DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATNAM, A.P., INDIA

THE CONSTITUTIONAL FOUNDATION OF INDIAN

ENVIRONMENTAL JURISPRUDENCE

ENVIRONMENTAL LAW
Ms. Bushra Quasmi

PARISH MISHRA
2013079,
IV SEMESTER

ACKNOWLEDGEMENT
I am very thankful to everyone who all supported me, for I have completed my project effectively
and moreover on time. I am equally grateful to my subject teacher Mr. Hrishikesh Manu. He gave
me moral support and guided me in different matters regarding this topic. He has been very kind
and patient while suggesting me the outlines of this project and correcting my doubts. I thank him
for his overall support.
Last but not the least, I would like to thank my parents who helped me a lot in gathering different
information, collecting data and guiding me. I also thank my friends who were there with their
suggestions and comments for my project.

THANKING YOU
Parish Mishra

RESEARCH METHODOLOGY
Method of Research:
For the purpose of research, the researcher has used the Doctrinal Method of Research. The
Research is entirely a Library-based Research, where the researcher has made use of books, law
journals, magazines, law reports, legislations, internet websites, etc., for the purpose of research.
Aims and Objectives:
By doing this project the researcher aims to understand the Constitutional foundations of Indian
Environmental Jurisprudence and different environmental legal framework in Indian legal
system.
Scope and Limitations:
Though the study of the case

Constitutional

foundations

of

Indian

Environmental Jurisprudence is an immense project and pages can be written over

the topic but due to certain restrictions and limitations I was not able to deal with the topic in
great detail. The points on which special emphasis has been given in this research are:
The Indian Environmental Law.
Different Statutory Framework including Constitutional Framework.
Development of Environment Law Principles.
Sources of Data:
Both primary and secondary sources are used for collection of the relevant data:
Books
Journals & Bare acts
Internet
Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.
Hypothesis:
The Indian Judiciary is able to form some strong foundation for environmental protection, but the
developments brought about by judicial activism have been proven insufficient to bring
satisfactory outcomes.

Table of Contents
ACKNOWLEDGEMENT.......................................................................................................2
RESEARCH METHODOLOGY...........................................................................................3
LIST OF CASES......................................................................................................................4
INTRODUCTION....................................................................................................................5
AN INTRODUCTION TO INDIAN ENVIRONMENTAL LAW........................................8
Legislative Initiative.............................................................................................................8
The Statutory Framework...................................................................................................8
The Constitutional Framework...........................................................................................9
Recent Noteworthy Initiatives............................................................................................9
Judicial initiative:...............................................................................................................10
The Role of Public Interest Litigation Birth.....................................................................10
The Relaxation of the Rule of Locus Standi.....................................................................10
The Constitution as Sounding Board: Article 21 and the Protection of Human Rights....11
Development of Environmental Law Principles..............................................................12
The Precautionary Principle..............................................................................................12
The Polluter Pays Principle...........................................................................................12
Sustainable Development and Inter-generational Equity.................................................13
Holistic Adjudication........................................................................................................14
Judicial Attitude to Policy.................................................................................................14
The Right to Livelihood....................................................................................................14
The Doctrine of Public Trust............................................................................................15
CONCLUSION.......................................................................................................................16
BIBLIOGRAPHY..................................................................................................................18

LIST OF CASES
Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455;
Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344.
M.C. Mehta v. Union of India, (1987) 4 SCC 463
S. Jagannath v. Union of India (Shrimp Culture case), AIR 1997 SC 811
M.C. Mehta v. Union of India (Oleum Gas case), AIR 1987 SC 965
Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.
M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997
M.C. Mehta v. Union of India, AIR 1997 SC 734
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
Indian Council for Enviro-Legal Action v. Union of India, AIR 1995 SC 2252;
Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281
A.D.M. Jabalpur v. Shivkant Shukla AIR 1976 SC 1349
Ratlam Municipality v. Vardhichand AIR 1980 SC 1623
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi AIR 1981 SC 746
Subhash Kumar v. State of Bihar AIR 1991 SC 420.
M.K. Sharma v. Bharat Electric Employees Union 1987 (1) SCALE 1049
Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715
A.P. Pollution Control Board v. M.V. Nayudu AIR 1999 SC 812
Narmada Bachao Andolan v. Union of India 2000 (10) SCC 664
State of Himachal Pradesh v. Ganesh Wood Products AIR 1996 SC 149
M.C. Mehta v. Kamal Nath (1997) 1 SCC 388

