ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

Acknowledgement
I would like to acknowledge and extend my heartfelt gratitude to
Prof. Manjula Batra for her personal guidance, support and
encouragement which has made the completion of this Project
possible. Thank you, Sir, for your support and co-operation.
I would also like to extend my thankfulness towards the library
staff and my friends, who immensely helped me in the research
work for the project.
Regards
Samreen Khan
3rd yr. 6th sem.
Faculty of law, JMI.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

ABBREVIATIONS

HR
UDHR
Rights

: Human Rights
: Universal Declaration of Human

ACTS

: African Centre for Technology Studies

UNESCO

: United Nations Educational, Scientific and

Cultural Organization

CITES CONVENTION : The Convention on the International

Trade in Endangered Species
IUCN
Nature
UNEP

: International Union for Conservation of

: United Nations Environment

Programme

UNCED
: United Nations Conference on
Environment and Development
UNDP
Programme

: United Nations Development

WSSD
Development

: World Summit on Sustainable

NEP

: National Environment Policy

MEA

: Multilateral Environmental Agreements

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

COP

: Conference of Parties

MOP

: Meeting of Parties

PIL

: Public Interest Litigation

WBCSD
Development

: World Business Council for Sustainable

NGO

: Non Governmental Organization

MNCs

: Multinational Corporations

OAS

: Organization of American States

OAU

: Organization for African Unity

ICJ

: International Court of Justice

RTI

: Right to Information Act

ROLE OF JUDICIARY IN
ENVIRONMENTAL GOVERNANCE
I. ENVIRONMENTAL GOVERNANCE
Environmental governance has acquired different meanings
depending on how people perceive Governance itself. Rosseau
has

proposed

one

of

the

most

exhaustive

definitions

of

governance:
Governance refers to activities backed by shared goals that
may or may not derive from legal and formally prescribed
responsibilities and that do not necessarily rely on police powers
to overcome defiance and attain compliance. Governance, in
other words, is a more encompassing phenomenon than
government. It embraces governmental institutions, but it also
subsumes informal, non-governmental mechanisms whereby

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

those persons and organizations within its purview move ahead,

satisfy their needs, and fulfill their wants.Put more
emphatically, governance is a system of rule that works only if it
is accepted by the majority (or, at least, by the most powerful of
those it affects), whereas governments can function even in the
face of widespread opposition to their policies1
Environmental governance is defined as a body of values and
norms that guide or regulate state-civil society relationships in
the use, control and management of the natural environment.
These norms and values are expressed in a complex chain of
rules, policies and institutions that constitute an organizational
mechanism through which both the broad objectives and the
specific planning targets of environmental management must be
articulated.2
More

importantly

environmental

governance,

provides

conceptual framework within which public and private behaviour

is regulated in support of sound ecological stewardship. That
framework establishes reciprocal relationships between people
(globally, regionally, nationally and locally) relating to access and
use of environmental goods and services, and binds them (at
whatever level) to certain specific environmental ethics. The
rules, rights and responsibilities may either flow from custom
and practice or be codified in such instruments as conventions,
treaties or statutes and managed by different organizational

Harashima, Yohei (2000): Research Note Environmental Governance in Selected Asian

Developing Countries. International Review for Environmental Strategies Vol.1, No.1, pp.
193 207, 2000 Institute for Global Environmental Strategies.
2

Mugabe, John And Godber W. Tumushabe (1999): Environmental governance:

Conceptual and emerging issues in H.W.O. Okoth-Ogendo Godber & W. Tumushabe.
Editors (1999). Governing The Environment. Political Change and Natural Resources
Management in Eastern and Southern Africa. African Centre for Technology Studies
(ACTS). Nairobi, Kenya. 1999.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

forms, for example, clans, womens groups, private firms,

national agencies and international organizations.3
The discourse on environmental governance has been
dominated by global issues, discussions and frameworks.
Consequently, very little has been researched and studied about
the national environmental governance issues, particularly in
Asian countries.4
However,

this

discussion

cannot

be

complete

without

discussion of the historical context of the environmental

movements

and

subsequent

evolution

of

environmental

governance out of the shadows of environmental activism. It all

started

with

environmental

concerns

taking

shape

of

environmental movement in the United States in the 1960s.

This concern led to the National Environmental Policy Act in
December 1969, and to the first Earth Day a few months later.
Within the short span of a few years in the early 1970s, the
Environmental Protection Agency and the Presidential Council
on Environmental Quality were established, the Clean Air and
Water Acts and other major federal legislation were passed, and
the federal courts were deluged with lawsuits brought by a new
generation of environmental advocacy organizations, often
funded by major U.S. foundations. It was during this period that
groups like the Natural Resources Defense Council and the
Environmental Defense Fund were launched.5 Gradually this
3

Ibid.

Supra 1.

Speth, James Gustave (2002): The Global Environmental Agenda: Origins and
Prospects in Esty, Daniel C. and Maria H. Ivanova, Editors. (2002): Global
Environmental Governance Options & Opportunities. Yale school of forestry &
environmental studies.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

evolved into a global environmental movement. Major milestones

of the global environmental movements are listed below:
Year

Milestone

1970

First Earth Day observed

1971

The Convention on Wetlands of International Importance

Especially as Waterfowl Habitat (Ramsar Convention)

1971

This Endangered Planet, Richard Falk

1972

The UNESCO Convention Concerning the Protection of

the World Cultural and Natural Heritage (World Heritage
Convention)

1972

Stockholm Conference on the Human Environment

1973

The Convention on the International Trade in Endangered

Species (CITES Convention)

1974

The Limits to Growth, Donella Meadows et al.

