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M.C. Bhandari Memorial Lecture
Environmental Justice In India
by Justice B.N. Kirpal
The Chief Justice of India

Cite as : (2002) 7 SCC (Jour) 1

I feel honoured to be invited to deliver the "M.C. Bhandari Memorial Lecture" arranged by his friends, relations and admirers who are present in large numbers in this august gathering which includes, among others, a large number of sitting and retired eminent Judges, professors, senior lawyers and prominent citizens.

I have not had the pleasure of meeting late Shri M.C. Bhandari but from many of his friends and admirers I have learnt that he was an outstanding lawyer who had the unique combination of endearing qualities, who possessed sound common sense which was combined with profound learning, with a quick insight and great receptivity. Shri Bhandari was an exceptional human being; a great gentleman of versatile interest and accomplishment, a man of learning, refinement and culture, compassion and humanism; an exceptional lawyer and eminent law teacher.

Compilation of memorial lectures and reminiscences reminds us of many qualities of late Shri M.C. Bhandari. He touched many lives in many different ways. Esteemed by the Bench and the Bar, he was revered by his pupils and regarded by them as their friend, philosopher and guide. He believed that mere achievement of success at the Bar was of no use unless one could render help to deserving juniors at the Bar to achieve success too. A large number of his juniors are now eminent members of the Bar and the Bench. He maintained the highest professional standards and a deep sense of honour and rectitude. This lecture is intended to commemorate the memory of the great human being, Shri M.C. Bhandari. I am thankful to Mr Justice Dalveer Bhandari for giving me this opportunity to pay my tribute to the great gentleman and humanist.

Indian environmental law has seen considerable development in the last two decades. Indeed, it may be said that most of the principles under which environmental law works in India today were assembled over the last twenty years, with a predominant share from careful judicial thinking in the Supreme Court and the High Courts of the States. Legislative schemes and initiatives have been created in most areas involving the environment, albeit with some degree of overlap and skeletality. The role of the administration, although being a critical factor in the success of any environmental management programme, has seen its share of problems of scale and definition.

The beginnings of Indian Environmental Law

It is possible to suggest with conviction that the beginnings of Indian environmental law were sown at the United Nations' Conference on Human Environment held at Stockholm in 1972, where India was a participant, leading to some sort of realization that a framework of laws was necessary to deal with environmental hazards that would result from the stage of development that India was entering in the 1970s. Prior to this phase, Indian environmental law mainly consisted of claims made against tortious actions such as nuisance or negligence. The Water (Prevention and Control of Pollution) Act of 1974 gave the statute-book its first real foundation for environmental protection. Other major enactments followed in 1980 the Forest (Conservation) Act, 1981, the Air (Prevention and Control of Pollution) Act, and the Environment (Protection) Act of 1986. Of these the Environment Protection Act is the one which is now being implemented and relied upon in an effort to protect the environment.

The Forty-second Amendment to the Indian Constitution in 1976 introduced principles of environmental protection in an explicit manner into the Constitution through Articles 48-A and 51-A(g). Article 48-A, part of the directive principles of State policy, obligated the State to protect and improve the environment. On the other hand, Article 51-A(g) obligated citizens to undertake the same responsibilities. As far as legislative power was concerned, the amendment also moved the subjects of "forests" and "protection of wild animals and birds" from the State List to the Concurrent List. The Stockholm Conference is honoured by references in the Air Act and the Environment Act — a result of effective application of Article 253 of the Constitution, which gives Parliament (India's Central Legislature) the power to make laws implementing India's international obligations, as well as any decision made at an international conference, association or other body.

Failure on the part of the governmental agencies to effectively enforce environmental laws and non-compliance with statutory norms by polluters resulted in an accelerated degradation of the environment. Most of the rivers and water bodies were polluted, and large-scale deforestation was carried out with impunity. There was also a rapid increase in casualties due to respiratory disorders caused by widespread air pollution. To indicate to you the extent of damage done to the environment, I might give you two examples. In any country the forest cover should be at 33 per cent of the land mass. In 1996, India had only about 15 per cent forest cover. The Yamuna, like other rivers, is worshipped here. But when it leaves Delhi, the oxygen content in the little water, which there exists, is zero per cent.

Such large-scale environmental degradation and adverse effects on public health prompted environmentalists and residents of polluted areas, as well as non-governmental organizations, to approach the courts, particularly the higher judiciary, for suitable remedies.

