Author- Seep Gupta | College- Institute of Law, Jiwaji University
The power of the Supreme Court to go beyond its arbitrary and discretional power to solve issues that are unconventional in nature and for social legal issues. This power of the Supreme Court is known as Judicial Activism. It is quite a new phenomenon that was introduced in the mid-’80s in India. As Supreme Court is the largest and apex authority in India, the responsibility of judicial activism lies upon it.
In case of political failure and in the case where executive organs fail to discharge their constitutional and legal duties, it is the power of the court to widen its ambit and to embrace the concept of judicial activism. In this article, we will discuss how judicial activism acted as a panacea for environmental-related issues and in environmental legislation in India.
History of Judicial Activism in India
Although judicial activism is a thing which has been developed recently in the 80s but still it is difficult to trace back its history. Judiciary became an independent and autonomous organ after the commencement of the Government of India Act 1935. From there on we can say that the independent status of the judiciary is one of the aspects and can be termed as the beginning of judicial activism.
There is a number of privileges that the Supreme Court enjoys under the power of judicial activism and in the matters of internal proceedings as well.
After the landmark judgment which was given in the Keshvanand Bharti Vs. Union of India. That basic structure which is considered as the soul of the constitution cannot be altered and amended. The power of the Supreme Court and High Court under the judicial activism of India comes under the basic structure of India which cannot be evolved.
The concept of ‘State’ under judicial activism has broadened its area by successive judicial decisions and now it includes all public and quasi-public authorities as well.
The introduction of the Public Interest Litigation in the late 80s also expands the scope for judicial activism.
Judicial Activism in Environmental Activism
During the mid of 80s judicial activism underwent a plethora of changes and there was a paradigm shift in the environmental legislation which resulted in widening the scope for social justice. The flexibility in the rule of Locus Standi gives its further impetus and widened its ambit.
Earlier, only those people could file a case that is related to them whether directly or indirectly but now any public-spirited citizen or someone who is into Samaritan work can file a Public Interest Litigation under (Article 32) and (Article 226) of Supreme Court and High Court respectively.
Judicial activism in the field of environmental legislation has increased by leaps and bounds. Also, the realization of the right to clean and healthy environment as a fundamental right under Article 21 (Right to Life) of the Indian Constitution gave its further impetus.
The development of the Environment law by the higher judiciary and awareness and separate legislation related to the environment changed the direction of judicial activism. The development of the environmental jurisprudence and amendments and rectification in various subparts of constitutional laws such as in Fundamental Rights, Fundamental Duties, and Directive Principles of State Policies changed the conventional environmental legislation.
In the late 80s, Supreme Court widened its arena to achieve social justice goals by giving special attention towards environmental goals, issues and by creating and changes into many laws by including both national and international principles in it.
The writ jurisdiction is preferred over the conventional method of the suit because it is relatively inexpensive, direct and it offers direct access to the highest authority courts in India i.e. High Courts and Supreme Court. Article 226 and Article 32 of the Indian Constitution have greater significance and proved to be very beneficial in environmental legislation in India.
Various factors have contributed to the growth of environmental legislation in India such as Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) of the Indian Constitution. It provided the regulatory framework for the development of environmental laws in India. A separate framework related to environmental laws including both the national and international principles has made it easy for the general citizens to file their complaints regarding environmental matters.
PIL has contributed a lot to the development of environmental legislation. Through PILs people who are enthusiastic about any specific matter can file a direct complaint in either the High Court or the Supreme Court. It is quite a convenient and inexpensive matter. Through PILs even the oppressed and downtrodden people can get justice.
It is only possible because of Public Interest Litigation that today any person having bona fide interest in the matter can move to the court to compel the authorities to perform its duties and to protect and ensure the social justice to the victims. Now, it is possible to get justice easily irrespective of their economic and social status.
Stockholm Conference which was held in 1972 proved as a boon for environmental legislation. It resulted in the passing of a historical amendment in the Indian Constitution i.e. 42nd Amendment of the Indian Constitution. This amendment led to the insertion of two new articles in Part IV of the Indian Constitution i.e. Article 48A and 51A (g). These articles impose a duty on the state to protect, improve, and to safeguard the environment.
Also, the 42nd Amendment brought a major change as far as from the legislative view. It moved the subject, “Forests” and “Protection of Environment and Wild Life Animals” from State List to Concurrent List. Now both the center and state government can make laws on these subjects.
Courts have used this power of writ jurisdiction to solve many environment-related cases. One of the famous cases was, Bhopal Gas Tragedy in which the court used the principle of absolute liability for the first time under Article 32 of the Indian Constitution.
Landmark case laws in Environmental Legislation
In this case, the Supreme Court highlighted the importance of safeguarding the environment and its protection. The court laid down the foundational stone of the judicial activism related to environmental legislation in this case.
In this case, the Supreme Court recognized the role of the Directive Principle of State policy in the environmental matter especially in the noble light of Articles 48A and 51A(g) of the Indian Constitution.
In this case, it is given that Article 48(A) although it was inserted in part IV of the constitution; this case imposed a duty on the court to treat this article as an obligation and necessity for safeguarding the environment. Judges are under compulsion to treat this Article as par with fundamental rights.
Doon Valley Case
This case is regarded as one of the first landmarks and renowned cases in the history of environmental legislation. In this case, it was the first time that the court interpreted the environmental issue in the light of fundamental rights. This case invoked the golden rule of Article 14, Article 19, and 21 of the Indian Constitution.
Only in this case, the court recognized the very right to a clean, safe and healthy environment under the garb of (Article 21) of the Indian Constitution that includes the right to life and personal dignity. The Public Interest Litigation petition, in this case, was treated as a writ petition under (Article 32) of the Indian Constitution.
In this case, once again it was defined that the right to have a clean and safe environment is an essential part of Article 21 (Right to Life) of the Indian Constitution. Infringement or violation or deprivation of the right to get access to a clean and safe environment can lead to grave consequences. Everyone has the power to directly approach the court and can file a writ petition under (Article 32) or (Article 226) in the Supreme Court and High Court respectively in the Indian Constitution.
In this case, the court gave the verdict that a third party can file for a writ petition on behalf of the aggrieved party in case the aggrieved party is disabled or is unable because of financial and any other reason. Anyone without having a personal interest in the matter can now directly seek relief in the court without having many complications.
In the conclusion, we can conclude that judicial activism developed slowly in terms of environmental matters and it played a crucial role in the development and growth of separate environmental legislation or interface as in India. Environmental jurisprudence has now outshined as a separate field in today’s times.
 4 May, 1989
 6 March, 1992
 AIR 
 AIR  AP 171
 AIR  SC 652
 AIR  SC 420
  (2) S.C.C. 253
- Amit Singh, ‘Judicial Activism on Environment in India’ (2014) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2383144 accessed 26 September 2020
- Rohan Bagai, ‘Judicial Activism and Environmental Jurisprudence in India’ http://www.legalserviceindia.com/articles/jjj.htm accessed 26 September
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