DR RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

(SESSION 2020-21)

PROJECT OF ENVIRONMENT LAW

ON

INSTITUTIONAL INNOVATION IN ENVIRONMENTAL JUSTICE.

Submitted To: Submitted By:

Dr Amandeep Singh Chetna Singh
Assistant Professor (Law) Enroll. No. – 180101041
Dr. Ram Manohar Lohiya National Law 3rd Year
University
B.A. LL.B. (Hons.)
 ACKNOWLEDGEMENT

Learning is something that continues all throughout the life & it starts at the zest of the person
playing the role of the teacher who imparts his/her knowledge to you. It is under the guidance of
a teacher that a student grows & learns to expand his/her horizons. As a child, you acknowledged
everything you accomplished, and as you grow older and more sophisticated, you acknowledge
only major achievements. Such achievements can be reached to only with the kind showering of
the teacher’s help. And hence, the following endeavor is also attributed to my teacher, Dr
Amandeep Singh, Faculty, Law, who guided me through the path of this attainment.

Nothing can also demean the contribution of my family & friends in this journey & thus, moving
ahead without thanking them will only render the study less meaningful.

All ends well only when surroundings are constructive & people around are supportive. It
therefore becomes imperative to owe the gratitude towards all those in Dr Ram Manohar Lohiya
National Law University, who made the study possible for me even in such a tough time, amidst
this pandemic.
 CONTENT

INTRODUCTION...........................................................................................................................4
JOHANESBURG PRICIPLES........................................................................................................5
AARHUS CONVENTION..............................................................................................................6
DEVELOPMENT OF ENVIRONMENTAL FORUMS.................................................................7
INNOVATIONS IN INDIA............................................................................................................8
EXPANSIVE INTERPRETATION OF ARTICLE 21 OF INDIAN CONSTITUTION...........9
SPOT VISITS..............................................................................................................................9
APPLICATIONS OF ENVIRONMENTAL PRINCIPLES AND DOCTRINES.....................10
EXPERT COMMITTEES AND FACT-FINDING...................................................................11
CONCLUSION..............................................................................................................................13
BIBIOGRAPHY............................................................................................................................14
 INTRODUCTION

Environmental justice has emerged as a concept or mechanism that seeks accountability for the
protection of rights and the prevention and punishment of wrongs related to the disproportionate
and harmful impacts of growth on the poor and vulnerable in society from rising pollution and
degrading ecosystem services, and from inequitable access to and benefits from the use of
natural assets and extractive resources. Sustainable Development forms the root of the same.
Even the Rio Declaration emphasised in one of its principles that environmental issues shall be
best dealt with if all the concerned parties participate at the relevant level. These relevant levels
may be National or International, local or regional or about certain communities. Having access
to information related to environment, participation in decision making processes, are just
examples of the many kind of activities that may be and are undertaken at different relevant
levels. Thus, the role of rule of law and access to justice in environment related aspects assumes
huge importance.

The Rio+20 conference also highlighted that in the present century, the agenda of sustainable
development shall be marred by only two concerns- rising inequality between and within nations,
and the increasing risks from environmental changes. Only innovative steps towards the issues
could/can lead to justice. By assessing the role, function and mechanism of specific
environmental agencies, new approaches to institutional innovation of environmental protection
can be deduced and thus defined how a roadmap towards a strategic transformation of
environmental management should look like. Environmental justice movements are driving a
shift in policy orientation towards legal regimes that recognize ecosystem services and natural
assets as public goods, empower systems of accountability, and expand public access to remedy
as foundations of sustainable development.1

1
Overview of General Trends Kishan Khoday and Leisa Perch (2012), Green Equity: Environmental Justice for
Inclusive Growth, Policy Research Brief No.19, International Policy Center for Inclusive Growth (IPC-IG),
Brasilia.
 JOHANESBURG PRICIPLES

