Law Environment and D document can be cited as Geetanjoy Sahu, ‘Implications of Indian Supreme Court’s Innovations for Environmental Jurisprudence’, 4/1 Law, Environment and

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  • LEADLawEnvironment andDevelopmentJournal

    VOLUME

    4/1

    IMPLICATIONS OF INDIAN SUPREME COURTS INNOVATIONSFOR ENVIRONMENTAL JURISPRUDENCE

    Geetanjoy Sahu

    ARTICLE

  • LEAD Journal (Law, Environment and Development Journal)is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the

    School of Law, School of Oriental and African Studies (SOAS) - University of Londonand the International Environmental Law Research Centre (IELRC).

    LEAD is published at www.lead-journal.orgISSN 1746-5893

    The Managing Editor, LEAD Journal, c/o International Environmental Law Research Centre (IELRC), International EnvironmentHouse II, 1F, 7 Chemin de Balexert, 1219 Chtelaine-Geneva, Switzerland, Tel/fax: + 41 (0)22 79 72 623, info@lead-journal.org

  • This document can be cited asGeetanjoy Sahu, Implications of Indian Supreme Courts Innovations for Environmental Jurisprudence,

    4/1 Law, Environment and Development Journal (2008), p. 1,available at http://www.lead-journal.org/content/08001.pdf

    Geetanjoy Sahu, Centre for Interdisciplinary Studies in Environment and Development, Institute for Socialand Economic Change, Nagarbhavi Post, Bangalore-560072, India, Email: geetanjoy@isec.ac.in

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

    ARTICLE

    IMPLICATIONS OF INDIAN SUPREME COURTS INNOVATIONSFOR ENVIRONMENTAL JURISPRUDENCE

    Geetanjoy Sahu

  • TABLE OF CONTENTS

    1. Introduction 3

    2. Procedural and Substantive Innovations and their Implicationsfor Environmental Jurisprudence 52.1 Concept of PIL 52.2 Expansion of Fundamental Right to Life 82.3 Spot Visit 92.4 Application of Environmental Principles and Doctrines 102.5 Expert Committee 11

    3. Analysis of the innovations effected by the Court 133.1 Interference in the affairs of Executive Action 133.2 Implementation of Court Directions 17

    4. Conclusion 19

  • 1INTRODUCTION

    Since the last two decades, the Supreme Court ofIndia has been actively engaged, in many respects,in the protection of environment. Whileconventionally the executive and the legislature playthe major role in the governance process, the Indianexperience, particularly in the context ofenvironmental issues, is that the Court1 has begunto play a significant role in resolving environmentaldisputes. Although it is not unusual for Courts inthe Western democracies to play an active role inthe protection of environment, the way IndianSupreme Court has been engaged since 1980s ininterpreting and introducing new changes in theenvironmental jurisprudence is unique in itself.Besides the assigned role of interpretation andadjudication2 of environmental law the Court haslaid down new principles to protect theenvironment, reinterpreted environmental laws,created new institutions and structures, andconferred additional powers on the existing onesthrough a series of illuminating directions andjudgments. The Courts directions on environmentalissues is involved not just in general questions of law-as is usually expected from the Court of the land-but also in the technical details of manyenvironmental cases. Indeed, some critics of SupremeCourt describe the Court as the Lords of GreenBench or Garbage Supervisor.3 International legalexperts have been unequivocal in terming the IndianCourts of law as pioneer, both in terms of layingdown new principles of law and also in the

    application of innovative methods in theenvironmental justice delivery system.4

    The enhanced role of the Court is not unique tocases of environmental jurisprudence in India. Infact, its role has become crucial and significant inevery sphere of governance which includes:prisoners rights, child labour, inmates of variousasylums, ensuring the rights of the poor to education,to shelter and other essential amenities, sexualharassment of women at working place, preventingcorruption in public offices, accountability of publicservants, and utilisation of public funds fordevelopment activities.5 The reasons for theincreasing concern of Court in governance arenasare varied and complex but one major factor has beenfailure of implementing agencies to discharge theirConstitutional and Statutory duties.6 This hasprompted civil society groups and the people toapproach the Courts, particularly the SupremeCourt, for suitable remedies. Interestingly, the Courthas also responded in a pro-active manner to addressdifferent governance problems.7

    The increasing intervention of Court inenvironmental governance, however, is being seenas a part of the pro-active role of the Supreme Courtin the form of continual creation of successivestrategies to uphold rule of law, enforce fundamentalrights of the citizens and constitutional proprietyaimed at the protection and improvement ofenvironment. Unlike other litigations, the frequencyand different types of orders/directions passedperiodically by the Supreme Court in environmentallitigation and its continuous engagement with

    Law, Environment and Development Journal

    3

    1 All instances of the term the Court refer to the SupremeCourt of India.

    2 Speaking constitutionally, the role of the Supreme Courtas proclaimed under Article 141 of the constitution ofIndia is to declare the law that shall be binding on allcourts in India. As such, it does not envisage interaction,much less a direct dialogue, with the executivegovernment of the day.

