Kapil Joshi & Shivaa Thirumurugan
Student of BBA LLB (Hons.) at University of petroleum and energy studies, Dehradun
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Student of BBA LLB (Hons.) at University of petroleum and energy studies, Dehradun
Phone number: +91-
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The origin of environmental jurisprudence emerged as a need for establishing relationship between different areas of study including legal jurisprudence, environmental sciences information technology and earth sciences, among the first conferences the Stockholm declaration of 1972 helped coin the concept of environment and proposed collective ideas as adopted by other nations around the world.
In India the concept was first introduced by the supreme court of India in the 42nd amendment in 1974 wherein environment protection was seen as a needful leading to the establishment of environment protection act of 1984, within the constitution fundamental rights enshrined under article 21 and 47 aim to obligate certain duties towards the maintenance and preservation of environment keeping reasonable restrictions towards enjoyment of right to life. The ground norm theory as proposed by the famous Jurist Kelson is seen as the basis of environmental jurisprudence in India wherein the whole world is seen as the supreme basis for the enjoyment of right to life, sustainability, equity and protection of the interest of other beings with regard to the same.
- ENVIRONMENT AND CONSTITUTIONAL JURISPRUDENCE
The parameter for determining the degree of applicability of rights on natural beings drew its significance from juristic ideology. The judgement quoted in State of Kenneth vs Hawaii le vaseur wherein the accuser’s claim to free “dolphins” on ground of freedom of choice was condemned by the court. The contentions of the accused arose on ground of freedom of choice and separate jurist personality for the dolphins. These contentions made above were based on moral standards which the court rejected stating “dolphins are to be treated as subjects of property”. The judgement quoted above highlighted an anthropocentric view which was a term established by certain environmental philosophers. 
The anthropocentric point of view centralizes human beings as supreme subjects of law and order and excludes other beings from the purview. The main criticism arising against anthropocentric view is utilization of natural resources in an unethical way leading to their exploitation in absence of weightage of rights and duties to other non-human beings. The lack of reasonable weightage signifies, deficient moral and ethical structure in the legal domain. The idea of western law to treat non-human beings as objects coined this concept for the first time. The need for treating non-human beings who are a pre requisite for sustenance of human existence demanded for an egocentric approach leaving behind the trends of green economy prevailing in the modern-day society. The idea of egocentric approach complements environmental jurisprudence. In this concept an attempt to establish a relationship between human and environmental beings in terms of legal philosophy is initiated. The idea of collaborating modern legal approach and morality has been critical with negative reception. On one hand some theorists tried to establish a link between the morality and thomist approach, while others condemned the application of this amalgamated principle. The ideology as proposed by Thomas namely works on means end relationship, it states that law is a command given by an authority for common good which is backed by reason. Based on the above grounds eternal law can be fitted into environmental jurisprudence. The idea of eternal law elaborates reason and specific ends thereby stating “god created beings for achieving specific ends which were to be achieved by mode of reason”.
The present environmental jurisprudence therefore calls for a better approach of reason for achieving the means of a sustained environment. The concept of sustainability which has been enshrined under article 21 of the constitution of India elucidates a wider concept towards “right to life”. The right to life in this case includes the right to live with human dignity which has also called for sustenance on the expansion of human activities. The principle of sustainable development may bridge the gap between mass development and ecological integrity stating that development in the human activities in no way must destruct the environmental balance and compromise with the future generations and with addition to that, the principle of polluter’s pay based on imposing fines and liabilities as precautionary is very well laid down in the case of Vellore citizen welfare forum vs union of India. The supreme court in this case stated the following “remediation of the damaged environment is part of the process of ‘Sustainable Development’ and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology”.
From the above case it is clear that sustainable development in its philosophical sense has finitely circled only around resources and environmentalism where both have distinctly valued over one another. Through the approach of environmentalism more focus has been drifted towards building an egocentric model by drafting policies in protection of environment for instance the endangered species act. The resources (Uchenna Onuzo, APRIL 2013) (Quantifying environmental health impacts, 2006,2010)m approach has primarily focused on utilization of resources for instance privatization in certain cases, but the practical concern is still not addressed as both operate independently on their own levels without collaborating with each other. Another drawback of the resource environment approach is lack of global applicability based upon location and time. The integration of equity society and environment into one set other than its independent operation is seen as a better solution for the same.
