LEAD

Law
Environment and
Development
Journal

IMPLICATIONS OF INDIAN SUPREME COURT’S INNOVATIONS

FOR ENVIRONMENTAL JURISPRUDENCE

Geetanjoy Sahu

ARTICLE

VOLUME
4/1
 LEAD Journal (Law, Environment and Development Journal)
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 ARTICLE

IMPLICATIONS OF INDIAN SUPREME COURT’S INNOVATIONS

FOR ENVIRONMENTAL JURISPRUDENCE

Geetanjoy Sahu

This document can be cited as

Geetanjoy Sahu, ‘Implications of Indian Supreme Court’s Innovations for Environmental Jurisprudence’,
4/1 Law, Environment and Development Journal (2008), p. 1,
available at http://www.lead-journal.org/content/08001.pdf

Geetanjoy Sahu, Centre for Interdisciplinary Studies in Environment and Development, Institute for Social
and Economic Change, Nagarbhavi Post, Bangalore-560072, India, Email: [email protected]

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License

TABLE OF CONTENTS

1. Introduction 3

2. Procedural and Substantive Innovations and their Implications

for Environmental Jurisprudence 5
2.1 Concept of PIL 5
2.2 Expansion of Fundamental Right to Life 8
2.3 Spot Visit 9
2.4 Application of Environmental Principles and Doctrines 10
2.5 Expert Committee 11

3. Analysis of the innovations effected by the Court 13

3.1 Interference in the affairs of Executive Action 13
3.2 Implementation of Court Directions 17

4. Conclusion 19
 Law, Environment and Development Journal

1
application of innovative methods in the
environmental justice delivery system.4

The enhanced role of the Court is not unique to

INTRODUCTION cases of environmental jurisprudence in India. In
fact, its role has become crucial and significant in
Since the last two decades, the Supreme Court of every sphere of governance which includes:
India has been actively engaged, in many respects, prisoners’ rights, child labour, inmates of various
in the protection of environment. While asylums, ensuring the rights of the poor to education,
conventionally the executive and the legislature play to shelter and other essential amenities, sexual
the major role in the governance process, the Indian harassment of women at working place, preventing
experience, particularly in the context of corruption in public offices, accountability of public
environmental issues, is that the Court1 has begun servants, and utilisation of public funds for
to play a significant role in resolving environmental development activities. 5 The reasons for the
disputes. Although it is not unusual for Courts in increasing concern of Court in governance arenas
the Western democracies to play an active role in are varied and complex but one major factor has been
the protection of environment, the way Indian failure of implementing agencies to discharge their
Supreme Court has been engaged since 1980s in Constitutional and Statutory duties. 6 This has
interpreting and introducing new changes in the prompted civil society groups and the people to
environmental jurisprudence is unique in itself. approach the Courts, particularly the Supreme
Besides the assigned role of interpretation and Court, for suitable remedies. Interestingly, the Court
adjudication2 of environmental law the Court has has also responded in a pro-active manner to address
laid down new principles to protect the different governance problems.7
environment, reinterpreted environmental laws,
created new institutions and structures, and The increasing intervention of Court in
conferred additional powers on the existing ones environmental governance, however, is being seen
through a series of illuminating directions and as a part of the pro-active role of the Supreme Court
judgments. The Court’s directions on environmental in the form of continual creation of successive
issues is involved not just in general questions of law- strategies to uphold rule of law, enforce fundamental
as is usually expected from the Court of the land- rights of the citizens and constitutional propriety
but also in the technical details of many aimed at the protection and improvement of
environmental cases. Indeed, some critics of Supreme environment. Unlike other litigations, the frequency
Court describe the Court as the ‘Lords of Green and different types of orders/directions passed
Bench’ or ‘Garbage Supervisor’.3 International legal periodically by the Supreme Court in environmental
experts have been unequivocal in terming the Indian litigation and its continuous engagement with
Courts of law as pioneer, both in terms of laying
down new principles of law and also in the
4 See G. L. Peiris, ‘Public Interest Litigation in the Indian
Subcontinent: Current Dimensions’, 40 (1) International
and Comparative Law Quarterly 66 (1991). See also M.R.
Anderson, ‘Individual Rights to Environmental Protection
in India’, in A. E. Boyle and M.R. Anderson eds., Human
1 All instances of the term ‘the Court’ refer to the Supreme Rights Approaches to Environmental Protection 1 (United
Court of India. Kingdom: Oxford University Press, 1998).
2 Speaking constitutionally, the role of the Supreme Court 5 Prashant Bhushan, ‘Supreme Court and PIL’, 39(18)
as proclaimed under Article 141 of the constitution of Economic and Political Weekly 1770 (2004).
India is to ‘declare’ the law that shall be binding on all 6 Upendra Baxi, ‘Environmental Law: Limitations and
courts in India. As such, it does not envisage interaction, Potentials for Liberation’, in J. Bandyopadhyay et al.
much less a direct dialogue, with the executive (eds), India’s Environment: Crises and Responses
government of the day. (Dehradun: Natraj Publishers Pvt. Limited 1985).
3 See S.S. Prakash and P.V.N. Sarma, ‘Environment 7 See S.P. Sathe, ‘Post Emergency Judicial Activism: Liberty
Protection vis-a-vis Judicial Activism’, 2 Supreme Court and Good Governance’, 10(4) Journal of Indian School of
Journal 56 (1998). Political Economy 603 (1998).

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 Supreme Court’s Innovations for Environmental Jurisprudence: India

environmental issues has evolved a series of initiated in resolving environmental litigation,

innovative methods 8 in environmental however, have been almost entirely dominating the
jurisprudence. A number of distinctive innovative environmental jurisprudence process for more than
methods are identifiable, each of which is novel and the last twenty years.
in some cases contrary to the traditional legalistic
understanding of the judicial function. 9 These The innovative methods in environmental
innovative methods, for instance, include jurisprudence, however, have both procedural and
entertaining petitions on behalf of the affected party substantive characteristics. Procedural innovations
and inanimate objects, taking suo motu action against refer to those judicial initiatives that expand the
the polluter, expanding the sphere of litigation, existing procedure of environmental jurisprudence
expanding the meaning of existing Constitutional for environmental protection and improvement. For
provisions, applying international environmental example, entertaining petition on behalf of the
principles to domestic environmental problems, pollution victim and inanimate objects, expanding
appointing expert committee to give inputs and the sphere of litigation, encouraging petitioners for
monitoring implementation of judicial decisions, bringing environmental litigations to the Court,
making spot visit to assess the environmental making spot visit, appointing expert committees, and
problem at the ground level, appointing amicus curiae appointing amicus curiae to represent environment
to speak on behalf of the environment, and and pollution victims. On the contrary, substantive
encouraging petitioners and lawyers to draw the innovations however are in contrast to procedural
attention of Court about environmental problems innovations. Substantive innovations are decisions
through cash award. It is important to note that these in which the Court creates, defines, or rejects policy
judicial innovations have become part of the larger and governance structure for environmental
Indian jurisprudence ever since the Court has started protection and determines how its directions should
intervening in the affairs of executive in the post- be implemented. For example, application of new
emergency period. 10 The innovative methods principles to address environmental problems,
expansion of fundamental rights, and creation of new
8 M. K. Ramesh, ‘Environmental Justice: Courts and Beyond’, structures and implementation of Court orders for
3(1) Indian Journal of Environmental law 20 (2002). environmental protection through a continuing
9 See Jamie Cassels, ‘Judicial Activism and Public Interest mandamus.
Litigation in India: Attempting the Impossible?’, 37(3) The
American Journal of Comparative Law 495 (1989). The categorisation of judicial innovations into
10 See Gobind Das, ‘The Supreme Court: An Overview’, in
B.N. Kripal et al. (eds), Supreme But Not Infallible (New
procedural and substantive, however, are neither
Delhi: Oxford University Press, 2001). The author argues water-tight nor mutually exclusive. Quite possibly
that the Indian Supreme Court had always been substantive innovations could also provide scope for
uncomfortable with former Prime Minister of India, Mrs. procedural innovations in environmental
Indira Gandhi’s regime; during the late sixties her economic jurisprudence. For example, the expansion of
and political policies were struck down in the Bank
Nationalisation and Privy Purse cases; in the early seventies
fundamental right to include right to healthy
the Court was locked in the Kesavananda battle and again environment is also possible through application of
in her election cases; when the Court supported her environmental principle like polluters pay principle
emergency in the Shukla case and Detenu case it was in which case the Court may ask the polluter to pay
execrated by public opinion; and during the Janata rule for the damage done to the environment and public
the Court was confirming legal attempts for her political
thereby ensuring people’s right to healthy environment.
extinction in the Special Courts Bill and Assembly
Dissolution cases. Whenever the Court opposed her More precisely, the objectives of procedural and substantive
policies it had to pay the penalty in the form of innovations for environmental jurisprudence have
suppressions of judges and constitutional amendments. In often been quite complex, thereby making such
the post-emergency period (1975-77), the Court decided categorisation rather difficult. Nevertheless, these
not to interfere with the major political and economic distinctions are useful in identifying patterns in the
decisions of government and opened up new fields of
interest and different areas of judicial activities; it chose
Court’s innovations for environmental
the poor, the helpless, the oppressed in the name of social jurisprudence. The following section gives a brief
justice, constitutional conscience, and the rule of law. summary of the key innovations in each category.

