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 Indian Environmental Law
Key Concepts and Principles

edited by
Shibani Ghosh

With a Foreword by
Pratap Bhanu Mehta

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 INDIAN ENVIRONMENTAL LAW: KEY CONCEPTS
AND PRINCIPLES
ORIENT BLACKSWAN PRIVATE LIMITED

Registered Office
3-6-752 Himayatnagar, Hyderabad 500 029, Telangana, India
e-mail: [email protected]

Other Offices
Bengaluru, Bhopal, Chennai, Guwahati, Hyderabad,
Jaipur, Kolkata, Lucknow, Mumbai, New Delhi, Noida,
Patna, Visakhapatnam

© Orient Blackswan Private Limited 2019

First published by Orient Blackswan Private Limited 2019

ISBN 978-93-5287-579-5 028965

Typeset in
Plantin Std 10/12.5
by Le Studio Graphique, Gurgaon

Printed in India at
Glorious Printers, Delhi

Published by
Orient Blackswan Private Limited
3-6-752, Himayatnagar, Hyderabad 500 029
e-mail: [email protected]

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 Contents

Commonly used Latin Phrases vii

List of Acronyms ix
Foreword by Pratap Bhanu Mehta xi
Acknowledgements xv
Introduction 1

Part I
1. The Judiciary and the Right to Environment 21
in India: Past, Present and Future
Lovleen Bhullar
2. Procedural Environmental Rights in Indian Law 55
Shibani Ghosh

Part II
3. Sustainable Development and 107
Indian Environmental Jurisprudence
Saptarishi Bandopadhyay
4. The Polluter Pays Principle: 152
Scope and Limits of Judicial Decisions
Lovleen Bhullar
5. The Precautionary Principle 192
Lavanya Rajamani
6. Public Trust Doctrine in Indian 230
Environmental Law
Shibani Ghosh

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 vi Contents

7. The Judicial Implementation of 271

Environmental Law in India
Dhvani Mehta

Notes on the Contributors 323

Index 324

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 Commonly used Latin Phrases

amicus curiae friend of the court; a person who on invitation

of the court, assists the court in any judicial
proceedings
certiorari a writ by which a higher court requires an
inferior court or tribunal to transfer the
record of its proceedings in a case that has
been disposed of for review
fait accompli fact or deed accomplished, presumably
irreversible
habeas corpus having the body; a writ issued to bring a
person before a court, to ensure that their
imprisonment is not illegal
in loco parentis in the place of a parent; refers to the legal
responsibility of a person or organisation
assuming some of the functions and
responsibilities of a parent of another
lis refers to a controversy or dispute before a
court
locus standi right of a party to appear in court or to bring
an action and to be heard
mandamus a command; a writ issued to compel the
performance of duty of a public or quasi-
public nature
opinio juris opinion of law
prohibition a writ issued by a higher court to an inferior
court, preventing the inferior court from
usurping jurisdiction with which it is not
legally vested

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 viii Commonly used Latin Phrases

quo warranto by what authority; a writ issued against a

person who claims or who usurps any office, to
enquire by what authority she or he supports
the claim
stricto sensu in the strict sense
suo motu of one’s own motion; when the court initiates
proceedings on its own without any party
approaching it
ubi jus ibi remedium where there is a right, there is a remedy

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 List of Acronyms

Anr Another
CAMPA Compensatory Afforestation Planning and
Management Authority
CBD Convention on Biological Diversity
CEC Central Empowered Committee
CETPs Common Effluent Treatment Plants
CIC Central Information Commission
CNG Compressed Natural Gas
CPCB Central Pollution Control Board
CRZ Coastal Regulation Zone
DPSP Directive Principles of State Policy
EAC Expert Appraisal Committee
EC Environmental Clearance
ECE Economic Commission for Europe
EIA Environmental Impact Assessment
EU European Union
ICJ International Court of Justice
IMF International Monetary Fund
ITLOS International Tribunal for the Law of the Sea
IUCN International Union for Conservation of Nature and
Natural Resources
MA Miscellaneous Application
MDGs Millennium Development Goals
MHRD Ministry of Human Resources Development
MoEF Ministry of Environment and Forests
MoEFCC Ministry of Environment, Forest and Climate
Change
NEAA National Environment Appellate Authority

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 x List of Acronyms

NEERI National Environmental Engineering Research

Institute
NGO Non-governmental Organisation
NGT National Green Tribunal
NPV Net Present Value
OA Original Application
OECD Organisation for Economic Cooperation and
Development
Ors Others
PIL Public Interest Litigation
RLEK Rural Litigation and Entitlement Kendra
SDGs Sustainable Development Goals
SPCB State Pollution Control Board
ST Scheduled Tribes
UNCED United Nations Conference on Environment and
Development
UNCTAD United Nations Council on Trade and Development
UNEP United Nations Environment Programme
UNFCCC United Nations Framework Convention on Climate
Change
WP Writ Petition
WSSD World Summit on Sustainable Development
WTO-DSB Dispute Resolution Body of the World Trade
Organisation

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 Foreword

This important and impressive volume will fill a gap in our

understanding of environmental law in India. The arguments
presented here are of great legal, philosophical and practical
interest. There is a particular problem that is perhaps unique to
environmental law. Of all the bodies of law, environmental law is
one area where the law itself is articulated in terms of abstract
policy frameworks, or institutional doctrines. Ideas like ‘sustainable
development’ and ‘precautionary principle’ are not legal ideas
in a conventional sense. They are ways of looking at the world, or
principles to be taken into account when formulating policy.
They cannot easily be codified. Many laws are often vague and
ambiguous. These have to be resolved by interpretive methods. But
many of the ideas used in environmental law are not legal ideas
in the conventional sense in that they are not precisely defined
enough to be a guide for future action; it is also often not clear on
whom the obligations these ideas entail devolve; it is often not clear
how they can be translated into legal directives. Different judges
interpret them differently, they are sometimes used rhetorically and
sometimes with scientific discipline behind them, and sometimes
without any settled social meaning.
Add to this a further challenge. In many areas of law, like
constitutional law and criminal law, there is decades, if not
centuries, of argument that has given them determinate legal
shape. Or in a democratic culture many of these laws acquire
constitutional status through some process of public deliberation.
Our ‘environmental constitution’, our legal mediation with nature,
has been much more of an act of judicial improvisation. The rise
of environmental jurisprudence in India is largely a consequence
of state abdication. Powers of the Judiciary have increased as a
consequence of legislative and executive failure. The Supreme
Court began to create special environmental benches in response

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 xii Foreword

to particular environmental crises; the legislature then morphed

the idea into the National Green Tribunal—a Tribunal dealing
especially with environmental cases. While the state has created an
elaborate environmental regulatory structure, including laws and
institutions of enforcement, these structures have, for the most
part, failed to secure our environment. The fact is that India has
the dirtiest air, the most hazardous water, and is at severe risk from
the effects of climate change.
India has an impressive record of grass root environmental
movements, and deep historical traditions of environmental
care. And formally at least, no politician denies the importance
of the environment or even the imminence of climate change.
But translating these sentiments into a determinate plan for
environmental action has not been easy. The gap between high
rhetoric and implementation remain significant. Even in the Courts,
the gap between recognising legal principle and the weakness of
the remedy on offer remains astonishingly wide. Indian law has
also typically blurred the boundaries between different genres of
law: the expansion of rights- based litigation has often meant that
ordinary tort claims are adjudicated as constitutional claims. The
social bases for environmental litigation is uneven: a handful of
lawyers and judges in Delhi have far-reaching impact in terms of
the power they exercise, while the full promise of environmental
litigation is yet to be realised across High Courts in India. The
nature of environmental regulation and adjudication is such that
there has to be a careful weighing of causes and consequences. But
despite the fact that the National Green Tribunal has technical
members, or the Courts can enlist experts, the technical quality of
adjudication has been relatively weak.
This is the context in which environmental law is created in
India. In order to make space for it, judges have often had to resort
to higher metaphysical principles. What does it mean to make
‘sustainable development’ a principle of law? What does ‘public
trust doctrine’ imply for property rights? Or even in more familiar
cases like ‘polluter pays’, what are the tort yardsticks by which
judges work? This important volume is the first of its kind to look at

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 Foreword xiii

environmental law at multiple levels. Most volumes look at materials

familiar to lawyers: judicial doctrine, legal precedent, enumerated
rights, and so forth. Some will venture into enforcement issues. But
this is unique in this respect. It looks at these two levels of analysis.
But more originally, it provides the first systematic analysis of four
concepts that provide the background picture against which law
gets formed: sustainable development, precautionary principle,
polluter pays and public trust. Sustainable development, at its
most ambitious best, gives content and sets bounds to the goals of
development, precautionary principle is an attitude to risk, polluter
pays an instrument of liability and enforcement, and public trust a
picture of the underlying sense of collective stewardship that should
guide our relations to each other and nature. This book is the
first account of how these four pillars of a broader environmental
imagination are used in the law. There are some internal tensions
amongst them: the calculus of cost-benefit, for example, does
not sit easily with the idea of nature having an inherent sacrality.
The public trust sensibility is not quite the same as a purely torts
approach to environmental law. But there are also the tensions
produced by different interpretations of these principles.
This volume is going to be an indispensable first step to
untangling the beating heart of environmental jurisprudence. It
does extraordinary service by uncovering the larger assumptions
embedded in familiar and unfamiliar cases. The essays on offer in
this excellent volume are historically rich and analytically clarifying.
They have the virtue of being non-polemical. They cover a vast
terrain and identify patterns in adjudication. These virtues make
this volume an indispensable guide to environmental jurisprudence
in India. More broadly, it is a reminder that converting concern for
the environment into legal doctrine still remains the most pressing
challenge of our time. We should be deeply grateful to Shibani
Ghosh, for putting together a volume that combines moral urgency
and legal acuity.
December 2018 Pratap Bhanu Mehta

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All Chapters.indd 14 1/18/2019 3:28:32 PM
 Acknowledgements

This volume would not have been possible without the support of
several people—and I am deeply grateful to each of them.
Dr Navroz K. Dubash and Dr Lavanya Rajamani, senior
colleagues at the Centre for Policy Research (CPR), who have been
a constant source of guidance, encouragement and inspiration over
the years; Dr Pratap Bhanu Mehta who helped conceptualise the
initial research project, and provided valuable inputs at various
points; contributors to this volume, who collaborated patiently; and
the anonymous reviewers for their constructive comments.
The groundwork for this volume was done as part of a research
project that received generous financial support from the Indian
Council of Social Science Research (ICSSR), and administrative and
logistical support from CPR. My sincere gratitude to Dr Philippe
Cullet, Ritwick Dutta, the late Ramaswamy Iyer, Kanchi Kohli,
Manju Menon, T. Mohan, Dr Geetanjoy Sahu, and Shekhar Singh,
who reviewed contributions to the project and provided insightful
comments. I am also grateful to the participants in the Authors’
Work-in-Progress Workshop held in December 2013 at CPR for
their helpful feedback.
And thank you, Ma, Baba and Didi—for your love, and
Rishad—for being my rock, always.

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All Chapters.indd 16 1/18/2019 3:28:32 PM
 Introduction

Over the past three decades, the Indian judiciary has almost single-
handedly revolutionised environmental law and governance in
the country. It has delivered landmark verdicts on a wide variety
of issues affecting the environment—from industrial pollution to
waste disposal; exploitative mining to unchecked deforestation;
noxious vehicular fumes to rampant poaching. It has pushed and
prodded apathetic executive agencies into action. Occasionally
criticised for jurisdictional overreach, the judiciary’s interventions
have brought to fore the unaccounted costs of economic growth
and development, and the iniquitous sharing of the burden of these
costs. Through its judgments, it has identified a constitutional
mandate, concurrent with relevant statutory provisions, to protect
the environment and to uphold people’s rights to the environment.
At the same time, it has created a framework of legal principles
that forms an integral part of Indian environmental law, and is
frequently relied on in environmental litigation.
The extraordinary degree of judicial activity in India in the
environmental sphere can be attributed to at least three factors.
First, there are inadequacies in Indian laws, regulatory processes
and institutions which limit their effectiveness in preventing,
mitigating and responding to environmental degradation, and in
promoting and ensuring environmental conservation. Even though
Parliament has legislated on environmental issues since the early

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 2 Introduction

1970s, environmental laws in India are deficient in their coverage,

compliance requirements and liability provisions. Regulatory
processes such as environmental clearance granting processes
are poorly designed and implemented—misaligned with the
desired environmental outcomes. Statutory bodies like pollution
control boards, under-resourced and vulnerable to external
(and extraneous) influence, do not discharge their functions in a
comprehensive and independent fashion. As the legislature and the
executive are underperforming, those affected by environmental
degradation or otherwise dissatisfied by a regulatory decision or
policy, look to a ‘responsive’ judiciary for relief.
Second, individual or collective rights are either absent, limited,
or poorly defined in relation to natural resources, leading to at least
three problems. First, no particular individual or group is invested
in protecting the environmental resource—a classic tragedy of the
commons case (air pollution being a case in point); second, there
are several interests associated with the resources that often conflict
(for instance, tribals access forests for their livelihood, but so do
mining companies for the coal beneath the forests); and third, the
associated interests may be spatially and temporally so diverse
that it is challenging to foresee and manage the effects of using
the resource (for example, upstream and downstream impacts of
dams, or the lowering of groundwater levels due to deforestation).
In such situations, the judiciary is perceived to be a neutral arbiter
that can pronounce on the rights and claims relating to such public
goods—authoritatively and with some degree of finality.
Third, the political will and long term planning necessary
to tackle environmental problems is lacking. Environmental
protection measures, including the setting up and running of
effective regulatory authorities, require financial and human
resources. These resources are limited. With limited political
backing, environmental causes often lose claims to these resources.
The need for political will to address environmental problems
becomes even more apparent when the causes of environmental
degradation are mired in jurisdictional complexities—inter-state,
between the Centre and the states, or between different departments

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 Introduction 3

within a state. With relevant authorities not giving due attention

to environmental problems and ignoring demands for redress, the
judiciary has emerged as the alternative forum to raise grievances,
with the hope of receiving some relief.
In response to these popular expectations, the Indian judiciary—
Supreme Court of India, High Courts and more recently the
National Green Tribunal (NGT)—has often stepped up to the plate.
At the cost of being criticised for stepping on the (jurisdictional)
toes of the legislature and the executive, the Indian judiciary has
delivered far-reaching orders on issues ranging from industrial and
vehicular pollution to forest conservation; wildlife protection to
encroachment of natural resources; rehabilitation and resettlement
of project affected persons to waste management; environmental
impact of infrastructure projects to faulty regulatory processes.
The judiciary has influenced—and occasionally dictated—
environmental policy and actively monitored implementation of its
orders.
While the three factors discussed earlier provide some
explanation for the judiciary playing an instrumental role in
the country’s environmental governance, they also highlight an
important dimension of environmental legal disputes. These
disputes are by their very nature complex, and issues raised are
often not merely a matter of statutory interpretation or a disputed
question of law or fact, but require the decision maker to consider
and respond to multiple economic, political and social realities.
In its efforts to manage such complex polycentric disputes, the
Indian judiciary relies on a framework of rights and environmental
law principles. The rights framework is based on the judiciary’s
interpretation of the right to life guaranteed under Article 21 of
the Constitution as including a right to environment, and when
read with Articles 48A and 51A(g), a clear constitutional mandate
to protect the environment. This right to environment has been
defined in many ways—a right to live in a healthy environment
with minimal disturbance of the ecological balance, a right to live
in a pollution-free environment, a right to decent environment,
etc. More recently, the judiciary has even recognised a right of

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 4 Introduction

the environment—signalling a move away from its conventionally

anthropocentric approach to environmental conservation. Making
the realisation of this substantive right to environment meaningful,
inside and outside the courtroom, are certain procedural guarantees.
These guarantees, often termed as procedural environmental rights,
include the right to information, public participation and access to
justice. Mostly of statutory origin and supported by sympathetic
and expansive judicial interpretation, these rights are a vital part of
the environmental rights framework.
Legal principles, drawn from international and foreign
environmental law, complement and reinforce this rights framework.
These principles include the principles of sustainable development,
polluter pays, precaution and inter/intra generational equity, and
the public trust doctrine. These principles did not, at the time the
courts first referred to them, find place in Indian statutory law. The
Supreme Court, credited with introducing these principles to Indian
law, looked elsewhere—international legal documents, foreign law
and other branches of law, and provided explanations ranging from
international obligation to follow a particular principle to shared
common law traditions to justify the legal imports. Over the past
two decades, these ‘imported’ principles have been accepted as
an intrinsic part of Indian environmental law, albeit with some
definitional and conceptual adjustments.
Lawyers arguing environmental cases routinely rely on
substantive and procedural environmental rights and invoke
these legal principles, and judges frequently refer to them while
delivering judgments. An appreciation of Indian environmental law
is incomplete without the knowledge of this rights framework and
these legal principles, and how the Indian courts have interpreted
and operationalised them. This volume has been conceptualised
to improve our understanding of these rights and principles, to
evaluate their pre-eminent status in environmental litigation in
India, and to understand the mechanisms used by the courts to
implement them.

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 Introduction 5

Rationale for the Volume

Incidents of environmental degradation and conflicts over access

and use of natural resources are steadily rising in India. In this
context, and for reasons indicated earlier, it is not surprising that
judicial activity in the environmental sphere continues to grow.
When faced with environmental disputes, Indian courts often
venture beyond pure black-letter application of relevant statutory
provisions and creatively invoke principles of environmental law
that are drawn from diverse sources.
Environmental rights and legal principles are central to Indian
environmental law and judicial decision-making. Conceptual clarity
about their content and how the courts have applied them is a sine
qua non for more effective environmental litigation and advocacy.
Where these rights and principles have found statutory expression
(expressed or implied), limitations in definition, as well as design
and implementation of processes, are important to acknowledge
as they impact judicial and environmental outcomes significantly.
Understanding the implication of these rights and legal principles
also makes the impact of other factors (social, economic and
political) on the courts’ reasoning more evident and potentially
subjects judicial reasoning to greater and more rigorous scrutiny.
While underscoring the importance of these rights and
principles to Indian environmental law, it is necessary to
acknowledge also that judicial reasoning underlying the reliance
on these rights and principles is not always very informative;
making it difficult to determine their content, scope, and relevance
in particular scenarios. The articulation of certain environmental
outcomes in the rights language has won the Indian judiciary
praise and recognition, and has also accorded environmental issues
constitutional gravitas. But the content of an environmental right,
as well as its limits, are far from clear. As a right, it is one among
several rights that form part of the right to life, including the right to
livelihood and the right to development. These rights—and related
interests—frequently conflict and in such cases, determining which

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 6 Introduction

right would trump is an exercise of judicial discretion, for which

there is little guidance. Parameters to assess whether the right
has been protected or violated (fully or in part) are also not well-
defined. Similarly, judgments relying on these legal principles often
do not follow a clear line of reasoning that identifies the scope
and relevance of the principles. As one commentator observed,
the Supreme Court of India while incorporating legal principles
from the international domain ‘pursues a method that allows for
maximum leeway and minimal rationale-based accountability’.1
This volume is designed to create a space for an interpretive
discussion about the evolution and content of environmental rights
and principles that may improve our understanding of these rights
and principles, their utility in Indian environmental litigation in
particular, and in environmental governance more generally. The
chapters shed light on the assumptions underlying the environmental
law principles that drive their application and problematise judicial
reliance on them. A better understanding can improve the quality
of arguments being raised in courts, lend a more robust basis for
judicial reasoning and, arguably, result in more ‘implementable
orders’. Indian environmental judgments also provide valuable
insights into different facets of judicial decision-making in India’s
adversarial system, including the quality of reasoning, consistency
and conceptual clarity.
The need for clarity and consistency is reinforced by the
legislative mandate given to the NGT under the National Green
Tribunal Act 2010. The preamble to the Act acknowledges that
the judiciary has interpreted the right to life to include the right
to healthy environment. The Tribunal has jurisdiction over a
wide range of environmental issues and is required to apply the
principle of sustainable development, precautionary principle, and

1. Saptarishi Bandopadhyay, ‘Because the Cart Situates the Horse:

Unrecognized Movements Underlying the Indian Supreme Court’s
Internalization of International Environmental Law’ (2010) 50(2) Indian
Journal of International Law 204.

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 Introduction 7

polluter pays principle while making decisions.2 As it builds its own

jurisprudence, the Tribunal is likely to develop tests for applying
these legal principles, while being guided by the judgments and
reasoning adopted by the higher judiciary. Lack of clarity in the
understanding of these principles could restrict their utility to the
Tribunal and the parties before it.
Chapters in this volume rely on an in-depth study of relevant
judgments of the Supreme Court, High Courts and NGT while
discussing the origin of the rights and principles in Indian law,
how the courts have operationalised them and limitations in the
jurisprudence evolved by the courts. Where appropriate, authors
have referred to relevant statutory provisions and provided
background from international and foreign environmental law and
other areas of law. But the focus of the volume remains the treatment
of environmental rights and legal principles by Indian courts. An
(partial) exception is Chapter 2, on procedural environmental
rights, which adopts a different methodological approach as several
procedural rights are recognised (or limited) by statutes and,
therefore, relevant case law are mostly on the implementation of
these provisions, and play a less crucial role in interpreting these
rights.
It is necessary to flag that the formal enunciation of these
rights and principles in judicial decisions itself is not sufficient to
fundamentally change environmental conditions on the ground.
The decisions, though perhaps well-intentioned in their final
judicial outcome, do not necessarily lead to curtailment and/or
remediation of environmental degradation. Whether a judgment
has the desired results in a particular case, or in deterring future
harmful activities, depends on several factors that cannot always be
controlled from inside the courtroom, and are, in part, a reflection
of the complexities in environmental disputes. A discussion on the
factors influencing the implementation of environmental judgments
is an important area for future research. While this is briefly touched

2. National Green Tribunal Act 2010 s 20.

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 8 Introduction

on in Chapter 7, it requires a much deeper engagement which is

beyond the scope of this volume.

Structure of the Volume

The volume is divided into two parts: Part I on environmental

rights includes Chapter 1 on substantive environmental rights and
Chapter 2 on procedural environmental rights; and Part II on key
legal principles—principle of sustainable development (Chapter
3), the polluter pays principle (Chapter 4), precautionary principle
(Chapter 5) and public trust doctrine (Chapter 6)—and a final
chapter on the implementation mechanisms adopted by the judiciary
(Chapter 7).
In Chapter 1, Lovleen Bhullar discusses the evolution of the
right to environment as a substantive right in Indian environmental
law. Drawing from judgments of different fora, she identifies the
linkages made by the Indian judiciary between environmental
protection and the Constitution, specifically Articles 21, 47,
48A and 51A(g). The constitutional mandate to protect the
environment has led the courts to craft many formulations of
the environmental right, and the chapter critically explores some
of these formulations. Bhullar finds the courts to have adopted
a predominantly anthropocentric approach to environmental
protection, with occasional judicial recognition of the right of the
environment to be protected regardless of its instrumental value to
humans. The path of evolution of the right to environment, and its
realisation in the present day, however, is problematic. As Bhullar
points out, there are instances when the courts have recognised
the right even though it was not relevant to the fact situation.
Furthermore, the right to environment is not an absolute right;
it is one of many constitutional and statutory rights, and it may
get sidelined in the greater public interest. She concludes that the
inherent imprecision of the right, while unfortunate in some cases,
allows courts the flexibility to adapt its directions to a given fact
situation, ideally in the interests of the environment.

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 Introduction 9

In Chapter 2, Shibani Ghosh looks at procedural environmental

rights—the right to information, public participation and access
to justice. Although related, substantive and procedural rights are
different in two significant ways: first, the role of the courts while
implementing procedural rights is more limited because they often
have clear statutory guidance; and second, orders for the protection
of procedural environmental rights are relatively easier to issue,
to comply with and to monitor the compliance of. The chapter
examines each of the three procedural rights in detail and refers
to relevant provisions of environmental and general laws, along
with case law. In the context of right to information relating to the
environment, the chapter focusses on disclosure requirements under
the Environment (Protection) Act 1986, the Environmental Impact
Assessment (EIA) Notification 2006 and the Right to Information
Act 2005. Public participation in environmental decision-making
is largely limited to the environmental clearance process and the
process of settlement of forest rights under the Forest Rights Act
2006, and the chapter discusses certain limitations in the two
processes. The right to access environmental justice is analysed
from the standpoint of accessibility of redressal fora—in particular,
the NGT. Ghosh identifies the loopholes and limitations in the
various laws and concludes that despite statutory expression of
procedural environmental rights, there is no room for complacency
as these rights are routinely curtailed and denied.
The four principles that make up the bulk of Part II of this
volume were selected because of the Indian judiciary’s extensive
reliance on them. As mentioned earlier, the NGT is expected to
apply the principles of sustainable development, precaution and
polluter pays in its decision-making. The principle of prevention,
although a distinct principle of international environmental law, is
yet to find an independent place in Indian environmental law and
has, in fact, been conflated with the precautionary principle. To
the extent it has been relied on even implicitly by the courts, it has
been analysed in the chapter on precautionary principle. Principles
of inter- and intra generational equity, which also find mention in

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 10 Introduction

some environmental judgments,3 are yet to gain sufficient traction

in Indian environmental law to allow for in-depth analysis, of the
kind possible in the case of the other four principles.
Instead of a chronological description of cases, authors of
Part II adopt a thematic approach, dissecting each principle into
themes and discussing relevant case law through the lens of these
themes, such as the definitional content of the principle, rules
governing its application and analytical problems faced when
judges rely on it.
In Chapter 3, Saptarishi Bandopadhyay critically analyses the
principle of sustainable development, as interpreted and applied by
the Indian judiciary. The chapter begins with a succinct description
of the historical evolution of the principle internationally—quite
apt given the Indian Supreme Court’s inclination to look towards
international fora in environmental cases. It then analyses the
Vellore judgment4 in some detail, in an attempt to distill the Court’s
definition and understanding of the principle. The Supreme
Court (tentatively) invokes customary international law, finally
endorsing the Brundtland Commission’s definition of sustainable
development—‘development that meets the needs of the present
without compromising the ability of future generations to meet
their own needs’.5 Vellore and the Court’s approach to sustainable
development have been widely quoted in subsequent judgments by
Indian courts to achieve diverse objectives. One case in particular

3. A. P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718;

M. C. Mehta v. Union of India (2009) 6 SCC 142; Glanrock Estate (P) Ltd.
v. State of Tamil Nadu (2010) 10 SCC 9; G. Sundarrajan v. Union of India
(2013) 6 SCC 620.
4. Vellore Citizens’ Welfare Forum v. Union of India and Ors (1996) 5
SCC 647.
5. World Commission on Environment and Development, Report of the
World Commission on Environment and Development: Our Common Future
(OUP 1987) 41. The page cited here corresponds to the online version
available at <http://www.un-documents.net/our-common-future.pdf>
accessed 12 October 2018.

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 Introduction 11

that Bandopadhyay discusses is the Narmada judgment6 in which

the majority opinion rejects a challenge to a massive dam project.
Narmada provides a window to understand the ways in which the
judiciary frames the interests before it—environmental protection
versus economic development; interests of the liberal administrative
State versus interests of those the State chooses to disenfranchise.
As case law analysis by Bandopadhyay reveals, the Supreme
Court has ‘instrumentally harnessed the vagueness inherent in
sustainable development’. He concludes that while this strategy
has allowed the Court great discretion in reaching varying and
sometimes contradictory conclusions, it has also diminished the
extent to which lawyers and litigants can expect the Court to justify
its determinations. However, the chapter cautions that interpretive
flexibility in itself may not be undesirable, as it leaves the field of
legal argumentation and political struggle relatively open.
Chapter 4 discusses the polluter pays principle and the manner
in which it has been operationalised by Indian courts. The origin of
the principle, as Bhullar discusses, can be traced to the economic
theory of externalities from where it made its way to the Organisation
for Economic Cooperation and Development (OECD) Guiding
Principles on environmental policies. Subsequently, the principle
found (implicit) expression in the Brundtland Commission Report,
and then as Principle 16 of the Rio Declaration 1992. The principle
was first invoked by the Supreme Court in its 1996 judgment in the
Bichhri case,7 and soon after in the Vellore case. As the application
of the principle leads to the question of liability for causing
pollution and restoring the damaged environment, the chapter
in particular explores the link between the polluter pays principle
and the absolute liability principle developed by the Supreme
Court. Bhullar poses five questions to understand how the Indian
courts have operationalised the polluter pays principle—who is the
polluter; how and when is the application of the principle triggered;

6. Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664.

7. Indian Council for Enviro-legal Action v. Union of India (1996) 3 SCC
212.

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 12 Introduction

how is the loss assessed and the compensation determined; what

does the polluter pay; and finally, what are the limits of the
principle? Bhullar concludes that while the flexible approach in
which the Indian judiciary has applied the principle has allowed
different aspects of the principle to be fleshed out, it has also led to
courts speaking in contradictory voices. She is concerned that the
principle has not had the desired deterrent effect and that its ability
to ensure justice for victims of pollution is unclear.
In Chapter 5, Lavanya Rajamani explores the conceptual
underpinnings of the precautionary principle, tracing its definition,
interpretation and legal status in international law, before turning
to Indian law. The precautionary principle finds its way into Indian
environmental jurisprudence again through the Vellore judgment.
The Supreme Court in its judgment identified three elements to
the principle: the first is that ‘[e]nvironmental measures—by the
State Government and the statutory authorities—must anticipate,
prevent and attack the causes of environmental degradation’; the
second, borrowing from Principle 15 of the Rio Declaration, is that
‘[w]here there are threats of serious and irreversible damage, lack
of scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation’; and the third
element shifts the burden of proof to the developer/industrialist.8 As
Rajamani notes, the version of precautionary principle conceived
of by the Supreme Court is a ‘strong’ version, a version that does
not find wide support in international law. Her analysis of Vellore
reveals that the application of the precautionary principle in the
case appears to be at odds with the Court’s own definition. There
was no ‘threat’ of damage or scientific uncertainty—the tanneries
were irrefutably causing high levels of pollution. This lack of clarity
in the Court’s engagement with the principle, and the blurring of
lines between distinct legal principles, forms the crux of Rajamani’s
argument. The systemic problems in Indian environmental
governance perhaps explain the need for an indigenous version of
the precautionary principle that, in effect, conflates the principles

8. Vellore (n 4), para 11.

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 Introduction 13

of precaution and prevention, and reverses the burden of proof.

Rajamani concludes that while the current use of the principle may
be instrumentally useful in arriving at environmentally favourable
judicial outcomes, it does not augur well for the development of a
clear line of jurisprudence.
Chapter 6 traces the growth and application of the public trust
doctrine in Indian environmental law. The doctrine—an import
from American law (and not international law like the previous
three principles)—was introduced to Indian environmental law by
the Supreme Court in 1996 through its landmark decision in the
Kamal Nath case.9 In this case, the Court holds the State to be a
trustee of all natural resources, and hence under a legal duty to
protect such resources. Ghosh explains the contours of the doctrine,
as inferred from Indian judicial pronouncements—the source of
the doctrine, properties that are held in public trust and principles
that are applied by courts while implementing the doctrine. Courts
have found that the doctrine places restrictions on the government’s
powers to allocate natural resources; recognises a duty of the
government to take affirmative steps to protect the environment for
the enjoyment of the general public; protects public access to certain
resources; and finally, expects decision-making processes relating to
natural resources to possess certain qualities. Ghosh argues that it
is difficult to identify a core content of the doctrine that could lend
a degree of predictability to decision-making regarding public trust
properties. In the absence of a reasonably comprehensive definition
and the all-encompassing applicability of the doctrine (not just to
a limited set of resources), the value of the doctrine, independent
of constitutional and public law principles, is unclear. But at the
same time, Ghosh acknowledges the desirability of making the
doctrine more relevant, rather than insisting on its redundancy. She
proposes ways in which the doctrine may be predictably triggered,
and the nature of protection that may then be afforded to natural
resources held in trust.

9. M. C. Mehta v. Kamal Nath (1997) 1 SCC 388.

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 14 Introduction

In the final chapter of the volume, Chapter 7, Dhvani Mehta

explores the various mechanisms adopted by Indian courts to
implement their orders in environmental cases. To fully grasp
the role of the four legal principles discussed in Chapters 3–6 in
Indian environmental governance, it is important to understand
the manner in which courts operationalise their implementation.
Chapter 7 refers to the distinction between executive and judicial
functions, and demonstrates the various ways in which the Indian
judiciary, in effect, stands in for the executive. It gives an overview
of the compliance and enforcement mechanisms available to
environmental regulatory authorities in India, and then, with
references to case law (many of which rely on one or more of the
four legal principles), illustrates the implementation mechanisms
developed by the courts. These mechanisms serve three distinct
purposes: evidence-gathering, monitoring and prevention of
environmental damage and remediation. The chapter then analyses
the effectiveness of these mechanisms in the context of some
landmark cases like Vellore, Bichhri, Godavarman10 and the Oleum Gas
Leak case.11 Mehta clarifies that although an important parameter
to judge the effectiveness of an environmental judgment is to assess
the resulting environmental quality, her inquiry is a narrower
one—what are the mechanisms that Indian courts have adopted
to support and monitor the implementation of their judgments.
She concludes that judicial implementation mechanisms have
had mixed success. While various external factors influence the
implementation process, there are also certain internal weaknesses
that must be acknowledged: courts have been inconsistent while
deploying implementation mechanisms, their orders require more
robust legal reasoning and they need to integrate better with the
existing regulatory framework.
Although the four legal principles discussed in Part II of the
volume have different origins and implications, there are certain

10. Various orders and judgments in T. N. Godavarman v. Union of India

WP (C) No. 202/1995.
11. M. C. Mehta v. Union of India (1986) 2 SCC 176.

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 Introduction 15

common themes that each chapter has reflected upon. These

themes are important to consider while analysing the evolution and
future of Indian environmental law and litigation.
First, Indian courts have created indigenous versions of these
legal principles which often do not bear much resemblance to either
the conventional definition of these principles in international or
foreign law (from where the principle is sourced) or to previous
interpretations by Indian courts. Courts have moulded the
principles to fit unique fact situations, rather than first assessing
the relevance of the principle in the particular factual scenario,
and then applying or rejecting it. As contributors to this volume
discuss, various explanations have been offered by the Supreme
Court to explain the importation of these principles into Indian
environmental law. These explanations may not have a firm
historical standing in Indian law or international law, but the legal
principles are now well rooted in Indian environmental law (and
more recently, in statutory law).
Second, there appears to be a ‘definitional crisis’ in the principles
discussed. As the case law analysis highlights, Indian courts have
defined and interpreted the principles in ways that are vague and
inconsistent, and which do not lend themselves to application
based on objective measures or tests. While dealing with a (mostly)
non-responsive executive machinery and/or limited legislative
mandate, judges have created a space for themselves—essentially
supported by the lack of a clear definition or predictable criteria
that can trigger a particular principle.
Third, these legal principles are mostly used in conjunction
with other principles and statutory obligations, and therefore the
independent legal value of these principles is unclear. For instance,
in the context of the precautionary principle and public trust
doctrine, the final legal outcome of a case may not necessarily turn
on the application of the principle, but on the interplay of a variety
of other factors, such as the extent of statutory violations and the
nature of environmental degradation and harm. On occasion then,
the application of these principles obfuscates more than it clarifies.

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 16 Introduction

Finally, and perhaps as a corollary to the previous two themes,

these principles may be rendered redundant given the manner
in which the courts are invoking them—inconsistently and with
little internal coherence. In order to protect these principles
from becoming irrelevant, authors propose alternative theoretical
constructs that interpret principles differently and/or more
narrowly.

Conclusion

The chapters collectively recognise the challenges faced in

Indian environmental governance as well as the numerous forces
that influence executive and judicial decision-making—factors
that have influenced the judiciary’s progressive expansion of its
argumentation tool box. This approach, often adopted by litigants,
involves the invocation of various permutations of rights, legal
principles, concepts and rules, even when the resulting claims go
beyond traditional legal positions associated with such rules and
standards. A high degree of definitional flexibility in the legal
principles—as evident from the case law analyses in this volume—
allows them to be applied to a diverse set of situations. It allows
public-spirited citizens and project-affected persons battling
corporations, bureaucracies, and even their government, to resort
to a wider set of legal arguments. The judiciary has nurtured this
tool box approach with its inclination to creatively interpret the law
to arrive at a fruitful judgment. With litigants and lawyers pursuing
their cases with every potentially relevant tool, the outcome of the
case could hinge on which tool(s) the judge considers relevant and
how the judge uses it/them. The chapters in this volume uniformly
suggest that analytical clarity and consistency in the application of
these environmental rights and legal principles, that is, sharpening
the tools, as it were, would make judicial decisions more robust and
less vulnerable to legal (and popular) challenges.
The aim of this volume is to trigger a larger discussion in
environmental regulation and, more specifically, law and litigation

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 Introduction 17

about the nature and quality of arguments that are raised during
the resolution of natural resource conflicts. Environmental law
is expected to govern issues that are multifarious and constantly
evolving. The legal system, accordingly, has to develop a level of
sophistication and maturity that meaningfully responds to these
issues. The exercise of judicial discretion must be based on, and
circumscribed by, conceptually sound and nuanced legal arguments
that emanate from a robust framework of environmental rights and
legal principles.

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All Chapters.indd 18 1/18/2019 3:28:33 PM
 Part I

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All Chapters.indd 20 1/18/2019 3:28:33 PM
 one

The Judiciary and the Right

to Environment in India
Past, Present and Future

Lovleen Bhullar*

Over the years, there has been an increased endorsement of the

right to environment or an environmental right at the international
level.1 However, differences of opinion persist in respect of the

* I would like to thank Shibani Ghosh for her insights and advice on the
finalisation of this chapter.
1. See, for example, James W. Nickel, ‘The Human Right to a Safe
Environment: Philosophical Perspectives on Its Scope and Justification’
(1983) 18 Yale Journal of International Law 281; Dinah Shelton, ‘Human
Rights, Environmental Rights, and the Right to Environment’ (1991)
28 Stanford Journal of International Law 103; Sumudu Atapattu, ‘The
Right to a Healthy Life or the Right to Die Polluted? The Emergence
of a Human Right to a Healthy Environment under International Law’
(2002) 16 Tulane Environmental Law Journal 65; Dinah Shelton, ‘Human
Rights and the Environment: What Specific Environmental Rights Have
Been Recognised?’ (2006) 35 Denver Journal of International Law and
Policy 129; John G. Merrills, ‘Environmental Rights’ in Daniel Bodansky,
Jutta Brunnee and Ellen Hey (eds) The Oxford Handbook of International
Environmental Law (OUP 2008) 663; Jona Razzaque, ‘Right to a Healthy

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 22 Lovleen Bhullar

formulation of the right: as an independent, substantive right that

also accommodates the right of environment; as a right derived
from existing human rights; or as a procedural right.2 Concern has
also been expressed about the anthropocentric basis of the right, its
limited application depending on the interests of the claimants, and
potential conflict or synergy with other rights.3
The implementation of the right depends on its inclusion in
domestic environmental law—either in a country’s constitution or
in its national law. There is no explicit reference to the right to
environment either in the Constitution of India or in any of the
domestic environmental laws.4 However, the right is well established
in domestic law as a result of judicial interventions. The purpose of
this chapter is to unpack the right to environment, as recognised by
the judiciary in India.
The chapter is structured as follows: the next section considers
the source of the right to environment—both substantive and
procedural—in Indian law. This is followed by an examination
of the different anthropocentric formulations of the right. The

Environment in Human Rights Law’ in Mashood A. Baderin and Manisuli

Ssenyonjo (eds) International Human Rights Law: Six Decades After the
UDHR and Beyond (Ashgate 2010) 115; Dinah Shelton, ‘Developing
Substantive Environmental Rights’ (2010) 1(1) Journal of Human Rights
and the Environment 89.
2. See Michael R. Anderson, ‘Human Rights Approaches to
Environmental Protection: An Overview’ in Alan Boyle and Michael
R. Anderson (eds) Human Rights Approaches to Environmental Protection
(Clarendon Press 1998) 1, 4–10.
3. See generally Boyle and Anderson (n 2).
4. National environmental laws in India comprise a general law,
that is, the Environment (Protection) Act 1986 (EP Act), special laws,
including laws relating to forests, such as the Indian Forest Act 1927
and the Forest (Conservation) Act 1980; laws relating to wildlife, such
as the Wildlife (Protection) Act 1972; laws relating to pollution, such as
the Water (Prevention and Control of Pollution) Act 1974 (Water Act)
and the Air (Prevention and Control of Pollution) Act 1981 (Air Act), as
well as delegated legislation, including a number of rules, regulations and
notifications, which have been framed under these laws.

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 The Judiciary and the Right to Environment in India 23

fourth section analyses judicial developments that reflect the

accommodation of an ecocentric perspective. The fifth section
considers some of the outcomes of judicial recognition of the right
to environment, and the challenges relating to its realisation. The
final section provides brief concluding remarks.

Right to Environment: Genesis in Law

This section first briefly examines the substantive basis of the right
to environment and then discusses the procedural law basis that
has facilitated its development.

Substantive Basis

Indian courts have identified, explicitly or implicitly, different legal

sources of the right to environment.

Link with the Fundamental Right to Life

The most commonly discussed source of the right to environment

is Article 21 of the Constitution, which guarantees the fundamental
right to life.5 The ‘activism’ or ‘creativity’6 of the higher judiciary
(the Supreme Court of India and High Courts) has been widely
credited with the incorporation of the right to environment into
the fundamental right to life. In fact, it is believed by some that the
Supreme Court, more than any other jurisdiction, has ‘fostered an

5. The Constitution of India 1950, Article 21 reads, ‘No person shall

be deprived of his life or personal liberty except in accordance with the
procedure established by law’.
6. Lavanya Rajamani, ‘Public Interest Environmental Litigation in
India: Exploring Issues of Access, Participation, Equity, Effectiveness and
Sustainability’ (2007) 19(3) Journal of Environmental Law 293, 294. See
generally S. P. Sathe, Judicial Activism in India: Transcending Borders and
Enforcing Limits (OUP 2001).

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 24 Lovleen Bhullar

extensive and innovative jurisprudence on environmental rights’.7

The higher judiciary’s approach reflects the formulation of the right
to environment as a right derived from an existing right, that is,
the fundamental right to life in the Constitution. The relationship
between the fundamental right to life and the right to environment
has been expressed in different forms.
First, there is an implicit recognition of a link between the
fundamental right to life and the environment, which predates
the explicit recognition of the right to environment. As early as in
1981, the Supreme Court observed that the right to life includes
‘the right to live with human dignity and all that goes along with
it, namely, the bare necessaries of life’.8 This was followed by an
indicative list of what is included in the bare necessaries of life.
Although the environment is not explicitly mentioned, the use of
the term ‘such as’ suggests that this is merely an illustrative list.
In other words, it does not appear to rule out the possibility of
including the environment in the ‘bare necessaries of life’ in the
facts and circumstances of a particular case. The Court also held
that the right to life embraces ‘not only physical existence of life but
the quality of life’.9 Arguably, a certain threshold of environmental
quality is essential to ensure human dignity and to guarantee a
minimum quality of life. However, it is pertinent to mention that
environmental issues were not raised in these cases.
In fact, the Supreme Court10 has traced the origins of the right
to environment to its decision in Bandhua Mukti Morcha v. Union

7. Michael R. Anderson, ‘Individual Rights to Environmental Protection

in India’ in Boyle and Anderson (n 2) 199.
8. See Francis Coralie Mullin v. The Administrator, Union Territory of Delhi
and Ors (1981) 1 SCC 608, para 8.
9. See State of Himachal Pradesh and Anr v. Umed Ram Sharma and Ors
(1986) 2 SCC 68, para 11.
10. See A. P. Pollution Control Board II v. Prof. M.V. Nayudu (Retd) and
Ors (2001) 2 SCC 62 (APPCB II), para 7. The Court observed, ‘Our
Supreme Court was one of the first Courts to develop the concept of right
to “healthy environment” as part of the right to “life” under Article 21 of
our Constitution. (See Bandhua Mukti Morcha v Union of India.)’

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 The Judiciary and the Right to Environment in India 25

of India.11 Although there is no explicit reference to the right to

environment in this case, a number of observations made by the
Court are relevant. First, after reading the relevant provisions of
the Mines Act 1952, the Court recognised the need to ensure that
the workers can live a ‘healthy decent life’.12 Second, the Court
issued directions to stop air pollution after observing that the dust
resulting from the operation of the stone crushers was the cause of
air pollution, reduced visibility, and was a serious health hazard to
the workmen.13 Third, it observed that ‘there can be no doubt that
pure drinking water is absolutely essential to the health and well-
being of the workmen and some authority has to be responsible
for providing it’.14 Fourth, the Court relied on the statement in the
expert’s report that ‘vast open mountain dug-up without a thought
as to environment is used by men and women and children as one
huge open latrine’ to direct the government to ensure the provision
of ‘conservancy facilities in the shape of latrines and urinals’.15
This decision is significant as the Court, after referring to the
fundamental right to live with human dignity that is enshrined in
Article 21 of the Constitution, and observing that this right derives
its life breath from Directive Principles of State Policy (DPSP), (i)
implicitly recognised several rights, such as to health, clean drinking
water, sanitation, clean air and life itself, (ii) of a vulnerable section
of society, that is, workmen, and (iii) within the framework of the
statutory duties of the government.
According to the Court, protection of workers’ health,
opportunities for children to develop in a healthy manner, just and
humane conditions of work and maternity relief were included in
the right to life with human dignity. The Court held:
These are the minimum requirements which must exist
in order to enable a person to live with human dignity and

11. (1984) 3 SCC 161.

12. Ibid., para 28.
13. Ibid., para 31.
14. Ibid., paras 8 and 33.
15. Ibid., para 34.

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 26 Lovleen Bhullar

no State—neither the Central Government nor any State

Government—has the right to take any action which will
deprive a person of the enjoyment of these basic essentials.
Since the Directive Principles of State Policy contained in
clauses (e) and (f) of Article 39, Article 41 and 42 are not
enforceable in a court of law, it may not be possible to compel
the State through the judicial process to make provision by
statutory enactment or executive fiat for ensuring these basic
essentials which go to make up a life of human dignity but
where legislation is already enacted by the State providing
these basic requirements to the workmen and thus investing
their right to live with basic human dignity, with concrete
reality and content, the State can certainly be obligated to
ensure observance of such legislation for inaction on the part
of the State in securing implementation of such legislation
would amount to denial of the right to live with human dignity
enshrined in Article 21, more so in the context of Article 256
which provides that, the executive power of every State shall
be so exercised as to ensure compliance with the laws made by
Parliament and any existing laws which apply in that State.16
Similarly, a number of cases in which environmental issues
were raised do not explicitly refer to the right to environment, but
to the right to life included in Article 21 of the Constitution. For
instance, in a case alleging environmental pollution on account of
industrial activity, the Supreme Court observed:
Every citizen has a fundamental right to have the enjoyment of
quality of life and living as contemplated by Article 21 of the
Constitution of India. Anything which endangers or impairs
by conduct of anybody either in violation or in derogation of
laws, that quality of life and living by the people is entitled to
be taken recourse of Article 32 of the Constitution.17
In another case, the Supreme Court observed:
If an industry is established without obtaining the requisite
permission and clearances and if the industry is continued to

16. Ibid., para 10.

17. Chhetriya Pardushan Mukti Sangharsh Samiti v. State of Uttar Pradesh
and Ors (1990) 4 SCC 449, para 8.

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 The Judiciary and the Right to Environment in India 27

be run in blatant disregard of law to the detriment of life and

liberty of the citizens living in the vicinity, can it be suggested
with any modicum of reasonableness that this Court has no
power to intervene and protect the fundamental right to life
and liberty of the citizens of this country.18
Second, some decisions include an explicit reference to the right
to environment although they do not specifically involve an
environmental issue. In these cases, a more general discussion on
the content of the fundamental right to life has led to the inclusion
of a reference to the right to environment. For instance, in a case
concerning a housing scheme for weaker sections of society, the
Supreme Court held that the right to life ‘would take within its
sweep ... the right to decent environment’.19
Third, some of the early cases involving environmental issues
explicitly recognise the right to environment without any reference
to the fundamental right to life. The Supreme Court has sought
to protect and safeguard ‘the right of the people to live in healthy
environment with minimal disturbance of ecological balance
and without avoidable hazard to them and to their cattle, homes
and agricultural land and undue affectation of air, water and
environment’.20 However, according to a decision of the High
Court of Andhra Pradesh, this decision ‘can only be understood on
the basis that the Supreme Court entertained those environmental
complaints under Article 32 of the Constitution as involving
violation of Article 21’s right to life’.21

18. Indian Council for Enviro-legal Action v. Union of India and Ors (1996)
3 SCC 212, para 54.
19. M/s Shantistar Builders v. Narayan Khimalal Totame and Ors (1990)
1 SCC 520, para 9.
20. Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh
(1985) 2 SCC 431 (RLEK 1985), para 12. According to the Court,
‘this is the first case of its kind in the country involving issues relating to
environment and ecological balance ...’ (ibid., para 1).
21. See T. Damodhar Rao and Ors v. The Special Officer, Municipal
Corporation of Hyderabad and Ors (1987) SCC OnLine AP 6, para 24.

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 28 Lovleen Bhullar

Even before the explicit recognition of the link by the Supreme

Court, some High Courts had implicitly recognised the right to
environment as a part of the fundamental right to life. For instance,
the High Court of Andhra Pradesh held:
... it would be reasonable to hold that the enjoyment of life
and its attainment and fulfillment guaranteed by Art. 21 of
the Constitution embraces the protection and preservation of
nature’s gifts without [which] life cannot be enjoyed. There
can be no reason why practice of violent extinguishment of
life alone should be regarded as violative of Art. 21 of the
Constitution. The slow poisoning by the polluted atmosphere
caused by environmental pollution and spoilation should
also be regarded as amounting to violation of Art. 21 of the
Constitution.22
Finally, some cases have explicitly recognised the right to
environment as a guaranteed fundamental right under Article 21 of
the Constitution. The Supreme Court has identified ‘pollution-free
water and air’ as essential for the enjoyment of the fundamental right
to life.23 Subsequently, the Court has traced environmental aspects
(which concern ‘life’) to Article 21 of the Constitution.24 In M. C.
Mehta v. Kamal Nath and Ors, the Court held: ‘Any disturbance
of the basic environmental elements, namely, air, water and soil,
which are necessary for “life”, would be hazardous to “life” within
the meaning of Article 21 of the Constitution’.25

Link with the Directive Principles of State Policy

The Supreme Court has referred to duties in respect of the

environment with reference to Articles 47 and 48A of the

22. Ibid., para 24. The same is the case with the recognition of the
right to water. See, for example, F. K. Hussain v. Union of India 1990 SCC
OnLine Ker 63.
23. Subhash Kumar v. State of Bihar (1991) 1 SCC 598, para 7.
24. A. P. Pollution Control Board v. Prof. M. V. Nayudu (Retd) and Ors
(1999) 2 SCC 718, para 57.
25. (2000) 6 SCC 213, para 8.

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 The Judiciary and the Right to Environment in India 29

Constitution.26 Article 48A is the only constitutional provision

that explicitly lays down the duty of the State in respect of the
environment.27 The word ‘environment’ in Article 48A of the
Constitution has been interpreted to be of ‘broad spectrum’ and
to include ‘hygienic atmosphere and ecological balance’.28 The
State has been identified as having a particular duty to ‘forge in its
policy to maintain ecological balance and hygienic environment’.29
Article 47 creates a duty for the State to raise the level of nutrition
and the standard of living and to improve public health. The High
Court of Karnataka has observed that ‘[t]he standard of living
and public health cannot be improved unless there is pollution
free air and water’.30 The Supreme Court has also held that the
DPSP included in ‘Articles 39(e), 47 and 48A by themselves
and collectively cast a duty on the State to secure the health of
the people, improve public health and protect and improve the
environment’.31
The right to environment is derived from the fundamental right
to life, which is framed as a negative right (that is, ‘no person shall
be deprived ...’).32 Therefore, it has been argued that the right to

26. Indian Council for Enviro-Legal Action (n 18), para 49; Intellectuals
Forum, Tirupathi v. State of Andhra Pradesh (2006) 3 SCC 549, paras 82
and 86.
27. Inserted by the Constitution (Forty-second Amendment) Act 1976,
s 10. The Constitution of India, Article 48A, reads, ‘[T]he State shall
endeavor to protect and improve the environment and to safeguard the
forests and wild life of the country’.
28. Virender Gaur and Ors v. State of Haryana and Ors (1995) 2 SCC
577, para 7.
29. Ibid.
30. See C. Kenchappa and Ors v. State of Karnataka and Ors ILR 2000
KAR 1072, 1078.
31. See M. C. Mehta v. Union of India and Ors (2002) 4 SCC 356 (CNG
vehicles case), para 1.
32. Lavanya Rajamani, ‘The Right to Environmental Protection in
India: Many a Slip between the Cup and the Lip?’ (2007) 16(3) Review of
European Community and International Environmental Law 274, 278.

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 30 Lovleen Bhullar

environment is not an actionable self-executing right.33 DPSP are

‘fundamental in the governance of the country’ and it is ‘the duty of
the State to apply these principles in making laws’, but they are not
intended to be ‘enforceable by any court’.34 However, the Supreme
Court has read the fundamental rights in conjunction with the
DPSP, ‘like two wheels of a chariot, one no less important than
the other’.35 The combined reading of Article 21 and Article 48A
of the Constitution has allowed the Court to interpret the right to
environment, which is read into the (primarily negative) right to
life, as imposing both positive and negative duties on the State, to
protect, respect and fulfil the right to environment.36

Link with the Fundamental Duty of Citizens

The State is not the only duty-bearer in respect of the right to

environment. The Constitution also imposes a fundamental duty
on citizens to protect and improve the environment.37 The Supreme
Court observed:
Preservation of the environment and keeping the ecological
balance unaffected is a task which not only governments but
also every citizen must undertake. It is a social obligation and

33. Ibid.
34. The Constitution of India, Article 39.
35. See Minerva Mills v. Union of India (1980) 3 SCC 625, para 56. See
also Kesavananda Bharati and Ors v. State of Kerala and Anr (1973) 4 SCC
225; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India
and Ors (1981) 1 SCC 246; Unnikrishnan v. State of Andhra Pradesh (1993)
1 SCC 645.
36. See Shubhankar Dam and Vivek Tewary, ‘Polluting Environment,
Polluting Constitution: Is a “Polluted” Constitution Worse than a Polluted
Environment?’ (2005) 17(3) Journal of Environmental Law 383, 386.
37. The Constitution of India, Article 51A(g), imposes a duty on every
citizen ‘to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living creatures ...’.

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 The Judiciary and the Right to Environment in India 31

let us remind every Indian citizen that it is his fundamental

duty as enshrined in Article 51-A(g) of the Constitution.38
Similarly, after referring to the broad spectrum of the word
‘environment’ in Article 51A(g) to include ‘hygienic atmosphere
and ecological balance’, the Court also highlighted the duty of
every citizen to maintain a hygienic environment.39 As in the case
of the DPSP discussed earlier, which imposes a duty on the State
corresponding to the right to environment of the citizens, arguably,
this fundamental duty of the citizens corresponds to the right to
environment of other citizens.
Further, the National Green Tribunal (NGT) has relied on
Article 51A(g) of the Constitution to give a liberal and flexible
construction to ‘person aggrieved’ in cases brought under the
National Green Tribunal Act 2010 (NGT Act).40 In this form,
citizens may discharge their fundamental duty by drawing the
attention of the NGT to cases of non-realisation of the right to
environment of other citizens.

Procedural Basis

Under Articles 32 and 226 of the Constitution, the Supreme Court

and High Courts, respectively, have original jurisdiction over all
cases concerning fundamental rights. Adherence to the traditional
view of standing would mean that the judiciary’s expansive
reading of Article 21 of the Constitution, to include the right to
environment, would only permit those with personal interest
to approach the courts in case of violation of their fundamental
right. The introduction of a procedural innovation—public interest

38. Rural Litigation and Entitlement Kendra and Ors v. State of Uttar
Pradesh and Ors (1986) Supp SCC 517 (RLEK 1986), para 20.
39. Gaur (n 28), para 7.
40. See Vimal Bhai and Ors v. Ministry of Environment and Forests and
Ors, Appeal No. 5/2011, judgment dated 14 December 2011, NGT
(Principal Bench).

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litigation (PIL)—provided the necessary fillip to the recognition

and realisation of the right to environment, by opening the doors of
the courts to litigants espousing public interest.41
The development of PIL in India has been traced to judicial
recognition of the need to benefit the persons who by virtue of
their ‘socially or economically disadvantaged position are unable
to approach the court for judicial redress’.42 There are a number
of important features of PIL.43 In terms of access to the court,
the traditional rule of locus standi has been relaxed, as a result of
which ‘public-spirited citizens’ are granted representative standing
(where the cause of the poor and the oppressed is being espoused)
or citizen standing (where the performance of public duties is
being enforced). Further, the formal requirements regarding the
lodging of a petition are simplified. For instance, courts can even
admit a postcard as a petition (which is referred to as epistolary
jurisdiction). Judicial proceedings are no longer viewed as being
adversarial, and a court-appointed commission can engage in

41. For more information, see Bharat Desai, ‘Enforcement of the Right
to Environment Protection through Public Interest Litigation in India’
(1993) 33 Indian Journal of International Law 27; J. Mijin Cha, ‘A Critical
Examination of the Environmental Jurisprudence of the Courts of India’
(2005) 10 Albany Law Environmental Outlook Journal 197.
42. See S. P. Gupta v. Union of India (1981) Supp SCC 87, para 16.
43. The origin, development, advantages and limitations of public
interest litigation have been extensively documented. See, for example,
Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the
Supreme Court of India’ (1985) 4 Third World Legal Studies 107; Clark
D. Cunningham, ‘Public Interest Litigation in the Indian Supreme Court:
A Study in the Light of American Experience’ (1987) 29(4) Journal of
the Indian Law Institute 494; P. P. Craig and S. L. Deshpande, ‘Rights,
Autonomy and Process: Public Interest Litigation in India’ (1989) 9(3)
Oxford Journal of Legal Studies 356; Ashok H. Desai and S. Muralidhar,
‘Public Interest Litigation: Potentials and Problems’ in B. N. Kirpal et al.
(eds), Supreme but Not Infallible: Essays in Honour of the Supreme Court of
India (OUP 2000) 159; Anuj Bhuwania, ‘Courting the People: The Rise
of Public Interest Litigation in Post-Emergency India’ (2014) 34(2)
Comparative Studies of South Asia, Africa and the Middle East 314.

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 The Judiciary and the Right to Environment in India 33

the exercise of collection of evidence. Insofar as remedies are

concerned, the court can order far-reaching remedial measures and
supervise and monitor their execution.
As in the case of the substantive basis of the right to environ­
ment, the development of the procedural basis can also be traced
to the ideals of social justice enshrined in DPSP.44 Courts have
also acknowledged the pursuit of public interest environmental
litigation as an expression of the fundamental duty of every citizen
to protect and improve the natural environment, which is set out
in Article 51A(g) of the Constitution.45 The NGT has relied on
Article 51A(g) of the Constitution to give a liberal and flexible
construction to ‘person aggrieved’ in environmental cases,46 thus
increasing the pool of people who can approach the NGT. Similarly,
other judgments of the NGT have adopted a liberal approach while
interpreting the definition of ‘aggrieved person’.47 Chapter 2 of this
volume provides a more detailed account of the procedural aspects
of the right to environment in India.

Formulations of the Right

There are different formulations of the right to environment.

This subsection explores some of these formulations, which have
received scholarly attention to varying extents. The articulation of
the right by the Indian judiciary reflects an anthropocentric bias.

44. Craig and Deshpande, ibid., 365–66.

45. See, for example, RLEK 1986 (n 38), para 20; L. K. Koolwal v. State
of Rajasthan and Ors (1986) SCC OnLine Raj 43, paras 2–3.
46. See Vimal Bhai (n 40).
47. See, for example, Jan Chetna v. Ministry of Environment and Forests,
Appeal No. 22/2011 (TH), judgment dated 9 February 2012, NGT
(Principal Bench); Goa Foundation and Anr v. Union of India and Ors, OA
No. 26/2012, judgment dated 18 July 2013, NGT (Principal Bench);
Betty C. Alvares v. State of Goa and Ors, OA No. 63/2012, order dated 14
February 2014, NGT (Western Zone Bench).

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Protection of Environment and

Conservation of Natural Resources

Indian courts have interpreted the right to environment to include

protection of environment and conservation of natural resources.48
The Environment (Protection) Act 1986 (EP Act) provides for the
protection and improvement of environment, and it defines the
term ‘environment’ very broadly to include ‘water, air and land and
the inter-relationship which exists among and between water, air
and land, and human beings, other living creatures, plants, micro-
organism and property’.49 Thus, the provisions of the EP Act offer
some indication of the nature of environmental protection that
is envisaged by the lawmakers and that is to be ensured by the
implementing agencies. Of course, the actual level of environmental
protection will depend on several factors including economic
constraints, environmental factors and development priorities.50
Although courts have not defined the term ‘conservation’, the
emphasis on the need for conservation of natural resources is
clearly motivated by the need to ensure their availability for human
use—whether it is sustainable use or not is another question. For
instance, the Supreme Court has held that mining operations
impair the right to natural resources.51
The Constitution is clearer in respect of this formulation of the
right to environment in the context of the corresponding duties,
which can be traced to Article 48A of the Constitution. This is also
reflected in judicial decisions, explicitly or implicitly. The Supreme
Court has explicitly referred to Article 48A while recognising the
constitutional imperative on the state and local governments to

48. Intellectuals Forum (n 26), para 86. See also Kinkri Devi and Anr
v. State of Himachal Pradesh and Ors (1987) SCC OnLine HP 7, para 8.
The High Court of Himachal Pradesh mentions ‘preservation and
protection of the ecology, the environment and the natural wealth and
resources’ in the context of Article 21 of the Constitution.
49. EP Act s 2(a).
50. See Rajamani (n 32) 278.
51. M.C. Mehta v. Union of India (2001) 4 SCC 577.

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 The Judiciary and the Right to Environment in India 35

‘ensure and safeguard proper environment’ and to ‘take adequate

measures to promote, protect and improve both the man-made
and the natural environment’.52 In other cases, without referring
to Article 48A of the Constitution, the Court has observed that
the right to environment imposes a duty to ensure conservation
and preservation of resources.53 It has also clearly specified the
purpose behind the imposition of the duty, that is, to ensure that
present and future generations are equally aware of the resources.54
Although the Court does not specify the nature of the resources
and who is the duty-bearer, this is, arguably, a reference to natural
resources and the State, respectively.

Ecological Balance

The right to environment has also been viewed through the lens of
ecological balance. In general parlance, ecological balance refers
to the equilibrium between organisms and between organisms and
their physical surroundings. According to the Supreme Court:
Environmentalists’ conception of the ecological balance in
nature is based on the fundamental concept that nature is ‘a
series of complex biotic communities of which a man is an
interdependent part’ and that it should not be given to a part
to trespass and diminish the whole.55
A number of decisions include references to the need to maintain,
preserve, protect or improve (or take prudent care of) ecological
balance, or to cause minimal disturbance to the ecological
balance56 (not to destroy or affect or devastate ecological balance,
or to cause or create ecological imbalance).57 It has been argued
that what constitutes ‘ecological balance’ in a given case and

52. Gaur (n 28), para 7.

53. Intellectuals Forum (n 26), para 84.
54. Ibid.
55. State of Bihar v. Murad Ali Khan (1988) 4 SCC 655, para 10.
56. RLEK 1985 (n 20), para 12.
57. Chhetriya Pardushan (n 17), para 7.

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 36 Lovleen Bhullar

how it can be maintained are difficult questions and entail a

scientific enquiry, which is beyond the competence of the Court.58
Nevertheless, courts have attempted to answer these questions. For
instance, the Supreme Court has noted that ‘material resources of
the community like forests, tanks, ponds, hillock, mountain etc.
are nature’s bounty. They maintain delicate ecological balance.’59
The Court has also identified practices that disturb the ecological
balance, such as deforestation,60 the killing of animals and birds61
and the working of mines for exploitation of mineral resources.62
Perhaps, as a reflection of the fact that the right to environment
draws its life from the fundamental right to (human) life, its
articulation in terms of ecological balance is also predicated
on anthropocentrism. This has led to the observation that the
Supreme Court appears to be conflating threats to ecology with
threats to health.63 A good example is when the Court sought to
protect and safeguard ‘the right of the people to live in healthy
environment with minimal disturbance of ecological balance and
without avoidable hazard to them and to their cattle, homes and
agriculture and undue affectation of air, water and environment’.64
Similarly, the Court has held that ‘any threat to ecology can lead
to violation of the right to enjoyment of a healthy life guaranteed
under Article 21’.65 In another case, the rationale for the protection
of the material resources of the community was ‘a proper and
healthy environment which enables people to enjoy a quality life
which is the essence of the guaranteed right under Article 21’.66

58. Rajamani (n 32) 278.

59. Hinch Lal Tiwari v. Kamala Devi (2001) 6 SCC 496, para 13.
60. T. N. Godavarman Tirumulpad v. Union of India and Ors (2006) 5
SCC 47.
61. Union of India v. Zavaray S. Poonawala and Ors (2015) 7 SCC 347.
62. RLEK 1986 (n 38).
63. Rajamani (n 32) 278.
64. RLEK 1985 (n 20), para 12.
65. T. N. Godavarman (87) v. Union of India (2006) 1 SCC 1, para 77.
66. Hinch Lal (n 59), para 13.

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 The Judiciary and the Right to Environment in India 37

Pollution

A third formulation of the right to environment is linked to pollution.

In some cases, this is expressed as the right to live in a ‘pollution-
free’ environment,67 atmosphere68 or water and air,69 or to fresh
air.70 However, it is widely accepted that the right to pollution-free
environment is meaningless and unrealistic.71 Even the Supreme
Court has acknowledged that ‘[e]nvironmental changes are the
inevitable consequences of industrial development’.72 In other
words, some pollution is inevitable and freedom from pollution
means prevention and control of an elevated level of pollution.73
It has been suggested that the courts do not provide any
concrete guidance as to acceptable levels of pollution.74 However,
courts have restricted the scope of the right to pollution-free
environment to reduction in the quality of life of others,75 to
environmental quality that becomes a hazard to human health,76
and to irreversible environmental damage.77 The Supreme Court
has also laid down a requirement in order to allege a violation of the
right: the endangerment or impairment of quality of life resulting

67. See M. C. Mehta v. Union of India (1992) 3 SCC 256, para 2.

68. Vellore Citizens’ Welfare Forum v. Union of India and Ors (1996) 5
SCC 647, paras 16–17.
69. Charan Lal Sahu v. Union of India (1990) 1 SCC 613, para 137;
Subhash Kumar (n 23), para 7; Mehta (n 67), para 2; Gaur (n 28), para 7.
70. Mehta (n 67), para 2.
71. Rajamani (n 32) 279; Gitanjali Nain Gill, ‘Human Rights and the
Environment in India: Access through Public Interest Litigation’ (2012)
14(3) Environmental Law Review 200, 205.
72. Mehta (n 67), para 2.
73. Rajamani (n 32) 279; Gill (n 71) 205.
74. Rajamani, ibid.
75. M. C. Mehta v. Union of India and Ors (2004) 12 SCC 118, para 46.
76. M. C. Mehta v. Union of India and Ors (2001) 3 SCC 756.
77. Mehta (n 75), para 45.

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from a violation of the right must be in derogation of (pollution-

related) laws.78
Domestic environmental laws have defined the term
‘pollution’,79 and statutory bodies have prescribed standards for the
discharge of various pollutants into the environment. However, the
fact that the outer limit of the acceptable level of pollution has been
prescribed does not necessarily mean that first, the standard would
be complied with, and second, that compliance with the statutory
standards will lead to the realisation of the right to environment.
Here, it is important to take into account the dissatisfaction with the
existing standards in terms of their ability to address environmental
problems,80 and the extent to which it is possible to comply with
them.81

78. Subhash Kumar (n 23), para 7.

79. Water ‘pollution’ means ‘such contamination of water or such
alternation of the physical, chemical or biological properties of water or
such discharge of any sewage or trade effluent or of any other liquid, gaseous
or solid substance into water (whether directly or indirectly) as may, or is
likely to create, a nuisance or render such water harmful or injurious to
public health or safety, or to domestic, commercial, industrial, agricultural
or other legitimate uses, or to the life and health of animals or plants or of
aquatic organisms’. See Water Act, s 2(e). ‘Air pollution’ means ‘any solid,
liquid or gaseous substance (including noise) present in the atmosphere in
such concentration as may be or tend to be injurious to human beings or
other living creatures or plants or property or environment’. See Air Act,
s 2(a). ‘Environmental pollution’ means ‘the presence in the environment
of any environmental pollutant’, that is, ‘any solid, liquid or gaseous
substance present in such concentration as may be, or tend to be, injurious
to environment’. See EP Act s 2(c) read with s 2(b).
80. See, for example, Susan G. Hadden, ‘Statutes and Standards for
Pollution Control in India’ (1987) 22(16) Economic and Political Weekly
709; Aparna Sawhney, ‘Managing Pollution: PIL as Indirect Market-
Based Tool’ (2003) 38(1) Economic and Political Weekly 32; T. Rajaram and
Ashutosh Das, ‘Water Pollution by Industrial Effluents in India: Discharge
Scenarios and Case for Participatory Ecosystem Specific Local Regulation’
(2008) 40 Futures 56.
81. See, for example, Manju Menon and Kanchi Kohli, ‘Environmental
Regulation in India: Moving “Forward” in the Old Direction’ (2015) 50(50)

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 The Judiciary and the Right to Environment in India 39

Link with Socioeconomic Rights

The enjoyment of a number of socioeconomic rights that have

also been read into the fundamental right to life guaranteed
under Article 21 of the Constitution, such as the rights to health,
housing, water and sanitation, is inextricably linked with the right
to environment.

Right to Health

Historically, concerns relating to public health have underpinned

the legal and policy framework concerning environmental pollution.
In many cases, this approach resonates in the judicial formulation
of the right to environment. The Supreme Court has viewed the
fundamental right to life, of which a hygienic environment forms
an integral part, as ‘healthy’ life, thus reinforcing the very close link
between health and environment.82 The Court has also highlighted
the essential role of a humane and healthy environment in order to
live with human dignity.83 The Court has further observed: ‘[t]he
right to have living atmosphere congenial to human existence is a
right to life’.84 In a more recent decision, the NGT has observed that
domestic environmental jurisprudence understands the concept
of environment as ‘hygienic, clean and decent’.85 These decisions
appear to reflect a narrow conception of the environment—linked

Economic and Political Weekly 20. See also P. M. Prasad, ‘Environment

Protection: Role of Regulatory System in India’ (2006) 41(13) Economic
and Political Weekly 1278.
82. Gaur (n 28), para 7.
83. Ibid. On ‘healthy’ environment, see also RLEK 1985 (n 20),
para 12; APPCB II (n 10), paras 4, 6, 7 and 11; Intellectuals Forum (n 26),
para 84. On ‘humane’, ‘healthy’ and ‘hygienic’ environment, see also State
of Madhya Pradesh v. Kedia Leather and Liquor Ltd and Ors (2003) 7 SCC
389, para 10.
84. Gaur (n 28), para 6.
85. Kehar Singh v. State of Haryana, OA No. 124/2013, judgment dated
12 September 2013, NGT (Principal Bench), para 28.

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to human health and concerned with the immediate environment/

surroundings rather than adopting a holistic approach towards the
natural environment. Further, it has been argued that the use of
adjectives ‘leave[s] ample scope for value judgments and judicial
discretion’ and ‘subjective opinion’.86
In C. Kenchappa and Ors v. State of Karnataka and Ors, the
High Court of Karnataka traced the origin of the right to a
‘wholesome’ environment to the decision of the Supreme Court
in Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh.87
Interestingly, neither this decision nor any other decision of the
Supreme Court actually uses the term ‘wholesome’. In common
parlance, as well as in laws, however, the term is used in the context
of being favourable to human health.

Right to Water

The provision of ‘pure’ and ‘wholesome’ drinking water for

domestic purposes is a statutory responsibility of urban and
rural local bodies.88 Further, the maintenance or restoration of
wholesomeness of water for different uses is one of the objectives of
the Water (Prevention and Control of Pollution) Act 1974 (Water
Act). In light of the fact that the sources of water supply for human
needs form an integral component of the environment, there is
a direct link with the right to environment. The judiciary, which
has read the right to water into the right to life guaranteed under
Article 21 of the Constitution, adopts a more restricted approach,
given its predominant focus on water for drinking purposes. In this

86. See, for example, Rajamani (n 32) 279 [in respect of the terms
‘decent’ and ‘congenial’]. See generally Alan Boyle, ‘Human Rights or
Environmental Rights: A Reassessment’ (2007) 18 Fordham Environmental
Law Review 471, 507.
87. Kenchappa (n 30) 1078 [referring to RLEK 1985 (n 20)].
88. See, for example, Uttar Pradesh Municipalities Act 1916; Uttar
Pradesh Panchayat Raj Act 1947.

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 The Judiciary and the Right to Environment in India 41

context, judicial decisions have recognised the right to ‘clean’,89

‘pure’,90 ‘safe’,91 ‘sweet’92 or ‘wholesome’ water. They have also
recognised the duty of the State to provide clean,93 unpolluted94
or safe95 drinking water. Some of these cases also impose a duty
to protect water sources through prevention or control of water
pollution.
Article 21 of the Constitution has not provided the exclusive
basis of the right to water.96 For instance, the High Court of Madhya
Pradesh has ruled that under Article 47 of the Constitution, the
State has the ‘primary’ responsibility to ‘improve the health of
public [by] providing unpolluted drinking water’.97 Based on a
combined reading of Articles 21 and 47, the Court concluded that
the State has a duty ‘towards every citizen of India to provide pure
drinking water’.98 However, in a majority of the cases relating to
the right to water, the courts have not referred to Article 47, unlike
the right to environment cases, which include frequent references
to Article 48A.

89. See, for example, APPCB II (n 10), para 3; Gautam Uzir and Anr v.
Gauhati Municipal Corporation (1999) 3 Gauhati Law Times 110.
90. See, for example, Hamid Khan v. State of Madhya Pradesh (1996)
SCC OnLine MP 287, para 6; Mahendra Prasad Sonkar and Surya Prakash
Singh v. State of Uttar Pradesh and Ors (2004) Allahabad Law Journal 3836,
para 11.
91. See, for example, Wasim Ahmed Khan v. Government of Andhra
Pradesh (2001) SCC OnLine AP 1090; Vishala Kochi Kudivella Samrakshana
Samithi v. State of Kerala (2006) SCC OnLine Ker 63, para 4.
92. See, for example, Attakoya Thangal v. Union of India 1990 (1) Kerala
Law Times 580, 583; F. K. Hussain (n 22), para 7.
93. See, for example, APPCB II (n 10), para 3; PR Subas Chandran v.
Government of Andhra Pradesh (2001) SCC OnLine AP 746, para 26.
94. See, for example, Hamid Khan (n 90), para 6.
95. See, for example, Wasim Ahmed Khan (n 91); Vishala Kochi (n 91).
96. See Philippe Cullet, ‘Water Sector Reforms and Courts in India:
Lessons from the Evolving Case Law’ (2010) 19(3) Review of European
Community and International Environmental Law 328, 329.
97. Hamid Khan (n 90), para 6.
98. Ibid.

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Right to Sanitation

There is a clear link between the right to sanitation and the right
to environment. Human waste is usually discharged into water
bodies or on land. If untreated, it can cause water or soil pollution.
Therefore, proper treatment of human waste before its disposal
into the environment is an essential component of the right to
sanitation. In a few cases, courts have read the rights to health,
sanitation and environment into the constitutional right to life. The
Rajasthan High Court explicitly observed:
Maintenance of health, preservation of the sanitation
and environment falls within the purview of Art. 21 of the
Constitution as it adversely affects the life of the citizen and it
amounts to slow poisoning and reducing the life of the citizen
because of the hazards created, if not checked.99
Subsequently, the Supreme Court held that the right to life cannot
be enjoyed without ‘the protection and preservation of environment,
ecological balance free from pollution of air and water, sanitation’.100
Further, in a number of decisions concerning water pollution, the
operation of sewage treatment plants, which treat human waste
before its disposal into the environment in accordance with the
prescribed statutory standards, has been raised.101 While some of
these decisions explicitly mention Article 21, and some of them even
refer to the right to environment, there is no reference to the right
to sanitation. Nevertheless, the implicit link is obvious. Previously,
without any reference to Article 21 or the right to environment, the
Supreme Court has compelled ‘a statutory body to carry out its

99. Koolwal (n 45), para 3.

100. Gaur (n 28), para 7.
101. See, for example, Jai Narain and Ors v. Union of India and Ors
(1996) 1 SCC 9. See also Capt. M. V. Subbarayappa v. Bharat Electronics
Employees Co-operative House Building Society Ltd (1989) SCC OnLine Kar
333; Narayana Setty and Ors v. State of Karnataka and Ors (2003) SCC
OnLine Kar 221.

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 The Judiciary and the Right to Environment in India 43

duty to the community by constructing sanitation facilities at great

cost and on a time-bound basis’.102

Right to Housing

The right to environment has also been formulated as the right to

‘decent’ environment in decisions concerning housing/shelter.103 As
in the case of the decisions concerning the right to health, however,
these decisions reflect a narrow conception of the environment that
is concerned with the immediate environment/surroundings rather
than adopting a holistic approach towards the natural environment.