INTRODUCTION
Environmental Protection in the Post-Independence Era:

Environment protection was a least priority in Indias post-independence era due to need of
industrialization and other political disturbances. India was under British rule, which plagued
India and it lagged behind in industrial growth. In 1947, as India became independent, a
strong need for industrialization was felt not only for creating employment opportunities, but
to increase Gross Domestic Product (GDP) as well. The Industrial Policy Resolution adopted
in 1947 and in 1956 resulted in large scale industrialization and multipurpose river valley
projects. The growth achieved by haphazard and reckless industrialization, created an
ecological imbalance which resulted in no real economic growth because of environmental
destruction. During the early years of Indian independence, there was no candid
environmental policy and all the statutes were scattered and piecemeal. Two early postindependence laws were only related to water pollution. Some other acts such as the Factories
Act, 1948 were introduced which also dealt with the effective arrangements for waste
disposal. The year of 1972 marked a revolution in the history of environmental management
in India. It was the year in which a Conference on Human Environment was held in
Stockholm in response to the initiative of the United Nations. To implement the decision
taken at the conference, the Indian Parliament introduced a landmark change in the field of
environmental management. It was in this decade that environmental protection was accorded
a Constitutional status and environment was made a directive principle by the Forty Second
Constitution Amendment. Article 48A and 51A (g)1were inserted, making State as well as the
citizens, both under constitutional obligation to conserve, perceive, protect and improve the
environment. These provisions have been extensively used by courts to justify and develop a
legally binding fundamental right to the environment as a part of Right to life and personal
liberty under article 21. Parliament enacted nationwide comprehensive laws; like The
Wildlife Protection Act, 1972 and Water (Prevention and Control of pollution) Act, 1974.
While these developments were taking place, by mid-1974, the polity was heading for a
break-down. A year later, the Prime Minister, Ms. Indira Gandhi when unseated by a court in
a disputed election, advised the President to evoke Emergency powers. During the emergency
period, even if the executive killed or imprisoned a person, the Court did not examine the
1 The constitution of India, 1950

validity of such actions. In the matter of A.D.M. Jabalpur v. Shivkant Shukla2, Justice Beg
uncritically approved the emergency regime and mentioned that he understand the care and
concern bestowed by the state authorities upon the welfare of detenus who are well housed,
well fed and well treated, is almost maternal. However, the emergency brought about several
atrocities, an engineering student detained in Kakayam police camp had died under police
torture during the emergency period. While there were nationwide bans on food articles to be
consumed or usage of other necessary facilities for the survival of human life, nobody could
think of environment per se. Initially the judicial response to the problems of the environment
had been far from ideal and the Courts outlook may be regarded as insensitive towards
environmental issues and problems because of the unstable political scenario, secular riots
and insufficient infrastructure. Till 1980s not much contribution was made by the courts in
preserving the environment, but one of the earliest cases which came to the Supreme Court of
India formed the foundation of judicial response. In Ratlam Municipality v. Vardhichand3,
Judge Krishna Iyer highlighted the need for environmental consciousness and has elaborated
the scope of the criminal law concept of public nuisance. In this case the Supreme Court
increased the range of section 133 of the Code of Criminal Procedure to uphold a magistrate's
order directing the municipality to carry out its duty towards residents. The municipality was
ordered to remove the nuisance caused to the residents of the locality by the existence of open
drains and of public refuse from nearby slum dwellers. The court observed that the nonavailability of funds cannot be pleaded as ground for non-performance of municipalitys
statutory obligations. The case put forth the need of clean environment in all aspects. In the
early 1980s, Forest Conservation Act, 1980 and the Air (Prevention and Control of Pollution)
Act, 1981 were passed. But the authorities had shown reluctance to use their statutory power
against the polluters which resulted in an accelerated degradation of the environment.
Therefore the judiciary took the lead and played a key role in protecting and preserving the
environment through its judicial pronouncements. The development of the environmental
jurisprudence in India through the innovative judicial decisions of the Supreme Court and the
High Courts is a reaction towards the failure on the part of the Governmental agencies to
effectively enforce the environmental laws. It needs to be pointed out that the new activist
role of judicial policing over environmental issues triggered specially after the Bhopal Gas
leak tragedy.
2 AIR 1976 SC 1349
3 AIR 1980 SC 1623