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2
concept PIL, Criminal Law provisions as contained
in the Indian Penal Code, Civil Law remedies under
the law of Torts and provisions of the Criminal
Procedure Code were existed to provide remedies
PROCEDURAL AND SUBSTANTIVE for public nuisance cases including air, water and
INNOVATIONS AND THEIR IMPLICA- noise pollution. However, due to lack of people’s
TIONS FOR ENVIRONMENTAL awareness about the environmental problems and
JURISPRUDENCE limited knowledge of environmental laws there were
problems in drawing the attention of the Court
towards environmental problems. Again, there was
2.1 Concept of PIL
no provision in the environmental legal framework
for allowing the third party to seek the help of the
The most important procedural innovation for
Court if the party was not directly affected by
environmental jurisprudence has been the relaxation
environmental problems. 12 Hence, the biggest
of traditional process of standing in the Court and
hurdle in the path of litigation for environmental
introducing the concept of Public Interest Litigation
justice had been the traditional concept of locus
(PIL).11 Until the early 1970s, litigation in India was
standi. Earlier when the third party approached the
in its rudimentary form because it was seen as a
appellate Court for seeking relief against an injury
pursuit for the vindication of private vested interests.
they did not incur directly, the action was not
During this time period, initiation and continuance
maintainable as the appellate Court focused its
of litigation was prerogative only to the individual
attention on the identity of the petitioner rather than
aggrieved party. A complete change in the scenario
the subject of petition. 13 But now the Court’s
in the 1980s with efforts taken by Justice P.N.
approach has changed and it has been ruled that any
Bhagwati and Justice V.R. Krishna Iyer was marked
member of the public having sufficient interest, may
by attempts to bring wider issues affecting the
be allowed to initiate the legal process in order to
general public at large within the ambit. The ambit
assert diffused and meta-individual rights. Generally,
and extent of PIL were expanded in 1980s from the
in environmental litigation, the parties affected by
initial prisoner rights concerns, to others like bonded
pollution are a large, diffused and unidentified mass
labour, child labour, inmates of various asylums,
of people. Therefore, the question arises as to who
ensuring the rights of the poor to education, to
ought to bring such cases to the Court’s notice where
shelter and other essential amenities, sexual
no personal injury, in particular, has been noticed.
harassment of women at working place, preventing
In such situations, the Court has emphasised that
corruption in public offices, accountability of public
any member of the public having sufficient interest
servants, and utilisation of public funds for
may be allowed to initiate the legal process in order
development activities.
to assert diffused and meta-individual rights in
environmental problems.14
The Court’s approach to entertain PIL for
environmental protection, however, is significant in
A number of cases on environmental issues have
many ways. First, prior to the emergence of the
been initiated through PIL. Beginning with the
Dehradun lime stone quarrying case15 in 1983,
11 In the Indian context, some of the legal scholars prefer
the expression ‘Social Action Litigation’ to ‘Public
Interest Litigation’, as this tool for justice to protect basic 12 See Atiyah Curmally, ‘Environmental Governance and
rights of individuals and communities has, through Regulation in India’ 96 (New Delhi: Indian Infrastructure
innovations of higher Court in India, for greater positive Report, 2002).
impacts on the social lives of the people in India than the 13 See Peiris, note 4 above at 68.
United States, where the PIL movement took roots. For 14 RLEK v. State of Uttar Pradesh and Others, Supreme Court of
more details, see Upendra Baxi, ‘Taking Suffering India, Judgement of 19 December 1996, AIR 1985 SC 652.
Seriously: Social Action Litigation in the Supreme Court 15 The Dehradun lime stone quarries litigation filed by the
of India’, in Tiruchelvam and Coomaraswamy eds., The Rural Litigation and Entitlement Kendra in 1983 was the
Role of the Court in Plural Societies, (New York: St. first PIL on environmental issue in the country before
Martin’s Press, 1987). the Supreme Court.

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 Supreme Court’s Innovations for Environmental Jurisprudence: India

followed by the Ganga Water Pollution case, Delhi case from a matter of ceasing illegal operations in
Vehicular Pollution case, Oleum Gas Leak case, Tehri one forest into a reformation of the entire country’s
Dam case, Narmada Dam case, Coastal Management forest policy.
case, industrial pollution in Patancheru, and T.N.
Godavarman case, all of them came to Court’s The positive impact of Court’s approach to
attention through PIL. These cases have been initiated environmental litigations through third party
by Non-Governmental Organisations (NGOs), and representation has been such that it has dramatically
environmental activists on behalf of other individuals transformed the form and substance of
and groups or public at large, to ensure the environmental jurisprudence in India. Recourse to
implementation of statutory acts and constitutional judicial proceedings is a costly exercise for those who
provisions aimed at the protection of environment suffer substantial injuries from environmental
and enforcement of fundamental rights. It has been pollution. Even if the aggrieved party takes recourse
found from Indian Supreme Court Case reports that to judicial proceedings, the Court may only settle
out of 104 environmental cases16 from 1980-2000 in disputes between the appellant party and the
the Supreme Court of India, 54 were filed by polluter, and the rights of other aggrieved persons
individuals who were not directly the affected parties remain unsettled. Judicial remedies for
and 28 were filed by NGOs on behalf of the affected environmental maladies would have effective results
parties. This suggests that the instrument of PIL has only if the remedies benefit those who are not parties
provided an opportunity to the third party to to the litigation. By entertaining petitions on behalf
represent on behalf of the affected people and the of poor and disadvantaged sections of the society,
environment itself. from different NGOs and public-spirited people, the
Court has attempted to ensure the rights of people
The Court has also shown a willingness to alter the in terms of deciding compensation and providing
rules of the game wherever necessary to entertain other remedies to the affected people.
environmental cases. For example, where there are
a wide variety of offenders, the Court has chosen to Allowing third party to bring environmental
treat a particular case as a rep-resentative action and problems to Court’s notice has also an important
issued orders binding on the entire class. In one case bearing on inanimate objects, which cannot represent
concerning massive pollution of the river Ganga, the itself in the litigation process. The voice of the
Court has published notices in the newspaper inanimate objects has been represented by concerned
drawing the litigation to the at-tention of all NGOs and environmental activists through the
concerned industries and municipal authorities instrument of PIL. The polluter has been asked to
inviting them to enter an appearance.17 In this case, pay for the damage done to the natural objects and
the petition was filed against the Kanpur tanneries restore the environment to its natural position.19
and Kanpur Municipal Council to stop polluting the
river Ganga. The Court, however, asked all the Notwithstanding the above progressive implications
industrialists and the Municipal Corporations and of the concept PIL for environmental jurisprudence,
the town Municipal Councils having jurisdiction certain practical difficulties and constraints have
over the areas through which the river flows in India, emerged in recent years from judicial entertainment
to appear before the Court. Similarly, in 1995, T.N. of PILs dealing with environmental cases. A close
Godavarman Thirumulpad filed a writ petition with look at the history of environmental cases suggests
the Supreme Court of India to protect the Nilgiris that with the liberalisation of the locus standi
forest land from deforestation by illegal timber principle, there has been a flurry of PILs on
operations.18 The Court expanded the Godavarman environmental issues.20 Taking advantage of the

16 The information is based on the All India Reporter from 19 Indian Council for Enviro-Legal Action v. Union of India
January 1980 till December 2000, Supreme Court Cases. (Bichhri village industrial pollution case), Supreme Court of
17 M.C. Mehta v. Union of India, Supreme Court of India, India, Judgement of 13 February 1996, 1996 (3) SCC 212.
Judgement of 22 September 1987, AIR 1988 SC 1037. 20 For more details, see Jona Razzaqhue, Public Interest
18 T. N. Godavarman v. Union of India, Supreme Court of Environmental Litigation in India, Pakistan and
India, Judgement of 12 December 1996, AIR 1997 SC 1228. Bangladesh (Hague: Kluwer Law International, 2004).