The concept of equity as coined in the Brundtland commission report stated “development taking place in the present without compromising the ability to meet the needs of future generations”. However, as a social concept it simply puts an emphasis into fulfilment of basic needs and framework of policies in such a way achieve the ends of these needs must have to be delivered with impartiality, Justice and fairness. A strong connection between social equity and environment can be linked in a way that environmental resource is subjected to minimum judicious use and that no person by means of social status should be deprived of environmental comforts. The unequal distribution of income contributes to this disparity. The unequal standards of healthy environment for people subjected to low income groups is evident from the statistics released by who which stated “nearly 12.6 million people die as a result of working in an unhealthy environmental conditions” a second report published by the WTO on non-communicable diseases stated that nearly 8.2 million deaths globally occur as result of exposure to second hand smoke and air pollution. These have been a resultant of massive deforestation, forest fires and other activities that have resulted this death toll. However it is to be noted that not all activities that are anthropocentric contribute environmental exploitation, for instance as in the case of Fateh sanggimba visva vs state of Gujrat the court stated that “Bamboo once converted into bamboo chips did not constitute a produce from nature and therefore cannot be treated as violation of the Indian Forest Act and therefore the sale of bamboo chips to tribal people does not cause a violation of this act. The principle of equity further has been divided into two important areas:
- 3.1 INTERGENERATIONAL EQUITY: Intergenerational equity signify the usage of resources in its most ethical way leaving behind a legacy of trust for the future generations in its best possible form. The concept coined in the Stockholm declaration of 1972 has been interpreted differently by different legal philosophers but Edith Brown Weiss has conceptualized the idea better. The goal here is not to leave resources in their minimal way for the future generations but leave it according to the needs of the future generation. The needs of the future generations have varied significantly from the past ones as the standard of living, economy; social and legal aspects have changed drastically. Therefore, the alternative left for the present ones is to either provide for an alternative way in case there is a depletion of resources or the other alternative is to update the existing technology in such a way so as to generate welfare for the future ones. With technology as a source for replenishment or reducing the exhaustion of resources artificial intelligence may play a potential benefit for the effective usage of resources.
- The use of satellite images for tracking down the happening of deforestation or the use of low carbon emission systems or using alternative ways for steel and cement manufacturing can provide a potential cure for the time being. In the case of depletion an intergenerational artificial intelligence may provide a cure for which the cost of technology may inflate in future. Within the parameter of intergenerational equity there also exist certain sub divisional models namely in the form of preservationist and consumption model. The above models are extreme in their own levels of fields whereby the former emphasises upon non consumption of resources saving maximum resources for future generations while the latter model focuses upon the utilization of resources to its full potential in present and save wealth for the future generations. There are certain guidelines for the application of intergenerational equity:
- 3.1.1 The first principle being non imposition of extreme burden upon present generations for utilization of resources which are preservatory model based.
- 3.1.2 The second principle of not imposing equalization of the usage of resources between all sects of the community so that usage of resources is equalized among all beings.
- 3.1.3 The Third principle being forcibility of actions where resource utilization must be applied.
- POLLUTER’S PAY PRINCIPLE
The principle of polluter’s pay arose in the Brundtland commission report in 1987 for the first time in the case of Enviro Legal action vs Union of India whereby the liability to pay for the damage caused to the other party was necessitated irrespective of the duty of reasonable care taken by the party in preventing the damage. The principle does not specify an obligation apart from making the party pay for damage caused but technically it’s meaning can be derived from the Rio declaration of 1992 which states that National authorities should endeavour to promote internalization of environmental costs and the use of economic instruments, taking into account plainly that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. In the Indian context the Supreme Court has expressly laid down that any Industrial activity causing degradation in the level of the health and industrial contamination is liable to compensate for the damage caused. The above interpretation clearly elucidates the application of the rule of strict liability. The significance of the principle also extends to the outreach of environmental bodies such as river, sea shores, forests whereby the action of the state to safeguard the above from damage arising, becomes an obligation and therefore these environmental bodies are subjected to treatment of trust in the hands of the state. The above principle referred to as the doctrine of trust acts as a precautionary before discharging the polluter’s pay principle.
