Environmental protection laws in India: An appraisal of the judiciary's role

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Judiciary And TheEnvironmental

Protection Laws In India: An Appraisal
Introduction
It is interesting to note that natural resourceshad been stored
virtually untouched in the Earth for millions of years. Butsince the
start of the industrial revolution vast amounts of these resources
hadbeen exploited within a period of just a couple of hundred of years
atunimaginable rates, with all the waste from this exploitation going
(https://www.academicknowledge.com?
straight inthe environment (air, water, land) and seriously damaging
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its natural processes.Although pollution had been known to exist for a
very long time (at least sincepeople started using fire thousands of
years ago), it had seen the growth oftruly global proportions only
since the onset of the industrial revolutionduring the 19th century. Dissertation Writing
INTERESTED IN ORDERING?
Service
Environmental degradation in India has beencaused by a variety of
social, economic, institutional and technologicalfactors. Rapidly
Our Dissertation
growing population, urbanization and industrial activities haveall
https://www.lawteacher.net/free-law-essays/environmental-law/environmental-protection-laws-in-india.php 1/15
resulted in considerable deterioration in the quality and sustainability Writing service

ofthe environment. Environmental ethics have also formed an can help with
inherent part ofIndian religious precepts and philosophy. Worship of everything from
nature - Sun, Moon, Earth,Air and Water - was not merely a primitive full dissertations
man's response to the fear of theunknown, but it arose from the deep to individual
reverence shown to the forces of naturewhich sustained and chapters.
preserved human life on earth. The basic tenet thatunderlies this deep
(/services/law-dissertation-
reverence for nature is the belief that life is a singular,continuous and
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uniform phenomenon and even a small change in one part of theeco-
system is likely to reverberate throughout. Guru Nanak (Founder of
the SikhReligion, 1469-1539), said ‘Pawan Guru, Pani Pita Mata Dhart Marking Service
Mahat, Divis RaatDoi Daia, Khele Sagal Jagat' (Air is like God, Water is
father and Earth is themother. It is through the harmonious Our Marking
interaction of all these three vitalingredients that the whole universe Service will help
is being sustained). The ancient Greeks, onthe same reasoning, you pick out the
revered the Earth as Gaia, the Earth Goddess. areas of your
work that need
The importance of Judiciary in a democratic setup for protection of
improvement.
life and personal rights can hardly be overestimated. Indiahas a
highly developed judicial system with the Supreme Court having (/services/law-marking-
plenarypowers to make any order for doing complete justice in any service.php)
cause or matter and amandate in the Constitution, to all authorities,
Civil and Judicial, in theterritory of India to act in aide of the Supreme
Court. The scope of WritJurisdiction of the High Courts is wiser than All Writing Services
traditionally understood and thejudiciary is separate and independent
of the executive to ensure impartiality inadministration of justice. The Fully referenced,
judiciary has a central role to play in thisthriving democracy and delivered on time.
shuns arbitrary executive action. The higher judiciaryhas been Get the extra
empowered to pronounce upon the legislative competence of the support you
lawmaking bodies and the validity of a legal provision. The range of require now.
judicialreview recognized in the higher judiciary in India is the widest (/services/)
and mostextensive known to any democratic set up in the world.
Liberty and Equality havewell survived and thrived in India due to
the pro-active role played by theIndian judiciary. OSCOLA Referencing 
In considering the role of the judiciary inenvironmental governance,

Case Summaries 
there are two issues that need to be considered. Thefirst is the role the INTERESTED IN ORDERING?
judiciary in the interpretation of environmental law andin law
Act Summaries 
making and the second is the capability of jurists to
effectivelyinterpret the increasingly cross-linked issues brought to
Lecture Notes 
their attention. Forthe judiciary, probably the burden of
implementation is greater, as they mustnot only interpret laws that