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Court’s lack of expertise on observation of In addition to this, what was considered as an

technicalities, PILs are being filed with little or no inexpensive and expeditious mode of redressal has
preparation. 21 Actions are initiated by filing sometimes taken more than a decade to get settled.
complaints without proper evidentiary materials to The Godavarman case is a classic example of the
support them. Expectations are that once a petition Court being seized of the problem for over a decade
is filed, the Court would do the rest. But, the heart and its final resolution is a long way in coming. The
of the matter is that most of the time, energy and case that began its life in 1996, as a petition seeking
resources of the Court are getting diverted for getting the intervention of the Supreme Court for the
information on multi-dimensional aspects of protection of Nilgiris forest land from deforestation
environmental problems, so much so that the justice by illegal timber operations, has grown into a case
delivery system is under great stress and the cracks of mammoth proportions and has mired in
in it are becoming visible. The Court has shown its controversies of interfering in administrative
annoyance at taking every conceivable public functions and traditional method of forest
interest issue to its jurisdiction when compliance management and lack of attention in recognising the
with the orders made at the local level, in most of rights of forest dwellers.
the cases, would have prevented the flurry of
litigation at the highest level. As early as in 1980, in Another immediate concern is the inconsistent
the Ratlam Municipal Council case,22 the Court approach of the Court in entertaining and rejecting
upholding the orders of the Sub-Divisional PILs. The judicial restraint towards environmental
Magistrate, expressed that had the Municipal litigations, especially challenging infrastructure
Council spent half of its litigative zeal of rushing projects, offers a well illustration in this context. In
from lowest to the highest Court, in cleaning up the such nature of litigations, the Court has not only
streets and complied with the orders issued at the rejected PILs but has also made gratuitous and
local level, the civic problems would have been unmerited remarks regarding abuse of PIL. For
solved a long time back. instance, in the Narmada Bachao Andolan v. Union
of India case,24 the Court did not allow Narmada
Apart from this, the idea behind introducing PIL has Bachao Andolan from making any submissions on
been to address public interest. But there are certain the pros and cons of large dams. Despite the
alarming and emerging trends. One of the most dissenting judgment of Justice S.P. Bharucha, who
significant ones is that of the PIL method becoming pointed out that the Sardar Sarovar Project was
personalised, individualistic and attention-seeking. proceeding without a comprehensive environmental
There are instances of their identification with the appraisal, majority of the successive judges allowed
personality of a judge or a litigant.23 It becomes a the government to construct the dam without any
travesty of justice when the outcome of the case comprehensive environmental impact assessment,
depends on the judge before whom it gets posted. which was necessary even according to the
No doubt the personality of the judge and the litigant, government’s own rules and notifications. The
and their deep commitment to social justice and protection majority judgment observed that a conditional
of the environment have contributed, in a major way, clearance given in 1987 was challenged in 1994 and
to the evolution of the jurisprudence on the subject. stated that the pleas relating to height of the dam
But, without such concern and commitment, the and the extent of submergence, environment studies
system gets influenced by different whims and fancies and clearance, hydrology, seismicity and other
that may hurdle the justice delivery system. issues, except implementation of relief and
rehabilitation, cannot be permitted to be raised at
this belated stage.25
21 See Ramesh, note 8 above at 32.
22 Ratlam Municipality v. Vardhichand and Others, Supreme
Court of India, Judgement of 29 July 1980, AIR 1980 SC 1622.
23 See Shyam Divan, Cleaning the Ganga, 30(26) Economic 24 Narmada Bachao Andolan v. Union of India and Others,
and Political Weekly 1557 (1995). In this article, the activist Supreme Court of India, Judgement of 18 October 2000,
role played by Justice Kuldip Singh & Advocate M.C. AIR 2000 SC 3753.
Mehta in Ganga pollution and other cases finds mention. 25 Id at 3761.

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 Supreme Court’s Innovations for Environmental Jurisprudence: India

The subordination of environmental interests to the 25-28), cultural and educational rights (Articles 29-
cause of development was also evident in Supreme 31) and right to Constitutional remedies (Article 32).
Court’s judgment in the PILs challenging the There are four Constitutional provisions that are
construction of Tehri Dam and the construction of directly relevant to protect the fundamental rights
power plant at Dahanu Taluka in Maharashtra, of citizens. Under Article 13, the Court is granted
where the government’s own expert committee had power to judicially review legislation, so that the
given an elaborate report pointing out a series of laws inconsistent with the fundamental rights may
violations of the conditions on which environmental be held void. In addition, Article 32 confers on every
clearance to the projects had been given by the citizen the Court’s original jurisdiction for the
Ministry of Environment and Forests. In such nature enforcement of his or her fundamental rights.
of environmental litigations challenging Through this provision, individuals can approach
infrastructure projects, the Court held that in case the Court to seek the protection of their
of conflicting claims relating to the need and the fundamental rights. Article 32 and 226 of the Indian
utility of any development project, the conflict had Constitution grant wide remedial powers to the
to be resolved by the executive and not by the Supreme Court and High Courts of each Indian State
Courts.26 in Constitutional cases. Under Article 136, the
Supreme Court has discretionary power to grant
The Court even held that if a project is stayed on special leave to appeal from any judicial order,
account of a public interest petition which is judgment, or decree in the land thereby providing
subsequently dismissed, the petitioner should be another route for judicial review.
made liable to pay for the damages occasioned by
the delay in the project. In the words of the Court, The earliest understanding of these provisions had
‘any interim order which stops the project from been a narrow procedural one where fundamental
proceeding further must reimburse all the cost to rights and other Constitutional provisions were
the public in case ultimately the litigation started interpreted as procedure established by law. 28
by such an individual or body fails’.27 Unlike the Moreover, inconvenient Court decisions on the
use of discretionary power in entertaining PILs on Constitutionality of state action were simply
environmental cases in 1980s, the Court maintained overturned by amending the Constitution until the
a distance with regard to cases against public ‘basic structure’ of the Constitution was declared
infrastructure projects since 1990s. The inconsistent unalterable. 29 In 1978 the Court breathed
approach of the Court has become a serious concern substan-tive life into Article 21 by subjecting state
among the public spirited persons who see the Court action interfering with life or liberty to a test of
as the last resort to protect the environment. reasonableness; requiring not only that the
procedures be authorised by law, but that they are
2.2 Expansion of Fundamental ‘right, just and fair’.30
Right to Life
An account of the interpretation of right to
The six fundamental rights of Indian citizens are environment as a part of fundamental right to life
specified in Arti-cles 14-32 of the Indian Constitution would illustrate the efforts of Court to expand the
such as right to equality (Articles 14-18), right to scope of existing fundamental right to life. For
freedom (Articles 19-22), right against exploitation instance, in the Ratlam Municipal case, the Court
(Articles 23-24), right to freedom of religion (Articles has upheld that public nuisance is a challenge to the
social justice component of the rule of law. Decency

26 For a comprehensive analysis on the approach of Court

towards infrastructure projects, see Videh Upadhyay, 28 A.K. Gopalan v. Union of India, Supreme Court of India,
‘Changing Judicial Power’, 35(43&44) Economic and Judgement of 19 May 1950, AIR 1950 SC 27.
Political Weekly 3789 (2000). 29 Kesavananda Bharti v. Union of India, Supreme Court of
27 Ranauk International v. IVR Construction LTD. and India, Judgement of 24 April 1973, AIR 1973 SC 1461.
Others, Supreme Court of India, Judgement of 9 30 Maneka Gandhi v. Union of India, Supreme Court of
December 1998, 1998 (6) SCALE 456. India, Judgement of 25 January 1978, AIR 1978 SC 597.