Right of Environment: Anthropocentrism and Beyond

The potential of the right to environment to protect the

environment is determined by the extent of its anthropocentrism.
The judicial recognition of the right to environment is inextricably
linked to the fundamental right to life (of humans). As a result, an
anthropocentric approach is inherent in most formulations of the
right to environment.
The Supreme Court has captured the difference between
an anthropocentric approach and an ecocentric approach to
environmental protection in the following passage:
... Anthropocentrism is always human interest focussed and
non-human has only instrumental value to humans. In other
words, humans take precedence and human responsibilities to
non-human based benefits to humans. Ecocentrism is nature-
centred where humans are part of nature and non-humans
have intrinsic value. In other words, human interest does not

102. Municipal Council, Ratlam v. Shri Vardichand and Ors (1980)

4 SCC 162, para 1. See also Rampal v. State of Rajasthan (1980) SCC
OnLine Raj 32.
103. See Shantistar Builders (n 19), para 9. See also Chameli Singh and
Ors v. State of Uttar Pradesh and Ors (1996) 2 SCC 549, para 8 [right to
shelter includes ‘clean and decent surroundings’].

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 44 Lovleen Bhullar

take automatic precedence and humans have obligations to

non-humans independently of human interest. Ecocentrism
is therefore life-centred, nature-centred where nature includes
both humans and non-humans ... 104
The anthropocentric right to environment may nevertheless
promote ecocentric considerations in some cases, although they
are primarily linked to the instrumental value of the environment
to human beings. For instance, in a case concerning the grant of
forest clearance for bauxite-ore mining in a tribal area of the state
of Odisha, the Supreme Court held that the Gram Sabha has to
consider whether or not Scheduled Tribes (STs) like Dongaria
Kondh, Kutia Kandha and others have any religious rights, that is,
rights of worship over the Niyamgiri hills.105 This decision followed
from a combined reading of the provisions of the Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act 2006 and the Panchayats (Extension of the Scheduled
Areas) Act 1996, which led the Court to conclude that the Gram
Sabha has an obligation to safeguard and preserve the traditions
and customs, cultural identity, community resources, etc., of the
right-holders.
The issue of the right of rivers to unfettered and/or minimum
flow has also received judicial attention.106 The NGT directed
the concerned state governments to fix the quantity of water that
should be released throughout the year to ensure the environmental/
minimum flow of river Yamuna, which will maintain the carrying
capacity of the river and ensure prevention and control of pollution,
as well as provide clean and wholesome water for the use of the
residents of Delhi. The authorities concerned were also directed to
put an end to development activities that obstruct the flow of the

104. See T. N. Godavarman Thirumulpad v. Union of India (2012) 3 SCC

277, para 17.
105. Orissa Mining Corporation v. Ministry of Environment and Forests
and Ors (2013) 6 SCC 476.
106. See Manoj Misra v. Union of India and Ors, OA No. 06/2012, order
dated 22 July 2013 and order dated 13 January 2015, NGT (Principal
Bench).

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 The Judiciary and the Right to Environment in India 45

river. Similarly, courts have made observations for the protection

of the floodplains of rivers.107 Ecocentric considerations appear to
have weighed in the minds of the decision-makers, although an
anthropocentric approach is also clearly visible.
Some other cases have experimented with a more ecocentric
approach that protects the right of environment. For instance,
the Supreme Court considered the issue of rights of animals in a
case concerning the plight of the bulls used in Jallikattu, bullock-
cart races, etc., in the states of Tamil Nadu and Maharashtra.108
The petitioner argued that the pain and suffering caused to the
animals violates Article 21 and Article 51A(g) of the Constitution.
According to the Court:
Every species has a right to life and security, subject to the law
of the land, which includes depriving its life, out of human
necessity. Article 21 of the Constitution, while safeguarding
the rights of humans, protects life and the word ‘life’ has been
given an expanded definition and any disturbance from the
basic environment which includes all forms of life, including
animal life, which are necessary for human life, fall within the
meaning of Article 21 of the Constitution. So far as animals
are concerned, in our view, ‘life’ means something more than
mere survival or existence or instrumental value for human
beings, but to lead a life with some intrinsic worth, honour
and dignity ...109
Mindful, perhaps, of the need to respect the principle of separation
of powers, the judiciary merely planted the idea but left it to the
legislature to fertilise it, in the form of a legislative enactment. The
Court ‘expected’ Parliament to ‘elevate rights of animals to that of
constitutional rights ... so as to protect their dignity and honour’.110

107. See also Delhi Development Authority v. Rajendra Singh and Ors
(2009) 8 SCC 582; Manoj Misra v. Delhi Development Authority and Ors,
OA No. 65/2016, order dated 9 March 2016, NGT (Principal Bench).
108. Animal Welfare Board of India v. A. Nagraja and Ors (2014) 7 SCC
547.
109. Ibid., para 72.
110. Ibid., para 91.9.

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 46 Lovleen Bhullar

While animal rights activists have appreciated the expansive

interpretation of the right to life and right to environment,111 the
observations of the Supreme Court have resuscitated the issue of
the application of a rights-based approach to animals.112
Further, the judiciary has recently accorded rights akin to
fundamental/legal rights to the rivers Ganga and Yamuna and all
their tributaries, streams, every natural water flowing continuously
or intermittently of these rivers specifically,113 as well as to glaciers,
rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests,
wetlands, grasslands, springs and waterfalls.114 In both cases, the
High Court of Uttarakhand has identified persons in loco parentis as
the human face to protect, conserve and preserve these right-holders.
The recognition of the ecocentric perspective is not limited to
cases dealing with the fundamental right to life. After observing
that environmental pollution affects every living being, the
NGT highlighted the fundamental duty of every citizen, under
Article 51A(g) of the Constitution, to protect and improve
environment ‘not only for the benefit of the human beings and
citizens of this country but having regard to all living creatures’.115

111. See, for example, M. Suchitra, ‘Animal rights groups welcome

SC ban on Jallikattu’ (2014) Down to Earth <http://www.downtoearth.
org.in/news/animal-rights-groups-welcome-sc-ban-on-jallikattu-44291>
accessed 13 April 2017.
112. See, for example, Jessamine Therese Mathew and Ira Chadha-
Sridhar, ‘Granting Animals Rights Under the Constitution: A Misplaced
Approach? An Analysis in Light of Animal Welfare Board of India v. A.
Nagaraja’ (2014) 7 NUJS Law Review 349; Vishrut Kansal, ‘The Curious
Case of Nagaraja in India: Are Animals Still Regarded as “Property” With
No Claim Rights?’ (2016) 19(3) Journal of International Wildlife Law and
Policy 256.
113. See Mohd Salim v. State of Uttarakhand and Ors, WP (PIL)
No. 126/2014, decided on 20 March 2017 (High Court of Uttarakhand).
114. See Lalit Miglani v. State of Uttarakhand and Ors, WP (PIL)
No. 140/2015, decided on 30 March 2017 (High Court of Uttarakhand).
115. Sandeep Lahariya v. State of Madhya Pradesh and Ors, OA
No. 04/2013, judgment dated 11 November 2013, NGT (Central Zone
Bench), para 19.

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 The Judiciary and the Right to Environment in India 47

In another case, the NGT identified a peculiar feature of

environmental litigation, that is, the lis is between the environment
and its alleged polluter.116 According to the Tribunal, ‘[I]t is aptly
said that rivers, mountains, trees, birds, flora and fauna have no
language, particularly, in legal parlance and, therefore, they speak
through human beings’.117

Right to Environment: Beyond Recognition

The recognition of the right to environment by the higher judiciary

and the NGT has received a mixed response, and the need to
recognise the limitations in its scope and adopt a cautious approach
has been highlighted. This section examines some of the outcomes
of judicial recognition, and the challenges relating to the realisation
of the right to environment.

Development of Domestic
Environmental Jurisprudence

The judicial recognition of the right to environment has affected

domestic environmental jurisprudence in different ways.

Integration of Principles of Environmental Law

One of the techniques employed by the Supreme Court to

elaborate the right to environment is to integrate established as well
as nascent principles of international and foreign environmental

116. Mr S. K. Shetye and Anr v. Ministry of Environment and Forests

and Ors and The Chairman, Board of Trustees of the Port of Mormugao v.
Goa Coastal Zone Management Authority and Ors, OA No. 17 and 20
(THC)/2013, judgment dated 29 May 2014, NGT (Western Zone Bench),
para 25.
117. Ibid.

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 48 Lovleen Bhullar

law into domestic environmental jurisprudence.118 The principles

of international environmental law include the polluter pays
principle,119 precautionary principle,120 principle of intergenerational
equity121 and sustainable development.122 The Court has also
imported the public trust doctrine from another jurisdiction (the
United States).123 On the one hand, this integration is viewed as
a reflection of the Court’s ‘progressive stance on environmental
protection’.124 On the other hand, it is alleged that some of the
principles merely create a smokescreen; they obfuscate the hard
questions and render application and implementation of the right
to environment difficult.125 These principles form the subject matter
of extensive discussion in the other chapters of this volume.

Procedural Rights to Environment

The procedural rights to environment include access to information,

public participation in decision-making and access to judicial
remedies. Certain laws provide for these rights, albeit they do not
use the language of rights. It is the judiciary that has established a

118. See Rajamani (n 6) 294; Gill (n 71) 204. Gill views the public
trust doctrine and the principle of intergenerational equity as derivatives,
and considers the precautionary principle and the polluter pays principle
as essential parts of Article 21.
119. Indian Council for Enviro-Legal Action (n 18), para 67; Vellore (n
68), paras 11–13.
120. Ibid.
121. See State of Himachal Pradesh v. Ganesh Wood Products (1995) 6
SCC 363. See also Indian Council for Enviro-legal Action v. Union of India
(1996) 5 SCC 281 (CRZ Notification case); Intellectuals Forum (n 26),
para 79.
122. M. C. Mehta v. Union of India and Ors (1997) 2 SCC 353 (Taj
Trapezium case), para 30. See also Narmada Bachao Andolan v. Union of
India (2000) 10 SCC 664, para 123.
123. See M. C. Mehta v. Kamal Nath and Ors (1997) 1 SCC 288. See
also Intellectuals Forum (n 26), paras 74–78.
124. Rajamani (n 32) 274.
125. Ibid., 284. See also Gill (n 71) 205.

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 The Judiciary and the Right to Environment in India 49

link between the fundamental right to life and the procedural rights
to environment. For instance, the Supreme Court held: ‘[T]he
right to information and community participation for protection of
environment and human health ... flows from Article 21’.126
The judicial recognition of the right to environment as part of
the fundamental right to life can guarantee access to justice for the
right-holders or their representatives. They are entitled to invoke
the writ jurisdiction of the Supreme Court and High Courts to
seek redress where the quality of life is endangered or impaired
by a violation or derogation of laws.127 In fact, the Rajasthan High
Court interpreted the fundamental duty of the citizen under
Article 51A of the Constitution as the right to approach the court
to ensure the performance of statutory duties by the State.128 This
procedural guarantee has facilitated the development of public
interest environmental litigation in India, and the adjudication of
a range of environmental issues, such as the adverse effects of air
pollution on monuments of national importance129 and cities,130

126. Research Foundation for Science Technology National Resource Policy

v. Union of India and Anr (2005) 10 SCC 510, para 16. See also Tirupur
Dyeing Factory Owners’ Association v. Noyyal River Ayacutdars Protection
Association (2009) 9 SCC 737, para 27. In Tirupur, in support of this
proposition, the Court also refers to Bombay Dyeing & Mfg Co Ltd v.
Bombay Environmental Action Group (2006) 3 SCC 434; T. N. Godavarman
Thirumulpad v. Union of India (2002) 10 SCC 606; N. D. Jayal v. Union
of India and Ors (2004) 9 SCC 362; M. C. Mehta v. Kamal Nath and Ors
(2002) 3 SCC 653; Mrs Susetha v. State of Tamil Nadu and Ors (2006) 6
SCC 543. However, none of these other cases explicitly refer to any of the
procedural rights, although some of them discuss environmental impact
assessment, which may guarantee these procedural rights.
127. See, for example, Chhetriya Pardushan (n 17), para 8; Subhash
Kumar (n 23), para 7.
128. Koolwal (n 45), para 2.
129. Taj Trapezium case (n 122).
130. See M. C. Mehta v. Union of India and Ors (1996) 4 SCC 351
and 750, (1997) 11 SCC 327 and (1998) 9 SCC 149 (Delhi Industrial
Relocation cases); M. C. Mehta v. Union of India and Ors (1998) 9 SCC 589
(Delhi Vehicular Pollution case).

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 50 Lovleen Bhullar

the adverse effects of surface water pollution due to municipal and

trade effluents,131 protection of forests and wildlife,132 and garbage
disposal in cities.133

Legislative Recognition of the Right

There is no explicit reference to the right to environment, either

in the Constitution or in any of the domestic environmental laws.
However, a shift in the approach of the legislature is visible. For
instance, the preamble of the NGT Act, which provides for the
establishment of the NGT inter alia for the enforcement of any legal
right relating to environment, takes note of the judicial decisions
that have construed the right to healthy environment as a part of
the right to life under Article 21 of the Constitution.

Realisation of the Right to

Environment: Some Challenges

Although, judicial recognition of the right to environment began

more than three decades ago, there are concerns relating to the
realisation of the right to environment in specific cases.
First, in a number of cases, the recognition of the right has
not been followed by its application to the particular facts and
circumstances. For instance, in Subhash Kumar,134 which is one of
the leading authorities cited in support of the recognition of the
right to sanitation, the Supreme Court did not issue any orders

131. M. C. Mehta v. Union of India and Ors (1987) 4 SCC 463 (Kanpur
Tanneries case); M. C. Mehta v. Union of India and Ors (1988) 1 SCC 471
(Kanpur Municipalities case); M. C. Mehta v. Union of India and Ors (1997)
2 SCC 411 (Calcutta Tanneries case).
132. Godavarman (n 126).
133. Almitra H. Patel and Anr v. Union of India and Ors (2000) 2 SCC
679.
134. Subhash Kumar (n 23).

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 The Judiciary and the Right to Environment in India 51

or directions as it was discovered that the petitioner’s allegation

was false. Further, while courts have recognised the right to
environment in a number of cases, environmental issues were not
the subject matter in all cases. In order to determine the scope and
application of the right to environment, it is important to consider
cases which have been filed under Article 32 or Article 226 of
the Constitution, alleging a violation of the fundamental right to
environment, or where the petitioner has alleged the violation of
his/her/their right to environment, or the right to environment has
formed part of the courts’ decision-making process as reflected in
the reported judgment.
Second, the constitutional right to environment is not an absolute
right. Its realisation is contingent upon the right to (human) life,
which precludes cases where judicial intervention may be required
for the protection of the environment for its own sake. Further, its
realisation is linked to the violation or derogation of existing laws,
which confines the outer limits of the corresponding duties of the
government to those prescribed in existing laws. This may result in
a failure to consider situations where the right to environment and
the right to life are violated due to the inadequacy of existing laws
or the absence of laws.
Third, arguably, the Court has passed ‘far-reaching’135 orders
and judgments in several cases. However, whether or not they are
‘progressive’136 will depend on the perspective of the stakeholder
who makes such an assessment, as well as the position of the
assessee in respect of the doctrine of separation of powers. The
development of public interest environment litigation in India is
marked by tension between two camps: one applauding judicial
interventions in environmental matters in a period of legislative
and executive inertia and the other criticising the (alleged) foray
of the judiciary into areas traditionally reserved for the other two
branches of government.

135. See, for example, Rajamani (n 32) 277.

136. Ibid.

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 52 Lovleen Bhullar

Fourth, the anthropocentric perspective privileges the right to

environment of some members of society and some environmental
concerns over others. This may undermine the principle of
intragenerational equity, which also forms part of domestic
environmental law. It is argued that the right to environment has
been invoked to raise the concerns of the ‘middle class’ urban
residents, often to the detriment of the poor residents (such as
slum-dwellers), smaller-sized or less influential industries and their
workers.137 This capture has been facilitated by the ‘middle class’
preferences of the judges.138 The imbalance in terms of the number
of environmental cases relating to urban and rural areas is another
matter of concern. However, in recent years, an increasing number
of cases relating to environmental issues faced by people in rural
areas are receiving judicial attention, particularly from the NGT.
Finally, besides the right to environment, a number of other
rights have also been read into Article 21 of the Constitution,
including the right to development and the right to livelihood.139
The realisation of each of these rights may undermine the other
rights, for instance, where the environment is used/exploited for
the realisation of the right to development or the right to livelihood
of an individual or a community. Courts have recognised the need
to strike a delicate balance or to reconcile the tension between
these rights. However, they have not identified any indicators
for this purpose, and the determination continues on an ad hoc

137. See, for example, Amita Baviskar, ‘Between Violence and Desire:
Space, Power, and Identity in the Making of Metropolitan Delhi’ (2003)
55(175) International Social Science Journal 89; Usha Ramanthan, ‘Illegality
and the Urban Poor’ (2006) 41(29) Economic and Political Weekly 3193;
Nivedita Menon, ‘Environment and the Will to Rule’ in Mayur Suresh and
Siddharth Narain (eds) The Shifting Scales of Justice: The Supreme Court in
Neo-liberal India (Orient BlackSwan 2014) 59.
138. See Rajamani (n 6) 302–03. See also Varun Gauri, ‘Public Interest
Litigation in India: Overreaching or Underachieving’ (2010) 1 Indian
Journal of Law and Economics 71, 80.
139. Samatha v. State of Andhra Pradesh (1997) 8 SCC 191; Madhu
Kishwar v. State of Bihar (1996) 5 SCC 125.

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 The Judiciary and the Right to Environment in India 53

basis. As a result, on the one hand, there are cases like the Kanpur
Tanneries case, where the Supreme Court observed that ‘we are
conscious that closure of tanneries may bring unemployment, loss
of revenue, but life, health and ecology have greater importance to
the people’.140 On the other hand, in cases involving the adverse
environmental impact of infrastructure projects, the Court has
sacrificed the right to environment of some for the greater ‘public
interest’.141 The trope of sustainable development may compel the
courts to authorise a certain level of environmental degradation
and the dilution of the right to environment for the sake of the
realisation of the so-called right to development. This prioritisation
of the right to development over the right to environment, and of
the right to environment over the right of livelihood of the poor, has
been criticised.142 This state of affairs also highlights the need for
the recognition of an independent, substantive right to environment
(or right of environment), so that the environment can be protected
for its own sake.

Conclusion

The right to environment is firmly entrenched in, and has

contributed to the development of, domestic environmental
jurisprudence in India. Its origin has been traced to decisions of
the higher judiciary, where the right to environment was explicitly
or implicitly interpreted to flow from the fundamental right to life
or the duties of the State in DPSP, and/or based on a combined

140. Kanpur Tanneries case (n 131) 482.

141. See, for example, Narmada (n 122); Jayal (n 126).
142. See Prashant Bhushan, ‘Sacrificing Human Rights and
Environmental Rights at the Altar of “Development”’ (2009–10) 41 George
Washington International Law Review 389; Videh Upadhyay, ‘Changing
Judicial Power: Courts on Infrastructure Projects and Environment’ (2000)
35(43/44) Economic and Political Weekly 3789. See also Geetanjoy Sahu,
Environmental Jurisprudence and the Supreme Court: Litigation, Interpretation,
Implementation (Orient BlackSwan 2014).

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 54 Lovleen Bhullar

reading of the fundamental right to life, DPSP and the fundamental

duty of citizens. The right to environment continues to provide the
substantive and/or procedural basis for the decisions of the Supreme
Court, High Courts, and the NGT. Many of these decisions do not
deal with a specific ‘right to environment’; instead, they address
different components of the right.
The different formulations of the right to environment have been
criticised on the ground that they are poorly defined and imprecise,
and thus offer little guidance in making difficult judgments that are
central to its realisation.143 Suffice to say that while this criticism
is justified in some cases, the broadly defined content of the right
has permitted the judiciary to tailor appropriate relief to the facts
and circumstances of the cases. In the process, courts have had to
choose between the rigid application of the precise substance of
the right and confining its directions to the realisation of the right
through the discharge of statutory duties (which may preclude
many situations) and the adoption of a flexible approach, which
may render justice but expose the courts to the criticism of judicial
overreach.
Irrespective of its formulation, the right to environment is linked
to the right to life of human beings and, therefore, the adoption
of an anthropocentric approach is inevitable. In the absence of a
substantive right to environment, which could accommodate the
intrinsic value of the environment, some cases on the right to
environment reflect the willingness of the Indian judiciary to look
beyond the instrumental value of the environment. While these
decisions are welcomed among environmentalists, they sound a
note of caution for those who view the rights-based approach as
the panacea for environmental problems.

143. See, for example, Rajamani (n 32) 278.

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 two

Procedural Environmental
Rights in Indian Law

Shibani Ghosh*

Introduction

The Indian judiciary in the past three decades has recognised a

‘right to environment’ or an ‘environmental right’. Courts have
provided different formulations of this right and have traced its
source, expressly or implicitly, to the Constitution of India and,
in particular, to three constitutional provisions—Articles 21,
48A and 51A(g).1 To realise this larger environmental right,

* I would like to thank Dr Lavanya Rajamani and Dr Lovleen Bhullar

for their insightful comments on an earlier draft of this chapter, and Rimi
Jain and Harsha V. Rao for their valuable research assistance.
1. See Lovleen Bhullar, ‘The Judiciary and the Right to Environment
in India: Past, Present and Future’ in Chapter 1 of this volume; Michael
R. Anderson, ‘Individual Rights to Environmental Protection in India’ in
Alan Boyle and Michael R. Anderson (eds) Human Rights Approaches to
Environmental Protection (Clarendon Press 1998) 199; Lavanya Rajamani,
‘The Right to Environmental Protection in India: Many a Slip between
the Cup and the Lip?’ (2007) 16(3) Review of European Community and
International Environmental Law 274.

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 56 Shibani Ghosh

certain procedural guarantees are recognised in Indian law. These

guarantees, often termed as procedural rights, are the right to access
justice or means of grievance redressal, right to access information
or be informed, and right to participate in decision-making
processes or the right to be consulted. Although Indian courts
have, on occasion, linked each of these rights to a fundamental
right, giving them constitutional gravitas, these rights have evolved
with considerable clarity as statutory rights outside the realm of
constitutional law.
Procedural environmental rights perform an instrumental
role in securing the substantive right to environment and
improving environmental outcomes.2 In the international legal
context, it is said that the reluctance on part of the states at the
Stockholm Conference of 1972 to recognise a substantive right to
environment, led scholars and activists to consider human rights in
a more ‘instrumental’ fashion while populating the environmental
right.3 They identified the procedural rights to information, public
participation and remedies, which already existed as political
rights, as prerequisites to effective environmental protection.4
These procedural rights, understood as environmental rights, were
‘an intermediate step between simple application of existing rights
to the goal of environmental protection and recognition of a new
full-fledged right to environment’.5

2. Philippe Cullet, ‘Definition of an Environmental Right in a Human

Rights Context’ (1995) 13 Netherlands Quarterly of Human Rights 25;
See also Richard Desgagne, ‘Integrating Environmental Values into the
European Convention on Human Rights’ (1995) 89(2) The American
Journal of International Law 263.
3. Dinah Shelton, ‘Human Rights and the Environment: What Specific
Environmental Rights Have Been Recognized?’ (2006) 35 Denver Journal
of International Law and Policy 129, 132.
4. Ibid.
5. Dinah Shelton, ‘Human Rights, Environmental Rights, and the
Right to Environment’ (1991) 28 Stanford Journal of International Law 103,
117. See generally Donald K. Anton and Dinah L. Shelton, Environmental
Protection and Human Rights (CUP 2011), Chapter 6.

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 Procedural Environmental Rights in Indian Law 57

Subsequently, in 1992, states adopted the Rio Declaration

on Environment and Development.6 In Principle 10 of the
Declaration, the three procedural rights crucial for effective public
participation in environmental matters were enshrined for the first
time at a United Nations (UN)–wide level.7 The enunciation of
these participatory rights has significantly influenced international
environmental law. Before 1992, essentially no international
environmental agreement included provisions that addressed the
components of Principle 10. But almost all treaties adopted in or
after 1992 provide for public access to information and/or public
participation.8
At the national level, procedural environmental rights
are valuable not only for their instrumental role, but because
they represent ‘a true democratization of environmental

6. UN Conference on Environment and Development (UNCED), ‘Rio

Declaration on Environment and Development’ (14 June 1992) UN Doc
A/CONF.151/26 (Vol I) Resolution 1, Annex I, reprinted in 31 ILM 874
(1992) (Rio Declaration).
7. Rio Declaration, Principle 10:
Environmental issues are best handled with the participation of
all concerned citizens, at the relevant level. At the national level,
each individual shall have appropriate access to information
concerning the environment that is held by public authorities,
including information on hazardous materials and activities
in their communities, and the opportunity to participate in
decision-making processes. States shall facilitate and encourage
public awareness and participation by making information
widely available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided.
See Jonas Ebbesson, ‘Principle 10: Public Participation’ in Jorge
E. Viñuales (ed.) The Rio Declaration on Environment and Development: A
Commentary (OUP 2015) 287.
8. Ebbesson, ibid., 308. See also Jonas Ebbesson, ‘The Notion of Public
Participation in International Environmental Law’ (1998) (8)1 Yearbook of
International Environmental Law 51.

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 58 Shibani Ghosh

decision-making’.9 Irrespective of the final outcome, exercising

procedural environmental rights could give citizens a sense of
empowerment, as they would have at least some engagement with
decisions affecting them.10 The rights could also bring government
decisions and actions under public and judicial scrutiny, thereby
increasing transparency and accountability in governance. And
finally, they make environmental justice more accessible overall.
Historically, disadvantaged or under-served populations that
(disproportionately) suffer the adverse consequences of poor
environmental decision-making have at least a fighting chance if
they are guaranteed procedural environmental rights.
Procedural environmental rights occupy a central role in
Indian environmental law and litigation. Many of the landmark
environmental judgments of the Supreme Court were delivered in
cases which were either treated as public interest litigations (PILs),11
or in which the Court adopted unconventional techniques in its
treatment of the case12—with the objective of making the judicial
process more accessible and the outcome more ‘just’.
Procedural environmental rights are also shaping present day
environmental litigation and its outcome. From the availability

9. Cullet (n 2) 36; Patricia Birnie, Alan Boyle and Catherine Redgwell,

International Law and the Environment (3rd edition, OUP 2002), Chapter 5,
288–89.
10. J. C. Gellers and Chris Jeffords, ‘Procedural Environmental Rights
and Environmental Justice: Assessing the Impact of Environmental
Constitutionalism’ (2015) Human Rights Institute University of
Connecticut Economic Rights Working Paper No. 25 <http://web2.uconn.
edu/economics/working/HRI25.pdf> accessed 30 March 2017.
11. For example, Rural Litigation and Entitlement Kendra v. State of Uttar
Pradesh (1985) 3 SCC 614; Indian Council for Enviro-legal Action v. Union
of India (1996) 3 SCC 212.
12. For example, M. C. Mehta v. Kamal Nath (1997) 1 SCC 388
(the Supreme Court took cognisance of a newspaper Article reporting
environmental damage); Vellore Citizens’ Welfare Forum v. Union of India
and Ors (1996) 5 SCC 647 (the Supreme Court gave directions for the
constitution of an authority to ‘deal with the situation’ of pollution caused
by tanneries).

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 Procedural Environmental Rights in Indian Law 59

of the National Green Tribunal (NGT) to expeditiously decide

environmental cases, to the use of information disclosed under
the Right to Information Act 2005 (RTI Act), to making legal and
factual claims regarding effective denial of a procedural right—
these rights are indispensable tools for those trying to protect and
improve the environment.
In terms of the judicial treatment of substantive and procedural
environmental rights, there are at least two points of departure.
First, when courts consider substantive environmental rights, they
are required to recognise and enforce rights which are not clearly
defined, either in the Constitution or in any statute.13 In the absence
of judicially manageable standards,14 they occasionally venture
into policy-making and the scope of their review goes beyond
looking purely at the legality of the decision-making process. On
the other hand, Indian constitutional and statutory law place
procedural environmental rights on relatively firmer legal footing,
with clear definitional limits and, therefore, the role of the courts
is more precise—to ensure that the decision-making process is in
accordance with the letter (and spirit) of the law—and very much
within the mandate of judicial review.
Second, orders for protection and enforcement of procedural
environmental rights are easier to issue and comply with than
those for substantive environmental rights. In the case of the latter,
courts often—because of the imprecise nature of the right and the
expected outcome—issue elaborate orders. These orders are at
times vague, requiring several agencies to undertake a variety of
measures on differing timescales, only some of which are verifiable
or even fully achievable. In contrast, the analytical framework
for enforcing procedural rights is narrower and more objectively

13. Rajamani (n 1) 279–80.

14. Harish Salve, ‘Justice Between Generations: Environment and
Social Justice’ in B. N. Kirpal et al. (eds) Supreme But Not Infallible: Essays
in Honour of the Supreme Court of India (OUP 2000) 360, 377; Rajamani,
ibid.

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 60 Shibani Ghosh

bounded.15 Compliance is more easily verifiable as there are often

statutory requirements to be met.
As procedural environmental rights are a vital part of
Indian environmental governance and the evolution of India’s
environmental jurisprudence, how these rights have been
interpreted in law and exercised in fact are relevant to other issues
raised in this volume. This chapter analyses the legislative and
regulatory framework fostering the three procedural environmental
rights in India. The next three sections will examine each of these
rights in detail—the relevant statutory provisions and the judicial
approach—and discuss the impediments in exercising or claiming
these rights. Each section also includes a brief overview of the
evolution of these rights outside the realm of environmental law,
as a context to understand the source of these rights in general law.
The final section will provide brief concluding remarks.
It is important to acknowledge at the outset that the
methodological approach of this chapter is different from others
in this volume. Unlike the substantive right to environment and
the principles of environmental law discussed in other chapters,
procedural environmental rights in India are defined in statutory
law. Judicial pronouncements specifically interpreting these rights
are few—mostly focussed on their implementation or their role
in guaranteeing better environmental outcomes. Therefore, the
focus of this chapter is necessarily on the legislative and regulatory
framework, referencing case law only where relevant. This chapter
does not engage in doctrinal case law based analysis, as a majority
of procedural environmental rights in India are defined in statutory
law. These rights could be instrumental in realising principles of
environmental law like sustainable development, polluter pays and
precaution, but they are not founded in these principles.

15. Erin Daly, ‘Constitutional Protection for Environmental Rights:

The Benefits of Environmental Process’ (2012) 17(2) International Journal
of Peace Studies 71, 76.

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 Procedural Environmental Rights in Indian Law 61

The Right to Access Information

Roots in Indian law

The Supreme Court has traced the origin of its environmental rights
jurisprudence to a 1984 judgment16 on the rights of persons working
as bonded labour and the poor working conditions that they had
to suffer.17 Almost a decade before this judgment, the Court had
recognised the right of people to know ‘every public act, everything
that is done in a public way, by their public functionaries’.18 The
Court derived this right from the fundamental right to freedom of
speech and expression. Some years later, the Court re-emphasised
the importance of transparency in government functioning, and
held:
[t]he concept of an open government is the direct emanation
from the right to know which seems to be implicit in the right
of free speech and expression guaranteed under Article 19(1)
(a). Therefore, disclosure of information in regard to the
functioning of Government must be the rule and secrecy an
exception justified only where the strictest requirement of
public interest so demands.19
Although generally considered to be an established fundamental
right under Article 19(1)(a),20 the Supreme Court has occasionally
viewed this right to be an aspect of the right to life under Article 21.21

16. Bandhua Mukti Morcha v. Union of India and Ors (1984) 3 SCC
161.
17. A. P. Pollution Control Board II v. Prof. M.V. Nayudu and Ors (2001)
2 SCC 62, para 7.
18. State of Uttar Pradesh v. Raj Narain and Ors (1975) 4 SCC 428,
para 74.
19. S. P. Gupta and Ors v. President of India and Ors (1981) Supp SCC
87, para 67.
20. Chief Information Commissioner and Anr v. State of Manipur and Anr
(2011) 15 SCC 1, para 9.
21. Reliance Petrochemicals Ltd v. Proprietors of Indian Express Newspapers
Bombay Pvt. Ltd and Ors (1988) 4 SCC 592; Research Foundation for Science

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 62 Shibani Ghosh

While the right to be informed of the affairs of the government

is considered essential to constitutional democracies like India,
Indian courts have recognised that in public interest the right may
have to be curtailed.22
The right to know has been extensively discussed by the
Supreme Court in the context of elections.23 The right also finds
an important place in Indian administrative law24 and criminal
law.25 An overarching right of citizens to access information held
by public authorities, subject to certain exceptions, is statutorily
recognised by the RTI Act.26

Right to Information in the Environmental Context

In India, the legal obligation to disclose environmental information

could take (at least) five forms:27 First, disclosure of information
relating to environmental impacts of activities to regulatory

Technology and Natural Resources Policy v. Union of India and Anr (2005) 13
SCC 186.
22. Dinesh Trivedi, MP and Ors v. Union of India and Ors (1997) 4 SCC
306, para 17; Chief Information Commissioner (n 20), para 17.
23. Union of India v. Association of Democratic Reforms and Anr (2002) 5
SCC 294, para 46; Peoples’ Union for Civil Liberties and Anr v. Union of India
and Anr (2003) 4 SCC 399, para 18.
24. Chougule and Co. (P) Ltd v. Union of India and Anr (1971) 3 SCC
162; Institute of Chartered Accountants of India v. L. K. Ratna and Ors
(1986) 4 SCC 537; Ravi Yashwant Bhoir v. District Collector, Raigad and
Ors (2012) 4 SCC 407.
25. See Constitution of India 1950, Article 22(1), Code of Criminal
Procedure 1973 ss 50(1) and 75. See also D. K. Basu v. State of West Bengal
(1997) 1 SCC 416, para 35.
26. Right to Information Act 2005 (RTI Act) s 3, read with ss 2(f), 2(h),
8 and 9.
27. Adapting the classification in Peter H. Sand, ‘The Right to Know:
Freedom of Environmental Information in Comparative and International
Law’ (2011) 20(1) Tulane Journal of International and Comparative Law
203.

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authorities by those undertaking such activities;28 second, disclosure

of information relating to regulatory decisions and decision-
making processes affecting the environment by the concerned
regulatory authority;29 third, disclosure of information relating
to specific processes and potential risks at workplaces for the
benefit of employees as well as communities in close proximity;30
fourth, disclosure of information to consumers through labelling
of products;31 and fifth, disclosure of information by companies of
their sustainability practices.32 Some of these obligations arise from
specific environmental regulations, while others from government
schemes and policies. Separately, the RTI Act also places certain
disclosure obligations on public authorities.
This section focusses on the first two forms of information
disclosure by providing examples from the provisions of the
pollution control laws—the Water (Prevention and Control of
Pollution) Act 1974 (Water Act) and Air (Prevention and Control

28. For example, disclosure requirements under the EIA Notification

2006 (text accompanying n 42–45).
29. For example, Environment (Protection) Rules 1986 (EP Rules),
rule 5(3); Water Act s 25(6) and Air Act s 51.
30. For example, Hazardous and Other Wastes (Management and
Transboundary Movement) Rules 2016 (Hazardous Waste Rules), rule
4(6)(b); see also M. C. Mehta & Anr v. Union of India (1986) 2 SCC 187,
para 20(7).
31. See, for example, Hazardous Waste Rules, rules 17(2) and 18(2)
and Form VIII; Standards and Labelling Program of the Bureau of Energy
Efficiency which requires energy consumption related information about
electrical appliances to be made publicly available <https://www.beeindia.
gov.in/content/star-labelled-appliances> accessed 30 March 2017.
32. Ministry of Corporate Affairs, Government of India, ‘National
Voluntary Guidelines on Social, Environmental and Economical
Responsibilities of Business 2011’. <http://www.mca.gov.in/Ministry/
latestnews/National_Voluntary_Guidelines_2011_12jul2011.pdf>
accessed 30 March 2017; Securities and Exchange Board of India
(SEBI), ‘SEBI Board Meeting’ PR No. 145/2011. <http://www.sebi.gov.
in/sebiweb/home/detail/22104/yes/PR-SEBI-Board-meeting> accessed 30
March 2017.

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 64 Shibani Ghosh

of Pollution) Act 1981 (Air Act); the Notification of 14 September

2006 issued under the Environment (Protection) Act 1986 (EP
Act), also known as the Environmental Impact Assessment (EIA)
Notification 2006; and the RTI Act.

Under the Pollution Control Laws

The Water Act and Air Act, two principal laws that regulate
pollution in the country, require regulated entities to apply for
consents to the State Pollution Control Boards (SPCBs), before
commencing operations that potentially impact the environment.33
The application process34 and the conditions for grant of consent
require mandatory disclosure of certain categories of environmental
impact information. Compliance with these consent conditions has
to be disclosed in an annual environmental statement.35
The two laws require the maintenance of a register by the
SPCBs, available to the public for inspection. The register is meant
to record the particulars of persons to whom the consent has been
granted, standards of emission laid down in the consent and other
particulars that may be prescribed.36 SPCBs are also required to
provide copies of relevant reports on regulated entities to private
persons who may have filed a complaint in court against an alleged
offence.37
Functioning without a consent or in violation of consent
conditions is a criminal offence punishable under the two laws.
Therefore, whether the consent has been granted, and on what
conditions, are important facts that could have serious legal
consequences. Information contained in consents is relevant while
assessing the environmental impact of the entity and, if necessary, to

33. Water Act s 25(1); Air Act s 21(1).

34. Water (Prevention and Control of Pollution) Rules 1975, Form
XIII.
35. EP Rules, rule 14, read with Form V.
36. Water Act s 25(6); Air Act s 51.
37. Water Act s 49(2); Air Act s 43(2).

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challenge its operation in an appropriate forum. Although SPCBs

are required to monitor and enforce the compliance of consent
conditions, for a variety of reasons including limited resources, lack
of trained personnel and heavy workload, they do not.38 Making this
information publicly accessible allows persons, particularly those
directly affected by the polluting entity, to challenge violations of
the law and demand regulatory compliance.39
While the law gives the public access to information regarding
regulated entities, whether this statutory procedural right is
effectively enjoyed is uncertain. SPCBs may refuse to provide copies
of relevant reports to private complainants if, in their opinion, it
would be against the ‘public interest’.40 What constitutes ‘public
interest’ is left to the SPCBs’ discretion and no guidance is provided
in the law. Performance audit reports prepared by the Comptroller
and Auditor General (CAG) of India for several SPCBs over the
years reveal that registers containing consent information are not
maintained in accordance with law.41

38. See Centre for Science and Environment, ‘Turnaround: Reform

Agenda for India’s Regulators’ (2009).
39. For example, Abraham Thomas Kumily v. Union of India and Ors,
Application No. 146/2015, order dated 12 December 2015, NGT
(Southern Zone Bench); Yogesh Nagar President v. Union of India and Ors,
OA No. 228/2014, judgment dated 10 December 2015, NGT (Principal
Bench).
40. Water Act s 49(2) proviso; Air Act s 43(2).
41. For example, CAG Environment Audit Reports on Air Pollution
<http://iced.cag.gov.in/wp-content/uploads/2013/02/ARs-on-Air-
pollution.pdf> accessed 30 March 2017; Audit Report (Civil and
Commercial) for the year ended 31 March 2007 for Jharkhand. <http://iced.
cag.gov.in/wp-content/uploads/2014/02/14.-PR-of-SPCB-Jharkhand.pdf>
accessed 30 March 2017; Report of the Comptroller and Auditor General
of India on General and Social (non-PSUs) Sectors for the year ended
31 March 2014, Government of Madhya Pradesh <http://www.agmp.
nic.in/reports/reports%2012-13/Consolidated%20AR-English(Non%20
PSUs)2013-14.pdf> accessed 30 March 2017.

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Under the EIA Notification 2006

The EIA Notification 2006 requires certain categories of projects

to obtain a prior environmental clearance (EC) before commencing
construction.42 During this process, information about the proposed
project has to be made publicly available before a final decision is
reached. This includes disclosure of the Terms of Reference (ToR)
issued by the regulatory authority for EIA studies, the draft EIA
report and its summary prepared by the project proponent, in
addition to the notice for, and the minutes of, the public hearing.
Some of these disclosure requirements are included in the EIA
Notification itself; others have been introduced and emphasised
through executive orders.43
The High Court of Delhi, while emphasising the need to
provide public information about a proposed project 30 days prior
to the mandatory public hearing under the EIA Notification, held:
32. ... information about the project and in particular about
the EIA report is not available to anyone in the public domain
till the time of the public hearing. Till such time it is available
only to the project proponent and the MoEF. Unless it is
required to be made available mandatorily, it is unlikely that
any member of the affected public can have access to such
information. It is imperative for the affected person to be fully
informed of the proposal (the EMP) submitted by the project

42. For details on the process, Shibani Ghosh, ‘Demystifying the

Environmental Clearance Process’ (2013) 6(3) NUJS Law Review 433.
43. MoEF, Government of India, order dated 20 March 2012 in
No. J-11013/19/2012-IA.II(I) <http://moef.nic.in/downloads/public-
information/order-20032012-a.pdf> and <http://moef.nic.in/downloads/
public-information/order-20032012-b.pdf> accessed 30 March 2017;
MoEF, circular dated 30 June 2009 in No. J-11013/41/2006-IA.II(I).
<http://www.moef.nic.in/divisions/iass/cir_incr_trans.pdf> accessed
30 March 2017; MoEF, letter dated 08 February 2013 in File No.16-
1312012-FC <http://www.moef.nic.in/assets/8%20Feb%202013.pdf>
accessed 30 March 2017.

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proponent for dealing with the likely environmental damage

that can be caused if the project is granted clearance.44
Once an EC is granted, information about the clearance has to
be published in the stipulated manner.45 Publication of the EC
letter in the public domain is crucial as it determines when the
clock starts ticking for potential litigation before the NGT. It is
only when the content of the letter is available that a prospective
appellant would be able to effectively exercise her right of appeal
before the Tribunal.46 The limitation period to file an appeal before
the NGT is 30 days from the date on which the impugned order (in
this case the EC) is ‘communicated’.47 The Tribunal has held that
communication in this context ‘mean[s] and must be construed
as meaning the date on which the factum and content both, of the
Environmental Clearance order are made available in the public
domain and are easily accessible by a common person’.48 The
Tribunal’s interpretation of what constitutes communication is not
only significant from the point of view of information disclosure,
but also for ensuring that access to the Tribunal is not unduly
curtailed by lax compliance of disclosure requirements.

44. Utkarsh Mandal v. Union of India (2009) SCC OnLine Del 3836.
See also T. Mohana Rao v. MoEF and Ors, Appeal No. 23/2011, judgment
dated 23 May 2012, NGT (Principal Bench).
45. EIA Notification, para 10(i)(a).
46. Save Mon Region Federation and Ors v. Union of India and Ors, MA
No. 104/2012 in Appeal No. 39/2012, order dated 14 March 2013, NGT
(Principal Bench), para 55; Medha Patkar and Ors v. MoEF and Ors, Appeal
No. 1/2013, judgment dated 11 July 2013, NGT (Principal Bench).
47. National Green Tribunal Act 2010 (NGT Act) s 16.
48. Save Mon Region (n 46), para 55. See Shibani Ghosh, ‘Case Note:
Access to Information as Ruled by the Indian Environmental Tribunal:
Save Mon Region Federation v. Union of India’ (2013) 22(2) Review of
European Community and International Environmental Law 202.

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 68 Shibani Ghosh

Under the RTI Act

The RTI Act has been a useful tool in increasing transparency

in environmental governance by making information relating to
environmental decisions and policy-making more accessible. The
Act puts in place a mechanism by which information may be sought
from public authorities,49 and the same has to be provided in a time-
bound manner by Public Information Officers (PIOs) appointed
under the Act.50 The Act also provides for an appellate procedure,
with the Central or State Information Commissions (quasi-judicial
bodies) being the second and final appellate forum. Information
can be exempt from disclosure on grounds specified in the Act.51
But if the public authority finds that public interest outweighs the
interests protected by the exemption, it can direct the disclosure of
the information.52 The right to information as defined by the RTI
Act is quite broad in scope—it applies to public authorities at all
levels of government, and even covers certain information held by
private bodies.53
Information obtained under the RTI Act is routinely used in
environmental cases, and has at times proven crucial to the final
judgment. In Utkarsh Mandal,54 the High Court of Delhi set aside
an EC granted to a mining project. One of the main reasons for
its decision was that it found, based on evidence revealed under
the RTI Act, that the credibility of the expert appraisal committee
(EAC) was affected by its particular constitution and manner of
functioning.55

49. RTI Act s 2(f) read with s 2(h).

50. If information is not provided within the time limit stipulated and
without legal basis, penalty can be imposed on concerned officials. See
RTI Act s 20.
51. RTI Act s 8 and 9.
52. Ibid., s 8(2)
53. Ibid., s 2(h)
54. Utkarsh Mandal (n 44).
55. For reliance on information collected through the RTI Act, see
Conservation of Nature Trust and Ors v. District Collector, Kanyakumari

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The Central Information Commission (CIC) has played

an important role in increasing transparency in environmental
decision-making through its orders. It has directed documents
relating to applications for EC and forest clearance, as well as
minutes of committee meetings, to be made available on the
website of the Ministry of Environment and Forests (MoEF), in a
time-bound manner.56 Two significant orders of the CIC, discussed
later, view access to information as a way to reduce distrust in
government functioning.
The first relates to the disclosure of the report submitted by
the Western Ghats Ecology Expert Panel (WGEEP) to the MoEF.
The Ministry refused to disclose the report on the ground that
the report was a draft still under consideration. The statutory first
appeal was rejected on grounds that the disclosure of the report
would affect strategic, scientific or economic interests of the State.
In a subsequent appeal, the CIC directed the disclosure of the
report. The Commission held:
The disclosure of the WGEEP report would enable citizens
to voice their opinions with the information made available in
the said report ... This would facilitate an informed discussion
between citizens based on a report prepared with their/public
money. MOEF’s unwillingness to be transparent is likely to
give citizens an impression that most decisions are taken in
furtherance of corruption resulting in a serious trust deficit.57
In a writ challenging the CIC’s order, the High Court, while
upholding the order, observed that ‘[b]efore the formation of the
policy, all the stakeholders should be able to deal with the report
and consider whether to support or oppose the findings and

District and Ors, Application No. 104/2013, order dated 14 September

2016, NGT (Southern Zone Bench).
56. Shibani Ghosh v. MoEF, CIC/SG/C/2011/001409/17503, order
dated 29 February 2012, Central Information Commission (CIC); Shibani
Ghosh v. MoEF, CIC/SG/C/2011/001398/16936, order dated 18 January
2012, CIC.
57. G. Krishnan v. MoEF, CIC/SG/A/2012/000374/18316, order dated
9 April 2012, CIC.

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 70 Shibani Ghosh

recommendations made therein, and the policy should be eventually

formulated after due consideration of all points of view’.58
In a second case, the CIC directed the disclosure of an expert
committee’s report on the Coastal Regulation Zone (CRZ) and
related documents. The committee had been set-up to look into the
implementation of the CRZ Regulation 2011. After the committee
submitted its report, the Regulations were amended several times.
The appellant contended that a perusal of the report could reveal
the basis for these amendments. The environment ministry refused
to disclose the report as it had not been accepted yet—a ground
summarily dismissed by the CIC. The CIC held that given the
ecological importance of coastal regions, it was in public interest
that the report was disclosed, and that suppression of the report
was giving rise to suspicions.59
Although the RTI Act can be used to access information on
various environmental indicators and decision-making processes,
it may not always be possible to do so in a timely manner. This
could be for a variety of reasons—information not being properly
recorded and maintained by the public authority, PIOs not replying
within the stipulated time frame or evading the application by
providing incorrect or misleading replies, or information being
provided in a language or format which the applicant cannot
understand. Furthermore, the appellate process under the RTI Act
takes a considerable amount of time to complete,60 and at the end
of the process the information, if received, may no longer be useful
to the applicant.
The higher judiciary’s record in upholding the right to
information under the RTI Act has been mixed. In fact, the
Supreme Court has held the view, though not in the context of

58. Union of India v. G. Krishnan (2012) SCC OnLine Del 2869,

para 20.
59. See also Kavitha Kuruganti v. MoEF, CIC/SA/A/2015/901798,
order dated 1 April 2016 and order dated 12 August 2016, CIC.
60. See Research, Assessment and Analysis Group (RaaG) and Satark
Nagrik Sangathan (SNS), ‘Tilting the Balance of Power: Adjudicating the
RTI Act’ (RaaG, SNS and Rajpal and Sons 2016) 48–50.

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environmental information, that the statutory exemptions from

information disclosure need not be read narrowly but purposively,
and as a means to protect equally important public interests that
protect democratic values.61 Even though there is a statutory right
to access information, its realisation is faced with several practical
and legal impediments.

Right to Public Participation

Roots in Indian Law

Intrinsically linked to the right to information is the right to

participate in the affairs of government, considered essential in
democracies. The Supreme Court has recognised this right and
held that ‘democracy cannot exist unless all citizens have a right to
participate in the affairs of the polity of the country’.62 The citizens’
right to participate in decision-making processes is not specifically
enumerated in the Constitution. However, it may be derived from
various provisions.
First and foremost, democratically elected representatives
are the direct outcome of Indian citizens exercising their right to
vote. Second, the right to life has been read to include the right
to community participation for the protection of environment and
human health.63 Third, implementation of directive principles of
state policy (DPSP) by the government, in particular Articles 39(b)
and (c), 47 and 48A, would be far more effective if relevant
stakeholders are effectively involved in the decision-making process.

61. CBSE v. Aditya Bandopadhyay (2011) 8 SCC 497, para 61; ICAI v.
Shaunak H. Satya (2011) 8 SCC 781, para 25.
62. Ministry of Information and Broadcasting v. Cricket Association of
Bengal (1995) 2 SCC 161, para 82.
63. Research Foundation for Science Technology and Natural Resources
Policy v. Union of India and Anr (2005) 10 SCC 510, para 42: ‘... the right
to information and community participation necessary for protection of
environment and human health is an inalienable part of Article 21’.

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 72 Shibani Ghosh

And finally, arguably, the fundamental duty of every citizen under

Article 51A(g) to protect the environment cannot be discharged
without opportunities for participation in decision-making, along
with access to information.64
Public participation may take place in many different forms—
public hearings, stakeholder meetings, citizens’ jury, call for public
comments on draft laws, etc.65 Besides the form of participation,
whether the right to participate has been properly effectuated
depends on various factors—who was consulted (or considered to
be a stakeholder), at what point of the decision-making process did
the consultation take place, how were the concerns addressed and
how much weight was attached to the public participation process
while reaching the final decision.66
In a recent case,67 the Supreme Court adopted the definition of
public consultation provided by the Court of Appeal in England:68
108. ... To be proper, consultation must be undertaken at
a time when proposals are still at a formative stage; it must
include sufficient reasons for particular proposals to allow those
consulted to give intelligent consideration and an intelligent
response; adequate time must be given for this purpose; and the
product of consultation must be conscientiously taken into account
when the ultimate decision is taken ... (emphasis supplied)69

64. Lavanya Rajamani and Shibani Ghosh, ‘Public Participation in

Indian Environmental Law’ in Lila Barrera-Hernandez et al. (eds) Sharing
the Costs and Benefits of Energy and Resource Activity: Legal Change and
Impact on Communities (OUP 2016) 393, 395.
65. Gene Rowe and Lynn J. Frewer, ‘Public Participation Methods: A
Framework for Evaluation’ (2000) 25(1) Science, Technology, and Human
Values 3, 8–9.
66. Ibid. See also Neil A. F. Popovic, ‘The Right to Participate in
Decisions that Affect the Environment’ (1993) 10(2) Pace Environmental
Law Review 683.
67. Cellular Operators Association of India v. Telecom Regulatory Authority
of India (2016) 7 SCC 703.
68. R. v. North and East Devon Health Authority, Ex Parte Coughlan 2001
QB 213: (2000) 2 WLR 622 (CA).
69. Cellular Operators (n 67), para 82.

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The Supreme Court found that although the concerned

regulatory authority had undertaken a comprehensive stakeholder
consultation, there was no discussion or reasoning rejecting the
arguments raised by some of the stakeholders, and therefore the
authority’s decision against them was ‘not a conclusion which a
reasonable person can reasonably arrive at’.70

Public Participation in
Environmental Decision-making

A citizen’s right to participate in the environmental decision-making

process in India is a statutory right. The two principal avenues for
public consultation and participation in Indian environmental
regulation are the EP Act and the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act
2006 (the Forest Rights Act). The two pollution control laws—
Water Act and Air Act—have very limited opportunities for public
participation.71 This section discusses relevant provisions of the EP
Act and the Forest Rights Act as well as opportunities for public
participation under the EIA Notification 2006.

Under the EP Act 1986

At the rule-making stage, the EP Act has an important provision for

public notice and comment. The central government is empowered
to prohibit or restrict the location of industries and carrying out of
operations and processes in different areas—keeping in mind the
environmental impact of such industries, operations or processes.72
While doing so, the central government has to provide details of the

70. Ibid.
71. C. M. Abraham and Armin Rosencranz, ‘An Evaluation of Pollution
Control Legislation in India’ (1986) 11 Columbia Journal of Environmental
Law 101.
72. EP Act s 3(2)(v).

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 74 Shibani Ghosh

prohibition or restriction—information about the area to which it

relates, and reasons for proposing the prohibition or restriction—
in a draft notification.73 The draft notification is made available
for comment, providing stakeholders an opportunity to comment
on the scope and impact of the proposed notification before it is
formally issued,74 with the expectation that the central government
will consider the comments while finalising the notification.
The central government can, however, do away with the public
notice requirement if it would be in ‘public interest’ to refrain from
undertaking such consultation.75 This overriding ‘public interest’ is
not defined in the EP Act. In one instance, the central government
considered unemployment of high numbers of persons in the
state of Rajasthan due to closure of mines to be sufficient reason
to exempt an amendment to the EIA Notification from public
notice.76 Therefore, it appears that the public interest that needs
protection need not be directly related to environmental concerns.
In certain other notifications, the central government only states
that in public interest it has done away with the public notice
requirement, with no further explanation.77

73. EP Rules, rule 5(3).

74. For example, Ministry of Environment, Forest and Climate
Change (MoEFCC), Public Notice on Draft Waste Management Rules,
2015 <http://www.moef.nic.in/sites/default/files/Draft%20waste%20
management%20rule%201072015.pdf> accessed 31 March 2017;
MoEFCC, Notification SO 3999(E) dated 9 December 2016, <http://
envfor.nic.in/sites/default/files/Building%20and%20Construction.pdf>
accessed 31 March 2017 (on buildings and construction); MoEFCC,
Draft Environment Laws (Amendment) Bill 2015 dated 7 October 2015
<http://www.moef.nic.in/sites/default/files/ScanJobInvitation%20of%20
comments%20Draft%20Environment%20Law.pdf> accessed 31 March
2017.
75. EP Rules, rule 5(4).
76. MoEFCC, Notification dated 1 July 2016 <http://
environmentclearance.nic.in/writereaddata/public_display/orders/109364
6087$EIANotification1july%202016.pdf> accessed 31 March 2017.
77. For example, MoEFCC, Notification SO 996(E) dated 10
April 2015 <http://environmentclearance.nic.in/writereaddata/EIA_

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 Procedural Environmental Rights in Indian Law 75

It is certainly conceivable that situations may arise wherein the

central government has to take urgent action and cannot engage
in public consultation. However, this power should be exercised
sparingly and primarily to avoid an imminent environmental threat;
not, for instance, to introduce institutional or systemic changes. The
rationale for such exceptional actions curtailing public participation
must meet some threshold criteria that are in consonance with the
preamble and objectives of the EP Act.

Under the EIA Notification 2006

The EIA Notification 2006 has a mandatory public consultation

requirement for certain categories of projects before the proposed
project is granted clearance. The EIA Notification defines public
consultation as ‘the process by which the concerns of local affected
persons and others who have plausible stake in the environmental
impacts of the project or activity are ascertained with a view to
taking into account all the material concerns in the project or activity
design as appropriate’.78 The public consultation component of the
EC process has been considered ‘an embodiment of the principles
of natural justice’.79 The consultation process includes two
components—a public hearing (held in proximity to the proposed
project site) and written responses sent by concerned persons to
the relevant regulatory authority.80

notifications/2015_04_10_SO_996(E).pdf> accessed 31 March 2017

(amendment relating to scoping requirements); MoEFCC, Notification
SO 811(E) dated 23 March 2015 <http://environmentclearance.nic.in/
writereaddata/EIA_notifications/2015_03_23_S.O.%20811(E)%20.pdf>
accessed 31 March 2017 (relating to coal block allocation); MoEFCC,
Notification SO 1141(E) dated 29 April 2015 <http://environmentclearance.
nic.in/writereaddata/EIA_notifications/2015_04_29_SO_1141(E).
pdf>accessed 31 March 2017 (relating to validity period).
78. EIA Notification, para 7(i)(III)(i).
79. S. Nandakumar v. The Secretary to Government of Tamil Nadu
Department of Environment and Forest and Ors (2010) SCC OnLine Mad 3220.
80. EIA Notification, para 7(i)(III)(ii).

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 76 Shibani Ghosh

The categories of projects that are exempt from the public

consultation process are listed in the EIA Notification and can be
changed only through an amendment to the EIA Notification.81
Existing projects which are planning to modernise or expand may
be exempt from the public consultation process but only after due
consideration by the EACs.82 Appendix IV to the EIA Notification
explains the process of conducting a public hearing, and the
regulatory requirements have been discussed in detail elsewhere.83
The advantage of a public hearing has been aptly described by the
High Court of Delhi:
... it brings about transparency in a proposed project and
thereby gives information to the community about the project;
there is consultation with the affected parties and they are not
only taken into confidence about the nature of the project but
are given an opportunity to express their informed opinion for
or against the project. This form of a social audit, as it were,
provides wherever necessary, social acceptability to a project
and also gives an opportunity to the EAC to get information
about a project that may not be disclosed to it or may be
concealed by the project proponent.84

81. See, for example, MoEFCC, Notification dated 15 January 2016

<http://environmentclearance.nic.in/writereaddata/EIA_notifications/
2016_01_15_SO_147(E).pdf> accessed 31 March 2017; MoEFCC,
Notification dated 03 February 2015 <http://www.moef.nic.in/sites/
default/files/S0%20N0.%20382-12252012071005.pdf> accessed 31
March 2017.
82. In Electrotherm (India) Limited v. Patel Vipulkumar Ramjibhai and
Ors (2016) 9 SCC 300, the Supreme Court found the EAC’s decision
to exempt a steel plant undertaking capacity expansion from the public
consultation process to be invalid and improper as it had failed to consider
the additional pollution load. See also MoEF, Office Memorandum dated
3 June 2009 in No. J-11013/41/2006-IA.II(I) <http://moef.nic.in/divisions/
iass/offc_memo_instruction.pdf> accessed 31 March 2017.
83. Ghosh (n 42); Naveen Thayyil, ‘Public Participation in
Environmental Clearances in India’ (2014) 56(4) Journal of the Indian Law
Institute 463.
84. Samarth Trust v. Union of India (2010) SCC OnLine Del 2127,
para 17.

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 Procedural Environmental Rights in Indian Law 77

Some of the typical issues faced in a public hearing are reflected

in the following paragraph from a judgment of the High Court of
Madras, while it was adjudicating on the legality of allotment of
land for a solid waste management plant:
Such public hearings should not be a make belief affair, just
to comply with the requirements of the notification. It is the
responsibility of the District Magistrate or officers of equal
status to see that all the affected persons are given audience.
The panel of officers conducting the public hearing must
remember that such hearings are conducted only to record
the views of the affected parties. The statutory panel should
hear the views of the affected persons and not those who have
assembled in the meeting hall at the behest of the developer
with a hidden agenda to block or prevent the opposition to
the project ... the attempt should be to conduct the hearing in
an open and transparent manner with opportunity to express
even the dissenting views without fear ... The minutes of the
hearing should contain a true note of what has transpired in
the meeting. Such positive steps on the part of the statutory
authorities would inspire confidence in the affected people.85
In several cases challenging the grant of environmental clearances to
projects, appellants have raised the issue that the public consultation
was not properly undertaken—either in letter or spirit of the law.
In some cases, the courts have overlooked such challenges as being
mere procedural oversight, not affecting the substantive decision.86
However, in some cases, courts have struck down the proposed
project’s EC or kept it in abeyance because public consultation was
not carried out properly. In Debadityo Sinha and Ors v. Union of
India and Ors, one of the reasons the NGT set aside the EC granted
to a super-critical coal-based thermal power plant was that the
videography of the public hearing showed persons carrying guns

85. S. Nandakumar (n 79), para 34.

86. Lower Painganga Dharan Virodhi Sangharsha Samiti v. State of
Maharashtra, Application No. 13(THC)/2013, judgment dated 10 March
2014, NGT (Western Zone Bench); Balachandra Bhikaji Nalwade v Union
of India (2009) SCC OnLine Del 2990.

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 78 Shibani Ghosh

present during the hearing.87 According to the Tribunal, ‘guns are

bound to strike fear in the hearts of men around and dominate their
free will’ and, therefore, it was difficult to call the public hearing as
a free and fairly conducted public hearing.88 In another case, the
NGT suspended the EC granted to a hydroelectric power project,
inter alia on the ground that one of the impact assessment reports
had been done after the public consultation process was over and
therefore the public did not get a chance to express its views on it.89
The public participation process under the EIA Notification
has repeatedly come under public and judicial scrutiny.90 There
are several areas of concern with regard to the design and efficacy
of the process.91 First, public consultation is conducted based
on poor quality of information provided in the draft EIA Report
and Environmental Management Plan. The fact that the project
proponent commissions the EIA reports casts doubt on the
credibility of the reports, and this concern is aggravated by the lack
of mechanisms to hold those preparing inadequate or misleading
reports accountable. Second, certain categories of projects are
granted blanket exemption from the public consultation process
on the questionable premise that either the nature, size or capacity
of these projects renders their environmental impacts insignificant
or that public consultation in such projects (for example, defence
projects) should be dispensed with for other reasons. This list of
exempted projects has only grown over the years, indicating the

87. Debadityo Sinha and Ors v. Union of India and Ors, Appeal
No. 79/2014, judgment dated 21 December 2016, NGT (Principal
Bench).
88. Ibid., para 59.
89. Save Mon Region Federation and Ors v. Union of India and Ors, Appeal
No. 39/2012, judgment dated 7 April 2016, NGT (Principal Bench); See
also M. P. Patil v. Union of India and Ors, Appeal No. 12/2012, judgment
dated 13 March 2014, NGT (Principal Bench).
90. Ghosh (n 42); M. P. Ram Mohan and Himanshu Pabreja, ‘Public
Hearings in Environmental Clearance Process; Review of Judicial
Intervention’ (2016) 51(50) Economic and Political Weekly 68.
91. Rajamani and Ghosh (n 64).

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 Procedural Environmental Rights in Indian Law 79

government’s preference to limit public participation. Third, the

Notification gives the project proponent excessive discretion while
responding to concerns raised during public consultation. The
proponent is only expected to respond to ‘material concerns’.
Materiality has not been defined leaving it entirely to the project
proponent’s discretion.
Public participation in the EC process is primarily during, but
not limited to, the public consultation process discussed earlier. The
public could continue to engage with the process by writing to the
relevant EAC, constituted under the EIA Notification, highlighting
specific concerns during the final appraisal of a project proposal
for the grant of EC. EACs have considered these representations
to be valuable to their deliberations.92 However, during a meeting
in December 2016, the EAC for River Valley Projects decided
that it would not take cognisance of representations received from
civil society groups.93 The EAC’s decision has been criticised for
limiting public participation and, in the process, for seemingly
compromising its role as an independent expert body.94
The EC process provides several opportunities for public
participation. But these opportunities are under constant threat

92. For examples, see discussion in Shibani Ghosh, ‘Expert Appraisal

Committee (EAC) of the Environment Ministry Sidelines Civil Society’
(2017) <http://www.cprindia.org/news/5836> accessed 31 March 2017.
93. EAC, ‘Minutes of the 1st Meeting of the Expert Appraisal
Committee for River Valley and Hydroelectric Projects’ (30 December
2016) <http://environmentclearance.nic.in/writereaddata/Form-1A/Minu
tes/12012017YXHJSW1J1stEACMeetingforRVHEP30thDecember2016.
pdf> accessed 31 March 2017.
94. Ghosh (n 92); Jay Mazoomdaar, ‘Environment panel against
entertaining “anti-development” representations’ The Indian Express (14
January 2017) <http://indianexpress.com/article/india/environment-
panel-against-entertaining-anti-development-representations-4473317/>
accessed 31 March 2017; Mayank Aggarwal, ‘Environment ministry’s
expert panel to ignore “anti-development” groups’ Mint (16 January
2017) <http://www.livemint.com/Politics/81WEQ2x3XivsgZjFW4jVTP/
Environment-ministrys-expert-panel-to-ignore-antidevelopm.html>
accessed 31 March 2017.

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 80 Shibani Ghosh

of legislative or executive actions that could amend the relevant

provisions, narrowly interpret them, or disincentivise public
participation through design or practice.

Under the Forest Rights Act

Decisions relating to access, use, and ownership of forest land and

resources also involve some degree of public consultation. The
Forest Rights Act recognises several rights of Scheduled Tribes
(STs) and other persons and communities that primarily reside
in and depend on forests for their livelihood needs. These rights
include the right to hold and live in the forest land, right to own
and to access, use, and dispose minor forest produce, right of use
or entitlement to fish and other products in water bodies, grazing
rights, traditional seasonal resource access, etc.95 These rights may
be claimed as individuals or as communities.96 The Act and its
related rules lay down a detailed process by which individuals and
communities can claim these rights. The Gram Sabhas have been
designated as authorities to initiate the process for determination
of the claims under the Act.97 The Gram Sabha includes all adults
in a particular village,98 and its pivotal role in the entire process is
an important facet of public consultation in forest governance in
the country. Among other functions, they receive and hear claims
for forest rights; prepare a list of claimants; give a reasonable
opportunity to all persons to present their claims; and then finally
pass a resolution on the claims.99
The Forest (Conservation) Act 1980 (FC Act) was enacted
to combat the large-scale deforestation that the country was
witnessing.100 The Act requires the prior approval of the central

95. Forest Rights Act s 3.

96. Ibid.
97. Ibid., s 6(1).
98. Ibid., s 2(g).
99. Ibid, s 6 read with the Scheduled Tribes and other Traditional Forest
Dwellers (Recognition of Forest Rights) Rules 2008, rules 11 and 12.
100. FC Act, Statement of Objects and Reasons.

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 Procedural Environmental Rights in Indian Law 81

government before state governments can permit the use of forest

land for non-forest purposes or dereserve reserved forests.101 This
process, commonly referred to as the forest clearance process,
requires several levels of forest bureaucracy to comment on and
approve the application.102 Unlike the EC process, it is not open to
public comment or consultation.
The situation changed in 2009 when the environment ministry
issued a letter to all states requiring them to enclose evidence of
settlement of rights under the Forest Rights Act, or evidence that
the settlement would be completed before final approval is granted
under the FC Act.103 This linkage was given statutory recognition in
2014, and now the settlement of rights in accordance with the Forest
Rights Act has to be completed before the application for diversion
of forest land is considered by the Conservator of Forests.104
In a case before the NGT, one of the grounds to challenge
the forest clearance granted to a hydropower project was that
the clearance condition to settle rights under the Forest Rights
Act had not been complied with.105 The NGT, deciding on this
limited point, directed that the entire proposal for forest diversion
be placed before the Gram Sabha of four affected villages.106 It
further directed the Gram Sabhas to consider ‘all community and
individual claims which would bring within its ambit religious as
well as cultural claims’.107

101. Ibid., s 2.
102. See Forest (Conservation) Rules 2003.
103. MoEF, ‘Letter on Diversion of forest land for non-forest purposes
under the Forest Conservation Act, 1980: ensuring compliance of the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act 2006’ F.No.11-9/1998-FC(pt) (3 August 2009)
<http://www.moef.nic.in/divisions/forcon/3rdAugust2009.pdf> accessed
31 March 2017.
104. See Forest (Conservation) Amendment Rules 2014.
105. Paryawaran Sanrakshan Sangarsh Samiti Lippa v. Union of India and
Ors, Appeal No. 28/2013, judgment dated 4 May 2016, NGT (Principal
Bench).
106. Ibid., para 20.
107. Ibid.

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 82 Shibani Ghosh

In a landmark judgment establishing the primacy of religious

rights of tribals over mining activities, the Supreme Court discussed
the role of the Gram Sabha in the decision-making process, both
under the Forest Rights Act and the Panchayats (Extension to the
Scheduled Areas) Act 1996.108 The Court was deciding whether
forest land should be diverted for bauxite mining in Lanjhigarh
in Odisha. It held that the Gram Sabha had the power to decide
whether mining in an area of religious significance affected their
religious rights, and to settle all claims arising under the Forest
Rights Act relating to the forestland that was proposed to be
diverted.109 After the Court’s judgment, Gram Sabhas unanimously
rejected the proposed diversion of forestland for the mining project,
and based on this rejection, the MoEF declined forest clearance
under the FC Act.110
In the past few years, the environment ministry has been
restricting the application of the Forest Rights Act, and as a result
the role of the Gram Sabha, in the forest clearance process.111 Some
of these efforts have been resisted by the Ministry of Tribal Affairs—
the nodal agency for the implementation of the Forest Rights Act,

108. Orissa Mining Corporation v. MoEF and Ors (2013) 6 SCC 476.
109. Ibid., paras 39–47.
110. Neha Sethi, ‘Government rejects Vedanta’s bauxite mining plans
in Niyamgiri’ Mint (11 January 2014) <http://www.livemint.com/Politics/
RfscBlhoFhQDapFA6uU7UK/Government-rejects-Vedantas-bauxite-
mining-plans-in-Niyamgi.html> accessed 31 March 2017.
111. See, for example, MoEF, ‘Letter on diversion of forest land for
non-forest purposes under the Forest Conservation Act, 1980: ensuring
compliance of the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act 2006’ F.No.11-9/1998-
FC(pt) (28 October 2014) <http://forestsclearance.nic.in/writereaddata/
public_display/schemes/1717277111$Guideline.pdf> accessed 31 March
2017; MoEF, ‘Letter on diversion of forest land for non-forest purposes
under the Forest Conservation Act, 1980: ensuring compliance of the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act 2006’ F.No.11-9/1998-FC(pt) (5 February
2013) <http://forestsclearance.nic.in/writereaddata/public_display/
orders/1503732839$FRA.pdf> accessed 31 March 2017.

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but with limited success.112 There is also a legal challenge to the vires
of the Forest Rights Act pending before the Supreme Court.113 At
the same time, a ‘Citizens’ Report’ published to commemorate 10
years of the Forest Rights Act highlights the poor implementation
of the Act.114 A law to recognise ‘tenurial and access rights’115 of
forest dwelling Scheduled Tribes and other communities, the
Forest Rights Act espouses a participatory process, but it faces
serious legal, institutional, and political impediments.

The Right to Access Justice

Roots in Indian Law

The right to approach a judicial forum for an appropriate remedy

is enshrined in the Indian Constitution as well as in the civil and
criminal procedural laws of the country. Besides the conventional
courts, various statutes passed by Parliament and state legislatures
have created judicial, quasi-judicial, and administrative fora where
specific grievances may be raised by statutorily identified persons.
The Supreme Court has held that ‘access to justice is a human
right. When there exists such a right, a disputant must have a
remedy in terms of the doctrine ubi jus ibi remedium’.116

112. Nayantara Narayanan, ‘Is the environment ministry strong-arming

the ministry of tribal affairs on forest rights?’ Scroll.in (4 May 2016)
<https://scroll.in/article/807608/is-the-environment-ministry-strong-
arming-the-ministry-of-tribal-affairs-on-forest-rights> accessed 22 April
2017.
113. Wildlife First and Ors v. MoEF and Ors, WP (C) No. 109/2008.
114. Community Forest Rights-Learning and Advocacy (CFR-LA),
‘Promise and Performance: Ten Years of the Forest Rights Act in India’
(December 2016) <http://fra.org.in/document/Promise%20and%20
Performance%20Report.pdf> accessed 31 March 2017.
115. Forest Rights Act, Preamble.
116. Bhagubhai Dhanabhai Khalasi v. State of Gujarat (2007) 4 SCC
241, para 10.

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 84 Shibani Ghosh

Article 32 of the Constitution recognises the fundamental right

to approach the Supreme Court directly for the enforcement of
fundamental rights, and Article 226 recognises the constitutional
right to approach High Courts for the enforcement of fundamental
rights or any other legal right.The Supreme Court and High Courts,
when approached under Articles 32 and 226, respectively, may issue
directions, orders, or writs including those in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari for the
enforcement of rights.117 Besides their extensive writ jurisdiction,
these courts enjoy wide original and appellate jurisdiction. The
power of judicial review enjoyed by the higher judiciary is considered
to be part of the basic structure of the Constitution and, therefore,
cannot be taken away even by a constitutional amendment.118
In a recent judgment, the Supreme Court reviewed case law on
the right to access justice and held that the right to life, guaranteed
under Article 21 of the Constitution of India, included the right to
access justice.119 The Court observed, ‘[t]he right is so basic and
inalienable that no system of governance can possibly ignore its
significance, leave alone afford to deny the same to its citizens’.120
It identified four main facets that constituted the essence of access
to justice: (i) the State must provide an effective adjudicatory
mechanism; (ii) the mechanism so provided must be reasonably
accessible in terms of distance; (iii) the process of adjudication
must be speedy; and (iv) the litigant’s access to the adjudicatory
process must be affordable.121

117. See Gopal Subramanium, ‘Writs and Remedies’ in Sujit Choudhry,

Madhav Khosla and Pratap Bhanu Mehta (eds) The Oxford Handbook of
the Indian Constitution (OUP 2016) 614.
118. L. Chandra Kumar v. Union of India (1997) 3 SCC 261, paras
76–79.
119. Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509.
120. Ibid., para 29.
121. Ibid., para 33.

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 Procedural Environmental Rights in Indian Law 85

Public Interest Litigation

At the core of access to justice jurisprudence in India lies PIL, a form

of proceedings fashioned by the Supreme Court and subsequently
adopted by the High Courts. The origin and evolution of PIL in
India has been reviewed extensively in academic scholarship.122
The original intent of encouraging PIL cases was to lend voice
to marginalised and disadvantaged sections of society that would
otherwise find the formal processes of the judicial system difficult
to navigate.123 But it soon became a vehicle to challenge government
inaction as well—to redress public wrong or injury, even though no
specific legal injury was caused to an individual or a determinate
class of persons.124 The Supreme Court relaxed several procedural
norms to ease access to the Court. The Court observed that the
traditional rule of locus standi need not be adhered to.125 The Court
held that when a legal wrong or injury was caused to a person or a

122. Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation

in the Supreme Court of India’ (1985) 4 Third World Legal Studies 107;
Clark D. Cunningham, ‘Public Interest Litigation in Indian Supreme
Court: A Study in the Light of American Experience’ (1987) 29(4) Journal
of the Indian Law Institute 494; Jamie Cassels, ‘Judicial Activism and Public
Interest Litigation in India: Attempting the Impossible?’ (1989) 37 The
American Journal of Comparative Law 495; S. P. Sathe, ‘Judicial Activism:
The Indian Experience’ (2001) 6 Washington University Journal of Law and
Policy 29; Ashok H. Desai and S. Muralidhar, ‘Public Interest Litigation:
Potential and Problems’ in Kirpal et al. (n 14) 159; Shyam Divan, ‘Public
Interest Litigation’ in Choudhry, Khosla and Mehta (n 117) 662.
123. Baxi, ibid.; Sathe, ibid.; D. S. Sengar, ‘PIL to Ensure that
Institutions Behave Lawfully: Public Access to Environmental Justice in
India’ (2003) 45(1) Journal of the Indian Law Institute 62.
124. S. P. Gupta (n 19), para 17; Cunningham (n 122).
125. S. P. Sathe, ‘Public Participation in Judicial Process: New Trends
in Law of Locus Standi with Special Reference to Administrative Law’
in Sathya Narayan (ed) Selected Works of SP Sathe (Volume II): Judicial
Power and Processes (OUP 2015) 408. See also Municipal Council, Ratlam v.
Vardichand and Ors (1980) 4 SCC 162, para 1.

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 86 Shibani Ghosh

determinate class of persons, and such person/s could not approach

a court for relief due to poverty, disability, or because they were in
a socially or economically disadvantaged position, any member of
the public could file a case on their behalf.126 Emphasising the need
to do away with procedural technicalities in such cases, the Court
held:
17. ... it must not be forgotten that procedure is but a
handmaiden of justice and the cause of justice can never be
allowed to be thwarted by any procedural technicalities ... The
court has to innovate new methods and devise new strategies
for the purpose of providing access to justice to large masses of
people who are denied their basic human rights and to whom
freedom and liberty have no meaning.127
Since the early 1980s, PILs have been argued and decided by the
Supreme Court and the High Courts on a variety of issues of social,
economic, political, and environmental relevance. Cases have
been initiated by person/s adversely affected by an administrative
wrong;128 person/s approaching the Court to vindicate the rights of
other persons;129 or a public-spirited citizen who is not representing
any particular class of persons, but is filing the case in her own
capacity of being a citizen of the country to whom the Government
owes a public duty.130
While many PILs begin their journey in the courts as a writ
petition, courts have also exercised what has come to be termed
as their epistolatory jurisdiction—accepting letters written to the

126. S. P. Gupta (n 19), para 17.

127. Ibid.
128. For example, Hussainara Khatoon and Ors (I) v. State of Bihar
(1980) 1 SCC 81; Kinkri Devi v. State of Himachal Pradesh (1987) SCC
OnLine HP 7.
129. For example, Sheela Barse v. Union of India (1983) 2 SCC 96;
M. C. Mehta v. Union of India and Ors (1988) 1 SCC 471 (Ganga Tanneries
case).
130. Dr B. L.Wadhera v. Union of India and Ors (1996) 2 SCC 594.

