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Part I

one

The Judiciary and the Right
to Environment in India

Past, Present and Future

Lovleen Bhullar *

Over the years, there has been an increased endorsement of the right to environment or an environmental right at the international level.1 However, differences of opinion persist in respect of the formulation of the right: as an independent, substantive right that also accommodates the right of environment; as a right derived from existing human rights; or as a procedural right.2 Concern has also been expressed about the anthropocentric basis of the right, its limited application depending on the interests of the claimants, and potential conflict or synergy with other rights.3

The implementation of the right depends on its inclusion in domestic environmental law—either in a country’s constitution or in its national law. There is no explicit reference to the right to environment either in the Constitution of India or in any of the domestic environmental laws.4 However, the right is well established in domestic law as a result of judicial interventions. The purpose of this chapter is to unpack the right to environment, as recognised by the judiciary in India.

The chapter is structured as follows: the next section considers the source of the right to environment—both substantive and procedural—in Indian law. This is followed by an examination of the different anthropocentric formulations of the right. The fourth section analyses judicial developments that reflect the accommodation of an ecocentric perspective. The fifth section considers some of the outcomes of judicial recognition of the right to environment, and the challenges relating to its realisation. The final section provides brief concluding remarks.

Right to Environment: Genesis in Law

This section first briefly examines the substantive basis of the right to environment and then discusses the procedural law basis that has facilitated its development.

Substantive Basis

Indian courts have identified, explicitly or implicitly, different legal sources of the right to environment.

Link with the Fundamental Right to Life

The most commonly discussed source of the right to environment is Article 21 of the Constitution, which guarantees the fundamental right to life.5 The ‘activism’ or ‘creativity’6 of the higher judiciary (the Supreme Court of India and High Courts) has been widely credited with the incorporation of the right to environment into the fundamental right to life. In fact, it is believed by some that the Supreme Court, more than any other jurisdiction, has ‘fostered an extensive and innovative jurisprudence on environmental rights’.7 The higher judiciary’s approach reflects the formulation of the right to environment as a right derived from an existing right, that is, the fundamental right to life in the Constitution. The relationship between the fundamental right to life and the right to environment has been expressed in different forms.

First, there is an implicit recognition of a link between the fundamental right to life and the environment, which predates the explicit recognition of the right to environment. As early as in 1981, the Supreme Court observed that the right to life includes ‘the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life’.8 This was followed by an indicative list of what is included in the bare necessaries of life. Although the environment is not explicitly mentioned, the use of the term ‘such as’ suggests that this is merely an illustrative list. In other words, it does not appear to rule out the possibility of including the environment in the ‘bare necessaries of life’ in the facts and circumstances of a particular case. The Court also held that the right to life embraces ‘not only physical existence of life but the quality of life’.9 Arguably, a certain threshold of environmental quality is essential to ensure human dignity and to guarantee a minimum quality of life. However, it is pertinent to mention that environmental issues were not raised in these cases.

In fact, the Supreme Court10 has traced the origins of the right to environment to its decision in Bandhua Mukti Morcha v. Union of India.11 Although there is no explicit reference to the right to environment in this case, a number of observations made by the Court are relevant. First, after reading the relevant provisions of the Mines Act 1952, the Court recognised the need to ensure that the workers can live a ‘healthy decent life’.12 Second, the Court issued directions to stop air pollution after observing that the dust resulting from the operation of the stone crushers was the cause of air pollution, reduced visibility, and was a serious health hazard to the workmen.13 Third, it observed that ‘there can be no doubt that pure drinking water is absolutely essential to the health and well-being of the workmen and some authority has to be responsible for providing it’.14 Fourth, the Court relied on the statement in the expert’s report that ‘vast open mountain dug-up without a thought as to environment is used by men and women and children as one huge open latrine’ to direct the government to ensure the provision of ‘conservancy facilities in the shape of latrines and urinals’.15

This decision is significant as the Court, after referring to the fundamental right to live with human dignity that is enshrined in Article 21 of the Constitution, and observing that this right derives its life breath from Directive Principles of State Policy (DPSP), (i) implicitly recognised several rights, such as to health, clean drinking water, sanitation, clean air and life itself, (ii) of a vulnerable section of society, that is, workmen, and (iii) within the framework of the statutory duties of the government.

