Environmental Protection And Sustainable Development

Throughout the centuries in India, there has been respect for the environment and this has been reflected in the lives of people and also embodied in our cultures and religion. However in recent times there has been an exponential expansion in environmental degradation mainly because of industrial growth and overpopulation. Throughout the years, indiscriminate exploitation of natural resources has severely affected the environment and as a consequence there has been extensive deforestation, depletion of wildlife and other adverse environmental consequence. [1] 

It has to be stated at the outset that corpus of environmental jurisprudence includes the laws that has been created by statutory instruments as well and judicial pronouncements, concerning the varied aspects of environmental protection and sustainable development. [2] Environmental jurisprudence in India has assumed a place of seminal importance by devising important principles geared towards the attainment of environmental protection and justice and thus has attained an independent and holistic identity free form the outdated British notion of environmental jurisprudence.

In the post-independence period Indian environmental law was mainly restricted to claims of tortuous nature such as nuisance or negligence. There was no environment specific legislation to address the problems of environmental degradation. Most of the scholars trace the growth of Indian environmental jurisprudence to the United Nations Conference on the Human Environment held at Stockholm in 1972. [3] India was a participant to this conference and this conference underlined the need of India and other states to adopt environmental measures which would be essential to deal with the environmental hazards that would be an inevitable consequence of development. In light of India’s international obligations arising from the Stockholm Conference, the Forty-Second Amendment to the Indian Constitution in 1976 introduced explicit principles of environmental protection. Articles 48A and 51A(g) of the Constitution enshrined these environmental protection measures. Article 48A, part of the Directive Principles of State Policy, obligated the State to protect and improve the environment. On the other hand, Article 51A(g) obligated citizens to undertake the same responsibilities. This constitutional recognition of environmental protection was also followed by a number of important legislations geared to deal with specific environmental problems. The Water (Prevention and Control of Pollution) Act of 1974 was the first example of a legislation specifically geared towards environmental protection. Other major enactments which followed in the followed included The Forest (Conservation) Act), 1981 The Air (Prevention and Control of Pollution) Act, and 1986 (The Environment (Protection) Act. [4] 

However as has been pointed out by a leading scholar of environmental law, initially the judicial response to the problems of environment had been far from ideal and the Courts outlook has been considered as insensitive towards environmental issues and problems. However in the last two decades there has been a gradual shift in the attitude. [5] As has been pointed out “the judicial policing is matched by new activists stance and positive role specially after the Bhopal Gas leak tragedy." The concern of the judiciary in safeguarding the environment has and the shift towards an activist stand has been well reflected in the landmark judgment of in M.C. Mehta V. Union of India, [6] where the Hon’ble Supreme Court has declared environment as a basic fundamental right.

The paper will try to explore the development of environmental jurisprudence in India. However the scope of this paper will be primarily restricted to describing the steps taken by the Indian Courts in regards to the environment and how the shift in the attitude of Indian Courts have contributed to the corpus of Indian environmental jurisprudence. The paper will first try elucidating the contribution of PIL in facilitating the development of environmental jurisprudence by the appellate Courts. Then the researcher will try to explain some of the principles formulated by the Courts by illustrating certain landmark judgments where the principles were developed.

PIL and the Expansion of Locus Standi

Prior to 1980s, litigation on India was in its rudimentary form as it could only be initiated by an aggrieved party for the vindication of his/her private interest. However around 1980 a significant change started talking place within the Indian legal framework. This change which can be primarily be attributable to leading personalites such as P.N. Bhagwati and V.R. Krishna Iyer who had a significant impact particularly in determining the path of development of environmental law in India, and this new direction abandoned previous archaic principles and was based on the edifice of social justice. [7] 

The judicial activism demonstrated by the courts can be classified into two distinct spheres i.e. procedural and substantive. However the categorization of judicial innovations into procedural and substantive are neither water-tight nor mutually exclusive. [8] However for sake of convenience this paper seeks to make a demarcation between the procedural aspect which will be explored in this section and substantive aspects which will be dealt with in the next two sections.

This section will attempt to deal with the concept of Public Interest Litigation(PIL) which by relaxing procedural rigidities in the judicial system has provided a mode of redress for socially and economically backwards strata of the in the appellate court of this country. In fact PIL plays a primary role in furthering the principles enshrined in the Preamble of the Constitution as well as the Directive Principles of State Policy and this contribution of PIL has been acknowledged by the highest Court of this land. [9] PIL has enable the poor, illiterate as well as no governmental organizations as well as social action groups and public spirited person to initiate legal action for the furtherance of environmental justice in from of the appellate courts of the country. An important statistic is that out of 104 environmental cases which came before the Supreme Court of India form 1980to 2000, 54 were filed by individuals who were not directly the affected parties and 28 were filed by NGOs on behalf of the affected parties. [10] This suggests that the instrument of PIL has provided an opportunity to the third party to represent on behalf of the affected people and the environment itself.

