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Introduction

Over the past three decades, the Indian judiciary has almost single-handedly revolutionised environmental law and governance in the country. It has delivered landmark verdicts on a wide variety of issues affecting the environment—from industrial pollution to waste disposal; exploitative mining to unchecked deforestation; noxious vehicular fumes to rampant poaching. It has pushed and prodded apathetic executive agencies into action. Occasionally criticised for jurisdictional overreach, the judiciary’s interventions have brought to fore the unaccounted costs of economic growth and development, and the iniquitous sharing of the burden of these costs. Through its judgments, it has identified a constitutional mandate, concurrent with relevant statutory provisions, to protect the environment and to uphold people’s rights to the environment. At the same time, it has created a framework of legal principles that forms an integral part of Indian environmental law, and is frequently relied on in environmental litigation.

The extraordinary degree of judicial activity in India in the environmental sphere can be attributed to at least three factors. First, there are inadequacies in Indian laws, regulatory processes and institutions which limit their effectiveness in preventing, mitigating and responding to environmental degradation, and in promoting and ensuring environmental conservation. Even though Parliament has legislated on environmental issues since the early 1970s, environmental laws in India are deficient in their coverage, compliance requirements and liability provisions. Regulatory processes such as environmental clearance granting processes are poorly designed and implemented—misaligned with the desired environmental outcomes. Statutory bodies like pollution control boards, under-resourced and vulnerable to external (and extraneous) influence, do not discharge their functions in a comprehensive and independent fashion. As the legislature and the executive are underperforming, those affected by environmental degradation or otherwise dissatisfied by a regulatory decision or policy, look to a ‘responsive’ judiciary for relief.

Second, individual or collective rights are either absent, limited, or poorly defined in relation to natural resources, leading to at least three problems. First, no particular individual or group is invested in protecting the environmental resource—a classic tragedy of the commons case (air pollution being a case in point); second, there are several interests associated with the resources that often conflict (for instance, tribals access forests for their livelihood, but so do mining companies for the coal beneath the forests); and third, the associated interests may be spatially and temporally so diverse that it is challenging to foresee and manage the effects of using the resource (for example, upstream and downstream impacts of dams, or the lowering of groundwater levels due to deforestation). In such situations, the judiciary is perceived to be a neutral arbiter that can pronounce on the rights and claims relating to such public goods—authoritatively and with some degree of finality.

Third, the political will and long term planning necessary to tackle environmental problems is lacking. Environmental protection measures, including the setting up and running of effective regulatory authorities, require financial and human resources. These resources are limited. With limited political backing, environmental causes often lose claims to these resources. The need for political will to address environmental problems becomes even more apparent when the causes of environmental degradation are mired in jurisdictional complexities—inter-state, between the Centre and the states, or between different departments within a state. With relevant authorities not giving due attention to environmental problems and ignoring demands for redress, the judiciary has emerged as the alternative forum to raise grievances, with the hope of receiving some relief.

In response to these popular expectations, the Indian judiciary—Supreme Court of India, High Courts and more recently the National Green Tribunal (NGT)—has often stepped up to the plate. At the cost of being criticised for stepping on the (jurisdictional) toes of the legislature and the executive, the Indian judiciary has delivered far-reaching orders on issues ranging from industrial and vehicular pollution to forest conservation; wildlife protection to encroachment of natural resources; rehabilitation and resettlement of project affected persons to waste management; environmental impact of infrastructure projects to faulty regulatory processes. The judiciary has influenced—and occasionally dictated—environmental policy and actively monitored implementation of its orders.

While the three factors discussed earlier provide some explanation for the judiciary playing an instrumental role in the country’s environmental governance, they also highlight an important dimension of environmental legal disputes. These disputes are by their very nature complex, and issues raised are often not merely a matter of statutory interpretation or a disputed question of law or fact, but require the decision maker to consider and respond to multiple economic, political and social realities.

