Indian Judiciary which is the most powerful body protecting environment by
providing different sort of Legislation provision section i.e. Environment
Protection Act 1986 to give effect to the significant right of man to live in a
sound environment and corresponding duty on stack and individual to ensure
environmental preservation and conservation which is analyse and step taken by
judiciary by adopting some of the international principle by an international
authority created protocols, treaties, statues ,laws and bylaws to be duty
followed by countries such as Rio declaration Stockholm Convention, Kyoto
Protocol, UNFCCC, Precautionary Principle, Polluter pays Principle and public
As civilization advanced, man's materialism increased. He lived primarily for
the purpose of accumulating more and greater sums of material wealth. This
encouraged technological and scientific advancement, opening the door for the
use of natural resources.
Rapid and unchecked industrialisation created a
potential threat from environmental degradation. The Second World War and the
industrial disaster caused extensive pollution and harm to the environment of
the planet. People started to understand that if this continued, man's entire
existence would be in danger.
Environment is the well spring of life on earth
like water, air, soil etc and determine the presence, development of improvement
of humanity and all its activities. Many new innovations like thermal power,
atomic plant taken to protect an environment. In recent years sustained focus on
the role played by judiciary in develop of monitoring the implementation of
measures for pollution, control, conservation of forest of wildlife protection.
With respect to environmental law, the legislation authority in India has come
on with various statutes like Environment Protection Act; Water control Act, Air
Pollution Control Act and Wildlife Protection Act with their respective rules of
bylaws. Many international principles uphold by an Indian Judiciary i.e
Objective Of The Study
The main object of this study is to understand on how the central government of
India is working to improve and protect environmental quality, reduce and
control pollution from the sources, and restrict or prevent the setting and
operation of any industrial facility on environmental grounds
The Indian Judiciary has played a vital role in promoting sustainable
development and fostering public and private industry while minimising the role
of irreversible damage to the natural environmental, which is necessary to
maintain the planets and India healthy flona and fauna. The Supreme court of
India after following bylaws of international authorities made a tremendous harm
to the environment and ecological protection, as well as protection of forest
wildlife, among others.
Despite the court limited jurisprudence, it played an
importance role in this regard. True, we have enough environmental regulations,
but their executing is in hand of administrative authorities an in regard,
excellent governance devoid of corruption is the most important requirement for
The method of research that is used while doing this research paper is
theoretical research 'Doctrinal Method of Research' as the research is based on
secondary sources of information such as Internet Articles, Journals, Text
Scope Of Study And Limitation
- How is government of India working on conserving environment and
improving the quality of environment?
- What are the Principles derived from the Courts in India in order to
protect the environment?
In this Research paper I have covered all the main doctrines which the judiciary
system has brought up by various judgements in protecting the environment and
for its conservation of natural resources
Due to the lack of commercial growth and political unrest in India during the
post-independence era, environmental conservation was not a top priority. After
independence, creating markets, industries, and new jobs for the locals became
the main focus.
However, environmental protection became a precedence after the Bhopal Gas
tragedy. Following this incident, the scope of environmental control in the
country expands, and judicial activity rises as well. People began to express
worry after the first environmental protection initiative was implemented in
At the international level, environmental law is a recent development. Even
three years before the Stockholm Conference, India's IV Five-year Plan
(1969-1974), whose goal is for harmonious development, recognised the oneness of
nature and man and included environmental considerations. Only on the basis of a
thorough assessment of environmental challenges is such planning feasible.
are situations where receiving appropriate and timely environmental advice could
have aided in project design and in reversing adverse environmental effects that
may indicate resource loss. Therefore, it is essential to incorporate the
environmental component into planning and development. As a high-level advisory
body to the government, a national council on environment planning and
coordination was established. This committee handled environmental-related
The higher judiciary in India did not invent the right to live in a
sanitary and safe environment. For more than a century or so, the legal system
in general and the judiciary in particular have been able to forecast the right.
The right to live in a clean and healthy environment is now a fundamental right
(FR); this is the sole change that the Indian Constitution forbids in the
current industrialised age.
The High Court determined it to be a basic right in
the latter half of the 19th century, but it was not a fundamental right because
it was covered by other laws such the Law of Torts, the Indian Penal Code, the
Civil Procedure Code, Code of Criminal Procedure, etc. Environmental rights are
seen as third generation rights in the modern, developing legal world.
