Role of Judiciary in Environmental governance

Acknowledgement
I would like to acknowledge and extend my heartfelt gratitude to Prof. Manjula Batra
for his personal guidance, support and encouragement which has made the completion
of this Project possible. Thank you, Sir, for your support and co-operation.
I would also like to extend my thankfulness towards the library staff and my friends,
who immensely helped me in the research work for the project.
Regards
Mohd Adil
3rd yr. 6th sem.
Faculty of law,JMI.

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Role of Judiciary in Environmental governance

ABBREVIATIONS

HR

: Human Rights

UDHR

: Universal Declaration of Human Rights

ACTS

: African Centre for Technology Studies

UNESCO
Organization

: United Nations Educational, Scientific and Cultural

CITES CONVENTION
Endangered Species

: The Convention on the International Trade in

IUCN

: International Union for Conservation of Nature

UNEP

: United Nations Environment Programme

UNCED
Development

: United Nations Conference on Environment and

UNDP

: United Nations Development Programme

WSSD

: World Summit on Sustainable Development

NEP

: National Environment Policy

MEA

: Multilateral Environmental Agreements

COP

: Conference of Parties

MOP

: Meeting of Parties

PIL

: Public Interest Litigation

WBCSD

: World Business Council for Sustainable Development

NGO

: Non Governmental Organization

MNCs

: Multinational Corporations

OAS

: Organization of American States

OAU

: Organization for African Unity

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ICJ

: International Court of Justice

RTI

: Right to Information Act

ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

I. ENVIRONMENTAL GOVERNANCE
Environmental governance has acquired different meanings depending on how people
perceive Governance itself. Rosseau has proposed one of the most exhaustive
definitions of governance:
Governance refers to activities backed by shared goals that may or may not derive
from legal and formally prescribed responsibilities and that do not necessarily rely on
police powers to overcome defiance and attain compliance. Governance, in other
words, is a more encompassing phenomenon than government. It embraces
governmental institutions, but it also subsumes informal, non-governmental
mechanisms whereby those persons and organizations within its purview move ahead,
satisfy their needs, and fulfill their wants.Put more emphatically, governance is
a system of rule that works only if it is accepted by the majority (or, at least, by the
most powerful of those it affects), whereas governments can function even in the face of
widespread opposition to their policies1
Environmental governance is defined as a body of values and norms that guide or
regulate state-civil society relationships in the use, control and management of the
natural environment. These norms and values are expressed in a complex chain of
rules, policies and institutions that constitute an organizational mechanism through
which both the broad objectives and the specific planning targets of environmental
management must be articulated.2
1

Harashima, Yohei (2000): Research Note Environmental Governance in Selected Asian

Developing Countries. International Review for Environmental Strategies Vol.1, No.1, pp. 193
207, 2000 Institute for Global Environmental Strategies.
2

Mugabe, John And Godber W. Tumushabe (1999): Environmental governance: Conceptual

and emerging issues in H.W.O. Okoth-Ogendo Godber & W. Tumushabe. Editors (1999).
Governing The Environment. Political Change and Natural Resources Management in Eastern
and Southern Africa. African Centre for Technology Studies (ACTS). Nairobi, Kenya. 1999
3 Submitted by: Mohd Adil

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More importantly environmental governance, provides a conceptual framework within

which public and private behaviour is regulated in support of sound ecological
stewardship. That framework establishes reciprocal relationships between people
(globally, regionally, nationally and locally) relating to access and use of environmental
goods and services, and binds them (at whatever level) to certain specific
environmental ethics. The rules, rights and responsibilities may either flow from
custom and practice or be codified in such instruments as conventions, treaties or
statutes and managed by different organizational forms, for example, clans, womens
groups, private firms, national agencies and international organizations.3
The discourse on environmental governance has been dominated by global issues,
discussions and frameworks. Consequently, very little has been researched and studied
about the national environmental governance issues, particularly in Asian countries.4
However, this discussion cannot be complete without a discussion of the historical
context of the environmental movements and subsequent evolution of environmental
governance out of the shadows of environmental activism. It all started with
environmental concerns taking a shape of environmental movement in the United
States in the 1960s. This concern led to the National Environmental Policy Act in
December 1969, and to the first Earth Day a few months later. Within the short span of
a few years in the early 1970s, the Environmental Protection Agency and the
Presidential Council on Environmental Quality were established, the Clean Air and
Water Acts and other major federal legislation were passed, and the federal courts were
deluged with lawsuits brought by a new generation of environmental advocacy
organizations, often funded by major U.S. foundations. It was during this period that
groups like the Natural Resources Defense Council and the Environmental Defense

Ibid

Supra 1
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Fund were launched.5 Gradually this evolved into a global environmental movement.
Major milestones of the global environmental movements are listed below:

Year

Milestone

1970

First Earth Day observed

1971

The Convention on Wetlands of International Importance Especially as

Waterfowl Habitat (Ramsar Convention)

1971

This Endangered Planet, Richard Falk

1972

The UNESCO Convention Concerning the Protection of the World Cultural and
Natural Heritage (World Heritage Convention)

1972

Stockholm Conference on the Human Environment

1973

The Convention on the International Trade in Endangered Species (CITES

Convention)

1974

The Limits to Growth, Donella Meadows et al.