In its efforts to manage such complex polycentric disputes, the Indian judiciary relies on a framework of rights and environmental law principles. The rights framework is based on the judiciary’s interpretation of the right to life guaranteed under Article 21 of the Constitution as including a right to environment, and when read with Articles 48A and 51A(g), a clear constitutional mandate to protect the environment. This right to environment has been defined in many ways—a right to live in a healthy environment with minimal disturbance of the ecological balance, a right to live in a pollution-free environment, a right to decent environment, etc. More recently, the judiciary has even recognised a right of the environment—signalling a move away from its conventionally anthropocentric approach to environmental conservation. Making the realisation of this substantive right to environment meaningful, inside and outside the courtroom, are certain procedural guarantees. These guarantees, often termed as procedural environmental rights, include the right to information, public participation and access to justice. Mostly of statutory origin and supported by sympathetic and expansive judicial interpretation, these rights are a vital part of the environmental rights framework.

Legal principles, drawn from international and foreign environmental law, complement and reinforce this rights framework. These principles include the principles of sustainable development, polluter pays, precaution and inter/intra generational equity, and the public trust doctrine. These principles did not, at the time the courts first referred to them, find place in Indian statutory law. The Supreme Court, credited with introducing these principles to Indian law, looked elsewhere—international legal documents, foreign law and other branches of law, and provided explanations ranging from international obligation to follow a particular principle to shared common law traditions to justify the legal imports. Over the past two decades, these ‘imported’ principles have been accepted as an intrinsic part of Indian environmental law, albeit with some definitional and conceptual adjustments.

Lawyers arguing environmental cases routinely rely on substantive and procedural environmental rights and invoke these legal principles, and judges frequently refer to them while delivering judgments. An appreciation of Indian environmental law is incomplete without the knowledge of this rights framework and these legal principles, and how the Indian courts have interpreted and operationalised them. This volume has been conceptualised to improve our understanding of these rights and principles, to evaluate their pre-eminent status in environmental litigation in India, and to understand the mechanisms used by the courts to implement them.

Rationale for the Volume

Incidents of environmental degradation and conflicts over access and use of natural resources are steadily rising in India. In this context, and for reasons indicated earlier, it is not surprising that judicial activity in the environmental sphere continues to grow. When faced with environmental disputes, Indian courts often venture beyond pure black-letter application of relevant statutory provisions and creatively invoke principles of environmental law that are drawn from diverse sources.

Environmental rights and legal principles are central to Indian environmental law and judicial decision-making. Conceptual clarity about their content and how the courts have applied them is a sine qua non for more effective environmental litigation and advocacy. Where these rights and principles have found statutory expression (expressed or implied), limitations in definition, as well as design and implementation of processes, are important to acknowledge as they impact judicial and environmental outcomes significantly. Understanding the implication of these rights and legal principles also makes the impact of other factors (social, economic and political) on the courts’ reasoning more evident and potentially subjects judicial reasoning to greater and more rigorous scrutiny.

While underscoring the importance of these rights and principles to Indian environmental law, it is necessary to acknowledge also that judicial reasoning underlying the reliance on these rights and principles is not always very informative; making it difficult to determine their content, scope, and relevance in particular scenarios. The articulation of certain environmental outcomes in the rights language has won the Indian judiciary praise and recognition, and has also accorded environmental issues constitutional gravitas. But the content of an environmental right, as well as its limits, are far from clear. As a right, it is one among several rights that form part of the right to life, including the right to livelihood and the right to development. These rights—and related interests—frequently conflict and in such cases, determining which right would trump is an exercise of judicial discretion, for which there is little guidance. Parameters to assess whether the right has been protected or violated (fully or in part) are also not well-defined. Similarly, judgments relying on these legal principles often do not follow a clear line of reasoning that identifies the scope and relevance of the principles. As one commentator observed, the Supreme Court of India while incorporating legal principles from the international domain ‘pursues a method that allows for maximum leeway and minimal rationale-based accountability’.1

This volume is designed to create a space for an interpretive discussion about the evolution and content of environmental rights and principles that may improve our understanding of these rights and principles, their utility in Indian environmental litigation in particular, and in environmental governance more generally. The chapters shed light on the assumptions underlying the environmental law principles that drive their application and problematise judicial reliance on them. A better understanding can improve the quality of arguments being raised in courts, lend a more robust basis for judicial reasoning and, arguably, result in more ‘implementable orders’. Indian environmental judgments also provide valuable insights into different facets of judicial decision-making in India’s adversarial system, including the quality of reasoning, consistency and conceptual clarity.

