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Principles of International Environmental Law and Judicial Response in India

Shailendra Kumar Gupta* 1. Introduction ! This article attempts to analyze the issues relating to the linkages between international environmental law principles and their applications in domestic law by the state courts in India. Global Environmental crisis has questioned the modernity and its values. The very existence and survival of man and other forms of life have become a matter of deep concern. The global concerns for environmental crisis have led the evolution and remarkable growth of international environmental law. !ike international human rights law" discipline of international environmental law is one of the most important phenomena in post #tockholm $onference % &'() period. The growth of international environmental law has compelled us to revisit to our existing political" economic and social values and structure both at national and international levels. ". Sources of International Environmental Law *nder International law traditional sources of +hard law+" which establish legally binding obligations" there are rules of +soft law+" which are not binding per se but which in the field of International
#r. !ecturer" -aculty of !aw" ../.*." 0aranasi" India" Email1 shailendragupta The author is grateful to 3rof. .. $. 4irmal whose constant encouragement and guidance have facilitated this article. #ee" 3hilippe #ands" Principles of International Environmental Law %$ambridge *niversity 3ress" #econd Edn. (556)" 3at .irnie and 7lan .oyle" International Law and the Environment, %8*3" *9" #econd Edn. (55().

Environmental law have played an important role and have given rise to a large body of International legal obligations which relate to the protection of the environment. The traditional sources of International legal obligations which equally apply in the field of the environment comprise +the body of rules which are legally binding on states in their intercourse with each other. These rules derive their authority" as per 7rticle 6: % ) of the #tatute of the I$;" from four sources1 treaties" International custom" general principle of law recognized by civilized nations" and subsidiary sources. The main <subsidiary sources< are the decisions of courts and tribunals and the writings of =urists. 7part from the I$; the other international courts dealing with environmental issues are the European $ourt of ;ustice" the European $ourt of /uman >ights" G7TT ?ispute #ettlement 3anels and international arbitral tribunals. <4ational< courts and tribunals have often interpreted international obligations in environmental law field and =urisprudence of these courts is likely to become an important source in the development of international environmental law. 7ccording to 3rof. ;.G. #tarke" <the decisions of state courts may" under the same principle as dictate the formations of customs" lead directly to the growth of customary rules of international law.( ".1 General Principles and Rules of International Environmental Law General principles of international environmental law reflect in treaties" binding acts of international organizations" state practice" and soft law norms. They are general in the sense that they are applicable to all members of the international community in respect of the protection of
;.G. #tarke" Introduction to International Law %.utterworth" 5th Edn. &:&) -irst Indian >eprint &&@" 7dity .ooks" 4ew ?elhi" p.@:.


the environment. 7ccording to 3rof. 3hilippe #ands6 in environmental law context" the main general rules and principles which have broad support and are frequently endorsed in practice are1 % ) AThe obligation reflected in 3rinciple ( of the #tockholm

?eclaration and 3rinciple ( of the >io ?eclaration" namely that states have sovereignty over their natural resources and the responsibility not to cause environmental damageB %() %6) The principle of preventive actionB The principle of good neighborliness and international coC operationB %@) %D) %E) %') "." The principle of sustainable developmentB The precautionary principleB The polluterCpays principleB and The principle of common but differentiated responsibility.F Le#al status of General International Environmental Principles 3rof. 3hilippe #ands has opined that in the absence of =udicial authority and conflicting interpretations under state practice it is frequently difficult to establish the parameters or the precise international legal status of each general principle or rules. The legal consequences of each in relation to a particular activity or incident must be considered on the facts and circumstances of each case and take account of several factors. #ome general principles or rules may reflect customary law" other
3hilippe #ands" % &&D) 1 Principles of International Environmental Law, 0ol. . %Ganchester *niversity 3ress" Ganchester" *.9.) p. :6.

