Environmental Protection And Supreme Court Activism

By Rahul Deo, CNLU Patna

Editors Note: Environment and life are interrelated. Our lives depend on natural resources such as air, water, and land. Environmental destruction threatens survival; conversely, human rights violations can cause environmental degradation, for instance, war can lead to loss of access to clean water. Thus, the quality of the environment is undeniably related to our enjoyment of the right to life. Because of this interrelationship, environmental and human rights advocates have pushed for the extension of the right to address environmental harm. This essay examines how national courts use the right to life to protect the environment.


Constitutions of almost all nations guarantee the right to life. In recent years, national courts of some countries have used the right-to-life provision as a legal tool to protect the environment by redefining the scope and meaning of the provision. Indian courts have made the greatest contribution to this issue. Article 21 of the Indian Constitution provides that “no person shall be deprived of his life or personal liberty except according to procedures established by law.”

Despite being framed as a negative right, the Supreme Court expands it in two ways. First, any laws affecting personal liberty should be reasonable, fair and just. Second, the court recognized several liberties implied by Art.21. It is by the latter the court interprets the right to the life to encompass the right to a healthy environment. In Subash Kumar, one of the earliest cases on this issue, the court opined that the right to life included the right to enjoyment of pollution-free water.

The role of the Supreme Court as the final interpreter is increasingly reflected in various judgments. The most important achievement of modern law in India is the constitutionalization of environmental problems by the apex court of India. Indian environmental jurisprudence is achieving new dimensions day by day. The various statuses have been interpreted in the light of the constitutional scheme relating to projection and preservation of the natural environment issue.

Before the year of 1980, there were legislations about control of pollution but little had been done to really make pollution control. But in the present time, the Supreme Court of India expand the meaning of Environmental rights. The Supreme Court making creative interpretation which led to the creation of new rights. As under Article 21, this court has created new rights including the right to health and pollution free environment.


The root of development can be placed to the opinion of Krishna Iyer J. in municipal council Ratlam V. Vardhichand.[i] The case arises out of simple circumstances. The municipal council of Ratlam failed to take steps to maintain roads in a particular locality in a safe and sanitary condition. The sole excuse of the municipal board was that it had no money to maintain the road. Krishna Iyer J. stated that those were an urgent need to focus on the ordinary man.

Quoting from famous work access to Justice[ii] Iyer J said “the recognition of this urgent need reflects a fundamental change in the concept of “procedural justice”….. The new attitude to procedural justice reflects what Prof. Adolf Homburger has called “a radical change in the hierarchy of values served by civil procedure’’ the paramount concern is increasing with “social justice’’, i.e., with finding a procedure which is conducive to the pursuit and protection of the rights of ordinary people’. The court noted that the matter had been pending for more than seven years.

It specifically read into the situation a constitution directive for the court and observed ‘Where directive principles have found statutory expression in do’s and dont’s the court will not sit idly by and allow municipal government to become a statutory mockery. The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice’.

If the opinion in Ratlam is read critically, the opinion reveals a paradigm change in the role of the courts. Ordinarily and particularly before Ratlam, the role of the court was considered reactive. They were specifically to dispense justice where rights have been denied. Iyer J added a proactive dimension by stating that where that directive principals of the Constitution have spelled out the desired acts or omissions, the court is under a duty to ‘relentlessly’ enforce the law. This formulation has emboldened the efforts at environmental protection. It reinforced the idea that judicial power can command obedience from reluctant bureaucracies.

As the result of the 42nd amendment to the constitution the directive principals categorically the need for a healthy environment and thus indicated the do’s and dont’s needed for a healthy environment. The necessary implication was that the courts have a duty to relentlessly enforce this law. This was an open invitation to constitutionalism the problems of management of the environment.

This opened the doors of higher courts to intervene in the enforcement of environmental legislation. A separate forum to force the state to take required measures for environmental protection was opened. The result of Ratlam is that in the following 25 years there has been a spate of judicial opinions from the higher courts that have formally put the environmental problems on a constitutional pedestal.

The fundamental right to a wholesome environment is not expressly guaranteed by the Constitution. Part III of the constitution does not specifically enumerate any such right. The right to the wholesome environment has been subsilentio recognized by the Supreme Court in a chain of cases. This sub-silentio approach exhibits a tendency to avoid raising any controversy on such a question.

