Right to Clean and Safe Environment: A Critical Analysis of Climate Justice in India

I. Introduction

The Constitution of India, being the Supreme law of the land, becomes the source of legitimacy for each and every law prevailing within the territory of India.² Each and every legislative action must duly comply with the standards of validity laid down in the Constitution or else, the law would be struck down as unconstitutional.³

The Constitution also acts as the guiding light for various steps that the Government is expected to take for the betterment of the people as well as for the betterment of the society as a whole. The Stockholm conference was a landmark event not just for the Global efforts to conserve the environment, but also for India. It was after the Stockholm conference that various legislations related to specific environment issues were passed and “the Constitution of India was amended to include protection of environment and its improvement as a Constitutional Mandate. The idea of a welfare state includes, inter alia, the duty of the state to provide the citizens with a healthy environment to live in and to ensure that future generations are also given a safe and a healthy environment to grow and prosper.”⁴

The 42nd Amendment to the Constitution of India added a Fundamental Duty that every citizen was expected to follow. It added Article 48-A and Article 51-A(g). Article 48-A has been added to the Directive Principle of State Policy and a mandate has been imposed on the State to “endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”.

“Furthermore, by virtue of Article 51-A(g), a Fundamental duty was imposed on the citizens according to which, the citizens were expected to follow their fundamental duty of protecting and improving the environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.”

The combined impact of the two Articles in the Constitution is that the State as well as the citizens are expected to take all reasonable steps as possible to protect the environment and wildlife from any sort of pollution or harm.

The Constitution, by virtue of Article 253 has already given the Parliament the authority to enact laws so as to be in line with the international commitments entered into by the Indian Government. The legitimacy of various Stockholm Declaration-compliant laws has been derived from this very Article in the Constitution of India. However, the sole existence of these provisions would have been of no use had it not been for the proactive intervention of the Judiciary in matters pertaining to environment conservation.

II. Duty to protect environment

“The Constitution of India imposes a fundamental duty on the citizens of the country to protect the environment by virtue of Article 51-A(g). According to this, it is the duty of every citizen to protect and improve the environment. The limitation of a lack of enforcement power of this fundamental duty was filed by the Hon’ble Supreme Court of India in the case of Nagrik Chetna Manch vs The State Government of Maharashtra and Ors⁵. The Petitioner filed a PIL against Pune Municipal Corporation's decision to build a 60-foot-wide road across afforested hills. The appeal cited a 1982 draft Development Plan for Pune. However, the State Government did not approve the road plan under section 31 of the Maharashtra Regional and Town Planning Act, 1966.

The hills attract walkers due to their verdant landscape and trees. The petition claims that the Municipal Corporation proposed the road without proper research. Over a thousand trees would be cut for the road, though the area is forestland requiring protection. The authority granted under section 205 of the MMC Act cannot override section 31 of the MRTP Act. Articles 48A and 51A(g) stress the protection of forests, including human-made ones. The court found that the Corporation ignored constitutional obligations, such as Articles 48A and 51A(g), and failed to consider its responsibilities under the MMC Act.

III. Public interest litigation and environment

The mechanism of Public Interest Litigation has been the most utilized in the development of Environmental law in the country. Various landmark cases and significant judicial interventions that had led to stricter benchmarks for environmental protection have started when some concerned citizens filed a Public Interest Litigation to address the issue. Public interest litigations (PIL) have been essential in advancing environmental legislation in India. When there has been a severe violation of basic rights, the public interest litigation system can be used to ensure that justice is served. A public interest lawsuit is one that serves the greater good rather than an individual's.

“Any citizen with a concern for the public good is welcome to file a petition under Article 32 of the Constitution. When a person's rights guaranteed by Part III of the Constitution have been violated by an act of the State, the Supreme Court may exercise its writ jurisdiction under Article 32. However, the Supreme Court lacks the authority to hear writs challenging violations of citizens' legal rights.”

Therefore, it is safe to say that a High Court's jurisdiction is much broader than that of the Supreme Court.

