GUJARAT NATIONAL LAW UNIVERSITY

ENVIRONMENTAL LAW

RESEARCH ARTICLE: THE JUDICIAL SYSTEM’S POSITION

IN ENVIRONMENTAL PROTECTION

SUBMITTED BY: MARISHA DUBE

(20BAL053)

KARTIKEY KAUSHIK (20BBL019)

SUBMITTED TO: DR.

SAIRA GORI

ASSISTANT PROFESSOR OF LAW

GUJARAT NATIONAL LAW UNIVERSITY

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 DECLARATION

We, hereby, declare that the research article titled “THE JUDICIAL

SYSTEM’S POSITION IN ENVIRONMENTAL PROTECTION” is being submitted

by us in fulfilment of the academic requirements for the subject:
ENVIRONMENTAL LAW.

The matter embodied in this project report has not been submitted to any
other Institution or University for any award/degree. This information is
purely of academic interest. We may have discussed the project with
others and used advices and a suggestion from others in writing it, but
this project is our original work and is neither copied from any other
source without proper acknowledgement nor written for us by some other
person in whole or part.

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 ACKNOWLEDGEMENT

We owe our gratitude to Dr. Saira Gori (Assistant Prof. of Law at Gujarat
National Law University) for providing us an opportunity to do this research
article titled–THE JUDICIAL SYSTEM’S POSITION IN ENVIRONMENTAL

PROTECTION.

The insights by Dr. Saira Gori provided during the project work are
invaluable and the project would not have been possible without it. We are
thankful and fortunate enough to get constant support, encouragement and
guidance from all Faculty, which helped us in the completion of this project.

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 TABLE OF CONTENTS

1. ABSTRACT

2. INTRODUCTION

3. ENVIRONMENTAL PROTECTION

4. LEGISLATIVE EFFORTS TOWARDS CONSERVATION

5. ENVIRONMENTAL PROTECTION AND THE CONSTITUTION OF INDIA

6. JUDICIAL ACTIVISM TOWARDS ENVIRONMENTAL PROTECTION

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7. DOCTRINES AND PRINCIPLES EVOLVED BY THE COURTS

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8. INDIAN JUDICIARY’S ROLE IN DEVELOPMENT OF ENVIRONMENTAL

PROTECTION

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9. JUDICIAL REMEDIES FOR ENVIRONMENTAL PROTECTION

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10.CONCLUSION

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 THE JUDICIAL SYSTEM’S POSITION IN ENVIRONMENTAL
PROTECTION

ABSTRACT

Most countries’ policy developments toward effective environmental management and

conservation have benefited from international developments. The Stockholm
Conference is recognized as a watershed moment in history, as it prompted most
governments to pass legislation to protect the environment. This fact holds true for
India as well. However, India has always had its own set of constraints when it comes
to enforcing all laws with socioeconomic implications. Environmental rules also have
the impact of restricting development and economic activities, thus it has been a
challenge all along. This was hampered even more by the slow pace at which such
laws were developed. Following the Bhopal gas leak tragedy, India’s environmental
consciousness shifted in a number of ways. Following this tragedy, the Environment
Protection Act of 1986 was enacted, as well as a number of other statutes.

Despite all of the statutory changes, India’s conservation situation was not good. This
difficult responsibility was subsequently taken over by the country's activist judiciary,
which construed the constitution to include the right to a clean and healthy
environment. With the exception of Part III of the Constitution, the Indian judiciary
has positively interpreted many laws and promulgated several doctrines for the first
time. Apart from allowing for a more lenient interpretation of the legislation, such
activism also helped in implementation. Several industries were forced to close, and
many more were forced to relocate. Even the environmental clearance system was
pushed forward by the judiciary, which overturned multiple administration acts in
approving unsustainable projects. The purpose of this article is to assess the role of
the Indian court in the development and implementation of environmental protection
laws. The author establishes in this article that the judiciary has provided more than

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the other branches of government. In this sense, the authors also finds that judicial
activism has played a very good impact. For this, the authors examine pertinent
legislation provisions as well as significant judicial rulings on environmental issues.

