LEADLawEnvironment and

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IMPLICATIONS OF INDIAN SUPREME COURT’S INNOVATIONSFOR ENVIRONMENTAL JURISPRUDENCE

Geetanjoy Sahu

ARTICLE

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This document can be cited asGeetanjoy Sahu, ‘Implications of Indian Supreme Court’s Innovations for Environmental Jurisprudence’,

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

Geetanjoy Sahu, Centre for Interdisciplinary Studies in Environment and Development, Institute for 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 COURT’S 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 Court’s 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

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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), India’s 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 people’s 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 theCourt’s innovations for environmentaljurisprudence. The following section gives a briefsummary of the key innovations in each category.

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8 M. K. Ramesh, ‘Environmental Justice: Courts and Beyond’,3(1) Indian Journal of Environmental law 20 (2002).

9 See Jamie Cassels, ‘Judicial Activism and Public InterestLitigation in India: Attempting the Impossible?’, 37(3) TheAmerican Journal of Comparative Law 495 (1989).

10 See Gobind Das, ‘The Supreme Court: An Overview’, inB.N. Kripal et al. (eds), Supreme But Not Infallible (NewDelhi: Oxford University Press, 2001). The author arguesthat the Indian Supreme Court had always beenuncomfortable with former Prime Minister of India, Mrs.Indira Gandhi’s regime; during the late sixties her economicand political policies were struck down in the BankNationalisation and Privy Purse cases; in the early seventiesthe Court was locked in the Kesavananda battle and againin her election cases; when the Court supported heremergency in the Shukla case and Detenu case it wasexecrated by public opinion; and during the Janata rulethe Court was confirming legal attempts for her politicalextinction in the Special Courts Bill and AssemblyDissolution cases. Whenever the Court opposed herpolicies it had to pay the penalty in the form ofsuppressions of judges and constitutional amendments. Inthe post-emergency period (1975-77), the Court decidednot to interfere with the major political and economicdecisions of government and opened up new fields ofinterest and different areas of judicial activities; it chosethe poor, the helpless, the oppressed in the name of socialjustice, constitutional conscience, and the rule of law.

2PROCEDURAL AND SUBSTANTIVEINNOVATIONS AND THEIR IMPLICA-TIONS FOR ENVIRONMENTALJURISPRUDENCE

2.1 Concept of PIL

The most important procedural innovation forenvironmental jurisprudence has been the relaxationof traditional process of standing in the Court andintroducing the concept of Public Interest Litigation(PIL).11 Until the early 1970s, litigation in India wasin its rudimentary form because it was seen as apursuit for the vindication of private vested interests.During this time period, initiation and continuanceof litigation was prerogative only to the individualaggrieved party. A complete change in the scenarioin the 1980s with efforts taken by Justice P.N.Bhagwati and Justice V.R. Krishna Iyer was markedby attempts to bring wider issues affecting thegeneral public at large within the ambit. The ambitand extent of PIL were expanded in 1980s from theinitial prisoner rights concerns, to others like bondedlabour, child labour, inmates of various asylums,ensuring the rights of the poor to education, toshelter and other essential amenities, sexualharassment of women at working place, preventingcorruption in public offices, accountability of publicservants, and utilisation of public funds fordevelopment activities.

The Court’s approach to entertain PIL forenvironmental protection, however, is significant inmany ways. First, prior to the emergence of the

concept PIL, Criminal Law provisions as containedin the Indian Penal Code, Civil Law remedies underthe law of Torts and provisions of the CriminalProcedure Code were existed to provide remediesfor public nuisance cases including air, water andnoise pollution. However, due to lack of people’sawareness about the environmental problems andlimited knowledge of environmental laws there wereproblems in drawing the attention of the Courttowards environmental problems. Again, there wasno provision in the environmental legal frameworkfor allowing the third party to seek the help of theCourt if the party was not directly affected byenvironmental problems.12 Hence, the biggesthurdle in the path of litigation for environmentaljustice had been the traditional concept of locusstandi. Earlier when the third party approached theappellate Court for seeking relief against an injurythey did not incur directly, the action was notmaintainable as the appellate Court focused itsattention on the identity of the petitioner rather thanthe subject of petition.13 But now the Court’sapproach has changed and it has been ruled that anymember of the public having sufficient interest, maybe allowed to initiate the legal process in order toassert diffused and meta-individual rights. Generally,in environmental litigation, the parties affected bypollution are a large, diffused and unidentified massof people. Therefore, the question arises as to whoought to bring such cases to the Court’s notice whereno personal injury, in particular, has been noticed.In such situations, the Court has emphasised thatany member of the public having sufficient interestmay be allowed to initiate the legal process in orderto assert diffused and meta-individual rights inenvironmental problems.14

A number of cases on environmental issues havebeen initiated through PIL. Beginning with theDehradun lime stone quarrying case15 in 1983,

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11 In the Indian context, some of the legal scholars preferthe expression ‘Social Action Litigation’ to ‘PublicInterest Litigation’, as this tool for justice to protect basicrights of individuals and communities has, throughinnovations of higher Court in India, for greater positiveimpacts on the social lives of the people in India than theUnited States, where the PIL movement took roots. Formore details, see Upendra Baxi, ‘Taking SufferingSeriously: Social Action Litigation in the Supreme Courtof India’, in Tiruchelvam and Coomaraswamy eds., TheRole of the Court in Plural Societies, (New York: St.Martin’s Press, 1987).

12 See Atiyah Curmally, ‘Environmental Governance andRegulation in India’ 96 (New Delhi: Indian InfrastructureReport, 2002).

13 See Peiris, note 4 above at 68.14 RLEK v. State of Uttar Pradesh and Others, Supreme Court of

India, Judgement of 19 December 1996, AIR 1985 SC 652.15 The Dehradun lime stone quarries litigation filed by the

Rural Litigation and Entitlement Kendra in 1983 was thefirst PIL on environmental issue in the country beforethe Supreme Court.

followed by the Ganga Water Pollution case, DelhiVehicular Pollution case, Oleum Gas Leak case, TehriDam case, Narmada Dam case, Coastal Managementcase, industrial pollution in Patancheru, and T.N.Godavarman case, all of them came to Court’sattention through PIL. These cases have been initiatedby Non-Governmental Organisations (NGOs), andenvironmental activists on behalf of other individualsand groups or public at large, to ensure theimplementation of statutory acts and constitutionalprovisions aimed at the protection of environmentand enforcement of fundamental rights. It has beenfound from Indian Supreme Court Case reports thatout of 104 environmental cases16 from 1980-2000 inthe Supreme Court of India, 54 were filed byindividuals who were not directly the affected partiesand 28 were filed by NGOs on behalf of the affectedparties. This suggests that the instrument of PIL hasprovided an opportunity to the third party torepresent on behalf of the affected people and theenvironment itself.

The Court has also shown a willingness to alter therules of the game wherever necessary to entertainenvironmental cases. For example, where there area wide variety of offenders, the Court has chosen totreat a particular case as a rep-resentative action andissued orders binding on the entire class. In one caseconcerning massive pollution of the river Ganga, theCourt has published notices in the newspaperdrawing the litigation to the at-tention of allconcerned industries and municipal authoritiesinviting them to enter an appearance.17 In this case,the petition was filed against the Kanpur tanneriesand Kanpur Municipal Council to stop polluting theriver Ganga. The Court, however, asked all theindustrialists and the Municipal Corporations andthe town Municipal Councils having jurisdictionover the areas through which the river flows in India,to appear before the Court. Similarly, in 1995, T.N.Godavarman Thirumulpad filed a writ petition withthe Supreme Court of India to protect the Nilgirisforest land from deforestation by illegal timberoperations.18 The Court expanded the Godavarman

case from a matter of ceasing illegal operations inone forest into a reformation of the entire country’sforest policy.