1978

The Human Future Revisited, Harrison Brown

1978

The Twenty-Ninth Day, Lester Brown

1980

World Conservation Strategy, IUCN and UNEP

1987

Our Common Future, World Commission on Environment

and Development (the Brundtland Commission Report)

1992

Rio Earth Summit

1992

Framework Convention on Climate Change

1992

The Convention on Biological Diversity

1994

Convention on Combating Desertification

2002

World

Summit

for

Sustainable

Johannesburg
2005

Kyoto Protocol comes into force

Development

in

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

EVOLUTION OF GLOBAL ENVIRONMENTAL

GOVERNANCE
During

the

early

stages

of

development

of

national

environmental policy, technically oriented policies and measures

played a major role in resolving the immediate problems of
rampant industrial and urban pollution. As a result, research
activities carried out to date have tended to be based primarily
on natural sciences and technical approaches. However, it was
recognized soon afterwards that technical fixes would not
suffice in solving todays global environmental issues. One of the
reasons for this is that they ignore the diversity of interests and
perspectives among actors in establishing and implementing
policies for environmental protection.
The problems of the human environment were placed on the
international agenda in 1972 at the United Nations Conference
on Human Environment in Stockholm, the first among a host of
global issues to be addressed by the world body. The Stockholm
Conference

gave

impetus

to

the

growth

of

international

environmental law and international organizations specifically

devoted to promoting environmental governance worldwide, but
it failed to bridge the gap between North and South over
conflicting views and approaches to issues of environment and
development.
Twenty years later, Agenda 21, a global plan of action directed
towards the twenty-first century, was adopted at the United
Nations Conference on Environment and Development (UNCED)
held in Rio de Janeiro, Brazil. Although the international

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

community agreed at UNCED to strive for the attainment of the

ultimate goal of sustainable development, the state of the global
environment is worsening today and is expected to continue to
deteriorate, potentially leading to a catastrophic situation in the
not-too-distant future. The emergence of global environmental
issues since the 1980s exerts an added pressure on the already
strained resources and structures for environmental governance
in developed and developing countries alike, and thus makes it
imperative for us to reconsider existing social orders and value
systems, and to restructure our economy to reduce the impact of
human activities on the environment.
The

UNCED

international

represented

partial

movement.

The

links

coming

of

between

age

of

improved

environmental management and economic development were at

the core of the UNCED agenda. However, the euphoria that was
generated during the Rio Conference 92, had died down at the
New York Conference 97. The week-long conference at New
York reviewed the progress since the Rio Summit 92, and found
that the planets oceans, forests and atmosphere were still in
trouble and its population of poor people was still growing.6
While

national

institutional

mechanisms

have

become

necessary condition for implementing Agenda 21, it is important

to underscore at least two shortcomings with the above figure.
The first is that only
coordinating

bodies

approximately 70 of the national

established

worldwide

include

multi-

stakeholder groups. The second deficiency is the unbalanced

geographic distribution of these multi-stakeholder bodies. While
6

Gupta, Anil K. and Mohammad Yunus (2004): India and the WSSD (Rio + 10),
Johannesburg: Issues of national concern and international strategies. VOL. 87, NO. 1, 10
JULY 2004. CURRENT SCIENCE.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

the highest concentration of such bodies is found in the OECD

region, fewer developing countries have established such
arrangements.7
The World Summit on Sustainable Development (WSSD), held at
Johannesburg in September 2002 (Rio + 10), that epitomized the
three-decade long journey from Stockholm to Johannesburg
began with the recognition of negative influences of human
activities on environment, and was followed by a paradigm that
sees environment and development inextricably linked. While
national and international discussions still keep incubating about
what are the key concerns to be addressed globally, some
experts and organizations have already suggested the following
few8:

Poverty eradication and sustainable livelihood

Financial resources for environmental improvement

Technology transfer

Production and consumption patterns.

While the international treaties and conventions mentioned

above and several others guide the international action towards
achieving

sustainable

development

goals,

the

day-to-day

environmental affairs are handled by the United Nations

Environment Program (UNEP). However, it is widely believed
that UNEP has achieved very little in terms of making
substantive progress towards bringing in an international
7

Boyer, Brook (2001): Institutional Coordination, Multi-stakeholder Participation and the

Implementation of MEAs National Experiences of Malaysia and Thailand. Paper prepared
for the Regional Consultation / Workshop on Inter-linkages, Kuala Lumpur, 26-27
February 2001. United Nations University.
8

Supra 6.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

governance regime. Primary reason for this failure is believed to

be9:
UNEPs authority was severely constrained by its
programme

rather

than

specialized

agency

status within the UN system.

UNEPs governance structure led to more attention
to the needs and demands of member states than to
the mission of the organization.
UNEPs financial structure enabled countries to
pursue their own interests through UNEP rather
than the common good.
UNEPs location outside of the centers of political
activity affected its capacity to coordinate the
numerous agencies with environmental activities as
well as, most importantly, its ability to attract toptier policy staff.
PRICIPLES OF ENVIRONMENTAL GOVERNANCE
The following Principles, accordingly, guide the activities of
different sectors in relation to the Indias National Environment
Policy (NEP). The NEP is a comprehensive document covering all
concerned sectors and stakeholders. Each of these principles has
an

established

genealogy

in

policy

pronouncements,

jurisprudence, international environmental law, or international

State practice:

Ivanova, Maria (2005): Assessing UNEP as Anchor Institution for the Global
Environment: Lessons for the UNEO Debate Working Paper No. 05/01 available online at
http://www.yale.edu/gegproject/uneo-wp.pdf. Yale University. Yale Center for
Environmental Law & Policy.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

I.