1978

The Human Future Revisited, Harrison Brown

1978

The Twenty-Ninth Day, Lester Brown

1980

World Conservation Strategy, IUCN and UNEP

1987

Our Common Future, World Commission on Environment and Development (the

Brundtland Commission Report)

Speth, James Gustave (2002): The Global Environmental Agenda: Origins and Prospects in
Esty, Daniel C. and Maria H. Ivanova, Editors. (2002): Global Environmental Governance
Options & Opportunities. Yale school of forestry & environmental studies
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1992

Rio Earth Summit

1992

Framework Convention on Climate Change

1992

The Convention on Biological Diversity

1994

Convention on Combating Desertification

2002

World Summit for Sustainable Development in Johannesburg

2005

Kyoto Protocol comes into force

EVOLUTION OF GLOBAL ENVIRONMENTAL GOVERNANCE

During the early stages of development of national environmental policy, technically
oriented policies and measures played a major role in resolving the immediate
problems of rampant industrial and urban pollution. As a result, research activities
carried out to date have tended to be based primarily on natural sciences and technical
approaches. However, it was recognized soon afterwards that technical fixes would
not suffice in solving todays global environmental issues. One of the reasons for this is
that they ignore the diversity of interests and perspectives among actors in establishing
and implementing policies for environmental protection.
The problems of the human environment were placed on the international agenda in
1972 at the United Nations Conference on Human Environment in Stockholm, the first
among a host of global issues to be addressed by the world body. The Stockholm
Conference gave impetus to the growth of international environmental law and
international

organizations

specifically

devoted

to

promoting

environmental

governance worldwide, but it failed to bridge the gap between North and South over
conflicting views and approaches to issues of environment and development.
Twenty years later, Agenda 21, a global plan of action directed towards the twenty-first
century, was adopted at the United Nations Conference on Environment and
Development (UNCED) held in Rio de Janeiro, Brazil. Although the international
community agreed at UNCED to strive for the attainment of the ultimate goal of
sustainable development, the state of the global environment is worsening today and is
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expected to continue to deteriorate, potentially leading to a catastrophic situation in the

not-too-distant future. The emergence of global environmental issues since the 1980s
exerts an added pressure on the already strained resources and structures for
environmental governance in developed and developing countries alike, and thus
makes it imperative for us to reconsider existing social orders and value systems, and
to restructure our economy to reduce the impact of human activities on the
environment.
The UNCED represented a partial coming of age of international movement. The
links between improved environmental management and economic development were
at the core of the UNCED agenda. However, the euphoria that was generated during the
Rio Conference 92, had died down at the New York Conference 97. The week-long
conference at New York reviewed the progress since the Rio Summit 92, and found
that the planets oceans, forests and atmosphere were still in trouble and its population
of poor people was still growing.6
While national institutional mechanisms have become a necessary condition for
implementing Agenda 21, it is important to underscore at least two shortcomings with
the above figure. The first is that only approximately 70 of the national coordinating
bodies established worldwide include multi-stakeholder groups. The second deficiency
is the unbalanced geographic distribution of these multi-stakeholder bodies. While the
highest concentration of such bodies is found in the OECD region, fewer developing
countries have established such arrangements.7
The World Summit on Sustainable Development (WSSD), held at Johannesburg in
September 2002 (Rio + 10), that epitomized the three-decade long journey from
Stockholm to Johannesburg began with the recognition of negative influences of
6

Gupta, Anil K. and Mohammad Yunus (2004): India and the WSSD (Rio + 10), Johannesburg:
Issues of national concern and international strategies. VOL. 87, NO. 1, 10 JULY 2004.
CURRENT SCIENCE.
7

Boyer, Brook (2001): Institutional Coordination, Multi-stakeholder Participation and the

Implementation of MEAs National Experiences of Malaysia and Thailand. Paper prepared for
the Regional Consultation / Workshop on Inter-linkages, Kuala Lumpur, 26-27 February 2001.
United Nations University
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human activities on environment, and was followed by a paradigm that sees

environment and development inextricably linked. While national and international
discussions still keep incubating about what are the key concerns to be addressed
globally, some experts and organizations have already suggested the following few8:

Poverty eradication and sustainable livelihood

Financial resources for environmental improvement

Technology transfer

Production and consumption patterns.

While the international treaties and conventions mentioned above and several others
guide the international action towards achieving sustainable development goals, the
day-to-day environmental affairs are handled by the United Nations Environment
Program (UNEP). However, it is widely believed that UNEP has achieved very little in
terms of making substantive progress towards bringing in an international governance
regime. Primary reason for this failure is believed to be9:
UNEPs authority was severely constrained by its programme rather
than specialized agency status within the UN system.
UNEPs governance structure led to more attention to the needs and
demands of member states than to the mission of the organization.
UNEPs financial structure enabled countries to pursue their own
interests through UNEP rather than the common good.
UNEPs location outside of the centers of political activity affected its
capacity to coordinate the numerous agencies with environmental
activities as well as, most importantly, its ability to attract top-tier policy
staff.

