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
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
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-à-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
In case of Rural Litigation and Entitlement Kendra, Dehradun v State of Uttar
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.
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
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.
M.C. Mehta v Union of India
which is commonly known as the Oleum Gas
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.
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./ 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.
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. 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
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.
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.
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.
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.
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.
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
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
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
- Narmada Bachao Andalon v. Union of India and Ors.
- Indian Council of Enviro-Legal Action v Union of India 1996(3) SCC 212.
- Vellore Citizens Welfare Forum v Union of India 1996(5) SCC 647
- The Oleum Gas Leak case (M.C. Mehta v Union of India)
- M.C. Mehta (Taj Trapezium Matter) V. Union of India.
- M.C. Mehta v Kamal NathandOrs (1997) 1 SCC 388
- Principle 15 of the Rio Declaration, 1992
- M.C. Mehta v Union of India, (1997)3SCC715,720
- Vellore Citizens Welfare Forum v Union of India, AIR 1996 SC 2715.
- Mark Dowie, In Law We Trust 
- Illinois Central Railroad v Illinios , 146 US 387
- M.C Mehta v Kamalnath , 1 SCC 388
- Shailesh R. Shah v State of Gujarat, 2002 SCC OnLine Guj 164: (2002) 43
(3) GLR 2295
- M.I. Builders Pvt. Ltd. v RadheyShyam Shau , SCC 464.