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The Evolution of Environmental Jurisprudence in India

Research · May 2018

DOI: 10.13140/RG.2.2.21029.45283

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 ENVIRONMENTAL LAW RESEARCH PAPER

The Evolution of India’s Environmental Jurisprudence and the Role of The Judiciary

ARJUN PAL

JINDAL GLOBAL LAW SCHOOL

The concept of environmental protection is not new and has been in existence from
prehistoric civilizations. Ancient India’s texts highlight that it is the ‘dharma’ of each
individual in the society to protect nature. “Atharva Veda”, the ancient Hindu Scriptures
stated “What of thee I dig out let that quickly grow over”. 1 Recently, there has been increased
focus on the role played by the higher and activist judiciary in creating and monitoring the
implementation of measures for pollution control, conservation of forests and wildlife
protection. Quite a lot of these legal and judicial interventions have been activated by the
persisting ambiguity in policymaking and in addition the absence of capacity building among
the executive offices. Devices like Public Interest Litigation (PIL) have been noticeably
depended upon to handle environmental issues, and this approach has its supporters and
additionally critics. 2 Preceding the 1980s, only the bothered/aggrieved party could directly
knock on the doors of justice and look for a solution for his/her grievance and for any other
individual who was not able to do so, as an intermediary for that casualty or the distressed
individual. Yet, around 1980, the Indian legal system, especially the field of environmental
law, experienced a massive change regarding disposing of its dying methodology and instead,
charting out new skylines of social justice. This period was described by legislative activism,
administrative activism as well as judicial activism.

Under Article 21of Indian Constitution, we have a right to live and breathe in a safe and non-
polluted environment. In fact, part IV of our constitution contains directive principles which
states that it is the duty of the state to protect the environment {Article 48-A and Article 51-A
(g)}. 3 Our constitution has given different rights to us in case there should be an occurrence
of their encroachment. A large number of us aren't able to exercise the remedies accessible to
us since the technique to avail those remedies is out of our reach and very costly and quite
complex. Therefore, the Supreme Court started Public Interest Litigations (litigations filed in
a court of law, for the protection of “Public Interest”) to guard us against such kinds of
infringements and entitle every citizen to file a petition for punishing such offenders. The

1
1. Mehta, M.C. (1999). Growth of environmental jurisprudence in India, pg.71.
2
Dr. Jai Jai Ram Upadhyay, ENVIRONMENTAL LAW, p.2, Allahabad: Central Law Agency, (2005).
3
“The State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country.”
The Amendment also inserted Part VI-A (Fundamental duty) in the Constitution, which reads as follows: “It shall be duty of
every citizen of India to protect and improve the natural environment including forests, lakes,, and wildlife and to have
compassion for living creature.”
Supreme Court of India has played an active role in reducing the increasing pollution levels
through PIL. PIL has proved to be an effective tool for the society.

Following the U.N. Conference on the Human Environment held at Stockholm, Sweden, in
1972 4, the Constitution of India was amended by the 42nd constitutional amendment and the
topic of “ecology and environment” was incorporated for the first time through articles 48A
and 51A(g). By incorporating article 48A in part IV of the Constitution, which contains the
directive principles of state policy, the state has been given the constitutional authority to
protect and improve the environment and to guard the forest and wildlife of the country.
Since the principles laid down in the part IV of the Constitution are crucial in the
administration of the country, therefore, it has become the constitutional/essential duty of the
state to deal with the matters relating to environment, forest and wildlife of the country. The
42nd constitutional amendment did not limit the constitutional obligation to protect and
improve environment only in the hands of the state but extended the obligation to the level of
the citizens also by incorporating article 51A (g) in a newly familiarized part, namely part IV-
A of the fundamental duties. This amendment is considered to be a revolution, as it was not
only unique in constitutional history showing concern for the environment and its protection,
but it also granted recognition to the Buddhist and Gandhian environmental ethics, as article
51A (g) made it a fundamental duty for all the citizens of India not only to protect and
improve the natural environment but also to have compassion for all living creatures. Another
significant aspect of articles 48A and 51A (g) in spite of the unenforceability in the court of
law of the provisions of part IV of the Constitution, articles 48A and 51A (g) are being
interpreted by the judiciary in such a way in the background of the “public trust doctrine”
that, the judiciary strikes down the governmental orders, decisions and legislations which are
discrepant with the provisions of these articles.