There is almost unanimous consensus regarding the fact that PIL in India ensured that higher Courts in India get actively drawn into environmental issues by expanding the rule of locus standi , and the departure from the “proof of injury" approach. [11] In other words the expansion of the concept of locus standi led to some important consequences which were particularly pertinent especially in environmental matters. Firstly PIL ensures that there could be several petitioners for the same set of facts dealing with an environmental hazard or disaster, the court was able to look at the matter from the point of view of an environmental problem to be solved, rather than a dispute between two parties. Secondly, as PIL is concerned with the rights of the community rather than the individual it is characterized by a non-adversarial approach, the participation of amicus curiae, the appointment of expert and monitoring committees by the court, and the issue of detailed interim orders in the form of continuous mandamus under Articles 32 and 226 by the Supreme Court of India and the High Courts of the States respectively. Thus the India judiciary has used PIL as a tool for developing environmental jurisprudence as PIL is essentially geared towards addressing public environmental interests which has made environmental law in India more effective. [12] 

Justice Krishna Iyer in particular played a central role in expanding the concept of locus standi in PIL in order to provide a mechanism for redressal for the backward classes. Krishna Iyyer as early as in 1976 propounded the principle of extension of locus standi in the case of Mumbai Kamgar Sabha v Abdul Bhai. [13] In this landmark judgment Krishna Iyer observed that the procedural prescriptions are “handmaids, not mistresses of justice and failure of fair play is the spirits in which Courts must view processual deviations." [14] So this is the earliest case where the process of expansion of concept of principle of locus standi was formulated.

Another landmark case in respect of the expansion of the concept of locus standi is Fertilizer Union Kamnagar Sabha v Union of India. [15] In this case the contribution of Justice Iyer cannot be overemphasized. Justice Iyer observed that the law is meant to play a role of “social auditor" and hence the law should be put into action whenever any individual with related public interest initiates action in furtherance of such public interest. Procedural requirements should not prevent such individuals from initiating action and the fear that bestowing such power might result in frivolous suits and wastage of money should not be considered as a reason for the curtailment of such powers. It is also interesting to note that it is in this particular case that the phrase Public Interest Litigation was first coined. [16] 

However a discussion on the principle of locus stadi in relation to PIL will not be complete without mentioning the comprehensive definition of PIL which was hoven by Justice Bhagwati in SP Supta v Union of India. [17] In this case Justice Bhagwati observed that when the constitutional or the legal right of any person or to a “determinate class of persons" have been violated and if such person or class of persons are unable to approach the court owing to poverty, helplessness or socially or economically disadvantageous position then any member of public can maintain a suit in their behalf in High Court under Article 226 and Article 32 of the Supreme Court respectively. [18] 

The expansion of locus standi enabled the Courts in India to entertain a number of actions related to the environment and the Courts propounded a number of significant principles in these cases. These substantive principles propounded by the Courts will be discussed in the subsequent sections.

The Constitutional Mandates of Enviromental Jurisprudnce

In this section the role played by the Supreme Court in using the Constitutional provisions especially Article 21 in order to provide environment related justice will be evaluated. As has been pointed out by Justice Kirpal “Article 142 afforded the Supreme Court considerable power to mould its decisions in order that complete justice could be done." [19] Hence it assumed a primal position in the Indian environmental legal system by holding that environmental degradation in a number of ways violates constitutional provisons.

Entitlement Kendra v State of UP [20] was the first PIL of its kind where issues related to environment and ecological balance was brought up. Two orders were given by the Court one in 1985 and the other in 1987 in which the Supreme Court highlighted the fact that India citizens have the fundamental of protecting the environment under Article 51A(g) of the Supreme Court. [21] 

The first case that can be discussed in respect to the Courts interpretation of Article 21 is MC Mehta v Union of India [22] or the Oleum Gas Leak Case. A writ was filed under Article 32 on the event of leakage of Olem gas from one of the units Shriram Foods and Fertilizers Industries. The primary issues dealt with in this case was the scope of Article 21 and 32 of the Constitution. The case was referred to a constitutional Bench which observed that in an application for enforcement of right to like a “hyper-technical" approach cannot be adopted which would defeat the goal of justice. Further the Court also observed that the claim for compensation under Article 21 is sustainable. In respect to Artcile 32 the Court observed that the ambit of Article 32 is extremely braod and it allows the Courts to forge new remedies and to formulae new strategies to enforce fundamental rights. [23] 