may reflect emerging legal obligations" and yet others might have an even less developed legal status. 8f these general principles and rules only aforesaid 3rinciple ( of #tockholm" 3rinciple ( of >io and the good neighborliness are sufficiently substantive to be capable of establishing the basis of an international cause of action i.e. to give rise to an international customary legal obligation the violation of which would give rise to a legal remedy. The status and effect of the others remains inconclusive" although they may bind as treaty obligations or" in limited circumstances" as customary obligations. Hhether they give rise to actionable obligations of a general nature is open to question. 3rof. #ands is also of the view that the international community has not adopted a binding international instrument of global application which purports to set out the general rights and obligations of the international community on environmental matters. 4o equivalent to the *niversal ?eclaration on /uman >ights or the International $ovenant on $ivil and 3olitical >ights or Economic and #ocial >ights has yet been adopted. ".$ International Law and State %ourts The environmental decisions of the national I state courts and international environmental law have influenced each other.@ The decisions of the state courts which are +subsidiary sources+ under 7rticle 6:% ) of the statue of the I$;" may lead directly to the growth of +customary+ rules of international law. #imilarly" the state courts have
#ee" 7nderson" Gichacl and Galizzi" 3." International Environmental Law in National Courts %!ondon 1 The .ritish Institute of International and $omparative !aw" (55(JB .odansky" ?aniel and .runnee" ;utta" +The >ole of 4ational $ourts in the -ield of International Environmental !aw" Review of European Community & International Environmental Law, 0ol. '% )" &&:" C(5.


often developed national environmental =urisprudence by taking inspirations and helps from the international environmental laws. In the light of aforesaid development" hereinafter" an attempt has been made to analyze the linkages between certain international environmental law principles and their application in domestic law by the state courts in India. $. $.1 International Law and the Indian %onstitutional Scheme Internal Law and the 'istri(ution of Le#islative Power 7rticle (@D of the $onstitution of India deals territorial ;urisdiction of the legislative power" confers the power to the parliament to make laws for the whole or any part of the territory of India. 7rticle (@E deals with the sub=ect matter of laws" empowers the parliament to have +exclusive+ power to make laws with respect to the *nion list. The parliament has exclusive power to legislate on all conceivable international matters which have been enumerated under the *nion !ist. *nder this list main entries relating to international matters are1 foreign affairs %entry 5)" *nited 4ations 8rganization %entry ()" participation in international conferences" associations and other bodies and implanting of decisions made thereat %entry 6)" and entering into treaties and agreements with foreign countries and implementing of treaties" agreements and conventions with foreign countries %entry @) etc. *nder 7rticle (D6 the parliament has exclusive power to make any law for implementing any treaty" agreement or convention with any other country or countries or any decision made at any international conference" association or other body. These provisions suggest that the parliament has sweeping power to legislate on international matters. /owever" this power of the parliament" according to the #upreme $ourt" can not override the fundamental rights enumerated under 3art III of the constitution.D *nder the constitutional scheme the union government+s executive power is coC

Magam hai Ishwar hai Patel v. !nion of India % &'5) 6 #$$ @55.

extensive to the legislative power of the parliament %7rticle '6). 7ccording to the #upreme $ourt treaty making is regarded as an executive power rather than legislative activity.E $." International Law and %onstitutional 'ut* Though 3art I0 %7rticle 6' to D ) of the Indian $onstitution" known as the ?irective 3rinciples of #tate 3olicy" is not enforceable by any court but principles contained therein are fundamental in the governance of the country and it <shall< be the duty of the #tate to apply these principles in making laws %7rticle 6'). 7rticle D specifically deals with international law and international relation" inter alia" provides that the Kstate shall endeavor to foster respect for international law and treaty obligations.+ In "elephone "apping Case' the #upreme $ourt by invoking 7rticle D developed right to privacy as a fundamental right under 7rticle ( . /ere" the court took inspiration from the privacy provision of the $ovenant on $ivil and 3olitical >ights. /owever" in environmental matters" it appears" no such use of 7rticle D has been done by the courts. /ere" it may be recalled that the courts have invoked 7rticle @:C7 %duty of the state to protect environment) to develop a fundamental right to environment as part of the right to life under 7rticle ( .: $.$ Statutes Enacted in India Pursuant to the International Environmental Law

E '

Ibid. People#s !nion for Civil Li erties" v. !$%$I$ % &&') #$$ 65 . : In several leading cases the Indian courts have been guided and inspired by 7rticle @:C7 and developed a general fundamental right to environment under 7rticle ( . #ee" M$C$ Mehta v. !nion of India %9anpur Tanneries Gatter) 7I> &:: #$ 56' at 56:B Rural Litigation and Entitlement &endra v. 'tate of !$P$ 7I> &:: #$ ( :' at ( &&1 &in(ari )evi v. 'tate of *$P$ 7I> &:: @ at :B +ichhri ,illage Case 7I> &&E #$ @@E at @D&" 'achindanda Pandey, v. 'tate of -$+$ 7I> &:' #$ 5& at @C DB "$ )amodar Rao v. Municipal Corp$, *ydera ad, 7I> &:' 7.3. ' at : etc.