Bhopal gas Tragedy, An eye opener:

In India there was no proper system in place for effective and adequate environmental law
enforcement before the Bhopal mass disaster. It was only after this incident that judicial and
legal relief system came actively into play on the environmental front. The inadequacy of
environmental law became painfully bare in 1984, when a large number of people either died
or were seriously affected in the Bhopal Gas Leak tragedy. The 40 tonnes of deadly toxic
methyl isocyanate from Union Carbides pesticide factory (US based company) in Bhopal,
India leaked into the atmosphere, causing 3,500 casualties and injuring 200,000 people. The
disaster caused severe soil and groundwater pollution around the plant. When a license was
applied for the carbide plant in 1934, many factors have been ignored due to the strong need
for industrialization, such as a housing estate was being built close the site and the Bhopal
railway station, was only three kilometres away. The government has given approval to the
plant, whose design was defective and had been rejected by Canada. There were some initial
warning signs and accident reporting before the major accident took place, but the
government did not act. The Bhopal disaster disclosed the malady of the legal system that
failed to stress on the mandatory need for an open Environmental Impact Assessment (EIA).
It is pertinent to mention here that before the accident the submission of EIA report was not
mandatory in India for obtaining the approval of authorities. The primary legislative response
to the Bhopal gas leak was Bhopal Act, 1985 which gave the exclusive right to the Indian
government, to represent all claimants within and outside India and directed the government
to register and process all victims claims. Shortly after the Bhopal Act was passed, the Indian
Government sued Union Carbide in United States. However, The American court refused to
try Bhopal lawsuit, declaring that Indian court being a more suitable forum. It shows a bias of
American courts and a need to promote common international standards for Trans National
Cooperation (TNC). This was beginning of legal mechanization of the Bhopal case in which
moral and ethical views concerning the effect of tragedy on the victims were remain
unnoticed.

AN INTRODUCTION TO INDIAN ENVIRONMENTAL LAW

The development of Indian environmental law has happened, for the most part, over the last
three decades, with a significant level of polarization around the latter half of this period.
Therefore, a paper detailing recent developments in India would necessarily involve a
thorough discussion of most relevant environmental issues and their consequences. The
development of the law in this area has seen a considerable share of initiative by the Indian
judiciary, particularly the higher judiciary, consisting of the Supreme Court of India, and the
High Courts of the States. The paper will dwell on this aspect and its effect on the strength of
the legal framework. Legislative schemes and initiatives have been created in most areas
involving the environment, albeit with some degree of overlap. The role of the
administration, although a critical factor in the success of any environmental management
programme, has seen its share of problems of scale and definition. The essence of the existing
law relating to the environment has developed through legislative and judicial initiative.
Since the latter is responsible for the most recent developments, this paper will attempt to lay
the foundation for understanding through a discussion of legislation and administrative rules,
and then detail development of the law and environmental principles through the discussion
of judicial decisions.

