The Indian judiciary always wanted to exercise its power whenever the other two
organs of the government i.e. legislative and executive fails to discharge their
functions. This inquisitiveness of the judiciary with overpowering over other
organs and to be in action when the other two can't properly work is termed as
This concept came in India in nearly 1980's which was
borrowed from US constitution and this concept's scope and use rapidly started
increasing when article 21 of the Indian Constitution included right to clean
and healthy environment as part of our fundamental right. The most significant
reason for introduction of judicial activism in environment legislation is the
relaxation of rule of locus standi as of which people were provided with a
chance to move to the court under Article 32 and 226 of the Constitution of
This research paper focuses on elaborating the contribution of judiciary
in formation of environment laws through various principles and doctrines of
environmental importance by way of environment litigations and judicial
pronouncements. The scope of study is limited to Indian environment laws only.
The first international conference which took place for preservation and
protection of environment was the UN Conference on Human Environment (commonly
known as Stockholm Conference), 1972[i] which led to the enactment of 42nd
Constitutional Amendment, 1976[ii] in India i.e. certain environmental duties
were imposed both on the part of the citizens [Article 51A (g)] as well as on
the state (Article 48-A)[iii].
The journey from Stockholm Conference to Earth Summit at Rio de Janeiro (Rio+20)
held in June 2012 [iv] led to the recognition that:
all human beings are entitled to a healthy and productive life in harmony
and it was considered that protection of environment is not just another issue
which could be left behind. Due to liberalisation, globalisation and
privatization environmental degradation started rapidly increasing which
resulted in harming human life existence.
So now, it has become a necessity and
a part of legal and moral duty of every citizen to protect and improve the
environment condition. Therefore, the judiciary came forward to protect and
preserve the environment by not only developing a mandate on individuals, but
also on organisations, body corporate or industrial houses.
The role of judiciary depends on the very nature of political system a country
has, which is why their role varies in different forms of government and have
results distinctively. The judiciary plays a significant role in a country like
India which exercises liberal democracy. Various onlookers including Professor
S.P. Sathe and Upendra Baxi were of the view that Indian Supreme Court is one of
the strongest courts among the world[v].
The character of the Supreme Court can
be rightly observed by the writings of Professor S.P. Sathe and Upendra Baxi as
they have were in favour of judicial activism in India and Prof. Upendra Baxi
quoted that Supreme Court of India has become Supreme Court for Indians [vi] which
could be observed from various judicial pronouncements.
So, it can be said that judiciary has played a very important role in expansion
of scope of environment protection in India by the manner of interpretation of
What is Judicial Activism?
Judicial Activism is a concept that was originated in US in 1947. It can be
defined as a philosophy of judicial decision making where by judges allow their
personal views regarding a public policy instead of constitutionalism. This
concept mainly deals with the involvement of Judiciary in making legislations
that deems fit for the society. As through development of various legislations
as well as our legal system it is clearly evident that with the involvement of
judiciary, the legislation are coming more effectively.
So, this active role of
judiciary in preserving the rights of citizens as well as preserving the
constitutional and legal system of the country is known as judicial activism.
The engagement of judiciary have led to arrival of more prominent environment
legislation in India as with the introduction of this concept in our country
environment issues were given proper regard which led to the inclusion of right
to clean and healthy environment as a part of our fundamental right which is
guaranteed by the constitution.
Role of Judiciary in formation of Environment Legislation
The role of judiciary in formulation of environment legislation in India can be
clearly understood by landmark cases which have given a new face to
environmental laws, because of these leading cases only, today we are having
various number of doctrines and principles present for protection and
preservation of environment and to achieve sustainable development goals.
Municipal Council, Ratlam Vs. Shri Vardichand and Ors.,1980 [vii]Until this case, there was not very much involvement of judiciary in formation
of environment legislation or its protection, so this case can be considered as
the initial stage of the formation of more protective environment laws. The
facts of the case was thatRatlam is a city in Madhya Pradesh in India where some
of the residents of the municipality filed a complaint regarding the improper
drainage facility before the Sub-Divisional Magistrate under Section 133 of
Criminal Procedure Code, 1973.
The Sub-divisional Magistrate directed the
municipality to draft a plan within six months to eradicate this problem faced
by the people. Later on, this case was moved to the High Court by the
municipality seeking that they have shortage of funds in preparing proper
drainage facility but the High Court approved the decision of Sub-Divisional
magistrate so the municipality later moved to Supreme court through an appeal
but the superior court also ruled against the municipality and said that
shortage of funds is not an excuse against their duty towards the public.
this was a public health issue so the ruling was based on the interests of
society preserving their social interest which was inferred from the preamble
and Article 38 of the Constitution of India, 1950. So, the municipality was
ordered to take immediate action within six months regarding sanitization and
contamination and pollution of streets.