Problem Question
incorporate the Rio Principles of sustainabledevelopment, including
Examples 
the polluter pays principle, the precautionary principle,and the
principle of continuous mandamus in the corpus of international
andnational law; inter- and intra-generational equity; importance of
traditionalvalues and ideas; interpretation of constitutional rights
including the right tolife and the right to a healthy environment, etc.,
but also have to weigh theseagainst economic and political principles.
Environment Protection Legislations

inIndia
With a view to protecting and improving theenvironment, different
legislations have been made and different regulations,rules have been
issued. The Government of India, through its Ministry ofEnvironment
and Forests is administering has enacted nation wide
comprehensivelaws. One of the major environmental enactments
came just two years after theStockholm Conference in 1974. The
Water (Prevention and Control of Pollution)Act was passed for the
purpose of prevention and control of water pollution andfor
maintaining and restoring the wholesomeness of water. The Water
Actrepresented India's first attempt to deal with an environmental
issue from alegal perspective.
From this period onwards, the Central Governmenthas been

considered as highly environmentally active. In 1976, the
Constitutionof India was amended to insert a separate fundamental
duties chapter. The 1980switnessed the creation of many eco-specific
organizations. In the year 1980, theForest (Conservation) Act was
passed for the conservation of forests and tocheck on further
deforestation. The Air (Prevention and Control of Pollution)Act of
1981 was enacted by invoking the Central Government's power under
Art253. The Air Act contained several distinguishing features. The
preamble of theAir Act explicitly reveals that the Act represents an
implementation of thedecisions made at the Stockholm Conference.
Also, a notification relating toNoise Pollution (Regulation & Control)
Rules was made in the year 2000 withthe objective of maintaining INTERESTED IN ORDERING?
Ambient Air Quality Standards in respect ofnoise.
In the wake of the Bhopal gas tragedy, theGovernment of India

enacted the Environment (Protection) Act, 1986. The lawsthat existed
prior to the enactment of EPA essentially focused on specificpollution
(such as air and water). The need for a single authority which
couldassume the lead role for environmental protection was
answered through theenactment of EPA. It is in the form of an
umbrella legislation designed toprovide a framework for Central
Government to coordinate the activities ofvarious central and state
authorities established under previous laws. It isalso in the form of an
enabling law, which delegates wide powers to theexecutive to enable
bureaucrats to frame necessary rules andregulations.
Apart from this, several notifications and ruleshave also been made,
some of which include the Hazardous Wastes (Management
andHandling) Rules in 1989, the Biomedical Wastes (Management and
Handling) Rulesin 1998, Recycled Plastics (Manufacture and Usage)
Rules 1999, Environment(Silting for Industrial Projects) Rules 1999
and the Municipal Solid Wastes(Management and Handling) Rules in
2000.In addition to these eco-specificlegislations, realizing that there
is no comprehensive legislation dealing withbiodiversity in India, and
to fulfill its international obligation under theConvention on Bio-
Diversity, the Government of India has enacted the BiologicalDiversity
Act, 2002.
It is a paradox that despite the presence ofsuch diverse laws, the

pollution rate has crossed the dead line. This isprobably because of
the reason that the law is so complicated and vague thateven the
experts may not know the intricacies of it.
TheJudiciary in India has been taking steps for directing state

agencies, tostrictly adhere to the legislations in protecting the
environment and totallyarresting the various manmade disasters. The
Judiciary has taken such stepsespecially, because of the various public
interest litigations arisen out ofmanmade disasters such as Bhopal Gas
tragedy etc. Itwas held in MC Mehta Vs Union of India and others, that
one of the principlesunderlying environmental law is sustainable
development. This principle requiresdevelopment to take place which
ecologically sustainable. It was further heldthat there are two INTERESTED IN ORDERING?
essential features of sustainable development such asprecautionary
principle and polluter pays principle. The precautionary principlewas
elucidated by the Supreme Court in Vellore Citizens' Welfare Forum Vs
Unionof India and other states that the state government and its
agencies muchanticipate, prevent, and attack the causes of
environmental degradation. Statesshould not take up any activity and
measure which is not environmentally benign.It seems that lack of
sufficient funds allocation to the Ministry of Environmentand Forests,
lack of sufficient number of qualified and trained staff such
asacademicians, legal professionals, medical experts and technologists
in theMinistry and its subordinate offices all over the country, lack of
commitment ofthe people and awareness about the environment
protection and improvement,complicated procedures for approvals
and authorizations of the Pollution ControlBoards, are the main
reasons for ineffective implementation of environmentslaws. If
proper reforms are made in this area, probably the environmental
lawswill be implemented effectively thereby ensuring problem
freeenvironment.
Environment Protection Laws and