At present most environmental actions in India are brought under Articles 32 and 226 of the
Constitution. The writ procedure is mainly preferred over the conventional suit since it is
quick, relatively cheap and offers direct access to the highest courts of the country.
Regardless of this, PILs also have their own benefits. The powers of the Supreme Court to
issue directions under Article 32 and that of the high courts to issue orders under Article 226
have been of great importance in environmental litigation. Courts have made use of these
powers to remedy past mala-fides/loopholes and to check for immediate and future attacks on
the environment. The formulation of certain principles to develop a better system for
protecting the environment is a remarkable achievement. In the Bhopal Gas Tragedy case 5,
the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous
and inherently dangerous industries by explaining the scope of the power under Article 32 to
issue directions or orders which ever may be appropriate in their respective proceedings.
According to the Court, this power could be utilized for the creation of new
remedies/solutions and charting out new strategies.

The Supreme Court has through judicial activism expanded the scope of article 32 and is
utilizing it for carving out new strategies for protection of environment. For example, the
“Precautionary Principle “and “Polluter Pays Principle”, which are spin-offs of the
concept of sustainable development, are being applied by the courts in the context of
protection of environment by promoting article 32 in appropriate proceedings. Thus, in order

4
United Nations Conference on the Human Environment, by name Stockholm Conference, the first United
Nations (UN) conference that focused on international environmental issues.
5
Union Carbide Corporation vs Union Of India Etc on 4 May, 1989 (1990 AIR 273, 1989 SCC (2) 540)
to prevent degradation effect on the environment and the ecology the court has applied the
“Precautionary Principle” according to which the state and statutory authorities must
envisage and prevent all the causes of environmental degradation by taking appropriate
measures. Further, according to this principle it is always the liability of the industrialists to
show to the state authority that their industry will be environmentally safe and not harmful.
The “Polluter Pays” principle has already been utilized by the Supreme Court in several
cases in order to do justice to both the environment and the victims of environmental
pollution. According to this principle the remediation of the damaged environment is part of
the process of sustainable development and as such the polluter is liable to bear the cost of
reversing the damaged ecology as well as the cost of the sufferer. This philosophy of “public
trust” is present in our constitutional commitments and our judiciary is committed to
upholding the same.

Next, we proceed by examining some of the landmark cases where the device of PIL has
been extensively used in order to bring reforms in the environmental laws prevalent in India.
We start by looking at the famous case of Ratlam Municipal Council v. Vardichand 6. The
judgment of the Supreme Court in this case is a land mark in the history of judicial
activism in upholding the social justice component of the rule of law by fitting liability on
statutory authorities to discharge their legal obligation to the people in abating public
nuisance and making the environment free of pollution even if there is a budgetary
constraints. In this case, J. Krishna Iyer observed that, “social justice is due to and therefore
the people must be able to trigger off the jurisdiction vested for their benefit to any public
functioning.” Thus he recognized PIL as a Constitutional obligation of the courts.

Moving on, we come to the case of Peoples Union for Democratic Rights v. Union of
India 7. The outcome of this case was that the Supreme Court now permits Public Interest
Litigation or Social Interest Litigation at the instance of “Public spirited citizens” for the
enforcement of constitutional and legal rights of any person or group of persons who because
of their socially or economically disadvantaged position are unable to approach court for
relief. Public interest litigation is a part of the process of participate justice and standing in
civil litigation of that pattern must have liberal reception at the doors of justice.