Rural Litigation and Entitlement Kendra Vs. State of Uttar Pradesh and
Ors., 1985 [viii] (Dehradun Valley's Case)During 1955 to 1965 there was sudden increase in limestone mining operation in
Doon valley a part of Mussoorie hill range of Himalayas) because of which
various lease were granted in 1962. But later on due to increase in mining
certain negative effects came forward like deforestation, decline in food
production, loss of agricultural land, loss of irrigation facilities, etc. which
were clearly disturbing the ecological balance of the society at a very large
scale. This mining also forced the local people to shift their employment
resources from agricultural to non-agricultural sector as mining was destroying
the fertility of land and was degrading the water level and its quality too.
So, on 11.8.1983, the Supreme Court made an expert committee to inspect the
mines except those which either belong to State of Uttar Pradesh and Union of
India regarding the safety standards laid down under Mines Act,1952[ix] and all
the rules laid down regarding it. Later on when the report came forward, the
Supreme Court directed the closure of certain mines and asked certain mine
owners to abide by the rules and make changes regarding it, under Article 32 of
the Constitution of India, 1950 as these mines were violating the fundamental
right of the people guaranteed under Article 21 of the Constitution.
also asked the Uttar Pradesh Government to reallocate these mines and also asked
for providing employment to the people who got unemployed by the closure of
certain mines. This judgement is considered as a historic one as the court took
step regarding the protection and preservation of environment, keeping in view
about employment opportunities too so that everything could be taken care off.
Union Carbide Corporation Vs. Union of India [x] (Bhopal Gas Tragedy)On December 3, 1984, almost forty tons of Methyl Isocyanate (MIC), a toxic
gasmixed with water creating an exothermic reaction leaked from Union Carbide
India Limited (UCIL) plant and spread in Bhopal, a city in Madhya Pradesh in
India. This gas leakage effects were so hazardous that thousands of people were
killed on the spot and various were effected through this at large and many
generation faced the hard consequences of it as children's use to get born with
certain disorders like visual impairment etc. and this all was caused due to the
negligence of the company. Despite repetitive complaints regarding the safety
measures of the pesticide plant by the agronomic engineer of the plant, UCIL
ignoring all these complaints kept on producing dangerous & hazardous chemicals
in the plant.
On June 7, 2010, the court applied the absolute liability principle, relying
upon which seven ex-employees including the former chairman of UCIL were
convicted by the court of causing death by negligence under Section 304-A of IPC
and were also charged under Section 35, 336, 337, 338 of IPC, 1860, by which all
were sentenced to two years of imprisonment. In addition to it,fine was also
imposed on the company. Later on, the Government of India passed the Bhopal Gas
Leak Disaster Act which gave the government a right to represent all victims in
or outside India and applied the polluter pay principle to detect the amount of
compensation payable by the company as a result of which the UCIL had to bay US
$470 million in a full and final settlement of civil and criminal liability.
M.C. Mehta Vs. Union of India, 1986[xi] (Shriram Fertilizer Case) (Oleum Gas
Leak Case)A writ petition was filed under Article 32 of the Constitution which was made on
reference by the bench of three judges as questions of seminal importance and
high constitutional significance was raised in the petition which was originally
heard. The facts of the case was that on December 4th and 6th of 1985, a major
leakage of Oleum gas took place from one of the units of Shriram Food and
Fertilizer's Limited, a cloth mill which was producing caustic and chlorine and
was located at Delhi by which various persons were severely affected and some
died on the spot. This leakage took place twice i.e., on 4th and 6th of
December, 1985 by which it gave more adverse effect to the situation and
condition of the city people.
The three bench judges was of the view that we should make more protective laws
as per the requirement of the society regardless of the fact that whether
English Courts have made any particular law for any situation or not and neither
we should wait for them to introduce some laws. If there is a need to make any
new principle of liability then we should not waste any time in making it. As
the companies which are involved in these hazardous activities need to take very
high safety measures so that damages or loss which takes place because of them
could be controlled and this could be only possible when strict laws will be
applicable to them.
These type of activities needs proper care and as these
activities are frequently happening, the environment condition is deteriorating
at a very high pace so, there is an urgent need for the applicability of new and
strict laws by which the environment can be protected as well as the company can realise their duties and responsibilities towards the society. So the court
herein referred to the absolute liability principle which was needed to be
adopted seeing the present scenario of the incidents and through which companies
can be held completely liable for their negligent act and it was also mentioned
by the court that this concept would not include any exception to it as the
essence of this new principle of liability will be washed away.
