The Changing dimensions of Environmental Jurisprudence

and Supreme Court of India

“Truth, unyielding cosmic order, consecration,

Ardour and Prayer and Holy Ritual

Uphold the Earth, May she the ruling Mistress

of what has been and what will come to be,

for us spread wide a limitless domain” [Atharva Veda, 12.1.1]

The message of the praise hymn to Mother Earth in the Vedas is that the earth mediates between
man and the unyielding cosmic order inherent in nature. This natural bond is one of partnership
and continuous renewal. So, we can infer from this ancient piece of work that humans and nature
are having intimate relationship between themselves. In Ancient India, the nature was
worshipped to give respect to it. The nature was enriched and clean as there was no
industrialization and advancement of technology that we have today. But with the changing
India, after industrial establishment in 19 th century the interference with the nature and natural
resources have started. But first time with Stockholm Conference 1972, the Indian Parliament
inserted Article 48-A and Article 51A (g) in 42nd Constitutional Amendment Act, made in 1976.
The Indian Judiciary from 1977 changed its perspective and a new approach to remedy the
problems of public at large started through introduction of PIL(Public Interest Litigation) and
Judicial activism. Environmental Jurisprudence in Kelsenian Grund Norm pure theory, with
“common future” or “one world” as the super most norm (Grund norm), the subordinate norms
are like right to life, right to livelihood, right to clean environment, sustainable development and
prevention of pollution, elimination of poverty etc. The Indian judiciary in the recent period has
been continuously found engaged in creating the environmental jurisprudence full of values for
the preservation and conservation of total environment. The backdrop of the environmental

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philosophy which the Indian environmental jurisprudence has nurtured is the Stockholm-
Conference on Human Environment, 1972. Since then, India has witnessed a series of legislative
measures, administrative policy decisions, amendments of the constitution and also a new
interpretation of Article 21. The judiciary has played a commendable role in ecology and
environmental preservation and is also taking care of the need to have development under
Articles 21, 48 A and 51 A(g) of the Constitution. So this paper inquires into the development of
environmental jurisprudence in India and Supreme Court of India’s changing approach from just
environment concern to human rights concern.

2. Evolution of Environmental Jurisprudence in India :

In India environmental law has seen considerable development in the last two decades. Most of

the principles under which environmental law works in India come within this period. The

development of the laws in this area has seen a considerable share of initiative by the Indian

judiciary, particularly the higher judiciary, consisting of the Supreme Court of India, and the

High Courts of the States. The essence of the existing law relating to the environment has

developed through legislative and judicial initiative. Today, most discussions on

environmentalism in our country begin with the Stockholm Conference (1972). But, some

ancient texts tell us that our society paid more attention to protecting the environment than we

can imagine. These texts tell us that it was the dharma of each individual in society to protect

Nature, so much so that people worshipped the objects of Nature. Trees, water, land and

animals had considerable importance in our ancient texts; and the Manusmriti prescribed

different punishments for causing injury to plants. Kautilya is said to have gone a step further

and determined punishments on the basis of the importance of a particular part of a tree. From

this, what comes in front of us is that environmental management and control of pollution was

not limited only to an individual or a group, but society as a whole accepted its duty to protect

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the environment.

Environment related rights were conspicuously absent from the original

version of the Constitution of India, which was prominently dominated by business and property

rights. Consequently, environmental jurisprudence was also an unknown appellation for the

Indian Judiciary. The 42nd Constitutional Amendment, made in 1976, changed this landscape by

inducting Article 48-A and Article 51A (g) into this ‘enviromyopic’ document. Simultaneously,

the Supreme Court of India embarked on a ‘creative’ activist phase of constitutional

interpretation in the aftermath of the fiasco in A.D.M. Jabalpur v Shivakant Shukla (1976) 2

SCC 521. where it found itself helpless in defending the basic civil liberties of the citizens

against executive excesses. Starting from early 1980s, the Court has developed a body of ‘green

constitutional law’ to safeguard the citizens’ health from the deleterious affects of environmental

degradation.

In M.C. Mehta v Union of India (Oleum Gas Leakage case) (1987) 1 SCC 395,

the Supreme Court propounded the standard of ‘absolute liability’ for payment of compensation

to those affected by the accident in case of industries engaged in hazardous or inherently

dangerous activities as opposed to the prevalent notion of ‘strict liability’ under the Rylands v.

Fletcher standard. The Court has adopted an expanded view of ‘life’ under Article 21 and

enriched it to include environmental rights by reading it along with Articles 47, 48-A and 51A(g)

and declaring:

“Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment
including their right to life with human dignity encompasses within its ambit, the protection and
preservation of environment, ecological balance free from pollution of air and water, sanitation
without which life cannot be enjoyed. Any contra acts or actions would cause environmental,
ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article
21”.

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Both these Articles unequivocally provide for protection and improvement of the environment.

Inevitably, Parliament enacted the Air (Prevention and Control of Pollution) Act, 1981 and the

Environment (Protection) Act, 1986. With this core group of three enactments, a modest

beginning was made by Parliament. Unfortunately, soft laws were enacted (and they continue to

remain so) at a time when strong legislation was critical for environmental conservation. Prior to

1980s, only the aggrieved party could go to the court and seek remedy for his grievance and any

other person who was not personally affected could not do so as a proxy for the victim or the

aggrieved party.

