2 weeks ago
Supreme Court Nurtured Environmental Law—Is It Distancing From Legacy?
A very important judge in India gave a speech about how courts help keep nature safe.
A long time ago, India's big rulebook, called the Constitution, did not talk much about the environment.
In 1976, India added two new rules to protect nature, forests, and animals.
After a terrible gas accident in Bhopal in 1984, the top court made companies pay when their dangerous work hurts people.
The court also made rules saying polluters must pay and that damage should be stopped before it happens.
It even said people today must protect nature for children in the future.
But the judge worries that courts are not always helping when people complain about big building projects that may hurt the environment.
Another judge found that the court helps some nature cases but not others.
The first judge thinks protecting nature and building things should go together, not fight each other.
He says courts should always check that projects follow the rules to keep nature safe.
India's Constitution gained environmental provisions (Articles 48A and 51A(g)) via the Constitution (Forty-second Amendment) Act, 1976, following the Stockholm Conference.
The Supreme Court developed environmental doctrines including absolute liability (Union Carbide case), polluter pays, the precautionary principle, and the public trust doctrine (Span Motel case).
Justice Gautam Patel's article 'Consistently Inconsistent: Environmental Law and the Supreme Court' finds the court supports NGO-led environmental causes but shows reluctance in cases challenging infrastructure projects.
A Supreme Court Justice, writing a dissent in CREDAI vs Vanashakti, argues the precautionary principle outranks polluter pays and calls 'environment vs development' a false narrative.
The Justice urges constitutional courts to ask whether projects comply with environmental norms rather than dismiss challenges at the threshold.
- Who
- An unnamed Supreme Court of India Justice (author of the speech and of a dissenting judgment in CREDAI vs Vanashakti), citing the analysis of Justice Gautam Patel.
- What
- A speech assessing whether the Supreme Court, which built India's environmental law, is now distancing itself from that legacy, touching on doctrines like absolute liability, polluter pays, the precautionary principle, and public trust.
- Where
- Vivekananda Kendra, Guwahati, India.
- When
- August 8 (year not specified in the text).
- Why
- To raise concern that courts may be reluctant to back environmental challenges to infrastructure projects and to argue that all projects must comply with environmental norms.
Environmental defenders
Development backers
Environment vs development
Environmental defenders
There is no real conflict between environment and development; both belong to the constitutional construct of sustainable development, and the 'false narrative' pitting them against each other is unfortunate.
Development backers
Development and ecology have traditionally been viewed as opposed, and infrastructure projects face environmental challenges that courts have often been reluctant to support.
Handling environmental petitions
Environmental defenders
Constitutional courts should not throw out environmental challenges at the threshold; they should ask whether every project, big or small, has complied with environmental norms.
Development backers
Many who approach courts are busybodies filing frivolous petitions; courts have deprecated such attempts and not every challenge deserves a full hearing.
Key facts
- Speaker
- A sitting Supreme Court of India Justice (unnamed in the text)
- Speech venue
- Vivekananda Kendra, Guwahati, on August 8
- Constitutional basis
- Articles 48A and 51A(g) inserted by the Constitution (Forty-second Amendment) Act, 1976
- Absolute liability
- Developed in Union Carbide vs Union of India after the 1984 Bhopal gas leak tragedy
- Polluter pays principle
- First applied in India in Indian Council for Enviro-Legal Action vs Union of India
- Precautionary principle
- Declared in Vellore Citizens' Welfare Forum vs Union of India; conditions: anticipate, prevent, and attack causes of degradation
- Public trust doctrine
- Developed in M.C. Mehta vs Kamal Nath (Span Motel case), which also stressed inter-generational equity
- Cited analysis
- Justice Gautam Patel, 'Consistently Inconsistent: Environmental Law and the Supreme Court'
Quotes
Supreme Court Justice
Justice of the Supreme Court of India
“The principle of sustainable development means that the state must make efforts to maintain a balance between the environment and development.”
indianexpress.com
“I have said that the precautionary principle is the cornerstone of environmental jurisprudence.”
indianexpress.com
Sources
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