The Global Judges Symposium was held in Johannesburg in August 2002. It gave new direction
to the role of judges in protecting the environment. Around one hundred twenty senior judges
from around several countries met, at the invitation of UNEP, on the eve of the World Summit
on Sustainable Development. At the end of the meeting, the judges adopted the so-called
“Johannesburg Principles on the Role of Law and Sustainable Development,‖ which contained
the following statement:
“We affirm that an independent Judiciary and judicial process is vital for the implementation,
development and enforcement of environmental law, and that members of the Judiciary, as well
as those contributing to the judicial process at the national, regional and global levels, are
crucial partners for promoting compliance with and the implementation and enforcement of,
international and national environmental law . . . .”
Since then, there has been general acknowledgment that judges have a vital role to play in the
protection of the environment. However, the nature of that role differs depending on the legal
and administrative system of the country concerned. The United Kingdom has had elaborate
administrative arrangements for control of potentially polluting operations since the industrial
revolution. The court‘s role has principally been that of enforcement and judicial review, rather
than creation of new substantive protections.
But, where administrative setup has been underdeveloped, the Courts have had to jump in to fill
gaps. The Indian Supreme Court interpreted their constitutional right to life as granting each
individual the right to a healthy and pollution-free environment, and to effective remedies
enforceable in the courts. By abandoning strict principles of standing, the Court has recognized
the rights of citizens to raise issues of public importance and has thus paved the way for public
interest litigation as an important tool in promoting environmental protection.
Equally important is the Court‘s willingness to devise new remedies, such as establishing expert
committees to supervise environmental measures and monitor their performance. A famous
example is the Vellore Citizens Welfare2 case, in which the Indian Supreme Court, by creative
interpretation of the Constitution, held that principles of sustainable development, including the
precautionary principle and the polluter pays principle, were part of Indian law.

2
Vellore Citizens Welfare Forum v. Union of India, (1996) 5 S.C.R. 241
 AARHUS CONVENTION

The Aarhus Convention, which has now been adopted by most European countries and the
European Union itself, offers a powerful model for the involvement of the public in
environmental decision-making. It stands on the following three pillars:
1. Access to information — Citizens have the right to ready access to environmental
information, and public authorities have a duty to collect and provide it.
2. Right to participate in environmental decision-making -The public must be informed of
relevant projects and have the opportunity to participate in the decision-making process.
3. Access to justice -The public has the right of access to effective judicial or administrative
procedures to challenge the legality of environmental decisions.3
In determining standing in matters of public concern, the Convention defers to national law, but
emphasis is given to ―the objective of giving the public concerned wide access to justice. 4
Furthermore, the Convention‘s definition of ―the public concern‖ provides that ―non-
governmental organizations promoting environmental protection and meeting any requirements
under national law are explicitly deemed to have an interest in environmental decision-making. 5

3
Article 1, Convention on Access to Information, Public Participation in Decision making and Access to Justice in
Environmental Matters, June 25, 1998, 2161 U.N.T.S. 447, 38 I.L.M. 517.
4
Article 9, Convention on Access to Information, Public Participation in Decision making and Access to Justice in
Environmental Matters, June 25, 1998, 2161 U.N.T.S. 447, 38 I.L.M. 517.
5
Article 2, Convention on Access to Information, Public Participation in Decision making and Access to Justice in
Environmental Matters, June 25, 1998, 2161 U.N.T.S. 447, 38 I.L.M. 517.
 DEVELOPMENT OF ENVIRONMENTAL FORUMS

