7 min readAug 14, 2026 06:20 AM IST
First published on: Aug 14, 2026 at 06:20 AM IST
In the early years of Indian Independence, there was no precise environmental policy. The Constitution of India had a few provisions regarding the environment, though the word “environment” was not expressly mentioned.
In 1976, Parliament drew upon the commitment made by India at the UN Conference on Human Environment held at Stockholm. The views expressed at the Stockholm Conference form the core of the environmental philosophy of India that has found expression in various statutes and policy pronouncements. These provisions were inserted in the Constitution by the Constitution (forty-second amendment) Act, 1976 (the Amendment Act), which included Article 48A and Article 51A (g).
Article 48A is a directive principle of state policy. It advises the state that while framing laws or executing policy decisions, it should endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51A is a separate provision under Part IVA providing for fundamental duties of citizens. It says that it shall be the duty of every citizen to protect and improve the natural environment.
The Amendment Act introduced a host of provisions, starting from amendments to the Preamble. Some of its provisions became highly controversial, both substantively and in the political and constitutional context as internal Emergency was then in force. Shanti Bhushan, one of India’s most prominent lawyers, became the law minister when a new government came to power in 1977. There was clamour all around that all the amendments should be removed lock, stock and barrel. It is to his eternal credit that, notwithstanding his sharp political disagreement with the outgoing PM and despite overwhelming public demand, he did not touch many of the provisions.
Though we had the statutory framework before and after the Stockholm Conference, it is the Bhopal gas leak tragedy of 1984 that really galvanised the Supreme Court into action. In Union Carbide vs Union of India, the Supreme Court developed the doctrine of absolute liability. This is based on the principle that when an enterprise involves inherently dangerous activity and harm results to anybody because of a mishap relatable to the enterprise or activity, the enterprise would be obligated to repay each one of the injured or affected individuals. The polluter pays principle was introduced by the Rio Summit of 1982 and was applied for the first time in India in the case of Indian Council for Enviro-Legal Action Vs. Union of India.
In the case of Vellore Citizens’ Welfare Forum vs Union of India, the Supreme Court declared that the precautionary principle includes three major conditions: the state must anticipate, prevent and attack the cause of environmental degradation. It is a preventive principle based on precaution.
In my dissenting judgment in Confederation of Real Estate Developers of India (CREDAI) vs Vanashakti, which reviewed the original Vanashakti judgment, I have said that the precautionary principle is the cornerstone of environmental jurisprudence. Polluter pays is only a principle of reparation. In other words, if at all there has to be a grading of the environmental principles, precautionary principle has to be placed above the principle of polluter pays.
The principle of sustainable development means that the state must make efforts to maintain a balance between the environment and development. In Vellore Citizens’ Welfare Forum, the Supreme Court held that the precautionary principle and polluter pays principle are essential features of sustainable development. Sustainable development has come to be accepted as a part of customary international law.
In the case of M.C. Mehta vs Kamal Nath, famously known as the Span Motel case, the Supreme Court developed the concept of the public trust doctrine. While Span Motel had to bear the cost of compensation and had to face penalties under the polluter pays principle, it was the Himachal Pradesh government which was pulled up for breaching public trust. The Supreme Court also emphasised the principle of inter-generational equity, holding that the present generation has a duty to protect the environment for future generations. From these judgments, and there are many more, we can conclude that if Indian environmental jurisprudence has a parent, it is the Supreme Court. It has nurtured environmental law from its infancy. But having said that, I ask myself: Today, do these decisions look very distant?
My former colleague in the Bombay High Court, Justice Gautam Patel, has analysed Supreme Court judgments dealing with the environment in an article titled ‘Consistently Inconsistent: Environmental Law and the Supreme Court’. Justice Patel finds that by and large, the Supreme Court has supported the environmental cause raised by non-governmental organisations. It has not shown the same degree of support to cases challenging infrastructure projects. Justice Patel says it is in precisely this area that an intervention of the Supreme Court is vital, and yet it is here that we find a reluctance to come down on the side of the environmentalists. He says the jurisprudential inconsistency is apparent when one sets these decisions against the principles that the Supreme Court itself repeatedly enunciates in the broadest possible terms. It is that consistent inconsistency that exacerbates the threats to the environment.
Is there any conflict between environment and development? The answer, according to me, is an emphatic no. Three decades ago, the Supreme Court had observed in the Vellore Citizens case that the traditional concept that development and ecology are opposed to each other is no longer acceptable. In my Vanashakti review judgment, I have said that it is unfortunate that a false narrative is being created pitting environment against development. Both are part of the constitutional construct of sustainable development.
When a conscientious citizen approaches the Court with a grievance that a particular project is in breach of environmental norms, what should be the approach of the court? Should the Court throw out the challenge at the threshold by asking aloud, almost posing a leading question to itself, whether any development project in India has gone unchallenged? It is true that there are many busybodies who file frivolous petitions. However, such attempts have been deprecated by the courts, but that cannot be the reason to paint all challengers with the same brush. There are committed environmentalists in our country who continue to espouse the cause of the environment. Where would they go if the doors of the courts are closed? According to me, that cannot be the approach of a constitutional court. Instead, the Court should ask: Has the project complied with the environmental norms? The Court should assure itself and citizens that all projects, big or small, infrastructure or otherwise, should comply with the environmental norms.
The writer is a Supreme Court Justice.
Edited excerpts from a speech he delivered on August 8 at Vivekananda Kendra, Guwahati
The Court should assure itself and citizens that all projects, big or small, infrastructure or otherwise, should comply with the environmental norms.(Illustration: C R Sasikumar/File) 
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