The positive impact of Court’s approach toenvironmental litigations through third partyrepresentation has been such that it has dramaticallytransformed the form and substance ofenvironmental jurisprudence in India. Recourse tojudicial proceedings is a costly exercise for those whosuffer substantial injuries from environmentalpollution. Even if the aggrieved party takes recourseto judicial proceedings, the Court may only settledisputes between the appellant party and thepolluter, and the rights of other aggrieved personsremain unsettled. Judicial remedies forenvironmental maladies would have effective resultsonly if the remedies benefit those who are not partiesto the litigation. By entertaining petitions on behalfof poor and disadvantaged sections of the society,from different NGOs and public-spirited people, theCourt has attempted to ensure the rights of peoplein terms of deciding compensation and providingother remedies to the affected people.

Allowing third party to bring environmentalproblems to Court’s notice has also an importantbearing on inanimate objects, which cannot representitself in the litigation process. The voice of theinanimate objects has been represented by concernedNGOs and environmental activists through theinstrument of PIL. The polluter has been asked topay for the damage done to the natural objects andrestore the environment to its natural position.19

Notwithstanding the above progressive implicationsof the concept PIL for environmental jurisprudence,certain practical difficulties and constraints haveemerged in recent years from judicial entertainmentof PILs dealing with environmental cases. A closelook at the history of environmental cases suggeststhat with the liberalisation of the locus standiprinciple, there has been a flurry of PILs onenvironmental issues.20 Taking advantage of the

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16 The information is based on the All India Reporter fromJanuary 1980 till December 2000, Supreme Court Cases.

17 M.C. Mehta v. Union of India, Supreme Court of India,Judgement of 22 September 1987, AIR 1988 SC 1037.

18 T. N. Godavarman v. Union of India, Supreme Court ofIndia, Judgement of 12 December 1996, AIR 1997 SC 1228.

19 Indian Council for Enviro-Legal Action v. Union of India(Bichhri village industrial pollution case), Supreme Court ofIndia, Judgement of 13 February 1996, 1996 (3) SCC 212.

20 For more details, see Jona Razzaqhue, Public InterestEnvironmental Litigation in India, Pakistan andBangladesh (Hague: Kluwer Law International, 2004).

In addition to this, what was considered as aninexpensive and expeditious mode of redressal hassometimes taken more than a decade to get settled.The Godavarman case is a classic example of theCourt being seized of the problem for over a decadeand its final resolution is a long way in coming. Thecase that began its life in 1996, as a petition seekingthe intervention of the Supreme Court for theprotection of Nilgiris forest land from deforestationby illegal timber operations, has grown into a caseof mammoth proportions and has mired incontroversies of interfering in administrativefunctions and traditional method of forestmanagement and lack of attention in recognising therights of forest dwellers.

Another immediate concern is the inconsistentapproach of the Court in entertaining and rejectingPILs. The judicial restraint towards environmentallitigations, especially challenging infrastructureprojects, offers a well illustration in this context. Insuch nature of litigations, the Court has not onlyrejected PILs but has also made gratuitous andunmerited remarks regarding abuse of PIL. Forinstance, in the Narmada Bachao Andolan v. Unionof India case,24 the Court did not allow NarmadaBachao Andolan from making any submissions onthe pros and cons of large dams. Despite thedissenting judgment of Justice S.P. Bharucha, whopointed out that the Sardar Sarovar Project wasproceeding without a comprehensive environmentalappraisal, majority of the successive judges allowedthe government to construct the dam without anycomprehensive environmental impact assessment,which was necessary even according to thegovernment’s own rules and notifications. Themajority judgment observed that a conditionalclearance given in 1987 was challenged in 1994 andstated that the pleas relating to height of the damand the extent of submergence, environment studiesand clearance, hydrology, seismicity and otherissues, except implementation of relief andrehabilitation, cannot be permitted to be raised atthis belated stage.25

Court’s lack of expertise on observation oftechnicalities, PILs are being filed with little or nopreparation.21 Actions are initiated by filingcomplaints without proper evidentiary materials tosupport them. Expectations are that once a petitionis filed, the Court would do the rest. But, the heartof the matter is that most of the time, energy andresources of the Court are getting diverted for gettinginformation on multi-dimensional aspects ofenvironmental problems, so much so that the justicedelivery system is under great stress and the cracksin it are becoming visible. The Court has shown itsannoyance at taking every conceivable publicinterest issue to its jurisdiction when compliancewith the orders made at the local level, in most ofthe cases, would have prevented the flurry oflitigation at the highest level. As early as in 1980, inthe Ratlam Municipal Council case,22 the Courtupholding the orders of the Sub-DivisionalMagistrate, expressed that had the MunicipalCouncil spent half of its litigative zeal of rushingfrom lowest to the highest Court, in cleaning up thestreets and complied with the orders issued at thelocal level, the civic problems would have beensolved a long time back.

Apart from this, the idea behind introducing PIL hasbeen to address public interest. But there are certainalarming and emerging trends. One of the mostsignificant ones is that of the PIL method becomingpersonalised, individualistic and attention-seeking.There are instances of their identification with thepersonality of a judge or a litigant.23 It becomes atravesty of justice when the outcome of the casedepends on the judge before whom it gets posted.No doubt the personality of the judge and the litigant,and their deep commitment to social justice and protectionof the environment have contributed, in a major way,to the evolution of the jurisprudence on the subject.But, without such concern and commitment, thesystem gets influenced by different whims and fanciesthat may hurdle the justice delivery system.

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21 See Ramesh, note 8 above at 32.22 Ratlam Municipality v. Vardhichand and Others, Supreme

Court of India, Judgement of 29 July 1980, AIR 1980 SC 1622.23 See Shyam Divan, Cleaning the Ganga, 30(26) Economic

and Political Weekly 1557 (1995). In this article, the activistrole played by Justice Kuldip Singh & Advocate M.C.Mehta in Ganga pollution and other cases finds mention.

24 Narmada Bachao Andolan v. Union of India and Others,Supreme Court of India, Judgement of 18 October 2000,AIR 2000 SC 3753.

25 Id at 3761.

The subordination of environmental interests to thecause of development was also evident in SupremeCourt’s judgment in the PILs challenging theconstruction of Tehri Dam and the construction ofpower plant at Dahanu Taluka in Maharashtra,where the government’s own expert committee hadgiven an elaborate report pointing out a series ofviolations of the conditions on which environmentalclearance to the projects had been given by theMinistry of Environment and Forests. In such natureof environmental litigations challenginginfrastructure projects, the Court held that in caseof conflicting claims relating to the need and theutility of any development project, the conflict hadto be resolved by the executive and not by theCourts.26

The Court even held that if a project is stayed onaccount of a public interest petition which issubsequently dismissed, the petitioner should bemade liable to pay for the damages occasioned bythe delay in the project. In the words of the Court,‘any interim order which stops the project fromproceeding further must reimburse all the cost tothe public in case ultimately the litigation startedby such an individual or body fails’.27 Unlike theuse of discretionary power in entertaining PILs onenvironmental cases in 1980s, the Court maintaineda distance with regard to cases against publicinfrastructure projects since 1990s. The inconsistentapproach of the Court has become a serious concernamong the public spirited persons who see the Courtas the last resort to protect the environment.

