Evolution of Judicial Specialization in

Environment Laws in India

[Presented by Justice B.P. Singh (Former Judge,

Supreme Court of India)]

The development of Environmental Jurisprudence

in India is entirely due to the efforts of the Courts in
India, primarily the Supreme Court of India, which
accepted the challenge to protect the environment with
a view to guarantee and uphold the “right to life” of
every Indian citizen, guaranteed under the
Constitution, of which it is the custodian. The
Constitution of India provides both the inspiration and
authority to the Courts in India to undertake this task
for the good of humanity.

Under the Indian Constitution there is separation

of powers between the legislature, executive and the
judiciary. Their jurisdictions are clearly demarcated,
but often when the legislature or the executive have
failed or faltered in the discharge of their functions, the
judiciary has come to the aid of the people. This is
often described as “judicial activism”, but all know that
judicial activism is only a sequel to and necessitated by
executive inaction. Particularly in the field of
environmental laws, the courts had to take the lead,

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exercising its powers and jurisdiction to enforce the
laws made by the legislature, while at the same time
filling the gaps in legislation consistent with the spirit
and objective of the law. The judicial wisdom has
earned the appreciation of the teeming millions in
India, and all over the world.

Under the Indian Constitution the High Courts and

the Supreme Court have been vested with the
authority to issues prerogative writs, such as
mandamus, in appropriate cases to compel the
authority concerned to perform is legal obligations
under any law. Thus the judicial command in the form
of a writ compels the authority to perform its duty and
failure to do so attracts punishment.

On the subject of environment the Constitutional

inspiration is provided by Article 48 A which mandates
that the State shall endeavour to protect and improve
the environment and to safeguard the forests and wild
life of the country. This is contained in Part IV of the
Constitution which lays down the Directive Principles of
State Policy, which though not strictly enforceable by
any court, but nevertheless fundamental in the
governance of the country. The Constitution imposes a
duty on the State to apply these principles in making
laws.

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 Similarly, under Article 5IA(g) it is one of the
fundamental duties of every citizen to protect and
improve the natural environment including forests,
lakes, rivers and wild life etc.

One of the fundamental rights guaranteed to

every citizen under Article 21 of the Constitution is the
“right to life and personal liberty”. Right to life has
been given a wide meaning, not mere animal
existence, but a right to have the enjoyment of quality
of life and a life worth living.

Our Supreme Court was one of the first Courts to

develop the concept of right to “healthy environment”
as parts of the right to “life”, and this principle has now
been adopted by many countries. In an oft quoted
decision the Supreme Court observed:

“Environmental concerns arising in this Court

under Article 32 or under Article 136 or under
Article 226 in the High Courts are, in our view, of
equal importance as human rights concerns. In
fact, both are to be traced to Article 21 which
deals with the fundamental right to life and
liberty. While environmental aspects concern
“life”, human rights aspects concern “liberty”.
The legislature has passed many laws on subjects
related to environment. No doubt these laws are well
drafted and stringent, but experience has shown that
their implementation leaves much to be desired.
Without strict enforcement, the laws remained as dead
letters on the statute book. Someone had to take note

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of this fact, and ultimately, some activists brought this
to the notice of the Supreme Court and the ball started
rolling. The Supreme Court heard many Writ Petitions
filed in public interest, commonly known as public
interest litigation. It enables any person to espouse a
cause before the court if it adversely affects the rights
of the society at large, or a class or section of society.
It does not create a new jurisdiction. The laws applied
are the same. The authorities concerned are also the
same. Only the rule of locus standii is relaxed. Many
choose to call it judicial activism, but all know that
such judicial activism is only a sequel to executive
indifference and inaction. Some choose to call the
decisions rendered as “judicial legislation”, but by
whatever name called, the principles laid down in these
decisions infuse spirit and life in the dormant laws and
make it effective, workable and enforceable. Most of
the decisions rendered in relation to environmental
matters, are decisions rendered in Public Interest
Litigations.

It is not as if all the principles enunciated are

innovations of the Courts in India. Most of them are
well accepted principles and the subject matter of
declarations and resolutions passed by various
international bodies. But the Supreme Court of India
while giving meaning to these principles has adapted
them to Indian conditions to make them effective. It

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has fine tuned the principles so that they operate
usefully in the conditions that prevail and at the same
time protect the social justice component of the rule of
law. This is well demonstrated by a few decisions out of
so many, to which I may now advert.