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 Procedural Environmental Rights in Indian Law 87

court as writ petitions,131 and taken cognisance of issues suo motu

(for instance those highlighted by newspaper reports).132
The proceedings, generally not adversarial, are meant to
be more an exercise of cooperation and collaboration between
different stakeholders.133 The reason for the court to move away
from the conventional adversarial system was not to create a
process wherein evidence was accepted without the opposing party
getting an opportunity to cross-examine, but that the respondent,
most often the state, should help the court to find the truth, as
the litigation was not against the State but against the illegalities
committed on its behalf.134
The response of the courts in PILs has also been different
and, at times, innovative. To assist them, and the parties, in
understanding and dealing with various aspects of the case, the
courts occasionally appoint expert committees or commissions and
amicus curiae.135 Sometimes a court issues orders in the nature of

131. Upendra Baxi (I) v. State of Uttar Pradesh (1983) 2 SCC 308; Sunil
Batra (II) v. Delhi Administration (1980) 3 SCC 488; M. C. Mehta v. Union
of India (1987) 1 SCC 395, paras 4–5; PUDR v. Union of India (1982) 3
SCC 235; Bandhua Mukti Morcha (n 16). See also, Supreme Court Rules
2013, Order XXXVIII, rule 12.
132. See In Re, News Item published in Hindustan Times titled ‘And
Quiet Flows The Maily Yamuna’, WP (C) No. 725/1994 (Supreme Court).
See also M. C. Mehta v. Kamal Nath and Ors (1997) 1 SCC 388.
133. State of Uttaranchal v. Balwant Singh Chaufal and Ors (2010) 3
SCC 402, para 28; Bandhua Mukti Morcha (n 16), para 9; PUDR (n 131),
para 2.
134. Sathe (n 122) 77.
135. Peoples’ Union for Civil Liberties v. Union of India and Ors, WP
(C) No. 196/2001, Supreme Court, orders dated 8 May 2002 and 29
October 2002 (appointment of commissioners by the Court to monitor
implementation of the mid-day meal scheme by the states); Aruna Rodrigues
and Ors v. Union of India and Ors (2012) 5 SCC 331 (appointment of
expert team to review risk assessment of genetically modified organisms);
T. N. Godavarman Thirumalpad (50) v. Union of India (2013) 8 SCC 198
(appointment of the Central Empowered Committee for monitoring the
implementation of the Court’s orders).

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‘continuing mandamus’—the court keeps the case under its judicial

oversight for several years and issues orders and directions suited to
the situation.136 On some occasions, after passing a detailed order,
the Supreme Court has transferred the case to the appropriate
High Court for further proceedings and compliance of its orders.137
Although the Indian judiciary is hailed for its ‘activist’ role
in championing the cause of the underprivileged, and PIL has
been considered ‘the judiciary’s most visible tool for marketing
constitutionalism’,138 the PIL process has some inherent flaws.139
While some of these flaws relate to the outcome of the case140
and the enforceability of judicial directions,141 relevant for the
present discussion is the potential of the PIL mechanism to limit
access to justice rather than increase accessibility. On occasion,
courts have not given important stakeholders an opportunity to

136. In M. C. Mehta v. Union of India (2008) 1 SCC 407, para 9.

137. For example, Vellore (n 12).
138. Divan (n 122) 679.
139. See Usha Ramanathan, ‘In the Name of the People: The Expansion
of Judicial Power’ in The Shifting Scales of Justice: The Supreme Court in
Neo‑liberal India (Orient BlackSwan 2014) 39; Anuj Bhuwania, ‘Courting
the People: The Rise of Public Interest Litigation in Post-Emergency India’
(2014) 34(2) Comparative Studies of South Asia, Africa and the Middle East
314; Lavanya Rajamani, ‘Public Interest Environmental Litigation in
India: Exploring Issues of Access, Participation, Equity, Effectiveness and
Sustainability’ (2007) 19(3) Journal of Environmental Law 293; Desai and
Muralidhar (n 122) 176–83.
140. Armin Rosencranz and Sharachchandra Lélé, ‘Supreme Court and
India’s Forests’ (2008) 43(5) Economic and Political Weekly 11; Véronique
Dupont and Usha Ramanathan, ‘The courts and the squatter settlements
in Delhi—or the intervention of the judiciary in urban “governance”’ in
I. S. A. Baud and J. de Wit (eds) New Forms of Urban Governance in India:
Shifts, Models, Networks and Contestations (SAGE Publications India 2008)
312.
141. See Supreme Court’s direction on river-linking (Networking of
River, in re (2004) 11 SCC 360), and removal of encroachments from
commonlands (Jagpal Singh v. State of Punjab (2011) 11 SCC 396).

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express their opinion before issuing directions that affect them.142

Court-appointed amicus curiae has often become the focal point
for submissions to the Court, excluding other parties.143 Courts
still accept letter petitions, but these are screened by a PIL cell
based on certain guidelines and only a selection of letters are
placed before the courts.144 In 2014, 1.2 per cent, and in 2015,
0.5 per cent of the letters received by the Supreme Court were
converted into Writ Petitions (Civil and Criminal).145 In 2010, the
Supreme Court directed all High Courts to ‘properly formulate
rules for encouraging the genuine PIL and discouraging the PIL
filed with oblique motives’.146 This ‘streamlining’ of PILs through
rule-making147 could curtail the flexibility in procedure that the
PIL mechanism is associated with.

Right to Access Environmental Justice

Judgments and orders delivered in PILs have significantly contributed

to the development of India’s environmental jurisprudence.148 The

142. Rajamani (n 139) 301–05; Anuj Bhuwania, Courting the People:

Public Interest Litigation in Post-Emergency India (CUP 2016) 101; M. C.
Mehta v. Union of India (2001) 3 SCC 756 (directions of the Supreme
Court making use of CNG mandatory in public transport).
143. Bhuwania, ibid., 39–43; S. Muralidhar, ‘Public Interest Litigation’
(1997–98) 33 Annual Survey of Indian Law 525.
144. For Supreme Court Guidelines, see <http://supremecourtofindia.
nic.in/circular/guidelines/pilguidelines.pdf> accessed 2 April 2017.
145. Supreme Court of India, ‘Indian Judiciary: Annual Report 2015–
16’, <http://supremecourtofindia.nic.in/annualreport/annualreport2015-16.
pdf> accessed 2 April 2017, 40.
146. Balwant Singh Chaufal (n 133), para 181.
147. For example, Delhi High Court (Public Interest Litigation) Rules
2010.
148. Michael G. Faure and A. V. Raja, ‘Effectiveness of Environmental
Public Interest Litigation in India: Determining the Key Variables’ (2010)
21(2) Fordham Environmental Law Review 239.

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recognition of the right to environment, and the incorporation of

principles of international and foreign law in Indian environmental
law, have been the result of some of the landmark environmental
PILs. Environmental law cases, in turn, are important case studies in
analysing the efficacy of PIL in addressing widespread and systemic
problems, and achieving outcomes that are socially equitable and
environmentally desirable.149 As other contributions to this volume
discuss many of the cases in detail, this section focusses on statutory
fora for environmental justice, in particular the NGT.
Parliament has passed three laws setting up special tribunals
with the exclusive jurisdiction over environmental cases.150 The
third statute—the one currently in force—is the National Green
Tribunal Act 2010 (NGT Act). The NGT has been set up under
this Act with the express objective of providing effective access to
judicial proceedings in environmental cases.151 The Tribunal is a
key player in present-day Indian environmental governance and
regulation.152
Other than the NGT, discussed in greater detail later, there
are a number of judicial and quasi-judicial fora available in India
where environmental issues may be raised. Specific environmental
statutes provide their own grievance redressal mechanisms. For

149. See Rajamani (n 139); Bhuwania (n 143).

150. National Environment Tribunal Act 1995 (NET Act), National
Environmental Appellate Authority Act 1997 (NEAA Act) and NGT Act.
151. NGT Act, Preamble.
152. Since its inception in October 2010 to 31 October 2015, the
Tribunal had received a total 12,091 cases of which 8,353 had been
disposed of. See MoEFCC, ‘Annual Report: 2015–2016’ <http://envfor.
nic.in/sites/default/files/Ministry%20of%20Envirorment%20Annual%20
Report%202015-16%20English.pdf> accessed 2 April 2017. See also
Gitanjali Nain Gill, ‘Environmental Justice in India: The National Green
Tribunal and Expert Members’ (2016) 5(1) Transnational Environmental
Law 175; Domenico Amirante, ‘Environmental Courts in Comparative
Perspective: Preliminary Reflections on the National Green Tribunal of
India’ (2012) 29(2) Pace Environmental Law Review 441; Kanchi Kohli and
Manju Menon, ‘The Nature of Green Justice’ (2012) 47(15) Economic and
Political Weekly 19.

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 Procedural Environmental Rights in Indian Law 91

instance, appellate authorities appointed under the Water Act and

the Air Act are empowered to hear appeals against orders and
directions issued by SPCBs.153 Appeals against the orders of the
appellate authorities lie before the NGT.154 Complaints against
persons violating the provisions of the Water Act, Air Act, and EP
Act may be filed before the criminal courts by the appropriate
regulatory agency or private persons.155 Under the Biological
Diversity Act 2002, an appeal in case of a dispute between the
National Biodiversity Authority and a State Biodiversity Board
would lie before the central government,156 and an appeal against
a determination of benefit sharing, or an order of the Authority
or State Boards, lies before the High Court.157 Apart from these,
environmental cases can be brought to the Supreme Court and
High Courts under their writ jurisdiction, as certain environmental
rights have been interpreted as fundamental rights. Environmental
torts like nuisance and negligence are also recognised in Indian
law, and complaints alleging nuisance and negligence have been
brought before the courts.158

Special Environmental Courts

In the context of environmental disputes, the Supreme Court

observed in 1986 that it was necessary that judicial decision-making
was informed by scientific and technical expertise. In view of the
fact that environmental cases involved assessment and evolution of

153. Water Act s 28; Air Act s 31.

154. NGT Act ss 16(a) and (f).
155. Water Act s 49; Air Act s 43; EP Act s 19.
156. Biological Diversity Act 2002 s 50.
157. Ibid., s 52.
158. Civil Procedure Code 1908 s 91; Code of Criminal Procedure
1973 s 133; Indian Penal Code 1860 s 268; Municipal Council, Ratlam
(n 125); Jaipur Golden Gas Victims Association v. Union of India and Ors
(2009) SCC OnLine Del 3357. See also Shibani Ghosh, ‘Reforming the
Liability Regime for Air Pollution in India’ (2015) 4 Environmental Law
and Practice Review 125, 133–35.

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scientific and technical data, the Court suggested that ‘it might be
desirable to set up Environment Courts on the regional basis with
one professional Judge and two experts’ with the right of appeal
to the Supreme Court.159 In 1995, through an Act of Parliament,
the central government was required to establish a National
Environment Tribunal to hear cases on liability and compensation
arising from accidents.160 The Act referred to the Rio Declaration
in its preamble, specifically quoting from the text of Principle 13 on
liability and compensation for environmental damage. This Act was
not notified and never came into force.
In 1996, the Supreme Court reiterated its recommendation
to set up special courts with exclusive jurisdiction on all civil and
criminal matters relating to the environment.161 It highlighted
the difficulties in the existing redressal mechanisms (that is,
ordinary criminal courts)—workload of the courts, long pendency
of cases, grant of interim orders which prevent authorities from
implementing their orders and the lack of appreciation of the
significance of environmental issues.162 Subsequently, ‘in view
of recent pronouncements by the Supreme Court in certain
public interest litigation cases involving environmental issues’,163
Parliament passed the National Environment Appellate Authority
(NEAA) Act 1997. The Act set up an Authority with the jurisdiction
to hear appeals against ECs granted (under the EIA Notification
1994).164
In 1999,165 and then in a follow up judgment in 2001,166 the
Supreme Court yet again emphasised on the need for specialised
environmental courts. The Court admitted to finding it difficult

159. M. C. Mehta v. Union of India (1986) 2 SCC 176, para 22

160. NET Act, Preamble.
161. Indian Council For Enviro-legal Action (n 11), para 6.
162. Ibid.
163. NEAA Act, Statement of Objects.
164. Ibid., s 11(1).
165. A. P. Pollution Control Board v. M. V. Nayudu (1999) 2 SCC 718,
para 54.
166. A. P. Pollution Control Board (n 17), paras 70–73.

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to provide adequate solutions to environmental problems. It

was not in a position to monitor its orders on a regular basis or
to issue urgent orders when necessary. It requested the Law
Commission of India to review Indian environmental laws and the
need for setting up environmental courts.167 The Law Commission
submitted its report on the constitution of environmental courts
in 2003. It recommended the setting up of environmental courts
in each state, headed by a judge and assisted by a panel of experts,
exercising original and appellate jurisdiction.168 The Commission
categorically criticised the idea of constituting one appellate body
based in Delhi, as it reduced effective access to justice for persons
in remote parts of the country.169
No action was taken on the report of the Law Commission to
set up state-wise environmental courts, and the NEAA with its seat
at New Delhi continued to function with its limited mandate. The
accessibility of this forum was questioned on various grounds—
the Tribunal narrowly construed locus standi,170 it adopted a hyper-
technical approach to procedural issues,171 and it was never fully
constituted with judicial and expert members.172 In 2009, the
High Court of Delhi passed adverse remarks against the central
government’s prolonged ‘lackadaisical’ approach in properly
constituting the NEAA, and observed, ‘[b]y rendering the NEAA
ineffective, the government has denied the citizens the right of

167. Ibid., para 73.

168. Law Commission of India, One Hundred Eighty Sixth Report on
Proposal to Constitute Environment Courts (September 2003) <http://
lawcommissionofindia.nic.in/reports/186th%20report.pdf> accessed 2
April 2017.
169. Ibid., 3.
170. Prafulla Samantra v. MoEF and Ors (2009) SCC OnLine Del 1333.
171. Jan Chetna and Anr v. Union of India and Ors (2009) SCC OnLine
Del 3240; Gomantak Shetakari Sanghatana v. Union of India and Ors (2009)
SCC OnLine Del 1172; Prafulla Samantra, ibid.
172. Armin Rosencranz, Geetanjoy Sahu and Vyom Raghuvanshi,
‘Whither the National Environment Appellate Authority’ (2009) 44(35)
Economic and Political Weekly 10.

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 94 Shibani Ghosh

access to effective and efficacious justice in matters concerning

the environment’.173 The central government challenged the High
Court’s judgment before the Supreme Court174 and during the
pendency of this case, the NGT Act was passed by Parliament.

The National Green Tribunal

In 2010, the NGT Act came into force.175 The Act in its preamble
refers to India’s participation at the Rio Conference in 1992, and
includes text from Principles 10 and 13 of the Rio Declaration.
The Tribunal consists of judicial and expert members. The judicial
members are former or sitting judges of the Supreme Court or
High Courts.176 The expert members are persons appointed with
knowledge and experience in varied fields like pollution control,
hazardous substance management, environment impact assessment,
climate change and forest conservation or with administrative
experience.177 Every bench hearing a case has to have at least one
judicial member and one expert member.178
Jurisdiction—NGT enjoys original jurisdiction over all civil
cases where a substantial question relating to the environment
arises from the implementation of provisions of laws listed in the
Schedule to the NGT Act.179 It exercises appellate jurisdiction over
certain orders and directions issued by government agencies.180
The limitation period for approaching the Tribunal ranges from

173. Vimal Bhai and Ors v. Union of India and Ors (2009) 157 DLT 477
(DB), para 41.
174. Union of India v.Vimal Bhai, SLP (C) No. 12065/2009.
175. The NGT Act repealed the NET Act and the NEAA Act. See
NGT Act s 38.
176. NGT Act s 5(1).
177. Ibid., s 5(2).
178. The National Green Tribunal (Practices and Procedure) Rules
2011 (NGT Rules), rule 5(1).
179. NGT Act s 14 read with s 2(m).
180. Ibid., s 16.

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 Procedural Environmental Rights in Indian Law 95

30 days to five years, depending on the cause of action.181 An appeal

from the order of the NGT lies before the Supreme Court.182
In pursuance of the law laid down by the Supreme Court in
L. Chandra Kumar,183 the NGT Act does not, and cannot, oust
the writ jurisdiction of the High Courts.184 Hence, where there is
a subject matter overlap between the NGT and the High Court
(under Article 226), a petitioner has the statutory and constitutional
right, respectively, to approach either forum. The Supreme Court185
and the Odisha High Court186 have held that writ petitions under
Article 226 of the Constitution, raising issues of larger public
interest or alleging violation of fundamental rights, need not be
transferred to the NGT, even if the issues raised are within the
Tribunal’s jurisdiction. However, certain High Courts have applied
the principle of alternative and efficacious remedy, and dismissed
writ petitions while considering the Tribunal to be the appropriate
forum.187
In 2012, the Supreme Court directed the transfer of all
matters covered by the NGT Act to the Tribunal to ‘render [...]
expeditious and specialised justice in the field of environment to
all concerned’.188 The direction was subsequently stayed by the
Court in a different case and placed for reconsideration, but the

181. Ibid., ss 14, 15 and 16.

182. Ibid., s 22.
183. L. Chandra Kumar (n 118).
184. See also Wilfred J. and Anr v. MoEF and Ors, MA No. 182 and 239
in Appeal No. 14/2014, judgment dated 17 July 2014, NGT (Principal
Bench), para 56.
185. Vaamika Island (Green Lagoon Resort) v. Union of India (2013) 8
SCC 760.
186. Yudhisthira Sahoo and Ors v. Government of Orissa and Ors MANU/
OR/0525/2012.
187. All India Plastic Industries Association v. Government of Tripura
(2014) SCC OnLine Tri 83; Gajanan Enclave Pvt. Ltd v. Jaipur Development
Authority and Ors (2013) SCC OnLine Raj 3033; Karnataka State Plastic
Association v. State of Karnataka MANU/KA/0693/2016.
188. Bhopal Gas Peedith Mahila Udyog Sangathan and Ors v. Union of
India (2012) 8 SCC 326, para 40.

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 96 Shibani Ghosh

question is yet to be decided.189 Meanwhile, the Supreme Court

and the High Courts have been transferring at least some of the
cases pending before them to the NGT for further adjudication.190
Accessibility—In terms of who can access the Tribunal, the statute is
broadly worded. ‘Any person’ who is aggrieved by an order (specified
in Section 16), or who wishes to seek relief or compensation or
settlement of a dispute may approach the Tribunal. Person includes
an individual, a company, an association, a local authority, etc.191
However, whether such a person needs to be directly aggrieved is
a question settled in one of the Tribunal’s early judgments. The
Tribunal adopted a liberal approach to locus standi and observed:
Once, the protection and improving the natural environment
is the fundamental duty of a citizen, any person can approach
this Tribunal and agitate his grievance as to protection and
improvement of the natural environment. The statutory
provisions are subservient to the constitutional mandates. The
person as defined or person aggrieved as occurs in Section 2(j),
16 and 18 (2) of the NGT Act cannot be placed above ‘every
citizen’ as appears in Article 51A of the Constitution of
India.192
Therefore, with regard to legal standing, the Tribunal may be
considered to be a highly accessible forum. But geographical
accessibility of the NGT has been a concern from its inception.

189. Adarsh Co-optv. Housing Society Ltd v. Union of India and Ors, SLP
(C) Nos. 27327 and 28512-28513/2013 MANU/SC/0375/2014.
190. T. N. Godavarman Thirumalpad v. Union of India (2016) 13
SCC 586; M. C. Mehta v. Union of India, WP (C) 3727/1985, order dated
24 January 2017, Supreme Court; Almitra H. Patel and Anr v. Union of
India, WP (C) No. 888/1996, order dated 2 September 2014, Supreme
Court; Vellore Citizens’ Welfare Forum v. Union of India and Ors (2016)
SCC OnLine Mad 1881; Chandrabhan Rajpurohit v. State of Rajasthan
(2014) SCC OnLine Raj 5159; Nandita Das v. Bharat Petroleum Corporation
Ltd. and Ors MANU/GJ/0237/2015.
191. NGT Act s 2(j).
192. Vimal Bhai and Ors v. MoEF and Ors, Appeal No. 5/2011,
judgment dated 14 December 2011, NGT (Principal Bench).

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The principal bench of the Tribunal is in New Delhi and there

are four regional benches with specified territorial jurisdiction.193
The Parliamentary Standing Committee considering the National
Green Tribunal Bill had expressed a concern that if the Tribunal sat
in only five cities, it would ‘lead to serious constraints of accessibility
in the long run, especially to the poor and the tribal people who live
in far flung areas’.194 The MoEF’s response was that the Tribunal
would occasionally function in a circuit mode.195 Since it has been
set up, on the Chairperson’s orders, the Tribunal has occasionally
heard cases in cities other than those where the five permanent
benches are situated. However, as the Tribunal enjoys jurisdiction
over certain categories of environmental cases of civil nature, to
the exclusion of other forums which may be geographically more
accessible (like the district courts or the High Court), the question
of accessibility is a live one.
The procedure for filing a new case or case-related documents
in the Tribunal is governed by the National Green Tribunal
(Practices and Procedure) Rules 2011. Applications and appeals
have to be filed in the prescribed format only. The filing process in
the Tribunal is not very different from a regular court. Although
applicants need not engage a lawyer, and can file cases and appear
in person, the procedural requirements could seem daunting to
someone not conversant with the court system.
A new appeal or application has to be accompanied by a fee
of Rs 1,000, if no compensation is claimed.196 If compensation is
claimed, a fee equivalent to 1 per cent of the compensation amount

193. MoEF, ‘Notification specifying ordinary places of sitting of the

NGT’ (17 August 2011) <http://www.moef.nic.in/downloads/rules-and-
regulations/1908.pdf> accessed 2 April 2017.
194. Department-related Parliamentary Standing Committee on
Science and Technology, Environment and Forests of Rajya Sabha, ‘203rd
Report on The National Green Tribunal Bill, 2009’ (November 2009),
para 8.8.
195. Lok Sabha, ‘Lok Sabha Debates of 15 March 2010’, 144.
196. NGT Rules, rule 12(2).

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 98 Shibani Ghosh

claimed has to be paid along with the appeal or application.197 The

rationale behind this was to discourage frivolous cases.198 However,
high court fees could be a real disincentive for persons to file
claims in the Tribunal. When this rule came into force, the inherent
perversity was highlighted in the media.199 In response, the then
Environment Minister issued a public notice proposing to modify
this rule.200 The notice stated that though it was legal to charge
such a fee, the Ministry did not intend for genuine litigants to feel
discouraged from seeking justice and, therefore, the said rule would
be removed. However, the 2011 rules remain unamended.
In practice, applicants may file an application for exemption
from depositing these fees, stating their reasons for not being able
to pay the court fees. The Tribunal may allow the application, and
impose a condition that if compensation is finally awarded, the
applicant would pay the court fees from that amount.201 But the risk
of being required to pay a significant amount as fees, even before
the case is heard, remains. While deterring frivolous litigation is
an important policy goal, the same could be achieved, in part at
least, by the Tribunal imposing costs under Section 23(2) of the

197. Ibid., rule 12(1). However, if the person filing the compensation
claim is below the poverty line, the fee amount is waived
198. MoEF, ‘Proposed Modification of Rule Requiring Payment of
Court Fees in National Green Tribunal Rules’ (24 April 2011) <http://
www.ercindia.org/files/legislations/proposed-mod-ngt-rules.pdf> accessed
2 April 2017.
199. Nitin Sethi, ‘Victims to pay for demanding compensation
from polluters’ The Times of India (21 April 2011) <http://timesofindia.
indiatimes.com/home/environment/pollution/Victims-to-pay-for-
demanding-compensation-from-polluters/articleshow/8042532.cms>
accessed 2 April 2017.
200. MoEF (n 198).
201. Bijay Krishna Sarkar and Ors v. Inland Waterways Authority of India
and Ors, OA No. 3/2015 and MA No. 912/2014, order dated 16 January
2015, NGT (Principal Bench).

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 Procedural Environmental Rights in Indian Law 99

NGT Act.202 The upfront payment of 1 per cent court fees seems
unnecessary.
Decision-making Process—The NGT Act requires that the
Tribunal deal with all cases ‘as expeditiously as possible’ and
endeavour to dispose of cases within six months from the date of
filing, and after giving all parties an opportunity to be heard.203
While there is no data on average time taken by the Tribunal to
decide a case, anecdotal evidence from conversations with lawyers
practicing before the Tribunal reveals that, in comparison to the
Supreme Court and High Courts, cases come up for hearing before
the Tribunal more frequently and are decided much sooner.
While adjudicating a case, the Tribunal has to apply the
principles of sustainable development, precaution and polluter
pays,204 and in case of an accident, it has to apply the no-fault
liability principle.205 It has the powers of a civil court but is not
bound by the procedure laid down by the Code of Civil Procedure
1908 or the rules of evidence contained in the Indian Evidence Act
1872.206 It has the power to regulate its own procedure and has to
be guided by the principles of natural justice.207
The Tribunal considers a variety of evidence including expert
committee reports and testimonials, media reports, academic
work, data provided by parties on affidavit, etc. In certain cases,
the Tribunal has adopted a mechanism it calls the ‘Stakeholder
Consultative Process in Adjudication’,208 wherein stakeholder

202. See, for example, Baijnath Prajapati v. MoEF and Ors, Appeal
No. 18/2011, judgment dated 20 January 2012, NGT (Principal Bench);
Vijay Singh v. Balaji Grit Udyog and Ors, Appeal No. 2/2014, judgment
dated 25 April 2014, NGT (Principal Bench).
203. NGT Act s 18(3).
204. Ibid., s 20.
205. Ibid., s 17(3).
206. Ibid., ss 19(1) and (3).
207. Ibid., ss 19(1) and (2).
208. Indian Council for Enviro-legal Action v. National Ganga River Basin
Authority and Ors, OA No. 10/2015, order dated 18 December 2015, NGT
(Principal Bench). See also Gill (n 152) 196.

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 100 Shibani Ghosh

consultations that involve concerned government agencies,

relevant industry associations and others are held, before issuing
directions. The Tribunal can award relief in the form of monetary
compensation or restitution of environment/property damaged, set
aside orders and approvals granted by regulatory authorities, issue
interim injunctions, direct reconsideration of decisions, amend
conditions to approvals already granted, direct the setting up of
committees, etc.
After final judgments are delivered, in some cases the Tribunal
continues to oversee the compliance of its directions through a
series of hearings and orders similar to the continuing mandamus
exercised by the Supreme Court.209 In some cases, the Tribunal
directs the setting-up of committees to monitor the implementation
of its directions.210
The accessibility of the NGT as a grievance redressal forum
for environmental cases may be assessed on a range of criteria
such as geographical location, procedural and legal requirements
in filing and hearing a case, and effectiveness of the adjudicatory
process in protecting the environment. Whether the adjudicatory
process is effective requires an in-depth analysis of the Tribunal’s
judgments and their implementation, which is an important area of
research, but beyond the scope of this chapter. On other criteria, the
Tribunal gets mixed results. The Tribunal’s liberal approach to locus
standi, the legal requirement to dispose of cases as expeditiously
as possible and in accordance with principles of natural justice,
admissibility of a variety of evidence and a reasonable application
fee makes the Tribunal a fairly accessible forum. However, the
fact that it functions through five benches makes it geographically

209. See orders in Almitra H. Patel and Anr v. Union of India and Ors, OA
No. 199/2014, order dated 20 March 2015 and 22 September 2016, NGT
(Principal Bench); Manoj Misra v. Union of India and Ors, OA No. 06/2012,
judgment dated 13 January 2015, NGT (Principal Bench).
210. Manoj Misra, ibid.; Puran Chand and Anr v. State of Himachal
Pradesh and Ors, Appeal No. 48(THC)/2012, judgment dated 2 February
2016, NGT (Principal Bench); Gauri Maulekhi v. Union of India and Ors,
OA No. 486/2014, judgment dated 4 May 2016, NGT (Principal Bench).

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 Procedural Environmental Rights in Indian Law 101

less accessible for most parts of the country, and the possibility of
having to pay 1 per cent of the compensation claimed, in addition
to the adoption of procedures similar to conventional courts could
act as a disincentive for litigants.

Conclusion

As the discussion in the preceding sections demonstrates, procedural

environmental rights in India find expression in a variety of
statutory mechanisms. The exercise of these rights, and in particular
the right to access the higher judiciary in environmental matters,
has contributed greatly to the evolution of India’s environmental
jurisprudence. Present-day environmental advocacy and litigation
benefit significantly from the existence of these rights, and Indian
courts, to the extent they have engaged in the interpretation of
these rights, have been mostly sympathetic and adopted a liberal
approach. But the situation is far from satisfactory. It is important
to recognise the limitations in the manner in which each of the
three procedural environmental rights is currently defined, and the
constraints in effectively enjoying them. The potential of the ‘rights
language’—to ensure that the denial of these procedural guarantees
results in consequences—has hardly been realised.
Of the three rights, the right to access environmental
information is perhaps the most well-defined in law. Specific
information disclosure requirements under environmental
laws are complemented by the RTI Act that is applicable more
comprehensively. However, the right to access information is
incomplete if understood as accessibility of documents per se. The
right must encompass the right of timely access to information,
the right to accurate and comprehensible information, and the
right to expect transparent governance (in other words, a duty on
government agencies to make, or mandate, suo motu disclosures).
Timely disclosure of information is crucial to avert
environmental problems, and to allow interventions in decision-
making processes at the appropriate time. It is not uncommon

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 102 Shibani Ghosh

for infrastructure and other developmental projects to commence

construction without necessary approvals and, when challenged,
resort to the fait accompli argument.211 Such actions are abetted
by the fact that people are not aware about the illegalities until
much later. The right to information is violated if information
is obfuscated in any manner, either by providing inaccurate or
misleading information, or by providing it in a form or language not
commonly understood by those most directly affected/interested.
Statutory recognition for some of these concerns212 are accompanied
by poor compliance mechanisms. Transparency in governance and
reduction in information asymmetries across stakeholders needs to
be recognised as an important policy goal. Decisions and decision-
making processes affecting the country’s environment must be
opened to public scrutiny actively, and independent of external
triggers (like RTI applications). Simultaneously, obfuscation of
information has to be disincentivised through adverse regulatory
consequences.
On the other hand, of the three rights, the scope to exercise the
right to public participation is the most limited—by definition and
in practice.With the exception of the EC process, and the settlement
of rights process under the Forests Rights Act, people in India
have very little say in the manner in which natural resources are
utilised or affected. Under the Water Act and Air Act—potentially
the most far-reaching national environmental laws—there are
very limited opportunities for the public to intervene, by right.
Even under the EC process, the public consultation requirements
are neither designed nor implemented in a manner that would
ensure that people’s views are actually taken into account while

211. Manoj Misra v. Delhi Development Authority and Ors, OA

No. 65/2016, order dated 9 March 2016, NGT (Principal Bench); Him
Privesh Environment Protection Society v. State of Himachal Pradesh (2012)
SCC OnLine HP 2690.
212. For example, under the RTI Act, non-disclosure of information
could result in the imposition of a penalty. Under the EIA Notification
2006, applications for EC could be rejected if information provided in the
application is found to be false.

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 Procedural Environmental Rights in Indian Law 103

conceptualising or operationalising a project. These are treated as

regulatory impediments which have to be overcome at least cost,
and not as deliberative processes with important stakeholders.
Public participation processes must not only be mainstreamed, but
must also be carefully designed—inputs taken at a time which can
influence the final outcome, stakeholders properly identified, and
full disclosure of information relating to the decision.
The recognition of the right to access environmental justice
in India benefitted from the rich access to justice jurisprudence
and the PIL mechanism that had already developed. But just as
environmental cases are excellent examples to study how the Indian
judiciary came to adopt an activist avatar, they also demonstrate the
limitations of relying on judicial fora for improved environmental
outcomes. A constitutional or statutory right to approach a judicial
forum is only the first of many steps to secure justice. The right
is an empty promise if the forum itself is not accessible, either
geographically or due to technical requirements; if the orders of
the forum are not implemented in letter and spirit; or if the forum
is unable to ensure compliance of its orders.
Procedural environmental rights are certainly on firmer legal
foundation than substantive environmental rights in India. But
there is hardly any space for complacency as even in their more
preferred status, they are being regularly curtailed or denied. While
substantive statutory revisions are required to integrate these rights
in Indian environmental regulations, the judiciary, in the interim,
must protect and uphold these rights even if it means going beyond
the strict letter of the law—a jurisdictional crossover they have not
hesitated to make in the past.

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All Chapters.indd 104 1/18/2019 3:28:38 PM
 Part II

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 three

Sustainable Development and

Indian Environmental Jurisprudence

Saptarishi Bandopadhyay*

The notion of sustainable development, first articulated during

the early 1970s, has evolved into the dominant paradigm through
which states and international institutions understand a plethora
of issues at the nexus of economic development and environmental
protection. The adoption of this framework signals a profound shift
in the way society conceives the natural environment in relation to
human activities within it. But sustainable development has also
drawn significant controversy pointed towards its lack of specificity,
problems with implementation, and its implications for the future
of the planet.

* I would like to thank Shibani Ghosh for the invitation to contribute

this chapter, and for her consistent support throughout the process. An
earlier draft received the attention of my fellow participants at a workshop
organised by the Center for Policy Research, New Delhi (December
2013); their thoughtful reviews have done a great deal to improve my work.
I am also grateful to Kriti Trehan and Rimi Jain at the Center for Policy
Research, New Delhi, for the generous assistance with research. Errors, as
usual, are mine.

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 108 Saptarishi Bandopadhyay

The major principles housed under this umbrella term, for

instance the precautionary principle and polluter pays principle,
are the subject of detailed analysis in other chapters in this volume.
My primary goal in this chapter is to offer a critical analysis of
how sustainable development has evolved as a legal term of art
in India, and the array of meanings associated with it. However,
since the bulk of Indian environmental jurisprudence related to
sustainability has been drawn from international law, I will begin by
offering a brief description of the historical evolution of sustainable
development in a variety of intergovernmental fora. I may add, the
brief history discussed here is by no means a comprehensive survey
of sustainable development at the international level. It is offered to
contextualise the trajectory of environmental jurisprudence within
India.

Sustainable Development: A Brief History

In his Separate Opinion in the Gabčíkovo–Nagymaros decision, in

1997, Judge Christopher Weeramantry, then vice president of the
International Court of Justice (ICJ), surveyed a diversity of beliefs
and practices spread across the world to describe sustainability
as a historic and globally appreciated ethic.1 But the stakes
underlying sustainable development emerged with the Founex
Report,2 which was produced in preparation for the Stockholm

1. Separate Opinion of Vice President Weeramantry, Case Concerning the

Gabčíkovo–Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep. 7, 88
(Gabčíkovo–Nagymaros). See also In the Arbitration Regarding the Iron Rhine
Railway, between the Kingdom of Belgium and the Kingdom of the Netherlands
(2005) XXVII RIAA 35, para 59.
2. Preparatory Committee for the United Nations Conference on
the Human Environment, ‘The Founex Report on Development and
Environment—1971’ (4–12 June 1971) (Founex Report), para 5.1;
see also UN General Assembly (UNGA) Res. 1831 (XVII) ‘Economic
Development and the Conservation of Nature’ (18 December 1962) UN
Doc A/RES/1831 (XVII).

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 Sustainable Development and Indian Environmental Jurisprudence 109

Conference,3 initially proposed by the Swedish government in

1968. The Founex Conference was meant to serve as a forum
to record the struggles of developing countries trying to balance
economic development and ecological health. At the centre of the
disagreement between northern and southern governments was a
difference in how each group conceptualised the ‘environment’.
For developed countries calling for a dialogue, environmental
protection was centred on the degradation of the planet’s physical
environment (for example, air and water pollution). Representatives
of the developing world, on the other hand, could not imagine
conceptualising such physical degradation without emphasising
its relationship to human (developmental) concerns.4 While this
difference reflected the unique struggles of each group, it was also
informed by the ideological divide that characterised the Cold War
era. Faced with the likelihood that the United Nations would fail
to gather enough political support to realise a global conversation
at Stockholm, the UN under-secretary for environmental affairs,
Maurice Strong, proposed an agenda that fused environmental
protection and developmental concerns under the umbrella

3. UN Conference on the Human Environment, ‘Declaration of the

United Nations Conference on the Human Environment’ (16 June 1972)
UN Doc A/Conf.48/14/Rev. 1, 3, reprinted in 11 ILM 1416 (1972)
(Stockholm Declaration).
4. For instance, the Algerian government’s response to conversations at
the Founex Conference:
But what would be the use of restoring nature in a world where
man remained oppressed? What would be the use of conserving
natural recourses in a world dominated by economic inequality
and social injustice? What could be the use of a newly viable
environment if the majority of human societies continued to have
no say in the major decisions that govern the world and to be
subject to arrangements and compromises concluded over their
heads?
Statements by Head of Delegations: Algeria, in Mostfa Kamal Tolba
(ed) Evolving Environmental Perceptions: From Stockholm to Nairobi
(Butterworths 1988) 114.

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 110 Saptarishi Bandopadhyay

concept, ‘ecodevelopment’,5 which would eventually develop into

‘sustainable development’. While the notion of ecodevelopment
was far from universally accepted, the Founex Report expressly
incorporated its central tenets, identifying northern and southern
concerns as distinct yet on par, and garnered enough support to
facilitate a future conversation in Stockholm.6

The 1972 Stockholm Conference

In 1972, when states convened at the United Nations Conference on

the Human Environment (Stockholm Conference), international
environmental law was still nascent, and participants were keen
to retain sovereign control over their natural resources.7 This
tension is reflected in Principle 21 of the resulting Stockholm
Declaration,8 which established a definitive trend in environmental

5. Anne E. Egelston, Sustainable Development: A History (Springer 2013)

62, citing Strong’s autobiography, M. Strong, Where on Earth Are We Going
(Alfred A. Knopf 2000).
6. Founex Report (n 2), para 1.4, which notes:
... [t]he major environmental problems of developing countries
are essentially of a different kind. They are predominantly
problems that reflect the poverty and very lack of development
of their societies. They are problems, in other words, of both rural
and urban poverty. In both the towns and in the countryside, not
merely the ‘quality of life,’ but life itself is endangered by poor
water, housing, sanitation and nutrition, by sickness and disease
and by natural disasters. These are problems, no less than those
of industrial pollution, that clamor for attention in the context of
the concern with human environment. They are problems which
affect the greater mass of mankind.
7. Philippe Sands, Principles of International Environmental Law (CUP
2003) 237; Ved P. Nanda and George Pring, International Environmental
Law and Policy for the 21st Century (Transnational Publishers 2004) 39.
8. Stockholm Declaration (n 3), Principle 21 states:
States have, in accordance with the Charter of the United Nations
and the principles of international law, the sovereign right to

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 Sustainable Development and Indian Environmental Jurisprudence 111

agreements whereby the first clause of the text pays homage to

state sovereignty, while the second develops a major exception
with respect to the transboundary impacts of domestic activities.9
In addition, developing countries vociferously defended their right
to growth and development,10 to the extent that, at moments, the
larger discussions seemed in jeopardy.11 Principle 11 of the resulting
Stockholm Declaration accommodates these demands, stating
that ‘environmental policies of all States should enhance and not
adversely affect the present or future development potential of
developing countries’.12 Accordingly, the Conference did not take
a position on structural issues perpetuated by poorly conceived
land use or resource distribution, and resolutely avoided debating
the value of large-scale infrastructure projects (such as dams),

exploit their own resources pursuant to their own environmental

policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction.
9. International Law Commission (ILC), ‘Draft Articles on Prevention
of Transboundary Harm from Hazardous Activities’ in Report of the
International Law Commission on the Work of Its Fifty-third Session (2001)
UN Doc A/56/10, preamble. The ICJ has acknowledged the Principle 21
dichotomy as part of international custom. See Legality of the Threat or
Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para 27;
dissenting opinions of Judge Weeramantry, Judge Koroma and Ad Hoc
Judge Palmer, in Request for an Examination of the Situation in Accordance
with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear
Tests (New Zealand v. France) Case (1995) ICJ Rep. 288 at 317, 347; 363,
378; and 381, 408, respectively.
10. UN Environment Programme, ‘Stockholm 1972—Brief Summary
of the General Debate’ <http://hqweb.unep.org/Documents.Multilingual/
Default.Print.asp?DocumentID=97&ArticleID=1497&l=en> accessed 21
March 2017.
11. Nanda and Pring (n 7) 24.
12. Stockholm Declaration (n 3), Principle 11.

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 112 Saptarishi Bandopadhyay

which developing nations believed to be crucial to their goals of

industrialisation and modernisation.13
The Stockholm Declaration was decisively statist,14 and
even two decades later the Rio Declaration on Environment and
Development (Rio Declaration), was ‘unable to improve significantly
upon, develop, or scale back or otherwise alter the language in
adopting Principle 21’.15 (India’s National Conservation Strategy
and Policy Statement on Environment and Development reflected
the resulting status quo.16)
Nevertheless, the Stockholm Conference was significant for
its focus on environmental issues. Pursuing the needs identified
by the Founex Report, the Stockholm Declaration while
committed to state sovereignty,17 focussed on strategies to integrate
intergovernmental actions related to economic and social justice, as

13. Anne Thompson Feraru, ‘Environmental Actors’ in Kenneth A.

Dahlberg et al. (eds) Environment and the Global Arena Actors:Values, Policies
and Futures (Duke University Press 1985) 43.
14. One instance of this is found by contrasting the language of
Stockholm Declaration (n 3), Principle 23, with Rio Declaration,
Principle 11; Stockholm claims that it is ‘essential in all cases to consider
the systems of values prevailing in each country’ and ‘the extent of the
applicability of standards’, but Rio limits itself to ‘standards ... should
reflect the environmental and developmental context’. UN Conference
on Environment and Development (UNCED), ‘Rio Declaration on
Environment and Development’ (14 June 1992) UN Doc A/CONF.
151/26 (Vol. I) Resolution 1, Annex I, reprinted in 31 ILM 874 (1992)
(Rio Declaration).
15. Sands (n 7) 236.
16. See Ministry of Environment and Forests, Government of India,
National Conservation Strategy and Policy Statement on Environment
and Development (1992) <http://moef.nic.in/downloads/about-the-
ministry/introduction-csps.pdf> accessed 21 March 2017, para 7.3: ‘The
Indian approach to global environmental problems is generally in keeping
with other developing countries and has the following basic elements: Our
economic development cannot be hampered in the name of the global
environment, which we have done nothing to damage and can do little to
save ...’.
17. Stockholm Declaration (n 3), Principle 23.

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 Sustainable Development and Indian Environmental Jurisprudence 113

well as environmental protection concerns.18 But the Declaration

did not explicitly mention sustainable development.
Soon after, in October 1974, a collaboration between the United
Nations Council on Trade and Development (UNCTAD) and the
United Nations Environment Programme (UNEP) produced an
important Symposium on Patterns of Resource Use, Environment
and Development Strategies in Cocoyoc, Mexico. Significantly,
the conversation in Cocoyoc fulfilled the initial goal of the Founex
Conference, which had begun as a forum for highlighting the
concerns of developing countries, but concluded with a détente
that presented the problems of the developed and developing
world as different but equally valuable in conversations about
the global environment. The resulting Cocoyoc Declaration,19 on
the developing world’s perspective on the issue of environmental
protection, broadened the conception of ecodevelopment while also
orienting it towards human (developmental) issues. Accordingly,
the conversation shifted from focussing on industrialisation and
consumption patterns to social justice issues, such as access to
food, shelter, medicine and education.20 Over the next two decades,
environmental protection issues were often addressed outside the
auspices of the UN,21 but the elaboration of ecodevelopment in
Cocoyoc dramatically reshaped the next major global conversation.

The 1987 Brundtland Commission Report

In 1980, the International Union for Conservation of Nature and

Natural Resources (IUCN), as part of its World Conservation

18. The Stockholm Declaration resulted in UNGA Res. 2997(XXVII)

‘Institutional and Financial Arrangements for International Environmental
Cooperation’ (15 December 1972) UN Doc A/RES/27/2997, establishing
the United Nations Environmental Protection (UNEP).
19. ‘The Declaration of Cocoyoc’ (1975) 3(2 and 3) World Development
141.
20. Egelston (n 5) 75.
21. Ibid., 73–84.

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 114 Saptarishi Bandopadhyay

Strategy, inaugurated the term sustainable development.22 The

Strategy was aimed at ‘the integration of conservation and
development to ensure that modifications to the planet do indeed
secure the survival and well-being of all people’.23 Three years
later, Gro Harlem Brundtland, the then prime minster of Norway,
accepted the chair of the United Nations World Commission
on Environment and Development (Brundtland Commission),
charged with developing cooperative solutions to the deadlock
between conservation and development.24
The Brundtland Commission’s report, Our Common Future,
recognised that ‘[e]nvironment and development are not separate
challenges; they are inexorably linked’.25 The report recast ecological,
development, and energy crises as one and the same, noting that
‘[e]cology and economy are becoming ever more interwoven locally,
regionally, nationally, and globally into a seamless net of causes and
effects’.26 The report focussed on needs and interpreted sustainable
development as the kind of development that ‘meets the needs of the
present without compromising the ability of future generations to
meet their own needs’.27 Moving beyond the traditional discourse on
environmental issues, the Commission acknowledged the need for
‘equitable opportunities for all’, emphasising that ‘[i]t is therefore
futile to attempt to deal with environmental problems without a
broader perspective that encompasses the factors underlying world
poverty and international inequality’.28

22. International Union for Conservation of Nature and Natural

Resources (IUCN), World Conservation Strategy: Living Resource
Conservation for Sustainable Development (IUCN 1980).
23. Ibid., Section 1, para 12.
24. World Commission on Environment and Development, Report of
the World Commission on Environment and Development: Our Common Future
(OUP 1987) Chairman’s Foreword. The pages cited here correspond
to the online version available at <http://www.un-documents.net/our-
common-future.pdf> accessed 31 March 2017.
25. Ibid., 36.
26. Ibid., 14.
27. Ibid., 16.
28. Ibid., 12.

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 Sustainable Development and Indian Environmental Jurisprudence 115

The Brundtland Report reflected a fundamental shift in the

values underlying environmental governance globally, and its
interpretation of sustainable development remains the most widely
accepted.29 However, ecological management initiatives globally
continue to arise within the context of economic investment
agendas.30 Against this background, a narrow but plausible reading
of the Commission’s definition of sustainable development could
conclude that it is acceptable for humans to continue to regulate
the destruction of life-forms and entire ecosystems globally, so
long as they do not irreversibly endanger the fulfillment of human
needs as they may be determined in the future.31 The Brundtland
Report also clarifies that ‘limits’ are not absolute but constructed
by the interaction of the ‘present state of technology and social
organization on environmental resources’, and ‘the ability of the
biosphere to absorb the effects of human activities’.32 Through
such concessions, the Report affirmed the goal of achieving
economic growth through technological innovation, while leaving
ambiguous the relationship between these future technologies and
the environment.

The 1992 UN Conference on Environment and

Development and Resulting Instruments

In 1992, the UN organised a Conference on Environment and

Development (UNCED) in Rio de Janeiro (popularised as the

29. Gerhard Loibl, ‘The Evolving Regime on Climate Change and

Sustainable Development’ in N. Schrijver and F. Weiss (eds) International
Law and Sustainable Development: Principles and Practice (Martinus Nijhoff
Publishers 2004) 97; Andreas F. Lowenfeld, International Economic Law
(OUP 2002) 379.
30. Lester R. Brown, Eco-Economy: Building an Economy for the Earth
(W. W. Norton and Co. 2001) 78.
31. Alan Drengson and Bill Devall (eds) Ecology of Wisdom:Writings by
Arne Naess (Counterpoint Press 2008) 297.
32. Our Common Future (n 24) 16.

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 116 Saptarishi Bandopadhyay

‘Earth Summit’). By this time, the focus of intergovernmental

negotiations had shifted from the ‘Human Environment’
(Stockholm Declaration) to ‘Environment and Development’—
reflecting the ecodevelopment conversations at Cocoyoc and
beyond. At UNCED, representatives of 172 governments arrived
at a consensus on sustainable development as the appropriate
paradigm within which to locate their respective economic
development efforts; and adopted the five resulting instruments.
The resulting Rio Declaration was formulated as a package deal
of 27 principles, of which Principle 3 explicitly incorporated the
Brundtland Report’s understanding of sustainable development,
while Principle 4 squarely conveyed the new status quo, stating: ‘In
order to achieve sustainable development, environmental protection
shall constitute an integral part of the development process and
cannot be considered in isolation from it.’33
The Rio Declaration has been hailed as a foundational
document of contemporary environmental law, and referenced
by a number of international dispute resolution tribunals.34
However, the Declaration has also inspired an abundance of
mixed emotions—for instance, some scholars argue that while the
Stockholm Declaration was explicitly focussed on human needs,35
the Rio Conference was far more ecofriendly, and the resulting
Declaration displayed a greater equity between environmental
protection and economic development.36 Others understand the
Rio Declaration as following up on the Stockholm Declaration with
a new, Brundtland Commission–inspired approach—focussing
on sustainable development as a form of reconciliation between

33. Rio Declaration (n 14), Principle 4.

34. Gabčíkovo–Nagymaros (n 1); Nuclear Weapons (n 9).
35. For instance, the Brundtland Commission acknowledged how
the ‘1972 UN Conference on the Human Environment brought the
industrialized and developing nations together to delineate the “rights” of
the human family to a healthy and productive environment’. Our Common
Future (n 24) 6.
36. Alexander Kiss and Dinah Shelton, International Environmental Law
(2nd edition, Transnational Publishers 1994) 67.

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 Sustainable Development and Indian Environmental Jurisprudence 117

environmental protection and developmental interests.37 This

reconciliation, however, is not necessarily neutral. Specifically,
scholars have argued that Principle 1—‘[h]uman beings are at the
centre of concerns for sustainable development. They are entitled
to a healthy and productive life in harmony with nature’—shows
the Rio Declaration to be clearly anthropocentric in its ideals.38
Support for this position is found by a reading of Principle 4 which
requires that environmental protection be an ‘integral part of the
development process’, and not the other way around.
Similarly, Principle 12 of the Rio Declaration ties responses to
the ‘problems of environmental degradation’ to the promotion of
‘a supportive and open international economic system that would
lead to economic growth and sustainable development’. The danger
in this arrangement is that over time the paradigm of sustainable
development may absorb environmental concerns into its calculus
of economic growth,39 thereby making environmental protection
decisions progressively dependent on the economic obligations
of states.40 Commentators have also noted that compared to
Stockholm Declaration, the Rio Declaration is less statist and
incorporates stronger language, making its principles obligatory.41
Nevertheless, critics argue that the document’s terms allow states
tremendous leeway in terms of implementation.42 It merits noting
that the Rio Declaration itself is not binding.

37. Marie-Claire Cordonier Segger and Ashfaq Khalfan, Sustainable

Development Law: Principles, Practices and Prospects (OUP 2004) 20.
38. Ibid.
39. For a close parallel, with respect to the economic development of
developing countries, Gilbert Rist, The Theory of Development: From Western
Origins to Global Faith (Zed Books 1997) 140–50.
40. Saptarishi Bandopadhyay, ‘An Other History of Knowledge and
Decision in Precautionary Approaches to Sustainability’ (2014) 25(3)
Fordham Environmental Law Review 552.
41. Alan Boyle and David Freestone (eds) International Law and
Sustainable Development (OUP 1999) 3.
42. Nanda and Pring (n 7) 22–27, 39.

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 118 Saptarishi Bandopadhyay

Finally, some scholars feel that the Rio Declaration reflects

the progressive codification of international norms related to the
environment;43 while for others the document represents a merging
of legal regimes (environmental and economic) and the creation of
a hybrid regime of sustainable development.44 The corresponding
critical review describes the document as ‘a text of uneasy
compromises, delicately balanced interests, and dimly discernible
contradictions, held together by the interpretive vagueness of classic
UN-ese’.45 These uneasy compromises are visible across the content
of the various principles which must be read together.46 Accordingly,
scholars generally acknowledge that the Rio Declaration is more
a ‘system of environmental international law’, than ‘simply more
international law rules about the environment’.47
The UNCED also produced the binding United Nations
Framework Convention on Climate Change (UNFCCC),
dedicated to checking the spread of greenhouse gases, which
explicitly incorporates sustainable development as one of the

43. Alan Boyle, ‘Codification of International Environmental Law and

the International Law Commission: Injurious Consequences Revisited’ in
Boyle and Freestone (n 41) 61.
44. Philippe Sands, ‘International Law in the Field of Sustainable
Development’ (1995) 65(1) British Yearbook of International Law 303.
45. Ileana Porras, ‘The Rio Declaration: A New Basis for International
Cooperation’ in Philippe Sands, Greening International Law (Earthscan
1993) 20.
46. For instance, Boyle and Freestone understand some elements of
the Rio Declaration, such as ‘Principle 4 (integration of environmental
protection and development), 10 (public participation), 15 (the
precautionary approach), and 17 (environmental impact assessment)’, as
reflecting the interests of developed states. Developing countries on the
other hand strongly supported other elements such as ‘Principle 3 (right to
development), Principles 6 and 7 (special needs of developing States and
common but differentiated responsibility), and Principles 5 and 9 (poverty
alleviation and capacity building)’. Boyle and Freestone (n 41) 3–4.
47. David Freestone, ‘The Road from Rio: International Environmental
Law after the Earth Summit’ (1994) 6(2) Journal of Environmental Law
193, 218.

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 Sustainable Development and Indian Environmental Jurisprudence 119

guiding principles;48 Agenda 21,49 a non-binding plan to ‘create

a global partnership for sustainable development’,50 that inspired
the United Nations Commission for Sustainable Development;
the binding Convention on Biological Diversity (CBD);51 and the
Statement of Principles on Forests.52

The Post-Rio Status Quo

Following the UNCED, many states altered their laws to

reflect their commitment to sustainable development.53 At the

48. United Nations Framework Convention on Climate Change

(adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS
107, Article 3.
49. Report of the United Nations Conference on Environment and
Development, 3–14 June 1992 (12 August 1992) UN Doc A/CONF/151/26
(Vol I) Resolution 1, Annex II: Agenda 21; reprinted in 31 ILM 874
(1992). For a brief review of Agenda 21, Segger and Khalfan (n 37) 21–22.
50. Alexander Yankov, ‘The Law of the Sea Convention and Agenda 21:
Marine Environmental Implications’ in Boyle and Freestone (n 41) 271;
Thomas A. Mensah, ‘The International Legal Regime for the Protection
and Preservation of the Marine Environment from Land-based Sources of
Pollution’ in Boyle and Freestone (n 41) 297.
51. Convention on Biological Diversity (adopted 5 June 1992, entered
into force 29 December 1993) 1760 UNTS 79; reprinted in 31 ILM 818
(1992).
52. Report of the United Nations Conference on Environment and
Development, 3–14 June 1992 (14 August 1992) UN Doc A/CONF.151/26
(Vol III) Resolution 1, Annex III: Non-legally Binding Authoritative
Statement of Principles for a Global Consensus on the Management,
Conservation and Sustainable Development of all Types of Forests.
53. For example, Department of Environment and Energy, Government
of Australia, National Strategy for Ecologically Sustainable Development
1992; Ministry of Environment and Forests, Government of India,
National Environment Policy 2006; Ministry of Environment and Forests,
Government of India, Environmental Action Plan 1993; various decisions
of the Indian Supreme Court; Government of China, National Agenda 21—
White Paper on China’s Population, Environment, and Development in

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 120 Saptarishi Bandopadhyay

intergovernmental level, there was a conscious effort to establish

sustainable development as the dominant context for integrating
environmental protection concerns and economic development
interests.54 In 1997, the ICJ acknowledged the ‘need to reconcile

the 21st Century 1994; President’s Council on Sustainable Development,

USA, Sustainable America—A New Consensus for Prosperity,
Opportunity and a Healthy Environment 1996; European Community,
Towards Sustainability: The European Community Programme of Policy
and Action in Relation to the Environment and Sustainable Development
1972, COM (92) 23 final, Vol. II; Canadian Environmental Protection Act
1999, Chapter 33; World Summit on Sustainable Development (WSSD),
‘Letter dated 6 August 2002 from the Permanent Representative of
Bangladesh to the United Nations and the Chargé d’affaires a.i. of the
Permanent Mission of the Netherlands to the United Nations addressed
to the Secretary-General of the United Nations’ (9 August 2002) UN
Doc A/CONF.199/8, Annex; ILA New Delhi Declaration of Principles of
International Law Relating to Sustainable Development; WSSD, Report of
the World Summit on Sustainable Development (26 August–4 September
2002) UN Doc A/CONF.199/20, Chapter 1, Resolution 1, Annex:
Johannesburg Declaration on Sustainable Development (Johannesburg
Declaration).
54. UNGA A/Res. 55/2, ‘United Nations Millennium Declaration’ (18
September 2000) UN Doc A/RES/55/2 I, para 6; Agreement Establishing
the World Trade Organization (adopted 15 April 1994, entered into force
1 January 1995) 1867 UNTS 154 (Marrakech Agreement), preambular
para 1; North American Free Trade Agreement (adopted 17 December
1992, entered into force 1 January 1994) 32 ILM 289, 605 (1993);
WSSD, Report of the World Summit for Social Development (6–12 March
1995) (19 April 1995) UN Doc A/CONF.166/9, Chapter 1, Resolution
1: Copenhagen Declaration on Social Development, para 6; Steve
Charnovitz, ‘The World Trade Organization and the Environment’ (1998)
8 Yearbook of International Environmental Law 98; Global Environment
Facility (GEF), ‘Mainstreaming the Global Environment in World Bank
Operations’ (1 October 1998) GEF/C.12/6; GEF, ‘Mainstreaming the
Global Environmental Issues: Report of the UNDP to the GEF Council’
(14 September 1998) GEF/C.12/4; Jessica Howley, ‘The Gabčíkovo–
Nagymaros Case: The Influence of the International Court of Justice on
the Law of Sustainable Development’ (2009) 2(1) Queensland Student Law
Journal 1, 8–11.

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 Sustainable Development and Indian Environmental Jurisprudence 121

economic development with protection of the environment [which]

is aptly expressed in the concept of sustainable development’.55
Even earlier, Judge Weeramantry seemed to accept the importance
of sustainable development when, in his Dissenting Opinion in
the Nuclear Tests case, he noted the growing acceptance of the
precautionary principle by quoting, approvingly, its inclusion in
the Bergen Ministerial Declaration on Sustainable Development
in the Economic Commission for Europe (ECE) region.56 The
majority decision in the Gabčíkovo–Nagymaros case (which broadly
sketches the logic of sustainable development), read together with
Judge Weeramantry’s Separate Opinion (endorsing the sustainable
development as an ‘integral part of modern international law’),57
gives the distinct sense that the ICJ endorses sustainable development
without attending to specifics. Sustainable development has also
been recognised by the Dispute Resolution Body of the World
Trade Organisation (WTO-DSB).58
At the outset of the twenty-first century, then, neither states
nor commentators were able to agree on the meaning of sustainable
development across different disciplines, nor limit the scope of how

55. Gabčíkovo–Nagymaros (n 1), para 140. For an analysis see Rosalyn

Higgins, ‘Natural Resources in the Case Law of the International Court’
in Boyle and Freestone (n 41) 87.
56. Request for an Examination (n 9) 342. On the evolution of the
precautionary principle, World Trade Organisation (WTO), EC Measures
Concerning Meat and Meat Products—Report of the Appellate Body (16
January 1998) WT/DS48/AB/R (AB-1997-4); Southern Bluefin Tuna
(New Zealand v. Japan; Australia v. Japan) (Provisional Measures, Order
of 27 August 1999) <www.itlos.org/fileadmin/itlos/documents/cases/case_
no_3_4/Order.27.08.99.E.pdf> accessed 4 April 2017, para 77.
57. Separate Opinion of Vice President Weeramantry, in Gabčíkovo–
Nagymaros (n 1) 86.
58. In 1998, the Appellate Body of WTO-DSB incorporated
sustainable development into its interpretation of Article XX(g) of the
General Agreement on Tariffs and Trade, WTO, United States—Import
Prohibition of Certain Shrimp and Shrimp Products—Report of the Appellate
Body (12 October 1998) WT/DS58/AB/R, adopted by the WTO-DSB on
6 November 1998.

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 122 Saptarishi Bandopadhyay

sustainability may be pursued in practice.59 Sustainable development

was variously understood as a ‘group of congruent norms’,60
or as ‘a system’61 which functioned at the nexus of economic
development, environmental protection and social concerns, as an
attempt to reconcile these interests. It was also apparent that while
states valued the aspirations and rhetoric underlying sustainability,
they were unlikely to accept sustainable development as a binding
principle of customary international law.62

The Millennium Declaration and Beyond

In September 2000, the UN hosted a historic meeting of world

leaders in New York. The resulting Millennium Declaration63 and
the corresponding Millennium Development Goals (MDGs) were
designed to establish a set of target-specific goals that governments
would commit to achieving by 2015. The focus of these goals was
poverty and the possibility of allowing developing nations access to
the funds and expertise of international financial institutions like the
World Bank and International Monetary Fund (IMF). Noticeably,
the goal of environmental sustainability was by now being directly
linked with wider developmental goals, such as poverty alleviation,
healthcare, education, social empowerment, and child mortality.
(Despite some successes at the end of the first decade, World Bank

59. R. Ciegis, J. Ramanauskiene and B. Martinkus, ‘The Concept of

Sustainable Development and its Uses for Sustainability Scenarios’ (2009)
62(2) Engineering Economics 28.
60. Vaughan Lowe, ‘Sustainable Development and Unsustainable
Arguments’ in Boyle and Freestone (n 41) 19, 26.
61. Freestone (n 47) 218.
62. See, for example, Daniel Barstow Magraw and Lisa D. Hawke,
‘Sustainable Development’, in Daniel Bodansky, Jutta Brunnée and Ellen
Hey (eds) The Oxford Handbook of International Environmental Law (OUP
2007) 613, 623–25; Lowe (n 60).
63. United Nations Millennium Declaration (n 54).

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 Sustainable Development and Indian Environmental Jurisprudence 123

and IMF stressed that many developing countries were struggling

to meet their targets by 2015.)64
In 2002, to mark the passing of a decade since the Earth Summit,
the UN hosted the World Summit on Sustainable Development
(WSSD) in Johannesburg, South Africa. The conference produced
the Johannesburg Declaration and a Plan of Implementation of the
World Summit on Sustainable Development.65 Following in the
footsteps of the MDGs, this document formally acknowledged the
social side of environmental degradation, recognising ‘that poverty
eradication, changing consumption and production patterns and
protecting and managing the natural resource base for economic
and social development are overarching objectives of and essential
requirements for sustainable development’.66 Accordingly,
they situated economic development, social development, and
environmental protection as the ‘interdependent and mutually
reinforcing pillars of sustainable development’, and stressed that
these pillars would have to be strengthened at the ‘local, national,
regional and global levels’.67 But the United States refused to
participate at the meeting, significantly weakening the document’s
impact.
A decade after WSSD, the UN returned to Brazil to host the
Rio+20 Conference on Sustainable Development and renewed
its commitment to global sustainability under the aspiration of a
global ‘Green Economy’. This term, like sustainable development,

64. See, for example, World Bank and International Monetary Fund
(IMF), ‘Global Monitoring Report: The MDGs after the Crisis’ (2010)
<https://www.imf.org/external/pubs/ft/gmr/2010/eng/gmr.pdf> accessed
21 March 2017; IMF and World Bank, ‘A Review of Some Aspects of the
Low-income Country Debt Sustainability Framework’ (5 August 2009)
<https://www.imf.org/external/np/pp/eng/2009/080509a.pdf> accessed 21
March 2017.
65. WSSD, Report of the World Summit on Sustainable Development
(n 53), Chapter 1, Resolution 2, Annex: Plan of Implementation of the
World Summit on Sustainable Development.
66. Johannesburg Declaration (n 52), para 11.
67. Ibid., para 5.

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 124 Saptarishi Bandopadhyay

has proven controversial for lack of a specific definition, the

emergence of parallel terms such as ‘green growth’, ‘low carbon
development’, ‘sustainable economy’ and ‘steady-state economy’,
as well as little clarity about the kinds of measures and protocols
that would count as contributing towards such an economy.68
Nevertheless, in 2015, the UN continued to pursue this trajectory
by developing the aspirations of such an economy into a set of 17
sustainable development goals (SDGs) to be implemented by the
member states by 2030.69

Critical Notes

While legal agreements struggle to pin down a working definition

of sustainable development, they often underplay how this
reconciliation proceeds by facilitating moral and political decisions
that cannot be settled by scientific data. Urging careful critique, some
scholars are troubled by how ‘dangerously successful’ sustainable
development has been, because of the ‘uncritical accumulation
of meanings, often contradictory and impractical’, that have
characterised its globalisation.70 They have also acknowledged that
‘a buzzword such as “sustainability” has a long history of power
and exclusion’.71

68. Sustainable Development Knowledge Platform, ‘Green Economy’

<https://sustainabledevelopment.un.org/topics/greeneconomy> accessed
21 March 2017.
69. Sustainable Development Knowledge Platform, ‘Sustainable
Development Goals’ <https://sustainabledevelopment.un.org/sdgs>
accessed 21 March 2017.
70. Timothy O’Riordan and Andrew Jordan, ‘The Precautionary
Principle in Contemporary Environmental Politics’ (1995) 4(3)
Environmental Values 191, 192.
71. Bernhard Gissibl, ‘Forum: The Nature of German Environmental
History’ (2009) 27(1) German History 113, 130.

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 Sustainable Development and Indian Environmental Jurisprudence 125

With the rising popularity of ecogovernance, monikers such

as ‘integrated outcome’72 have conveyed the faith in a natural
compatibility between environmental protection and economic
growth, which may be arrived at through standardised techno-
scientific practices.73 The resulting paradigm, often characterised
by cultural rationalisation74 and a policy-of-finding-compatibility,75
involves a series of moral and political choices that may be certified
as objectively sustainable or not.76 Sustainable development is the
label under which this paradigm and its underlying assumptions
have globalised.

Sustainable Development in India:

The Incorporation Process

Sustainability formally entered Indian planning policy through

the Sixth Five Year Plan (1980–85) which included a chapter on
‘Environment and Development’. The Plan emphasised the need
to focus on ecological preservation and the use of sound scientific
knowledge with respect to the administration of a diverse set of
activities, from land use and agriculture, to fisheries and mining.

72. Michael Kerr and Marie-Claire Cordonier Segger, ‘Corporate

Social Responsibility: International Strategies and Regimes’ in Marie-
Claire Cordonier Segger and Christopher Gregory Weeramantry (eds)
Sustainable Justice: Reconciling Economic, Social and Environmental Law
(Martinus Nijhoff Publishers 2005) 135.
73. Timothy W. Luke, ‘Sustainable Development as a Power/Knowledge
System: The Problem of “Governmentality”’ in Frank Fischer and Michael
Black (eds) Greening Environmental Policy: The Politics of a Sustainable
Future (Paul Chapman Publishing 1995) 21, 26.
74. Duncan Kennedy, ‘The Role of Law in Economic Thought: Essays
on the Fetishism of Commodities’ (1985) 34 The American University Law
Review 939, 969–70.
75. Luke (n 73) 22–23.
76. Bandopadhyay (n 40) 572–75, 581–82, and passim.

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 126 Saptarishi Bandopadhyay

O. P. Dwivedi has described the onset of this trend as ‘alarmist’,77

but his description offers an accurate sense of the significant shift
in the Indian government’s thinking on environmental governance
during this time. The Seventh Five Year Plan (1985–90) followed
this trend by foregrounding the importance of cooperation
between government and civil society in countering environmental
degradation, and promoting developmental activities that
integrate concerns for ecological harmony. Since then, the Indian
government has regularly recognised sustainability as the basis for
future developmental goals.78
During this period, the Indian Supreme Court began to
develop a reputation for being an activist institution,79 claiming a
leading role in environmental guardianship in India.80 The Court’s
initial forays into environmental jurisprudence began when it was
called on to settle disputes related to the termination of mining
leases, signaling the end of a wave of national development projects
instituted with scant regard for environmental concerns. Initially, in
1985, the judges reasoned that mining operations could be allowed
to a limited extent since they affected both economic and security
interests of the government. The accompanying compromise

77. O. P. Dwivedi, ‘India’s Environmental Policies, Programme

and Stewardship’, quoted in Shyam Divan and Armin Rosencranz,
Environmental Law and Policy in India (2nd edition, OUP 2001) 33, 34.
78. National Conservation Strategy and Policy Statement of
Environment and Development 1992 (n 16), paras 1.1 and 1.3; National
Forest Policy 1988, paras 1.1 and 3.4. Sustainability is also an oft-
invoked touchstone in the National Environment Policy 2006 <http://
www.moef.gov.in/sites/default/files/introduction-nep2006e.pdf> accessed
27 April 2017; the Draft National Forest Policy 2016 <http://www.
indiaenvironmentportal.org.in/files/file/Draft%20National%20Forest%20
Policy,%202016.pdf> accessed 27 April 2017.
79. Upendra Baxi, ‘The Avatars of Indian Judicial Activism: Explorations
in the Geographies of [In]justice’ in S. K. Verma et al. (eds) FiftyYears of the
Indian Supreme Court, its Grasp and Reach (OUP 2000) 156.
80. C. L’Heureux-Dubé, ‘Human Rights: A Worldwide Dialogue’ in
B. N. Kirpal et al. (eds) Supreme But Not Infallible: Essays in Honour of the
Supreme Court of India (OUP 2000) 214, 223.

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 Sustainable Development and Indian Environmental Jurisprudence 127

required that the government oversee the operations and produce

documentation accounting for the ensuing ecological harm.81
In time, the Court adopted a far stricter position, as, over
a series of decisions, it all but halted mining operations across
the country.82 A major step in this direction was the Supreme
Court’s proclamation that the constitutional mandate for the
protection of life and personal liberty, under Article 21 of the
Constitution, included the right of citizens to live in a pollution-
free environment,83 as well as the right to development.84
Simultaneously, lower courts eagerly adopted the Supreme Court’s
tenor and reliance on proportionality analysis. For instance, in
Kinkri Devi, the Himachal Pradesh High Court insisted that if
the central and state governments failed to take the long-term
view and ‘strike a just balance between the tapping of the natural
resources ... and the preservation and protection of the ecology’,
as the Supreme Court had directed, their actions would amount

81. Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh

(1985) 2 SCC 431.
82. Ambika Quarry Works v. State of Gujarat (1987) 1 SCC 213;
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh (1989)
Supp (1) SCC 504; Rural Litigation and Entitlement Kendra v. State of Uttar
Pradesh (1989) Supp (1) SCC 537.
83. Much has been written on this development. A few instances will
suffice here: Rural Litigation Kendra (n 81); Subhash Kumar v. State of
Bihar (1991) 1 SCC 598, para 7; Virender Gaur v. State of Haryana and
Ors (1995) 2 SCC 577, para 7. For commentary, Divan and Rosencranz
(n 77) 49–57; Geetanjoy Sahu, ‘Implications of Indian Supreme
Court’s Innovations for Environmental Jurisprudence’ (2008) 4(1) Law
Environment and Development Journal 1, 8–9; Lavanya Rajamani, ‘The
Right to Environmental Protection in India: Many a Slip between the Cup
and the Lip?’ (2007) 16(3) Review of European Community and International
Environmental Law 274.
84. For a review of the Indian Supreme Court decisions expanding
the scope of Article 21 to include a variety of entitlements and
capabilities generally associated with socioeconomic development, see
S. Radhakrishnan, ‘Development of Human Rights in an Indian Context’
(2008) 36(2) International Journal of Legal Information 303–31.

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 128 Saptarishi Bandopadhyay

to a violation of the fundamental rights conferred by Article 14

and 21 of the Constitution.85 In 2000, Justice Bharucha used his
minority opinion in Narmada to summarise the underlying shift
in values and referred to the Guidelines for Environmental Impact
Assessment of River Valley Projects issued by the Government in
1985, which stated:
Concern for environmental pollution is rather a recent
phenomenon which has been triggered mainly by the backlash
effect of accelerated industrial growth in the developed
countries.The two major criteria—the project should maximise
economic returns and it should be technically feasible—are no
longer considered adequate to decide the desirability or even
the viability of the project. It is now widely recognised that the
development effort may frequently produce not only sought
for benefits, but other—often unanticipated—undesirable
consequences as well which may nullify the socio-economic
benefits for which the project is designed.86
Over the years, the Supreme Court’s interpretation of sustainable
development has been dramatically open-ended.87 For instance, in its

85. Kinkri Devi and Anr v. State of Himachal Pradesh and Ors (1987)
SCC OnLine HP 7, para 8, where the High Court hewed closely to the
Supreme Court’s reasoning in Rural Litigation Kendra (n 81). The judges
in Kinkri Devi approvingly quoted a statement by Justice Amarandra Nath
Sen (who had presided over the Rural Litigation Kendra dispute), just prior
to his retirement, outlining his commitment:
Industrial development is necessary for economic growth of the
country in the larger interests of the nation. If, however, industrial
growth is sought to be achieved by haphazard and reckless
working of the mines resulting in loss of life, loss of, property, loss
of basic amenities like supply of water and creation of ecological
imbalance there may ultimately be no real economic growth and
no real prosperity. It is necessary to strike a proper balance.
See Kinkri Devi, para 7.
86. Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664,
para 258.
87. Sahu (n 83) 10–19; Florent Pelsy, ‘The Blue Lady Case and the
International Issue of Ship Dismantling’ (2008) 4(2) Law, Environment and

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decision on the relocation of Asiatic Lions, the Court acknowledged

that sustainable development, a narrative that the Supreme Court
has often portrayed as reflecting ecocentrism, ‘clearly postulates
an anthropocentric bias, least concerned with the rights of other
species’.88 The judges proceeded to criticise anthropocentrism as
marked by ‘human interest focused thinking that [the] non-human
has only instrumental value to humans ... humans take [automatic]
precedence and human responsibilities to non-human[s] are based
on benefits to humans’.89 And yet, in a 2013 decision involving
a dispute over the operationalisation of a nuclear power plant in
Kudankulam, the Court held: ‘Sustainable Development and CSR
[corporate social responsibility] are inseparable twins ... not merely
human-centric, but ecocentric’.90
Sustainable development understood purely in terms of
such contradictions is liable to be found meaningless. But,
the globalisation of this concept, and its widespread use in
Indian environmental governance, warns against such an easy
presumption of redundancy. In order to make sense of the
judiciary’s interpretations, sustainable development must not
simply be understood as a legal principle, but rather as a paradigm
within which judges repeatedly reorganise competing interests
through moral and political choices rationalised by legal argument.
The meaning afforded to sustainable development, therefore,
is inextricable from the process of dispute resolution through
which political actors, like the judiciary, with unique motivations

Development Journal 135; A. Srinivas, ‘Polluting Units and Delhi Master

Plan: Testimonies of Displaced Workers’ (1998) 33(9) Economic and
Political Weekly 447; S. P. Sathe, ‘Judicial Activism: The Indian Experience’
(2001) 6(1) Washington University Journal of Law and Policy 29, 40; Divan
and Rosencranz (n 77) 147; S. Visvanathan, ‘Supreme Court Constructs a
Dam’ (2000) 35(48) Economic and Political Weekly 4176.
88. Centre for Environment Law, WWF-India v. Union of India and Ors
(2013) 8 SCC 234, para 46; See T. N. Godavarman Thirumulpad v. Union of
India and Ors (2012) 3 SCC 277.
89. Centre for Environment Law, ibid., para 46.
90. G. Sundarrajan v. Union of India and Ors (2013) 6 SCC 620, para 119.

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 130 Saptarishi Bandopadhyay

and interests, present their organisation of competing interests as

apolitical and flowing rationally from scientific fact.91
Accordingly, a large part of the analysis that follows, will
unfold through a close reading of the style, rhetoric and reasoning
found in some of the most important sustainable development–
centric decisions of the Supreme Court over the past 20 years. The
decisions reviewed here do not amount to an exhaustive chronology,
because, while the principle of sustainable development is cited
extensively and across a diversity of judicial decisions, most of these
judgments closely mime the interpretive developments achieved in
a smaller number of cases by the Supreme Court. These latter cases
form the core of this study.
At the time of the Supreme Court’s initial decisions on
environmental issues, the field of environmental governance was
already populated with a variety of statutes and administrative
rules. Early judicial decisions, during the 1980s and 1990s, were
accompanied by and often responded to a litany of popular protests
against the colonial evacuation of forests and the modern, nationalist
dream of damming the nation’s rivers.92 In addition, unlike other
issues on which the Court has taken the lead, for instance, sexual
harassment93 (which everyone can agree needs to be stamped out), it
is notoriously difficult to point to an unambiguously correct answer
in environmental protection/economic development disputes.
Accordingly, where the history of the Supreme Court is replete
with instances of activism,94 on matters related to environmental

91. Saptarishi Bandopadhyay, ‘Because the Cart Situates the Horse:

Unrecognized Movements Underlying the Indian Supreme Court’s
Internalization of International Environmental Law’ (2010) 50(2) Indian
Journal of International Law 204, 226–27, 241–46.
92. Madhav Gadgil and Ramachandra Guha, ‘Ecological Conflicts
and the Environmental Movement in India’, in Mahesh Rangarajan (ed)
Environmental Issues in India: A Reader (Pearson 1997) 385, 393–400.
93. Vishaka and Ors v. State of Rajasthan and Ors (1997) 6 SCC 241.
94. Granville Austin, ‘The Supreme Court and the Struggle for Custody
of the Constitution’ in Kirpal et al. (n 80) 1; Pratap Bhanu Mehta, ‘India’s
Judiciary: The Promise of Uncertainty’ in P. Chopra (ed) Supreme Court

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issues, the judges have carefully justified their use of sustainable

development by reinventing the Court’s understanding of gaps in
the law, and by finding sustainable development within existing
Indian laws. The Court achieved this goal by various permutations
of three approaches: first, by establishing its ability to access
international norms;95 then, in subsequent cases, by ‘isolating’96
various principles from existing statutes (or by showing that these
principles have found reflection in the Constitution in some form,
occasionally supplemented with not-strictly-legal sources);97 and,
finally, by precedential mimicry.

