Judicial Activism and Environmental Protection in India
The judiciary plays a significant role in exercising liberal democracy in a country like India. From a historical perspective, the protection and preservation of the environment have been integral to most communities’ cultural and religious ethos. “Comprehensive awareness and understanding of the prevailing environmental crisis worldwide is a prerequisite to facilitating effective national policies to deal with domestic problems.” The judiciary has played an indispensable role in expanding the legislation associated with environmental protection by interpreting the constitutional provisions differently. In the 1980s, India underwent the phase of Judicial Activism, by which a series of steps were taken to protect the environment. The reason for judicial activism in environmental cases was seen because of two main reasons, the first being the relaxation of the rule of locus standi giving the public a chance to approach the Supreme Court and High Court under Article 32 and Article 226 of the Indian Constitution, respectively. The second reason being the recognition of Environmental Rights under the Right to Life and Liberty given in Article 21 of the Indian Constitution. This right gives constitutional sanctity for people to exercise their right to enjoy a clean and healthy environment, thereby living a dignified life. The distinguishing nature of this jurisprudence is the emerging Indian environmental jurisprudence that bears testimony to the activist role of the Indian Judiciary, especially in the area of environmental law.
MEANING OF JUDICIAL ACTIVISM
The concept of Judicial Activism first emerged in the U.S in 1947. It refers to the active role that the judiciary plays in preserving its citizens’ rights and the constitutional framework of the country. In other words, the willingness of the Judiciary to exercise its power when the Executive/Legislature fail to discharge their constitutional obligations effectively is called judicial activism. It is apparent from the history of different legislations and our legal framework that the judiciary’s intervention and interpretation help make legislative policy more effective and efficient. The involvement of the judiciary has resulted in the implementation of more impactful environmental legislation in India. Judicial activism has led to the inclusion of a clean and healthy environment as a part of our fundamental right.
ENVIRONMENTAL JUDICIAL ACTIVISM IN INDIA
The Indian Constitution confers power on the legislature to make law, while the judiciary can examine the legislature’s constitutionality. The courts also adjudicate upon the rights and duties of citizens and further interpret the provisions of the Constitution and other statutes. Through these processes, the Courts create new rights for the citizens. By this exercise, the judiciary makes additions to the existing laws of the country.
In the Indian context, former judges of the Supreme Court of India like Justice P.N. Bhagwati and Justice Krishna Iyer enlarged the meaning and scope of Article 21 of the Constitution through their creative interpretation of the legal text. The Supreme Court, through its activism, has created many new rights on the societal and environmental front.
Additionally, criminal remedies are provided under Section 133 to 144 of the Code of Criminal Procedure, Section 268 of the Indian Penal Code, Section 19 of the Environmental Protection Act, 1986, while Section 91 of the Code of Civil Procedure provides for a civil remedy. The Indian courts have built an entire environmental law jurisprudence based on the fundamental rights of the citizens under the writ jurisdiction.
The Judiciary has further driven the cause of the environment by interpreting the directive principle of state policy and fundamental duties and fundamental rights of the citizens to widen the scope of its implementation. It has also adopted various international principles and created domestic principles to further drive the international obligation towards the environment.
Directive Principles of State Policy (DPSP)
The Indian Constitution of 1950 initially did not have explicit provision for environmental protection. However, after the Stockholm Declaration, 1972 and the growing awareness for environmental protection and ecological balance, the Indian Parliament passed the Forty-second Amendment Act, 1976. This amendment introduced provisions that notably introduced principles for environmental protection through articles 48A and 51A(g)
The landmark case of M.C. Mehta v. State of Orissa laid the basis for the jurisprudence of environmental protection., while in Sachidanand Pandey v State of West Bengal,  the court laid the significance of Directive Principles role in deciding environmental issues.