INTRODUCTION

After the Stockholm Conference in 1972, there was an increased momentum towards
the implementation of legal measures for the purpose of environmental conservation.
By this juncture, it became evident that the act of disregarding the environment and
over exploiting resources had become untenable. It is justifiable to assert that
international forums have exerted a significant influence on environmental policy in a
majority of nations. This assertion holds particular relevance when considering the
context of India. During the 1970s, India implemented several environmental rules.
Nevertheless, prior to 1986, the absence of comprehensive legislation addressing
environmental protection resulted in an unfulfilled need for a comprehensive legal
framework in this domain. The recognition of this lesson appears to have been
acquired subsequent to the occurrence of the Bhopal gas disaster, and the intention
was to promptly rectify the existing legislative gap. Notwithstanding these endeavors,
the persistence of legislative inertia and inadequacy remained evident, and the
expansion of India's extensive body of environmental legislation would not have been
possible without the proactive engagement of the nation's court. The Supreme Court
of India has developed a substantial body of case law to protect people's fundamental
right to live in a safe environment that is supportive of their well-being. The Indian
people's procedural rights to file lawsuits against the government and its agencies for
environmental issues have been greatly expanded by the Supreme Court of India's
adoption of Public Interest Litigation.1

Following India's attainment of independence, the socioeconomic landscape was

characterized by a notable concentration of wealth among a privileged minority of
landlords, juxtaposed with a substantial population of destitute farmers. Property
reforms were implemented in subsequent years, as the state acquired excess privately

1
Bandhua Mukti Morcha v. Union of India, A.I.R 1984 S.C. 802 (India).

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owned property.2 The underlying rationale of public policy was predicated on the
notion that agricultural pursuits would serve as a means to alleviate individuals from
impoverished circumstances. The encroachment into public and community land
tended to acquire legitimacy as a consequence of this phenomenon, even if it
exhibited a bias towards the affluent in comparison to the less privileged.

ENVIRONMENTAL PROTECTION

The field of environmental law has emerged relatively recently within the realm of
global legal systems. Prior to the Stockholm summit, India had already acknowledged
the importance of integrating environmental considerations into its planning, as
evidenced by a note contained in its IV Five Year Plan (1969-74). According to the
IV plan document for harmonious development, there is an acknowledgment of the
interconnectedness between nature and humanity. The implementation of
comprehensive environmental evaluations is important in order to facilitate effective
strategic planning. There have been instances in which the incorporation of accurate
and timely environmental guidance could have facilitated the conceptualization and
implementation of projects, as well as the amelioration of adverse environmental
consequences leading to resource depletion. Consequently, it is imperative to
incorporate environmental issues into the process of planning and development. 3 A
national committee on environmental planning and coordination was established as a
high-level consultative body to the government. The aforementioned committee was
responsible for overseeing things pertaining to the environment.4

The recognition of the right to reside in a clean and healthy environment is not a
recent development by India's higher court. Since about a century ago, the legal
system, and notably the judiciary, has acknowledged the right. In modern
industrialized countries, the only distinguishing characteristic is the fundamental right
to live in a clean and healthy environment, and the Indian Constitution clearly forbids
2
“Empowering People for Sustainable Development”, 2001, Approach Paper to the Tenth Five Year
Plan (2002-07), Ministry of Environment and Forests 2002.
3
PARAS DIVAN AND PEEYUSHI DIVAN, ENVIRONMENTAL PROTECTION: ISSUES AND PROBLEMS (Vol. I
in Environment Administration Law and Judicial Attitude).
4
Vanangamudi, P, Approach of the supreme court to industrial relations and environmental protection
(2015), http://hdl.handle.net/10603/37611.