IV. Role of judiciary on environmental issues

As civilization advanced, materialism grew, driving industrialization and environmental degradation. India's Constitution includes Articles 47, 48, and 48A to protect ecosystems. Following the 1972 Stockholm Declaration, Article 51(1)(g) emphasized environmental conservation. The Supreme Court played a key role in environmental justice, interpreting laws under the Sustainable Development Doctrine. Public interest litigation (PIL) under Articles 32 and 226 has been vital in protecting the environment. While laws exist, their implementation depends on good governance, with the judiciary leading efforts for sustainable development.

Direct and indirect references to the right to a healthy environment can be found throughout Indian Supreme Court decisions, with the landmark Charan Lal Sahu Etc. vs. Union of India and Others⁶ (commonly referred to as the "Bhopal Case") establishing the first link between environmental quality and the right to life.

Using Article 21 of the Indian Constitution, the Supreme Court ruled in Subhash Kumar vs. the State of Bihar⁷ that a healthy environment, including access to clean water and air, is a fundamental human right. The right to a healthy environment has been deemed fundamental by the Supreme Court.

“In M.C. Mehta vs. Union of India & others⁸, popularly known as the Oleum Gas Leak case, the Supreme Court adopted the novel idea of absolute liability for catastrophes occurring from the storage or use of hazardous products from their facilities. Regardless of who was at fault, the business must make sure nobody gets hurt.”

In Vellore Citizen Welfare Forum vs. Union of India⁹, India's highest court ruled Businesses play a crucial role in every country's economic growth, but to strike a fair balance, they must follow the theory of sustainable development and adhere to the precautionary principle and the polluter-pays principle.

It was ruled by the Supreme Court in M. C. Mehta vs. Kamal Nath¹⁰ that "any disruption of the basic environment elements, namely air, water, and soul, which are necessary to existence would be hazardous to life." This means that in addition to compensatory damages, a court with Article 32 authority may also impose punitive damages for environmental harm.

In Abhilash Textiles vs. Rajkot Municipal Corpn¹¹., the Gujarat High Court ruled that "the petitioners cannot be allowed to harvest profit at the expense of public health." Both environmental protection and economic progress are essential, and neither can be compromised. On the other hand, we need both for a brighter tomorrow. To achieve our aim of leaving future generations with a developed nation free of pollution, it is incumbent upon the Supreme Court and the High Courts to handle these problems with the utmost care.

The location of industries is crucial due to safety risks, with hazardous industries discouraged in densely populated areas, relating to Articles 48A and 51A(g). Sustainable development ensures that growth does not harm natural resources. Public Interest Litigation (PIL) under Articles 32 and 226 has safeguarded the environment. The Supreme Court emphasizes development that integrates production with resource conservation. Industries cannot endanger flora, fauna, or human health, and the judiciary supports sustainable development for both environmental protection and economic growth.

V. Doctrines of environmental pollution: evolving new principles

1. Polluter pays principle

The "polluter pays principle" holds that those causing environmental harm should cover the costs. Although a valid theory, it remains weak at the grassroots level in India. Judicial interpretations exist, but practical implementation is unclear. Industrialization has worsened environmental damage, disrupting ecosystems. Polluters, including companies, should compensate those harmed by their actions. While industrial progress has improved living standards, it has also resulted in pollution, unsanitary waste disposal, and harm to both living and non-living components of the environment.

In Indian Council for Enviro Legal Action v. Union of India¹², the country's highest court upheld the validity of the polluter-pays concept. For instance, "....we are of the opinion that any principle evolved in this behalf should be simple, practical, and suited to the conditions obtained in this country," the court said.