Fundamental Rights and the Environment
Article 14, 19 and 21, more commonly known as the Golden Triangle of the Indian Constitution, have been used time and again to emphasise the need for the protection of the environment. The expansive interpretation of the three articles has enabled the Right to a clean and healthy environment to be recognised as a fundamental right. In Subhash Kumar v State of Bihar,  the court held that “the right to life is a fundamental right under Article 21 of the Constitution and it includes right of enjoyment of pollution-free water, air for full enjoyment of life” and that “if anything endangers or impairs the quality of life, in derogation of laws, a citizen has a right to have a recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”
Relaxation of Locus Standi norms in environmental matters
Locus standi refers to a person’s legal right or capability to appear in court to seek relief or redress an issue. Through the years, landmark cases have resulted in the court relaxing the locus standi in matters concerning public interest or welfare. In 1977, Justice P.N Bhagwati and Justice Krishna Iyer of the Supreme Court submitted a ‘Report on National Juridicare’, recommending the need for an extraordinary form of litigation, thereby sowing the seeds for the liberalisation of locus standi giving the Courts ‘epistolary jurisdiction’. After the liberalisation of locus standi, a series of environmental cases were taken up by the Supreme Court and High Court under Article 32 and 226, respectively.
Rural Litigation and Entitlement Kendra V. State of U.P. was one of the first cases where the Supreme Court took a step regarding the protection and preservation of the environment under Article 32. Moreover, the Supreme Court laid down the principle of ‘absolute liability’ and ‘strict liability’ after the ‘Bhopal Gas Tragedy’  and the ‘Oleum Gas leak case’. This passively gave the rights to citizens to live in a clean and healthy environment by protecting them from the hazards of polluting industries.
Public Trust Doctrine
According to this doctrine, “certain resources like sea, water, air, land, flora, fauna and others which represent the natural system are of public use and cannot be privately owned by any particular individual and it is the duty of everyone to safeguard them and preserve them for the future generation.” This doctrine first evolved in M.C. Mehta v. Kamal Nath;  since then, the doctrine has developed and been emphasized through various judicial pronouncements. Another landmark case where this doctrine was reiterated was the case of M.I Builders Pvt Ltd v Radhey Shyam Sahu, where the construction of a shopping complex was stopped as it was made in the place of a public garden which was a public resource according to this doctrine.
The environment is so fundamental to human life that it is impossible to live without a healthy environment. Even after knowing its importance, it is agonising to see industries disrupt the ecological balance because of its abysmal pollution. Though the government is coming up with various measures and efforts to preserve and protect the environment, there is still a long way to achieve sustainable development. It is noteworthy to say that despite the challenges, the Indian judiciary has strongly shown its responsibility for environmental security through its historic and revolutionary judgements. The Supreme Court’s actions in pollution control by public interest litigation (PIL) and judicial activism are commendable. Recognising the right to a clean and healthy environment as a fundamental right under Article 21 of the Indian Constitution has lifted the concerns for protecting the environment.
In India, judicial activism has been a driving force behind the fight against pollution and environmental protection. However, only a few judges have proactively participated in addressing the need to protect and preserve the environment. Therefore, more efforts are required to make all the judges realise the importance of judicial activism for environmental protection.
 Daniel C. Esty, RevitalizingEnvironmentalFederalism, 95 Michigan Law Review 3 (1996), pp. 570-653.
 Dr B.R. Ambedkar had called Art 32 as the ‘heart and soul of the Indian Constitution ‘; Mahendra Singh (ed.), V.N. Shulda’s Constitution of India (2010), p.936
 “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”.
 Fundamental duty on every citizen “to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures”.
 AIR 1992 ORI 225.
 AIR 1987 SC 1109.
 AIR 1991 SC 420.
 AIR 1985 SC 652
 Union Carbide Corporation Vs. Union of India, AIR 1990 SC 273
 M.C. Mehta Vs. Union of India, AIR 1987 SC 965
 Shailesh R. Shah v. State of Gujarat, (2002) 43 (3) GLR 2295.
 1997(1) SCC 388.
 AIR 1999SC 2468.
Author: Prarthana Vasudevan,
Christ (Deemed to be University), 1st year B.A. L.L.B