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 Law, Environment and Development Journal

and dignity are non-negotiable facets of human rights Brazil and Ecuador.35 Importantly, Indian experience
and are a first charge on local self-governing bodies.31 contrasts very significantly form these countries.
Likewise, in the Dehradun Lime Stone Quarrying There is no direct articulation of the right to
case, the Court has made it clear that economic environment anywhere in the Constitution or, for
growth cannot be achieved at the cost of that matter, in any of the laws concerning
environmental destruction and peoples’ right to environmental management in India. But this has
healthy environment. In the Doon Valley case, been seized from below, by environmental groups,
concerning mining environment, the Court has motivating the Court to find and construct
interpreted Article 21 to include the right to live in environmental rights from the available legal
healthy environment with minimum disturbance of material. What the Court has achieved since 1980,
ecological balance and without avoidable hazard to is to view the fundamental right to life to include
them and to their cattle, house and agricultural land different strands of environmental rights that are at
and undue affection of air, water and environment.32 once individual and collective in character.
This exercise has been further emphasised in the However, the expansion of fundamental right by
Ganga water pollution case by Justice the Court recognising right to environment as a part
Venkataramiah, who has extended the right to life of right to life has neither been statutorily established
to include the right to defend the human nor has it been recognised in national environmental
environment for the present and future generation.33 policy programmes.
In M.C. Mehta v. Union of India,34 the Court has
accepted that environmental pollution and industrial 2.3 Spot Visit
hazards are not only potential civil torts, but also
violation of right to health. In this way, through the Another important procedural innovation of the
interpretation of Article 21, the Court has sought Court in resolving environmental dispute has been
to convert formal guarantees into positive human found in judges’ personal interest to have first-hand
rights. information through spot visit to understand the
nature of environmental problem and the issues
The above Court’s interpretations in expanding the revolving around it. In the Ratlam Municipal v.
meaning of right to life have brought new dimensions Vardhichand case,36 before arriving at a decision,
not only in the environmental jurisprudence but also Justice V.R. Krishna Iyer37 visited the Ratlam town
in the discourse on human rights in India. The credit and assessed the problem and then directed the
for the creation of a host of environmental rights and Ratlam Municipality to take appropriate measures
enforcing them as fundamental rights goes to the to construct proper drainage system in the city.
Supreme Court of India. This is a significant Similarly, in the Doon Valley case, Justice P.N.
contribution for environmental jurisprudence in Bhagwati 38 visited the area and found that the
India, if one learns from experiences elsewhere. The environmental litigation involved certain complex
legal system may guarantee a Constitutional right to issues including the rights of the workers, traders and
environment and statutes may accord the right to
participate in environmental protection for citizens. 35 Article 45, Article 66, Article 335 and Article 19 (2) of the
However, when no methods for their participation respective countries such as Spain, Portugal, Brazil and
are made available, then they are as good as non- Ecuador contain specific provision for the enjoyment of
existent. This is the experience in Spain, Portugal, fundamental right to live in a healthy environment but
no substantive methods exist for their protection. See S
Douglas-Scott, ‘Environmental Rights in the European
Union-Participatory Democracy or Democratic Deficit’
in A. E. Boyle and M.R. Anderson eds., Human Rights
31 See Ratlam Municipality, note 22 above at 1629. Approaches to Environmental Protection 109 (United
32 See RLEK, note 14 above at 656. Kingdom: Oxford University Press, 1998)
33 See M.C. Mehta, note 17 above at 1045. 36 See Ratlam Municipality, note 22 above at 1622.
34 In this case, the Court declined to determine whether or 37 Interview with Justice V. R. Krishna Iyer, Cochin, 21
not the defendant in this case was sufficiently under August 2005.
government control to be an authority and therefore 38 Interview with Justice P.N. Bhagwati, New Delhi, 23
susceptible to constitutional control. September 2005.

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 Supreme Court’s Innovations for Environmental Jurisprudence: India

fragile ecology of the area. He then appointed an its concern to protect the environment from further
independent committee to assess the problem and degradation and improve the same. It is important
based on the recommendation of the committee, the to note that these principles have been developed in
Court directed the state government of Uttar Pradesh various international agreements and conferences to
to close down certain mining units which were control and prevent further environmental
illegally operating and allowed other mining units degradation.
to operate only with certain conditions to ensure the
protection of environment. In the Narmada Dam Drawing inference from international
case, the visit of Justice S.P. Bharucha to the dam site environmental principles, the Court of India has
also made a difference in the outcome of the case. In applied various principles to resolve domestic
his dissent judgment, Justice S.P. Bharucha expressed environmental problems. For example, the Polluter
dissatisfaction with the rehabilitation process and the Pays Principle was invoked by the Court of India in
way environmental clearance was given to construct the Indian Council for Enviro-Legal Action v. Union
the dam in the river valley.39 of India. Giving the judgment, the Judges held that
‘we are of the opinion that any principle evolved in
The spot visit of judges has enabled them to assess this behalf should be simple, practical and suited to
the environmental problem on the ground and hence the conditions obtaining in this country. Once the
the decisions given by these judges have made a activity carried on is hazardous or inherently
difference in the outcome of the case. However, most dangerous, the polluter carrying on such activity is
of the judges share the view that it is neither feasible liable to make good the loss caused to any other
nor possible for them to make spot visit to arrive at affected party by polluter’s activity irrespective of
a decision always. Therefore, the innovative method the fact whether the polluter took reasonable care
to arrive at a decision through spot visit has become while carrying on his activity’.43 In this case, the
part of individual interest of judges rather than a Court has stated that the ‘Polluter Pays Principle’
standard practice in the decision-making process. means that the absolute liability for harm to the
environment extends not only to compensate the
2.4 Application of Environmental victims of the pollution but also the cost of restoring
Principles and Doctrines the environmental degradation. Subsequently,
‘Polluter Pays Principle’ as interpreted by the Court
The Court of India, while administering has been recognised as a fundamental objective of
environmental justice, has evolved certain principles government policy to prevent and control
and doctrines within and at times outside the pollution.44
framework of the existing environmental law.
Environmental principles, such as polluter pays The precautionary principle, as applied by the Court
principle,40 precautionary principle41 and public in the Vellore Citizens’ Welfare Forum v. Union of
trust doctrine42 have been adopted by the Court in India,45 imposes an obligation on every developer,
industry and governmental agency to anticipate,
prevent and attack the causes of environmental
39 See Narmada Bachao Andolan, note 24 above at 3761. degradation. The Court also held that if there are
40 The Polluter Pays Principle is a principle in international threats of serious and irreversible damage then any
environmental law where the polluting party pays for the lack of scientific certainty should not be used as a
damage done to the natural environment.
41 Precautionary Principle aims to provide guidance for
protecting public health and the environment in the face
of uncertain risks, stating that the absence of full scientific 43 See Indian Council for Enviro-Legal Action, note 19
certainty shall not be used as a reason to postpone measures above at 215.
where there is a risk of serious or irreversible harm to 44 See Government of India, National Environmental
public health or the environment. Policy, 2006, available at http://www.envfor.nic.in/nep/
42 The Public Trust Doctrine is the principle that certain nep2006.html.
resources are preserved for public use, and that the 45 Vellore Citizens’ Welfare Forum v. Union of India,
government is required to maintain it for the public’s Supreme Court of India, Judgement of 28 August 1996,
reasonable use. AIR 1996 SC 2716.

