Wielding the Gavel for a Greener Future: The Power of Judicial Review in Safeguarding the Environment

I. Introduction

‘Save Environment, Save Future’ seems as the gospel of the entire universe in the 21st century plagued by environmental degradation. Deterioration of the Mother Earth due to population explosion, industrialization, urbanization, poverty, deforestation, unsustainable developmental plans etc, has aggravated environmental pollution and gravely endangered every life source. Contamination of the nature through addition or introduction of materials which are hazardous and harmful resulting the environment to alter in a non-favourable manner is environmental pollution. India has been dealing with severe environmental issues and is not exempt from the problem of environmental deterioration. Environment induced diseases are on the rise causing suffering and death of large number of people.

“It is for the judge to give meaning to what the legislature has said and it is this process of interpretation which constitutes the most creative and thrilling function of a judge.” - Chief Justice P.N. Bhagwati²

To tackle these problems law has been invoked. Under the legal framework in India, constitutional status has been accorded to environmental protection by the 42nd Constitutional Amendment 1976 by insertion of Articles 48A and 51A (g) in the Constitution of India. State is responsible under “The Constitution of India” in order to make sure that environment is protected and improved and that the flora and fauna of the country is safeguarded.

Parliamentarians in India have earnestly responded to environmental issues and enacted various environmental legislations ranging from forest preservation, wildlife protection, water and air pollution control, protection of biodiversity etc., to an all-comprehensive environmental protection law.³

The Indian judiciary demonstrated a willingness to exercise its power when the state's political and executive institutions failed to successfully carry out their constitutional duties. One phrase that has been used to characterize this readiness is "judicial activism" .The 1980s saw a dramatic change in the Indian legal system, especially in the field of environmental law, as it moved away from an inert mindset and shifted towards the investigation of novel approaches to social justice. This was a period characterized by judicial, legislative, and administrative activism. A subset of this is environmental activism, which has become quite trendy in India. One cause for judicial activism regarding certain environmental situations is the loosening of the idea of locus standi, which allows the general public to reach the Court under “Articles 32 and 226 of the Indian Constitution”.

Furthermore, the recognition of environmental rights as a “fundamental right under Article 21 (Right to Life) of the Indian Constitution” has given the constitutionally protected right to a hygienic and safe environment. For the most part, Indian environmental legislation has evolved during the last three decades, with major polarization in the final two decades.

II. Meaning of environment and pollution

The environment, being a complex system composed of natural and artificial elements that are interconnected. These elements impact the environment based on societal lifestyles, including natural, social, and cultural aspects that vary over time and location. Many human-made things contribute which together make the environment.

(i) According to Goudie, “Environment is the representative of physical components of earth, wherein man is the important factor influencing his environment”.

(ii) According to P. Gisbert, “Environment is anything immediately surrounding an object and exerting a direct influence on it”.

III. Judicial activism

Judicial Activism is when the court uses creative thinking to come up with new, creative and improved legal principles. This approach involves progressive judicial thinking to address complex socio-economic issues in today's society.

Justice Anand had said that “judicial activism in the strict sense cannot be excluded from the role of the courts as it is truly Judicial Creativity”. Justice P.N. Bhagawati while explaining judicial activism has stated that “in interpreting the fundamental rights, judiciary in India has adopted an activist goal-oriented approach thereby expanding the frontiers of rights and rewritten certain parts of the Constitution”⁴ .The internal functioning of the executive and legislative organ of the government can be reviewed through the movement of judicial activism.

In Independent India, the study of judicial culture, judicial review, and legal advocacy has become a significant area of interest. The judiciary's influence on environmental legislation and policy in India is well-documented and has not been hindered by legal or administrative inconsistencies.

India plays a crucial role in the global climate puzzle. “It houses close to twenty percent of the world’s population, 2.4% of the world’s land area, 7%–8% of all recorded species, including over 45,000 species of plants and 91,000 species of animals”⁵ “Over 650 million Indian people depend on climate-sensitive sectors like agriculture and forestry for their livelihood. The minimum and maximum temperatures are projected to increase by two to four degrees Celsius during the 2050’s in the northern part of the country and by over four degrees Celsius in the southern part of the country”.⁶

India, in this sense has been treading a path of empathy towards citizenry at large, and activism towards legal issues discountenanced by the Legislature, by the Judiciary, for long. The country has a long history of public interest litigation which has included landmark climate change litigation cases. It has more relaxed standing rules—such as the public interest litigation dealt with below—and the Judiciary is a dynamic, interventionist actor which can grant itself a continuing mandate to monitor the implementation of their decisions.