The need for clarity and consistency is reinforced by the legislative mandate given to the NGT under the National Green Tribunal Act 2010. The preamble to the Act acknowledges that the judiciary has interpreted the right to life to include the right to healthy environment. The Tribunal has jurisdiction over a wide range of environmental issues and is required to apply the principle of sustainable development, precautionary principle, and polluter pays principle while making decisions.2 As it builds its own jurisprudence, the Tribunal is likely to develop tests for applying these legal principles, while being guided by the judgments and reasoning adopted by the higher judiciary. Lack of clarity in the understanding of these principles could restrict their utility to the Tribunal and the parties before it.

Chapters in this volume rely on an in-depth study of relevant judgments of the Supreme Court, High Courts and NGT while discussing the origin of the rights and principles in Indian law, how the courts have operationalised them and limitations in the jurisprudence evolved by the courts. Where appropriate, authors have referred to relevant statutory provisions and provided background from international and foreign environmental law and other areas of law. But the focus of the volume remains the treatment of environmental rights and legal principles by Indian courts. An (partial) exception is Chapter 2, on procedural environmental rights, which adopts a different methodological approach as several procedural rights are recognised (or limited) by statutes and, therefore, relevant case law are mostly on the implementation of these provisions, and play a less crucial role in interpreting these rights.

It is necessary to flag that the formal enunciation of these rights and principles in judicial decisions itself is not sufficient to fundamentally change environmental conditions on the ground. The decisions, though perhaps well-intentioned in their final judicial outcome, do not necessarily lead to curtailment and/or remediation of environmental degradation. Whether a judgment has the desired results in a particular case, or in deterring future harmful activities, depends on several factors that cannot always be controlled from inside the courtroom, and are, in part, a reflection of the complexities in environmental disputes. A discussion on the factors influencing the implementation of environmental judgments is an important area for future research. While this is briefly touched on in Chapter 7, it requires a much deeper engagement which is beyond the scope of this volume.

Structure of the Volume

The volume is divided into two parts: Part I on environmental rights includes Chapter 1 on substantive environmental rights and Chapter 2 on procedural environmental rights; and Part II on key legal principles—principle of sustainable development (Chapter 3), the polluter pays principle (Chapter 4), precautionary principle (Chapter 5) and public trust doctrine (Chapter 6)—and a final chapter on the implementation mechanisms adopted by the judiciary (Chapter 7).

In Chapter 1, Lovleen Bhullar discusses the evolution of the right to environment as a substantive right in Indian environmental law. Drawing from judgments of different fora, she identifies the linkages made by the Indian judiciary between environmental protection and the Constitution, specifically Articles 21, 47, 48A and 51A(g). The constitutional mandate to protect the environment has led the courts to craft many formulations of the environmental right, and the chapter critically explores some of these formulations. Bhullar finds the courts to have adopted a predominantly anthropocentric approach to environmental protection, with occasional judicial recognition of the right of the environment to be protected regardless of its instrumental value to humans. The path of evolution of the right to environment, and its realisation in the present day, however, is problematic. As Bhullar points out, there are instances when the courts have recognised the right even though it was not relevant to the fact situation. Furthermore, the right to environment is not an absolute right; it is one of many constitutional and statutory rights, and it may get sidelined in the greater public interest. She concludes that the inherent imprecision of the right, while unfortunate in some cases, allows courts the flexibility to adapt its directions to a given fact situation, ideally in the interests of the environment.

