India's environmental landscape is as vast and diverse as its cultural and geographical terrain. However, with rapid industrialization, urbanization, and population growth, this landscape has faced significant ecological challenges. Pollution, deforestation, water scarcity, and biodiversity loss are among the most pressing environmental issues.

While India has a comprehensive legal framework for environmental protection, including various laws and regulations, the enforcement and implementation of these laws have often been inadequate due to various factors, such as bureaucratic inertia, corruption, lack of political will, and competing economic interests.

The laws that are enforced in India relating to environmental protection such as the Environment Protection Act, Water (Prevention and Control of Pollution) Act, Air (Prevention and Control of Pollution) Act, Wildlife Protection Act, Forest Conservation Act, National Green Tribunal Act, Biological Diversity Act, Hazardous Waste (Management, Handling and Transboundary Movement) Rule, Solid Waste Management Rules, Energy Conservation Act, National Clean Energy Fund (NCEF) Act, Forest Rights Act, and the Biodiversity Act.

In this context, the Indian judiciary has emerged as a critical force in safeguarding the environment through the mechanism of judicial activism. Judicial activism refers to the judiciary's active role in enforcing laws and interpreting the Constitution in ways that address contemporary societal needs.

In India, the judiciary has often stepped in where legislative and executive actions have been insufficient, particularly in matters of public interest, including environmental protection. The judiciary's proactive stance has not only ensured the enforcement of existing environmental laws but has also led to the development of new legal principles and doctrines that have significantly shaped the country's environmental jurisprudence.

The role of judicial activism in environmental protection can be traced back to the 1980s when the Supreme Court of India began to hear cases related to environmental issues more frequently. These cases often involved public interest litigations (PILs) filed by concerned citizens, NGOs, or environmental activists, highlighting issues such as pollution, deforestation, and the degradation of natural resources.

The judiciary's willingness to entertain these PILs and its innovative use of legal principles have been instrumental in advancing environmental protection in India. This introduction sets the stage for a deeper exploration of how judicial activism has shaped environmental law in India, focusing on key case studies, the role of the Environmental Protection Act, and the judiciary's role in addressing the Act's shortcomings.

How Judicial Activism is Shaping Environmental Law in India

In India, the Supreme Court has been a torchbearer of judicial activism. It has done so by adopting key procedural innovations like liberalizing the rule of locus standi, allowing for epistolary jurisdiction, using extensively interlocutory orders and expanding the role of amicus curiae.

The judiciary's proactive approach has often compensated for the shortcomings of the legislative and executive branches, which have sometimes been slow to act on environmental issues due to political, economic, or bureaucratic constraints. The roots of judicial activism in environmental matters can be traced back to landmark cases in the 1980s, which set the precedent for the judiciary's active involvement in environmental governance.

One of the earliest and most significant examples of judicial activism in environmental law is the Rural Litigation and Entitlement Kendra (RLEK) vs. State of Uttar Pradesh, also known as the Dehradun Quarrying Case. This case was brought before the Supreme Court by an NGO concerned about the environmental degradation caused by limestone quarrying in the Mussoorie Hills.

The Supreme Court took cognizance of the environmental destruction and the threat it posed to the local ecosystem and livelihoods. The Court's orders led to the closure of several quarries and emphasized the need to balance developmental activities with environmental conservation. This case is significant as it marked the beginning of the Supreme Court's role as a protector of the environment and established the principle that environmental protection is integral to the right to life under Article 21 of the Constitution.

Another landmark case that highlights the judiciary's role in shaping environmental law is MC Mehta vs. Union of India, also known as the Ganga Pollution Case. In this case, the Supreme Court responded to a PIL filed by environmental lawyer MC Mehta, who sought to address the severe pollution of the Ganges River caused by industrial effluents and untreated sewage.

The Court issued a series of orders directing the closure of polluting industries along the river and mandated the installation of effluent treatment plants. This case is notable for the Court's emphasis on continuous monitoring and enforcement of environmental standards, setting a precedent for future cases where ongoing judicial oversight would be necessary to ensure compliance with environmental laws.

