Judicial Activism on Environment in India

By Amit Singh*

I. Introduction:
The Indian judiciary demonstrated willingness to exercise its power whenever the
political/executive organs of the state failed to discharge their constitutional obligations
effectively. This willingness has been often termed as judicial activism. Around 1980,
the Indian legal system, particularly the field of environmental law, underwent a sea
change in terms of discarding its moribund approach and instead, charting out new
horizons of social justice. This period was characterized not only by administrative and
legislative activism but also judicial activism. A subset of this has been environmental
activism, which has developed in India in a very major way. One of the reasons for
judicial activism in specific environmental cases has been the relaxation of the rule of
locus standi giving a chance to the public to approach the Court under Articles 32 and
226 of the Indian Constitution. Also, the recognition of environmental rights as a
fundamental right under Article 21 (Right to Life) of the Indian Constitution has given a
constitutional sanctity to the right to enjoy a clean and healthy environment.
The development of Indian environmental law has happened, for the most part, over the
last three decades, with a significant level of polarization around the latter two decades of
this period.
________________________________________________________________________
*The author is a Ph.D. Research Scholar at the Centre for International Legal Studies (CILS), School of
International Studies (SIS), Jawaharlal Nehru University [JNU], New Delhi-67. He may be contacted at
amitsjnu@gmail.com .

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Electronic copy available at: http://ssrn.com/abstract=2383144

The development of the law in this area has seen a considerable share of initiative by the
Indian judiciary, particularly the higher judiciary, consisting of the Supreme Court of
India, and the High Courts of the States. Particularly, within the last two decades, India,
has not only enacted specific legislation on environmental protection but has also
virtually created a new fundamental right to a clean and healthy environment in the
Constitution. Prima facie the forms and methods adopted in the Indian context appear to
be very similar to those in other common law systems, but Indian environmental
jurisprudence brings out the unique characteristics of a new legal order, which has
gradually been established in India. The distinguishing nature of this jurisprudence is the
emerging Indian environmental jurisprudence that bears testimony to the activist role of
the Indian judiciary, which has had a significant impact in many areas other than
environmental law. In short, the development of environmental jurisprudence in India
manifests neo-judicial environmental model created within the constitution in postmodern public law. It accommodates ideas of various experts nationally and
internationally and creates interface of these ideas within the existing legal structure. The
areas in the Constitution where the judiciary has innovated techniques to further the cause
of environment are: directive principle of state policy and fundamental duties;
fundamental rights, jurisdiction of Supreme Court and the High Courts and adoption of
various international principles and creation of domestic principles to further the
international obligation towards the environment.

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

Environment:
At present most environmental actions in India are brought under Articles 32 and 226 of
the Constitution. The writ procedure is preferred over the conventional suit because it is
speedy, relatively inexpensive and offers direct access to the highest courts of the land.
The powers of the Supreme Court to issue directions under Article 32 and that of the high
courts under Article 226 have attained greater significance in environmental litigation.
Courts have made use of these powers to remedy past malafides and to check immediate
and future assaults on the environment. Amongst various factors that contributed to the
growth of Public Interest Litigation (PIL)1 in the field of environment in India is the
Constitution through Part III (Fundamental Rights) and Part IV (Directive Principles of
State Policy). Part III and IV of the Indian Constitution provide a framework for
regulating relations between the state and its citizens and between citizens inter-se. India
is one of the few countries to provide protection and improvement of the environment in
the Constitution, which are implemented through the environment protection laws of the
country. Originally, the Indian Constitution of 1950 did not have explicit reference to
environmental protection, so there was no independent and separate provision dealing
with the protection or improvement of the environment. However, taking note of the
mandate of the Stockholm Declaration of 1972 and growing awareness for environmental
pollution and eco-balances, the Indian Parliament passed a historic amendment - Forty-

