Constitutionally Shackled: The Story of Environmental Jurisprudence in India

Abstract

This paper evaluates the development of environmental jurisprudence in India to make the argument that the primary pursuit of Constitutional remedies in the case of environmental harms by the appellate Courts in India has impeded the development of other statutory remedies. The poor performance of India and especially urban India on the Environmental Performance Index is evidence of law’s failure to fashion accessible and robust remedies for addressing environmental harms. I discuss three cases which are the milestones in development of environmental jurisprudence in India. In the Oleum Gas Leak case the Supreme Court fashioned the principle of absolute liability for environmental harms, the Vellore Citizen’s Welfare Forum case is one of the largest application of polluter’s pays principle (PPP) in terms of environmental compensation claims and finally, the Godavarman case is a continuing mandamus which is arguably the longest running environmental case in domestic Courts in India (and probably in the world). Each of these case studies illustrate that remedies have to be made accessible to the people and evolved in much greater consultation with stakeholders rather than devised suo moto by the Courts in a top down fashion and environmental harms cannot always be rendered commensurate by collection of monies. These cases highlight the inadequacy of current approaches to address the challenges of global environmental change. The challenge of the Anthropocene provides an opportune moment to revisit law’s failures and draw inspiration in fashioning new remedies and institutional collaborations which address this challenge.