As Prof. Weiss puts it, “conservation, however, always takes a back seat in times of economic stress”. It is now widely accepted that everyone has a right to a healthy environment that promotes their wellbeing. Along with this right comes the responsibility to conserve resources so that both current and future generations can benefit equally⁷. “The country has a long history of public interest litigation which has included landmark climate change litigation cases. It has more relaxed standing rules—such as the public interest litigation dealt with below—and the Judiciary is a dynamic, interventionist actor which can grant itself a continuing mandate to monitor the implementation of their decisions”.⁸

IV. The catalyst groups

Many individuals and groups have played a significant role in creating environmental law. The main contributors for the development includes:

a) Judges - Some liberal judges worked on creating mechanisms to prevent human rights violations through judicial activism, despite facing opposition within the judiciary for potentially violating the separation of powers principle.

b) Lawyers, especially M C Mehta, have made substantial contributions to environmental jurisprudence by filing a series of cases and continuing to do so.

c) Non-Governmental Organizations (NGOs) have taken legal action on various occasions to address human and environmental rights violations. Their role in raising environmental awareness in society and influencing public policies has been crucial.

d) Individuals - Although not numerous, dedicated individuals have consistently raised awareness about municipal inaction, contributing to the promotion of activism.

e) Legislature - The Indian legislature has passed various significant environmental laws, such as “the Environmental Protection Act of 1986”, “the Air (Prevention and Control of Pollution) Act of 1981”, “The Wild Life (Protection) Act of 1972”; “The Public Liability Insurance Act of 1991”; “The National Environmental Tribunal Act of 1995” and many others seek safeguard of the environment, flora and Fauna.

V. Judicial activism: our duty against legislative venturesome

A sitting justice of the Supreme Court stated that judges had a sacred duty to restrain "legislative adventurism and executive excesses" in an atmosphere of unease created by the president and legislature's jabs at judicial activism. Justice Kurian Joseph emphasized the necessity of judicial activism amid a low-key conflict involving the judiciary, legislature, and government over various issues, particularly the statute pertaining to the National Judicial Appointments Commission and the long-stalled Judicial Integrity and Accountability Bill.⁹

(A) Key role of judiciary in protection of environment

The judiciary plays a significant part in protecting and conserving the environment by ensuring the rule of law and finding a balance between ecology and development. Judicial activism has a positive influence on environmental law, as the judiciary takes on responsibilities usually handled by the executive branch. The judiciary should be acknowledged for its efforts in promoting sustainable development, as it has recognized a pollution-free environment as a fundamental human right for all citizens stated in Article 21 of the Constitution. Through different doctrines, principles, and initiatives, the judiciary consistently strives to maintain a sustainable equilibrium in society.

The judiciary also plays an important role in protecting the environment by enforcing the law and finding a stability between ecology and development. Judicial activism in environmental law has a positive impact, with the judiciary taking on responsibilities usually handled by the executive branch. The judiciary deserves recognition for promoting sustainable development by declaring a pollution-free environment as a fundamental right for all citizens under Article 21 of the Constitution. Through different doctrines, principles, and initiatives, the judiciary consistently strives to maintain a sustainable balance in society. There are various principles of sustainable development are emphasized to safeguard and enhance our environment, as well as the fundamental right to life essential for human survival which are as follows:

1. Doctrine of Proportionality Of Risk -The apex court developed this doctrine in the case¹⁰.This theory believed that it is necessary to avoid a greater harm a wrong can be committed which can be protected under this doctrine.

2. Precautionary Principle- This theory believes in “prevention is better than cure”. The main objective of the precautionary principle is to safeguard the environment from any activities that may endanger its preservation. This is also highly appreciated and adopted in the international sphere. So far India is concerned this particular principle used a lot to avoid environmental pollution or degradation.