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any infringement of this right. In the latter part of the 1980s, both the Indian High
Court and Supreme Court recognized this specific right as a fundamental human right.
Before the 1980s, people had this entitlement, though not in the capacity of a
fundamental right. Instead, it was a privilege protected by the legal system under a
number of laws, including the Law of Torts, the Indian Penal Code, the Civil
Procedure Code, and the Criminal Procedure Code, among others. Environmental
rights are categorized as third-generation rights in modern legal discourse.

LEGISLATIVE EFFORTS TOWARDS CONSERVATION

The Indian Parliament has passed a number of environmental laws since

independence. The Water (Prevention and Control of Pollution) Act (hereafter
referred to as the Water Act) 5 was passed by the government in 1974 with the goal of
preventing and controlling water pollution as well as preserving and restoring water
wholesomeness. The Water Act was enacted to establish the Central and State
Pollution Control Boards with the purpose of regulating and supervising activities
related to the prevention, rehabilitation, and control of water pollution. The Boards are
accountable for conducting site investigations and gathering data regarding any
instances of non-compliance with any provisions outlined in the Water Act. The Air
Act, officially known as the Air (Prevention and Control of Pollution) Act, was
enacted by the Central Government in 1981 with the objective of addressing the
prevention, control, and mitigation of air pollution.6 Similar to the Water Act, the Air
Act established regulatory bodies at both the central and state levels, tasked with the
responsibility of monitoring and managing various facets of air quality enhancement.
In response to the Water and Air Acts, the President of India enacted the Environment
(Protection) Act, often known as the Environment Act, in 1986. This legislation was
introduced to fill the existing gaps in India's foundational body of environmental law.

5
The Water (Prevention and Control of Pollution) Act, 1974; the Environment (Protection) Act, 1986;
6
The Air (Prevention and Control of Pollution) Act, 1981, Purpose

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7
The Environment Act confers to the central government broad powers to undertake
necessary measures for the preservation and enhancement of environmental quality, as
well as the prevention, regulation, and mitigation of pollution. The collective body of
environmental legislation in India serves as a fundamental framework for both the
Indian populace and the judiciary to effectively implement and uphold environmental
restrictions. According to the Energy Information Administration, India's utilization
of fossil fuels currently contributes to approximately fourteen percent of the overall
global carbon dioxide emissions. It is projected that this figure will increase to
eighteen percent by the year 2025. Hence, it is imperative for India to address the
environmental consequences arising from its swift economic growth, given its
ongoing requirement for energy and crucial technologies.

ENVIRONMENTAL PROTECTION AND THE CONSTITUTION OF INDIA

The Constitution (Forty Second Amendment) Act, 1976, was the first time in Indian
history that the obligation for environmental preservation was imposed on the states.
The State shall endeavour to maintain and improve the environment, as well as the
country’s forest and wildlife, according to Article 48A. The Constitution was also
amended to include Part VI-A (Fundamental Duty), which reads as follows: “Every
citizen of India shall have the duty to safeguard and improve the natural environment,
including forests, lakes, and wildlife, and to have compassion for living creatures”.

Article 48-A, which includes a provision for environmental preservation and indicates
that a clean and healthy environment is now a mandate to state policy, was added by
the Forty-second Amendment. According to Article 48-A, the state must make every
effort to safeguard and improve the environment. Article 21, the Indian Constitution’s
most important fundamental rights article, states that no one’s life or personal liberty

7
The Environment (Protection) Act, 1986,

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can be taken away from them unless by following a legal procedure. The Court has
broadened the right to life to encompass protection from dangerous environmental
factors under this clause. Rural Litigation and Entitlement Kendra v. State of Uttar
Pradesh8 was a pivotal case in which the Supreme Court of India addressed questions
of environmental and ecological balance as a result of a limestone mining operation.
The Supreme Court ordered the quarries to be permanently closed in its decision. The
Court acknowledged that its decision would have significant financial implications for
the company, but stated that it is a price that must be paid to protect and preserve the
people's right to live in a healthy environment with minimal disruption of ecological
balance and without avoidable risk to themselves, their cattle, homes, and agricultural
land, as well as undue effect on air, water, and soil. Despite the fact that the Supreme
Court did not specifically mention Article 48-A or Article 21 of the Indian
Constitution, its decision was consistent with these fundamental environmental rights.
The Supreme Court stated in Sachidanand Pandey v. State of West Bengal9 that
whenever a matter of ecology is brought before the court, the court is required to have
in mind Article 48A and Article 51A(g).

