Giving the green signal: The Supreme Court and the environment

The voluminous Constituent Assembly Debates do not contain a single discussion on environmental protection and conservation. Even though the Assembly had prominent Adivasi members like Jaipal Singh Munda and Boniface Lakra, it fell short of expressly acknowledging forest-dwelling communities’ rich history of caring for and co-existing with nature. In the years since, the environmental question has cropped up at various junctures of the nation’s journey through Nehruvian socialism, industrialisation and then liberalisation. The question is now more pressing than ever before—from 1951 to 2000, sea levels around India rose by 3 mm, heatwaves became 100 times more likely and India’s carbon emissions exceeded 1000 percent. Between 1970 and 2023, the per capita carbon footprint of Indians increased by over five times. Last year was the nation’s hottest ever.

Changes in the ecological landscape and man-made disasters like the Bhopal gas leak have forced the legislature and judiciary to look at environmental issues more seriously. In 1976, the Constitution was amended to include two soft obligations—a directive principle for the government and a fundamental duty of citizens to “protect and improve” the environment. In 1994, in Virender Gaur v State of Haryana, the Supreme Court would expansively read Article 21 to recognise the right to a pollution-free environment.

But these 75 years have also been marked by rampant extraction, and the Supreme Court’s own convenient silence and complicity. It has vocalised rhetoric on conservation when the political context has favoured it or been indifferent to it, but routinely batted for human development over conservation. A landmark case last year was emblematic of the tightrope it has been walking: its ruling that citizens had a right against the adverse effects of climate change came in a matter when the extinction of the Great Indian Bustard was pitted against the setting up of solar transmission lines in the bird’s habitat.

At the same time, some lawyers and judges have nudged the Court towards taking a pro-environment view, which in certain instances has stretched the imagination of what we thought was constitutionally possible. In this context, the Court has emerged as a consistent enforcer of environmental justice. But if there is a dominant theme that runs through the Court’s approach, it is the consistent dodging and dismissal of the conception that nature, by itself, separated from its resourcefulness to human civilisation, is worthy of protection. This position has become more untenable as the earth hots up. 

The early years: viewing nature in anthropocentric terms

Almost all accounts tracing the Court’s engagement with the environment begin in the 1980s. The first central anti-pollution law, the Water Act, came into force in 1974. The Environment Protection Act was enacted only in 1986. 

In the years immediately following the Constitution’s adoption, only a handful of environmental cases seemed to have reached the Court. Pollution was seen as a tortious infraction, a ‘nuisance’ to humans. Scanning the records of those early years provides a glimpse of how the Court thought about environmental degradation in an era where Article 21 was yet to be expanded. 

In May 1959, a five-judge bench led by Justice S.J. Imam decided a suit where the municipality of Dhrangadhara, a small town in Gujarat had taken issue with the large-scale discharge of effluents by the Dhrangadhara Chemical Works. The discharge, through ‘Katcha’ channels, was polluting wells and affecting soil fertility. The Court pulled up a government-appointed Special Officer, who had contended that investigating whether a nuisance existed was beyond his scope of work. “If a nuisance exists,” the Court said, “it should be removed without delay in order to preserve the health of the community and the fertility of the soil.”

Some early decisions also indicate that the State and the Court viewed forests merely as a natural resource to be extracted. The State was the ultimate trustee of the forest and the resources within it (an idea borrowed from colonial forest governance laws). In State of Bihar v Kameshwar Singh (1952), the Court was deciding on the legality of land acquisition from zamindars. The authority had refused to pay compensation for vast patches of forests and lands that were not fetching income at the date of vesting. The Court upheld the land reform legislation while also justifying the acquisition on the plinth of ‘public purpose’: “Surely, it is to subserve the common good by bringing the land, which feeds and sustains the community and also produces wealth by its forest, mineral and other resources, under State ownership or control.”

In Mohd. Hanif Quraishi v State of Bihar (1958), the forest and the cow were pitted as resources to be managed in a manner that best suited the human interest. In this case, the Court upheld legislations that criminalised cattle slaughter, only striking down those provisions which prohibited the slaughter of cows which were no longer capable of yielding milk or breeding or working as draught animals. The justification provided by Chief Justice S.R. Das was that there wasn’t enough green fodder for non-productive cattle: “Even if the forest resources are fully utilised, there will still be a deficiency of 13% in the supply.”

