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THE ROLE OF JUDICIARY IN PROTECTING BIODIVERSITY IN INDIA
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“THE ROLE
OF JUDICIARY IN PROTECTING BIODIVERSITY IN INDIA”
AUTHORED BY
- MISS. ANAGHA YASHAWANT SAGAR
LL.M Second Year. Sem :III
Progressive
Education Society’s
Modern Law
College, Pune
Savitribai
Phule Pune University, Pune
2023-2024
ABSTRACT
The right to life and liberty are
guaranteed by Article 21 of the Indian Constitution. Here, we can see how the
word "Life," which is used frequently in the Article, has strong
contours that support this right. The definition of life in Article 21 of the
Constitution goes beyond just breathing. It also doesn't mean that animals only
exist. Its definition is much more expansive and covers rights to livelihood,
health, and the ability to live in dignity, among other things. It is the only
Constitutional provision that has been interpreted as broadly as possible.
Implying that in addition to biological mass, outside forces also support human
life. The phrase "healthy environment" describes biotic and
all-natural elements that enable individuals to exercise their right to a life
that is unadulterated. Humans and the environment have always had a close
relationship because the environment provides all of life's necessities.
It is impossible for humans to
survive on Earth without a friendly and natural environment. In an effort to
improve his quality of life, man has always taken advantage of nature. Growth
in infrastructure, industrialization, and agriculture all contribute to the
exploitation of natural resources. A variety of wastes and byproducts from
human activity can accumulate over time and endanger humans, animals, and
naturally growing plants. The state of India is also mandated by some articles
of the Indian Constitution to protect the environment. Therefore, the
parliament has passed a number of acts to address these ever-growing issues.
However, courts frequently oversee the proper implementation of these enactments,
and the judiciary has been crucial in interpreting the laws to protect the
environment.
Key words: Constitutional Obligation,
Wildlife Conservation, Wildlife Habitats, Strict Liability, Absolute Liability,
Polluters pay Principle, Principle of Precautionary
Measures, Public Trust Doctrine, Sustainable Development
I.
INTRODUCTION
India is fortunate to have a wide
variety of wildlife, including many species that support the ecological balance
of the nation. Acknowledging the paramount significance of conserving this
ecological legacy, the Indian judiciary has been instrumental in moulding and
upholding legislation concerning the preservation of wildlife. This article
explores the important role that India's judiciary plays in wildlife
conservation by looking at important cases and their legal ramifications for
safeguarding our ecosystems and wildlife.
The judiciary plays a crucial role in
environmental protection. As a result of the courts' historic rulings on
environmental cases heard by environmental NGOs and well-informed public
figures like M.C. Mehta, public bodies are now required to address urgent
environmental concerns.
Judicial activism in the area of
environmental protection has also received praise. But it's crucial to keep in
mind that judicial activism has serious limits and that it cannot address
executive inaction and environmental indifference on its own.
II
CONSTITUTIONAL PROVISIONS FOR THE PROTECTION OF ENVIRONMENT
Preserving and enhancing the natural
world is a constitutional obligation. It is a pledge made by a nation devoted
to the principles of a welfare state. The Directive Principles of State Policy
and Fundamental Duties chapters of the Indian Constitution include specific
environmental protection provisions. Judicial activism in recent times has
sparked the lack of a specific provision in the Constitution acknowledging the
fundamental right to a clean and healthy environment.
1. Articles 48-A and 51-A. Clause (g):
At
first, there were no explicit environmental protection provisions in the Indian
Constitution. The Indian government passed the 42nd Amendment to the
Constitution in 1976 as a result of growing environmental awareness during the
1970s, the Stockholm Conference, and other global environmental protection
movements. Direct environmental protection provisions were added to the
Constitution through an amendment. Article 48-A was added to the Directive
Principles of State Policy by this 42nd Amendment. Article
48-A talks about the protection and improvement of the natural environment
and safeguarding forests and wildlife. It is the fundamental duty of the State
to safeguard and protect the forests and wildlife of the country.[1]
The Article 51-A (g) states the fundamental
duty of the State to protect and improve the natural
environment that includes forests, rivers, lakes, and wildlife.[2]
2. Article 49-A:
The
Article states: “The State shall endeavour to protect and improve the
environment and to safeguard the forests and wildlife of the country.” The said
amendment imposed a responsibility on every citizen in the form of Fundamental
Duty.[3]
3. Article 51-A, Clause (g):
Article
51-A (g) which deals with Fundamental Duties of the citizens states: “It shall
be the duty of every citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wildlife and to have
compassion for living creatures.” Thus, protection and improvement of natural
environment is the duty of the State (Article 48-A) and every citizen (Article
51- A (g)).[4]
4. Article 253:
Article 253 states that ‘Parliament
has power to make any law for the whole or any part of the country for
implementing any treaty, agreement or convention with any other country. In
simple words this Article suggests that in the wake of Stockholm Conference of
1972, Parliament has the power to legislate on all matters linked to the
preservation of natural environment. Parliament’s use of Article 253 to enact
Air Act and Environment Act confirms this view. These Acts were enacted to
implement the decisions reached at Stockholm Conference.[5]
III. JUDICIAL INTERPRETATION OF WILDLIFE CONSERVATION
LAWS:
Endangered Species Protection: The
judiciary has always placed a strong emphasis on protecting endangered species.