3. Polluter Pays Principles- “If anyone intentionally spoils the water of another….let him not only pay damages, but purify the stream or cistern which contains the water…” –Plato

This PPP act as a guiding principle to avoid environmental degradation. According to this the polluter should bear all the costs for the damage which has been done by him to the environment and also repair the damage. This PPP is one of the most prominent and important principle in the society. The Supreme Court of India, in the case.¹¹Recognized the polluter pays principle as a crucial aspect of sustainable development.

4. Absolute Liability Doctrine- Under this doctrine the offender is liable for polluting environment absolutely without any defence. In the landmark case, The Supreme Court of India introduced the ideology of absolute liability. According to this doctrine, if a company is involved in activities that are intrinsically dangerous or hazardous, it is fully responsible for any harm caused by accidents during these operations.¹²

(B) Judicial Decisions

One of the leading cases in upholding environmental protection under the impact of judicial activism has been discussed in a case¹³ wherein the Supreme Court identified that “the local bodies are responsible to protect the environment. The Municipality had failed to discharge its duty of constructing drains and public latrines on the plea of financial constraint. It was held that if the municipality is to justify its existence, then it cannot evade from providing proper drainage system in working conditions which would sufficiently meet the needs of the people. Municipality was directed by the Apex judiciary to construct proper drainage system for maintenance of health and preservation of sanitation and environment after an on-spot visit was conducted by Justice Krishna Iyer to assess the nature of environmental problem in Ratlam town. This case proclaimed that decent living is a public right”.

In the Taj Mahal Pollution case¹⁴, “The Supreme Court has ruled that all industries in the Taj Trapezium Zone (TTZ) must use natural gas instead of coke/coal as an industrial fuel. Industries unable to access natural gas must cease operations and move elsewhere. This decision aims to balance environmental concerns with economic development. The court's intervention protected a nationally significant monument from environmental harm, fulfilling the State's constitutional duty to safeguard important objects, places, and monuments in India”

Gas leak in Shriram factory case,¹⁵ “In 1986, the Oleum gas leak from the Shriram Food and Fertilizer factory in Delhi. The Supreme Court ruled that the management must compensate the victims of the gas leak. This case established the concept of "absolute liability" for hazardous chemical manufacturers to compensate all those impacted by accidents. It was the first time victims received compensation in such a case”

Construction in Silent Valley,¹⁶In 1980, The Kerala High Court denied a petition from the Society for the conservation of the Silent Valley that requested a halt to the construction of a hydro-electric project in the valley. Despite the unfavourable ruling, environmentalists were able to successfully prevent the project through active lobbying and grassroots efforts.¹⁷ Governance operates at multiple levels and involves various actors. It includes structures and processes for making policies and decisions, taking responsibility, and ensuring accountability. The judiciary is guided by a shared vision as the protector of the rule of law.

The 2030 Agenda places justice and the environmental rule of law at the heart of development. Within the justice element, especially SDG16 (target 16.3), access to fair justice systems and accountable institutions of democratic governance are integral to achieving sustainable development. In this reference, the environmental rule of law is present in institutional values and practices.

In a case in 1980, ¹⁸the tribunal in Delhi addressed violations of environmental norms by diaries. It was claimed that waste generated by the diaries was being dumped into drains that flowed into the Yamuna River, contaminating its water. The tribunal found that livestock was the source of methane, leading to an increase in surface temperature. The NGT instructed the Delhi Pollution Control Committee to fulfil its legal obligations by stopping pollution-causing activities, holding polluters accountable, and providing compensation as required by law. Additionally, the Central Pollution Control Board was directed to create guidelines to promise that diaries in India comply with environmental norms. Both organizations were asked to submit their reports to the tribunal.