In the decades that followed, we would see repeated articulations of why conserving natural resources was best for the “nation’s wealth”. In State of Tamil Nadu v Hind Stone (1981), a case on leasing of granite mines, Justice O. Chinnappa Reddy noted: “Rivers, Forest, Minerals and such other resources constitute a nation’s natural wealth. These resources are not to be frittered away and exhausted by any one generation.” In Hind Stone, one sees how the idea of conserving so that the environment can ‘serve’ future generations emerged from the Court’s typecasting of nature as resource. It wouldn’t be until Vellore Citizens Welfare Forum v Union of India (1996) that the Court would expressly acknowledge the principles of ‘intergenerational equity’ and ‘sustainable development’.

The changing landscape after Bhopal

A new era of green activism emerged in the wake of a disastrous gas leak from a chemical plant in Bhopal in 1984. But, even there, the Supreme Court’s legacy is complicated. Legitimate questions have been raised about how the Court dealt with the matter of compensation. 

Even as activists protested overnight in the Court’s lawns, the bench facilitated a deal between the Union government and Union Carbide behind closed doors, arriving at $470 million, a number agreed on without the buy-in of the victims and which was seen as inadequate for the generational damage caused by the leak. In 2023, the Court dismissed a curative petition seeking a relook at the compensation amount.

Legal expert Usha Ramanathan has argued that the Court’s fumbling of Bhopal, along with the ushering of the liberalisation economy, emboldened the government to defang the Factories Act, 1948 and the Public Liability Insurance Act, 1991. In labour law, it marked a shift from the rights-based approach championed in the 1980s to one that didn’t wish to run afoul of the multinational corporations setting up shop in India.

Almost a year to the day from Bhopal, there was a fatal accident when oleum gas leaked from the Shriram Food and Fertilisers factory in Delhi. The gas choked many factory workers and led to the death of an advocate. A petition was filed by Mahesh Chandra Mehta, a forty-year-old public interest lawyer from Jammu & Kashmir. 

It was in this petition that the Court delivered its landmark judgement in M.C. Mehta v Union of India (1986). The decision was remarkable because it tipped the Court’s pollution jurisprudence beyond the confines of tort law. Treating such industrial leaks as tort meant that the Court was bound by a century-old House of Lords decision which noted that those in-charge of premises where harmful things are kept would be held ‘strictly liable’ for any kind of harm, irrespective of whether there was negligence. 

But even ‘strict liability’ had loopholes: liability could be escaped if one could establish that there was contributory negligence, for instance. But in MC Mehta (1986), the bench led by Chief Justice P.N. Bhagwati relied on the concept of ‘absolute liability’ to hold the plant-owner liable—it did not matter whether there was a leak, and there were no defences. In the hearings, Mehta also pushed for Shriram Fertilisers to be treated as ‘State’ under Article 12 so that it could be held accountable for violating Article 21. Mehta’s argument had some grounding. The previous year, in Rural Litigation and Entitlement Kendra v State of U.P. (1985), Justice Bhagwati had acknowledged the “right of the people to live in a healthy environment with minimal disturbance of ecological balance.” 

This time, though, the Court didn’t engage with the argument—it simply said the factory could be held ‘absolutely liable’ since its work was in public interest. It would take till 1994 and the judgement in Virender Gaur for the Court to read the environment-related DPSP and fundamental duty with Article 21 and to hold that the “right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed.”

In any event, Mehta’s crusade in the 1980s had ushered in a new era of judicial activism. On a visit to the Taj Mahal, he would learn that the yellowing of the monument’s Makrana marble was a result of emissions from Agra’s factories. This complaint would soon encompass a sprawl of litigation and take the name of ‘Taj Trapezium’. 

The procedural innovation that the Court would use to accommodate these cases was the continuing mandamus, which would allow it to keep the case open indefinitely while bringing related matters under it. By 1993, the Court had forced shut 212 small factories around the Taj and directed 5000 more to install pollution control devices. In recent years, through the Taj Trapezium case, the Supreme Court has pressed the Uttar Pradesh government to develop a ‘vision plan’ for preserving the Taj. It has also put environmental clearances to new industries in the TTZ on hold and directed its attention to tree-felling in the zone. In November last year, a bench of Justices A.S. Oka and A.G. Masih pushed for a tree census. 