theJudiciary
The right to live in a clean and healthyenvironment is not a recent
invention of the higher judiciary in India. Theright has been
recognized by the legal system and the judiciary in particularfor over
a century or so. The only difference in the enjoyment of the right
tolive in a clean and healthy environment today is that it has attained
the statusof a fundamental right the violation of which, the
Constitution of India willnot permit.
It was only from the late eighties andthereafter, various High Courts
and the Supreme Court of India have designatedthis right as a
fundamental right. Prior to this period, as pointed out earlier,people
had enjoyed this right not as a constitutionally guaranteed
fundamentalright but as a right recognized and enforced by the courts
under different lawslike Law of Torts, Indian Penal Code, Civil
Procedure Code, Criminal ProcedureCode etc. In today's emerging
jurisprudence, environmental rights whichencompass a group of
collective rights are described as third generationrights.
There has been a change in the judicialinterpretation of Article 21
ever since the case of Maneka Gandhi v. Union of India and Anr. The
understanding of the words ‘life' and ‘personalliberty' is much more
than the mere literal implication. It extends to includeimproving the

worth of life making it safer and more whole. This way manydirective
principles have been covered under the ambit of Article 21 making
itenforceable in the court of law. Among the aspects that have come
under thebroadened outlook of Article 21 is the protection and
improvement of the ecologyand environment.
Principle 1, 1972 Stockholm Declaration affirmsthat "Man has the

fundamental right to freedom, equality and adequate conditionsof
life, in an environment of quality that permits a life of dignity
andwell-being, and he bears a solemn responsibility to protect and
improve theenvironment for present and future generations..." This
showsthat it has been internationally recognized that man's
fundamental rightsembraces the need to live in an uncontaminated
environment but it also putsforth man's obligation to protect the
environment for posterity.
The Supreme Court has laid down that the"Precautionary principle"

and the "Polluter Pays Principle" are essentialfeatures of "sustainable
development". These concepts are part of EnvironmentLaw of the
country.
The "Precautionary Principle" establishes that alack of information

does not justify the absence of management measures. On
thecontrary, management measures should be established in order to
maintain theconservation of the resources. The assumptions and
methods used for thedetermination of the scientific basis of the
management should bepresented.
The ‘polluter pays' principle came about in the1970's when the

importance of the environment and its protection was taken inworld
over. It was subsequently promoted by the Organization for
EconomicCooperation and development (OECD).The ‘polluter pays'
principle as interpretedby the Court means that the absolute liability
for harm to the environmentextends not only to compensate the
victims of pollution but also the cost ofrestoring the environmental
degradation.
The Court has also evolved the special burden ofproof in INTERESTED IN ORDERING?
environmental cases. In the case of Vellore Citizens Welfare Forum
v.Union of India, the Court has stated that:"The onus of proof is on the
actor orthe developer/industrialist to show that his actions is

environmentallybenign".
For the first time in the case of Subash Kumarv. State of Bihar, the
court declared that the right to life under Art 21includes the right to
clean water and air. In the same case, the rule of locusstandi was
enlarged so that the court could take cognizance of
environmentaldegradation and regulate the prevention of the same in
an effective manner. InVirender Gaur v. State of Haryana, the Apex
Court conformed that for everycitizen, there exists a constitutional
right to healthy environment and furtherconferred a mandatory duty
on the state to protect and preserve this humanright. Another
landmark and revolutionary judgement is Indian Council forEnviro-
Legal Action vs. Union of India, a case concerned serious damage
bycertain industries producing toxic chemicals to the environment of
BichhriDistrict in Rajasthan. Directions for the closure of the industry
were given andthe decision in the Oleum Gas Leak case regarding
absolute liability forpollution by hazardous industries was
reaffirmed. Moreover, the polluter paysprinciple was explicitly
applied for the first time in the Bichhricase.
A foundation for the application of thePrecautionary Principle, the