According to the Court, protection of workers’ health, opportunities for children to develop in a healthy manner, just and humane conditions of work and maternity relief were included in the right to life with human dignity. The Court held:

These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State—neither the Central Government nor any State Government—has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy contained in clauses (e) and (f) of Article 39, Article 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that, the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State.16

Similarly, a number of cases in which environmental issues were raised do not explicitly refer to the right to environment, but to the right to life included in Article 21 of the Constitution. For instance, in a case alleging environmental pollution on account of industrial activity, the Supreme Court observed:

Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Article 32 of the Constitution.17

In another case, the Supreme Court observed:

If an industry is established without obtaining the requisite permission and clearances and if the industry is continued to be run in blatant disregard of law to the detriment of life and liberty of the citizens living in the vicinity, can it be suggested with any modicum of reasonableness that this Court has no power to intervene and protect the fundamental right to life and liberty of the citizens of this country.18

Second, some decisions include an explicit reference to the right to environment although they do not specifically involve an environmental issue. In these cases, a more general discussion on the content of the fundamental right to life has led to the inclusion of a reference to the right to environment. For instance, in a case concerning a housing scheme for weaker sections of society, the Supreme Court held that the right to life ‘would take within its sweep ... the right to decent environment’.19

Third, some of the early cases involving environmental issues explicitly recognise the right to environment without any reference to the fundamental right to life. The Supreme Court has sought to protect and safeguard ‘the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment’.20 However, according to a decision of the High Court of Andhra Pradesh, this decision ‘can only be understood on the basis that the Supreme Court entertained those environmental complaints under Article 32 of the Constitution as involving violation of Article 21’s right to life’.21

Even before the explicit recognition of the link by the Supreme Court, some High Courts had implicitly recognised the right to environment as a part of the fundamental right to life. For instance, the High Court of Andhra Pradesh held:

... it would be reasonable to hold that the enjoyment of life and its attainment and fulfillment guaranteed by Art. 21 of the Constitution embraces the protection and preservation of nature’s gifts without [which] life cannot be enjoyed. There can be no reason why practice of violent extinguishment of life alone should be regarded as violative of Art. 21 of the Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoilation should also be regarded as amounting to violation of Art. 21 of the Constitution.22

Finally, some cases have explicitly recognised the right to environment as a guaranteed fundamental right under Article 21 of the Constitution. The Supreme Court has identified ‘pollution-free water and air’ as essential for the enjoyment of the fundamental right to life.23 Subsequently, the Court has traced environmental aspects (which concern ‘life’) to Article 21 of the Constitution.24 In M. C. Mehta v. Kamal Nath and Ors, the Court held: ‘Any disturbance of the basic environmental elements, namely, air, water and soil, which are necessary for “life”, would be hazardous to “life” within the meaning of Article 21 of the Constitution’.25

Link with the Directive Principles of State Policy

The Supreme Court has referred to duties in respect of the environment with reference to Articles 47 and 48A of the Constitution.26 Article 48A is the only constitutional provision that explicitly lays down the duty of the State in respect of the environment.27 The word ‘environment’ in Article 48A of the Constitution has been interpreted to be of ‘broad spectrum’ and to include ‘hygienic atmosphere and ecological balance’.28 The State has been identified as having a particular duty to ‘forge in its policy to maintain ecological balance and hygienic environment’.29 Article 47 creates a duty for the State to raise the level of nutrition and the standard of living and to improve public health. The High Court of Karnataka has observed that ‘[t]he standard of living and public health cannot be improved unless there is pollution free air and water’.30 The Supreme Court has also held that the DPSP included in ‘Articles 39(e), 47 and 48A by themselves and collectively cast a duty on the State to secure the health of the people, improve public health and protect and improve the environment’.31

The right to environment is derived from the fundamental right to life, which is framed as a negative right (that is, ‘no person shall be deprived ...’).32 Therefore, it has been argued that the right to environment is not an actionable self-executing right.33 DPSP are ‘fundamental in the governance of the country’ and it is ‘the duty of the State to apply these principles in making laws’, but they are not intended to be ‘enforceable by any court’.34 However, the Supreme Court has read the fundamental rights in conjunction with the DPSP, ‘like two wheels of a chariot, one no less important than the other’.35 The combined reading of Article 21 and Article 48A of the Constitution has allowed the Court to interpret the right to environment, which is read into the (primarily negative) right to life, as imposing both positive and negative duties on the State, to protect, respect and fulfil the right to environment.36

