Disclaimer: The views expressed here are solely those of the author in private capacity and do not in any way represent the views of the Legal Ocean or its editors, or any other representatives associated with Legal Ocean.

Our Constitution guarantees right to life and personal liberty under Article 21 which says that “No person be deprived of his life or personal liberty except according to the procedure established by law.” The word “life” is not restricted merely to physical existence but it has been given widest possible interpretation which includes inter alia, right to live with human dignity, right to livelihood, right to health, right to pollution free air etc. Right to life is fundamental in our human existence without which a man cannot live as a human being and it includes all those aspects of life which go to make a man’s life meaningful, complete and worth living. Hence our life sustains itself through the outside factors along with biological mass.

In recent years, there has been a sustained focus on the role played by the judiciary in devising and monitoring the implementation of measures for pollution control, conservation of forests and wildlife protection. Many of these judicial interventions have been triggered by the persistent incoherence in policy-making as well as lack of capacity building amongst the executive agencies. Devices such as Public Interest Litigation (PIL) have been prominently relied upon to tackle environmental problems.

The judicial approach to deal with the environmental problem was influenced to a very great extent by the common law doctrine of strict liability as laid down in Rayland vs Fletcher[2]. Under the rule of strict liability a person was held liable as soon as a thing escaped from the premises of the person and caused injury to other person. Supreme Court of India goes a step further and enquires into the possibility of an alternative solution by inventing the doctrine of absolute liability.

The role of judiciary since then has been reflected in various judgements with regards to environment protection. Indian environmental jurisprudence, is achieving new dimensions day by day. The various statutes have been interpreted in the light of constitutional scheme relating to protection and preservation of the natural environment issues.

Laws related to environmental protection reflect the country’s stronghold against environmental degradation and exploitation. India being a developing country has shown an immense dedication towards environmental protection since the later half of the 20th century which was influenced by United Nations conference on human environment and world summit on sustainable development.[3]

Principles and Doctrines Propounded by Judiciary for Protection of Environment

  1. Doctrine of Absolute Liability

In Bhopal Gas Case[4] the court held that, when an enterprise is occupied with an inherently dangerous or hazardous activity, and the harm resulted by it to anybody by virtue of mishap in the operation of such dangerous movement, for instance, in getaway of a poisonous gas, the enterprise is strictly obligated to repay every one of the individuals who are influenced by the accident and such risk is not subjected to any exemptions.

  • Polluter Pays Principle

The polluter pays principle imposes liability on a person who pollutes the environment to compensate for the damage caused and return the environment to its original state regardless of the intent. The Indian judiciary has incorporated the polluter pays principle in Vellore Citizen’s Welfare Case[5] where the court interpreted the meaning of the polluter pays principle and held that the absolute liability for harm to the environment extends not only to compensate the victims of the pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is a part of the process of sustainable development and such a polluter is liable to pay the cost to individual sufferers as well as liable to pay the cost of reversing the damaged ecology.

  • Precautionary Principle

Precautionary principle means that when there is a threat to the environment and human health, precautionary measures should be taken even when full scientific data is not available. This principle examines whether alternate option is available. In Vellore Citizen’s Welfare Case the court opined that sustainable development is the need of the hour. The court emphasized on the fact that there should be a balance between economic growth and protection of the environment. It rejected the traditional concept that ecology and development are opposed to each other. It reviewed the development of the concept of sustainable development in international sphere. It actively supported and said that the precautionary principle is indispensable feature of sustainable development. Later the Supreme Court reiterated the principle stating that the precautionary principle is a part of environmental law in India.[6]

  • Public Trust Doctrine

The doctrine of public trust was first mentioned in M.C. Mehta versus Kamal Nath where the apex court applied public trust doctrine with regard to the protection and preservation of natural resources. It stated that public trust doctrine primarily rests on the principle that certain resources like air, sea, water and forests have such great importance to the people as a whole that it would be unjustified to make them a subject of private ownership. It further stated that State is the trustee of all natural resources, which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

Sustainable Development and Indian Judiciary

The concept of sustainable development had come to be known as early as in 1972 in the Stockholm Declaration. It had been stated in the declaration that “man is the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being and he bears a solemn responsibility to protect and improve the environment for the present and future generation.”[7] The concept was given a definite shape in a report by world commission which was known as “Our Common Future” and defined sustainable development as development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.[8] Various principles mentioned above had been discussed in the report and over the time the judiciary has applied these principles by the way of judicial activism.

