Environment Jurisprudence
Environment Jurisprudence
“Restatement of Constitutional
Court on Environment”
Environmental Law
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Contents
Abstract……………….………………………………………………………………………….….3
Introduction………………………………………………………………………………………….4
Conclusion………………………………………………………………………………………….15
References…………………………………………………………………………………………..18
2
Abstract
3
Introduction
1
Basu Palok, Law relating to Protection of Human Rights, p.no. 27-28, (Modern Law Publications, Allahabad,
First Edition 2004.)
2
Article 48, Constitution of India Act, 1950.
4
adapting to the dynamics of the need. However, their transition phase has always been
miserable. There’s a lot done, but the fact cannot be denied that a lot is yet to be done.
Unlike many other areas of law, environmental cases inherently involve multiple stakeholders
with multiple interests. Environmental cases, therefore, reveal how the courts struggle to
balance issues of rights, economics, justice, public interest, and ecological concerns.
Moreover, although environmental cases often invoke issues of public interest, the “public” is
usually not a party before the court; this requires the courts to appoint themselves as
guardians of the public weal, a position that departs from the usual conception of objective
and neutral judges. Environmental cases are also characterized by the fact that there is often
an overlap between violators of the law and those responsible for enforcing it—as some of
the cases below indicate, environmental jurisprudence is rich with cases of the Executive
either violating or not complying with the law. However, since the courts do not have a
separate enforcement arm, the Executive is also responsible for enforcing the courts’ orders.
This creates an especially interesting conundrum for the court because it involves a real risk
that the Executive might simply refuse to enforce judicial rulings and thus invite a direct
clash between the two branches of the Government.
“How far must suffering and misery go before we see that even in the day of vast cities and
powerful machines, the good earth is our mother and that if we destroy her, we destroy
ourselves.” Under the lights of the Rio-de Janeiro (late 1970s) earth summit and the ideas of
International bodies such as UN, The World Commission on Environment and development
India is igniting its potential best. Being well acquainted to the current status quo the much-
needed steps to combat the environmental related problems were being adopted. The Ministry
of Environment and Forests laid down its objectives and has been putting sincere efforts to
eliminate all the ordeals. Following are the main objectives laid down by the ministry of
environment:
• Conservation & survey of flora, fauna, forests and wildlife
• Prevention and control of pollution
• Afforestation & regeneration of degraded areas
• Protection of environment, all within the frame work of legislations.3
3
Pylee, M.V., India’s constitution, (S. Chand and Company, New Delhi).
5
The Indian Government has played its move, Regular surveys throughout the country is done
in short period of time, this not only helps the government to keep a check of what is going
on in the country but the raw data available also helps in research and development
programmes. Further, Indian Government is also trying its best to curtail pollution issues
within the geographical boundaries. Regeneration programmes and un-deviated support from
NGO’s has led to additional help in curbing such problems. Noble step, indeed but can that
be termed as adequate is the question. Through the years, the ministry has approved infinite
laws to assist them in their chore of environmental protection. Sadly, all the regulations and
acts have not done enough to shelter the environment against all ordeals. The greed of many
in the governing bodies has led to misuse of the laws and ruthless exploitation of the land,
leading to ecological destruction and social injustices. Public apathy and lack of concern
amplifies the effect. Opening up of our economy and globalization is another reason for
shattering the protective walls our country has created. The arguments advanced shouldn’t be
misconceived and taken in complete disapproval of globalisation. But the fact that it is
burdensome to let an MNC work on our lands and exploit our natural resources cannot be
ignored.
For any country the effective way of control pollution and degradation of resources is to
combine traditional laws, with modern legislation. In India is concerned, the Ministry of
Environment and Forests is the nodal agency at the Central level for planning, promoting and
coordinating the environmental programmes, apart from policy formulation.4
In India the Central Pollution Control Board monitors the industrial pollution prevention and
control at the central level, which is a statutory authority attached to the Ministry of
Environment and Forests. At the State level, the State Departments of Environment and State
Pollution Control Boards are the designated agencies to perform these functions. There are
many important legislations which came up, in order to slash the immediate problems which
were faced. Each of the acts were evolved due to some or the other reasons.
Some of the wild animals have already extinct in India and others are apprehended of facing
extinction. The rapid declination of wild life did not go unnoticed. An urgent need for
introducing a comprehensive legislation for providing protection to wild animals and birds
was felt by the central government. 5 As it was realised, that state laws were not enough,
4
Pylee, M.V., India’s constitution, (S. Chand and Company, New Delhi).