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

Second Constitution Amendment Act, 1976.2 This Amendment introduced principles of

environmental protection in an explicit manner into the Constitution through Articles
48A3 and 51A (g)4. Article 48A obligated the State to protect and improve the
environment. These are not the first generational rights like the fundamental rights but
falls under the Directive principles of state policy; which deal with economic and social
rights, which are second generational rights. This would mean that the state required
enacting legislation to realize these rights. On the other hand, Article 51A (g) obligated
citizens to undertake the same responsibilities. As far as legislative power was concerned,
the 42nd Amendment also moved the subjects of forests and protection of wild animals
and birds from the State List to the Concurrent List. In M.C. Mehta v State of Orissa5 it
was said that together, the provisions highlight the national consensus on the importance
of environmental protection and improvement and laid the foundation for a jurisprudence
of environmental protection. In Sachidanand Pandey v State of West Bengal6, the Court
clearly recognized Directive Principles role in deciding environmental cases in light of
Articles 48A and 51A(g). Similarly in T.Damodar Rao v The Special Officer, Municipal
Corporation of Hyderabad7, Article 48A has been interpreted as imposing an obligation
on the government, including the courts, to protect the environment. It should be noted
that though the Directive Principles are unenforceable by the courts as mentioned in

It came into force on January 7, 1977.

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

Article 378, they are being treated by judges almost on par with fundamental rights. For
example, in relation to Article 48A, the language of this Article has guided the courts9.
Imposing a social obligation, Article 51(A) (g) thus emphasizes that preservation of the
environment and keeping the ecological balance intact is a task not only of the
government, but also of every citizen of India. This provision of Fundamental Duty
actually flows from the World Charter for Nature adopted by the General Assembly on
28 October 1982. The Charter recognizes the rights of individuals and NGOs by
providing that all persons shall have access to means of redress when their environment
has suffered damage or degradation. The Charter also imposes a corresponding duty upon
persons to ensure that objectives and requirements of the Charter are met.

III. Fundamental rights and the Environment:

The Golden Triangle of the Indian Constitution - Article 14, Article 19 and Article 21 has been invoked time and again for environmental protection. The High Courts and
Supreme Court of India have read the right to a wholesome environment as a part of the
right to life guaranteed in Article 21 of the Constitution of India.10 In the Dehradun
Quarrying Case11, though the orders did not articulate the fundamental right to a clean
and healthy environment, the petition was treated as a writ under Article 3212, which

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

implied that the court was seeing this right in the light of a fundamental right. The
Supreme Court explained the basis of this jurisdiction in the later case of Subhash Kumar
v State of Bihar13 where the court held that the right to life is a fundamental right under
Article 21 of the Constitution and it includes right of enjoyment of pollution free water,
air for full enjoyment of life and that if anything endangers or impairs the quality of
life, in derogation of laws, a citizen has a right to have a recourse to Article 32 of the
Constitution for removing the pollution of water or air which may be detrimental to the
quality of life. This concept has been furthered by the Supreme Court14 and various
High Courts15 decisions worded differently by concretising the idea of right to a clean
and healthy environment as a part of fundamental rights.
The other integral part of right to life is right to livelihood as enumerated in the Olga
Tellis Case16, which is again a judicial enlargement of the right to life envisaged under
Article 21 of the Indian Constitution. In Olga Tellis the Court looking at the limitation of
the Indian State said that to deprive a person of his right to livelihood would mean
depriving him of his life. The State may not by affirmative action be compellable to
provide adequate means of livelihood or work to the citizens but any person who is
deprived of his right to livelihood by law can challenge the deprivation as offending the

13

AIR 1991 SC 420.