2.2 Expansion of FundamentalRight to Life

The six fundamental rights of Indian citizens arespecified in Arti-cles 14-32 of the Indian Constitutionsuch as right to equality (Articles 14-18), right tofreedom (Articles 19-22), right against exploitation(Articles 23-24), right to freedom of religion (Articles

25-28), cultural and educational rights (Articles 29-31) and right to Constitutional remedies (Article 32).There are four Constitutional provisions that aredirectly relevant to protect the fundamental rightsof citizens. Under Article 13, the Court is grantedpower to judicially review legislation, so that thelaws inconsistent with the fundamental rights maybe held void. In addition, Article 32 confers on everycitizen the Court’s original jurisdiction for theenforcement of his or her fundamental rights.Through this provision, individuals can approachthe Court to seek the protection of theirfundamental rights. Article 32 and 226 of the IndianConstitution grant wide remedial powers to theSupreme Court and High Courts of each Indian Statein Constitutional cases. Under Article 136, theSupreme Court has discretionary power to grantspecial leave to appeal from any judicial order,judgment, or decree in the land thereby providinganother route for judicial review.

The earliest understanding of these provisions hadbeen a narrow procedural one where fundamentalrights and other Constitutional provisions wereinterpreted as procedure established by law.28

Moreover, inconvenient Court decisions on theConstitutionality of state action were simplyoverturned by amending the Constitution until the‘basic structure’ of the Constitution was declaredunalterable.29 In 1978 the Court breathedsubstan-tive life into Article 21 by subjecting stateaction interfering with life or liberty to a test ofreasonableness; requiring not only that theprocedures be authorised by law, but that they are‘right, just and fair’.30

An account of the interpretation of right toenvironment as a part of fundamental right to lifewould illustrate the efforts of Court to expand thescope of existing fundamental right to life. Forinstance, in the Ratlam Municipal case, the Courthas upheld that public nuisance is a challenge to thesocial justice component of the rule of law. Decency

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26 For a comprehensive analysis on the approach of Courttowards infrastructure projects, see Videh Upadhyay,‘Changing Judicial Power’, 35(43&44) Economic andPolitical Weekly 3789 (2000).

27 Ranauk International v. IVR Construction LTD. andOthers, Supreme Court of India, Judgement of 9December 1998, 1998 (6) SCALE 456.

28 A.K. Gopalan v. Union of India, Supreme Court of India,Judgement of 19 May 1950, AIR 1950 SC 27.

29 Kesavananda Bharti v. Union of India, Supreme Court ofIndia, Judgement of 24 April 1973, AIR 1973 SC 1461.

30 Maneka Gandhi v. Union of India, Supreme Court ofIndia, Judgement of 25 January 1978, AIR 1978 SC 597.

and dignity are non-negotiable facets of human rightsand are a first charge on local self-governing bodies.31

Likewise, in the Dehradun Lime Stone Quarryingcase, the Court has made it clear that economicgrowth cannot be achieved at the cost ofenvironmental destruction and peoples’ right tohealthy environment. In the Doon Valley case,concerning mining environment, the Court hasinterpreted Article 21 to include the right to live inhealthy environment with minimum disturbance ofecological balance and without avoidable hazard tothem and to their cattle, house and agricultural landand undue affection of air, water and environment.32

This exercise has been further emphasised in theGanga water pollution case by JusticeVenkataramiah, who has extended the right to lifeto include the right to defend the humanenvironment for the present and future generation.33

In M.C. Mehta v. Union of India,34 the Court hasaccepted that environmental pollution and industrialhazards are not only potential civil torts, but alsoviolation of right to health. In this way, through theinterpretation of Article 21, the Court has soughtto convert formal guarantees into positive humanrights.

The above Court’s interpretations in expanding themeaning of right to life have brought new dimensionsnot only in the environmental jurisprudence but alsoin the discourse on human rights in India. The creditfor the creation of a host of environmental rights andenforcing them as fundamental rights goes to theSupreme Court of India. This is a significantcontribution for environmental jurisprudence inIndia, if one learns from experiences elsewhere. Thelegal system may guarantee a Constitutional right toenvironment and statutes may accord the right toparticipate in environmental protection for citizens.However, when no methods for their participationare made available, then they are as good as non-existent. This is the experience in Spain, Portugal,

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Brazil and Ecuador.35 Importantly, Indian experiencecontrasts very significantly form these countries.There is no direct articulation of the right toenvironment anywhere in the Constitution or, forthat matter, in any of the laws concerningenvironmental management in India. But this hasbeen seized from below, by environmental groups,motivating the Court to find and constructenvironmental rights from the available legalmaterial. What the Court has achieved since 1980,is to view the fundamental right to life to includedifferent strands of environmental rights that are atonce individual and collective in character.However, the expansion of fundamental right bythe Court recognising right to environment as a partof right to life has neither been statutorily establishednor has it been recognised in national environmentalpolicy programmes.

2.3 Spot Visit

Another important procedural innovation of theCourt in resolving environmental dispute has beenfound in judges’ personal interest to have first-handinformation through spot visit to understand thenature of environmental problem and the issuesrevolving around it. In the Ratlam Municipal v.Vardhichand case,36 before arriving at a decision,Justice V.R. Krishna Iyer37 visited the Ratlam townand assessed the problem and then directed theRatlam Municipality to take appropriate measuresto construct proper drainage system in the city.Similarly, in the Doon Valley case, Justice P.N.Bhagwati38 visited the area and found that theenvironmental litigation involved certain complexissues including the rights of the workers, traders and

9

31 See Ratlam Municipality, note 22 above at 1629.32 See RLEK, note 14 above at 656.33 See M.C. Mehta, note 17 above at 1045.34 In this case, the Court declined to determine whether or

not the defendant in this case was sufficiently undergovernment control to be an authority and thereforesusceptible to constitutional control.

35 Article 45, Article 66, Article 335 and Article 19 (2) of therespective countries such as Spain, Portugal, Brazil andEcuador contain specific provision for the enjoyment offundamental right to live in a healthy environment butno substantive methods exist for their protection. See SDouglas-Scott, ‘Environmental Rights in the EuropeanUnion-Participatory Democracy or Democratic Deficit’in A. E. Boyle and M.R. Anderson eds., Human RightsApproaches to Environmental Protection 109 (UnitedKingdom: Oxford University Press, 1998)

36 See Ratlam Municipality, note 22 above at 1622.37 Interview with Justice V. R. Krishna Iyer, Cochin, 21

August 2005.38 Interview with Justice P.N. Bhagwati, New Delhi, 23

September 2005.

fragile ecology of the area. He then appointed anindependent committee to assess the problem andbased on the recommendation of the committee, theCourt directed the state government of Uttar Pradeshto close down certain mining units which wereillegally operating and allowed other mining unitsto operate only with certain conditions to ensure theprotection of environment. In the Narmada Damcase, the visit of Justice S.P. Bharucha to the dam sitealso made a difference in the outcome of the case. Inhis dissent judgment, Justice S.P. Bharucha expresseddissatisfaction with the rehabilitation process and theway environmental clearance was given to constructthe dam in the river valley.39

The spot visit of judges has enabled them to assessthe environmental problem on the ground and hencethe decisions given by these judges have made adifference in the outcome of the case. However, mostof the judges share the view that it is neither feasiblenor possible for them to make spot visit to arrive ata decision always. Therefore, the innovative methodto arrive at a decision through spot visit has becomepart of individual interest of judges rather than astandard practice in the decision-making process.

