“Judicial Activism on Environment in India”

By Amit Singh*

I. Introduction:

The Indian judiciary demonstrated willingness to exercise its power whenever the

political/executive organs of the state failed to discharge their constitutional obligations

effectively. This willingness has been often termed as ‘judicial activism’. Around 1980,

the Indian legal system, particularly the field of environmental law, underwent a sea

change in terms of discarding its moribund approach and instead, charting out new

horizons of social justice. This period was characterized not only by administrative and

legislative activism but also judicial activism. A subset of this has been environmental

activism, which has developed in India in a very major way. One of the reasons for

judicial activism in specific environmental cases has been the relaxation of the rule of

locus standi giving a chance to the public to approach the Court under Articles 32 and

226 of the Indian Constitution. Also, the recognition of environmental rights as a

‘fundamental right’ under Article 21 (Right to Life) of the Indian Constitution has given a

constitutional sanctity to the right to enjoy a clean and healthy environment.

The development of Indian environmental law has happened, for the most part, over the

last three decades, with a significant level of polarization around the latter two decades of

this period.

________________________________________________________________________
*The author is a Ph.D. Research Scholar at the Centre for International Legal Studies (CILS), School of
International Studies (SIS), Jawaharlal Nehru University [JNU], New Delhi-67. He may be contacted at
amitsjnu@gmail.com .

1
The development of the law in this area has seen a considerable share of initiative by the

Indian judiciary, particularly the higher judiciary, consisting of the Supreme Court of

India, and the High Courts of the States. Particularly, within the last two decades, India,

has not only enacted specific legislation on environmental protection but has also

virtually created a new fundamental right to a clean and healthy environment in the

Constitution. Prima facie the forms and methods adopted in the Indian context appear to

be very similar to those in other common law systems, but Indian environmental

jurisprudence brings out the unique characteristics of a new legal order, which has

gradually been established in India. The distinguishing nature of this jurisprudence is the

emerging Indian environmental jurisprudence that bears testimony to the activist role of

the Indian judiciary, which has had a significant impact in many areas other than

environmental law. In short, the development of environmental jurisprudence in India

manifests neo-judicial environmental model created within the constitution in post-

modern public law. It accommodates ideas of various experts nationally and

internationally and creates interface of these ideas within the existing legal structure. The

areas in the Constitution where the judiciary has innovated techniques to further the cause

of environment are: directive principle of state policy and fundamental duties;

fundamental rights, jurisdiction of Supreme Court and the High Courts and adoption of

various international principles and creation of domestic principles to further the

international obligation towards the environment.

2
II. Directive Principles of State Policy, Fundamental Duties and the

Environment:

At present most environmental actions in India are brought under Articles 32 and 226 of

the Constitution. The writ procedure is preferred over the conventional suit because it is

speedy, relatively inexpensive and offers direct access to the highest courts of the land.

The powers of the Supreme Court to issue directions under Article 32 and that of the high

courts under Article 226 have attained greater significance in environmental litigation.

Courts have made use of these powers to remedy past malafides and to check immediate

and future assaults on the environment. Amongst various factors that contributed to the

growth of Public Interest Litigation (PIL)1 in the field of environment in India is the

Constitution through Part III (Fundamental Rights) and Part IV (Directive Principles of

State Policy). Part III and IV of the Indian Constitution provide a framework for

regulating relations between the state and its citizens and between citizens inter-se. India

is one of the few countries to provide protection and improvement of the environment in

the Constitution, which are implemented through the environment protection laws of the

country. Originally, the Indian Constitution of 1950 did not have explicit reference to

environmental protection, so there was no independent and separate provision dealing

with the protection or improvement of the environment. However, taking note of the

mandate of the Stockholm Declaration of 1972 and growing awareness for environmental

pollution and eco-balances, the Indian Parliament passed a historic amendment - Forty-

1
According to Black’s Law Dictionary, "Public Interest Litigation (PIL) means a legal action initiated in a
court of law for the enforcement of public interest or general interest in which the public or class of the
community have pecuniary interest or some interest by which their legal rights or liabilities are affected."