The 2011 Human Development Report highlighted the costs of ignoring social-environmental
interdependencies: chronic and structural poverty and income inequality, disempowerment and
exclusion from decision-making, and a lack of agency among citizens and communities. 6 In
particular, it raised attention to various multidimensional aspects of poverty, and how multiple
forms of deprivation are closely connected to the nature of ecosystem services, natural resource
access and benefit-sharing, and pollution impacts on health and welfare. Vulnerabilities that exist
among the poor often express themselves in specific ways based on gender, age, ethnicity,
livelihood, rural/urban contexts, among others.
Many nations have responded to these environmental pressures by adopting complex
environmental laws – from constitutional ―rights to a healthful environment, to substantive
environmental quality laws, to procedural rights of access to information, public participation,
and access to justice. International environmental treaties and agreements also create new rights
and duties – principles such as sustainability, polluter-pays, precautionary, prevention, inter-
generational equity – that increase expectations and the pressure on countries to adopt strong
laws protecting the environment. But in many countries, the laws on the books are not
adequately enforced, and so environmental problems and public outrage continue.
As India‘s economy continues to emerge and as pressures on equity and ecosystems grow, calls
have arisen in recent years for further expansion and deepening of systems of access to remedy,
leading in 2010 to passage of the Green Tribunal Act, meant to catalyze the emergence of a
nation-wide system of local tribunals over environmental matters. 7 The idea of a system of green
tribunals first arose in Indian Council for Enviro-Legal Action v Union of India,8 where the court
stated that a system of green tribunals with jurisdiction over civil and criminal aspects of
environmental claims could help achieve expediency of justice, establish panels of experts to
resolve highly technical cases, and help reduce large caseloads faced by the general courts. 9 The
Green Tribunal Act now sets the foundation for the emergence in coming years of the world‘s
largest network of local environmental tribunals, expected to increase citizen access to
environmental justice.10 As civil society movements rise against growing environmental impacts
on human well-being, communities often turn to the rule of law and systems of rights including
those noted above for solutions.

6
UNDP (2011) Human Development Report: Sustainability and Equity: A Better Future for All. Palgrave
MacMillan, New York.
7
Law Commission of India (2003), 186th Report on Proposal to Constitute Environment Courts, New Delhi.
(September 2003)
8
Indian Council for Enviro Legal Action v Union of India, (1996) 5 S.C.C. 280.
9
Id.
10
Lin T, Wang C, Chen Y, Camacho T, Lin, F (2009), Green benches: Learning from environment courts of other
countries? Asian Development Bank (ABD), Manila.
 INNOVATIONS IN INDIA

India has the largest concentration of people living in extreme poverty and in recent years has
experienced a surge of environmental justice movements as the pressures of growth make
themselves felt on communities and ecosystems. India‘s judiciary has evolved a special role in
this process. For the last several years, Supreme Court has been very active in environment
decision-making. This includes evolving new environment jurisprudence too. Besides the
assigned role of interpretation and adjudication of environmental law the Court has laid down
new principles to protect the environment, reinterpreted environmental laws, created new
institutions and structures, and conferred additional powers on the existing ones. The ever-
increasing concern of the Court in spheres of Governance has only prompted several civil society
groups, public spirited people to approach them for remedies and the Courts have been more than
happy to entertain them. A number of innovative ventures have been taken by it. These include
entertaining petitions on behalf of the affected party and inanimate objects, taking suo motu
action against the polluter, expanding the sphere of litigation, expanding the meaning of existing
Constitutional provisions, applying international environmental principles to domestic
environmental problems, appointing expert committee to give inputs and monitoring
implementation of judicial decisions, making spot visit to assess the environmental problem at
the ground level, appointing amicus curiae to speak on behalf of the environment, and
encouraging petitioners and lawyers to draw the attention of Court about environmental
problems through cash award. It is important to note that these judicial innovations have become
part of the larger Indian jurisprudence.11
These innovations can further be classified at procedural and substantive innovations. Procedural
innovations refer to those judicial initiatives that expand the existing procedure of environmental
jurisprudence for environmental protection and improvement. For example, entertaining petition
on behalf of the pollution victim and inanimate objects, expanding the sphere of litigation,
encouraging petitioners for bringing environmental litigations to the Court, making spot visit,
appointing expert committees, and appointing amicus curiae to represent environment and
pollution victims. Substantive innovations are decisions in which the Court creates, defines, or
rejects policy and governance structure for environmental protection and determines how its
directions should be implemented. For example, application of new principles to address
environmental problems, expansion of fundamental rights, and creation of new structures and
implementation of Court orders for environmental protection. Despite such differentiation, these
innovations are not mutually exclusive of each other.
Historically, the entry point for environmental claims was through two legislative provisions:
Article 21 of the Constitution on the Right to Life; Article 48-A (4) of the Directive Principles of
State Policy (1976), which notes that the ―State shall endeavor to protect and improve the
environment and to safeguard the forests and wildlife of the country‖, and Article 51-A(g) of the
Indian constitution on the fundamental duties of every citizen of India, which states that ―it