Relaxation of the rule of locus standi — opening the doors to public interest litigation

There is near-complete academic agreement that the concerted involvement of the higher judiciary in India with the environment began with the relaxation of the rule of locus standi, and the departure from the "proof of injury" approach, as can be seen, for example in the decision of the Supreme Court in Bangalore Medical Trust v. B.S. Muddappa1 The relaxation of the rule led to some important consequences, which were particularly pertinent to environmental matters. First, since it was possible 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. Second, the rule took care of the many interests that went unrepresented — for example, that of the common people who normally had no access to the higher judiciary. However, the taking up of interests by so-called third parties who were interested but not injured in the earlier strict sense also had its share of controversy. Some critics have claimed that public interest litigation has been misused by parties who were secretly interested in issues allied to the environmental matter, which were sometimes commercial in nature, thereby using the exalted platform explicitly created for the solution of environmental matters alone. Also, the process brought into sharp focus the conflict of interest between the environment and development, and set the stage for a number of decisions that would deal with issues relating to this area in a more specific manner.

The relaxation of locus standi, in effect, created a new form of legal action, variously termed as public interest litigation or social action litigation. This form is usually more efficient in dealing with environmental cases, for the reason that these cases are 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, as in the case of T.N. Godavarman Thirumulkpad v. Union of India2 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.

Looking to the Constitution for jurisdiction

The judiciary, in their quest for innovative solutions to environmental matters within the framework of public interest litigation, looked to constitutional provisions to provide the court with the necessary jurisdiction to address specific issues. Furthermore, Article 142 afforded the Supreme Court considerable power to mould its decisions in order that complete justice could be done. As the Supreme Court is the final authority as far as matters of constitutional interpretation are concerned, it assumes a sort of primal position in the Indian environmental legal system. For example, the fundamental right contained in Article 21 is often cited as the violated right, albeit in a variety of ways.

In Francis Coralie Mullin v. Administrator, Union Territory of Delhi3 Bhagwati, J., speaking for the Supreme Court, stated that: (SCC pp. 618-19, para 8)

We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing, shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.

In Subhash Kumar v. State of Bihar4 the Court observed that: (SCC p. 604, para 7)

"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...."

The Supreme Court, in its interpretation of Article 21, has facilitated the emergence of an environmental jurisprudence in India, while also strengthening human rights jurisprudence. There are numerous decisions wherein the right to a clean environment, drinking water, a pollution-free atmosphere etc. have been given the status of inalienable human rights and, therefore, fundamental rights of Indian citizens.

In Rural Litigation and Entitlement Kendra v. State of U.P.5 the Supreme Court based its five comprehensive interim orders on the judicial understanding that environmental rights were to be implied into the scope of Article 21, as was stated in T. Damodhar Rao v. Special Officer, Municipal Corpn., Hyderabad6 as well as L.K. Koolwal v. State of Rajasthan7

The Court has successfully isolated specific environmental law principles upon the interpretation of Indian statutes and the Constitution, combined with a liberal view towards ensuring social justice and the protection of human rights. The principles have often found reflection in the Constitution in some form, and are usually justified even when not explicitly mentioned in the statute concerned.

The Precautionary Principle: Environmental Protection over Development

There have also been occasions when the judiciary has prioritized the environment over development, when the situation demanded an immediate and specific policy structure. For example, the Court held in M.C. Mehta v. Union of India8: (SCC p. 482, para 22)

Life, public health and ecology has priority over unemployment and loss of revenue problem.

Beginning with Vellore Citizens' Welfare Forum v. Union of India9 the Supreme Court has explicitly recognized the precautionary principle as a principle of Indian environmental law. More recently, in A.P. Pollution Control Board v. Prof. M.V. Nayudu10 the Court discussed the development of the precautionary principle. Furthermore, in the recent Narmada case11 the Court explained that: (SCC p. 727, para 123)

"When there is a state of uncertainty due to 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."

Damages for environmental degradation

The Supreme Court has come to sustain a position where it 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. However, it held recently in M.C. Mehta v. Kamal Nath12 that the power under Article 32 to award damages, or even exemplary damages to compensate environmental harm, would not extend to the levy of a pollution fine. The "polluter-pays" principle has also been recognized as a fundamental objective of government policy to prevent and control pollution.

'Sustainable development' in Indian Environmental law

What is meant by the phrase "sustainable development"? The definition which is used most often comes from the report of the Brundtland Commission, in which it was suggested that the phrase covered "development that meets the needs of the present without compromising the ability of future generations to meet their own needs". However, societies at different levels have their own concept of sustainable development and the object that is to be achieved by it. For instance, for rich countries, sustainable development may mean steady reductions in wasteful levels of consumption of energy and other natural resources through improvements in efficiency, and through changes in lifestyle, while in poorer countries, sustainable development would mean the commitment of resources towards continued improvement in living standards.

Sustainable development means that the richness of the earth's biodiversity would be conserved for future generations by greatly slowing and, if possible, halting extinctions, habitat and ecosystem destruction, and also by not risking significant alterations of the global environment that might — by an increase in sea level or changing rainfall and vegetation patterns or increasing ultraviolet radiation — alter the opportunities available for future generations.