Polluter Pays Principle and SustainableDevelopment, having been laid
down, the three principles were applied togetherfor the first time by
the Supreme Court in Vellore Citizens Welfare Forum v.Union of India,
a case concerning pollution being caused due to the discharge
ofuntreated effluents from tanneries in the state of Tamil Nadu. The
Court,referring to the precautionary principle, polluter pays principle
and the newconcept of onus of proof, supported with the
constitutional provisions of Art.21, 47, 48A and 51A (g) and declared
that these doctrines have become part ofthe environmental law of the
country.
The Public Trust Doctrine, evolved in M.C. Mehtav. Kamal Nath, states
that certain common properties such as rivers, forests,seashores and
the air were held by Government in Trusteeship for the free
andunimpeded use of the general public. Granting lease to a motel
located at thebank of the River Beas would interfere with the natural INTERESTED IN ORDERING?
flow of the water andthat the State Government had breached the
public trust doctrine.
A matter regarding the vehicular pollution inDelhi city, in the context

of Art 47 and 48 of the Constitution came up forconsideration in M.C.
Mehta vs. Union of India (Vehicular Pollution Case). Itwas held to be
the duty of the Government to see that the air did not
becomecontaminated due to vehicular pollution. The Apex court
again confirming theright to healthy environment as a basic human
right stated that the right toclean air also stemmed from Art 21 which
referred to right to life. This casehas served to be a major landmark
because of which lead-free petrol supply wasintroduced in Delhi.
There was a complete phasing out old commercial vehiclesmore than
5 years old as directed by the courts. Delhi owes its present
climaticconditions to the attempt made to maintain clean air.
In the very recent case of T.N. GodavarmanThirumulpad v. Union of

India, a case concerning conservation of forests,Justice Y.K.
Sabharwal, held: ...Considering the compulsions of the States andthe
depletion of forest, legislative measures have shifted the
responsibilityfrom States to the Centre. Moreover any threat to the
ecology can lead toviolation of the right of enjoyment of healthy life
guaranteed under Art 21,which is required to be protected. The
Constitution enjoins upon this Court aduty to protect the
environment.
The Patna High Court in Rajiv Ranjan Singh v.State of Bihar held that
failure to protect the inhabitant of the locality fromthe poisonous and
highly injurious effects of the distillery's affluents andfumes
amounted to an infringement of the inhabitants' rights guaranteed
underArts. 14 and 21 read with Arts. 47 and 48-A of the Constitution of
India. TheCourt further directed in this case that if any person has
contracted anyailment, the cause of which can be directly related to
the affluent dischargedby the distillery the company shall have to
bear all the expenses of histreatment and the question of awarding
the suitable compensation to the victimmay also be considered.
Following a long course of active interpretationof constitutional and

legislative clauses by the judiciary and vigorous effortsof some green
citizens, the Indian environmental scenario has undergone apositive
change. The Indian environmental jurisprudence was in a deep INTERESTED IN ORDERING?
slumber.But today, the environmental consciousness imported by the
courts, mingled withsubsequent legislative efforts in the later years,
introduced the right toenvironment as a fundamental right.
The law relating to environment under Article 21is thus evolving in a