In Chapter 2, Shibani Ghosh looks at procedural environmental rights—the right to information, public participation and access to justice. Although related, substantive and procedural rights are different in two significant ways: first, the role of the courts while implementing procedural rights is more limited because they often have clear statutory guidance; and second, orders for the protection of procedural environmental rights are relatively easier to issue, to comply with and to monitor the compliance of. The chapter examines each of the three procedural rights in detail and refers to relevant provisions of environmental and general laws, along with case law. In the context of right to information relating to the environment, the chapter focusses on disclosure requirements under the Environment (Protection) Act 1986, the Environmental Impact Assessment (EIA) Notification 2006 and the Right to Information Act 2005. Public participation in environmental decision-making is largely limited to the environmental clearance process and the process of settlement of forest rights under the Forest Rights Act 2006, and the chapter discusses certain limitations in the two processes. The right to access environmental justice is analysed from the standpoint of accessibility of redressal fora—in particular, the NGT. Ghosh identifies the loopholes and limitations in the various laws and concludes that despite statutory expression of procedural environmental rights, there is no room for complacency as these rights are routinely curtailed and denied.

The four principles that make up the bulk of Part II of this volume were selected because of the Indian judiciary’s extensive reliance on them. As mentioned earlier, the NGT is expected to apply the principles of sustainable development, precaution and polluter pays in its decision-making. The principle of prevention, although a distinct principle of international environmental law, is yet to find an independent place in Indian environmental law and has, in fact, been conflated with the precautionary principle. To the extent it has been relied on even implicitly by the courts, it has been analysed in the chapter on precautionary principle. Principles of inter- and intra generational equity, which also find mention in some environmental judgments,3 are yet to gain sufficient traction in Indian environmental law to allow for in-depth analysis, of the kind possible in the case of the other four principles.

Instead of a chronological description of cases, authors of Part II adopt a thematic approach, dissecting each principle into themes and discussing relevant case law through the lens of these themes, such as the definitional content of the principle, rules governing its application and analytical problems faced when judges rely on it.

In Chapter 3, Saptarishi Bandopadhyay critically analyses the principle of sustainable development, as interpreted and applied by the Indian judiciary. The chapter begins with a succinct description of the historical evolution of the principle internationally—quite apt given the Indian Supreme Court’s inclination to look towards international fora in environmental cases. It then analyses the Vellore judgment4 in some detail, in an attempt to distill the Court’s definition and understanding of the principle. The Supreme Court (tentatively) invokes customary international law, finally endorsing the Brundtland Commission’s definition of sustainable development—‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.5 Vellore and the Court’s approach to sustainable development have been widely quoted in subsequent judgments by Indian courts to achieve diverse objectives. One case in particular that Bandopadhyay discusses is the Narmada judgment6 in which the majority opinion rejects a challenge to a massive dam project. Narmada provides a window to understand the ways in which the judiciary frames the interests before it—environmental protection versus economic development; interests of the liberal administrative State versus interests of those the State chooses to disenfranchise. As case law analysis by Bandopadhyay reveals, the Supreme Court has ‘instrumentally harnessed the vagueness inherent in sustainable development’. He concludes that while this strategy has allowed the Court great discretion in reaching varying and sometimes contradictory conclusions, it has also diminished the extent to which lawyers and litigants can expect the Court to justify its determinations. However, the chapter cautions that interpretive flexibility in itself may not be undesirable, as it leaves the field of legal argumentation and political struggle relatively open.

Chapter 4 discusses the polluter pays principle and the manner in which it has been operationalised by Indian courts. The origin of the principle, as Bhullar discusses, can be traced to the economic theory of externalities from where it made its way to the Organisation for Economic Cooperation and Development (OECD) Guiding Principles on environmental policies. Subsequently, the principle found (implicit) expression in the Brundtland Commission Report, and then as Principle 16 of the Rio Declaration 1992. The principle was first invoked by the Supreme Court in its 1996 judgment in the Bichhri case,7 and soon after in the Vellore case. As the application of the principle leads to the question of liability for causing pollution and restoring the damaged environment, the chapter in particular explores the link between the polluter pays principle and the absolute liability principle developed by the Supreme Court. Bhullar poses five questions to understand how the Indian courts have operationalised the polluter pays principle—who is the polluter; how and when is the application of the principle triggered; how is the loss assessed and the compensation determined; what does the polluter pay; and finally, what are the limits of the principle? Bhullar concludes that while the flexible approach in which the Indian judiciary has applied the principle has allowed different aspects of the principle to be fleshed out, it has also led to courts speaking in contradictory voices. She is concerned that the principle has not had the desired deterrent effect and that its ability to ensure justice for victims of pollution is unclear.