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 Law, Environment and Development Journal

reason for postponing measures to prevent coastal ecology by intensive and extensive shrimp
environmental degradation. Finally, the Court farming, the Court had directed closure of shrimp
emphasised that the onus of proof shall be on the firms and payment of compensation on polluter pays
actors or the industrialists to show that their action principle as well as cost of remedial measures to be
is environmentally benign. The precautionary borne by the industries. But after the judgment,
principle had also been emphasised in cases such as firstly the Court itself stayed its own directions in
M.C. Mehta v. Union of India and A. P. Pollution review and thereafter, the Parliament brought a
Control Board v. M.V. Nayudu case.46 legislation over-ruling the directions given in the said
judgment. Therefore, neither any compensation has
To further justify and perhaps extract the state been paid to the farmers and the people who lost
initiative to conserve natural resources, the Court also their livelihood nor the damage done to the
enunciated the doctrine of ‘public trust’ thereby environment has been remedied. As far as the
obligating conservation by the state. The ‘public trust’ Court’s emphasis on polluters pay principle is
doctrine has been referred to by the Court in M.C. concerned, it has not been able to control pollution,
Mehta v. Kamal Nath.47 The doctrine extends to especially created by the big enterprise, and has
natural resources such as rivers, forests, sea shores, rather provided an instrument to the polluter to pay
air etc., for the purpose of protecting the eco-system. and pollute.
The State holds the natural resources as a trustee and
cannot commit breach of trust. In the above case, The precautionary principle has also not been
the State’s order for grant of a lease to a motel located applied in the Tehri Dam case where the petitioner
on the bank of the river Beas, which resulted in the as well as the Environmental Appraisal committee
Motel interfering with the natural flow of the water, of the Government expressed concern about the
has been quashed and the public company which got safety of the dam. Likewise, in the Narmada Dam
the lease has been directed to compensate the cost of Case, the Court refused to apply precautionary
restitution of environment and ecology in the area. principle on the big dam as if protection of natural
resources and its ultimate cost for the present and
Unfortunately most of the above principles future generation is not an integral part of
borrowing from international environmental development. The observation of the Court that the
agreements by the Court have neither been followed said principle will apply in cases where extent of
consistently nor been institutionalised to make a damages are not known but not in the cases where
long term impact for the environmental they are known is, with respect, incorrect.50 Natural
jurisprudence process. For example, in the Bichhri resources, once destroyed cannot be rebuilt by
case48 regarding the contamination of ground water, mitigative measures or even be substituted.51
the Supreme Court, after analysing all the provisions
of law rightly found that compensation can be 2.5 Expert Committee
recovered under the provisions of Environment
Protection Act. However, the assessment of The Court’s dependence on expert committee has
compensation, its payment and the remedial traditionally been part of the jurisprudence process,
measures have still not been complied with. In the irrespective of the nature of litigation. The Supreme
case of S. Jagannath,49 concerning destruction of Court’s use of discretion power whether to appoint
independent expert committee or rely on state
appointed expert committee on environmental
46 Andhra Pradesh Pollution Control Board v. Prof. M.V. issues, however, has brought substantial changes in
Nayudu, Supreme Court of India, Judgement of 27
January 1999, AIR 1999 SC 812.
47 M.C. Mehta v. Kamal Nath, Supreme Court of India, 50 See Narmada Bachao Andolan, note, 24 above at 3757.
Judgement of 13 December 1996, 1997 (1) SCC 388. 51 See Sanjay Parikh, ‘Development of Environmental Law:
48 See Indian Council for Enviro-Legal Action, note 19 A Critical Appraisal’, Paper presented at the National
above at 231. Consultation on Critiquing Judicial Trends on
49 S. Jagannath v. Union of India and Others, Supreme Court of Environmental Law, organised by the Human Rights Law
India, Judgement of 11 December 1996, 1997 (2) SCC 87. Network in New Delhi, from 23 to 24 February 2008.

11
 Supreme Court’s Innovations for Environmental Jurisprudence: India

the outcome of the environmental litigation. In the construct the dam without ensuring compliance with
Doon Valley case,52 the Court required information the conditions of environmental clearance of the
on whether indiscriminate mining, continued under project. 56 Similarly, in the Dahanu Taluka
a legally valid license, had any adverse impact on Environment Protection Group and others v.
the ecology. The Court appointed a Committee Bombay Suburban Electricity Supply Company
headed by D.N. Bhargav, for the purpose of Limited and others, the Court did not follow the
inspecting the lime-stone quarries mentioned in the report of the Appraisal Committee which had the
writ petitions and also in the list given by the opinion that Dahanu is not a suitable location for
Government of Uttar Pradesh. On the basis of the the construction of the thermal power plant as it
Committee’s report, certain mining operations were violates environmental guidelines.57
ordered to be closed immediately, and others in a
phased manner. In S. Jagannath v. Union of India,53 The Court’s strategy of appointing committees,
intensive and semi-intensive aquaculture, were which are supposedly expert bodies sometimes also
declared to be environmentally harmful by the results in leading to a different set of unforeseen
Court, on the basis of studies by the Central problems while solving disputes. The Central
Pollution Control Board and the expert committees Empowered Committee (CEC), for example, in the
at the national and international levels. In the T.N. Godavarman case,58 which was constituted
Godavarman case,54 the Court asked the state vide a Court’s order is perhaps one of the most
government and the Central government to appoint glaring examples. The procedural requirements
committees to study several problems, and to oversee mandate that the Central Empowered Committee
implementation of orders relating to forest can recommend certain things to the Court in the
protection. light of facts presented before them. Again, it is only
when the Court endorses such recommendations
In contrast to this, the Court, however, exercising that the order would be more effective. For example,
its discretionary power did not appoint independent the CEC set up by the Court directions is of the
committee to examine the impact of infrastructure view that mining in the Niyamgiri Hills would cause
projects on environment and people at large. For immense harm to the biodiversity of the area and
example, in the Tehri Dam case, the Environmental the lives of the Dongria Kondh tribal whose lives,
Appraisal Committee of the Ministry of culture and very existence are deeply linked with
Environment and Forests, taking into consideration the Niyamgiri Hills. 59 The committee has
the geological and seismic settings, came to the recommended to the Court against diversion of
unanimous conclusion that the Tehri Dam Project forest lands for the project. Furthermore, the CEC
did not merit environmental clearance and should highlighted that area allocated to company forms
be stopped.55 While giving the dissent judgment, part of Schedule V area as specified by the
even Justice Devbrat Dharmadhikari held that in Constitution. Schedule V provides protection to the
order to ensure compliance with the conditions of adivasi people living in these areas. No land in these
environmental clearance, it was necessary to
constitute an independent expert committee which
would monitor the compliance and further 56 See Bhushan, note 5 above at 1773.
construction of dam could only proceed on the green 57 Dahanu Taluka Environment Protection Group and
signal of the expert committee. But the majority Another v. Bombay Suburban Electricity Supply Company
Ltd. and Others, Supreme Court of India, Judgement of
judgment given by Justice S. Rajendra Babu and
19 March 1991, 1991 (2) SCC 542.
Justice G.P. Mathur allowed the government to 58 The Court in its order on 9 May 2002 constituted an
Authority at the national level called the Central
Empowered Committee. The task assigned to it included
52 See RLEK, note 14 above at 653. the monitoring of the implementation of the orders of
53 See Jagannath, note 49 above at 96. the Court, removal of encroachment, implementation
54 See Godavarman, note 18 above at 1231. of working plan, compensatory afforestation plantation
55 Tehri Bandh Virodhi Sangarsh Samiti and Others v. State and other conservation issues.
of Uttar Pradesh and Others, Supreme Court of India, 59 See Geetanjoy Sahu, ‘Mining in Niyamgiri Hills and Tribal
Judgement of 7 November 1990, 1992 Supp (1) SCC 45. Rights’, 43(15) Economic and Political Weekly 19 (2008).

12
 Law, Environment and Development Journal

areas is allowed to be transferred to non tribal.60 The adversary to test them by cross-examination or at least
Supreme Court decision on 23 November, 2007 counter affidavits. However, in the S. Jagannath v.
delighted the Dongaria Kondh tribe by barring the Union of India case, the Court did not permit even
UK company Vedanta Resources Plc from mining counter affidavits to be filed in response to National
bauxite in the sacred Niyamgiri hills in Orissa. Environmental Engineering Research Institute’s
However, the decision offered the tribe only a (NEERI) report thereby making it difficult for
temporary reprieve, as the Court ordered the company’s individual affected parties to set out their own case.
Indian unit, Sterlite Industries,61 to come back with In such instances, the Court has unnecessarily invited
a new proposal for the project62 sidelining the criticism as using its discretionary power by not
recommendation of the CEC that mining in Niyamgiri allowing other parties to participate in the decision-
Hills would bring disastrous consequences for the local making process.64 In the Taj Trapezium case, the
environment, biodiversity and people’s livelihood. Court relying upon the report of NEERI, ordered
closure and relocation of several small-scale units,
Apart form this, there have been serious concerns especially the foundries in the area. The report,
over the functioning and composition of such Court unfortunately was not based on all facts and its methods,
appointed committees. For example, the members analysis and conclusions left a lot to be desired from
of the CEC set up by the Court consists entirely of a reputed scientific and research organisation.65
wildlife conservationists who have traditionally
prioritised wildlife over people, and officers of the It is also being strongly felt that the statutory
Ministry of Environment and Forests, with their obligation of the executive is being diluted by creation
strong inclination to enlarge the territory under of such committees, which now have assumed a status
forest department control. There is no representative of permanent statutory bodies as such committees
of tribal people, the Ministry of Tribal Affairs or are now being created under the Environment
the Constitutional Authority of the Commissioner, Protection Act as Special Environment Protection
Scheduled Castes and Scheduled Tribes.63 The Authorities and their terms depend on the Central
committee is empowered to make recommendations Government’s will. In other words, Court initiated
to the Court on any of the interlocutory applications committees or commissions are being converted into
and also to monitor the orders passed by the Court. statutory authorities thereby creating a parallel power
structure within the governance frame.
The reports of expert committee given to apex Court
also raise problems of their evidentiary value. No

