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Role Of Indian Judiciary Regarding Environmental Protection

The environment protection was not a crucial subject in the post-independence era of India, because of want of business development and political disturbances. Post-independence, the primary subject turned in to set up markets, industries, to make new jobs for the residents.

However, after the Bhopal Gas tragedy, Environment protection became a precedent. After this incident, the place of Environmental regulation widens in the nation and judicial activity also increases. After, the enactment of the first activity related to environmental protection in 1986, people showed some concern about it.

The main objective of the said act was to implement the decisions of the UNC (United Nations Conference) on the human environment. The act is likely to safeguard the environment from the rapid industrialization and urbanization, it also acts as a shield while protecting our wholesome environment.

The Parliament of India also made certain changes in the area of environmental protection or environmental management to implement the decisions that were taken at the Stockholm Conference in 1974. It was the time when EP (environmental protection) was granted constitutional status while including it in DPSP (Directive Principles of State Policy) by 42nd Constitutional Amendment Act, 1976.

These provisions have been widely strengthened by the Honourable Courts to justify and develop legally binding Fundamental Rights to the environment as a part of the Right to life enshrined under Article 21 of the Indian Constitution. Not only the Indian Parliament has given constitutional status but also it enacted nationwide comprehensive statutes like The Wildlife Protection Act, 1972 and Water (Protection and Control of Pollution) Act, 1974.

The honorable high court stated that the position that the Right to Pure water for drinking and the Right to Free Air are attributes of the Right to life enshrined under Article 21, these are basic elements that sustain life itself. Following various pronouncements, the Honourable Supreme Court also recognized and ascertained The fundamental Right to a clean environment enshrined under article 21 of the Indian Constitution in very categorical terms. At the same time judiciary has played a significant role in interpreting several laws pertaining not only to protecting the environment but also in promoting sustainable development.

Environmental Protection

Environmental law is a new emergence at the global level. At the national level, even three years ahead of Stockholm Conference, India incorporated environmental factors in its IV Five-year plan( 1969-74) whose objective is for harmonious development  recognized the unity of nature and man. Such planning is only possible on the basis of the comprehensive gauging of environmental issues.

There are positive instances, where proper and timely advice concerning the environment could have helped in designing projects and in altering opposing effects on the environment which hints to loss of resources. It is necessary, consequently to introduce the environmental aspect into the planning and development. A national committee on Environment Planning and Co-ordination was set up as a high advisory body to the Government. This Committee looked after issues connected to the environment.

The right to live in a clean and healthy environment is not a fresh invention of the higher judiciary in India. The right has been predictable by the legal system and the judiciary in specific for over a century or so. The right to live in a clean and healthy environment becomes a fundamental right (FR); it is the only alteration in today's industrialization era, the violation of which, the Indian Constitution will not permit. In the later part of 19th century the High court declared it to be a fundamental right primarily people were benefited from this right but it was not a fundamental right and was a part of various other laws like Law of Torts, Indian Penal Code, Civil Procedure Code, Criminal Procedure Code, etc. In today's emerging Law world, environmental rights are considered as third generation rights.

Doctrine and Principles Evolved by the Courts

The doctrines evolved by courts are a significant contribution to the environmental jurisprudence in India. Article 253 of the Indian Constitution indicates the procedure on how decisions made at international conventions and conferences are incorporated into the legal system. The planning and application of the doctrines in the judicial process for environmental protection are notable marks in the route of environmental law in India.

The Indian Judiciary has done important interpretation of the Constitution vis-�-vis Health and Environment:

In case of Subhash Kumar v State of Bihar the apex court of our country recognized Water and Air are an inalienable part of life under Article 21 of the Constitution of India.

In Vellore Citizen's case judges have formulated the concept of Sustainable Development for the first time in India in Environmental Jurisprudence explaining the importance of the environment and health aspects of life.

In case of Rural Litigation and Entitlement Kendra, Dehradun v State of Uttar Pradesh the apex court held that protection and safeguarding the rights of the people to live in a healthy environment has to be done even it bears some economical cost.

Water is the basic need for the survival of human beings and is part of the right t life and human rights as enshrined in Article 21 of the Constitution of India[1].

While incorporating certain features into the fundamental right of the Right to life and Liberty through wide interpretation the apex court had developed some important doctrines that are necessary to live in a healthy environment.