In Chapter 5, Lavanya Rajamani explores the conceptual underpinnings of the precautionary principle, tracing its definition, interpretation and legal status in international law, before turning to Indian law. The precautionary principle finds its way into Indian environmental jurisprudence again through the Vellore judgment. The Supreme Court in its judgment identified three elements to the principle: the first is that ‘[e]nvironmental measures—by the State Government and the statutory authorities—must anticipate, prevent and attack the causes of environmental degradation’; the second, borrowing from Principle 15 of the Rio Declaration, is that ‘[w]here there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation’; and the third element shifts the burden of proof to the developer/industrialist.8 As Rajamani notes, the version of precautionary principle conceived of by the Supreme Court is a ‘strong’ version, a version that does not find wide support in international law. Her analysis of Vellore reveals that the application of the precautionary principle in the case appears to be at odds with the Court’s own definition. There was no ‘threat’ of damage or scientific uncertainty—the tanneries were irrefutably causing high levels of pollution. This lack of clarity in the Court’s engagement with the principle, and the blurring of lines between distinct legal principles, forms the crux of Rajamani’s argument. The systemic problems in Indian environmental governance perhaps explain the need for an indigenous version of the precautionary principle that, in effect, conflates the principles of precaution and prevention, and reverses the burden of proof. Rajamani concludes that while the current use of the principle may be instrumentally useful in arriving at environmentally favourable judicial outcomes, it does not augur well for the development of a clear line of jurisprudence.

Chapter 6 traces the growth and application of the public trust doctrine in Indian environmental law. The doctrine—an import from American law (and not international law like the previous three principles)—was introduced to Indian environmental law by the Supreme Court in 1996 through its landmark decision in the Kamal Nath case.9 In this case, the Court holds the State to be a trustee of all natural resources, and hence under a legal duty to protect such resources. Ghosh explains the contours of the doctrine, as inferred from Indian judicial pronouncements—the source of the doctrine, properties that are held in public trust and principles that are applied by courts while implementing the doctrine. Courts have found that the doctrine places restrictions on the government’s powers to allocate natural resources; recognises a duty of the government to take affirmative steps to protect the environment for the enjoyment of the general public; protects public access to certain resources; and finally, expects decision-making processes relating to natural resources to possess certain qualities. Ghosh argues that it is difficult to identify a core content of the doctrine that could lend a degree of predictability to decision-making regarding public trust properties. In the absence of a reasonably comprehensive definition and the all-encompassing applicability of the doctrine (not just to a limited set of resources), the value of the doctrine, independent of constitutional and public law principles, is unclear. But at the same time, Ghosh acknowledges the desirability of making the doctrine more relevant, rather than insisting on its redundancy. She proposes ways in which the doctrine may be predictably triggered, and the nature of protection that may then be afforded to natural resources held in trust.

In the final chapter of the volume, Chapter 7, Dhvani Mehta explores the various mechanisms adopted by Indian courts to implement their orders in environmental cases. To fully grasp the role of the four legal principles discussed in Chapters 3–6 in Indian environmental governance, it is important to understand the manner in which courts operationalise their implementation. Chapter 7 refers to the distinction between executive and judicial functions, and demonstrates the various ways in which the Indian judiciary, in effect, stands in for the executive. It gives an overview of the compliance and enforcement mechanisms available to environmental regulatory authorities in India, and then, with references to case law (many of which rely on one or more of the four legal principles), illustrates the implementation mechanisms developed by the courts. These mechanisms serve three distinct purposes: evidence-gathering, monitoring and prevention of environmental damage and remediation. The chapter then analyses the effectiveness of these mechanisms in the context of some landmark cases like Vellore, Bichhri, Godavarman10 and the Oleum Gas Leak case.11 Mehta clarifies that although an important parameter to judge the effectiveness of an environmental judgment is to assess the resulting environmental quality, her inquiry is a narrower one—what are the mechanisms that Indian courts have adopted to support and monitor the implementation of their judgments. She concludes that judicial implementation mechanisms have had mixed success. While various external factors influence the implementation process, there are also certain internal weaknesses that must be acknowledged: courts have been inconsistent while deploying implementation mechanisms, their orders require more robust legal reasoning and they need to integrate better with the existing regulatory framework.

