New Delhi: The question before Indian courts is no longer conservation versus development but how the two can be harmonised and sustained together, Chief Justice of India Surya Kant said Saturday and described the apex court as the banyan tree of environmental justice.
Tracing four decades of the Supreme Court’s environmental jurisprudence, the CJI said there was no single constitutional route to environmental protection and cautioned against copy-paste decisions.
Recently, he said, the apex court has articulated the idea of eco-centric proportionality, postulating that environmental protection must be rigorous yet intelligent enough to engage with the world as it exists.
This notion has advanced a paradigm shift by permitting development solely in conjunction with enforceable conditions, expert oversight, restoration, compensatory afforestation and accountability, the CJI said.
The CJI was addressing the inaugural session of a two-day international conference on the topic ‘The Future of Environment and Climate Dynamics’ organised by the National Green Tribunal (NGT) at the Vigyan Bhavan here. Prime Minister Narendra Modi launched the NGT mobile application at the event.
At present, the question before our courts is no longer conservation versus development, but rather how the two can be harmonised and sustained together, the CJI said
He said an important development is the shift of the movement from environmental rights towards climate-related rights.
He said, The recent Indian jurisprudence on climate has brought this question into sharper constitutional focus by recognising that the adverse effects of climate change can implicate fundamental rights of equality, livelihood, health, and the conditions necessary for the meaningful enjoyment of these rights.
He said the second shift is from examining isolated environmental injury towards understanding cumulative ecological harm.
A river does not experience pollution according to administrative boundaries. A forest does not understand the distinction between one project and another. The atmosphere does not recognise national frontiers; climate adjudication must therefore look beyond the immediate proposal and examine the larger ecological system of which that project forms a part, the CJI said.
He said the challenges immediately ahead will be more demanding, and the energy transition will require new infrastructure, new technologies, and new patterns of land and resources use.
Citing global comparative practices regarding green issues, he cited approaches in Nepal, Sri Lanka, South Africa, Brazil, Chile, the United States and Australia, saying there was no single constitutional route to environmental protection.
Comparative environmental jurisprudence, he said, should not become an exercise in transplantation but rather a global dialogue through enlightened decisions across courts, the CJI said.
Courts around the world have endeavoured to highlight that the environment is not an inert backdrop to human ambition, but a living, breathing protagonist in the story of our shared well-being; each judgment pronounced is a drop that joins the larger stream of global environmental stewardship.
But then the tide of justice cannot flow in isolation. It draws strength from the tributaries of collective will, scientific wisdom and international cooperation. Our course must become the bridge between the sagacity of our ancestors and the aspirations of our descendants, ensuring that the river of progress does not run red with the silt of destruction through the rocky terrains of inaction and indifference, he said.
The CJI described the Constitution as a moral covenant with past, present and future generations, noting that Article 48A directs the state to protect and improve the environment while citizens are duty-bound to safeguard the natural world under Article 51A.
Constitutional text alone, he said, was insufficient.
Yet the words of a Constitution are but seeds; they need the nurturing waters of judicial wisdom to sprout into life, and it is here that the Supreme Court of India has stood tall as the banyan tree of environmental justice, with roots deep in our civilisational ethos and branches sheltering the rights of unseen generations, the CJI said.
He said the apex court, over the decades, championed the idea that progress without preservation is but a mirage that vanishes in the desert of ecological ruin.
Charting the evolution of the court’s approach, the CJI said that in the 1980s the apex court held that a citizen’s right to basic sanitation could not be subordinated to a municipality’s financial constraints. By 1991, the right to a pollution-free environment had been read into Article 21 as a fundamental right, he said.
In 1996, he said, the top court adopted the precautionary principle, which requires the state to act before harm occurs rather than after, and the polluter pays principle, which places the cost of restoration on the party responsible.
That very same year, the doctrine of absolute liability for industrial harm was also enforced. A year thereafter, the public trust doctrine was recognised, holding that our forests rivers, and air are held by the state in trust for the benefit of the public at large, and not owned by it outright, the CJI said.
During the event, NGT Chairperson Justice Prakash Shrivastava said environmental challenges such as climate change, biodiversity loss and pollution do not recognise national boundaries and their impact is often felt most severely by those least responsible for environmental degradation.
Extreme weather events are becoming increasingly consequential. Biodiversity and natural resources are under increasing pressure. Pollution is crossing geographical boundaries, and most importantly, the consequences of environmental degradation are being felt most severely by those who are least responsible for them, he said.
Attorney General R Venkataramani called for moving beyond treaties and declarations to develop stronger global institutional mechanisms for environmental and climate justice, including the possibility of a common, enforceable international environmental justice court.
He said no country could address the challenges of climate change and environmental degradation in isolation and stressed the need for common rules on the use of natural resources, enforcement and prevention of environmental harm.
We do not stop with mere declarations. This conference, I understand, is an endeavour to go beyond declarations, he said.
Other speakers included Bhupender Yadav, Union Minister of Environment, Forest and Climate Change.
The conference brings together eminent judges and judicial representatives from 17 countries, along with participants from the country, including environmental experts, secretaries of various ministries, senior government officials, representatives of state judicial academies, district judges, state legal services authorities and other stakeholders.
It aims to provide a global platform to foster dialogue by connecting environment, development and justice, along with identifying gaps in policy formulation, implementation and enforcement, while promoting environmental awareness, sharing successful practices, strengthening cooperation among institutions and stakeholders, and exchanging judicial, scientific, and policy best practices on critical climate challenges for a sustainable future.