By adding this
concept, the company will be notified during their establishment only that if
they are carrying on or are involved in any activity or production which is
hazardous to human health then they will be solely and completely liable for any
harm caused by it regardless of the fact that they took any precautionary
measures or not i.e., they cannot escape on the ground that they took all the
precautionary measures that was needed to be taken so they can't be held liable
for the loss and it was also being held by the court that it shall be presumed
that if any industry is involved in such hazardous activity and any accident or
loss occurs because of them whether it be a negligent act or not on the part of
the industry, they will be held absolutely and strictly liable for the harm
caused and would be liable to pay damages caused by it. This rule or new
principle of liability will be subjected to no exceptions like the rule in Rylands vs. Fletcher[xii].
So, the court in this case held that Shriram Food and Fertilizer's limited are
liable to pay Rs. 20 lakhs as compensation to the victims and they were also
asked to write in an undertaking that if these types of accidents happen in
future again then they will pay compensation in regard to the harm caused and in
addition to it a bank guarantee of Rs. 15lakhs to be made which would be used if
this kind of tragedy happens in the next three years.
M.C. Mehta Vs. Union of India (Ganga Pollution Case) [xiii] [xiv]There was a petition filed under writ of mandamus against the respondents
(leather tanneries) as they were discharging and deposing the chemicals of
industries without being properly treated to holy river ganga and also the
sewage was being discharged there which was harming the river ganga and was also
causing water pollution. This was being continued for very long and still people
were not taking charge neither were they doing anything to stop this. So, the
Supreme Court bifurcated this writ petition into two: Mehta I[xv] and Mehta
In Mehta I[xvii] case, the Supreme Court ordered under ORDER 1 RULE 8 OF CPC,
1908, that there should be no discharge of any chemicals or and liquid substance
of the industries or sewage without being properly treated. The court also
highlighted important constitutional provisions that are made for protecting the
environment as well as the importance of Water (Prevention and Control of
Pollution) Act, 1974 which is made for controlling water pollution.
talked about the term ‘trade effluent' ,it is a substance which can be in any
form whether solid, liquid or in gaseous state, discharged from industries,
which was basically the root cause of the water pollution being caused. So, in
this case the court ordered the industries to establish at least primary
treatment plant as a necessity for continuation of any particular industry, if
secondary treatment plant is not affordable to the industry and ordered to make
a Ganga Action plan for preserving the holiness of river Ganga and making it
While the Mehta II[xviii] case dealt with petition against municipal body i.e.,
Kanpur Nagar Mahapalika. The court looked into the matter that Kanpur Nagar
Mahapalika is established under UP Nagar Mahapalika Adhiniyam, 1959 whose
function is to maintain cleanliness in the areas that are under their
jurisdiction and the court also looked upon the objective of water act[xix]
which was to curb water pollution and referred to certain sections of it.
The court relied on the common law principle that injunction orders can be
applied to Municipal Corporation only when a riparian owner brings a suit
against them as he will be adversely affected by the water pollution caused by
the industries. The court came up with the view that regardless of M.C. Mehta
not being a riparian owner he can also file a suit against the nuisance caused
by the industries on behalf of the people who are being affected by the
pollution caused in the river Ganga. So the court ordered the Kanpur Nagar
Mahapalika to ask those pollution causing industries to either stop functioning
or to move their waste to an area outside the city and it was further stated by
the court that from now on if any industry applies for license then that
particular industry must possess adequate provisions needed for the treatment of
trade effluents flowing out of the factories.
M.C. Mehta Vs. Union of India (Delhi Stone Crushing Case), 1992 [xx]In this case, a petition was filed under Article 32 of the Constitution against
the activity like mining, stone crushing and pulverizing which was degrading the
environment condition. The issue was that whether for preservation and
protection of environment and control over pollution, these activity should be
stopped within the radius of 5kms or not from the tourist resorts of Badlal Lake
and Surajkund in the State of Haryana.
So, the Supreme Court directed that:
- No mining activity should be allowed within 2km of the tourist resorts.
- No construction activity would be allowed within 5km of the tourist
- No renewal of leases would be made within the tourist areas.
The Supreme Court basically came up with a view that for protection of
environment only air[xxi] and water act[xxii] implementation is not enough and
for better and proper enforcement of law there should be public awareness
programme conducted so that people could be more aware of the fact that what law
is all about and what they need to do to abide by the law and by this the laws
can give more positive effect in the society and environment can be preserved in
a more better way as environment damage affects the public only so they should
be more acknowledged in preserving and protecting the environment.