In India many important environmental statutes have been enacted to ratify or to fulfill national obligations under the international environmental treaties" conventions and protocols etc. /ereinafter" an effort has been made to present a table which contains a list of international environmental laws and relevant Indian environmental statutes showing close linkages between the same.
S.,o. . (. 6. @. D. E. International Environmental Laws The #tockholm $onference" &'( The #tockholm $onference" &'( The >io $onference" &&( The >io $onference" &&( Relevant Indian Environmental Statutes The 7ir 7ct" &: The Environmental 3rotection 7ct" &:E The 3ublic !iability Insurance 7ct" && The 4ational Environmental Tribunal 7ct" &&D

$onvention of .iological ?iversity" The .iological ?iversity 7ct" (55( &&(. $onvention of International Trade in The Hild !ife 3rotection %7mendment) Endangered #pecies of Hild -auna 7ct" (55( and -lora" &'6.

7lthough the detailed discussion on executive ratification or legislative exercise in India" in pursuant to the international environmental obligations" is outside the main ob=ective of this article. Let" it would be relevant to briefly point out" with approval" the stand taken by 3rof G.9. >amesh that in India such ratification or enactment has often been done either without necessary national preparation or under compulsion to conform to the conditionalities of international financial institutions like Horld .ank.& The ratification or enactment of environmental statues in India" without real commitment to implement
G.9. >amesh" +Environmental ;ustice ?elivery in India1 In $ontext+" ( %() Indian .ournal of Environmental Law, ?ecember (55(" & at (.

the same by the executive" has resulted into =udicial interventions and activism in the field of environmental law. &. &.1 International Law and Indian %ourts Role and Status of the Indian Judiciar* The role of =udiciary depends on the very nature of political system adopted by a particular country. This is the reason that role of =udiciary varies in liberal democracy" communist system and countries having dictatorship. The role of =udiciary has been important in liberal democracies like India. $onstitution of India in fact took inspiration from *# $onstitution and therefore adopted similar concept of =udicial review. In independent India" history of =udiciary" =udicial review and =udicial activism has been a fertile area for legal researchers. It is now a well established fact that" in India" in view of legislative and executive indifferences or failures" the role of =udiciary has been crucial in shaping the environmental laws and policies. The role of the Indian #upreme $ourt may be explained quoting the views of 3rofessor #.3. #athe and 3rofessor *pendra .axi two leading academics who have extensively written on the role of =udiciary in India. 3rofessor #athe has analyzed the transformation of the Indian #upreme $ourt <from a positivist court into an activist court<. 3rofessor *pendra .axi" who has often supported the =udicial activism in India" has also said that the <#upreme $ourt of India< has often become <#upreme $ourt for Indians<. 5 Gany observers of the Indian #upreme $ourt including 3rofessor #athe and .axi have rightly

*pendra .axi" +The 7vatars of Indian ;udicial 7ctivitism 1 Explorations in the Geography of %In) =ustice+" in #.9. 0erma and 9usum %eds.)" /ifty 0ears of the 'upreme Court of India 1 It#s 2rasp and Reach %?elhi" 8xford *niversity 3ress" (555) pp. DEC(5& at D'.

opined that the Indian #upreme $ourt is one of the strongest courts of the world. 3ower and =udicial activism of the Indian courts have resulted into a strong and ever expanding regime of fundamental rights. #tockholm $onference on /uman Environment" &'(" has generated a strong global international awareness and in India it facilitated the enactment of the @(nd $onstitutional 7mendment" &'E. This amendment has introduced certain environmental duties both on the part of the citizens M7rticle D 7 %g)J and on the state %7rticle @:C7). *nder the constitutional scheme the legal status of 7rticle D %7)C %g) and @:C7 is enabling in nature and not legally binding per se" however" such provisions have often been interpreted by the Indian courts as legally binding. Goreover" these provisions have been used by the courts to =ustify and develop a legally binding fundamental right to environment as part of right to life under 7rticle ( .