3. “Mere Environmental Concern to Human Rights”:

By 1990s, it categorically declared that ‘issues of environment must and shall receive the highest
attention from this court’. India’s ‘Green Constitution’ now guarantees a right to healthy
environment, right to clean air, right to clean water, enjoins the State and its agencies to strictly
enforce environmental laws while disclosing information in respect of decisions which affect
health, life and livelihood and disallows inadequacy of funds and resources as a pretext for the
evasion of obligations by the State. Significant environmental principles like polluter pays,
precautionary principle, sustainable development, public trust doctrine and intergenerational
equity have become entrenched in the Indian law without explicit incorporation in any legislative
framework. In Vellore Citizens’ Welfare Forum v Union of India & Ors.( 1996) 5 SCC 647, the
Court employed the ‘precautionary principle’ to invent the special principle of burden of proof
in environmental cases where burden as to ‘the absence of injurious effect of the actions
proposed, is placed on those who want to change the status quo’ viz. polluter or the industrialist.
In the process, in Rural Litigation & Entitlement Kendra v State of UP(1989 Supp (1) SCC
504.), the apex Court has gone beyond the statutory texts to refer extensively to international
conventions and obligations of India and even to the historical environmental values reflected in
the edicts of Emperor Ashoka and verses of Atharva Veda. The Supreme Court has, in clear

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terms, advised the State to shed its ‘extravagant unbridled sovereign power’ and to pursue a
policy to maintain ecological balance and hygienic environment. The activist attitude ranges
across a gamut of environmental issues viz. banning aquaculture industries in coastal areas to
prevent drinking water from becoming saline, issuing directions for improving quality of air in
the National Capital Territory of Delhi and protecting Taj Mahal, prohibiting cigarette smoking
in public places, addressing issues of solid waste management, proscribing construction activities
in the vicinity of lakes and directing the lower courts to deal strictly with environmental
offences. In respect of forest governance, the Supreme Court has made an enormous contribution
through the case of T.N. Godavarman Thirumulpad v. Union of India (1996, (1997) 2 SCC
267). The case was set in the backdrop of critical state of national forest cover, appalling apathy
of governments towards forest management and conservation and open violations of forest
legislations by illegal felling in North-Eastern States.
The Supreme Court, in its interpretation
of Article 21, has facilitated the emergence of the environmental jurisprudence in India.
Furthermore, Article 142 afforded the Supreme Court considerable power to mould its decisions
in order that complete justice could be done. As the Supreme Court is the final authority as far as
matters of constitutional interpretation are concerned, it assumes a sort of primal position in the
Indian environmental legal system. For example, the fundamental right contained in Article 21 is
often cited as the violated right, albeit in a variety of ways.

In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi(AIR 1981 SC 746.),
Bhagwati, J., speaking for the Supreme Court, stated that:

“We think that the right to life includes the right to live with human dignity and all that
goes along with it, namely, the bare necessaries of life such as adequate nutrition,
clothing, shelter over the head and facilities for reading, writing and expressing oneself
in diverse forms, freely moving about and mixing and commingling with fellow human
beings.”

In Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh (AIR 1985 SC 652.), the
Supreme Court based its five comprehensive interim orders on the judicial understanding that

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environmental rights were to be implied into the scope of Article 21. Thus, expanding the scope
and ambit of Article 21 to cover in it the rights which are not expressly enumerated, the Supreme
Court has interpreted the word “life” to cover in it “all aspects of life which go to make a man’s
life meaningful, complete and worth living”. It will also cover his tradition, culture, heritage and
health.

In M.K. Sharma v. Bharat Electric Employees Union (1987 (1) SCALE 1049), the Court
directed the Bharat Electric Company to comply with safety rules strictly to prevent hardship to
the employees ensuing from harmful X-ray radiation. The Court did so under the ambit of Article
21, justifying the specific order on the reason that the radiation affected the life and liberty of the
employees.

In Subhash Kumar v. State of Bihar (AIR 1991 SC 420 ), the Court observed that:

“The right to live is a fundamental right under Article 21 of the Constitution, and it includes the
right of enjoyment of pollution-free water and air for full enjoyment of life. If anything
endangers or impairs that quality of life in derogation of laws, a citizen has the right to have
recourse to Article 32 of the Constitution...”

The Supreme Court, in its interpretation of Article 21, has facilitated the emergence of an
environmental jurisprudence in India, while also strengthening human rights jurisprudence.
There are numerous decisions wherein the right to a clean environment, drinking water, a
pollution-free atmosphere, etc. have been given the status of inalienable human rights and,
therefore, fundamental rights of Indian citizens.

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 4. Conclusion :

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. These new cases

have been set against the backdrop of a radically different socio-economic background of

national life. The annual GDP growth rate of the Indian economy has catapulted to the levels of 8

to 9 per cent against a meager 5 to 6 per cent in the previous two decades and the annual growth

rate of the industrial sector has skyrocketed from the range of 5 to 7 per cent to 11.6 per cent

during the period of 2002 to 2007. Thus, industrial development has become a pressing need in

the current phase of economic transformation. In such a scenario, it is impossible for the higher

judiciary to remain oblivious of this critical facet of national life and therefore, there is an

increased probability of a pro-development bias creeping into the judgments where courts are

required to review choices made between environment and development. The Judicial Activism

though in most academic dialogues criticized for its over emphasizing power but when sticking

to the environmental concern, Supreme Court of India has played an important role by making

all legislations active which were just a piece of soft law.

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 Reference

1.K.D.Gaur, “National Policy and Law of Environment”, ed. 0. P. Sharma, INDIAN BAR
REVIEW, XIII (3 &4) 1996 pp.21-22.

2.Justice Krishna I year Vol. X, “Environmental Pollution and the Law”, 1984, pp.51-52 and 61-
62.

3.The holy rivers, Ganga and Yamuna have become unholy, ibid.

4. www.legalserviceindia.com

5. Raghav Sharma, “ GREEN COURTS IN INDIA: STRENGTHENING ENVIRONMENTAL

GOVERNANCE?”,Law, Environment and Development leeds journal,2010