Supra 6

Ivanova, Maria (2005): Assessing UNEP as Anchor Institution for the Global Environment:
Lessons for the UNEO Debate Working Paper No. 05/01 available online at
http://www.yale.edu/gegproject/uneo-wp.pdf. Yale University. Yale Center for Environmental
Law & Policy
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PRICIPLES OF ENVIRONMENTAL GOVERNANCE

The following Principles, accordingly, guide the activities of different sectors in
relation to the Indias National Environment Policy (NEP). The NEP is a
comprehensive document covering all concerned sectors and stakeholders. Each of
these principles has an established genealogy in policy pronouncements, jurisprudence,
international environmental law, or international State practice:
I. Human beings are at the center of Sustainable Development Concerns:
Human beings are at the center of concerns for sustainable development. They
are entitled to a healthy and productive life in harmony with nature.
II. The Right to Development:
The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of the present and future generations.
III. Environmental conservation is an integral part of the development process:
In order to achieve sustainable development, environmental conservation
should be constituted as an integral part of the development process and cannot
be considered in isolation from it.
IV. The Precautionary Approach:
Where there are credible threats of serious or irreversible nature to damage the
key environmental resources, lack of full scientific certainty shall not be used as
a reason for postponing cost-effective measures to prevent environmental
degradation.
V. Economic Efficiency:
In various public actions for environmental conservation, economic efficiency
would be realized. This principle requires that the services of environmental

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resources be given economic value, at for with the other goods and services, in
analysis of alternative courses of action.
Further implications of this principle are as follows:
a) Polluter Pays:
Impacts of acts of production and consumption of one party may be visited
on third parties who do not have a direct economic nexus with the original
act. Such impacts are termed externalities. If the costs (or benefits) of the
externalities are not re-visited on the party responsible for the original act,
the resulting level of the entire sequence of production or consumption, and
externality, is inefficient. In such a situation, economic efficiency may be
restored by a making the perpetrator of the externality bear the cost (or
benefit) of the same.
b) Cost Minimization:
Where the environmental benefits of a course of action cannot, for
methodological or conceptual reasons, be imputed economic value (as in the
case of Incomparable Entities), in any event the economic costs of
realizing the benefits should be minimized. Efficiency of resource use may
also be accomplished by the use of policy instruments that create incentives
to minimize wasteful use and consumption of natural resources. The
principle of efficiency also applies to issues of environmental governance by
streamlining processes and procedures in order to minimize costs and delays.

VI. Entities with Incomparable Values:

Significant risks to human health, life and environmental life-support systems,
besides certain other unique natural and man-made entities, which may impact
the well-being broadly conceived of large number of persons may be considered
as Incomparable in that individuals or societies would not accept these risks
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for compensation in money or conventional goods and services. A conventional

economic cost-benefit calculus would not, accordingly, apply in their case, and
such entities would have priority in allocation of societal resources for their
conservation without consideration of direct or immediate economic benefit.
VII. Equity:
The cardinal principle of equity or justice requires that human beings cannot be
treated differently based on irrelevant differences between the Equity norms
must be distinguished according to the context, i.e. procedural equity, relating
to fair rules for allocation of entitlements and obligations and end-result
equity, relating to fair outcomes in terms of distribution of entitlements and
obligations. Each context, in addition, must be distinguished in terms of intragenerational equity, relating to justice within societies and in particular
providing space for the participation of underprivileged, and inter-generational
equity. Equity in the context of this policy refers to both equity in entitlements,
and participation of the relevant stakeholders, in processes of decision-making
over use of, environmental resources.
VIII. Legal Liability:
The present environmental redressal mechanism is predominantly based on
doctrines of criminal liability, which has not proved sufficiently effective, and
need to be supplemented. Civil liability for environmental damage would deter
environmentally harmful actions, and compensate the victims of environmental
damage. Conceptually, the principle of legal liability may be viewed as an
embodiment in legal doctrine of the polluter pays approach, deriving from the
principle of economic efficiency. The following alternative approaches to civil
liability may apply:
a) Fault based liability

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In a fault based liability regime a party is held liable if it breaches a preexisting legal duty, for example, an environmental standard.
b) Strict liability
Strict liability imposes an obligation to compensate the victim for damage
resulting from action or failure to take action, which may not necessarily
constitute a breach of any law or duty of care.
IX. Public Trust Doctrine:
The State is not an absolute owner, but a trustee of all natural resources, which
are by nature meant for public use and enjoyment, subject to reasonable
conditions, necessary to protect the legitimate interest of a large number of
people, or for matters of strategic national interest.
X. Decentralization:
Decentralization involves ceding or transfer of power from a Central Authority
to State and Local Authorities, in order to empower public authorities having
jurisdiction at the spatial level at which salient environmental issues are to be
addressed.
XI. Integration:
Integration refers to the inclusion of environmental considerations in sectoral
policymaking, the integration of the social and natural sciences in environment
related policy research, and the strengthening of relevant linkages among
various agencies at the Central, State, and Local Self- Government where the
environmental policies are to be implemented.
XII. Environmental Standard Setting:
Environmental standards must reflect the economic and social development
situation in which they apply. Standards adopted in one society or situation may
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have unacceptable economic and social costs in another society or context, if

implemented without considering the consequences.
XIII. Preventive Action:
It is preferable to prevent environmental damage from occurring in the first
place, rather than attempting to restore degraded environmental resources after
the damage.
XIV. Environmental Offsetting:
There is a general obligation to protect threatened or endangered species and
natural systems that are of special importance to sustaining life, providing
livelihoods, or general well-being. If for exceptional reasons of overriding
public interest such protection cannot be provided in particular cases, costeffective offsetting measures must be undertaken by the proponents of the
activity. It must aim to restore the lost environmental services produce to the
same public in question.