These doctrines are discussed below:

Polluters Pays Principal:

Polluters Pays Principal is formulated for the protection of the environment from pollution. The objective of this principle is to achieve a sustainable environment globally. According to the chroniclers of the environment, the concept of the Polluters Pays Principle is not new it was already there for the regulation in the nineteenth-century with a different names. This principle has been in existence since 1972 by the Organization for Economic Cooperation and Development (OECD) directing Principles concerning International Economic Aspects of Environmental policies where under the polluter was held responsible for damaging and polluting the environment.

The Rio Declaration afterward laid down the guidelines for sustainable development meaning a strategy to meet the needs of the present generation without compromising the needs of the future generation. The aim of Rio Declaration Principle 16 of the Rio Declaration enshrined the Polluter Pays Principle stating that the polluter should bear the cost of pollution. This principle has been accepted by over 175 countries across the globe.

Polluter Pays Principle (PPP) can be defined as the person whosoever will cause pollution to the environment in either way will compensate for the damages caused to the environment and return the environment to its original state regardless of the intent. This principal basically imposes a duty on the citizens to protect and preserve the environment.

This principle has been recognized by the Indian Judiciary while deciding many cases. Supreme Court has incorporated the Polluter Pays Principle as being part of the Environmental Law regime is evident from the judgments passed.

The principal says that if any person is carrying on any hazardous activity and from that, any damage is caused to the environment then he will bear all the losses regardless of taking proper measures while carrying his activity. So this rule basically focuses on the kind of activity performed rather than the way of carrying activities.[2]

The Supreme Court declared and held that the polluter pays principle and the precautionary principle is an important part of the environmental law in India. The Court interpreted the meaning of the Polluter Pays Principle as the absolute liability for the harm to the environment extends not only to compensate the victims from the pollution caused but also to restore the environmental conditions that deteriorated because of their act.[3]

M.C. Mehta v Union of India which is commonly known as the Oleum Gas Leak case in this case the court laid down that an enterprise engaged in a hazardous activity which possess a serious threat to people living nearby and to the people who are working there will be held absolutely liable for their actions and it's a non-delegable duty to the community to ensure that no harm results to anyone on account of the hazardous nature of the activity which it has undertaken. The enterprise is absolutely liable to compensate for such harm irrespective of all reasonable care taken on his account.

The larger the harm would be caused by the industry and the larger the industry would be, the larger amount of compensation would be paid by them.[4]

This the doctrine was also applied in the Taj Mahal case also whereby the court asked the nearby industries to be shut down as they were deteriorating the beauty of The Taj Mahal[5]./ The apex court held that pollution is a civil wrong and is a tort committed against the community as a whole, therefore any person guilty of causing pollution has to pay compensation for damages and restoration of the environment and ecology.[6]

Precautionary Principle

It is one of the important principles under the concept of sustainable development. For protection and preservation of the environment, this precautionary principle is widely applicable and if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmentally degradation.[7] The precautionary principle includes the idea of careful planning to avoid the risks at first rather than trying how much risk is acceptable. This principle concentrates on precautions rather than cure.

This approach was adopted in Rio Conference, 1982. It reflects the requirement of effective environmental measures based upon an action which takes a long term approach and anticipates changes on the basis of scientific knowledge.

The court relied on the:
Precautionary Principle and held that Precautionary principle made it mandatory for the state government to anticipate, prevent and attack the causes of environmental degradation; the court had no hesitation in holding that in order to protect two lakes from environmental degradation it was necessary to limit the construction activity in the close vicinity of the lakes.[8]

The apex court accepted that the Precautionary Principle is part of the environmental law of the country and shifted the burden of proof onto the developer or industrialist who is reposing to alter the status. They found it necessary to explain the meaning of the principles in more detail so that courts and tribunals or environmental authorities can properly apply the said principles in the matter which come before them. The Court also recognized that a balance must be struck between the economy and the environment.[9]

Public Trust Doctrine:

This doctrine was propounded by Roman Empire 1500 years ago. Roman King Justinian stated a section that the air, the water, and the sea are all common to the public and is entitled to be used by anyone due to the law of nature.[10]

In the landmark case of Illinois Central Railroad v Illinois in the USA where the court came with a principle that the state cannot hand its trust of resources to private ownership when the interest of the public is involved.[11]

This doctrine is evolved in India through landmark judgments. There was no existence of Public Trust Doctrine in India but it came through a landmark judgment of M.C Mehta v Kamalnath.