Link with the Fundamental Duty of Citizens

The State is not the only duty-bearer in respect of the right to environment. The Constitution also imposes a fundamental duty on citizens to protect and improve the environment.37 The Supreme Court observed:

Preservation of the environment and keeping the ecological balance unaffected is a task which not only governments but also every citizen must undertake. It is a social obligation and let us remind every Indian citizen that it is his fundamental duty as enshrined in Article 51-A(g) of the Constitution.38

Similarly, after referring to the broad spectrum of the word ‘environment’ in Article 51A(g) to include ‘hygienic atmosphere and ecological balance’, the Court also highlighted the duty of every citizen to maintain a hygienic environment.39 As in the case of the DPSP discussed earlier, which imposes a duty on the State corresponding to the right to environment of the citizens, arguably, this fundamental duty of the citizens corresponds to the right to environment of other citizens.

Further, the National Green Tribunal (NGT) has relied on Article 51A(g) of the Constitution to give a liberal and flexible construction to ‘person aggrieved’ in cases brought under the National Green Tribunal Act 2010 (NGT Act).40 In this form, citizens may discharge their fundamental duty by drawing the attention of the NGT to cases of non-realisation of the right to environment of other citizens.

Procedural Basis

Under Articles 32 and 226 of the Constitution, the Supreme Court and High Courts, respectively, have original jurisdiction over all cases concerning fundamental rights. Adherence to the traditional view of standing would mean that the judiciary’s expansive reading of Article 21 of the Constitution, to include the right to environment, would only permit those with personal interest to approach the courts in case of violation of their fundamental right. The introduction of a procedural innovation—public interest litigation (PIL)—provided the necessary fillip to the recognition and realisation of the right to environment, by opening the doors of the courts to litigants espousing public interest.41

The development of PIL in India has been traced to judicial recognition of the need to benefit the persons who by virtue of their ‘socially or economically disadvantaged position are unable to approach the court for judicial redress’.42 There are a number of important features of PIL.43 In terms of access to the court, the traditional rule of locus standi has been relaxed, as a result of which ‘public-spirited citizens’ are granted representative standing (where the cause of the poor and the oppressed is being espoused) or citizen standing (where the performance of public duties is being enforced). Further, the formal requirements regarding the lodging of a petition are simplified. For instance, courts can even admit a postcard as a petition (which is referred to as epistolary jurisdiction). Judicial proceedings are no longer viewed as being adversarial, and a court-appointed commission can engage in the exercise of collection of evidence. Insofar as remedies are concerned, the court can order far-reaching remedial measures and supervise and monitor their execution.

As in the case of the substantive basis of the right to environ­ment, the development of the procedural basis can also be traced to the ideals of social justice enshrined in DPSP.44 Courts have also acknowledged the pursuit of public interest environmental litigation as an expression of the fundamental duty of every citizen to protect and improve the natural environment, which is set out in Article 51A(g) of the Constitution.45 The NGT has relied on Article 51A(g) of the Constitution to give a liberal and flexible construction to ‘person aggrieved’ in environmental cases,46 thus increasing the pool of people who can approach the NGT. Similarly, other judgments of the NGT have adopted a liberal approach while interpreting the definition of ‘aggrieved person’.47 Chapter 2 of this volume provides a more detailed account of the procedural aspects of the right to environment in India.

Formulations of the Right

There are different formulations of the right to environment. This subsection explores some of these formulations, which have received scholarly attention to varying extents. The articulation of the right by the Indian judiciary reflects an anthropocentric bias.