Vellore Citizen Welfare Forum Vs. Union of India [xxiii]This is a landmark case as principles like polluter pay and precautionary were
applied here as well as the concept of sustainable development was recognized
and for the first time Court analyzed the relationship between environment and
development. The facts of the case were that some industries were discharging
untreated effluents in the river Palar which was the main source of drinking and
bathing water for the nearby people of Tamil Nadu. It was not only making water
unfit for use but was also deteriorating the land fertility.
So, Vellore Citizen
Forum brought an action against these activities and latterly it was found by
the Tamil Nadu Agricultural University Research Centre that nearly 35,000
hectares of land has become unfit for cultivation because of this.
The court applied the doctrines and declared that industries are liable to pay
compensation as they have adversely affected the environment and certain changes
were needed to be made in working of the industries so that this could not
happen again and it was also stated by the court that those industries who do
not follow the above instructions will be permanently closed. The Supreme Court
further stated that fine of Rs. 10,000 need to be paid by all the involved
industries in Environment Protection Fund and that amount would be used to cover
the harm incurred to the environment as well as in compensating the affected
The Precautionary Principle
The basic idea behind this principle is that “prevention is better than cure”.
It says that preventive measures should be taken while carrying out an activity
which can lead to environment degradation i.e. we should not wait for the harm
caused. It's better to be take safety precaution beforehand only.
Like if any
industry is engaged in any hazardous activity then it should properly perform
such activities by taking all precautionary measure like proper machines, proper
drainage systems, and time-to-time check on machines, etc. so that there could
be less chances in environmental damage. This principle has been into picture
since the Stockholm Conference, 1972. The Supreme Court has considered this
principle as a part of environmental law of India [xxiv] [xxv].
Indian Council for Enviro-legal ActionVs. Union of India [xxvi] (Polluter Pay
Principle)In this case, a number of unlicensed private chemical companies were creating
hazardous wastes in the soil by which pollution was caused which was affecting
the nearby village people in a negative way. So, an NGO named Indian Council for
Environment Legal Action filed a writ petition under Article 32 of the
Constitution of India which compelled the State Pollution Control Board and
Central Pollution Control Board to recover costs for the damages caused by the
The Court ruled that “once the activity carried on is hazardous or
inherently dangerous, the person carrying on such activity is liable to make
good the loss caused to any other person by his activity irrespective of the
fact whether he took reasonable care while carrying on his activity”.
the industries were held absolutely liable in degrading the environment and were
bound to bear all the consequences thereof. Here, the polluter pay principle was
applied which states that the pollution causing agent must not be only asked to
compensate for the harm caused to the environment but should also be asked to
make certain arrangements for restoration of environment any by applying this
principle fine of Rs 1,00,000 was imposed upon the industries.
The Polluter Pay Principle
For the first time in this case[xxvii], the polluter pay principle was
recognised in India as a part of environmental law[xxviii]. This principle says
that the polluters should not only pay compensation in regard to the harm cause
to the environment but should also bear the cost which would be needed in regard
to the restoration of the environment into its original position. This came up
with the idea that why the taxpayers bear the burden of the loss caused by any
particular individual or entity i.e. the polluter must pay for the wrong doing
not by the ones who were not involved in such activities. Section 3 and 5 of the
Environment Protection Act, 1986 [xxix] deals with the effectiveness of this
This principle would be applied without making any distinction on
large scale and small scale industries i.e., it would be applied uniformly on
every polluter and the onus or the burden of proof lies on the polluter [xxx].
The central government is authorised to evaluate the amount of compensation
required for any pollution caused. This principle has broadened the scope of
environmental law and helped in preserving and protecting the environment
M.C. Mehta Vs. Union of India and Ors., 1986[xxxi](Taj Trapezium Case)The TajMahal in Agra is one of the most beautiful monuments on the earth and in
1983, it was also recognized in the UNESCO World Heritage Site. This monument
was made by Mughal emperor Shah Jahan in memory of his dead wife MumtajMahal.