5
Ibid.
6
thereby local provisions were amalgamated with new provisions and thus led to the formation
of wild life protection act. There is similar tale behind the formation of every act. The
legislators of our country do not act unless their tails are on fire.
7
A cursory analysis of its Preamble makes it obvious that the objectives of the enactment are
three-fold. 1) Protection of the environment 2) Improvement of environment 3) Prevention of
hazards to a) human beings b) other living creatures, c) plants and d) property. This is an
umbrella legislation, that has a broad spectrum indeed. It covers from Radio- Active
Substances disposal to use of plastic bags.
The Noise Pollution (Regulation and Control) Rules, 2000
‘Noise is a silent killer’, keeping in mind this valuable advice(which perhaps may/ may not
be the source of the acts revival), The Noise Pollution (Regulation and Control) Rules, 2000,
According to this act the State Government shall categorize industrial, commercial, and
residential or silence zones and implement noise standards. Further it also restricts the use of
loudspeakers, amplifiers, beats of drum and tom-tom except with the permission of the
authorities.
Obstruction in Fairways Act, 1881
Section 8 of the Act empowered the Central Government to make Rules to regulate or
prohibit the throwing of rubbish in any fairway leading to a port causing or likely to give rise
to a bank or shoal.
7
Satish C. Shastri, “Environmental Law in India”, (Eastern Book Company, Second Edition, 2005).
8
Andhra Pradesh Polluting Industries Case: Nakka Vagu was a fresh water stream which
provided fresh water for drinking and irrigation to the villagers living in 14 villages adjacent
to it. But the indiscriminately set up 250 industries which did not fulfill the condition of
setting up water treatment plants turned the stream into a huge drain carrying industrial
effluents. The Supreme Court directed that an amount of 20 million should be paid to the
farmers who had lost their crops and cattle due to air and water pollution. The authorities are
directed monitor setting up of set up pollution control devices by the polluting industries.8
Delhi Ridge Case: To save the Delhi ridge from destruction an order from the Supreme Court
was obtained directing NCT of Delhi to declare it as ‘Reserved Forest’.9
Ganges Pollution Case: The Supreme Court of India reacting to the public interest litigations
has passed several judgments and a number of Orders against polluting industries numbering
more than fifty thousand in the Ganga basin. As a result of these directions millions of people
have been saved from the effects of air and water pollution in Ganga basin covering 8 states
in India.10
8
(1996) 6 SCC 26.
9
(1996) 8 SCC 462.
10
AIR 1987 SC 1086.
11
1996(3) SCC 212.
12
AIR 1987 SC 1086.
9
The Supreme Court of India, in the case of Vellore Citizens’ Welfare Forum v. Union of
India13 referred to the precautionary principle and declared it to be part of the customary law
in our country. In the Vellore Citizens’ Welfare Forum v. Union of India Case, Justice Kuldip
Singh observed as follows: “The ‘onus of proof’ is on the actor or the developer/industrialist
to show that his action is environmentally benign”.
Sustainable Development
Justice P.N. Bhagawati once made an insightful observation: ‘We need judges who are alive
to the socio-economic realities of Indian life’ This statement explains the gradual shift in the
judicial approach while dealing with the issues of sustainable development.14
Public Trust Doctrine
The ‘public trust’ doctrine was referred to by the Supreme Court in M.C. Mehta v. Kamal
Nath15. The doctrine extends to natural resources such as rivers, forests, sea shores, air etc.,
for the purpose of protecting the eco-system. The State is holding the natural resources as a
trustee and cannot commit breach of trust.
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the Court for the enforcement of the duty cast on State, instrumentalities, agencies,
departments, local bodies and statutory authorities created under the particular law of the
State. It provides particularly under Clause (g) that the State and its instrumentalities and
agencies should strive to protect and prove the natural environment. Under Clause (j) it has
been further provided that the State should (strive towards) collective activity so that the
nation constantly rises to the higher levels of endeavour and achievement. Parliament in its
wisdom has correctly used the word citizen instead of the word subject to create a feeling of
citizenship amongst the masses and also to see that the persons living in the country do not
feel that they are subjects. We were used to be the subjects prior to independence, but now
we have ceased to be the subject and now we are the citizens of the Country. The requirement
of the time is that we should be real citizens of the Country. That can only be achieved if we
strive towards the achievement of the goal laid down in the Preamble of the Constitution of
India. Chapter IV directs the principles of the Constitution of India and Article 51A of
Chapter IVA. Prior to 1976 everyone used to talk of the rights but none cared to think that
there is a duty also. The right cannot exist without a duty and it is the duty of the citizen to
see that the rights which he has acquired under the Constitution of India as a citizen are
fulfilled.
