SC has nurtured environmental law. Do its decisions look distant today?, Pg12

Key Highlights:

• India's environmental policy gained constitutional backing after the UN Conference on Human Environment (Stockholm, 1972) and the 42nd Constitutional Amendment Act, 1976.
• The 42nd Amendment introduced Article 48A (Directive Principle of State Policy) and Article 51A(g) (Fundamental Duty) for environmental protection.
• The Bhopal Gas Leak Tragedy (1984) prompted the Supreme Court to develop the doctrine of absolute liability.
• The Supreme Court has established key environmental principles including polluter pays principle, precautionary principle, sustainable development, and public trust doctrine.
• Despite its foundational role, the Supreme Court's recent judgments on infrastructure projects show "consistent inconsistency," as noted by Justice Gautam Patel.

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Detailed Insights:

• The Indian Constitution initially lacked explicit environmental provisions, with the 42nd Amendment Act, 1976, filling this gap.
• Article 48A directs the state to protect and improve the environment and safeguard forests and wildlife.
• Article 51A(g) mandates every citizen to protect and improve the natural environment.
• In Union Carbide vs Union of India, the Supreme Court developed absolute liability for enterprises engaged in inherently dangerous activities.
• The polluter pays principle, originating from the Rio Summit (1992), was first applied in India in Indian Council for Enviro-Legal Action Vs. Union of India.
• The Vellore Citizens’ Welfare Forum vs Union of India case defined the precautionary principle as anticipating, preventing, and attacking environmental degradation.
• The precautionary principle is considered the cornerstone of environmental jurisprudence, ranking above the polluter pays principle.
• Sustainable development balances environmental protection with developmental needs and is accepted as customary international law.
• The M.C. Mehta vs Kamal Nath (Span Motel case) introduced the public trust doctrine and emphasized inter-generational equity.
• Justice Gautam Patel highlighted the Supreme Court's strong support for environmental NGOs but a reluctance to challenge large infrastructure projects.
• The Supreme Court in the Vellore Citizens case rejected the false narrative that environment and development are opposing forces.
• Courts should ensure all projects, regardless of size, comply with environmental norms rather than dismissing challenges.

Key Concepts Involved:

• Absolute Liability: Strict liability for harm caused by inherently dangerous activities, irrespective of fault.
• Polluter Pays Principle: The polluter bears the costs of preventing, controlling, and remedying pollution.
• Precautionary Principle: Taking preventive action against environmental harm even without full scientific certainty.
• Sustainable Development: Development that meets present needs without compromising future generations' ability to meet their own.
• Public Trust Doctrine: Natural resources are held by the state in trust for the public and cannot be alienated for private use.
• Inter-generational Equity: The present generation's duty to protect the environment for future generations.
• Directive Principles of State Policy (DPSP): Non-justiciable guidelines for the state in policy-making, including Article 48A.
• Fundamental Duties: Moral obligations of citizens, including Article 51A(g) to protect the natural environment.