The monument is made of white marble and its beauty attracts the tourist from
all over the world. But, due to increase in pollution this monument started
turning yellow and developed certain patches in it which was deteriorating its
beauty. Seeing this an environmentalist and a Supreme Court attorney, M.C. Mehta
filed a petition before the court that this monument need to be preserved.
which it came into notice that nearby industries were emanating Sulphur Dioxide
which when reacted with rain water gives acid rain by which all the harm was
caused to the beauty of TajMahal. So, here the court ordered the Uttar Pradesh
Pollution Control Board to make a list of industries situated in Taj Trapezium
Zone (a 10,400 sq. km trapezium shaped area covering the five districts of Agra
region and comprises of 40 protected monuments including three world heritage
site- TajMahal, FatehpurSikri and Agra Fort) so that they can be notified to
control their pollution level as it is important to preserve and protect the
beauty of the TajMahal. In this case, the court gave order on the basis of two
principles that are precautionary principle and polluter pay principle as the
court presumed that they are the two key elements or features of sustainable
M.C. Mehta Vs. Kamal Nath [xxxii] (Public Trust Doctrine)In this case, the State Government granted lease of riparian forestland to a
private company for building a motel at the bank of River Beas. Next day, a
report came into a national newspaper stating that this motel will divert the
natural flow of river Beas, for protecting it through future flood. Seeing this,
the Supreme Court took a suo moto action considering the fact that if national
newspaper report is true then then it a serious matter of environment
The court applied the public trust doctrine for the first time and
stated that certain resources like sea, water air and forest are for public use
and it constitute nation's natural health and it would be unjustified to make
this a subject of private ownership. The state as a trustee in under a legal
duty to protect natural resources and resources that are meant for public use
and enjoyment cannot be converted into private ownership. The court also applied
the concept of sustainable development here as resources need to be preserved
for upcoming generation and it cannot be wholly consumed by the present
generation and every generation owes a duty to preserve and conserve the natural
resources in the best possible way they can.
Applying the above mentioned principle, the court quashed the lease of the Motel
The Public Trust Doctrine
This doctrine says that certain resources like sea, water, air, land, flora,
fauna and others which represent the natural system are of public use and cannot
be privately owned by any particular individual and it is duty of everyone to
safeguard them and preserve them for the future generation[xxxiii]. This concept
has been developed in India through various judicial pronouncements.
In M.I. Builders Pvt. Ltd. vs. RadheyShyamSahu
[xxxiv], this doctrine was applied
and the construction of shopping complex was stopped as it was made in the place
of public garden which was a public resource.
Environment and development go hand in hand with each other i.e. for development
of the country environment conditions need to be good and vice-versa. The public
health and environment related topics can be not left aside as they are key part
to the country's growth and development. The environment provides and fulfills
our every basic necessity of life and without healthy environment, human
existence is not possible. But with the development we are lacking behind in
saving our environment although there are various measures taken by the
government and various conventions held so far, but for preserving and
protecting the environment human co-operation is must as they share a very close
connection between them.
The judiciary has played a very important role in formulation of various
principles and doctrines and development of environmental legislation especially
by including right to clean and healthy environment as a part of our fundamental
right under Article 21 of the Constitution. But still for better environment
condition public awareness programmes need to be conducted so that people can be
aware of their right and duties and environment can be preserved in a more
Award Winning Article Is Written By: Isha Mittal,
- S.P. Sathe, Judicial Activism in India (New Delhi, Oxford University Press,
- UpendraBaxi, 'The Avatars of Indian Judicial Activism : Explorations in the
Geography of (In) justice', in S.K. Verma and Kusum (eds.), Fifty Years of the
Supreme Court of India : It's Grasp and Reach (Delhi, Oxford University Press,
2000) pp. 156-209 at 157
- 1980 AIR 1622, 1981 SCR (1) 97
- 1985 AIR 652, 1985 SCR (3) 169
- The Mines Act, 1952, No. 35, Acts of Parliament, (1992).
- 1992 AIR 248, 1991 SCR Supl. (1) 251.
- 1987 AIR 1086, 1987 SCR (1) 819.
- UKHL 1, (1868) LR 3 HL 330.
-  4 SCC 463.
- 1988 AIR 1115, 1988 SCR (2) 530
- [M.C. Mehta v. Union of India,  4 SCC 463]
- 1988 AIR 1115, 1988 SCR (2) 530
-  4 SCC 463.
- 1988 AIR 1115, 1988 SCR (2) 530.
- 1991 SCR (1) 866, 1991 SCC (2) 353
- AIR 1996 SC 2715: (1996) 5 SCC 647
- AIR 1996 SC 2715.
- M.C Mehta v. Kamal Nath
- 1996 AIR 1446, 1996 SCC (3) 212.
- Indian Council for Enviro-Legal Action vs. Union of India
- Vellore Citizens Welfare Forum v Union of India
- A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors. and
- 1987 AIR 1086, 1987 SCR (1) 819.
- (1997)1 SCC 388.
- Shailesh R. Shah v. State of Gujarat, 2002 SCC OnLineGuj164 : (2002) 43
(3) GLR 2295.
- , S.C.C. 464.
Amity Law School, Amity University, Lucknow (U.P.)
Email: [email protected]
, Ph no: 8601527653
Authentication No: SP31177183948-18-920