3
Court can base its decisions on facts unless they are
proved according to law. This implies the right of an

60 For more details, see Central Empowered Committee

Report in IA NO. 1324 Regarding the Alumina Refinery ANALYSIS OF INNOVATIONS
Plant being set up by M/s Vedanta Alumina Limited at EFFECTED BY THE COURT
Lanjigarh in Kalahandi District, Orissa (2005).
61 Sterlite Industries is a public limited company
manufacturing aluminum and aluminum products. Other 3.1 Interference in the Affairs of
major Sterlite Group Companies operating in India include Executive Action
Sterlite Optical Technologies Ltd., Bharat Aluminum
Company Ltd. (BALCO), and Hindustan Zinc Ltd (HZL).
The dominant understanding of judicial functioning
62 See Ashish Kothari’s letter to The Chief Justice of India
appealing to protect the rich biodiversity of Niyamgiri in the common law world is that it can be rendered
and the lives of the Dongria Kondh Adivasis from being
destroyed by bauxite mining, 22 January 2008, available 64 See Ashok H. Desai and S. Muralidhar, ‘Public Interest
at www.kalpavriksh.org/campaigns/campopenletter/ Litigation: Potentials and Problems’, in B.N. Kripal et
niyamgiri%20letter.pdf. al. (eds.), Supreme but Not Infallible 180 (New Delhi:
63 See Madhu Sarain, ‘Who is Encroaching on Whose Lands?’ Oxford University Press, 2001).
Seminar, October 2002, page 69, available at http:// 65 See Raghuram, ‘The Trouble with the Trapezium’, Down
www.india-seminar.com/2002/519/519 comment.htm. to Earth, 15 April 1996, page 32.

13
 Supreme Court’s Innovations for Environmental Jurisprudence: India

compatible with liberal democratic principles only and balances, underlying that doctrine constitutes a
if adjudication remains distinct from legislation. part of the basic structure of the Constitution or
Indeed, ever since Montesquieu clearly formulated one of its basic features which cannot be impaired
for the first time the theory of separation of powers even by amending the Constitution; if any such
in 1748, it has been argued that for the smooth amendment of the Constitution is made, the Court
functioning of democracy, judicial power needs to would strike it down as unconstitutional and
be separated from the legislative and the executive. invalid’.68 The Court has elevated this feature of
The impossibility of having a rigid separation of separation of powers to the basic inviolable structure
powers has, however, been illustrated in the of the Constitution in the landmark judgment of
Constitution of U.K., America and India.66 For the Court in Kesavananda Bharti v. Union of India.69
example, under American Constitution the The separation of powers is accepted so as to preserve
President has got legislative powers in his right to the freedom and independence of the organs of the
send messages to Congress and the right to veto, state, whose independence is necessary for their
while Congress has the judicial power of trying proper functioning and also for the smooth
impeachments and the Senate participates in the functioning of democracy.70
executive power of making treaty and appointments.
Similarly, in U.K., the emergence of the Cabinet Importantly, the application of the theory to modern
system of government presents a standing refutation governments has shown consistently that the
to the doctrine of separation of powers because Great separation of powers has to be reconciled with the
Britain has a very closely connected legislature and need for their cooperation with each other. 71
executive, with further links to the Court. Nevertheless, for free and efficient working of
government, it is crucial that there be a balance and
The framers of the Indian Constitution have not equally felt need for the cooperation and dependence
incorporated a strict doctrine of separation of powers amongst the three distinct organs of governance. A
but have rather envisaged a system of checks and closer look at the Indian political system in general
balances. However, the Indian Supreme Court, in and the judicial system in particular, shows that this
the Delhi Laws Act case67 has noticed that the Indian balance might have been lost. As indicated earlier,
Constitution does not vest the legislative and judicial the judicial power has surged ahead in recent times
powers in the Legislature and the Court in clear and its presence is felt in every arena of governance
terms. The framers, in effect, have imported the such as environmental protection, human rights
essence of the modern doctrine of separation of protection, protection of prisoners’ rights, and
powers, applying the doctrines of Constitutional workers’ rights, which are supposed to be dealt by
limitation and trust. Therefore, none of the organs the executive and legislature. As in case of other
of government such as, legislature, executive and governance problems, the role of Court in resolving
Court under the Constitution can usurp the function environmental disputes through interpretation and
or powers which are assigned to another organ by expansion of existing policy and creation of
the Constitution. additional structure for environmental protection
has become an important part of environmental
Importantly, the most visible aspect of the doctrine jurisprudence in India.
of separation of powers in India has been reflected
in the Indira Gandhi v. Rajnarain case in 1975. It This raises the question as to why there is a need for
was held by the Court that ‘though the doctrine of judicial intervention in resolving disputes revolving
rigid separation of powers in the American sense around environmental problems. In view of the
does not obtain in India, the principles of checks

68 Indira Gandhi v. Rajnarain, Supreme Court of India,

66 See Durga Das Basu, Introduction to the Constitution of Judgement of 7 November 1975, AIR 1975 SC 2299.
India (New Delhi: Princeton Hall of India, 1986). 69 See Kesavananda Bharti, note 29 above at 1461.
67 In re Article 143, Constitution of India and Delhi Laws 70 See Upadhyay, note 26 above at 3789.
Act (1921) etc., Supreme Court of India, Judgement of 71 See Durga Das Basu, Administrative Law (New Delhi:
23 May 1951, AIR 1951 SC 332. Prentice Hall of India, 1986).

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 Law, Environment and Development Journal

Stockholm Conference on Human Environment remained unenforced, misadministered or

and growing awareness of the environmental crises mismanaged. In such situations, the environmental
in the country, India has amended its Constitution activists and NGOs have approached the Court for
and added direct provisions for protection of suitable remedies and the Court’s intervention has
environment.72 The Constitution (Forty-Second resulted in reminding and compelling the
Amendment) Act, 1976 has made it a fundamental implementing agencies to perform their statutory
duty to protect and improve the natural obligations towards the protection of environment.
environment. Article 48-A states that the state shall This process of judicial intervention in resolving
endeavour to protect and improve the environment environmental disputes is viewed as judicial activism
and to safeguard forests and wildlife of the country. in present days. Judicial activism means essentially
Corresponding to the obligation imposed on the that the judiciary expands its own scope and
state, Article 51 A (g), which occurs in Part IV (A) jurisdiction and goes into matters not normally
of the Constitution dealing with Fundamental considered to be within its own domain and that
Duties, casts a duty on every citizen of India. Article the judiciary often goes beyond giving of judgments
51-A (g) provides that it shall be the duty of every and issuing of specific directions for executive action
citizen of India to protect and improve the natural and sometimes even monitoring the progress of
environment including forests, lakes, rivers and action, resorting to what is known as ‘continuing
wildlife and to have compassion for living creature. mandamus’.74