Agra became the prototype for the case Mehta would file to take on air pollution in Delhi, long before it became a civic issue for the average citizen. In fact, the case that the Supreme Court is currently hearing on Delhi’s air quality is under the umbrella of M.C. Mehta v Union of India. These hearings started last November after the Air Quality Index hit the 1500 mark. Since then, Justice Oka’s bench has tried to monitor a variety of temporary and permanent solutions to ameliorate the situation, from school closures to solid waste management plans.

T.N. Godarvarman’s unfulfilled promises

Another continuing mandamus that has shaped the landscape of environmental litigation was initiated by a landlord. In the 1980s, Malayali zamindar T.N. Godavarman watched anxiously as the state government cleared almost 80,000 acres of teak, rosewood and jackfruit forests on the land his family previously owned in Nilgiris. Already entangled in multiple land reform litigations, Godavarman filed a writ seeking action against timber felling in early 1995. In one of the hearings, the Court asked the district collector of the Nilgiris if he was aware of the illegal tree cutting. “Not to the best of my knowledge,” the collector responded ambiguously, after which the bench pronounced him to be “either inefficient or corrupt.” 

That year, Justices B.N. Kirpal and Kuldip Singh (remembered today as the ‘green judge’) witnessed an ant-line of timber-carrying trucks and deforested lands during a vacation in Arunachal Pradesh. “Justice Kirpal remarked that perhaps they should form an impromptu two-judge bench at the rest house and deliver orders,” a lawyer close to him told reporter Mohit Rao in 2020. Justice Kirpal came back to Delhi and immediately joined the Godavarman bench. 

India’s forest laws from 1908 and 1927 reflected a governance imperative and not a conservation one. The 1927 law also allowed state governments to declare any land they own or have rights over as a “reserved forest. The Forest (Conservation) Act (FCA), enacted in 1980 to stem the deforestation crisis, was grossly under-implemented (it remains so today). 

On 12 December 1996, the Godavarman bench came up with an expansive definition of ‘forest’. The order noted that ‘forest’ would include not only the land recorded as ‘forest’ in government records but also any area that could fall under the dictionary definition of ‘forest’—“a large area covered with trees and undergrowth.” The latter would be called ‘deemed forests’. Over the next 25 years, reportedly 6,000 applications and almost 1,200 orders were passed in the case. Last year, when the Court pulled up the Lieutenant Governor of Delhi for illegal felling in Delhi’s Ridge Forest, it was under the aegis of Godavarman.

But Godavarman’s mission remains incomplete. In its 1996 order, the bench had pushed states to identify and declare deemed forests. But in 28 years, only a handful of states have formed expert committees to undertake this task. Last April, when states and Union Territories submitted affidavits to the Court on the status of declaring ‘deemed forests’, the information was vague and non-uniform.

‘Development’ and ‘nationalism’ from Sardar Sarovar to Ranjitsinh

In 1999, an interim order of the Supreme Court allowed the government to resume work on Sardar Sarovar, a 455-feet concrete gravity dam in Gujarat. For a decade, activists under the banner of the Narmada Bachao Andolan had opposed the project for overlooking displacement and environmental concerns. The World Bank had withdrawn from funding the project after a report it commissioned noted that the environmental impact had “not been properly considered or adequately addressed.”

In 2000, a bench led by Justice Kirpal upheld the Sardar Sarovar project. The Court noted that there was no violation of the ‘precautionary principle’ since that only applied to polluting industries (this would kick off a legacy of the “bizarre” application of the principle by the Court). 

In the same vein as Justice Chinappa Reddy in Hind Stone in 1981, Justice Kirpal supplied lengthy and roundabout reasoning to essentially suggest why environmental concerns can take a backseat in the face of “developmental activities”. He wrote: “In respect of public projects and policies which are initiated by the Government, the Courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration…. Environmental and ecological consideration must, of course, be given due consideration but with proper channelisation of developmental activities ecology and environment can be enhanced.”