CATEGORIES OF ENVIRONMENTAL GOVERNANCE

In order to address local to global concerns, environmental governance could broadly
be categorized at the following three levels:
1. International Environmental Governance looking after global environmental
issues through multilateral environmental agreements. In order to address the global
environmental concerns (climate change, conservation of biodiversity, desertification
and management of persistent organic pollutants etc) a number of multilateral
environmental agreements (MEAs) are in place. Most of these agreements were
initiated under the auspices of the United Nations Environment Programme (UNEP).
After negotiations, these MEAs have their own independent existence by way of their
separate Secretariats providing necessary programmatic support. The Conference of
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Parties (COP) in case of Conventions and Meeting of Parties (MOP) for Protocols are
the supreme bodies consisting of all Parties providing overall direction and guidance to
such international agreements. India is a party to most of these multilateral
environmental agreements.
2. National Environmental Governance a set of legislative and policy measures at
the national level governing environmental issues. These national policy measures
could be in response to either fulfilling international environmental commitments or
according to the national environmental priorities. The Ozone Depleting Substances
(Regulation) Rules in India are in response to countrys obligation under the Montreal
Protocol while the Environment Protection Act, the Forest Conservation and the Air
and Water Pollution
(Prevention) Acts are driven by national environmental requirements. In case of large
countries as India, an intermediate level of provincial / state level is also often in place.
The Constitution of India prescribes protection and improvement of the natural
environment including forests, lakes, rivers and wild life and to have compassion for
living creatures, as one of the fundamental duties of every citizen of India. As a
directive principle of the state policy, Article 48A of the Constitution states that the
State shall endeavor to protect and improve the environment and safeguard the forests
and wildlife of the country. The Public Interest Litigation (PIL) is a unique feature of
Indian judicial system. In fact an independent
Judiciary has been exceptionally effective in the area of environment by achieving
greater degree of compliance with the laws and upholding the rights of citizens to
acceptable quality of water and air. A diverse developing society such as India provides
numerous challenges in the economic, social, political, cultural and environmental
arenas. As a major developing country, India has a well-developed body of
environmental laws. The volume of these laws is gradually growing, bringing more and
more aspects into its fold. However, much more needs to be in India regarding
compliance with and enforcement of these laws and regulations. It has been an
endeavor in India to apply the principles of good governance (transparency, rationality,
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accountability, reduction in time and costs, participation and regulatory independence)

to the management and regulation of use of environmental resources.
3. Local Environmental Governance dealing with local environmental issues and
sharing of property rights over local natural resources. Devolution of power to people
through constitutional amendments, in the nineties, is already showing remarkable
results in a number of areas. By transferring management powers of 29 sectors of
economy to village councils and allowing them to raise resources through taxation, the
first major step in empowering people to manage their resources has already been
taken. The steps contemplated for the future are, sharing of state and central revenue
with village councils and their direct involvement in management of social sector
activities and village infrastructure. Moving beyond the elected representatives of
village councils, a number of initiatives for management of natural resources seek
direct involvement of the whole village, for example, Joint Forest Management,
Watershed Development Committees and Participatory irrigation Management to
mention a few. Clearly the emerging strategy is to empower people to manage their
resources to establish sustainable livelihoods. The important thing is to understand that
the poor are not the problem. They are part of the solution.

III. JUDICIARIES AND SUSTAINABLE DEVELOPMENT

Courts also have played a crucial role in advancing the Principles contained in the
Stockholm and Rio Declarations. They have produced numerous decisions that have
contributed to balancing environmental and developmental considerations, promoting
natural resources conservation and sustainable use, achieving equity and justice, and,
overall, implementing the goals of sustainable development.
The principle of sustainable development has been discussed by the International Court
of Justice, in the Hungary- Slovak Republic case on the Gabcikovo-Nagymaros
Project. At the national level, judiciaries throughout the world have made significant
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contributions to the progressive development of this body of law. The following is a

brief overview of these legal developments.
Continuous mandamus in the corpus of international and national law; invocation
of the extraordinary jurisdiction of the Supreme Court in environmental
matters; public participation, including substantive and procedural matters
relating to public interest litigation10
Limits of the concepts of aggrieved person and locus standi in regard to
environmental damage11;
Interpretation of the Right to Life in Constitutions as including the right to a
healthy environment in which the right to life itself may be enjoyed; intergenerational and intra-generational equity; court commissions to ascertain facts
and an authoritative assessment of the scientific and technical aspects of
environment and development issues;12
Publics right to information; obligation for continuous environmental impact
assessment13