The court's dedication to protecting rare and threatened species has been
demonstrated by significant cases like M.C. Mehta v. Kamal Nath (1997)[6],
Animal Welfare Board of India v. A. Nagaraja (2014)[7],
and Centre for Environmental Law v. Union of India (2021)[8].
The Blackbuck antelope, which is critically endangered, was negatively
affecting its habitat in Delhi when a polluting factory was ordered to close in
the M.C. Mehta case. The Supreme Court ordered the government to take action to
safeguard the state of Orissa's critically endangered tiger population in the
Wildlife Society of Orissa case. The government was mandated by the Supreme
Court to initiate a public awareness campaign regarding the significance of
wildlife conservation in the Animal Welfare Board of India case. The Supreme
Court acknowledged the idea of "ecosystem services" in the Centre for
Environmental Law case and ruled that the government has an obligation to
safeguard these services.
IV. HABITAT
CONSERVATION:
The importance of protecting
ecosystems and habitats that are essential to the survival of wildlife has been
acknowledged by courts. The Supreme Court strengthened protections for wildlife
habitats when it ruled in T.N. Godavarman Thirumulpad v. Union of India
(2006)[9]
that all forested areas, regardless of classification, were deemed forests. The
Supreme Court of India halted the construction of a dam on the Narmada River in
the Narmada Bachao Andolan v. Union of India (2000)[10]
case due to concerns about the dam's impact on wildlife habitat.
V. STRICT
LIABILITY AND OFFENCES
The rule of strict liability was
propounded by the House of Lords in Rylands v. Fletcher.[11]
This rule is that a person who, in the
course of non- natural use of his land is or is deemed to be, responsible for
the accumulation on it of any thing likely to do harm , if it escapes, is
liable for the interference with the use of the land of another which results
from the escape at the thing from his land. This is known as the rule of strict
liability.[12]
VI.
ABSOLUTE LIABILITY:
The concept of absolute liability is
based on the principle of no fault liability. In India the concept of absolute
liability was originated from the Shriram Gas Leak Case.[13] If
industrial accident took place on account of dangerous or hazardous activity,
the enterprise involved in such activity is liable to compensate the persons
affected by such industrial accident. It is immaterial to examine, who
committed negligence.[14]
VII.
POLLUTER PAYS PRINCIPLE:
As a “precautionary
principle” the Supreme Court in Vellore Citizens Welfare Forum v. Union of
India.[15]
Propounded the polluters pay principle, and this principle has become the law
of land as by virtue of Article 141 of the Constitution. “The polluters pay
principle means that the absolute liability for harm to environment extends not
only to compensate the victims of pollution but also the cost of restoring the
environmental degradation.[16]
VIII.
THE PRINCIPLE OF PRECAUTIONARY MEASURES:
The principle of
precautionary measures requires environmental actions to foresee, avert, and
target the root causes of environmental degradation. Actions shouldn't be put
off because of a lack of scientific certainty.
IX.
PUBLIC TRUST DOCTRINE:
This theory holds that
certain resources, like the sea, forests, air, and water, are so vital to the
common good that it would be entirely irrational to turn them into private
property. The case of M.C. Mehta vs. Kamalnath & Others[17]
established it.
X.
THE CONCEPT OF SUSTAINABLE DEVELOPMENT:
The Supreme Court declared in the Vellore
Citizens case and the RLEK, Dehradun case that sustainable development has
gained acceptance as a workable solution for ending poverty and raising the
standard of living for people while maintaining the carrying capacity of the
supporting ecosystem.
The Supreme Court of
India ruled in Narmada Bachao Andolan v. Union of India and Ors.[18]
That the fundamental right to water is part of the right to life and human
rights guaranteed by Article 21 of the Indian Constitution and that water is a
basic necessity for human existence.
XI.
COMPENSATION FOR VICTIMS OF ENVIRONMENTAL DEGRADATION:
The Supreme Court has
the authority to grant compensation in cases where a violation of fundamental
rights has been established and remedial relief has been granted. The Delhi gas
leak case led to the adoption of the "no fault" liability standard
(absolute liability) for industries involved in hazardous activities, which
significantly improved India's liability and compensation laws.
In the Charan Lal
Sahu case,[19]
the Supreme Court held that the right to life, which includes the right to a
healthy environment, is guaranteed by Article 21 of the Constitution. The Court
used Articles 48A and 51A (g) of the Constitution to bolster this claim, adding
that environmental contamination would be against Article 21.
XII.
PUBLIC INTEREST LITIGATION (PIL):
PILs have become an effective means
of protecting wildlife and ensuring that government officials are held
responsible. PILs have proven to be crucial in tackling matters like the
illicit trade in wildlife, the expansion of protected areas, and the
preservation of particular species. Positive changes in wildlife conservation
policies have been made possible by cases such as Salim Ali v. Union of
India (1996), People for Animals v. Union of India (2013), Animal
Welfare Board of India v. A.K. Jain (2003), and Centre for Environmental Law v.
