The Supreme Court and Environmental Jurisprudence

In one line

India has an extensive body of enforceable environmental law built entirely by construction, because the environment appears nowhere in Part III: article 48A directs the State, article 51A(g) directs the citizen, neither is enforceable alone, and the right to a clean and healthy environment exists because the two were read with article 21.

The constitutional material

Article 48A, inserted by the Forty-second Amendment 1976: the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. A directive, unenforceable under article 37.

Article 51A(g), inserted by the same amendment: it shall be the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. A fundamental duty, carrying no remedy.

Article 21. The only enforceable provision in the group, and it does not mention the environment.

Article 47, on raising the standard of living and improving public health, which supplies further content.

And article 253, which is the power under which India's environmental statutes were enacted to implement decisions taken at international conferences. That is worth noticing: the principal Indian environmental legislation recites a treaty basis, which connects this chapter directly to Module IV.

How the right was constructed

The reasoning is the dignity reasoning applied to surroundings.

Article 21 protects life.

Life means more than animal existence and includes the right to live with human dignity.

A person cannot live with dignity, or in many cases at all, in air that is unbreathable, on water that is poisoned or beside an industry that will kill them.

Therefore the right to a clean and healthy environment is within article 21, and article 48A and article 51A(g) tell the court that the Constitution regards the environment as a matter of constitutional concern, so the construction is not invented.

The role of the directive and the duty is evidential rather than operative. They do not confer the right; they justify reading it into the article that does.

What the jurisprudence produced

Six things, and giving them as a list shows the scale.

A right to clean air and water, enforceable by writ.

Freedom from noise pollution, treated as within article 21 and balanced against article 19(1)(a).

Principles imported into Indian law: the polluter pays principle, the precautionary principle, sustainable development and the public trust doctrine. [Polluter Pays, Precaution, and Absolute Liability] takes them.

Absolute liability for harm from a hazardous or inherently dangerous activity, which is stricter than the English rule of strict liability because it admits no exceptions.

Institutional creation, in monitoring committees, authorities and eventually the National Green Tribunal.