2.4 Application of EnvironmentalPrinciples and Doctrines

The Court of India, while administeringenvironmental justice, has evolved certain principlesand doctrines within and at times outside theframework of the existing environmental law.Environmental principles, such as polluter paysprinciple,40 precautionary principle41 and publictrust doctrine42 have been adopted by the Court in

its concern to protect the environment from furtherdegradation and improve the same. It is importantto note that these principles have been developed invarious international agreements and conferences tocontrol and prevent further environmentaldegradation.

Drawing inference from internationalenvironmental principles, the Court of India hasapplied various principles to resolve domesticenvironmental problems. For example, the PolluterPays Principle was invoked by the Court of India inthe Indian Council for Enviro-Legal Action v. Unionof India. Giving the judgment, the Judges held that‘we are of the opinion that any principle evolved inthis behalf should be simple, practical and suited tothe conditions obtaining in this country. Once theactivity carried on is hazardous or inherentlydangerous, the polluter carrying on such activity isliable to make good the loss caused to any otheraffected party by polluter’s activity irrespective ofthe fact whether the polluter took reasonable carewhile carrying on his activity’.43 In this case, theCourt has stated that the ‘Polluter Pays Principle’means that the absolute liability for harm to theenvironment extends not only to compensate thevictims of the pollution but also the cost of restoringthe environmental degradation. Subsequently,‘Polluter Pays Principle’ as interpreted by the Courthas been recognised as a fundamental objective ofgovernment policy to prevent and controlpollution.44

The precautionary principle, as applied by the Courtin the Vellore Citizens’ Welfare Forum v. Union ofIndia,45 imposes an obligation on every developer,industry and governmental agency to anticipate,prevent and attack the causes of environmentaldegradation. The Court also held that if there arethreats of serious and irreversible damage then anylack of scientific certainty should not be used as a

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39 See Narmada Bachao Andolan, note 24 above at 3761.40 The Polluter Pays Principle is a principle in international

environmental law where the polluting party pays for thedamage done to the natural environment.

41 Precautionary Principle aims to provide guidance forprotecting public health and the environment in the faceof uncertain risks, stating that the absence of full scientificcertainty shall not be used as a reason to postpone measureswhere there is a risk of serious or irreversible harm topublic health or the environment.

42 The Public Trust Doctrine is the principle that certainresources are preserved for public use, and that thegovernment is required to maintain it for the public’sreasonable use.

43 See Indian Council for Enviro-Legal Action, note 19above at 215.

44 See Government of India, National EnvironmentalPolicy, 2006, available at http://www.envfor.nic.in/nep/nep2006.html.

45 Vellore Citizens’ Welfare Forum v. Union of India,Supreme Court of India, Judgement of 28 August 1996,AIR 1996 SC 2716.

reason for postponing measures to preventenvironmental degradation. Finally, the Courtemphasised that the onus of proof shall be on theactors or the industrialists to show that their actionis environmentally benign. The precautionaryprinciple had also been emphasised in cases such asM.C. Mehta v. Union of India and A. P. PollutionControl Board v. M.V. Nayudu case.46

To further justify and perhaps extract the stateinitiative to conserve natural resources, the Court alsoenunciated the doctrine of ‘public trust’ therebyobligating conservation by the state. The ‘public trust’doctrine has been referred to by the Court in M.C.Mehta v. Kamal Nath.47 The doctrine extends tonatural resources such as rivers, forests, sea shores,air etc., for the purpose of protecting the eco-system.The State holds the natural resources as a trustee andcannot commit breach of trust. In the above case,the State’s order for grant of a lease to a motel locatedon the bank of the river Beas, which resulted in theMotel interfering with the natural flow of the water,has been quashed and the public company which gotthe lease has been directed to compensate the cost ofrestitution of environment and ecology in the area.

Unfortunately most of the above principlesborrowing from international environmentalagreements by the Court have neither been followedconsistently nor been institutionalised to make along term impact for the environmentaljurisprudence process. For example, in the Bichhricase48 regarding the contamination of ground water,the Supreme Court, after analysing all the provisionsof law rightly found that compensation can berecovered under the provisions of EnvironmentProtection Act. However, the assessment ofcompensation, its payment and the remedialmeasures have still not been complied with. In thecase of S. Jagannath,49 concerning destruction of

coastal ecology by intensive and extensive shrimpfarming, the Court had directed closure of shrimpfirms and payment of compensation on polluter paysprinciple as well as cost of remedial measures to beborne by the industries. But after the judgment,firstly the Court itself stayed its own directions inreview and thereafter, the Parliament brought alegislation over-ruling the directions given in the saidjudgment. Therefore, neither any compensation hasbeen paid to the farmers and the people who losttheir livelihood nor the damage done to theenvironment has been remedied. As far as theCourt’s emphasis on polluters pay principle isconcerned, it has not been able to control pollution,especially created by the big enterprise, and hasrather provided an instrument to the polluter to payand pollute.

The precautionary principle has also not beenapplied in the Tehri Dam case where the petitioneras well as the Environmental Appraisal committeeof the Government expressed concern about thesafety of the dam. Likewise, in the Narmada DamCase, the Court refused to apply precautionaryprinciple on the big dam as if protection of naturalresources and its ultimate cost for the present andfuture generation is not an integral part ofdevelopment. The observation of the Court that thesaid principle will apply in cases where extent ofdamages are not known but not in the cases wherethey are known is, with respect, incorrect.50 Naturalresources, once destroyed cannot be rebuilt bymitigative measures or even be substituted.51

2.5 Expert Committee

The Court’s dependence on expert committee hastraditionally been part of the jurisprudence process,irrespective of the nature of litigation. The SupremeCourt’s use of discretion power whether to appointindependent expert committee or rely on stateappointed expert committee on environmentalissues, however, has brought substantial changes in

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46 Andhra Pradesh Pollution Control Board v. Prof. M.V.Nayudu, Supreme Court of India, Judgement of 27January 1999, AIR 1999 SC 812.

47 M.C. Mehta v. Kamal Nath, Supreme Court of India,Judgement of 13 December 1996, 1997 (1) SCC 388.

48 See Indian Council for Enviro-Legal Action, note 19above at 231.

49 S. Jagannath v. Union of India and Others, Supreme Court ofIndia, Judgement of 11 December 1996, 1997 (2) SCC 87.

50 See Narmada Bachao Andolan, note, 24 above at 3757.51 See Sanjay Parikh, ‘Development of Environmental Law:

A Critical Appraisal’, Paper presented at the NationalConsultation on Critiquing Judicial Trends onEnvironmental Law, organised by the Human Rights LawNetwork in New Delhi, from 23 to 24 February 2008.

construct the dam without ensuring compliance withthe conditions of environmental clearance of theproject.56 Similarly, in the Dahanu TalukaEnvironment Protection Group and others v.Bombay Suburban Electricity Supply CompanyLimited and others, the Court did not follow thereport of the Appraisal Committee which had theopinion that Dahanu is not a suitable location forthe construction of the thermal power plant as itviolates environmental guidelines.57