It can mean any of the two things. It can either mean that the right to wholesome environment is ipso-facto a part of the right of life and personal liberty too well understood to require rationalization. The other alternative reading may be to introduce this right without any rationalization so as to avoid a debate on the issue. Be that as it may, recognition by the court of a fundamental right to wholesome environment is a product of the process of widening the scope of Article 21 of the constitution which began with Maneka Gandhi.[iii]

It is well known in constitutional jurisprudence that the last 55 years of constitutional adjudication have seen Article 21 of the Constitution undergoing three phases of change. The first phase was of narrow textual interpretation followed by another stage of residual coverage. In the third phase, Article 21 emerged as an overarching fundamental right in the Constitution of India.

In Maneka Gandhi, a liberal view of the scope of article 21 was taken, so that article 21 became the repository of all rights which are necessary for the enjoyment of life. The liberal reading of article 21 opened the way for the incorporation of the right to a wholesome environment within the protection of the Constitution. Bhagwati J delivering the majority judgment in Maneka Gandhi observed:

“It is indeed difficult to see on that principle we can refuse to give its plain natural meaning to the expression ‘personal liberty’ as used in Article 21 and 19 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the Court should be to expand the reach and meaning and content by a process of judicial construction.”

Bhagwati J who was the principal architect of broadening the scope of article 21, himself had the opportunity to extend the protection of article 21 to the right to wholesome environment. In Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P[iv]the issue was in respect of the closure of certain limestone quarries in and around the town of Mussoorie.

The court itself noted that the case was the first of its kind in the country involving issues relating to the environment and ecological balance the questions arising for consideration were of grave moment and significance. The court also noted that the situation involved the conflict between development and conservation. It emphasized the need for reconciling the two in the larger interest of the country.

The court, however, avoided any discussion of the fundamental right to a wholesome environment or its emergence from the guarantee of personal liberty. There is only a small part of the single sentence which refers to the ‘need of safeguarding the right of the people to live in a healthy environment with minimal disturbance of ecological balance and without hazard to them or their cattle, homes and agricultural land and undue affection of air, water environment’.

Bhagwati J obviously avoided a discussion of the basic question whether a right to the wholesome environment was included under the umbrella of the right to life may be because the matter involved a large number of quarries with a large number of workers whose existence depended on these quarries. Yet another reason might be that Bhagwati J was already convinced of the overarching scope of personal liberty since he was the prime architect of the expansive concept, without any rationalization, proceeded to issue a remedy on a writ under Article 32 without first establishing that Article 32 was available to the petitioners.

The same strategy of avoidance of the need to rationalize the inclusion of the right to wholesome environment among the fundamental rights was repeated in M.C. Mehta V. Union of India.[v] In this case, also the question was whether the Supreme Court can decree compensation for violation of the right to wholesome environment in a petition under Article 32 of the Constitution. While discussing at Length the power of the court to devise procedure appropriate for the enforcement of a fundamental right, not even a sentence was devoted to a declaration incorporating the right to the wholesome environment within the guarantee of life and personal liberty.

The same approach was reflected by another bench of the apex court in Sachidanand Pandey V. State of W.B.[vi] Chinnappa Reddy J referred to Article 48A of the Constitution which enshrined the directive principle to protect and improve the environment. His lordship also referred to Article 51 A (g) which proclaims it to be the fundamental duty of every citizen of India to protect and improve the natural environment. After referring to these two provisions the court should have considered whether the right to the wholesome environment was a fundamental right but it avoided doing so. It held:

“When the Court is called upon to give effect to the Directive principle of State Policy and the fundamental Duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy making authority. The least that the Court may do is to examine whether appropriate considerations are borne in mind and irrelevant excluded.”

The court in Sachidanand Pandey overlooked the basic problem that a remedy under article 32 could not be provided either for enforcement of the directive principle or for enforcement of a fundamental duty. The basic sub-stratum, namely, violation of a fundamental right was not established in sachidanand Pandey.

There can be two different explanations for what the court did. One can read sachidanand Paandey to lay down the principle that article 32 remedies would also be available for enforcement of directive principle and fundamental duty. In the alternative, it may be read as contributing to the same attitude of avoiding specific rationalization of the right to a wholesome environment as a part of the right to life.

