India’s Constitution is now nearly 70 years old. However, the country’s environmental jurisprudence didn’t quite develop concomitantly with its constitutional jurisprudence. It’s only over the last three and a half decades that we’ve seen a burgeoning of environmental law. And to a large extent this growth has been a product of what many have described as “judicial activism,” as a product of public interest litigation that began to swell during the mid 1980s. But these interventions have unquestionably sprung out of a relinquishment by the state of its basic duty to protect the environment, a responsibility that has been constitutionally instructed at least since 1976, when Article 48A was added to the Constitution, requiring the state to make an endeavour “to protect and improve the environment and to safeguard the forests and wildlife of the country.”
Right to life
It must be said, though, that the judicial writing of the law has had mixed consequences. There is little doubt, for instance, that it has had a deleterious impact on matters of procedure, with the court overreaching beyond the remit of its authority. Yet, in so doing, by absorbing into Indian law not only time-honoured but also emerging principles of international environmental law, the court has carved out a definite set of outwardly enforceable legal precepts. This design is undergirded by the court finding in Article 21 of the Constitution, which guarantees a right to life, an implicit right to live in a healthy and clean environment. These principles, such as they are, are expounded in an important new book,
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Through seven separate essays the book covers a wide range of significant issues, from the judiciary’s imagination of substantive environmental rights, to guarantees rooted in procedure, and to the quadrant of principles that are central to India’s environmental jurisprudence. That is, the idea of sustainable development, the principle that the polluter always pays, the dictum demanding that the state take active measures to prevent environmental damage, and the basic proposition of public trust, that the state holds India’s natural resources in the capacity of a trustee.
These essays collectively do a fine job of not only explaining what the prevailing law is, and how the law is enforced in practice, but, they also, as Pratap Bhanu Mehta writes in the book’s foreword, serve as a “reminder that converting concern for the environment into legal doctrine still remains the most pressing challenge of our time.” The fraught period that we live in, where climate change represents an existential threat, means that Ms. Ghosh’s plea in her introductory chapter for a larger discussion on environmental regulation, to meet the challenges that natural resource conflicts spark, cannot come soon enough.
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