This case is also known as the SPAN Motel case. The Public Trust Doctrine primarily rests on the principle that certain resources like air, water, sea, and forests have such great importance to people as a whole that it would be wholly unjustified to make them a subject of private ownership.[12]

The state holds all the resources like the lake, pond, natural gases, wetland, and as the state is held as trustee it is the duty of the state to maintain and protect them for public use. According to court, it is a positive duty of the state to preserve the resources.[13]

The court covered Public Trust Doctrine under the right to life and stopped the construction of the shopping complex in the place of a public garden stating that the garden as a public resource. The court observed that the park is a public place with historical importance. The court cited Public Trust Doctrine and M.C Mehta as precedents. The court clearly stated that public trust doctrine has been derived from Article 21 of the Constitution and it has been incorporated with the intention of protecting the fundamental rights of the citizens.[14]

Public Trust Doctrine is a better way to the protection of the environment as it checks the management of state and ensures better management of natural resources. By invoking this doctrine we can promote the protection of the environment and its resources.

The Constitutional facets of Environmental Law

In the Indian Constitution it was the first time when the obligation of protection of the environment levied upon the state through the 42nd Amendment Act, 1976.Article 48A states that the State shall make an effort to protect and improve the environment and to safeguard the forest and wildlife of the country.The 42nd Amendment also led to the insertion of Article 51A(g) which states that:
It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, and wildlife and to have compassion for living creature.

In Sachidanand Pandey v. State of West Bengal, In this case, the Supreme Court observed that whenever a case comes before the court related to the environment, the court should always keep in mind the provisions related to Article 48A and Article 51 A(g).

Consequently, after examining the aforementioned cases, we find that the Supreme Court presently ranges the various legal provisions relating to environmental protection. In this way, the justice system tries to fill in the gaps when there is a dearth of legislation.

These new novelties and expansions in India through judicial activism open the many approaches to helping the country. In India, courts are tremendously conscious and watchful about the particular nature of environmental rights, as the forfeiture of natural resources cannot be rehabilitated.

There are references that need to be considered. There is no way for law, except it is an effective and fruitful lenactment, and for actual implementation, public mindfulness is a crucial condition. Therefore, it is essential that there is an appropriate consciousness.

This proclamation is also upheld by the Apex Tribunal in the case of M.C. Mehta v. Union of India. In this case the Court well-ordered the Union Government to issue directions to all state and union governments to levy the authorities as a condition of license on all cinemas, to display no less than two slides/messages on the environment in the middle of each show. In addition to it, the Indian Law Commission submitted its 186th report for the establishment of Environment Courts.

Hence, there is an urgent need to reinforce the hands of the judiciary by making distinct environmental courts, with a professional judge to accomplish the environment cases/criminal acts, so that the judiciary can accomplish its chunk more viably.

  1. Narmada Bachao Andalon v. Union of India and Ors.
  2. Indian Council of Enviro-Legal Action v Union of India 1996(3) SCC 212.
  3. Vellore Citizens Welfare Forum v Union of India 1996(5) SCC 647
  4. The Oleum Gas Leak case (M.C. Mehta v Union of India)
  5. M.C. Mehta (Taj Trapezium Matter) V. Union of India.
  6. M.C. Mehta v Kamal NathandOrs (1997) 1 SCC 388
  7. Principle 15 of the Rio Declaration, 1992
  8. M.C. Mehta v Union of India, (1997)3SCC715,720
  9. Vellore Citizens Welfare Forum v Union of India, AIR 1996 SC 2715.
  10. Mark Dowie, In Law We Trust [2005]
  11. Illinois Central Railroad v Illinios [1892], 146 US 387
  12. M.C Mehta v Kamalnath [1997], 1 SCC 388
  13. Shailesh R. Shah v State of Gujarat, 2002 SCC OnLine Guj 164: (2002) 43 (3) GLR 2295
  14. M.I. Builders Pvt. Ltd. v RadheyShyam Shau [1999], SCC 464.

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