10

MC Mehta v Union of India & Ors, AIR 1988 Supreme Court 1037; Rural Litigation and
Entitlement Kendera v State of UP, AIR 1988 SC 2187; The Environmental Foundation
Limited & Ors v The Attorney General & Ors, Supreme Court of Sri Lanka SC, Application No
128/91
11

Dr Mohiuddin Farooque v Bangladesh, Represented by the Secretary, Ministry of Irrigation,

Water Resources & Flood Control & Ors: 48 DLR 1996, Supreme Court of Bangladesh
12

MC Mehta v Kamal Nath & Ors, Supreme Court of India (1997) Supreme Court Cases 388; Juan
Antonio Oposa and Others V. The Honourable Fulgencio S. Factoran and another, G.R.No: 101083,
Supreme Court of the Philippines

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Application of the public trust doctrine in regard to natural resources and the
environment14
Approaches to judicial reasoning in environmental matters and the importance of
promoting public awareness and environmental education at secondary and
tertiary levels15
The following is intended to provide a flavour of the manner in which judges around
the world have given judicial recognition to the Principles of the Rio Declaration on
Environment and Development.

Sovereignty and Jurisdiction

In 1997 the International Court of Justice (ICJ) prevented Hungary from suspending
and abandoning the works of the Gabcikovo-Nagymaros Barrage System. In issuing its
opinion, the ICJ stated that the existence of the general obligation of States to ensure
that activities within their jurisdiction and control respect the environment of other
States or of areas beyond national control is now part of the corpus of international law
relating to the environment.16

13

Kajing Tubfk & Ors v Ekran BHD & Ors, Originating Summons No. 55 (21 June 1995) High
Court Kuala Lumpur; Movement Social de Petit Camp/Valentina v Ministry of the
Environment and Quality of Life, Mauritius Environment Appeal Tribunal (Cause No. 2/94)
14

MC Mehta v Kamal Nath & Ors, Supreme Court of India (1997) Supreme Court Cases 388);
corporate responsibility and liability (Charan Lal Sahu v Union of India (Bhopal Case II) AIR
1990 Supreme Court 1480
15

MC Mehta v Union of India & Ors, Supreme Court of India, Writ Petition Civil No 860 of
1991
16

International Court of Justice, 1997 General List No. 92, 25 September 1997, Case
Concerning The Gabcikovo-Nagymaros Project
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Inter-generational equity
In forbidding limestone mining operations in the Himalayan foothills, the Supreme
Court of India took into account the interests of future generations in the unique legacy
of the Himalayan ecosystem, requested them by past generations. 17 Similarly, the need
to defend and improve the human environment for present and future generations
was considered by the Court in ordering the closure of several tanneries, despite the
unemployment resulting from such an order.18 Likewise, the Philippines judiciary
agreed to afford legal standing to a group of petitioners that sued on behalf of future
generations. The Court determined that every generation has a responsibility to the next
to preserve nature for the full and healthful enjoyment of its ecology.19
Access to information
In South Africa, applicants were granted the right to require information on how the
construction of a development project in an area in which they intended to build a
holiday house would affect the environment.20 Ugandas judiciary stated that every
citizen has a right of access to information in the possession of the State. 21 From a
different perspective, the Ukrainian judiciary stated that an applicant for a project with
environmental consequences should announce the findings of the state environmental
expert body on the proposed project through the mass media. 22 The Supreme Court of
India, in response to a petitioners request for issuing a court directive on the
17

Rural Litigation and Entitlement Kendera V. State Of U.P., AIR 1988 SC 2187

18

M.C. Mehta V. Union of India and others, Air 1988 Supreme Court 1037

19

Juan Antonio Oposa and Others V. The Honourable Fulgencio S. Factoran and another,
G.R.No: 101083, Supreme Court
20

Van Huyssteen & Others v Minister of Environmental Affairs & Tourism & Others 1996 (1)
SA 283 (c)
21

Greenwatch Limited v Attorney General And Uganda Electricity Transmission Company Ltd,
HTC-00-CV-MC-0139 of 2001, High Court of Uganda at Kampala
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importance of public information in environmental matters, called on cinemas and

video parlours to project environmental messages and films about environmental issues
and requested that radio companies make programs on environment and pollution. 23
Public participation
In Chile, the judiciary upheld the standing of a party that challenged the validity of a
resolution that admitted the technical viability of a project thataccording to the same
resolutiondid not fulfill the requirements for its environmental viability.24
The Supreme Court of Bangladesh granted legal standing to the representative of an
environmental association that challenged the implementation of a flood control plan.
The original court had dismissed the petition by establishing that the petitioner was not
an aggrieved person within the meaning of the Constitution. However, on appeal,
standing was granted by treating the association as a person aggrieved within the
meaning the Constitution because the cause it bona fide espouses, both in respect of
fundamental rights and constitutional remedies, is a cause of an in determinate number
of people in respect of a subject matter of great public concern.25
Likewise, the Supreme Court of Nepal granted standing to a petitioner who complained
that the construction of a building on the banks of Rani Pokhari destroyed the beauty of
a historical and archaeological site and sought orders to stop the construction as well as
demolish all the structures already constructed. The court held that 1) it was an
22

Joint Stock Company "Okean" Ministry of Environmental Protection and Nuclear Safety of
Ukraine, Case No. 1/47 1997
23

