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DEVELOPMENTS IN INDIA RELATING TOENVIRONMENTAL JUSTICE

BY JUSTICE B.N. KIRPAL

An Introduction to Indian environmental law... 1

Legislative Initiative.. 2

The Statutory Framework.. 2

The Constitutional Framework.. 3

ecent !oteworthy Initiatives. "

#udicial initiative$ The ole o% &u'lic Interest LItigation... "

The ela(ation o% the ule o% Locus Standi )

The Constitution as Sounding *oard$ Article 21 and the &rotection o% +umanights. ,

-eveloment o% /nvironmental Law &rinciles. 0

The &recautionary &rincile0

The &olluter &ays &rincile

Sustaina'le -eveloment and Inter4generational /5uity.

+olistic Ad6udication.. 11

#udicial Attitude to &olicy. 11

The ight to Livelihood.. 12

The -octrine o% &u'lic Trust. 12

Conclusion... 12

An Introduction to Indianenvironmental la


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The develoment o% Indian environmental law has haened7 %or themost art7 over the last three decades7 with a signi%icant level o%olari8ation around the latter hal% o% this eriod. There%ore7 a aerdetailing recent develoments in India would necessarily involve athorough discussion o% most relevant environmental issues and their

conse5uences. The develoment o% the law in this area has seen aconsidera'le share o% initiative 'y the Indian 6udiciary7 articularly thehigher 6udiciary7 consisting o% the Sureme Court o% India7 and the +ighCourts o% the States. The aer will dwell on this asect and its e%%ecton the strength o% the legal %ramework. Legislative schemes andinitiatives have 'een created in most areas involving the environment7al'eit with some degree o% overla. The role o% the administration7although a critical %actor in the success o% any environmentalmanagement rogramme7 has seen its share o% ro'lems o% scale andde%inition. The essence o% the e(isting law relating to the environment

has develoed through legislative and 6udicial initiative.91:Since thelatter is resonsi'le %or the most recent develoments7 this aer willattemt to lay the %oundation %or understanding through a discussiono% legislation and administrative rules7 and then detail develoment o%the law and environmental rinciles through the discussion o% 6udicialdecisions.

Le!i"lative InitiativeT#e Statutor$ %rameor&

It is ossi'le to suggest with conviction that the 'eginnings o% Indianenvironmental law were sown at the ;nited !ations Con%erence on the+uman /nvironment held at Stockholm in 1


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T#e Con"titutional %rameor&

The Forty4Second Amendment to the Indian Constitution in 1


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Failure on the art o% the governmental agencies to e%%ectively en%orceenvironmental laws and non4comliance with statutory norms 'y ollutersresulted in an accelerated degradation o% the environment. Eost o% therivers and water 'odies were olluted7 and large4scale de%orestation wascarried out with imunity. There was also a raid increase in casualties due

to resiratory disorders caused 'y widesread air ollution.

Such large4scale environmental degradation and adverse e%%ects on u'lichealth romted environmentalists and residents o% olluted areas7 as wellas non4governmental organi8ations7 to aroach the courts7 articularly thehigher 6udiciary7 %or suita'le remedies.

T#e Rela+ation o( t#e Rule o( Locus Standi

There is near comlete academic agreement that the concertedinvolvement o% the higher 6udiciary in India with the environment

'egan with the rela(ation o% the rule o% locus standi911:7 and thedearture %rom the roo% o% in6ury aroach.912:The rela(ation o%the rule led to some imortant conse5uences7 which were articularlyertinent to environmental matters. First7 since it was ossi'le thatthere could 'e several etitioners %or the same set o% %acts dealing withan environmental ha8ard or disaster7 the court was a'le to look at thematter %rom the oint o% view o% an environmental ro'lem to 'esolved7 rather than a disute 'etween two arties. Second7 the ruletook care o% the many interests that went unreresented B %ore(amle7 that o% the common eole who normally had no access to

the higher 6udiciary.913:Also7 the rocess 'rought into shar %ocus thecon%lict o% interest 'etween the environment and develoment7 and setthe stage %or a num'er o% decisions that would deal with issues relatingto this area in a more seci%ic manner.