Polluter Pay Principles
According to the widely accepted "polluter pays" principle, individuals who
cause pollution should be responsible for paying the costs associated with
controlling it in order to protect public health and the environment. For
instance, a plant is often held accountable for the proper disposal of any
potentially toxic waste that is produced as a by-product of its operations.
larger concepts that govern sustainable development globally include the
polluter pays principle. This principle has become a very popular concept
lately. If you make a mess, it your duty to clean it up. Certain case law in
which polluter pay Principle applied is Vellore Citizen Welfare forum V. Union
of India. The case is as follows: -
In the present case the Petitioner- Vellore Citizens Welfare Forum, filed a PIL
under Article 32 of the Constitution. The Petition was filed against the water
pollution caused due to excessive release of pollutants by the tanneries and
other industries in the State of Tamil Nadu into the river Palar. Palar River
was the main source of water for the livelihood of the surrounding people.
Later, the Tamil Nadu Agricultural University Research Centre, Vellore
discovered that approximately 35,000 hectares of agricultural land has turned
either entirely or partially barren and not fit for cultivation. This is one of
the landmark cases whereby the Supreme Court critically analysed the
relationship between environment and industrial development.
- Whether the tanneries should be permitted to keep on working at the expense of
the health of individuals and the environment?
The Supreme Court after hearing both the parties and examining the report ruled
making all efforts to maintain a harmony between environment and development.
The Court observed that these Tanneries are the major foreign exchange earner to
the country and also provide employment to several people. But at the same time,
it harms the environment and poses a health hazard to everyone.
The Court ruled
in favour of Petitioners and directed all the Tanneries to deposit a sum of
rupees ten thousand in the office of Collector as fine. The Court further
directed the State of Tamil Nadu to award Mr M. C. Mehta with a sum of Rupees
Fifty thousand as a token of appreciation towards his efforts in protecting the
environment. The Hon'ble Supreme Court also made it a point to emphasize on the
formation of green benches in dealing with matters related to the protection of
The precautionary principle (or precautionary approach) is a broad
epistemological, philosophical and legal approach to innovations with potential
for causing harm when extensive scientific knowledge on the matter is lacking.
It emphasizes caution, pausing and review before leaping into new innovations
that may prove disastrous.
When there is a risk of harm from a certain decision
(such as following a particular course of action) but no definitive proof is yet
available, the notion is frequently invoked by policymakers. For instance, a
government may decide to delay or limit the broad use of a medication or
innovative technology until it has undergone extensive testing. The guiding
principle recognises that while advancements in science and technology have
frequently been extremely beneficial to humanity, they have also played a role
in the emergence of new dangers and risks.
It indicates that when a reasonable
risk has been identified by science, society has a duty to safeguard the public
from exposure to such harm. It is only appropriate to loosen these restrictions
after additional scientific findings are made that offer solid support for the
claim that nothing bad will happen.
Precautionary Principle reviewed from the Vellore Citizen Forum case which
developed the following three concepts i.e.
- Environment Measure must anticipate, Prevent and attack the case of environmental degradation
- Lack of Scientific certainty should not be used as a reason for postponing measures
- Onus of proof is on the actor to show that his actions is benign
The rule of absolute liability, in simple words, can be defined as the rule of
strict liability minus the exceptions. In India, the rule of absolute liability
evolved in the case of MC Mehta v Union of India
. This is one of the most
landmark judgments which relates to the concept of absolute liability. The case
is as follows
In the centre of a population of 200,000 people in the area of Kirti Nagar,
Shriram's Food and Fertiliser factory, Delhi was situated, which produced
products like hard technical oil and glycerine soaps. M.C. Mehta, a social
activist lawyer, submitted before the Supreme Court a writ petition seeking an
order for closure and relocation of the Shriram Caustic Chlorine and Sulphuric
Acid Plant to an area where no real danger to the people's health and security
will exist. Pending disposal of the petition, the Supreme Court allowed the
plant to restart its capacity and work.
On 4 and 6 December 1985, Oleum gas
leaked from one of its units during the pending lawsuit, causing substantial
harm to local residents as a result of the plant's gas leakage. As stated by the
petitioner, a lawyer who practised in the Tis Hazari Courts also died as a
result of oleum gas inhalation. As a result of the collapse of the structure on
which it was built, the leakage resulted from the bursting of the tank
containing oleum gas, and it generated fear among the citizens residing there.
The people had hardly recovered from the shock of this tragedy when, within two
days, another leakage occurred, though this time a minor one, due to the escape
of oleum gas from a pipe's joints, after which the claims for compensation were
filed, for the people who had suffered damage as a result of Oleum Gas escape,
by the Delhi Legal Aid & Advice Board and the Delhi Bar Association.
The oleum gas leak case led to various issues to come into the light, which was:
- Whether these harmful industries should be permitted to operate in these areas?