Although the four legal principles discussed in Part II of the volume have different origins and implications, there are certain common themes that each chapter has reflected upon. These themes are important to consider while analysing the evolution and future of Indian environmental law and litigation.

First, Indian courts have created indigenous versions of these legal principles which often do not bear much resemblance to either the conventional definition of these principles in international or foreign law (from where the principle is sourced) or to previous interpretations by Indian courts. Courts have moulded the principles to fit unique fact situations, rather than first assessing the relevance of the principle in the particular factual scenario, and then applying or rejecting it. As contributors to this volume discuss, various explanations have been offered by the Supreme Court to explain the importation of these principles into Indian environmental law. These explanations may not have a firm historical standing in Indian law or international law, but the legal principles are now well rooted in Indian environmental law (and more recently, in statutory law).

Second, there appears to be a ‘definitional crisis’ in the principles discussed. As the case law analysis highlights, Indian courts have defined and interpreted the principles in ways that are vague and inconsistent, and which do not lend themselves to application based on objective measures or tests. While dealing with a (mostly) non-responsive executive machinery and/or limited legislative mandate, judges have created a space for themselves—essentially supported by the lack of a clear definition or predictable criteria that can trigger a particular principle.

Third, these legal principles are mostly used in conjunction with other principles and statutory obligations, and therefore the independent legal value of these principles is unclear. For instance, in the context of the precautionary principle and public trust doctrine, the final legal outcome of a case may not necessarily turn on the application of the principle, but on the interplay of a variety of other factors, such as the extent of statutory violations and the nature of environmental degradation and harm. On occasion then, the application of these principles obfuscates more than it clarifies.

Finally, and perhaps as a corollary to the previous two themes, these principles may be rendered redundant given the manner in which the courts are invoking them—inconsistently and with little internal coherence. In order to protect these principles from becoming irrelevant, authors propose alternative theoretical constructs that interpret principles differently and/or more narrowly.

Conclusion

The chapters collectively recognise the challenges faced in Indian environmental governance as well as the numerous forces that influence executive and judicial decision-making—factors that have influenced the judiciary’s progressive expansion of its argumentation tool box. This approach, often adopted by litigants, involves the invocation of various permutations of rights, legal principles, concepts and rules, even when the resulting claims go beyond traditional legal positions associated with such rules and standards. A high degree of definitional flexibility in the legal principles—as evident from the case law analyses in this volume—allows them to be applied to a diverse set of situations. It allows public-spirited citizens and project-affected persons battling corporations, bureaucracies, and even their government, to resort to a wider set of legal arguments. The judiciary has nurtured this tool box approach with its inclination to creatively interpret the law to arrive at a fruitful judgment. With litigants and lawyers pursuing their cases with every potentially relevant tool, the outcome of the case could hinge on which tool(s) the judge considers relevant and how the judge uses it/them. The chapters in this volume uniformly suggest that analytical clarity and consistency in the application of these environmental rights and legal principles, that is, sharpening the tools, as it were, would make judicial decisions more robust and less vulnerable to legal (and popular) challenges.

The aim of this volume is to trigger a larger discussion in environmental regulation and, more specifically, law and litigation about the nature and quality of arguments that are raised during the resolution of natural resource conflicts. Environmental law is expected to govern issues that are multifarious and constantly evolving. The legal system, accordingly, has to develop a level of sophistication and maturity that meaningfully responds to these issues. The exercise of judicial discretion must be based on, and circumscribed by, conceptually sound and nuanced legal arguments that emanate from a robust framework of environmental rights and legal principles.