The Supreme Court has interpreted the right to life and personal liberty to include the right to wholesome environment. The court through its various judgements has held that sustainable development and the mandate of right to life includes the right to clean environment, drinking water and pollution free atmosphere. In the decision of the Supreme Court in Narmada Bachao Andolan versus Union of India[9] 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.[10]

Conclusion

The courts have attempted to provide a balanced view of priorities while deciding environmental matters. The environment and development are two sides of the same coin and anyone of these cannot be sacrificed for the other. On contrary, both are equally essential for a better future. In this situation responsibility lies on the judiciary to deal with these cases with caution of high degree, only then we will achieve our goal to secure pollution free developed country for our next generation.[11] There have also been some criticisms of the growing environmental jurisprudence in our country. Many commentators have argued that frequent judicial interventions in this area have reduced the incentive for executive agencies to improve their functioning. It has also been urged that there seems to be a certain clique of individuals who’ve come to specialize in filing frivolous PILs. It is further alleged by the critics that the decisions given in these cases depend too much on the personal sensibilities of the judge who hear them and hence result in a lack of consistency in the long run. Furthermore, the frequent reliance on writ jurisdiction reduces the importance of ordinary remedies such as those of filing ‘representative suits’ and claiming damages for torts such as ‘public nuisance.’[12] While all of these criticisms merit a meaningful debate, we must realize that the traditional notion of legal rights in common-law tradition was mostly oriented around the idea of private property. This is so because individuals are especially vigilant about protecting their property rights and litigation is an effective means of securing them. However, this rationale cannot be applied in the context of environmental protection since the right to clean environment is a public good. Since individuals are less inclined to mobilise themselves to protect such public goods, the onus is placed on the government and the legal system to do the same. This philosophy of public trust finds place in our constitutional commitments and a judiciary is committed to upholding the same. This is precisely why judiciary is frequently called on to weigh individual interests on the scales of social justice. The conservation of forests and wildlife, as well as the reduction of pollution levels are vital components of such considerations of social justice. It is on account of these considerations that the judiciary must continue to play a vigorous role in the domain of environmental protection.[13]


[1] Authored by Chaitanya Jitendra Dhruv, 3rd Year, B.A.LL.B, Govindrao Wanjari College of Law.

[2] 1868, L.R. 3HL. 330.

[3] Viplav Baranwal & Rachi Singh, Constitutional Jurisprudence towards Environmental Protection in India, 8 Madras Law Journal, 9 (2013).

[4] Union Carbide Corporation v. Union of India, AIR 1990 SC 273.

[5] Vellore Citizen’s Welfare Forum v. Union of India, AIR 1996 SCC 212.

[6] (1997) 1 SCC 388

[7] Principle 1, Declaration of the United Nations Conference on the Human Environment, Stockholm,         1972

[8] Report of the World Commission on Environment and Development: Our Common Future, 1987.  p.16.

[9] AIR 2000 SC 3751

[10] Kandwal Nagendra Prasad, Sustainable Development and its protection in India, International Journal for Environmental Rehabilitation and Conservation, June 30, 2017. p.95.

[11] Ibid .p.96.

[12] Lavanya Rajamani, ‘Public Interest Environmental Litigation in India: Exploring issues of access, participation, equality, effectiveness and sustainability’, 19 Journal of Environmental Law (2007), p.293-321.

[13]  Former Chief Justice Mr. K.G. Balakrishnan, The Role Of The Judiciary In Environmental Protection In D. P Shrivastava Memorial Lecture, March 20,2010, p.11-12.

Leave A Comment

Your email address will not be published. Required fields are marked *