The Court’s approach in Narmada Bachao Andolan (2000) was of a piece with the view it took half a century ago in Dhrangadhara. Now, it had become more acceptable to justify the underlying anthropocentric temperament with amorphous terms such as ‘development’ and ‘national security’. Yet, Narmada Bachao Andolan was a turning point since it rationalised the exceptions of ‘development’ and ‘nationalism’ in the Court’s conservation jurisprudence in a way that became apparent to the public. 

Steadily, this exceptional strain of the Court has gravitated more and more towards becoming a rule. Since the Bharatiya Janata Party came to power at the Centre with an overwhelming majority, the Court has barely disguised its support for large-scale energy, defence, and even ornamental projects. In January 2016, while dismissing a petition filed by local fishermen against the Adani-run Vizhingam port project in Kerala, CJI T.S. Thakur remarked, “If it is a project of national importance, being set up for the benefit of the country, it should not be stopped for some fishermen. You may drop names such as Adani…we won’t allow you to stop such projects for a few hundred fishermen.”

In January 2021, the Court cleared the Central Vista redevelopment project estimated at Rs. 20,000 crore which had been criticised by environmentalists. Justice A.M. Khanwilkar, authoring the majority opinion, noted that the recommendations of the environmental committee were valid and proper, even as Justice Sanjiv Khanna, in dissent, noted that the environmental clearance was a non-speaking order, passed without a public hearing. 

In December 2021, a bench led by Justice D.Y. Chandrachud approved the widening of double-lane highways for the 899-kilometre Char Dham project in Uttarakhand citing that the roads were important for defence purposes. Environmentalists had argued that the concerns of the High Powered Committee had been ignored by the government. While the road’s strategic importance for the Indo-China border became the fulcrum of the litigation, the project’s original intent was to facilitate religious and adventure tourism. 

In recent years, the ‘national security’ justification has undergirded several higher court judgements, including the Jammu and Kashmir High Court’s endorsement of projects like the construction of battalion headquarters and Anti-Corruption Bureau offices, and the renovation of the Gulmarg ski resort. In cases where courts have not explicitly approved such projects, they have submitted to executive discretion, such as the Calcutta High Court calling the Defence Ministry the “best judge” regarding the fate of a private high-rise project close to a military training centre. 

More recently, in M.K. Ranjitsinh v Union of India (2024), the Court was faced with the issue of whether solar and wind companies can plan renewable energy projects in the habitat of the Great Indian Bustard, a critically endangered bird with a population of less than 150. Justice Chandrachud acknowledged that the Supreme Court had a problem of prioritising “development” over conservation but ultimately approved the project, reasoning that renewable energy was important to curb climate inequality. (It is a thesis that environment experts have repeatedly called into question.) 

In recent years, the environment ministry has consistently diluted conservation norms for large-scale development projects, including a Rs 72,000 crore project in Great Nicobar Island. In 2023, Parliament passed an amendment to the FCA without much discussion. The amendment aims to blunt the Godavarman definition by excluding large patches of forests in India’s borderlands and regions affected by “Left-wing extremism” to facilitate the building of infrastructure for business, military and tourism. It also deems zoos, safaris and eco-tourism projects as “non-forest” activities, which means that no environmental approval will be needed to raze forest land for such activities. Last year, the Court stayed the effects of the amendment in an interim order. The ongoing case will test the Court’s commitment to its own vision.

Eco-centricism and ‘judicial adventurism’

In many ways, the climate crisis has reached a crescendo. Islands in the Sunderbans delta are drowning as a result of mangrove destruction and the rise in sea level. There are many more examples. Referencing foreign judgements on climate refugees, climate change’s effects on children and greenhouse gas emissions, Chief Justice Chandrachud remarked last year that “these cases, all instituted and decided in the past decade, indicate the type of concerns which will travel to the courts in the next few years.”

In 2008, Ecuador enacted a new Constitution. Article 10 of the document says that “nature shall be the subject of those rights that the Constitution recognizes for it.” This insertion came after decades of economic unrest in the country, precipitated by large-scale extraction of its natural resources. Indigenous lobbying in the US, New Zealand and other Latin American nations has led to laws and judgements conferring legal status on mountains, rivers and animals. 