Citizen has a right to know about the activities of the State, the instrumentalities, the
departments and the agencies of the State. The privilege of secrecy which existed in the old
times that the State is not bound to disclose the facts to the citizens or the State cannot be
compelled by the citizens to disclose the facts, does not survive now to a great extent. Under
Article 19(a) of the Constitution of India there exists the right of freedom of speech. Freedom
of speech is based on the foundation of the freedom of right to know. The State can impose
and should impose the reasonable restrictions in the matter like other fundamental rights
where it affects the national security and any other allied matter affecting the nation's
integrity. But this right is limited and particularly in the matter of sanitation and other allied
matter every citizen has a right to know how the State is functioning and why the State is
withholding such information in such matters. Mr. Koolwal has approached this Court in
exercise of rights vested in him under Article 51A, though it is said to be a duty, that the
Court should issue directions against the respondents to implement the law, the Municipal
Law and to perform the obligatory duties cast on the State. Maintenance of health,
preservation of the sanitation and environment falls within the purview of Article 21 of the
Constitution of India as it adversely affects the life of the citizen and it amounts to slow
poisoning and reducing the life of the citizen because of the hazards created, if not checked.
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Narmada Bachao v. Union of India17
In November, 1990 one Dr. B.D. Sharma wrote a letter to this Court for setting up of
National Commission for Scheduled Castes and Scheduled Tribes including proper
rehabilitation of oustees of Sardar Sarovar Dam. This letter was entertained and treated as a
writ petition under Article 32 of the Constitution being Writ Petition No. 1201 of 1990. With
regard to relief and rehabilitation a number of contentions were raised with a view to
persuade this Court that further submergence should not take place and the height of the dam,
if at all it is to be allowed to be constructed, should be considerably reduced as it is not
possible to have satisfactory relief and rehabilitation of the oustees as per the Tribunals
Award as a result of which their fundamental rights under Article 21 would be violated.
The Supreme Court observed that the Sardar Sarovar Project would make a positive impact
on the preservation of environment. The project has been long awaited by the people of
Gujarat to whom water will be available to the drought prone and arid parts, this would help
in effectively arresting ecological degradation which was returning the make these areas
inhabitable due to salinity ingress, advancement of desert, ground water depletion, fluoride
and nitrite affected water and vanishing green cover. The ecology of water scarcity areas is
under stress and transfer of Narmada water to these areas will lead to sustainable agriculture
and spread of green cover. There will also be improvement of fodder availability, which will
reduce pressure on bio-diversity and vegetation. The SSP by generating clean eco-friendly
hydropower will save the air pollution which would otherwise take place by thermal general
power of similar capacity. The Court observed that poverty of the biggest threat to
environment and unless people are provided with water and other development amenities, the
environment will be exploited to a larger extent. Following the above analysis, the Court
thought it unfit to interfere with the construction of the dam, as its advantages over took its
disadvantages. The construction of the dam was allowed subject to certain conditions. Such
interpretations of Article 21 by the Supreme Court have over the years become the basis of
environmental jurisprudence, and have been instrumental in helping in the of protection of
India’s environment. Also, in addition to this there now exist a number of laws relating to
environment, enacted over the last few decades.
M.C. Mehta (Badkhal And Sujratkund Lakes Matter) v Union of India18
17
AIR 2000 SC 3751.
18
(W.P. (C) No.4677/ 1985.
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The main issue in the case was to preserve environment and control pollution during mining
operations within the radius of five kilometres from the tourist resorts of Badkal Lake and
Surajkund be stopped? On the basis of the two reports before it the Court concluded that the
mining activities were harming the environment and must be stopped. The Court considered
the geographical features of the area to determine the extent to which the ban must apply. It
ordered that no mining activities would be carried out in a two km radius around the tourist
spots of Badkal lake and Surajkund and no construction work would be undertaken in a five
km radius. Also ordered the Forest Department and Mining department to enforce all the
recommendations made by NEERI. The court also held that Articles 21, 47, 48A and 51A (g)
of the Constitution of India give a clear mandate to the state to protect and improve the
environment including forests, lakes, rivers and wildlife and to have compassion for living
creatures. The “precautionary principle” makes it mandatory for the State Government to
anticipate, prevent and attack the causes of environment degradation.