Venkataramiah J followed the Pandey strategy in the Ganga Pollution case[vii]and referred to the directive principle and the fundamental duty but not to the fundamental right. Finally, in M/s Shantistar Builders v. Narayan Khimalal Totaine, which was really a right to shelter case and did not involve an environmental issue, Ranganath Misra J observed as follows:

“Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and reasonable accommodation to live in.

“The difference between the need for an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect-physical, mental and intellectual.”

Sometime later, Saghir Ahmad J in M.C. Mehta V. Kamal Nath, observed as follows:[viii]

In order to protect “life”, in order to protect “environment” and in order to protect “air, water and soil” from pollution, this Court, through its various judgments has given effect to the rights available, to the citizens and persons alike, under Article 21 of the Constitution.

Both Ranganath Misra J and Saghir Ahmad J have avoided any discussion of the question of whether the right to wholesome environment is included in the right to life under Article 21 of the Constitution. It was perhaps taken for granted.


Another significant development was merging of the directive principles of state policy into the fundamental rights guaranteed by Part III of the Constitution.[ix]

In environmental matters, however, a new situation emerged. The facts were that no fundamental right textually ensured the right to wholesome environment. But as a result of the 42nd Amendment to the Constitution, Article 48A was added to the directives principles providing for protection and improvement of environment and safeguarding of forests and wildlife. The same constitutional amendment also added Part-IV A which enumerated ten fundamental duties of the citizen, including in clause (g) the duty to protect and improve the natural environment including forest, lakes, rivers and wild life and to have compassion for living creatures.

The courts have used the provisions of Article 48A and 51A (g) to spell out a fundamental right to the wholesome environment as part of the right to life. On the face of it, it appears that this is nothing new but the very embodiment of the approach to interpret

the fundamental rights in the light of directive principles. But it is not merely that. Most of the observers of the Constitution have been misled into giving importance to this development. In fact, most of the courts themselves have avoided ratiocinating on the reasons for this conclusion.

On the contrary, it would be really a welcome advance to raise environmental concerns to the dignity of fundamental rights rather than always having to take the help of directive principle-the sub silentio approach mentioned above. However, as noted in the preceding section it is a job yet to be done. What has, therefore, happened is a process of merging of certain directive principles into fundamental rights.

The Right to a wholesome environment

Encouraged by an atmosphere of freedom and articulation in the aftermath of the Emergency, the Supreme Court entered one of its most creative periods. Specifically, the court fortified and expanded the fundamental rights enshrined in Part III of the Constitution. In the process, the boundaries of the fundamental right to life and personal liberty guaranteed in Article 21 were expanded to include environmental protection.[x]

The Supreme Court strengthened Article 21 in two ways. First, it required laws affecting personal liberty to also pass the tests of Article 14 and Article 19 of the Constitution,[xi] thereby ensuring that the procedure depriving a person of his or her personal liberty be reasonable, fair and just.[xii] Second, the court recognized several unarticulated liberties that were implied by Article 21. It is by this second method that the Supreme Court interpreted the right to life and personal liberty to include the right to a wholesome environment.

It means a clear, hygienic, unpolluted environment which leads to a life of dignity. Environmental degradation has a disastrous impact on the right to livelihood which is a part of the right to life. The first indication of the right to a wholesome environment may be traced to the Dehradun Quarying Case.[xiii] The SC evolved a new right to the environment without specifically mentioning it. The case was filed under Art. 32 of the Constitution and Orders were given with emphasis on the need to protect the environment.

In the Ganga Pollution(Tanneries)Case[xiv] while interpreting Art.21, Justice Singh justifying the closure of polluting tanneries observed: “ we are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health, and ecology have greater importance to the people”.

The Court evolved the principle of absolute liability of compensation in Shriram Gas Leak Case[xv] through interpretation of the constitutional provisions relating to the right to live and to the remedy under Art. 32 for violation of fundamental rights. The premises on which the decision is rendered is clear and unambiguous- the fundamental right to a clean and healthy environment. Right to live contains the right to claim compensation for the victims of pollution hazards.

The first time when the SC came close to almost declaring the right to environment in Art.21 was in 1990, in Chhretriya Pradushan Mukti Sangarsh Samiti v. State of U.P[xvi]. Chief Justice Sabyasachi Mukherji observed: “Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplate in Art.21 of the Constitution.”

In Subhas Kumar v. State of Bihar[xvii], Justice K.N. Singh observed in a more vivid manner, “Right to live…..includes the right to enjoyment of pollution free water and air for full enjoyment of life.”