phase wise manner and is getting shaped into a welldefined
commandment. The extended view of Article 21 recognizes an
individual'sright to live in a pollution free environment as it
contributes towardsimproving one's quality of life. Thus any citizen
can resort to filing writpetitions under Article 226 or Article 32 to take
recourse against environmentalpollution as it is detrimental to the
quality of life.
Judicial Activism
Theterm judicial activism is used to refer to the ‘extended arm of
judiciary' orthe increasing active interest that the judiciary is taking
in our every daylife. This ‘activism' on the part of the judiciary derives
its constitutionallegitimacy from Art. 141 of the Constitution which
lays down that the SupremeCourt's declaration of law is final and Art.
13 which empowers the judges todeclare any law null and void if it
was found to be against the provisions ofPart III of the Constitution.
Its areas of activity are widening such as PublicInterest Litigation,
writ petitions under Art. 32, interpretation of Arts. 12,14, 19, 21 etc.
Different interpretations are being given to the termjudicial activism.

Justice Kuldip Singh has said that the term judicial activismwas a
misnomer as the judiciary was only doing what the Constitution
hadenjoined upon it. P.P. Rao, a Supreme Court lawyer and a jurist felt
that thebasic cause of judicial activism is the non-existence of
effective government,whereas Rajeev Dhawan felt that activist
judiciary was one which was dedicatedto mould the law and its
interpretations to achieve social justice and rule oflaw aims of the
Constitution. Meera Sapatnekar, on the other hand feels that theobject
of the judiciary is to clear out all social, political and nationalmaladies
of the country as the executive has failed to perform its duties
andmade it necessary for the judiciary to intervene to give justice to
the peopleand the nation. The Vice-President, Mohammad Hamid
Ansari has attributed theover-activism of the judiciary mainly to the
‘downward spiral' of the rule oflaw and malfunctioning of the
institutions of the State, particularly theexecutive. INTERESTED IN ORDERING?
Governance, as we all know, is a decision making process,which has
always existed since the dawn of human civilization. The role
ofjudiciary lies in protecting the interest of individuals and others
against themisuse of power by public authorities. Despite judicial

review and PublicInterest Litigation, there is an erosion of public
confidence in the systemitself due to lack of effective access to justice,
huge backlog of cases andlong delay in decisions.
"The keys to good governance, as articulated bythe United Nations

Development Programme, are rule of law, participation,
andaccountability and transparency." The role of the judicial branch
of governmentis critical in ensuring the implementation of the
principles of both the rulesof law and accountability. Firstly, the
functioning of a society according tothe rule of law is based on the
judiciary. Secondly, the judiciary ensures theaccountability of other
institutions of government and individuals.
Inthe case of environmental governance, the judiciary also has the

difficult roleof considering not only environmental instruments, but
also economic,developmental and political as well as social
instruments. The compliance andenforcement of sustainable
development instruments also serves in the promotionof synergies or
inter-linkages among multiple issues, also known as theinter-linkages
approach. This is because compliance and enforcement
requirescooperation and coherence in policies across multiple
departments and branchesof government.
On environmental lawinterpretation and law making, although most

people would argue that judges arethere merely to interpret
legislation and not to make laws, severaldistinguished jurists have
pointed out that the judiciary also contributes to defacto "law making"
through precedents. On the capability of jurists, severalissues need
attention, but one possible solution is the enhancement of
theirawareness and knowledge of global and regional environmental
issues viewed froma wider context of sustainable development. In the
Johannesburg Principles, theglobal judiciary expressly recognized this
fact and called on UNEP and otherorganizations within and outside
the United Nations to actively support a majorcapacity building
programme for judges, prosecutors, enforcement officers
andrepresentatives of civil society organizations that are engaged in
safeguardingthe environmental rights of citizens. INTERESTED IN ORDERING?
Statutory interpretation and

