Abstract
It is to the credit of the Indian judiciary, particularly the higher courts, that significant strides have been made in the protection of the environment. Indeed, it would not be an exaggeration to state that the development of environmental jurisprudence in India is inextricably linked with the evolution and growth of the judicial institution itself. As a sub-continental nation-state marked by striking cultural, economic, and ethnic diversity, burdened with the world’s second-largest population—much of which remains steeped in illiteracy and poverty—India presents unique challenges of governance.
The written Constitution, which the people adopted upon attaining independence, enshrines extensive fundamental rights. However, the realization of these rights has proven arduous. Amidst various developments in the body politic, the judiciary emerged as the last bastion for the protection of the rights and liberties of the populace.
The post-Emergency era, particularly during the 1980s, witnessed an increasingly activist judiciary. It was during this period that significant developments occurred in environmental law, shifting the focus from the conventional treatment of environmental violations as civil wrongs or offences, to recognizing environmental concerns as integral to the fundamental rights guaranteed under the Constitution.
Constitutional Provisions and Legislative Framework
The Constitution of India expressly mandates the protection and improvement of the environment. Article 48A, a Directive Principle of State Policy under Chapter IV, obliges the State to protect and improve the environment and to safeguard forests and wildlife. Further, Article 51A(g) imposes a fundamental duty upon every citizen to protect and improve the natural environment.
Though Directive Principles are not enforceable in a court of law, an activist judiciary has effectuated these objectives by interpreting them harmoniously with enforceable fundamental rights. In particular, Article 21, guaranteeing the right to life and personal liberty, has been expansively interpreted to include the right to a pollution-free environment. Articles 32 and 226, empowering the Supreme Court and High Courts respectively to issue prerogative writs for the enforcement of fundamental and other legal rights, have been frequently invoked to secure environmental protection. The expansion of the doctrine of locus standi facilitated the filing of public interest litigations to prevent environmental degradation.
The Environment (Protection) Act, 1986, is perhaps the most significant statutory enactment in this sphere. Enacted in the aftermath of the Bhopal Gas Tragedy, the Act provides a comprehensive framework for environmental protection. ‘Environment’ is defined to include water, air, land, and the inter-relationships among and between them and human beings, other living creatures, plants, micro-organisms, and property. The Act empowers the Central Government to take necessary measures to protect and improve environmental quality, and to prevent, control, and abate environmental pollution. As an umbrella legislation, it authorizes the setting of emission standards, regulation of industrial locations, procedural control over hazardous substances, and dissemination of information on environmental pollution.
The common law principle of ‘nuisance’ continues to provide a foundational basis for action against environmental violations. Provisions under the Code of Civil Procedure, 1908 (“CPC”), the Indian Penal Code, 1860 (“IPC”), and the Code of Criminal Procedure, 1973 (“CrPC”) address public nuisances. Section 91 of the CPC allows two or more persons to initiate a suit in cases of public nuisance. Following the Bhopal Gas Tragedy, the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was enacted, granting the Central Government exclusive rights to represent victims’ claims under the parens patriae doctrine—a validity upheld by the Supreme Court in Charan Lal Sahu v. Union of India.
Public nuisance is an offence under the IPC, with various provisions addressing environmental harms. Under Section 133 of the CrPC, a magistrate may order the removal of a public nuisance. Sections 142 and 144 empower magistrates to take preventive measures against environmental hazards. The Supreme Court in Municipal Council, Ratlam v. Shri Vardhichand held that financial incapacity could not excuse a local body from fulfilling its basic obligations, such as providing drainage, emphasizing that “decency and dignity are non-negotiable facets of human rights.”
Earlier, in Govind Singh v. Shanti Swaroop, the Court recognized that the nuisance caused by smoke emissions from a bakery affected public health and convenience at large, not merely private rights.
The Air (Prevention and Control of Pollution) Act, 1981 (“Air Act”) and the Water (Prevention and Control of Pollution) Act, 1974 (“Water Act”) establish a regime for the regulation and control of pollutants, administered by Central and State Pollution Control Boards. Violations invite penalties including industrial closure. The Water (Prevention and Control of Pollution) Cess Act, 1977 (“Water Cess Act”) levies charges on water consumption, incentivizing the installation of effluent treatment plants through substantial rebates.
Forests and wildlife protection is governed by the Indian Forest Act, 1927, and the Forest (Conservation) Act, 1980. The latter requires Central Government permission for dereservation or diversion of forest land for non-forest purposes. Relevant statutes also include the Wildlife (Protection) Act, 1972, the Atomic Energy Act, 1962, and the Factories Act, 1948.
Further, several Rules framed under the Environment Protection Act—such as the Hazardous Wastes (Management and Handling) Rules, 1989, and the Hazardous Micro-organisms Rules, 1989—regulate hazardous substances and genetically engineered organisms.
The Public Liability Insurance Act, 1991, mandates public liability insurance for hazardous installations to provide immediate relief to victims. The National Environment Tribunal Act, 1995, provides for strict liability for damages caused by accidents involving hazardous substances and establishes tribunals for adjudication of such claims.
Judicial Innovations and Principles
In Vellore Citizens’ Welfare Forum v. Union of India, the Supreme Court emphasized ‘sustainable development’ as a part of customary international law, incorporating the ‘precautionary principle’ and the ‘polluter pays principle’ into Indian law. An ‘environmental fund’ was created, funded by fines imposed on polluters, to finance reclamation and rehabilitation activities.
These principles have been reaffirmed in subsequent decisions including the Calcutta Tanneries case, the Shrimp Farming case, the Taj Trapezium case, and M.C. Mehta v. Kamal Nath. In Kamal Nath, the Court invoked the ‘public trust doctrine’, holding that natural resources are held by the State in trust for the public and cannot be transferred into private ownership.
In Indian Council for Enviro-Legal Action v. Union of India, the Court reaffirmed the principle of ‘absolute liability’ for hazardous activities, departing from traditional notions of strict liability and emphasizing that industries engaged in inherently dangerous activities are liable for resulting harm irrespective of fault.
The Oleum Gas Leak case established absolute liability for enterprises engaged in hazardous operations. The Court asserted that industries dealing with hazardous substances must bear the cost of any harm caused, without regard to reasonable care taken.
The Taj Trapezium case highlighted the imperative of protecting the Taj Mahal from air pollution caused by coal-based industries, affirming that even a remote chance of harm to a national monument could not be tolerated.
Conclusion
It is evident that the judiciary in India has transcended procedural technicalities to advance environmental protection. Courts have ordered the relocation of industries, closure of polluting units, establishment of environmental rehabilitation funds, and installation of effluent treatment plants, often within time-bound frameworks. The proactive role of the judiciary has been instrumental in the development of environmental law, making it a vital tool for securing sustainable development in India.