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

right to life conferred by Article 2117. Many environmentalists think that the right to
livelihood could be asserted to prevent environmentally disruptive projects that threaten
to uproot tribal people and villagers for depriving their right to livelihood. The recent
agitation by the farmers of Singur and Nandigram in West Bengal and Narmada Bachao
Andolans (NBA) campaign against the Sardar Sarovar Dam can be understood in this
perspective. However, industries see a strict environmental regime at loggerheads with
the right to livelihood and clean/healthy environment of the citizens. The argument
forwarded by the industry interests can be rebutted on the grounds that right to clean
environment and right to livelihood are complementary rather than contradictory. If all
industries follow the environmental standards, then the price of products will include all
the external costs which would have to be borne by the consumers. Nevertheless, even
this alternative can be questioned in a third world country like India where most people
are unable to afford costlier products.
Article 1418 can be invoked to challenge government sanctions for projects with high
environmental impact, where permissions are arbitrarily granted without adequate
consideration, for example, of their environmental impacts. Article 19(1) (g)19 provides
that all citizens shall have the right to practice any profession, or to carry on any
occupation, trade or business but with reasonable restrictions which may be placed in the
interest of the general public as provided within section 19 sub clause (6)20, which might
include total prohibition21 . Accordingly, in cases involving polluting industrial units, the
17

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

courts face the task of balancing the environmental imperative with the right to carry on
any occupation/trade or business.

IV. Relaxation of Locus Standi norm in Environmental matters:

Locus standi would mean that a legal standing is required for a party seeking to present a
case before a court for redress. Legal Standing means that the party is competent to ask
for relief as the person has an interest in the case. Traditionally, in civil litigation the rule
was that only a person suffering injury could sue for damages. But in cases of public
nuisance individuals and organizations who have not suffered harm could ask for the
relief of injunction and declaration or other appropriate relief under Section 91 of the
Civil Procedure Code. Earlier, besides the provisions in the Indian Penal Code relating to
environmental pollution, Section 133 of the Code of Criminal Procedure could also be
invoked in environmental pollution when it amounted to public nuisance22. Hence it was
not easy to establish an interest in a public law claim such as in cases of environmental
matters. Later developments in environmental law through legislation enabled any person
to institute criminal prosecution. Though India's higher courts and, in particular, the
Supreme Court have often been sensitive to the grim social realities, and have on
occasions given relief to the oppressed, the poor do not have the capacity to represent
themselves, or to take advantage of progressive legislation. To reaffirm the Indian
tradition of voluntary social action, the Supreme Court, in 1982, conceded that unusual
measures were warranted to enable people the full realization of not merely their civil and
22

One of the first cases in environmental pollution was Ratlam Municipality case where the trial court
had directed the Municipality to remove the public nuisance and completely looked over the argument of
non-availability of fund. Another fact to be noted is the petitioners where residents of a locality who were
angered by non-action of the municipal authority.

political rights, but also the enjoyment of economic, social, and cultural rights, in PUDR
[People's Union for Democratic Rights] vs. Union of India23. It recognized that a third
party could directly petition, whether through a letter or other means, the court and seek
its intervention in a matter where another party's fundamental rights were being
violated24. Thus, the court acknowledged that it had jurisdiction to advance the rights of
the disadvantaged and poor though this might be initiated by individuals or groups who
themselves claimed no disability. This new form of legal action was termed Public
Interest Litigation (PIL) or Social Action Litigation25. PIL might be employed where
collective rights are affected though there might not be any direct specific injury to any
individual or member of the public or enforce the rights of group of people who are
directly injured by an act or omission but are unable to approach the court because of
being in a certain disadvantaged position. The Supreme Court of India opened the
floodgates to PIL in an attempt to refurbish its image that had been tarnished by some
decisions during the period of the Emergency which led to gross violation of human
rights, thus shaking the very basis of separation of power and confidence of the public in
relation to independent functioning of judiciary.
It should be noted that it was a proactive judiciary, which took up questions of policy.
When the realization dawned on the judiciary that law was becoming a profit-driven
profession and was becoming elitist, Justices Bhagwati and Krishna Iyer of the
Supreme Court submitted a Report on National Juridicare in 1977, recommending the
23