“Livestock is a major source of methane emissions. Methane is 20 times more potential than carbon dioxide in terms of its warming potential. The NGT has increased awareness by connecting methane emissions to livestock, creating a narrative about climate sustainability. As a result, necessary measures have been implemented to safeguard the environment and public health”.¹⁹

Climate accountability is witnessed in construction project cases. The construction industry consumes enormous resources and has a significant energy footprint. “Globally, the sector accounts for 40% of greenhouse gases. Domestically, the construction sector emits 22% of India's total annual carbon-dioxide emission.²⁰ The regulatory authorities did not properly handle the evaluation, assessment, or monitoring of the environmental and long-term sustainability impacts of these construction projects”.²¹

Supreme Court in a recent case²², stated that it is crucial for the Legislature, the Executive, and policymakers at both the Union and State levels to acknowledge the environmental damage caused by unplanned development. They must take action to prevent further harm to the environment. The court emphasized the need for a stability between sustainable development and environmental protection. It was suggested that provisions for Environmental Impact Assessments be made mandatory before allowing urban development. In the present scenario, Environmental Impact Assessments are only required for specific projects.

To protect the plants and animals in Eco Sensitive Zones and Protected Areas from fast mining activities, the Supreme Court in the case²³, has extended its previous ruling which banned mining within National Parks and Wildlife Sanctuaries (known as Prohibited Areas). The court now prohibits mining within 1 km of the distance of the Protected Area.

VI. Conclusion

Environment and development go hand in hand and cannot be sacrificed for one another. Both are crucial for our future. Despite its flaws, the Indian judiciary has shown a strong interest in protecting the environment through ground-breaking judgments. The Supreme Court's efforts in managing environmental pollution through Public Interest Litigation (PIL) are commendable, especially when the legislature is slow to update the legal framework.

In the face of inconsistent policy-making and executive inaction, the judiciary has taken on an activist role by deviating from its traditional functions and contributing to the growth of environmental jurisprudence. This includes applying international principles to solve domestic environmental issues, appointing expert committees, and monitoring the implementation of judicial decisions. As environmental problems become more complex, the judiciary has recently developed new principles to address them. However, there are still gaps in protecting environmental sustainability, such as flaws in the PIL system, conflicting interests between the judiciary and social obligations, and a lack of awareness about sustainability. These gaps need to be identified in order to achieve a healthy environment. In conclusion, despite limitations, the judiciary has played and will continue to play an important role in protecting and preserving our environment. These gaps need to be identified in order to achieve a healthy environment.

a) Both environment as well as development should be given equal importance.

b) Efforts should be made to raise awareness in society.

c) People's mind-set should to be moulded.

d) Environmental education should be promoted.

e) Administrative accountability should be strengthened.

In conclusion, despite limitations, the judiciary has played and will continue to play an important role in protecting and preserving our environment.

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VII. References

1. Abraham, C.M.; Environmental Jurisprudence in India, 1999. Kluwer Law International Bakshi, P.M., Public Interest Litigation., 2004, Ashoka Law House.

2. Chandra Pal., Environment Pollution and Development: Environmental Pollution Policy and Judiciary. 1999, Mittal Publications, New Delhi.

3. Desai, Ashok. A., Environmental Jurisprudence, 2002, Modern Law House

4. Divan, Shyam. & Rosencranz, Armin., Environmental law and policy in India., 2001.,Oxford University Press.

5. Diwan ,Paras, Diwan, Peeyudhi., (edited), Environment Administration, law and Judicial Atitude,1997, Deep and Deep Publications 6. Jain, M.P., Indian Constitutional law, 2020, Lexis, Nexis Butter Worths Wadhwa Nagpur

6. Dr. N. Maheswara Swamy. (2000). Constitutional Provisions and Role of Judiciary in protecting environment from pollution - An appraisal. Andhra Law Times, Vol. CVI, 1-8.

7. Hon'ble Mr. K.G. Balakrishnan, Chief Justice of India (Trinity College Dublin, Ireland, 2009) explained the ambit of Judicial review in India, (p. 3).

8. Jariwala, C.M. (1995). Environmental Justice, A Journey from Ratlam Municipality and Prospective.

9. Paramjit S. Jaswal, Directive Principles Jurisprudence And Socio-Economic Justice in India, 543 (1996).

10. Shyam Diwan., Armin Rosencranz.(2012). Environmental Law, and Policy in India (2nd Ed.). USA: Oxford India Paperbacks.

11. R. Venkataramani. (1997). Judicial Review and Environment Adjudication. Law and Justice. Vol.4-7, 181-92.

12. Upendra Baxi (2001), ‘The Avatars of Judicial Activism: Explorations in the Geography of (In) Justice’, in S.K. Verma and Kusum (eds.), Fifty Years of the Supreme Court of India: Its Grasp and Reach. Oxford University Press and Indian Law Institute, Delhi, 156-209.

