that the regional mechanism of dispensation of ADR is sound enough in this region.

The third subject as far as APJA is concerned is Intellectual Property Right. We know that in this region, cases of  Intellectual Property Right are not much in Punjab and Haryana High Court or at the District level. There are very few cases which are filed but as I said yesterday, and I repeat it today with all conviction,   after 10 years the decade belong to State of  Punjab and Haryana. The kind of multi national corporate sector  coming to Gurgaon, Faridabad, Panchkula, Mohali, Chandigarh, Ludhiana, many cases of Intellectual Property Right will be coming to these Courts.  The lawyers have to gear up.  A case which I would  like to recall because some of my Judges friends are here.  A case was filed by a Company, a drug Company, very renowned drug company, I would not name it, case was that drug company was a registered proprietor of the Patent  as well as the Trade mark as well as the product producing a tablet, international price was $ 12 per capsule.  That drug for last 30 years was manufactured by a Indian Company in India. The foreign drug company wanted a restrain order against Indian Company that this Indian Company cannot produce this medicine because they are having a registered Trade mark and patent in India and having its patent recognized in 120 countries of the world.  I asked the Counsel appearing for foreign drug company that in India the Indian drug company is selling the same drug for 12 rupees.  It is a life saving drug. I asked the counsel, have you any intention of manufacturing this drug in India.  He said, `No'.  I asked the petitioner then how can I grant you an injunction because you have got a patent in 120 countries under the doctrine of transborder reputation.  A product may have transborder reputation but if the manufacturer has allowed Indian Company to sell the product that is a life saving drug  for last 30 years in India without any demur or protest, how the Indian Company can be injuncted for not manufacturing and selling the drug.  Life Saving drug that too for 12 rupees in comparison of 12 US $  per tablet. I may add the Company categorically stated that it had no intention of manufacturing the drug in India. Coupled with no intention of manufacturing of the drug in India, how an injunction can be granted.   Judges have to perform some artisan work.  I asked the petitioner, I give you the liberty, if you come to this Country to produce the drug any time, you can move an application for the modification of the order. I dismissed the application.                                                         

          There are other interesting cases involving questions pertaining to amalgamation, take over and absorption in the company matters.  In a Company, a minority share holders are left on account of majority share holders having some understanding to put the price of share holding at a level much below  net worth of a company and then if minority share holders refuse to sell the share holdings, many Courts dismiss their petition only taking into consideration what is apparent and not real. These are  the new issues, new dimensions of globalization and new issues to be faced by Indian Courts  which you have to take into consideration.  Another arena where Asia Pacific Jurist association has organized some symposium, meetings, interactions  in Delhi.

 I am sure under the able stewardship of Justice Surya Kant and his colleagues APJA Chandigarh will be in a position to take this chapter to greater heights by dissemination of information. I wish you all success.  I inaugurate this chapter, I read a book and I found it very interesting. I quote from Alvin Toffler's book, The Future Shock, some of you might have read it. I liked the following paragraph:- 

''Modern scientific and technological progress is proceeding at a pace which has no parallel in history. Man is planning of developing colonies on Moon and Mars. It is difficult to understand whether it is shortage of space on earth which is persuading him to do so or it is because of his finding difficulty of protecting against the ill effects of technological, economic and social advances that he proposes to find recluse somewhere else in the universe other than the Earth. There is a need for a new dimension of thought process for us if we have to survive.''

                   Thanking you very much.