Union of India (2002). The Gujarat state's critically endangered flamingo
population was ordered to be protected by the Supreme Court in the Salim Ali
case. The Supreme Court ordered the government to take action to stop the
killing of stray dogs in the state of Delhi in the People for Animals case.
XIII.
JUDICIAL ACTIVISM FOR ENVIRONMENTAL CONSERVATION:
"Judicial
activism" describes the higher judiciary's involvement in cases involving
violations of human rights and the environment. The Supreme Court has
interpreted Article 21 of the Constitution to guarantee a fundamental right to
a clean and safe environment, making it essential for upholding environmental
laws.
The Indian judiciary
interpreted the law to benefit marginalised citizens by recognising
environmental conservation as an expense borne by populations living near
nature, because ecological balance also supports industrial production. These
communities would then receive a portion of the financial gains from
environmental preservation from entrepreneurs. The robust moral and legal base
of the Indian judiciary has served as a model for the entire environmental
revolution in India, and they are currently leading the way globally.
The Indian judiciary,
in particular the Supreme Court of India, has consolidated environmental
jurisprudence on a case-by-case basis and produced some notable guidelines that
lower courts should adhere to when handling environmental cases. They have attempted
to bridge the void left by the legislature, which the government apparatus
rendered inoperable.
Apart from the
noncompliance of polluters with legal requirements, the insufficiency of state
agencies in enforcing environmental laws resulted in further environmental
degradation. This adversely affected public health and prompted legal
complaints from environmentalists, residents of polluted areas, and
non-governmental organisations. When the legislature realised that action was
necessary, it took the initiative to protect the environment. But because the
Indian executive branch was powerless to enforce environmental laws, the
judiciary got involved.
The courts have made
multiple attempts to resolve the conflict between environmental protection and
construction. India's Public Interest Litigation tool was used to establish its
environmental law. The PIL allowed citizens to petition the courts in cases
where the public interest is jeopardised by the actions of the government, a
department, or another entity by liberalising the concept of locus standi. The
PIL principle plays a significant role in Indian environmental law, which sets
it apart.
XIV. ROLE
OF SPECIALIZED TRIBUNALS:
In order to expedite cases pertaining
to wildlife and streamline legal proceedings, India has established specialised
tribunals like the National Green Tribunal (NGT). The NGT, which provides an
effective forum for adjudication, has been instrumental in resolving conflicts
pertaining to environmental and wildlife conservation issues. The Yamuna River
is home to several endangered species. In the 2010 case of Anil Agarwal v.
Union of India, the NGT ordered the government to take action to reduce
pollution in the river.
XV.
CONCLUSION:
Since independence, the environment
has been the only thing the judiciary has protected and managed. Judges took it
very seriously, and even though they made no observations, they closely watched
its implementation to ensure that it was carried out exactly as intended. Over
the past 15 to 20 years, environmental law in India has seen an exponential
transformation. The federal government and state governments have taken the
lead in developing plans to safeguard and maintain the environment.
The Indian judiciary has played a
major role in the development of laws in this area, particularly the higher
judiciary, which consists of the Supreme Court of India and state high courts.
Some excellent and respectable environmental protection measures have been made
possible by the idea of public interest litigation. Public interest lawsuits
have been a tactic employed by the Indian judiciary on multiple occasions to
encourage environmental conservation. Public interest litigation is based on
the fundamental idea that those who are impoverished shouldn't be excluded from
the legal system because they lack resources or education.
The Indian judiciary has exhibited a
robust dedication to wildlife conservation by means of interpreting and
enforcing laws, rendering significant rulings, and instituting specialised
tribunals. The judiciary has made a substantial contribution to the cause of
wildlife conservation by enforcing strict liability, safeguarding endangered
species, and maintaining habitats. It is imperative that we as conscientious
citizens understand the value of conserving our natural heritage and back the
judiciary's efforts to protect our fauna and ecosystems.
For India's wildlife conservation
efforts to continue, the judiciary's work is crucial. But the court cannot
accomplish this on its own. The public, the government, and other stakeholders
must all support it. The judiciary must have the resources from the government
to effectively enforce the law. The public must be made aware of the value of
protecting wildlife and the necessity of lending support to the legal system.
Businesses and environmental organisations are examples of additional
stakeholders that must be involved in wildlife conservation.
[3] Article 49-A of Constitution of
India
[11] Rylands v. Fletcher, (1868) 19 LT
220
[12] Dr. S.C. Tripathi, Environmental
law, pg no. 298
[13] M.C. Mehta v. Union Of India,
A.I.R. 1987 S.C. 1086.
[14] Dr. S.C. Tripathi, Environmental
law, pg no. 300
[16] Dr. S.C. Tripathi, Environmental
law, pg no. 250
Article Information
THE ROLE OF JUDICIARY IN PROTECTING BIODIVERSITY IN INDIA
Authors: MISS. ANAGHA YASHAWANT SAGAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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