- Whether a regulating mechanism should be established if they are permitted to function in such areas?
- How should the liability and amount of compensation be determined in such cases?
- How does Article 32 of the Constitution extend in these cases?
- Whether the rule of Absolute Liability or Ryland v Fletcher is to be followed?
- Whether 'Shriram' could be considered to be a 'State' within the ambit of Article 12?
Showing extreme concerns for the safety of the people of Delhi from the leakage
of hazardous chemicals, J. Bhagwati stated the proposal to eliminate toxic and
hazardous factories could not be followed because they still contribute to
improving the quality of life. Industries must, therefore, be established even
if they are harmful as they are necessary to economic and social development.
was of the view that the risk or danger factor towards the public can only be
hoped to be reduced by taking all the measures required to position these
industries in an environment where the public is least vulnerable and the safety
requirements are maximized in such industries. It was also noted that permanent
factory closure would result in the unemployment of 4,000 workers in the caustic
soda factory and which would add to the social poverty problem.
the court ordered that the factory be opened temporarily under 11 conditions and
appointed a committee of experts to control the activity of the industry.
The main provisions set up by the government were:
- The Central Pollution Control Board appoints an inspector to check that emissions levels are in compliance with the Water (Prevention and Control of Pollution) Act, 1974 and the Air (prevention and control of pollution) Act, 1981.
- To create a safety committee for employees.
- Industry to publicize about the consequences and the proper treatment of chlorine.
- To train and instruct the employees regarding the safety of the plant through audio-visual services and to install loudspeakers to alert neighbors in case of gas leakage.
- Staff to use protective equipment, such as helmets and belts.
- That the employees of Shriram furnish the undertaking of the Chairman of Delhi Cloth Mills Limited that they will be "personally liable" for paying compensation for any death or injury in the event of gas escape resulting in death or injury to staff or people living in the vicinity.
Public Trust Doctrine
The population grew in the second half of the 20th century, which also saw an
increase in the overuse and depletion of the planet's natural resources. The
increase of pollution, industrialization, conflict, poverty, and other factors
were the primary causes of this depletion. But we never asked ourselves if there
is a limit to how far we can rely on the earth's natural resources to support
Who is in charge of the natural resources of Earth? And for many
years, we have witnessed conflict between those who use the earth's natural
resources for their own personal gain and those who merely use them to meet
their own needs.
People have the right to criticise how natural resources are used, which is why
a Roman legal expert coined the phrase "public trust doctrine" more than 1500
years ago. They claimed that either everyone has access to resources or nobody
does. This philosophy questioned the idea of using natural resources for
personal gain. Many philosophers and legal experts are disputing the rights of
the general public regarding the use of the planet's natural resources because
this idea is regarded as an ethical principle.
In India, this doctrine evolved in the courts and it also has its significance
in the constitution. There are various landmark judgments through which this
doctrine was evolved. The article further explains public trust doctrine and
examines various dimensions of Public trust doctrine in India.
Public Trust Doctrine's Purpose
The Public Trust Doctrine has historically only been used to defend rights
related to fishing, hunting, boating, and navigation for standing or anchoring.
However, given the current situation, it examines and analyses the state's
resource management actions. It declares that the state is a trustee and that it
is the owner of all resources. The state has a responsibility to safeguard,
prevent, and protect the resources for usage by the general population. The
state must carry out its constructive responsibility.
India's Public Trust Doctrine
In India, the Public Trust theory developed as a result of important rulings.
The court ruled that because we adhere to common law, the public trust doctrine
is part of our constitution's jurisprudence. The court applied this approach to
safeguard the environment and took both procedural and substantive rights
seriously. The court also cited various sections of the Indian constitution,
including Article 48A, which inserted the right to a clean environment under
Article 21 and Article 39, which addresses the equitable distribution of
India's highest court went farther and emphasised the Public Trust Doctrine
because that country does not have distinct environmental rights. There are
numerous examples of this, such as when the Indian Supreme Court ruled that
illegal mining in a region that caused environmental damage was prohibited
because it violated Article 21 of the Indian Constitution and because a healthy
environment is essential for defending and preserving the rights of individuals.
In another case, the High Court of Kerala ruled that when a government action
harmed a freshwater supply, it could not be considered a violation of Article
21. The court connected the right to life and a healthy environment in the
Bhopal disaster case. Government and private property rights in India are
constrained by the public trust theory. It is unclear how the court applied the
public trust theory after reviewing judgements and different interpretations.