/ereinafter" an

effort has been made to demonstrate that how both the +soft+ and +hard+ international environmental laws have been used by the Indian courts to develop a strong environmental =urisprudence in domestic law. The =udicial adoption of international environmental law into domestic law in India has not been done overnight rather it has been gradual. In order to understand the =udicial process of such adoption the present discussion can be divided into the following three periods 6 1
#.3. #athe" .udicial 3ctivism in India %4ew ?elhi" 8xford *niversity 3ress" (555). #ee" +3reface+ of this work written by 3rof. *pendra .axi" pp. ixCxxi. ( R$L$E$&$, )ehradun v. 'tate of !$P$ %?oon 0alley Gatter) was the first case in which the #upreme $ourt recognized a fundamental< right to live in a healthy environment with minimum disturbance of ecological balance<. 7.I.>. &:D #$ E(D at EDE. 6 The idea of this classification and substantial information contained there under have been broadly adapted from 1 Gichael 7nderson" +International Environmental /

-irst period of ;udicial 7doption % &D5C &:@) #econd period of ;udicial 7doption % &:DC &&D) Third period of ;udicial 7doption % &&E onwards) &." 0irst Period of Judicial 1doption 21/)3!1/.&4 5raditional 'ualist 1pproach ?uring the period of &D5 to &:@ the Indian courts have adopted a traditional dualist approach that treaties have no effect unless specifically incorporated into domestic law by legislation. In .olly 2eorge ,erghese v. +an( of Cochin

the #upreme $ourt upheld the traditional dualist

approach and gave overriding effect to the $ivil 3rocedure $ode over International $ovenant on $ivil and 3olitical >ights. /owever" the court in this case" minimizes the conflict between the $ovenant and domestic statue by narrowly interpreting the $ivil 3rocedure $ode. 7s for as the customary international law is concerned" during &D5C:@" there was hardly any legislative exercise in the name of customary international law. The Indian =udicial approach relating to the legal status of the customary international law was clarified in 2ramophone Company of India Ltd$ v. +irendra +ahadur Pandey. D In this case the court relied upon the English decisions and endorsed the doctrine of incorporation. 7ccording to this doctrine rules of international law are incorporated into

!aw in Indian $ourts+" Review of European Community and International Environmental Law, 0ol. '% )" &&:" ((C6 . @ % &:5) ( #$; 6D:. D % &:@) ( #$$ D6@. 13

national law and considered to be part of national law unless they are in conflict with an 7ct of the parliament. &.$ Second Period of Judicial 1doption 21/.)!1//)4 Influence of International Environmental Law ?uring this period international environmental law was used to interpret the character of state obligations with respect to the right to life %7rticleC( )" which has been interpreted to include the right to a healthy and decent environment. 5reaties .efore &&E there were very few references to international


environmental treaties though by &&5 India was party to more than '5 multilateral treaties of environment significance.

In 3s estos Industries Case ' the #upreme $ourt extensively quoted many international laws namely I!8 7sbestos $onvention" &:E" *niversal ?eclaration of /uman >ights" &@:" and International $onvention of Economic" #ocial and $ultural >ights" &EE. In this case the court dealt the issues relating to occupational health hazards of the workers working in asbestos industries. The court held that right to the health of such workers is a fundamental right under article ( detailed directions to the authorities.
& :

and issued

In Calcutta -etland Case(5 the

$alcutta /igh $ourt stated that India being party to the >amsar

7nderson" % &&:) " op$ cit$, note45, p. (E. Consumer Education & Research Centre v. !nion of India % &&D) 6 #$$ @(. : I id6 '5 %3ara (D). & I id6 '6 %3ara 6 ). (5 People !nited for +etter Living in Calcutta v. 'tate of -$+$, 7I> &&6 $al. ( D.
E '