In Indian Council for Enviro- Legal Action v. Union of India[xviii], the SC held that it has power and duty to intervene and protect right to life of citizens, when an industry is established without obtaining the requisite permission/clearances and is continued to be run in blatant disregard of law to the detriment of life and liberty of the citizens living in the vicinity.

In recent times, the Supreme Court has recognized ‘right to livelihood’ as a part of the right to life under Art.21. This broad interpretation of ‘right to life’ is very helpful in checking Governmental action which has an environmental impact that threatens the poor people or forest dwellers, tribals of their livelihood by dislocating them from their place of living or otherwise depriving them of their livelihood.[xix]

The Indian Judiciary has shown unprecedented dynamism by expanding the scope of Art.21 by including in it right to clean and wholesome environment. This feat is remarkable in so far as even some of the developed countries have yet to achieve such distinction.


The most remarkable contribution of the Supreme Court has been the adoption of the right to sustainable development as a hard core principle of environmental law in India. The concept of sustainable development itself is comparatively young. It first appeared in the International Union for Conservation of Nature and Natural Resources (IUCN) Report of 1980 in respect of world Conservation strategy.

From there, it was picked up by the Report of the World Commission on Environment and Development in 1987, properly called the Brundtland Report. The report itself was the product of 900 days of deliberation by an international group of politicians, civil servants and experts on the environment.[xx]

The concept of sustainable development is in its infancy. Holmberg and Sandbrook identified some 70 definitions of “sustainable development.” However, a commonly accepted definition has been proposed by Mrs. G.H. Brudthland in her 1987 report.

According to her, sustainable development is the development that ‘meets the needs of the present without comprising the ability of future generation to meet their own needs’. This definition has strong ethical orientation focusing upon the satisfaction of human needs rather than wants. It does not lay emphasis on the protection of the environment in general.

Many contemporary environmentalists are very critical of the concept of sustainable development because it licenses economic growth. But the concept of sustainable development has mass appeal precisely because it is a catch phrase capable of repetition in ‘a parrot like fashion by environmental policy makers’ The Supreme Court has however been careful to distinguish between the concept of sustainable development and its definition by Brundtland preferring not to fall for any given content for the concept and thus open the way for an active definition of sustainable development with a varying content. At least at the moment, it has chosen to avoid the need to go for any precision. In a few leading cases, sustainable development has been adopted as the principle of environmental law.

In a series of cases which may not be large in number but which have much economic significance, the Supreme Court had to consider the application of the principle of sustainable development. All these cases involved industries generating sizeable revenues and significantly contributing to the industrial development of the country. However, these also show that the industries hardly cared for the environment and which were not only significant polluters but were also persistent.

Repeatedly the environmental agencies implored upon them to rectify their pollutant emissions and effluents but the industries hardly cared. Even directions issued by the high courts and Supreme Court were ignored. In a sense, the behavioral pattern of the industry was irresponsible. The situation seemed to be destined for doom for the industry hardly cared and the environmental agencies could not really bring their weight to bear upon the industries.

The industries classically represent the case of too powerful defendants who continue to flex their muscles totally ignoring the degradation of the environment caused by the industries. Such muscle flexing is common in soft states where the majesty of the law is often compromised by Considerations of state and wealth.


The first case involving claims to sustainable development was the Bichhri Village case wherein a big public sector concern was producing chemicals. Its sister concern started producing ‘H’ acid in the same complex. The chemical was meant exclusively for exports. The acid was highly toxic and the effluents from it posed a grave danger to land in the surrounding areas. The effluents poisoned the earth, the water and everything else. The industries produced 25 hundred metric tons of highly toxic sludge.

The waste waters were allowed to flow out in the open and the toxic sludge was thrown in the open in and around the complex. The toxic substances percolated deep into the earth polluting the subterranean supply of water. The water in the wells and the streams became unsuitable for human consumption as wells as irrigation. The people revolted and a serious law and order situation was created forcing the district magistrate to close the industries in January 1989. Yet nothing was done to remove the sludge. The long-lasting damage to the earth and to underground water continued to exist.