In one of the early decisions in Municipal Council

Ratlam Vs. Shri Virdichan & Ors. (1980) 4 SCC 162,
the court was concerned with a case where a few
public spirited citizens of Ratlam brought to the notice
of the concerned Magistrate the unhygienic and filthy
conditions that prevailed in that locality, to which the
Municipal Council was oblivious despite their protest.
The proceeding initiated under Section 133 of the Code
of Criminal Procedure was more in the nature of a
pedestrian quasi criminal litigation seeking to enforce
civic rights under the Municipal law where neglect had
led to a public nuisance. While upholding the plea of
the Petitioners that the court by affirmative action
could compel a statutory body to carry out its duty, the
court observed

“Public nuisance, because of pollutants being

discharged by big factories to the detriment of the
poorer section, is a challenge to the social justice
component of the rule of law.”
The next decision worth noticing is the case of
Rural Litigation and Entitlement Kendra (1985) 2 SCC
431, This was the first case of its kind involving issues
related to environment and ecological balance, and

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brought into sharp focus the conflict between
development and conservation.

Dealing with a case where lime stone quarrying

affected the ecology of the area, caused environmental
disturbance, damaged the perennial water springs etc.,
the court first of all appointed Expert Committees to
look into various aspects of the matter, and after
consideration of such reports and the objections of the
Lessees, decided to shut down some of the lime stone
quarries. But while doing so it gave directions for
reclamation, afforestation and soil conservation
programme in respect of areas forming part of closed
down quarries, and the employment of the workmen
thrown out, on such projects.

Similarly, leakage of oleum gas from a factory

located in the city of Delhi, attracted the attention of
the Supreme Court. The industrial undertaking
manufactured and posessed hazardous and lethal
chemicals and gases posing danger to health and life of
workmen and people living in the neighbourhood. After
considering the reports of the expert committees which
suggested that though it was possible to reduce the
risk it was not possible to completely eliminate the risk,
unless the plant was relocated in an area without
human habitation, the court suggested to the
Government to evolve a National Policy for the location

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of toxic and hazardous industries. It also recommended
the setting up of Environmental Courts.

On the merits the court held – “An enterprise

which is engaged in a hazardous or inherently
dangerous industry which poses a potential threat
to the health and safety of the persons working in
the factory and residing in the surrounding areas
owes an absolute and non-delegable duty to the
community to ensure that no harm results to
anyone. The enterprise must be held to be under
an obligation to provide that the hazardous or
inherently dangerous activity in which it is
engaged must be conducted with the highest
standards of safety and if any harm results to
anyone on account of an accident in the operation
of such activity resulting, for example, in escape
of toxic gas the enterprise is strictly and
absolutely liable to compensate all those who are
affected by the accident as a part of the social
cost for carrying on such activity, regardless of
whether a part of the social cost for carrying on
such activity, regardless of whether it is carried on
carefully or not. Such liability is not subject to any
of the exceptions which operate vis-à-vis the
tortuous principle of strict liability under the rule
in Rylands V. Fletcher. If the enterprise is
permitted to carry on a hazardous or inherently
dangerous activity for its profit, the law must
presume that such permission is conditional on
the enterprise absorbing the cost of any accident
arising on account of such activity as an
appropriate item of its overheads. The enterprise
alone has the resource to discover and guard
against hazards or dangers and to provide
warning against potential hazards.
……
The measure of compensation in these kinds of
cases must be correlated to the magnitude and

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 capacity of the enterprise because such
compensation must have a deterrent effect. The
larger and more prosperous the enterprise, the
greater must be the amount of compensation
payable by it for the harm caused on account of
an accident in the carrying on of the hazardous or
inherently dangerous activity by the enterprise”.
“Law has to grow in order to satisfy the needs of
the fast changing society and keep abreast with
the economic developments taking place in the
country. As new situations arise the law has to be
evolved in order to meet the challenge of such
new situations. Law cannot afford to remain
static. We have to evolve new principles and lay
down new norms which would adequately deal
with the new problems which arise in a highly
industrialized economy. We cannot allow our
judicial thinking to be constricted by reference to
the law as it prevails in England or for the matter
of that in any other foreign country. We no longer
need the crutches of a foreign legal order”.
In the case of Indian Council for Enviro Legal
Action (1996) 3 SCC 212 while applying the polluter
pays principle, it reiterated the principle of absolute
liability earlier enshrined in the case of Oleum gas leak.