3
Second Constitution Amendment Act, 1976.2 This Amendment introduced principles of

environmental protection in an explicit manner into the Constitution through Articles

48A3 and 51A (g)4. Article 48A obligated the State to protect and improve the

environment. These are not the first generational rights like the ‘fundamental rights’ but

falls under the ‘Directive principles of state policy’; which deal with economic and social

rights, which are second generational rights. This would mean that the state required

enacting legislation to realize these rights. On the other hand, Article 51A (g) obligated

citizens to undertake the same responsibilities. As far as legislative power was concerned,

the 42nd Amendment also moved the subjects of “forests” and “protection of wild animals

and birds” from the State List to the Concurrent List. In M.C. Mehta v State of Orissa5 it

was said that together, the provisions highlight the national consensus on the importance

of environmental protection and improvement and laid the foundation for a jurisprudence

of environmental protection. In Sachidanand Pandey v State of West Bengal6, the Court

clearly recognized Directive Principles role in deciding environmental cases in light of

Articles 48A and 51A(g). Similarly in T.Damodar Rao v The Special Officer, Municipal

Corporation of Hyderabad7, Article 48A has been interpreted as imposing ‘an obligation’

on the government, including the courts, to protect the environment. It should be noted

that though the Directive Principles are unenforceable by the courts as mentioned in

2
It came into force on January 7, 1977.
3
“The State shall endeavour to protect and improve the environment and to safeguard the forests and
wildlife of the country”.
4
Fundamental duty on every citizen “to protect and improve the natural environment including forests,
lakes, rivers and wildlife and to have compassion for living creatures”.
5
AIR 1992 ORI 225.
6
AIR 1987 SC 1109.
7
AIR 1987 AP 171.

4
Article 378, they are being treated by judges almost on par with fundamental rights. For

example, in relation to Article 48A, the language of this Article has guided the courts9.

Imposing a social obligation, Article 51(A) (g) thus emphasizes that preservation of the

environment and keeping the ecological balance intact is a task not only of the

government, but also of every citizen of India. This provision of Fundamental Duty

actually flows from the ‘World Charter for Nature’ adopted by the General Assembly on

28 October 1982. The Charter recognizes the rights of individuals and NGOs by

providing that all persons shall have access to means of redress when their environment

has suffered damage or degradation. The Charter also imposes a corresponding duty upon

persons to ensure that objectives and requirements of the Charter are met.

III. Fundamental rights and the Environment:

The Golden Triangle of the Indian Constitution - Article 14, Article 19 and Article 21 -

has been invoked time and again for environmental protection. The High Courts and

Supreme Court of India have read the right to a wholesome environment as a part of the

right to life guaranteed in Article 21 of the Constitution of India.10 In the Dehradun

Quarrying Case11, though the orders did not articulate the fundamental right to a clean

and healthy environment, the petition was treated as a writ under Article 3212, which

8
It provides that these principles are not enforceable by any court, but the state must apply these principles
in making laws and they are fundamental in the governance of the country.
9
Virender Gaur v State of Haryana 1995 (2) SCC571; Indian Council for Enviro-Legal Action v Union of
India (Bichhri case) AIR 1996 SC 1146; M.C Mehta v Union of India AIR 1988 SC 1037; Rural Litigation
and Entitlement Kendra, Dehradun v State of Uttar Pradesh AIR 1988 SC 2187.
10
Article 21 provides that: “no person shall be deprived of his life or personal liberty except according to
procedure established by law.”
11
AIR 1985 SC 652.
12
This Article gives the right to move the Supreme Court by appropriate proceedings for the enforcement
of the guaranteed Fundamental Right.

5
implied that the court was seeing this right in the light of a fundamental right. The

Supreme Court explained the basis of this jurisdiction in the later case of Subhash Kumar

v State of Bihar13 where the court held that “the right to life is a fundamental right under

Article 21 of the Constitution and it includes right of enjoyment of pollution free water,

air for full enjoyment of life” and that “if anything endangers or impairs the quality of

life, in derogation of laws, a citizen has a right to have a recourse to Article 32 of the

Constitution for removing the pollution of water or air which may be detrimental to the

quality of life.” This concept has been furthered by the Supreme Court14 and various

High Courts’15 decisions worded differently by concretising the idea of right to a clean

and healthy environment as a part of fundamental rights.