Judicial activism has also been instrumental in the development of key environmental principles such as the Polluter Pays Principle and the Precautionary Principle, which were introduced in the Vellore Citizens Welfare Forum vs. Union of India case.

The case dealt with the pollution caused by tanneries in Tamil Nadu, which were discharging untreated effluents into the Palar River. The Supreme Court's judgment not only ordered the tanneries to compensate affected communities and clean up the pollution but also laid down these two principles, which have since become central to environmental law in India.

The Polluter Pays Principle asserts that those responsible for pollution should bear the cost of managing it, while the Precautionary Principle requires preventive action in the face of environmental risk, even when scientific certainty is lacking.

In another case, Goa Foundation v. Union of India, the Supreme Court suspended all mining operations in Goa due to rampant illegal mining activities that were causing severe environmental degradation. The Court's decision to halt mining until a sustainable policy was developed illustrates the judiciary's commitment to ensuring that development does not come at the cost of environmental destruction.

In M.C. Mehta v. Kamal Nath, known as Span Motels Case, the court reinforced the Public Trust Doctrine in this case and established that natural resources must be protected by the state for public use, preventing their diversion for private gain. This principle has since been applied in various environmental cases, strengthening the legal framework for resource conservation.

The Public Trust Doctrine is a legal principle that asserts that certain natural resources, such as air, water, and forests, are preserved for public use and cannot be owned or controlled by private individuals or corporations. Under this doctrine, the government acts as a trustee of these resources and is responsible for protecting and maintaining them for the benefit of the public.

The doctrine ensures that these essential resources remain available for public enjoyment and are not exploited for private gain, emphasizing the duty of the state to manage and preserve them for current and future generations.

The judiciary's active role in environmental protection has not only enforced existing laws but has also led to the creation of new legal norms that prioritize environmental sustainability. Through its judgments, the judiciary has broadened the scope of environmental law and has been a crucial player in ensuring that environmental considerations are integrated into India's development agenda.

The Environmental Protection Act: Safeguards and Shortcomings

The Environmental Protection Act (EPA) of 1986 is one of the most comprehensive pieces of environmental legislation in India, enacted in response to the Bhopal Gas Tragedy of 1984. The EPA provides the central government with wide-ranging powers to take measures for the protection and improvement of the environment.

It serves as an umbrella legislation for the regulation of various environmental issues, including air and water pollution, hazardous waste management, and the protection of ecosystems. The Act empowers the central government to set environmental standards, regulate industrial operations, and impose penalties on violators.

At its core, the EPA is designed to be a powerful tool for environmental governance. It authorizes the central government to issue notifications to protect environmentally sensitive areas, restrict industrial activities, and regulate the handling and disposal of hazardous substances.

The EPA also provides for the establishment of environmental laboratories and the appointment of government officials to enforce environmental regulations. Furthermore, the Act includes provisions for citizen participation, allowing individuals and organizations to report violations and seek redress.

However, despite its comprehensive framework, the EPA has faced significant challenges in its implementation and enforcement. One of the primary shortcomings of the Act is its reliance on the central government for enforcement. In practice, this has often led to delays in action, inconsistent enforcement across states, and a lack of coordination between various government agencies.

The bureaucratic complexities and political considerations involved in implementing the EPA have sometimes hindered its effectiveness. For example, while the EPA empowers the government to take preventive measures, in many cases, enforcement has been reactive rather than proactive, responding to environmental crises only after they have occurred.

Another critical issue with the EPA is its inadequate focus on public participation and transparency. Although the Act provides for citizen involvement, in practice, access to information and participation in decision-making processes have been limited. The lack of transparency in environmental governance has often led to public distrust and protests against projects perceived to be harmful to the environment.

This is compounded by the fact that the EPA does not explicitly mandate Environmental Impact Assessments (EIAs) for all development projects, leaving room for discretionary application of environmental safeguards.

Moreover, the penalties prescribed under the EPA have been criticized as being insufficient to deter violations. The fines imposed are often nominal compared to the profits generated by industries, and the threat of imprisonment has rarely been enforced. This has resulted in a situation where industries may prefer to pay fines rather than comply with environmental regulations, undermining the Act's deterrent effect.