- ANALYSIS OF CONSTITUTIONAL PROVISIONS CASE LAWS IN INDIA
Preceding the 1980s, only the bothered/aggrieved party could knock the doors of justice and look for a solution for his/her grievance and for any other individual who was not able to do so, as an intermediary for that casualty or the distressed individual. Yet, around 1980, the Indian legal system, especially the field of environmental law, experienced a massive change regarding disposing of its dying methodology and instead, charting out new skylines of social justice. This period was described by legislative activism, administrative activism as well as judicial activism. Under Article 21of Indian Constitution, we have a right to live and breathe in a safe and non- polluted environment. In fact, part IV of our constitution contains directive principles which state that it is the duty of the state to protect the environment.
At present most environmental actions in India are brought under Articles 32 and 226 of the Constitution. The writ procedure is mainly preferred over the conventional suit since it is quick, relatively cheap offers direct access to the highest courts of the country. Regardless of these PILs, they have their own benefits. The powers of the Supreme Court to issue directions under Article 32 and that of the high court to issue orders under Article 226 have been of great importance in environmental litigation. Courts have made use of these powers to remedy past mala-fides/loopholes and to check for immediate and future attacks on the environment. The formation of certain principles to develop a better system for protecting the environment is a remarkable achievement. In the Bhopal Gas Tragedy case, the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industries by explaining the scope of the power under Article 32 to issue directions or orders which ever may be appropriate in their respective proceedings. According to the Court, this power could be utilized for the creation of new remedies/solutions and charting out new strategies.
4.1 Narmada Bachao V. Union of India Air 2000 SC 3751:
Way back in 1946, the then government of the Central Provinces and Berar and the then government of Bombay requested the Central Waterways, Irrigation and Navigation Commission to take up investigation on the Narmada river system for basin wise development of the river with flood control, irrigation, power and extension of Navigation as the objectives in view. The Project was inaugurated by the then Prime Minister Shri. Jawaharlal Nehru on 5th April 1961. Thereafter due to certain difference of opinion between the riparian States, the matter was referred to a tribunal in 1968 constituted under the Inter-State Water Disputes Act, 1956. Based on the agreement between the Chief Ministers of 4 States [M.P, Maharashtra, Rajasthan and Gujarat] the tribunal declared is award on 16th August 1978. In order to meet the financial obligation, consultations started in 1978 with the World Bank for obtaining a loan. In May 1985 the loan was sanctioned, and in 1987 the Ministry of Environment and Forest accorded Environmental Clearance subject to certain conditions.
Taking the cause of the ousters, those displaced by the acquisition of land and submergence of land to the building of the many dams across the river, in April 1994 the NBA filed a writ petition praying that the respondent should be restrained from proceeding with the construction of the dam. The Supreme Court observed that the Sardar Sarovar Project would make a positive impact on the preservation of environment. The project has been long awaited by the people of Gujarat to whom water will be available to the drought prone and arid parts, this would help in effectively arresting ecological degradation which was returning the make these areas inhabitable due to salinity ingress, advancement of desert, ground water depletion, fluoride and nitrite affected water and vanishing green cover. The ecology of water scarcity areas is under stress and transfer of Narmada water to these areas will lead to sustainable agriculture and spread of green cover. There will also be improvement of fodder availability, which will reduce pressure on bio-diversity and vegetation. The SSP by generating clean eco-friendly hydropower will save the air pollution which would otherwise take place by thermal general power of similar capacity. The Court observed that poverty of the biggest threat to environment and unless people are provided with water and other development amenities, the environment will be exploited to a larger extent. Following the above analysis, the Court thought it unfit to interfere with the construction of the dam, as its advantages over took its disadvantages. The construction of the dam was allowed subject to certain conditions. Such interpretations of Article 21 by the Supreme Court have over the years become the basis of environmental jurisprudence, and have been instrumental in helping in the of protection of India’s environment. Also, in addition to this there now exist a number of laws relating to environment, enacted over the last few decades.