Vellore, the Patriarch

Sustainable development was substantively introduced into Indian

environmental jurisprudence in Vellore98, a suit brought against the

Versus The Constitution: A Challenge To Federalism (Sage Publications 2006)

155.
95. Vishaka (n 93); Gramophone Co. of India Ltd v. B. B. Pandey (1984)
2 SCC 534; ADM Jabalpur v. Shiv Kant Shukla (1976) 2 SCC 521. For a
discussion of the Court’s arguments in these cases, Bandopadhyay (n 91).
96. Justice B. N. Kirpal, ‘Developments in India relating to
Environmental Justice’ <http://staging.unep.org/delc/Portals/119/
publications/Speeches/INDIA%20.pdf> accessed 21 March 2017, 5.
97. Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh
(1989) Supp (1) SCC 504, paras 19, 24, where the Court substantiates its
consideration of the environmental consequences of mining in the Doon
valley region by drawing on poets (Kalidas) and Hindu scripture (the
Atharva Veda); T. N. Godavarman Thirumalpad (through K. M. Chinnappa)
v. Union of India and Ors (2002) 10 SCC 606, paras 14, 15, 28 where
the Court references sustainable development from such eclectic sources
such as Albert Einstein, Zarathustra, King Ashoka, and the story of a
conversation between the Indian Chief of Seattle and the Great White
Chief of Washington, when the latter offered to buy the former’s lands.
98. Vellore Citizens’ Welfare Forum v. Union of India and Ors (1996) 5
SCC 647, paras 10–14. Vellore was not, chronologically speaking, the
first Supreme Court decision to employ sustainable development. In

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 132 Saptarishi Bandopadhyay

state of Tamil Nadu in response to reports that tanneries in the

state were discharging effluents into the river Palar, a major source
of drinking water. In response, the Supreme Court used the frame
of sustainable development to conclude that the economic benefits
of the leather industry notwithstanding, economic interests could
not be allowed to ‘destroy the ecology, degrade the environment
and pose as a health-hazard’ to the public at large.99
In Vellore, judges traced sustainable development to the
Stockholm Declaration,100 and upon quoting the Brundtland
Report, concluded that as a ‘balancing concept between ecology
and development’, sustainable development had already been
accepted ‘as a part of the customary international law’.101 The
Court did not enter into a consideration of its reasons for
this finding, but did acknowledge that the ‘salient features’ of
sustainable development were yet to be agreed upon by jurists.102
This is an important disclaimer, because back in the mid-1990s,

the preceding year, the Court had decided State of Himachal Pradesh
v. Ganesh Wood Products (1995) 6 SCC 363 where, in considering the
scope of operations for forest-based industries [like the katha (cathechu
extract) industry in that case], the judges emphasised that industries
did not have unrestricted rights to conduct operations where resources
were scarce. The Court set up this decision by reasoning that sustainable
development mandated an accurate accounting of ‘the forest wealth’
to ensure that industries exploiting forest resources did not disturb the
‘required balance’. The judges confirmed sustainable development as
the dominant paradigm for considering such disputes, and secured their
ability to prioritise between the government’s public interest commitments
and its motivation to pursue a policy marked by privatisation and market
liberalisation (paras 36–42). The judges’ characterisation of the principle,
however, is cursory and largely intended to establish the State’s obligations
in relation to sustainability; in other words, from a legal analysis point
of view, the decision contributes little to the development of sustainable
development jurisprudence.
99. Vellore, ibid., para 9.
100. Ibid., para 10
101. Ibid.
102. Ibid.

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 Sustainable Development and Indian Environmental Jurisprudence 133

sustainable development was not understood as a binding norm.103

The judges in Vellore, perhaps aware of the tenuous nature of
their claims to customary international law, outlined a secondary
justification—the Court effectively reasoned that even if principles
of sustainable development, polluter pays, and precaution were not
yet part of customary international law, when they did eventually
achieve such a status, the Court would most likely be able to employ
them in its decisions.104 Anticipating this trend, the Supreme Court
established these principles as part of its ratio in Vellore, creating a
new standard of environmental jurisprudence in India.105
With respect to the content of sustainable development, in
Vellore, Justice Kuldip Singh set the ground rules for future analysis by
observing, ‘[t]he traditional concept that development and ecology
are opposed to each other is no longer acceptable. “Sustainable
Development” is the answer’ to the problem between development
and ecology.106 Viewed through the sustainable development lens,

103. In fact, because of the open-endedness of sustainable development,

both Hungary and Slovakia used this concept in support of their respective
claims in Gabčíkovo–Nagymaros (n 1), para 140, providing the ICJ with
an opening to ask the parties to negotiate further towards a mutually
satisfactory solution. Following this decision, some environmental law
jurists began to propose that sustainable development may have arisen
to the status of a customary norm, Philippe Sands, ‘International Courts
and the Application of the Concept of “Sustainable Development” (1999)
3 Yearbook of United Nations Law 389; Patricia Birnie and Alan Boyle,
International Law and the Environment (2nd edition, OUP 2002) 95–97.
104. Vellore (n 98), para 15. Soon after, in People’s Union for Civil Liberties
v. Union of India (1997) 1 SCC 301, para 22, the judges wrote: ‘It is almost
an accepted proposition of law that the rules of customary international
law which are not contrary to the municipal law shall be deemed to be
incorporated in the domestic law’.
105. Vellore, ibid.; Ashok H. Desai and S. Muralidhar, ‘Public Interest
Litigation: Potential and Problems’ in Kirpal et al. (n 80) 159, 172–73,
where the authors, in discussing Vellore, write: ‘The Court ... drew on
the concept of sustainable development ... which had become part of
customary international law.’
106. Vellore (n 98), para 10.

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 134 Saptarishi Bandopadhyay

environmental protection and economic development were, as a

matter of policy, no longer perpendicular interests in direct conflict.
Vellore endorsed the Brundtland Commission’s definition of
sustainable development as that ‘[d]evelopment that meets the needs
of the present without compromising the ability of future generations
to meet their own needs’,107 and listed some ‘salient principles’ of
sustainable development ‘culled-out’ from the Brundtland Report,
‘and other international documents’.108 The Court also noted that
the polluter pays principle and the precautionary principle were
‘essential features’109 of sustainable development, and extended
customary-norm status to these principles,110 even though the
meaning, scope and value of these principles as international legal
standards remained contested.111 Finally, the Court underwrote its
analysis by reading constitutional provisions112 and statutes [the
Air Act,113 Water Act,114 and Environmental (Protection) Act115] to
include the polluter pays principle and the precautionary principle
as part of Indian environmental jurisprudence.116 The preamble

107. Ibid.
108. Ibid., para 11.
109. Ibid.
110. By contrast, international tribunals and other dispute-resolution
bodies have historically taken a more cautious approach, Birnie and
Boyle (n 103) 119; ‘New Developments in International Law: Remarks
by Daniel Bodansky’ in Proceedings of the American Society of International
Law: 85th Annual Meeting (American Society of International Law 1991)
413–17; C. D. Stone, ‘Is There a Precautionary Principle’ (2001) 31(7)
Environmental Law Reporter News and Analysis 10790.
111. E. C. Measures (n 56), paras 16, 43, 60; P. Sand, ‘The Precautionary
Principle: A European Perspective’ (2000) 6(3) Human and Ecological Risk
Assessment 448; Birnie and Boyle (n 102) 118–19.
112. The Court in para 13 of Vellore (n 98) references Articles 21, 47,
48A and 51 of the Constitution of India.
113. The Air (Prevention and Control of Pollution) Act 1981.
114. The Water (Prevention and Control of Pollution) Act 1974.
115. The Environment (Protection) Act 1986.
116. Vellore (n 98), para 13, 18–21.

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 Sustainable Development and Indian Environmental Jurisprudence 135

and timing of these environment protection statutes indeed attest

that they were legislated in furtherance of India’s commitments at
Stockholm,117 but the Court’s analysis does little to establish the
import of specific provisions.118
In Vellore, the Court never hinted that there was a dearth of
applicable legislation on the relevant issues. In other words, there
was no perceivable gap along the lines encountered by the Court
with respect to the lack of sexual harassment laws (in Vishaka),
where the Court read international rules into provisions of the Indian
Constitution.119 Instead, in Vellore, the gap was understood as the
inability of the executive and administrative agencies to apply rules
that, in the judges’ mind, already existed. In Ganesh Wood Products,
the Supreme Court placed this balancing narrative in the context
of the quality of governmental decision-making by requiring that
administrative authorities give due importance to existing policies,
and stay particularly mindful of ensuring long-term, sustainable use
of natural resources.120 This trend has continued through the bulk
of environmental disputes with the Supreme Court often justifying
its decisions on the grounds that the executive agency has failed to
implement the relevant legislations.121

117. Sheila Jasanoff, ‘Managing India’s Environment’ (1986) 28(8)

Environment 12; Divan and Rosencranz (n 77) 47, 60, 66.
118. For a detailed analysis of the incorporation process, Bandopadhyay
(n 90) 204–51.
119. Vishaka (n 93), para 7.
120. Ganesh Wood Products (n 98), paras 26 and 36.
121. M. P. Jain, ‘The Supreme Court and Fundamental Rights’ in
Verma (n 79) 1, 35–36; Vimal Bhai & Ors v. Union of India & Ors (2009)
SCC OnLine Del 289, noting the judges’ dissatisfaction with the Ministry
of Environment and Forests for failing to give adequate form and authority
to NEAA. See also Ritwick Dutta, ‘Access to Justice Victory in India’ The
Access Initiative Blog (14 February 2009) <http://www.accessinitiative.
org/blog/access-justice-victory-india> accessed 23 March 2017. For a
more extensive review of this trend in the Supreme Court’s decisions in
environmental cases, see Bandopadhyay (n 91).

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Life-cycle after Vellore

Vellore is the patriarch from which a standardised, sustainable

development–centric jurisprudence of the Supreme Court flows,
via a tightly knit array of precedents. For instance, in Jayal,122 the
Court viewed the construction of a dam as a sign of wholesome
development and defended this position by proclaiming that
‘sustainable development principle is a sine qua non for the
maintenance of the symbiotic balance between the rights to
environment and development’.123 Similarly, in Bombay Dyeing,124
the Court described sustainable development as a fundamental
part of Indian law. In Kenchappa,125 on the other hand, the judges
reviewed a variety of international instruments, related documents
and commentary,126 before turning to their earlier decisions in
Vellore127 and Essar,128 to confirm the legitimacy and meaning of
sustainable development. Research Foundation 2005,129 Intellectuals

122. N. D. Jayal and Anr v. Union of India and Ors (2004) 9 SCC 362.
123. Ibid., para 25.
124. Bombay Dyeing & Mfg Co. Ltd v. Bombay Environment Action Group
& Ors (2006) 3 SCC 434, para 252.
125. Karnataka Industrial Areas Development Board v. Sri. C. Kenchappa
and Ors (2006) 6 SCC 371, paras 49–51; the judges quote from Essar Oil
Ltd v. Halar Utkarsh Samiti & Ors (2004) 2 SCC 392 while pointing out
that the excerpt from Essar is a direct quote from Indian Council for Enviro-
legal Action v. Union of India (1996) 5 SCC 281.
126. Kenchappa, ibid., paras 41–65.
127. Ibid., paras 66.
128. Ibid., paras 48–51.
129. Research Foundation for Science Technology National Resource Policy
v. Union of India and Anr (2005) 10 SCC 510 (Research Foundation 2005),
para 16, where the Court returns to Vellore to explain that the precautionary
principle and polluter pays principle have already been ‘held to have become
part of our law’, and the Court reiterates its own comments from an earlier
order (2003) in this same dispute, and then refers to A. P. Pollution Control
Board v. Prof. M.V. Nayudu (Retd.) and Ors (1999) 2 SCC 718, which once
again affirms Vellore (n 98).

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 Sustainable Development and Indian Environmental Jurisprudence 137

Forum130 and Milk Producers131 (each of which follows Kenchappa),

are all part of a long series of Supreme Court decisions that plainly
accept the meaning and legitimacy of sustainable development as
established in Vellore.132

Multivalent Readings of Sustainable Development

Since the late 1990s, the Supreme Court has often harnessed the
vagueness inherent in sustainable development to arrive at a variety
of conclusions.
At a formal level, in 1995, the Court extended the meaning
of sustainable development, in accordance with Principle 3 of
the Rio Declaration, to acknowledge the relevance of the notion
of intergenerational equity,133 but did not supply specifics as to
how it may be applied to the dispute. The Court would return to
this concept of equity, in Indian Council for Enviro-legal Action,134
where the judges again stressed the importance of sustainable
development, writing:
While economic development should not be allowed to
take place at the cost of ecology or by causing widespread

130. Intellectuals Forum, Tirupathi v. State of Andhra Pradesh and Ors

(2006) 3 SCC 549 which references Essar (n 125), Indian Council for
Enviro-Legal Action (n 125), Nayudu (n 129), M. C. Mehta v. Union of India
(1997) 2 SCC 653, Ganesh Wood Products (n 98), and Narmada (n 86).
131. Milk Producers Association, Orissa and Ors v. State of Orissa and
Ors (2006) 3 SCC 229, para 16, sources M. C. Mehta v. Kamal Nath
(1997) 1 SCC 388 (public trust doctrine), Ganesh Wood Products (n 98)
(intergenerational equity), and Vellore (n 98) (precautionary principle).
132. M. C. Mehta v. Union of India and Ors (1997) 2 SCC 411 (Calcutta
Tanneries case), para 18; Kamal Nath, ibid., para 37; Jayal (n 122), paras
22 and 25; M. C. Mehta v. Union of India (1997) 2 SCC 353 (Taj Trapezium
case), paras 32 and 33; Research Foundation 2005 (n 129), para 16; Nayudu
(n 129), para 31; S. Jagannath v. Union of India (1997) 2 SCC 87, para 49;
Bombay Dyeing (n 83), para 253.
133. Ganesh Wood Products (n 98), paras 42 and 51.
134. Indian Council for Enviro-legal Action (n 125).

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 138 Saptarishi Bandopadhyay

environment destruction and violation; at the same time, the

necessity to preserve ecology and environment should not
hamper economic and other developments. Both development
and environment must go hand in hand, in other words, there
should not be development at the cost of the environment and
vice versa, but there should be development while taking due
care and ensuring the protection of environment.135
Against this background, the Court acknowledged that since future
generations would face the effects of environmental degradation
initiated in the present, environmental statutes must be enforced
keeping future interests in mind.136 The Court’s reasoning here was
in keeping with its earlier decision ordering the closure of tanneries
in Kanpur found to be polluting the Ganges, despite the resulting
unemployment.137 In its Research Foundation 2007 decision,138
on the other hand, the Court felt that sustainable development
demanded that the struggling ship-breaking industry of Alang,
Gujarat, be allowed to operate in order to secure the employment of
over 700 workmen, and roughly 40,000 others directly or indirectly
dependent on this industry139139—even at the risk of exposing
the workforce and the wider community to the polychlorinated
biphenyls (PCBs) and asbestos present within the ship in question,
the Blue Lady.
As a matter of legal interpretation, the Research Foundation 2007
decision has been criticised for employing sustainable development
incorrectly and inconsistently, particularly when read against the
2003 ship-breaking decision that prioritised the precautionary
principle over economic growth.140 For the purposes of following
the development of sustainable development, however, it is also
important to note the Court’s legal interpretation was, as in Ganesh

135. Ibid., para 31.

136. Ibid., para 26.
137. M. C. Mehta v. Union of India and Ors (1987) 4 SCC 463.
138. Research Foundation for Science Technology and Natural Resource
Policy v. Union of India (2007) 15 SCC 193 (Research Foundation 2007).
139. Pelsy (n 87) 137.
140. Ibid., 141, 142, citing Research Foundation 2005 (n 129).

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 Sustainable Development and Indian Environmental Jurisprudence 139

Wood Products,141 designed to elaborate on India’s political economy;

as the Court clarifies:
India after globalisation is an emergent economy along with
Brazil, Russia and China. India has economic growth of above
9%. However, that growth is lopsided. A large section of the
population lives below poverty line. India has the largest
number of youth in the world. Unemployment is endemic ...
... When we apply the principle of sustainable development,
we need to keep in mind the concept of development on one
hand and the concepts like generation of revenue, employment
and public interest on the other hand. This is where the
principle of proportionality comes in ...142
In employing proportionality in Research Foundation 2007, the
Supreme Court invoked its earlier 2002 decision in Godavarman,
where the judges emphasised:
Where the commercial venture or enterprise would bring in
results which are far more useful for the people, difficulty of a
small number of people has to be bypassed. The comparative
hardships have to be balanced and the convenience and
benefit to a larger section of the people has to get primacy
over comparatively lesser hardship.143

141. Ganesh Wood Products (n 98).

142. Research Foundation 2007 (n 138), paras 11 and 12. The Supreme
Court’s language has grown standardised and trickled down to High
Courts across the country: People United for Better Living in Calcutta—
Public and Anr v. State of West Bengal and Ors AIR 1993 Cal 215; National
Highways Authority of India v. The Secretary of Government, Public Works
Department and Ors, WP Nos. 1856–1858/2013, Order dated 6 January
2014, Madras High Court.
143. T. N. Godavarman Thirumulpad v. Union of India and Ors (2002)
10 SCC 606, para 35. Similarly in Goa Foundation and Anr v. Konkan
Railway Corporation AIR 1992 Bom 471, para 6, the Bombay High Court,
in considering the need to clear forests to facilitate a railway project,
explained that ‘no development is possible without some adverse effect
upon the ecology and environment but the projects of public utility cannot
be abandoned and it is necessary to adjust the interest of the people as well
as the necessity to maintain the environment. The balance has to be struck

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 140 Saptarishi Bandopadhyay

And finally, when applying the principle of proportionality in

Research Foundation 2007, the scales were ultimately tipped by the
judges’ faith in technical standards, ‘[a]s stated’, the judges wrote,
‘85% of asbestos is in the form of ACM [asbestos-containing
materials] in panels which is reusable. Therefore, the report
provides State-of-the-Art mechanism which is the key element of
“sustainable development”’.144
In its use of sustainable development, the Supreme Court
speaks in multiple registers: legal, political and techno-scientific.
Legal analysis substantiated through techno-scientific data is most
prominently on display when the Court invokes the precautionary
principle. The techno-scientific register is also, often, the hinge
around which political and socioeconomic interests are resolved.
Judging the validity of one interpretation of the precautionary
principle over another is beyond the scope of this chapter. I
will focus, instead, on the Supreme Court’s development of the
relationship between sustainable development and scientific
assessments, paying particular attention to the way in which this
relationship articulates the epistemology of ecological threats.
The Court has consistently described the precautionary
principle as a significant component of the sustainable development
scheme.145 In Taj Trapezium, involving a dispute as to whether
foundries, chemical industries, and refineries were damaging the
Taj Mahal,146 judges applied the reversed burden of proof (held
in Vellore to be a part of the precautionary principle),147 thereby
requiring the coke/coal industries to show that their operations
were environmentally benign. The Court considered affidavits by
the Gas Authority of India Ltd., Oil and Natural Gas Commission

between the two interests and this exercise must be left to the persons who
are familiar and specialized in the field.’
144. Research Foundation 2007 (n 138), para 13.
145. Vellore (n 98), para 11; M. C. Mehta v. Union of India (2002) 4 SCC
356, para 9 (the CNG case involving the problem of vehicular pollution).
146. Taj Trapezium case (n 132), para 4.
147. Ibid., para 32. See Vellore (n 98), para 11.

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 Sustainable Development and Indian Environmental Jurisprudence 141

and Indian Oil Corporation, and relied heavily on reports by the

National Environmental Engineering Research Institute (NEERI),
and the recommendations of the Vardharajan Committee,
to conclude that it had been proven ‘beyond doubt that the
emissions generated by the use of coke/coal by the industries’ were
responsible for polluting the ambient air.148 The judges stated that
atmospheric pollution near the Taj Mahal must be ‘eliminated
at any cost. Not even one percent chance can be taken when—
human life apart—the preservation of a prestigious monument
like the Taj is involved ...’149 Accordingly, the Court ordered 292
industries (out of the 511 implicated) that were using coke/coal
as fuel source to cease operations, and outlined a procedure for
them to switch technologies (to gas) or be relocated. Ostensibly, the
Court’s decision in favour of environmental protection was tipped
by a mixture of techno-scientific data, expert recommendations
and, ultimately, precautionary regard for a cultural icon.
In 1999, in its assessment of water pollution in Nayudu, the
Supreme Court noted that the precautionary principle has led to
the creation of a reversed burden of proof.150 The judges quoted
Principle 15 of the Rio Declaration, writing that ‘[i]n other
words, the inadequacies of science is [sic] the real basis that has
led to the precautionary principle of 1982’,151 and also outlined
the importance of technical expertise to environmental disputes,
recommending the inclusion of a mixed group of scientists and
jurists to administrative and appellate authorities that hear such
matters. 152
The following year, in its decision in Narmada Bachao Andolan
v. Union of India,153 the Supreme Court was asked to restrain the

148. Ibid., para 33.

149. Ibid.
150. Nayudu (n 129), paras 36–38; Jeet Singh Kanwar and Anr v.
Ministry of Environment and Forests and Ors, Appeal No. 10/2011(T),
judgment dated 16 April 2013, NGT (Principal Bench), para 25.
151. Nayudu (n 129), paras 33–34.
152. Ibid., para 47.
153. Narmada (n 86).

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 142 Saptarishi Bandopadhyay

construction of the Sardar Sarovar dam project on the Narmada

river on the grounds that the project would have an irreversible
adverse impact on the local ecology, and that the project violated
the right to life of the agrarian and indigenous tribes being displaced
by the submergence of their lands.
In its judgment, the Court continues to display a near-absolute
faith in governmental scientific and administrative committees,
finding in the very existence of such authorities proof that
sustainable development is being pursued responsibly. The Court
also aggregates a multitude of human, political issues related to
community displacement—loss of land used for subsistence
farming, and the end of entire cultures and lifestyles—to a battle
between decontextualised statistical data.154 The sway of judicial
rhetoric is so bold that a variety of dissenting reports (by the World
Bank’s Morse Commission) and foreign judicial decisions155 fail to
make a dent in the sustainable development calculus.
However, perhaps given the long trajectory of the dispute, and
the political and economic stakes involved, judges in Narmada
were not content to rest on their enduring trust in official experts,
administrative committees, and government-sponsored scientific
data. Their consideration of scientific evidence was laced with
liberal ideological considerations, and the decision in favour of
the government was justified by drawing legalistic, and not strictly
scientific, distinctions between the contentions of the disputing
parties. In their decision, judges referenced Vellore as saying that
the precautionary principle and the corresponding shift in the
burden of proof may be applicable when the risk of harm can be
identified.156 Further, they summed that sustainable development

154. For a thorough critique of the majority decision in Narmada, see

Visvanathan (n 87); Justice Bharucha’s minority (dissenting) opinion in
Narmada (n 86).
155. Tennessee Valley Authority v. Hiram G. Hill 437 United States 153
(1978); Environmental Defense Fund v. Corps of Engineers of US Army 325
Federal Supplement 749 (1971), cited by counsel for the petitioners.
156. Narmada (n 86), para 122.

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 Sustainable Development and Indian Environmental Jurisprudence 143

itself only comes into play, ‘when the effect of the project is known’
because ‘[s]ustainable development means what type or extent
of development can take place which can be sustained by nature/
ecology with or without mitigation’.157 Specifically, the Court felt
that the threat must emanate from a polluting industry which it
defined narrowly, stating, ‘In the present case we are not concerned
with the polluting industry which is being established. What is
being constructed is a large dam. The dam is neither a nuclear
establishment nor a polluting industry’.158
In other words, for the Court, irreversible adverse environmental
impact only included some formal ‘pollution’ (like nuclear waste)
and not the generic destruction of ecological habitats (for instance,
by submergence), which the Court sums up simply as a ‘change of
environment’.159 By understanding the consequences of all dams
as neutral or apolitical changes, the judges undermine the value
of contrary scientific data, and place their faith in a generalised
Nehruvian modernism,160 writing,
India has an experience of over 40 years in the construction
of dams. The experience does not show that construction

157. Ibid., para 123.

158. Ibid., para 124. The Court has made a similar narrowing move
in Susetha v. State of Tamil Nadu (2006) 6 SCC 543 arguing that the
fundamental duty to protect the natural environment, including water
sources, extended to natural water sources, but not artificial ones.
159. Narmada (n 86), para 124, the judges write: ‘The construction of a
dam undoubtedly would result in the change of environment but it will not
be correct to presume that the construction of a large dam like the Sardar
Sarovar will result in an ecological disaster.’
160. The Court’s characterisation of the history of dams and their
consequences in India is particularly skewed; it not only neglects accounts
of the damage caused by such projects, but also ignores over 40 years of
popular resistance against such projects. See, for example,Walter Fernandes
and Enakshi Ganguly-Thukral (eds) Development and Rehabilitation (Indian
Social Institute 1988); Edward Goldsmith and Nicholas Hildyard, The
Social and Environmental Effects of Large Dams (Wade Bridge Ecological
Centre 1984); Enakshi Ganguly-Thukral (ed) Big Dams, Displaced People
(Sage 1992).

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 144 Saptarishi Bandopadhyay

of a large dam is not cost-effective or leads to ecological or

environmental degradation. On the contrary there has been
ecological upgradation with the construction of large dams.
What is the impact on environment with the construction of
a dam is well known in India and, therefore, the decision in
A.P. Pollution Control Board case will have no application in the
present case.161
The Narmada decision is also interesting for its treatment of
Environmental Impact Assessments (EIAs), which are universally
held as crucial for the pursuit of the broad scheme of sustainable
development.162 In Narmada, the petitioner asked the Court to
note the decision of the US District Court in Sierra Club et v.
Robert F. Froehlke,163 where the Court granted an injunction on dam
construction for failure to comply with disclosure requirements
under the United States National Environmental Policy Act 1969,
despite the fact that a substantial amount of work had already
been completed—a situation that closely mimicked the situation
of the Sardar Sarovar dam on the Narmada river. The Indian
Supreme Court rejected the analogy on two grounds—the first was
technical in that, back in 1987, when the Sardar Sarovar project
received environmental clearance, there was ‘no obligation to
obtain any statutory clearance’, and that clearance ‘was essentially
administrative in nature’.164 The broader justification was:
... There are different facets of environment and if in respect
of a few of them adequate data was not available it does not
mean that the decision taken to grant environmental clearance
was in any way vitiated. The clearance required further studies
to be undertaken and we are satisfied that this has been and
is being done. Care for the environment is an ongoing process
and the system in place would ensure that ameliorative

161. Narmada (n 86), para 124.

162. Rio Declaration (n 14), Principle 17; EP Act; Indian Planning
Commission, Seventh Five Year Plan (1985–90). The importance of the
EIA is universally accepted in judicial decisions in India.
163. 350 b F Supp 1280 (1973).
164. Narmada (n 86), para 126.

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 Sustainable Development and Indian Environmental Jurisprudence 145

steps are taken to counter the adverse effect, if any, on the

environment with the construction of the dam.165
Such a description is of particular concern because environmental
impact assessments are often about ameliorating environmental
damage rather than preventing it, because such assessments are
only performed after economists and policymakers have decided
what investments to make.166 As one review of EIAs in India puts
it, ‘[o]verall, EIA is used presently as a project justification tool
rather than as a project planning tool to contribute to achieving
sustainable development’.167 This conclusion finds support from
the growing criticism of the Ministry of Environment, Forest and
Climate Change (MoEFCC) for approving projects with only a
cursory review of EIAs that have time and again been found to be
grossly inadequate when not blatantly fraudulent.168
The modern-statist progress narrative displayed in the
Narmada decision grows particularly strenuous with respect to
the rehabilitation and resettlement of indigenous populations,
whose role in sustainable development is emphasised by the Rio
Declaration:

165. Ibid., para 127.

166. Brown (n 30) 77.
167. J. K. Panigrahi and S. Amirapu, ‘An Assessment of EIA System in
India’ (2012) 35 Environmental Impact Assessment Review 23.
168. See, for example, Sterlite Industries India Ltd v. Union of India
and Ors (2013) 4 SCC 575, paras 13–19; Neema Pathak Broome et al.,
‘An Analysis of International Law, National Legislation, Judgements,
and Institutions as they Interrelate with Territories and Areas Conserved
by Indigenous Peoples and Local Communities’ (2012) 13 Natural
Justice Report, September <http://naturaljustice.org/wp-content/
uploads/2015/09/Asia-Regional-India.pdf> accessed 2 December 2016,
11; Neeraj Vagholikar, ‘Dams and Environmental Governance in North-
east India’ in India Infrastructure Report (2011) 360; Manju Menon
and Kanchi Kohli, ‘Environmental Decision-Making: Whose Agenda?’
(2007) 42(26) Economic and Political Weekly 2490; for a careful survey of
the environmental compliance and review process, see Shibani Ghosh,
‘Demystifying the Environmental Clearance Process in India’ (2013) 6(3)
NUJS Law Review 433.

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 146 Saptarishi Bandopadhyay

Indigenous people and their communities, and other local

communities, have a vital role in environmental management
and development because of their knowledge and traditional
practices. States should recognize and duly support their
identity, culture and interests and enable their effective
participation in the achievement of sustainable development.169
To the majority in the Narmada decision, however, sustainable
development with respect to indigenous people must be determined
under the terms of the larger project of modernisation involving, first
and foremost, the homogenisation (or mainstreaming) of their way
of life.170 In this sense, Narmada, one of the Supreme Court’s most
powerful decisions involving sustainable development, is not only a
window into the bifurcation between environmental protection and
economic development, but also between the interests of the liberal
administrative state and its internally disenfranchised citizens.

Sustainable Development as Something-familiar

Since Narmada, the Supreme Court and various High Courts have
regularly invoked sustainable development to a variety of ends,
from setting stipulations on bauxite mining in the Niyamgiri Hills
of Odisha,171 iron ore mining in Goa,172 to copper smelting in Tamil
Nadu,173 to name but a few. A review of these decisions indicates that
the Court’s jurisprudence on sustainable development has reached
a plateau of sorts and while judicial orders may greatly alter the
balance of interests in a given dispute, the Court’s interpretations
do little more to develop or clarify the underlying notion. This

169. Rio Declaration (n 14), Principle 22.

170. Narmada (n 86), paras 149, 174.
171. T. N. Godavaraman Thirumulpad v. Union of India and Ors (Vedanta
Alumina Ltd) (2008) 2 SCC 222; in this respect see also the Supreme
Court’s Orders of 8 August 2008 in T. N. Godavarman Thirumulpad v.
Union of India and Ors, WP (C) No. 202/1995.
172. Goa Foundation v. Union of India and Ors (2014) 6 SCC 738.
173. Sterlite (n 168).

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 Sustainable Development and Indian Environmental Jurisprudence 147

is not necessarily a critique of the Supreme Court but rather an

acknowledgement of the limitations of sustainable development
itself. However, these decisions do signal a clear shift away from
the abolitionist attitude of the Supreme Court in the 1980s, when
mining operations across the country were strictly regulated.
In Sterlite, for instance, the Court responded to a variety of
charges against Sterlite Industries and the Tamil Nadu Pollution
Control Board (that the smelting plant was being built within areas
earmarked as ecologically sensitive; that the government had too-
easily agreed to reduce the width of the statutorily mandated ‘green
belt’ surrounding Sterlite’s facilities from 250 metres to 25 metres;
and that Sterlite had misrepresented and suppressed materials facts
before the Court), by making a cursory reference to sustainable
development before settling the matter in favour of Sterlite through
a discussion of classical notions of judicial review, precluding
the Court from second guessing governmental decisions. On the
other hand, when the Court makes more than a casual reference
to sustainable development, for instance in the Vedanta Alumina
Ltd case and Goa Foundation, a currently popular solution is to
allow the disputed activity to proceed, provided a certain portion of
financial profits are contributed towards environmental protection.
The precise variations in the Court’s reasoning are beyond the
scope of this chapter,174 but the visible trend lies in the regular
and rhetorical use of the principle of sustainable development
and subsidiary notions (of precaution and inter/intragenerational
equity), as a matter of course.
In speaking to this normalisation of sustainable development,
we cannot ignore the significance of the National Green Tribunal
(NGT). Established in 2010, the Tribunal reflects the Supreme
Court’s frequent insistence that environmental disputes be heard by
specialised, fast-track tribunals comprised of jurists and scientific
experts.175 Unsurprisingly, the statute establishing this body

174. See Bandopadhyay (n 91).

175. See, for example, Nayudu (n 129); Indian Council for Enviro-legal
Action (n 125); M. C. Mehta v. Union of India (1987) 1 SCC 395.

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 148 Saptarishi Bandopadhyay

explicitly requires that members of the bench apply the principle of

sustainable development in their assessment of disputes.176
By some accounts, NGT decisions in recent years have taken
the wider ecological and social impact of developmental projects
seriously. They have done so by being noticeably attentive to the
technical aspects of proposed projects, particularly in relation to
EIAs (perhaps owing to the presence of technical experts on the
bench).177 In some decisions, the Tribunal has scrutinised EIAs to
assert the need for meaningful public participation, and emphasised
the project proposer’s onus to dispel apprehensions and objections
to development.178 The Tribunal has also been outspoken about the
need for regulators to pay greater attention to the plight of people
likely to be most directly affected by the project.179 This attitude of
inclusiveness shows a welcome awareness of the social and cultural
impact of environmental decision-making. However, such gestures
should be regarded with caution since they can also be found
across the Supreme Court’s extensive invocations of sustainable
development.
For the most part, as with High Court decisions across the
country, the Tribunal’s use of sustainable development closely
mimics the rhetoric of the Supreme Court, usually culminating in a
judicial declaration that a given activity is (or is not) sustainable,180
or even ‘within the permissible limits of sustainable development’.181

176. NGT Act s 20.

177. Nupur Chowdhury, ‘Sustainable Development as Environmental
Justice’ (2016) 51(26–27) Economic and Political Weekly 84, 89.
178. See, for example, M. P. Patil v. Union of India, Appeal No. 12/2012,
judgment dated 13 March 2014, NGT (Principal Bench), paras 68–89.
179. Chowdhury (n 177) 90–91.
180. See, for example, Sudiep Shrivastava v. State of Chhattisgarh
and Ors, Appeal No. 73/2012, judgment dated 24 March 2014, NGT
(Principal Bench), paras 26–28; Sarang Yadwadkar and Ors v. Commissioner
Pune Municipal Corporation, OA No. 2/2013, order dated 11 July 2013,
NGT (Principal Bench).
181. Rana Sengupta v. Union of India and Ors, Appeal No. 54/2012,
judgment dated 22 March 2013, NGT (Principal Bench), para 27.

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 Sustainable Development and Indian Environmental Jurisprudence 149

While it may be still be too early to offer a map of the NGT’s

overall record, it is worth noting that the Tribunal frequently relies
on the Supreme Court’s treatment of sustainability in Narmada
and, like that Court, slips into glorifying the automatic wisdom
of the sustainable development calculus—for instance, in a 2015
decision, while delineating the scope of development on the slopes
of the Ganges in the state of Uttarakhand, the Tribunal observed
that ‘the Principle of Sustainable Development has an inbuilt
element of reasonableness or doctrine of balancing’.182 The problem
here is that while sustainable development does indeed prioritise
balancing as a dispute resolution strategy, the Supreme Court’s
record in performing this feat is evidence that the process itself is in
no way synonymous with a tendency towards reasonableness. Nor
for that matter is reasonableness itself apolitical.

Conclusion

Within treaties and before international dispute resolution

tribunals, sustainable development has led a conflicted life—
steadily gaining power, but still invoked with caution. The Indian
Supreme Court’s rhetoric reveals that it understands this scheme
to be quite open-ended, and often wields the resulting power
expansively and instrumentally. Vagueness has given courts
tremendous leeway, not only in terms of the use of this concept, but
also by progressively lowering lawyers’ and citizens’ expectations
of the standards that courts are required to satisfy in order to
legitimise their proclamations. But vagueness of interpretation is
not a sin unto itself—it plays the important role of keeping the field
of legal argumentation open. The instrumental use of sustainable
development, on the other hand, explains how the Supreme
Court can understand sustainable development as ecocentric one

182. Indian Council for Enviro-legal Action v. National Ganga River

Basin Authority and Ors, OA No. 10/2015 and 200/2014, order dated 10
December 2015, NGT (Principal Bench), para 73.

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 150 Saptarishi Bandopadhyay

moment, and anthropocentric in the next.183 Instrumental power

is attractive and often leads to the courts ignoring how the flexible
narrative of sustainable development shapes power-relations—not
only between litigants, but also between litigants and the court. By
understanding sustainable development, after Brundtland, as purely
about ‘needs’,184 the judiciary has picked and chosen particular
instances when an environmental or infrastructure/developmental
agenda is of greatest, or often, ‘national’ importance. Governmental
expert committees, ‘official’ techno-scientific knowledge, fragments
of mainstream (Hindu) cultural history, the interests of urban
citizens, and a modernist vision of the future serve as handmaidens
to this approach to sustainability that necessarily negates as much
as it affirms.
The Indian Supreme Court and its sustainable development
jurisprudence are, of course, creatures of the time and culture they
function within; how we understand development185 necessarily
refracts what we consider to be ‘sustainable’ development.186
With the best of intentions, the judges in Jayal use Amartya Sen’s
‘Development as Freedom’ as their touchstone. They argue that
‘[t]he right to development cannot be treated as a mere right to
economic betterment or cannot be limited as a misnomer to simple

183. See, for example, Animal Welfare Board of India v. A. Nagaraja and
Ors (2014) 7 SCC 547.
184. For a critique, see Amartya Sen, ‘Why We Should Preserve the
Spotted Owl’ (2004) 26(3) London Review of Books 10.
185. Broome et al. (n 168) 19, write:
The model of ‘development’ that our societies, economies and
polities are governed by mandates maximum use of resources
in minimum time. This is a model where costs and benefits are
weighed only in financial terms, directly contradicting the spirit
and principles of sustainability or nature conservation. The
current model of development believes in absolute preservation
of nature in small islands and maximum extraction for human use
everywhere else.
186. For a statistical disaggregation of Indian Supreme Court decisions
between 1980–2010, see Geetanjoy Sahu, ‘Why the Underdogs Came Out
Ahead’ (2014) 49(4) Economic and Political Weekly 52.

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 Sustainable Development and Indian Environmental Jurisprudence 151

construction activities. The right to development encompasses

much more than economic well-being, and includes within its
definition the guarantee of fundamental human rights’. Immediately
after, however, the Court concludes, ‘[o]f course, construction of a
dam or a mega project is definitely an attempt to achieve the goal
of wholesome development’.187 The history of big dams across the
world and Professor Sen’s own thoughts188 should give us pause.

187. Jayal (n 122), para 24.

188. See, for example, Sen (n 184).

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 four

The Polluter Pays Principle

Scope and Limits of Judicial Decisions

Lovleen Bhullar*

The polluter pays principle forms an integral component of

environmental law jurisprudence at the international, regional,
and domestic levels. The widely accepted formulation of the
principle requires that the polluter, rather than the government or
members of the public, should bear the cost of pollution.1 While
the principle is widely recognised, its content and scope form the
subject matter of considerable debate and discussion. As a result,
different meanings have been attributed to the principle in different
contexts.2 The intended function of the principle in a given context,
whether redistributive, preventive or curative, also influences its

* I would like to thank Dr Sujith Koonan and Shibani Ghosh for their
insights and advice on the finalisation of this chapter.
1. Patricia Birnie, Alan Boyle and Catherine Redgwell, International
Law and the Environment (3rd edition, OUP 2009) 322.
2. Hans Christian Bugge, ‘The Principles of Polluter Pays in Economics
and Law’ in Erling Eide and Roger van der Bergh (eds) Law and Economics
of the Environment (Juridisk Forlag 1996) 53.

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 The Polluter Pays Principle 153

meaning.3 Further, the application of the polluter pays principle

depends upon the identification of the polluter, the circumstances
in which the polluter’s responsibility to pay is triggered and the
recipients of the payment—individuals and/or the government—
and the determination of what is to be paid.
The polluter pays principle has been a part of the domestic
environmental jurisprudence in India for several years. Judicial
decisions have explicitly or implicitly referred to the principle while
discussing the responsibility of an existing or potential polluter,
and the judiciary has adjudicated cases on this basis. Yet neither
its conceptual basis nor its interpretation by the judiciary has been
examined in sufficient detail. This chapter attempts to fill this gap.
The next section briefly describes the development of the
‘polluter pays principle’, as a principle of environmental economics
and as a legal principle. We then examine and analyse the legal
basis for the incorporation of the polluter pays principle into
domestic environmental law by the Supreme Court of India and its
relationship with the absolute liability principle. Next, we focus on
the different issues that arise in the context of operationalising the
principle while implementing the decisions of the Supreme Court,
High Courts, and the National Green Tribunal (NGT). This is
followed by brief concluding remarks.

Polluter Pays Principle: From Economics to Law

The origin of the polluter pays principle can be traced to the

economic theory of externalities.4 The theory is based on the idea
that the production and/or consumption of goods or services may

3. Nicolas de Sadeleer, Environmental Principles: From Political Slogans to

Legal Rules (OUP 2002) 35–37; Hans Christian Bugge, ‘The Polluter Pays
Principle: Dilemmas of Justice in National and International Contexts’ in
Jonas Ebbesson and Phoebe Okowa (eds) Environmental Law and Justice in
Context (CUP 2009) 411.
4. A. C. Pigou, The Economics of Welfare (2nd edition, Macmillan 1924).

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 154 Lovleen Bhullar

result in pollution or environmental harm or damage (‘externalities’)

but often these costs are not reflected in the market price of the
goods or services in question. This distorts price signals and results
in inefficient economic choices. Further, instead of the polluter,
public authorities or members of the public have to bear the (social
and environmental) costs of pollution. The polluter pays principle
is based on the idea of cost allocation and cost internalisation, that
is, the external costs of production and/or consumption of goods
or services should be allocated to the polluter who is responsible
for the pollution rather than to the government or to members
of the public.5 This is expected to increase the cost, and reduce
consumption, of pollution-intensive products.6
The shift of the polluter pays principle from economic theory
to practice initially took place in the context of the introduction
of strict environmental measures on chronic pollution, in member
countries of the Organization for Economic Cooperation and
Development (OECD).7 The OECD first identified the features
of the ‘so-called Polluter-Pays Principle’ in 1972.8 Two years later,

5. Philippe Sands and Jacqueline Peel, Principles of International

Environmental Law (CUP 2012) 228; de Sadeleer (n 3) 21.
6. Charles S. Pearson, ‘Testing the System: GATT + PPP = ?’ (1994)
27(3) Cornell International Law Journal 553, 555.
7. This led to complaints from industries about high costs of compliance
and negative effects on competitiveness and forced governments to either
help them cover costs of compliance or impose similar costs on imports
through tariffs. This led to widespread concern about proliferation of
environmental subsidies and tariffs and severe distortion of competition.
See Candice Stevens, ‘Interpreting the Polluter Pays Principle in the Trade
and Environment Context’ (1994) 27(3) Cornell International Law Journal
577, 580.
8. OECD, ‘Recommendation of the Council on Guiding Principles
Concerning International Economic Aspects of Environmental Policies’
(26 May 1972) OECD Doc C(72)128, reprinted in 11 ILM 1172 (1972)
(1972 OECD Recommendation) Annex, para 4. It states:
The principle to be used for allocating costs of pollution prevention
and control measures to encourage rational use of scarce natural
resources and to avoid distortions in international trade and

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 The Polluter Pays Principle 155

the OECD Council reaffirmed this principle as a ‘fundamental

principle’.9 However, the principle ‘was not intended to eliminate
all forms of pollution’ or ‘to oblige polluters to assume the full
consequences of their acts’.10 The reduction of pollution beyond a
certain level was considered neither practical nor necessary in view
of the costs involved.11 Further, the polluter was not required to
‘pay’ anything to anyone.12 This formulation is described as partial
internalisation of environmental costs by the polluter.13 In this
form, neither prevention or control of pollution, nor the imposition
of liability for pollution was envisaged.
Subsequently, the scope of the principle was extended so
that the operator (potential polluter) bears the cost of ‘reasonable
measures’, which are introduced by the public authority to prevent

investment is the so-called ‘Polluter-Pays Principle’. This principle

means that the polluter should bear the expenses of carrying out
the above-mentioned measures decided by public authorities to
ensure that the environment is in an acceptable state. In other
words, the cost of these measures should be reflected in the cost
of goods and services which cause pollution in production and/
or consumption. Such measures should not be accompanied by
subsidies that would create significant distortions in international
trade and investment.
Commentators credit this Recommendation with the first appearance
of the polluter pays principle in a legal context. See Stevens, ibid., 580;
de Sadeleer (n 3) 26; Jonathan Remy Nash, ‘Too Much Market? Conflict
between Tradable Pollution Allowances and the “Polluter Pays” Principle’
(2000) 24(2) Harvard Environmental Law Review 465, 468.
9. OECD, ‘Recommendation of the Council on the Implementation
of the Polluter-Pays Principle’ (14 November 1974) OECD Doc
C(74)223, reprinted in 14 ILM 234 (1975), para I(1). See also OECD,
‘Recommendation of the Council on the Use of Economic Instruments
in Environmental Policy’ (31 January 1991) OECD Doc. C(90)177/Final
(1991 OECD Recommendation).
10. de Sadeleer (n 3) 27.
11. 1972 OECD Recommendation (n 8), para 3.
12. Stevens (n 7) 579.
13. de Sadeleer (n 3) 27.

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 156 Lovleen Bhullar

and control accidental pollution from hazardous installations.14

OECD also recommended the internalisation of the cost of
damage arising from pollution, thus marking a shift towards full-
cost internalisation.15 This trend is also reflected in the initial
development of the polluter pays principle in the European
Community (later European Union or EU).16
At the international level, one of the earliest references to the
polluter pays principle, albeit implicit, is in the Brundtland Report
of 1987, which suggested that the ‘environmental costs of economic
activity’ can be ‘“internalized”—paid by the enterprise’.17 This
reflects the formulation of the polluter pays principle in the OECD
recommendations. However, the polluter pays principle ‘secured
international support as an environmental policy’18 for the first

14. OECD, ‘Recommendation of the Council Concerning the

Application of the Polluter-Pays Principle to Accidental Pollution’ (7 July
1989) OECD Doc C(89)88/Final, reprinted in 28 ILM 1320 (1989).
15. 1991 OECD Recommendation (n 9).
16. For soft law instruments, see, for example, Council and Governments
of the Member States Declaration, of 22 November 1973, on the programme
of action of the European Communities on the environment (OJ C 112,
20. 12. 1973) 1. For binding legal instruments, see, for example, Single
European Act (OJ L 169, 17. 02. 1986) 1, Article 25; consolidated version
of the Treaty Establishing the European Community (OJ C 325, 24. 11.
2002) 33, 107–08, Article 174(2); Consolidated version of the Treaty on
the Functioning of the European Union, 13 December 2007, 2008/C
115/01, Article 191(2). For ex-ante measures, see, for example, Directive of
the European Parliament and of the Council 2008/98/EC of 19 November
2008 on waste and repealing certain Directives (OJ L 312, 22. 11. 2008) 3.
For ex-post measures to address unavoidable pollution in case of accidents
and other environmental disasters, see, for example, Directive 2004/35/
CE of the European Parliament and of the Council of 21 April 2004 on
environmental liability with regard to the prevention and remedying of
environmental damage, OJ L 143/56, 357.
17. World Commission on Environment and Development, Report of
the World Commission on Environment and Development: Our Common Future
(OUP 1987), Chapter 8, para 53.
18. Birnie, Boyle and Redgwell (n 1) 322.

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 The Polluter Pays Principle 157

time during the United Nations Conference on Environment and

Development (UNCED) held in 1992.19 Principle 16 of the Rio
Declaration, which has been described as the most important and
far-reaching international statement of the fundamental principles
of environmental law,20 reads as follows: ‘National authorities
should endeavor to promote the internalization of environmental
costs and the use of economic instruments, taking into account
the approach that the polluter should, in principle, bear the cost
of pollution, with due regard to the public interest and without
distorting international trade and investment’.21
This formulation of the polluter pays principle is neither
absolute, nor does it impose legally binding obligations on national
authorities.22 The principle is expressed in qualified and aspirational
terms (‘should endeavour’, ‘in principle’); it lacks the normative
character of a rule of law.23 However, it does state that the polluter

19. UN Conference on Environment and Development (UNCED),

‘Rio Declaration on Environment and Development’ (14 June 1992)
UN Doc A/CONF. 151/26 (Vol I) Resolution 1, Annex I, reprinted in 31
ILM 874 (1992) (Rio Declaration). For a commentary on the negotiating
history of the Rio Declaration, see Chee Yoke Ling, The Rio Declaration on
Environment and Development: An Assessment (Third World Network 2012)
50.
20. Nash (n 8) 471.
21. See also Priscilla Schwartz, ‘Principle 16’ in Jorge E Viñuales (ed)
The Rio Declaration on Environment and Development: A Commentary (OUP
2015) 429.
22. de Sadeleer (n 3) 43. See also Alan Boyle and David Freestone
(eds) International Law and Sustainable Development (OUP 1999) 4.
23. See Vaughan Lowe, ‘Sustainable Development and Unsustainable
Arguments’ in Boyle and Freestone (n 22) 19. See also North Sea
Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands) (Judgment) [1969] ICJ Rep 3, para 72.
Cf Case concerning the Auditing of Accounts between The Kingdom of The
Netherlands and the French Republic pursuant to the Additional Protocol of
25 September 1991 to the Convention on the Protection of the Rhine against
Pollution by Chlorides of 3 December 1976, Arbitral Award of 12 March 2004,
Permanent Court of Arbitration, para 103.

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 158 Lovleen Bhullar

should bear the ‘cost of pollution’, which has been interpreted to

reflect a shift towards full internationalisation of environmental
costs.24
Thus, the polluter pays principle has been interpreted to include
an obligation to pay for the prevention and control of pollution,
and liability in respect of damages.25 It incorporates measures for
the prevention of further pollution and the reduction and control
of past and existing pollution, as well as imposition of liability for
damages resulting from past pollution.

Development of the Polluter Pays Principle in India

The Supreme Court of India has expressly invoked the polluter pays
principle by relying on the understanding of the principle in other
jurisdictions and/or in international environmental law, which has
been discussed in the previous section. However, the first point of
entry of the principle into domestic environmental jurisprudence
has not received much attention. This section first examines two
decisions of the Supreme Court that serve as the starting point to
understand the source of the polluter pays principle. While applying
the polluter pays principle, in addition to issuing directions to
the polluter to undertake measures for prevention and control of
pollution, the judiciary has grappled with the issue of liability for
pollution and payment of damages or compensation—to injured
persons and/or for restoration of the damaged environment.
Therefore, the second part of this section reviews the invocation of
the absolute liability principle by the judiciary.

24. de Sadeleer (n 3) 43.

25. See Sanford E. Gaines, ‘The Polluter-Pays Principle: From
Economic Equity to Environmental Ethos’ (1991) 26 Texas International
Law Journal 463, 482–83 [in the context of the OECD]. The principle of
prevention has been described as a ‘prudent complement to the polluter
pays principle’. See de Sadeleer (n 3) 61.

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 The Polluter Pays Principle 159

Locating the Source of the Polluter Pays Principle

The polluter pays principle was explicitly relied on for the first time
in domestic environmental law by the Supreme Court in Indian
Council for Enviro-legal Action v. Union of India and Ors.26 The case
concerned the adverse environmental and health impacts of water
and soil pollution in Bichhri village and surrounding villages in the
Udaipur district in the state of Rajasthan, as a result of the dumping
of untreated wastewater and highly toxic sludge, particularly iron-
based and gypsum-based, resulting from the past production of H
acid by chemical industries.
Relying on an Article published in an academic journal,
which discussed the development of the polluter pays principle in
the OECD and the European Community,27 the Court observed
that the principle ‘has now come to be accepted universally as a
sound principle’,28 and it has gained almost universal recognition.29
In other words, the Court appears to have incorporated the
polluter pays principle into domestic law as a general principle
of law prevalent in other systems,30 rather than as a principle of

26. (1996) 3 SCC 212 (Bichhri).

27. Carolyn Shelbourn, ‘Historic Pollution: Does the Polluter Pay?’
(1994) Journal of Planning and Environmental Law 703. The judgment
of the Court quotes certain passages of the article. See Bichhri (n 26),
para 67. Some portions of this excerpt from the Article have been
subsequently attributed to the Court itself. See, for example, Karnataka
Industrial Areas Development Board v. C. Kenchappa (2006) 6 SCC 371,
para 81. In this judgment, the Court also attributed the observations of the
Court on the polluter pays principle in Bichhri to the author of the journal
article, para 80. See also Shubhankar Dam and Vivek Tewary, ‘Polluting
Environment, Polluting Constitution: Is A “Polluted” Constitution Worse
than a Polluted Environment?’ (2005) 17(3) Journal of Environmental Law
383, 387.
28. Bichhri (n 26), para 67.
29. Ibid., para 69(V).
30. Michael R. Anderson, ‘International Environmental Law in Indian
Courts’ (1998) 7(1) Review of European Community and International
Environmental Law 21, 26. See also Daniel Bodansky and Jutta Brunnée,

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 160 Lovleen Bhullar

international environmental law. It has also been observed that the

polluter pays principle, as stated in Bichhri, ‘is much closer to the
ordinary, common-sense meaning of the term “polluter pays”’.31
The Supreme Court explicitly invoked the polluter pays
principle for the second time in Vellore Citizens’ Welfare Forum v.
Union of India and Ors.32 The case concerned pollution caused by
the discharge of untreated effluent by tanneries and other industries
in the state of Tamil Nadu into river Palar and on land, which
contaminated surface water and groundwater, the main sources of
water supply to the residents of the area. Two observations can be
made in respect of the Court’s reliance on two different sources of
the polluter pays principle: domestic law (the Constitution of India
and environmental statutes) and international law (custom).
First, unlike in Bichhri,33 the Court relied on the constitutional
mandate to protect and improve the environment to hold that the
polluter pays principle is part of domestic environmental law.34
This is in line with the Court’s history of broad interpretation of
constitutional provisions. Insofar as environmental statutes are

‘The Role of National Courts in the Field of International Environmental

Law’ (1998) 7(1) Review of European Community and International
Environmental Law 11, 16.
31. D. Shanmuganathan and L. M. Warren, ‘Status of Sustainable
Development as a Principle of National and International Law: The Indian
Approach’ (1997) 9(2) Journal of Environmental Law 387, 399.
32. (1996) 5 SCC 647.
33. In Bichhri, the Court referred to Article 48A and Article 51A(g)
of the Constitution as well as to environmental statutes, but there was no
attempt to read the polluter pays principle into them. See Bichhri (n 26),
paras 49–53.
34. Vellore (n 32), para 13. This finding of the Court was reiterated
in Kenchappa (n 27), para 82; Research Foundation for Science Technology
Natural Resource Policy v. Union of India and Anr (2005) 10 SCC 510
(Research Foundation I), para 16; Tirupur Dyeing Factory Owners’
Association v. Noyyal River Ayacutdars Protection Association (2009) 9 SCC
737, para 23. See also Hindustan Coca-Cola Beverages Pvt. Ltd v.West Bengal
Pollution Control Board and Ors, Appeal No. 10/2011, judgment dated 19
March 2012, NGT (Principal Bench).

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 The Polluter Pays Principle 161

concerned, there is no direct reference to the polluter pays principle

in the Water (Prevention and Control of Pollution) Act 1974 (Water
Act) and the Environment (Protection) Act 1986 (EP Act), which
were enacted by Parliament in order to implement the decisions
of the United Nations Conference on the Human Environment of
1972 (where the polluter pays principle was not mentioned) and in
response to the Bhopal gas tragedy of 1984, respectively. However,
in Vellore, ‘in view of’ the statutory provisions, that is the Water Act,
EP Act and the Air (Prevention and Control of Pollution) Act 1981
(Air Act), the Court had ‘no hesitation in holding’ that the polluter
pays principle is ‘part of the environmental law of the country’.35
On the one hand, this approach of the Court raises some
concerns.36 For example, the penalty provisions of domestic
environmental statutes do not support the implementation of the
polluter pays principle in its broad sense because they prescribe
payment of fines and imprisonment rather than compensation for
restitution of the damaged environment.37 Further, the statutory
limitation on the amount of fine may not reflect the nature and
extent of pollution and damage to the environment. On the other
hand, the Court’s reading of the polluter pays principle into the
provisions of these statutes may be justified on the ground that the
statutes prescribe standards for prevention and control of pollution,
and the polluter is required to bear the cost of compliance with the
statutes. In this respect, domestic environmental laws partly mirror

35. Vellore (n 32), paras 13 and 14.

36. Shanmuganathan and Warren (n 31) 399 [‘not entirely convincing’];
Dam and Tewary (n 27) 391 [‘The judiciary’s use of law to import legal
principles into our environmental jurisprudence (read environmental
statutes) without any precedent does not augur well for the stated objective
of legal stability.’]. See also Saptarishi Bandopadhyay, ‘Because the Cart
Situates the Horse: Unrecognized Movements Underlying the Indian
Supreme Court’s Internalization of International Environmental Law’
(2010) 50(2) Indian Journal of International Law 204, 226 and 230.
37. See EP Act, s 15; Water Act ss 41–45A; Air Act ss 37–39.

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 162 Lovleen Bhullar

the polluter pays principle in its narrow sense, as envisaged in the

early OECD recommendations.38
Second, the Court considered the international law dimension of
the polluter pays principle. It held that sustainable development ‘has
been accepted as a part of the customary international law though
its salient features have yet to be finalized by the international law
jurists’.39 The Court then identified the polluter pays principle as
one of the ‘salient principles’ and ‘essential features’ of sustainable
development. Some commentators have taken these observations of
the Court to mean that it considered the polluter pays principle to
be part of customary international law.40 But the next observation
of the Court is significant. It observed:
Even otherwise once these principles are accepted as part of
the Customary International Law there would be no difficulty
in accepting them as part of the domestic law. It is almost
an accepted proposition of law that the rules of Customary
International Law which are not contrary to the municipal law
shall be deemed to have been incorporated in the domestic
law and shall be followed by the courts of law ...41

38. See 1972 OECD Recommendation (n 8).

39. Vellore (n 32), para 10. According to Article 38(1) of the Statute of
the International Court of Justice, ‘international custom’ should constitute
‘evidence of a general practice accepted as law’. The creation of customary
international law must be supported by evidence of the fulfillment of
any of the characteristic authorities, such as instances of State practice,
decisions by international tribunals, treaties or other forms of opinio
juris, commentary, etc. For an exposition of the classic understanding
of customary international law, see Ian Brownlie, Principles of Public
International Law (5th edition, Clarendon Press 1998) 4–11; Malcolm N.
Shaw, International Law (6th edition, CUP 2008) 72–92.
40. See Anderson (n 30) 25. According to Bodansky and Brunnée, in
Vellore, the Court considered the polluter pays principle to be customary
international law, although it is still soft law, and incorporated it into
domestic environmental law. See Bodansky and Brunnée (n 30) 15–16.
41. Vellore (n 32), para 15. In support of the ‘accepted proposition of
law’, the Court referred to some of its previous decisions.

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The use of the phrases ‘once these principles are accepted’ and
‘there would be no difficulty’ suggest that the Court did not hold
that the polluter pays principle was by then a part of customary
international law and, therefore, it could incorporate it in domestic
law. Instead, it envisaged its incorporation in domestic law in the
future—once the principle is accepted as customary international
law. It is pertinent to mention that the polluter pays principle
has still not achieved the status of a generally applicable rule of
customary international law.42
In Vellore, the Court also observed that the polluter pays
principle has been held to be a ‘sound principle’ in Bichhri.43
However, in Bichhri, the Court had actually stated that the polluter
pays principle has ‘now come to be accepted universally as a sound
principle’ based on a journal article, which refers to the adoption of
the principle by the OECD and its incorporation by the European
Community (two regional systems).44 Further, in Vellore, although
the Court referred to the conventions and non-binding documents
signed during UNCED in 1992, it did not refer to any of its outputs,
including Principle 16 of the Rio Declaration (which explicitly
relates to the polluter pays principle) or the relevant provisions of
Agenda 21.
Nevertheless, both of these decisions have been relied upon
in a number of subsequent decisions.45 In Research Foundation II,

42. Birnie, Boyle and Redgwell (n 1) 38.

43. Vellore (n 32), para 12. But in Kenchappa (n 27) the Court observed
that the polluter pays principle was held to be a sound principle in Vellore,
ibid., para 82.
44. Bichhri (n 26), para 67.
45. See M. C. Mehta v. Union of India (1997) 3 SCC 715 (Badkhal and
Surajkund Lakes case), para 8; S. Jagannath v. Union of India (1997) 2 SCC
87, para 49; M. C. Mehta v. Union of India (1997) 2 SCC 411 (Calcutta
Tanneries case), para 18; M. C. Mehta v. Union of India (1997) 2 SCC
353 (Taj Trapezium case), para 32; M. C. Mehta v. Kamal Nath (1997) 1
SCC 388 (Kamal Nath I), para 37; Tirupur (n 34), para 23; Bittu Sehgal
and Anr v. Union of India and Ors (2001) 9 SCC 181, para 15; Research
Foundation I (n 34), para 16; Research Foundation for Science Technology

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the Court specifically relied on Principle 16 of the Rio Declaration

for support but ‘[a]part from polluter pays principle’,46 which is
discussed separately. This appears to suggest that according to the
Court, there is a distinction between the polluter pays principle
and Principle 16 of the Rio Declaration, but there is no substantive
discussion of this observation in the decision. In Kenchappa, the
Court referred to the Rio Declaration generally, without explicitly
mentioning Principle 16 of the Rio Declaration, and it traced the
foundation of the polluter pays principle to its previous judgments
in Bichhri and Vellore.47 Broadly, therefore, the polluter pays principle
has been incorporated into domestic environmental jurisprudence.

Application of the Absolute Liability Principle

In the context of environmental pollution, liability rules can perform

a curative or preventive function.The curative function is performed
when the polluter is held responsible for environmental damage and
for payment of compensation to victims.48 Liability rules perform
a preventive function when the probability of damages incentivises
measures to reduce or preempt environmental damage.49
The nature of liability may be fault-based or no-fault liability. In
the case of fault-based liability, harm results from non-compliance
with regulatory requirements, or the breach of a general duty of
care (also known as negligence). However, the affected party is
required to prove the fault of the polluter, which is a heavy burden
to discharge. Further, the polluter is not liable to pay damages for

Natural Resource Policy v. Union of India and Anr (2005) 13 SCC 186
(Research Foundation II), paras 26, 33, 34 and 35.
46. Research Foundation II, ibid., para 30.
47. Kenchappa (n 27), paras 80–82 and 99.
48. de Sadeleer (n 3) 37.
49. Kathleen Segerson, ‘Liability for Environmental Damages’ in
Henk Folmer and Gabel H. Landis (eds) Principles of Environmental and
Resource Economics: A Guide for Students and Decision-makers (Edward Elgar
Publishing 2000) 420, 421.

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environmental harm, which is neither reasonably foreseeable nor

avoidable.50 In contrast, no-fault or strict liability is based on the
rule laid down in Rylands v. Fletcher.51 There is no requirement to
prove the polluter’s fault. However, the application of the rule is
subject to a number of exceptions.52 Further, the liability may be
limited in amount and the definition of damage tends to be narrow.
In India, the polluter was held liable for the damage resulting
from its activities, for instance, as a remedy in tort law, much
before the express incorporation of the polluter pays principle
into domestic environmental jurisprudence.53 Pollution also falls
under public nuisance, which is broadly defined as an unreasonable
interference with a general right of the public and, therefore, the
provisions relating to public nuisance in civil and criminal laws are
also relevant.54
The absolute liability principle was developed by a Constitution
bench of the Supreme Court in M. C. Mehta and Anr v. Union of
India and Ors (the Oleum Gas Leak case), a case concerning leakage
of oleum gas from a unit of Shriram Foods and Fertiliser Industries

50. de Sadeleer (n 3) 50. See also Lucas Bergkamp, Liability and

Environment (Kluwer Law International 2001).
51. (1868) LR 3 HL 330. Blackburn J. enunciated the principle thus:
We think that the true rule of the law is, that the person who, for
his own purposes, brings on his lands and collects and keeps there
anything likely to do mischief if it escapes, must keep it at his
peril, and if he does not do so, is prima facie answerable for all the
damages which is the natural consequence of its escape.
52. The exceptions are an act of God, an act of a third party, plaintiff’s
own fault, plaintiff’s consent, natural use of land and exclusion of rule by
statute or statutory authority.
53. See J. C. Galstaun v. Dunia Lal Seal (1905) 9 CWN 612; Dr Ram
Baj Singh v. Babulal (1981) SCC OnLine All 556; M/s Mukesh Textile Mills
(P) Ltd v. HR Subramanya Sastry (1986) SCC Online Kar 211.
54. A public nuisance is a criminal offence under Section 268 of the
Indian Penal Code 1860 and Sections 133–144 of the Code of Criminal
Procedure 1973. Civil remedies (in the form of a declaration, or injunction,
or both) are available under Section 91 of the Code of Civil Procedure
1908.

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on 4 and 6 December 1985 (almost a year after the Bhopal gas

tragedy), which affected several persons and killed one person.55
The Court held:
... where an enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone on account of
an accident in the operation of such hazardous or inherently
dangerous activity resulting, for example, in the escape of
toxic gas the enterprise is strictly and absolutely liable to
compensate all those who are affected by the accident and
such liability is not subject to any of the exceptions which
operate vis-à-vis the tortious principle of strict liability under
the rule in Rylands v. Fletcher.56
The Court further observed:
... the measure of compensation ... must be correlated to
the magnitude and capacity of the enterprise because such
compensation must have a deterrent effect. The larger and
more prosperous the enterprise, the greater must be the
amount of compensation payable by it for the harm caused on
account of an accident in the carrying on of the hazardous or
inherently dangerous activity by the enterprise.57
It is pertinent to mention that following the Bhopal gas tragedy
of 2/3 December 1984, questions were raised about the extent
of liability of corporations in the event that any injurious liquid
or gas escapes, on account of negligence or otherwise, and the
remedies to secure payment of damages to the affected persons.
The absolute liability principle was applied by the High Court of
Madhya Pradesh to support the award of interim compensation
to the victims of the Bhopal gas tragedy. However, the judgment
was never implemented because of the final settlement between
the parties.58 In a case challenging the validity of the Bhopal Gas
Leak Disaster (Processing of Claims) Act 1985 before the Supreme

55. (1987) 1 SCC 395.

56. Ibid., para 31.
57. Ibid., para 32.
58. See Union Carbide Corporation v. Union of India (1988) SCC OnLine
MP 41.

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Court, the Court refused to apply the principle because of the

perceived difficulty in the acceptance of this yardstick—domestically
and internationally.59 However, Justice K. N. Singh, in his separate
judgment, assumed that Union Carbide Corporation had accepted
its liability while entering into the settlement.60 Subsequently, in
Union Carbide Corporation and Ors v. Union of India and Ors, the
petitioners requested the Court to apply the principle of absolute
liability instead of the principle of strict liability in cases relating to
the Bhopal gas tragedy.61 But, the Court held the law declared in
the Oleum Gas Leak case to be obiter.62
Later, the judiciary explored the relationship between the
polluter pays principle and the absolute liability principle. In
Bichhri, for instance, after opining that ‘any principle evolved in
this behalf [i.e. to determine the liability of the polluters] should
be simple, practical and suited to the conditions obtaining in this
country’,63 the Court relied on the absolute liability principle as
laid down in the Oleum Gas Leak case.64 The Court held that the
polluting industries are:
absolutely liable to compensate for the harm caused by
them to the villagers in the affected area, to the soil and to

59. See Charan Lal Sahu and Ors v. Union of India and Ors (1990) 1
SCC 613, para 122 (Chief Justice Mukharji for himself and Saikia J.) and
para 156 (concurring opinion of Ranganathan J. for himself and Ahmadi J.)
60. Ibid., para 135.
61. (1991) 4 SCC 584, para 201 [‘The petitioners had urged that the
principles of the liability and the standards of assessment of damages in a
toxic mass tort arising out of a hazardous enterprise should be not only on
the basis of absolute liability—nor merely on Rylands v. Fletcher principle
of strict liability—not admitting of any exceptions but also that the size
of the award be proportional to the economic superiority of the offender,
containing a deterrent and punitive element.’].
62. Ibid., paras 14–15 (concurring opinion of Chief Justice Ranganath
Misra).
63. Bichhri (n 26), para 65.
64. Ibid., paras 59–60.The Court disagreed with the concurring opinion
of Chief Justice Ranganath Misra in Charan Lal Sahu (n 59), paras 14–15.

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the underground water and hence, they are bound to take all
necessary measures to remove the sludge and other pollutants
lying in the affected area ... and also to defray the cost of
the remedial measures required to restore the soil and the
underground water sources.65
The Court concluded that the polluter pays principle is stated in
‘absolute’ terms in the Oleum Gas Leak case.66 This suggests that
the Court recognised the distinction between the absolute liability
principle or ‘no-fault’ liability, which applies to inherently dangerous
or hazardous activities, and the polluter pays principle, which
applies more broadly to different cases of pollution.67 However, in
Vellore, after referring to its previous opinion expressed in Bichhri
that ‘any principle evolved in this behalf should be simple, practical
and suited to the conditions obtaining in this country’,68 the Court
went on to hold:
... The ‘Polluter Pays’ principle as interpreted by this Court
means that the absolute liability for harm to the environment
extends not only to compensate the victims of pollution but
also the cost of restoring the environmental degradation.
Remediation of the damaged environment is part of the

65. Bichhri (n 26), para 66. However, the implementation of the

decision left a lot to be desired. In this context, in Indian Council for Enviro-
legal Action v. Union of India and Ors (2011) 8 SCC 161, para 4, the Court
observed:
...This case is a classic illustration where even after a decade-and-
a-half of the pronouncement of the judgment by this Court based
on the principle of ‘polluter pays’, till date the polluters (industries
concerned in this case) have taken no steps to ecologically restore
the entire village and its surrounding areas or complied with the
directions of this Court at all. The orders of this Court were not
implemented by keeping the litigation alive by filing interlocutory
and interim applications even after dismissal of the writ petition,
the review petition and the curative petition by this Court.
66. Bichhri (n 26), para 69(V). See also Anderson (n 30) 27.
67. Shyam Divan and Armin Rosencranz, Environmental Law and Policy
in India (2nd edition, OUP 2002) 590.
68. Vellore (n 32), para 12 referring to Bichhri (n 26), para 65.

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process of ‘Sustainable Development’ and as such polluter is

liable to pay the cost to the individual sufferers as well as the
cost of reversing the damaged ecology.69
Vellore appears to have blurred the distinction between different
types of polluting activities and endorsed the application of the
absolute liability principle as an integral component of the polluter
pays principle, so long as the polluting activity results in harm
or damage.70 The understanding of the polluter pays principle in
Vellore, which extends to the cost of remediation of environmental
damage, also goes beyond the formulation in international
environmental law, which generally limits the polluter’s liability.71
A number of subsequent decisions have applied the principle of
absolute liability to make the polluter pay for pollution, without
determining whether or not the polluting substance or industry is
inherently dangerous or hazardous in nature. However, in Research
Foundation II, a case concerning hazardous waste oil, after observing
that ‘in India the liability to pay compensation to affected persons is
strict and absolute’,72 the Court did not apply the absolute liability
principle. Therefore, it is possible that the Court did not intend to
apply the absolute liability principle to all polluting activities.

Operationalising the Polluter Pays Principle

In order to operationalise the polluter pays principle, it is essential

to identify the polluter, the situations in which the principle will
be triggered, the authority that will be responsible for undertaking
the assessment of environmental harm and determination of

69. Ibid., para 12.

70. See also The All India Skin and Hide Tanners and Merchants Association
v. The Loss of Ecology (Prevention and Payment of Compensation) Authority
and Ors (2010) SCC OnLine Mad 1179, para 9; Anderson (n 30) 27;
Divan and Rosencranz (n 67) 590.
71. See Patricia Birnie and Alan Boyle, International Law and the
Environment (2nd edition, OUP 1992) 109. See also Anderson (n 30) 27.
72. Research Foundation II (n 45), para 31.

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damages payable by the polluter and the extent of, or the manner
in which, damages will be paid by the polluter, etc. This section
addresses each of these requirements based on an examination of
selected decisions of the Supreme Court, as well as the more recent
directives of the NGT.

Who is the Polluter?

The polluter is normally understood as the person or entity

responsible for the polluting activity. Even in India, the Court
has defined the polluter as the producer of goods.73 However, in
a significant departure from the practice in other jurisdictions
as well as international environmental law, the courts in India,
especially the NGT, have played an important role in expanding
the traditional definition of the polluter to include other persons/
entities within its scope. For example, in a case concerning disposal
of debris and construction waste on the banks of the river Yamuna,
the polluter included the contractor and the truck owner who were
responsible for dumping, as well as the person whose property
created the waste.74
In some cases, the NGT has held government departments and
officials directly responsible for pollution. This includes municipal
authorities whose inaction led to environmental degradation and/
or pollution within the definition of polluter. In Invertis University
and Ors v. Union of India and Ors, for example, the municipal body
was directed to pay compensation for restitution of the solid waste
site to its original condition, and to prevent further damage to

73. Ibid., para 29.

74. Manoj Misra v. Union of India and Ors, OA No. 6/2012, order dated
22 July 2013, NGT (Principal Bench). See also M/s Jaiprakash Power Ltd v.
State of Himachal Pradesh and Ors, CWP No. 843/2011, order dated 29 July
2013, NGT (Principal Bench); Abhishek Rai v. State of Himachal Pradesh
and Ors, Application No. 256/2013 in CWPIL No. 28/2011, order dated
17 September 2013, NGT (Circuit Bench at Shimla).

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the environment.75 In Dr Karan Singh v. State of Himachal Pradesh

and Ors,76 a case concerning open burning of municipal wastes, a
compensatory cost was imposed on the Municipal Council, which
was subsequently recoverable from all the concerned officers and
the contractor. In Rohit Choudhary v. Union of India and Ors, the
Ministry of Environment and Forests (MoEF), Government of
India and the Government of Assam were considered as polluters
for permitting unregulated quarrying and mining activities in and
around the area of Kaziranga National Park.77 In M/s Cox India Ltd
v. M. P. Pollution Control Board and Anr, the regional officer of the
State Pollution Control Board (SPCB) was treated as a polluter
because of his failure to furnish correct information about the
condition of the distillery unit for rectified spirit, which prevented
the NGT from taking appropriate action to prevent pollution.78 In
the Art of Living case, the NGT imposed fines on the regulatory
authorities for dereliction of their statutory duty in allowing an
event on the Yamuna floodplains that resulted in environmental
damage.79
The public has also been considered as the polluter in some
cases. In Gaurav Jain v. State of Punjab and Ors,80 for example, the
NGT ‘indicated’ that the authorities will be at liberty to ask for
payment of money from the entire population generating municipal

75. Application No. 185/2013, order dated 24 October 2013, NGT

(Principal Bench), para 45(iv).
76. CWP No. 6114/2012, order dated 30 July 2013, NGT (Circuit
Bench at Shimla).
77. Application No. 38/2011, judgment dated 7 September 2012, NGT
(Principal Bench), para 35.
78. Application No. 10/2013, judgment dated 9 May 2013, NGT
(Central Zone Bench), para 27. See also Abhishek Rai (n 74).
79. Manoj Misra v. Delhi Development Authority and Ors, OA No. 65/2016,
order dated 9 March 2016, NGT (Principal Bench) (Art of Living case).
The Delhi Development Authority was directed to pay Rs 5 lakhs while the
Delhi Pollution Control Committee was directed to pay Rs 1 lakh.
80. OA No. 106/2013, order dated 3 September 2013, NGT (Principal
Bench).

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solid waste, in order to generate funds for effective execution of

municipal solid waste disposal works. In Subhas Datta v. Union
of India and Ors,81 a committee was set up to inter alia determine
whether it would be appropriate for the authorities to collect fee
for environmental pollution caused by the residents of, and visitors
to, Puri.
Courts have applied the polluter pays principle regardless of
the socioeconomic background of the polluters. Another way of
interpreting this is that courts have followed their pre-conceived
notion of who is polluting more or less. In Wazirpur Bartan Nirmata
Sangh v. Union of India and Ors,82 for example, the pollution and
ecological problems resulting from the unhygienic conditions
created by the ‘encroachers’ or squatters on public land was the
reason for directing their displacement. Similarly, the order of the
NGT in Saloni Singh and Anr v. Union of India and Ors, which
requires any person found defecating on the railway track or on
the railway properties to pay Rs 5,000 per offence in accordance
with the polluter pays principle,83 identifies the poor people, who
engage in the practice of open defecation on the railway tracks, as
polluters.
In some cases, the government pays instead of the polluter
where the polluter fails to pay or is unable to pay and it is necessary
to compensate the victims immediately.84 The government can
subsequently recover the amount from the polluter.85 Such
substitution may be necessary in some cases, to ensure timely
payment of compensation to victims and/or environmental
restoration. In Indian Council for Enviro-legal Action, for example, the

81. OA No. 110/2013, order dated 22 October 2013, NGT (Principal

Bench).
82. (2002) SCC Online Del 1335.
83. OA No. 141/2014, order dated 18 December 2014, NGT (Principal
Bench).
84. Barbara Luppi, Francesco Parisi and Shruti Rajagopalan, ‘The Rise
and Fall of the Polluter-pays Principle in Developing Countries’ (2012) 32
International Review of Law and Economics 135, 136.
85. See also Water Act s 33(4); Air Act s 22A(4).

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Supreme Court directed the state government to pay the portion

of the total amount of compensatory damages that the polluting
industries were directed to pay to the villagers for loss suffered as a
result of damage to crops.86 In another case, the Supreme Court had
imposed a liability on the polluters (importers of hazardous waste
oil in the garb of lubricating oil) towards the cost of incineration.87
However, on account of non-payment of this cost by the polluters,
the Court ordered the customs department to pay the cost and
recover it from the importers later.88
Environmental harm or damage is not confined to polluting
activities; the unbridled consumption of natural resources is also
a problem.89 This includes mining activities, use of biological
resources, etc. In such situations, the polluter pays principle may
be renamed as the ‘user pays principle’. Courts in India have
accommodated this variation of the polluter pays principle. In
Nature Lovers Movement v. State of Kerala and Ors,90 for example,
the Kerala High Court applied the polluter pays principle and
directed the state government to determine the quantum of injury
and compensation payable by occupants/encroachers in respect of
forest lands sought to be regularised.