Chhetriya Mukti Sangharsh Samiti v State of UP [24] was one of the earliest cases where the right to environment was linked to right to life. [25] In this case the Supreme Court unequivocally held that “every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution. Anything which endangers or impairs by conduct of anybody either in violation or degradation of laws, the quality of life or living of people is entitled to be taken recourse of Article 32 of the Constitution. [26] 

Another landmark case that can be mentioned is Indian Council for Enviro-Legal Action v Union of India. [27] In this case writ was filed under Article 32 on behalf of villagers alleging that dangerous chemicals were being emmited by private companies and this violated the right to life of the villagers. The Court found that the sludge released by the companies was toxic in nature and it made the water in the wells and streams unfit for human consumption. The Court held in this instant case that if Companies flagrantly violated the right to life of individuals then the Court has a right under Article 32 of the Constitution to intervene to protect the right to life and liberty of the citizens.

Similarly in Subhash Kumar v. State of Bihar, [28] the Court observed that “The right to live is a fundamental right under Article 21 of the Constitution, and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution…" [29] 

Another important judgment that has to be discussed in this regard is MC Mehta v Union of India. [30] In this case it was alleged that the foundries, and hazardous industries as well as efinaries in Mathura where emitting sulphur dioxide which when combined with oxygen in the presence of atmospheric moisture was transformed into sulphuric acid or acid rain which was corroding the marbles of the Taj Mahal. A PIL was filed accordingly and it was further contended that refinary emissions, vehicular traffic, etc polluted the ambient air around the Taj Trapezium(TTZ). The Supreme Court held that the emissions resulted in the violation of the right to life of people living in the TTZ and also damaged a prestigious monument like the Taj.

The Role of the Supreme Court in devising Environmental Principles to Protect the Environment

The last section of the paper will try to briefly explore the plethora of different principles which have been borrowed by the apex court and fashioned to suit the specific needs of the country and also the principle of absolute liability which was a remarkable innovation of the Supreme Court aimed at safeguarding the health and safety of communities as well as the environment.

Sustainable development is one of the primary doctrines devised by the Courts in India. As defined by the Brundtland Report sustainable development means development which meets the need of the present generations without compromising the capability of future generations to meet their own needs. [31] 

However sustainable development in the Indian context can be best explained with the aid of Narmada Bachao Andolan v. Union of India [32] wherein 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." [33] In this context, development primarily meant material or economic progress.

Perhaps the most important decision of the Supreme Court in relation to sustainable development was the Vellore Citizens Welfare Forum v Union of India case. [34] In this PIL it was alleged that untreated effluents was discharged by tanneries in the state of Tamil Nadu into agricultural field, waterways, etc which finally entered into the river and polluted its water. The Court in arguably the most significant judgment of its kind in relation to environmental law rejected the conventional doctrine that development and environmental are irreconcilable. The Court highlighted the fact that in the two decades from Stockholm to Rio sustainable development has emerged as a viable concept to balance development and the ecosystem. The Court recognized the fact that sustainable development has been accepted under customary international law as a balancing concept between ecology and development. Further the Court also referred to the precautionary principle and the polluter pays principle as having assumed fundamental principles of international environmental law. The Court also pointed out that these concepts are also implied in constitutional provisions such as Article 47, 48A and 51A(g) as well as legislations such as the Water Act. [35] 

Precautionary principle rests upon the preventive aspect of environmental law. The crux of the precautionary principle implies that, even where there is no scientific evidence suggesting that there might be potential harmful effects in respect to a particular theory, precaution should be taken. In other words, discharge of pollutants, which are potentially harmful, must be controlled, even in the absence of specific data concerning it. [36] The precautionary principle, as applied by the Court in the Vellore Citizens’ Case [37] imposed an obligation on every developer, industry as well as governmental agency to anticipate, prevent and attack the causes of environmental

degradation. [38] The Court also held that if there are threats of serious and irreversible damage then any lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The Court also emphasized on the fact that the onus of proof will be on the actors to show that their action has no detrimental effect on the environment.

