Extracts from 'Indian Environmental Law: Key Concepts and Principles' (Orient Blackswan, 2019)
Environmental rights and legal principles are central to Indian environmental law and judicial decision-making. Conceptual clarity about their content and how the courts have applied them is a sine qua non for more effective environmental litigation and advocacy. The volume, Indian Environmental Law: Key Concepts and Principles, seeks to provide this conceptual clarity through contributions by eminent scholars in the field of environmental law. It is divided into two parts: Part I on environmental rights includes Chapter 1 on substantive environmental rights and Chapter 2 on procedural environmental rights; and Part II on key legal principles—the principle of sustainable development (Chapter 3), the polluter pays principle (Chapter 4), precautionary principle (Chapter 5) and public trust doctrine (Chapter 6)—and a final chapter on the implementation mechanisms adopted by the judiciary (Chapter 7).
CPR-ICEE is happy to announce that this volume is now available on the publisher's website for free download. Access it here. Below we reproduce extracts from the volume's introduction.
Pp 3 onwards
In its efforts to manage such complex polycentric disputes, the Indian judiciary relies on a framework of rights and environmental law principles. The rights framework is based on the judiciary’s interpretation of the right to life guaranteed under Article 21 of the Constitution as including a right to environment, and when read with Articles 48A and 51A(g), a clear constitutional mandate to protect the environment. This right to environment has been defined in many ways—a right to live in a healthy environment with minimal disturbance of the ecological balance, a right to live in a pollution-free environment, a right to decent environment, etc. More recently, the judiciary has even recognised a right of the environment—signalling a move away from its conventionally anthropocentric approach to environmental conservation. Making the realisation of this substantive right to environment meaningful, inside and outside the courtroom, are certain procedural guarantees. These guarantees, often termed as procedural environmental rights, include the right to information, public participation and access to justice. Mostly of statutory origin and supported by sympathetic and expansive judicial interpretation, these rights are a vital part of the environmental rights framework.
Legal principles, drawn from international and foreign environmental law, complement and reinforce this rights framework. These principles include the principles of sustainable development, polluter pays, precaution and inter/intra generational equity, and the public trust doctrine. These principles did not, at the time the courts first referred to them, find place in Indian statutory law. The Supreme Court, credited with introducing these principles to Indian law, looked elsewhere—international legal documents, foreign law and other branches of law, and provided explanations ranging from international obligation to follow a particular principle to shared common law traditions to justify the legal imports. Over the past two decades, these ‘imported’ principles have been accepted as an intrinsic part of Indian environmental law, albeit with some definitional and conceptual adjustments.
Lawyers arguing environmental cases routinely rely on substantive and procedural environmental rights and invoke these legal principles, and judges frequently refer to them while delivering judgments. An appreciation of Indian environmental law is incomplete without the knowledge of this rights framework and these legal principles, and how the Indian courts have interpreted and operationalised them. This volume has been conceptualised to improve our understanding of these rights and principles, to evaluate their pre-eminent status in environmental litigation in India, and to understand the mechanisms used by the courts to implement them.
pp 6
This volume is designed to create a space for an interpretive discussion about the evolution and content of environmental rights and principles that may improve our understanding of these rights and principles, their utility in Indian environmental litigation in particular, and in environmental governance more generally. The chapters shed light on the assumptions underlying the environmental law principles that drive their application and problematise judicial reliance on them. A better understanding can improve the quality of arguments being raised in courts, lend a more robust basis for judicial reasoning and, arguably, result in more ‘implementable orders’. Indian environmental judgments also provide valuable insights into different facets of judicial decision-making in India’s adversarial system, including the quality of reasoning, consistency and conceptual clarity.
The need for clarity and consistency is reinforced by the legislative mandate given to the NGT under the National Green Tribunal Act 2010. The preamble to the Act acknowledges that the judiciary has interpreted the right to life to include the right to healthy environment. The Tribunal has jurisdiction over a wide range of environmental issues and is required to apply the principle of sustainable development, precautionary principle, and polluter pays principle while making decisions.
pp 7
It is necessary to flag that the formal enunciation of these rights and principles in judicial decisions itself is not sufficient to fundamentally change environmental conditions on the ground. The decisions, though perhaps well-intentioned in their final judicial outcome, do not necessarily lead to curtailment and/or remediation of environmental degradation. Whether a judgment has the desired results in a particular case, or in deterring future harmful activities, depends on several factors that cannot always be controlled from inside the courtroom, and are, in part, a reflection of the complexities in environmental disputes. A discussion on the factors influencing the implementation of environmental judgments is an important area for future research.
(Environmentality is a collection of ideas, perspectives, and commentary by researchers at the Initiative on Climate, Energy and Environment, Centre for Policy Research, New Delhi. Views and opinions expressed in this blog are solely those of the authors. They do not represent institutional views.)