Legislative Initiative
The Statutory Framework
It is possible to suggest with conviction that the beginnings of Indian environmental law were
sown at the United Nations Conference on the Human Environment held at Stockholm in
1972, where India was a participant, leading to some sort of realization that a framework of
laws was necessary to deal with environmental hazards that would result from the stage of

development that India was entering in the 1970s. 4 Prior to this phase, Indian environmental
law mainly consisted of claims made against tortious actions such as nuisance or negligence.
The Water (Prevention and Control of Pollution) Act of 1974 gave the statute book its first
real foundation for environmental protection. Other major enactments followed in 1980 (The
Forest Conservation) Act), 1981 (The Air (Prevention and Control of Pollution) Act), and
1986 (The Environment (Protection) Act).

The Constitutional Framework

The Forty-Second Amendment to the Indian Constitution in 1976 introduced principles of
environmental protection in an explicit manner into the Constitution through Articles 48A and
51A(g). Article 48A, part of the Directive Principles of State Policy,5 obligated the State to
protect and improve the environment. On the other hand, Article 51A (g) obligated citizens to
undertake the same responsibilities. As far as legislative power was concerned, the
Amendment also moved the subjects of forests and protection of wild animals and birds
from the State List to the Concurrent List. The Stockholm conference is honoured by
references in the Air Act and the Environment Act a result of effective applications of
Article 253 of the Constitution, which gives the Parliament (Indias central legislature) the
power to make laws implementing Indias international obligations, as well as any decision
made at an international conference, association or other body.6

Recent Noteworthy Initiatives

The National Environment Appellate Authority Act (1997) was enacted to enable the Union
Government to establish the National Environment Appellate Authority. The Authority is
4 This is in contrast to laws in countries such as England, which were sometimes a direct result of some mass
environmental disaster; for example, the Clean Air Act of 1956 was the outcome of the deadly smog that killed
over 4000 people in London in 1952. (The Act has since been replaced by the Clean Air Act of 1993). See
Harish Salve, Justice between Generations: Environment and Social Justice, Supreme But Not Infallible:
Essays in Honour of the Supreme Court of India, Oxford University Press, New Delhi, 2000, pp.360-380. Salve
adds: In the fullness of time, political upheavals brought home the realization that freedom can only survive if
it honours basic human rights and is founded on principles of natural justice.

5 For a detailed discussion on the Directive Principles of State Policy in the Indian Constitution in the context
of the environment, see generally Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India:
Cases, Materials and Statutes, 2nd Edition, Oxford University Press, New Delhi, 2001, pp.45-46.

6 It has been pointed out that the Parliament has the power to legislate on virtually any subject in the State
Listby virtue of Entry 13 of the Union List, which covers participation in international conferences and the
implementation of decisions made at the conferences

empowered to hear appeals against orders granting environmental clearance in designated

areas where industrial activity is restricted under the Environment Act. The National
Environment Tribunal Act (1995) extends the principle of no-fault liability beyond the
compensation limits prescribed under the Public Liability Insurance Act (1991). The Act
deals with, inter alia, compensation related to accidents concerning toxic substances. The
Tribunal set up under the Act has exclusive jurisdiction 7 over claims of compensation in these
circumstances.

Judicial initiative:
The Role of Public Interest Litigation Birth
Failure on the part of the governmental agencies to effectively enforce environmental laws
and noncompliance with statutory norms by polluters resulted in an accelerated degradation
of the environment. Most of the rivers and water bodies were polluted, and large-scale
deforestation was carried out with impunity. There was also a rapid increase in casualties due
to respiratory disorders caused by widespread air pollution. Such large-scale environmental
degradation and adverse effects on public health prompted environmentalists and residents of
polluted areas, as well as non-governmental organizations, to approach the courts,
particularly the higher judiciary, for suitable remedies.