Protection of Environment and
Conservation of Natural Resources

Indian courts have interpreted the right to environment to include protection of environment and conservation of natural resources.48 The Environment (Protection) Act 1986 (EP Act) provides for the protection and improvement of environment, and it defines the term ‘environment’ very broadly to include ‘water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property’.49 Thus, the provisions of the EP Act offer some indication of the nature of environmental protection that is envisaged by the lawmakers and that is to be ensured by the implementing agencies. Of course, the actual level of environmental protection will depend on several factors including economic constraints, environmental factors and development priorities.50 Although courts have not defined the term ‘conservation’, the emphasis on the need for conservation of natural resources is clearly motivated by the need to ensure their availability for human use—whether it is sustainable use or not is another question. For instance, the Supreme Court has held that mining operations impair the right to natural resources.51

The Constitution is clearer in respect of this formulation of the right to environment in the context of the corresponding duties, which can be traced to Article 48A of the Constitution. This is also reflected in judicial decisions, explicitly or implicitly. The Supreme Court has explicitly referred to Article 48A while recognising the constitutional imperative on the state and local governments to ‘ensure and safeguard proper environment’ and to ‘take adequate measures to promote, protect and improve both the man-made and the natural environment’.52 In other cases, without referring to Article 48A of the Constitution, the Court has observed that the right to environment imposes a duty to ensure conservation and preservation of resources.53 It has also clearly specified the purpose behind the imposition of the duty, that is, to ensure that present and future generations are equally aware of the resources.54 Although the Court does not specify the nature of the resources and who is the duty-bearer, this is, arguably, a reference to natural resources and the State, respectively.

Ecological Balance

The right to environment has also been viewed through the lens of ecological balance. In general parlance, ecological balance refers to the equilibrium between organisms and between organisms and their physical surroundings. According to the Supreme Court:

Environmentalists’ conception of the ecological balance in nature is based on the fundamental concept that nature is ‘a series of complex biotic communities of which a man is an interdependent part’ and that it should not be given to a part to trespass and diminish the whole.55

A number of decisions include references to the need to maintain, preserve, protect or improve (or take prudent care of) ecological balance, or to cause minimal disturbance to the ecological balance56 (not to destroy or affect or devastate ecological balance, or to cause or create ecological imbalance).57 It has been argued that what constitutes ‘ecological balance’ in a given case and how it can be maintained are difficult questions and entail a scientific enquiry, which is beyond the competence of the Court.58 Nevertheless, courts have attempted to answer these questions. For instance, the Supreme Court has noted that ‘material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature’s bounty. They maintain delicate ecological balance.’59 The Court has also identified practices that disturb the ecological balance, such as deforestation,60 the killing of animals and birds61 and the working of mines for exploitation of mineral resources.62

Perhaps, as a reflection of the fact that the right to environment draws its life from the fundamental right to (human) life, its articulation in terms of ecological balance is also predicated on anthropocentrism. This has led to the observation that the Supreme Court appears to be conflating threats to ecology with threats to health.63 A good example is when the Court sought to protect and safeguard ‘the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agriculture and undue affectation of air, water and environment’.64 Similarly, the Court has held that ‘any threat to ecology can lead to violation of the right to enjoyment of a healthy life guaranteed under Article 21’.65 In another case, the rationale for the protection of the material resources of the community was ‘a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21’.66

Pollution

A third formulation of the right to environment is linked to pollution. In some cases, this is expressed as the right to live in a ‘pollution-free’ environment,67 atmosphere68 or water and air,69 or to fresh air.70 However, it is widely accepted that the right to pollution-free environment is meaningless and unrealistic.71 Even the Supreme Court has acknowledged that ‘[e]nvironmental changes are the inevitable consequences of industrial development’.72 In other words, some pollution is inevitable and freedom from pollution means prevention and control of an elevated level of pollution.73

It has been suggested that the courts do not provide any concrete guidance as to acceptable levels of pollution.74 However, courts have restricted the scope of the right to pollution-free environment to reduction in the quality of life of others,75 to environmental quality that becomes a hazard to human health,76 and to irreversible environmental damage.77 The Supreme Court has also laid down a requirement in order to allege a violation of the right: the endangerment or impairment of quality of life resulting from a violation of the right must be in derogation of (pollution-related) laws.78

Domestic environmental laws have defined the term ‘pollution’,79 and statutory bodies have prescribed standards for the discharge of various pollutants into the environment. However, the fact that the outer limit of the acceptable level of pollution has been prescribed does not necessarily mean that first, the standard would be complied with, and second, that compliance with the statutory standards will lead to the realisation of the right to environment. Here, it is important to take into account the dissatisfaction with the existing standards in terms of their ability to address environmental problems,80 and the extent to which it is possible to comply with them.81

Link with Socioeconomic Rights

The enjoyment of a number of socioeconomic rights that have also been read into the fundamental right to life guaranteed under Article 21 of the Constitution, such as the rights to health, housing, water and sanitation, is inextricably linked with the right to environment.