JUDICIAL ACTIVISM TOWARDS ENVIRONMENTAL PROTECTION

In response to perceived bureaucratic shortcomings, India’s Supreme Court has taken

an assertive position on environmental law enforcement. The Court, on the other
hand, issues judgements and recommendations that are frequently too difficult to
implement, resulting in increased environmental enforcement confusion. Furthermore,
the Court overlooks the logistical challenges that come with putting their
environmental protection principles into action. The Court’s refusal to set a criteria for
acceptable pollution is most noteworthy; as a result, any degree of pollution may be
considered a violation. Furthermore, the Supreme Court continues to ignore existing
environmental legislation, instead forming its own committees and reporting systems.
Rather than taking an activist stance, the Court should support present environmental

8
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, A.I.R 1987 S.C. 1142.
9
Sachidanand Pandey v. State of West Bengal, A.I.R 1987 S.C. 1109.

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standards as well as government actors that enforce them. The consequences of such
activist acts are obvious: if the Court begins to produce legislation, it circumvents
democratic processes. By forming its own committees, the Court is conveying to the
public that committees established by legislation are ineffective and untrustworthy.
Furthermore, the Court’s criticism of the government’s and agencies’ activities erodes
public trust in administrative proceedings. Notwithstanding some condemnation of the
Supreme Court’s activist style, the Court’s commitment to environmental issues has
undoubtedly raised public and governmental understanding. In India, public interest
law is yet another crucial step toward constructive judicial activism. Through the
Indian legal system, it has been a major contributor to environmental protection
advances. The Supreme Court has taken measures to acknowledge that good health is
a fundamental right, as are conditions that support good health, such as clean air and
water, through Public Interest Litigation. Ultimately, the Court found that the need to
safeguard the environment is inferred from the preservation of basic rights through a
series of instances. The judiciary has contributed to the resolution of environmental
problems by dealing with cases involving the legitimacy of environmental clearance
issued to development projects. The Judiciary is the forum where the Authority’s
fairness in providing Environmental clearance to a project and its effect on the Public
Interest can be adjudicated is the Judiciary. It’s also about balancing long-term
development. The Indian judicial system has taken on the duty of filling up the holes
in the legal system. This also includes the judiciary’s activist role in environmental
protection.

DOCTRINE AND PRINCIPLES EVOLVED BY THE COURTS

The incorporation of court theories has made a substantial contribution to the

development of environmental jurisprudence in India. The process by which
judgments made at foreign conventions and conferences are integrated into the legal
framework of India is delineated in Article 253 of the Indian Constitution. The
development and implementation of environmental doctrines within the judicial

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proceedings represent crucial advancements in the progression of environmental law
in India.

 PUBLIC TRUST DOCTRINE

The legal system of India predominantly derives its foundations from the principles of
common law, with its jurisprudence encompassing the incorporation of the public
trust theory. The state assumes responsibility for the protection and management of
natural resources, ensuring their accessibility to the public for the purpose of
experiencing and appreciating nature, while prohibiting their conversion into private
ownership.

The state bears a legal responsibility to safeguard natural resources. In the case of
M.C. Mehta v. Kamal Nath, the Supreme Court of India employed this particular
strategy to address an environmental issue, marking a significant milestone in the
country's legal history.10 The public trust theory, as articulated by the Supreme Court,
posits that some resources, including but not limited to air, sea waters, and forests,
possess such immense value to society at large that their privatization would be
deemed wholly illogical.