The facts revealed that the units were established without obtaining no objection certificate from the pollution control board for the production of ‘H’ acid. They also revealed that Supreme Court had issued a direction as early as 11 December 1989 for supply of drinking water to the affected villages and on 5 March 1990, the court directed that appropriate steps be taken for transportation, treatment and safe storage of the sludge from open spaces and required that the sludge be stored in a safe place. But nothing happened.

In the succeeding year, the industry tried to camouflage the sludge. Yet, they did nothing to remove it. Again, on 17 February 1992, the court directed an assessment by experts who were also to suggest a package of remedies for its transportation and safe storage. But still, nothing happened.

In 1994, the National Environmental Engineering Research Institute (NEERI) submitted a report which showed that only 720 metric tons of sludge were Bichhri.[xxi] entombed while the rest of the waste was just spread over the fields. The NEERI report concluded that the indiscriminate and willful disposal activity by the industry was further aggravating the contamination problem.

These facts highlight the non-cooperative attitude of the industry to the danger which it had itself created to the detriment of the environment in Appalled by the state of affairs, the Supreme Court quickly reacted to the situation. It resurrected the principle laid down in the famous Shri Ram case[xxii] which was threatened with oblivion because of the casual observation of Ranganath Misra J in Union Carbide Corporation V. Union of India[xxiii] Misra J had felt it was not so and rule in the Shri Ram case was the most appropriate one because it suited the conditions obtaining in this country.

There was also a veiled reference to the problem of an intransigent rich defendant whose pursuit of private profit blinded all claims of poor people. The court held that once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact that he took reasonable care while carrying on his activity. The court did not refer in terms to the ideals of sustainable development.

Nevertheless, the situation in this particular case classically represents the conflict between the claims of development and the claims of a sustainable environment. In fact, Jeevan Reddi J portrayed the conflict in the opening words of his opinion which are worth reproducing. It highlights the disregard, nay, contempt for law and lawful authorities on the part of some among the emerging breed of entrepreneurs, taking advantage, as they do, of the country’s need for industrialization and export earnings.

The pursuit of profit has absolutely drained them of any feeling for fellow human beings- for that matter, for anything else. And the law seems to have been helpless. Systemic defects? It is such instances which have led many people in this country to believe that disregarded of law pays and that the consequences of such disregard will never be visited upon them – particularly if they are men with means.

The next case involving the same kind of problem-related to tanneries in Tamil Nadu.[xxiv]The tannery industry is a significant foreign exchange earner but its effluents are released on the lands, the rivulets and the rivers polluting the sub-soil water and arable lands. Facts indicated that the industries were reluctant to provide for treatment of effluents. The court felt that even though the industry was earning foreign exchange and providing employment, contributing to the development, ‘it has no right to destroy the ecology, degrade the environment and pose a health hazard.

The court held that sustainable development is the answer to the problem of conflict between development and ecology. Without much discussion of the content of sustainable development, the court held that sustainable development is a balancing concept and has been accepted as part of the customary international law. The court even went one step further to declare that the precautionary principle and the polluter pays principle have been accepted as part of the law of the land in India.

In A.P. Pollution Control Board II V. Prof. M.V. Nayudu (Retd.),[xxv] the Supreme Court took the question for in-depth consideration. The matter involved the question of permission for the establishment of industry within 10 km. of the two big water reservoirs, the Himayat Sagar and the Osmam Sagar, serving the twin cities of Hyderabad and Secunderabad.

Jagannadha Rao J, speaking for the court, adopted the principle of sustainable development. It was asserted that in today’s emerging jurisprudence, environmental rights are described as 3rd generation rights. The United Nation’s General Assembly has declared the right to sustainable development as an inalienable human right. Rio Conference was also referred to which adopted as principle 1 the principle that every human being is entitled to a healthy and productive life in harmony with nature. The judge went on to refer to the Earth Summit Meeting of 1997 which reflected his principle. He also referred to the decision of the European Court of Justice in Portugal V. F.C. Council,[xxvi] which emphasized the need to promote sustainable development while taking account of the environment. The judge further referred to four recent decisions, one from Brazil, the other from the Philippines, another from Columbia and the fourth from Union of South Africa.

In Yanomani Indians V. Brazil,[xxvii] the Inter-American Commission on Human Rights held that the Government of Brazil violated the right tolife of Yanomanis by not taking measures to prevent environmental damage.

In Minors Opasa V. Deptt. of Environment and Natural Resources,[xxviii] the Philippines Supreme Court refused to continue deforestation licenses because it violated the right to a balanced and healthful ecology for future generations.

