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Higher Judiciary and Environment

The document discusses the role of the higher judiciary in India in protecting the environment, highlighting key legal principles such as the Public Trust Doctrine, the Polluter Pays Principle, and the Precautionary Principle. It outlines significant case laws that have established the right to a clean environment as part of the fundamental right to life under Article 21 of the Constitution. The judiciary's activism in interpreting environmental laws and balancing development with ecological sustainability is emphasized, particularly following landmark rulings and legislative changes post-independence.

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11 views13 pages

Higher Judiciary and Environment

The document discusses the role of the higher judiciary in India in protecting the environment, highlighting key legal principles such as the Public Trust Doctrine, the Polluter Pays Principle, and the Precautionary Principle. It outlines significant case laws that have established the right to a clean environment as part of the fundamental right to life under Article 21 of the Constitution. The judiciary's activism in interpreting environmental laws and balancing development with ecological sustainability is emphasized, particularly following landmark rulings and legislative changes post-independence.

Uploaded by

NISHA 0094
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We take content rights seriously. If you suspect this is your content, claim it here.
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Role of Higher judiciary in

protecting the environment


Ms. Nithyasree
Terms
• JUDICIAL REVIEW
• JUDICIAL ACTIVISM
• Innovation of the judiciary to formulate doctrines, principles to uphold the
justice
• JUDICIAL RESTRAINT
• Judiciary’s non-intervention
Introduction
• Post independence era – focussed on industrial development, employment
generation
• Environment became a priority after the Bhopal gas tragedy
• UNCHE 1972
• EPA 1986
• 42nd amendment act – Environment mandate in DPSP art 48A, art 51A(g)
• Obligations under ART 48A, ART 51 A (g) – duty of the state and citizen
• Article 21- includes right to environment
• WLPA 1972, WATER ACT 1974
CONT..
• Article 48A: the State shall endeavor to protect and improve the
environment and to safeguard the forest and wildlife of the country

• Article 51A(g) “It shall be duty of every citizen of India to protect and
improve the natural environment including forests, lakes, and wildlife
and to have compassion for living creature.
Changes
• After Stockholm, India made a note in 4th V year plan to incorporate
environmental factors in planning and development
• National committee on environment Planning and Co-ordination was
set up – act as advisory body
Doctrines evolved
• Art 253 of the constitution:
• Parliament can enact laws for any part of India to implement any
international treaty or agreement
Public trust doctrine
• State is a guardian of natural resources , has legal duty to protect . Natural resources available for
enjoyment of public cant be transferred to private property
• MC Mehta v Kamal Nath
• In the State of Himachal Pradesh, Span motel, owned by the family members of Shri Kamal Nath,
Minister for Environment and Forests, Govt. of India diverted the Course of river Beas to beautify
the motel and also encroached upon some forest land.
• The apex court ordered the management of the Span motel to hand over forest land to the Govt.
of Himachal Pradesh and remove all sorts of encroachments.
• The Court delivered a land mark judgment and established principle of exemplary damages for
the first time in India.
• The Court said that polluter must pay to reverse the damage caused by his act and imposed a fine
of Rs Ten Lakhs (Rs 10,00,000) on the Span motel as exemplary damages. The Supreme Court of
India recognized Polluter Pays Principle and Public Trust Doctrine.
Principle of Sustainable development
• Balancing the two conflicting
principles
• Industrialisation, development
sustains livelihood, reduces
poverty, generates employment,
Development Environment social security
• It also conflicts with
environment by polluting the
same, causes pollution,
generates waste etc
Cont..
• Vellore citizen welfare forum v UOI
• Court held “the traditional concept that development and ecology are
opposed to each other, is no longer acceptable. sustainable
development is the answer”
• Sustainable development means “the need of fulfilling the needs of
the present generation without compromising the ability of the future
generation to meet their own needs”
• Balancing concept between ecology and development
Polluters pays
• The polluter has to pay for the damages caused by him to the victims
of environmental pollution
• By giving adequate compensation to the victims
• And bearing the cost of environmental damages and ecological
restoration
• MC Mehta v UOI / oleum gas leakage case
Precautionary principle
• -Environmental measures must anticipate, prevent and attack the
causes of environmental degradation.
• Lack of scientific certainty should not be used as a reason for
postponing measures.
• If a project or an action if implemented can cause damage to the
environment
• The person who is taking such action is aware of its potential harm
• The absence of scientific evidence of such harm
• The burden of proof lies on the person taking such action
REMEDIES AVAILABLE
• TORT LAW • STATUTORY LAWS
• The tortious remedies available • Suit filed under
are 1. Section 19 of the Environmental
1. Trespass (Protection) Act, 1986
2. Nuisance 2. Section 133 Criminal Procedure
3. Negligence Code, 1973
4. Strict liability 3. Section 268 for open irritation,
under Indian Penal Code, 1860.

4. Art 32, 226 – PIL


Case laws – interpretation of article 21
• Subhash Kumar v state of Bihar: right to clean water is a fundamental right.
Water and air are inalienable part of “life” under art 21
• Narmada Bachao andolan v UOI: “Water is the basic need for the survival
of human beings and is part of the right to life and human rights as
enshrined in Article 21 of the Constitution of India.”
• In Delhi gas Leak case “no fault” liability standard (absolute liability) was
introduced for industries engaged in hazardous activities which have
brought about radical changes in the liability and compensation laws in
India.
• Charan Lal Sahu case, Supreme Court had said that the right to life
guaranteed by Article 21 of the Constitution includes the right to a
wholesome environment.

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