The Court’s strategy of appointing committees,which are supposedly expert bodies sometimes alsoresults in leading to a different set of unforeseenproblems while solving disputes. The CentralEmpowered Committee (CEC), for example, in theT.N. Godavarman case,58 which was constitutedvide a Court’s order is perhaps one of the mostglaring examples. The procedural requirementsmandate that the Central Empowered Committeecan recommend certain things to the Court in thelight of facts presented before them. Again, it is onlywhen the Court endorses such recommendationsthat the order would be more effective. For example,the CEC set up by the Court directions is of theview that mining in the Niyamgiri Hills would causeimmense harm to the biodiversity of the area andthe lives of the Dongria Kondh tribal whose lives,culture and very existence are deeply linked withthe Niyamgiri Hills.59 The committee hasrecommended to the Court against diversion offorest lands for the project. Furthermore, the CEChighlighted that area allocated to company formspart of Schedule V area as specified by theConstitution. Schedule V provides protection to theadivasi people living in these areas. No land in these

the outcome of the environmental litigation. In theDoon Valley case,52 the Court required informationon whether indiscriminate mining, continued undera legally valid license, had any adverse impact onthe ecology. The Court appointed a Committeeheaded by D.N. Bhargav, for the purpose ofinspecting the lime-stone quarries mentioned in thewrit petitions and also in the list given by theGovernment of Uttar Pradesh. On the basis of theCommittee’s report, certain mining operations wereordered to be closed immediately, and others in aphased manner. In S. Jagannath v. Union of India,53

intensive and semi-intensive aquaculture, weredeclared to be environmentally harmful by theCourt, on the basis of studies by the CentralPollution Control Board and the expert committeesat the national and international levels. In theGodavarman case,54 the Court asked the stategovernment and the Central government to appointcommittees to study several problems, and to overseeimplementation of orders relating to forestprotection.

In contrast to this, the Court, however, exercisingits discretionary power did not appoint independentcommittee to examine the impact of infrastructureprojects on environment and people at large. Forexample, in the Tehri Dam case, the EnvironmentalAppraisal Committee of the Ministry ofEnvironment and Forests, taking into considerationthe geological and seismic settings, came to theunanimous conclusion that the Tehri Dam Projectdid not merit environmental clearance and shouldbe stopped.55 While giving the dissent judgment,even Justice Devbrat Dharmadhikari held that inorder to ensure compliance with the conditions ofenvironmental clearance, it was necessary toconstitute an independent expert committee whichwould monitor the compliance and furtherconstruction of dam could only proceed on the greensignal of the expert committee. But the majorityjudgment given by Justice S. Rajendra Babu andJustice G.P. Mathur allowed the government to

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52 See RLEK, note 14 above at 653.53 See Jagannath, note 49 above at 96.54 See Godavarman, note 18 above at 1231.55 Tehri Bandh Virodhi Sangarsh Samiti and Others v. State

of Uttar Pradesh and Others, Supreme Court of India,Judgement of 7 November 1990, 1992 Supp (1) SCC 45.

56 See Bhushan, note 5 above at 1773.57 Dahanu Taluka Environment Protection Group and

Another v. Bombay Suburban Electricity Supply CompanyLtd. and Others, Supreme Court of India, Judgement of19 March 1991, 1991 (2) SCC 542.

58 The Court in its order on 9 May 2002 constituted anAuthority at the national level called the CentralEmpowered Committee. The task assigned to it includedthe monitoring of the implementation of the orders ofthe Court, removal of encroachment, implementationof working plan, compensatory afforestation plantationand other conservation issues.

59 See Geetanjoy Sahu, ‘Mining in Niyamgiri Hills and TribalRights’, 43(15) Economic and Political Weekly 19 (2008).

areas is allowed to be transferred to non tribal.60 TheSupreme Court decision on 23 November, 2007delighted the Dongaria Kondh tribe by barring theUK company Vedanta Resources Plc from miningbauxite in the sacred Niyamgiri hills in Orissa.However, the decision offered the tribe only atemporary reprieve, as the Court ordered the company’sIndian unit, Sterlite Industries,61 to come back witha new proposal for the project62 sidelining therecommendation of the CEC that mining in NiyamgiriHills would bring disastrous consequences for the localenvironment, biodiversity and people’s livelihood.

Apart form this, there have been serious concernsover the functioning and composition of such Courtappointed committees. For example, the membersof the CEC set up by the Court consists entirely ofwildlife conservationists who have traditionallyprioritised wildlife over people, and officers of theMinistry of Environment and Forests, with theirstrong inclination to enlarge the territory underforest department control. There is no representativeof tribal people, the Ministry of Tribal Affairs orthe Constitutional Authority of the Commissioner,Scheduled Castes and Scheduled Tribes.63 Thecommittee is empowered to make recommendationsto the Court on any of the interlocutory applicationsand also to monitor the orders passed by the Court.

The reports of expert committee given to apex Courtalso raise problems of their evidentiary value. NoCourt can base its decisions on facts unless they areproved according to law. This implies the right of an

adversary to test them by cross-examination or at leastcounter affidavits. However, in the S. Jagannath v.Union of India case, the Court did not permit evencounter affidavits to be filed in response to NationalEnvironmental Engineering Research Institute’s(NEERI) report thereby making it difficult forindividual affected parties to set out their own case.In such instances, the Court has unnecessarily invitedcriticism as using its discretionary power by notallowing other parties to participate in the decision-making process.64 In the Taj Trapezium case, theCourt relying upon the report of NEERI, orderedclosure and relocation of several small-scale units,especially the foundries in the area. The report,unfortunately was not based on all facts and its methods,analysis and conclusions left a lot to be desired froma reputed scientific and research organisation.65

It is also being strongly felt that the statutoryobligation of the executive is being diluted by creationof such committees, which now have assumed a statusof permanent statutory bodies as such committeesare now being created under the EnvironmentProtection Act as Special Environment ProtectionAuthorities and their terms depend on the CentralGovernment’s will. In other words, Court initiatedcommittees or commissions are being converted intostatutory authorities thereby creating a parallel powerstructure within the governance frame.

3ANALYSIS OF INNOVATIONSEFFECTED BY THE COURT

3.1 Interference in the Affairs ofExecutive Action

The dominant understanding of judicial functioningin the common law world is that it can be rendered

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60 For more details, see Central Empowered CommitteeReport in IA NO. 1324 Regarding the Alumina RefineryPlant being set up by M/s Vedanta Alumina Limited atLanjigarh in Kalahandi District, Orissa (2005).

61 Sterlite Industries is a public limited companymanufacturing aluminum and aluminum products. Othermajor Sterlite Group Companies operating in India includeSterlite Optical Technologies Ltd., Bharat AluminumCompany Ltd. (BALCO), and Hindustan Zinc Ltd (HZL).

62 See Ashish Kothari’s letter to The Chief Justice of Indiaappealing to protect the rich biodiversity of Niyamgiriand the lives of the Dongria Kondh Adivasis from beingdestroyed by bauxite mining, 22 January 2008, availableat www.kalpavriksh.org/campaigns/campopenletter/niyamgiri%20letter.pdf.

63 See Madhu Sarain, ‘Who is Encroaching on Whose Lands?’Seminar, October 2002, page 69, available at http://www.india-seminar.com/2002/519/519 comment.htm.

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64 See Ashok H. Desai and S. Muralidhar, ‘Public InterestLitigation: Potentials and Problems’, in B.N. Kripal etal. (eds.), Supreme but Not Infallible 180 (New Delhi:Oxford University Press, 2001).

65 See Raghuram, ‘The Trouble with the Trapezium’, Downto Earth, 15 April 1996, page 32.

compatible with liberal democratic principles onlyif adjudication remains distinct from legislation.Indeed, ever since Montesquieu clearly formulatedfor the first time the theory of separation of powersin 1748, it has been argued that for the smoothfunctioning of democracy, judicial power needs tobe separated from the legislative and the executive.The impossibility of having a rigid separation ofpowers has, however, been illustrated in theConstitution of U.K., America and India.66 Forexample, under American Constitution thePresident has got legislative powers in his right tosend messages to Congress and the right to veto,while Congress has the judicial power of tryingimpeachments and the Senate participates in theexecutive power of making treaty and appointments.Similarly, in U.K., the emergence of the Cabinetsystem of government presents a standing refutationto the doctrine of separation of powers because GreatBritain has a very closely connected legislature andexecutive, with further links to the Court.