Triggering the Polluter Pays Principle

Generally, the application of the polluter pays principle is contingent

upon a polluting activity (or emission). The principle may be
invoked in different situations: (i) when an established threshold

86. In Indian Council for Enviro-legal Action and Ors v. Union of India
and Ors (2007) 15 SCC 633, para 8, the discharge of untreated industrial
effluents into the Nakkavagu by the polluting industries resulted in
pollution of subsoil water.
87. Research Foundation II (n 45), para 25.
88. Research Foundation for Science v. Union of India (2005) 13 SCC
671, para 1.
89. de Sadeleer (n 3) 42.
90. (1999) SCC OnLine Ker 191, para 101.

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in the form of prescribed standards for the receiving environment

is exceeded but does not result in damage; (ii) when an emission
exceeds the prescribed standards and results in damage; (iii)
when an emission does not exceed the prescribed standards but
nevertheless results in damage; (iv) when there is a risk of potential
negative environmental impact, irrespective of compliance with
prescribed standards; (v) when there are no prescribed standards,91
etc.
The occurrence of harm or the existence of damage has been
identified as a precondition for the application of the polluter pays
principle in some cases. In Deepak Nitrite v. State of Gujarat,92
for example, the Supreme Court clarified that ‘compensation to
be awarded must have some broad correlation not only with the
magnitude and capacity of the enterprise but also with the harm
caused by it’.93 After restating the ‘legal position’ that ‘if there
is a finding that there has been degradation of environment or
any damage caused to any of the victims by the activities of the
industrial units certainly damages have to be paid’, the Court
held that it would not be correct ‘to say that mere violation of
the law in not observing the norms would result in degradation
of environment’.94 Similarly, in Hindustan Coca-Cola, the NGT
observed that the assessment of damage and the amount required
to rectify the damage were preconditions, before imposing a liability
on the polluter.95
In some cases, courts have issued directions to the potential
polluter to pay the amount of damages in advance, that is, before
the actual occurrence of environmental pollution. In M. C. Mehta
and Anr v. Union of India and Ors, for instance, the Court allowed

91. See, for example, Indian Council for Enviro-legal Action v. Ministry
of Environment and Forests and Ors, OA No. 170/2014, judgment dated
10 December 2015, NGT (Principal Bench) [recognising the absence of
domestic law for the regulation of HCFC-22 and HFC-23].
92. (2004) 6 SCC 402.
93. Ibid., para 6.
94. Ibid.
95. Hindustan Coca-Cola (n 34), para 27.

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the company’s caustic chlorine plant to be restarted, subject to

fulfillment of certain directions, including the deposit of a bank
guarantee, which could be encashed, wholly or in part, and utilised
for payment of compensation, in case escape of chlorine gas within
a three-year period results in death or injury to any workman or
to any person(s) living in the vicinity of the plant.96 Similarly, in
some cases, the NGT has directed the alleged polluter to deposit
an amount in advance in order to remedy or compensate for future
pollution.97
Some SPCBs require polluting industries to post a bank
guarantee, to ensure the implementation of corrective actions in
accordance with the negotiated compliance schedule. The posting
of the bank guarantee is a condition precedent for renewal of
consent to operate. However, there are no standard procedures to
determine the amount of bank guarantee, the amount of forfeiture
in case of non-compliance, or the use of the forfeited amount.98
Significantly, many of the SPCBs believe that existing laws do not
allow a bank guarantee and its wide use must be preceded by a legal
clarification.99
Forfeiture of the bank guarantee by the Delhi Pollution Control
Committee was challenged before the High Court of Delhi. The
Court held that the power to issue directions under Section 33A
of the Water Act does not confer the power to levy any penalty,
by requiring the industry to furnish a bank guarantee and making
the grant of consent to establish under the Water Act conditional
upon payment of such payments and furnishing of such bank

96. (1986) 2 SCC 176, para 20(11).

97. See Rudresh Naik v. Goa Coastal Zone Management Authority,
Appeal No. 20/2013, judgment dated 16 May 2013, NGT (Principal
Bench); Vitthal Gopichand Bhungase v. The Gangakhed Sugar and Energy
Ltd and Ors, MA No. 37/2013, judgment dated 20 December 2013, NGT
(Western Zone Bench).
98. See Centre for Science and Environment (CSE), ‘Filling the Blanks:
A Discussion Paper on Strengthening Environmental Governance’ (CSE
2014) 14–15.
99. Ibid., 15.

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guarantees.100 The NGT has held that the bank guarantee was not
penal in nature but was clearly compensatory in its character, and
ensured prevention and control of pollution and restoration of
environment.101 Subsequently, the Tribunal has held:
... the SPCB cannot use the BG as a penal measure against
any non-compliance, but can seek/invoke the BG for ensuring
time-bound and well defined substantial improvements in
the pollution control system. In simple words, the BG regime
shall not be used or rather misused as ‘pollute and pay’. Nor
the BG regime can be used as substitute for the legal action
against the non-compliance as per the provisions of [the
environmental laws] ... Neither the BG can be taken as penalty
or compensation for pollution. Wherever the Board requires a
unit to furnish bank guarantee for compliance of conditions
of consent order, installation of anti-pollution devices and
ensuring that it is a pollution-free unit, then, in such cases,
the Board should ensure that its order provides for a ‘time
targeted action plan’. In default of which and upon inspection,
such bank guarantee would be liable to be invoked/encashed
for environmental compensation and restoration purposes.102
Even where the occurrence of harm or the existence of damage is
a precondition, the courts do not discuss the threshold of harm
that will result in the application of the polluter pays principle.
However, it is clear that the principle has not been invoked in the
case of any or every instance of environmental harm or damage
resulting from the pollution. In most cases, the application of the
principle by the courts has been pursuant to a finding of ‘some’

100. Splendor Landbase Limited v. Delhi Pollution Control Committee

(2010) SCC OnLine Del 3466, paras 58–64. See also Delhi Pollution
Control Committee v. Splendor Landbase Ltd (2012) SCC OnLine Del 400
(Division Bench), para 37.
101. See State Pollution Control Board, Odisha v. M/s Swastik Ispat Pvt.
Ltd Appeal No. 68/2012, judgment dated 9 January 2014, NGT (Principal
Bench), para 51.
102. See Tarun Patel v. Chairman, Gujarat Pollution Control Board and
Ors, OA No. 34/2013, judgment dated 1 April 2014, NGT (Western Zone
Bench), para 32.

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environmental harm or damage. This suggests that the courts are

applying an implicit threshold of harm. The nature of the activity
and the ‘public interest’ involved in its continuation also influences
the determination of acceptable risk and, therefore, the threshold
of harm, which becomes unacceptable.
However, the existence of damage as a precondition to trigger
the polluter pays principle fails to take into account situations where
the risk of environmental degradation or pollution necessitates
the application of the precautionary principle,103 and/or the
principle of prevention.104 For instance, in the Art of Living case,
instead of applying the precautionary principle or the principle of
prevention and stopping the event on the Yamuna floodplain, the
NGT permitted the organisers to proceed with the event, on the
condition that they would deposit Rs 5 crores as compensation for
potential environmental damage.105 This represents a significant
step backward as it does not encourage the (potential) polluter to
adopt preventive or precautionary measures before the pollution
occurs.
But in some cases, the polluter pays principle and the other
principles have been applied in tandem. In Research Foundation
II, for example, the Supreme Court observed that ‘the producer
of goods or other items should be responsible for the cost of
preventing or dealing with any pollution that the process causes.
This ... covers cost incurred in avoiding pollution and not just
those related to remedying any damage.’106 The Court then limited
and distinguished its observation in Deepak Nitrite, that ‘to say
that mere violation of the law in not observing the norms would
result in degradation of environment would not be correct’.107
It observed that Deepak Nitrite did not lay down a proposition
that the application of the polluter pays principle requires actual

103. de Sadeleer (n 3) 40–41.

104. Ibid., 61.
105. Art of Living case (n 79), para 7.
106. Research Foundation II (n 45), para 29.
107. Deepak Nitrite (n 92), para 6.

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environmental degradation. The Court distinguished the case

before it on the ground that the offending activities (that is,
import of hazardous waste oil in the garb of lubricating oil) had
the potential to degrade the environment.108 In contrast, in Deepak
Nitrite, the Court was dealing with the discharge of effluents by
industries into the effluent treatment project in excess of the
prescribed parameters.109
More generally, the main issue raised in a number of cases
relating to environmental pollution is the non-implementation of
the provisions of the existing environmental legislation that require
the polluter/potential polluter to construct and operate effluent/
sewage treatment plants, or to install and operate pollution control
equipment. In these cases, courts have directed the existing or
potential polluter to pay by directing them to construct/install and
operate the necessary plants/equipment, in order to prevent and
control pollution.110 In this form, the Court employs the polluter
pays principle to ensure compliance with statutory duties.

Assessment of Loss and

Determination of Compensation

Courts have invoked the polluter pays principle to hold the polluter
liable for payment of damages and/or compensation in a number
of cases. This has to be followed by the onerous task of assessment
of loss, and determination, imposition, and recovery of the amount
from the polluter.
The first question relates to the competence of the judiciary to
undertake such an assessment. In a number of cases, the Supreme
Court has not itself undertaken the task of assessment of the loss
resulting from the polluting activity and determination of the

108. Research Foundation II (n 45), para 30 [‘The observations ... is [sic]

evidently confined to the facts of that case’].
109. Deepak Nitrite (n 92), para 1.
110. See, for example, Bichhri (n 26); Vellore (n 32).

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 The Polluter Pays Principle 179

amount payable by the polluter for reversing the environmental/

ecological damage and the compensation payable by the polluter
to the victims (individuals and families). In Bichhri, in a footnote,
the Court briefly raised the question of its own competence to
impose and recover cost of all measures, including remedial
measures (or award damages against private parties), in order to
ensure observance of law and its orders as a part of enforcement
of fundamental rights, but it did not express any final opinion.111
However, the Court does not appear to have ruled out the possibility
that it can award damages.112 Nevertheless, it directed the central
government (through the MoEF) to undertake this function in the
exercise of its powers under Section 3(3) of the EP Act.113 Insofar
as the task of awarding damages for loss suffered by the villagers in
the affected area is concerned, the Court left it open to the villagers
or any organisation on their behalf to institute civil suits for this
purpose.114 However, the judiciary has awarded damages in other
cases.115
The same approach has been followed in other cases where the
Court has directed the central government to establish an authority,
which is required to implement the polluter pays principle.116 In

111. Bichhri (n 26), para 60.

112. The Court observed: ‘Be that as it may we are of the considered
opinion that even if it is assumed (for the sake of argument) that this Court
cannot award damages against the respondents ...’, ibid., para 60.
113. Ibid., para 70. The Court derived its authority to issue the
necessary directions to the central government from its earlier decision in
Indian Council for Enviro-legal Action v. Union of India (1995) 3 SCC 77.
See ibid., para 60.
114. Ibid., para 70(3).
115. See, for example, M. C. Mehta v. Kamal Nath and Ors (2000) 6
SCC 213 (Kamal Nath II), paras 9 and 24; Vijay Singh Puniya v. State of
Rajasthan (2003) SCC Online Raj 87, paras 30 and 31.
116. For example, the Court’s directions led to the constitution of the
Loss of Ecology (Prevention and Payment of Compensation) Authority
for the State of Tamil Nadu vide Notification No. S.O.671 (E), dated 30
September 1996 [Vellore (n 32), paras 15, 17 and 18]; the Aquaculture
Authority vide Notification No. S.O. 88(E), dated 6 February 1997

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some cases, courts have directed the state government to appoint

an authority or commissioner for this purpose.117 In most of these
cases, the authority prepares the statement showing the total
amount to be recovered, the names of the polluters from whom
the amount is to be recovered, the amount to be recovered from
each polluter, the persons to whom the compensation is to be paid,
and the amount payable to each of them. Then the collector/district
magistrate of the area concerned is responsible for recovering the
amount from the polluters, if necessary as arrears of land revenue,
and its disbursement to the affected individuals and families.118
In Janardan Kundalikrao Pharande v. Ministry of Environment
and Forests and Ors,119 after admitting that it lacked any mechanism
to quantify the loss caused to the fertility of the agricultural lands
of the villagers in the area, the NGT directed the collector to
constitute a committee for this purpose. Here too the question of
the competence of the authority to implement the polluter pays
principle can be raised.

(Jagannath (n 45), para 52); and the Dahanu Taluka Environment

Protection Authority vide Notification No. S.O. 884(E), dated 19
December 1996 (Bittu Sehgal (n 45), para 17). See Geetanjoy Sahu and
Armin Rosencranz, ‘Court-appointed Monitoring Committees: The
Case of the Dahanu Taluka Environment Protection Authority’ (2009)
5(2) Law, Environment and Development Journal 185; Geetanjoy Sahu,
‘Implementation of Environmental Judgments in Context: A Comparative
Analysis of Dahanu Thermal Power Plant Pollution Case in Maharashtra
and Vellore Leather Industrial Pollution Case in Tamil Nadu’ (2010) 6(3)
Law, Environment and Development Journal 335. The Madras High Court
ordered the winding up of the Loss of Ecology (Prevention and Payment
of Compensation) Authority for the State of Tamil Nadu in April 2016
and transferred all the pending cases to the NGT’s Southern Zone Bench
in Chennai. See Vellore Citizens’ Welfare Forum and Ors v. Union of India
and Ors (2016) SCC OnLine Mad 1881.
117. See, for example, Calcutta Tanneries (n 45), para 20(14); Ishwar
Singh v. State of Haryana and Ors (1995) SCC OnLine P&H 717, para 39(5).
118. See Vellore (n 32); Jagannath (n 45); Bittu Sehgal (n 45).
119. Application No. 7/2014, judgment dated 16 May 2014, NGT
(Western Zone Bench), paras 49 and 51(5).

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The process of assessment of loss and determination of

compensation is subject to a number of additional difficulties.120
One is the difficulty associated with identification of polluters and
victims where their number is large. In order to address some of
these concerns, in some cases, the amount of compensation has been
apportioned among the polluters.121 The methodology applied for
valuation, exclusion of certain types of damages and the adequacy
of compensation are also thorny issues. In a 2013 decision of the
NGT, a direction of the SPCB to the polluting industry to form an
expert committee to ‘resolve the matter of damage compensation
by mutual understanding with affected farmers’, instead of
referring the matter to a district level compensation committee set
up for such purposes, pursuant to an order of the High Court,
was held to be bad in law.122 However, instead of questioning the
formula derived by the polluting industry’s expert committee for
this purpose or directing that an independent enquiry should be
conducted, the NGT directed the collector and district magistrate
to verify whether all the victims had been duly compensated as per
this formula.

What Does the Polluter Pay?

The polluter pays principle is based on the premise of making

the polluter pay for pollution. As previously mentioned, what the

120. Asha Krishnakumar, ‘An Award and Despair’ (2002) 19(16)

Frontline <http://www.frontline.in/static/html/fl1916/19160930.htm>
accessed 4 April 2017; L. Venkatachalam, ‘Damage Assessment and
Compensation to Farmers: Lessons from Verdict of Loss of Ecology
Authority in Tamil Nadu’ (2005) 40(15) Economic and Political Weekly 1556.
121. See, for example, Ramdas Janardan Koli and Ors v. Secretary,
Ministry of Environment and Forests and Ors, OA No. 19/2013, judgment
dated 27 February 2015, NGT (Western Zone Bench), paras 67–70.
122. Vajubhai Arsibhai Dodiya and Ors v. Gujarat Pollution Control Board
and Ors, Application No. 64/2012, judgment dated 31 October 2013,
NGT (Western Zone Bench), para 21.

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polluter is actually asked to pay depends on the meaning attributed

to the principle and its intended function. The non-curative or
redistributive function of the polluter pays principle requires the
polluter to internalise the social cost borne by the public authorities
for prevention and control of pollution.123 Accordingly, in Research
Foundation II, the importer of hazardous waste was held liable to
pay the amounts to be spent by the government for destroying the
goods.124 Akin to the partial-cost internalisation approach towards
the polluter pays principle, courts have also directed the polluting
industry to adopt pollution prevention and control technologies.125
The curative function of the polluter pays principle involves
payment of damages or compensation to victims of pollution, as
well as for environmental damages. This subsection will deal with
this function of the principle in the Indian context.

Damage or Compensation to Victims of

Pollution and Environmental Restoration

In a number of cases, courts have adopted the full internalisation

of costs approach, which requires the polluter to pay damages or
compensation to the victims of pollution and to meet the expenses
of environmental restoration.126 It is now settled law in India

123. de Sadeleer (n 3) 35.

124. Research Foundation II (n 45), para 39.
125. Calcutta Tanneries (n 45), paras 18–20.
126. In some cases, the two terms—damages and compensation—
are used interchangeably, while in others, damages are payable for
environmental degradation while compensation is payable to the victims of
pollution (individuals or families). More recently, the term ‘environmental
compensation’ has been used instead of damages for environmental
degradation/restoration. See, for example, the decision of the NGT
in Kallpavalli Vrishka Pempakamdarula Paraspara Sahayaka Sahakara
Sangam Ltd and Ors v. Union of India and Ors, OA No 92/2013, judgment
dated 25 August 2015, NGT (Principal Bench), para 29(i), where the
applicants’ claim for compensation was rejected, but the respondents were
directed to pay environmental compensation of Rs 50 lakhs to the SPCB.

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that the ‘one who pollutes the environment must pay to reverse
the damage caused by his acts’.127 In Research Foundation II, the
Supreme Court held that this includes direct cost to the people or
property and full environmental cost (tangible and intangible).128
However, the calculation of the amount payable by the polluter to
the victim is often a very complex process.
In some cases, courts have applied the ‘percentage of gross
turnover’ formula to determine the quantum of compensation
payable by the polluter.129 The Supreme Court has acknowledged
that this formula ‘may be a proper measure’ in a given case because
‘the method to be adopted in awarding damages on the basis of
“polluter-to-pay” principle has got to be practical, simple, and easy
in application’.130 However, the usefulness of this formula may be
undermined where courts include polluters with different annual
turnovers within the same band for the purpose of determination
of liability, that is, they are required to pay the same amount
irrespective of differences in their annual turnover.131 The formula
may also fail to have the requisite deterrent effect on polluters
if the ‘percentage of gross turnover’ awarded as damages is not

127. See Vellore (n 32); Kamal Nath I (n 45), para 38 and 39(3); Kamal
Nath II (n 115), para 24; Calcutta Tanneries (n 45), para 19.
128. Research Foundation II (n 45), para 29.
129. Pravinbhai Jashbhai Patel and Anr v. State of Gujarat and Ors (1995)
36(2) GLR 1210. See also Deepak Nitrite Ltd v. Ajit B. Padiwal (1997) 1
Guj LR 1062. The Supreme Court allowed an appeal against this order but
for different reasons. See Deepak Nitrite (n 92).
130. Deepak Nitrite (n 92), para 6. The language reflects the earlier
observation of the Court in Bichhri (n 26) where it applied the absolute
liability principle to implement the polluter pays principle.
131. In Puniya, for instance, all the printing and dyeing units with
different gross annual turnover, but within the same band determined by
the Single Judge of the Rajasthan High Court, had been directed to pay
the same pollution fine. However, the Division Bench of the High Court
varied the formula for determining the amount payable by the industrial
units and ordered each of the units to pay 15 per cent of their turnover.
See Puniya (n 115).

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high enough. Further, in some cases, it may be difficult to access

information about the annual turnover of the polluting industry.132
It appears that in a number of cases, the curative dimension of
the polluter pays principle is completely sidelined and it is applied
in a manner to avoid addressing the question of liability altogether.
For example, in some cases, courts have directed the polluter to pay
lump sum compensation (Rs 1 lakh or Rs 5 lakhs)133 while in other
cases, a daily penalty amount is imposed.134 This is a regressive
approach because it fails to even hold the polluter strictly liable for
the pollution.
The determination of the full environmental cost of pollution
involves calculation of the market value of natural resources and
valuation of environmental damages, which is a very difficult
task. In most cases involving environmental pollution, the scope
of liability of the polluter is often limited to some tangible
environmental costs. For instance, the polluter pays principle
underpins the calculation of a ‘net present value’ (NPV) for the
diversion of forestland for non-forest purposes (depending upon
the area and density of land in question), as recommended by
the Court in T. N. Godavarman Thirumulpad v. Union of India and

132. In Rajiv Narayan v. Union of India and Ors, MA No. 44/2013,

in OA No. 36/2012, order dated 12 September 2013, NGT (Principal
Bench), the NGT directed the alleged polluting industry responsible for
groundwater pollution in Noida to show its annual turnover for the last ten
years with profit and loss statement. On 20 September 2013, the Supreme
Court stayed this order for a period of 10 weeks on the ground that the
NGT does not have the right to issue such a direction. This order of the
Supreme Court is referred to in Rajiv Narayan v. Union of India and Ors,
MA No. 762/2014 in MA No. 44/2013 in OA No. 36/2012, judgment
dated 13 January 2015, NGT (Principal Bench), para 11.
133. See, for example, Manoj Misra (n 74); Abhishek Rai (n 74); Invertis
University (n 75); Karan Singh (n 76).
134. See, for example, Noyyal River Ayacutdars Protection Association
v. Government of Tamil Nadu (2006) SCC OnLine Mad 1192. The High
Court of Madras directed the polluting industries to pay a fine on pro rata
basis until they stopped pollution (by achieving zero liquid discharge by a
specified date).

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 The Polluter Pays Principle 185

Ors.135 The Court further recommended that the NPV as well as

payments received towards compensatory afforestation, additional
compensatory afforestation, penal compensatory afforestation
or catchment area treatment plan, have to be deposited with the
Compensatory Afforestation Planning and Management Authority
(CAMPA) and used for specific activities.136
The full internalisation of costs approach suffers from a
number of limitations. Although decisions refer to reversing the
damage and restoration of the environment, this is not possible
in the case of irreversible damage. A preventive and anticipatory
approach or a precautionary approach is more appropriate here.137
The assessment of damage can take very long.138 In the absence of
verification mechanisms, it is not possible to determine whether the
restoration has actually taken place.

135. IA No. 566 in WP (C) No. 202/1995, order dated 29 October

2002, Supreme Court cited in T. N. Godavarman Thirumulpad (87) v.
Union of India and Ors (2006) 1 SCC 1, paras 12 and 14.
136. Ibid. This formed the basis for the grant of clearance by the MoEF
to M/s Sterlite (parent company of Vedanta) for diversion of forest land
to undertake mining of bauxite ore on the Niyamgiri hills in the state
of Odisha. See T. N. Godavarman Thirumulpad v. Union of India and Ors
(2008) 2 SCC 222 and T. N. Godavarman Thirumulpad v. Union of India
and Ors (2008) 9 SCC 711.
137. See de Sadeleer (n 3) 44.
138. In the Art of Living case (n 79), for example, the NGT directed
a committee to assess the environmental damage caused to the Yamuna
floodplain and the cost of rehabilitation on 26 October 2016. See
Press Trust of India, ‘Expert Committee Seeks More Time to Quantify
Damages by Art of Living’ (30 September 2016) <http://www.ndtv.com/
india-news/expert-committee-seeks-more-time-to-quantify-damages-
by-art-of-living-1468674> accessed 7 April 2017. The committee finally
submitted its report on 12 April 2017. See Nikhil M. Ghanekar, ‘NGT
panel recommends Art of Living pay Rs 42 crore for damaging Yamuna
floodplains’ Daily News and Analysis (New Delhi) (13 April 2017) <http://
www.dnaindia.com/india/report-ngt-panel-recommends-art-of-living-pay-
rs-42-crore-for-damaging-yamuna-floodplains-2399422> accessed 30
April 2017.

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Punitive or Exemplary Damages

The primary objective of punitive or exemplary damages is to

punish the polluter and to deter the polluter as well as others from
causing pollution in the future. Punitive or exemplary damages
are different from compensation to victims of pollution and/or
damages for restoration of the damaged ecology. But a polluter
can be held liable to pay both types of damages.139 In M. C. Mehta
v. Kamal Nath and Ors, the Supreme Court considered the aim
and purpose of exemplary damages to be ‘almost similar’ to the
purpose of punishment (in the nature of fine or imprisonment or
both) under domestic environmental laws.140 The Court imposed
exemplary damages on the polluter, which were to be used by the
state government for flood protection works in the area affected by
pollution.141
The Supreme Court has identified the nature and extent of
the offending activity, nature of the offending party, and intention
behind such activity as the basis of the levy of exemplary and/
or penal damages.142 In Sterlite Industries (India) Ltd v. Union of
India and Ors,143 the Court referred to its decision in the Oleum
Gas Leak case, and after considering the magnitude, capacity,
and prosperity of the appellant-company, held it liable to pay a
compensation of Rs 100 crores for polluting the environment in
the vicinity of its copper smelter plant, and for operating the plant
without a renewal of the consents by the SPCB for a long period.

139. In Kamal Nath II, the polluter was directed to show cause as to
why exemplary damages should not be awarded in addition to damages/
compensation for restoration of the damaged ecology. See Kamal Nath II
(n 115), para 24.
140. (2002) 3 SCC 653, para 9.
141. Ibid., para 8.
142. Research Foundation II (n 45), para 31. However, in this case, the
Court did not consider it necessary to examine this aspect in depth in
the absence of a clear finding.
143. (2013) 4 SCC 575.

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 The Polluter Pays Principle 187

The Court also emphasised the deterrent effect of the payment

on the appellant-company.144 Similarly, in Him Privesh Environment
Protection Society and Anr v. State of Himachal Pradesh and Ors,145 the
factors considered by the High Court of Himachal Pradesh while
assessing damages included the deterrent effect on the polluter as
well as other companies, that the polluter should feel the pinch of
the damages and the net worth of the polluter. The Court imposed
damages/penalty of Rs 100 crores as a proportion of the total cost
of the project (approximately 25 per cent) on the polluter. The
Court also considered the blatant falsehoods of the polluter as a
factor in the assessment of damages.146

Pollution Fine

There is a distinction between a fine or penalty, which can be

imposed after the commission of an offence punishable under a
statute is established, and damages or compensation payable in
accordance with the polluter pays principle. Although the Supreme
Court directed the polluter to show cause why a pollution fine
should not be imposed in Kamal Nath I,147 it was subsequently held
that a pollution fine cannot be imposed under writ jurisdiction; the
fine can be imposed only if it is prescribed in a statute, the polluter
is guilty of contravention of its provisions and the polluter is found

144. Ibid., paras 46–47.

145. (2012) SCC OnLine HP 2690. See also Krishna Kant Singh v.
National Ganga River Basin Authority, MA No. 879/2013 and 403/2014,
judgment dated 16 October 2014, NGT (Principal Bench). According to
the NGT, ‘[c]onsidering the magnitude of the pollution caused by the unit,
its capacity and prosperity responsibility of the unit to pay compensation
cannot be disputed’, para 51.
146. Him Privesh, ibid., paras 100 and 106. For instance, the polluter
had made false statements for obtaining environmental clearance for all
its projects, it was put in possession of the land without any legal order or
authority, etc.
147. Kamal Nath I (n 45), para 39(4).

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guilty after fair trial in a competent court.148 In Calcutta Tanneries,

however, the Court imposed a pollution fine on the polluters in
addition to compensation.149
In some cases, courts have applied the polluter pays principle
and directed the polluter to pay a ‘pollution fine’ to compensate
affected persons and to cover the cost of restoring the damaged
ecology for its period of operation.150 In these cases, courts may
not be applying the term ‘pollution fine’ stricto sensu, as understood
in statutory enactments. However, the imposition of such a
pollution fine may provide the necessary impetus for the polluters
to undertake measures to prevent future pollution, thus performing
an important function of the polluter pays principle.

Limits of the Polluter Pays Principle: Pay and

Pollute Principle and Utilisation of the Payment

In the 1990s, during the period immediately following the Rio

Conference, in a number of cases where the polluter pays principle
was expressly invoked, while the Supreme Court acknowledged the
importance of the polluting industries in the generation of foreign
exchange and employment (directly and in ancillary industries),
it finally gave precedence to environmental considerations.151
The Supreme Court has also clarified that the principle does not

148. Kamal Nath II (n 115), paras 17–19 and 22. See also M/s DVC
Emta Coal Mines Limited v. Pollution Control Appellate Authority (WB)
and Ors, Appeal No. 43/2012, judgment dated 15 March 2013, NGT
(Principal Bench).
149. Calcutta Tanneries (n 45), para 20(17).
150. See Vellore (n 32), para 21. See also Puniya (n 115); Indian Asthama
Care Society and Anr v. State of Rajasthan and Ors RLW 2008 (1) Raj 472.
151. In Bichhri (n 26), the pollutant (H acid) was manufactured for
export exclusively, while in Vellore (n 32) and Tirupur (n 34), the polluting
industry (leather and garments, respectively) generated considerable
foreign exchange and employment.

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 The Polluter Pays Principle 189

mean that the polluter can ‘pollute and pay’.152 In Pravinbhai, for
instance, the High Court of Gujarat observed that this would
‘legalise the violation, which is impermissible’.153 However, in
a large number of cases, courts have invoked the polluter pays
principle to impose a fine on the polluter, or to ask him/her to
pay damage or compensation for environmental degradation, but
then allowed the polluting industry to continue its operations. For
instance, in Sterlite, even after accepting that the appellant/polluter
had misrepresented and suppressed material facts in its petition,
the Court observed that the closure of its plant would be against
public interest.154 Similarly, in Him Privesh, the Court noted that
the damages should not bring the polluter to a halt.155
The manner in which the polluter pays principle is interpreted
in such decisions is likely to set a precedent, which may lead to
further pollution or environmental harm in the future. Such an
approach runs contrary to the preventive aspect of the polluter pays
principle.
Moreover, compensation to victims does not always take the
form of disbursement of monies directly to them. Instead the
amount collected from the polluter may be utilised for works of
socioeconomic upliftment of the villages, and for the betterment of
their educational, medical, and veterinary facilities and agriculture
and livestock,156 the creation of common facilities such as schools,
hospitals, community halls, tube wells, etc., and improvement of

152. Research Foundation II (n 45), para 29.

153. Pravinbhai (n 129), para 108.
154. Sterlite (n 143), para 48. The ‘considerations of public interest’
identified by the Court included: substantial contribution to copper
production in India, which is used in defence, electricity, automobile,
construction and infrastructure, etc.; employment to large number of
people, directly as well as through contractors; support to ancillary
industries; generation of revenue for central and state governments; and
contribution to 10 per cent of the total cargo volume of Tuticorin port.
155. Him Privesh (n 145), para 106.
156. Pravinbhai (n 129), para 135C(xii).

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the ecology and environment;157 or the construction of common

effluent treatment plants (CETPs) in order to prevent further
damage to the ground water and to arrest use of untreated water for
growing crops and vegetables.158 Instead of payment of monetary
compensation, courts may also impose other pollution prevention
and control measures. For example, the NGT has ordered the
polluter to plant trees in some cases.159 Such judicial directions
may or may not contribute to the curative function of the polluter
pays principle, if the actual victims of pollution are not adequately
compensated. Such instances may also highlight the insufficient
focus on the justice dimensions of the polluter pays principle.

Conclusion

The polluter pays principle forms part of the toolkit to address

the problems of environmental pollution in India. The Supreme
Court of India has read the principle into domestic law, including
the Constitution and environmental legislation. In this regard, the
Court has been influenced by the development of the principle
within the OECD/European Community (regional level) and at
the UNCED (international level). However, the principle does not
lend itself to direct application or enforcement in domestic laws; it
requires interpretation and implementation by the judiciary.
The nature, scope, and content of the principle are illustrated
by its varied application by the courts, including the NGT more
recently. On the one hand, the flexible approach of the judiciary,
for example, to expand the definition of the polluter and the
application of the absolute liability principle in certain situations,
has contributed to the development of the principle. On the other

157. Him Privesh (n 145), paras 103–06.

158. Puniya (n 115), para 31.
159. See, for example, Devendra Kumar v. Union of India and Ors,
Application No. 91/2012, order dated 14 March 2013, NGT (Principal
Bench), para 12(4); Cox India (n 78), para 34(4).

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 The Polluter Pays Principle 191

hand, contradictory case law on similar issues co-exists, depending,

inter alia, on the nature of the polluter and the manner in which the
judiciary reconciles conflicting interests.
The ability of the principle to perform its preventive function
depends on the severity of the amount of compensation/damage to
be paid by the polluter, and the ability of the principle to ensure
long-term deterrence and not just to compensate for the immediate
damage caused; in other words, the cost of compliance should be
higher than the cost of non-compliance. However, the principle,
as applied by the courts in India, does not often result in the
imposition of severe penalty and its deterrent effect is limited. Non-
implementation of judicial orders or delay in their implementation
also needs to be examined.
Finally, the judiciary appears to have paid more attention
to the curative dimension of the principle. But even here, the
obstacles relating to the assessment of damages, the insufficiency
of the damages awarded by the courts, and the purposes for which
they may be utilised may limit the ability of the principle to provide
justice to the victims of pollution, including the environment. In
some situations, the application of the principle may actually cause
injustice to certain sections of the population, for example, where
the slum dwellers or the poor ‘polluters’ are removed from their
homes or where the closure of polluting industries results in loss of
livelihood without redress. The justice/(in)justice dimensions of the
principle in the Indian context require further scrutiny.

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 five

The Precautionary Principle

Lavanya Rajamani

India has a wide array of environmental laws,1 an extensive

network of environmental governance institutions,2 a vibrant and
demanding civil society, and one of the most environmentally
sensitive judiciaries in the world. India has a dedicated National
Green Tribunal (NGT),3 in operation since 2010. And, India was
one of the first jurisdictions to embrace an environmental right.4 It is
widely believed to have, more than any other jurisdiction, ‘fostered
an extensive and innovative jurisprudence on environmental

1. For a list of relevant legislations, see the Ministry of Environment,

Forest and Climate Change (MoEFCC), Government of India, website
<http://www.moef.nic.in/> accessed 7 February 2017.
2. See, for example, the website of the Central Pollution Control Board,
Government of India <www.cpcb.nic.in/> accessed 7 February 2017.
3. See the NGT website <http://greentribunal.gov.in> accessed 7
February 2017.
4. The Supreme Court of India traces in A. P. Pollution Control Board II
v. Prof. M.V. Nayudu and Ors (2001) 2 SCC 62, paras 6 and 7, the origins
of environmental rights in India to Bandhua Mukti Morcha v. Union of India
(1984) 3 SCC 161, para 10. See Chapter 1 of this volume by Lovleen
Bhullar.

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 The Precautionary Principle 193

rights’.5 Indian courts have held the principles of precaution,

polluter pays and intergenerational equity as well as the public trust
doctrine as integral to the corpus of Indian law.6 This seemingly
progressive stance on environmental protection, for which India
is often feted internationally, however, hides many flaws in judicial
approach and reasoning, which in turn has resulted in the faltering
development of environmental jurisprudence, imprecise rights,
poorly articulated principles, and the idiosyncratic application
of both rights and principles.7 The adoption of the precautionary
principle into Indian law, and its subsequent development and
application by the Indian courts over the years, presents a revealing
case study of this phenomenon.
This chapter will begin by exploring the conceptual
underpinnings of the precautionary principle as laid out in
international legal instruments, both soft and hard law, as well as

5. Michael R. Anderson, ‘Individual Rights to Environmental Protection

in India’ in Alan Boyle and Michael R. Anderson (eds) Human Rights
Approaches to Environmental Protection (OUP 1996) 199.
6. Vellore Citizens’ Welfare Forum v. Union of India and Ors (1996) 5
SCC 647, paras 10 and 11; Karnataka Industrial Areas Development Board
v. C. Kenchappa and Ors (2006) 6 SCC 371, para 66; Research Foundation
for Science Technology and Natural Resources Policy v. Union of India and Anr
(2005) 13 SCC 186, para 26; S. Jagannath v. Union of India (1997) 2 SCC
87, paras 49 and 50; Indian Council for Enviro-legal Action and Ors v. Union
of India and Ors (1996) 3 SCC 212, para 67; M. C. Mehta v. Union of
India (1997) 2 SCC 411 (Calcutta Tanneries case), para 19; M. C. Mehta
v. Kamal Nath (1997) 1 SCC 388 (Kamal Nath I), para 25, 37 and 38;
M. C. Mehta v. Kamal Nath and Ors (2000) 6 SCC 213 (Kamal Nath II),
para 10; Intellectuals Forum, Tirupathi v. State of Andhra Pradesh and Ors
(2006) 3 SCC 549, paras 74, 75 and 76; State of Himachal Pradesh and
Ors v. Ganesh Wood Products and Ors (1995) 6 SCC 363, paras 42 and 51;
M. C. Mehta v. Union of India and Ors (1997) 2 SCC 353 (Taj Trapezium
case), paras 30 and 32; Narmada Bachao Andolan v. Union of India and Ors
(2000) 10 SCC 664, para 123.
7. Lavanya Rajamani, ‘The Right to Environmental Protection in
India: Many a Slip between the Cup and the Lip’ (2007) 16(3) Review of
European, Comparative and International Environmental Law 274.

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 194 Lavanya Rajamani

statements of international dispute settlement bodies. In particular,

this chapter will consider the multiple definitions and legal status
of this principle. This backdrop will enable a better appreciation of
the Indian cases, several of which gloss over the many definitional
and interpretational contestations at the heart of this principle,
and attribute a level of normative status and gravitas to it that
international courts and tribunals have been reluctant to attribute.
The Indian courts have, however, developed an indigenous
jurisprudence and understanding of the precautionary principle in
the past two decades that is of considerable salience, and merits an
analysis on its terms. This chapter will seek to engage in such an
analysis.
In order to engage in an analysis of the precautionary principle
as it has developed indigenously, this chapter will survey key cases in
the Indian judiciary (Supreme Court, High Courts and the NGT)
that were either decided on the basis of, or that referred to the
precautionary principle, with a view to distilling the key elements
of this principle in its application in Indian courts, and to consider
the extent to which the case law expands our understanding of the
precautionary principle. In this context, the chapter will address the
following key questions: Does case law define and circumscribe the
precautionary principle, and provide it with greater specificity and
concreteness? Does case law reflect a guarded use of this principle
in distinctive situations of potential serious/irreversible damage
and scientific uncertainty, or does case law fold the precautionary
principle into the notion of prevention? More broadly, does case
law develop a consistent line of jurisprudence on this principle?
This chapter will proceed to consider if an indigenous version
of the precautionary principle can be said to exist, and if yes, what
it is and what accounts for it. And, finally, this chapter will consider
the consequences that attach to such a method of developing
environmental jurisprudence in India, including, albeit briefly, the
influence that such jurisprudence on the precautionary principle
has on the development of the principle/norm of precaution in
international law.

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 The Precautionary Principle 195

It is worth recording a few caveats at the outset. This chapter

does not judge or ascribe value to case law based on the outcomes
reached in particular cases. Rather, it seeks to examine the rigour,
quality and consistency of the judicial reasoning that accompanied
the invocation and application of the precautionary principle in
particular cases. This approach may seem counter-intuitive, but
is taken for three reasons. First, judging outcomes is a subjective
and value-laden exercise. Reasonable judges, lawyers, and litigants
will often disagree over the outcome of a case. Second, there
is tremendous inherent value in the consistent and coherent
development and application of principles. Ronald Dworkin has
argued persuasively that judicial decisions, as political decisions,
attract the doctrine of political responsibility—judges must only
make such decisions as they can justify within a political theory
that also justifies the other decisions they propose to make or have
made.8 This doctrine condemns ‘intuitionistic’9 decision-making
and demands articulate consistency.10 Judges have a responsibility,
thus, to reach consistent and defensible decisions. And, it is worth
exploring whether judges have demonstrated such responsibility
in relation to their use of the precautionary principle. Third and
finally, this approach is desirable even from the narrow instrumental
perspective of filling a gap in the literature. The (limited) literature
that exists on Indian environmental principles focusses on
outcomes, and the use of particular principles, to enable and justify
seemingly desirable outcomes, rather than the means or method of
reaching outcomes.

8. Ronald Dworkin, Taking Rights Seriously (7th imp., Duckworth

1994) 87.
9. John Rawls, A Theory of Justice (HUP 1971).
10. Dworkin (n 8) 87–88.

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 196 Lavanya Rajamani

The Precautionary Principle in International Law

Definition

Although there are many definitions of precaution, and versions of

the precautionary principle,11 the most cited and least controversial
is the definition in the Rio Declaration. Indeed the Indian Supreme
Court drew on elements of the Rio definition of ‘precaution’ while
adopting it into domestic law.12 The Rio Declaration provides:
In order to protect the environment, the precautionary
approach shall be widely applied by States according to their
capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as
a reason for postponing cost-effective measures to prevent
environmental degradation.13
The precautionary principle changes the role, as David Freestone
observes, of scientific data in environmental cases.14 Once a threat
to the environment has been identified, action should be taken

11. Precaution has been characterised by some as an approach and by

others as a principle. While this does not have any legal consequences, it
does reflect a divergence of views on the status and effect of this principle.
This chapter will use the term ‘principle’ in referring to precaution. See
Cass Sunstein, ‘Beyond the Precautionary Principle’ (2003) The University
of Chicago John M. Olin Law and Economics Working Paper No. 149, 2,
9–15 <http://www.law.uchicago.edu/files/files/149.crs_.precaution-new.
pdf> accessed 8 February 2017; Patricia Birnie, Alan Boyle and Catherine
Redgwell, International Law and the Environment (3rd edition, OUP 2009)
136, 152, 155.
12. Vellore (n 6), para 10.
13. UN Conference on Environment and Development (UNCED),
‘Rio Declaration on Environment and Development’ (14 June 1992) UN
Doc A/CONF. 151/26 (Vol I) Resolution 1, Annex I, reprinted in 31 ILM
874 (1992) (Rio Declaration), Principle 15.
14. David Freestone, ‘The Road from Rio: International
Environmental Law After the Earth Summit’ (1994) 6(2) Journal of
Environmental Law 193, 211.

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 The Precautionary Principle 197

to abate environmental interference, even though there may be

scientific uncertainty as to the effects of the activities.15 Science is
still relevant and influential in the identification of the risk, in that
there must be scientific basis for predicting environmental damage.
However, science, in particular the lack of certainty in relation to it,
should not be determinative in responding to that risk.
The precautionary principle has received widespread
recognition in international environmental law since it first
found expression in the 1982 World Charter for Nature. It finds
reflection, inter alia, in the 1992 Framework Convention on
Climate Change,16 1992 Convention on Biological Diversity,17
1995 Fish Stocks Agreement,18 2000 Biosafety Protocol,19 and 2001
Persistent Organic Pollutants Convention.20 The precautionary
principle is frequently invoked in cases before international courts
and tribunals.21 It has also been incorporated into numerous

15. Ibid.
16. United Nations Framework Convention on Climate Change
(adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS
107, reprinted in 31 ILM 849 (1992), Article 3(3).
17. Convention on Biological Diversity (adopted 5 June 1992, entered
into force 29 December 1993) 1760 UNTS 79, 143, reprinted in 31 ILM
818 (1992), preamble.
18. United Nations Conference on Straddling Fish Stocks and
Highly Migratory Fish Stocks, ‘Agreement for the Implementation of
the Provisions of the United Nations Convention on the Law of the Sea
of 10 December 1982 relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks’ (8 September
1995) UN Doc A/CONF.164/37, Article 6.
19. Cartagena Protocol on Biosafety to the Convention on Biological
Diversity (adopted 29 January 2000, entered into force 11 September
2003) 39 ILM 1027 (2000), Article 10(6).
20. Stockholm Convention on Persistent Organic Pollutants (POPs)
(adopted 22 May 2001, entered into force 17 May 2004) 40 ILM 532
(2001), Article 8(7).
21. See, for example, Southern Bluefin Tuna (New Zealand v. Japan;
Australia v. Japan) (Provisional Measures, order dated 27 August
1999) <www.itlos.org/fileadmin/itlos/documents/cases/case_no_3_4/

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 198 Lavanya Rajamani

national and regional legislations,22 and invoked in countless

domestic courts.

Prevention and Precaution

This steady rise of the precautionary principle is a characteristic

feature of the latest phase in the global evolution of approaches
designed to counteract ecological damage. Early phases were
characterised by ad hoc reactive responses to readily apparent and
indeed overwhelming environmental and public-health hazards.23
In the next phase, regulators took on board ‘preventive measures’
premised on risks that were certain to eventuate. And, the latest
phase is characterised by ‘precautionary measures’ taken in
circumstances where damage has not yet occurred, and indeed

Order.27.08.99.E.pdf> accessed 11 February 2017, para 80; MOX

plant (Ireland v. United Kingdom) (Provisional Measures, order dated
3 December 2001) <www.itlos.org/fileadmin/itlos/documents/cases/
case_no_10/Order.03.12.01.E.pdf> accessed 11 February 2017, para 84;
Land reclamation by Singapore in and around the Straits of Johor (Malaysia
v Singapore) (Provisional Measures, order dated 8 October 2003) ITLOS
Reports 2003, 10, 26 (para 99); WTO, EC Measures concerning Meat and
Meat products (Hormones)-Report of the Appellate Body (16 January 1998)
WT/DS26/AB/R and WT/DS48/AB/R [123] <www.wto.org/english/
tratop_e/dispu_e/hormab.pdf> accessed 11 February 2017; WTO,
European Communities: Measures Affecting the Approval and Marketing of
Biotech Products-Reports of the Panel (29 September 2006) WT/DS291/R,
WT/DS292/R and WT/DS293/R [7.89]; Case concerning Pulp Mills on the
River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, 61
(para 164).
22. See, for example, India [National Green Tribunal Act 2010 (NGT)
s 20], Canada (Canadian Environmental Protection Act 1999 s 2(1)(a));
Australia (Environment Protection and Biodiversity Conservation Act
1999 s 391), European Union (Consolidated Version of the Treaty on
the Functioning of the European Union [26 October 2012] OJ C 326/47
(TFEU), Article 191).
23. Nicolas de Sadeleer, Environmental Principles: From Political Slogans
to Legal Rules (OUP 2002), Chapter 3.

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 The Precautionary Principle 199

where there is no irrefutable proof that it will occur.24 Some scholars

see this progression as evidence of a genuine paradigm shift.25
Prevention is based on the concept of certain risk. Precaution is
not premised on a perfect understanding of any given risk, rather
it is sufficient that a risk be suspected, conjectured, or feared.26
Precaution is triggered by risk potential, and it often requires a
risk analysis.27 Since precaution leaves behind the realm of rational
certainty, precaution necessarily gives rise to controversy and its
application to conflict.28
In international law, precaution and prevention are considered
two distinct principles29 (unlike in EU law where they operate along
a continuum30). These two notions are, however, closely related.
The Seabed Disputes Chamber of the International Tribunal for
the Law of the Sea (ITLOS), in its Advisory Opinion, held that
precaution and prevention form part of the obligation of due
diligence:
The due diligence obligation of the sponsoring States requires
them to take all appropriate measures to prevent damage
that might result from the activities of contractors that they
sponsor. This obligation applies in situations where scientific
evidence concerning the scope and potential negative impact

24. Ibid.
25. See Arie Trouwborst, Evolution and Status of the Precautionary
Principle in International Law (Kluwer 2002).
26. de Sadeleer (n 23) 91–223.
27. See, for example, the WTO Agreement on the Application of
Sanitary and Phytosanitary Measures (15 April 1994) 1867 UNTS 493,
Article 5(7).
28. de Sadeleer (n 23).
29. Arie Trouwborst, ‘Prevention, Precaution, Logic and Law: The
Relationship between the Precautionary Principle and the Preventative
Principle in International Law and Associated Questions’ (2009) 2(2)
Erasmus Law Review 105; Philippe Sands and Jacqueline Peel, Principles of
International Environmental Law (3rd edition, CUP 2012) 200, 217.
30. See, for example, André Nollkaemper, The Legal Regime for
Transboundary Water Pollution (Martin Nijhoff/Graham and Trotman
1993) 72.

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 200 Lavanya Rajamani

of the activity in question is insufficient but where there are

plausible indications of potential risks.31
Precaution, it seems, cannot be limited to activities that are
recognised as involving a significant risk of harm. Rather it extends
to taking appropriate measures to identify activities that involve
a significant risk of harm,32 even if there is lack of full scientific
certainty.

Interpretation

There are several open questions in relation to the interpretation,

effect, and legal status of precaution. In relation to the interpretation
of this principle, it is unclear what degree of risk triggers application
of this principle, what specific action should be taken when the
application of this principle is triggered, and the extent to which
cost plays a role in the choice of measures to be taken in response
to the risk.33 The imprecision along all these axes can lead to
uncertainty in outcomes.
It is also unclear what consequences the application of this
principle has for the burden of proof in discrete cases. In stronger

31. Responsibilities and Obligations of States Sponsoring Person and Entities

with Respect to Activities in the Area (Advisory Opinion, order dated 1
February 2011) ITLOS Reports 2011, 10 (Advisory Opinion) 42–43
(paras 115 and 117).
32. International Law Commission, ‘Report of the International Law
Commission on the Work of its 53rd Session’ (23 April–1 June and 2
July–10 August 2001) UN Doc A/56/10, Draft Articles on Prevention
of Transboundary Harm from Hazardous Activities, with commentaries
(2001) 154.
33. See Jonathan Wiener, ‘Precaution’ in Daniel Bodansky, Jutta
Brunnée and Ellen Hey (eds) The Oxford Handbook of International
Environmental Law (OUP 2007) 597, 603. See generally for an earlier
comprehensive discussion of the elements of the precautionary principle,
John S. Applegate, ‘The Taming of the Precautionary Principle’ (2002) 27
William and Mary Environmental Law and Policy Review 13.

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 The Precautionary Principle 201

versions of this principle, the potentially risky activity is banned

until the proponent of the activity demonstrates that it poses no
(or acceptable) risk.34 In these versions, the burden of proof shifts
to the proponent of the activity to demonstrate that the activity is
benign, and a standard of proof—acceptable risk, no risk, etc.—is
set.35 This is the most controversial version of the precautionary
principle. Cass Sunstein, the most vocal of the principle’s sceptics,
argues that the strong version which shifts the burden of proof
to those who create potential risks—innovators, entrepreneurs,
developers and such like—to establish that a particular activity is
risk-free before it is allowed to proceed, is deeply problematic.36
Such an interpretation and application, he argues, could stifle
innovation and creativity, hamper scientific and technological
advancements and arguably result in regulatory paralysis.37 The
strong version of the precautionary principle does not find wide
support in international law.38 In the final judgment of the Pulp
Mills case, the International Court of Justice (ICJ) noted, ‘while a
precautionary approach may be relevant in the interpretation and
application of the treaty agreed between both states, it does not
follow that it operates as a reversal of the burden of proof’.39 The
Indian courts, as we shall see, citing international law, have adopted
the strong version of the precautionary principle.

34. Wiener, ibid., 606.

35. Ibid.
36. See Sunstein (n 11).
37. See ibid. See also Lucas Bergkamp, ‘Understanding the
Precautionary Principle (Part II)’ (2002) 2 Environmental Liability 67–81.
38. Earlier studies have found that the strong versions of the
precautionary principle occur in instruments that are aspirational, rather
than binding, or are entered into among relatively homogenous states, or
relate to particular hazardous activities. See, for example, Applegate (n 33);
Deborah Katz, ‘The Mismatch between the Biosafety Protocol and the
Precautionary Principle’ (2001) 13 Georgetown International Environmental
Law Review 949.
39. Pulp Mills case (n 21) 61, para 164.

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 202 Lavanya Rajamani

Where the precautionary principle has been legislated into

international, national or regional instruments, the instruments in
question offer greater precision in relation to the degree of risk that
triggers application of the principle, specific action to be taken in
response, the role that cost plays, and the burden of proof.40 This is
not the case, however, under Indian law, since the only legislative
occurrence of the precautionary principle merely exhorts the NGT
to take precaution into account in passing orders,41 leaving its
interpretation and application to the judiciary.

Legal Status

International legal status of this principle is still in evolution.

International courts and tribunals have remained cautious about
declaring that the principle has acquired customary status,42 only
going so far as to suggest that there is a trend towards making
precaution part of custom. In the 2011 Advisory Opinion, the
Seabed Disputes Chamber of ITLOS noted that ‘the precautionary
approach has been incorporated into a growing number of
international treaties and other instruments, many of which reflect
the formulation of Principle 15 of the Rio Declaration. In the view
of the Chamber, this has initiated a trend towards making this
approach part of customary international law.’43

40. See, for example, TFEU (n 22), Article 191, and Commission,
‘Communication from the Commission on the precautionary principle’
COM/2000/0001 final <http://eur-lex.europa.eu/legal-content/EN/TXT/
HTML/?uri=CELEX:52000DC0001&from=EN> accessed 9 February
2017.
41. NGT Act s 20.
42. The ITLOS refers to ‘prudence and caution’ in the Mox Plant case
and Southern Bluefin Tuna cases (n 21), without an explicit reference to
the principle or its status. In the Beef Hormones case (n 21), the WTO
Appellate Body opined that the precautionary principle was not yet a
principle of customary international law, and in the EC Biotech case (n 21),
the Appellate Body side-stepped the issue.
43. Advisory Opinion (n 31), para 135.

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 The Precautionary Principle 203

The Precautionary Principle in Indian Law

Context

Turning to Indian law, it is worth noting first that the Supreme

Court extended the fundamental right to life and liberty under
Article 21, to cover a ‘right of enjoyment of pollution-free water
and air’,44 over two decades ago. And that a vast, if not robust,
jurisprudence exists today on the environmental right in India.45
Second, the precautionary principle forms part of a set of
principles that the Indian courts weave together to operationalise
the environmental right and reach decisions in environmental
cases. Indian courts have embraced certain principles of
international and foreign environmental law—some established
and others nascent—to be ‘essential features of sustainable
development’,46 ‘imperative for preserving ecology’,47 and ‘part
of the environmental law of India’.48 These principles include the
precautionary principle,49 polluter pays principle,50 public trust
doctrine,51 principle of intergenerational equity,52 and principle

44. Subhash Kumar v. State of Bihar and Ors (1991) 1 SCC 598, para 7.
See also M. C. Mehta v. Union of India (1992) 3 SCC 256, para 2; Virender
Gaur v. State of Haryana (1995) 2 SCC 577, para 7.
45. Bhullar (n 4). See also Rajamani (n 7).
46. Vellore (n 6), para 11.
47. Karnataka Industrial Areas Development Board (n 6), para 77.
48. Research Foundation for Science Technology and Natural Resources
Policy (n 6), para 26.
49. Vellore (n 6), para 11; S. Jagannath (n 6), para 49. See also Karnataka
Industrial Areas Development Board (n 6), paras 77–79.
50. Indian Council for Enviro-legal Action (n 6), para 67. See also Calcutta
Tanneries case (n 6), para 19; Kamal Nath II (n 6), para 10.
51. Kamal Nath I (n 6), para 25. See also Intellectuals Forum (n 6),
paras 74, 75 and 76.
52. Ganesh Wood Products (n 6), paras 42 and 51.

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 204 Lavanya Rajamani

of sustainable development.53 The Court requires these principles

to be ‘applied in full force for protecting the natural resources of
this country’.54 Together these principles, considered ‘inseparable
ingredients of our environmental jurisprudence’,55 are intended to
breathe life into the environmental right in India. A subset of these
principles—the principles of sustainable development, precaution,
and polluter pays—are required statutorily to be taken into account
by the NGT in passing any order, decision, or award.56
An analysis of any of these principles, as other chapters of this
volume demonstrate, reveal inconsistencies in judicial reasoning,
but the precautionary principle, perhaps more than others, presents
an interesting case study. First, few courts, except for the Indian,
have directly applied the precautionary principle as a rule of
international law in domestic litigation.57 Second, the precautionary
principle, for all its imprecision, has acquired particular, albeit
contested, meaning in international law, and it arguably lends itself
more readily to an assessment of whether it has been properly (or
not) applied in domestic litigation. Third, the Supreme Court in
the Vellore case58 adopted the controversial strong version of the
precautionary principle into Indian law. This case is oft cited in
the academic literature and is universally admired as a landmark
judgment illustrative of the creativity, intellectual openness, and
mettle of Indian Courts. Fourth, in nearly two decades, the Indian
courts have, arguably, developed their own distinct version of this

53. Vellore (n 6), para 10. See also Taj Trapezium case (n 6), paras 30 and
32; Narmada Bachao Andolan (n 6), para 123.
54. Intellectuals Forum (n 6), para 81.
55. N. D. Jayal v. Union of India (2004) 9 SCC 362, para 25.
56. NGT Act s 20.
57. Chris Tollefson and Jamie Thornback, ‘Litigating the Precautionary
Principle in Domestic Courts’ (2008) 19 Journal of Environmental Law
and Practice 34, 40 (noting that one prominent exception to this rule is the
Vellore case).
58. Vellore (n 6).

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 The Precautionary Principle 205

principle, and thus the Vellore case, as well as the case law it has
spawned, merits careful scrutiny.

Definition

In Vellore, the Supreme Court identified three elements to

the precautionary principle. The first is that ‘[e]nvironmental
measures—by the State Government and the statutory
authorities—must anticipate, prevent and attack the causes of
environmental degradation’.59 The second, borrowing from the Rio
principle60 formulation, is that ‘[w]here there are threats of serious
and irreversible damage, lack of scientific certainty should not be
used as a reason for postponing measures to prevent environmental
degradation’.61 The third element shifts the burden of proof to the
developer/industrialist.62 The first element, by itself, reflects the
principle of prevention. The second captures the essence of the
precautionary principle—a step beyond mere prevention.63 And,
the third element flags the precautionary principle, as conceived of
by the Court, as the strong version. Although inspired in part by
the Rio principle, these elements are now part of domestic law, and
derive their force and influence from domestic law.
The Vellore case is telegraphic in its treatment of the
precautionary principle. It does not raise or address any of the
interpretational questions that plague the precautionary principle.
It does not clarify what degree of risk triggers application of this
principle, what specific action should be taken when the application
of this principle is triggered, and the extent to which cost plays a
role in the choice of measures to be taken in response to the risk.

59. Ibid., para 11.

60. Rio Declaration (n 13), Principle 15.
61. Vellore (n 6), para 11. Note the deletion of the term ‘cost-effective’
that occurs in the Rio definition from which this is drawn.
62. Ibid.
63. See Sunstein (n 11).

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 206 Lavanya Rajamani

Precaution or Prevention: The Role

of Science, Risk and Uncertainty

The Vellore case did not lend itself on the facts to an application
of the precautionary principle as defined by the Court. Although
there is no consensus definition of the precautionary principle
in the literature, at the core of this principle is the notion, as we
have seen earlier, that ‘decision makers should act in advance
of scientific certainty to protect the environment’.64 The case
was brought before the Court by a citizens’ group to compel
governmental agencies to exercise their statutory powers and take
action against 900 odd tanneries that were discharging untreated
effluent, contrary to existing environmental laws.65 On the facts
there was no ‘threat’ of damage, there was serious and in some cases
irreversible damage. There is neither ‘scientific uncertainty’ at play,
nor any question of postponing measures to prevent environmental
degradation. The existing laws prohibited such discharge, and the
regulatory authorities had attempted over the previous 10-year
period, to persuade the tanners to construct effluent treatment
plants and control their pollution. The facts that led to the Vellore
case are an instance of inadequate governmental action in the face
of serious pollution and obvious damage. Since the Court merely
recited the chosen elements of the precautionary principle before
declaring it to be part of both domestic environmental law and
arguably of custom, it is unclear how the Court perceived the
engagement of the precautionary principle on the facts. It could, of
course, be argued that the Court’s reference to the precautionary
principle is mere obiter. If not for the fact, that the Court, inter alia,
directed the relevant authority ‘to implement the “precautionary
principle” and the “polluter pays” principle’.66

64. Andrew Jordan and Timothy O’ Riordan, ‘The Precautionary

Principle in Contemporary Environmental Politics’ (1995) 4(3)
Environmental Values 191, 194. See also de Sadeleer (n 23).
65. Vellore (n 6), paras 1 and 4.
66. Ibid., para 27.

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 The Precautionary Principle 207

In subsequent judgments, the Court, while reciting the principle

approvingly, uses it to emphasise the need for scientific inputs before
adjudicating complicated issues of pollution to environment,67 or to
advocate general ‘precautionary measures’.68 It has also, in several
cases, highlighted the first element of the Court’s definition, namely
‘[e]nvironmental measures must anticipate, prevent, and attack the
causes of environmental degradation’.69
Few of the Indian cases deal with suspected risks.70 Most of
the cases that cite the precautionary principle, use it to support a
position that reflects the intuitive good sense that it is better to be

67. See A. P. Pollution Control Board v. Prof. M.V. Nayudu and Ors (1999)
2 SCC 718. The Court in paras 26 to 34 traced the development of the
precautionary principle, and identified the ‘uncertainty of science in
the environmental context’ as the real basis of the principle. The Court
proceeded after a lengthy explanation of this principle to use it primarily
to highlight the value of technical inputs, and to recommend the addition
of technical and judicial members on environmental appellate authorities
and tribunals. This is another judgment that merits more considered
analysis for, although it fleshes out the precautionary principle, it uses
‘inadequacies’ and ‘uncertainties’ of science interchangeably.
68. T. N. Godavarman Thirumulkpad v. Union of India and Ors (2006) 1
SCC 1, para 3 (advocating ‘all precautionary measures when forest lands
are sought to be directed for non forest use’); see also Karnataka Industrial
Areas Development Board (n 6), para 100.
69. Karnataka Industrial Areas Development Board (n 6), paras 77, 78
and 94.
70. The Supreme Court in N. D. Jayal, following Narmada also
held that the precautionary principle was not engaged as there was ‘no
difference of opinion among the experts’. See N. D. Jayal (n 55), para 21.
Justice Dharmadhikari (dissenting) emphasised ‘scientific uncertainty’,
but used the precautionary principle to support additional safeguards to
ensure the safety of the Tehri dam located in an earthquake prone zone in
the Himalayan valleys, ibid., paras 120–28. The issue, however, was not
one of scientific uncertainty, but of the need for and feasibility of (for want
of competent expertise in India) conducting the 3D non-linear analysis on
the dam.

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 208 Lavanya Rajamani

safe than sorry.71 Those cases that use the precautionary principle
to suggest more are, in reality, engaging the principle of prevention.
For instance, in A. P. Pollution Control Board II v. Prof. M.V. Nayudu
and Ors, the Supreme Court considered whether a hazardous
industry should be permitted to establish itself within 10 km of
reservoirs used for drinking water. The Court noted that ‘[t]his is
exactly where the ‘precautionary principle’ comes into play. The
chance of an accident, within such close proximity of the reservoirs
cannot be ruled out ...’.72 While the Court did seek to establish
the level of acceptable societal risk to be taken in the context of
drinking water, this is not a case involving ‘scientific uncertainty’.
There is an element of uncertainty or chance here—the accident
may or may not happen—but there is no scientific uncertainty as to
the consequences, should the accident occur. This is, in essence, an
illustrative use of the principle of prevention, not precaution.
Another case in point is M. C. Mehta v. Union of India and
Ors (Taj Trapezium case),73 where the Supreme Court ordered 292
industries in the vicinity of the Taj Mahal to change their fuel use
from coke/coal to natural gas, so as to protect the Taj. The Court
raised several important issues but did not address them. First, the
Court noted that ‘atmospheric pollution in TTZ [Taj Trapezium]
has to be eliminated at any cost’,74 signalling that cost-effectiveness
is not an issue when where the interest sought to be protected

71. See, among others, Court on its own motion v. Union of India
(2013) 3 SCC 247 (citing precaution as a reason for passing directions
to protect the environment and make better arrangements in relation to
the Amarnath yatra); M. Palaniswamy v. State of Tamil Nadu (2012) SCC
OnLine Mad 2125 (the Madras High Court citing the precautionary
principle as justification for upholding additional government licensing
requirements to prevent illegal mining); Om Prakash Bhatt v. State of Uttar
Pradesh (1996) SCC OnLine All 608 (the Allahabad High Court holding
that hotels and tourist lodges are required to follow the precautionary
principle in choosing sites).
72. A. P. Pollution Control Board II (n 4), para 64.
73. Taj Trapezium case (n 6), paras 34 and 35.
74. Ibid., para 33.

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 The Precautionary Principle 209

is sufficiently important. In its words, ‘[n]ot even one per cent

chance can be taken when—human life apart—the preservation
of a prestigious monument like the Taj is involved’.75 The Court
did not elaborate on the question of costs, in particular on the
nature of the harm that would justify an ‘at any cost’ response, and
whether its assessment would be different if the costs were borne
by the State or by private parties. The Court also held that the
‘onus of proof is on industry to show that its operation with the aid
of coke/coal is environmentally benign’.76 This, like in other cases,
is a high standard of proof, and will be discussed later. The Court
added, however, that ‘[i]t is, rather, proved beyond doubt that the
emissions generated by the use of coke/coal by the industries in
TTZ are the main polluters of the ambient air’.77 The Court asserts
rather than argues the engagement of the precautionary principle
and, therefore, brings it to bear in this case which does not rest
on scientific data. Next, although the onus of proof is shifted to
the industry, the Court cursorily makes a finding that it had been
proven beyond doubt that the industries were the main polluters.78
Yet, if the impacts are proven beyond doubt, the engagement of the
precautionary principle itself is questionable.
In a similar vein, most High Court cases that refer to the
precautionary principle do so to support the use of precautionary
measures in the face of certain (not uncertain) environmental
harm. In very few cases is ‘scientific uncertainty’, in relation to
the impacts, at issue. To take a representative sample, in Ramgopal
Estates v. State of Tamil Nadu,79 the Madras High Court applied the
precautionary principle to require a proposed petrochemical park
to conform to certain conditions laid down by the Government and
National Environmental Engineering Research Institute (NEERI),

75. Ibid.
76. Ibid.
77. Ibid.
78. Ibid.
79. Ramgopal Estates v. State of Tamil Nadu (2007) SCC OnLine Mad
220.

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 210 Lavanya Rajamani

so as to mitigate environmental impacts. The Kerala High Court in

Soman v. Geologist80 held that mining companies are obliged on the
basis of the precautionary principle and polluter pays principle to
fill mining pits once mining reaches groundwater level. In Smoke
Affected Resident’s Forum v. MCGM,81 the Bombay High Court
applied the precautionary principle to require a particular model
of taxis to convert to compressed natural gas (CNG)/liquefied
petroleum gas (LPG) or be phased out, as this is necessary to
protect the health of Mumbai citizens. The certainty of impacts was
not in question in any of these cases; rather these cases considered
possible responses to predictable, proven and certain harms.
The cases before the NGT follow this trend. For instance, in Jeet
Singh Kanwar v. MoEF and Ors,82 NGT quashed an environmental
clearance for a coal-based thermal power plant on the grounds, inter
alia, that the MoEF had not properly considered the precautionary
principle. In NGT’s view, had the MoEF done so, it would not
have granted a clearance due to the excessive pollution caused
in the nearby areas by the use of coal as a fuel.83 In this case, as
in other Supreme Court and High Court cases, the NGT is not
dealing with uncertain impacts—pollution caused by coal is well
documented—but rather with possible responses to proven harms.
In reality, this too is an exercise of the preventive principle. Indeed,
in Sarang Yadwadkar and Ors v. The Commissioner, Pune Municipal
Corporation and Ors,84 the NGT defines the precautionary principle
as the principle of prevention. The NGT notes that ‘the principle of
precaution involves anticipation of environmental harm and taking
measures to avoid it or to choose the least environmentally harmful

80. Soman v. Geologist (2004) SCC OnLine Ker 510.

81. Smoke Affected Residents Forum v. Municipal Corporation of Greater
Mumbai and Ors (2002) SCC OnLine Bom 372.
82. Jeet Singh Kanwar v. MoEF and Ors, Appeal No. 10/2011 (T),
judgment dated 16 April 2013, NGT (Principal Bench).
83. Ibid., para 24.
84. Sarang Yadwadkar and Ors v. the Commissioner, Pune Municipal
Corporation and Ors, Application No. 2/2013, judgment dated 11 July
2013, NGT (Principal Bench).

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 The Precautionary Principle 211

activity’.85 Similarly in S. P. Muthuraman and Ors v. Union of India,

NGT notes that the ‘precautionary principle is a proactive method
of dealing with the likely environmental damage’, and that ‘the
purpose should be to avert major environmental problem before
the most serious consequences and side effects would become
obvious’.86 In other words, ‘the precautionary principle is a tool for
making better health and environmental decisions’ as ‘it aims to
prevent at the outset rather than manage after the fact’.87
In M/s Sterlite Industries (India) Ltd Thoothukudi v.The Chairman
Tamil Nadu Pollution Control Board, Chennai,88 the NGT identified
the essentials for the invocation of the precautionary principle as: ‘(a)
[t]here should be an imminent environmental or ecological threat
in regard to carrying out of an activity or development; (b) [s]uch
a threat should be supported by reasonable scientific data; and
(c) [t]aking precautionary, preventive or prohibitory steps would
serve the larger public and environmental interest’.89 Although
precaution here too is conflated with prevention—with no explicit
requirement for scientific uncertainty as to the harm or serious/
irreversible damage in this list of essentials—the invocation of the
precautionary principle is gradually being interpreted to require a
robust base of evidence on which environmental decision-making
can be built. In the case of Shoba Phadanvis v. State of Maharashtra, in
the context of protecting forest cover by prohibiting and preventing
illegal cutting and smuggling of seasonal wood, the Tribunal asked
the state government to present necessary data, reports, and action

85. Ibid., para 30.

86. S. P. Muthuraman and Ors v. Union of India, OA No. 37/2015,
judgment dated 7 July 2015, NGT (Principal Bench), para 158.
87. Ibid.
88. M/s Sterlite Industries (India) Ltd Thoothukudi v. The Chairman
Tamil Nadu Pollution Control Board, Chennai, Appeal No. 22/2013 (SZ)
and Appeal No. 23/2013 (SZ), judgment dated 8 August 2013, NGT
(Principal Bench).
89. Ibid, para 122.

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 212 Lavanya Rajamani

plan based on the ‘precautionary principle’.90 In Samta and Anr

v. MoEF and Ors,91 NGT interpreted the precautionary principle
as requiring a proper prior assessment of environmental impacts,
before grant of an environmental clearance. It is evident thus that
NGT is beginning to interpret the principle so as to require a robust
evidence base for appropriate decisions to prevent environmental
harm.
Although the vast majority of the case law interprets precaution
in a broad fashion, blending precaution and prevention, and diluting
the requirement for either potential irreversible damage and/or
scientific uncertainty, a narrower interpretation of the precautionary
principle is evident in some cases after Vellore, notably in Narmada
Bachao Andalon.92 The Supreme Court noted that the principle is
not engaged ‘where the effect on ecology or environment of setting
up of an industry is known’.93 Instead ‘what has to be seen is that
if the environment is likely to suffer, then what mitigative steps can
be taken to off set the same’.94 In other words, where the effects
of a project are known, it is not precaution but the principle of
sustainable development that comes into play.95 This presumably
then engages a balancing exercise between the environmental and
social costs of the activity and development imperatives. Needless
to say, there are multiple risks associated with large dam projects,
but the Court here, interpreting precaution narrowly, asks in not so
many words if the extent of damage likely to be inflicted is unknown
or known. If it is known, then other principles such as sustainable
development should play a role in the decision-making.

90. Shoba Phadanvis v. State of Maharashtra, Application

No. 135(THC)/2013, judgment dated 13 January 2014, NGT (Western
Zone Bench).
91. Samta and Anr v. MoEF and Ors, Appeal No. 9/2011, judgment
dated 13 December 2013, NGT (Southern Zone Bench).
92. Narmada Bachao Andolan (n 6), paras 122 and 123.
93. Ibid, para 123.
94. Ibid.
95. Ibid.

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 The Precautionary Principle 213

In Democratic Youth Federation of India v. Union of India,96 the

Supreme Court created a committee to consider the harmful
impacts of the pesticide endosulfan (a risk assessment, as it were)
and in the meantime, in light of the precautionary principle, the
Court banned its use. This judgment adopts a strong version of the
principle, but in launching a risk assessment, and banning the use
of endosulfan in the interim, it engages the precautionary principle
under conditions of scientific uncertainty in relation to impacts.
In Bhanwar Singh v. Union of India,97 the Rajasthan High
Court sought to protect the Chittorgarh Fort, by halting all
blasting and mining activities within a 10-km radius of the Fort.
Notwithstanding conflicting expert reports, the Court invoked the
precautionary principle and argued, inter alia, that there is ‘cogent
material available on record’ that shows that blasting and mining
operations have caused damage to the fort structures, and that in
the case of such monuments of national importance, ‘no chance
even one per cent can be taken’.98 Although the Court did not
explicitly address the issue of ‘scientific uncertainty’ as an element
of the precautionary principle, in the face of conflicting scientific
evidence, it applied the principle to decide in favour of protecting
the environment and architectural heritage.
In Bombay Environmental Action Group v. State of Maharashtra,99
the Bombay High Court held that in relation to the construction
of a flyover, the precautionary principle has no applicability. The
Court came to this conclusion, first, because there is no scientific
uncertainty regarding the environmental impact of building the
flyover, and second, because a flyover is not itself a polluting
industry and thus if it results in increased vehicular traffic and
more air pollution, it cannot be attributed to the flyover. Such

96. Democratic Youth Foundation of India v. Union of India (2011) (15)

SCC 530.
97. Bhanwar Singh v. Union of India (2012) SCC OnLine Raj 1703.
98. Ibid., paras 97 and 99.
99. Bombay Environmental Action Group v. State of Maharashtra (2001)
SCC OnLine Bom 399.

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 214 Lavanya Rajamani

cases, however, which consider if scientific uncertainty exists before

engaging the precautionary principle, are few and far between.

Precaution, Sustainable Development

and Polluter Pays

In the Vellore case, the Supreme Court held that the precautionary
principle and polluter pays principle are ‘essential features of
sustainable development’.100 In the subsequent case of Research
Foundation for Science Technology and Natural Resource Policy v.
Union of India,101 the Court, while considering application of the
precautionary principle to the enterprise of ship breaking at Alang
in Gujarat, cited T. N. Godavarman Thirumalpad v. Union of India
and Ors102 approvingly. The Court noted that ‘while applying the
concept of “sustainable development” one has to keep in mind the
“principle of proportionality” based on the concept of balance. It is
an exercise in which we have to balance the priorities of development
on one hand and environmental protection on the other hand’.103
The notion of proportionality, albeit a different understanding of
it, finds resonance in the expression of the precautionary principle
in EU law. In EU law, the notion of proportionality is engaged
in relation to the response measures that need to be taken to
address the identified risk potential—the more serious and likely
the risks, the greater the need for measures to be taken.104 This
is not the context in which the Godavarman Court raises or the

100. Vellore (n 6), para 11.

101. (2007) 15 SCC 193, para 10.
102. (2002) 10 SCC 606.
103. Research Foundation for Science Technology and Natural Resource
Policy (n 101).
104. Commission of the European Communities, ‘Communication
from the Commission on the Precautionary Principle, Brussels’ COM
(2000) 1 final t 18.

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 The Precautionary Principle 215

Research Foundation Court cites the proportionality principle.105

In introducing the environment–development balance into the
application of the precautionary principle, the Court drained the
precautionary principle of particular meaning, and made these
discrete (albeit related) notions fungible. This is evident not just
in the application of the precautionary principle in the Vellore case
but also in case law to follow. Most of the case law treats these
principles, among others, as interchangeable and fungible, pulling
precaution out of the mix only to justify preventive action.
NGT, for instance, frequently invokes and conflates precaution
with the polluter pays principle.106 In Rayons Enlighting Humanity
and Anr v. Ministry of Environment and Forests and Ors, NGT,
referring to the precautionary principle, fined a polluting plant and
directed the ‘taking [of] all measure which are necessary for the
purpose of restoration of environment and the precautions which
would help in preventing further degradation of environment and
damage to public health’.107 The invocation of the precautionary
principle in relation to ‘restoration’ is revealing, as the precautionary
principle arguably applies where there are threats of serious or
‘irreversible’ damage. The ‘threats’ in this case have come to pass,
and the damage has been done but is presumably not ‘irreversible’,
hence the possibility of restoration. The NGT has also used these

105. See also T. N. Godavarman Thirumulkpad v. Union of India and Ors

(2011) 7 SCC 338, para 119.
106. See, for example, Hindustan Coco Cola Beverages Pvt. Ltd v. Member
Secretary,West Bengal PCB and Ors, Appeal No. 10/2011, judgment dated
19 March 2012, NGT (Principal Bench). See also M/s Goodwill Plastic
Industries and Anr v. Union Territory Chandigarh and Anr, Application
No. 26/2013 (THC), judgment dated 8 August 2013, NGT (Principal
Bench).
107. Rayons Enlighting Humanity and Anr v. Ministry of Environment
and Forests and Ors, OA No. 186/2013, judgment dated 24 October 2013,
NGT (Principal Bench), para 44.

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 216 Lavanya Rajamani

two principles—precaution and polluter pays—to justify bank

guarantees in the context of environmental compliance.108
The NGT also frequently melds the principles of precaution
and sustainable development.109 For instance, in S. P. Muthuraman
and Ors, NGT noted that ‘the principle of sustainable development
by necessary implication requires due compliance to the doctrine
of balancing and precautionary principle’.110 In this case, the
precautionary principle was cited as part of the rationale for
striking down MoEF office memoranda that allowed the grant
of environmental clearances in cases where construction activity
had commenced without obtaining the requisite clearances before
hand. The NGT noted that the ‘precautionary principle may lose
its material relevancy where the projects have been completed and
even irreversible damage to the environment and ecology has been
caused’.111 In Gurpreet Singh Bagga v. Ministry of Environment,
the NGT opined that one of the fundamental bases of the
precautionary principle is that ‘all steps should be taken to protect
the environment while permitting sustainable development’.112
Such melding of the principles of sustainable development and
precaution, as discussed earlier, imports into the application of
the precautionary principle a ‘balancing’ exercise—a balancing
between development, ecological, and social imperatives. The role
that the various elements of precaution occasionally asserted by

108. See State Pollution Control Board, Odisha v. Swastik Ispat Pvt. Ltd,
Appeal No. 68/2012 and 69/2012, judgment dated 09 January 2014, NGT
(Principal Bench).
109. National Green Tribunal Bar Association v. Ministry of Environment
and Forests and Ors, MA No. 685/2013 and MA No. 708/2013 in OA
No. 171/2013, judgment dated 28 November 2013, NGT (Principal
Bench).
110. S. P. Muthuraman (n 86), para 158.
111. Ibid.
112. Gurpreet Singh Bagga v. Ministry of Environment and Forests, OA
No. 184/2013, judgment dated 18 February 2016, NGT (Principal
Bench), para 94.