1982 (2) S.C.C. 253

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

need for an extraordinary form of litigation thereby sowing the seeds for the liberalisation
of locus standi giving the Courts epistolary jurisdiction. Conservative judges saw PIL as
violating the concept of separation of power. PIL is characterized by a non-adversarial
approach, with the participation of amicus curiae26, appointment of experts27, monitoring
committees28 by the court, and the issue of detailed interim orders in the form of
continuous mandamus under Article 32 and 226 by the Supreme Court of India and the
High Courts of the States respectively29. In the field of the environment what was initially
started by the Rural Litigation and Entitlement Kendra V. State of U.P. case30, where the
Supreme Court entertained the case under Article 32, ordered the closure of the limestone
quarries in the Mussorie Hills, which created imbalance to the ecology and hazard to a
healthy environment, adversely affecting the safety and health of the people living in the
area; was continued by the Mehta series cases31. In the Oleum Gas Leak case32 the court
granted locus standi to the petitioner. The court held that the exceptions in the rule in
Rylands v Fletcher, like the natural use of the land, are no longer applicable in India in
cases of industries engaged in hazardous or inherently dangerous activities and laid
down the absolute liability principle overshadowing the strict liability principle.
Absolute liability for the harm caused by an industry engaged in hazardous and
inherently dangerous activities became a newly formulated doctrine, free from
the exceptions to the strict liability rule. Thus, in a passive way, the right of

26

T.N.Godavarman Thirumulkpad v Union of India 1997 ( 3) SCC 312.

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

10

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

steps were taken to protect them from the hazards of polluting industries. In the
Ganga River case33 and the Taj Mahal Trapezium case34, the Supreme Court clearly
indicated that industries, which could not abide by the environmental standards, should
be immediately closed. The issue of Mehta not being a riparian owner (living on the river
side) and thus could not be granted standing to move for prevention of nuisance for
pollution in the river Ganges was negated by the court, where it was held that it was
reasonable to allow any person to take proceedings on behalf of the community at large.

V. Environmental Law PrinciplesThe Indian courts have successfully adopted specific environmental law principles from
international environmental law jurisprudence and have combined a liberal view towards
ensuring social justice and the protection of human rights. These principles have been
incorporated in the Indian environmental jurisprudence and play a key role in decisions
of judges even when not explicitly mentioned in the concerned statute. The principles of
Indian environmental law are resident in the judicial interpretation of laws and the
Constitution, and encompass several internationally recognized principles, thereby
providing some semblance of consistency between domestic and global
environmental standards.

1. Precautionary Principle:
A new principle for guiding human activities, to prevent harm to the environment and to
human health, has been emerging during the past 10 years. It is called the "principle of
33
34

AIR 1988 4 SCC 471.

AIR 1997 SC 734.

11

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

controversial and its definition varies in terms of viewpoint. Environmentalists and
consumer advocacy organizations that demand bans and restrictions on industrial
practices or products would want policy-makers to take no action unless they would do
no harm. States and advocates of economic development argue that the lack of full
certainty is not a justification for preventing an action that might be harmful. In India, for
the first time in Vellore Citizens Welfare Forum v. Union of India35 , the Supreme Court
explicitly recognized the precautionary principle as a principle of Indian environmental
law. In S. Jagannath v Union of India (Shrimp Culture Case)36 , the Supreme Court
Bench headed by Justice Kuldip Singh required the authority to deal with the situation
created by the shrimp industry and issued remedial directions consistent with the
precautionary and polluter pays principles. In A.P. Pollution Control Board v Prof M.V.
Nayudu37, the Court drew out the development of the precautionary principle in clear
terms. In the Narmada Bachao Andolan v Union of India38, the Court explained that:
When there is a state of uncertainty due to the lack of data or material about the extent
of damage or pollution likely to be caused, then, in order to maintain the ecology balance,
the burden of proof that the said balance will be maintained must necessarily be on the
industry or the unit which is likely to cause pollution. Refusing to apply the
"precautionary principle" used in cases dealing with inherently polluting activities such
as heavy industries, the Court accepted the contention of the respondents that the project
would have a positive impact by arresting the ecological degradation presently taking

35

AIR 1996 SC 2715

AIR 1997 SC 811
37
AIR 1999 SC 812
38
AIR 2000 SC 3751
36

12

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

agriculture and spread of green cover. The generation of hydropower would avoid the air
pollution that would otherwise take place by thermal generation.
The movement towards adopting the precautionary principle has definitely widened the
scope of corporate accountability, but the interpretation taken by the court mitigates the
relevance and incorporation of this principle in Indian Jurisprudence.