In the subsequent years, India has also enacted a The expansion of judicial activism through
number of statutory acts for the protection and environmental cases, in particular, is widely debated
improvement of environment. The enactment of the and discussed in India. On the one hand, critics of
Water (Prevention and Control of Pollution) Act the theory of separation of power view this kind of
of 1974 has given the statute book its first real judicial activism as a sign of hope to correct
foundation for environmental protection. Other shortcomings on environmental issue. They argue
major enactments that have followed are the Forest that the approach of the Court in intervening in the
Conservation Act (1981), the Air Prevention and affairs of executive is to ask whether the
Control of Pollution Act (1986), the Environmental implementation or non-implementation of the
Protection Act (1986), the National Environment policy results in a violation of the fundamental rights
Tribunal Act (1995), the National Environment or not. If the Court finds a violation of the
Appellate Act (1997) and the Biodiversity Protection Constitutional provisions then it can direct
Act (2002).73 In this way, India has enacted a range authorities to discharge their duties. In M.C. Mehta
of regulatory instruments to preserve and protect v. Union of India,75 the Court has explained how,
its natural resources. Unfortunately, the plethora of despite the enactment of the Environment
such enactments and the Constitutional provisions Protection Act, 1986, there had been a considerable
has not resulted in preventing environmental decline in the quality of environment. The Court
degradation in the country. Noticeably, the last two has noted that despite several PILs required attention
decades have been a period of rapid degradation in has not paid by the authorities concerned to take
the Indian environment. The enactment of a number the steps necessary for the discharge of duty imposed
of laws both by the Central and State governments on the state. Any further delay in the performance
relating to environment has not made much of duty imposed by the Central Government cannot,
headway in controlling the environmental therefore, be permitted. Suitable directions by the
degradation process and the laws, by and large, have Court to require performance of its duty by the
Central Government need to be mandated by the
law. The Court, however, required the Central
72 See Atiyah, note 12 above at 96.
73 For more details on Indian Environmental Law, see
Sanjay Upadhyay and Videh Upadhyay, Handbook on 74 See Ramaswamy Iyer ‘Some Constitutional Dilemmas’,
Environmental Law: Forest Laws, Wild Life Laws and the 41(21) Economic and Political Weekly 2064 (2006).
Environment, Volume I & II (New Delhi: The Lexis 75 M.C. Mehta v. Union of India, Supreme Court of India,
Nexis Group of Companies, 2002). Judgement of 18 November 1997, 1998 (9) SCC 589.

15
 Supreme Court’s Innovations for Environmental Jurisprudence: India

Government to indicate what steps it had taken thus disputed the reliability and practicality of CNG
far and also place before it the national policy, if any, arguing that the technology is still in development,
drawn up for the protection of the environment. making the conversion both risky and costly. By
disregarding the pleas of the Delhi government and
The Court’s directions to the implementing agencies insisting upon the implementation of its orders, the
to implement the environmental laws or when it Court seems to be usurping the authority of the
asks the polluter to pay the compensation for the existing pollution control structures to execute their
damage it has done to the environment and to the duties independently.78 This raises both institutional
people have been welcomed. This process of judicial and Constitutional questions, as the Court wrestles
interpretation of existing law and policy to ensure to determine which branch of government is best
better quality of life and an attempt to check suited to handle pollution control matters.
governmental lawlessness are said to have
‘transformed the Supreme Court of India into a Similarly, in the T.N. Godavarman Thirumulpad
Supreme Court for Indians’.76 v. Union of India case, the Supreme Court has gone
beyond the scope of its jurisprudence. In this
On the other hand, the advocates of theory of ongoing case, the Supreme Court has extended the
separation of power argue that the intervention of scope of the petition from a matter of ceasing illegal
Court in the affairs of implementing agency to operations in Nilgiris forest land from deforestation
protect the environment and enforce fundamental by illegal timber operations into a reformation of
rights is violating the principle of separation of the entire country’s forest policy. The Court held
powers as the theory of separation of power suggests that the meaning of ‘forest’ is to be as per dictionary
that each organ of the government has to perform definition irrespective of ownership and its orders
within the prescribed limits as designed by the are to apply to all lands entered in any government
Constitution of India. In a number of cases, the Court record as ‘forest’. The paradox of this order has been
has gone beyond its adjudication function to protect a further centralisation of power over the country’s
the environment thereby violating the principle of forest lands in the hands of the same bureaucracy
separation of powers and creating problems for other against whose mismanagement the original PIL was
organs of the State. Its continuous intervention in filed. This has seriously impacted millions of forest
the affairs of executive, questioning the validity of dwellers’ customary as well as legal rights to forest
government policy and resuming administrative lands and resources for their very survival.79 One
powers to protect the environment aggressively has indication of the importance of forest lands in
invited steadfast resistance from administrative people’s lives is the fact that more than 2,000
branches. For example, in the Delhi Vehicular interlocutory applications (IAs) have been admitted
pollution case, the Court directions to convert all in the case,80 ranging from the North East to the
commercial vehicles into Compressed Natural Gas Andamans to Madhya Pradesh.
(CNG) has witnessed protest not only from the
private companies but also from the Government of As far as tribal rights over their customary resources
India and the Delhi state government. Steadfast as well as their self-governing institutions are
resistance from the agencies responsible for enforcing concerned, the Constitution of India provides
the Court order has raised serious questions about specific protection to tribal rights, particularly in
the wisdom of this decision.77 Many opponents have

78 Armin Rosencranz and Michael Jackson, The Delhi

76 See Upendra Baxi, ‘The Avatars of Indian Judicial Activism: Pollution Case: The Supreme Court of India and the
Explorations in the Geographies of [In] Justice’, in K. Limits of Judicial Power, 2003, available at http://
Verma ed., Fifty years of Supreme Court of India: Its Grasp www.cleanairnet.org/caiasia/1412/articles-
and Reach (New Delhi: Oxford University Press, 2000). 69423_delhi_case.pdf.
77 Kuldeep Mathur, Battling for Clean Environment: 79 See Sarain, note 63 above at 70.
Supreme Court, Technocrats and Popular Politics in 80 See Forest Case Update, October 2007, available at http:/
India, Working Paper/03-01 (New Delhi: Centre for the /www.forestcaseindia.org/f14/
Study of Law and Governance, 2001). Iss%2039%20Oct%2007.pdf.

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 Law, Environment and Development Journal

Schedule V and Schedule VI areas.81 Surprisingly, 3.2 Implementation of Cour t

the Supreme Court has overlooked all these Directions
dimensions with its environmental activism
governed by a vision of ‘forests’ existing in isolation In any given case, as a general rule, once the
and out of context. The Court’s definition of ‘forest’ judgment is passed it is left to the administration to
itself, and the assumption that forests are best implement the judgment so as to give effect to it. In
managed by state bureaucracies, is highly the judgment, though the Court issues directions to
problematic given the long history of forest the agencies of the state as to how its decision has to
degradation under state control and serious conflicts be implemented, it will not be there to oversee its
with forest dwelling tribal and other communities actual implementation. Nor would the Court
over access to forest resources for survival. It does examine the extent of its implementation and the
not seem to have been brought to the notice of the nature of its impact. The enforcement agencies, in a
Court that in states like Orissa, West Bengal and number of instances that involve public interest, are
Jharkhand, villagers on their own initiative are found to have taken advantage by postponing or not
regenerating and protecting their forests, often from implementing decisions, under one excuse or
corrupt forest officials and timber mafias, in several another. For example, the judicial directions to give
thousand villages. Even in its own judgment in the drinking water without any cost to the affected
Samatha v. State of Andhra Pradesh,82 a five-judge villages, remediation of the tanks, and health facility
bench of the Supreme Court recognised that for to all the affected villages, to carry wastewater from
tribal, forests are their traditional source of Patancheru to Amberpet by constructing a pipeline
sustenance. They have a historical right to minor of 18 km before January 2001 have not been
forest produce and to communal residence on forest implemented thus far.85 The Court directions in the
land. These rights of tribal have been neglected in Ganga river pollution case have also not been
the Godavarman orders. implemented. The tanneries continue to operate
even though strict action has been ordered by the
These efforts of the Court are, without doubt, Court against the polluted industries both in the case
unprecedented. The measures appear to be an of the Kanpur and Calcutta tanneries.86
invasion over the administrative terrain. The Court,
however, has denied any such usurpation. In its In the Oleum Gas Leak case, the Court has evolved
pronouncements, the Court has justified its action the doctrine of absolute liability, clarifying the
either under a statutory provision83 or as an aspect principle of strict liability which was developed in
of their inherent powers.84 It is undeniable that the Ryland v. Fletcher.87 It has also developed the
devices employed by the Court helped it to get principle of claiming compensation under the writ
detailed facts, understand complexities of social, jurisdiction by evolving the public remedy. But
economic and scientific issues revolving around ultimately, the victims of gas leak have been left to
environmental problems and accordingly arrive at the ordinary relief of filing suits for damages. In the
a decision. But, environmental governance process Bichhri case, 88 regarding the contamination of
has become more complex through such judicial ground water, the Court, after analysing all the
intervention and innovations. provisions of law rightly found that compensation
can be recovered under the provisions of
81 See N. K. Behura and Nilakantha Panigrahi, Tribals and
the Indian Constitution (New Delhi: Rawat Publictions, 85 Information was collected in November 2002 through
2006). personal visit to Patancheru.
82 Samata v. State of Andhra Pradesh and Others, Supreme 86 See Praveen Singh, ‘Bridging the Ganga Action Plan:
Court of India, Judegment of 11 July 1997, 1997 (8) SCC 191. Monitoring Failure at Kanpur’, 41(7) Economic and
83 The power to appoint commissioners in matters of civil Political Weekly 590 (2006).
nature is found in Order XXVI Civil Procedure Code 87 Rylands v. Fletcher (1868) is a landmark English legal case
and Order XLVI Supreme Court Rules, 1966. in which the Court of the Exchequer Chamber first
84 Inherent power of the Supreme Court under Article 32 applied the doctrine of strict liability for inherently
and of the High Courts under Article 226 of the dangerous activities.
Constitution. 88 See Godavarman, note 19 above at 243.

