Keywords: India, right to life, environmental protection, public interest litigation, national green tribunal
Abstract: India's green jurisprudence is an outcome of a proactive Supreme Court. The judiciary has expanded the constitutional meaning of'right to life' to include environmental protection. The limited effectiveness of both the executive and administrators has promoted the judiciary into a de facto role as caretaker of the environment. The creation and usage of public interest litigation allows the rules of locus standi to be used by those claiming either'representative standing' or'citizen standing'. However, public interest litigation is not a 'magic bullet' and two case studies illustrate its limitations. Finally, the paper examines the recent establishment of the 'National Green Tribunal' and its possible role in promoting environmental protection.
The relationship between human rights and the environment is both powerful and simultaneously controversial. The question remains: Are the two issues merely associated, or are they effectively integrated. The academic literature has different approaches to human rights and the environment. 'These include the use of procedural human rights for environmental protection, recasting human rights provisions to include environmental concerns and articulating a new right to environmental protection.
This paper maps the manner in which the Indian judiciary has locked together the Constitution and the environment through the use of Public Interest Litigation (PIL). The Court s self-created power is intended to make basic human rights, specifically herein environmental protection, both real and meaningful throughout India. Social and economic justice is at the heart of the Constitution, which in turn, places a duty on the judiciary to protect the rights of every citizen so that they might live a life of dignity and well-being. It is a responsibility the Court takes seriously and it is often successful.2 It has interpreted the constitutional right to life to include environmental protection.3 However, PIL has inherent constraints that can frustrate speedy and effective justice. Two major environmental case studies are examined which suggest that important though PIL was and is, it is not a 'magic bullet' for environmental protection. Finally, the paper reviews very recent quasi-judicial developments which aim to protect the environment by addressing and resolving those weaknesses inherent in the PIL process.
The human and geographical scale of India is gigantic as are the internal issues that are being addressed or identified. Specific issues include population growth;4 poverty;5 illiteracy;6 and corruption.7 Nevertheless, India has undergone immense transformation as a result of its rapid economic growth.8 India remains a nation of stubborn paradoxes. 'Shining India' is reserved for the select few: the rich and the powerful.9
It is against this background of systemic inequality that the role of the senior Indian judiciary assumes seminal importance. The tripartite checks and balances relationship between Parliament, the Executive and the Judiciary, so beloved in Western common law constitutionalism and bequeathed to independent India in 1947, continues to experience limited success. The ineffectiveness of both the political leadership and the administrative authorities in discharging their constitutional role and statutory duties, coupled with widespread public sector corruption has cast the Indian judiciary, particularly the Supreme Court, in the role of protector of the interests of the disadvantaged in matters of public concern. Social and economic inequality affects many millions of people and for these reasons the judiciary has adopted the proactive role of seeking to provide redress through PIL.10