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 The Precautionary Principle 217

the courts—scientific uncertainty, irreversible damage, burden of

proof—play in this balancing exercise, remains unclear.
In addition to the polluter pays and sustainable development
principles, NGT also melds the precautionary principle with the
principle of intergenerational equity. It has argued, for instance, that
‘it is better to take precaution today than suffer the consequences
tomorrow’ and that ‘public health and the future of the coming
generations’ required the activity in question to be moved from the
sensitive site.113 Indeed, the NGT has noted the need to analyse all
these principles in an ‘esemplastic’ fashion (that is, pulling together
diverse elements into a unified whole).114
Finally, it is also worth noting that NGT, like the Supreme
Court and High Courts, interprets the precautionary principle as
expanding its jurisdiction. For instance, in the Goa Foundation and
Anr v. Union of India and Ors, the NGT noted that ‘an anticipated
or likely injury to environment can be a sufficient cause of action,
partially or wholly, for invoking the jurisdiction of the Tribunal’.115
And ‘inaction in the facts and circumstances of a given case
could itself be a violation of the precautionary principle, and
therefore bring it within the ambit of jurisdiction of the Tribunal,

113. Rayons Enlighting Humanity and Anr v. Ministry of Environment and

Forests and Ors, Application No. 86/2013, judgment dated 18 July 2013,
NGT (Principal Bench), paras 47 and 48. See also Sarang Yadwadkar
(n 84), para 29; The Sarpanch Grampanchayat and Ors v. MoEF, Appeal
No. 3/2011, judgment dated 12 September 2011, NGT (Principal Bench),
para 17.
114. Court on its own motion v. State of Himachal Pradesh and
Ors, Application No. 237(THC)/2013 (CWPIL No. 15/2010) and
Application No. 238(THC)/2013 (CWP No. 5087/2011) and Application
No. 239(THC)/2013 (CWP No. 5088/2011), judgment dated 6 February
2014, NGT (Principal Bench), paras 15 and 19.
115. Goa Foundation and Anr v. Union of India and Ors, MA
No. 49/2013 in Application No. 26/2012, judgment dated 18 July 2013,
NGT (Principal Bench), para 42. See also Vitthal Gopichand Bhungase v.
The Ganga Sugar Energy Ltd and Ors, MA No. 37/2013, judgment dated 20
December 2013, NGT (Western Zone Bench).

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 218 Lavanya Rajamani

as defined under the NGT Act’.116 The jurisdiction of the NGT

extends to civil cases where a substantial question relating to the
environment is involved, arising out of the implementation of the
listed environmental statutes,117 as well as cases challenging certain
regulatory approvals.118 Although the NGT is required to apply
the precautionary principle in reaching decisions,119 this principle
is neither relevant nor necessary in the context of its exercise of
jurisdiction, which in any case is extensive.

Burden and Standard of Proof

A final element of the precautionary principle, as defined by the

Supreme Court in the Vellore case, is that it shifts the burden of
proof to the industrialist to demonstrate that the proposed activity
is ‘environmentally benign’.120 It does so without a discussion of
the possible adverse consequences of such a reversal of the burden
of proof, namely that it could potentially lead to a chilling effect
on technological innovation and industrial activity. Interestingly,
later Supreme Court and High Court cases assert that ‘unless an
activity is proved to be environmentally benign in real and practical
terms, it is to be presumed to be environmentally harmful’.121
Industrialists are required to discharge their burden by showing
the absence of a ‘reasonable ecological or medical concern’.122 If
‘insufficient evidence is presented by them to alleviate concern
about the level of uncertainty, then the presumption should

116. Goa Foundation, ibid.

117. NGT Act s 14.
118. Ibid., s 16.
119. Ibid., s 20.
120. Vellore (n 6), para 11.
121. M. C. Mehta v. Union of India and Ors (2002) 4 SCC 356 (Delhi
Vehicular Pollution case), para 10; Smoke Affected Residents Forum (n 81),
para 19; P. K. Nayyar and Ors v. Union of India and Ors (2013) SCC OnLine
Del 201, para 11.
122. A. P. Pollution Control Board (n 67), para 39.

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 The Precautionary Principle 219

operate in favour of environmental protection’.123 The NGT has

also similarly interpreted the precautionary principle as requiring
the project proponent to prove that the project will not cause ‘any
injurious effects’ on the environment. It rationalises this reversal of
the burden of proof on grounds of fairness, in that in its absence,
the ‘common citizen’ would be required to provide scientific and
technological data in order to preserve status quo and protect the
environment.124 Some High Court cases add a further element
to the standard of proof. The Kerala High Court in Sujatha v.
Prema125 identified the standard of proof as the ‘risk of harm to the
environment or to human health that has to be decided in public
interest and according to a reasonable person’s test’.
The task of proving an activity environmentally benign,
whether on a reasonable person’s test or purely on scientific data,
is problematic, in part because the issue is misconceived. The
real question is not whether the activity is benign—few are—but
whether the activity has any redeeming social benefit, and if yes,
how it might be balanced with the risks it entails, and what steps
may be taken to limit its environmental impact. Intriguingly, the
Vellore Court, after engaging the precautionary principle and
shifting the burden of proof to the industrialist to demonstrate that
the activity is benign, proceeds to engage in a delicate balancing
exercise between competing interests. In subsequent cases too, the
courts engage in such a balancing exercise in their application of
the precautionary principle. As for instance, in the M. C. Mehta
(Delhi Vehicular Pollution) case, the Supreme Court noted the need
to balance the needs of transport with the needs of the public.126

123. Ibid.
124. Pandurang Sitaram Chalke and Anr v. State of Maharashtra, OA
No. 14/2012, judgment dated 01 October 2013, NGT (Western Zone
Bench).
125. Sujatha S. v. A. Prema and Ors (2005) SCC OnLine Ker 295,
para 14. See also Madireddy Padma Rambabu v. District Forest Officer (2001)
SCC OnLine AP 638.
126. Delhi Vehicular Pollution case (n 121).

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 220 Lavanya Rajamani

Similarly, in Radheshyam and Ors v. State of Chhattisgarh and Ors,127

the Chhattisgarh High Court found that even where a public
purpose existed, as for instance, in the establishment of thermal
power plants, the precautionary principle had to be enforced,
thus underscoring the need to balance competing interests with
the words: ‘while considering the existence of public purpose the
issues of environmental degradation and damage to ecosystem
have to be kept in mind’.128 It appears then that although on paper
an application of the precautionary principle requires the polluter
to discharge his or her burden of proof that the activity they are
engaged in is ‘benign’, in actual fact the courts rely on a pragmatic
balancing exercise, to which the polluter is expected to weigh in.
This dichotomy between text and practice is intriguing and merits
further examination, albeit not in this chapter.

Legal Status

In the Vellore case, the Supreme Court held that the precautionary
and polluter pays principles are part of domestic environmental
law, as well, arguably, as customary international law.129 In the
Court’s reasoning, Articles 21, 47,130 48A131 and 51A(g)132 of
the Constitution of India, and India’s network of statutory
environmental laws were sufficient to render the precautionary and

127. Radheshyam and Ors v. State of Chhattisgarh and Ors MANU/

CG/0490/2012.
128. Ibid., para 30.
129. Vellore (n 6), paras 13, 14 and 15.
130. Article 47 creates a duty for the state to raise the level of nutrition
and the standard of living and to improve public health.
131. Article 48A reads, ‘[T]he State shall endeavour to protect and
improve the environment and to safeguard the forests and wild life of the
country’.
132. Article 51A (g) imposes a duty on every citizen ‘to protect and
improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures ...’.

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 The Precautionary Principle 221

polluter pays principles part of domestic environmental law.133 It is

worth noting that these constitutional provisions contain a mandate
‘to protect and improve’ the environment, and the network of
environmental laws seek to further this mandate. At the time, there
was no specific reference anywhere to the concept of precaution
(as a step ahead of prevention), and the Court did not identify any
either. Further, the Court declared that ‘sustainable development
as a balancing concept between ecology and development has been
accepted as a part of the Customary International Law although its
salient features are yet to be finalized by international law jurists’.134
It reached this conclusion by reference to a series of soft law
international instruments, including the Rio Declaration, Agenda
21, and the Brundtland Report.135 It listed several principles as
‘salient principles of “Sustainable Development”’136 and identified
the precautionary and polluter pays principles as ‘essential features
of sustainable development’, and noted that ‘[e]ven otherwise once
these principles are accepted as part of the Customary International
Law there would be no difficulty in accepting them as part of
the domestic law’.137 The guarded phrasing of this last statement
(‘even otherwise’ and ‘once’) appears to leave the question, of
whether precaution and polluter pays are custom, open. However,
subsequent judgments have understood this case to suggest that
these principles are custom.138 Presumably, although this is left
unsaid, on the ground that if sustainable development is custom,

133. Vellore (n 6), paras 13 and 14.

134. Ibid., para 10. See for an incisive contra-argument Vaughan Lowe,
‘Sustainable Development and Unsustainable Arguments’ in Alan Boyle
and David Freestone (eds) International Law and Sustainable Development
(OUP 1999) 19 (arguing that since sustainable development is a mediating
principle, in the galaxy of other rights and principles it cannot have
sufficient legal content to be norm-creating).
135. Vellore (n 6).
136. Ibid., para 11.
137. Ibid., paras 11 and 15.
138. See, for example, Research Foundation for Science Technology National
Resource Policy v. Union of India and Anr (2005) 10 SCC 510, para 16,

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 222 Lavanya Rajamani

then precaution and polluter pays, its essential features, are also
custom. Indeed, the Canadian courts have also cited the Indian
courts as recognising precaution as custom.139
It is worth noting that both precautionary and polluter pays
principles are contested in international law. As we have seen,
although there are numerous references to the precautionary
principle in international law,140 there are divergent views on
whether the precautionary principle is properly so called, how it
might best be defined, what its precise content is, what obligations
it creates and on whom, and whether, in its strong version, it lends
itself to actualisation.141 As such to characterise this principle as
custom (if indeed this is what the Vellore Court did), without the
benefit either of serious forensic analysis of state practice and opinio
juris, or at least of compelling argument, is problematic.

The Precautionary Principle

beyond the Environment

Finally, a word on the use of the precautionary principle by the

Indian Courts in non-environmental cases. There are several
High Court cases that appear to further muddy the waters of the
precautionary principle. In the case of Naya Bans Sarv Vyapar
Association v. Union of India,142 the High Court of Delhi was faced
with a constitutional challenge to the Cigarettes and Other Tobacco
Products (Prohibition of Advertisement and Regulation of Trade

and quoted with approval in Research Foundation for Science Technology and
Natural Resources Policy (n 6), para 35.
139. See Canada Ltee (Spraytech, Société d’arrosage) v. Hudson (Town)
(2001) SCC 40 (Supreme Court of Canada). See also Josette Wier v.
Environmental Appeal Board and Minister of Forests of the Province of British
Columbia (2003) BCSC 1441 (Supreme Court of British Columbia); Yates
v. Fedirchuk [2011] OJ No. 4718 (Supreme Court of Ontario).
140. For an extensive list of references, see de Sadeleer (n 23).
141. See Sunstein (n 11).
142. (2012) SCC OnLine Del 5714.

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 The Precautionary Principle 223

and Commerce, Production, Supply and Distribution) Act 2003,

and the Delhi Prohibition of Smoking and Non-smokers Health
Protection Act 1996 (Prohibition Act), to the extent they prohibit
wholesale of cigarettes or any other tobacco products within 100
yards of any educational institution. The argument was raised that
the failure of the legislation to distinguish between wholesale and
retail tobacco sellers was arbitrary, because students would be
unaffected by the presence of the wholesale sellers. In rejecting this
argument, the Court applied the precautionary principle to ‘err on
the side of the society as a whole’. In doing so, the Court extended
the precautionary principle beyond the environmental realm, side
stepped the need to conduct factual enquiries into the effect of
the law in question, and to justify broad categorisations on fuzzy
grounds.

An Indigenous Version of
the Precautionary Principle

Although the foregoing survey of Indian case law—Supreme Court,

High Courts, and NGT—does not reveal a consistent and linear
development of the principle, there are several recurring elements
that can be culled from the application of this principle by the
Indian courts:
• Precaution is frequently conflated with the commonsensical
notion that prevention is better than a cure.
• The threat of serious or irreversible damage—an element of
the original definition of precaution adopted by the Vellore
Court)—may be at issue, but is not generally considered
an essential condition for the engagement of the principle;
rather, in most cases, the principle is invoked when serious
damage is ongoing.
• Scientific uncertainty—another element of the original
definition of precaution adopted by the Vellore Court—may
be at issue, but it is not generally considered an essential

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 224 Lavanya Rajamani

condition for the engagement of this principle; rather, the

invocation of this principle has been interpreted to generate a
demand for robust scientific data and environmental clearance
processes, to underpin environmental decision-making.
• Precaution is linked inextricably with sustainable
development, polluter pays, and intergenerational equity;
this then drains precaution of its distinctive characteristics
and engages delicate balancing exercises between competing
interests, in particular, social and environmental and
development imperatives, and introduces factors such as
compensation and restoration into the mix.
• Precaution triggers a reversal of the burden of the proof,
although in cases where serious damage is overwhelming,
ongoing, and obvious, the courts dispense with this
requirement.
Together these elements demonstrate a much broader, and
thus, less technical conception of the precautionary principle than
the Rio principle, which inspired the Vellore Court’s definition of
precaution.
There is a context to such a development and use of
the precautionary principle. There are systemic problems in
environmental governance and administration in India, resulting
in serious, poorly checked, and escalating environmental harm.143
This, arguably, creates pressures and compulsions on other actors,
including the judiciary, and the enviro-legal fraternity. Lawyers and
advocacy groups believe that the ongoing crisis in environmental
governance creates a need for strong and malleable weapons
that litigators can draw upon from their arsenal to counteract
environmental harm, which the State either sanctions or is unable

143. See, for example, Shibani Ghosh, ‘Demystifying the Environmental

Clearance Process in India’ (2013) 6(3) NUJS Law Review 433; See
Environmental Performance Index, Country Profile: India, South Asia
(2018) <https://epi.envirocenter.yale.edu/epi-country-report/IND>
accessed 31 October 2018.

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 The Precautionary Principle 225

to address.144 The broader notion of precaution that courts have

crafted in India is tailored to such a demand.
To strengthen their broader notion of precaution, courts also
reverse the burden of proof. Public-spirited individuals, bolstered
by the expansive public interest jurisdiction courts enjoy in India,
bring cases of egregious environmental harm to the courts. These
individuals do not usually have the means or access to the data
to discharge the burden of proof that is customarily placed on
the petitioner. The NGT in Pandurang Sitaram Chalke and Anr v.
State of Maharashtra,145 as discussed earlier, explained that in the
absence of such a reversal of the burden of proof, the common
citizen would be asked to provide the scientific and technological
data that they could not have access to every time they sought to
raise environmental concerns. The courts, therefore, when faced
with serious environmental harm (imminent or ongoing) invoke
the precautionary principle, reverse the burden of proof and offer
relief to the petitioner and the environment.
While this explains why such a broad version of precaution has
evolved in India, it does not justify it. This indigenous version of
precaution bears little resemblance to the precautionary principle
as defined in the instruments that the Vellore Court first cited to
adopt the principle into domestic law. Indeed, many of the early
cases explicitly sourced their invocation of the precautionary
principle to international law. To source the precautionary
principle to international law, replicate the Rio definition in toto
in the decision, and then to proceed to ‘apply’ it on a case-by-case
basis without reference to that definition, has led to considerable
imprecision and subjectivity in the use of this principle. The lack
of rigour, precision and nuance in the courts’ engagement with
the precautionary principle renders it impotent to assist in the
dialectic process of international and domestic norm creation and

144. I am grateful to the participants of the Work-in-Progress Workshop

held on 13 December 2013 at the Centre for Policy Research, New Delhi
for these insights.
145. Pandurang Sitaram Chalke (n 124).

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 226 Lavanya Rajamani

crystallisation. While many of the cases discussed represent ‘state

practice’ and count in quantitative assessments of the use of, or
reference to, the precautionary principle, the conceptual vacuity of
these judgments in relation to the interpretation and application
of the precautionary principle renders them a poor reed to rely
on in any qualitative content-based assessments of the evolution
of norms in international law. This represents a significant missed
opportunity for India in shaping the evolution of the precautionary
principle in international law.
More importantly, such imprecision and subjectivity in
the development and application of the principle has diluted its
potential as a powerful and distinctive norm of domestic law.
The case law, as we have seen, does not provide specificity and
concreteness to the elements of this principle. It does not clarify
what degree of risk triggers application of this principle, what
specific action should be taken when the application of this
principle is triggered, and the extent to which cost plays a role in
the choice of measures to be taken in response to the risk. Rather,
the courts appear to tailor the application of the principle to
support the desired outcome, in the process further diluting the
core elements of this principle, as laid out in the Vellore case. The
courts do not typically limit the use of this principle, as the Vellore
case had identified (albeit not followed), in distinctive situations
of potential serious/irreversible damage and scientific uncertainty.
Instead the courts have extended the boundaries of this principle
so as to permit its instrumental application in a wide variety of fact
situations, many of which are indistinguishable from situations in
which the other principles—in particular sustainable development
and prevention—apply. The principle of precaution, thus, although
liberally used in environmental litigation in India, has not come of
age as a distinctive principle of domestic environmental law.146

146. It is worth noting that there are no definitions of the precautionary

principle in national legislations. Although the NGT Act s 20, directs the
NGT to apply, inter alia, the precautionary principle, it does not define
it. The Draft National Water Framework Bill 2016, s 2(1)(r), contains a

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 The Precautionary Principle 227

Conclusion

This analysis of the case law on the precautionary principle reveals

the following. First, that the courts often engage the precautionary
principle when the background conditions for its engagement, as
identified by the Vellore Court, are not met. Second, that the courts
are in reality engaging the preventive principle in as far as they
are crafting responses to known (not unknown or unknowable)
risks. In other words, the courts while they cite the precautionary
principle, are in fact engaging prevention as broadly conceived
rather than narrowly conceived precaution. Third, they treat the
notions of sustainable development and precaution/prevention as a
fungible mix of elements, justifying therefore a balancing exercise
between development and environmental concerns and priorities.
While such a balancing exercise may be essential and inevitable
in environmental cases, invoking the precautionary principle
permits the courts to shift the burden of proof to the industrialist,
and fundamentally change the dynamics of the decision-making
process.
The courts have taken, in their wisdom, a principle of
international environmental law, necessarily broad and imprecise,
given that it is a guiding principle and applied at the international
level, further broadened it, and introduced additional layers of

thoughtful definition of the precautionary principle that seeks to integrate

the key elements of the definition as laid down by the Vellore Court and the
subsequent practice. It remains to be seen if this draft will be adopted, and
if yes, how this principle will be applied in practice. The relevant provision
of the Draft National Water Framework Bill reads: ‘“Precautionary
principle” means the principle that advocates the adoption of a cautious
approach, including anticipatory preventive or mitigatory action, towards
an activity that holds the possibility of causing harm to human beings or the
environment, even if that possibility is not fully established scientifically,
with the onus of proving that there will be no such harm resting on
the proposer of the activity.’ See Draft National Water Framework Bill
2016: Draft of 16 May 2016 <http://wrmin.nic.in/writereaddata/Water_
Framework_May_2016.pdf> accessed 10 March 2017.

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 228 Lavanya Rajamani

imprecision and ambiguity to it. This in turn privileges subjectivity

and promotes uncertainty in outcomes. It also renders application
(given lack of concrete content) and implementation difficult, and
obfuscates hard questions and choices.
Rather than adding concrete content to its definition and
discipline to its application—which could have resulted in targeted
use of the principle to appropriate ends in hard cases—the Indian
courts have used the precautionary principle in a commonsensical
fashion to expand their own discretion. Indian courts have created,
through the vehicle of the precautionary principle, room for judges
and their predilections to play a significant role in the shape
litigations take. It allows the courts to convert one strain of opinion
into policy while annihilating others. It also allows the courts to
develop into a ‘policy evolution fora’, a role it is ill-equipped to
play.147
It has long been recognised in India that a judge’s social and
value preferences play a role in the decision-making process. Justice
Chandrachud in State of Rajasthan v. Union of India noted that ‘it is
an accepted fact of constitutional interpretation that the content of
justiciability changes according to how the Judge’s value preferences
respond to the multi-dimensional problems of the day’.148 The
Supreme Court in India is arguably perceived to consist of middle-
class arm-chair intellectuals. It is, therefore, perceived to be more
receptive to others of their ilk, certain social and value preferences

147. There are many concerns with the judiciary annexing policy-
making in this way. I have identified some of them elsewhere. See Lavanya
Rajamani, ‘Public Interest Environmental Litigation in India: Exploring
Issues of Access, Participation, Equity, Effectiveness and Sustainability’
(2007) 19(3) Journal of Environmental Law 293, 320. An additional
concern highlighted by Ran Hirchl is that the trend towards what he
terms ‘juristocracy’ is ‘part of a broader process whereby political and
economic elites, while they profess support for democracy and sustained
development, attempt to insulate policymaking from the vicissitudes of
democratic politics’. See Ran Hirschl, Towards Juristocracy (HUP 2004).
148. State of Rajasthan and Ors v. Union of India (1977) 3 SCC 592,
para 134.

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 The Precautionary Principle 229

(for instance, the right to a clean environment rather than the right
to livelihood), and certain modes of argumentation over others
(technical rather than social). While the outcomes in particular
cases discussed in this chapter may be generally considered to be
favourable, the discretion courts have arrogated to themselves,
through the use of expansive definitions of the precautionary
principle, is deeply problematic for environmental governance,
and for the development of a clear consistent line of environmental
jurisprudence that promotes certainty, predictability, and clarity in
the outcomes of environmental cases.

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 six

Public Trust Doctrine in

Indian Environmental Law

Shibani Ghosh*

A landmark decision of the Supreme Court in 1996 marked the

introduction of the public trust doctrine in Indian environmental
law. Ever since, this doctrine has often been referred to and relied
upon by the Supreme Court and High Courts in several cases
relating to the use of natural resources and public spaces. It has been
instrumental in orders to protect, inter alia, ecologically fragile lands,
flowing waters, water bodies, public parks, beaches, natural gas,
coal and spectrum. An American law review Article documenting
the use of the doctrine in various jurisdictions outside the United
States observes that India ‘has given the public trust doctrine the
most detailed judicial consideration of any jurisdiction outside the
United States’.1

* I would like to thank Prof. Philippe Cullet for his valuable comments
on an earlier draft of this chapter and the participants of the Work-in-
progress Workshop held on 13 December 2013 at the Centre for Policy
Research for their helpful insights. I am also grateful to Harsha V. Rao for
her research assistance.
1. Michael C. Blumm and Rachel D. Guthrie, ‘Internationalizing the
Public Trust Doctrine: Natural Law and Constitutional and Statutory

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 Public Trust Doctrine in Indian Environmental Law 231

Despite its widespread use by Indian courts, the contours of

the doctrine remain unclear. Courts have defined the doctrine and
its components in so many ways, often extracting from American
case law, that its legal content in the Indian context appears at
once expansive and limited. For this reason, whether the doctrine
places any additional restraints on the actions of the executive,
beyond what every State action is subject to under Indian law, is
uncertain. Interestingly, although it has been ‘part of the law of the
land’ since 1996,2 it is yet to find an explicit mention in any central
environmental legislation till date.3
This chapter traces the growth and application of the public
trust doctrine in Indian jurisprudence, starting from the Supreme
Court’s 1996 judgment in M. C. Mehta v. Kamal Nath.4 It also
discusses some of the significant judgments of the Supreme
Court, the High Courts, and the National Green Tribunal (NGT),
which have expounded this doctrine or relied on it. The objective
is to comprehensively describe and analyse the current judicial
understanding of this doctrine and its various aspects in India,
and propose a more systematic application of the doctrine in
environmental regulatory processes, and judicial decision-making.

Approaches to Fulfilling the Saxion Vision’ (2012) 45(3) UC Davis Law

Review 741, 748.
2. M. C. Mehta v. Kamal Nath (1997) 1 SCC 388, para 39.
3. Most notably, the National Green Tribunal Act 2010 (NGT Act)
requires the Tribunal to apply the principles of sustainable development,
precaution and polluter pays while passing an order, but does not mention
the public trust doctrine. See NGT Act s 20. The Draft River Basin
Management Bill 2012 and the Draft National Water Framework Bill 2016
proposed by the Ministry of Water Resources, Government of India, refer
to the doctrine. But these bills have not been passed by Parliament till
date. The Kerala Forest (Vesting and Management of Ecologically Fragile
Lands) Act 2003 states in its preamble that ecologically fragile lands are
held in public trust. The Act transfers the ownership and possession of
ecologically fragile lands to the State.
4. Kamal Nath (n 2).

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 232 Shibani Ghosh

The next section discusses the origin of the public trust

doctrine in Indian environmental jurisprudence. This is followed
by a section that looks closely at the various components of the
doctrine and how each of them has been understood by Indian
courts. The section that follows problematises the doctrine by
contextualising it in the Indian scenario. The final section attempts
to ‘rescue’ the doctrine. The doctrine can continue to play a role,
albeit a more circumscribed one than the one currently ascribed to
it, in environmental regulatory processes and cases.

From Where it All Began

The Kamal Nath judgment of the Supreme Court is the lodestar for
the public trust doctrine in Indian environmental jurisprudence. In
1996, the Supreme Court had the occasion to decide on the legality
of leasing protected forest land along a river to a private hotel for
commercial purposes. Sufficient evidence had been produced
before the Court that proved that the hotel had, for several years,
encroached on the forest land, before it was granted a lease by the
government.
The Court could have decided the matter exclusively on the
point of encroachment, and that the government should have taken
action against the hotel management instead of regularising the
encroachment by granting the lease. Instead, the Court relied on
the public trust doctrine and held that the ‘area being ecologically
fragile and full of scenic beauty should not have been permitted to
be converted into private ownership and for commercial gains’5 and
that the government had committed a ‘patent breach of the trust’6
held by it. The Court quoted extensively from the influential 1970
law review Article by Joseph L. Sax on the public trust doctrine,7

5. Ibid., para 22.

6. Ibid., para 36.
7. Joseph L. Sax, ‘The Public Trust Doctrine in Natural Resources
Law: Effective Judicial Intervention’ (1970) 68(3) Michigan Law Review

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 Public Trust Doctrine in Indian Environmental Law 233

and discussed American case law which relied on this doctrine.

It observed that as the doctrine was part of the English common
law and as the Indian legal system was based on the common law
system, the public trust doctrine was part of Indian jurisprudence.8
The Court declared the doctrine to be a part of the law of the land,
although it was the first time that a court in India was relying on it
in the context of environmental conservation, and it had not been
statutorily incorporated. In the Court’s words:
the State is the trustee of all natural resources which are by
nature meant for public use and enjoyment. Public at large is
the beneficiary of the sea-shore, running waters, airs, forests
and ecologically fragile lands. The State as a trustee is under
a legal duty to protect the natural resources. These resources
meant for public use cannot be converted into private
ownership.9
Since 1996, the public trust doctrine and the Court’s dicta in this
case have been used numerous times by the Supreme Court, High
Courts, and NGT to protect (or refuse protection) to a variety of
natural resources. Unlike the US, where the public trust doctrine
has often been invoked by the State to defend its action relating
to certain natural resources that are held in trust,10 in India, the
doctrine has almost always been used to challenge the State’s
decision or a private party’s actions which affect a natural resource
or restrict its traditional use.11

471. According to one legal scholar, Sax’s Article is ‘perhaps the most
heavily cited law review article—by courts and scholars alike—in over four
decades of environmental law’. See Richard M. Frank, ‘The Public Trust
Doctrine: Assessing Its Recent Past & Charting Its Future’ (2012) 45(3)
UC Davis Law Review 665, 667.
8. Kamal Nath (n 2), para 34.
9. Ibid.
10. Richard J. Lazarus, ‘Changing Conceptions of Property and
Sovereignty in Natural Resources: Questioning the Public Trust Doctrine’
(1985–86) 71 Iowa Law Review 631, 646.
11. However, on one occasion the doctrine was used by the state of
Kerala to justify a legislative action—an amendment to law relating to the

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 234 Shibani Ghosh

The Deconstruction

What is the Source of Public

Trust Doctrine in Indian Law?

The public trust doctrine was not part of Indian environmental

jurisprudence until the Kamal Nath judgment.12 While deciding
Kamal Nath, the judges had to attribute the doctrine’s origin to a
source of law accepted in Indian jurisprudence. As a common law
country, the Indian legal system is based primarily on common law
principles and, therefore, once the Court found that the public trust
doctrine had been part of the English common law, the attribution
was only logical—public trust doctrine justified its place in Indian
jurisprudence because of its origin in English common law.
But as the Court pointed out, the scope of the doctrine in
the English common law was limited—it applied to a small set of
natural resources to protect traditional uses such as navigation,
commerce, and fishing.13 It was through American cases, as the
Court acknowledged, that the doctrine had been expanded to
protect trust property for ecological and environmental values.14

water level in the Mullaperiyar dam, which in essence negated a previous

judgment of the Supreme Court. The Supreme Court struck down the
impugned law and held that the legislature could not invoke the public
trust doctrine to indirectly control the action of the courts. See State of
Tamil Nadu v. State of Kerala (2014) 12 SCC 696, para 147.
12. The public trust doctrine discussed in this chapter is the doctrine
as discussed in the context of environmental cases and cases involving
decision-making affecting natural resources. It is different from the law
relating to public trusts (such as charitable or religious trusts) or the public
trust doctrine in the context of administrative law.
13. Kamal Nath (n 2), para 33. For a discussion on the Roman and
English origin of the doctrine, see Jan S. Stevens, ‘The Public Trust: A
Sovereign’s Ancient Prerogative Becomes the People’s Environmental
Right’ (1980) 14(2) UC Davis Law Review 195, 195–98.
14. Ibid. The Court refers to various American case law including
the landmark decision of the Supreme Court of California in National

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 Public Trust Doctrine in Indian Environmental Law 235

After extensive references to American case law, the Court came

to the conclusion that the public trust doctrine in India should
be expanded to all ecosystems operating in natural resources. In
the Intellectuals Forum case,15 the Supreme Court observed that the
doctrine, as it existed in the Roman and English law, related to
specific types of resources; US courts have given the doctrine its
contemporary shape—‘encompass[ing] the entire spectrum of the
environment’.16
In such a scenario, one has to attribute the origin of the
Indian version of the public trust doctrine mostly to American
jurisprudence on the doctrine. Sax’s classic 1970 article17 has
been extensively quoted by the Supreme Court in its judgments
starting from Kamal Nath, and by various High Courts. Thus, the
understanding of the public trust doctrine in Indian jurisprudence
is certainly owed, in no small measure, to Sax’s work.
Interestingly, by the time Kamal Nath was decided, there was a
growing body of scholarly work which critiqued Sax’s proposition
that the public trust doctrine was a powerful tool to ‘promote
rational management of our natural resources’.18 Steven M. Jawetz
criticised the application of the doctrine to administrative decision-
making relating to public lands as ‘a mask for the unauthorized
substitution of judicial for administrative discretion’.19 In 1986,
Richard J. Lazarus argued that the public trust doctrine was a step
in the wrong direction given the ‘complex and pressuring resource

Audubon Society v. Superior Court 33 Cal 3d 419 (1983) (Mono Lake case)
and the United States Supreme Court’s decision in Phillips Petroleum Co. v.
Mississippi 108 SCt 791 (1988).
15. Intellectuals Forum, Tirupathi v. State of Andhra Pradesh and Ors
(2006) 3 SCC 549.
16. Ibid., para 74.
17. Sax (n 7).
18. Ibid., 656.
19. Steven M. Jawetz, ‘The Public Trust Totem in Public Land Law:
Ineffective-and Undesirable-Judicial Intervention’ (1982) 10 Ecology Law
Quarterly 455, 457.

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 236 Shibani Ghosh

allocation and environmental protection issues we currently face’.20

According to him, different disciplines of law had evolved in
response to increased concern and awareness about environment
and natural resources problems, and ‘much of what the public
trust doctrine offered in the past is now, at best, superfluous and, at
worst, distracting and theoretically inconsistent with new notions
of property and sovereignty developing in the current reworking of
natural resources law’.21 James L. Huffman, in his critique of the
doctrine, found that ‘Sax’s argument fails to justify the public trust
doctrine in the context of American constitutional democracy’,
as it allowed ‘non-democratic courts to overrule the decision of
theoretically democratic legislatures’.22
Sax wrote a second Article in 198023 elaborating what according
to him was the root of the public trust doctrine. According to him,
the focus of environmental problems was not the fact of change
but the rate of change, and ‘[t]he essence of the problem raised by
public trust litigation is the imposition of destabilizing forces that
prevent effective adaptation’.24 He wrote that the doctrine would
‘help us reach the real issues—expectations and destabilization—
whether the expectations are those of private property ownership,
of a diffuse public benefit from ecosystem protection or of a
community’s water supply’.25

20. Lazarus (n 10) 716.

21. Lazarus (n 10) 631. See also, Richard Delgado, ‘Our Better Natures:
A Revisionist View of Joseph Sax’s Public Trust Theory of Environmental
Protection, and Some Dark Thoughts on the Possibility of Law Reform’
(1991) 44 Vanderbilt Law Review 1209, 1214. Delgado argued that Sax’s
public trust doctrine was a seriously flawed solution to the environmental
crisis, as it was ‘inherently antagonistic to the promotion of innovative
environmental thought’ and ‘poorly suited to advance natural values’.
22. James L. Huffman, ‘A Fish out of Water: The Public Trust Doctrine
in a Constitutional Democracy’ (1989) 19 Environmental Law 527, 565.
23. Joseph L. Sax, ‘Liberating the Public Trust Doctrine from Its
Historical Shackles’ (1980) 14(2) UC Davis Law Review 185.
24. Ibid., 188.
25. Ibid., 192–93.

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 Public Trust Doctrine in Indian Environmental Law 237

The Supreme Court in Kamal Nath did not take into account
the growing critique of the approach. It also did not engage with
the evolving treatment of the doctrine in the US, which varied
depending on the state.26 It was only in September 2012, when
the Supreme Court was faced with the question of whether the
doctrine should be applied to non-environmental issues, that it
referred to Lazarus and his scepticism about liberating the public
trust doctrine from its traditional moorings.27 However, the Court
decided not to rule on the issue.
Although there is near consensus in Indian case law on the
origin of the public trust doctrine as being English common law,
in the M. I. Builders case,28 the Supreme Court finds the doctrine
to have grown out of Article 21 of the Constitution of India, which
guarantees fundamental right to life and liberty.This transition from
a common law doctrine to a fundamental right was not explained
in the judgment, and this line of thinking has never really been
pursued subsequently by the Supreme Court.29 In fact, the doctrine
is generally worded as an affirmative duty of the government, that
is, the trustee, to do or refrain from doing something. No doubt,
the doctrine has been relied on to protect certain rights, such as the
right of the people to be able to access light, air and water,30 right

26. See, for example, Robin Kundis Craig, ‘A Comparative Guide

to the Eastern Public Trust Doctrines: Classification of States, Property
Rights, and State Summaries’ (2007) 16(1) Penn State Environmental Law
Review 1; Robin Kundis Craig, ‘Comparative Guide to the Western States
Public Trust Doctrines: Public Values, Private Rights, and the Evolution
toward an Ecological Public Trust’ (2010) 37(1) Ecology Law Quarterly 53.
27. Natural Resources Allocation, In Re, Special Reference No. 1 of 2012
(2012) 10 SCC 1 (Presidential Reference), para 93.
28. M. I. Builders (P) Ltd v. Radhey Shyam Sahu (1999) 6 SCC 464,
para 51.
29. The Allahabad High Court in one case observed that ‘[t]his
doctrine has been accepted in our country as flowing from Article 21 of
the Constitution’. See Mohd. Kausar Jah v. Union of India (UOI) and Ors
(2011) SCC OnLine All 735, para 38.
30. Fomento Resorts and Hotels Limited and Anr v. Minguel Martins and
Ors (2009) 3 SCC 571.

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 238 Shibani Ghosh

to healthy and decent living31 and right of future generations to

natural resources.32 But it is unclear whether the doctrine can itself
be articulated in a rights framework.

What is Held in Public Trust?

The public trust doctrine, in essence, protects certain components

of the natural environment from exploitation. These components,
often referred to in this context as natural resources or properties,
are held in trust by the State for the people, who are, in a sense, the
real owners and beneficiaries of the same. Over the years, Indian
courts have applied the doctrine to various natural resources.
However, only in some cases have the courts provided a justification
for considering a particular natural resource as being held in trust
by the State.
In Kamal Nath, the Court makes three important observations
in this context: ‘all natural resources which are by nature meant
for public use and enjoyment’ are held in trust by the State and
such properties are of ‘great importance to the people as a whole’;33
‘[p]ublic at large is the beneficiary of the sea-shore, running waters,
airs, forests and ecologically fragile lands’; and the Court ‘see[s]
no reason why the public trust doctrine should not be expanded
to include all ecosystems operating in our natural resources’.34 The
Court justified its approach—of subjecting all ecosystems to the
public trust doctrine—by observing that US courts were expanding
the application of the doctrine to new types of lands and waters by
accepting ecological concepts to identify trust properties.35

31. Joginder Kumar Singla and Ors v. Government of NCT of Delhi and
Ors (2005) SCC OnLine Del 84.
32. T. N. Godavarman Thirumalpad v. Union of India (2006) 1 SCC 1.
33. Kamal Nath (n 2), para 25.
34. Ibid., para 33.
35. Ibid. The Court refers to the Mono Lake case and Phillips Petroleum
Co. (n 14) in this context.

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 Public Trust Doctrine in Indian Environmental Law 239

Following Kamal Nath and without further doctrinal analysis,

several Indian cases discussing the public trust doctrine consider
the doctrine to be applicable to all natural resources, whether
wildlife,36 lakes,37 forests,38 deep underground water39 or seashores.40
In Intellectuals Forum, the Supreme Court held that resources that
are freely available for use by the public,41 such as lakes and water
tanks, are held by the State in trust.42 In another decision, a public
park was considered to be public trust property because of its
‘historical importance and environmental necessity’.43
In the 2G spectrum case,44 a case dealing with the legality of
the spectrum allocation policy of the government, the Supreme
Court relied on the public trust doctrine. The first question that
the Court set for itself was ‘[w]hether the Government has the
right to alienate, transfer or distribute natural resources/national
assets otherwise than by following a fair and transparent method
consistent with the fundamentals of the equality clause enshrined
in the Constitution?’.45 The Court answered this question in the
negative and held that the State, as a trustee of the people, is the

36. Common Cause, A Registered Society v. Union of India (1999) 6 SCC

667.
37. Intellectuals Forum (n 15).
38. T. N. Godavarman (n 32).
39. State of West Bengal v. Keshoram Industries Pvt. Ltd (2004) 10 SCC
201; Perumatty Grama Panchayat v. State of Kerala (2003) SCC OnLine
Ker 500.
40. Fomento Resorts (n 30).
41. Intellectuals Forum (n 15), para 76.
42. This was narrowed down in a subsequent decision wherein the
Court held that the doctrine applied to ‘natural water storage resources’
and not to artificial lakes. Susetha v. State of Tamil Nadu and Ors (2006) 6
SCC 543.
43. M. I. Builders (n 28); Vivek Srivastava v. Union of India (2005) SCC
OnLine All 1555; Arunangshu Chakraborty v. Bidhannagar Municipality and
Ors (2013) SCC OnLine Cal 7708.
44. Centre for Public Interest Litigation and Ors v. Union of India (2012) 3
SCC 1 (2G Spectrum case).
45. Ibid., para 1.

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 240 Shibani Ghosh

legal owner of natural resources.46 The judgment provides rare

guidance as to what constitutes ‘natural resource’:
... we consider it proper to observe that even though there
is no universally accepted definition of natural resources,
they are generally understood as elements having intrinsic
utility to mankind. They may be renewable or non-renewable.
They are thought of as the individual elements of the natural
environment that provide economic and social services to
human society and are considered valuable in their relatively
unmodified, natural form. A natural resource’s value rests
in the amount of the material available and the demand for
it. The latter is determined by its usefulness to production.
Natural resources belong to the people but the State legally
owns them on behalf of its people and from that point of view
natural resources are considered as national assets, more so
because the State benefits immensely from their value.47
Natural resource thus defined identified a distinctly anthropocentric
approach to the application of the public trust doctrine—a point
of debate in environmental conservation that the Supreme Court
of India would enter into just a few weeks after this judgment, in a
different context.48
The High Courts and NGT have applied the public trust
doctrine in a variety of cases—to uphold deallocation of a coal
block;49 direct removal of encroachment from river banks;50 stop
construction of a commercial complex,51 basketball court52 and

46. Ibid., para 89.

47. Ibid., para 74.
48. T. N. Godavarman Thirumulpad v. Union of India and Ors (2012) 3
SCC 277 (Wild Buffalo case).
49. Kalinga Power Corporation v. Union of India (2012) SCC OnLine
Del 2090.
50. Environment Protection Committee v. Union of India 2011 (1) EFLT
326 (NULL) (High Court of Guwahati, Imphal Bench); Association for
Environment Protection v. State of Kerala and Ors (2013) 7 SCC 226.
51. P. Venkateswarlu v. Government of Andhra Pradesh (2001) SCC
OnLine AP 942.
52. Paryavaran Avam Januthan Mission v. Lt. Governor (2009) SCC
OnLine Del 3720.

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 Public Trust Doctrine in Indian Environmental Law 241

CNG station53 in public parks; uphold restrictions on transport of

sand;54 limit exploitation of groundwater;55 allow public access to
a park;56 regulate constructions around public lakes;57 deny vested
or preferential rights to supply of river water;58 and quash land
acquisition proceedings for land where two rivers are flowing.59 In
all these cases, the courts found that the State held the natural
resource in question in trust, without further justification.
Justice B. S. Reddy’s Separate Opinion, in a commercial
dispute before the Supreme Court over natural gas pricing, must
also be referred to in this context.60 The justification provided
for holding natural gas to be public trust property is significant.
The opinion finds that ‘public trust elements [are] so intrinsic to
resources under the seabed’.61 Reliance is placed on Article 297 of
the Constitution to identify these resources: ‘[a]ll lands, minerals

53. EC Pocket Maya Enclave Residents’ Welfare Association v. Delhi

Development Authority (2006) SCC OnLine Del 1244.
54. D. Sivakumar v. Government of Tamil Nadu (2009) SCC OnLine
Mad 821.
55. Digvijay Singh and Baldev Singh v. Bhagwan Singh 2007 (1)
ShimLC 40 (High Court of Himachal Pradesh at Shimla); Perumatty
Grama Panchayat (n 39); Asim Sarode and Ors v. The District Collector,
Nanded and Ors, OA No. 47/2013, judgment dated 11 January 2016, NGT
(Western Zone Bench); Mukesh Yadav v. State of Uttar Pradesh and Ors,
OA No. 133/2014, judgment dated 29 February 2016, NGT (Principal
Bench).
56. Society for Protection of Culture, Heritage, Environment, Tradition and
Protection of National Awareness v. Union of India and Ors, OA No. 60/2014,
order dated 10 July 2015, NGT (Principal Bench).
57. Thenkeeranur Vivasayigal Nala Sangam v. The Secretary to
Government Ministry of Environment and Forests Union of India and Ors, OA
No. 193/2013, order dated 7 August 2015, NGT (Southern Zone Bench).
58. Marathwada Janta Vikas Parishad v. State of Maharashtra (2016)
SCC OnLine Bom 8475, para 101–02.
59. Rajiv Pujari v. State of Orissa (2010) SCC OnLine Ori 222.
60. Reliance Natural Resources Limited v. Reliance Industries Limited
(2010) 7 SCC 1.
61. Ibid., para 249.

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 242 Shibani Ghosh

and other things of value underlying the ocean within the territorial
waters, or the continental shelf, or the exclusive economic zone, of
India’. According to Article 297, 62 these resources are to vest in the
Union and are to be held for the purposes of the Union. Article 297
then, perhaps, creates a class of natural resources which have to be
granted a constitutionally mandated public trust character based
on their geographical location.
From the analysis of the case law, it may be concluded that the
Indian courts have accepted a very wide application of the doctrine,
which considers all natural resources to be held in public trust.
The purpose for which the particular natural resource has been
traditionally used, or the value derived from it by the public, are not
factors that Indian courts have considered to be relevant. It must,
however, be mentioned that the doctrine is not used consistently
across all cases. Cases involving the protection of village ponds and
common lands, shared natural resources typically held in public
trust, have been decided without any reference to the doctrine.63

What are the Principles of the Public Trust Doctrine?

Over the years, courts have applied various principles while invoking
the public trust doctrine. These principles can be grouped under

62. Article 297: ‘Things of value within territorial waters or continental

shelf and resources of the exclusive economic zone to vest in the Union:
(1) All lands, minerals and other things of value underlying the ocean
within the territorial waters, or the continental shelf, or the exclusive
economic zone, of India shall vest in the Union and be held for the
purposes of the Union.
(2) All other resources of the exclusive economic zone of India shall also
vest in the Union and be held for the purposes of the Union.
(3) The limits of the territorial waters, the continental shelf, the exclusive
economic zone, and other maritime zones, of India shall be such as may
be specified, from time to time, by or under any law made by Parliament.’
63. See Hinch Lal Tiwari v. Kamala Devi (2001) 6 SCC 496; Jagpal
Singh v. State of Punjab (2011) 11 SCC 396.

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 Public Trust Doctrine in Indian Environmental Law 243

four heads: restriction on governmental authority; affirmative

duties of the government; access to natural resources; and quality
of decision-making relating to natural resources.

Restriction on Governmental Authority

According to the Supreme Court in Fomento Resorts, the basic

premise of the public trust doctrine lies in the limits and obligations
it places on the government agencies on behalf of people.64 In
Intellectuals Forum, the Court has relied on Sax’s formulation of the
types of restriction on governmental authority which are imposed
by the public trust doctrine.65 In Sax’s words:
Three types of restrictions on governmental authority are
often thought to be imposed by the public trust: first, the
property subject to the trust must not only be used for a public
purpose, but it must be held available for use by the general
public; second, the property may not be sold, even for a fair
cash equivalent; and third the property must be maintained
for particular types of uses. The last claim is expressed in two
ways. Either it is urged that the resource must be held available
for certain traditional uses, such as navigation, recreation,
or fishery, or it is said that the uses which are made of the
property must be in some sense related to the natural uses
peculiar to that resource.66
The issue before the Court in Intellectuals Forum was that two
historical ‘tanks’, which were still in use as sources for drinking
water and irrigation water, and for augmenting ground water, had
been alienated for construction of houses.The Court, while applying
Sax’s formulation, held that the first and the third restrictions

64. Fomento Resorts (n 30), para 54.

65. Intellectuals Forum (n 15), para 76. The High Court of Madras in
K. Balamurugan v. State of Tamil Nadu (2008) SCC OnLine Mad 649 also
includes this formulation as one of the principles to be considered while
taking a decision on environmental protection.
66. Sax (n 7) 477.

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 244 Shibani Ghosh

had been violated,67 although it did not provide any explanation

for the same. It decided to overlook the violation of the second
restriction because the development of the housing complex was
being undertaken by the government and not by a private party.68
In Kamal Nath, the Supreme Court addressed the second and
third restrictions. It held that resources meant for public use cannot
be converted for private ownership or for commercial use.69 The
public trust property had to be maintained for certain type of uses.
This would include the ecological use of the resource—preserving
the lands in natural state so that they could be used for scientific
study, and provide food and habitat for birds and marine life,
aesthetic use of the resource, and recreational use.70 In this case, the
government had leased out ecologically fragile land along a river,
to a motel management, and the Court found this transaction to
be in patent breach of the trust in which the government held the
land.71
The Supreme Court in M. I. Builders briefly touched on the
third restriction when it held, while relying on Kamal Nath, that
when the true nature of a trust property (a park, in this case) is
destroyed, it would be in violation of the public trust doctrine.72
The park had been converted into a parking lot and it was no
longer possible to plant trees there, and although it had green grass
and paths, the park had lost the ingredients of a park.73 In other
words, the park could not be used for certain specific uses which
were traditionally associated with it.74

67. Intellectuals Forum (n 15), para 77.

68. Ibid.
69. Kamal Nath (n 2), para 35.
70. The Supreme Court judgment in Kamal Nath excerpts from several
American cases to make this point including Robbins v. Department of Public
Works 244 NE 2d 577 and the Mono Lake case (n 14).
71. Kamal Nath (n 2), para 36.
72. M. I. Builders (n 28), para 50.
73. Ibid., para 50.
74. Similarly, in P. Venkateswarlu (n 51), the High Court of Andhra
Pradesh observed that ‘[a] park provides for some lung space. It is well

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 Public Trust Doctrine in Indian Environmental Law 245

Although the public trust doctrine is often couched in terms

of absolute inalienability of public resources, right from the
beginning, Indian courts have acknowledged that such resources
would have to be reallocated for purposes which may restrict their
public use. Following American case law, the Supreme Court
observed that when a resource is otherwise available for the general
public to use freely, any government act which reallocates the
resource for more restricted uses or subjects it to private interests,
a court will review this act with considerable scepticism.75 Similarly,
the Intellectuals Forum case highlights the ‘negatory angle’ of the
doctrine—it does not prohibit alienation of the trust property, but
‘it provides for a high degree of judicial scrutiny on any action
of the Government, no matter how consistent with the existing
legislations, that attempts to restrict such free use’.76 In the absence
of any legislation, the executive’s actions have to be governed by
the public trust doctrine—it cannot ‘abdicate the natural resources
and convert them into private ownership, or for commercial use’.77
Thus, courts have allowed alienation of public trust property to the
extent that high standards of judicial review are met.78

settled that the community requires certain lung space and may also use
open space for sports and other recreational activities. Parks or wetlands
are also necessary for the purpose of maintaining ecological balance. The
doctrine of public trust applies in relation to park, wherefore the open
space is earmarked for the purpose of park, and it becomes the statutory
duty of the local authorities and other statutory bodies to maintain the
same’ (para 39).
75. Kamal Nath (n 2), para 26.
76. Intellectuals Forum (n 15), para 76.
77. Kamal Nath (n 2), para 35.
78. Susetha (n 42), para 20. Looking at the aspect of (limited) alienability
from a different angle, Justice Reddy wrote in his concurring judgment in
the Reliance Natural Resources case that ‘the Union of India cannot enter
into a contract that permits extraction of resources in a manner that would
abrogate its permanent sovereignty over such resources’. According to
him, it is a matter of constitutional necessity that the government retains
permanent sovereignty over natural resources listed in Article 297 of the
Constitution of India. See Reliance Natural Resources (n 60), para 249.

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 246 Shibani Ghosh

The NGT, while deciding an appeal against the setting up of a

multi-purpose seaport in Kerala, at a coastal site considered to be of
outstanding natural importance, held that the public trust doctrine
would not apply to the given fact situation for two reasons. First, in
‘any situation covered by legislation or a regulatory framework’, the
doctrine did not apply,79 and second ‘in this case public resources
are not being diverted for commercial/private interest but for a
project which will be for larger public good and serve national
interest. So on this count also the doctrine of public trust is not
attracted in the instant case’.80 The Tribunal’s understanding of
the doctrine appears to be incorrect. In Kamal Nath, the Supreme
Court clearly envisaged the judiciary’s role in determining the
intent behind a particular legislative enactment,81 and did not fully
exclude its role—in the context of the public trust doctrine—if
there is an applicable law in place. Second, as discussed later,82
public trust properties may have different public uses and interests.
Balancing competing public uses/interests is an important feature
of the public trust doctrine, and the Tribunal could have engaged
in such an exercise, but it did not.83
There is extensive discussion in American case law and legal
writing on the relationship between the Takings Clause and the
public trust doctrine, and whether disallowing an owner from
using trust property in a particular manner is, in effect, a ‘taking’
requiring the State to compensate.84 Indian courts have not

79. Wilfred J. and Anr v. Ministry of Environment and Forests and Ors,
OA No. 74/2014, judgment dated 2 September 2016, NGT (Principal
Bench), para 99.
80. Ibid.
81. Kamal Nath (n 2), para 35.
82. See text and discussion accompanying n 95 to n 102.
83. The competing public interests in this case were the need to protect
an area of critical ecological importance and the potential benefits of the
particular site to construct a port.
84. Michael C. Blumm and Lucas Ritchie, ‘Lucas’s Unlikely Legacy:
The Rise of Background Principles as Categorical Takings Defenses’
(2005) 29(2) Harvard Environmental Law Review 321; Alexandra B. Klass,

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 Public Trust Doctrine in Indian Environmental Law 247

considered the public trust doctrine in the context of the State’s

eminent domain power and land acquisition law. This is probably
because most natural resources considered to be held in public
trust by Indian courts were not privately owned and, therefore, the
question of the State acquiring them, in law or in fact, did not arise.
In one case, however, the High Court of Odisha found the state
government’s exercise of its eminent domain power to acquire the
petitioners’ land to be illegal, as the purpose for which the land was
acquired did not meet the criteria for ‘public purpose’ under the
Land Acquisition Act 1894.85 The Court also considered the land
in question to be protected by the public trust doctrine. But in this
case, the land owners petitioned for their lands to be protected as
trust property.

Affirmative Duties of the Government

The public trust doctrine not only places certain restrictions on the
manner in which the government functions with regard to natural
resources held in public trust, but also enjoins the government to
take affirmative steps to protect such resources for the enjoyment of
the general public. As was held by the Californian Supreme Court
in the Mono Lake case,86 and quoted with approval by the Indian
Supreme Court in Kamal Nath, the doctrine is an affirmation of
the legal duty of the State to protect the people’s common heritage
of streams, lakes, marshlands, and tidelands, and this right of
protection can only be surrendered in rare cases where it is in
consonance with the purposes of the trust.87
In the Intellectuals Forum case, the Supreme Court emphasised
the affirmative duty of the government—the government has to

‘Modern Public Trust Principles: Recognizing Rights and Integrating

Standards’ (2006) 82(2) Nortre Dame Law Review 699.
85. Rajiv Pujari (n 59).
86. Mono Lake case (n 14).
87. Kamal Nath (n 2), para 32.

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 248 Shibani Ghosh

actively prevent the infringement of the community’s right. The

Court held:
the tank is a communal property and the State authorities are
trustees to hold and manage such properties for the benefits of
the community and they cannot be allowed to commit any act
or omission which will infringe the right of the Community
and alienate the property to any other person or body.88
In Environment Protection Committee v. Union of India, the High
Court of Guwahati held that it is the ‘the bounden duty [of
the government] to protect the Nambul River by evicting the
encroachers’.89

Access to Natural Resources

Another aspect of the public trust doctrine that courts have

highlighted is that of access to natural resources, although the
nature of access that has been considered is different. One type of
access was discussed by the Supreme Court in Fomento Resorts, the
public’s right to enjoy uninterrupted access to a natural resource,
in this case a beach. While finding that the hotel was under a
statutory obligation to maintain access to the beach without any
obstruction,90 the Court also discussed the public trust doctrine
in detail. It held that people are entitled to uninterrupted use of
common properties.91 If the transfer of a public trust property
interferes with the right of the public, the State cannot transfer
such property. If it does, courts can step in and invoke the public
trust doctrine, to protect the ‘right of the people to have access to
light, air and water and also for protecting rivers, sea, tanks, trees,
forests and associated natural ecosystems’.92

88. Intellectuals Forum (n 15), para 91.

89. Environment Protection Committee (n 50). See also Sandhya Barik
and Ors v. State of West Bengal and Ors (2013) SCC OnLine Cal 1060.
90. Fomento Resorts (n 30), para 51.
91. Ibid., para 65.
92. Ibid.

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 Public Trust Doctrine in Indian Environmental Law 249

The Division Bench of the Bombay High Court, in light of its

previous orders and the public trust doctrine, refused to allow a
public event to be held on the Girgaum Chowpatty beach, as it was
concerned that public access to the beach would be blocked and
that it would be damaged due to the construction work that would
take place.93
The Supreme Court in the Reliance Natural Resources case also
referred to the access element with regard to resources mentioned
in Article 297 of the Constitution of India. The Court held that
the Union of India cannot ‘allow a situation to develop wherein
the various users in different sectors could potentially be deprived
of access to such resources’ and that any user of such resources
shall not be given guaranteed continued access beyond a period
specified by the government.94 Access in this case was access for
commercial use of a resource, not for direct public benefit.

Quality of Decision-making Relating

to Natural Resources

Certain judgments relying on the public trust doctrine suggest

that the application of the doctrine requires the decision-making
process relating to natural resources to have certain qualities. First,
as typically there are competing public interests involved, there
has to be an adequate assessment of all relevant considerations,
before a decision is taken on how the natural resource is to be used.
In the M. I. Builders case, under the relevant law, the municipal
authority had an obligation to maintain parks, but at the same time

93. Adarsh Chowpatty Pragati Mandal v. State of Maharashtra (2016)

SCC OnLine Bom 1010. This decision was challenged in the Supreme
Court, and as interim relief the Court allowed the event to take place.
However, the interim order did not comment on the application of the
public trust doctrine to the fact situation. See State of Maharashtra v.
Adarsh Chowpatty Pragati Mandal, SLP No. 3207/2016, order dated 3
February 2016.
94. Reliance Natural Resources (n 60), para 250.

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 250 Shibani Ghosh

to construct and maintain parking lots as well.95 In that context, the

Supreme Court held that it was possible for the authority to convert
a part of the park into a parking lot, but that would require a proper
assessment of all relevant considerations, including surrounding
locality and population.96 However, such a study was not carried
out and for that reason the authority had breached the trust in
which it held the park.
The NGT, in one case, suspended the environmental clearance
granted for the construction of a national highway that cut across
certain water bodies because the appraisal process had not taken
into account the need to protect water bodies that are held in
public trust.97
Second, there has to be transparency and non-arbitrariness in
the decision-making process. This aspect was highlighted in the 2G
Spectrum case where the Court held that the State, as a trustee
of the people, is the legal owner of natural resources, and it has
the power to distribute the resources, but it has to be guided by
constitutional principles including the doctrine of equality and
larger public good.98 According to the Court, there is a need for
‘compliance with the constitutional principles in the process of
distribution, transfer and alienation to private persons’.99 Decisions
of the State have to be governed by concepts of equality, justice
and fairness, and must not adversely affect public interest. The
Court observed that the doctrine of equality has two aspects: (a) It
applies to the relationship between the State and the people—the
public should enjoy an equitable access to natural resources, and if
there is a transfer of natural resources, they should be compensated
adequately; (b) It applies to the State in relation to private parties

95. M. I. Builders (n 28), para 50.

96. Ibid.
97. Conservation of Nature Trust and Ors v. The District Collector,
Kanyakumari District and Ors, OA No. 104/2013, order dated 14 September
2016, NGT (Southern Zone Bench).
98. 2G Spectrum case (n 44), para 75.
99. Ibid., para 78.

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 Public Trust Doctrine in Indian Environmental Law 251

who want to acquire/use natural resources. The procedure for

distribution of natural resources should be ‘just, non-arbitrary and
transparent’, and should not discriminate between similarly placed
private parties.100
Third, any decision with regard to natural resources must
look beyond the present generation and protect the rights of the
future generations. This was highlighted by the Supreme Court
in Godavarman case.101 Subsequently, the concurring opinion of
the Supreme Court in the Reliance Natural Resources case also lays
down that the State cannot allow ‘the extraction of such resources
without a clear policy statement of conservation, which takes
into account total domestic availability, the requisite balancing of
current needs with those of future generations, and also India’s
security requirements’.102
Having identified the main principles of the public trust
doctrine through a case law analysis, the next section problematises
the doctrine in the Indian context.

Problematising the Public Trust Doctrine

The public trust doctrine has been accepted as part of Indian

environmental jurisprudence,103 yet there is lack of clarity in the
application of the doctrine.104 From the case law it appears that

100. Ibid., para 85. Although certain issues decided in this case were
subject of discussion in the Presidential Reference (n 27), the legal position
on the need for transparency and non-arbitrariness in decision-making has
not changed after the opinion on the Reference was delivered.
101. Godavarman (n 32), para 89.
102. Reliance Natural Resources (n 60), para 250.
103. Kamal Nath (n 2), para 34; Reliance Natural Resources (n 60),
para 116; N. D. Jayal v. Union of India (2004) 9 SCC 362.
104. The arguments placed before the Supreme Court in the Presidential
Reference also reflect a lack of clarity in the application of the doctrine—for
instance, on the aspect of whether it is applicable only for environmental
protection. See Presidential Reference (n 27). See also Dhananjay Mahapatra,

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 252 Shibani Ghosh

this doctrine has been generally applied by the Indian courts in

environmental cases to protect natural resources—and to that
extent there is certainly consistency—but beyond that it is difficult
to identify a core content of the doctrine that can lend a degree
of predictability in decision-making relating to natural resources,
or provide a direction to policymaking. Even if some definitional
components are identified, the relevance of the doctrine in today’s
context is uncertain. There are at least four arguments that can be
made to support this observation.

Lack of a Reasonably Comprehensive Definition

Courts in India are yet to provide a reasonably comprehensive

definition of the doctrine. A review of the case law does not help
to delineate a set of situations in which the public trust doctrine
would be relevant, and those in which it can be excluded. It appears
to be a tool used by the judiciary to review actions of the executive,
but is yet to find explicit place in any national environmental law.105
The lack of a proper definition has meant that one cannot describe
the nature of protection that would be available to properties held
in public trust—what does it mean, in law, to be a trust property?
What kind of restrictions does it place on existing rights, private or
public? How will executive or legislative decision-making relating
to public trust property be different from properties not held in
trust? Is there a different standard of assessment or a different
(heavier) burden of procedural requirements to be met?

‘Centre seeks SC clarity on RIL-KG basin verdict’ The Times of India

(20 July 2012) <http://articles.timesofindia.indiatimes.com/2012-07-20/
india/32763794_1_natural-resources-natural-gas-kg-basin-gas> accessed
27 April 2017.
105. The Draft National Water Framework Bill 2016 defines ‘public
trust’ to mean the doctrine that the State, at all levels, holds natural
resources in trust for the community [Clause 2(r)]. Available at <http://
wrmin.nic.in/writereaddata/Water_Framework_May_2016.pdf> accessed
27 April 2017.

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 Public Trust Doctrine in Indian Environmental Law 253

Indian courts have referred to the three restrictions mentioned

in American case law and summarised by Sax to determine
violation of the public trust doctrine106—first, the trust property
must not only be used for a public purpose, but it must be held
available for use by the general public; second, the property must
not be sold, even for a fair cash equivalent; and third, the property
must be maintained for particular types of uses. Significantly, Sax
acknowledged the limitations of defining the doctrine in terms of
these three restrictions. In his 1970 article, he noted, ‘the case law
has not developed in any way that permits confident assertions
about the outer limits of state power’.107 Notwithstanding the
cautious approach taken by Sax, Indian courts have used his
tentative formulation as a basis for the doctrine in the country.
Contexualising this formulation in the Indian legal system and
decision-making processes for natural resources is important.
There are two main issues which arise with regard to the first
restriction—what constitutes ‘public purpose’, and whether it is
even possible for natural resources to be used for a public purpose
and be available for use by the general public. Case law suggests
that it is important to show that a ‘public purpose’ is being served
by alienating a natural resource. But it does not identify the criteria
for what constitutes public purpose. Is public purpose assessed
based on the value derived from the operations itself—for example,
employment generated, boost to local businesses, and increased
domestic demand for input goods? Or would the outcome or
product of the operations be the determining factor? For instance,
the Supreme Court in the Intellectuals Forum case observed that
the right to shelter was not ‘so pressing’ if the housing projects that
were coming up in public trust lands, water tanks in this case, were
meant for high and middle income group.108 In another case, it held
that de-reservation of common grazing lands was permissible in
exceptional circumstances and for public purpose (in this case for

106. See text and discussion accompanying n 64 to n 85.

107. Sax (n 7) 486.
108. Intellectuals Forum (n 15), para 92.

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 254 Shibani Ghosh

a hospital). 109 Similarly, the Madras High Court in S. Venkatesan

upheld the construction of a bus stand on part of a water body (eri),
as there was a dire need for a bus stand in the area.110 A definitional
ambit for ‘public purpose’ is, therefore, crucial to the application of
the public trust doctrine.111
The dual criteria of alienation being for a public purpose and
continued public access to trust property even after alienation is
equally hard to meet. If one were to take the example of coal or
any other mineral,112 the government routinely allocates mines to
private and public-sector enterprises. Suppose an enterprise mines
coal, which feeds the domestic iron ore industry. While it could
certainly be argued that the coal is being used for a public purpose
(crucial for building infrastructure), once the coal is allocated to
the enterprise, it will not be accessible to the general public, as
the enterprise would necessarily enjoy some exclusivity in access to
carry out its activities. A similar argument can be made for water. If
access to flowing water is given for construction of a hydro-power
project, it serves a public purpose, but it significantly reduces water
availability downstream for public use.
The second restriction—that sale of trust property, even
in return of a fair cash equivalent, is not permissible—is of little
relevance in the Indian context. The government regularly alienates
natural resources such as minerals and forests in return for money,

109. State of Jharkhand and Ors v. Pakur Jagran Manch and Ors (2011) 2
SCC 591, para 23. Although the Supreme Court did not refer to the public
trust doctrine in this case, it overruled the judgment of the High Court of
Jharkhand, which had relied on the doctrine to disallow de-reservation of
grazing lands.
110. S.Venkatesan v. Government of Tamil Nadu MANU/TN/1580/2011.
111. ‘Public purpose’ has been defined in the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act 2013. But the definition is so wide that the use of natural resources for
such purposes would hardly ever be limited by the public trust doctrine.
112. In Kalinga Power Corporation (n 49), the High Court of Delhi
considered coal to be a public trust property.

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 Public Trust Doctrine in Indian Environmental Law 255

and there are laws which regulate such activities.113 This alienation
is often, but not always, done through a process which aims to
maximise government revenue. Furthermore, in Intellectuals Forum,
the Supreme Court had emphasised the fact that the doctrine does
not prohibit alienation of trust property,114 a position subsequently
reinforced by the Supreme Court’s opinion in the Presidential
Reference.115
The possibility of alienation of natural resources in return
for compensation finds support in Supreme Court judgments. In
the Reliance Natural Resources case, the Supreme Court had held
that the central government could not transfer title of resources
listed in Article 297 of the Constitution after their extraction,
unless it received just and proper compensation for the same.116
Furthermore, in the Presidential Reference opinion, the judges of
the Supreme Court accepted that there are various ways in which
the price of natural resources can be discovered and one of them
is through an auction.117 In such cases, an economic valuation of

113. The process of alienation and limits thereof would depend on the
relevant laws. For instance, in the context of minerals, the government
would only be able to alienate minerals or rights in minerals to the extent
such rights vest in it. See Thressiamma Jacob and Ors v. Geologist, Department
of Mining and Geology and Ors (2013) 9 SCC 725, wherein the Supreme
Court held that all mineral wealth/subsoil rights do not vest in the State.
114. Intellectuals Forum (n 15), para 76.
115. Presidential Reference (n 27), para 90.
116. Reliance Natural Resources (n 60), para 250.
117. Presidential Reference (n 27), para 146. In the context of auctioning
of minor minerals, the Supreme Court held in Ram and Shyam Co. v. State
of Haryana (1985) 3 SCC 267:
12. ... disposal of public property partakes the character of a
trust in that in its disposal there should be nothing hanky panky
and that it must be done at the best price so that larger revenue
coming into the coffers of the State administration would serve
public purpose ... This is subject to one important limitation
that socialist property may be disposed at a price lower than the
market price or even for a token price to achieve some defined
constitutionally recognised public purpose ...

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 256 Shibani Ghosh

the resource would have to be undertaken by the bidders, and

the government would transfer trust property in exchange of the
price quoted, generally, by the highest bidder. In fact, the judges,
in their opinion, also envisage a scenario where the trust property
would have to be distributed through a competitive and revenue
maximizing process, or else it would ‘face the wrath of Article 14
of the Constitution’.118 Therefore, an embargo on sale of trust
property in the Indian context is not tenable.
The third and final restriction on the government is that trust
property has to be maintained for particular types of uses. However,
if one looks at the manner in which certain natural resources are
utilised by government and private enterprises, it would seem
that restrictions on how to maintain or use such property are not
consistently applied.
For instance, forests are permitted to be used for non-forest
activities, such as mining or road construction, after statutory
approvals are granted.119 Commercial enterprises such as hotels
and resorts built along the coast not only restrict public access to
‘their’ part of the beach,120 but also allow the beaches to be used
for activities which are not related to the natural use peculiar to
beaches (for example, music concerts and parties). And finally,
the construction of a dam for the production of power affects the
natural flow of the river. The kind of ecological diversity that the
river could naturally support diminishes. Even other uses derived
from the river, such as fishing, nutrient source (post-flooding) and
spiritual significance, are irreversibly affected. But construction of
hydro-electric power projects is a stated objective of the government
of India.121

118. Presidential Reference (n 27), para 149.

119. Forest (Conservation) Act 1980 s 2.
120. See, for example, Fomento Resorts (n 30).
121. See, for example, the official website of NHPC Limited, a
Government of India enterprise involved in development of hydropower
<http://www.nhpcindia.com> accessed 27 April 2017.

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 Public Trust Doctrine in Indian Environmental Law 257

Therefore, the three general restrictions on government action

relating to public trust property as discussed by Indian courts
cannot be applied to many decisions relating to natural resources,
leaving the definition and applicability of the public trust doctrine
murky. The opinion of the Supreme Court in the Presidential
Reference suggests that perhaps the only defining aspect of the
public trust doctrine that the Court considered important was
that it mandates high judicial scrutiny. The Court emphasised this
higher degree of judicial review as it was required by Article 14
of the Constitution of India in the context of allocation/alienation
of natural resource.122 It is unclear whether after this opinion, the
public trust doctrine would be applied only in this ‘narrow’ sense,
or would courts still apply the three-pronged test.

Application of the Doctrine to

all Natural Resources is Problematic

The aforementioned definitional ‘crisis’ is further problematised

by the fact that Indian courts consider all natural resources to be
held in public trust. This has been the position of the courts since
Kamal Nath (which said ‘all ecosystems’), and in its opinion in
the Presidential Reference, the Supreme Court observed that ‘[a]s
far as “trusteeship” is concerned, there is no cavil that the State
holds all natural resources as a trustee of the public and must deal
with them in a manner that is consistent with the nature of such a
trust’.123

122. Presidential Reference (n 27), paras 93, 96–107.

123. Ibid., para 88. This was perhaps in response to the argument raised
by the Attorney General of India during the hearing that the application of
the doctrine to all natural resources, as was done by the Supreme Court in
the 2G Spectrum case, was creating confusion and needed to be clarified.
According to him, the public trust doctrine applies to ‘certain common
properties pertaining to the environment, like rivers, seashores, forest and
air, meant for free and unimpeded use of the general public’.

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 258 Shibani Ghosh

Case law analysis does not reveal a rationale for why all natural
resources deserve special protection of the public trust doctrine.
Courts have made general observations, which are applicable to all
natural resources—‘great importance to the people as a whole’,124
‘freely available for the use of the public’,125 ‘not the ownership of
any one State or individual, the public at large is its beneficiary’,126
‘belongs to the public’127 or ‘are a national asset to be used for the
good/betterment of public at large’.128 These observations touch on
various characteristics of a natural resource—the value that humans
attach to it, whether historically it has been available for public use,
who owns it, what should it be used for—but do not identify any
intrinsic value or characteristic of a natural resource.
Although the definitional ambit of the public trust doctrine
is not entirely clear, it is safe to assume that the doctrine offers
a special kind of protection to trust property, and restricts the
government’s ability to alienate the property or modify its nature.
This obligation, therefore, requires the government to be far more
circumspect and rigorous in its decision-making with regard to
these trust properties.129 Furthermore, the doctrine mandates that
decisions involving a natural resource have to be subjected to a
‘high degree of judicial scrutiny’.130 While from an environmental
point of view, closer scrutiny of any decision which diminishes
the ecological value of a natural resource is desirable, a ‘broader

124. Kamal Nath (n 2), para 25.

125. Intellectuals Forum (n 15), para 76.
126. Godavarman (n 32), para 68.
127. Perumatty Grama Panchayat (n 39), para 13.
128. Kalinga Power Corporation (n 49), para 11.
129. The Supreme Court in Intellectuals Forum noted that there was
a distinction between the government’s general obligation to act for the
public benefit, and the special more demanding obligation which it may
have as a trustee. See Intellectuals Forum (n 15), para 76.
130. Intellectuals Forum (n 15), para 76; Presidential Reference (n 27),
para 93.

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 Public Trust Doctrine in Indian Environmental Law 259

application’ of the doctrine beyond environmental cases131 could be

problematic for two reasons.
First, an all-encompassing definition of ‘natural resource’
that includes resources like natural gas, air waves, and telephony
spectrum would mean that the doctrine would subject several
important economic decisions of the government to greater
scrutiny and procedural rigour. Unless such a position is given a
statutory basis, it is unlikely to pass judicial muster. Indian courts
have repeatedly held that in issues of economic policy they would
be reluctant to intervene.132 The possibility that the doctrine may
be used as a vehicle to disregard the separation of powers set in
the Constitution may undermine the importance of the doctrine
in Indian law.
Second, as the doctrine is applicable to all natural resources,
its application and meaning as an independent legal doctrine
has become indiscernible from the equality jurisprudence under
Article 14 of the Constitution, and the directive principle of
state policy (DPSP) under Article 39(b),133 as developed by the
Indian courts. In two cases discussing the public trust doctrine,
the Supreme Court has eluded to the need to read the equality
jurisprudence under Article 14 and the public trust doctrine
together.134
While the Supreme Court has expounded on various facets
of Article 14 expansively, the one most relevant to the present
discussion is that any action of State has to be ‘fair, reasonable,

131. Reliance Natural Resources (n 60), para 114.

132. BALCO Employees’ Union (Regd) v. Union of India and Ors (2002)
2 SCC 333; Peerless General Finance and Investment Co. Ltd and Anr v.
Reserve Bank of India (1992) 2 SCC 343; M/s Prag Ice and Oil Mills and
Anr v. Union of India (1978) 3 SCC 459.
133. Article 39: ‘Certain principles of policy to be followed by the
State—The State shall in particular, direct its policy towards securing:
(a) ...
(b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common good ...’
134. See 2G Spectrum case (n 44); Presidential Reference (n 27).

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 260 Shibani Ghosh

non-discriminatory, transparent, non-capricious, unbiased,

without favouritism or nepotism, in pursuit of promotion of healthy
competition and equitable treatment’.135 This constitutional
principle guides all State actions, including those alienating or
affecting interests in natural resources.Whether a decision conforms
to this principle would be tested notwithstanding a claim based on
the public trust character of the property. The public trust doctrine
then, in effect, takes on a secondary character.
It is important to point out here that in its opinion in the
Presidential Reference, the Supreme Court has been reluctant to
draw a distinction between natural resources based on the purpose
for which they are being alienated. The Court was responding
to the proposition that auction can be the only constitutionally
permissible route for a finite set of natural resources which are
scarce and are being alienated for private business.136 Although
this was the limited ground on which the Court was deciding, it is
indicative of what the Court’s position could be if it were asked to
categorise natural resources based on entrenched interests.

No Clear Guidance about the Final Objective

The third reason for being skeptical about the doctrine’s content
in the Indian context is that it does not provide clear guidance
as to what is the ultimate objective. As discussed earlier, it has
generally been relied on in environmental cases to protect a natural
resource from being used for a non-natural, commercial or non-
traditional purpose, or to ensure unrestricted access to a certain
resource. It is listed along with the precautionary principle and
polluter pays principle as one of the principles that need to be
adhered to, imperatively, to preserve ecology.137 But given its wide

135. Presidential Reference (n 27), para 107.

136. Ibid., para 112.
137. Karnataka Industrial Areas Development Board v. C. Kenchappa
(2006) 6 SCC 371.

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 Public Trust Doctrine in Indian Environmental Law 261

amplitude, its value as a legal principle does not seem to be limited

to conservation. A review of the case law provides us with a variety
of reasons for applying the doctrine—conservation of a natural
resource,138 continued public access to a resource,139 retaining
public spaces,140 preventing over-exploitation of a resource for
private use,141 regulating alienation of resources considered to be
scarce,142 and respecting traditional uses of the resource.143
Given the range of interests that the doctrine aims to protect, in
some situations two or more protected interests may be in conflict,
and the doctrine then can only support one but not the other.
Continued public access to a natural resource could hamper efforts
to conserve the resource.144 Another example would be allowing
traditional uses of a resource (such as fishing in a village pond)
at the risk of over-exploitation of the resource. In such situations,
the doctrine’s role is limited to triggering an assessment, such as
a cost–benefit analysis, of the competing interests. The doctrine
itself has little control over the final decision. Sax had envisaged
the public trust doctrine to be a principle of rational management
of natural resources.145 Implicit within his perspective are two
assumptions: first, that natural resources would be utilised in some
form by humans, even if for recreation or pleasure (for example,

138. Kamal Nath (n 2); Environment Protection Committee (n 50).

139. Fomento Resorts (n 30).
140. M. I. Builders (n 28); Paryavaran Avam Januthan Mission (n 52).
141. Keshoram Industries (n 39); Perumatty Grama Panchayat (n 39).
142. Reliance Natural Resources (n 60); 2G Spectrum case (n 44).
143. Intellectuals Forum (n 15).
144. For example, some wildlife conservationists argue that restricting
public access to forests could assist in restoration of forest ecology. See
A. J. T. Johnsingh, ‘Lessons from Uttaranchal’, (2005) 22(4) Frontline
(2–15 July). Interestingly, Lazarus found the public trust doctrine to be
at odds with modern environmental concerns because, according to him,
modern environmental laws had to necessarily restrict access to protect the
resources, whereas public access was an important public trust guarantee.
See Lazarus (n 10) 711.
145. Sax (n 7) 565.