Human

beings

are

at

the

center

at

the

center

of

2016

Sustainable

Development Concerns:
Human

beings

are

of

concerns

for

sustainable development. They are entitled to a healthy

and productive life in harmony with nature.
II. The Right to Development:
The right to development must be fulfilled so as to
equitably meet developmental and environmental needs of
the present and future generations.
III. Environmental conservation is an integral part of the
development process:
In

order

to

achieve

sustainable

development,

environmental conservation should be constituted as an

integral part of the development process and cannot be
considered in isolation from it.
IV. The Precautionary Approach:
Where there are credible threats of serious or irreversible
nature to damage the key environmental resources, lack of
full scientific certainty shall not be used as a reason for
postponing

cost-effective

measures

to

prevent

environmental degradation.
V. Economic Efficiency:
In various public actions for environmental conservation,
economic efficiency would be realized. This principle
requires that the services of environmental resources be

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

given economic value, at for with the other goods and

services, in analysis of alternative courses of action.
Further implications of this principle are as follows:
a) Polluter Pays:
Impacts of acts of production and consumption of one
party may be visited on third parties who do not have a
direct economic nexus with the original act. Such
impacts are termed externalities. If the costs (or
benefits) of the externalities are not re-visited on the
party responsible for the original act, the resulting level
of the entire sequence of production or consumption,
and externality, is inefficient. In such a situation,
economic efficiency may be restored by a making the
perpetrator of the externality bear the cost (or benefit)
of the same.

b) Cost Minimization:
Where the environmental benefits of a course of action
cannot, for methodological or conceptual reasons, be
imputed

economic

value

(as

in

the

case

of

Incomparable Entities), in any event the economic

costs of realizing the benefits should be minimized.
Efficiency of resource use may also be accomplished by
the use of policy instruments that create incentives to
minimize wasteful use and consumption of natural
resources. The principle of efficiency also applies to

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

issues of environmental governance by streamlining

processes and procedures in order to minimize costs and
delays.
VI. Entities with Incomparable Values:
Significant risks to human health, life and environmental
life-support systems, besides certain other unique natural
and man-made entities, which may impact the well-being
broadly conceived of large number of persons may be
considered as Incomparable in that individuals or
societies would not accept these risks for compensation in
money or conventional goods and services. A conventional
economic cost-benefit calculus would not, accordingly,
apply in their case, and such entities would have priority in
allocation of societal resources for their conservation
without consideration of direct or immediate economic
benefit.

VII. Equity:
The cardinal principle of equity or justice requires that
human beings cannot be treated differently based on
irrelevant differences between the Equity norms must be
distinguished according to the context, i.e. procedural
equity, relating to fair rules for allocation of entitlements
and obligations and end-result equity, relating to fair
outcomes in terms of distribution of entitlements and
obligations.

Each

context,

in

addition,

must

be

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

distinguished in terms of intra-generational equity,

relating to justice within societies and in particular
providing space for the participation of underprivileged,
and inter-generational equity. Equity in the context of this
policy

refers

to

both

equity

in

entitlements,

and

participation of the relevant stakeholders, in processes of

decision-making over use of, environmental resources.

VIII. Legal Liability:

The

present

environmental

redressal

mechanism

is

predominantly based on doctrines of criminal liability,

which has not proved sufficiently effective, and need to be
supplemented. Civil liability for environmental damage
would

deter

compensate

environmentally
the

victims

of

harmful

actions,

environmental

and

damage.

Conceptually, the principle of legal liability may be viewed

as an embodiment in legal doctrine of the polluter pays
approach,

deriving

from

the

principle

of

economic

efficiency. The following alternative approaches to civil

liability may apply:
a) Fault based liability
In a fault based liability regime a party is held liable if it
breaches a pre-existing legal duty, for example, an
environmental standard.
b) Strict liability

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

Strict liability imposes an obligation to compensate the

victim for damage resulting from action or failure to take
action, which may not necessarily constitute a breach of
any law or duty of care.
IX. Public Trust Doctrine:
The State is not an absolute owner, but a trustee of all
natural resources, which are by nature meant for public
use and enjoyment, subject to reasonable conditions,
necessary to protect the legitimate interest of a large
number of people, or for matters of strategic national
interest.
X. Decentralization:
Decentralization involves ceding or transfer of power from
a Central Authority to State and Local Authorities, in order
to empower public authorities having jurisdiction at the
spatial level at which salient environmental issues are to
be addressed.
XI. Integration:
Integration refers

to the inclusion of environmental

considerations in sectoral policymaking, the integration of

the social and natural sciences in environment related
policy research, and the strengthening of relevant linkages
among various agencies at the Central, State, and Local
Self- Government where the environmental policies are to
be implemented.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

XII. Environmental Standard Setting:

Environmental standards must reflect the economic and
social

development

situation

in

which

they

apply.