The Relaxation of the Rule of Locus Standi

There is near complete academic agreement that the concerted involvement of the higher
judiciary in India with the environment began with the relaxation of the rule of locus standi, 8
and the departure from the proof of injury approach. The relaxation of the rule led to some
important consequences, which were particularly pertinent to environmental matters. First,
since it was possible that there could be several petitioners for the same set of facts dealing
with an environmental hazard or disaster, the court was able to look at the matter from the
point of view of an environmental problem to be solved, rather than a dispute between two
parties. Second, the rule took care of the many interests that went unrepresented for
7 Section 19 of the Act.
8 Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455; Fertilizer Corporation Kamgar Union v. Union
ofIndia, AIR 1981 SC 344.

example, that of the common people who normally had no access to the higher judiciary.
Also, the process brought into sharp focus the conflict of interest between the environment
and development, and set the stage for a number of decisions that would deal with issues
relating to this area in a more specific manner. The relaxation of locus standi, in effect,
created a new form of legal action, variously termed as public interest litigation and social
action litigation.9 This form is usually more efficient in dealing with environmental cases, for
the reason that these cases are concerned with the rights of the community rather than the
individual. It is characterized by a non-adversarial approach, the participation of amicus
curiae, the appointment of expert and monitoring committees by the court, and the issue of
detailed interim orders in the form of continuous mandamus under Articles 32 and 226 by the
Supreme Court of India and the High Courts of the States respectively.10

The Constitution as Sounding Board: Article 21 and the Protection of Human Rights
The judiciary, in their quest for innovate solutions to environmental matters within the
framework of public interest litigation, looked to constitutional provisions to provide the
court with the necessary jurisdiction to address specific issues. Furthermore, Article 142
afforded the Supreme Court considerable power to mould its decisions in order that complete
justice could be done. As the Supreme Court is the final authority as far as matters of
constitutional interpretation are concerned, it assumes a sort of primal position in the Indian
environmental legal system. For example, the fundamental right contained in Article 21 is
often cited as the violated right, albeit in a variety of ways. In Francis Coralie Mullin v. The
Administrator, Union Territory of Delhi11, Bhagwati, J., speaking for the Supreme Court,
stated that: We think that the right to life includes the right to live with human dignity and
all that goes along with it, namely, the bare necessaries of life such as adequate nutrition,
clothing, shelter over the head and facilities for reading, writing and expressing oneself in
diverse forms, freely moving about and mixing and commingling with fellow human beings.

9 Upendra Baxi, Taking suffering seriously: Social Action Litigation and the Supreme Court, 29
InternationalCommission of Jurists Review 37-49 (1982).

10 G.S.Tiwari, Conservation of Biodiversity and Techniques of Peoples Activism, 43 Journal of the

IndianLaw Institute 191 (2001).

11 AIR 1981 SC 746.

In Subhash Kumar v. State of Bihar12, the Court observed that: The right to live is a
fundamental right under Article 21 of the Constitution, and it includes the right of enjoyment
of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that
quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of
the Constitution. The Supreme Court, in its interpretation of Article 21, has facilitated the
emergence of an environmental jurisprudence in India, while also strengthening human rights
jurisprudence. There are numerous decisions wherein the right to a clean environment,
drinking water, a pollution-free atmosphere, etc. have been given the status of inalienable
human rights and, therefore, fundamental rights of Indian citizens. In M.K. Sharma v. Bharat
Electric Employees Union13, the Court directed the Bharat Electric Company to comply with
safety rules strictly to prevent hardship to the employees ensuing from harmful X-ray
radiation. The Court did so under the ambit of Article 21, justifying the specific order on the
reason that the radiation affected the life and liberty of the employees.
Development of Environmental Law Principles
The Court has successfully isolated specific environmental law principles upon the
interpretation of Indian statutes and the Constitution, combined with a liberal view towards
ensuring social justice and the protection of human rights. The principles have often found
reflection in the Constitution in some form, and are usually justified even when not explicitly
mentioned in the concerned statute. There have also been occasions when the judiciary has
prioritized the environment over development, when the situation demanded an immediate
and specific policy structure.14