InternationalTreaties
As provided by Article 51(c) of the Constitutionof India, the State is
under a constitutional directive to endeavor to fosterrespect for
international law and treaty obligations in the dealings of
theorganized peoples with one another. Though the directive
principles of StatePolicy cannot be enforced in the Municipal Courts,
they are nonethelessfundamental in the governance of the Country.
The definition of ‘State' given inArticle 12 for part III of the
Constitution relating to Fundamental Rights andincorporated in
Article 36 for Part IV which contains the Directive Principlesof State
Policy; is very wide and includes judicial and quasi-judicialauthorities
also. Therefore, the courts in India are obliged to endeavor tofoster
respect for international law and obligations under the
internationaltreaties.
The constitutional concern for respectinginternational law including

international treaties and conventions is alsoreflected in Article 253
which, notwithstanding the distribution of legislativepowers between
the Federal Union and the States, empowers the Parliament to
makelaw for the whole or any part of the territory of India for
implementing anytreaty, agreement or convention with any other
Country or Countries or anydecision made at any international
Conference, association or other body. TheParliament is under Article
246 read with entry 14 of the Union List of subjectson which it can
legislate contained in Schedule VII of the Constitution,empowered to
legislate with respect to the subject of entering into treaties
andagreements with foreign countries and implementing of treaties,
agreements andconventions with foreign countries. However, barring
treaties which requirelegislation to be made, the international
agreements entered into by the Unionin exercise of its executive
power under Article 73 which are not contrary tolaw are required to
be recognized by the Municipal Courts. For entering intotreaty or
bringing it in force for India, it is not a Constitutional requirementthat
the executive should have the support of Parliamentarylegislation.
Ininterpreting a statute, the Courts in India would, so far as its
languagepermits, construe it so as not to be inconsistent with the
comity of nations orthe established rules of International law. If the
terms of the legislation arenot clear and are reasonably capable of

more than one meaning, the internationalagreements or conventions
on the points become relevant, for, there is a primafacie presumption
that Parliament does not intend to act in breach ofInternational law,
including therein specific treaty obligations; and if one ofthe
meanings which can reasonably be ascribed to the legislation is
consonantwith the treaty obligations and the other is not, the meaning
which is consonantis to be preferred. Where an international
agreement is incorporated in anIndian Statute, the statute should be
construed with a view to attaininguniformity in the different
jurisdictions in which the agreement operates. Thisis ordinarily the
approach of Courts in India while dealing with the mattersrelating to
various rights which is warranted by the Constitutional directive tothe
State to foster respect for International law and treatyobligations.
Trail smelter Arbitration is the father ofdevelopments in the area of

International Environmental Law. It concerns withshort range Tran
frontier Air Pollution by Sulfur Dioxide fumes originating inCanada
and causing damage in the U.S. Moreover, India has ratified the
1933London Convention related to the Preservation of Fauna and
Flora in theirNatural State. India also ratified the 1951 Rome
International Plant ProtectionConvention. India, became a member of
the these institutions and ensured itssupport to them. India also
participated in the United Nations Conference onHuman
Environment, popularly known as the Stockholm Conference, held in
1972which resulted in codification of environmental law in India.
In addition to the above, India is a party tothe various international

environmental agreements. The following is the list ofsuch
agreements:
International Convention for the Regulation ofWhaling, 1946;
The Antarctic Treaty, 1959;
Convention on the Conservation of AntarcticMarine Living

Resources, 1980; and
United Nations Convention on Law of theSea.

The Civil Liability for Oil Pollution Damage,1969;
The Fund Convention, 1971; and
The International Convention for the Preventionof Pollution

from Ships, 1973 and the 1978 Protocol (MARPOL)
The ‘Ramsar Convention', 1971 (onwetlands);
The World Heritage Convention, 1972;
The Convention on Trade in Endangered Species(CITES), 1973;
The Convention on Migratory Species,1979;
International Tropical Timber Agreement,1983;
FAO International Undertaking on Plant GeneticResources, 1983;

and
The Convention on Biological Diversity,1992.
Vienna Convention for the Protection of theOzone Layer, 1985;
Montreal Protocol on Substances that Deplete theOzone Layer,