Standards adopted in one society or situation may have

unacceptable economic and social costs in another society
or

context,

if

implemented

without

considering

the

consequences.
XIII. Preventive Action:
It is preferable to prevent environmental damage from
occurring in the first place, rather than attempting to
restore

degraded

environmental

resources

after

the

damage.
XIV. Environmental Offsetting:
There is a general obligation to protect threatened or
endangered species and natural systems that are of special
importance to sustaining life, providing livelihoods, or
general well-being. If for exceptional reasons of overriding
public interest such protection cannot be provided in
particular cases, cost-effective offsetting measures must be
undertaken by the proponents of the activity. It must aim
to restore the lost environmental services produce to the
same public in question.

CATEGORIES OF ENVIRONMENTAL GOVERNANCE

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

In order to address local to global concerns, environmental

governance could broadly be categorized at the following three
levels:
1. International Environmental Governance looking after
global environmental issues through multilateral environmental
agreements. In order to address the global environmental
concerns

(climate

change,

conservation

of

biodiversity,

desertification and management of persistent organic pollutants

etc) a number of multilateral environmental agreements (MEAs)
are in place. Most of these agreements were initiated under the
auspices

of

the

(UNEP).

After

United

Nations

negotiations,

Environment

these

MEAs

have

Programme
their

own

independent existence by way of their separate Secretariats

providing necessary programmatic support. The Conference of
Parties (COP) in case of Conventions and Meeting of Parties
(MOP) for Protocols are the supreme bodies consisting of all
Parties providing overall direction and guidance to such
international agreements. India is a party to most of these
multilateral environmental agreements.
2. National Environmental Governance a set of legislative
and

policy

measures

at

the

national

level

governing

environmental issues. These national policy measures could be

in response to either fulfilling international environmental
commitments

or

according

to

the

national

environmental

priorities. The Ozone Depleting Substances (Regulation) Rules in

India are in response to countrys obligation under the Montreal

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

Protocol while the Environment Protection Act, the Forest

Conservation and the Air and Water Pollution
(Prevention)
requirements.

Acts

are

In

case

driven
of

by

large

national
countries

environmental
as

India,

an

intermediate level of provincial / state level is also often in place.

The Constitution of India prescribes protection and improvement
of the natural environment including forests, lakes, rivers and
wild life and to have compassion for living creatures, as one of
the fundamental duties of every citizen of India. As a directive
principle of the state policy, Article 48A of the Constitution
states that the State shall endeavor to protect and improve the
environment and safeguard the forests and wildlife of the
country. The Public Interest Litigation (PIL) is a unique feature
of Indian judicial system. In fact an independent
Judiciary has been exceptionally effective in the area of
environment by achieving greater degree of compliance with the
laws and upholding the rights of citizens to acceptable quality of
water and air. A diverse developing society such as India
provides numerous challenges in the economic, social, political,
cultural and environmental arenas. As a major developing
country, India has a well-developed body of environmental laws.
The volume of these laws is gradually growing, bringing more
and more aspects into its fold. However, much more needs to be
in India regarding compliance with and enforcement of these
laws and regulations. It has been an endeavor in India to apply
the principles of good governance (transparency, rationality,
accountability, reduction in time and costs, participation and
regulatory independence) to the management and regulation of
use of environmental resources.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

3. Local Environmental Governance dealing with local

environmental issues and sharing of property rights over local
natural resources. Devolution of power to people through
constitutional amendments, in the nineties, is already showing
remarkable results in a number of areas. By transferring
management powers of 29 sectors of economy to village councils
and allowing them to raise resources through taxation, the first
major step in empowering people to manage their resources has
already been taken. The steps contemplated for the future are,
sharing of state and central revenue with village councils and
their direct involvement

in

management

of

social sector

activities and village infrastructure. Moving beyond the elected

representatives of village councils, a number of initiatives for
management of natural resources seek direct involvement of the
whole village, for example, Joint Forest Management, Watershed
Development

Committees

and

Participatory

irrigation

Management to mention a few. Clearly the emerging strategy is

to empower people to manage their resources to establish
sustainable livelihoods. The important thing is to understand
that the poor are not the problem. They are part of the solution.

III. JUDICIARIES AND SUSTAINABLE DEVELOPMENT

Courts also have played a crucial role in advancing the
Principles contained in the Stockholm and Rio Declarations.
They have produced numerous decisions that have contributed
to balancing environmental and developmental considerations,

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

promoting natural resources conservation and sustainable use,

achieving equity and justice, and, overall, implementing the
goals of sustainable development.
The principle of sustainable development has been discussed by
the International Court of Justice, in the Hungary- Slovak
Republic case on the Gabcikovo-Nagymaros Project. At the
national level, judiciaries throughout the world have made
significant contributions to the progressive development of this
body of law. The following is a brief overview of these legal
developments.
Continuous mandamus in the corpus of international and
national law; invocation of the extraordinary jurisdiction of
the Supreme Court in environmental matters; public
participation,

including

substantive

and

procedural

matters relating to public interest litigation10

Limits of the concepts of aggrieved person and locus
standi in regard to environmental damage11;
Interpretation of the Right to Life in Constitutions as
including the right to a healthy environment in which the
right to life itself may be enjoyed; inter-generational and
10

MC Mehta v Union of India & Ors, AIR 1988 Supreme Court 1037; Rural Litigation
and Entitlement Kendera v State of UP, AIR 1988 SC 2187; The Environmental
Foundation Limited & Ors v The Attorney General & Ors, Supreme Court of Sri Lanka
SC, Application No 128/91.
11