The Precautionary Principle

Beginning with Vellore Citizens Welfare Forum v. Union of India15, the Supreme Court has
explicitly recognized the precautionary principle as a principle of Indian environmental law.
More recently, in A.P. Pollution Control Board v. M.V. Nayudu 16, the Court discussed the

12 AIR 1991 SC 420.

13 1987 (1) SCALE 1049.
14 See for example M.C. Mehta v. Union of India, (1987) 4 SCC 463. The Court held: life, public health and
ecology has priority over unemployment and loss of revenue problem.

15 AIR 1996 SC 2715.

development of the precautionary principle.17 Furthermore, in the Narmada case, the Court
explained that When there is a state of uncertainty due to the lack of data or material about
the extent of damage or pollution likely to be caused, then, in order to maintain the ecology
balance, the burden of proof that the said balance will be maintained must necessarily be on
the industry or the unit which is likely to cause pollution.18

The Polluter Pays Principle

The Supreme Court has come to sustain a position where it calculates environmental damages
not on the basis of a claim put forward by either party, but through an examination of the
situation by the Court, keeping in mind factors such as the deterrent nature of the award. 19
However, it held recently that the power under Article 32 to award damages, or even
exemplary damages to compensate environmental harm, would not extend to the levy of a
pollution fine.20 The polluter pays rule has also been recognized as a fundamental objective
of government policy to prevent and control pollution.21

Sustainable Development and Inter-generational Equity

What is meant by the phrase sustainable development? The definition which is used most
often comes from the report of the Brundtland Commission, in which it was suggested that
the phrase covered development that meets the needs of the present without compromising
the ability of future generations to meet their own needs. However, different levels of
societies have their own concept of sustainable development and the object that is to be
achieved by it. For instance, for rich countries, sustainable development may mean steady
16 AIR 1999 SC 812
17 S. Jagannath v. Union of India (Shrimp Culture case), AIR 1997 SC 811.
18 P. Leelakrishnan, Environmental Law, Annual Survey of Indian Law, Volume XXXVI, 2000,
pp. 252-257.
19 See also the explanation for the principle of absolute liability in M.C. Mehta v. Union of India (Oleum
Gascase), AIR 1987 SC 965, and its subsequent application in Indian Council for Enviro-Legal Action v. Union
of
India, (1996) 3 SCC 212.

20 M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997

21 Ministry of Environment and Forests, Government of India, Policy Statement for Abatement of Pollution,
para 3.3.

reductions in wasteful levels of consumption of energy and other natural resources through
improvements in efficiency, and through changes in life style, while in poorer countries,
sustainable development would mean the commitment of resources toward continued
improvement in living standards. Sustainable development means that the richness of the
earths biodiversity would be conserved for future generations by greatly slowing and, if
possible, halting extinctions, habitat and ecosystem destruction, and also by not risking
significant alternations of the global environment that might by an increase in sea level or
changing rainfall and vegetation patterns or increasing ultraviolet radiation alter the
opportunities available for future generations. How has this phrase been understood in India?
Perhaps the answer lies in the decision of the Supreme Court in Narmada Bachao Andolan
v. Union of India22 wherein it was observed that Sustainable development means what type
or extent of development can take place, which can be sustained by nature/ecology with or
without mitigation. In this context, development primarily meant material or economic
progress. Being a developing country, economic progress is essential; at the same time, care
has to be taken of the environment. Thus, the question that squarely arises is: How can
sustainable development, with economic progress and without environmental regression, be
ensured within the Indian legal framework? This can be achieved through the implementation
of good legislation. The courts have attempted to provide a balanced view of priorities while
deciding environmental matters. As India is a developing country, certain ecological
sacrifices are deemed necessary, while keeping in mind the nature of the environment in that
area, and its criticality to the community. This is in order that future generations may benefit
from policies and laws that further environmental as well as developmental goals. This
ethical mix is termed sustainable development, and has also been recognized by the Supreme
Court in the Taj Trapezium case.23 In State of Himachal Pradesh v. Ganesh Wood
Products24, the Supreme Court invalidated forest-based industry, recognizing the principle of
inter-generational equity as being central to the conservation of forest resources and
sustainable development.25
22 2000 (10) SCC 664 at p.727.
23 M.C. Mehta v. Union of India, AIR 1997 SC 734. (per Kuldip Singh, J.).
24 AIR 1996 SC 149.
25 See also Indian Council for Enviro-Legal Action v. Union of India (CRZ Notification case), (1996) 5 SCC
281. The Court noted that the principle would be violated if there were a substantial adverse ecological effect
caused by industry.