The rela(ation o% locus standi7 in e%%ect7 created a new %orm o% legalaction7 variously termed as u'lic interest litigation and social actionlitigation.91": This %orm is usually more e%%icient in dealing withenvironmental cases7 %or the reason that these cases are concernedwith the rights o% the community rather than the individual.91): It is

characteri8ed 'y a non4adversarial aroach7 the articiation o%amicus curiae7 the aointment o% e(ert and monitoring committees'y the court7 and the issue o% detailed interim orders91,:in the %orm o%continuous mandamus under Articles 32 and 22, 'y the SuremeCourt o% India and the +igh Courts o% the States resectively.


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T#e Con"titution a" Soundin! *oard' Article,- and t#e Protection o( .uman Ri!#t"

The 6udiciary7 in their 5uest %or innovate solutions to environmental

matters within the %ramework o% u'lic interest litigation7 looked toconstitutional rovisions to rovide the court with the necessary6urisdiction to address seci%ic issues. Furthermore7 Article 1"2a%%orded the Sureme Court considera'le ower to mould its decisionsin order that comlete 6ustice could 'e done. As the Sureme Court isthe %inal authority as %ar as matters o% constitutional interretation areconcerned7 it assumes a sort o% rimal osition in the Indianenvironmental legal system. For e(amle7 the %undamental rightcontained in Article 2191


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the seci%ic order on the reason that the radiation a%%ected the li%e andli'erty o% the emloyees.921: In 1ural Litigation and 0ntitlement&endrav. State of Uttar 2radesh922:7 the Sureme Court 'ased its %ivecomrehensive interim orders on the 6udicial understanding thatenvironmental rights were to 'e imlied into the scoe o% Article 21.

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Develo/ment o( Environmental LaPrinci/le"

The Court has success%ully isolated seci%ic environmental lawrinciles uon the interretation o% Indian statutes and theConstitution7 com'ined with a li'eral view towards ensuring social

6ustice and the rotection o% human rights. The rinciles have o%ten%ound re%lection in the Constitution in some %orm7 and are usually

6usti%ied even when not e(licitly mentioned in the concerned statute.There have also 'een occasions when the 6udiciary has rioriti8ed theenvironment over develoment7 when the situation demanded animmediate and seci%ic olicy structure.92":

T#e Precautionar$ Princi/le

*eginning with 3ellore Citi-ens4 Welfare Forum v. Union of ndia92):7the Sureme Court has e(licitly recogni8ed the recautionaryrincile as a rincile o% Indian environmental law. Eore recently7 in

A%2% 2ollution Control 'oard v. M%3% 5ayudu92,:7 the Court discussedthe develoment o% the recautionary rincile.92


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ays rule has also 'een recogni8ed as a %undamental o'6ective o%government olicy to revent and control ollution.932:

Su"taina)le Develo/ment and Inter2!enerational E3uit$

>hat is meant 'y the hrase sustaina'le develomentG Thede%inition which is used most o%ten comes %rom the reort o% the*rundtland Commission7 in which it was suggested that the hrasecovered develo$ment that meets the needs of the $resent ithoutcom$romising the a!ility of future generations to meet their onneeds% +owever7 di%%erent levels o% societies have their own conceto% sustaina'le develoment and the o'6ect that is to 'e achieved 'y it.For instance7 %or rich countries7 sustaina'le develoment may meansteady reductions in waste%ul levels o% consumtion o% energy andother natural resources through imrovements in e%%iciency7 and

through changes in li%e style7 while in oorer countries7 sustaina'ledeveloment would mean the commitment o% resources towardcontinued imrovement in living standards.

Sustaina'le develoment means that the richness o% the earths'iodiversity would 'e conserved %or %uture generations 'y greatlyslowing and7 i% ossi'le7 halting e(tinctions7 ha'itat and ecosystemdestruction7 and also 'y not risking signi%icant alternations o% theglo'al environment that might B 'y an increase in sea level orchanging rain%all and vegetation atterns or increasing ultravioletradiation B alter the oortunities availa'le %or %uture generations.

+ow has this hrase 'een understood in IndiaG &erhas the answerlies in the decision o% the Sureme Court in 5armada 'achao Andolanv. Union of ndia6..7 wherein it was o'served that Sustaina!ledevelo$ment means hat ty$e or e#tent of develo$ment can take

$lace, hich can !e sustained !y nature8ecology ith or ithoutmitigation% In this conte(t7 develoment rimarily meant material oreconomic rogress.

*eing a develoing country7 economic rogress is essentialH at the

same time7 care has to 'e taken o% the environment. Thus7 the5uestion that s5uarely arises is$ +ow can sustaina'le develoment7with economic rogress and without environmental regression7 'eensured within the Indian legal %rameworkG This can 'e achievedthrough the imlementation o% good legislation.

