What Environmental Jurisprudence Means

It absorbs international law directly. In the Vellore case the Supreme Court held that sustainable development had become part of customary international law and that the precautionary and polluter pays principles are part of the environmental law of India, because they are part of customary international law and nothing in Indian law is contrary to them. That is a striking route: a principle in a declaration becomes a rule in an Indian court without an enactment.

Where it came from

The sequence is worth being able to state, and it is the spine of module IV.

The Constitution said almost nothing about the environment in 1950. The Forty-second Amendment 1976 inserted Article 48A and Article 51A(g), neither of which is enforceable as such. Between 1980 and 1996 the Supreme Court did four things: it read the right to a wholesome environment into Article 21; it relaxed standing; it imported four doctrines; and it developed remedies to match. Parliament followed with the Environment (Protection) Act 1986 after Bhopal and with the National Green Tribunal Act 2010.

An answer that can date that sequence is answering the University's question about development rather than describing a state of affairs.

What is distinctive, and what is not

Distinctive to India. The constitutionalisation of the subject through a right to life; the epistolary jurisdiction, under which a letter becomes a petition; the continuing mandamus; and the width of the remedies, which extend to closing an industry, to relocating hundreds of them, and to directing the payment of restoration costs.

Not distinctive. The four doctrines are international in origin. Precaution and polluter pays are Rio Principles 15 and 16. The public trust doctrine is Roman in origin and American in its modern form. Sustainable development came from the Brundtland Report. India's contribution was to receive them and to make them enforceable, not to invent them.

The one that is genuinely Indian. Absolute liability, laid down in the Oleum Gas Leak case, was created by the Supreme Court expressly because the English rule with its exceptions was inadequate, and the Court said in terms that it would not hesitate to evolve a new principle merely because the English courts had not done so.

Worked example

MU's 2024 paper asks the candidate to "Explain the role of a judiciary in shaping the environmental jurisprudence in India with the help of evolution of landmark doctrines and principles."

That question has three parts and the wording tells you so: the role of the judiciary, the evolution, and the doctrines. A good answer takes them in that order.

The role: the courts did what Parliament had not, and they did it because standing had been opened and because Article 21 was available. Name the four things they did.

The evolution: date it. Silence in 1950; Articles 48A and 51A(g) in 1976; the right read into Article 21 in the 1980s and confirmed in 1991; the doctrines imported between 1986 and 1997; statutory ratification in 2010.

The doctrines: absolute liability, polluter pays, precautionary, public trust, sustainable development, intergenerational equity. One case each, with what it held.

Close on the criticism, because a question about the role of the judiciary invites one: that law made this way rests on the composition of a bench, that courts have taken on administrative tasks they are not equipped for, and that a doctrine announced without a statute is easily left unenforced.

What the phrase does NOT mean

It is not a synonym for environmental law. The statute book is environmental law. The jurisprudence is the principle by which disputes under it and beyond it are decided.

It is not only case law. A statutory provision that embodies a principle, such as section 20 of the National Green Tribunal Act 2010, is part of the jurisprudence too.

It is not settled. The doctrines pull against each other, and Indian courts have not resolved how sustainable development is to be weighed against absolute protection, or how far the ecocentric position goes.

Distinctions that carry marks

Quick revision

• A jurisprudence is the settled body of principle in a field, so an answer is about doctrines and their sources, not about sections.
• Five features of the Indian one: constitutional foundation in Article 21, judicially made doctrines, open standing, supervisory remedies, and direct absorption of international law.
• The sequence: silence in 1950; Articles 48A and 51A(g) in 1976; the right read into Article 21 in the 1980s; the doctrines imported between 1986 and 1997; section 20 of the NGT Act 2010 ratifying three of them.
• Distinctive to India: constitutionalisation, epistolary jurisdiction, continuing mandamus, and the width of remedy.
• Not Indian in origin: precaution and polluter pays from Rio Principles 15 and 16, public trust from Roman and American law, sustainable development from Brundtland.
• Genuinely Indian: absolute liability, created because the English rule was found inadequate.

Test yourself

1. What is the difference between environmental law and environmental jurisprudence?

Environmental law is the body of statutes, rules and notifications in force. Environmental jurisprudence is the body of principle by which environmental disputes are decided, whether that principle comes from a decision or from a statutory provision that embodies it.

2. Name the five features of Indian environmental jurisprudence.

Its constitutional foundation in Article 21; doctrines developed judicially rather than enacted; relaxed standing through public interest litigation; supervisory and continuing remedies rather than final ones; and the direct absorption of customary international law.

3. Which of the leading doctrines is genuinely Indian in origin, and how do you know?

Absolute liability. The Supreme Court laid it down in the Oleum Gas Leak case expressly because the English rule about escaping things, with its exceptions, was inadequate, and said in terms that it would not hold back from evolving a new principle merely because the English courts had not done so.

4. Give one statutory provision that is part of the jurisprudence rather than merely of the law.

Section 20 of the National Green Tribunal Act 2010, which obliges the Tribunal to apply the principles of sustainable development, the precautionary principle and the polluter pays principle. It is legislative ratification of doctrines the courts had created.