Apart from these, we also look at another important case. This case is
Shriram Foods & Fertilizer Industries and Anr. v. Union of India and Ors. 8 In this case,
it was held by the Supreme Court that when there is manufacture and sale of hazardous
products then necessary steps should be taken for reducing hazard to workman and
community living in neighbourhood. There was leakage of Oleum gas from one of units of S
and as a result several persons were affected and it was alleged that one advocate practicing
in Court died. The leakage was from the caustic chlorine plant. There was prohibiting order
under the Factories Act under which the plants were not allowed to work till safety measures
were adopted. Certain Expert Committees was appointed to report in the matter. The reports
showed that the recommendations were systematized with and the possibility of risk or
hazard to the community had been considerably curtailed and it was also proposed that it was
diminished to nil. It was held that the pending contemplation of the issue whether the caustic
chlorine plant should be directed to be shifted and relocated at some other place; the caustic
chlorine plant should be allowed to be restarted by the management subject to certain strict
conditions, which were specified.
6
AIR 1980 SC 1622
7
1982 AIR 1473
8
AIR 1987 SC 1086
Next, we look at the landmark case of “Vellore Citizens' Welfare Forum vs. Union of
India 9”, the Supreme Court allowed standing to a public spirited social organization for
protecting the health of residents of Vellore on the basis of the PIL filed by them. In this case
the tanneries situated around river Palar in Vellore (T.N.) were found discharging toxic
chemicals in the river, thereby jeopardizing the health of the residents. Ultimately, it was held
by the Supreme Court that the tanneries concerned must shut their business and relocate
elsewhere. This court ruled that “precautionary principle” and the “polluter pays
principle” are part of the environmental law of the country. This court declared Articles 47,
48A and 51A (g) to be part of the constitutional mandate to protect and improve the
environment.

Next, we look at another important case which was filed in the aftermath of the Bhopal Gas
Tragedy and the Oleum leak case. This case is known as M.C. Mehta And Anr vs Union Of
India & Ors 10. The court in this case has clearly laid down that an enterprise which is
engaged in a hazardous or inherently dangerous industry which poses a potential threat to the
health and safety of the persons working in the factory and residing in the surrounding area,
owes an absolute and non-delegable duty to the community to ensure that no such harm
results to anyone on account of hazardous or inherently dangerous nature of the activity
which it has undertaken. The court directed that the enterprise must adopt highest standards
of safety measures and if any harm results on account of such activity, the enterprise must be
absolutely liable to compensate for such harm and it should be no answer to the enterprise to
say that it had taken all reasonable care and that the harm occurred without any negligence on
its part.

Apart from this, we look at the famous case of Narmada Bachao Andolan v. Union of
India and Ors 11. In this case, the Supreme Court of India upheld that “Water is the basic
need for the survival of human beings and is part of the right to life and human rights as
enshrined in Article 21 of the Constitution of India. “…And the right to healthy environment
and to sustainable development are fundamental human rights implicit in the right to life.”
Following this we look at another landmark case. This is the case called “Indian Council for
Envirolegal Action v. Union of India and and Others”. In this case, the main grievance in
the petition is that a notification dated 19.2.1991 declaring that coastal stretches as Coastal
Regulation Zones which regulates the activities in the said zones has not been implemented
or enforced. This has led to continued mortification of ecology in the said coastal areas. The
court observed that while economic development should not be allowed to take place at the
cost of ecology or by causing widespread environment destruction and violation, at the same
time, the necessity to preserve ecology and environment should not hamper economic and
other developments. Both development and environment must go side by side, in other
words, there should not be development at the cost of environment and vice versa, but there
should be development while taking due care and ensuring the protection of environment.

Lastly we look at another important case called M.C. Mehta vs. Union of India 12, wherein,
the Supreme Court held that air pollution in Delhi caused by vehicular emissions violates
right to life under Art. 21 and directed all commercial vehicles operating in Delhi to switch to
CNG fuel mode for safeguarding health of the people.
9
AIR 1996 SC 2715
10
AIR 1987 SC 1086
11
Ia No. 14 Of 1999 In Writ Petition (C) No. 319 Of 1994
12
AIR 2001 SC 1948
 After discussing the above cases, we can say judicial activism in respect of protection of
environment is notable. The Supreme Court is quite active and issued several directions and
different legal provisions for environmental protection through the application of public
Interest Litigation. The Supreme Court is constantly trying to filling the gaps which have
been left by the legislation. Through our judicial activism Supreme Court put forth many new
ideas for the protection of environment. These new innovations by the judicial activism open
the numerous approaches to help the country.

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