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 262 Shibani Ghosh

visiting a national park)146 and second, that the management of

resources has to be tested by criteria such as rational decision-
making and procedural propriety, not by goals such as conservation
or continued access.
The possibility of a variety of interests, some conflicting, leads
to another set of concerns relating to the identification of affected
constituencies which, in a way, have to be determined a priori. As
discussed earlier,147 a decision that alienates a public trust property,
or affects interests in it has to possess certain qualities, must be
made after an adequate assessment of all relevant considerations
and interests,148 be made through a transparent and non-arbitrary
process,149 and must protect the rights not only of the present
generation but future generations too.150 A prerequisite for a decision
to have all these qualities is that the decision-maker should be able
to identify as many affected constituencies as possible to elicit their
opinion and gauge their interests in the public trust property.
Who are the affected constituencies and how much weightage
should be assigned to each constituency’s opinion can be a deeply
contested determination, particularly since different constituencies
may have conflicting interests. It is not only the opinion of current
beneficiaries of a public trust property that is relevant. It is also
those who are likely to or could have interests in it, in the future,
such as people who have not visited a public park but are likely to
some time in future; those who will be affected by the new use of
the natural resource such as the lower riparians in case of a hydro-
power dam; those who have an indirect interest in the property,

146. The Supreme Court’s definition of natural resource in the

2G Spectrum case is in line with this approach. However, the Supreme
Court’s view in Godavarman (Sandalwood case) that there is a need to
rid environmental decision-making and jurisprudence in the country
of anthropocentric thinking runs contrary to Sax’s perspective.
T. N. Godavarman v. Union of India (2012) 3 SCC 362.
147. See text and discussion accompanying n 95 to n 102.
148. M. I. Builders (n 29), para 50.
149. 2G Spectrum case (n 44), para 85.
150. Godavarman (n 32), para 89.

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 Public Trust Doctrine in Indian Environmental Law 263

such as that a botanist may have in preserving a particular patch

of a grassland because it supports certain rare plant species. In the
Indian milieu, the social, economic and political conditions are
immensely relevant to how loudly (or softly, or not) constituencies
voice their opinions. Furthermore, certain affected constituencies
(including the environment itself) may not be represented at all.
Case law on public trust doctrine does not provide much
guidance on how constituencies are to be identified, and even less
on which of the constituencies should be given preference in case of
a conflict. Is it a question of number of people who will be affected?
Or is it a monetary valuation? And often, it would not just be a
question of which constituency has to be given preference, but how
much importance should be attached to the interests of a particular
constituency. If there are multiple uses of the natural resource, some
‘more public’ than others (example, drawing water for irrigation or
drinking purposes, commercial and sustenance fishing, praying, or
bathing in a lake), then how should values be attached?
Identification of stakeholders and undertaking a proper
assessment of relevant considerations presupposes the suitability
of a cost–benefit analysis or some other similar test. The Supreme
Court indicated the need for such an analysis in M. I. Builders. But
an inherent contradiction in accepting a cost–benefit analysis for
a public trust property lies in the fact that undertaking it would
require valuing intrinsic characteristics of a resource, which are
typically unquantifiable.151

Lack of Strong, Independent Legal Basis

The fourth argument is the weak legal basis of the doctrine. All
major public trust cases in India have relied on the doctrine only in

151. This concern has been discussed by scholars in the American

context as well. See, for example, Lazarus (n 10) 684–85; William
D. Araiza, ‘The Public Trust Doctrine as an Interpretive Canon’ (2012) 45
UC Davis Law Review 693, 733; Brian E. Gray, ‘Ensuring the Public Trust’
(2012) 45 UC Davis Law Review 973, 984.

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 264 Shibani Ghosh

conjunction with other statutory provisions. It is difficult to predict

the outcome of a case in which the public trust doctrine is the
only legal principle with no other substantive law relevant to the
cause of action. In most public trust doctrine cases in India, the
doctrine was not the only relevant law. Kamal Nath had a clear
case of encroachment of reserved forest land by a private hotel;
in M. I. Builders, there was a statutory duty on the municipal
corporation to protect public parks; and in Fomento Resorts, there
was a statutory provision under the land acquisition law which
prohibited the hotel from blocking access to the beach. Even in the
Intellectuals Forum case, the Supreme Court relied on several other
principles such as sustainable development and intergenerational
equity to finally deliver the order that it did.
By 1996 when Kamal Nath was decided, the main central
environmental laws were already in place. Although the scope and
effectiveness of these laws and notifications issued under them had
been, and continue to be, a subject matter of debate, these laws
provided potential tools in the hands of the government, and the
people, to regulate environmental degradation. In Kamal Nath, the
Supreme Court decided to import the public trust doctrine into
Indian law to reinforce existing environmental law—in this case, the
Forest (Conservation) Act 1980. It was the poor implementation of
a law that created an opening for the doctrine, not the absence
of laws. Therefore, from the very beginning, the Supreme Court’s
treatment of the doctrine is one that complements other legal
provisions.152
The case regarding the right to exploit groundwater in
Plachimada, Kerala, is an important example in this context. The

152. Interestingly, to counter some of the criticisms of the public trust

doctrine, particularly regarding its weak legal foundation, it has been
proposed that the doctrine be used as ‘a canon of construction rather
than a freestanding, legally binding, legal principle’ and as ‘a background
principle against which positive legislation and administrative actions
are construed and reviewed’ when it is being extended to ‘drylands’. See
Araiza, ibid.

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 Public Trust Doctrine in Indian Environmental Law 265

Single Judge Bench of the Kerala High Court relied on the public
trust doctrine to hold that ‘the underground water belongs to the
general public’ and that a soft drink manufacturing company had
‘no right to claim a huge share of it and the Government have no
power to allow a private party to extract such a huge quantity of
ground water, which is a property, held by it in trust’.153 The Court
held that even though there was no law protecting groundwater, it
was an obligation on the government and the Panchayat to protect
it from excessive exploitation.154
In appeal, the Division Bench of the Kerala High Court
overruled the Single Bench, deciding in favour of the company.155
The High Court observed that ‘[a]bstract principles cannot be the
basis for the Court to deny basic rights, unless they are curbed by
valid legislation’. It did not consider the Single Judge’s reasoning,
based on the public trust doctrine, to be adequately persuasive. The
case is now before the Supreme Court awaiting a final decision,
but the differing views of the two benches of the High Court well
illuminate the problems in implementing the doctrine, and its
limitations in defining and protecting rights.

Rescuing the Public Trust Doctrine

The seemingly haphazard manner in which the public trust

doctrine has developed is not unique to it, as other principles in
Indian environmental law have developed similarly. Environmental
cases rarely raise clear-cut issues of legal interpretation of a
statutory provision. Instead, they address a spectrum of issues with
social, political, economic and cultural implications. Courts are
often left with no option but to respond creatively, not necessarily

153. Perumatty Grama Panchayat (n 39), para 13.

154. Ibid.
155. Hindustan Coca-Cola Beverages (P) Ltd V. Perumatty Grama
Panchayat (2005) SCC OnLine Ker 206.

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 266 Shibani Ghosh

legalistically, aiming to minimise environmental damage, but

occasionally at the cost of developing strong legal precedent.
Pressures on natural resources are rapidly increasing in India
leading to frequent contestations. In this scenario, despite inherent
difficulties, the public trust doctrine performs an important
function in the legal tool box of the conservation community. To
save it from legal redundancy, it is perhaps prudent to develop an
understanding of the doctrine that is conceptually better suited to
Indian environmental regulation.
Presently, the law permits the invocation of the doctrine
in a large variety of cases dealing with natural resources. If the
doctrine is relied on only to protect natural resources that exist in
a pre-defined set of circumstances, and the nature of protection
that may be expected from the doctrine is outlined, the doctrine
could be protected from dilution, and a charge of irrelevance. It is
proposed that for a natural resource to be protected by the public
trust doctrine, it must possess at least one of the following four
characteristics.
First, the general public is currently benefitting or accessing, or
in the near past has benefitted or accessed, the resource. The nature
of benefit could be environmental, aesthetic, religious, social,
scientific, or something which contributes towards sustenance
livelihood—but not commercial. The ‘general public’ could be
an identified group of people such as those sharing a historical
association or a religious belief connected with the resource (for
example, a tribe worshipping a sacred grove); sharing a common
source of livelihood (for example, fisher folk or forest dwellers);
or sharing a scientific interest in an aspect of the resource (for
example, botanists researching on an endemic species).
Second, the benefit from the natural resource accrues to the
general public almost directly and not through a commercial
process. This means that the use of the natural resource does not
depend on mechanised processes that are difficult to implement
on an individual or small scale. For instance, coal cannot be used
directly from the ground. It has to be first mined with the help of
massive infrastructure and then processed. The same reasoning can

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 Public Trust Doctrine in Indian Environmental Law 267

be used to exclude natural gas and oil from the purview of public
trust doctrine.
Third, the value of the resource is predominantly intangible,
something which is difficult to replace, replicate, or monetarily
value. Even though a national park may not be frequently visited
and its economic value is difficult to monetise, it has immense
ecological value.156 Protected areas in the country and unique
geological formations (such as the Rann of Kutch) should be
considered as held in trust.
Fourth, the nature of the resource is such that it is publicly
shared and/or enjoyed. Restricting its use to a few people by
limiting the access and/or use of the resource would adversely affect
the enjoyment by many, including future generations. Examples of
such natural resources would be groundwater157 and beaches.158
An important factor of this proposed identification process is
that natural resource must be identified as public trust properties
contextually, that is, the protection of the doctrine may extend to
a natural resource in a particular context, but not in every context.
For example, mineral deposits would not be held in public trust
generally, but if they exist beneath forests which are held in trust,
then the minerals are also public trust property.
The public trust doctrine has figured in Indian law as a judicial
doctrine. But it is important that it permeates executive decision-
making as well. The first line of defence for properties held in
trust are the relevant administrative agencies or regulators. These
agencies need to effectively implement the principles of public

156. A similar argument to consider natural capital and ecosystem

services as part of the ‘utilitarian core’ of the public trust doctrine in the
American context was made in J. B. Ruhl and James Salzman, ‘Ecosystem
Services and the Public Trust Doctrine: Working Change from Within’
(2006) 15(1) Southeastern Environmental Law Journal 223.
157. Keshoram Industries (n 39); Perumatty Grama Panchayat (n 39); See
also Philippe Cullet, ‘Groundwater Law in India towards a Framework
Ensuring Equitable Access and Aquifer Protection’ (2014) 26(1) Journal
of Environmental Law 55.
158. Fomento Resorts (n 30).

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 268 Shibani Ghosh

trust doctrine in their decision-making process.159 This could begin

by identifying resources held in trust (along the lines suggested
earlier).
Once the trust property has been identified, the public trust
doctrine should be used as a medium of democratising public
access to, and use of, natural resources held in trust. Here public
access needs to be understood in contradistinction to commercial
or private access for narrow gains (primarily monetary in
nature). The doctrine, as interpreted by Indian courts, does not
prohibit alienation of public trust resources, but it can provide
an additional level of protection to such resources. It would place
a more demanding obligation on the government to ensure that
decision-making processes for alienation or change in the use
of such resources are subject to rigorous procedural scrutiny.
Processes relating to data collection, information sharing, and
public consultation would have to be carefully designed and
meticulously followed. At a later stage, particularly when the issue
is before the judiciary, the trust property may have diminished in
value (irreversibly damaged), or interested persons may not have
the capacity to voice their opinion. Orders alienating resources
held in public trust would have to be written, well-reasoned, and
justified, taking into account all relevant considerations. Issuance
of summary executive orders amending the rules of the game
for such resources—often undertaken presently—would become
impermissible. Various competing interests (public and private)
must be assessed and considered meaningfully.
The doctrine would also place an obligation on the executive to
actively engage in the protection and conservation of resources held
in trust. Emphasising the Supreme Court’s dictum in Intellectuals
Forum, it is proposed that there be placed an express obligation on
the executive to protect from degradation natural resources held

159. See for similar argument Ronald B. Robie, ‘Effective

Implementation of the Public Trust Doctrine in California Water
Resources Decision-making: A View from the Bench’ (2012) 45 UC Davis
Law Review 1155.

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 Public Trust Doctrine in Indian Environmental Law 269

in trust, and thereby prevent the infringement of people’s rights in

these resources.
The central government has exercised its powers under the
Environment (Protection) Act,160 to declare ecosensitive zones where
environmentally harmful activities (such as mining, construction,
felling of trees, etc.) are either prohibited or regulated.161 Similar
notifications could be used as administrative instruments to
implement the doctrine, by identifying specific natural resources
that are held in public trust, according them additional protection,
and ensuring that the use of these resources, if permissible, would
be subject to higher regulatory scrutiny.
It could be argued that the nature of and rationale for legal
protection envisaged by some of the current Indian environmental
regulations is the same as that provided by the doctrine, even
though not expressly acknowledged. The Wetlands (Conservation
and Management) Rules 2017 is a case in point. The Rules
recognise the ecological significance of wetlands and the need to
protect them, and the regulatory process ensures greater scrutiny
of the use of the wetlands, which may be considered to be public
trust properties. A similar argument could be made for the Coastal
Regulation Zone Notification 2011 and the Island Protection
Zone Notification 2011. Such regulations should either expressly
mention that the public trust doctrine must guide the regulatory
processes or, at least, concerned agencies should allow the doctrine
to inform their processes.
This process could potentially increase the number of cases in
which the doctrine is raised as a legal argument before the courts
as well. As trigger factors, such as identification of a resource as
a trust property, and notifications protecting trust properties
become clear, lawyers and judges may be more inclined to use the
doctrine in cases. A public trust doctrine argument could be raised

160. EP Act s 3.
161. For central government notifications declaring ecosensitive zones,
see <http://envfor.nic.in/content/esz-notifications> and <http://www.
moef.nic.in/eco-sensitive_zone> accessed 27 April 2017.

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 270 Shibani Ghosh

in cases where the executive did not treat a natural resource as a

trust property, although it met certain criteria, or where the level
of protection that trust properties deserve was not accorded. The
(correct) application of the public trust doctrine by the executive
as a ground for judicial review, rather than just a judicial doctrine,
would also counter the possible charge of judicial overreach or
that the judiciary cannot merely substitute its view with that of the
executive.162
The public trust doctrine has been a part of Indian
environmental law since 1996, and has over the years been relied
upon by Indian courts in a wide variety of cases. This chapter, while
exploring the various facets of the doctrine, highlighted some of the
conceptual flaws in the manner of its application. However, given
the state of the environment in the country, an interpretive strategy,
as proposed by this chapter, is needed to ‘rescue’ the doctrine, to
make it an integral part of present-day environmental regulation
and a sharper tool in the tool box of the conservation community.

162. This concern has been raised specifically in the context of the
doctrine by early critics of Sax. See the text accompanying n 19 and n
22. In the context of Indian environmental jurisprudence, see Harish
Salve, ‘Justice between Generations: Environment and Social Justice’ in
B. N. Kirpal et al. (eds) Supreme but not Infallible: Essays in Honour of the
Supreme Court of India (OUP 2000) 360, 376–77; Armin Rosencranz,
Edward Boenig and Brinda Dutta, ‘The Godavarman Case: The Indian
Supreme Court’s Breach of Constitutional Boundaries in Managing
India’s Forests’ (2007) 37 ELR News and Analysis 10032.

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 seven

The Judicial Implementation of

Environmental Law in India

Dhvani Mehta*

The previous chapters in this volume have critically analysed

the manner in which the Indian judiciary has articulated and
applied environmental rights and key environmental principles.
These analyses have demonstrated that environmental rights and
principles have often been vaguely defined, and their scope and
application are unclear. On occasion, they have been used to mask
the court’s own sociopolitical leanings; in other instances, they
have merely supplemented existing enforcement mechanisms. This
inconsistency and a lack of rigour in reasoning have meant that
Indian environmental jurisprudence, for all the Supreme Court’s
widening of locus standi and expansive interpretation of Article 21
of the Constitution, has remained substantively thin.
For a fuller understanding of the import of judicial activity
(and activism) in environmental law, and in order to truly grasp
the work that environmental principles have performed, it is

* I would like to thank Radhika Chitkara, Dhruv Jadhav and Shreya

Shrivastava for their research assistance, and Shibani Ghosh for her
invaluable insight. All errors are mine alone.

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 272 Dhvani Mehta

critical to examine the manner in which courts have tried to

implement them. This chapter attempts to do this by analysing
the various implementation mechanisms employed by the courts,
in particular the Supreme Court and National Green Tribunal
(NGT). The methods that courts consider necessary to give effect
to environmental principles are likely to provide an additional clue
about the meaning and weight that they attach to these principles,
thereby complementing the analyses of environmental judgments
in the previous chapters.
This focus on judicially-developed implementation mechanisms
also highlights another theme that runs through various chapters—
the use of the courts to compel the executive to discharge its
duties towards the environment. For instance, in Vellore Citizens’
Welfare Forum v. Union of India and Ors,1 Bandopadhyay in Chapter
3 points out that the principle of sustainable development was
used to require executive and administrative authorities to give
due regard to existing policies in their decision-making processes.
Indian Council for Enviro-legal Action v. Union of India and Ors,2 one
of the leading cases on the polluter pays principle, is important not
only for the imposition of remedial costs by the Supreme Court,
but also for its orders directing the closure of polluting factories,
a power ordinarily exercised by State Pollution Control Boards
(SPCB).
The analysis in this volume, therefore, demonstrates that
an important way in which courts use environmental rights and
principles is to define the role of executive authorities, and to demand
that they take steps to remedy their improperly exercised discretion
or inaction. Given this function, studying their implementation is
also important from the point of view of the legitimacy of judicial
institutions. If courts are routinely stepping in to address executive
failure, then the successful implementation of their own orders
becomes almost indispensable to the operation of environmental
law. When even judicial directions go unimplemented, this has a

1. (1996) 5 SCC 647.

2. (1996) 3 SCC 212 (Bichhri).

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 The Judicial Implementation of Environmental Law in India 273

negative impact on the credibility of the courts and raises important

concerns of institutional competence.
These concerns have already been raised in an extensive
body of literature that addresses judicial activism, particularly
in the context of public interest litigation (PIL).3 The Supreme
Court, in particular, has been criticised for playing policymaker
while resolving complex, polycentric issues that it does not have
the technical expertise to tackle.4 The potentially paralysing
effect that this role of the courts might have on other institutions
has also been discussed.5 This chapter makes a contribution to
the existing literature by critically examining the various tools
of implementation, used by courts in environmental cases, as
indicators of the functions that courts are performing. Therefore,
one of the questions that this chapter addresses is the extent to

3. See generally Surya Deva, ‘Public Interest Litigation: A Critical

Review’ (2009) 28 Civil Justice Quarterly 19; Shubhankar Dam, ‘Lawmaking
Beyond Lawmakers: Understanding the Little Right and the Great Wrong
(Analysing the Legitimacy of the Nature of Judicial Lawmaking in India’s
Constitutional Dynamic)’ (2005) 13 Tulane Journal of International and
Comparative Law 109; Pratap Bhanu Mehta, ‘India’s Judiciary: The
Promise of Uncertainty’ in Devesh Kapur and Pratap Bhanu Mehta (eds)
Public Institutions in India: Performance and Design (OUP 2007).
4. Armin Rosencranz and Michael Jackson, ‘The Delhi Pollution
Case and the Limits of Judicial Power’ (2003) 28 Columbia Journal of
Environmental Law 223; Lavanya Rajamani, ‘Public Interest Environmental
Litigation in India: Exploring Issues of Access, Participation, Equity,
Effectiveness and Sustainability’ (2007) 19 Journal of Environmental Law
293.
5. T. R. Andhyarujina, ‘Disturbing Trends in Judicial Activism’
The Hindu (6 August 2012) <http://www.thehindu.com/opinion/lead/
disturbing-trends-in-judicial-activism/article3731471.ece> accessed 27
November 2016. For a discussion of judicial activism and institutional
paralysis in the context of the right to food, see Dan Banik, ‘Governing
a Giant: The Limits of Judicial Activism on Hunger in India’ (2010) 3
Journal of Asian Public Policy 263.

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 274 Dhvani Mehta

which judicial orders and directions stand in for executive actions,

and the extent to which they reflect the exercise of judicial powers.6
In order to provide context to this distinction between
executive and judicial functions, the next section of this chapter
discusses compliance and enforcement mechanisms under
existing environmental laws and rules. Conceptual differences
between compliance and enforcement on the one hand, and the
implementation of judgments on the other, are also discussed in this
part, with brief references to the manner in which these concepts
are treated in regulatory theory and international law. The section
that follows provides an overview of the different implementation
mechanisms used by the Supreme Court and High Courts,
focusing for the most part on cases that have been discussed in
previous chapters. Where particularly innovative mechanisms have
been used by the courts, these are discussed in greater detail. The
analytical questions that accompany the description of mechanisms
in this section are: What do these mechanisms tell us about the
ways in which courts interpret environmental principles? To what
extent are the courts straying into the executive realm by employing
these mechanisms?
Since one of the concerns of this chapter is the legitimacy of
the courts, the succeeding section attempts to determine the extent
to which some of the judicial orders and directions described in
the third section have actually been implemented. In essence, this
assesses the effectiveness of implementation mechanisms developed
by the courts. The enquiry in this section is a limited one—it does
not assess the effectiveness of implementation mechanisms by
asking whether they have had a tangible impact on the environment.
Establishing the link between judicial pronouncements and
improved environmental quality is beyond the scope of this chapter;
proving even a correlation of this sort would require extensive and
rigorous evidence-gathering. Instead, it is restricted to following

6. For a general discussion on executive and judicial functions in the

context of positive duties, see Sandra Fredman, Human Rights Transformed
(OUP 2008), Chapter 4, 92.

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 The Judicial Implementation of Environmental Law in India 275

the progress of some of the key judgments discussed in this volume.

Even this exercise is court-centric, in as much as I focus on the
manner in which the courts themselves monitor the implementation
of their own orders and directions, and the consequences that are
attached to non-implementation.
In the penultimate section, the analysis undertaken in the
preceding two sections is replicated for the NGT. The objective of
this section is to determine the impact of the creation of a specialised
environmental tribunal like the NGT. One of the reasons for the
creation of the NGT was to address some of the concerns about
the lack of competence of the High Courts and Supreme Court in
environmental matters. It is therefore important to compare the
success or the failure of the NGT in securing the implementation
of its orders and directions with these other judicial institutions.
The concluding section discusses the implications of the preceding
analyses for the legislative and institutional reforms that are
required to strengthen Indian environmental law.

Compliance and Enforcement Mechanisms

in Indian Environmental Law

A later part of this chapter demonstrates that courts have developed

implementation mechanisms, at least in part, as a response to the
failure of the executive to enforce environmental laws and rules
effectively. In order to appreciate the courts’ role fully, it is therefore
important to have an idea of the means available to executive
authorities to secure compliance with the law and to guarantee its
effective enforcement. These means may then be compared with
those employed by courts to secure the implementation of their
judgments.
However, before describing these tools of compliance,
enforcement and implementation, it is necessary to clarify the
manner in which these three concepts are employed in this
chapter, especially since compliance and enforcement mechanisms
are used with reference to one institution—the executive—and

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 276 Dhvani Mehta

implementation mechanisms are used with reference to another—

the judiciary.

Conceptual Understanding of Compliance,

Enforcement and Implementation

Compliance and enforcement are concepts that are commonly

used in regulatory literature in general,7 as well as in international
environmental law,8 and they are used here in similar ways in the
context of Indian environmental law.
Neil Gunningham describes two broad types of enforcement
strategies used by regulators—deterrence strategy, which focusses
on ‘the sanctioning of rule-breaking behaviour’, and compliance
strategy, which attempts to ‘advise and persuade’.9 This suggests
that enforcement is a broader concept than compliance—while
compliance mechanisms refer to the measures used by regulators
to ensure adherence to rules, enforcement mechanisms encompass

7. See generally Robert Baldwin, Martin Cave and Martin Lodge

(eds) The Oxford Handbook of Regulation (OUP 2010); Karen Yeung,
Securing Compliance: A Principled Approach (Hart Publishing 2004). For a
discussion of these concepts in specific regulatory areas, see Christopher
Hodges, Law and Corporate Behaviour: Integrating Theories of Regulation,
Enforcement, Compliance and Ethics (Hart Publishing 2015); Horacio Vedia
Jerez, Competition Law Enforcement and Compliance Across the World: A
Comparative Review (Kluwer Law International 2015).
8. Michael Faure, Peter de Smedt and An Stas (International Network
of Environmental Compliance and Enforcement), Environmental
Enforcement Networks: Concepts, Implementation and Effectiveness (Edward
Elgar 2015); Carl Bruch and Elizabeth Mrema, Manual on Compliance with
and Enforcement of Multilateral Environmental Agreements (United Nations
Environment Programme 2006); Rüdiger Wolfram, Means of Ensuring
Compliance with and Enforcement of International Environmental Law (Brill
Academic Publishers 1999).
9. Neil Gunningham, ‘Enforcement and Compliance Strategies’ in
Baldwin, Cave and Lodge (n 7) 120.

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 The Judicial Implementation of Environmental Law in India 277

both preventive measures to secure compliance, as well as measures

that punish wrongs.
There is much less clarity about the manner in which
implementation is understood. One of the reasons for this is that
it can be applied to a range of institutions and actors. It could
refer to steps that are required to be taken by those on whom the
law imposes obligations; it could refer to measures that public
authorities must take in order to give effect to a law or measures
that States must take to give effect to international agreements.
It has also been used interchangeably with enforcement measures
taken by the executive.
None of these uses of the term is discounted. However,
since this volume focusses on environmental cases, I discuss
implementation from the point of view of the courts, although it
may be used in different senses even in this context. In empirical
studies,10 on the role of Indian courts in realising socioeconomic
rights, implementation is viewed as one end of a spectrum of judicial
effectiveness, the other end of which assesses the impact of courts
on broader legal and policy changes in these areas. As mentioned
earlier, it is difficult to prove the direct or indirect impact of
judgments on environmental quality. Therefore, implementation is
not used synonymously with impact or effectiveness in this chapter.
Court-driven implementation has also been discussed at
length in the literature on PIL; in particular, the innovative
remedies developed by courts to overcome the limits of
traditionally adversarial judicial processes, and to monitor the
implementation of their own orders, have received significant
attention.11 The judicial implementation mechanisms described in

10. Shylashri Shankar and Pratap Bhanu Mehta, ‘Courts and Socio-
economic Rights in India’ in Varun Gauri and Daniel Brinks (eds) Courting
Social Justice (CUP 2010); Namita Wahi and Sharanjeet Parmar, ‘India:
Citizens, Courts and the Right to Health: Between Promise and Progress’
in Alicia Ely Yamin and Siri Gloppen (eds) Litigating Health Rights: Can
Courts Bring More Justice to Health? (HUP 2011).
11. Fredman (n 6), Chapter 5, 124. In the context of environmental
law, see Geetanjoy Sahu, ‘Implications of Indian Supreme Court’s

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 278 Dhvani Mehta

this chapter are closest to this understanding of implementation.

The chapter critically analyses the steps that courts consider
necessary to secure compliance with their orders, the judicial
equivalent of the enforcement mechanisms used by the executive.
However, it attempts to distinguish this analysis from the existing
literature on implementation by drawing connections between
these implementation mechanisms and the courts’ articulation
of environmental principles. Where relevant, it demonstrates
the manner in which a particular judicial understanding of an
environmental principle influences the methods that courts employ
to ensure the implementation of their orders.
The courts’ use of implementation mechanisms is also
inevitably influenced by the success or failure of the compliance and
enforcement mechanisms used by the executive. A brief overview
of the latter is therefore in order.

The Regulatory Tool Box of

Compliance and Enforcement
Inspection remains the principal compliance tool at the disposal of
the SPCBs and officials have the power to enter and take samples
of emissions or effluents under Section 21 of the Water (Prevention
and Control of Pollution) Act 1974 (Water Act) and Section 26
of the Air (Prevention and Control of Pollution) Act 1981 (Air
Act). However, the deterrence power of this tool is questionable,
with contributing factors being a lack of human and financial
resources.12 Given the human and financial resources available to
these boards, the frequency of inspections recommended in their
guidance manuals has also been termed ‘either too unrealistic or
too lenient’.13

Innovations for Environmental Jurisprudence’ (2008) 4 Law, Environment

and Development Journal 375.
12. Centre for Science and Environment (CSE), ‘Turnaround: Reform
Agenda for India’s Regulators’ (2009).
13. Ibid., 19.

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 The Judicial Implementation of Environmental Law in India 279

Courts have frequently been compelled to order site visits

or commission expert reports from bodies like the National
Environmental Engineering Research Institute (NEERI), thereby
ordering the performance of inspection and monitoring functions
that ordinarily ought to have been carried out by the SPCBs.14
For instance, in Bichhri, before apprising itself of the facts of the
situation, the Supreme Court requested NEERI to study the
pollution caused by H acid–manufacturing industries in and around
the Bichhri village and to recommend remedial alternatives, in
addition to a report already submitted by the Rajasthan Pollution
Control Board.15 This suggests that the court felt it necessary to
supplement the Rajasthan Board’s performance.
As the next section will demonstrate, courts therefore often
step in to address the failure of regulatory authorities to carry
out their compliance-related functions effectively. This judicial
regulation, so to speak, has proved particularly necessary, given
that reporting requirements under the Environment (Protection)
Rules 1986 are not adequate tools for securing compliance.
Under Rule 14, industries, operations, or processes that require
consent under the Water Act or Air Act must submit an annual
environmental statement to the relevant SPCB. This statement
must include information on the percentage of variation of the
pollutants discharged from the prescribed standards.16 Such self-
monitoring requirements ought to assume even more importance,
since the severe understaffing of SPCBs prevents them from
conducting sampling and analysis on the necessary scale.17
However, such self-disclosed data cannot be used by the regulatory
authorities to impose penalties or initiate prosecution; only samples
taken by inspectors under the authority of the relevant statute are

14. Section 17, Water Act lays down the functions of SPCBs.
15. Bichhri (n 2), para 16, referring to Court’s order dated 11 December
1989.
16. Environment (Protection) Rules 1986, Form V, Appendix A.
17. CSE Reform Agenda (n 12) 18–21.

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 280 Dhvani Mehta

admissible in legal proceedings.18 This tedious process of admitting

legal evidence of pollution might also explain why the higher courts
prefer to appoint expert committees directly to gather evidence of
pollution or other environmental harm, and to issue directions on
the basis of their reports, rather than refer cases to the lower courts
to initiate criminal proceedings.
The unavailability of accurate data from third-party audits
may also contribute to the preference for court-appointed expert
committees. In 1996, under the direction of the Gujarat High
Court,19 the Gujarat Pollution Control Board instituted an alternate
compliance mechanism that allowed for the third-party audit of
plants with high pollution potential. Under this scheme, certified
auditors submitted annual pollution readings to the Board, but a
field trial conducted by economists threw doubt on the effectiveness
of the scheme as a compliance tool.20
SPCBs carry out compliance assistance functions by providing
training and technical guidance in the form of workshops and
manuals for polluting firms, although the poor rate of compliance
by small and medium enterprises in particular suggests that
these measures have not had the desired effect.21 In the face of
this administrative ineffectiveness, courts have had to step in.
It required the sweeping oversight of the Supreme Court over

18. Alternative interpretations of these statutes permitting the use of

self-reported data for enforcement have been advanced. See ibid., 25.
19. Gujarat Chamber of Commerce and Industry v. Pravin Jashbhai Patel,
Miscellaneous Civil Application No. 1863/1995, order dated 20 December
1996, High Court of Gujarat.
20. Esther Duflo, Michael Greenstone, Rohini Pande and Nicholas
Ryan, ‘Truth-telling by Third Party Auditors and the Response of Polluting
Firms: Experimental Evidence from India’ (2013) 128 Quarterly Journal
of Economics 1499.
21. United Nations Development Programme, ‘Analysis of Existing
Environmental Instruments in India’ (2009) 11.

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 The Judicial Implementation of Environmental Law in India 281

numerous small tanneries in the Kanpur Tanneries22 case to bring

them in compliance with minimum effluent discharge standards.23
There is limited use of market-based instruments to secure
compliance and, therefore, no real opportunity to assess whether
these are likely to be more effective. The metre-based charge on
water consumption under the Water (Prevention and Control
of Pollution) Cess Act 1977 represented the only really major
statutory backing for such economic incentives.
This overview has demonstrated that environmental
compliance mechanisms under the Indian regulatory framework
are heavily dependent on a large number of technically competent
officials carrying out their functions with a high degree of regularity
and efficiency. However, SPCBs are thwarted in this because of
a shortage of funds, lack of trained personnel, and inadequate
guidance and coordination from the Central Pollution Control
Board (CPCB). The implementation mechanisms used by courts,
and described in the next part, are partly a response to these
shortcomings of the regulatory framework.
SPCBs are powerfully equipped under Sections 31A and 33A
of the Air Act and Water Act, respectively, to issue any directions
in the exercise of their functions, including directions for the
‘closure, prohibition or regulation of any industry, operation or
process’, or to stop or regulate the supply of electricity or water or
other services. Before such supply is cut off or closure is ordered,
boards issue show cause notices to defaulting units, requiring an
explanation for non-compliance. Like their inspection record, the
performance of SPCBs in converting show cause notices to closure
orders is patchy.24
One of the biggest weaknesses of the environmental
enforcement framework in India is the lack of flexibility that is

22. M. C. Mehta (Kanpur Tanneries) v. Union of India (1992) Supp 2

SCC 637.
23. Shyam Divan, ‘Cleaning the Ganga’ (1995) 30 Economic and
Political Weekly 1557.
24. CSE Reform Agenda (n 12) 23.

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 282 Dhvani Mehta

available to regulatory authorities. The SPCBs have no power to

impose civil penalties under existing laws; imprisonment sentences
may be awarded or fines may be imposed only by criminal courts.25
These proceedings are notoriously lengthy and conviction rates are
low.26 Although the NGT has the power to award compensation for
environmental damage, this fulfills the need for remediation rather
than regulation. Most proposals for regulatory reform, therefore,
recommend that the Boards be awarded more powers to calibrate
their responses to the kind of violation committed,27 and to institute
a system of financial penalties and rewards.28
As with compliance-related functions, the lack of sufficient
trained manpower also impacts the ability of SPCBs to exercise
their enforcement powers. When this is combined with protracted
proceedings to impose fines and secure convictions, it is no surprise
that proceedings before the higher judiciary or the NGT have
proved to be the preferred route for securing the enforcement
of environmental law. The nature of claims brought before the
Supreme Court and the High Courts has inevitably shaped the
implementation mechanisms relied on by them. The next section
demonstrates that courts frequently order SPCBs to exercise their
powers of closure or order closure of polluting units themselves,
thereby driving the enforcement functions of the executive.

25. Water Act ss 41 and 49; Air Act ss 37 and 43.

26. Ibid.
27. Centre for Science and Environment, ‘Filling the Blanks: A
Discussion Paper on Strengthening Environmental Governance’ (2014);
Shibani Ghosh, ‘Reforming the Liability Regime for Air Pollution in
India’ (2015) 4 Environmental Law and Practice Review 125. The most
recent proposal to introduce civil penalties is the draft Environment Laws
(Amendment) Bill 2015.
28. Report of the High-level Committee to review various Acts
administered by MoEFCC (2014), para 9.2.1.

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 The Judicial Implementation of Environmental Law in India 283

From a review of the case law, it appears that Indian courts are
more likely to invoke the precautionary principle29 and polluter pays
principle30 when dealing with instances of pollution, while in cases
where the grant of the appropriate environmental or forest clearance
or other authorisation/approval (usually related to certain uses of
resources) is challenged, the principle of sustainable development31
and public trust doctrine32 are more likely to be invoked. (These
are not, however, watertight categories—for instance, as Chapter 4
mentions, the polluter pays principle was invoked in a case dealing
with unauthorised mining and quarrying around a wildlife park.33
Similarly, Chapter 5 discusses the case of A. P. Pollution Control
Board II v. Prof. M. V. Nayudu and Ors,34 where the precautionary
principle was applied to determine whether a permit ought to be
granted to a hazardous industry.) As discussed in the next section,
the compliance and enforcement mechanisms used by the courts to
deal with these different types of violations also vary.

29. M. C. Mehta v. Union of India and Ors (1997) 2 SCC 353 (Taj
Trapezium case); Research Foundation for Science Technology and Natural
Resource Policy v. Union of India and Ors (2007) 15 SCC 193.
30. Bichhri (n 2); Deepak Nitrite Ltd v. State of Gujarat and Ors (2004)
6 SCC 402; Hindustan Coca-Cola Beverages Pvt. Ltd v.West Bengal Pollution
Control Board and Ors, Appeal No. 10/2011, judgment dated 19 March
2012, NGT (Principal Bench).
31. G. Sundarrajan v. Union of India and Ors (2013) 6 SCC 620; Goa
Foundation v. Union of India (2014) 6 SCC 590.
32. Thenkeeranur Vivasayigal Nala Sangam v. The Secretary to Government,
Ministry of Environment and Forest Union of India and Ors, OA No 193/2013,
order dated 7 August 2015, NGT (Southern Zone Bench); Kalinga Power
Corporation v. Union of India (2012) SCC OnLine Del 2090.
33. Rohit Choudhary v. Union of India and Ors, Application No. 38/2011,
judgment dated 7 September 2012, NGT (Principal Bench), para 35.
34. (2001) 2 SCC 62. See also Jeet Singh Kanwar v. MoEF and Ors,
Appeal No. 10/2011 (T), judgment dated 16 April 2013, NGT (Principal
Bench), where one of the grounds for quashing the environmental
clearance granted to a thermal power plant was that the MoEF had not
properly considered the precautionary principle.

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 284 Dhvani Mehta

Like SPCBs, the record of the Ministry of Environment, Forest

and Climate Change (MoEFCC) in monitoring compliance with
conditions attached to environmental and forest clearances is poor.35
A recent report of the Comptroller and Auditor General of India
records that the MoEFCC does not have a database of violations of
the conditions attached to environmental clearances; the report also
notes that the MoEFCC, in its reply to a Parliamentary question
in July 2016, stated that no penalty had been imposed for violating
these conditions for the preceding two years.36 The Supreme Court
appeared to have recognised the limitations of the MoEFCC in
this regard when it recommended the appointment of a national
regulator to enforce environmental conditions and impose penalties
on polluters.37 Rather than directing the MoEFCC to carry out
monitoring functions, in some cases,38 the NGT has ordered the
constitution of expert committees to monitor conditions attached
to environmental clearances and to submit monitoring reports
to the Tribunal. This suggests that the MoEFCC is unable to
discharge its duties fully, perhaps prompting courts to develop their
own compliance and enforcement mechanisms.
This section has described the regulatory tools available to
the authorities to secure compliance with and enforce Indian
environmental law, and described the limitations of the authorities
in utilising these tools. This creates the context for the next
section, which describes the different implementation mechanisms
developed by courts.

35. Kalpavriksh, ‘Calling the Bluff: Revealing the State of Monitoring

and Compliance of Environmental Clearance Conditions’ (2009).
36. Report of the Comptroller and Auditor General of India on
Environmental Clearance and Post Clearance Monitoring (Report No. 39
of 2016).
37. Lafarge Umiam Mining Pvt. Ltd v. Union of India and Ors (2011) 7
SCC 338, Part II (i).
38. Wilfred v. Ministry of Environment and Forests, OA No. 74/2014,
judgment dated 17 July 2014, NGT (Principal Bench); Bhagat Singh
Kinnar v. Union of India, Appeal No. 14/2011 (T), judgment dated 28
January 2016, NGT (Principal Bench).

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 The Judicial Implementation of Environmental Law in India 285

Implementation Mechanisms Developed by the Courts

In this section, we focus on the orders and directions of courts

that follow the articulation of legal principles. The objective is
two-fold: First, to analyse whether these orders and directions
that aim to implement environmental rights and principles tell
us anything about the courts’ understanding of the rights and
principles themselves; second, to examine the extent to which these
implementation mechanisms represent an exercise of executive
or judicial functions. I have identified three broad objectives that
judicially-developed implementation mechanisms in environmental
cases serve—evidence-gathering, monitoring, and prevention of
environmental damage and remediation.
Different kinds of mechanisms can fulfil one or more objectives.
Judicial inspections and the appointment of commissioners or
committees primarily serve the objective of obtaining expert opinion,
although they could also be used to monitor the implementation of
court orders, and their findings might form the basis for directions
for remediation. The continuing mandamus is the centrepiece of
monitoring mechanisms employed by courts, often supplemented by
the appointment of authorities under Section 3 of the Environment
(Protection) Act 1986 (EP Act).39 Mechanisms for prevention of
environmental damage and remediation include injunctions that
courts use to stop environmental damage, as well as directions
issued to restore the environment. Awards of compensation also
fall within this third category. The following paragraphs describe

39. Section 3(3) of the EP Act empowers the central government to

constitute authorities for the purpose of exercising powers and functions
under the Act, including the power to issue directions under Section 5.
Examples include the Central Empowered Committee and the Loss of
Ecology (Prevention and Payment of Compensation) Authority, set up in
compliance with directions of the Supreme Court in T. N. Godavarman
Thirumalpad v Union of India (2013) 8 SCC 198 and (2009) 17 SCC 755
and Vellore (n 1), respectively.

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 286 Dhvani Mehta

the various mechanisms across these groups, using examples from

cases analysed in the previous chapters.

Evidence-gathering Mechanisms

These are among the most commonly employed implementation

mechanisms, with courts using them to give effect to most
environmental principles in different ways that are explained here.
The term ‘evidence-gathering’ mechanism is being used to refer to:
a) those used by courts to ascertain the state of the environment;
and b) those used to provide technical expertise to courts. The
first type of mechanism, which is more of a fact-finding exercise,
is more commonly understood as part of the judicial function—for
example, fact-finding powers are vested in civil courts while trying
a suit under the Code of Civil Procedure 1908. These include the
power to summon and enforce the attendance of persons, require
the discovery and production of documents, and issue commissions
for the examination of witnesses and documents.40 In the exercise
of their writ jurisdiction under Articles 32 and 226, the Supreme
Court and High Courts have developed similar fact-finding
mechanisms—spot visits by judges41 and inspections by Pollution
Control Boards,42 independent expert committees43 or institutions

40. See Code of Civil Procedure 1908 ss 30 (power to order discovery

and the like) and 75 (power of court to issue commissions); NGT Act
s 19(4).
41. For examples of cases in which Supreme Court judges have made
spot visits to sites in order to understand the issues involved, see Sahu (n
11) 383–84.
42. M. C. Mehta v. Kamal Nath (1997) 1 SCC 388; Vineet Kumar
Mathur v. Union of India (1996) 1 SCC 119, where the Supreme Court
directed SPCBs to inspect polluting industries for the installation of
effluent treatment plants.
43. M. C. Mehta v. Union of India (1986) 2 SCC 176 (Oleum Gas Leak
case). The Supreme Court appointed a team of experts to inspect the

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 The Judicial Implementation of Environmental Law in India 287

like NEERI,44 court-appointed Commissioners,45 and even amicus

curiae.46
As the cases in footnotes 41–46 demonstrate, these fact-
finding mechanisms have been employed by courts at various
stages. In some instances, they are used to determine the existence
of violations or the extent of environmental damage.47 When used
in this manner, in cases relating to the public trust doctrine, such
mechanisms are used to inform final orders and directions that
require the restoration of the environment.48
These mechanisms are also used to give effect to the polluter
pays principle. Experts are appointed to assess the damage and
estimate the costs of restoration. In Kamal Nath, the Supreme
Court ordered NEERI to prepare a report on the costs that would
be incurred in restoring the environment, after damage was caused
to the river banks of the Beas due to construction activities by a
motel.49 This report was then used as the basis of a show cause
notice issued to the motel, demanding why it ought not to bear

caustic chlorine plant where a leak had occurred, in order to report on

the implementation of the recommendations by another expert committee.
44. M. C. Mehta v. Union of India (1997) 3 SCC 715, where the Supreme
Court ordered NEERI to file an inspection report on the geological
features of the Badkhal and Surajkund lakes.
45. M. I. Builders v. Radhey Shyam Sahu 1999 (6) SCC 464, where the
former Head of the Department of Building Engineering and Management
was appointed as a Commissioner by the Court to determine the nature of
construction at a public park.
46. In Paryavaran Avam Januthan Mission v. Lieutenant Governor (2009)
SCC OnLine Del 3720, which concerned the use of a public park for non-
ecological purposes, the Delhi High Court appointed an amicus curiae to
inspect the park and file a status report.
47. In Hindustan Coca-Cola Beverages (P) Ltd v. Perumatty Grama
Panchayat (2005) SCC Online Ker 206, the Centre for Water Resources
Department and Management was appointed to conduct an investigation
to determine whether the factory had created a shortage of drinking water
through its over-exploitation of groundwater.
48. For examples of these cases, see Chapter 6.
49. Kamal Nath (n 42).

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 288 Dhvani Mehta

the costs of reversing damage to the environment, and why an

additional fine ought not to be imposed.50 A NEERI report was
used in a similar manner as a show cause notice to polluting
industries in the Bichhri case, proposing an amount required for
remedial measures.51 However, as Chapter 4 on the polluter pays
principle demonstrates, there is no consistency as regards the
body appointed to conduct such fact-finding. In Deepak Nitrite v.
State of Gujarat,52 the Supreme Court directed the Gujarat High
Court itself to determine whether there was any damage to the
environment, and if so, to lay down the norms that it ought to apply
in determining the appropriate amount of compensation.
Fact-finding mechanisms may also be used to determine
whether a particular environmental principle can meaningfully
be applied. In Intellectuals’ Forum v. State of Andhra Pradesh, the
Secretary, Ministry of Water Resources, was directed to constitute
a Committee of Experts to determine whether two historical tanks
in Tirupathi could still be utilised for water harvesting, which,
it was argued the public trust doctrine would have required.53
Another important use of such mechanisms is to assess the degree
of compliance with the court’s orders and directions, but these
are more usefully discussed in the next section on monitoring
mechanisms.
The second type of evidence-gathering mechanisms are those
where expertise is used to inform judicial decisions substantively, in
the sense that courts balance environmental interests against other
concerns using expert evidence, or frame directions on the basis of
expert recommendations.
One of the first cases in which the Supreme Court balanced
developmental interests against ecological concerns, Rural

50. M. C. Mehta v. Kamal Nath (2002) 3 SCC 653, para 2, referring to

Court’s order dated 19 December 1996.
51. Bicchri (n 2), para 70.
52. (2004) 6 SCC 402.
53. (2006) 3 SCC 549, para 35 referring to Court’s order dated 5
December 2003.

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 The Judicial Implementation of Environmental Law in India 289

Litigation and Entitlement Kendra v. State of Uttar Pradesh and Ors,54

is a good example of the manner in which the Court has used
expert evidence—it often relies on multiple authorities,55 but does
not appear to have developed consistent criteria to evaluate and
give weight to different kinds of evidence. While the Court may
rely heavily on expert recommendations to frame its directions;56
it may also overrule the recommendations of expert committees
without providing supporting reasons.57 The failure of courts to
develop uniform standards governing the use of such evidence has
meant that evidence-gathering mechanisms have lost some of their
credibility. Instead, they appear to be substitutes for the exercise of
legal reasoning by the courts.
In Dahanu Taluka Environment Protection Group v. Bombay
Suburban Electricity Supply Company Limited,58 rather than engage
in evaluating the comparative merits of a set of expert reports on
the one hand, and the recommendations of an Expert Appraisal
Committee (EAC) appointed by the central government on the
other, the Supreme Court used judicial deference to approve the
environmental clearance granted by the central government to
a thermal power plant.59 Other authors have also remarked on
this non-engagement with expert evidence, especially when it is
contrary to the government’s development agenda, as some of the
litigation on large dams demonstrates.60

54. (1985) 2 SCC 431.

55. In Rural Litigation, at least three different expert groups were
appointed (two by the Supreme Court, one by the government) to inspect
limestone quarries in the region and make recommendations on their
closure.
56. Oleum Gas Leak case (n 43), para 20.
57. Rural Litigation (n 54), para 8.
58. (1991) 2 SCC 539.
59. Ibid., para 2. The Court stated that its role was restricted to
examining whether the government had taken all relevant aspects into
account.
60. See the discussion on Tehri Bandh Virodhi Sangharsh Samiti v.
State of Uttar Pradesh (1992) Supp 1 SCC 44 in Shyam Divan and Armin

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 290 Dhvani Mehta

Like fact-finding mechanisms that are used to inform the

courts’ orders and directions, expert evidence is also relied on
extensively to frame remedies. This can take several forms—making
illegal tree felling a cognisable offence on the recommendation of
a court-appointed Commissioner,61 ordering the preparation of an
eco-restoration plan as recommended by a committee appointed
under Section 3 of the EP Act,62 enforcing a recommendation in a
NEERI report to make the commencement of mining operations
contingent on approval by a designated authority,63 and demarcating
the zone within which certain polluting activities can be carried
out.64
Just as courts have relied on a range of actors to perform fact-
finding functions, the kind of expert evidence used by the courts also
varies.The courts may rely on Government-appointed committees,65
independently appoint individual experts or institutions,66 or use a
combination of both.67 The strict rules regarding the admissibility
of evidence in traditional adversarial processes are relaxed, leaving
the courts open to the charge of cherry-picking expert evidence

Rosencranz, Environmental Law and Policy in India (OUP 2001) 431–41.

See also Geetanjoy Sahu, Environmental Jurisprudence and the Supreme
Court: Litigation, Interpretation, Implementation (Orient BlackSwan 2014)
57–64.
61. Ajay Singh Rawat v. Union of India and Ors (1995) 3 SCC 266.
62. K. M. Chinappa and T. N. Godavarman Thirumalpad v. Union of India
and Ors (2002) 10 SCC 606.
63. M. C. Mehta v. Union of India (1996) 8 SCC 462 (Stone Crushing
case).
64. M. C. Mehta v. Union of India (1991) 2 SCC 353; Mohammad
Haroon Ansari v. District Collector, Ranga Reddy, Andhra Pradesh (2004) 1
SCC 491. Both these cases dealt with stone-crushing.
65. Mullaperiyar Environmental Protection Forum v. Union of India (2006)
3 SCC 643; Tehri Bandh Virodhi Sangharsh Samiti (n 60).
66. Aruna Rodrigues v. Union of India (2012) 5 SCC 331; Kennedy Valley
Welfare Association v. Ceylon Repatriates Labourers Welfare Society 2000 (2)
SCALE 143.
67. Rural Litigation (n 54); Oleum Gas Leak case (n 43).

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 The Judicial Implementation of Environmental Law in India 291

that best aligns with the sociopolitical views of the judges. An

analysis of the ‘expertisation’ of environmental adjudication argues
that the Supreme Court ‘seems to have moved on a continuum
from deference to defiance of executive fiat without any apparent
reasons for differentiating between these cases’.68
This overview of evidence-gathering mechanisms suggests that
they serve either as triggers for the application of environmental
principles, or as tools to give effect to these principles, once they
have been applied. For instance, fact-finding mechanisms have been
used quite effectively to help establish the fact of environmental
damage as well as the kind of remediation required, both of which
are essential for the operationalisation of the polluter pays principle
and public trust doctrine. When the precautionary principle and
principle of sustainable development are invoked, this is usually
followed by a judicial review of decisions taken by the executive
assessing environmental risk or balancing environmental interests
against others. Such forms of judicial review are likely to be aided
by expert evidence.
The use of such mechanisms per se by the courts does not
necessarily involve the exercise of executive functions. Courts
ought to have the flexibility to gather the facts relevant to the
adjudication of environmental disputes, which are inherently
polycentric. However, it is the use of these mechanisms by the
courts as proxies to take policy decisions about the environment
and development that encroach on executive functions. The use of
such mechanisms, especially in their fact-finding form, highlights
the failure of executive authorities to perform their crucial functions
of inspection and monitoring, prompting the judiciary to take over.
More evidence of this kind of executive failure is demonstrated in
the next section on monitoring mechanisms.

68. Nupur Chowdhury, ‘Environmental Risk Regulation and the Indian

Supreme Court: An Exercise in Deformalization of the Law’ (2014) 17
Journal of Risk Research 61, 80.

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 292 Dhvani Mehta

Monitoring Mechanisms

One of the defining procedural innovations in Indian PIL is

the continuing mandamus, which allows courts to monitor the
implementation of their orders and directions regularly. Vineet
Narain v. Union of India69 is one of the first cases in which this
mechanism was employed by the Supreme Court to monitor the
discharge by the Central Bureau of Investigation of its statutory
duty. The rationale advanced by the Supreme Court for the use of
this tool was the need for a permanent solution to the continuing
inertia of the agencies in question.70 A one-time mandamus
directing the agencies to perform their duties was deemed
insufficient; instead, it was considered more expedient to issue
directions from time to time, requiring the agencies to report to
the Supreme Court and thereby allowing the court to monitor the
progress made.71 The continuing mandamus is therefore conceived
of as an implementation mechanism designed to tackle systemic
failure by executive authorities in carrying out their functions.
Given the general failings of environmental regulatory authorities
(briefly described in the previous section), it is no wonder then
that the continuing mandamus has proved to be a popular tool in
environmental cases.
The simplest and most direct way in which the continuing
mandamus is employed by the courts is by issuing it to the agencies
or authorities responsible for implementing judicial orders and
directions. Usually, such bodies are required to submit progress
reports on implementation at intervals that are specified by the courts.
The continuing mandamus is a device that allows courts to impose
accountability on the executive, while also allowing it the flexibility
to modify its orders and directions, a much-needed requirement in
typically polycentric environmental cases. For instance, in the Delhi

69. (1998) 1 SCC 226.

70. Ibid., para 9.
71. Ibid.

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 The Judicial Implementation of Environmental Law in India 293

Vehicular Pollution case,72 although the Supreme Court ordered all

government vehicles to run on compressed natural gas (CNG), it
was persuaded by groups opposing this order to issue a direction to
an expert committee, to determine whether other fuel types might
constitute more acceptable options, both environmentally and
economically.73
This example also shows that the use of the continuing
mandamus allows courts to become sites for the exchange of
opinions, or a sort of policymaking by relevant stakeholders in
PIL cases. This exchange of views often takes place more formally,
through a court-appointed expert committee or task force. In a
Delhi High Court judgment on the allocation of cycle rickshaw
licences (which also dealt with questions of road traffic and
air pollution), a continuing mandamus was issued in order to
constitute a special Task Force, which would examine all aspects
of vehicular movement, invite views from interested parties, and
make proposals. 74
However, the flexibility afforded by the continuing mandamus
has also allowed courts to greatly overstep their role and engage
in micromanagement. One commentator describes in detail
the manner in which the Supreme Court used the continuing
mandamus to transform public interest litigation into ‘a perennially
unstable and fundamentally malleable jurisdiction’.75 In addition
to monitoring, the continuing mandamus permits courts to ‘take
up fresh causes of action’.76 One of the consequences of passing

72. M. C. Mehta v. Union of India, WP (C) No. 13029/1985 (Delhi

Vehicular Pollution case).
73. See Rosencranz and Jackson (n 4) 235. The Supreme Court,
however, pressed ahead with its direction on CNG when presented with
two differing expert reports on the most suitable type of fuel.
74. Manushi Sangathan v. Government of Delhi (2010) SCC OnLine Del
580.
75. Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-
Emergency India (CUP 2016) 51.
76. Ibid., 59. Bhuwania makes this observation with particular
reference to M. C. Mehta v. Union of India, WP (C) No. 4677/1985, where

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 294 Dhvani Mehta

interim orders rather than a reasoned judgment is that ‘some of

the most far-reaching impacts of PIL [public interest litigation]
take place through—what is effectively—pure judicial fiat’.77 This
implementation mechanism, rather than shedding light on the
courts’ reasoning, has had the effect of diluting it. This is evident
from the minimal judicial engagement with the statutory and
regulatory framework.78
Courts often appoint other bodies to monitor the
implementation of their judgments. These could take the form of
committees79 or statutory authorities.80 In Banwasi Sewa Ashram v.
State of Uttar Pradesh,81 a Board of Commissioners was appointed
to monitor the directions of the Supreme Court regarding the
resettlement and rehabilitation of Adivasis who were displaced by the
construction of a thermal power plant. This Board also comprised
a representative of the Adivasis. Another prominent example is
the Environment Pollution (Prevention and Control) Authority,
appointed in pursuance of the Supreme Court’s directions in the
Delhi Vehicular Pollution case,82 which included independent experts

the central cause of action shifted several times over the life of the petition,
from stone-crushing units to pollution in the Yamuna to the relocation of
large industries from Delhi.
77. Gautam Bhatia, ‘ICLP Book Discussion: Anuj Bhuwania’s
‘Courting the People’—I: A Radical Revision’ Indian Constitutional Law
and Philosophy (20 January 2017) <https://indconlawphil.wordpress.
com/2017/01/20/iclp-book-discussionanuj-bhuwanias-courting-the-
people-i-a-radical-revision/> accessed 14 February 2017.
78. For a more detailed analysis of the manner in which courts engage
with statutes, rules and regulations as part of their judicial reasoning, see
Dhvani Mehta, ‘The Environmental Rule of Law in India’ (thesis submitted
for the Doctor of Philosophy in Law, University of Oxford, 2017).
79. In M. C. Mehta v. Union of India (2004) 12 SCC 118, while
considering a ban on mining in the Aravalli Hills, the Supreme Court
appointed a monitoring committee to inspect the mines and determine
whether the ban ought to be lifted on a case-to-case basis.
80. See n 39.
81. (1986) 4 SCC 753.
82. Delhi Vehicular Pollution case (n 72), order dated 7 January 1998.

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and officials from Delhi’s municipal corporations. The Authority

has been vested with the power to take up matters suo motu, or
on complaints made by individuals or organisations regarding the
violation of air quality or emission discharge standards. It can also
issue directions under Section 5 of the EP Act in respect of such
violations. In the Aravalli Mining case,83 apart from Government
officials, the Supreme Court also appointed three ‘representatives
of the public’ as members of the Monitoring Committee that would
inspect mines, although these representatives were also experts,
rather than laypersons or local residents.84
Like the courts’ use of evidence described in the previous
section, there is no consistency in the manner in which they
have appointed monitoring committees, although there appears
to be a similar privileging of technical and official expertise over
laypersons or civil society groups in the use of these implementation
mechanisms.
In some instances, monitoring mechanisms are not limited to
overseeing the implementation of the courts’ orders and directions.
The Central Empowered Committee (CEC) was appointed by the
Central Government,85 in pursuance of the orders of the Supreme
Court in the Godavarman case, to monitor and ensure compliance
with its orders. It was also empowered to issue guidelines for the
location and functioning of saw mills and to regulate their capacity
for sustainability, besides being vested with broader powers to
protect and manage forests and wildlife under the applicable
laws and rules.86 In the exercise of these functions, the CEC has
made a wide range of recommendations. It initiated a significant
change in the policy of valuation of forests by recommending the
adoption of the Net Present Value,87 was involved in the framing of

83. M. C. Mehta (n 79).

84. Mehta (n 78) 296–97.
85. SO 1008 (E), dated 17 September 2002.
86. Ibid.
87. CEC report dated 9 August 2002; T. N. Godavarman Thirumalpad v.
Union of India (2006) 1 SCC 1.

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 296 Dhvani Mehta

rules governing the disbursal of compensatory afforestation funds

between the Centre and the states,88 has issued directions for the
demolition of all fish tanks within a wildlife sanctuary,89 and has
suggested that environmental clearances, granted to mining leases
within 10 km of national parks and wildlife sanctuaries in Goa, be
suspended until a proper assessment is made of the adverse impact
of mining on flora and fauna.90
Although the Forest Advisory Committee constituted under
Section 3 of the Forest (Conservation) Act 1980 is the statutory
body vested with the power to make recommendations to the
Central Government regarding the diversion of forest land, the
recommendations of the CEC are frequently sought. This requires
the CEC to balance environmental interests against developmental
concerns regularly.91 Evidently, the CEC functions as a sort of
supra-regulator in the field of forest conservation. As one body, it
performs all three functions of government—legislative, executive,
and judicial. As the examples given earlier demonstrate, it is a fact-
finding and monitoring body, as well as one that has the power
to frame general guidelines and recommend sweeping policy
changes. From the general, it can go back to the particular, as it
makes complex balancing decisions regarding specific instances of
diversion of forest land. In the exercise of all these functions, the CEC

88. T. N. Godavarman Thirumalpad v. Union of India (2014) 6 SCC 150.

89. T. N. Godavarman Thirumalpad v. Union of India (2006) 5 SCC 47.
90. Goa Foundation v. Union of India (2014) 6 SCC 590.
91. In Godrej and Boyce Manufacturing Company Ltd v. State of
Maharashtra (2014) 3 SCC 430, the CEC was asked to determine
whether the balance of convenience lay in granting permission for the
de-reservation of forest land under the Forest (Conservation) Act 1980
or ordering the demolition of existing buildings, relocating the existing
owners and physically converting the area in question into forest. See also
Orissa Mining Corporation v. Ministry of Environment and Forest (2013) 6
SCC 476 (Niyamgiri Mining case), where the CEC wrote to the MoEFCC
requesting that a proposal for the diversion of forest land for the mining
of bauxite ore in Odisha be put on hold, until the proposal had been
examined by the CEC.

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is accountable only to the Supreme Court, which often reproduces

the recommendations of the CEC verbatim in its orders. The breach
of the principle of separation of powers that CEC’s functioning
entails, and the conflict created with other statutory authorities,
has been criticised for creating ‘faulty jurisprudence’.92 However,
it should also be noted that the Supreme Court has dismissed a
challenge that was made to the credibility of the CEC,93 clarifying
that orders are passed on the basis of the recommendations of the
CEC only after the satisfaction of the Court. In any case, since the
transfer of more than 300 cases to the NGT from the Supreme
Court in 2015,94 the role of the CEC has diminished.
This criticism that the CEC has attracted ought to be contrasted
with the praise that has been conferred on a similar authority, the
Dahanu Taluka Environment Protection Authority,95 appointed
by the Ministry of Environment and Forests (MoEF) (as it was
previously known), under the orders of the Bombay High Court.
It was charged with protecting the ecologically fragile area of the
Dahanu Taluka, implementing the precautionary and polluter pays
principles, and ensuring compliance with expert recommendations
made by NEERI, the notifications issued by the MoEF, and the
orders issued by the Bombay High Court and the Supreme Court.96
As part of these duties, the Authority ordered the installation of a
particular technology within the thermal power plant, obtained a
Rs 300 crore bank guarantee from the company taking over the
plant, successfully resisted the construction of an international port

92. Armin Rosencranz and Sharachchandra Lele, ‘Supreme Court and

India’s Forests’ (2008) 43 Economic and Political Weekly 10, 13.
93. Samaj Parivartan Samudaya v. State of Karnataka (2013) 8 SCC
154.
94. T. N. Godavarman Thirumulpad v. Union of India (2016) 13 SCC
586.
95. Geetanjoy Sahu and Armin Rosencranz, ‘Court-Appointed
Monitoring Committees: The Case of the Dahanu Taluka Environment
Protection Authority’ (2009) 5/2 Law, Environmental and Development
Journal 187.
96. Ibid.

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 298 Dhvani Mehta

in the Dahanu Taluka,97 and required pre-afforestation schemes as

conditions precedent to the grant of clearances for development
projects.98 The openness of the Authority to local viewpoints and
effective leadership have been cited as factors for its success,99
despite erratic financial assistance from the MoEF and hostility
from the Maharashtra government.100 However, it could be argued
that another factor is the narrow circumscribing of its functions
when contrasted with the enormous ambit of the CEC. Monitoring
mechanisms like court-appointed authorities are likely to function
more effectively when dealing with a particular case and operating
within a limited jurisdiction, as in Dahanu, rather than when they
are vested with sweeping powers to govern, like the CEC.
The use of the continuing mandamus favours the passing of
interim orders, which in turn offer less scope for the courts to
expound on the meaning of the environmental rights and principles
that they apply. In several cases, the Supreme Court has either failed
to cite Constitutional provisions or environmental principles101
while passing orders, or has failed to engage in a discussion of the
relevant statutory framework.102 Just as the evidence-gathering
mechanisms discussed in the previous section allowed courts to
take technical decisions without actually appearing to do so, the
use of monitoring mechanisms, especially the appointment of
authorities, has allowed courts to exercise legislative and executive
powers through a substitute. Like public interest litigation in other

97. Ibid.
98. For details of these schemes, see Meenakshi Kapoor, Kanchi Kohli
and Manju Menon, ‘India’s Notified Ecologically Sensitive Areas: The
Story so Far’ (Kalpavriksh 2009) 30–31.
99. Sahu and Rosencranz (n 95).
100. Kapoor, Kohli and Menon (n 98) 34–35.
101. Tarun Bharat Sangh, Alwar v. Union of India (1992) 2 Supp SCC
548; Mullaperiyar Environmental Protection Forum (n 65).
102. Mukti Sangharsh Movement v. State of Maharashtra (1990) Supp
SCC 37; Mohammad Haroon Ansari (n 64). For a fuller discussion of the
Court’s engagement with environmental principles and Constitutional and
statutory provisions, see Mehta (n 78), Appendix.

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 The Judicial Implementation of Environmental Law in India 299

spheres, the use of such mechanisms is partly an attempt by the

judiciary to step up in the face of executive inaction or failure.103
However, the more the courts deploy these mechanisms, the more
this appears to rob other branches of government of the initiative to
take action on their own to protect the environment.104

Mechanisms for Prevention of Environmental

Damage and Remediation

Environmental cases brought before Indian courts ask for broadly

two kinds of relief—either to prevent activities or projects that have
the potential to cause environmental damage, or to halt activities or
projects that have already caused such damage, and seek remediation
for damage caused (if any). Naturally, the kind of implementation
mechanism used by the courts is influenced by the kind of case
brought before them. Preventive mechanisms are usually used in
cases that challenge an approval (such as, an environmental or
forest clearance) granted to a project by the regulatory agency
concerned. Quite frequently, the challenge might also be about

103. See generally n 3 and 4.

104. For a general overview of this effect of the judiciary on the other
branches of government, see Andhyarujina (n 5). When air quality reached
alarmingly dangerous levels in November 2016 in northern India, it was
the Supreme Court that had to order the central and state governments
to frame an anti-pollution plan urgently. See Priyanka Mittal and Mayank
Aggarwal, ‘Delhi air pollution: Supreme Court calls for anti-smog plan
in two days’ LiveMint (9 November 2016) <http://www.livemint.com/
Politics/q389EW5hdOJ4achLNDTajP/Delhi-air-pollution-Supreme-
Court-demands-antismog-plan-in.html> accessed 20 February 2017. See
also Lavanya Rajamani, ‘Rights Based Climate Litigation in the Indian
Courts: Potential, Prospects and Potential Problems’ Centre for Policy
Research Climate Initiative, Working Paper 2013/1 (May), available
at <https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2464927>
accessed 20 February 2017, where the author points out that ‘endless
judicial oversight will paralyze the Executive and distort existing processes
and policy evolution channels on climate change’.

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 300 Dhvani Mehta

the fact that the project had commenced without obtaining the
necessary clearance.105 In such cases, courts may require project
proponents to apply for the clearance, quash the clearance already
granted106 (although this function is now performed in the first
instance by the NGT), or order a fresh assessment of the potential
benefit and harm of the project.107
It is not necessary that this fresh assessment be restricted
to scientific, technical, or ecological considerations. Religious
and cultural considerations may also play a role in the granting
of approvals, as the Niyamgiri Mining case108 demonstrates. In
this case, since the mining was proposed to be carried out in the
Niyamgiri Hills sacred to the Dongria Kondh tribe, the Supreme
Court ordered the MoEF to take a final decision on approving a
bauxite mining project only after the local Gram Sabhas affected
by the project had made their own determination regarding its
desirability.
Courts may also go beyond the mere upholding or setting aside
of environmental clearances. In G. Sundarrajan v. Union of India,109
while upholding the environmental clearance granted to the

105. Thervoy Gramam Munnetra Nala Sangam v. Union of India (2009)

SCC OnLine Mad 1522, Dinesh Bothra v. The State of Rajasthan (2015)
SCC OnLine Raj 515 and Goa Foundation v. Union of India (2014) 6 SCC
590 are examples of cases in which the obtaining of prior environmental
clearance or its continuing validity were in issue.
106. However, the reluctance of the Supreme Court to set aside
clearances granted to infrastructure development projects such as the
Tehri Dam, the Narmada Dam, the Dahanu thermal power plant and the
Commonwealth Games Village is well documented. See Geetanjoy Sahu,
Environmental Jurisprudence and the Supreme Court: Litigation, Interpretation,
Implementation (Orient BlackSwan 2014) 57–64. For a more recent
example of a case in which the clearance was set aside, see Him Privesh
Environment Protection Society v. State of Himachal Pradesh (2012) SCC
OnLine HP 2690.
107. Talaulicar and Sons Private Limited v. Union of India (2016) 8 SCC
299.
108. Niyamgiri Mining case (n 91).
109. Sundarrajan (n 30).

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 The Judicial Implementation of Environmental Law in India 301

Kudankulam nuclear power plant as part of the country’s national

policy, the Supreme Court passed several additional directions to
ensure safety and security in the operation of the plant—periodic
inspections by the MoEF and the Atomic Energy Regulatory
Board (AERB), the development of a surveillance and monitoring
programme for spent nuclear fuel, training courses for state
government officials and other stakeholders, and the discharge of its
corporate social responsibilities by the Nuclear Power Corporation
of India Limited (NPCIL). In such instances, the courts, in an
attempt to accommodate the interests of different stakeholders,
appear to be venturing beyond their traditional judicial function of
reviewing the clearance.
Unlike the grant of environmental and forest clearances, the
grant of the consent-to-operate by SPCBs under the Water Act
and Air Act, does not appear to have been frequently challenged
before the Supreme Court and the High Courts. However, the
NGT now examines the grant of such consent by SPCBs.110 Before
such consents came to be challenged before the NGT, appeals
were made to courts to stop pollution by units that may validly
have been granted the consent-to-operate, but were now violating
their permits or prescribed environmental standards, Vellore being
a case in point. The implementation mechanisms employed by the
Supreme Court in this case are set out in greater detail later. More
recently, the Supreme Court directed that the consent-to-operate
would only be granted to industries with functional effluent
treatment plants, and also set up strict implementation mechanisms
for its order, fixing accountability on the member secretaries of
SPCBs and the secretaries of environment departments within
state governments, besides requiring data analysis by the Central

110. M/s Parul Fabricator Private Limited v. Uttarakhand Environment

Protection and Pollution Control Board, OA No. 407/2016, judgments dated
18 August 2016 and 25 April 2017, NGT (Principal Bench); Shri Mahaveer
Stone Industry v. Central Pollution Control Board and Anr, OA No. 540/2016
and OA No. 541/2016, judgments dated 4 November 2016 and 17 April
2017, NGT (Principal Bench).

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 302 Dhvani Mehta

Groundwater Authority, followed by submission to the relevant

bench of the NGT.111
In Vellore, the Supreme Court ordered the central government
to appoint an expert authority under Section 3(3) of the EP Act,
headed by a retired judge of the Madras High Court.112 The authority
was directed to implement the precautionary and the polluter
pays principles,113 although the Court only gave more detailed
directions regarding the implementation of the latter principle. The
authority was given the power to assess the environmental damage,
identify the individuals/families affected by it, and determine the
compensation after devising a just and fair procedure. This amount
was to be forwarded to the Collector/District Magistrate of the
area concerned, to collect it as arrears of land revenue from the
polluters.114
The Supreme Court clearly intended the authority to take
over some of the functions of the SPCB, given that the authority
was conferred with the power to direct the closure of an industry
in case of failure to pay compensation,115 as well as the power to
frame schemes in conjunction with expert bodies to reverse the
damage caused to the environment.116 Even the power to permit the
reopening of the polluting tanneries was transferred to the authority
rather than requiring the consent of the SPCB.117 The authority
was also conferred the power to review the cases of all tanneries
operating within a certain area and to order their permanent
closure or relocation.118 The judicial mechanisms employed in the
Vellore case are a good combination of mechanisms for prevention

111. Paryavaran Suraksha Samiti v. Union of India (2017) SCC OnLine

SC 182.
112. Vellore (n 1), para 27.
113. Ibid., para 27(2).
114. Ibid., para 27(3).
115. Ibid., para 27(4).
116. Ibid., para 27(7)
117. Ibid., para 27(9).
118. Ibid., para 27(10).

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and remediation, the effectiveness of which are discussed in the

next section.
Injunctions are another example of mechanisms for prevention
and remediation. While they may be used to prevent environmental
damage, such as the irreversible pollution of drinking water
reservoirs,119 they may also be mandatory injunctions that direct
entities to take steps to reverse environmental damage, as the
chapters on the polluter pays principle (Chapter 4) and the public
trust doctrine (Chapter 6) demonstrate. Injunctions require the
balancing of competing considerations, especially when determining
whether to allow potentially environmentally damaging activities
to continue. The Supreme Court, however, has been far from
consistent as regards the metric that it applies for such balancing,
both while reviewing environmental or forest clearances, and while
determining whether to halt certain kinds of activities.
From restricting itself to assessing whether the government
had taken into account relevant and material considerations,120 to
adopting the ‘reasonable person’s test’ to determine the risk of harm
to the environment or human health,121 the Supreme Court has
applied widely differing standards as triggers for the application of
mechanisms for prevention.122 It has been particularly inconsistent
about the acceptable level of harm, as Chapter 5 on the precautionary
principle has already demonstrated. The confusion in the Court’s
reasoning is especially apparent in Lafarge Umiam Mining Pvt. Ltd
v. Union of India,123 where the Court claims to apply the principle
of proportionality and the doctrine of margin of appreciation while
reviewing the clearance granted to a mining project, although it
effectively ends up applying the same standards of unreasonableness

119. Nayudu (n 34).

120. Dahanu (n 58), where the Supreme Court was considering the
clearance granted to a thermal power plant.
121. Nayudu (n 34).
122. For a more complete discussion of these mechanisms, see Mehta
(n 78) 159–65.
123. Lafarge (n 37).

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 304 Dhvani Mehta

that a more traditional judicial review would have entailed.124 This

kind of inconsistency makes it difficult to learn more about the
Courts’ understanding of environmental principles, even from legal
tests used to determine whether mechanisms for prevention ought
to be applied.
While negative remedies like injunctions fall squarely within
the ambit of judicial functions, mechanisms for remediation,
which require positive steps, tend to be used by courts to bypass
executive authorities. As the deployment of evidence-gathering and
monitoring mechanisms in the previous sections has demonstrated,
this in turn is a reflection of the failure of SPCBs to perform their
statutory duties. However, it might also be a reflection of the limited
powers at the disposal of SPCBs to take restorative steps, which
is discussed again in the concluding section of this chapter. First
however, the success or failure of the implementation mechanisms
described here are analysed in the context of some of the cases
discussed in previous chapters in this volume.

Effectiveness of Implementation Mechanisms

There is no doubt that the Supreme Court has made an important

contribution to Indian environmental jurisprudence through the
incorporation of international environmental legal principles
and concepts, some of which have been modified for the Indian
context, like the public trust doctrine and the standard of absolute
liability.125 However, as this volume demonstrates, much of the
Court’s reasoning is unsatisfactory, setting up a weak foundation
for its orders. For the Court to retain its legitimacy, it becomes
all the more important to evaluate the success with which these
orders are implemented. This section tracks some of the prominent
cases that have been discussed in other chapters, not just to gain
an accurate sense of the degree of implementation, but also to

124. Mehta (n 78).

125. M. C. Mehta v. Union of India (1987) 1 SCC 395.

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 The Judicial Implementation of Environmental Law in India 305

uncover the different factors that might contribute to successful

implementation.
Vellore is a good case to assess for implementation because
all the environmental principles discussed in this volume, except
for the public trust doctrine, feature prominently in the Court’s
judgment. Additionally, as the previous part demonstrated, the
Supreme Court gave fairly detailed directions regarding the manner
in which the Loss of Ecology Authority was to function. However,
the Authority has not performed well in one of its primary tasks,
that is, awarding compensation. A study found that compensation
had been distributed only in a few talukas, and only 347 out of 547
industries had paid the compensation amount.126
The method used by the Authority to assess damage and
calculate compensation has also been criticised. The Authority is
alleged to have used only data furnished by the Revenue Department
and the Tamil Nadu Pollution Control Board (TNPCB), without
interacting with a single farmer affected by the discharge of
untreated effluents by the tanneries, and apparently without taking
into account a scientific study assessing the loss of ecology that the
authority commissioned the Tamil Nadu Agricultural University to
prepare.127 The Authority appears not to have lived up to its name—
rather than assess the loss of ecology, its award, according to the
Vellore Citizens’ Welfare Forum, assesses loss only in terms of loss
of agricultural production, and even then, takes into account ‘only
the loss of crop and not the deterioration of the value of land’.128
This unsatisfactory implementation of the Court’s orders is
aggravated by the extraordinary delay in their implementation. It

126. Geetanjoy Sahu, ‘Implementation of Environmental Judgments

in Context: A Comparative Analysis of Dahanu Thermal Power Plant
Pollution Case in Maharashtra and Vellore Leather Industrial Pollution
Case in Tamil Nadu’ (2010) 6 Law Environment and Development Journal
337, 344–345.
127. Asha Krishnakumar, ‘An Award and Despair’ (2002) 19 Frontline
<http://www.frontline.in/static/html/fl1916/19160930.htm> accessed 26
March 2017.
128. Ibid.

