Chapter 2

Administration of Environmental Justice:

An Analysis
 Chapter -2
Administration of Environmental
Justice: An Analysis

1. Introduction

Modern Environmental Jurisprudence which transcends continents,

nations, organizations, religions, legal systems, people, cultures etc., knows

no boundaries. In such a scenario it is imperative to limit the scope of the

study to some important perspectives of the subject. The conceptualisation of

environmental justice and its scope in India is the objective of this chapter.

Just like any other legal concept, the definition of environmental justice is a

very daunting task due to the dynamism of the concept. The conceptualisation

of environmental justice depends on various factors like place, time and

circumstances. Moreover its multidisciplinary nature makes it multi

dimensional. The concept of environmental justice is very wide and

encompasses the entire gamut of environmental Jurisprudence, so a single

research work will not suffice to study it. Hence the focus of the paper is

limited to the distributive and procedural justice dimensions of environmental

justice which is one of the important perspectives of administration of

environmental justice. Distributive aspects of environmental justice deal with

the equitable distribution of environmental benefits and burdens and the

procedural aspect deals with the democratisation of environmental decision

making and management through public participation, access to justice ,

access to environmental information, education and awareness creation. The

19
distributive and procedural aspects of environmental justice are

complementary to each other.

Environmental justice is not a simple or unidimensional concept1. It

may even include within its reach justice among humans or different

generations or even between humans and non-humans. Such a broad

conceptualisation may contain the concept of ecological justice2 within the

precincts of administration of environmental justice which is beyond the scope

of the study. Hence it is necessary to explain the different dimensions of

environmental justice for the purpose of limiting the scope of this study.

2. Dimensions of Environmental Justice

Justice means fairness; Environmental justice means fairness in

environmental matters. For legal analysis of environmental justice it is

necessary to point out the different dimensions of environmental justice. The

scope of environmental justice from the distributive justice perspective can be

broadly classified into three dimensions.

2.1. Environmental Justice among humans/ legal entities.

The analysis of the historical evolution of the concept

reveals that the concept of environmental justice is mainly

1
J.TIMMONS ROBERTS & MELISSA M.TOFFOLON-W EISS, CHRONICLES FROM THE ENVIRONMENTAL
st
JUSTICE FRONTLINE 8 (1 ed. 2001), See also NORTH AMERICA / SOUTH ASIA CONVENTION ON
ENVIRONMENTAL JUSTICE (Shivani Chaudhary ed., 2004).
“The struggle for justice as it is shaped by the politics of the environment…….has two
2

relational aspects: the justice of the distribution of environments among people, and the
justice of the relations between humans and the rest of the natural world. We term these
aspects of justice: environmental justice and ecological justice. They are really two aspects
of the same relationship”. [NICHOLAS LOW AND BRENDAN GLEESON, JUSTICE, SOCIETY AND
st
NATURE: AN EXPLORATION OF POLITICAL ECOLOGY i (1 ed. 1998)], see also BRIAN BAXTER, A
st
THEORY OF ECOLOGICAL JUSTICE 1 (1 ed. 2005).

20
 concerned with the relationship existing between humans or

groups or humans and legal entities. The aim of the legal

system is to protect the environmental rights of individuals and

to guarantee the equal distribution of environmental benefits and

burdens. The modern legal system also strives to guarantee

procedural and remedial justice to the affected parties without

any discrimination.

2.2. Environmental Justice among generations.

The dimension of environmental justice among different

generations has developed from the principle of intra-

generational equity3. Environmental justice among generations

came into force from the issue of unrestricted exploitation of

natural resources. “The right and opportunities of future

generations, yet unborn, cannot be sacrificed to meet the

consumption needs of the present generation”4. This dimension

aims at a fair distribution of environmental benefits among

different generations. The striking distinction between the first

and the second dimension is in the equitable distribution of

environmental burdens or harms. This parameter is relevant for

environmental justice among humans. But in respect of the

second dimension of intra generational equity, the distribution of

environmental burdens or harms among different generations is

3
Principle 3 of Stockholm Declaration, 1972 provides that the right to development must be
fulfilled so as to equitably meet developmental and environmental needs of present and
future generations.
4 st
SAIRAM BHAT, NATURAL RESOURCES CONSERVATION LAW 33 (1 ed. 2010)

21
 contradictory to the administration of environmental justice

because it is unfair to put the environmental burdens created by

one generation upon the succeeding generations, but it cannot

be avoided in reality. So the object of this dimension of

environmental justice is to reduce and eliminate the

environmental burdens progressively and to fairly distribute

environmental benefits and natural resources among different

generations. Even though in the real world it is not possible to

distinguish and compartmentalise different generations, the

dimension certainly contribute towards the administration of

Environmental Justice on a broader perspective.