Right to Health

Historically, concerns relating to public health have underpinned the legal and policy framework concerning environmental pollution. In many cases, this approach resonates in the judicial formulation of the right to environment. The Supreme Court has viewed the fundamental right to life, of which a hygienic environment forms an integral part, as ‘healthy’ life, thus reinforcing the very close link between health and environment.82 The Court has also highlighted the essential role of a humane and healthy environment in order to live with human dignity.83 The Court has further observed: ‘[t]he right to have living atmosphere congenial to human existence is a right to life’.84 In a more recent decision, the NGT has observed that domestic environmental jurisprudence understands the concept of environment as ‘hygienic, clean and decent’.85 These decisions appear to reflect a narrow conception of the environment—linked to human health and concerned with the immediate environment/surroundings rather than adopting a holistic approach towards the natural environment. Further, it has been argued that the use of adjectives ‘leave[s] ample scope for value judgments and judicial discretion’ and ‘subjective opinion’.86

In C. Kenchappa and Ors v. State of Karnataka and Ors, the High Court of Karnataka traced the origin of the right to a ‘wholesome’ environment to the decision of the Supreme Court in Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh.87 Interestingly, neither this decision nor any other decision of the Supreme Court actually uses the term ‘wholesome’. In common parlance, as well as in laws, however, the term is used in the context of being favourable to human health.

Right to Water

The provision of ‘pure’ and ‘wholesome’ drinking water for domestic purposes is a statutory responsibility of urban and rural local bodies.88 Further, the maintenance or restoration of wholesomeness of water for different uses is one of the objectives of the Water (Prevention and Control of Pollution) Act 1974 (Water Act). In light of the fact that the sources of water supply for human needs form an integral component of the environment, there is a direct link with the right to environment. The judiciary, which has read the right to water into the right to life guaranteed under Article 21 of the Constitution, adopts a more restricted approach, given its predominant focus on water for drinking purposes. In this context, judicial decisions have recognised the right to ‘clean’,89 ‘pure’,90 ‘safe’,91 ‘sweet’92 or ‘wholesome’ water. They have also recognised the duty of the State to provide clean,93 unpolluted94 or safe95 drinking water. Some of these cases also impose a duty to protect water sources through prevention or control of water pollution.

Article 21 of the Constitution has not provided the exclusive basis of the right to water.96 For instance, the High Court of Madhya Pradesh has ruled that under Article 47 of the Constitution, the State has the ‘primary’ responsibility to ‘improve the health of public [by] providing unpolluted drinking water’.97 Based on a combined reading of Articles 21 and 47, the Court concluded that the State has a duty ‘towards every citizen of India to provide pure drinking water’.98 However, in a majority of the cases relating to the right to water, the courts have not referred to Article 47, unlike the right to environment cases, which include frequent references to Article 48A.

Right to Sanitation

There is a clear link between the right to sanitation and the right to environment. Human waste is usually discharged into water bodies or on land. If untreated, it can cause water or soil pollution. Therefore, proper treatment of human waste before its disposal into the environment is an essential component of the right to sanitation. In a few cases, courts have read the rights to health, sanitation and environment into the constitutional right to life. The Rajasthan High Court explicitly observed:

Maintenance of health, preservation of the sanitation and environment falls within the purview of Art. 21 of the Constitution as it adversely affects the life of the citizen and it amounts to slow poisoning and reducing the life of the citizen because of the hazards created, if not checked.99

Subsequently, the Supreme Court held that the right to life cannot be enjoyed without ‘the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation’.100 Further, in a number of decisions concerning water pollution, the operation of sewage treatment plants, which treat human waste before its disposal into the environment in accordance with the prescribed statutory standards, has been raised.101 While some of these decisions explicitly mention Article 21, and some of them even refer to the right to environment, there is no reference to the right to sanitation. Nevertheless, the implicit link is obvious. Previously, without any reference to Article 21 or the right to environment, the Supreme Court has compelled ‘a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis’.102

Right to Housing

The right to environment has also been formulated as the right to ‘decent’ environment in decisions concerning housing/shelter.103 As in the case of the decisions concerning the right to health, however, these decisions reflect a narrow conception of the environment that is concerned with the immediate environment/surroundings rather than adopting a holistic approach towards the natural environment.