The other integral part of right to life is right to livelihood as enumerated in the Olga

Tellis Case16, which is again a judicial enlargement of the right to life envisaged under

Article 21 of the Indian Constitution. In Olga Tellis the Court looking at the limitation of

the Indian State said that to deprive a person of his right to livelihood would mean

depriving him of his life. The State may not by affirmative action be compellable to

provide adequate means of livelihood or work to the citizens but any person who is

deprived of his right to livelihood by law can challenge the deprivation as offending the

13
AIR 1991 SC 420.
14
M.C.Mehta v Union of India (Delhi Stone Crushing Case) 1992(3) SCC 256; Virender Gaur v State of
Haryana 1995 (2) SCC 577;Chameli Singh v Sstae of UP AIR 1996 SC 1051
15
In Attakoya Thangal v Union of India 1990 (1) KLT 580 it was said “Right to life is much more than the
right to animal existence and its attributes are manifold, as life itself. A prioritisation of human needs and
new value system has been recognized in these areas .The right to sweet water and the right to free air are
the attributes of the right to life .These are the basic elements which sustain life itself.” ; Other such HC
cases are T.Damodar Rao v The Special Officer , Municipal Corporation of Hyderabad AIR 1987 AP 171;
K.C. Malhotra v State of Madhya Pradesh AIR 1994 MP 48 and Hamid Khan v State of Madhya Pradesh
AIR 1997 MP 191; Kinkri Devi v State of HP AIR 1988 HP4; V Lakshmipathy v State of Karnataka AIR
1994 KAR 57;Law Society of India v Fertilizers and Chemicals Travencore Ltd AIR 1994 KER
308;Madhavi v Tilakan 1988(2) Ker LT 730;L.K . Koolwal v State of Rajasthan AIR 1988 RAJ 2;;Arvind
Textiles v State of Rajasthan AIR 1994 Raj 195
16
Olga Tellis v Bombay Muncipal Corporation AIR 1986 SC 180.

6
right to life conferred by Article 2117. Many environmentalists think that the right to

livelihood could be asserted to prevent environmentally disruptive projects that threaten

to uproot tribal people and villagers for depriving their right to livelihood. The recent

agitation by the farmers of Singur and Nandigram in West Bengal and Narmada Bachao

Andolan’s (NBA) campaign against the Sardar Sarovar Dam can be understood in this

perspective. However, industries see a strict environmental regime at loggerheads with

the right to livelihood and clean/healthy environment of the citizens. The argument

forwarded by the industry interests can be rebutted on the grounds that right to clean

environment and right to livelihood are complementary rather than contradictory. If all

industries follow the environmental standards, then the price of products will include all

the external costs which would have to be borne by the consumers. Nevertheless, even

this alternative can be questioned in a third world country like India where most people

are unable to afford costlier products.

Article 1418 can be invoked to challenge government sanctions for projects with high

environmental impact, where permissions are arbitrarily granted without adequate

consideration, for example, of their environmental impacts. Article 19(1) (g)19 provides

that all citizens shall have the right to practice any profession, or to carry on any

occupation, trade or business but with reasonable restrictions which may be placed in the

interest of the general public as provided within section 19 sub clause (6)20, which might

include total prohibition21 . Accordingly, in cases involving polluting industrial units, the

17
Ibid p 194
18
“The state shall not deny to any person ‘equality before law’ or the ‘equal protection of the laws within
the territory of India.”
19
“All citizens shall have the right …to practise any profession to carry on any occupation trade or
business”
20
Abhilasha Textile v Rajkot Municipal Corporation AIR 1988 Guj 57.
21
Sushila Saw Mill v State Of Orissa AIR 1995 SC 2484

7
courts face the task of balancing the environmental imperative with the right to carry on

any occupation/trade or business.