M.C. Mehta V. Union of India and others, Supreme Court Of India, Writ Petition (Civil) No. 860 of
1991
24

Antonio Horvath Kiss and others v National Commission for the Environment, Supreme
Court March 19 1997
25

Dr. Mohiuddin Farooque V.Bangladesh, Represented by The Secretary, Ministry of

Irrigation, Water Resources & Flood Control and others;48 Dlr 1996, Supreme Court of
Bangladesh, Appellate Division (Civil)
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obligation of the Nepalese government to apply the commitments it made under The
Convention for the Protection of the World Cultural and Natural Heritage 1972 and 2)
every individual was entitled to show concern for public property and public rights in
terms of Art 88(2) of the Constitution of the Kingdom of Nepal of 1990.26
Precautionary Principle
In a recent decision, Argentinas judiciary ordered the temporary suspension of a
project that sought to build an electricity grid above a human settlement. By finding
support within Argentinas environmental legal framework and other international
instruments, this decision ordered the defendant to present a report on the probable
negative effects that the resulting electromagnetic fields could have on human health,
as well as how they could be prevented.27 In a similar case, the Supreme Court of
Pakistan accepted the need to apply the precautionary principle and appointed a
commissioner to study the likelihood of adverse effects of a proposed electricity grid
on local residents.28
A Colombian administrative tribunal called on the national government to end spraying
over illicit drug crops until scientific studies on the effects of the chemicals used on
human health were carried out.29 When confronted with an action that sought to stop
industries from discharging untreated effluent into agricultural fields, the Supreme
Court of India called upon the government to create an authority that would address
polluting industries. After announcing that the precautionary principle had become a
26

Prakash Mani Sharma and others on behalf of Pro Public V. Honorable Prime Minister Girija Prasad
Koirala and others, 312 NRL 1997, Supreme Court of Nepal.
27

Asociacin Coordinadora de Usuarios, Consumidores y Contribuyentes V. ENRE - EDESUR,

Camara Federal de Apelaciones de La Plata, Sala 2a, July 8, 2003
28

Ms. Shehla Zia And Others V. Wapda, Human Rights Case No: 15-K of 1992, Supreme
Court
29

Claudia Sampedro y Hctor A. Surez v Ministry of the Environment and Direction of

Stupefacient Substances, Administrative Tribunal of Cundinamarca, June 13 2003
20 Submitted by: Mohd Adil

Role of Judiciary in Environmental governance

international customary law, the Court recommended that the announced authority
consider this principle.30 Australias judiciary has explicitly recognized the binding
force of the precautionary principle. The Land and Environment Court of New South
Wales stated that the lack of full scientific certainty should not be used as a reason for
postponing measures that avoid potential threats.31
When asked to deny the construction of a power station because of its negative impact
on the Earths atmosphere (greenhouse effect), a magistrates court in Australia held
that the precautionary principle does not give a special preference to the consideration
of greenhouse impacts above development projects that demonstrate the capacity to
address environmental concerns.32
Polluter Pays
The polluter pays principle has been recognized within the jurisdiction of the Supreme
Court of India, which has held that along with the precautionary principle- the polluter
pays principle is a part of customary international law. 33 Following similar reasoning,
the Supreme Court of India held a company liable for the diversion of a stream and
ordered payment of compensation to restore damages to the environment, invoking the
Polluter Pays Principle.34

30

Vellore Citizens Welfare Forum V. Union of India, Supreme Court of India, Air 1996 SC
2715
31

Leach v. National Parks And Wildlife Service And Shoalhaven City Council, Land and
Environment Court of New South Wales, 81 Lgera 270 (1993)
32

Greenpeace Australia Ltd V. Redbank Power Company Pty. Ltd. and Singleton Council,
Land and Environment Court of New South Wales, 86 Lgera 143 (1994)
33

Vellore Citizens Welfare Forum v. Union of India, Supreme Court of India, Air 1996 SC2715

34

M.C. Mehta V. Kamal Nath and others, Supreme Court of India, (1997)1 Supreme Court
Cases 388
21 Submitted by: Mohd Adil

Role of Judiciary in Environmental governance

Right to Information
Principle 10 of Agenda 21 of Rio Declaration on Environment and Development
underlined the importance of access to information in managing environmental issues:
..At the national level, each individual shall have appropriate
access to information concerning the environment that is held by public
authorities, including information on hazardous materials and activities
in their communities, and the opportunity to participate in decisionmaking processes. States shall facilitate and encourage public awareness
and participation by making information widely available. Effective
access to judicial and administrative proceedings, including redress and
remedy, shall be provided...
The government of India has taken a bold step in the direction of ensuring access to
information through Right to Information Act (RTI). Despite certain weaknesses, the
bill has been celebrated as a major step towards ensuring accountability of people in
government to those supposed to be governed.35
1. A strong and independent information commission as an appellate
authority, both at the central and state level, with the power to impose
penalties. Penalties, including a fine for each day of delay in providing
information, and fines and departmental action for a host of other
violations, include refusal to accept a request for information, the giving
of false information and the destruction of information.
2. Applicability of the Act to the Central and state governments, and to local
bodies.
3. Suo moto disclosure of various categories of information.