When engaging in an activity that is inherently risky, the person engaging in that activity is responsible for compensating anybody who suffers harm as a result of that action, regardless of whether or not that person used reasonable care. The regulation itself is based on the character of the action being taken. According to India's highest court, "the polluter pays principle" implies polluters must cover the whole cost of fixing any damage they do to the environment, not just the victims' damages. Sustainable Development calls for the polluter to cover the cost of both the victims' medical bills and the price tag for repairing the ecological harm they've caused. One idea of environmental policy is called "the Polluter Pays Principle" (PPP), and it states that polluters should be made to pay for cleaning up their own mess. The initial intent of the Polluter Pays Principle was to establish who is responsible for footing the bill for measures taken to reduce pollution. When the PPP is applied incorrectly, the person considered a "polluter" is invariably someone who is only utilizing his own land and resources in a manner that is not approved by government officials or environmentalists. In cases like this, there is no quantifiable harm and no genuine victims to recompense. Therefore, the amount of compensation is not proportional to the degree of harm sustained. Instead, it is calibrated to limit politically unpalatable action to the degree desired by its critics. Last but not least, the repayment is often provided to the government in the form of a charge, regardless of whether there are actual victims or not. In other words, rather than ensuring that genuine polluters recompense real victims of their activity, the PPP is sometimes exploited to achieve a political or ideological purpose. Its immediate goal is to ensure that all production costs, including any negative effects on the environment, are fully represented in consumer pricing. For the loss of ecology/environment of the afflicted regions and the suffering of the citizens, the Supreme Court of India ordered the Calcutta tanneries to move and pay compensation in M.C. Mehta vs. Union of India¹³ and Ors, citing the instances of Enviro-Legal Action and Vellore Citizens case.

The Vellore Citizens Welfare Forum filed a PIL under Article 32 against pollution by tanneries in Tamil Nadu. The Supreme Court upheld the polluter-pays and precautionary principles, stating that economic benefits don't justify environmental harm. Industries were required to install pollution controls or face shutdowns. “The court ordered the government to immediately implement measures to reduce pollution in accordance with Section 3(3) of India's Environment Protection Act, 1986. The central government was also ordered by the court to set up an authority to deal with the situation brought on by the tanneries and other polluting industries in the state of Tamil Nadu, to implement the precautionary principle and the polluter pays principle, to assess the extent of loss to the ecology and environment and individuals and families caused by the pollution, and to determine the quantum of compensation to reverse the environmental damage. The money would be collected and distributed by the collectors or the district judges. The Court further ordered the establishment of a Green Bench in the Madras High Court to oversee the carrying out of its rulings.”¹⁴ The Vellore Citizens Welfare Forum filed a PIL under Article 32 against tanneries polluting Tamil Nadu’s Palar river. The Supreme Court ordered industries to install pollution controls or face closure.

2. Precautionary principle

The best treatment is prevention. That is the essence of the idea. The term "precautionary" suggests that it is more about preparing for a potential danger in advance than keeping an eye out for it. The problem is that the environment defies such simplistic evaluation. The question is what kinds of safeguards should be put in place, bearing in mind that no court, no matter how vocal it is on environmental concerns, can make policy decisions.¹⁵ Whether you think this is a good or bad thing, the Indian court has tried to usurp power from the administration. How to explain a certain idea is a question worth a million dollars. When an action presents a risk to human health or the environment, precautionary measures should be adopted even if the whole chain of causation is not yet understood scientifically.¹⁶ All parties who might be impacted by a decision need to have a voice in how the Precautionary Principle is applied. There has to be a comprehensive analysis of all potential courses of action, including doing nothing. Precaution, the polluter-pays concept, intergenerational equality, and the public-trust theory are all key tenets of Indian law, as upheld by the country's judicial institutions. The Precautionary Principle has evolved to include a preventive component, whereby government agencies step in before any potential damage may be expected if action is not taken. The precautionary principle is defined well in the Rio Declaration. In fact, while incorporating the Rio meaning of 'Precaution' into Indian law, the Indian Supreme Court relied on aspects of the original term. In order to save the planet, governments must use the precautionary approach to the best of their ability, as stated in the Rio Declaration. Lack of complete scientific confidence should not be utilized to delay cost-effective efforts to avoid environmental deterioration when there are dangers of significant or irreparable harm.¹⁷