In Fundepublico V. Mayor of Bugalagrande[xxix] the Constitution Court of Columbia (17-6-1992) treated the right to a healthy environment as part of customary international law. In Wildlife Society of Southern Africa V. Minister of Environmental Affairs and Tourism of the Republic of South Africa,[xxx] the right to a healthy environment was further recognized. Lee has reported at the end of the last century that since 1990 some 60 nations have specifically recognized in their constitution the right to a healthy environment.

The reference to all these international sources clearly indicated the willingness of the Supreme Court to adopt the principle of sustainable development from the international domain as a basic principle of environmental law in India. Rao J categorically stated: ‘There is building up’ in various countries, a concept that a right to the healthy environment an to sustainable development are fundamental human rights implicit in the right to “life”.

The facts of the Nayadu Case clearly bring out the tensions generated by the principle of sustainable development. The affected industries have spent valuable resources in setting up the plants and their claim was that they should be allowed to function otherwise all the resources would go waste. The state government has recommended its application.

Even though the central government refused permission, the industry went on with the construction of its plants. The court was not swayed by these claims. Instead, it took into account expert reports from three different sources and after considering these reports felt that the court could not rely upon a bare assurance that care will be taken in the storage of hazardous material. The court preferred to proceed on the precautionary principle rather than a mere promise of the industries, holding that a chance of an accident in such close proximity of the reservoir cannot be ruled out.

The Supreme Court in the Nayudu case weighed the claims of development against the claims of sustainability of the supply of pure water for drinking purposes. It gave precedence to the human need for drinking water over and above the possible economic advantage which could be generated by the industry for the state could be generated by the industry for the state.

In the next case, the same conflict arose again but with contrary results. In Goa Fundatin V. Diksha Holdings Pvt. Ltd.[xxxi] another division bench of the Supreme Court again faced a contest in the claims of sustainability and development. Diksha Holdings sought permission to build a hotel in Goa which it claimed would contribute to the business of tourism which was the main resource earner for the State of Goa.

The Goa Foundation contended that the hotel was located in an area which fell in the Coastal Regulating Zone-1 (CRZ-1) where no building was allowed. It also contended that the construction of the hotel will destroy the ecology of coastal areas.

The adoption of sustainable development as the basic principle of environmental law in India received its maximum acceptability in M.C. Mehta V. Union of India.[xxxii] In this case, a three-judge bench of the Supreme Court was Considering the question of issuing directions to substitute diesel vehicles on the roads of the city of Delhi with vehicles driven by compressed natural gas (CNG). The matter had been in the court for as long as 16 years.

As early as 23 September 1986, the court had directed the Delhi Administration to file an affidavit specifying the steps to be taken for controlling pollution caused by the emission of smoke etc. from vehicles plying in Delhi. A committee called the Bhure Lal Committee was established under section 3 of the EPA, 1986 and its report was accepted by the court on 28 July 1998. A time limit was fixed for switching over diesel vehicles to CNG vehicles.

The government had been dragging its feet and sought to dilute the directions of the Bhure Lal Committee by constituting another committee called the Mashelkar Committee which recommended that emission norms must be laid down but the choice of fuels must be left with the user.

The Supreme Court categorically rejected the suggestion of the Mashelkar Committee on the ground that nothing concrete had resulted from adopting the process of fixing emission norms and directed that a time-bound programme of replacing diesel buses with CNG buses be implemented.

The opinion of the court is particularly noticeable for pronouncing the fundamental nature of sustainable development as an underlying principle. The court observed: One of the principles underlying environmental law is that of sustainable development. This principle requires such development to take place which ecologically sustainable.

The two essential features of sustainable development are – (a) the precautionary principle, and (b) the polluter pays principle.

It is really difficult to find a comparable categorical statement from any other court. The practical result of the hard attitude adopted by the court is that the environment of Delhi city is much cleaner and free of smoke now in comparison to what it was a few years earlier.

In a recent case[xxxiii] the Supreme court was held that public trust doctrine and the principle of inter-generational equity are an integral part of the principle of sustainable development.

To sum up, the courts have not been sufficiently successful in establishing the right to a wholesome environment as a fundamental right. Had it been so, the efforts would have been far more impact making. Fundamental rights have a supervening character. Any man can approach the highest court for their enforcement. Write petitions can lie in every high court any act, legislative or executive, which seeks to abridge or take away any fundamental right can be challenged.