Right of Environment: Anthropocentrism and Beyond

The potential of the right to environment to protect the environment is determined by the extent of its anthropocentrism. The judicial recognition of the right to environment is inextricably linked to the fundamental right to life (of humans). As a result, an anthropocentric approach is inherent in most formulations of the right to environment.

The Supreme Court has captured the difference between an anthropocentric approach and an ecocentric approach to environmental protection in the following passage:

... Anthropocentrism is always human interest focussed and non-human has only instrumental value to humans. In other words, humans take precedence and human responsibilities to non-human based benefits to humans. Ecocentrism is nature-centred where humans are part of nature and non-humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have obligations to non-humans independently of human interest. Ecocentrism is therefore life-centred, nature-centred where nature includes both humans and non-humans ... 104

The anthropocentric right to environment may nevertheless promote ecocentric considerations in some cases, although they are primarily linked to the instrumental value of the environment to human beings. For instance, in a case concerning the grant of forest clearance for bauxite-ore mining in a tribal area of the state of Odisha, the Supreme Court held that the Gram Sabha has to consider whether or not Scheduled Tribes (STs) like Dongaria Kondh, Kutia Kandha and others have any religious rights, that is, rights of worship over the Niyamgiri hills.105 This decision followed from a combined reading of the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 and the Panchayats (Extension of the Scheduled Areas) Act 1996, which led the Court to conclude that the Gram Sabha has an obligation to safeguard and preserve the traditions and customs, cultural identity, community resources, etc., of the right-holders.

The issue of the right of rivers to unfettered and/or minimum flow has also received judicial attention.106 The NGT directed the concerned state governments to fix the quantity of water that should be released throughout the year to ensure the environmental/minimum flow of river Yamuna, which will maintain the carrying capacity of the river and ensure prevention and control of pollution, as well as provide clean and wholesome water for the use of the residents of Delhi. The authorities concerned were also directed to put an end to development activities that obstruct the flow of the river. Similarly, courts have made observations for the protection of the floodplains of rivers.107 Ecocentric considerations appear to have weighed in the minds of the decision-makers, although an anthropocentric approach is also clearly visible.

Some other cases have experimented with a more ecocentric approach that protects the right of environment. For instance, the Supreme Court considered the issue of rights of animals in a case concerning the plight of the bulls used in Jallikattu, bullock-cart races, etc., in the states of Tamil Nadu and Maharashtra.108 The petitioner argued that the pain and suffering caused to the animals violates Article 21 and Article 51A(g) of the Constitution. According to the Court:

Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word ‘life’ has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution. So far as animals are concerned, in our view, ‘life’ means something more than mere survival or existence or instrumental value for human beings, but to lead a life with some intrinsic worth, honour and dignity ...109

Mindful, perhaps, of the need to respect the principle of separation of powers, the judiciary merely planted the idea but left it to the legislature to fertilise it, in the form of a legislative enactment. The Court ‘expected’ Parliament to ‘elevate rights of animals to that of constitutional rights ... so as to protect their dignity and honour’.110 While animal rights activists have appreciated the expansive interpretation of the right to life and right to environment,111 the observations of the Supreme Court have resuscitated the issue of the application of a rights-based approach to animals.112

Further, the judiciary has recently accorded rights akin to fundamental/legal rights to the rivers Ganga and Yamuna and all their tributaries, streams, every natural water flowing continuously or intermittently of these rivers specifically,113 as well as to glaciers, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls.114 In both cases, the High Court of Uttarakhand has identified persons in loco parentis as the human face to protect, conserve and preserve these right-holders.