2.3. Environmental Justice between humans and non humans.

“There is no reason to believe that the earth was created

for human beings alone. The rights of other creatures to exist

happily on this earth and to prosper and flourish must also be

recognised”5. Hence this dimension stresses the relevance of

fairness between humans and non human entities. This broad

dimension can be termed ecological justice. The objective of this

dimension is to bring not only the humans but also the non

human entities within the purview of the administration of

environmental justice. Sharing of environmental benefits and

environmental harms among humans and non humans is the

basic idea of this dimension. But in most cases the sharing of

environmental harms with non human entities may result in

5
Id. at 33.

22
 injustice to them because most of the environmental harms

originate from humans. So the focus of the dimension is to

protect the non human entities from various environmental

problems.

In support of this dimension David Schlosberg opines6,

“We can draw parallels between the application of notions of

justice as distribution, recognition, capability and participation in

both the human and non human realms. I argue that a broad set

of theoretical concerns, notions and tools can be applied to both

environmental and ecological justice.”

As already noted the concept of environmental justice is limited to the

first two dimensions of environmental justice for the purpose of this study. The

third dimension is outside the purview of this study. At the same time it is

pointed out that the third dimension may have an indirect impact upon the

other two dimensions.

On the basis of the concept of environmental justice, it is necessary to

enumerate the important elements of environmental justice to facilitate the

appraisal of administration of environmental justice.

3. Main Elements of Environmental Justice

As already pointed out, the scope of environmental justice can be

analysed on different perspectives, dimensions and criterions. For the

purpose of this analysis the scope of the research paper is limited to the

distributive, procedural and remedial aspects of administration of

6
DAVID SCHLOSBERG, DEFINING ENVIRONMENTAL JUSTICE - THEORIES, MOVEMENTS AND NATURE
st
6 (1 ed. 2007)

23
Environmental Justice. Accordingly the important elements of administration

of environmental justice are given below.

 Fair distribution of environmental burdens

The most important reason for the development of

environmental justice movement in US is the unequal distribution of

environmental burdens on different classes of people. The distribution

of these burdens or harms is not in proportion to the benefits derived

by different communities. Hence it is the duty of the state to guarantee

the fair and proportionate distribution of environmental burdens without

any discrimination.

Sustainable development7 is accepted as the basic principle of

environmental jurisprudence, by most of the countries in the globe. But

in the modern competitive world the race for economic development

causes irreparable injuries to the environment. Even though the

principle of sustainable development provides a touchstone for

evaluating the impact of development on environment, in reality it is

uncertain that its objectives can be attained because the quality of

environment throughout the globe is deteriorating, day by day.

Economic development, population explosion, poverty,

international and national conflicts etc are causing serious and

multidimensional environmental harms on the society. The objective of

environmental justice is to prevent environmental harms as far as

possible. Since it is not possible to eradicate these harms the best

7
See infra Chapter 6.

24
 option is to reduce environmental harms to the minimum and see to the

fair distribution of the same.

The concept of fair distribution of environmental harms doesn’t

imply equal distribution of the same. It only means that the burden of

environmental harms should be borne by those who cause the same

and that the burden should not be transferred to other innocent ones,

disproportionately. But in reality it is not possible to prevent the

complete transfer of these burdens because of the inherent nature of

certain types of environmental problems like air and water pollution.

Hence in such situations the best alternative for the administration of

environmental justice is to adopt Polluter Pays principle and to

minimise the impact of environmental harms on the poor and the

common man. The state is also bound to take necessary steps to

protect the interests of the affected parties by providing adequate

remedies like compensation, damages, rehabilitation etc.

 Equal access to environmental benefits.

Equal access to environmental benefits means fair distribution of

environmental benefits to everyone without any discrimination. The

goal of environmental justice is to formulate and implement an

environmental legal system which ensures and safeguards the rights of

all communities to the limited natural resources of the society or nation.