The framers of the Indian Constitution have notincorporated a strict doctrine of separation of powersbut have rather envisaged a system of checks andbalances. However, the Indian Supreme Court, inthe Delhi Laws Act case67 has noticed that the IndianConstitution does not vest the legislative and judicialpowers in the Legislature and the Court in clearterms. The framers, in effect, have imported theessence of the modern doctrine of separation ofpowers, applying the doctrines of Constitutionallimitation and trust. Therefore, none of the organsof government such as, legislature, executive andCourt under the Constitution can usurp the functionor powers which are assigned to another organ bythe Constitution.

Importantly, the most visible aspect of the doctrineof separation of powers in India has been reflectedin the Indira Gandhi v. Rajnarain case in 1975. Itwas held by the Court that ‘though the doctrine ofrigid separation of powers in the American sensedoes not obtain in India, the principles of checks

and balances, underlying that doctrine constitutes apart of the basic structure of the Constitution orone of its basic features which cannot be impairedeven by amending the Constitution; if any suchamendment of the Constitution is made, the Courtwould strike it down as unconstitutional andinvalid’.68 The Court has elevated this feature ofseparation of powers to the basic inviolable structureof the Constitution in the landmark judgment ofthe Court in Kesavananda Bharti v. Union of India.69

The separation of powers is accepted so as to preservethe freedom and independence of the organs of thestate, whose independence is necessary for theirproper functioning and also for the smoothfunctioning of democracy.70

Importantly, the application of the theory to moderngovernments has shown consistently that theseparation of powers has to be reconciled with theneed for their cooperation with each other.71

Nevertheless, for free and efficient working ofgovernment, it is crucial that there be a balance andequally felt need for the cooperation and dependenceamongst the three distinct organs of governance. Acloser look at the Indian political system in generaland the judicial system in particular, shows that thisbalance might have been lost. As indicated earlier,the judicial power has surged ahead in recent timesand its presence is felt in every arena of governancesuch as environmental protection, human rightsprotection, protection of prisoners’ rights, andworkers’ rights, which are supposed to be dealt bythe executive and legislature. As in case of othergovernance problems, the role of Court in resolvingenvironmental disputes through interpretation andexpansion of existing policy and creation ofadditional structure for environmental protectionhas become an important part of environmentaljurisprudence in India.

This raises the question as to why there is a need forjudicial intervention in resolving disputes revolvingaround environmental problems. In view of the

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66 See Durga Das Basu, Introduction to the Constitution ofIndia (New Delhi: Princeton Hall of India, 1986).

67 In re Article 143, Constitution of India and Delhi LawsAct (1921) etc., Supreme Court of India, Judgement of23 May 1951, AIR 1951 SC 332.

68 Indira Gandhi v. Rajnarain, Supreme Court of India,Judgement of 7 November 1975, AIR 1975 SC 2299.

69 See Kesavananda Bharti, note 29 above at 1461.70 See Upadhyay, note 26 above at 3789.71 See Durga Das Basu, Administrative Law (New Delhi:

Prentice Hall of India, 1986).

Stockholm Conference on Human Environmentand growing awareness of the environmental crisesin the country, India has amended its Constitutionand added direct provisions for protection ofenvironment.72 The Constitution (Forty-SecondAmendment) Act, 1976 has made it a fundamentalduty to protect and improve the naturalenvironment. Article 48-A states that the state shallendeavour to protect and improve the environmentand to safeguard forests and wildlife of the country.Corresponding to the obligation imposed on thestate, Article 51 A (g), which occurs in Part IV (A)of the Constitution dealing with FundamentalDuties, casts a duty on every citizen of India. Article51-A (g) provides that it shall be the duty of everycitizen of India to protect and improve the naturalenvironment including forests, lakes, rivers andwildlife and to have compassion for living creature.

In the subsequent years, India has also enacted anumber of statutory acts for the protection andimprovement of environment. The enactment of theWater (Prevention and Control of Pollution) Actof 1974 has given the statute book its first realfoundation for environmental protection. Othermajor enactments that have followed are the ForestConservation Act (1981), the Air Prevention andControl of Pollution Act (1986), the EnvironmentalProtection Act (1986), the National EnvironmentTribunal Act (1995), the National EnvironmentAppellate Act (1997) and the Biodiversity ProtectionAct (2002).73 In this way, India has enacted a rangeof regulatory instruments to preserve and protectits natural resources. Unfortunately, the plethora ofsuch enactments and the Constitutional provisionshas not resulted in preventing environmentaldegradation in the country. Noticeably, the last twodecades have been a period of rapid degradation inthe Indian environment. The enactment of a numberof laws both by the Central and State governmentsrelating to environment has not made muchheadway in controlling the environmentaldegradation process and the laws, by and large, have

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remained unenforced, misadministered ormismanaged. In such situations, the environmentalactivists and NGOs have approached the Court forsuitable remedies and the Court’s intervention hasresulted in reminding and compelling theimplementing agencies to perform their statutoryobligations towards the protection of environment.This process of judicial intervention in resolvingenvironmental disputes is viewed as judicial activismin present days. Judicial activism means essentiallythat the judiciary expands its own scope andjurisdiction and goes into matters not normallyconsidered to be within its own domain and thatthe judiciary often goes beyond giving of judgmentsand issuing of specific directions for executive actionand sometimes even monitoring the progress ofaction, resorting to what is known as ‘continuingmandamus’.74

The expansion of judicial activism throughenvironmental cases, in particular, is widely debatedand discussed in India. On the one hand, critics ofthe theory of separation of power view this kind ofjudicial activism as a sign of hope to correctshortcomings on environmental issue. They arguethat the approach of the Court in intervening in theaffairs of executive is to ask whether theimplementation or non-implementation of thepolicy results in a violation of the fundamental rightsor not. If the Court finds a violation of theConstitutional provisions then it can directauthorities to discharge their duties. In M.C. Mehtav. Union of India,75 the Court has explained how,despite the enactment of the EnvironmentProtection Act, 1986, there had been a considerabledecline in the quality of environment. The Courthas noted that despite several PILs required attentionhas not paid by the authorities concerned to takethe steps necessary for the discharge of duty imposedon the state. Any further delay in the performanceof duty imposed by the Central Government cannot,therefore, be permitted. Suitable directions by theCourt to require performance of its duty by theCentral Government need to be mandated by thelaw. The Court, however, required the Central

72 See Atiyah, note 12 above at 96.73 For more details on Indian Environmental Law, see

Sanjay Upadhyay and Videh Upadhyay, Handbook onEnvironmental Law: Forest Laws, Wild Life Laws and theEnvironment, Volume I & II (New Delhi: The LexisNexis Group of Companies, 2002).

74 See Ramaswamy Iyer ‘Some Constitutional Dilemmas’,41(21) Economic and Political Weekly 2064 (2006).

75 M.C. Mehta v. Union of India, Supreme Court of India,Judgement of 18 November 1997, 1998 (9) SCC 589.

Government to indicate what steps it had taken thusfar and also place before it the national policy, if any,drawn up for the protection of the environment.