35

MKSS (2005): MKSS on new Right to Information Act. Circulated on Jivika Listserv
(jivika@yahoogroups.com)

22 Submitted by: Mohd Adil

Role of Judiciary in Environmental governance

In particular, following provisions of the Act will facilitate environmental

governance:36

"Right to Information" also includes the right to- (i) inspection of work,
documents, records;

All government agencies to publish within one hundred and twenty days
from the enactment of this Act,(i) the particulars of its organization, functions and duties;
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making process, including
channels of supervision and accountability;
(iv) the norms set by it for the discharge of its functions;

More importantly, the act also prescribes proactive steps to be taken by various
authorities/agencies to disclose by its own initiatives information that may be of
interest to the citizens:
(1) Every public authority shall
(a) maintain all its records duly catalogued and indexed in a manner and form
which facilitates the right to information under this Act and ensure that all records that
are appropriate to be computerized are,

within a reasonable time and subject to

availability of resources, computerized and connected through a network all over the
country on different systems so that access to such records is facilitated;
(b) publish within one hundred and twenty days from the enactment of this
Act,i.

the particulars of its organization, functions and duties;

ii.

the powers and duties of its officers and employees;

iii.

the procedure followed in the decision making process, including channels of

supervision and accountability;

iv.
36

the norms set by it for the discharge of its functions;

www.freedominfo.org, 2005
23 Submitted by: Mohd Adil

Role of Judiciary in Environmental governance

v.

the rules, regulations, instructions, manuals and records, held by it or under its
control or used by its employees for discharging its functions;

vi.

a statement of the categories of documents that are held by it or under its

control;

vii.

the particulars of any arrangement that exists for consultation with, or

representation by, the members of the public in relation to the formulation of its
policy or implementation thereof;

viii.

a statement of the boards, councils, committees and other bodies consisting of

two or more persons constituted as its part or for the purpose of its advise, and
as to whether meetings of those boards, councils, committees and other bodies
are open to the public, or the minutes 'of such meetings are accessible for
public;

ix.
x.

a directory of its officers and employees;

the monthly remuneration received by each of its officers and employees,
including the system of compensation as provided in its regulations;

xi.

the budget allocated to each of its agency, indicating the particulars of all plans,
proposed expenditures and reports on disbursements made;

xii.

the manner of execution of subsidy programs, including the amounts allocated

and the details of beneficiaries of such programs;

xiii.

particulars of recipients of concessions, permits or authorizations granted by it;

xiv.

details in respect of the information, available to or held by it, reduced in an

electronic form;

xv.

the particulars of facilities available to citizens for obtaining information,

including the working hours of a library or reading room, if maintained for
public use;

xvi.

the names, designations and other particulars of the Public Information

Officers; ,

xvii.

such other information as may be prescribed; and thereafter update these

publications every year;
(c) publish all relevant facts while formulating important policies or
24 Submitted by: Mohd Adil

Role of Judiciary in Environmental governance

announcing the decisions which affect public;

(d) provide reasons for its administrative or quasi judicial decisions to affected
persons;
(2) It shall be a constant endeavour of every public authority to take steps in
accordance with the requirements of clause (b) of sub-section (1) to provide as much
information suo-moto to the public at regular intervals through various means of
communications, including internet, so that the public have minimum resort to the use
of this Act to obtain information.
However, availability of information is only the first step in the direction of achieving a
truly democratic governance system, especially in countries such as India where
perspectives on issues vary tremendously from one stakeholder to another.
Strengthening capacities of local governance institutions is one way of translating
information into empowerment.

25 Submitted by: Mohd Adil

Role of Judiciary in Environmental governance

CONCLUSION
Judicial decisions are prone to a less efficacious enforcement in the area of corporate
environmental management. When Courts by way of remedial action prescribe
compensation to be paid, very few corporate bodies actually end up paying the amount.
This is due to the poor enforcement, low inclination and most often, the inability to pay
these enormous sums. Such a situation leaves the people affected helpless, with no
remedy. It also leads to instances of the concerned Government being directed to pay
the compensation in certain cases, such as the Union Carbide. This only means an
additional burden on the taxpayers indirectly. Very often, the errant corporation escapes
with little or no liability. It is also seen that most cases invo1ving environmental
mismanagement by large corporations involve attempts to settle the dispute through
compromises, such as the Bhopal Gas case. There may be instances of inequitable
solutions reached, which only disadvantage the affected parties. Moreover, this cannot
be an advisable precedent as corporations would then manipulate this loophole and
continue their pollution of the environment. In addition to the practical inability of
enforcement, the judiciary often places an over emphasis on the constitutional origins
of the right to environment through Article 21. This approach has the effect of
encouraging the emerging, yet vague, concept to the detriment of more specific
domestic legislations on the point. Moreover, the Court often has to invoke its inherent
power to suit a situation that does not strictly fall under the various legislations. This
26 Submitted by: Mohd Adil

Role of Judiciary in Environmental governance

makes the entire process unpredictable and uncertain. This area of law requires precise
judicial precedents to be laid down, which are capable of checking damage caused by
industrial disasters. It is submitted that the judiciary has a very limited role to play in
the scheme of corporate environmental management. It only seeks to enforce what is
laid down by the Central Government and the various legislations.
However, area of corporate environmental management requires constant innovations
and flexibility to suit the situation. This ability, due to the nature of the judicial function
as a law enforcer, does not lie with the judiciary. There is thus a need to conceive of a
scheme of corporate environmental management in India, which is not entirely
judicially based. It is proposed that the scheme involve codes for industrial activity to
be followed by corporate entities, backed by legislation and checked by the judiciary.