There are only limited natural resources available in a nation.

Mahatma Gandhi rightly observed that “nature has enough to satisfy

everyone’s needs, but not to satisfy anybody’s greed“. Hence the

25
 objective of environmental justice is the optimal utilisation of the

available natural resources and the fair distribution of the same among

different communities and different generations. Inter generational

equity and intra generational equity are the two basic principles

underlying the fair distribution of natural resources.

While applying this principle it is also necessary to take into

account the replenishing capacity of natural resources. A liberal

environmental legal framework which guarantees fair distribution of

natural resources can facilitate the administration of environmental

justice in respect of replenishable natural resources provided the use of

those resources is within its replenishing capacity, which is hardly the

case in modern society. Hence a comprehensive and responsive

environmental legal framework is necessary for the fair distribution of

environmental benefits and natural resources. As for the non-replenish

able natural resources a more stringent environmental legal system is

a sine qua non to achieve the objectives of environmental justice.

 Public Participation in Environmental decision making

Strategies for addressing environmental issues and

environmental protection should start from the grass root level.

Collection of information regarding environmental issues from the

affected people is a must for the effective formulation and

implementation of environmental strategies. “The principle of popular

participation in defining the structure of public problems will bring about

26
 true democracy”8.The most important method employed to collect

information from public is the public hearing or public consultation

process by administrative authorities.

Environmental decisions are taken by different organs of state.

The general policy of the State is laid down by the formulation of laws,

rules and regulations concerning the particular area. Public

participation before law making and policy formulations is gaining

ground especially in democratic nations like India. Public participation

helps in the institutionalisation and internalisation of policies by society.

In India there are many instances of public consultations before

enactment of laws and formulation of policies, but they are not followed

uniformly. Our legislative process does not make the public

consultation a mandatory process.

Environmental decision making at the administrative level

determines the effectiveness and efficiency of environmental laws and

policies. This function is primarily performed by the administrators but

the inputs for decision making are provided by state agencies, experts,

industry, NGO’s and the general public. The inputs from state agencies

and industry play a decisive role in this process. But recently it is found

that the role of public participation in environmental decision making is

gaining ground and many policies like Environmental Impact

Assessment make it a compulsory element.

A proactive judiciary with a sensitive attitude towards the

burning issues of common man plays a very important role in moulding

8
VASANTHI NIMUSHAKAVI, CONSTITUTIONAL POLICY AND ENVIRONMENTAL JURISPRUDENCE IN INDIA
st
54 (1 ed. 2006).

27
 environmental justice in the modern competitive world. Indian judiciary

has made an outstanding contribution towards the development of

environmental jurisprudence and administration of environmental

justice. Our judicial organ has a vital role in the administration of

environmental justice by recognising some important principles of

environment jurisprudence, taking active steps in implementing the,

otherwise dead, letters of law, providing a venue for the common man

to redress his grievances against the violation of his fundamental rights

and other statutory rights, liberalisation of locus standi to address the

environmental issues of economically and socially disadvantaged

groups, providing a platform to verify the validity of the legislative

actions on the basis of the principle of constitutionality and creating

accountability for environmental decision making and actions of

administrative agencies.

 Access to environmental information

In this information era, information is crucial to empowerment

and entitlement. Sufficient information at the apt time is a basic

necessity to empower people to realise their fair position in the society.

“The principle of information will empower participants to take a

responsible part in the law-making process”9. Their entitlement to

environmental protection is also moulded by the quality of information

they have. Hence in order to fulfill the objective of administration of

environmental justice, it is necessary to empower and entitle the

ordinary and affected people by providing the necessary information so

9
Id.

28
 that they can take an informed decision regarding their position, roles,

rights and remedies. Legal or other proceedings could include public

inquiries and licensing applications in which a person wants to

participate and for which access to the related environmental

information is essential for effective participation10.

In the present world, the common man bears the brunt of

improper administration of environmental justice due to either the lack

of adequate information or the abundance of inferior and misleading

information. Lack of information and abundance of unnecessary

information hinders the common man from taking an informed decision.

In this context, the state can take positive steps to provide adequate

information to the people by enacting necessary laws by legislatures,

by proper implementation of environmental laws by administrative

authorities and by recognising and enforcing the necessary principles

by judiciary.