$onvention on Hetland" wetlands. Soft Law Standards

&' " is bound to promote conservation of

The #tockholm ?eclaration" &'( and the >io ?eclaration" &&( have been considered milestones in the development of international environmental law. Though these two declarations have often been characterized as +soft+ law but their impacts both at international and domestic levels" have been profound. In India" the post .hopal Gass ?isaster % &:@) era was a creative period for environmental =urisprudence. ?uring this period" in landmark )oon ,alley case( , the #upreme $ourt dealt with the impact of mining in the ?oon 0alley region and through its orders impliedly generated a new fundamental <right of the people to live in healthy environment with minimal disturbance of ecological balance.<(( In this case there were series of orders and in one of its orders the court recognized the influence of the #tockholm $onference by accepting that this <conference and the followCup action thereafter is spreading the awareness<.(6 7gain" in &anpur "anneries Case(@ the #upreme $ourt extensively quoted the #tockholm ?eclarations and strengthened the then nascent fundamental right to environment in India. In this case the court gave preference to +environment+ over +employment+ and +revenue generation+. ?uring this period the >io ?eclarations" &&( was also cited in the Law 'ociety of India case.(D
R$L$E$&$ )ehradum, v. 'tate of !$P$ 7I> &:D #$ ED(. Three =udges bench order of Garch (" &:D (( I id, EDE %3ara (). (6 7I> &:' #$ 6D&" 6E6 %3ara &) order of ?ec. :" &:E. (@ M$C$ Mehta, v. !nion of India 7I> &:: #$ 56'. #ee 3ara @ %pp. 56:C 5@5) for detailed discussion of #tockholm ?eclarations by ;ustice 0enkataramiah. (D Law 'ociety of India v. /ertili7er & Chemical "ravancore Ltd$ 7I> &&@ 9er. 65:.


?uring this period of &:DC &&D" according to 3rof. 7nderson" the said soft laws were invoked by the court simply to make the general point that environment should be protected. The use and role of soft laws was KsecondaryN rather than KsubstantiveN.(E The courts were =ust using soft law standards to evolve and strengthening the fundamental right =urisprudence under 7rticle ( . In fact" international environmental law played primary and substantive role in the next period starting from the year &&E. &.& 5he 5hird Period of Judicial 1doption 21//+ 6nwards4 1 ,ew 1pproach7Su(stantive 8se of International Environmental Law

&.&.1 %ustomar* International Law and the Vellore Case 21//+4 In contrast to its previous caution during &:DC &&D periods" the #upreme $ourt adopted a more robust attitude to customary international law in the year &&E.(' In the year &&E the #upreme $ourt" led by an activist green =udgeC ;ustice 9uldip #ingh" inaugurated a new environmental =urisprudence in historic ,ellore case(: and invariably applied the ratio of this case in a series of other landmark environmental cases. In all such cases international environmental law was used KsubstantivelyN and the #upreme $ourt developed a unique domestic environmental =urisprudence by blending the Indian environmental law with the international environmental law. /ereinafter" an effort has been made to discuss important cases of this period and their outcome.

7nderson" % &&:)" op$ cit$, note45, p$ (D. Ibid. (: ,ellore Citi7ens8 -elfare /orum v. !nion of India % &&E) D #$$ E@' 1 7I> &&E #$ (' D *nanimous ;udgment delivered on 7ugust (:" &&EB by a three =udges bench of the #upreme $ourt of India.
(E ('


In ,ellore case the court considered a public interest litigation highlighting discharge of toxic waste and polluted water from the large number of tanneries in the #tate of Tamil 4adu. 7 three =udgesN bench led by ;ustice 9uldip #ingh adopted a very strict stand against the polluting tanneries. In this case the court reviewed the history of the concept of sustainable development under international law. In this connection the court briefly referred important legal developments such as the #tockholm $onference &'(" .urndtland $ommission >eport" &:'" $aring of the Earth >eport" && " >io $onference" &&(" $onvention on $limate $hange" &&(" $onvention on .iological ?iversity" &&( and 7genda C( %7 programme of 7ction for TwentyCfirst $entury) etc. The important legal findings of the ,ellore case, relevant for this article" are summarized below. % ) The court held that <#ustainable ?evelopment< as a balancing concept between ecology and development has been accepted as a part of customary international law though its salient features are yet to be finalized by the international law =urists. % p. ED:" 3ara 5" supra note (D). %() The court was of the view that <The precautionary 3rinciple< and <The 3olluter 3ays 3rinciple< are essential features of <#ustainable ?evelopment.< % i id." p. ED:" 3ara ).