4.2M.C. Mehta v. Union of India, (1997) 2 SCC 353:
In and around Agra, several industries were set up. The Mathura Refinery, iron foundries, glass and other chemical industries are first and foremost amongst them. The Supreme Court of India delivered a historic Judgment in December 1996. The apex Court gave various directions including banning the use of coal and coke are directing the industries to switch over to Compressed Natural Gas (CNG). In addition to this, every Friday a courtroom is set aside to adjudicate the cases of MC Mehta. He has succeeded in getting 40 land mark judgements sole handily from the Supreme Court which itself is a record.
4.3M.C Mehta v. Kamal Nath (1997)1 SCC 388:
The irony of this case is that a Public Interest Litigation was filed against the family members of Kamal Nath, the Minister of Environment and Forests, Govt. of India. The family members of the Minister own the Span motel in the State of Himachal Pradesh. They diverted the Course of River Beas to beautify the motel. The Supreme Court of India had directed the owners of the Motel to hand over the forest land to the Govt. of Himachal Pradesh and further order the removal of all sorts of encroachment spending the money from their own pocket.
4.4 M. C. Mehta v. Kamal Nath
The main issue in the case was to preserve environment and control pollution during mining operations within the radius of five kilometres. On the basis of the two reports before it the Court concluded that the mining activities were harming the environment and must be stopped. The Court considered the geographical features of the area to determine the extent to which the ban must apply. It ordered that no mining activities would be carried out in a two km radius around the tourist spots of Badkal lake and Surajkund and no construction work would be undertaken in a five km radius and also ordered the Forest Department and Mining department to enforce all the recommendations and directions made by NEERI. The court also held that Articles 21, 47, 48A and 51A (g) of the Constitution of India give a clear mandate to the state to protect and improve the environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The “precautionary principle” makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation.
On the view of this paper, we have a narrow view of the Indian and international aspects of the environmental jurisprudence and also clarified our idea with the modern stabilized way of solutions and recommendations to the authorities related to it are concerned. In view of the involvement of complex scientific and specialized issues relating to environment, there is a need to have separate ‘Environment Courts’ persons having judicial or legal experience and assisted by persons having scientific qualification and experience in the field of environment. Also, what we need is a speedy justice when it comes to trials related to the environment. Any delay in a criminal matter may infringe the Right of a single person at a last extent. However, a delay in such matters can put the rights of millions at stake. Further it should also be note that the penalties awarded in the breach of certain duties should be increased to at least a point where people affected can get a proper and adequate compensation. Most importantly, the legislators should remember that we aren’t filling our racks with the rules and acts and also the statutory provisions are concerned. We need to have a basic rule and allow the judiciary to interpret in the best way as it processed to be for the establishment.
 State of Kenneth Vs Hawaii Levasseur 613p.2d 1328(1980)
2 NARYAN, K. D. (1995). AGROFORESTRY INTERVENTIONS IN DEGRADED MINED AREAS. KRISHI.ICAR.GOV.IN .
3 Vellore Citizens Welfare Forum v. Union of India, WP 914/1991 (1996.04. 26)
4 Quantifying environmental health impacts. (2006,2010). Retrieved JANAURY 20, 2020, from https://www.who.int: https://www.who.int/quantifying_ehimpacts/global/en/
5 Indian Council for Enviro-Legal Action v. Union of India, 1996 A.I.R. Sc 1446
6 Gimba Vasava v. State of Gujarat (AIR 1987 Guj 9)
7 The State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country.
8Union Carbide Corporation vs Union of India Etc on 4 May, 1989 (1990 AIR 273, 1989 SCC (2) 540)
9 Sinha, Savita; Das, Supta; Rashmi, Neeraja (2005). Social Science – Part II. New Delhi: National Council of Educational Research and Training, India. ISBN 81-7450-351-X
10 Narmada Bachao V. Union of India Air 2000 SC 3751
11AIR 1997 SC 734.
13W.P. 182/1996 Decided on 15th March 2002.
14Law, Judiciary and Environmental Governance Need of Separate Environment Courts in India, Pooja Shastri, Rashmi Bela, GNLU.