1987 and its London Amendment, 1990;
Framework Convention on Climate Change,1992;
Kyoto Protocol, 1997 on Reduction of Greenhousegases; and
The Johabbesburg Declaration on SustainableDevelopment,

2002.
Treaties are not just used as “a source ofinterpretation”, in respect of

the statutes which seek to implement thatparticular treaty. Under
Indian law treaties are also used as a “source ofinspiration” to give
meaning to legal rights and obligations within the legalsystem. The
first of such uses consists of interpreting statutes in the light
ofinternational treaties. The second use is similar to that of the first in
thatit entails using human rights in the fundamental rights chapter of
the Indianconstitution.”
In Kesavananda Bharati V. State of Kerala Sikri,C.J., “while referring to

the provisions of the UN Charter on Human Rights,observed: in view
of Art 51 of the directive principles, this Court mustinterpret the
language of the Constitution, if not intractable, which is afterall a INTERESTED IN ORDERING?
municipal law, in the light of the United Nations Charter and the
solemndeclaration subscribed to by India.” The doors were, therefore,
thrown wide openfor international law to play a part in the
development of human rights andpersonal liberties in this country.
Thus, the correct interpretation ofinternational law by municipal

courts as a tool of interpretation would warrantArticle 253 being read
in conjunction with the Directive principles. Article 51has a bearing
on the interpretation of Indian law norms reflected in the
generalmultilateral treaties have been incorporated into the Indian
legal system ornot. Article 51 is designed to serve the courts to
interpretation ofinternational agreements. It articulates India's
attitude towards internationallaw, but since it occurs in part IV it is
often dismissed as hortatory, howeverthis misconception has been
dispelled with.
The Doctrine of “Pacta Sunt Servanda”

onInternational Treaty Implementation
It is said that Vienna Convention is theconvention of conventions. The
doctrine of “pacta sunt servanda” contained inarticle 26 and article 27
of the -Vienna Convention, 1980 lays down that everytreaty in force is
binding upon the parties to it and must be performed in goodfaith and
a party may not invoke the provisions of its internal law as
ajustification for its failure to perform a treaty.
With such expectations flowing out of thedoctrine of “pacta sunt

servanda” leads us to another question that is dointernational treaties
have to stand the constitutional test of being conformitywith part III
of the Constitution of India as advocated by Basu; and in additionto it
do they also have to stand the test of the “vague” doctrine of
BasicStructure; or can a State have the defense of “Sovereignty” for
non- compliancewith the treaty provisions.
International obligations once undertaken mustbe complied with, but

International Law does not mention the manner in whichcompliance
is to be carried out, with this perception, all the divergence ofstate
practices are accommodated. Secondly, such International
treatyobligations “command” responsibility or liability at
international plane and atNational plane it is submitted it is only a
“legitimate expectation” that can bemade by such International
treaties Hence while interpreting Internationaltreaty provisions the INTERESTED IN ORDERING?
domestic courts will have to subject such interpretationto such
Constitutional tests as stated hereinabove.
The same view has been expressed by the“National Commission to

Review the Working of the Constitution” in the followingterms:
“Judiciary has no specific role in treaty-making as such but if and
whena question arises whether a treaty concluded by the Union
violates any of theConstitutional provisions, judiciary comes into the
picture. It needs noemphasis that whether it is the Union Executive or
the Parliament, they cannotenter into any treaty or take any action
towards its implementation whichtransgresses any of the
constitutional limitations. .”
It may be interesting to know that somecountries like France in fact

have a “Counseil Constitutionnel” post who havethe authority to
pronounce on whether a treaty confirms to the constitution ornot.
However, today Constitutional law can no longerbe thought of in

isolation from International law. Therefore utmostcircumspection is
desired of the courts while incorporating a treaty provisioninto
Domestic law and while doing so they are ever duty bound to test it
againstthe “suprema lex” that is the constitution of India.
Public Interest Litigation andJudiciary

The area in which Public Interest Litigation hasbeen significant is
environmental law. M.C. Mehta pioneered in bringing a largenumber
of issues to the Court concerning environmental and
ecologicaldegradation. These included the issues emerging from the
lead of oleum gas froma factory in Delhi, pollution in Delhi, the
danger of the Taj Mahal from arefinery nearby it (Mathura Refinery),
traffic regulation in Delhi, degradationof the Ridge area in Delhi.
The extent of judicial activity in the TajTrapezium case is matchless.