The 3recautionary 3rinciple and the 3olluter 3ays 3rinciple have been accepted as part of the law of the land. % i id$" pp. ED&CEE5" 3aras 6 O @).


7ccording to the court" Aonce these principles are accepted as part of the customary International law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of $ustomary International !aw which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of lawF.(& %i id$"p. EE5" 3ara D).

&.&." Role of Vellore Case in 'evelopment of Environmental Law in India ,ellore case has been proved a turning point of the growth of environmental law in India. Though the aforementioned outcomeIratio of the ,ellore case has often been questioned by the critics65 but the #upreme $ourt itself has never cast a doubt on the ratio of this case.
In support of this conclusion the court referred to ;ustice /.>. 9hann+s opinion in the 3$)$M$ .a alpur v. 'hiva(ant 'hu(la % &'E) ( #$$ D( 1 7I> &'E #$ (5'" .olly 2eorge ,arghese v. +an( of Cochin, % &:5) ( #$$ 6E5 1 7I> &:5 #$ @'5 and 2ramophone Co$ of India Ltd$ v. +irendra +ahadur Pandey, % &:@) ( #$$ D6@ 1 7I> &:@ #$ EE'. 65 -or example 3rof. ..$. 4irmal" an expert of international law at !aw #chool" ./*" has questioned the reasoning of the ,ellore case$ #ee" ..$. 4irmal" +-rom ,ellore to Nayudu 1 The $ustomary !aw #tatus of the 3recautionary 3rincipleB 65 +anaras Law .ournal %(55 ) D:C&&. -or criticism of ,ellore#s ratio" #ee also" 7nderson" % &&:)" op$ cit6 note 45, pp. ('C(:. In his concluding observations 3rof. 7nderson opines that <The direct incorporation of international environmental law principles raises serious questions regarding both the content of domestic environmental law and the place of international law in India+s constitutional order. It would not be surprising if these matters are raised by industry groups in future litigation.< %i id$,p (:). -or example" in .hopal Gass ?isaster litigation the *nion $arbide $orporation seriously contested the ratio of absolute liability principle of the %leum 2as Lea( case %7I> &:' #$ 5:E). In 0ellore case ;ustice 9uldip #ingh affirmed the mixing of the 3olluter 3ays 3rinciple with the 7bsolute !iability 3rinciple %3ara ( at pp. ED:CD& in #$$ >eport). 3rof. 7nderson opines that such mixing has no support under the international environmental law which has been invoked by the court to from the ratio of the ,ellore case.


$onversely the courts in India have been enthusiastically applying the ratio of the ,ellore case in ma=ority of environmental cases. /ereinafter" an effort has been made to present an account of those cases in which ,ellore case has been cited" approved and used. This discussion can be divided into two broader heads as below. 1pplication of Vellore Case (* the %ourts Led (* Justice Kuldip Sin#h The #upreme $ourt led by ;ustice 9uldip #ingh decided the ,ellore case on 7ugust (:" &&E" and in several important subsequent =udgments written by him 6 he applied the ratio of the ,ellore case. This account has been presented in a tabular form as below.
5a(le S.,o. . %ases in 9hich Vellore Case 1pplied +ayer India Ltd$ case6( 'ate of 6rder7Jud#ment #ept. 5&" &&E. Jud#e 9ho 'elivered the 6rder7Jud#ment ;ustice ..!. /ansaria" %;ustice 9uldip #ingh was a member of the .ench) ;ustice 9uldip #ingh ;ustice 9uldip #ingh ;ustice 9uldip #ingh ;ustice 9uldip #ingh ;ustice 9uldip #ingh ;ustice 9uldip #ingh

(. 6. @. D. E. '.

+ad(al & 'ura9(und La(es case66 'uo Motu case %0ehicular 3ollution in ?elhi matter)6@ 'hrimp Culture case6D &amal Nath case


" &&E.