Whether the public trust doctrine was a component of Indian law at one point or
not is unclear. The court just noted that the idea should be included in India
because it is included in the United States through numerous judgments, British
law also contains it, and we also follow common law. However, the court
determined that in order to safeguard people' rights and hold the state
accountable for doing so under public trust doctrine.
The Public Trust doctrine didn't exist in India as a doctrine but it came
through a landmark judgement which was M.C Mehta vs Kamalnath.
M.C Mehta v. Kamalnath
The public trust doctrine first alluded in India through this landmark case.
This case is also known as SPAN Motel case. In this case, a PIL challenged the
minister of environment Mr Kamalnath [respondent] who allowed SPAN Motel company
to construct a hotel near the mouth of river Beas in Himachal Pradesh and also
allowed the company to change the course of the river for the construction by
blasting the river bed.
The construction of the hotel was planned on land which
was taken on a 99 years lease from the government. It was allowed by the
ministry as well as the gram panchayat of that area. The supreme court held that
"the public trust is more like an order for the state to use the public property
for public purposes".
It is the duty of the state to protect the environment,
lakes and public heritage and it can be only abdicated in a rare case when it is
inconsistent with the public trust. The court observed that earth's natural
resources are the gift of nature; it should be protected and it also stated that
the values and law must adhere to the environment.
The court observed that the
Public at large is beneficiary of the earth resources like water, air and
wetlands and as the state is the trustee it is the obligation of the state to
protect these resources and shall not give it to private ownership for the fulfilment of its own goal.
The court cited United States law review, experts on environmental law to
protect the environmental rights. For example, the court cited a lengthy passage
from Harvard environmental law review and the court also stated Justinian saying
on public trust doctrine and also quoted Joseph sax to justify its notion.
The court asked the company to pay compensation for the restoration of the
environment of that area under the polluter pay principle.
Doctrine Of Sustainable Development
The world commission on environmental and development in its report prominently
known as the Brundtland Report (1987) which highlight the concept of sustainable
Which specifies that development that meets the needs of the
present without compromising the ability of the future generation to meet their
own needs. The principle of sustainable development emphasises on two basic
needs, firstly, need for socio-economic development and secondly, need of
limitation imposed on the environment's capability to cope with the present and
This is the need for the count to strike a balance between
development and environment. According to chairperson Ms. Brundtland's study,
commonly known as the Brundtland report, the goal of sustainable development is
to meet the requirements of the present without sacrificing the capacity of
future generations to meet their own needs. Former World Bank President James D.
Yolkenson said, "It is for us to think as to what kind of world we want, with
reference to sustainable development.
Do we want to leave the worst possible
planet to the next generation, one in which a great number of people perish from
hunger, climate change, declining biodiversity, and insecure socioeconomic
conditions? Volkenson's observation demonstrates unequivocally that the pursuit
of sustainable development is not limited to maximising people's enjoyment in
the here and now.
Sustainable development involves a multi-faceted approach i.e. (1) economic, (2)
human, (3) environmental, and (4) technological. It is a process which seeks to
bring improvement in the quality of human life along with conservation of the
ecological system. Thus, development and environment, both are inter-dependent
and therefore, there cannot be development without protection of environment,
nor can there be conservation of environment without development.
The Fundamental goals of sustainable development
The three basic goals of sustainable development are:
- To maintain production of goods and services for development and efficiency.
- Manage natural resources, including the preservation of biological diversity, and maintain biological integrity.
- The third goal is to maintain and improve overall quality of life by implementing the equitable distribution of wealth and material resources.
A.P. Pollution Control Board v. M.V. Nayudu, the Apex Court observed that
where the State Government makes an attempt to balance the need of the
environment and need of the economic development, it would not be proper to
prohibit it from doing so. In such a case, it would be safer to apply the
'protective principle' and the 'principle of polluter pays', keeping in mind the
principle of sustainable development and the 'principle of inter-generational
Objectives Of The Judiciary
In India, environmental contamination has long been an issue. As a result, the
framers of the Constitution had already incorporated Articles 47, 48, and 48A.
In accordance with these provisions, the state has obligations to safeguard the
environment and preserve the nation's natural resources. Since India was a
signatory to the Stockholm Declaration of 1972, the Parliament added Article
51(1)(g) to the constitution. According to this article, people have a duty to
protect and enhance the natural environment, which includes woods, lakes,
rivers, and wildlife, as well as to show compassion for all living things.
addition, the Parliament passed a number of legislations to combat pollution,
including the Environmental (Protection) Act 1986, The Water (Prevention and
Control of Pollution) Act 1974, The Air (Prevention and Control of Pollution Act
1981, The Hazardous Wastes (Management and Handling) Act 1972, The Biological
Diversity Act 2002, etc. to protect the Environment.