The Court’s directions to the implementing agenciesto implement the environmental laws or when itasks the polluter to pay the compensation for thedamage it has done to the environment and to thepeople have been welcomed. This process of judicialinterpretation of existing law and policy to ensurebetter quality of life and an attempt to checkgovernmental lawlessness are said to have‘transformed the Supreme Court of India into aSupreme Court for Indians’.76

On the other hand, the advocates of theory ofseparation of power argue that the intervention ofCourt in the affairs of implementing agency toprotect the environment and enforce fundamentalrights is violating the principle of separation ofpowers as the theory of separation of power suggeststhat each organ of the government has to performwithin the prescribed limits as designed by theConstitution of India. In a number of cases, the Courthas gone beyond its adjudication function to protectthe environment thereby violating the principle ofseparation of powers and creating problems for otherorgans of the State. Its continuous intervention inthe affairs of executive, questioning the validity ofgovernment policy and resuming administrativepowers to protect the environment aggressively hasinvited steadfast resistance from administrativebranches. For example, in the Delhi Vehicularpollution case, the Court directions to convert allcommercial vehicles into Compressed Natural Gas(CNG) has witnessed protest not only from theprivate companies but also from the Government ofIndia and the Delhi state government. Steadfastresistance from the agencies responsible for enforcingthe Court order has raised serious questions aboutthe wisdom of this decision.77 Many opponents have

disputed the reliability and practicality of CNGarguing that the technology is still in development,making the conversion both risky and costly. Bydisregarding the pleas of the Delhi government andinsisting upon the implementation of its orders, theCourt seems to be usurping the authority of theexisting pollution control structures to execute theirduties independently.78 This raises both institutionaland Constitutional questions, as the Court wrestlesto determine which branch of government is bestsuited to handle pollution control matters.

Similarly, in the T.N. Godavarman Thirumulpadv. Union of India case, the Supreme Court has gonebeyond the scope of its jurisprudence. In thisongoing case, the Supreme Court has extended thescope of the petition from a matter of ceasing illegaloperations in Nilgiris forest land from deforestationby illegal timber operations into a reformation ofthe entire country’s forest policy. The Court heldthat the meaning of ‘forest’ is to be as per dictionarydefinition irrespective of ownership and its ordersare to apply to all lands entered in any governmentrecord as ‘forest’. The paradox of this order has beena further centralisation of power over the country’sforest lands in the hands of the same bureaucracyagainst whose mismanagement the original PIL wasfiled. This has seriously impacted millions of forestdwellers’ customary as well as legal rights to forestlands and resources for their very survival.79 Oneindication of the importance of forest lands inpeople’s lives is the fact that more than 2,000interlocutory applications (IAs) have been admittedin the case,80 ranging from the North East to theAndamans to Madhya Pradesh.

As far as tribal rights over their customary resourcesas well as their self-governing institutions areconcerned, the Constitution of India providesspecific protection to tribal rights, particularly in

76 See Upendra Baxi, ‘The Avatars of Indian Judicial Activism:Explorations in the Geographies of [In] Justice’, in K.Verma ed., Fifty years of Supreme Court of India: Its Graspand Reach (New Delhi: Oxford University Press, 2000).

77 Kuldeep Mathur, Battling for Clean Environment:Supreme Court, Technocrats and Popular Politics inIndia, Working Paper/03-01 (New Delhi: Centre for theStudy of Law and Governance, 2001).

78 Armin Rosencranz and Michael Jackson, The DelhiPollution Case: The Supreme Court of India and theLimits of Judicial Power, 2003, available at http://w w w . c l e a n a i r n e t . o r g / c a i a s i a / 1 4 1 2 / a r t i c l e s -69423_delhi_case.pdf.

79 See Sarain, note 63 above at 70.80 See Forest Case Update, October 2007, available at http:/

/ w w w . f o r e s t c a s e i n d i a . o r g / f 1 4 /Iss%2039%20Oct%2007.pdf.

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Schedule V and Schedule VI areas.81 Surprisingly,the Supreme Court has overlooked all thesedimensions with its environmental activismgoverned by a vision of ‘forests’ existing in isolationand out of context. The Court’s definition of ‘forest’itself, and the assumption that forests are bestmanaged by state bureaucracies, is highlyproblematic given the long history of forestdegradation under state control and serious conflictswith forest dwelling tribal and other communitiesover access to forest resources for survival. It doesnot seem to have been brought to the notice of theCourt that in states like Orissa, West Bengal andJharkhand, villagers on their own initiative areregenerating and protecting their forests, often fromcorrupt forest officials and timber mafias, in severalthousand villages. Even in its own judgment in theSamatha v. State of Andhra Pradesh,82 a five-judgebench of the Supreme Court recognised that fortribal, forests are their traditional source ofsustenance. They have a historical right to minorforest produce and to communal residence on forestland. These rights of tribal have been neglected inthe Godavarman orders.

These efforts of the Court are, without doubt,unprecedented. The measures appear to be aninvasion over the administrative terrain. The Court,however, has denied any such usurpation. In itspronouncements, the Court has justified its actioneither under a statutory provision83 or as an aspectof their inherent powers.84 It is undeniable that thedevices employed by the Court helped it to getdetailed facts, understand complexities of social,economic and scientific issues revolving aroundenvironmental problems and accordingly arrive ata decision. But, environmental governance processhas become more complex through such judicialintervention and innovations.

3.2 Implementation of CourtDirections

In any given case, as a general rule, once thejudgment is passed it is left to the administration toimplement the judgment so as to give effect to it. Inthe judgment, though the Court issues directions tothe agencies of the state as to how its decision has tobe implemented, it will not be there to oversee itsactual implementation. Nor would the Courtexamine the extent of its implementation and thenature of its impact. The enforcement agencies, in anumber of instances that involve public interest, arefound to have taken advantage by postponing or notimplementing decisions, under one excuse oranother. For example, the judicial directions to givedrinking water without any cost to the affectedvillages, remediation of the tanks, and health facilityto all the affected villages, to carry wastewater fromPatancheru to Amberpet by constructing a pipelineof 18 km before January 2001 have not beenimplemented thus far.85 The Court directions in theGanga river pollution case have also not beenimplemented. The tanneries continue to operateeven though strict action has been ordered by theCourt against the polluted industries both in the caseof the Kanpur and Calcutta tanneries.86

In the Oleum Gas Leak case, the Court has evolvedthe doctrine of absolute liability, clarifying theprinciple of strict liability which was developed inRyland v. Fletcher.87 It has also developed theprinciple of claiming compensation under the writjurisdiction by evolving the public remedy. Butultimately, the victims of gas leak have been left tothe ordinary relief of filing suits for damages. In theBichhri case,88 regarding the contamination ofground water, the Court, after analysing all theprovisions of law rightly found that compensationcan be recovered under the provisions of

81 See N. K. Behura and Nilakantha Panigrahi, Tribals andthe Indian Constitution (New Delhi: Rawat Publictions,2006).

82 Samata v. State of Andhra Pradesh and Others, SupremeCourt of India, Judegment of 11 July 1997, 1997 (8) SCC 191.

83 The power to appoint commissioners in matters of civilnature is found in Order XXVI Civil Procedure Codeand Order XLVI Supreme Court Rules, 1966.

84 Inherent power of the Supreme Court under Article 32and of the High Courts under Article 226 of theConstitution.

85 Information was collected in November 2002 throughpersonal visit to Patancheru.

86 See Praveen Singh, ‘Bridging the Ganga Action Plan:Monitoring Failure at Kanpur’, 41(7) Economic andPolitical Weekly 590 (2006).

87 Rylands v. Fletcher (1868) is a landmark English legal casein which the Court of the Exchequer Chamber firstapplied the doctrine of strict liability for inherentlydangerous activities.