Dr Mohiuddin Farooque v Bangladesh, Represented by the Secretary, Ministry of

Irrigation, Water Resources & Flood Control & Ors: 48 DLR 1996, Supreme Court of
Bangladesh.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

intra-generational equity; court commissions to ascertain

facts and an authoritative assessment of the scientific and
technical

aspects

of

environment

and

development

issues;12
Publics right to information; obligation for continuous
environmental impact assessment13
Application of the public trust doctrine in regard to natural
resources and the environment14
Approaches to judicial reasoning in environmental matters
and the importance of promoting public awareness and
environmental education at secondary and tertiary levels15
The following is intended to provide a flavour of the manner in
which judges around the world have given judicial recognition to
the Principles of the Rio Declaration on Environment and
Development.
12

MC Mehta v Kamal Nath & Ors, Supreme Court of India (1997) Supreme Court Cases 388; Juan
Antonio Oposa and Others V. The Honourable Fulgencio S. Factoran and another, G.R.No: 101083,
Supreme Court of the Philippines.
13

Kajing Tubfk & Ors v Ekran BHD & Ors, Originating Summons No. 55 (21 June 1995)
High Court Kuala Lumpur; Movement Social de Petit Camp/Valentina v Ministry of the
Environment and Quality of Life, Mauritius Environment Appeal Tribunal (Cause No.
2/94).
14

MC Mehta v Kamal Nath & Ors, Supreme Court of India (1997) Supreme Court Cases
388); corporate responsibility. and liability (Charan Lal Sahu v Union of India (Bhopal
Case II) AIR 1990 Supreme Court 1480.
15

MC Mehta v Union of India & Ors, Supreme Court of India, Writ Petition Civil No 860
of 1991.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

Sovereignty and Jurisdiction

In 1997 the International Court of Justice (ICJ) prevented
Hungary from suspending and abandoning the works of the
Gabcikovo-Nagymaros Barrage System. In issuing its opinion,
the ICJ stated that the existence of the general obligation of
States to ensure that activities within their jurisdiction and
control respect the environment of other States or of areas
beyond national control is now part of the corpus of international
law relating to the environment.16
Inter-generational equity
In forbidding limestone mining operations in the Himalayan
foothills, the Supreme Court of India took into account the
interests of future generations in the unique legacy of the
Himalayan ecosystem, requested them by past generations. 17
Similarly,

the

need

to

defend

and

improve

the

human

environment for present and future generations was considered

by the Court in ordering the closure of several tanneries, despite
the unemployment resulting from such an order. 18 Likewise, the
Philippines judiciary agreed to afford legal standing to a group
of petitioners that sued on behalf of future generations. The
Court determined that every generation has a responsibility to

16

International Court of Justice, 1997 General List No. 92, 25 September 1997, Case
Concerning The Gabcikovo-Nagymaros Project.
17

18

Rural Litigation and Entitlement Kendera V. State Of U.P., AIR 1988 SC 2187.
M.C. Mehta V. Union of India and others, Air 1988 Supreme Court 1037

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

the next to preserve nature for the full and healthful enjoyment
of its ecology.19
Access to information
In South Africa, applicants were granted the right to require
information on how the construction of a development project in
an area in which they intended to build a holiday house would
affect the environment.20 Ugandas judiciary stated that every
citizen has a right of access to information in the possession of
the State.21 From a different perspective, the Ukrainian judiciary
stated that an applicant for a project with environmental
consequences

should

announce

the

findings

of

the

state

environmental expert body on the proposed project through the

mass media.22 The Supreme Court of India, in response to a
petitioners request for issuing a court directive on the
importance of public information in environmental matters,
called on cinemas and video parlours to project environmental
messages and films about environmental issues and requested
that radio companies make programs on environment and
pollution.

23

19

Juan Antonio Oposa and Others V. The Honourable Fulgencio S. Factoran and another,
G.R.No: 101083, Supreme Court
20

Van Huyssteen & Others v Minister of Environmental Affairs & Tourism & Others
1996 (1) SA 283 (c)
21

Greenwatch Limited v Attorney General And Uganda Electricity Transmission

Company Ltd, HTC-00-CV-MC-0139 of 2001, High Court of Uganda at Kampala
22

Joint Stock Company "Okean" Ministry of Environmental Protection and Nuclear

Safety of Ukraine, Case No. 1/47 1997
23

M.C. Mehta V. Union of India and others, Supreme Court Of India, Writ Petition (Civil) No. 860
of 1991

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

Public participation
In Chile, the judiciary upheld the standing of a party that
challenged the validity of a resolution that admitted the
technical viability of a project thataccording to the same
resolutiondid not fulfill the requirements for its environmental
viability.24
The Supreme Court of Bangladesh granted legal standing to the
representative of an environmental association that challenged
the implementation of a flood control plan. The original court
had dismissed the petition by establishing that the petitioner
was not an aggrieved person within the meaning of the
Constitution. However, on appeal, standing was granted by
treating the association as a person aggrieved within the
meaning the Constitution because the cause it bona fide
espouses,

both

in

respect

of

fundamental

rights

and

constitutional remedies, is a cause of an in determinate number

of people in respect of a subject matter of great public
concern.25
Likewise, the Supreme Court of Nepal granted standing to a
petitioner who complained that the construction of a building on
the banks of Rani Pokhari destroyed the beauty of a historical
and

archaeological

site

and

sought

orders

to

stop

the

construction as well as demolish all the structures already

constructed. The court held that 1) it was an obligation of the
24

Antonio Horvath Kiss and others v National Commission for the Environment, Supreme
Court March 19 1997
25