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Footnotes

1. Author is an Associate Professor at MVN University, India.

2. Chief Justice P.N. Bhagwati Judicial Activism in India. (last visited June 15, 2024), https://media.law.wisc.edu/m/4mdd4/gargoyle_17_1_3.pdf. ↩

3. Jill Cottrell, V. N. Shukla’s constitution of India. 8th EDN. edited by Mahendra P. Singh. [Lucknow: Eastern Book Co.1990. LXIV + A48 + 894 pp. ISBN 81-7012-424-7. rs.200]: International & Comparative Law Quarterly Cambridge Core (2008), (last visited June 30, 2024). https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/abs/v-n-shuklas-constitution-of-india-8th-edn-edited-by-mahendra-p-singh-lucknow-eastern-book-co1990-lxiv-a48-894-pp-isbn-8170124247-rs200/C4708966252EC36F10CCF5DEF78A3408 ↩

4. S.R Myneni, Environmental Law (Asia Law House 2010) 673 ↩

5. India Factsheet, INT’L UNION FOR CONSERVATION OF NATURE, (last visited Oct. 11, 2021) https://www.iucn.org/asia/countries/india. ↩

6. Amit Garg, P. R. Shukla, & Manmohan Kapshe, From Climate Change Impacts to Adaptation: A Development Perspective for India, 31 Nat’l Resources Forum 132 (2007) ↩

7. In Re: T.N. Godavarman Thirumulpad v Union of India And Ors., 6 March, 2024, (1997) 2 SCC 267 ↩

8. Ivano Alogna & Eleanor Clifford, Climate Change Litigation: Comparative and International Perspectives, RESEARCHGATE (March 2020), (last visited July10,2024) https://www.researchgate.net/publication/340455320_Climate_Change_Litigation_Comparative_and_International_Perspectives ↩

9. Krishnadas Rajagopal, Judicial activism is our duty against legislative adventurism: SC judge (last visited July 18, 2024) https://www.thehindu.com/news/national/judicial-activism-is-ourduty-against-legislative-adventurism-sc-judge-kurianjoseph/article7168036.ece ↩

10. G Sundarajan v/s Union Of India, SLP9(c) no 27335 of 2012 ↩

11. Vellore Citizen’s Welfare Forum v. Union of India, 1996 (5) SCC 647 ↩

12. Union Carbide Corporation v. Union of India, 1992 AIR 248, ↩

13. Ratlam Municipal Council v. Vardichand, 1980 AIR 1622, 1981 SCR (1) 97 ↩

14. (2) SCC 353 ↩

15. M C Mehta v. Union of India, AIR 1987 SC 965 ↩

16. Society for Protection of Silent Valley v. Union of India and other AIR 1980 Ker 24 ↩

17. Society for Protection of Silent Valley v. Union of India and other AIR 1980 Ker 24 ↩

18. Nuggehalli Jayasimha v. Government of NCT of Delhi 7 Original Application No. 46/2018, Date of order: 08-07-2019. ↩

19. Global Methane Assessment: Benefits and Costs of Mitigating Methane Emissions, UNEP - UN Environment Programme, (last visited June 30, 2024). https://www.unep.org/resources/report/global-methane-assessment-benefits-and-costs-mitigating-methane-emissions ↩

20. Graham, Peter, and Rajan Rawal. “Achieving the 2°C Goal: The Potential of India’s Building Sector.” Monash University, Taylor & Francis, 108-122 (last visited July 2,2024), research.monash.edu/en/publications/achieving-the-2c-goal-the-potential-of-indias-building-sector ↩

21. N. Ahmed and others, ‘Impact of sustainable design in the construction sector on climate change’ (2020) Ain Shams Engineering Journal. (last visited July 3,2024), https://doi.org/10.1016/j.asej.2020.11.002. ↩

22. Residents Welfare Association & Another v State (Union Territory of Chandigarh) & Others (2023) 8 SCC 643 ↩

23. IN Godavarman v Union of India (2023), Writ Petition (Civil) No. 202/1995 ↩