IV. Relaxation of Locus Standi norm in Environmental matters:

Locus standi would mean that a legal standing is required for a party seeking to present a

case before a court for redress. Legal Standing means that the party is competent to ask

for relief as the person has an interest in the case. Traditionally, in civil litigation the rule

was that only a person suffering injury could sue for damages. But in cases of public

nuisance individuals and organizations who have not suffered harm could ask for the

relief of injunction and declaration or other appropriate relief under Section 91 of the

Civil Procedure Code. Earlier, besides the provisions in the Indian Penal Code relating to

environmental pollution, Section 133 of the Code of Criminal Procedure could also be

invoked in environmental pollution when it amounted to public nuisance22. Hence it was

not easy to establish an interest in a public law claim such as in cases of environmental

matters. Later developments in environmental law through legislation enabled any person

to institute criminal prosecution. Though India's higher courts and, in particular, the

Supreme Court have often been sensitive to the grim social realities, and have on

occasions given relief to the oppressed, the poor do not have the capacity to represent

themselves, or to take advantage of progressive legislation. To reaffirm the Indian

tradition of voluntary social action, the Supreme Court, in 1982, conceded that unusual

measures were warranted to enable people the full realization of not merely their civil and
22
One of the first cases in environmental pollution was ‘Ratlam Municipality case’ where the trial court
had directed the Municipality to remove the public nuisance and completely looked over the argument of
non-availability of fund. Another fact to be noted is the petitioners where residents of a locality who were
angered by non-action of the municipal authority.

8
political rights, but also the enjoyment of economic, social, and cultural rights, in PUDR

[People's Union for Democratic Rights] vs. Union of India23. It recognized that a third

party could directly petition, whether through a letter or other means, the court and seek

its intervention in a matter where another party's fundamental rights were being

violated24. Thus, the court acknowledged that it had jurisdiction to advance the rights of

the disadvantaged and poor though this might be initiated by individuals or groups who

themselves claimed no disability. This new form of legal action was termed Public

Interest Litigation (PIL) or Social Action Litigation25. PIL might be employed where

collective rights are affected though there might not be any direct specific injury to any

individual or member of the public or enforce the rights of group of people who are

directly injured by an act or omission but are unable to approach the court because of

being in a certain disadvantaged position. The Supreme Court of India opened the

floodgates to PIL in an attempt to refurbish its image that had been tarnished by some

decisions during the period of the Emergency which led to gross violation of human

rights, thus shaking the very basis of separation of power and confidence of the public in

relation to independent functioning of judiciary.

It should be noted that it was a proactive judiciary, which took up questions of policy.

When the realization dawned on the judiciary that law was becoming a profit-driven

profession and was becoming “elitist”, Justices Bhagwati and Krishna Iyer of the

Supreme Court submitted a ‘Report on National Juridicare’ in 1977, recommending the

23
1982 (2) S.C.C. 253
24
Justice P. N. Bhagwati one of the pioneers of this concept summarized it concretely in S.P.Gupta v Union
of India, (AIR 1982 SC 149) as “Where a legal wrong or a legal injury is caused to a person or to a
determinate class of persons...and such a person or determinate class of persons is by reason of poverty,
helplessness or disability or socially or economically disadvantaged position, unable to approach the court
for relief, any member of the public can maintain an application for appropriate direction…”
25
See U. Baxi, ; “ Taking Sufferings seriously : Social Action Litigation and the Supreme Court”; 29
International Commission of Jurists Review ; ed 1982;p 37-49

9
need for an extraordinary form of litigation thereby sowing the seeds for the liberalisation

of locus standi giving the Courts ‘epistolary jurisdiction’. Conservative judges saw PIL as

violating the concept of separation of power. PIL is characterized by a non-adversarial

approach, with the participation of amicus curiae26, appointment of experts27, monitoring

committees28 by the court, and the issue of detailed interim orders in the form of

continuous mandamus under Article 32 and 226 by the Supreme Court of India and the

High Courts of the States respectively29. In the field of the environment what was initially

started by the Rural Litigation and Entitlement Kendra V. State of U.P. case30, where the

Supreme Court entertained the case under Article 32, ordered the closure of the limestone

quarries in the Mussorie Hills, which created imbalance to the ecology and hazard to a

healthy environment, adversely affecting the safety and health of the people living in the

area; was continued by the Mehta series cases31. In the Oleum Gas Leak case32 the court

granted locus standi to the petitioner. The court held that the exceptions in the rule in

Rylands v Fletcher, like the natural use of the land, are no longer applicable in India in

cases of industries engaged in ‘hazardous or inherently dangerous’ activities and laid

down the ‘absolute liability’ principle overshadowing the ‘strict liability’ principle.