David Freestone notes that the precautionary principle alters the significance of scientific evidence in environmental disputes. Even if scientific doubt exists on the impacts of activities, measures should be made to mitigate environmental interference if a hazard has been detected. In order to accurately forecast the extent of environmental harm, a scientific base is required, making science an important and significant factor in risk assessment. However, the response to that danger should not be determined by science, especially the lack of confidence associated with it. It's an approach to decision making that takes into account several potential outcomes in order to reduce the likelihood of undesirable outcomes. The precautionary principle urges prompt action to protect human and environmental health when there is a danger of severe or irreversible damage, with the goal of maintaining the quality of life for present and future generations. The Precautionary Principle has evolved to include a preventive component, whereby government agencies step in before any potential damage may be expected if action is not taken. It took some time for the precautionary principle to be accepted by the international community; its modern public policy formulation dates back only to the early 1950s, when it was known as the "safe minimum standard of conservation."As a reaction to the limitations of public policies based on a notion of assimilative capacity, or the idea that humans and the environment can tolerate a certain amount of contamination or disturbance, the precautionary principle was established in the 1970s as a result of major environmental issues of the 1960s, such as the case of DDT (dichlorodiphenyltrichloroethane).

The Agenda 21 was created by the community of countries during the Earth Summit in Rio de Janeiro, Brazil in 1992.To prevent the degradation of the marine environment, it is necessary to use a proactive and anticipatory rather than a reactive strategy, as discussed in Chapter 17 of said document, which relates to the precautionary notion. This calls for a variety of measures, including but not limited to: precautionary actions; environmental impact evaluations; clean manufacturing processes; recycling; waste audits and minimization; the design and/or renovation of sewage treatment facilities; quality control standards for hazardous material handling; and an all-encompassing strategy for mitigating negative effects on air, soil, and water.¹⁸

As a result of the failure of policy and science to handle complex and unexpected threats and their repercussions for human health and the environment, this hypothesis was developed. Therefore, it has become the current standard for long-term sustainability, public health, and environmental protection. There has been a genuine paradigm shift as a result of this development.

Protection is based on the notion of recognised risk, but the new paradigm is characterized by the incursion of ambiguity. Taking reasonable safety measures requires more than a passing awareness of potential threats; it requires a reasonable suspicion, hypothesis, or dread of them.¹⁹ Act first, then acquire the facts; this is the reasonable approach that has to be flipped from the conventional wisdom. Repeated endorsement of the precautionary principle in international conferences and the legal instruments established there solidified it as customary international law. The Indian Supreme Court's interpretation of the concept as both international custom and Indian law is an excellent example of judicial activism. The precautionary principle is central to the core principles of international environmental legislation, including EIA, EA, and Sustainable Development.²⁰ However, there are not enough provisions in India's environmental law that spell out who is responsible for what when it comes to conducting environmental impact studies and audits. The environmental laws of India need updating so that the most fundamental and important ideas of international environmental jurisprudence may be put into practise. The efforts of scientists may be hampered by the unfounded concerns of a "so-called public spirited" individual. Oftentimes, foreign investment in the area is met with indifference since a new dam or pharmaceutical facility has been constructed near an otherwise barren area.²¹

Insights like this may be gleaned by studying the precedent set by courts on the precautionary principle.²² First, the court often employs the precautionary principle when the underlying circumstances for its application, as defined by the Vellore case, are not satisfied. In addition, the courts are using the preventive principle to provide remedies for recognised (rather than hypothetical) threats. While the courts may make reference to the precautionary principle, they are more likely to be using a wide conception of prevention. Finally, they rationalize a middle ground between economic growth and environmental protection by seeing sustainable development and precaution/prevention as complementary notions. While striking this delicate balance may be essential and unavoidable when dealing with environmental challenges, using the Precautionary Principle permits courts to shift the burden of evidence to the manufacturer, which drastically alters the dynamics of the decision-making process. The court has taken a guiding concept of international environmental law and expanded it, adding layers of imprecision and ambiguity, since in their view it is important wide and imprecise because it is a guiding principle and enforced at the global level. Therefore, opinions are given more weight and the outcomes are less certain. The absence of actual substance also complicates application and implementation and obscures important decisions.