2. The Polluter Pays Principle:

The Supreme Court with the introduction of the principle of absolute liability in M.C
Mehta v Union of India39 calculates environmental damages not on the basis of a

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

situation by the Court, keeping in mind factors such as the deterrent nature
of the award. . This rule has been endorsed in Indian Council for Enviro-Legal action v
Union of India40 and Vellore Citizens welfare Forum v Union of India.41 However, the

Supreme Court held recently that the power under Article 32 to award
damages, or even exemplary damages to compensate environmental harm,
would not extend to the levy of a pollution fine.

42

3. Sustainable Development and Inter-generational Equity:

In Narmada Bachao Andolan v. Union of India43 it was observed that: Sustainable
development means what type or extent of development can take place, which can be
sustained by nature/ecology with or without mitigation. Earlier in the Vellore Citizens

39

AIR 1987 SC 965

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

13

Welfare forum v Union of India 44, the traditional concept that development and ecology
were opposed to each other was rejected and sustainable development was adopted. In the
Taj Trapezium case this principle was accepted and again it was said that development of
industry is essential for the economy of the country but at the same time the environment
and ecosystem has to be protected.
In State of Himachal Pradesh v. Ganesh Wood Products45, the Supreme Court invalidated
forest-based industry, recognizing the principle of inter-generational equity as being
central to the conservation of forest resources and sustainable development. In the CRZ
Notification case 46 the courts carried forward the concern for sustainable development by
expressing its concern at the adverse ecological effects, which will have to be borne by
future generations.

4. Public Trust Doctrine:

The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath47, states that
certain common properties such as rivers, forests, seashores and the air were
held by Government in Trusteeship for the free and unimpeded use of the
general public. Granting lease to a motel located at the bank of the River Beas
would interfere with the natural flow of the water and that the State Government
had breached the public trust doctrine. The Supreme Court enunciated Professor
Joseph Saxs doctrine of public trust in this case to further justify and perhaps extract
state initiative to conserve natural resources, held that the state, as a trustee of all natural
resources, was under a legal duty to protect them; and that the resources were meant for

44

AIR 1996 SC 2715

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

14

public use and could not be transferred to private ownership. This doctrine was further
reiterated in M.I Builders Pvt Ltd v Radhey Shyam Sahu. 48

VI. Conclusion:
The Indian Judiciary, which faces inherent problems, has nonetheless, through its
landmark and unconventional decisions, clearly showed its concern for the protection of
the environment. The efforts of the highest court in environmental pollution control
through public interest litigation (PIL) is indeed laudable particularly when the legislature
is lagging behind in bridging the lacuna in the existing legal system and administration is
not well equipped to meet the challenge. However, these efforts should be streamlined
and made uniform. Projects that hamper the environment should not be given the goahead on economic considerations alone if they violate environmental norms.
Judicial activism in India provides an impetus to the campaign against
environmental pollution. Public Interest Litigation (PIL) has come to stay in India. The
path for people's involvement in the judicial process has been shown. If this had
not been done so, the system would have collapsed and crumbled under the
burden of its insensitivity.
However, the environmental activism in India cannot perhaps be attributed to the whole
judiciary but only to a few judges. This clearly dampens the impact of this movement
within the judiciary. Efforts should be made within the system to make the judges realize
the importance of a right to a clean and healthy environment from the highest to the
lowest level.

48

AIR 1999SC 2468.

15