Even though the landmark legislation, Right to Information Act

and some provisions of the environmental regulations empower the

people to seek necessary information from the authorities, from

environmental justice perspective, these provisions are not adequate

enough to alleviate the misery of the common man.

10
Cliona Kimber, Understanding Access to Environmental Information: the European
Experience, in LAW IN ENVIRONMENTAL DECISION-MAKING: NATIONAL, EUROPEAN AND
INTERNATIONAL PERSPECTIVE 156 (Tim Jewelland and Jenny Steele ed. 1998)

29
  Environmental awareness and education

An awareness of and knowledge about environmental rights is a

prerequisite for the common man to claim fairness in environmental

justice administration. Lack of environmental awareness and

environmental education itself are likely to cause environmental perils

in society. The poverty and backwardness of many communities

aggravate the situation of environmental problems like pollution. “One

of the major concerns of a democratic setup in country like India is that

the vast majority of the population has little or no education and

awareness and is therefore exploited by the few who have these

advantages”11.

“The present scenario of a depleting environment is due to the

lack of proper education of our people about the benefits of protecting

the environment”12. While struggling to eke out a living impoverished

people may not be in a position to appreciate the role of environment

protection in their life. So they are likely to cause irreparable injuries to

the environment without realising the consequences of their action.

Hence it is the solemn duty of the state to educate its citizens regarding

their rights and duties towards the environment. It enables them to

comprehend the fact that their environmentally benign actions may in

the long run prove beneficial to them and to the society at large.

In our society we can see that the callous and irresponsible

attitude of even the highly educated and economically forward people

is causing serious damage to the environment. But a value based

11
Supra note 4, at 10.
12 st
NANDIMATH O V, HANDBOOK OF ENVIRONMENTAL DECISION MAKING 167 (1 ed. 2009).

30
 environmental sensitising attitudinal change can be brought about

through proper education and awareness campaign. But it takes a lot

of time and efforts on the part of the state agencies and educational

system.

 Access to justice

“To no one will we sell, to know one will we refuse or delay, right

or justice”13. Access to justice is one of the most important elements of

administration of Environmental Justice. From the distributive justice

perspective, a fair distribution of environmental benefits and burdens

may provide environmental justice to the common man. But from the

common legal perception access to justice is discussed with reference

to remedial and procedural justice. Remedial justice aims at

guaranteeing proper remedies to aggrieved parties. Access to justice is

a prerequisite for redressing the grievances of affected parties.

Procedural justice guarantees a fair procedure for realisation of their

remedies.

Our Constitution itself provides adequate remedies for violation

of the fundamental rights of the citizens. But our judicial system is

generally not accessible to the common man due to certain inherent

lacunas of the judicial system. One of the solutions evolved by our

creative judiciary is the liberalisation of locus standi and the promotion

of social action litigation or public interest litigation. The path breaking

development of PIL has contributed to the development of access to

justice to the common man through public spirited citizens.

13
Clause 40, Magna Carta, 1215.

31
  Transparency in administration of Environmental Justice

Lord Hewart’s dictum that, “justice should not only be done but

should manifestly and undoubtedly be seen to be done” 14 is realised by

the application of the elements of environmental justice. Transparency

in the administration of environmental laws by administrative authorities

is an important element of administration of Environmental Justice. “It

is increasingly being recognised that unless the government and other

sectors of the society are more open and transparent in their

functioning, it would be difficult to control corruption and ensure that the

benefits of governance and development go to those who deserve it

most”15. It provides authenticity and acceptance to the environmental

decisions made by the administrative authorities. A transparent

procedure enables the common man to participate effectively in the

environmental decision making process. A participatory decision

making process and availability of relevant information to the affected

parties and addressing their grievances play an important role in

making the process transparent. “The principle of transparency will

supplement the old principle of the publicity of law, and will establish

the trust of societies in the law.”16

14
Rex v. Sussex Justices, [1924] 1 K.B. 259.
15
Supra note 4, at 35.
16
Supra note 8, at 54.

32
  Environmental Impact Assessment

Environmental Impact Assessment is the most important and

popular tool that is used throughout the world and which can guarantee

environmental justice to the people. In Heer and Hagerty’s view

Environmental Impact Assessment “consists in establishing

quantitative values for selected parameters which indicate the quality of

the environment before, during and after the action” 17. Environmental

Impact Assessment can be considered a yardstick for sound

assessment of developmental proposals. Environmental Impact

Assessment stresses the fact that the developmental proposals should

not only be assessed on technical, economic and political criteria but

also on environmental and social criteria.