In Vellore Citizens Welfare Forum [(1996) SCC

647] the court held that the “Precautionary Principle”
and ”The Polluter pays Principle” are essential features
of “Sustainable Development” and are part of the
environmental law of the country. It approved the
definition of “Sustainable Development” as
“Development that meets the needs of the present
without compromising the activity of the future

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generations to meet their own needs”. The inter-
generational equity principle, thus finds place in the
Environmental Jurisprudence of India.

Applying the polluter pays doctrine, the Supreme

Court has suggested methods of realizing the cost of
damage from the polluter as also the cost of
afforestation and restoration of environmental
degradtion together with costs that may be incurred in
future for the protection of environment. It has been
held that the compensation must have some
correlation not only with the magnitude and capacity of
the enterprise, but also the harm caused by it.

Dealing with pollution caused by the tanneries in

different parts of the country, the Court has insisted
upon the industries to set up effluent treatment plants.
It has also imposed fines on polluting industries which
are to be deposited in Environment Protection Fund.

In cases where relocation of an industry became

imperative, the relocated industries were called upon
to incur 25% of the cost of land.

A very significant principle was evolved in a case

where the Court placed the burden on the person
wanting to change the status quo to show that actions
proposed will not have an injurious effect, the
presumption operating in favour of environmental
protection. Thus the introduction of a change by a new

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technology must be preceded by a satisfaction based
on proof to be produced by the person introducing the
change, that it will not adversely affect the
environment. This, to a great extent completely
exclude the risk of future environmental degradation.

In a recent decision, the court while permitting

diversion of forest land for mining purposes, suggested
a rehabilitation package and modalities to subserve the
principle of sustainable development, and to strike or
balance between development and environmental
protection. The scheme envisages the creation of a
Special Purpose Vehicle in the form of a Company duly
incorporated, to whom the industry shall pay the
amounts envisaged in the scheme, such as 5% of its
annual profits or Rs. 10 Crore, whichever is higher, for
the development of the Scheduled area. It was also
required to make contribution of specified amounts
towards wild life management plan and tribal
development, apart from expenses towards
compensatory afforestation. It also approved a scheme
for the employment of Tribals and land losers. Thus an
industry which undertakes mining activity on forests
land has not only to compensate for the damage
caused to environment, but also share the cost of
future development of the area and the welfare of the
inhabitants, including wild life.

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 Similarly there have been proposals for creation of
a centralized fund for compulsory afforestation. When
trees are cut, the States concerned are given
proportionate amount from this fund for which the
Chief Secretary of the State is made accountable.
Statements are required to be submitted each year. A
Monitoring Committee assists the court in evaluating
the work done.

Remarkable results have been achieved by the

Supreme Court of India in its effort to conserve and
protect the environment. It has prevented the
influential people from acquiring forest land and
converting if for commercial use to earn profit. The
public trust doctrine was invoked to reiterate the
principle that certain resources like air, sea, waters and
the forests have such a grave importance to the people
as a whole that it would be wholly unjustified to make
them a subject of private ownership.

Similarly by enforcing its direction that

Compressed Natural gas be introduced in all forms of
public transport in Delhi, it has assured to the residents
of Delhi a much better quality of air so that one may
breathe without fear of suffering air pollution related
diseases.

Its effort to cleanse the river Jamuna passing

through the city of Delhi, has not achieved much

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success, but the effort is on and the task stupendous.
So far as forests are concerned the court has passed
several directions and to a great extent succeeded in
closing down unlicensed saw mills and prevent illegal
trade in timber. The environmental jurisdiction has also
extended to protecting heritage monuments such as
the Taj Mahal.

It is in this manner that the judiciary in India has

developed its environmental jurisprudence. As
observed in Oleum Gas leak case, it has not hesitated
to receive light from whatever source it comes, but has
attempted to build its own jurisprudence. The courts
have developed the Indian Law suitable to the
circumstances that exist, and if necessary evolved new
principles of liability to deal with unusual situations. In
the process the Judge has a role to play. Judicial
wisdom always shows the correct direction, and judicial
experience and objectivity helps the judge to reach the
right conclusion.

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