How has this phrase been understood in India? The answer may lie in the decision of the Supreme Court in Narmada case11 wherein it was observed (at SCC p. 727, para 123) that "sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation". In this context, development primarily meant material or economic progress.

It is often said that poverty is one of the causes of environmental degradation. Remove poverty and you automatically save the environment. I do not believe this to be entirely true. Of course, poverty may be a hindrance or an obstacle towards clean environment but it is in such a situation that the principle of sustainable development has to be applied.

Being a developing country, economic progress is essential; at the same time, care has to be taken of the environment. Thus, the question that squarely arises is: how can sustainable development, with economic progress and without environmental regression, be ensured within the Indian legal framework? This can be achieved through the implementation of good legislation.

The courts have attempted to provide a balanced view of priorities while deciding environmental matters. As India is a developing country, certain ecological sacrifices are deemed necessary, while keeping in mind the nature of the environment in that area, and its criticality to the community. This is in order that future generations may benefit from policies and laws that further environmental as well as developmental goals. This ethical mix is termed sustainable development, and has also been recognized by the Supreme Court in Taj Trapezium case13

In State of H.P. v. Ganesh Wood Products14 the Supreme Court invalidated forest-based industry, recognizing the principle of intergenerational equity as being central to the conservation of forest resources and sustainable development. The Court also noted in Indian Council for Enviro-Legal Action v. Union of India15 (CRZ Notification case) that the principle would be violated if there were a substantial adverse ecological effect caused by industry.

In certain cases, the judiciary has to choose between the preservation of environmental resources in the State, and the right of communities to extract value out of those resources. To facilitate this choice, the courts have evolved a right to livelihood for communities affected by new State-run conservation initiatives.

An efficacious law: ensuring compliance

The Supreme Court, in recent years, has been adopting a holistic approach towards environmental matters. This is usually done through detailed orders that are issued from time to time, while committees appointed by the Court monitor the ground situation. The origin of this tendency may be seen in cases such as Municipal Council, Ratlam v. Vardichan16 and Olga Tellis v. Bombay Municipal Corpn.17 That such an approach has been beneficial is evident from two instances. Since passing the first order in 1996, not only has the decline in forest cover been prevented but the forest cover has actually registered a modest increase. The cleaning of air in Delhi is the other example.

The separation of powers and environmental law

To a substantial extent, the courts have had to fill in the gaps and doubt left by the absence of a clear governmental policy. However, there have been occasions when the court has considered it appropriate to disregard the policy and proceed with a decision that better accommodates constitutional values. For example, in Calcutta Taj Hotel case18 the Court permitted the construction of a hotel near land belonging to the Calcutta Zoological Garden, stating that tourism was important to the economic progress of the country, thereby underlining the constant controversy between development and the environment. At other times, the Court has stated that it is not in the public interest to require the Court to delve into those areas that are the function of the executive.

To further justify and perhaps extract State initiative to conserve natural resources, the Court enunciated Professor Joseph Sax's doctrine of public trust, obligating conservation by the State. In M.C. Mehta v. Kamal Nath19 the Court 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 public use and could not be transferred to private ownership.

Thus, it is possible to see that although there have been initiatives from the legislature and the executive, the judiciary has taken a lead in terms of the actual immediate effect its actions have had on the environment. However, I stand here as an academic orator today, and not as a representative of the Supreme Court — it is wholly inappropriate for me to say which wing of government is more important or critical to India in this context. What the history of environmental law has shown, nevertheless, is that it has fallen frequently to the judiciary to protect environmental interests, due to sketchy input from the legislature, and laxity on the part of the administration. The higher judiciary plays a rather stalwart role owing to its unique position and power. 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. It is hoped that valuable lessons will be learnt from international experiences as well as the direction shown by the judiciary, and that environmental law will emerge as a major concern for Indian governance.

  1. (1991) 4 SCC 54 Return to Text
  2. (1997) 2 SCC 267 Return to Text
  3. (1981) 1 SCC 608 Return to Text
  4. (1991) 1 SCC 598 Return to Text
  5. (1985) 2 SCC 431 Return to Text
  6. AIR 1987 AP 171 Return to Text
  7. AIR 1988 Raj 2 Return to Text
  8. (1987) 4 SCC 463 Return to Text
  9. (1996) 5 SCC 647 Return to Text
  10. (1999) 2 SCC 718 Return to Text
  11. Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 Return to Text
  12. (2000) 6 SCC 213 Return to Text
  13. M.C. Mehta v. Union of India, (1997) 2 SCC 353 Return to Text
  14. (1995) 6 SCC 363 Return to Text
  15. (1996) 5 SCC 281 Return to Text
  16. (1980) 4 SCC 162 Return to Text
  17. (1985) 3 SCC 545 Return to Text
  18. Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295 Return to Text
  19. (1997) 1 SCC 388 Return to Text
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