Philippe Sands18 holds the view that Environmental Impact

Assessment provides decision makers with information on the

environmental consequences of proposed activities, requiring decisions

to be influenced by that information. One of the most important

functions of EIA is to collect objective and credible information

regarding the project and to assist the decision makers to arrive at a

fair, objective, unbiased and balanced decision. A proper

Environmental Impact Assessment and Environmental Management

Plan can pave the way for the achievement of sustainable development

and protection of environment.

17
J.E. HEER AND D.J. HAGERTY, ENVIRONMENTAL ASSESSMENT AND STATEMENTS 78 (1977).
18
PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW, VOL-1 579 (1995).

33
 Environmental Impact Assessment is a tool in which the above

mentioned elements of environmental justice i.e. Public participation in

environmental decision making, analysis of distribution of

environmental burdens and benefits, dissemination of necessary

information and transparency in environmental decision making

process are utilised. But the contribution of the Environmental Impact

Assessment process towards the administration of environmental

justice movement in India is insignificant.

 Social Impact Assessment

Social Impact Assessment includes the processes of analysing,

monitoring and managing the intended and unintended social

consequences, both positive and negative, of planned interventions

(policies, programs, plans, projects) and any social change processes

invoked by those interventions. Its primary purpose is to bring about a

more sustainable and equitable biophysical and human environment. 19

Social Impact Assessment is comparatively a new tool in the

administration of Environmental Justice. The object of Social Impact

Assessment is to appraise the impact of a project proposal on the

social values, cultures and structures. This tool provides a much

broader dimension to the impact of a project on the society. Compared

to Environmental Impact Assessment, this tool is very difficult to apply

in the real world. It provides a bigger platform for public participation in

19
Frank Vanclay, International Principles for Social Impact Assessment, 21:1 Impact
Assessment and Project Appraisal 5, 6 (2003), available at
http://www.tandfonline.com/doi/pdf/10.3152/147154603781766491 (Last visited July 20,
2015).

34
 environmental decision making. The project proponents and the

administrative authorities are reluctant to recognise and apply social

impact assessment for assessment of developmental projects because

of the difficulty involved and the role played by the people.

The importance of the tool lies in the fact that it can be utilised

effectively to bring social justice to the common man.

4. Administration of Environmental Justice: a model

As already pointed out, administration of environmental justice plays a

very important role in addressing the environmental issues of society. This

frame work aims at the application of the principle of equality and fairness in

environmental matters. Environmental issues in society are multi dimensional

and complex. According to John S Drysek, “Environmental problems tend to

be inter connected and multi dimensional; they are, in a word, complex.

Complexity refers to the number and variety of elements and interactions in

the environment of a decision system”20. It is not possible to devise a common

platform to address the same. But a model methodology can be devised to

address the environmental issues and problems of society, which can be

modified according to the needs of the time and the issues involved.

4.1. Study environmental problems

The main object of environmental law is to solve the

environmental problems in society. “Environmental law is the law

concerned with environmental problems. It is highly pluralistic subject

20
John S Dryzek, The politics of the Earth 8, in ELIZABETH FISHER, BETTINA LANGE AND ELOISE
SCOTFORD, ENVIRONMENTAL LAW – TEXT, CASES AND MATERIALS 24 (1 ed. 2013).
st

35
 and different areas of the law and different environmental problems

have given rise to different legal frameworks” 21 Hence a proper

analysis and understanding of the environmental problem is a

springboard for the administration of environmental justice.

“The first type of dispute will be over how environmental law

should be applied and here there will be complexities created by

divergent values and lack of robust knowledge of environmental

problems”22 A study of the environmental problem in its proper

perspective is a complex task which necessitates taking into

consideration various parameters like time, place, nature, intensity and

consequences of the issue. The process of the study from

environmental justice perspective should take into consideration the

role of different groups or communities in sharing the burden and

benefits of the issue. An acceptable formulation of the environmental

problem is possible only by giving ample opportunities to the affected

and interested parties to express their views and opinions on the issue.