11
Gobind Das, ‗The Supreme Court: An Overview’, in B.N. Kripal et al. (eds.).
shall be the duty of every citizen of India … to protect and improve the natural environment
including forests, lakes, rivers and wildlife, and to have compassion for living creatures.12
Over the years, the Supreme Court has spoken out for the impacts of industrialization on the
ordinary citizen through a series of cases attempting to strike a balance between growth, equity
and sustainability. This followed a series of incidents where the poor were disproportionately
impacted by industry, including the Bhopal tragedy of 1984. By 1991, alongside the launch of
India‘s neo-liberal reforms and its pathway to re-emergence as a global economic power, the
Supreme Court declared that ―issues of environment must and shall receive the highest
attention from this court.13
EXPANSIVE INTERPRETATION OF ARTICLE 21 OF INDIAN CONSTITUTION
An account of the interpretation of right to environment as a part of fundamental right to life
would illustrate the efforts of Court to expand the scope of existing fundamental right to life.
In Subhash Kumar v State of Bihar14, the Supreme Court observed that ―[t]he right to live is a
fundamental right under Article 21 of the Constitution, and it includes the right of enjoyment of
pollution-free water and air for full enjoyment of life.‖ Similarly, in the Dehradun Limestone
Quarrying case, the Court has made it clear that economic growth cannot be achieved at the cost
of environmental destruction and peoples‘ right to healthy environment. In the Doon Valley case,
concerning mining environment, the Court has interpreted Article 21 to include the right to live
in healthy environment with minimum disturbance of ecological balance and without avoidable
hazard to them and to their cattle, house and agricultural land and undue affection of air, water
and environment.15 This was further emphasised in the Ganga water pollution case which
extended the right to life to include the right to defend the human environment for the present
and future generation.17 In M.C. Mehta v. Union of India, the Court has accepted that
environmental pollution and industrial hazards are not only potential civil torts, but also violation
of right to health. In this way, through the interpretation of Article 21, the Court has sought to
convert formal guarantees into positive human rights. These landmark interpretation by the
Supreme Court set the foundation for the expansion of rights-based approaches to challenging
environmental impacts of growth.
SPOT VISITS
Another important procedural innovation of the Court in resolving environmental dispute has
been found in judges‘ personal interest to have first-hand information through spot visit to
understand the nature of environmental problem and the issues revolving around it. In the
Ratlam Municipal v. Vardhichand case, before arriving at a decision, Justice V.R. Krishna Iyer
visited the Ratlam town and assessed the problem and then directed the Ratlam Municipality to
take appropriate measures to construct proper drainage system in the city. Likewise, in the Doon
Valley case, Justice P.N. Bhagwati visited the area and found that the environmental litigation
12
R. Sharma, Green Courts in India: Strengthening Environmental Governance?‘ (2008) 4(1) Law, Environment and
Development Journal, 50.
13
Tarun Bharat Sangh, Alwar v. Union of India, 1992 Supp. (2) S.C.C. 448.
14
Subhash Kumar v. State of Bihar, A.I.R. 1991 S.C. 420.
15
R.L.E.K. v. State of Uttar Pradesh and Others, A.I.R. 1985 S.C. 652. 17
M.C. Mehta v. Union of India, A.I.R. 1988 S.C. 1037.
involved certain complex issues including the rights of the workers, traders and fragile ecology
of the area. He then appointed an independent committee to assess the problem and based on the
recommendation of the committee, the Court directed the state government of Uttar Pradesh to
close down certain mining units which were illegally operating and allowed other mining units to
operate only with certain conditions to ensure the protection of environment. In the Narmada
Dam case, the visit of Justice S.P. Bharucha to the dam site also made a difference in the
outcome of the case. In his judgment, Justice S.P. Bharucha expressed dissatisfaction with the
rehabilitation process and the way environmental clearance was given to construct the dam in the
river valley.16
However, most of the judges share the view that it is neither feasible nor possible for them to
make spot visit to arrive at a decision always. Therefore, the innovative method to arrive at a
decision through spot visit has become part of individual interest of judges rather than a standard
practice in the decision-making process.
APPLICATIONS OF ENVIRONMENTAL PRINCIPLES AND DOCTRINES
The Court of India, while administering environmental justice, has evolved certain principles and
doctrines within and at times outside the framework of the existing environmental law.
Environmental principles, such as polluter pays principle, precautionary principle (From Rio
1992) and public trust doctrine have been adopted by the Court in its concern to protect the
environment from further degradation and improve the same.
Drawing inference from international environmental principles, the Court of India has applied
various principles to resolve domestic environmental problems. For example, the Polluter Pays
Principle was invoked by the Court of India in the Indian Council for Enviro-Legal
Action v. Union of India.19 Giving the judgment, the Judges held that ‗we are of the opinion that
any principle evolved in this behalf should be simple, practical and suited to the conditions
obtaining in this country. Once the activity carried on is hazardous or inherently dangerous, the
polluter carrying on such activity is liable to make good the loss caused to any other affected
party by polluter‘s activity irrespective of the fact whether the polluter took reasonable care