The Court supervised the installation of pollutioncontrol equipment
and devices, closed violators, directed Gas Authority of IndiaLimited
to pipe gas to the industries, urged development of a green belt
aroundthe monument, relocated industries, carved out a labor
compensation andentitlement scheme, expedited the construction of a
highway to divert trafficaway from Agra (place of the monument),
asked the government to speed up work onbarrages that would revive INTERESTED IN ORDERING?
the flow in Yamuna and generally monitoreddevelopment activity in

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2/9/2018 Environmental protection laws in india

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Judiciary And TheEnvironmental

resulted in considerable deterioration in the quality and sustainability Writing service

In considering the role of the judiciary inenvironmental governance,

implementation is greater, as they mustnot only interpret laws that

Environment Protection Legislations

From this period onwards, the Central Governmenthas been

In the wake of the Bhopal gas tragedy, theGovernment of India

It is a paradox that despite the presence ofsuch diverse laws, the

TheJudiciary in India has been taking steps for directing state

Environment Protection Laws and

than the mere literal implication. It extends to includeimproving the

Principle 1, 1972 Stockholm Declaration affirmsthat "Man has the

The Supreme Court has laid down that the"Precautionary principle"

The "Precautionary Principle" establishes that alack of information

The ‘polluter pays' principle came about in the1970's when the

actor orthe developer/industrialist to show that his actions is

A foundation for the application of thePrecautionary Principle, the

A matter regarding the vehicular pollution inDelhi city, in the context

In the very recent case of T.N. GodavarmanThirumulpad v. Union of

Following a long course of active interpretationof constitutional and

The law relating to environment under Article 21is thus evolving in a

Different interpretations are being given to the termjudicial activism.

against themisuse of power by public authorities. Despite judicial

"The keys to good governance, as articulated bythe United Nations

Inthe case of environmental governance, the judiciary also has the

On environmental lawinterpretation and law making, although most

Statutory interpretation and

The constitutional concern for respectinginternational law including

terms of the legislation arenot clear and are reasonably capable of

Trail smelter Arbitration is the father ofdevelopments in the area of

In addition to the above, India is a party tothe various international

International Convention for the Regulation ofWhaling, 1946;

The Antarctic Treaty, 1959;

Convention on the Conservation of AntarcticMarine Living

United Nations Convention on Law of theSea.

The Fund Convention, 1971; and

The International Convention for the Preventionof Pollution

The ‘Ramsar Convention', 1971 (onwetlands);

The World Heritage Convention, 1972;

The Convention on Trade in Endangered Species(CITES), 1973;

The Convention on Migratory Species,1979;

International Tropical Timber Agreement,1983;

FAO International Undertaking on Plant GeneticResources, 1983;

The Convention on Biological Diversity,1992.

Vienna Convention for the Protection of theOzone Layer, 1985;

Montreal Protocol on Substances that Deplete theOzone Layer,

Framework Convention on Climate Change,1992;

Kyoto Protocol, 1997 on Reduction of Greenhousegases; and

The Johabbesburg Declaration on SustainableDevelopment,

Treaties are not just used as “a source ofinterpretation”, in respect of

In Kesavananda Bharati V. State of Kerala Sikri,C.J., “while referring to

Thus, the correct interpretation ofinternational law by municipal

The Doctrine of “Pacta Sunt Servanda”

With such expectations flowing out of thedoctrine of “pacta sunt

International obligations once undertaken mustbe complied with, but

The same view has been expressed by the“National Commission to

It may be interesting to know that somecountries like France in fact

However, today Constitutional law can no longerbe thought of in