The quality and relevance of their views and opinions depends on the

nature of their environmental awareness and education.

Most of the environmental problems are polycentric and

boundary less which makes the formulation of environmental problem a

difficult task. The difficulty in pinpointing the responsibility of

environmental problem is another important challenge to define the

environmental problem. But the adoption of the elements of

ELIZABETH FISHER, BETTINA LANGE AND ELOISE SCOTFORD, ENVIRONMENTAL LAW – TEXT,
21

st
CASES AND MATERIALS 18 (1 ed. 2013).
22
Id. at 23.

36
 environmental justice like public participation, creation of environmental

awareness and education etc, can contribute a great deal towards

braving the challenges faced in the formulation of environmental issues

or problems.

4.2. Collect environmental information

The second important step in the administration of

environmental justice is the collection of the relevant information

regarding the problem. It includes legal and non-legal information.

Legal information is, in the main, concerned about the present state of

laws and regulations in addressing the environmental issue. If a proper

solution is provided by the present legal system, the administrators can

straight away apply the same and resolve the issue. It may sound easy

but in reality it is not so, because the solutions provided by the present

legal system should take into account the social, political, economical

and cultural dimensions of the problem which can be gathered only

through collection of relevant information. The relevant information

should be gathered from the affected and interested persons.

If relevant legal provisions are not available in respect of the

environmental issue, then the state is bound to formulate the

necessary principles through legislations or delegated legislations or

judicial precedents to solve the issue. In certain cases even

administrative actions can resolve the issue. Gathering of relevant

information from interested parties may be necessary for the

formulation of general principles and administrative actions.

37
 Another important factor is that the collection of relevant

information regarding non legal aspects of the problem is also an

important element in administration of environmental justice. Public

participation plays a key role in collection of relevant environmental

information.

4.3. Analysis of the environmental problem

Analysis of environmental problem in the context of collected

information is the third important step. The analysis is required to be

made on the basis of legal and non legal aspects of the issue. Analysis

of environmental problem is a multi disciplinary task. Technical and

scientific expertise may be needed for the analysis and formulation of

solutions. In the analytical process, administration of environmental

justice plays a crucial role in giving due weightage to the information

collected through public participation. But in reality this is one grey area

where there is a lack of transparency in environmental decision

making.

4.4. Formulation of solutions

The next step is to formulate alternative solutions to the

problem, which is not an easy task. It is necessary to formulate

different types of solutions to the problem. From the legal perspective,

the solution of the problem may be a law making or policy formulation

or administrative action or a judicial decision. The elements of

environmental justice play a crucial role in the formulation of alternative

solutions. Inputs from public and affected parties can facilitate

38
 formation of informed and acceptable solutions. In terms of the link

between access to environmental information and environmental

decision making, the role of facilitation of participation in

environmental-decision making is probably the most significant23.

4.5. Appraisal of the solutions and decision making

This is the most important step in the process, i.e. the appraisal

and selection of the ideal solution. “Decision making about the

environment is not an exercise that individuals can take in isolation.

This is because the causes and solutions to environmental problems

are not solely the product of individual autonomous actions or

choices”24. So the decision making authority should take into account

the different inputs given by the interested parties, affected parties,

public, experts, NGOs and other organisations. The decision making

authority should also consider the social, political, economical, cultural

and legal aspects concerning the problem and the solutions. The

quality of the environmental decision can be improved and the decision

can be made acceptable by adopting the different elements of

administration of environmental justice. One of the most important

element in the decision making process is the maintenance of

transparency.

If there is a possibility of any adverse effect on the environment,

the environmental decision can be subjected to an Environmental

Impact Assessment and Social Impact Assessment. The inputs from

23
Supra note 10, at 142.
24
Supra note 21, at 24.

39
 the assessment can be used to make an objective evaluation of the

various available solutions.

If the solution is going to affect any people or organisations, a

systematic and proper process, guaranteeing the principles of natural

justice should be followed. The legal system should try to redress the

grievances of genuinely affected parties.