Absolute liability for the harm caused by an industry engaged in hazardous and

inherently dangerous activities became a newly formulated doctrine, free from

the exceptions to the strict liability rule. Thus, in a passive way, the right of

26
T.N.Godavarman Thirumulkpad v Union of India 1997 ( 3) SCC 312.
27
M.C.Mehta v Union of India ( Shriram Gas Leak Case) AIR 1987 SC 965
28
Rural Litigation and Entitlement Kendra , Dehra Dun v. State of Uttar Pradesh (Dehra Dun Quarrying
Case) AIR 1988 SC 2187
29
See Justice B.N. Kirpal; “Developments in India relating to environmental justice”;
http://www.unep.org/dpdl/symposium/Documents/Country_papers/India%20.doc.
30
AIR 1985 SC 652.
31
Mr. M.C. Mehta was a public spirited lawyer not affected by “injured” in these cases.
32
AIR 1987 SC 965.

10
citizens to live in a wholesome and healthy environment was recognized and

steps were taken to protect them from the hazards of polluting industries. In the

Ganga River case33 and the Taj Mahal Trapezium case34, the Supreme Court clearly

indicated that industries, which could not abide by the environmental standards, should

be immediately closed. The issue of Mehta not being a riparian owner (living on the river

side) and thus could not be granted standing to move for prevention of nuisance for

pollution in the river Ganges was negated by the court, where it was held that it was

reasonable to allow any person to take proceedings on behalf of the community at large.

V. Environmental Law Principles-

The Indian courts have successfully adopted specific environmental law principles from

international environmental law jurisprudence and have combined a liberal view towards

ensuring social justice and the protection of human rights. These principles have been

incorporated in the Indian environmental jurisprudence and play a key role in decisions

of judges even when not explicitly mentioned in the concerned statute. The principles of

Indian environmental law are resident in the judicial interpretation of laws and the

Constitution, and encompass several internationally recognized principles, thereby

providing some semblance of consistency between domestic and global

environmental standards.

1. Precautionary Principle:

A new principle for guiding human activities, to prevent harm to the environment and to

human health, has been emerging during the past 10 years. It is called the "principle of

33
AIR 1988 4 SCC 471.
34
AIR 1997 SC 734.

11
precautionary action" or the "precautionary principle" in short. This principle is

controversial and its definition varies in terms of viewpoint. Environmentalists and

consumer advocacy organizations that demand bans and restrictions on industrial

practices or products would want policy-makers to take no action unless they would do

no harm. States and advocates of economic development argue that the lack of full

certainty is not a justification for preventing an action that might be harmful. In India, for

the first time in Vellore Citizens’ Welfare Forum v. Union of India35 , the Supreme Court

explicitly recognized the ‘precautionary principle’ as a principle of Indian environmental

law. In S. Jagannath v Union of India (Shrimp Culture Case)36 , the Supreme Court

Bench headed by Justice Kuldip Singh required the authority to deal with the situation

created by the shrimp industry and issued remedial directions consistent with the

precautionary and polluter pays principles. In A.P. Pollution Control Board v Prof M.V.

Nayudu37, the Court drew out the development of the precautionary principle in clear

terms. In the Narmada Bachao Andolan v Union of India38, the Court explained that:

“When there is a state of uncertainty due to the lack of data or material about the extent

of damage or pollution likely to be caused, then, in order to maintain the ecology balance,

the burden of proof that the said balance will be maintained must necessarily be on the

industry or the unit which is likely to cause pollution.” Refusing to apply the

"precautionary principle" used in cases dealing with inherently polluting activities such

as heavy industries, the Court accepted the contention of the respondents that the project

would have a positive impact by arresting the ecological degradation presently taking

35
AIR 1996 SC 2715
36
AIR 1997 SC 811
37
AIR 1999 SC 812
38
AIR 2000 SC 3751

12
place in the drought-prone areas of Gujarat and Rajasthan, leading to sustainable

agriculture and spread of green cover. The generation of hydropower would avoid the air

pollution that would otherwise take place by thermal generation.