 DOCTRINE OF SUSTAINABLE DEVELOPMENT

In contemporary times, the issue of pollution and environmental degradation has

emerged as a significant concern. The judiciary, being a fundamental social
institution, assumes a pivotal role in the resolution of this matter. The advancement of
a society is contingent upon the presence of both industrialization and financial
stability. Nevertheless, the notion of environmental preservation is fundamentally
incongruous with the process of industrialization. The reconciliation of two
10
M.C. Mehta v. Kamal Nath, A.I.R 2000 S.C. 1997 (India).

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conflicting interests is a crucial undertaking for a nation's judiciary. In various
pronouncements, the judiciary has emphasized that forcing firms to stop producing
will have detrimental effects for the country’s economic and social conditions. 11 The
potential consequences of unemployment and poverty on the nation include societal
degeneration and disintegration. In contrast, enterprises that engage in pollution pose
a significant threat to environmental equilibrium. Consequently, the judiciary reached
the determination that the imposition of a pollution threshold should be established in
accordance with the long-term sustainability of the environment.

The Supreme Court ruled in Vellore Citizens Welfare Forum v. Union of India12 that
the old belief that development and ecology are inherently incompatible is no longer
deemed acceptable within academic discourse. Instead, the concept of sustainable
development has emerged as a viable method to reconcile these seemingly opposing
forces. Sustainable development entails the fulfilment of current societal requirements
while safeguarding the ability of future generations to meet their own needs. The
concept of sustainable development aims to achieve a harmonious equilibrium
between ecological preservation and economic progress.

 POLLUTER PAYS PRINCIPLE

Nations engaged in the pursuit of industrial progress have encountered the formidable
challenge of effectively providing appropriate compensation to individuals affected by
pollution and environmental hazards. The concept of imposing liability on polluters
for the damages they inflict emerged during the early stages of European history, a
period marked by the proliferation of unprecedented levels of pollution.

In the case of M.C. Mehta v. Union of India, a petition was initiated in accordance
with Article 32 of the Indian Constitution, with the objective of seeking the cessation
of operations at a hazardous goods manufacturing facility. During the course of the
investigation, a number of individuals sustained injuries as a result of the leakage of
oleum gas emanating from the factory. The ruling holds great importance as it sets a
11
Ayesh Dias, ‘Judicial Activism in the Development and Enforcement of Environmental Law: Some
Comparative Insights from the Indian Experience’, Journal of Environmental Law (1994).
12
Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715.

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fundamental benchmark of responsibility for industries engaged in hazardous or
inherently risky endeavours.

 PRECAUTIONARY PRINCIPLE

The precautionary principle posits that in situations where an action or project carries
the potential to cause harm to the public or the environment, and the individual
responsible for said action possesses knowledge of this risk, and in the absence of
scientific measures the action or project is deemed harmful, the onus lies on those
undertaking the action to substantiate its lack of harm. The precautionary principle
asserts that in instances where scientific investigation identifies a potential risk, it is
incumbent upon society to take measures to protect the general public from any
potential harm. The relaxation of these precautions may be warranted if the individual
undertaking the action can demonstrate that there will be no adverse consequences
arising from their activities.

In the case of Vijayanagar Education Trust v. Karnataka State Pollution Control

Board, Karnataka, the Karnataka High Court acknowledged the inclusion of the
precautionary principle within the Constitutional mandate for the preservation and
enhancement of the environment.13 The court made reference to the Nayudu cases, 14
which established that in situations when there are ambiguous and significant risks,
the burden of proof falls upon the developer to demonstrate the harmless nature of the
project.

INDIAN JUDICIARY’S ROLE IN DEVELOPMENT OF ENVIRONMENTAL

13
Vijayanagar Education Trust v. Karnataka State Pollution Control Board, Karnataka, AIR 2002 Kant
123.
JURISPRUDENCE
14
Andhra Pradesh Pollution Control Board v. MV Nayudu, AIR 1999 SC 812.