4ov. :" &&E ?ec. " &&E

?ec. 6" &&E. ?ec. &" &&E ?ec. 65" &&E.


Calcutta "annaries case6' "a9 "rape7ium case

Except one order written by ;ustice /ansaria to which ;ustice 9uldip #ingh was the party. #ee serial number in the table. 6( /$+$ "araporwala v. +ayer India Ltd$ % &&E) E #$$ D:" E %3ara @). 66 M$C$ Mehta :+ad(al and 'ura9(und La(es Matter v. !nion of India % &&') 6 #$$ ' D" ' :C(5. %3ara : O 5). 6@ 'uo Motu Proceeding In Re 1 )elhi "ransport )evelopment % &&:) & #$$ (D5B (D . ;ustice 9uldip #ingh %;oint order of the ?iv. bench) applied the precautionary principle as part of sustainable development to establish a legal duty of the state government to control the vehicular pollution in ?elhi). 6D ' .agannath, v. !nion of India % &&') ( #$$ :'" @6C@E %3ara @'). 6E M$C$ Mehta v. &amal Nath % &&') #$$ 6::" @ 6C@ @ %para 6' O 6:). 6' M$C$ Mehta :Calcutta "annaries# Matter; v. !nion of India % &&') ( #$$ @ " @(&C @65 %3ara : O &). 6: M$C$ Mehta :"a9 "rape7ium Matter; v. !nion of India % &&') ( #$$ 6D6" 6:(C:6. %3ara 6(). 1+

7nalysis of the cases shown in the aforementioned table shows that within a short period of four months i.e. from #ept. &&E to ?ec. &&E" the ratio of ,ellore case was applied in seven important cases by the #upreme $ourt. 8ut of these seven cases" six =udgments have been writtenIdelivered by ;ustice 9uldip #ingh himself and there was no dissenting opinion by the other =udges in such cases. 8nly in one case namely +ayer India Ltd" the =udgment was delivered by ;ustice /ansaria on behalf of a division bench of which ;ustice 9uldip #ingh was also a member. In these seven cases ratio of the ,ellore case6& was verbatim referred and approved. Through this exercise ,ellore case was virtually converted as the grundnorm by ;ustice 9uldip #ingh without stating that it was he who created this grundnorm. The fact" that out of seven" six =udgments delivered I written by ;ustice 9uldip #ingh himself" suggests that before his retirement" which was due in ?ec. &&E" he wanted to establish the ratio of ,ellore as a settled precedent under Indian environmental =urisprudence. 8ur next discussion will show that ;ustice 9uldip #ingh in fact succeeded in his endeavor. 1pplication of Vellore case (* the 6ther Jud#es in Post Kuldip Sin#h Era
It is a matter of surprise that during the year &&E itself ;ustice 9uldip #ingh court delivered many ordersI=udgments prior to the 0ellore case %7ug.(:" &&E)" but" in none of these cases he invoked the international law principles to decide the said cases as he did in the ,ellore case. These cases are 1 )elhi -ater 'upply case" -eb. (&" &&E. % &&E) ( #$$ D'(B )r$ +$L$ -adehra case Garch 5 " &&E" % &&E) ( #$$ D&@B Coastal Regulation <ones case 7pril :" &&E 1 % &&E) D #$$ (: B +ad(al and 'ura9(und La(es case %main order) Gay 5" &&E 1 % &&E) : #$$ @E(. In M$C$ Mehta v. !nion of India :)elhi *a7ardous Industries Relocation Matter; ;ustice 9uldip #ingh court delivered two orders on Gay 5" &&E % &&E) @ #$$ 6D and ;uly 5:" &&E" % &&E) @ #$$ 'D5 and no reference to the ,ellor case was made. It may be pointed out here that in the main order %Gay 5" &&E) in +ad(al La(e Case there was no use of international environmental law principle but in the clarificatory order %8ct. " &&E) of the same matter ;ustice 9uldip #ingh court extensively used the international environmental law principles by reiterating the ratio of the ,ellore case. The present author has not succeeded to find explanation of this sudden departure of =udicial attitude of ;ustice 9uldip #ingh court within the short span of few months.