19
A.K. Gopalan v. Union of India, AIR 1950 SC 27.
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action were simply overturned by amending the Constitution until the ‘basic structure’ of the
Constitution was declared unalterable.20 In 1978 the Court breathed substantive life into
Article 21 by subjecting state action interfering with life or liberty to a test of reasonableness;
requiring not only that the procedures be authorised by law, but that they are ‘right, just and
fair’.21
An account of the interpretation of right to environment as a part of fundamental right to life
would illustrate the efforts of Court to expand the scope of existing fundamental right to life.
For instance, in the Ratlam Municipal case, the Court has upheld that public nuisance is a
challenge to the social justice component of the rule of law. Decency and dignity are non-
negotiable facets of human rights and are a first charge on local self-governing bodies.
Likewise, in the Dehradun Lime Stone Quarrying case, the Court has made it clear that
economic growth cannot be achieved at the cost of environmental destruction and peoples’
right to healthy environment. In the Doon Valley case, concerning mining environment, the
Court has interpreted Article 21 to include the right to live in healthy environment with
minimum disturbance of ecological balance and without avoidable hazard to them and to
their cattle, house and agricultural land and undue affection of air, water and environment.
This exercise has been further emphasised in the Ganga water pollution case by Justice
Venkataramiah, who has extended the right to life to include the right to defend the human
environment for the present and future generation. In M.C. Mehta v. Union of India,34 the
Court has accepted that environmental pollution and industrial hazards are not only potential
civil torts, but also violation of right to health. In this way, through the interpretation of
Article 21, the Court has sought to convert formal guarantees into positive human rights. The
above Court’s interpretations in expanding the meaning of right to life have brought new
dimensions not only in the environmental jurisprudence but also in the discourse on human
rights in India. The credit for the creation of a host of environmental rights and enforcing
them as fundamental rights goes to the Supreme Court of India. This is a significant
contribution for environmental jurisprudence in India, if one learns from experiences
elsewhere. The legal system may guarantee a Constitutional right to environment and statutes
may accord the right to participate in environmental protection for citizens. However, when
no methods for their participation are made available, then they are as good as non-existent.
This is the experience in Spain, Portugal, Brazil and Ecuador.35 Importantly, Indian
experience contrasts very significantly form these countries. There is no direct articulation of
20
Kesavananda Bharati v. State of Kerala, AIR 1962 SC 933.
21
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
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the right to environment anywhere in the Constitution or, for that matter, in any of the laws
concerning environmental management in India. But this has been seized from below, by
environmental groups, motivating the Court to find and construct environmental rights from
the available legal material. What the Court has achieved since 1980, is to view the
fundamental right to life to include different strands of environmental rights that are at once
individual and collective in character. However, the expansion of fundamental right by the
Court recognising right to environment as a part of right to life has neither been statutorily
established nor has it been recognised in national environmental policy programmes.
Conclusion
The right to live in a healthy environment as part of Article 21 of the Constitution was also
recognized in the case of Rural Litigation and Entitlement Kendra vs. State of U.P. 22,
(Popularly known as Dehradun Quarrying Case). It involved issues relating to environment
and ecological balance. The R.L. & E. Kendra and others in a letter to the Supreme Court
complained about the illegal / unauthorized mining in the Missouri, Dehradun belt. As a
result, the ecology of the surrounding area was adversely affected and it led to the
environmental disorder. The Supreme Court treated the letter as writ petition under Article 32
of the Constitution of India and directed to stop the excavation (illegal mining) under the
Environment (Protection) Act, 1986. The respondents contended / argued that the write
petition was registered in 1983 and the Environment (Protection) Act was passed in 1986 and
hence the criminal proceedings cannot be initiated with retrospective effect. The court
rejected the contention of the respondents and held that the provisions of procedural law shall
apply to ordinary criminal cases and not to the environmental cases. The court directed the
Central and State Governments to take necessary steps to prevent illegal mining and to re-
afforestation in the area of mining. In M.C. Mehta vs. Union of India 23, (Popularly known as
“Oleum Gas Leak Case”) – The Supreme Court treated the right to live in pollution free
environment as a part of fundamental right to life under Article 21 of the Constitution of
India. Further the Andhra Pradesh High Court in T. Damodar Rao vs. S.O., Municipal
Corporation, Hyderabad24, laid down that right to live in healthy environment was specially
declared to be part of Article 21 to the Constitution. The concept of right to healthy
environment as a part of right to life under Article 21 of our Constitution is developing
22
AIR 1988 SC 2187.