The movement towards adopting the precautionary principle has definitely widened the

scope of corporate accountability, but the interpretation taken by the court mitigates the

relevance and incorporation of this principle in Indian Jurisprudence.

2. The “Polluter Pays” Principle:

The Supreme Court with the introduction of the principle of absolute liability in M.C

Mehta v Union of India39 calculates environmental damages not on the basis of a

claim put forward by either party, but through an examination of the

situation by the Court, keeping in mind factors such as the deterrent nature

of the award. . This rule has been endorsed in Indian Council for Enviro-Legal action v

Union of India40 and Vellore Citizen’s welfare Forum v Union of India.41 However, the

Supreme Court held recently that the power under Article 32 to award

damages, or even exemplary damages to compensate environmental harm,

42
would not extend to the levy of a pollution fine.

3. Sustainable Development and Inter-generational Equity:

In Narmada Bachao Andolan v. Union of India43 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.” Earlier in the Vellore Citizen’s

39
AIR 1987 SC 965
40
AIR 1996 SC 1446
41
AIR 1996SC 215
42
See M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997.
43
2000 (10) SCC 664

13
Welfare forum v Union of India 44, the traditional concept that development and ecology

were opposed to each other was rejected and sustainable development was adopted. In the

Taj Trapezium case this principle was accepted and again it was said that development of

industry is essential for the economy of the country but at the same time the environment

and ecosystem has to be protected.

In State of Himachal Pradesh v. Ganesh Wood Products45, the Supreme Court invalidated

forest-based industry, recognizing the principle of inter-generational equity as being

central to the conservation of forest resources and sustainable development. In the CRZ

Notification case 46 the courts carried forward the concern for sustainable development by

expressing its concern at the adverse ecological effects, which will have to be borne by

future generations.

4. Public Trust Doctrine:

The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath47, states that

certain common properties such as rivers, forests, seashores and the air were

held by Government in Trusteeship for the free and unimpeded use of the

general public. Granting lease to a motel located at the bank of the River Beas

would interfere with the natural flow of the water and that the State Government

had breached the public trust doctrine. The Supreme Court enunciated Professor

Joseph Sax’s doctrine of public trust in this case to further justify and perhaps extract

state initiative to conserve natural resources, held that the state, as a trustee of all natural

resources, was under a legal duty to protect them; and that the resources were meant for

44
AIR 1996 SC 2715
45
AIR 1996 SC 149
46
Indian Council for Enviro-Legal action v Union of India 1996 (5) SCC 281.
47
1997(1) SCC 388.

14
public use and could not be transferred to private ownership. This doctrine was further

reiterated in M.I Builders Pvt Ltd v Radhey Shyam Sahu. 48

VI. Conclusion:

The Indian Judiciary, which faces inherent problems, has nonetheless, through its

landmark and unconventional decisions, clearly showed its concern for the protection of

the environment. The efforts of the highest court in environmental pollution control

through public interest litigation (PIL) is indeed laudable particularly when the legislature

is lagging behind in bridging the lacuna in the existing legal system and administration is

not well equipped to meet the challenge. However, these efforts should be streamlined

and made uniform. Projects that hamper the environment should not be given the go-

ahead on economic considerations alone if they violate environmental norms.

Judicial activism in India provides an impetus to the campaign against

environmental pollution. Public Interest Litigation (PIL) has come to stay in India. The

path for people's involvement in the judicial process has been shown. If this had

not been done so, the system would have collapsed and crumbled under the

burden of its insensitivity.

However, the environmental activism in India cannot perhaps be attributed to the whole

judiciary but only to a few judges. This clearly dampens the impact of this movement

within the judiciary. Efforts should be made within the system to make the judges realize

the importance of a right to a clean and healthy environment from the highest to the

lowest level.

48
AIR 1999SC 2468.

15