    3 See S.S. Prakash and P.V.N. Sarma, EnvironmentProtection vis-a-vis Judicial Activism, 2 Supreme CourtJournal 56 (1998).

    4 See G. L. Peiris, Public Interest Litigation in the IndianSubcontinent: Current Dimensions, 40 (1) Internationaland Comparative Law Quarterly 66 (1991). See also M.R.Anderson, Individual Rights to Environmental Protectionin India, in A. E. Boyle and M.R. Anderson eds., HumanRights Approaches to Environmental Protection 1 (UnitedKingdom: Oxford University Press, 1998).

    5 Prashant Bhushan, Supreme Court and PIL, 39(18)Economic and Political Weekly 1770 (2004).

    6 Upendra Baxi, Environmental Law: Limitations andPotentials for Liberation, in J. Bandyopadhyay et al.(eds), Indias Environment: Crises and Responses(Dehradun: Natraj Publishers Pvt. Limited 1985).

    7 See S.P. Sathe, Post Emergency Judicial Activism: Libertyand Good Governance, 10(4) Journal of Indian School ofPolitical Economy 603 (1998).

  • environmental issues has evolved a series ofinnovative methods8 in environmentaljurisprudence. A number of distinctive innovativemethods are identifiable, each of which is novel andin some cases contrary to the traditional legalisticunderstanding of the judicial function.9 Theseinnovative methods, for instance, includeentertaining petitions on behalf of the affected partyand inanimate objects, taking suo motu action againstthe polluter, expanding the sphere of litigation,expanding the meaning of existing Constitutionalprovisions, applying international environmentalprinciples to domestic environmental problems,appointing expert committee to give inputs andmonitoring implementation of judicial decisions,making spot visit to assess the environmentalproblem at the ground level, appointing amicus curiaeto speak on behalf of the environment, andencouraging petitioners and lawyers to draw theattention of Court about environmental problemsthrough cash award. It is important to note that thesejudicial innovations have become part of the largerIndian jurisprudence ever since the Court has startedintervening in the affairs of executive in the post-emergency period.10 The innovative methods

    initiated in resolving environmental litigation,however, have been almost entirely dominating theenvironmental jurisprudence process for more thanthe last twenty years.

    The innovative methods in environmentaljurisprudence, however, have both procedural andsubstantive characteristics. Procedural innovationsrefer to those judicial initiatives that expand theexisting procedure of environmental jurisprudencefor environmental protection and improvement. Forexample, entertaining petition on behalf of thepollution victim and inanimate objects, expandingthe sphere of litigation, encouraging petitioners forbringing environmental litigations to the Court,making spot visit, appointing expert committees, andappointing amicus curiae to represent environmentand pollution victims. On the contrary, substantiveinnovations however are in contrast to proceduralinnovations. Substantive innovations are decisionsin which the Court creates, defines, or rejects policyand governance structure for environmentalprotection and determines how its directions shouldbe implemented. For example, application of newprinciples to address environmental problems,expansion of fundamental rights, and creation of newstructures and implementation of Court orders forenvironmental protection through a continuingmandamus.

    The categorisation of judicial innovations intoprocedural and substantive, however, are neitherwater-tight nor mutually exclusive. Quite possiblysubstantive innovations could also provide scope forprocedural innovations in environmentaljurisprudence. For example, the expansion offundamental right to include right to healthyenvironment is also possible through application ofenvironmental principle like polluters pay principlein which case the Court may ask the polluter to payfor the damage done to the environment and publicthereby ensuring peoples right to healthy environment.More precisely, the objectives of procedural and substantiveinnovations for environmental jurisprudence haveoften been quite complex, thereby making suchcategorisation rather difficult. Nevertheless, thesedistinctions are useful in identifying patterns in theCourts innovations for environmentaljurisprudence. The following section gives a briefsummary of the key innovations