Holistic Adjudication
The Supreme Court, in recent years, has been adopting a holistic approach towards
environmental matters. This is usually done through detailed orders that are issued from time
to time, while Committees appointed by the Court monitor the ground situation. The origin of
this tendency may be seen in cases such as Ratlam case and Olga Tellis case.

Judicial Attitude to Policy

To a substantial extent, the courts have had to fill in the gaps and doubt left by the absence of
a clear governmental policy. However, there have been occasions when the court has
considered it appropriate to disregard the policy and proceed with a decision that better
accommodates constitutional values.26 At other times, the Court has stated that it is not in the
public interest to require the Court to delve into those areas that are the function of the
executive.

The Right to Livelihood

In certain cases, the judiciary has to choose between the preservation of environmental
resources in state, and the right of communities to extract value out of those resources. To
facilitate this choice, the courts have evolved a right to livelihood 27 for communities affected
by new state-run conservation initiatives. A clear position on this issue is not immediately
forthcoming, as the decision depends heavily upon the factual matrix of each dispute. The
Court has also observed the environment-development debate, and stated that the most
desirous position is a harmonious form of co-existence of these ends.28

The Doctrine of Public Trust

To further justify and perhaps extract state initiative to conserve natural resources, the Court
enunciated Professor Joseph Saxs doctrine of public trust, obligating conservation by the
26 See for example Sachidanand Pandey v. State of West Bengal (Calcutta Taj Hotel case), AIR 1987 SC
1109.The Court permitted the construction of a hotel near land belonging to the Calcutta Zoological Garden,
stating that tourism was important to the economic progress of the country, thereby underlining the constant
controversy between development and the environment.

27 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

28 Indian Council for Enviro-Legal Action v. Union of India, AIR 1995 SC 2252; Indian Council for EnviroLegal Action v. Union of India, (1996) 5 SCC 281

state. In M.C. Mehta v. Kamal Nath29, the Court held that the state, as a trustee of all natural
resources, was under a legal duty to protect them, and that the resources were meant for
public use and could not be transferred to private ownership.

CONCLUSION
Thus, the arrangement of environmental management is composed of a harmonious blend of
initiatives from the legislature, the executive, and the judiciary. The higher judiciary plays a
rather stalwart role owing to its unique position and power, and due to the circumstances of
inefficiency within the executive and the existence of a skeletal legislative framework. The
principles of Indian environmental law are resident in the judicial interpretation of laws and
29 (1997) 1 SCC 388.