The Polluter Pays principle was also recognized in the Vellore Citizen’s case and this principle has been recognized in a number of international agreements including the Rio declaration. This principle can be evaluated from two main aspects. On one hand it is used as mechanism for providing compensation. On the other hand it is also used as a preventive mechanism. So this principle adopts a two pronged approach as it acts as compensatory in nature as it mandates that the polluter should pay for the harm inflicted by him on the environment and at the same time acts as a preventive measureas the imposition of heavy penalties detracts polluters. [39] 

A lucid interpretation of the Polluter Pays principle and its application in India was given in the case of Enviro Legal Action v Union of India [40] where the Hon’ble Court observed that ‘we are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country. Once the activity carried on is hazardous or inherently dangerous, the polluter carrying on such activity is liable to make good the loss caused to any other affected party by polluter’s activity irrespective of the fact whether the polluter took reasonable care while carrying on his activity." [41] 

Another doctrine that has occupied a place within the corpus of Indian environmental jurisprudence mostly due to the initiatives taken by the apex court of the country is the Public Trust doctrine. This doctrine which has been borrowed from Roman jurisprudence dating back o ancient times stipulates that natural resources like air, seashore, rivers, etc are held by the state as trustee and the state is prohibited from breaching the trust.

This doctrine was recognized and discussed in detail in the case of MC Mehta v Kamal Nath and Others. [42] In the instant case the flow of the river Beas was deliberately diverted because it used to flood Span Motels in the Kulu Manali valley in which Kamal Nath’s family had a direct interest. Further the motel also encroached on protected forestland. However this encroachment was regularized by the Himachal Pradesh government. The Supreme Court applied the public trust doctrine by observing that the Himachal Pradesh Government has committed breach of public trust doctrine by leasing land which was ecologically fragile to private individuals. While discussing the doctrine the Court referred to the article of Professor Joseph L Sax and stated that the doctrine rests on the principle that certain natural resources has great utility to the people and hence it is unjustified that such natural resources should be brought under private ownership. Finally while discussing the applicability of the principle within Indian environmental legal framework the Court observed that the English legal jurisprudence recognizes the principle of public trust doctrine. As the Indian legal system is based on the English common law so this principle also forms an integral part of Indian legal jurisprudence. [43] 

Finally the principle of absolute liability as propounded in the case of MC Mehta v Union of India [44] can be briefly discussed. In this case the primary question was regarding the extent to which industries which engage in hazardous and inherently dangerous industries can be held liable. In the landmark judgment it was observed by the Court that the principle of strict liability as was propounded in the case of Rylands v Fletcher [45] is not sufficiently adequate in the context of present India environmental jurisprudence. So the principle of absolute liability as formulated in the instant case is based on the premise that inherently hazardous industries which has a potential of threat to the health and safety of the community has an obligation of adhering to the highest standard of safety and if any harm occurs due to the activities of such an industry then such and enterprise should have to be held absolutely liable and would have to pay compensation. So this entails that such an enterprise can be held absolutely liable and cannot evade their responsibility of paying compensation under any exceptions which was possible under the tortuous principle of strict liability. This principle was furher reaffirmed in the Indian Council for Enviro Legal Action v Union of India [46] in which it was held that industries will be absolutely liable to the harm caused to villagers due to the pollution caused to the soil and underground water and hence are bound to take remedial measures to improve the situation.

In conclusion it can be stated that the significance of this particular doctrine lies in the fact that it acts as an ideal weapon to deal with negligent pollution causing industries and also acts as a deterrent factor to arrest the problem of environmental degradation.


India has a prominent environmental heritage which can be attributable to its biodiversity. However industrial and economic development as well as indiscretions in the part of certain industries as well as the lax attitude of the state in certain circumstances has had an adverse effect on the environment as well as a number of communities who are dependent on them. Hence there was an imperative need for the judiciary to step onto the plate and take an activist stance to prevent further depletion of the valuable biodiversity of the country. As the researcher has elucidated in the paper the Courts have been successful in achieving this goal. It has used principles of international environmental law and constitutional provisions as tools for the furtherance of the cause of the environment. It is indeed not an overstatement to claim the environmental jurisprudence in this country can to a great extent be attributable to the acts of the judiciary in the last two decades. It is interesting to note that the apex Court has also acknowledged the crucial link between the environment and the rights of communities as well. The Supreme Court has recognized the nexus between environmental protection and human rights in Andhra Pradesh Pollution Control Board v MV Naydu. [47] The Hon’ble court observed that environmental concerns under Article 32 and 226 are of equal significance to Human Rights concerns as both can be traced back to the protection of right to life and liberty under Article 21 of the Constitution. Thus it would not be inaccurate to conclude that the Courts have been instrumental in establishing a holistic framework of environmental law geared towards achieving the ends of justice.