This is not an ahistorical idea. Tribal communities have claimed guardianship over nature for centuries. In 1972, a California-based law teacher named Christopher Stone wrote ‘Should Trees Have Standing?’, an article which proposed that forests and rivers should have standing in law. Around that time, Australian philosopher Peter Singer wrote about ‘speciesism’ in his book Animal Liberation. ‘Speciesism’ refers to the structural discrimination carried out by humans, on the grounds that they are morally superior, against ‘non-human’ animals.

In 2013, in Orissa Mining Corporation v Ministry of Environment & Forest (2013), Justice K.S. Radhakrishnan recognised the cultural, religious and spiritual rights of the Dongaria Kondh community, ordering a referendum amongst affected Gram Sabhas to obtain consent on a bauxite mining project in the revered Niyamgiri Hills. The decision followed a decade of protests and resistance by several members of the community. 

But more broadly, the Court continued shying away from affording non-humans an equal plane. In 2014, however, in Animal Welfare Board of India v A. Nagaraja, while banning the bull-taming practice of Jallikattu, Justice Radhakrishnan contested this status quo once again. “Rights guaranteed to the animals under Sections 3, 11 (of the Prevention of Cruelty against Animals Act), etc. are only statutory rights,” he wrote, “The same have to be elevated to the status of fundamental rights, as has been done by few countries around the world, so as to secure their honour and dignity.”

This observation may have encouraged a set of High Court judgements that pushed the boundaries. In 2017, the Uttarakhand High Court declared the Ganga and Yamuna rivers and their tributaries as legal persons. The Director of Namami Gange, a river conservation programme, the Uttarakhand government and the Advocate General were declared as the rivers’ guardians. A bench of Chief Justice J.S. Khehar and Justice Chandrachud stayed the High Court decision on appeal and the case remains to be heard in the Supreme Court on merits. In 2018, the Uttarakhand High Court cited Peter Singer’s work in Narayan Dutt Bhatt v Union of India while declaring the “entire animal kingdom including avian and aquatic…as legal entities having a distinct persona with corresponding rights, duties and liabilities of a living person.” 

In 2019, the Punjab and Haryana High Court relied on Nagaraja in a cow slaughter case, noting that “all the animals have honour and dignity” and “every species has an inherent right to live and is required to be protected by law.” In 2022, while hearing a case on disciplinary proceedings against an official alleged to have given away forest land, the Madras High Court expressed concern regarding the misuse of forest land and observed that “They [Mother Nature] are also accorded the rights akin to fundamental rights, legal rights, constitutional rights for its survival, safety, sustenance, and resurgence in order to maintain its status and also to promote its health and well-being.”

Yet, in an era where international law increasingly confronts the pressure of recognising eco-centric legalism, the Supreme Court took a step back. In 2023, a Constitution Bench overturned Nagaraja while upholding the practice of Jallikattu. Nagaraja’s holding, it said, amounted to “judicial adventurism”. In an interview with the SCO, lawyer Alok Hisarwala Gupta had said that the “powerful transformative and positive impact of Nagaraja in our jurisprudence has been erroneously undermined. We need to work towards restoring this.”

Driving the anxieties and aspirations of new-age environmentalists is the fact that the Court has borrowed from eco-centric legalism (as in the Niyamgiri case) while circumventing it on most other occasions. Last year, in both the Great Indian Bustard case and the judgement which declared Rajasthan’s sacred groves as ‘deemed forests’, it adopted discourse from eco-centric legalism without adequately deploying the models proposed by the non-human rights movement. Environmentalists Ashish Kothari and Shrishtee Bajpai have critiqued Ranjitsinh for ignoring the ‘Rights of Nature’ discourse, which would have mandated undivided attention for the bird. 

It was “judicial adventurism” which pushed the Court to shift its treatment of environmental violations from merely tortious to an infraction of a fundamental right. Perhaps deploying the procedural device of the continuing mandamus in M.C. Mehta and T.N. Godavarman can also be considered an instance of “judicial adventurism”. The fact is that these improvisations have allowed the Court to enforce and expand environmental law. In the same spirit, the Court must now consider an innovation that can help it unequivocally answer the question of our time: is nature worthy of rights?