The recognition of the ecocentric perspective is not limited to cases dealing with the fundamental right to life. After observing that environmental pollution affects every living being, the NGT highlighted the fundamental duty of every citizen, under Article 51A(g) of the Constitution, to protect and improve environment ‘not only for the benefit of the human beings and citizens of this country but having regard to all living creatures’.115 In another case, the NGT identified a peculiar feature of environmental litigation, that is, the lis is between the environment and its alleged polluter.116 According to the Tribunal, ‘[I]t is aptly said that rivers, mountains, trees, birds, flora and fauna have no language, particularly, in legal parlance and, therefore, they speak through human beings’.117

Right to Environment: Beyond Recognition

The recognition of the right to environment by the higher judiciary and the NGT has received a mixed response, and the need to recognise the limitations in its scope and adopt a cautious approach has been highlighted. This section examines some of the outcomes of judicial recognition, and the challenges relating to the realisation of the right to environment.

Development of Domestic
Environmental Jurisprudence

The judicial recognition of the right to environment has affected domestic environmental jurisprudence in different ways.

Integration of Principles of Environmental Law

One of the techniques employed by the Supreme Court to elaborate the right to environment is to integrate established as well as nascent principles of international and foreign environmental law into domestic environmental jurisprudence.118 The principles of international environmental law include the polluter pays principle,119 precautionary principle,120 principle of intergenerational equity121 and sustainable development.122 The Court has also imported the public trust doctrine from another jurisdiction (the United States).123 On the one hand, this integration is viewed as a reflection of the Court’s ‘progressive stance on environmental protection’.124 On the other hand, it is alleged that some of the principles merely create a smokescreen; they obfuscate the hard questions and render application and implementation of the right to environment difficult.125 These principles form the subject matter of extensive discussion in the other chapters of this volume.

Procedural Rights to Environment

The procedural rights to environment include access to information, public participation in decision-making and access to judicial remedies. Certain laws provide for these rights, albeit they do not use the language of rights. It is the judiciary that has established a link between the fundamental right to life and the procedural rights to environment. For instance, the Supreme Court held: ‘[T]he right to information and community participation for protection of environment and human health ... flows from Article 21’.126

The judicial recognition of the right to environment as part of the fundamental right to life can guarantee access to justice for the right-holders or their representatives. They are entitled to invoke the writ jurisdiction of the Supreme Court and High Courts to seek redress where the quality of life is endangered or impaired by a violation or derogation of laws.127 In fact, the Rajasthan High Court interpreted the fundamental duty of the citizen under Article 51A of the Constitution as the right to approach the court to ensure the performance of statutory duties by the State.128 This procedural guarantee has facilitated the development of public interest environmental litigation in India, and the adjudication of a range of environmental issues, such as the adverse effects of air pollution on monuments of national importance129 and cities,130 the adverse effects of surface water pollution due to municipal and trade effluents,131 protection of forests and wildlife,132 and garbage disposal in cities.133

Legislative Recognition of the Right

There is no explicit reference to the right to environment, either in the Constitution or in any of the domestic environmental laws. However, a shift in the approach of the legislature is visible. For instance, the preamble of the NGT Act, which provides for the establishment of the NGT inter alia for the enforcement of any legal right relating to environment, takes note of the judicial decisions that have construed the right to healthy environment as a part of the right to life under Article 21 of the Constitution.

Realisation of the Right to
Environment: Some Challenges

Although, judicial recognition of the right to environment began more than three decades ago, there are concerns relating to the realisation of the right to environment in specific cases.

First, in a number of cases, the recognition of the right has not been followed by its application to the particular facts and circumstances. For instance, in Subhash Kumar,134 which is one of the leading authorities cited in support of the recognition of the right to sanitation, the Supreme Court did not issue any orders or directions as it was discovered that the petitioner’s allegation was false. Further, while courts have recognised the right to environment in a number of cases, environmental issues were not the subject matter in all cases. In order to determine the scope and application of the right to environment, it is important to consider cases which have been filed under Article 32 or Article 226 of the Constitution, alleging a violation of the fundamental right to environment, or where the petitioner has alleged the violation of his/her/their right to environment, or the right to environment has formed part of the courts’ decision-making process as reflected in the reported judgment.