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 306 Dhvani Mehta

took two years to constitute the Loss of Ecology Authority, despite

its prompt notification in the wake of the Court’s order, and more
than three years to examine representations from the various
parties before the final award of the Authority was made in 2001.129
Finally, in 2016, 20 years after the Supreme Court’s order, the
Madras High Court ordered130 the winding up of the Authority
and the transfer of the 28,000 claims that were pending before it,131
to the NGT. It remains to be seen whether the NGT will be more
effective in disposing of this huge volume of claims.
Some of the reasons that Geetanjoy Sahu identifies for
the failure of the Loss of Ecology Authority are: inability to
decentralise its decision-making process, the lack of capacity of the
Vellore Citizens’ Welfare Forum to keep up its activism in the years
following the Supreme Court’s judgment, and political and market
factors that encourage small-scale leather industries that have a
‘relatively high pollution-to-production ratio’.132
Factors like these that affect the implementation of orders
in environmental cases will inevitably vary from case to case,
and it is difficult to point to a common set of social, political, or
economic circumstances that determine the implementation of a
judgment. In Bichhri, a pollution case similar to Vellore, there has
been comparable delay in awarding compensation despite the
smaller number of industries involved,133 although the reason for
this appears to be stubborn non-compliance and delaying tactics by

129. Ibid.
130. Vellore Citizens’ Welfare Forum v. Union of India (2016) SCC
OnLine Mad 1881.
131. Both farmers and industries challenged the award of the Authority.
An order of the Madras High Court in K. K. Subramanian v. Loss of Ecology
(Prevention and Payment of Compensation) Authority (2014) SCC OnLine
Mad 11620 required each of these claims petitions to be adjudicated
independently.
132. Sahu (n 126) 345–52.
133. The action was brought by the Indian Council of Enviro-legal
Action against five industries that owned units/factories in and around
Bichhri village manufacturing H acid.

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 The Judicial Implementation of Environmental Law in India 307

the respondent industries.134 Some of the industries also claimed to

have closed down.135 The monitoring mechanisms employed by the
Supreme Court in this case, that is, quarterly progress reports to
be filed by the Government, do not appear to have had the desired
effect. Factors that are not within the court’s control obviously play
a crucial role in determining the successful implementation of its
orders, there are equally a host of ways in which courts themselves
can influence the manner in which their orders are implemented.
Of these internal factors, so to speak, the language used by
the courts, as well as the type of action required, may have some
influence on implementation, although this may often be subverted
by external factors that have nothing to do with the courts. The
language used by the court refers to the degree of authority in its
orders: are they in the nature of binding directions or does the court
couch them in the form of softer recommendations?136 This affects
the manner in which orders are interpreted by the entity to whom
they are directed. In Lafarge, the Solicitor General argued that the
delay in compliance with the Court’s direction, to set up a national
regulator for the environment, was because the Government had
understood it as a recommendation rather than a mandatory
requirement.137
Sometimes, however, the gravity of the issue under
consideration might mean that even a recommendation is acted
upon. In the Oleum Gas Leak case,138 the Supreme Court ‘requested’
the government to take necessary steps to regulate hazardous
industries, and also ‘impressed’ upon it the need for a national
policy to locate such industries in places with scarce populations.

134. The Supreme Court notes this in its final order in Bichhri in 2011:
Indian Council for Enviro-legal Action v. Union of India (2011) 8 SCC 161.
135. Ibid., paras 6–7.
136. Binding directives are usually signalled by the use of ‘shall ensure’
or ‘shall implement’, while recommendations are suggested through terms
like ‘should consider’, ‘impress upon’ or ‘urge’.
137. T. N. Godavarman Thirumulpad v. Union of India (2014) 4 SCC
61, para 3.
138. Oleum Gas Leak case (n 43), para 21.

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In response, the Manufacture, Storage and Import of Hazardous

Chemicals Rules were notified in 1989. In 1990, the government
approved the Second Master Plan for Delhi, identifying category
‘H’ industries that were large and associated with hazardous
emissions, and required to shift out of Delhi within three years.139
The government’s response to these recommendations must also be
understood in the context of the Bhopal gas tragedy and the legal
questions surrounding the liability of Union Carbide, of which the
Supreme Court was also seized.140
Like the government, the offending industry in the Oleum Gas
Leak case complied with the orders of the Supreme Court without
‘complaint or demur’.141 This ought to be contrasted with the
aggressively litigious strategy adopted by the industries in Bichhri
to evade compliance. It is difficult to point to the reasons for
effective implementation of the Court’s orders in the Oleum Gas
Leak case, as opposed to Bichhri. In both cases, the industries were
denied permission to restart operations until they complied with
the court’s orders. In both cases, the Court also appointed expert
committees to monitor the implementation of its orders. However,
as mentioned earlier, the Oleum Gas Leak case was coloured by the
events in Bhopal, and the consequent weight of political pressure
determined not to let another polluter off lightly. Perhaps the
financial pressures that compelled compliance by the industry in
this case, appear not to have been as much of a threat in Bichhri,

139. Urvashi Narain and Ruth Greenspan Bell, ‘Who Changed Delhi’s
Air? The Role of the Courts and the Executive in Policymaking’ Resources
for the Future (December 2005), <http://www.rff.org/files/sharepoint/
WorkImages/Download/RFF-DP-05-48.pdf> accessed 12 March 2017.
140. See Usha Ramanathan, ‘Business and Human Rights: The India
Paper’ International Environmental Law Research Centre (2001) 1 <http://
www.ielrc.org/content/w0102.pdf> accessed 4 May 2017, observing that
the Bhopal and Oleum Gas Leak cases ‘altered the contours of the law of
safety, compensation and liability’ and that the legislation that followed
assimilated ‘some of the institutional and processual arrangements
suggested in the judgments of the court’.
141. Divan and Rosencranz (n 60) 530.

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evident from the ease with which one of the Bichhri units pleaded
bankruptcy to avoid paying costs, while simultaneously investing
Rs 3 crores in a new plant in Vapi.142
Delay in implementation, however, appears to be a perennial
feature of environmental cases. In the previous example, the
attitude of the respondents and the prevailing political atmosphere
both played a role in determining whether the Supreme Court’s
directions would be implemented speedily or not. As mentioned
earlier, another factor that influences the speed with which
directions are implemented might be the kind of action that the
courts require government or other entities to take. For instance,
a direction to constitute specialised environmental courts,143 which
will require legislation to be drafted and resources to be invested
in creating new judicial machinery, is likely to take far more time
than, say, framing a policy to regulate the use of ecologically fragile
areas. In environmental cases, courts have required a wide range
of actions, including the enforcement of existing legislation,144 the
implementation of existing guidelines,145 drafting and implementing
new rules,146 framing a new policy,147 constituting a new executive
or judicial authority,148 introducing new technical standards in
industries,149 or conducting public hearings.150 The investment
of time, money, and administrative resources that each of these

142. Anju Sharma and Rajat Banerji, ‘The Blind Court’ Down to
Earth (30 April 1996) <http://www.downtoearth.org.in/content/blind-
court?quicktabs_1=0> accessed 12 March 2017.
143. Nayudu (n 34), para 74.
144. Indian Council for Enviro-legal Action v. Union of India (1996) 5
SCC 281 (CRZ Notification case).
145. Lafarge (n 37).
146. Almitra H. Patel v. Union of India (1998) 2 SCC 416.
147. Oleum Gas Leak case (n 43).
148. Godavarman (n 39), setting up the Central Empowered
Committee; Vellore (n 1), setting up the Loss of Ecology Authority.
149. DelhiVehicular Pollution case (n 72); Noise Pollution (V), In re (2005)
5 SCC 733.
150. Niyamgiri Mining case (n 91).

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directions requires is likely to play a role in determining the manner

in which they are implemented.
However, the kind of action required is obviously non-
determinative, and even when the subject at hand is something as
uncontroversial as the introduction of environmental education
in schools and colleges,151 there can be serious delays in
implementation. In the Environmental Education case, the first order
was passed in 1991, but the writ petition was disposed finally only
in 2010, with a gap of nearly 12 years between the first and second
orders. A possible reason for delay in this case might have been
the many different authorities involved in its implementation—
apart from the MoEFCC, there was also the Ministry of Human
Resources Development (MHRD), University Grants Commission
(UGC), the different state boards of education, National Council
of Educational Research and Training (NCERT), All-India Council
for Technical Education (AICTE), and National Council for
Teacher Education (NCTE). In one obvious instance of overlap, the
NCERT duplicated work when it framed a syllabus in compliance
with the Court’s order,152 and then soon after, made an application
to revise it, in light of the MHRD’s creation of the National
Curriculum Framework (NCF).153 In contrast, the direction to
constitute National and Coastal Zone Management Authorities
in the CRZ Notification case,154 which might be presumed to have
taken more time, was implemented relatively quickly (two-and-a-
half years from the Court’s order), perhaps because the Court was
merely ordering the implementation of an obligation that already
existed in the CRZ Notification and also because the court was
dealing only with the constitution rather than the functioning of
the authorities.
The conclusion to be drawn then, from tracking prominent
environmental cases over the past three decades, is that there is

151. M. C. Mehta v. Union of India,WP (C) No. 860/1991 (Environmental

Education case).
152. M. C. Mehta v. Union of India (2004) 1 SCC 571.
153. Interim Application Nos 1 and 6 in WP (C) No. 860/1991.
154. CRZ Notification case (n 144).

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perhaps no conclusion that can be drawn about the factors that

make the courts’ implementation mechanisms successful in some
instances but not in others. However, general trends suggest that
the courts’ monitoring mechanisms are likely the most effective in
ensuring that its orders are implemented. Although the deadlines
set by the courts might not always be met by the executive, the
spectre of a court-appointed body overseeing the time-bound
implementation of the court’s orders is an important factor in
guiding the executive’s response. The Delhi Vehicular Pollution case
stands out as an example of a case in which the Supreme Court
closely prodded the executive to frame and implement policies to
regulate public transport and curb air pollution, and continues to
do so. (The wisdom of the policies themselves is open to question,
but is an issue distinct from the implementation of the court’s
orders.) In this case, the Supreme Court repeatedly issued notices
to the relevant authorities, regularly required status reports from
them, and recruited experts as well as Delhi citizens to monitor the
implementation of its directives. This stringent monitoring might
not have been sufficient to ensure timely implementation; without
it, however, there might not have been implementation at all. More
recently, the Supreme Court directed compliance with the 1 April
2017 deadline, to bar the sale and registration of vehicles non-
compliant with Bharat Stage-IV standards.155
As for the external factors that have influenced judicial
implementation mechanisms, organised interest groups appeared
to play a particularly important role in the Niyamgiri Mining case,
through local tribes, as well as non-governmental organisations
(NGOs), both local and international, that grew into powerful
civil society movements exerting pressure on the government to
implement the orders of the Supreme Court.156 Similarly, public

155. Delhi Vehicular Pollution case (n 72), order dated 13 April 2017.
156. Phone interview conducted on 2 March 2014 with Mr Sankar Pani,
advocate for one of the civil society groups challenging the mining project.
Conversations with unnamed sources also confirm the impact that civil
society had in this case. The Niyamgiri Surakhaya Samiti (NSS) with the

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 312 Dhvani Mehta

and political opinion seems to have been a driving force behind the
government’s implementation of the Supreme Court’s directions in
the Oleum Gas Leak case.157
However, organised interest groups can work in the opposite
way as well, to delay implementation. Examples include corporate
pressure in the Niyamgiri Mining case,158 and the auto industry,
truck lobbies and bus operators in the Delhi Vehicular Pollution
case.159 When influential and organised interest groups are pitted
against each other, the political stand of the party in power is
likely to prove crucial in determining implementation, as was
evident in the Niyamgiri Mining case.160 When there are organised
pressure groups on either side, other factors that are likely to tilt
the balance one way or the other are the financial and technical

support of organisations like the Samajwadi Jan Parishad, the Communist

Party of India (Marxist–Leninist) (CPI-ML) and the Lok Sangram
Manch was at the forefront of protests against Vedanta. Dynamic leaders
of these local movements like Bhalachandra Sarangi, state spokesperson
for the CPI-ML were prominent in galvanising and organising public
opinion against Vedanta, as was Amnesty International, which published
an exhaustive report detailing Vedanta’s environmental and human rights
violations. See ‘Don’t Mine Us Out of Existence: Bauxite Mine and
Refinery Devastate Lives in India’ <http://www.amnesty.org/en/library/
asset/ASA20/001/2010/en/0a81a1bc-f50c-4426-95057fde6b3382ed/
asa200012010en.pdf> accessed 6 March 2014.
157. On the day after the leak, members of the Rajya Sabha had
demanded the immediate arrest of the industry’s proprietors. See ‘Gas
Leak in Delhi, 200 Hospitalised’ The Times of India (5 December 1985).
Members of the Opposition had staged a walk-out when they failed to
persuade the Speaker to allow an immediate discussion on the gas leak.
See ‘Gas Leaks in Delhi Again, 3 Officials Held’ The Times of India (7
December 1985).
158. Sudeep Chakravarti, ‘Niyamgiri is a Done Deal’ LiveMint (18 July
2013) <http://www.livemint.com/Opinion/jujWfo2P1w5vqrrhTGiEVO/
Niyamgiri-is-a-done-deal.html> accessed 4 May 2017.
159. Rajamani (n 4) 300.
160. ‘Rahul Opposes Mining of Niyamgiri Hills’ The Hindu (11 March
2008), <http://www.hindu.com/2008/03/11/stories/2008031158670300.
htm> accessed 9 March 2014.

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 The Judicial Implementation of Environmental Law in India 313

resources at the disposal of the State. For example, in the Oleum

Gas Leak case, although the government enacted rules to regulate
hazardous processes in the face of public and political opinion,
it was unable to implement them effectively because of a lack of
funds, infrastructure, and personnel.161
The response of the bureaucracy is also vital in determining
whether the Supreme Court’s orders will be implemented
well or poorly. It is this body which is responsible for framing
policies, implementing rules, coordinating the actions of relevant
government ministries and departments, and conducting public
hearings. The more inclusive and transparent the bureaucracy is,
the better is the implementation.
Clearly, courts cannot control many of the factors that
influence implementation and that have been described in this part.
However, the factors that do appear to be within its power are the
use of non-ambiguous language in framing its orders and directions;
the deployment of strong supervisory mechanisms to oversee
implementation, especially when there are multiple and complex
directions requiring compliance over a particular time period; and
the consistent use of expert advice to frame directions that are of
a technical nature. The next section considers whether the NGT
has eliminated some of the weaknesses in the implementation of
judicial orders in environmental cases.

Implementation under the NGT

The Supreme Court highlighted the need for specialised

environmental courts in Nayudu162 and the matter was subsequently

161. Supreme Court Advocate Sanjay Parekh in ‘New Laws were

Written’ Down to Earth (15 July 2010), <http://www.downtoearth.org.in/
node/1457> (last visited 1 March 2014); R. Shrivastava, ‘The Poison Piles
Up’ Down to Earth (31 December 1994), <http://www.downtoearth.org.in/
node/32823> (last visited 1 March 2014).
162. Nayudu (n 34).

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 314 Dhvani Mehta

taken up the Law Commission of India in 2003 in its 186th

report.163 The National Green Tribunal Act (NGT Act) was passed
in 2010, but it was not until the Supreme Court issued directions164
and the Government was directed to find premises for, and appoint
members to, the Tribunal, that it could commence functioning.
In addition to judicial members, the NGT is to consist of no less
than 10 and a maximum of 20 expert members.165 If necessary,
the Chairperson may also invite persons of ‘specialised knowledge
and experience’ to assist the NGT in particular cases.166 It was felt
that a specialised environmental tribunal would use its expertise
to take into account the polycentric and interdisciplinary nature
of environmental cases, to pass realistic orders and directions.
This would ease the burden on the higher judiciary, which in any
case, was experiencing an erosion of legitimacy as it continued
to pass orders and directions that were not being implemented.
The NGT is also explicitly required to apply the principles of
sustainable development, the precautionary principle, and polluter
pays principle while passing its orders, decisions, and awards.167
The previous chapters have demonstrated that the Supreme Court
and the High Courts have not clearly articulated the meaning
of these principles; given the expertise of the NGT, it might be
expected that the content of these principles, particularly complex
balancing exercises or the assessment of irreversible damage, will
be undertaken with greater rigour.
The NGT initially attracted praise for its ability to stand up
to the government as well as corporate groups for their failure
to observe environmental laws and rules.168 In particular, it has

163. Law Commission of India, ‘One Hundred Eighty Sixth Report on

Proposal to Constitute Environment Courts’ (2003).
164. See variours orders in Union of India v. Vimal Bhai and Ors, SLP
(C) No. 12065/2009.
165. NGT Act s 4(1)(b).
166. Ibid., s 3(2).
167. Ibid., s 20.
168. Armin Rosencranz and Geetanjoy Sahu, ‘Assessing the National
Green Tribunal after Four Years’ (2014) 6 Journal of Indian Law and Society

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 The Judicial Implementation of Environmental Law in India 315

quashed environmental clearances granted to large development

projects for non-compliance with environmental impact assessment
and public participation requirements.169 However, some of its later
orders have attracted the same criticism as the sweeping directives
of the Supreme Court in some environmental cases, although part
of this criticism comes from the MoEFCC, against which the NGT
often finds itself in opposition.170 For example, its decision to ban
all diesel vehicles that are more than 10 years old from entering or
getting registered in Delhi has been criticised for arrogating powers
of governance to itself, despite being a judicial institution, and for
failing to ground its orders in legal reasoning.171
The danger with this is that the NGT risks its own orders
remaining unimplemented, in the same way as some of the
directions of the Supreme Court have been. An example of this is
its imposition of green tax on trucks destined for other states that
pass through Delhi.172 The concern with this is that the successful
implementation of this kind or order relies primarily on ‘the
same administrative set-ups and political machinery they [courts]
castigate for lack of inaction to implement these levies and their

191. See also Kanchi Kohli, ‘NGT: The First Seven Months’ IndiaTogether
(2 February 2012) <http://www.indiatogether.org/ngt-environment--2>
accessed 12 March 2017.
169. Debadityo Sinha v. Union of India, Appeal No. 79/2014, judgment
dated 21 December 2016, NGT (Principal Bench); Jeet Singh Kanwar
(n 34).
170. Yukti Choudhary, ‘Tribunal on Trial’ Down to Earth (30 November
2014) <http://www.downtoearth.org.in/coverage/tribunal-on-trial-47400>
accessed 8 February 2016. Ministry officials have called the NGT a ‘power-
hungry’ institution and have also criticised its orders for being unrealistic.
171. Arghya Sengupta, ‘Captain Planet Gone Wild: Sweeping Diktats
of Green Tribunal show Good Intentions but Bad Grasp of Governance
and Law’ The Times of India (11 April 2015) <http://blogs.timesofindia.
indiatimes.com/toi-edit-page/captain-planet-gone-wild-sweeping-diktats-
of-green-tribunal-show-good-intentions-but-bad-grasp-of-governance-
and-law/> accessed 12 March 2017.
172. Vardhman Kaushik v. Union of India, OA No. 21/2014, judgment
dated 7 October 2015, NGT (Principal Bench).

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 316 Dhvani Mehta

utilisation for fixing or avoiding environmental damage’.173 Already,

there are several NGT orders that have not been implemented
effectively. For instance, the ban on the use of heavy machinery
for sand mining,174 the enforcement of the Draft National Policy
for Management of Crop Residues,175 as well as, interestingly, an
order to a State EAC to decide, on merit, the proposals submitted
for environmental clearances by mineholders in Sindhudurg,
Maharashtra.176
More often than not, information about the non-implementation
of the NGT’s orders can be sourced from the follow-up action
taken by the Tribunal itself. For example, in Narhari Lingraj v.
State Environment Impact Assessment Authority,177 the Pune Bench
of the NGT issued a show cause notice to the State EAC for
withholding environmental clearance to the mine owners. In other
instances, the NGT has ordered civil imprisonment and payment
of a fine, by Commissioners of a Municipal Corporation as well
as the Corporation itself,178 has required personal explanations for

173. Nitin Sethi, ‘The Irony of Green Levies by Courts’ Business

Standard (16 November 2015) <http://www.business-standard.com/article/
economy-policy/the-irony-of-green-levies-by-courts-115111601175_1.
html> accessed 12 March 2017.
174. ‘National Green Tribunal Angry as Orders Ignored’ Deccan
Chronicle (26 January 2017) <http://www.deccanchronicle.com/nation/
current-affairs/260117/national-green-tribunal-angry-as-orders-ignored.
html> accessed 27 March 2017.
175. Vikrant Kumar Tongad v. Environment Pollution (Prevention and
Control) Authority and Ors, Application No. 118/2013, judgment dated 10
December 2015, NGT (Principal Bench).
176. Vishwas Kothari, ‘NGT Notice to State Environment Panel for
Non-Compliance of Order’ The Times of India (6 January 2017) <http://
timesofindia.indiatimes.com/city/pune/ngt-notice-to-state-environment-
panel-for-non-compliance-of-order/articleshow/56362886.cms> accessed
12 March 2017.
177. OA No. 116/2016, judgment dated 27 December 2016, NGT
(Western Zone Bench)
178. Invertis University v. Union of India, OA No. 186/2013, judgment
dated 18 July 2013, NGT (Principal Bench). See also Rayons Enlightening

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 The Judicial Implementation of Environmental Law in India 317

non-compliance from government officials,179 and has imposed

exemplary costs for failure to file an adequate response.180 The
NGT also has the power, under Section 26 of the NGT Act, to
impose imprisonment for a period up to three years, or a fine up to
Rs 10 crores, for failure to comply with an order of the Tribunal.
Apart from this explicitly conferred power to take action for
non-compliance, the other implementation mechanisms employed
by the NGT are largely the same as those already described in
this chapter. The NGT regularly appoints expert committees for
a variety of functions—to study the impact of construction work
in ecologically sensitive areas;181 to perform fact-finding functions
such as assessing the extent of diversion of traditional grazing lands
to infrastructure, commercial and defence purposes, as well as to
attend public hearings in affected villages;182 to assess the damage
caused to the environment by certain activities,183 and to monitor
pollution.184

Humanity v. Ministry of Environment and Forests, Application No. 86/2013,

judgment dated 18 July 2013, NGT (Principal Bench).
179. Nawab Khan and Ors v. Department of Housing and Environment,
State of Madhya Pradesh and Ors, OA No. 52/2014, judgment dated 29
April 2014, NGT (Central Zonal Bench).
180. Vajubhai Arsibhai Dodiya v. Gujarat Pollution Control Board,
Application No. 64/2012, judgment dated 31 October 2013, NGT
(Western Zone Bench).
181. Society for Preservation of Kasauli and its Environs v. Himachal
Pradesh Tourism Development Corporation Ltd, OA No. 506/2015, judgment
dated 27 April 2017, NGT (Principal Bench); Anand Bodhi, ‘NGT to
study construction work impact in Kasauli’ The Times of India (22 March
2017) <http://timesofindia.indiatimes.com/city/chandigarh/ngt-panel-to-
study-construction-work-impact-in-kasauli/articleshow/57761376.cms>
accessed 12 March 2017.
182. Leo Saldanha v. Union of India, Application Nos. 6 and 12/2013,
judgment dated 27 August 2014, NGT (Southern Zone Bench).
183. Manoj Mishra v. Union of India, OA No. 6/2012, judgment dated
13 January 2015, NGT (Principal Bench).
184. ‘Air Pollution: NGT Directs Setting up of Monitoring Panels’ The
Hindu (10 November 2016) <http://www.thehindu.com/sci-tech/energy-

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 318 Dhvani Mehta

Evidently, expert panels appointed by the NGT serve as an all-

purpose implementation mechanism for it. The power to employ
mechanisms for prevention and remediation has specifically been
conferred on the NGT by Section 15 of the NGT Act, which
empowers it to award relief, compensation, and restitution.
Implementation mechanisms that were employed in ad hoc fashion
by the Supreme Court and the High Courts now have a legislative
source of authority. However, despite the institutionalisation of
these mechanisms, there are sometimes enduring problems with
their functioning, as the following examples demonstrate.
In one of the most prominent matters heard by the NGT in
recent times—damage to the Yamuna floodplains because of a
cultural festival organised by the Art of Living Foundation—an
expert committee was constituted to assess the environmental
damage caused. In its preliminary report, the committee estimated
that Rs 120 crores would be required to restore the environment.The
final report, however, avoids mentioning a specific figure, although
reports suggest that a couple of members desired the inclusion of a
cost estimate, including a penalty.185 The committee submitted that
a professional organisation might conduct such an estimate more
suitably, and confined itself to listing the works that were required
to be done at the site.186 In response, the NGT asked the committee
to get this estimate done by an appropriate organisation, although
the timeline set by it was too short.187 This was followed by an
estimate of Rs 100–120 crores, as compensation for restoration

and-environment/Air-pollution-NGT-directs-setting-up-of-monitoring-
panels/article16286092.ece> accessed 12 March 2017. In the context of
air pollution in Delhi, the NGT directed the constitution of central and
state-level monitoring committees to develop action plans for air pollution.
185. Amitabh Sinha, ‘Why NGT’s Expert Committee on Art of
Living Event in Delhi Hasn’t Spelt Out Costs’ The Indian Express (18
August 2016) <http://indianexpress.com/article/opinion/web-edits/why-
ngts-expert-committee-on-art-of-living-event-in-delhi-hasnt-spelt-out-
costs-2983016/> accessed 12 March 2017.
186. Ibid.
187. Ibid.

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 The Judicial Implementation of Environmental Law in India 319

work by a four-member committee, ultimately reduced to Rs 42.02

crores estimated by a seven-member committee.188 The experience
of the NGT in this case suggests that it might benefit from
developing more consistent procedures regarding the assessment
of environmental damage and the quantification of compensation.
In another instance, the NGT even issued bailable warrants
against three members of an expert panel constituted by it to study
the carrying capacity of the hills in the Shimla region.189 There
were several reasons for this, all related to the manner in which the
expert panel had conducted itself—all the questions raised by the
Tribunal had not been covered in the panel’s report, some pages of
the report had not been signed by any of the panel members, and
the minutes of one of its meetings had not been recorded.
Jurisdictional clashes with the High Courts might also prove to
be an obstacle in the implementation of the orders of the NGT. The
Nagpur Bench of the Bombay High Court ordered the National
Highway Authority of India to undertake road repairs, after taking
suo motu cognisance of a newspaper Article describing the state of a
section of a highway between Maharashtra and Madhya Pradesh.190
It permitted tree felling, which was incidental to the repairs. When
an environmental organisation filed a petition against the widening
of the road before the NGT,191 the NGT ordered a stay on the
tree felling, until the authorities were able to demonstrate the
authority in law under which the felling was to be undertaken.192 As

188. Priyanka Mittal, ‘Art of Living’s Yamuna Event: NGT Panel

says rehabilitation to cost Rs 42 crore’ LiveMint (12 April 2017) <http://
www.livemint.com/Politics/L5eYxgf44lto21x3hTaLnM/Art-of-Livings-
Yamuna-event-NGT-panel-says-rehabilitation.html> accessed 4 May
2017.
189. Yogendra Mohan Sengupta v. Union of India, OA No. 121/2014,
order dated 22 February 2017, NGT (Principal Bench).
190. The Court on its Own Motion v. National Highway Authority of India,
(2014) SCC OnLine Bom 2936.
191. Srushti Paryavaran Mandal v. Union of India and Ors, Appeal
No. 25/2015, NGT (Principal Bench).
192. Ibid., order dated 3 July 2015.

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 320 Dhvani Mehta

a result, ‘directly contradictory orders were issued by two judicial

authorities, such that obeying the orders of one would have put the
concerned authorities in contempt of the other’.193
Like the Supreme Court, the NGT may invite criticism for
overstepping its judicial function and for passing unrealistic
orders and directions. It should focus instead on the stronger and
more effective use of its implementation mechanisms. It has been
suggested that both courts and the NGT ‘should lay down strict
conditions for the implementation of environmental judgments,
identify the executive agency responsible for carrying them out,
and ensure the accountability of the agency if it fails to follow
directions’.194

Conclusion

It is difficult to draw definitive conclusions about the meaning of

environmental principles from analyses of judicial implementation
mechanisms. Irrespective of the environmental principle used by the
courts, the implementation mechanisms are usually a combination
of measures for prevention and remediation, developed with expert
inputs, and monitored with external assistance. More often than
not, these mechanisms serve as a substitute for functions that ought
to be routinely performed by SPCBs, forest officers, regional offices
of the MoEFCC, and a range of other executive authorities that are
responsible for ensuring compliance with and the enforcement of
Indian environmental law.
These implementation mechanisms have had a mixed
record, with a variety of social, political, and economic factors
usually influencing the manner in which orders and directions
are implemented. However, there are also some weaknesses in
the manner in which courts themselves have deployed these
mechanisms—inconsistency in the manner in which technical

193. Mehta (n 78) 179.

194. Rosencranz and Sahu (n 168) 197.

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 The Judicial Implementation of Environmental Law in India 321

expertise is used, vesting court-appointed authorities with sweeping

powers, a lack of uniformity in the application of standards of
judicial review, and insufficiently deterrent consequences for
non-compliance. Courts must be more rigorous about their legal
reasoning, more willing to frame their orders and directions with
reference to the existing statutory and legal framework, and clearer
about the language that they employ.
Even with these changes, however, there are natural limits
to the effectiveness of judicial implementation mechanisms.
Unless the current environmental regulatory architecture is
significantly streamlined and strengthened, the strongest judicial
directives are likely to be of limited value. Criminal offences across
environmental statutes ought to be rationalised, the possibility of
civil penalties ought to be considered,195 uniform methods to assess
environmental damage and calculate compensation ought to be
evolved, and principled guidance for executive authorities ought to
be developed.196 Institutional reform proposals,197 however, appear
to focus primarily on the creation of new authorities, prompted
in part by the Supreme Court’s direction to appoint a national
environmental regulator.198 Such proposals are only superficial
attempts to streamline and consolidate existing laws and authorities
that do not substantively change the structure of environmental
governance in the country, and are positively harmful in as much

195. Centre for Science and Environment, ‘Strengthen Institutions,

Reform Laws and Streamline Processes: Agenda for Improving
Environmental Governance in India’ (2014).
196. Manju Menon, Shibani Ghosh, Navroz K. Dubash and Kanchi
Kohli in consultation with Pratap Bhanu Mehta and Namita Wahi,
‘A Framework of Principles for Environmental Regulatory Reform:
Submission to the High Level Committee’s Review of Environmental Law’
(2014) <http://www.cprindia.org/research/reports/framework-principles-
environmental-regulatory-reform> accessed 19 May 2017.
197. Report of the High Level Committee (n 28); MoEF, ‘Towards
Effective Environmental Governance: Proposal for a National Environment
Protection Authority’ (2009).
198. Lafarge (n 37).

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 322 Dhvani Mehta

as they seek to whittle down the powers of the courts. Judicial

bodies must be vigilant of such attempts to dilute their authority.
It becomes all the more important for them to exercise restraint in
their use of implementation mechanisms that stray into legislative
and executive functions. This must simultaneously be accompanied
by statutory and regulatory reform, to ensure that all three
institutions of government play their appropriate roles in securing
compliance with and the enforcement of Indian environmental law.

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 Notes on the Contributors

Saptarishi Bandopadhyay is Assistant Professor, Osgoode Hall Law

School, York University, Toronto.
Lovleen Bhullar is Research Fellow in Regulation and Antimicrobial
Resistance, University of Edinburgh.
Shibani Ghosh is Fellow, Centre for Policy Research, New Delhi,
and Advocate-on-Record, Supreme Court of India.
Dhvani Mehta is Senior Resident Fellow, Vidhi Centre for Legal
Policy, New Delhi.
Lavanya Rajamani is Research Professor, Centre for Policy Research,
New Delhi.

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 Index

Absolute liability principle, 11, Baxi, Upendra, 32, 85, 87, 126
153, 158, 164–69, 183, 190 Bharat Stage-IV standards,
Access to information, 48, 57, 65, 311
69, 72, 101 Bhullar, Lovleen, 8, 55, 192
Access to justice, 4, 9, 49, 83–86, Bhuwania, Anuj, 32, 88–89, 293,
88, 93, 103 294
Access to natural resources, 248 Biological Diversity Act 2002,
Accountability, 6, 58, 292, 301, 91
320 Biosafety Protocol, 197, 201
Aggrieved person, 33 Birnie, Patricia, 58, 133, 152, 169,
Air pollution, 2, 25, 49, 213, 293, 196
299, 311, 318 Boyle, Alan, 22, 40, 55, 58,
Air (Prevention and Control of 117–18, 133, 152, 157, 169, 193,
Pollution) Act 1981 (Air Act), 22, 196, 221
38, 63–65, 73, 91, 102, 134, 161, Brundtland Commission, 10 – 11,
172, 278, 279, 281–82, 301 113 –14, 116, 134
American case law, 13, 230 Report, 11, 113 –16, 132, 134,
American jurisprudence, 235 156, 221
Anderson, Michael R., 22, 24, 55, Bugge, Hans Christian, 152–53
159, 193
Anthropocentric approach, 4, 8, Canadian Environmental
43, 45, 54, 240 Protection Act 1999, 120, 198
Anthropocentrism, 36, 43, 129 Cases
Almitra H. Patel and Anr v.
Bandopadhyay, Saptarishi, 6, 10, Union of India and Ors, 50, 96,
117, 130, 161 100, 309

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 Index 325

Animal Welfare Board of India Chhetriya Pardushan Mukti

v. A. Nagaraja and Ors, 45–46, Sangharsh Samiti v. State of
150 Uttar Pradesh and Ors, 26, 35,
A. P. Pollution Control Board II 49
v. Prof. M.V. Nayudu and Ors, C. Kenchappa and Ors v. State of
10, 61, 92, 136, 192, 207–08, Karnataka and Ors, 29, 40
283 Court on its own motion v. State
A. P. Pollution Control Board v. of Himachal Pradesh and Ors,
Prof. M.V. Nayudu (Retd) and 217
Ors (Nayudu), 28 Dahanu Taluka Environment
Aruna Rodrigues v. Union of Protection Group v. Bombay
India, 290 Suburban Electricity Supply
Bandhua Mukti Morcha v. Union Company Limited, 289
of India and Ors, 24–25, 61, Debadityo Sinha and Ors v.
87, 192 Union of India and Ors, 77–78,
Bhanwar Singh v. Union of India, 315
87, 89, 213 Deepak Nitrite Ltd v. State of
Bittu Sehgal and Anr v. Union of Gujarat and Ors, 283, 288
India and Ors, 163 Delhi Development Authority v.
Bombay Dyeing & Mfg Co. Ltd Rajendra Singh and Ors, 45
v. Bombay Environment Action Dr Karan Singh v. State of
Group & Ors, 49, 136–37 Himachal Pradesh and Ors
Bombay Environmental Action (Karan Singh), 171, 184
Group v. State of Maharashtra, Environment Protection
213 Committee v. Union of India,
Case concerning Pulp Mills on the 240, 248, 261
River Uruguay (Argentina v. Essar Oil Ltd V. Halar Utkarsh
Uruguay and Pulp Mills case), Samiti & Ors, 136
201 Fomento Resorts and Hotels
Case concerning the Limited and Anr v. Minguel
Gabcíkovo–Nagymaros project Martins and Ors (Fomento
(Gabcíkovo–Nagymaros case), Resorts), 237, 239, 243, 248,
108, 116, 121, 133 256, 261, 264, 267
Centre for Public Interest Goa Foundation and Anr v.
Litigation and Ors v. Union of Konkan Railway Corporation,
India (2G Spectrum case), 239, 139
250, 257, 259, 261–62 Goa Foundation and Anr v.
Charan Lal Sahu and Ors v. Union of India and Ors (Goa
Union of India and Ors, 37, Foundation), 33, 146, 217,
167 283, 296, 300

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 326 Index

G. Sundarrajan v. Union of India Karnataka Industrial Areas

and Ors, 10, 129, 283, 300 Development Board v. Sri.
Gurpreet Singh Bagga v. Ministry C. Kenchappa and Ors
of Environment and Forests, (Kenchappa), 136, 159, 193,
216 203, 207, 260
Hamid Khan v. State of Madhya Keshoram Industries case, 239,
Pradesh, 41 261, 267
Him Privesh Environment Kinkri Devi and Anr v. State of
Protection Society and Anr v. Himachal Pradesh and Ors, 34,
State of Himachal Pradesh and 128
Ors, 102, 187, 189–90, 300 Lafarge Umiam Mining Pvt.
Hinch Lal Tiwari v. Kamala Ltd v. Union of India and Ors
Devi, 36, 242 (Lafarge), 284
Hindustan Coca-Cola Beverages L. Chandra Kumar v. Union of
Pvt. Ltd v.West Bengal Pollution India (L. Chandra Kumar),
Control Board and Ors, 160, 84
174, 215, 265, 283, 287 L. K. Koolwal v. State of
Indian Council for Enviro- Rajasthan and Ors (Koolwal),
legal Action v. Union of India 33
(Bichhri/Bicchri case), 11, 14, Manoj Misra v. Delhi
159, 160, 163–64, 167, 168, Development Authority and Ors
178–79, 183, 188, 272, 279, (Art of Living case), 45, 102,
283, 288, 306–09 171
Indian Council for Enviro-legal Manoj Misra v. Union of India
Action v. Union of India (CRZ and Ors, 44, 100, 170, 317
Notification case), 48, 309–10 M. C. Mehta v. Kamal Nath
Intellectuals Forum, Tirupathi v. (Kamal Nath I and Kamal
State of Andhra Pradesh and Nath II), 13, 28, 48–49,
Ors, 29, 137, 193, 235, 288 58, 87, 137, 163, 179, 183,
Invertis University and Ors 186–88, 193, 203, 231–35,
v. Union of India and Ors 237–39, 244–47, 251, 257–58,
(Invertis University), 170, 184, 261, 264, 286–88
316 M. C. Mehta v. Union of India,
Jeet Singh Kanwar and Anr v. 10, 14, 29, 34, 37, 48–50, 63,
Ministry of Environment and 86–89, 92, 96, 137–38, 140,
Forests (MoEF) and Ors, 141, 147, 163, 193, 203, 208, 218,
210, 283 283, 286–87, 290, 293–94,
Kalinga Power Corporation v. 304, 310
Union of India, 240, 254, 258, Badkhal and Surajkund
283 Lakes, 287

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 Index 327

Calcutta Tanneries case, 50, 128, 137, 141–46, 149, 193,

137, 163, 180, 182–83, 204, 207, 212, 300
188, 193, 203 National Audubon Society v.
Delhi Industrial Relocation Superior Court (Mono Lake
cases, 49 case), 235
Delhi Vehicular Pollution case, N. D. Jayal and Anr v. Union of
29, 49, 218–19, 292–94, India and Ors, 49, 53, 136–37,
309, 311–12 150–51, 204, 207, 251
Ganga Tanneries case, 86, 325 New Zealand v. Japan; Australia
Kanpur Tanneries case, 50, v. Japan (Southern Bluefin
53, 326 Tuna), 121, 197
Oleum Gas Leak case, 14, Noyyal River Ayacutdars
165, 167–68, 186, 286, Protection Association v.
289–90, 307–09, 312–13 Government of Tamil Nadu,
Taj Trapezium case, 48–49, 184
137, 140, 163, 193, 204, Orissa Mining Corporation v.
208, 283 Ministry of Environment and
M. I. Builders (P) Ltd v. Radhey Forests and Ors (Niyamgiri
Shyam Sahu, 237, 239, 244, Mining case), 44, 82, 296,
249–50, 261–64, 287 300
Mohammad Haroon Ansari v. Pandurang Sitaram Chalke and
District Collector, Ranga Reddy, Anr v. State of Maharashtra
Andhra Pradesh, 290, 298 (Panduram Sitaram Chalke),
Mrs Susetha v. State of Tamil 219, 225
Nadu and Ors (Susetha v. Tamil Paryavaran Avam Januthan
Nadu), 49 Mission v. Lieutenant Governor,
M/s Cox India Ltd v. M. P. 240, 287
Pollution Control Board and Perumatty Grama Panchayat v.
Anr, 171, 190 State of Kerala, 239, 241, 258,
M/s Shantistar Builders v. 261, 265, 267, 287
Narayan Khimalal Totame and Phillips Petroleum Co. v.
Ors (Shantistar Builders), 27 Mississippi, 235, 238
M/s Sterlite Industries (India) Ltd Pravinbhai Jashbhai Patel and
Thoothukudi v. The Chairman Anr v. State of Gujarat and Ors
Tamil Nadu Pollution Control (Pravinbhai), 183, 189
Board, Chennai, 211 Presidential Reference (Natural
Municipal Council, Ratlam v. Resources Allocation, In Re,
Shri Vardichand and Ors, 43, 85 Special Reference No. 1 of
Narmada Bachao Andolan v. 2012), 237, 251, 255, 256 –60
Union of India, 11, 48, 53, PUDR v. Union of India, 87

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 328 Index

Rayons Enlighting Humanity and S. P. Muthuraman and Ors v.

Anr v. Ministry of Environment Union of India, 211, 216,
and Forests and Ors, 215, 217, 329
316–17 State of Himachal Pradesh and
Reliance Natural Resources Ors v. Ganesh Wood Products
Limited v. Reliance Industries and Ors (Ganesh Wood
Limited (Reliance Natural Products), 48, 132, 135, 137,
Resources), 241, 245, 249, 251, 139, 193, 203
255, 259, 261 State of West Bengal v. Keshoram
Research Foundation for Science Industries Pvt. Ltd (Keshoram
Technology and Natural Industries case), 239
Resource Policy v. Union of Sterlite Industries (India) Ltd
India and Anr (Research v. Union of India and Ors
Foundation 2005), 136–38 (Sterlite), 145–47, 185, 186,
Research Foundation for Science 189, 211
Technology and Natural Subhash Kumar v. State of Bihar
Resource Policy v. Union of and Ors, 28, 37–38, 49–50,
India (Research Foundation 127, 203
2007), 138–40 Susetha v. State of Tamil Nadu
Rohit Choudhary v. Union of and Ors, 49, 143, 239,
India and Ors, 171, 283 245
Rural Litigation and Entitlement S.Venkatesan v. Government of
Kendra (RLEK) v. State of Tamil Nadu, 254
Uttar Pradesh and Ors, 27, 31, Thenkeeranur Vivasayigal Nala
33, 35–36, 39–40, 58, 127–28, Sangam v. The Secretary
131, 288–90 to Government Ministry of
Samta and Anr v. MoEF and Environment and Forests Union
Ors, 212 of India and Ors, 241, 283
Sarang Yadwadkar and Ors v. The T. N. Godavarman Thirumulkpad
Commissioner, Pune Municipal v. Union of India and Ors
Corporation and Ors, 148, 210, (T. N. Godavarman and
217 Godavarman), 14, 36, 44,
Save Mon Region Federation and 49–50, 87, 96, 129, 131, 139,
Ors v. Union of India and Ors, 146, 184–85, 207, 214–15,
67, 78 238–40, 251, 258, 262, 270,
Shoba Phadanvis v. State of 285, 290, 295–97, 307, 309
Maharashtra, 211–12 Union Carbide Corporation v.
S. Jagannath v. Union of Union of India, 166
India (Jagannath), 137, 163, Utkarsh Mandal v. Union of
193 India, 67–68

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 Index 329

Vajubhai Arsibhai Dodiya and Coastal Regulation Zone (CRZ),

Ors v. Gujarat Pollution Control 48, 70, 309–10
Board and Ors, 181, 317 Coastal Regulation Zone (CRZ)
Vellore Citizens’Welfare Forum Notification, 310
v. Union of India and Ors Cocoyoc Declaration, 113
(Vellore), 10–12, 14, 37, 48, Code of Civil Procedure 1908, 99,
58, 88, 96, 131–37, 140, 142, 165, 286
160–64, 168–69, 178–80, 183, Code of Criminal Procedure, 62,
188, 193, 196, 203–06, 212, 91, 165
214–15, 218, 220–21, 226, Common effluent treatment plants
272, 285, 301–02, 305–06, (CETPs), 190
309 Compensation, 12, 92, 96–98,
Vimal Bhai and Ors v. Ministry 100–101, 158, 161, 164, 166,
of Environment and Forests and 169–70, 172–84, 186–91, 224,
Ors, 31, 33, 94, 96, 135, 314 254–55, 282, 285, 288, 302,
Wilfred J. and Anrs v. Ministry 305–06, 308, 318–19, 321
of Environment and Forests and claim for, 182
Ors, 95, 284 determination of, 178, 181
Central Empowered Committee payment of, 164, 172, 175, 178
(CEC), 87, 285, 295–98, 309 Compensatory Afforestation
Central Government, 26 Planning and Management
Central Information Commission Authority (CAMPA), 185
(CIC), 69–70 Compliance, 60, 64, 276, 278,
Central Pollution Control Board 284, 316
(CPCB), 192, 281, 301 Compressed Natural Gas (CNG),
Centre for Environment Law, 129 29, 89, 140, 210, 241, 293
Centre for Science and Comptroller and Auditor General
Environment (CSE), 65, 175, (CAG), 65, 284
278, 282, 321 Environment Audit Reports on
Chowdhury, Nupur, 148, 291 Air Pollution, 65
Cigarettes and Other Tobacco Constitutional provisions, 55, 134,
Products (Prohibition of 160, 221
Advertisement and Regulation Constitution (Forty-second
of Trade and Commerce, Amendment) Act 1976, 29
Production, Supply and Constitution of India, 3, 8, 22–31,
Distribution) Act 2003, 222–23 33–35, 39–42, 45–46, 49–52, 55,
Citizens 59, 62, 71, 83–84, 95–96, 127–
duty of, 30–31, 33, 46, 72, 220 28, 130–31, 134–35, 159–60,
public-spirited, 16, 32 165, 190, 220, 237, 239, 241,
Climate change, 94, 299 245, 249, 255–57, 259, 271

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 330 Index

Article 14, 128, 256–57, 259 Delhi Pollution Control

Article 21, 3, 8, 23–28, 30–31, Committee, 171, 175–76
34, 36, 39–42, 45, 48–50, 52, Delhi Prohibition of Smoking and
55, 61, 71, 84, 127, 134, 203, Non-smokers Health Protection
220, 237, 271 Act 1996 (Prohibition Act),
environmental aspects of, 28 223
violation of, 27–28 De Sadeleer, Nicolas, 153–55,
violative of, 28 157–58, 164–65, 173, 177, 182,
Article 22(1), 62 185, 198–99, 206, 222
Article 32, 26–27, 31, 51, 84, Development
286 industrial, 37
Article 39, 26, 29–30, 259 priorities, 34
Article 41, 26 Directive Principles of State Policy
Article 47, 29, 41, 220 (DPSP), 25–26, 28–31, 33,
Article 48A, 3, 8, 28–30, 34–35, 53–54, 71, 259
41, 55, 71, 134, 160, 220 Dispute Resolution Body of
Article 51A (g), 3, 8, 30–31, 33, the World Trade Organisation
45–46, 55, 72, 160, 220 (WTO-DSB), 121
Article 226, 31, 51, 84, 95 Disputes, 3, 5, 7, 91, 96, 116, 126,
Article 256, 26 128–30, 132, 134–37, 140–42,
Article 297, 241–42, 245, 249, 146–49, 194, 241, 291
255 environmental, 3, 5, 7, 91, 135,
Continental shelf, 242 141, 147, 291
Convention on Biological Diversity international, 116, 149, 194
(CBD), 119, 197 legal, 3
Court-appointed commission, 32 polycentric, 3
Commissioner, 287 settlement, 194
Craig, Robin Kundis, 237 Divan, Shyam, 85, 126, 168, 281,
CSE Reform Agenda, 279, 281 289
Cullet, Philippe, 41, 56, 58, 230, Domestic law, 22, 133, 159, 160,
267 162–63, 174, 190, 196, 205, 221,
Cunningham, Clark D., 32, 85 225–26
Draft National Policy for
Damage/Loss/Penalty, 68, 102, Management of Crop Residues,
161, 175–76, 184, 187, 191, 284, 316
318 Draft National Water Framework
payment of, 158, 166, 178, 182 Bill 2016, 226–27, 231, 252
Dam, Shubhankar, 30, 159, 273 Drinking water, 25, 40–41, 132,
Declaration of Cocoyoc, 113 208, 243, 287, 303
Deforestation, 1–2, 36, 80 clean, 25

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 Index 331

pure, 25, 41 Economy, 114, 124, 139, 316

unpolluted, 41 Egelston, Anne E., 110
Dutta, Ritwick, 135 Enforcement, 14, 32, 50, 59, 84,
Dwivedi, O. P., 126 179, 190, 271, 274–78, 280–84,
Dworkin, Ronald, 195 309, 316, 320, 322
English common law, 233–34,
Earth Summit. see also United 237
Nations Conference on Environment, 1, 3–4, 6, 8–9, 11,
Environment and Development 13, 21–57, 59–60, 63–64, 70–72,
(UNCED), 116, 118, 123, 79, 81–83, 90, 92, 94–96, 98,
196 100, 102, 107, 109–13, 115–16,
Ebbesson, Jonas, 57, 153 118, 121, 127, 132, 135–36,
Ecocentrism, 43–44 138–39, 143–45, 155–56, 158,
Ecodevelopment, 110, 113, 116 160–61, 168, 171, 174, 176–78,
Ecological balance, 3, 27, 29–31, 183, 185–86, 190–91, 196, 206,
35–36, 42, 245 208, 212–13, 215–21, 225, 227,
conception of, 35 229, 235–36, 238, 240, 257, 263,
disturbance of, 27, 36 270, 272, 274, 285–88, 291, 299,
Ecological damage, 179, 198 301–307, 315–18
Ecological imbalance, 35, 128 damaged, 11, 158, 161, 168,
Ecology, 34, 36, 53, 127, 132–33, 185
137–39, 142–43, 169, 186, 188, healthy, 3, 6, 24, 27, 36, 39,
190, 203, 212, 216, 221, 260–61, 50
305 hygienic, 29, 31, 39
cost of restoring the damaged, international law, 10, 12–13,
188 15, 108, 110, 118, 121–22,
forest, 261 132–33, 160, 162–63, 194,
preservation and protection of, 199, 201–02, 204, 220–22,
34, 127 225–26, 274
threats to, 36 man-made, 35
Economic Commission for Europe natural, 30, 33, 35, 40, 43,
(ECE), 121 96, 107, 143, 220, 238,
Economic constraints, 34 240
Economic development, 11, 107, physical, 109
109, 112, 116–17, 120–23, 130, pollution-free, 3, 37, 127
134, 137, 146 preservation of, 30, 34, 42, 49,
Economic growth, 1, 115, 117, 71, 138
125, 128, 138–39 procedural rights to, 48
Economic theory of externalities, provisions of, 34, 73
11, 153 right of, 22, 45, 53

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 332 Index

Environmental cases, see Cases, Environmental impact, 3, 49, 53,

4, 10, 14, 33, 52, 59, 68, 90–91, 64, 73, 118, 143, 145, 174, 213,
97, 100, 103, 135, 196, 203, 219, 315
222, 227, 229, 234, 252, 260, Environmental Impact Assessment
273, 277, 285, 292, 306, 309–10, (EIA), 9, 63–64, 66–67, 73–76,
313–15 78–79, 92, 102, 128, 144–45, 148
Environmental clearance (EC), Environmental Impact Assessment
2, 9, 66–69, 75, 77–79, 81, 102, (EIA) Notification 2006, 9,
121, 144–45, 156, 187, 198, 202, 63–64, 66–67, 73, 75, 102
210, 212, 224, 241, 250, 283–84, Environmental issues, 1, 5–6, 24,
289, 300–301, 316 26–27, 49, 51–52, 90, 92, 112,
process, 9 114, 130, 237
Environmental compensation, 176, Environmental judgments, 6–7, 10,
182 14, 58, 272, 320
Environmental conditions, 7, 284 effectiveness of, 14
Environmental conservation, 1, 4, implementation of, 7, 320
233, 240 Environmental jurisprudence, 12,
Environmental courts, 91–93, 309, 31, 39, 47–48, 53, 60, 89, 101,
313 107–08, 126–27, 131, 133–34,
Environmental damages, 164, 182, 153, 158, 161, 164–65, 193–94,
184 204, 229, 232, 234, 251, 270–71,
valuation of, 184 278, 290, 300, 304
Environmental decision-making, 9, domestic, 39, 47–48, 53, 153,
58, 69, 73, 148, 211, 224 158, 164–65
Environmental degradation/ Environmental justice, 9, 58, 90,
restoration, 1–2, 5, 7, 12, 15, 53, 103
117, 123, 126, 138, 144, 168, Environmental laws and rules,
170, 172, 177–78, 182, 189, 196, 1–10, 13, 15, 22, 38, 47–48, 50,
205–07, 220, 264 52, 57–58, 60, 90, 93, 101–02,
causes of, 2, 12, 205, 207 110, 116, 133, 152–53, 157–62,
incidents of, 5 169–70, 176, 186, 192, 197, 203,
remediation of, 7 206, 220–21, 226–27, 233, 252,
Environmental disputes, 3, 5, 7, 261, 264–65, 270–77, 282, 284,
91, 135, 141, 147, 291 314, 320, 322
Environmental Enforcement domestic, 22, 38, 50, 153, 159–
Networks: Concepts, Implementation 62, 186, 206, 220–21, 226
and Effectiveness, 276 foreign, 4, 7, 203
Environmental governance, 3, 6, international, 4, 7, 9, 48, 57,
12, 14, 16, 60, 68, 90, 115, 126, 110, 158, 160, 169–70, 197,
129–30, 192, 224, 229, 321 203, 227, 276

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 Index 333

judicial implementation of, 271 Equity

principles of, 3, 5–6, 47, 60, inter-generational, 9
157 intra-generational, 9, 147
Environmental litigation, 1, 4–6, European Union (EU), 156,
15, 33, 47, 49, 58, 226 198–99, 214
Indian, 6 Evidence-gathering mechanisms,
Environmental measures, 12, 154 286, 288–89, 291, 298
outcomes, 2, 5, 56, 60, 103 Exclusive economic zone, 242
policies, 3, 11, 111, 156 Expert Appraisal Committee
pollution, 26, 28, 39, 46, 128, (EAC), 68, 76, 79, 289, 316
164, 172, 174, 178, 184, 190 Expert committees, 87, 150,
problems, 2–3, 38, 54, 93, 101, 280, 284, 286, 289, 308,
110, 112, 114, 236 317
Environmental protection, 2, 8, Externalities, 11, 153, 154
11, 34, 43, 48, 56, 107, 109, 113,
116–18, 120, 122, 123, 125, 130, Fish Stocks Agreement, 197
134, 141, 146–47, 193, 214, 219, Five Year Plan, 125–26, 144
236, 243, 251 Seventh, 126, 144
anthropocentric, 4, 8 Sixth, 125
approach to, 8, 43 Foreign law, 4, 15, 90
measures, 2 Forest, 3, 9, 44, 69, 80–83, 94,
quality, 14, 24, 37, 274, 277 132, 173, 184–85, 207, 211, 232,
resource, 2 256–57, 261, 264, 266, 283–84,
Environmental rights and 296, 299, 301, 303, 320
principles, 4–9, 16–17, 21–22, clearance, 44, 69, 81–82,
24, 55–61, 91, 101, 103, 192, 283–84, 299, 301, 303
203–04, 271–72, 285, 298 land, 80–82, 184–85, 232, 264,
enforcement of, 50, 59 296
jurisprudence, 61 diversion of, 82, 184
procedural, 4, 7–9, 55, 57–60, use of, 81
101 Forest conservation, 3, 94, 296
protection of, 9, 59 Forest (Conservation) Act 1980
substantive, 8, 59, 103 (FC Act), 22, 80–82, 256, 264,
Environment impact assessment, 296
94 Forest Rights Act (FR Act) 2006,
Environment (Protection) Act 9, 73, 80–83, 102
1986 (EP Act), 9, 22, 34, 38, Founex Conference, 109, 113
63–64, 73–74, 75, 91, 120, 134, Founex Report, 108, 110, 112
144, 161, 179, 198, 269, 279, Freestone, David, 117–18, 157,
285, 290, 295, 302 196, 221

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 334 Index

Fundamental/legal duty, 30–31, public, 29, 38–39, 215, 217,

33, 46, 49, 54, 72, 96, 143 220
Fundamental/legal rights, 23–31, High Court of
36, 39, 43, 46, 49, 51, 53–54, 56, Andhra Pradesh, 27–28, 244
61, 84, 91, 95, 128, 179, 203, Bombay, 139, 210, 213, 249,
237 297, 319
to freedom of speech and Chhattisgarh, 220
expression, 61 Delhi, 66, 68, 76, 93, 175, 222,
to (human) life, 23–24, 27–29, 254
36, 39, 43, 46, 49, 53–54, 203, Gujarat, 189, 280
237 Guwahati, 240, 248
to live, 25 Himachal Pradesh, 187, 241
violation of, 31, 95 Jharkhand, 254
Karnataka, 29, 40
Gauri, Varun, 52, 277 Kerala, 210, 219, 265
Ghosh, Shibani, 9, 21, 66–67, 69, Madhya Pradesh, 41, 166
72, 79, 91, 107, 145, 152, 224, Madras, 77, 139, 180, 184,
271, 282, 321 208–09, 243, 254, 302, 306
Gill, Gitanjali Nain, 37, 90 Odisha, 95
Globalisation, 124, 129, 139 Rajasthan, 42, 49, 213
Government, 13 Uttarakhand, 46
Gram Sabha, 44, 80–82, 300 High Courts, 3, 7, 23, 28, 31, 49,
Groundwater, 2, 160, 184, 210, 54, 84–86, 89, 91, 94–96, 99,
241, 264–65, 267, 287 139, 146, 153, 194, 217, 223,
Gujarat Pollution Control Board, 230–31, 233, 235, 240, 274–75,
176, 181, 280, 317 282, 286, 301, 314, 318–19
Gunningham, Neil, 276 Housing, 27, 39, 43, 110, 244, 253
Huffman, James L., 236
Hazardous Human
activities, 111, 168, 200–201 dignity, 24–26, 39
emissions, 308 responsibilities, 43, 129
industry, 208, 283, 307 rights, 22, 56, 86, 151, 312
processes, 313 waste, 42
substance, 94 Hygienic
waste, 63, 169, 173, 178, atmosphere, 29, 31
182 environment, 29, 31, 39
Health, 25, 29, 36, 38–43, 49, 53,
71, 109, 132, 159, 198, 210–11, India
215, 217, 219–20, 303 environmental litigation in, 4,
human, 40, 49, 71, 219, 303 49, 226

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 Index 335

environmental right in, 203–04 International Court of Justice

Indian courts, 4–5, 7, 10–11, (ICJ), 108, 111, 120–21, 133,
14–15, 23, 34, 56, 62, 101, 157, 162, 198, 201
193–94, 201, 203–04, 222–23, International courts and tribunals,
228, 231–32, 238, 242, 245–47, 194, 197
252–53, 257, 259, 268, 270, 277, International environmental law,
283, 299 6, 15, 21, 31, 53, 56, 58, 62, 111,
Indian environmental governance, 115, 117–18, 120, 133–34, 145,
12, 14, 16, 60, 90, 129 152, 154, 157, 160–62, 169, 196,
Indian environmental 199–200, 221
jurisprudence, 12, 107–08, 131, principles of, 110
134, 232, 234, 251, 270–71, 304 International Environmental Law,
Indian environmental law, 1–2, 116
4–5, 7–10, 12–13, 15, 22, 32, International Law and Sustainable
55–56, 58, 61, 71–72, 83, 85, Development, 115, 117, 157, 221
89–91, 136, 193, 202–04, International Law and the
230–31, 234, 259, 264–65, 267, Environment, 58, 133, 152, 169,
270, 275–76, 284, 314, 320, 322 196
Indian judiciary, 1, 3, 5, 8–10, 12, International Law Commission
14, 33, 54–55, 88, 103, 194, 271 (ILC), 111, 200
Indian Penal Code, 91, 165 International law, customary, 10,
Industrial development, 37 122, 132–33, 162–63, 202, 220
Industrialisation, 112–13 International Monetary Fund
Industry, 26, 52, 73, 100, 132, (IMF), 122–23
138, 140–41, 143, 154, 159–60, International Tribunal for the Law
167–69, 173, 175, 178, 181–82, of the Sea (ITLOS), 198–200,
184, 188–89, 191, 208–09, 202
212–13, 254, 279, 281, 283, 286, International Union for
288, 294, 301–02, 305–08, 312 Conservation of Nature and
polluting, 143, 181–82, 184, Natural Resources (IUCN),
188–89, 213 113–14
Infrastructure, 3, 53, 102, 111, Irreversible damage, 12, 185, 194,
150, 189, 254, 266, 300, 313, 196, 205–06, 211–12, 216–17,
317 223, 226, 314
projects, 3, 53, 111
Intellectuals Forum, 29, 34–35, 39, Jawetz, Steven M., 235
48, 137, 193, 203–04, 235, 239, Johannesburg Declaration, 120,
243–45, 247–48, 253, 255, 258, 123
261, 264 Judicial
Internalisation, 154–56, 182, 185 activism, 273, 299

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 336 Index

decision-making, 5–6, 16, 91, environmental, 9, 58, 90, 103

231 social, 33, 112–13
decisions, 7, 16, 34, 41, 50, 130,
144, 195, 288 Kalpavriksh, 284, 298
discretion, 6, 17, 40 Kansal, Vishrut, 46
implementation, 14, 277, 311, Katz, Deborah, 201
320–21 Kirpal, Justice B. N., 32, 59, 126,
mechanisms, 14, 277, 311, 131, 270
320–21 Kohli, Kanchi, 38, 90, 145, 298,
interventions, 22, 51 315, 321
outcomes, 7, 13 Krishnakumar, Asha, 181, 305
proceedings, 32
process, 26, 58 Law Commission of India, 93, 314
reasoning, 5–6, 195, 204, 294 One Hundred Eighty Sixth
recognition, 8, 23, 32, 43, 47, Report on Proposal to
49–50 Constitute Environment
Judiciary, 1–12, 14, 16, 21–24, 31, Courts, 93, 314
33, 40, 45–48, 51, 53–55, 70, 84, Lazarus, Richard J., 233, 235–37,
88–89, 101, 103, 129–30, 153, 261, 263
158, 161, 167, 178–79, 190–91, Legal principles, 285–86, 288–89,
194, 202, 224, 228, 246, 252, 291–92, 295, 298, 304, 307,
268, 270–71, 273, 276, 282, 291, 311
299, 314 Legal reasoning, 14, 289, 315,
higher, 7, 23–24, 47, 53, 70, 84, 321
101, 282, 314 Liability, 2, 11, 92, 99, 153,
Jurisdiction, 6, 23, 31–32, 48–49, 155–56, 158, 164–69, 173–74,
84, 86, 90–95, 97, 111, 187, 192, 183–84, 190, 304, 308
217–18, 225, 230, 286, 293, 298 Loss, 12, 53, 128, 142, 169, 173,
appellate, 84, 93–94 178–81, 184, 191, 285, 305–06,
epistolary, 32 309
exclusive, 90, 92 assessment of, 178, 181
territorial, 97 Loss of Ecology (Prevention and
writ, 49, 84, 91, 95, 187, 286 Payment of Compensation)
Justice, 4, 9, 12, 33, 49, 52, 54, 56, Authority for the State of Tamil
58–59, 75, 83–86, 88–90, 93–95, Nadu, 179–80
98–100, 103, 108, 112–13, 120, Lowe, Vaughan, 122, 157, 221
125–26, 128, 131, 133, 135, 142, Luke, Timothy W., 125
145, 148, 153, 162, 167, 190–91,
195, 201, 207, 228, 241, 245, Mehta, Pratap Bhanu, 84, 130,
250, 270, 273, 277 273, 277, 321

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 Index 337

Millennium Declaration, 120, National Environmental

122 Engineering Research Institute
Millennium Development Goals (NEERI), 141, 209, 279, 287–88,
(MDGs), 122, 123 290, 297
Mines/Mining, 36, 44, 74, 82, 128, National Environment Appellate
254–55, 284, 294–96, 300, 303, Authority (NEAA), 90, 92–94,
309, 311–12 135
Ministry of Environment and National Environment Policy
Forests (MoEF), 31, 33, 44, 2006, 119, 126
47, 66–67, 69–70, 76, 81–83, National Green Tribunal Act 2010
93, 95–99, 112, 119, 135, 141, (NGT Act), 6–7, 31, 50, 67,
171, 174, 179–81, 185, 210, 90–91, 94–96, 99, 148, 198, 202,
212, 215–17, 241, 246, 283–84, 204, 218, 226, 231, 286, 314,
297–98, 300–301, 317, 321 317–18
Ministry of Environment, National Green Tribunal (NGT),
Forest and Climate Change 3, 6–7, 9, 31, 33, 39, 44–47, 50,
(MoEFCC), 74–76, 90, 145, 52, 54, 59, 65, 67, 69, 77–78,
192, 282, 284, 296, 310, 315, 81, 90–92, 94–100, 102, 141,
320 147–49, 153, 160, 170–72,
Ministry of Human Resources 174–77, 180–82, 184–85,
Development (MHRD), 310 187–88, 190, 192, 194, 198,
Ministry of Water Resources, 231, 202, 204, 210–12, 215–19, 223,
288 225–26, 231, 233, 240–41, 246,
Mittal, Priyanka, 299, 319 250, 272, 275, 282–84, 286, 297,
Modernisation, 112, 146 300–302, 306, 313–20, 322
Monitoring mechanisms, 285, Central Zone Bench, 46, 171
288, 291–92, 295, 298, 304, 307, Circuit Bench at Shimla,
311 170–71
implementation under the, 313
National Conservation Strategy judgments of the, 33
and Policy Statement on orders, 316
Environment and Development, non-implementation of the,
112, 126 316
National Council for Teacher Principal Bench, 31, 33, 39,
Education (NCTE), 310 44–45, 65, 67, 78, 81, 95–96,
National Council of Educational 98–100, 102, 141, 148–49,
Research and Training 160, 170–72, 174–76, 182,
(NCERT), 310 184, 187–88, 190, 210–11,
National Curriculum Framework 215–17, 241, 246, 283–84,
(NCF), 310 301, 315–17, 319

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 338 Index

Southern Zone Bench, 65, 69, Polluter, 4, 7–9, 11–12, 47–48, 60,
180, 212, 241, 250, 283, 99, 108, 133–34, 136, 152–65,
317 167–84, 186–91, 193, 203–04,
Western Zone Bench, 33, 47, 206, 210, 214–17, 220–22, 224,
77, 175–76, 180–81, 212, 217, 231, 272, 283, 287–88, 291, 297,
219, 241, 316–17 302–03, 308, 314
Natural resources, 2–3, 5, 13, Polluter pays principle, 4, 7–9,
17, 34–35, 102, 110, 123, 127, 11–12, 48, 60, 99, 108, 133–34,
135, 154, 173, 184, 204, 230, 136, 152–69, 172–74, 176–84,
233–36, 238–43, 245, 247–63, 187–90, 193, 203–04, 206, 210,
266–70 214–17, 220–22, 224, 231, 272,
access and use of, 5, 135, 230, 283, 287–88, 291, 297, 303,
248, 254 314
conservation of, 34 application of, 153, 173–74,
decision-making relating to, 176
249, 252 development of, 158
definition of, 262 Limits of, 188
encroachment of, 3 operationalising, 169
right to, 34 source of, 159
Non-governmental Organisation Polluting,
(NGO), 311 firms, 280
Nuclear Power Corporation of industries, 143, 167, 173, 175,
India Limited (NPCIL), 301 181–82, 184, 188–89, 191,
Nutrition, 29, 110, 220 213, 286, 288
Pollution, 1–3, 10–12, 22, 24–26,
Obligation, 4, 15, 30, 44, 62–63, 28–29, 37–42, 44, 46, 49–50,
117, 132, 144, 157–58, 199, 222, 58, 61, 63–65, 73, 76, 91–92,
243, 248–49, 258, 265, 268, 277, 94, 98, 109–10, 119, 127–28,
310 134, 136, 140–41, 143–44,
international, 4 147, 152, 154–61, 164–65,
social, 30 168–78, 180–84, 186–92, 199,
Organization for Economic 203, 206–08, 210–11, 213, 216,
Cooperation and Development 218–19, 272–73, 278–83, 286,
(OECD), 11, 154–56, 158–59, 292–94, 299, 301, 303, 305–06,
162–63, 190 309, 311–12, 316–18
environmental, 26, 28, 39, 46,
Pelsy, Florent, 128 128, 164, 172, 174, 178, 184,
Penalty, see Damage/Loss/Penalty 190
Political will, 2 fine, 183, 187–88
Pollutants, 38, 168, 279 industrial, 3

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prevention and control of, 44, principles of the, 242, 251

158, 161, 176, 182 rescuing the, 265
soil, 42, 159
vehicular, 3, 140 Quality of life, 24, 26, 37, 49,
water, 38, 41–42, 50, 109, 110
141
Pollution control, 2, 63–64, 73, 94, Rajamani, Lavanya, 12–13, 23, 29,
176, 178 34, 36–37, 40, 48, 51–52, 54–55,
boards, 2 59, 72, 78, 88–90, 127, 193, 203,
laws, 63–64, 73 228, 273, 299, 312
Precautiona/Precautionary Ramanathan, Usha, 52, 88, 308
principle, 6, 8–9, 12, 15, 48, 108, Rehabilitation, 3, 145, 185, 294,
121, 124, 134, 136–38, 140–42, 319
177, 192–20, 222–29, 260, 283, Religious rights, 44, 82
291, 303, 314 Resources, 2, 13, 35, 36, 111, 283
Principle 16 of the Rio community, 44
Declaration, 11, 157, 163–64 exploitation of, 36
Principles of precaution, 193, financial, 2
216 material, 36, 259
Public health, 29, 38–39, 215, 217, mineral, 36
220 Rights and principles, 1, 3–9,
Public hearings, 72, 77, 309, 313, 11–12, 14–17, 22, 24, 33–34, 37,
317 39, 43, 48–49, 54, 56–57, 59–60,
Public interest environmental 65, 108, 121, 134, 136–38,
litigation, 33, 49 140–42, 153, 158, 161, 165–69,
Public interest litigation (PIL), 177, 183, 190, 193–98, 200–229,
31–32, 37–38, 46, 52, 58, 85–90, 238, 260, 271–72, 277, 283, 285,
92, 103, 133, 239, 273, 277, 291, 298, 303–04, 314
292–94, 298, 319 environmental, 5, 8, 21–22,
Public participation, 4, 9, 48, 55–56, 192, 203–04
56–57, 71–73, 75–76, 78–80, 85, Rights of animals, 46
102, 118, 148, 315 Right to access environmental
Public trust doctrine, 4, 8, 13, justice, 9, 89, 103
15, 48, 137, 193, 203, 230–40, Right to access information, 56,
242–49, 251–54, 257–61, 61, 71, 101
263–70, 283, 287–88, 291, Right to access justice, 56, 83–84
304–05 Right to development, 5, 52–53,
application of the, 13, 231, 240, 118, 127, 150–51
249, 254, 257, 270 Right to environment, 3–4, 6, 8,
Indian version of the, 235 21–44, 46–56, 60, 90

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Right to health, 39, 42–43 Rosencranz, Armin, 73, 88, 93,

Right to housing, 43 126, 168, 180, 270, 273, 289,
Right to information, 4, 9, 49, 68, 297, 314
70–71, 102
in the environmental context, Sahu, Geetanjoy, 53, 93, 127, 150,
62 180, 277–78, 290, 297, 300,
Right to Information Act 2005 305–06, 314
(RTI Act), 9, 59, 62–64, 68, 70, Salve, Harish, 59, 270
101–02 Sands, Philippe, 110, 118, 133,
Right to life, 3, 5–6, 23–30, 39–40, 154, 199
42–46, 49–51, 53–54, 61, 71, 84, Sanitation, 25, 39, 42–43, 50, 110
142, 203, 237 facilities, 43
Right to live, 3, 24–26, 37 right to, 42, 50
denial of, 26 Sardar Sarovar, 142–44
Right to livelihood, 5, 52–53, Sathe, S. P., 23, 85, 129
229 Sax, Joseph L., 232–33, 235–36,
Right to natural resources, 34 243, 253, 261–62, 270
Right to pollution-free Scheduled Tribes and Other
environment, 37 Traditional Forest Dwellers
Right to public participation, 71, (Recognition of Forest Rights)
102 Act 2006, 44, 73, 81–82
Right to sanitation, 42, 50 Scheduled Tribes (STs), 44, 73,
Right to shelter, 43, 253 80–82
Right to water, 28, 40–41 Scientific uncertainty, 12, 194,
Rio Conference, 94, 116, 188 197, 206–09, 211–14, 217,
Rio Declaration on Environment 226
and Development (Rio Seabed Disputes Chamber of the
Declaration), 11–12, 57, 92, 94, International Tribunal for the
112, 116–18, 137, 141, 144–46, Law of the Sea (ITLOS), 199
157, 163–64, 196, 202, 205, Sen, Amartya, 150
221 Sethi, Nitin, 98, 316
Agenda 21, 119, 163, 221 Sewage treatment, 42, 178
Principle 15, 12, 141, 202 Shelton, Dinah, 21–22, 56, 116
Principle 16, 11 Social justice, 33, 112–13
Rio principle, 205, 224 Standard of living, 29, 220
Rivers, 30, 44–47, 49, 79, 88, State
99, 128, 130, 132, 142, 144, government, 44, 81, 127, 173,
149, 160, 170, 184, 187, 198, 180, 186, 189, 211, 247, 299,
220, 231–32, 240–41, 244, 248, 301
256–57, 287 sovereignty, 111–12, 236

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State Pollution Control Board 224, 226–27, 231, 264, 272, 291,
(SPCB), 64–65, 91, 171, 175–76, 314
181–82, 186, 216, 272, 278–82, Court’s approach to, 10
284, 286, 301–02, 304, 320 definition of, 10, 115, 124,
Statutory 134
authorities, 12, 77, 205, 294, features of, 203, 214, 221
297 interpretation of, 115, 128
duties, 25, 49, 54, 171, 178, jurisprudence, 132, 150
245, 264, 292, 304 notion of, 107
enactment, 26 principles of, 4, 6, 8–10, 99,
environmental laws, 220 130, 133, 139, 147–48, 204,
provisions, 1, 5, 7, 60, 96, 161, 212, 216, 231, 272, 283, 291,
264, 298 314
standards, 38, 42 Sustainable Development Goals
Stevens, Jan S., 234 (SDGs), 124
Stockholm Conference, 56, Sustainable Development
108–10, 112 Knowledge Platform, 124
Stockholm Declaration, 109–13, Green Economy, 123–24
116–17, 132
Supreme Court of India, 3–4, Tanneries, 12, 53, 58, 132, 138,
6–7, 10–13, 15, 23–24, 27–28, 160, 206, 281, 302, 305
30–32, 34–37, 39–40, 42–47, Territorial waters, 242
49–50, 52–54, 58–59, 61–62, Tobacco, 222–23
70–73, 76, 82–89, 91–92, 94–96, products, 222–23
99–100, 119, 126–33, 135–37, sellers, 223
139–41, 144, 146–50, 153, Trouwborst, Arie, 199
158–61, 165–66, 170, 173–74,
177–78, 183–88, 190, 192, 194, United Nations (UN), 57,
196, 203–05, 208, 210, 212–14, 108–16, 118–20, 122–24,
217–20, 222–23, 228, 230–35, 133, 157, 161, 196–97, 200,
237, 239–41, 243–51, 253–55, 276, 280
257–60, 262–65, 268, 270–75, United Nations (UN) Conference
277, 279–80, 282, 284–95, on Environment and
297–309, 311–15, 318, Development (UNCED), 57,
320–21 112, 115–16, 118–19, 157, 163,
Sustainable development, 4, 6, 190
8–11, 48, 53, 60, 99, 107–08, United Nations (UN) Conference
110, 113–25, 128–34, 136–40, on Environment and
142, 144–50, 157, 160, 162, 169, Development and Resulting
203–04, 212, 214, 216–17, 221, Instruments, 115

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United Nations (UN) Conference 190, 199, 203, 208, 226–27,

on the Human Environment 230–31, 234, 236–37, 239, 241,
(Stockholm Conference), 243, 248, 250, 252–54, 263, 265,
108–11, 116, 161 268, 278–79, 281–82, 287–88,
United Nations (UN) Council 301, 303
on Trade and Development pollution, 38, 41–42, 50, 109,
(UNCTAD), 113 141
United Nations (UN) river, 241
Environment Programme sources of, 41, 143, 168
(UNEP), 113 wholesomeness of, 40
United Nations (UN) Framework Water (Prevention and Control
Convention on Climate Change of Pollution) Act 1974 (Water
(UNFCCC), 118–19, 197 Act), 22, 38, 40, 63–65, 73, 91,
United Nations (UN) Millennium 102, 134, 161, 172, 175, 278–79,
Declaration, 120, 122 281–82, 301
United Nations (UN) World Western Ghats Ecology Expert
Commission on Environment Panel (WGEEP), 69
and Development (Brundtland Wiener, Jonathan, 200
Commission), 114 Workmen, 25–6, 138
University Grants Commission World Bank, 120, 122–23, 142
(UGC), 310 World Commission on
Environment and Development,
Verma, S. K., 126 10, 114, 156
Viñuales, Jorge E., 57, 157 Report of the World
Visvanathan, S., 129 Commission on Environment
and Development: Our
Waste, 1, 3, 42, 77, 143, 156, Common Future, 10, 114,
169–70, 172–73, 178, 182 156
human, 42 World Summit on Sustainable
management, 3, 77 Development (WSSD), 120,
solid, 77, 170, 172 123
Water, 22, 25, 27–29, 34, 36–42, Writ jurisdiction, 49, 84, 91, 95,
44, 46, 50, 63–65, 73, 80, 91, 187, 286
102, 109–10, 128, 132, 134, 141, Writ petition (WP), 86–87, 89, 95,
143, 159–61, 168, 172–73, 175, 139, 146, 168, 185, 310

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