the Constitution, and encompass several internationally recognized principles, thereby

providing some semblance of consistency between domestic and global environmental
standards. It is evident that there is ample of constitutional and legislative provisions on
environment protection in India. But despite of these legislations, rules and regulations,
protection and preservation of the environment is still a pressing issue. Hence there is a need
for an effective and efficient enforcement of the constitutional mandate and the other
environmental legislations. A strong foundation for environmental jurisprudence in India
helped in the protection and preservation of its environment as well as its people. The
collaborative approach, operational flexibility, courts follow up on its interim orders and
futuristic approach makes people feel more secure as they are confident of getting relief for
environmental damage through the courts. The main stimulus for environmental judicial
activism came from Bhopal Gas tragedy. After which, there was a widening of existing
environmental laws in the country and increase in judicial activity through PIL. This has been
achieved by interpreting environment as a fundamental right in the Constitution (Article 21)
and by imposing obligations on the State to carry out its duties as guided by the Directive
Principles (Article 48A and 51A). PIL has been proven a successful tool for the responsible
NGOs and concerned individuals. The environmentally conscious groups and citizen were
able to put pressure on industrial units for adopting antipollution measures. The closure of
limestone quarries in UP, halting of polluting tanneries along the Ganges river, the
introduction of the principle of Absolute Liability for hazardous firms are some of the
landmark decisions. The Central and State Government have taken some proactive steps in
the formulation of MSW Rules, Delhis CNG policy, Karnataka Municipal Act, which were
the direct result of Supreme Court orders. Yet behind the constitutional strength of court order
lie a complete incompetency where orders and directions, facilitate legal discourse, but result
in poor implementation on the ground. The judiciary is also criticized for overstepping the
administrative function and for lack of expertise on the environmental matters. In the past
few years, several judgments have not been implemented, for lack of political or
administrative will or because of other lacunae. Nevertheless Judiciary is actively playing its
role in spite of repetitive failure of other organs. In public perception, the judiciary is the last
hope and it is necessary that the executive enforces its orders. In addition, the role of
concerned citizens, NGOs and the media viz enactment of various provisions of the law,
especially related to development and environmental issues, has become phenomenal. If laws
need to benefit society, then they have to continue being watchdogs and educate
implementing agencies to remain effective. It must be recognized that for further

environmental activism by the judiciary, the support of other branches of government and
obedience of judicial orders.
In spite of several legislation on environmental law, judiciary intervention, social media
coverage and effort of environmental activist there is still some loop hole in the
implementation of ideas, policies and guidelines. There are several steps that should be taken
a) Government should strict implement the environmental law and impose heavy penalty
to institution as well as individual.
b) Judiciary should take direct cognizance on environmental issues and take immediate
step.
c) Role of NGOs are also important in this arena. There are several NGOs concerning
the environmental issues but most of them are not up to the mark either lack of
funding or improper method acquired by them.
d) At last the citizen of the country should be aware that their act causing how much
environmental degradation.

BIBLIOGRAPHY
Books
1. Stuart Bell, Donald McGillibray, Ole W. Pedersen, ENVIRONMENTAL LAW, (8th
ed.) 2010, Oxford University Press,
2. Dr. SUKANTA K. NANDA, ENVIRONMENTAL LAW, (2nd ed.), Central Law
Publications, Allahabad, 2009

3. Dr. N. MAHESHWARA SWAMY, TEXTBOOK ON ENVIRONMENTAL LAW, (2nd

ed.), Asia Law House, Hyderabad, 2008.
4. Dr. H N TIWARI, ENVIRONMENTAL LAW, (3rd ed.), Allahabad Law Agency,
Faridabad, 2008.
5. SHYAM DIWAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND
POLICY IN INDIA, (2nd ed.), Oxford University Press, New Delhi, 2014
Articles & Journals
1. P. Leelakrishnan, Environmental Law, Annual Survey of Indian Law, Volume
XXXVI, 2000
2. Upendra Baxi, Taking suffering seriously: Social Action Litigation and the Supreme
Court, 29 International Commission of Jurists Review 37-49 (1982).
3. G.S.Tiwari, Conservation of Biodiversity and Techniques of Peoples Activism, 43
Journal of the Indian Law Institute 191 (2001).
Websites
1.
2.
3.
4.

www.westlawindia.com
www.heinonline.com
www.manupatra.com
www.lexisnexis.com