Dr. Mohiuddin Farooque V.Bangladesh, Represented by The Secretary, Ministry of

Irrigation, Water Resources & Flood Control and others;48 Dlr 1996, Supreme Court of
Bangladesh, Appellate Division (Civil)

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

Nepalese government to apply the commitments it made under

The Convention for the Protection of the World Cultural and
Natural Heritage 1972 and 2) every individual was entitled to
show concern for public property and public rights in terms of
Art 88(2) of the Constitution of the Kingdom of Nepal of 1990.26
Precautionary Principle
In a recent decision, Argentinas judiciary ordered the temporary
suspension of a project that sought to build an electricity grid
above a human settlement. By finding support within Argentinas
environmental

legal

framework

and

other

international

instruments, this decision ordered the defendant to present a

report on the probable negative effects that the resulting
electromagnetic fields could have on human health, as well as
how they could be prevented.27 In a similar case, the Supreme
Court of Pakistan accepted the need to apply the precautionary
principle and appointed a commissioner to study the likelihood
of adverse effects of a proposed electricity grid on local
residents.28
A Colombian administrative tribunal called on the national
government to end spraying over illicit drug crops until scientific
studies on the effects of the chemicals used on human health
were carried out.29 When confronted with an action that sought
to stop industries from discharging untreated effluent into
26

Prakash Mani Sharma and others on behalf of Pro Public V. Honorable Prime Minister Girija
Prasad Koirala and others, 312 NRL 1997, Supreme Court of Nepal
27

Asociacin Coordinadora de Usuarios, Consumidores y Contribuyentes V. ENRE EDESUR, Camara Federal de Apelaciones de La Plata, Sala 2a, July 8, 2003
28

Ms. Shehla Zia And Others V. Wapda, Human Rights Case No: 15-K of 1992, Supreme
Court

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

agricultural fields, the Supreme Court of India called upon the

government to create an authority that would address polluting
industries. After announcing that the precautionary principle
had

become

international

customary

law,

the

Court

recommended that the announced authority consider this

principle.30 Australias judiciary has explicitly recognized the
binding force of the precautionary principle. The Land and
Environment Court of New South Wales stated that the lack of
full scientific certainty should not be used as a reason for
postponing measures that avoid potential threats.31
When asked to deny the construction of a power station because
of its negative impact on the Earths atmosphere (greenhouse
effect),

magistrates

court

in

Australia

held

that

the

precautionary principle does not give a special preference to the

consideration

of

greenhouse

impacts

above

development

projects that demonstrate the capacity to address environmental

concerns.32
Polluter Pays
The polluter pays principle has been recognized within the
jurisdiction of the Supreme Court of India, which has held that
along with the precautionary principle- the polluter pays
29

Claudia Sampedro y Hctor A. Surez v Ministry of the Environment and Direction of

Stupefacient Substances, Administrative Tribunal of Cundinamarca, June 13 2003
30

Vellore Citizens Welfare Forum V. Union of India, Supreme Court of India, Air 1996 SC
2715
31

Leach V. National Parks And Wildlife Service And Shoalhaven City Council, Land and
Environment Court of New South Wales, 81 Lgera 270 (1993)
32

Greenpeace Australia Ltd V. Redbank Power Company Pty. Ltd. and Singleton Council,
Land and Environment Court of New South Wales, 86 Lgera 143 (1994)

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

principle is a part of customary international law.33 Following

similar reasoning, the Supreme Court of India held a company
liable for the diversion of a stream and ordered payment of
compensation to restore damages to the environment, invoking
the Polluter Pays Principle.34

Right to Information
Principle 10 of Agenda 21 of Rio Declaration on Environment
and Development underlined the importance of access to
information in managing environmental issues:
..At the national level, each individual shall have
appropriate access to information concerning the
environment

that

is

held

by

public

authorities,

including information on hazardous materials and

activities in their communities, and the opportunity to
participate in decision-making processes. States shall
facilitate

and

encourage

public

awareness

and

participation by making information widely available.

Effective

access

to

judicial

and

administrative

proceedings, including redress and remedy, shall be

provided...
The government of India has taken a bold step in the direction of
ensuring access to information through Right to Information Act
(RTI). Despite certain weaknesses, the bill has been celebrated
33

Vellore Citizens Welfare Forum V. Union of India, Supreme Court of India, Air 1996
SC2715
34

M.C. Mehta V. Kamal Nath and others, Supreme Court of India, (1997)1 Supreme Court
Cases 388

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

as a major step towards ensuring accountability of people in

government to those supposed to be governed.35
1. A strong and independent information commission as
an appellate authority, both at the central and state
level, with the power to impose penalties. Penalties,
including a fine for each day of delay in providing
information, and fines and departmental action for a
host of other violations, include refusal to accept a
request

for

information,

the

giving

of

false

information and the destruction of information.