4.6. Implementation of the solution

When a decision is taken by the authority, it has to be

implemented properly. The success of a solution in solving the problem

lies in its proper implementation. If the solution is a legal one it may

usually be one of the following:

A new law or policy of the government may be a legal solution to

the problem. Administrative authorities concerned, should implement

the law or the policy in the proper perspective so that the object of the

same can be achieved. One of the most important reasons for the

ineffectiveness of environmental laws and governmental policies is the

failure of the authorities concerned in proper implementation of the

same.

Administrative action by the administrative authorities may be

another solution for the environmental problem. The observance of

necessary elements of environmental justice can improve the quality

and effectiveness of administrative actions. A judicious exercise of

discretion and fulfilment of the principle of natural justice, as and when

40
 necessary, can aid the proper implementation of administrative actions.

A transparent procedure in administrative action eliminates corruption

and makes it acceptable to the society at large.

Another type of solution for environmental problems is a judicial

decision. It is considered one of the effective solutions to environmental

issues especially in countries like India where a resourceful judiciary

enriched with judicial creativity and ingenuity can contribute to the

administration of environmental justice. Liberalisation of locus standi

and growth of PIL has contributed to guarantee access to justice to the

common man. A number of path breaking and landmark decisions are

made by our judiciary. But the solutions provided by those judgements

are not effectively implemented. The pollution of rivers like the Ganga,

the degradation of environment around us, growing air and water

pollution, depletion of our natural resources, drastic changes in the

climate due to global warming, reduction of forest coverage,

industrialisation at the cost of environment, unprecedented natural

calamities and industrial accidents and unanswered questions of

victims are the standing proof of the failure of implementation of

outstanding judicial decisions.

4.7. Feedback and reappraisal of the environmental problem

Even when a solution is properly implemented, it may not yield

expected results or address the environmental issues effectively. The

effectiveness of the solution can be assessed only by a proper

feedback from the affected and interested parties. At this juncture the

41
 concerned authority can take into account the different elements of

environmental justice like principle of equality in distribution of

environmental burdens and benefits, public participation in

environmental decision making, transparency, access to justice,

environmental education and awareness of the parties and the

availability of environmental information to assess the effectiveness of

the environmental solutions. If the assessment of the authority on the

basis of the feedback finds that the solution has failed to produce the

desired results then the process can be continued from the first step

with necessary modifications.

The model discussed above is an interdisciplinary one. The role of the

legal system in addressing the environmental issue has been stressed in the

model. The legal system for the administration of environmental justice can be

analysed with different perspective. The present study tries to analyse the

administration of environmental justice in India on the basis of the

environmental functions of different organs of the government.

5. Administration of Environmental Justice in India

The part played by the modern welfare state in the administration of

environmental justice is very vital for protecting and improving the

environment. The organs of the state play a crucial role in balancing the

interests of different stakeholders and protecting the environmental rights of

ordinary persons. For the purpose of an objective analysis of administration of

environmental justice in a particular country it is necessary to appraise the

42
legal framework of existent environmental laws. The role of the judiciary as

well as the administrative authorities, in carrying out the objectives of the legal

framework also had a profound influence upon the administration of

environmental justice. In consideration of the vital role of the legal framework

and the organs of the government in administration of environmental justice,

the study focuses on the analysis of administration of environmental justice

from the perspective of the role played by the different organs of the

government.

The scope of the study is the recognition, application and assessment

of the elements of administration of environmental justice in Indian

Environmental Legal System. So the three important areas for the effective

administration of environmental justice are the Environmental legal

framework, the role of Executive authorities and the administration of

environmental justice by the Judiciary.

5.1. Legal Framework for Administration of Environmental Justice.

Administration of environmental justice in any society depends

on the existing environmental legal system. The scope of the legal

system can be analysed with respect to the process of legislation,

fundamental laws of the land, basic concepts underlying the state,

Legislative enactments, Executive legislations, rules, regulations and

governmental policies. For an appraisal of the legal system with the

objective of assessing the administration of environmental justice in a

society it is essential to verify whether the legal system is capable of

43
 attaining its objectives by incorporating the elements of environmental

justice. It further requires an analysis of the environmental legal

documents to find the assimilation of the elements of environmental

justice in the environmental legal framework.