Even after retirement of ;ustice 9uldip #ingh in ?ec. &&E the entire ratio of ,ellore case remained intact. In fact" this ratio of ,ellore has been further strengthened when in many other important environmental cases the #upreme $ourt reiterated and upheld the same. .ut" in post 9uldip #ingh era nature and extent of the application of ,ellor8s ratio has varied from case to case. In these cases" briefly mentioned below" the courts have made passing references or restrictive use or selective use of ,ellore8s ratio. /owever" there has been no dissent against the ,ellore8s ratio in these cases. In 'amatha case

only meaning and importance of the term

sustainable development as well as <the polluter pays principle as a facet thereof< have been briefly mentioned and affirmed by the #upreme $ourt. In Nuyudu case@ citing ,ellore case the #upreme $ourt felt it necessary to further elaborate the meaning of precautionary principle in more detailN. %3ara 6(" p. '66). In 'ardar 'arovar )am@( ma=ority =udgment %9irpal" ;. for himself and 7nand" $;I.) referred the Nayudu & ,ellore Cases and approved the construction of a mega dam and found it compatible with the concept of sustainable development which requires that mitigative steps should be taken. The court refused to apply the precautionary principle in this matter by distinguishing the dam with the hazardous industries. ). %oncludin# 6(servations

'amatha" v. 'tate of 3$P$ & others % &&') : #$$ & " ('@. %3ara (6) %?ecided on ;uly " &&' by three =udgesN bench). @ 3$P$ Pollution Control +oard v. Prof$ M$,$ Nayudu % &&&) ( #$$ ' :" '6(C6@ %3ara 65" 6 O 6E). @( Narmada +achao 3ndolan v. !nion of India ?>>> %') #$7!E 6@" & C&(. %pares &C ( ) %7I> (555 #$ 6'D ).


The global environmental concerns have led the remarkable growth of international environmental law in post #tockholm $onference period. The environmental decision of the nationalIstate courts and international environmental law has influenced each other. The decision of the state courts which is +subsidiary sources+ under 7rticle 6:% ) of the #tatute of the I$;" may lead directly to the growth of +customary rules of international law.+ #imilarly" the state courts have often developed national environmental laws by taking inspirations and help from the international environmental laws. The influence of international law in general and international environmental law in particular is growing and there has been a close interaction between international environmental law and municipal law in India. It appears that growth of Indian environmental law has often been coCextensive to the growth of the environmental law under international law. 7fter the .hopal Gass ?isaster %?ecember" &:@) all the three branches of the state and particularly the India #upreme $ourt" having inspired from the international environmental law" have fastly developed environmental law in India. India" in its constitutional scheme" has adopted a dualist approach to treaty obligation. #imilarly Indian courts traditionally adopted a cautious approach to read customary international law into the domestic law. In this connection Indian courts adopted a traditional position during &D5C &:@ periods and endorsed the doctrine of incorporation. /owever" during &:DC &&D periods there was growing influence of international instruments in the Indian courts. #ince &&E the Indian #upreme $ourt has used the international environmental law in such a manner which not


only blurred the distinction between monism and dualism but also redefined the role of international law in Indian courts. The =udicial activism of the higher =udiciary and particularly the #upreme $ourt has led to incorporation of certain international environmental principles under domestic law whose legal status is still open to question under international law. The #upreme $ourt in ,ellore case % &&E) affirmed the principle of sustainable development" precautionary principle and polluter pays principle as +customary international law+ and made them as part of the Indian domestic law. ;ustice 9uldip #ingh" who delivered the ,ellore =udgment applied the ratio of this case in several landmark cases and in this way successfully made the ,ellore case as a grundnorm which" in post &&E period" became a well settled =udicial precedent under Indian environmental =urisprudence. $onsequently" the international environmental law principles namely sustainable development" precautionary principle and polluter pays principle have not only been made +part+ of the Indian domestic law but have also been given +new+ meaning which is now a unique feature of the Indian environmental law. It appears that the international environmental law principles have been utililized by the Indian courts not only to KformulateN much of the contemporary environmental =urisprudence in India but also to KenrichN the same. This process is still going on and it has been resulting into the progressive integration of the Indian environmental law with the international environmental law.