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 Supreme Court’s Innovations for Environmental Jurisprudence: India

Environment Protection Act. However, the So, while the judgment on a number of litigations in
assessment of compensation, its payment and the public interest were hailed as path-breaking, the
remedial measures have still not been complied with. misery and suffering of people, to ameliorate which
the Court was approached, continued unabated.
In the case of S. Jagannath,89 concerning destruction Complacency, indifference and casual approach to
of coastal ecology by intensive and extensive shrimp environment and human problems continued
farming, the Court has directed closure of shrimp without much perceivable change, notwithstanding
firms and payment of compensation on polluter pays great judgment. This promoted the Court in recent
principle as well as cost of remedial measures to be borne times, to come up with yet another innovation:
by the industries. But after the judgment, firstly the continuing mandamus.93 The application of this tool
Court itself stayed its own directions in review and suggests that instead of passing a judgment and closing
thereafter, the Parliament has brought a legislation the case, the Court would issue a series of directions
overruling the directions given in the said judgment. to the administration, to implement within a time-frame,
Therefore, neither any compensation has been paid and report back to Court from time to time about
to the farmers and the people who lost their the progress in implementation. This, in a way, is an
livelihood nor the damage done to the environment attempt to ensure the implementation of Court orders.
has been remedied. Similarly, in the Delhi industrial
relocation case,90 the Court while giving directions The case on point is the one concerning forest
to close down industries or to locate outside Delhi conservation in the T.N. Godavarman v. Union of
has made it clear that the workers should get whatever India. It started in 1996 as a case seeking directions
compensation they deserve according to law and industries from the apex Court for stopping felling of trees in
must be relocated from Delhi. The direction of the Nilgiris forest and to regulate indiscriminate cutting
Court, however, has not been implemented by the of timbers in the Nilgiris Forest. The case is yet to
government on the ground of non-availability of land be finally decided. Instead, a series of orders passed
to shift the industries and also workers’ right to by the Supreme Court that concern protecting
compensation appeal has not been given due attention forest, wildlife, preserving biodiversity, national
in the subsequent Court hearings.91 parks, evicting encroachers including tribal, is still
in different stages of implementation.94 The Court
Referring to the non-implementation of Supreme
Court directions Justice S.P. Bharucha92 pointed out 93 In Vineet Narrain v. Union of India and Others, Supreme
that ‘This Court must refrain from passing orders Court of India, Judegment of 18 December 1997, 1997
(7) SCALE 656, popularly known as the Hawala case,
that cannot be enforced, whatever the fundamental the Supreme Court adopted this technique which enabled
right may be and however good the cause. It serves it to closely monitor investigations by Government
no purpose to issue some high profile mandamus or agencies, in respect of serious accusation made against
declaration that can remain only on paper. It is prominent personalities. According to the Court, the
counter productive to have people say, the Supreme innovation was a procedure within the Constitutional
scheme of judicial review to permit intervention by the
Court has not been able to do anything or worse. It Court on the complaint of interia by the Central Bureau
is of cardinal importance to the confidence that of Investigation and to find solution to the problems.
people have in the Court that its orders are implicitly 94 Some of the significant orders issued by the Court are the
and promptly obeyed and it is, therefore, of cardinal followings: the Order of 12.12.96 clarified certain
importance that orders that are incapable of provisions of the Forest (Conservation) Act, 1980 and also
extended the scope of the Act. The Court held that the
obedience and enforcement are not made’.
word ‘forest’ must be understood according to the
dictionary meaning; all ongoing activity within any forest
89 See Jagannath, note 49 above at 87. in any state throughout the country, without the prior
90 M.C. Mehta v. Union of India and Others, Supreme Court of approval of the Central Government, must cease forthwith;
India, Judgement of 30 December 1996, AIR 1996 SC 2231. the Court order of 9 May 2002 constituted an Authority at
91 For more details, see Nandini Dasgupta, ‘Tall Blunders’, the national level called the Central Empowered Committee
Down To Earth, 30 September 1998, page 22. and assigned it the task to monitor the implementation of
92 Justice S.P Bharucha’s Inaugural lecture of Supreme the Court orders, removal of encroachment,
Court Bar Association’s Golden Jubilee’s Lecture Series implementations of working plan, compensatory
(2001) on Supreme Court on Public Interest Litigation. afforestation plantations and other conservation issues.

18
 Law, Environment and Development Journal

adopted a novel method in making the attempted to arrest the dysfunctional trend of other
administration work. It made the government create organs and enable the effective enforcement of
a think tank like Central Empowered Committee, environmental laws. However, in reminding other
make preparations for implementation of directions organs about their Constitutional duties and
and report at every stage the progress made in enforcing fundamental right of citizens, the Supreme
achieving the objective. It was indeed an effort by Court has at times, crossed its boundaries and started
the Court to assist, partner and guide the interfering in the very basic affairs of environmental
administration in protecting the forest across the management. In resolving more than 100
country and present a model for the rest of the environmental cases since 1980, the Supreme Court
county to emulate. It is another matter that the has continuously engaged itself in the management
Court, in its enthusiasm to present such a model, and resolution of environmental conflicts and
got itself mired in the complexities of a problem that thereby increased the country’s dependence on the
was at once managed by the bureaucracy, local Court for environmental protection. This
institutions and through traditional form of forest dependence on a judicial institution that has already
management.95 exceeded the boundaries of its responsibilities has
been further complicated by the lack of monitoring
of the Supreme Court’s orders and the vagueness of

4
the legislative and executive roles regarding
environmental issues. With its intervention in the
interpretation of environmental policy and
implementation process, the potential for resolving
CONCLUSION environmental conflict is hardly over. The review
of environmental cases shows that there has been
The examination of the implications of Supreme no uniform cooperation from the implementing
Court’s innovations for environmental agencies to effectively implement the Court
jurisprudence reveals that the application of directions. It is also observed that most of the
innovative methods to resolve environmental innovative methods introduced by the Court have
disputes and implement Court orders is certainly a neither been followed consistently nor been
deviation from the usual adjudication function of institutionalised to make a long term impact for the
the Court. While the procedural innovations have environmental jurisprudence process. In such a
widened the scope for environmental justice through situation, how long will the Supreme Court monitor
recognition of citizens’ right to healthy the implementation of its decisions? As the
environment, entertaining petitions on behalf of opposition to judicial intervention in the affairs of
affected people and inanimate objects and creative other organs increase, what will happen if the
thinking of judges to arrive at a decision by making implementing agencies and people disobey Court
spot visit, substantive innovations have redefined the decision for the protection of environment? It
role of Court in the decision-making process through remains to be seen whether the Court can protect
application of environmental principles and the environment through innovations if there is
expanding the scope of environmental jurisprudence. steadfast resistance from implementing agency or
whether it can continue to intervene in the absence
Given the crisis within the executive and legislature of public support. More importantly, it remains to
in discharging their Constitutional duties, the be seen whether peoples’ faith in the Court’s
Supreme Court’s innovative methods have attempts to protect environment through innovative
methods will be belied.

95 For a more detailed analysis of the case, see Armin

Rosencranz, Edward Boenig and Brinda Dutta, The
Godavarman Case: The Indian Supreme Court’s Breach
of Constitutional Boundaries in Managing India’s Forests
(Washington DC: Environmental Law Institute, 2007).

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LEAD Journal (Law, Environment and Development Journal) is jointly managed by the
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