2. Applicability of the Act to the Central and state
governments, and to local bodies.
3.

Suo

moto

disclosure

of

various

categories

of

information.
In particular, following provisions of the Act will facilitate
environmental governance:36

"Right to Information" also includes the right to- (i)

inspection of work, documents, records;

All government agencies to publish within one hundred

and twenty days from the enactment of this Act,(i) the particulars of its organization, functions and
duties;

35

MKSS (2005): MKSS on new Right to Information Act. Circulated on Jivika Listserv
(jivika@yahoogroups.com)
36

www.freedominfo.org, 2005

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

(ii) the powers and duties of its officers and

employees;
(iii) the procedure followed in the decision making
process,

including channels of supervision and

accountability;
(iv) the norms set by it for the discharge of its
functions;
More importantly, the act also prescribes proactive steps to be
taken by various authorities/agencies to disclose by its own
initiatives information that may be of interest to the citizens:
(1) Every public authority shall
(a) maintain all its records duly catalogued and indexed in
a manner and form which facilitates the right to information
under this Act and ensure that all records that are appropriate
to be computerized are, within a reasonable time and subject to
availability of resources, computerized and connected through a
network all over the country on different systems so that access
to such records is facilitated;
(b) publish within one hundred and twenty days from the
enactment of this Act,i.
ii.
iii.

the particulars of its organization, functions and duties;

the powers and duties of its officers and employees;
the procedure followed in the decision making process,
including channels of supervision and accountability;

iv.
v.

the norms set by it for the discharge of its functions;

the rules, regulations, instructions, manuals and records,
held by it or under its control or used by its employees for
discharging its functions;

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

vi.

2016

a statement of the categories of documents that are held

by it or under its control;

vii.

the

particulars

of

any

arrangement

that

exists

for

consultation with, or representation by, the members of

the public in relation to the formulation of its policy or
implementation thereof;
viii.

a statement of the boards, councils, committees and other

bodies consisting of two or more persons constituted as its
part or for the purpose of its advise, and as to whether
meetings of those boards, councils, committees and other
bodies are open to the public, or the minutes 'of such
meetings are accessible for public;

ix.
x.

a directory of its officers and employees;

the monthly remuneration received by each of its officers
and employees, including the system of compensation as
provided in its regulations;

xi.

the budget allocated to each of its agency, indicating the

particulars of all plans, proposed expenditures and reports
on disbursements made;

xii.

the manner of execution of subsidy programs, including

the amounts allocated and the details of beneficiaries of
such programs;

xiii.

particulars

of

recipients

of

concessions,

permits

or

authorizations granted by it;

xiv.

details in respect of the information, available to or held by

it, reduced in an electronic form;

xv.

the particulars of facilities available to citizens for

obtaining information, including the working hours of a
library or reading room, if maintained for public use;

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

xvi.

2016

the names, designations and other particulars of the Public

Information Officers; ,

xvii.

such

other

information

as

may

be

prescribed;

and

thereafter update these publications every year;

(c) publish all relevant facts while formulating important
policies or
announcing the decisions which affect public;
(d) provide reasons for its administrative or quasi judicial
decisions to affected persons;
(2) It shall be a constant endeavour of every public authority to
take steps in accordance with the requirements of clause (b) of
sub-section (1) to provide as much information suo-moto to the
public

at

regular

intervals

through

various

means

of

communications, including internet, so that the public have

minimum resort to the use of this Act to obtain information.
However, availability of information is only the first step in the
direction of achieving a truly democratic governance system,
especially in countries such as India where perspectives on
issues vary tremendously from one stakeholder to another.
Strengthening capacities of local governance institutions is one
way of translating information into empowerment.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

CONCLUSION
Judicial decisions are prone to a less efficacious enforcement in
the area of corporate environmental management. When Courts
by way of remedial action prescribe compensation to be paid,
very few corporate bodies actually end up paying the amount.
This is due to the poor enforcement, low inclination and most
often, the inability to pay these enormous sums. Such a situation
leaves the people affected helpless, with no remedy. It also leads
to instances of the concerned Government being directed to pay
the compensation in certain cases, such as the Union Carbide.
This only means an additional burden on the taxpayers
indirectly. Very often, the errant corporation escapes with little
or no liability. It is also seen that most cases invo1ving
environmental mismanagement by large corporations involve

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

attempts to settle the dispute through compromises, such as the

Bhopal Gas case. There may be instances of inequitable solutions
reached,

which

only

disadvantage

the

affected

parties.

Moreover, this cannot be an advisable precedent as corporations

would then manipulate this loophole and continue their pollution
of the environment. In addition to the practical inability of
enforcement, the judiciary often places an over emphasis on the
constitutional origins of the right to environment through Article
21. This approach has the effect of encouraging the emerging,
yet vague, concept to the detriment of more specific domestic
legislations on the point. Moreover, the Court often has to invoke
its inherent power to suit a situation that does not strictly fall
under the various legislations. This makes the entire process
unpredictable and uncertain. This area of law requires precise
judicial precedents to be laid down, which are capable of
checking damage caused by industrial disasters. It is submitted
that the judiciary has a very limited role to play in the scheme of
corporate environmental management. It only seeks to enforce
what is laid down by the Central Government and the various
legislations.
However, area of corporate environmental management requires
constant innovations and flexibility to suit the situation. This
ability, due to the nature of the judicial function as a law
enforcer, does not lie with the judiciary. There is thus a need to
conceive of a scheme of corporate environmental management in
India, which is not entirely judicially based. It is proposed that
the scheme involve codes for industrial activity to be followed by
corporate entities, backed by legislation and checked by the
judiciary.