while carrying on his activity‘.43 In this case, the Court has stated that the ‗Polluter Pays
Principle‘ means that the absolute liability for harm to the environment extends not only to
compensate the victims of the pollution but also the cost of restoring the
environmental degradation. Subsequently, Polluter Pays Principle‘ as interpreted by the Court
has been recognized as a fundamental objective of government policy to prevent and control
pollution.17
The precautionary principle, as applied by the Court in the Vellore Citizens’ Welfare Forum v.
Union of India,18 imposes an obligation on every developer, industry and governmental agency to
anticipate, prevent and attack the causes of environmental degradation. The Court also held that
16
(2011) 7 S.C.C. 639. Supra
note at 9.
17
Government of India, National Environmental Policy, 2006, available at http://www.envfor.nic.in/nep/
nep2006.html.
18
Vellore Citizens’ Welfare Forum v. Union of India, A.I.R. 1996 S.C. 2716.
if there are threats of serious and irreversible damage, then any lack of scientific certainty should
not be used as a reason for postponing measures to prevent environmental degradation. Finally,
the Court emphasised that the onus of proof shall be on the actors or the industrialists to show
that their action is environmentally benign. The precautionary principle had also been
emphasised in cases such as M.C. Mehta v. Union of India and A. P. Pollution Control Board v.
M.V. Nayudu case.19
To further justify and perhaps extract the state initiative to conserve natural resources, the Court
also enunciated the doctrine of public trust‘ thereby obligating conservation by the state. The
public trust doctrine has been referred to by the Court in M.C. Mehta v. Kamal Nath.23 The
doctrine extends to natural resources such as rivers, forests, seashores, air etc., for the purpose of
protecting the eco-system. The State holds the natural resources as a trustee and cannot commit
breach of trust.
Unfortunately, most of the above principles borrowing from international environmental
agreements by the Court have neither been followed consistently nor been institutionalized to
make a long-term impact for the environmental jurisprudence process. As far as the Court‘s
emphasis on polluters pay principle is concerned, it has not been able to control pollution,
especially created by the big enterprise, and has rather provided an instrument to the polluter to
pay and pollute.
EXPERT COMMITTEES AND FACT-FINDING
The Supreme Court‘s use of discretion power whether to appoint independent expert committee
or rely on state appointed expert committee on environmental issues, however, has brought
substantial changes in the outcome of the environmental litigation. In the Doon Valley case, the
Court required information on whether indiscriminate mining, continued under a legally valid
license, had any adverse impact on the ecology. The Court appointed a Committee headed by
D.N. Bhargava, for the purpose of inspecting the lime-stone quarries mentioned in the writ
petitions and also in the list given by the Government of Uttar Pradesh. In S. Jagannath v. Union
of India,20 intensive and semi-intensive aquaculture, were declared to be environmentally
harmful by the Court, on the basis of studies by the Central Pollution Control Board and the
expert committees at the national and international levels. In the Godavarman case,25the Court
asked the state government and the Central government to appoint committees to study several
problems, and to oversee implementation of orders relating to forest protection.
The Court‘s strategy of appointing committees, which are supposedly expert bodies sometimes
also results in leading to a different set of unforeseen problems while solving disputes. The
Central Empowered Committee (CEC), for example, in the T.N. Godavarman case, which was
constituted vide a Court‘s order is perhaps one of the most glaring examples. The procedural
requirements mandate that the Central Empowered Committee can recommend certain things to
the Court in the light of facts presented before them. Again, it is only when the Court endorses
19
Andhra Pradesh Pollution Control Board v. Prof. M.V. Nayudu, A.I.R. 1999 S.C. 812. 23
M.C. Mehta v. Kamal Nath, 1997 (1) S.C.C. 388.
20
S. Jagannath v. Union of India, (1997) 2 S.C.C. 87. 25
(1997) 2 S.C.C. 267.
such recommendations that the order would be more effective. Apart from this, there have been
serious concerns over the functioning and composition of such Court appointed committees. For
example, the members of the CEC set up by the Court consists entirely of wildlife
conservationists who have traditionally prioritized wildlife over people, and officers of the
Ministry of Environment and Forests, with their strong inclination to enlarge the territory under
forest department control. There is no representative of tribal people, the Ministry of Tribal
Affairs or the Constitutional Authority of the Commissioner, Scheduled Castes and Scheduled
Tribes. The committee is empowered to make recommendations to the Court on any of the
interlocutory applications and also to monitor the orders passed by the Court. The reports of
expert committee given to apex Court also raise problems of their evidentiary value. No Court
can base its decisions on facts unless they are proved according to law.
It is also being strongly felt that the statutory obligation of the executive is being diluted by
creation of such committees, which now have assumed a status of permanent statutory bodies as
such committees are now being created under the Environment Protection Act as Special
Environment Protection Authorities and their terms depend on the Central Government‘s will. In
other words, Court initiated committees or commissions are being converted into statutory
authorities thereby creating a parallel power structure within the governance frame.
 CONCLUSION