88 See Godavarman, note 19 above at 243.

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Environment Protection Act. However, theassessment of compensation, its payment and theremedial measures have still not been complied with.

In the case of S. Jagannath,89 concerning destructionof coastal ecology by intensive and extensive shrimpfarming, the Court has directed closure of shrimpfirms and payment of compensation on polluter paysprinciple as well as cost of remedial measures to be borneby the industries. But after the judgment, firstly theCourt itself stayed its own directions in review andthereafter, the Parliament has brought a legislationoverruling the directions given in the said judgment.Therefore, neither any compensation has been paidto the farmers and the people who lost theirlivelihood nor the damage done to the environmenthas been remedied. Similarly, in the Delhi industrialrelocation case,90 the Court while giving directionsto close down industries or to locate outside Delhihas made it clear that the workers should get whatevercompensation they deserve according to law and industriesmust be relocated from Delhi. The direction of theCourt, however, has not been implemented by thegovernment on the ground of non-availability of landto shift the industries and also workers’ right tocompensation appeal has not been given due attentionin the subsequent Court hearings.91

Referring to the non-implementation of SupremeCourt directions Justice S.P. Bharucha92 pointed outthat ‘This Court must refrain from passing ordersthat cannot be enforced, whatever the fundamentalright may be and however good the cause. It servesno purpose to issue some high profile mandamus ordeclaration that can remain only on paper. It iscounter productive to have people say, the SupremeCourt has not been able to do anything or worse. Itis of cardinal importance to the confidence thatpeople have in the Court that its orders are implicitlyand promptly obeyed and it is, therefore, of cardinalimportance that orders that are incapable ofobedience and enforcement are not made’.

So, while the judgment on a number of litigations inpublic interest were hailed as path-breaking, themisery and suffering of people, to ameliorate whichthe Court was approached, continued unabated.Complacency, indifference and casual approach toenvironment and human problems continuedwithout much perceivable change, notwithstandinggreat judgment. This promoted the Court in recenttimes, to come up with yet another innovation:continuing mandamus.93 The application of this toolsuggests that instead of passing a judgment and closingthe case, the Court would issue a series of directionsto the administration, to implement within a time-frame,and report back to Court from time to time aboutthe progress in implementation. This, in a way, is anattempt to ensure the implementation of Court orders.

The case on point is the one concerning forestconservation in the T.N. Godavarman v. Union ofIndia. It started in 1996 as a case seeking directionsfrom the apex Court for stopping felling of trees inNilgiris forest and to regulate indiscriminate cuttingof timbers in the Nilgiris Forest. The case is yet tobe finally decided. Instead, a series of orders passedby the Supreme Court that concern protectingforest, wildlife, preserving biodiversity, nationalparks, evicting encroachers including tribal, is stillin different stages of implementation.94 The Court

89 See Jagannath, note 49 above at 87.90 M.C. Mehta v. Union of India and Others, Supreme Court of

India, Judgement of 30 December 1996, AIR 1996 SC 2231.91 For more details, see Nandini Dasgupta, ‘Tall Blunders’,

Down To Earth, 30 September 1998, page 22.92 Justice S.P Bharucha’s Inaugural lecture of Supreme

Court Bar Association’s Golden Jubilee’s Lecture Series(2001) on Supreme Court on Public Interest Litigation.

93 In Vineet Narrain v. Union of India and Others, SupremeCourt of India, Judegment of 18 December 1997, 1997(7) SCALE 656, popularly known as the Hawala case,the Supreme Court adopted this technique which enabledit to closely monitor investigations by Governmentagencies, in respect of serious accusation made againstprominent personalities. According to the Court, theinnovation was a procedure within the Constitutionalscheme of judicial review to permit intervention by theCourt on the complaint of interia by the Central Bureauof Investigation and to find solution to the problems.

94 Some of the significant orders issued by the Court are thefollowings: the Order of 12.12.96 clarified certainprovisions of the Forest (Conservation) Act, 1980 and alsoextended the scope of the Act. The Court held that theword ‘forest’ must be understood according to thedictionary meaning; all ongoing activity within any forestin any state throughout the country, without the priorapproval of the Central Government, must cease forthwith;the Court order of 9 May 2002 constituted an Authority atthe national level called the Central Empowered Committeeand assigned it the task to monitor the implementation ofthe Court orders, removal of encroachment,implementations of working plan, compensatoryafforestation plantations and other conservation issues.

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Supreme Court’s Innovations for Environmental Jurisprudence: India

adopted a novel method in making theadministration work. It made the government createa think tank like Central Empowered Committee,make preparations for implementation of directionsand report at every stage the progress made inachieving the objective. It was indeed an effort bythe Court to assist, partner and guide theadministration in protecting the forest across thecountry and present a model for the rest of thecounty to emulate. It is another matter that theCourt, in its enthusiasm to present such a model,got itself mired in the complexities of a problem thatwas at once managed by the bureaucracy, localinstitutions and through traditional form of forestmanagement.95

4CONCLUSION

The examination of the implications of SupremeCourt’s innovations for environmentaljurisprudence reveals that the application ofinnovative methods to resolve environmentaldisputes and implement Court orders is certainly adeviation from the usual adjudication function ofthe Court. While the procedural innovations havewidened the scope for environmental justice throughrecognition of citizens’ right to healthyenvironment, entertaining petitions on behalf ofaffected people and inanimate objects and creativethinking of judges to arrive at a decision by makingspot visit, substantive innovations have redefined therole of Court in the decision-making process throughapplication of environmental principles andexpanding the scope of environmental jurisprudence.

Given the crisis within the executive and legislaturein discharging their Constitutional duties, theSupreme Court’s innovative methods have

attempted to arrest the dysfunctional trend of otherorgans and enable the effective enforcement ofenvironmental laws. However, in reminding otherorgans about their Constitutional duties andenforcing fundamental right of citizens, the SupremeCourt has at times, crossed its boundaries and startedinterfering in the very basic affairs of environmentalmanagement. In resolving more than 100environmental cases since 1980, the Supreme Courthas continuously engaged itself in the managementand resolution of environmental conflicts andthereby increased the country’s dependence on theCourt for environmental protection. Thisdependence on a judicial institution that has alreadyexceeded the boundaries of its responsibilities hasbeen further complicated by the lack of monitoringof the Supreme Court’s orders and the vagueness ofthe legislative and executive roles regardingenvironmental issues. With its intervention in theinterpretation of environmental policy andimplementation process, the potential for resolvingenvironmental conflict is hardly over. The reviewof environmental cases shows that there has beenno uniform cooperation from the implementingagencies to effectively implement the Courtdirections. It is also observed that most of theinnovative methods introduced by the Court haveneither been followed consistently nor beeninstitutionalised to make a long term impact for theenvironmental jurisprudence process. In such asituation, how long will the Supreme Court monitorthe implementation of its decisions? As theopposition to judicial intervention in the affairs ofother organs increase, what will happen if theimplementing agencies and people disobey Courtdecision for the protection of environment? Itremains to be seen whether the Court can protectthe environment through innovations if there issteadfast resistance from implementing agency orwhether it can continue to intervene in the absenceof public support. More importantly, it remains tobe seen whether peoples’ faith in the Court’sattempts to protect environment through innovativemethods will be belied.

95 For a more detailed analysis of the case, see ArminRosencranz, Edward Boenig and Brinda Dutta, TheGodavarman Case: The Indian Supreme Court’s Breachof Constitutional Boundaries in Managing India’s Forests(Washington DC: Environmental Law Institute, 2007).

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Law, Environment and Development Journal

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