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

BIBLIOGRAPHY
ARTICLES REFERRED
1. Boyer, Brook (2001): Institutional Coordination, Multistakeholder Participation and the Implementation of MEAs
National Experiences of Malaysia and Thailand. Paper
prepared for the Regional Consultation / Workshop on
Inter-linkages, Kuala Lumpur, 26-27 February 2001. United
Nations University
2. Gupta, Anil K. and Mohammad Yunus (2004): India and the
WSSD (Rio + 10), Johannesburg: Issues of national
concern and international strategies. VOL. 87, NO. 1, 10
JULY 2004. CURRENT SCIENCE.
3. Harashima, Yohei (2000): Research Note Environmental
Governance in Selected Asian Developing Countries.
International Review for Environmental Strategies Vol.1,
No.1, pp. 193 207, 2000 Institute for Global
Environmental Strategies.
4. Ivanova, Maria (2005): Assessing UNEP as Anchor
Institution for the Global Environment: Lessons for the
UNEO Debate Working Paper No. 05/01 available online at
http://www.yale.edu/gegproject/uneo-wp.pdf.
Yale
University. Yale Center for Environmental Law & Policy
5. MKSS (2005): MKSS on new Right to Information Act.
Circulated on Jivika Listserv (jivika@yahoogroups.com)

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

6. Mugabe, John And Godber W. Tumushabe (1999):

Environmental governance: Conceptual and emerging
issues in H.W.O. Okoth-Ogendo Godber & W. Tumushabe.
Editors (1999). Governing
7. Speth, James Gustave (2002): The Global Environmental
Agenda: Origins and Prospects in Esty, Daniel C. and
Maria H. Ivanova, Editors. (2002): Global Environmental
Governance Options & Opportunities. Yale school of
forestry & environmental studies
8. The Environment. Political Change and Natural Resources
Management in Eastern and Southern Africa. African
Centre for Technology Studies (ACTS). Nairobi, Kenya.
1999
9. WBCSD (2000): Corporate Social Responsibility- World
Business Council for Sustainable Development.
10.

WRI 2003

11.
Zarsky,
Lyuba
(1998):
A
Human
Rights/Environmental Ombudsperson: From Concept To
Design:
Creating
An
International
Environmental
Ombudsperson. Case Study Lessons and Design
Recommendations. The Earth Council. San Jos, Costa
CASES REFERRED
1. Antonio Horvath Kiss and others v National Commission
for the Environment, Supreme Court March 19 1997
2. Asociacin Coordinadora de Usuarios, Consumidores y
Contribuyentes V. ENRE - EDESUR, Camara Federal de
Apelaciones de La Plata, Sala 2a, July 8, 2003
3. Charan Lal Sahu v Union of India (Bhopal Case II) AIR
1990 Supreme Court 1480
4. Claudia Sampedro y Hctor A. Surez v Ministry of the
Environment and Direction of Stupefacient Substances,
Administrative Tribunal of Cundinamarca, June 13 2003

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

5. Dr Mohiuddin Farooque v Bangladesh, Represented by the

Secretary, Ministry of Irrigation, Water Resources & Flood
Control & Ors: 48 DLR 1996, Supreme Court of
Bangladesh
6. Greenpeace Australia Ltd V. Redbank Power Company Pty.
Ltd. and Singleton Council, Land and Environment Court
of New South Wales, 86 Lgera 143 (1994)
7. Greenwatch Limited v Attorney General And Uganda
Electricity Transmission Company Ltd, HTC-00-CV-MC0139 of 2001, High Court of Uganda at Kampala
8. Joint Stock Company "Okean" Ministry of Environmental
Protection and Nuclear Safety of Ukraine, Case No. 1/47
1997
9. Juan Antonio Oposa and Others V. The Honourable
Fulgencio S. Factoran and another, G.R.No: 101083,
Supreme Court of the Philippines
10.
International Court of Justice, 1997 General List No.
92, 25 September 1997, Case Concerning The GabcikovoNagymaros Project
11.
Kajing Tubfk & Ors v Ekran BHD & Ors, Originating
Summons No. 55 (21 June 1995) High Court Kuala Lumpur
12.
Leach V. National Parks And Wildlife Service And
Shoalhaven City Council, Land and Environment Court of
New South Wales, 81 Lgera 270 (1993)
13.
MC Mehta v Kamal Nath & Ors, Supreme Court of
India (1997) Supreme Court Cases 388
14.
MC Mehta v Union of India & Ors, AIR 1988
Supreme Court 1037;
15.
MC Mehta v Union of India & Ors, Supreme Court of
India, Writ Petition Civil No 860 of 1991

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

2016

16.
Movement Social de Petit Camp/Valentina v Ministry
of the Environment and Quality of Life, Mauritius
Environment Appeal Tribunal (Cause No. 2/94)
17.
Ms. Shehla Zia And Others V. Wapda, Human Rights
Case No: 15-K of 1992, Supreme Court
18.
Prakash Mani Sharma and others on behalf of Pro
Public V. Honorable Prime Minister Girija Prasad Koirala
and others, 312 NRL 1997, Supreme Court of Nepal
19.
Rural Litigation and Entitlement Kendera v State of
UP, AIR 1988 SC 2187;
20.
The Environmental Foundation Limited & Ors v The
Attorney General & Ors,
21.
Supreme Court of Sri Lanka SC, Application No
128/91
22.
Van Huyssteen & Others v Minister of Environmental
Affairs & Tourism & Others 1996 (1) SA 283 (c)
23.
Vellore Citizens Welfare Forum V. Union of India,
Supreme Court of India, Air 1996 SC 2715