Greater vigor is, therefore, required to ensure that the right to wholesome environment is treated as a fundamental right. One option to establish it firmly as a fundamental right is to try the remedy of constitutional tort. D.K. Basu v. State of W.B.[xxxiv] the Supreme Court has recognized that violation of fundamental right may give rise to a constitutional tort for which compensation may be awarded.

This claim for compensation in public law is based on strict liability and is in addition to the claim available in private law for damages. ‘This is in addition to the traditional remedies and not in derogation of them’. The court pointed out that this is a remedy available in public law assures that citizens live under a legal system wherein their rights and interested shall be protected and preserved. The court held:

It is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps that only suitable remedy for redress of the establishes infringement of the fundamental right to life of a citizen.


The role of the Supreme Court as the final interpreter is increasingly reflected in various judgments. The most important achievement of modern law in India is the constitutionalization of environmental problems by the apex court of India. Indian environmental jurisprudence is achieving new dimensions day by day. The various statuses have been interpreted in the light of the constitutional scheme relating to projection and preservation of the natural environment issue. Before the year of 1980, there were legislations about control of pollution but little had been done to really make pollution control. But in the present time, the Supreme Court of India expand the meaning of Environmental rights. The Supreme Court making creative interpretation which led to the creation of new rights. As under Article 21, this court has created new rights including the right to health and pollution free environment. It is now a well- accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps that only suitable remedy for redressed of the establishes infringement of the fundamental right to life of a citizen.

The action in public law is maintainable in the highest courts of the land. When this remedy becomes available, one may witness the spate of litigation seeking constitutional tort remedies for infraction of the fundamental right to a wholesome environment. However, that possibility is still in the womb of the future. There are many hurdles on the way.

One amongst them is an insufficient strengthening of the case for treating the right to a wholesome environment as a fundamental right. The development, therefore, is not yet completed. The future may witness unfolding of mysteries of the new fundamental right. When this happens, we may expect to see interesting developments in the domain of constitutional jurisprudence.

Formatted on March 1st, 2019.


[i] (1980) 4 SCC 162.

[ii] M. Cappelletti & B. Garth- Access to justice 68 (vol.1, A world survey Ed.)

[iii] Maneka Gandhi V. Union of India Air 1978 SC 597 at 621

[iv] AIR 1985 SC 652.

[v]AIR 1987 SC 1086.

[vi] (1987) 2 SCC 295 of 298

[vii] M.C. Mehta v. Union of India, AIR 1988 SC 1115

[viii] AIR 1990 SC 630.

[ix] State of Madras v. Champakam Doarairajan AIR 1951 SC 226.

[x] Article 21 states: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’

[xi] Maneka Gandhi v. Union of India AIR 1978 SC 597.

[xii] Francis Coralie Mullin v. The Administration, Uninion Territory of Delhi AIR 1981 SC 746.

[xiii] AIR 1988 SC 2187

[xiv] AIR 1988 SC 1037

[xv] AIR 1987 SC 1086

[xvi] AIR 1990 SC 2060

[xvii] AIR 1991 SC 420

[xviii] AIR 1996 SC 1446

[xix] Banwasi Sewa Ashram v. State of U.P (AIR 1987 SC 374)

[xx] W.M. Adams, Green Development: Environment and sustainability in the third world (1990).

[xxi] India Council for Environ legal Action v. Union of India, (1996) 3SCC

[xxii] 13. M.C. Mehta V. Union of India (1987) 1SCC 395

[xxiii] (1991) 4 SCC 584.

[xxiv] Vellore citizens welfare forum v. Union of India, AIR 1996 SC 2715

[xxv] (2001) 2 SCC 62.

[xxvi] 3 CMLR 331 (1997)

[xxvii] 33 ILM 173 (1994)

[xxviii] 7615 OEA / SCRLV / 2 / 66 (1985

[xxix] (1996) 9 BCLRV 1221 (TK)

[xxx] 25 Col J Env IL 283 (2000)

[xxxi] (2001) 2 SCC 97 at 108.

[xxxii] Air 2002 SC 169 at 1698.

[xxxiii] Intellectual forum, Tirupathi v. state of A.P. (2006) 3 SCC

[xxxiv] (1997) 1 SCC 416

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