The public generally has a positive opinion of the Supreme Court of India
compared to the state's legislative and executive branches because it is a
respected institution. The Supreme Court has dealt with a difficult,
complicated, and fast evolving field of technology and multi-disciplines
successfully. A comprehensive Indian environmental legislation has been
developed thanks to the multiple advancements brought about by judicial
Thus, the Supreme Court of India has demonstrated its superiority in
the area of environmental justice administration not only before the legislative
and executive, but also before its counterparts in industrialised and developing
countries, regardless of their age.
The judiciary is protected by the Indian Constitution from the influence of the
legislative and executive branches of government, making it less susceptible to
pressure from both.
Five sections make up the remaining portion of the document. The next section
explores the body of writing already written about sustainable development. Part
3 discusses how important it is for the Indian courts to interpret laws in
accordance with the sustainable development theory, and Part 4 discusses a court
decision on environmental protection. The final portion contains the conclusion
As Judicial authority is the supreme authority in body in India. Judiciary made
up mercy legislation for provide protection for the environment not only to
nature but also to human and its surrounding. The environment protection act
- Enacted with the prime motto of providing protection and improvement of the environment and the things associated with it
- To take strict action against those who harm the environmental
- To safeguard the better environment and environmental condition
- To apply the decision made by United Nations of Conference on Human Environment which was held in year 1972 in Stockholmes
- To enforce law regarding the protecting of the environment in the regions, which are not including in the Prevailing law
The main purpose of the judiciary to make environment protecting as a
fundamental right which is not only obliged on state but also to individual
Environment protection will lead to better surrounding for human. By providing
sustainable development awareness government brings up the knowledge and those
who don't follow this on those who pause the environment will be backed by
sanctions by applying the principle laid down by the UNCHE
Methods Adopted By Judiciary
Certain Methods has been adopted by the judiciary to protect the environment
from being polluted. Certain principles are not enough to provide protection
following approaches to be laid down which highlights the role of judiciary in
- Right to A wholesome Environment: Judicial recognition of environmental
jurisprudence, in backdrop of industrialization, reached 7 peak with the
pronouncement of Supreme Court that right to wholesome environment is a part
of Article 21 of Constitution
In Charan lal Sahu Case supreme court held that the right to life guaranteed by
Article 21 of Constitution include the right to a wholesome environment.
- Public Nuisance: The Judicial Response: In Rathore Municipal Council V
Vandhichand, the SC is instant case is a landmark judgement in the history of
judiciary activism in uploading the social justice component of the rule of the
law by fixing liability on statutory authorities to discharge their legal
obligation to the people in abating public nuisance and make up the
environmental pollution free even if there is a budgetary constants J krishna
Iyer observed; that social justice is due to and therefore the people must be
able to tigger off the jurisdiction rested for their benefit to any public
- Judicial Relief Encompasses compensation to victims: In Mc Mehta V
Union of India Supreme Court laid down two concept principle of law: The
power of the Supreme court to grant remedial relief for a proved
infringement of fundamental right includes the power to award compensation.
The judgement opened a new
frontier in the Indian jurisprudence by including a new "no fault" liability
standard for industries engaged in hazardous activities which has brought about
radical change in the liability and compensation laws in India
- Fundamental Right to water: The fundamental right to water has evolved
in India, not through legislative action but through judicial interpretation
which was stated in case Narmada Bachao Andolen V Union of 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
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
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.
In light of the aforementioned decisions, we conclude that the Supreme Court now
interprets the various environmental protection laws. When there is a lack of
legislation, the legal system strives to fill in the gaps in this fashion. These
fresh developments and expansions brought about by judicial activism in India
open up a variety of options for aiding the nation. Since the loss of natural
resources cannot be remedied, Indian courts are extremely aware of and vigilant
about the specific character of environmental rights.
There are some references
that must be taken into account. Law cannot be implemented unless it is
successful and effective, and public awareness is a prerequisite for effective
implementation. Consequently, having the proper consciousness is crucial.
In the case of M.C. Mehta v. Union of India
, the Apex Tribunal likewise
supported this declaration. In this case, the court effectively ordered the
Union Government to give orders to all state and union governments to impose
requirements as a condition of licence on all cinemas, including the requirement
that no fewer than two slides or environmental messages be shown in the middle
of each performance. The Indian Law Commission also filed its 186th report in
support of the creation of Environment Courts.
In order for the judiciary to carry out its role more effectively, it is
important to strengthen its capabilities by creating unique environmental
courts, each with a professional judge to handle environmental cases/crimes.
Written By: Suraj Reddy P
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