The courts have attemted to rovide a 'alanced view o% rioritieswhile deciding environmental matters. As India is a develoing


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country7 certain ecological sacri%ices are deemed necessary7 whilekeeing in mind the nature o% the environment in that area7 and itscriticality to the community. This is in order that %uture generationsmay 'ene%it %rom olicies and laws that %urther environmental as wellas develomental goals. This ethical mi( is termed sustaina'le

develoment7 and has also 'een recogni8ed 'y the Sureme Court inthe Ta* Tra$e-ium case.93":

In State of 9imachal 2radesh v. :anesh Wood 2roducts93):7 theSureme Court invalidated %orest4'ased industry7 recogni8ing therincile o% inter4generational e5uity as 'eing central to theconservation o% %orest resources and sustaina'le develoment.93,:

.oli"tic Ad4udication

The Sureme Court7 in recent years7 has 'een adoting a holisticaroach towards environmental matters. This is usually done throughdetailed orders that are issued %rom time to time7 while Committeesaointed 'y the Court monitor the ground situation. The origin o% thistendency may 'e seen in cases such as 1atlam93


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T#e Doctrine o( Pu)lic Tru"t

To %urther 6usti%y and erhas e(tract state initiative to conservenatural resources7 the Court enunciated &ro%essor #oseh Sa(sdoctrine o% u'lic trust7 o'ligating conservation 'y the state. In M%C%Mehtav. &amal 5ath9"":7 the Court held that the state7 as a trustee o%all natural resources7 was under a legal duty to rotect them7 and thatthe resources were meant %or u'lic use and could not 'e trans%erredto rivate ownershi.

Conclu"ionThus7 the arrangement o% environmental management is comosed o% aharmonious 'lend o% initiatives %rom the legislature7 the e(ecutive7 and the6udiciary. The higher 6udiciary lays a rather stalwart role owing to its uni5ueosition and ower7 and due to the circumstances o% ine%%iciency within thee(ecutive and the e(istence o% a skeletal legislative %ramework. Therinciles o% Indian environmental law are resident in the 6udicialinterretation o% laws and the Constitution7 and encomass severalinternationally recogni8ed rinciles7 there'y roviding some sem'lance o%consistency 'etween domestic and glo'al environmental standards.

91:>ith %ew e(cetions such as /nvironment Imact Assessment ?1"@7Coastal egulation one !oti%ication ?11@7 and the #oint ForestEanagement &rogramme7 the wealth o% Indian environmental managementstems %rom legislative and 6udicial actions. +owever7 the Einistry o%/nvironment and Forests is the nodal agency %or virtually all environmentalmanagement rocesses set u 'y the legislature.

92: This is in contrast to laws in countries such as /ngland7 which weresometimes a direct result o% some mass environmental disasterH %or e(amle7


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the Clean Air Act o% 1), was the outcome o% the deadly smog that killedover "=== eole in London in 1)2. ?The Act has since 'een relaced 'y theClean Air Act o% 13@. See +arish Salve7 #ustice 'etween Denerations$/nvironment and Social #ustice7 Su$reme 'ut 5ot nfalli!le< 0ssays in9onour of the Su$reme Court of ndia7 (%ord ;niversity &ress7 !ew -elhi7

2===7 .3,=430=. Salve adds$ n the fullness of time, $olitical u$heavals!rought home the reali-ation that freedom can only survive if it honours!asic human rights and is founded on $rinci$les of natural *ustice%

93: Seethe &ream'le to the Act %or a seci%ic re%erence to the Stockholmcon%erence.

9":See the Constitution ?Forty4Second Amendment@ Act o% 1


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912:See su$ran.27 .3,< and .3


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925otification case@7 ?1,@ ) SCC 201. The Court noted that the rincilewould 'e violated i% there were a su'stantial adverse ecological e%%ectcaused 'y industry.

93


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and 5uality o% li%e into ecologically oriented e%%orts. See al"o 'anaasi SevaAshram v. State of Uttar 2radesh7 AI 12 SC 2=.

9"3:Seendian Council for 0nviro+Legal Action v. Union of ndia7 AI 1) SC22)2H ndian Council for 0nviro+Legal Action v. Union of ndia7 ?1,@ ) SCC

201.

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