It should be employed systematically, rather than to provide literal meaning to its notion. In trying circumstances, this may have led to the proper application of the concept. Indian courts have applied the precautionary principle to expand their authority. Indian courts have relied on the Precautionary principle to give judges a significant say in shaping the nature of litigations according to their own preferences. It lets the courts legislate one set of ideas while nullifying others. It also gives the courts the ability to become "policy evolution fora," a function for which they are not equipped. “It has long been accepted in India that a judge's own beliefs and values will color the way they rule cases. It is a recognised truth of constitutional interpretation that the content of justiciability evolves according to how the Judge's value preferences respond to the multi-dimensional challenges of the day, stated Justice Chandrachud in State of Rajasthan v. Union of India.²³ The Indian Supreme Court has a reputation for being stacked with elitists from the middle classes.” Therefore, it is believed to be more welcoming of their social and value choices (such as the right to a clean environment above the right to livelihood) as well as their preferred method of reasoning (technical rather than social) and those who share these views.²⁴ “While the outcomes in the cases considered in this chapter are generally favorable, the discretion that courts have given themselves through the use of expansive definitions of the precautionary principle is deeply problematic for environmental governance and the development of a clear, consistent line of environmental jurisprudence that promotes certainty, preference, and predictability.” A cautious stance is the greatest protection against an unknown assault, as seen above, but this should not be confused with "over sensitivity."

3. Public trust doctrine.

Public trust, in the context of the law, means an objectively motivated trust. Its primary goal is the general good of society, not the personal gain of any one individual. This component of the study will include both historical and theoretical discussion of the development of the public trust theory.²⁵ A parallel effort is made to maintain it on the periphery of the Indian judicial system's application of this Principle. Its formation in Indian settings is also made clear by considering its worldwide roots. Remembering that it is a time-tested phenomena that has been shown to successfully adapt to shifting demands and requirements is necessary before moving on to the implementation arena, in this case, its application in the Environmental Statutory Context. The notion of public trust serves to remind us that the government is accountable for maintaining resources in a reasonably equitable state that have been designated for public use. The concept of communal land ownership was central to our old legal system.²⁶The Sovereign (King) was constrained in his ability to use these assets anyway he saw fit by the need to balance his personal preferences with the greater good. Under Kautilyan Jurisprudence, the woods were considered communal property, and tree cutters were punished severely. However, the Common Law concept that the Sovereign owns all property and may dispose of it as they see fit was brought over from England during the monarchy's tenure. This meaning quickly became ingrained in Indian law, as shown in the phrase "eminent domain." The judicial system's constitutional provisions that permit the confiscation of private property also provide weight to this view.²⁷ This seems to imply that the Indian government may purchase private property if a legislation exists to do so. The second implication is that the government has complete control over all natural resources, including parks, forests, etc., and may do whatever it pleases with them. As a result of this doctrine, the government may sell a forest to an individual without facing legal repercussions.²⁸ Governments often yield to private pressure, selling environmentally significant land like forests and parks, risking irreversible damage. No constitutional provision explicitly protects against the sale or conversion of such natural resources. Article 48A is only a directive principle, offering limited protection. The public trust theory restricts the government's authority over public trust property, ensuring it remains accessible for specific natural uses. Citizens cannot acquire unrestricted private titles to public trust land, but they can demand protection of these resources. The judiciary plays a vital role in safeguarding the environment by nullifying harmful governmental actions.

VI. Conclusion

The Indian Constitution provides a strong foundation for environmental protection through various provisions, including Articles 48A and 51A(g), which impose duties on both the state and citizens to safeguard the environment. The 42nd Amendment and subsequent judicial interventions have further strengthened the framework, emphasizing the importance of sustainable development. Public Interest Litigations (PILs) have played a pivotal role in advancing environmental law, enabling citizens to challenge harmful actions through Articles 32 and 226. While the judiciary has been proactive in applying the Polluter Pays and Precautionary Principles, there remain challenges in enforcement, particularly at the grassroots level.

The public trust doctrine, rooted in historical legal principles, asserts that the government holds natural resources in trust for the public. This doctrine limits the government's authority, ensuring resources like forests and parks are preserved for public use and not subject to arbitrary conversion. However, the lack of explicit constitutional provisions to prevent the sale of such resources highlights the need for stronger legal protections. Overall, the judiciary has acted as a crucial guardian of environmental rights, balancing economic growth with ecological conservation, and ensuring that future generations inherit a safe and sustainable environment.

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