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Professor Upendra Baxi, a prominent advocate of India's judicial activism, has
expressed the view that the "Supreme Court of India" often assumes the role of the
"Supreme Court for Indians." The Judiciary has played a significant role in bolstering
the constitutional rights by virtue of the authorities vested in it and its proactive
engagement. In addition, the Stockholm Conference on Human Environment, which
took place in 1972, played a significant role in enhancing India's environmental
legislative framework by serving as a stimulus for the passage of the 42nd
Constitutional Amendment Act of 1972. Article 51A (g) of the constitution puts some
environmental responsibilities upon citizens, whereas Article 48A places similar
obligations on the state.

The constitutional provisions of Article 51(A) (g) and 48A possess an enabling
character within the legal framework, rather than being inherently legally binding.
Nevertheless, Indian courts have often construed these clauses as having legal binding
force. Moreover, the judiciary has employed these clauses to substantiate and advance
a legally enforceable fundamental entitlement to the environment, within the purview
of Article 21's right to life. The Supreme Court mentioned various international laws
in the Asbestos Industries Case, 15 including the ILO Asbestos Convention of 1986,
the Universal Declaration of Human Rights of 1948, and the International
Convention on Economic, Social, and Cultural Rights of 1966.

The court in this particular instance addressed the issues pertaining to the
occupational health risks encountered by those employed in asbestos industry. The
court's decision established that the right to health of these workers is considered a
fundamental right as outlined in article 21. Furthermore, the court provided explicit
directives to the relevant authorities. According to the ruling of the High Court in
Calcutta Wetland Case16 it has been determined that India, as a signatory to the
Ramsar Convention on Wetlands of 1971, bears the responsibility of promoting the

JUDICIAL REMEDIES FOR ENVIRONMENT POLLUTION

conservation of wetlands.
15
Consumer Education and Research Centre v. Union of India, (1995) 3 S.C.C 42.
16
People United For Better Living In Calcutta v. East Kolkata Wetlands Management Authority, AIR
1993 Cal 215.

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In the context of environmental protection in India, two distinct categories of
remedies can be identified: tortious liability and statutory law remedies. The possible
tort remedies encompass trespass, nuisance, strict liability, and negligence. A citizen's
lawsuit refers to a legal action initiated by an individual, as outlined in Section 19 of
the Environmental (Protection) Act, 1986, Section 133 of the Criminal Procedure
Code, 1973, and Section 268 of the Indian Penal Code, 1860, which pertain to
environmental protection, criminal procedures, and public nuisance, respectively. In
the Indian legal system, it is possible to initiate a writ petition either in the Supreme
Court of India pursuant to Article 32 or in the High Court in accordance with Article
226.

CONCLUSION

Taking into account the aforementioned instances, it may be inferred that the Supreme
Court is presently expanding many legal laws pertaining to the environment. In
instances where there is a scarcity of legislation, the legal system endeavours to
address the resulting gaps in this manner. The recent advancements and innovations in
India, stemming from judicial activism, present a plethora of opportunities for
supporting the nation. In the Indian context, the judiciary demonstrates a heightened
awareness of the distinct nature of environmental rights, given the finite nature of
natural resources and their inability to be restored. There exist some recommendations
that warrant consideration.

The successful implementation of a legislation is contingent upon effective execution

and the dissemination of public awareness constitutes a vital prerequisite for such
implementation to be accomplished optimally. Consequently, it is imperative that
individuals possess awareness regarding the current circumstances. In the legal matter
of M.C. Mehta v. Union of India, the Supreme Court upheld the aforementioned
premise. In this instance, the Court mandated the Union Government to issue
directives to all state and union governments, requiring cinemas to exhibit a minimum

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of two slides or messages pertaining to the environment during each screening, as a
prerequisite for obtaining a license. Furthermore, the Indian Law Commission put out
a recommendation for the establishment of an Environmental Court in its 186th
Report. Therefore, it is imperative to enhance the authority of the judiciary through
the establishment of distinct environmental courts, wherein a competent judge is
designated to preside over cases pertaining to environmental matters and criminal
offenses related to the environment.

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