The examination of the implications of Supreme Court‘s innovations for environmental

jurisprudence reveals that the application of innovative methods to resolve environmental
disputes and implement Court orders is certainly a deviation from the usual adjudication function
of the Court. Procedural innovations have widened the scope for environmental justice through
recognition of citizens‘ right to healthy environment, entertaining petitions on behalf of affected
people and inanimate objects and creative thinking of judges to arrive at a decision by making
spot visit, substantive innovations have redefined the role of Court in the decision-making
process through application of environmental principles and expanding the scope of
environmental jurisprudence. This dependence on a judicial institution that has already exceeded
the boundaries of its responsibilities has been further complicated by the lack of monitoring of
the Supreme Court‘s orders and the vagueness of the legislative and executive roles regarding
environmental issues. With its intervention in the interpretation of environmental policy and
implementation process, the potential for resolving environmental conflict is hardly over. The
review of environmental cases shows that there has been no uniform cooperation from the
implementing agencies to effectively implement the Court directions. It is also observed that
most of the innovative methods introduced by the Court have neither been followed consistently
nor been institutionalized to make a long-term impact for the environmental jurisprudence
process. United efforts towards implementation have to be made. Therefore, for a considerable
period we need to direct our efforts towards monitoring these innovations too to see the desired
effect.
Also, it has been fifteen years since the Johannesburg Principles. Fundamental to the declaration,
challenges of environmental protection have to be addressed at all levels – national, regional and
global – and laws are not enough without judges and courts able to understand the issues. It is
also essential that to provide accessible justice to individuals and representative agencies. A large
body of experience has now been created by judges in many parts of the world in many forms.
What is needed is to coordinate that work and to learn from each other‘s experiences. More
importantly, UNEP should renew its commitment to the principles stated in 2002 and develop a
new program of cooperation with judges and administrators to build on the successes of the last
fifteen years.
 BIBIOGRAPHY

 UNDP, Environmental Justice: Comparative Experiences in Legal Empowerment, June

2014.
 P. M. Prasad, Environment Protection: Role of Regulatory System in India, Economic
and Political Weekly, Vol. 41, No. 13 (Apr. 1-7, 2006), pp. 1278-1288.
 Prof. Satish C. Shastri, Environmental Law.
 Dr. Gurdip Singh, Environmental Law in India.