23
AIR 1987 SC 1086.
24
AIR 1987 A.P. 171.
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through judgements. Further the right to environment is often associated with human right,
mostly right to live. Right to life is guaranteed as a fundamental right under Article 21. In
order to live a healthy life, it is of utmost importance that our environment and surroundings
be pollution free and clean. The flora fauna also impacts the lives of individuals and can also
be of utmost importance for survival. Therefore, there is emergence of the concept of right to
environment as a fundamental right as can be seen in various judgements mentioned above.
Thus, in India, the judiciary has interpreted Article 21 to give it an expanded meaning of
including the right to a clean, safe and healthy environment. Class actions have been
entertained by the Supreme Court of India under Article 32 of the Constitution of India as
being part of public interest litigation actions. The High Courts, also being granted this
jurisdiction under Article 226 of the Constitution of India have intervened by passing writs,
orders and directions in appropriate cases, thereby giving birth to an incomparable
environmental jurisprudence in the form of the constitutional right to healthy environment.
The Court’s consciousness of public sentiment is reflected in the numerous decisions and
hearings where the courts have indicated their awareness of media reporting and public
sentiment about cases. In addition, the Supreme Court has used its Suo moto powers to take
cognizance of cases on the basis of letters to the editor (its so-called “epistolary jurisdiction”)
and newspaper reports. Viewed this way, the Court is a socially embedded actor that
recognizes the limits to its institutional authority. Arguably, such limits can change if, for
example, there is greater support by organized constituencies for environmental protection.
Faced with a new set of political calculus, courts might become assertive to ensure the legal
protection for the environment. For example, if, as we argue above, the Court is more
inclined to act in cases where there is strong public support, then the strategy for
environmental activists would be to engage with creating a critical public constituency for
“greener” decision-making which would, consequently, lower the “costs” that the
Government and the Court have to consider in their decision-making. Above all, this research
contributes to an understanding that the court should not be seen as the ultimate forum for
environmental governance in India but rather, it should be seen as one of many spaces where
normative values about governance priorities must be debated and where the courts are just
one actor, albeit one with vast powers.
The examination of the implications of Supreme Court’s innovations for environmental
jurisprudence reveals that the application of innovative methods to resolve environmental
disputes and implement Court orders is certainly a deviation from the usual adjudication
function of the Court. While the procedural innovations have widened the scope for
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environmental justice through recognition of citizens’ right to healthy environment,
entertaining petitions on behalf of affected people and inanimate objects and creative thinking
of judges to arrive at a decision by making spot visit, substantive innovations have redefined
the role of Court in the decision-making process through application of environmental
principles and expanding the scope of environmental jurisprudence. Given the crisis within
the executive and legislature in discharging their Constitutional duties, the Supreme Court’s
innovative methods have been attempted to arrest the dysfunctional trend of other organs and
enable the effective enforcement of environmental laws. However, in reminding other organs
about their Constitutional duties and enforcing fundamental right of citizens, the Supreme
Court has at times, crossed its boundaries and started interfering in the very basic affairs of
environmental management. In resolving more than 100 environmental cases since 1980, the
Supreme Court has continuously engaged itself in the management and resolution of
environmental conflicts and thereby increased the country’s dependence on the Court for
environmental protection. This dependence on a judicial institution that has already exceeded
the boundaries of its responsibilities has been further complicated by the lack of monitoring
of the Supreme Court’s orders and the vagueness of the legislative and executive roles
regarding environmental issues. With its intervention in the interpretation of environmental
policy and implementation process, the potential for resolving environmental conflict is
hardly over. The review of environmental cases shows that there has been no uniform
cooperation from the implementing agencies to effectively implement the Court directions.
The legal system is intertwined with the political system. The failure of the political and
administrative system has led citizens and non-governmental organizations to take recourse
to the legal system. Yet, courts may not be the best venue to resolve all policy problems,
especially the ones that entail significant political compromise.
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REFERENCES
Books Referred
Cases Referred
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