BIBLIOGRAPHY
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1. Boyer, Brook (2001): Institutional Coordination, Multi-stakeholder
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Nations University
2. Gupta, Anil K. and Mohammad Yunus (2004): India and the WSSD (Rio + 10),
Johannesburg: Issues of national concern and international strategies. VOL. 87,
NO. 1, 10 JULY 2004. CURRENT SCIENCE.
3. Harashima, Yohei (2000): Research Note Environmental Governance in
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Environment: Lessons for the UNEO Debate Working Paper No. 05/01
available online at http://www.yale.edu/gegproject/uneo-wp.pdf. Yale
University. Yale Center for Environmental Law & Policy

27 Submitted by: Mohd Adil

Role of Judiciary in Environmental governance

5. MKSS (2005): MKSS on new Right to Information Act. Circulated on Jivika

Listserv (jivika@yahoogroups.com)
6. Mugabe, John And Godber W. Tumushabe (1999): Environmental governance:
Conceptual and emerging issues in H.W.O. Okoth-Ogendo Godber & W.
Tumushabe. Editors (1999). Governing
7. Speth, James Gustave (2002): The Global Environmental Agenda: Origins and
Prospects in Esty, Daniel C. and Maria H. Ivanova, Editors. (2002): Global
Environmental Governance Options & Opportunities. Yale school of forestry &
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1. Antonio Horvath Kiss and others v National Commission for the Environment,
Supreme Court March 19 1997
2. Asociacin Coordinadora de Usuarios, Consumidores y Contribuyentes V.
ENRE - EDESUR, Camara Federal de Apelaciones de La Plata, Sala 2a, July 8,
2003
3. Charan Lal Sahu v Union of India (Bhopal Case II) AIR 1990 Supreme Court
1480
4. Claudia Sampedro y Hctor A. Surez v Ministry of the Environment and
Direction of Stupefacient Substances, Administrative Tribunal of
Cundinamarca, June 13 2003

28 Submitted by: Mohd Adil

Role of Judiciary in Environmental governance

5. Dr Mohiuddin Farooque v Bangladesh, Represented by the Secretary, Ministry

of Irrigation, Water Resources & Flood Control & Ors: 48 DLR 1996, Supreme
Court of Bangladesh
6. Greenpeace Australia Ltd V. Redbank Power Company Pty. Ltd. and Singleton
Council, Land and Environment Court of New South Wales, 86 Lgera 143
(1994)
7. Greenwatch Limited v Attorney General And Uganda Electricity Transmission
Company Ltd, HTC-00-CV-MC-0139 of 2001, High Court of Uganda at
Kampala
8. Joint Stock Company "Okean" Ministry of Environmental Protection and
Nuclear Safety of Ukraine, Case No. 1/47 1997
9. Juan Antonio Oposa and Others V. The Honourable Fulgencio S. Factoran and
another, G.R.No: 101083, Supreme Court of the Philippines
10. International Court of Justice, 1997 General List No. 92, 25 September 1997,
Case Concerning The Gabcikovo-Nagymaros Project
11. Kajing Tubfk & Ors v Ekran BHD & Ors, Originating Summons No. 55 (21
June 1995) High Court Kuala Lumpur
12. Leach V. National Parks And Wildlife Service And Shoalhaven City Council,
Land and Environment Court of New South Wales, 81 Lgera 270 (1993)
13. MC Mehta v Kamal Nath & Ors, Supreme Court of India (1997) Supreme
Court Cases 388
14. MC Mehta v Union of India & Ors, AIR 1988 Supreme Court 1037;
15. MC Mehta v Union of India & Ors, Supreme Court of India, Writ Petition Civil
No 860 of 1991
16. Movement Social de Petit Camp/Valentina v Ministry of the Environment and
Quality of Life, Mauritius Environment Appeal Tribunal (Cause No. 2/94)
17. Ms. Shehla Zia And Others V. Wapda, Human Rights Case No: 15-K of 1992,
Supreme Court
18. Prakash Mani Sharma and others on behalf of Pro Public V. Honorable Prime
Minister Girija Prasad Koirala and others, 312 NRL 1997, Supreme Court of
Nepal
29 Submitted by: Mohd Adil

Role of Judiciary in Environmental governance

19. Rural Litigation and Entitlement Kendera v State of UP, AIR 1988 SC 2187;
20. The Environmental Foundation Limited & Ors v The Attorney General & Ors,
21. Supreme Court of Sri Lanka SC, Application No 128/91
22. Van Huyssteen & Others v Minister of Environmental Affairs & Tourism &
Others 1996 (1) SA 283 (c)
23. Vellore Citizens Welfare Forum V. Union of India, Supreme Court of India, Air
1996 SC 2715

30 Submitted by: Mohd Adil