Second, the constitutional right to environment is not an absolute right. Its realisation is contingent upon the right to (human) life, which precludes cases where judicial intervention may be required for the protection of the environment for its own sake. Further, its realisation is linked to the violation or derogation of existing laws, which confines the outer limits of the corresponding duties of the government to those prescribed in existing laws. This may result in a failure to consider situations where the right to environment and the right to life are violated due to the inadequacy of existing laws or the absence of laws.

Third, arguably, the Court has passed ‘far-reaching’135 orders and judgments in several cases. However, whether or not they are ‘progressive’136 will depend on the perspective of the stakeholder who makes such an assessment, as well as the position of the assessee in respect of the doctrine of separation of powers. The development of public interest environment litigation in India is marked by tension between two camps: one applauding judicial interventions in environmental matters in a period of legislative and executive inertia and the other criticising the (alleged) foray of the judiciary into areas traditionally reserved for the other two branches of government.

Fourth, the anthropocentric perspective privileges the right to environment of some members of society and some environmental concerns over others. This may undermine the principle of intragenerational equity, which also forms part of domestic environmental law. It is argued that the right to environment has been invoked to raise the concerns of the ‘middle class’ urban residents, often to the detriment of the poor residents (such as slum-dwellers), smaller-sized or less influential industries and their workers.137 This capture has been facilitated by the ‘middle class’ preferences of the judges.138 The imbalance in terms of the number of environmental cases relating to urban and rural areas is another matter of concern. However, in recent years, an increasing number of cases relating to environmental issues faced by people in rural areas are receiving judicial attention, particularly from the NGT.

Finally, besides the right to environment, a number of other rights have also been read into Article 21 of the Constitution, including the right to development and the right to livelihood.139 The realisation of each of these rights may undermine the other rights, for instance, where the environment is used/exploited for the realisation of the right to development or the right to livelihood of an individual or a community. Courts have recognised the need to strike a delicate balance or to reconcile the tension between these rights. However, they have not identified any indicators for this purpose, and the determination continues on an ad hoc basis. As a result, on the one hand, there are cases like the Kanpur Tanneries case, where the Supreme Court observed that ‘we are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people’.140 On the other hand, in cases involving the adverse environmental impact of infrastructure projects, the Court has sacrificed the right to environment of some for the greater ‘public interest’.141 The trope of sustainable development may compel the courts to authorise a certain level of environmental degradation and the dilution of the right to environment for the sake of the realisation of the so-called right to development. This prioritisation of the right to development over the right to environment, and of the right to environment over the right of livelihood of the poor, has been criticised.142 This state of affairs also highlights the need for the recognition of an independent, substantive right to environment (or right of environment), so that the environment can be protected for its own sake.

Conclusion

The right to environment is firmly entrenched in, and has contributed to the development of, domestic environmental jurisprudence in India. Its origin has been traced to decisions of the higher judiciary, where the right to environment was explicitly or implicitly interpreted to flow from the fundamental right to life or the duties of the State in DPSP, and/or based on a combined reading of the fundamental right to life, DPSP and the fundamental duty of citizens. The right to environment continues to provide the substantive and/or procedural basis for the decisions of the Supreme Court, High Courts, and the NGT. Many of these decisions do not deal with a specific ‘right to environment’; instead, they address different components of the right.

The different formulations of the right to environment have been criticised on the ground that they are poorly defined and imprecise, and thus offer little guidance in making difficult judgments that are central to its realisation.143 Suffice to say that while this criticism is justified in some cases, the broadly defined content of the right has permitted the judiciary to tailor appropriate relief to the facts and circumstances of the cases. In the process, courts have had to choose between the rigid application of the precise substance of the right and confining its directions to the realisation of the right through the discharge of statutory duties (which may preclude many situations) and the adoption of a flexible approach, which may render justice but expose the courts to the criticism of judicial overreach.

Irrespective of its formulation, the right to environment is linked to the right to life of human beings and, therefore, the adoption of an anthropocentric approach is inevitable. In the absence of a substantive right to environment, which could accommodate the intrinsic value of the environment, some cases on the right to environment reflect the willingness of the Indian judiciary to look beyond the instrumental value of the environment. While these decisions are welcomed among environmentalists, they sound a note of caution for those who view the rights-based approach as the panacea for environmental problems.