The Constitution of India and the judicial creativity in interpreting

the constitutional provisions laid the foundation of environmental justice

in India. The Right to Environment was recognised as a fundamental

right through judicial pronouncements. The role played by our Apex

Court and various high courts in elevating the right to live in a healthy

environment to the status of a fundamental right is one of the greatest

contributions of the judiciary to the Indian legal system. The Provisions

of environmental protection which were incorporated into the Directive

Principles of State Policy and Fundamental duties by the Constitution

42nd Amendment Act25 gave impetus to the administration of

environmental justice in India.

After the United Nations Conference on Human Environment in

1972 in Stockholm, a number of environmental legislations and policy

formulations were enacted in India. These legal instruments paved a

stepping stone for the development of environmental justice in India.

Various provisions in these documents provided for the administration

of environmental justice by incorporating the elements of environmental

justice. The focus of the third chapter of this study is to analyse these

provisions under our Constitution and the important environmental

legislations and policy documents.

25
Section 10 of The Constitution (Forty-second Amendment) Act, 1976, (w.e.f. 3-1-1977).

44
5.2. Administration of Environmental Justice by Administrative

Authorities

The realisation of the objectives of the legal framework is

possible only through an efficient and effective administrative

machinery. So for the realisation of the fruits of environmental justice it

is essential to implement the letter of law in society in a transparent

and accountable manner. The function of the administrative authorities

is to apply the general principles laid down before it by the legal

framework in concrete cases.

Environmental decision making is an important function

performed by the concerned administrative authorities. Administrative

authorities are also empowered with the discretionary power to take

individualised decisions. But the decisions should not be arbitrary. The

authorities should exercise their discretion in a judicious manner taking

into account relevant considerations. While exercising the discretionary

power it is necessary to take into account the different elements of

administration of environmental justice.

Another important aspect to be considered while exercising

environmental decision making is the application of the principles of

natural justice as and when required. The principles of natural justice

can be considered as an enabling concept of environmental justice.

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 The principles of natural justice also underlie the different elements of

environmental justice.

The generalised concept in the law derives its content only when

it is applied to the specific situations by the administrative authorities.

The scope and reach of the functions of administrative authorities is

very important for the administration of environmental justice in a

country, especially a vast and diversified nation like India. An appraisal

of the role of administrative authorities in the administration of

environmental justice has also been attempted in this study.

5.3. Role of Judiciary in Administration of Environmental Justice

In India the development of administration of environmental

justice is mainly indebted to judicial creativity and judicial wisdom. The

judiciary has played a commendable role in moulding the

environmental jurisprudence of our nation. Landmark decisions of our

Apex Court resulted in the application of the various elements of

environmental justice to concrete cases. Some of the important

principles of environmental jurisprudence like Polluter Pays Principle26,

Principle of Public Trust27, Sustainable Development28,

Intergenerational Equity29 and Absolute Liability Principle30 were

26
Supra note 7.
27
Id.
28
Id.
29
Id.
30
Id.

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 adopted and adapted by our judiciary to administer environmental

justice to the deserving members of the community.

As the protector and guardian of our Constitution, our Apex

Court has evolved many fundamental rights from Part III of our

Constitution. The role of our judiciary in recognising and developing our

right to a healthy environment as a fundamental right is unparalleled.

The Judiciary also played a crucial role in streamlining the

functions of administrative authorities and law making authorities

through judicial review. Judicial review by the courts, which is one of

the basic features of our Constitution acted as a means of enforcing

the various elements of the administration of environmental justice.

Another important contribution of the judiciary is the

development of Public Interest Litigation in environmental matters. The

liberalisation of locus standi has resulted in guaranteeing access to

justice to millions of deprived citizens of our country. Many landmark

decisions in protecting the interest of the ordinary people originated

from the public interest litigations initiated by public spirited citizens.

6. Conclusion

The conceptualisation of environmental justice is not an easy task,

taking into account the multi disciplinary and complex nature of environmental

problems. For the purpose of the present study the concept developed in US

has been adopted and the important dimensions and elements of

administration of environmental justice are discussed. The concept can be

47
discussed on different perspectives. But the scope of the paper is limited to

the distributive, procedural and remedial justice perspectives of administration

of environmental justice. A model for addressing an environmental issue from

environmental justice perspective is also provided. The relevance of the role

of the state and its organs in the administration of environmental justice has

been stressed and the present study is focussed on this perspective. A brief

analysis of environmental justice legal system in India is also attempted,

which will be discussed in detail in the succeeding chapters.

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