The shortcomings of the EPA highlight the need for stronger enforcement mechanisms, greater public participation, and more stringent penalties to ensure compliance. It is in addressing these gaps that the role of judicial activism becomes crucial. The judiciary has often stepped in to interpret and expand the provisions of the EPA, ensuring that the Act is implemented in a manner that genuinely protects the environment.

Where Judicial Activism Begins: Addressing the Shortcomings of the Environmental Protection Act

Given the limitations in the enforcement and implementation of the Environmental Protection Act (EPA), judicial activism has played a pivotal role in bridging the gap between environmental legislation and its effective application.

The judiciary's interventions have been critical in instances where the executive has failed to take timely and decisive action to protect the environment. Judicial activism, in this context, refers to the courts' proactive role in interpreting, enforcing, and even expanding environmental laws to address emerging challenges and safeguard public interest.

One of the primary ways in which judicial activism has addressed the shortcomings of the EPA is through the liberalization of locus standi, allowing concerned citizens and NGOs to bring environmental issues before the courts through Public Interest Litigations (PILs). This has empowered individuals and organizations to seek judicial intervention in cases where government agencies have been negligent or complicit in environmental degradation. The MC Mehta vs. Union of India (1987) case, also known as the Ganga Pollution Case, is a prime example of this.

The Supreme Court, responding to a PIL, issued orders that went beyond the existing provisions of the EPA, mandating the closure of polluting industries and the establishment of effluent treatment facilities. The Court's orders underscored the principle that environmental protection is integral to the right to life, thereby expanding the scope of the EPA.

In many cases, the judiciary has interpreted the EPA in ways that strengthen its enforcement. For instance, in the Vellore Citizens Welfare Forum vs. Union of India (1996) case, the Supreme Court invoked the Polluter Pays Principle and the Precautionary Principle, concepts that were not explicitly mentioned in the EPA but were deemed essential for addressing the environmental damage caused by industrial activities.

By incorporating these principles into its judgments, the Court effectively expanded the scope of the EPA, ensuring that industries are held accountable for their environmental impact.

The judiciary has also played a crucial role in ensuring continuous monitoring and compliance with environmental laws, an area where the EPA has been weak.

Conclusion
Judicial activism has played a pivotal role in shaping environmental law in India, significantly enhancing the protection of natural resources and public health. The proactive involvement of the judiciary has led to the development of key legal principles, such as Absolute Liability, the Precautionary Principle, and the Public Trust Doctrine. These principles have strengthened the legal framework for environmental protection, filling gaps left by legislative and executive measures.

While the Environmental Protection Act (EPA) of 1986 provides a foundational structure for environmental governance, its implementation has often been challenged by bureaucratic and enforcement issues. Judicial activism has bridged these gaps through innovative legal interventions, such as continuing mandamus and stringent oversight, ensuring that environmental laws are effectively enforced.

As India faces ongoing environmental challenges, the judiciary's role in balancing development with conservation remains crucial. The evolving legal landscape reflects a commitment to sustainable development and environmental stewardship, shaping a greener future for the country.

Bibliography:
Primary Sources:

• Constitution of India
• The Environment (Protection) Act 1986
• The Water (Prevention and Control of Pollution) Act 1974
• Air (Prevention and Control of Pollution) Act 1981
• The Wildlife Protection Act 1972
• The Forest Conservation Act 1980
• The National Green Tribunal Act 2010
• The Biological Diversity Act 2002
• The Hazardous Waste (Management, Handling and Transboundary Movement) Rules 2008
• Solid Waste Management Rules 2016
• The Energy Conservation Act 2001
• The National Clean Energy Fund (NCEF) Act 2010
• The Forest Rights Act 2006
• The Biodiversity Act 2002

Secondary Sources:

• Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India (2nd edn, Oxford University Press 2002)
• Nupur Chowdhury, 'From Judicial Activism to Adventurism - The Godavarman Case in the Supreme Court of India' (2014) 17 Asia Pac J Envtl L 177

Citation Method:

• OSCOLA 4th edn.