Justice Surya Kant at Webinar hosted by CAN Foundation
Justice Surya Kant at Webinar hosted by CAN Foundation

Creative interpretations on environmental law from Indian Judiciary more relevant now in a highly industrialized world: Justice Surya Kant

Justice Surya Kant was on the panel along with Senior Advocate Nidhesh Gupta in a webinar hosted by the CAN Foundation on "Environment & the Economy: Reimagining key concepts & precepts".

Shruti Mahajan

Supreme Court Judge, Justice Surya Kant on Saturday observed that creative interpretations of Environmental law by the Indian Judiciary are more relevant in today's highly industrialized world.

Justice Surya Kant made the observation while on a panel along with Senior Advocate Nidhesh Gupta in a webinar hosted by the CAN Foundation on "Environment & the Economy: Reimagining key concepts & precepts".

In his keynote address, Justice Surya Kant highlighted that the first wave of environmentalism in India came only in the 1970s. In the preceding decades, the subject was dealt with only through intellectual debates.

The decade of the 70s saw the enactment of the Air Act and the Water Act. The year 1973 marked the watershed moment in India's environmentalism when the Chipko movement took place and amassed appeal among the public.

"1973 marked first year when environmentalism was given mass appeal by Chipko movement in contrast to the intellectual debates of previous decades."
Justice Surya Kant

From thereon, the trajectory of Indian jurisprudence and the legal framework with respect to environmental law saw many developments and changes, starting with the 42nd amendment to the Constitution which introduced Articles 48A and 51A(g). These provisions facilitated judicial intervention in environmental matters.

However, with these Constitutional provisions being merely directive principles, they were viewed as not justiciable, Justice Surya Kant said. It was through judicial interpretations that Articles 51A(g) and 41A were read into the Article 21 rights of people in an "innovative" manner, the Judge pointed out.

"Supreme Court judgments show that Courts initially held that Article 48A was not justiciable as it was only a Directive principle. But later Constitutional Courts innovatively started reading Article 48A into Article 21."
Justice Surya Kant

The Courts have, in the past, played a very proactive and constructive role in developing environmental law. The evolution of Public Interest Litigation also had a crucial role in providing a voice to the voiceless and the most marginalised people, Justice Kant appreciated.

"Part of environmental battle was fought through environmental legilsations, the Courts themselves bridged the gap between accessibility and locus and PIL emerged as a proactive platform. The Courts through PIL have removed procedural impediments and allowed representative suits on behalf of the most marginalized and voiceless."

The talk delivered by the Judge would have been incomplete without a discussion on the principle of absolute liability, which he said was a step forward from the principle of strict liability. Justice Kant recalled that Justice Bhagwati, while evolving the principle of absolute liability, had noted that "changes in social structures necessitated updating from the earlier liability regimes."

It was this principle that justice Kant believes brought about the second wave of environmentalism in India, which also saw an acceleration in the judicial and executive response to environmental concerns in the backdrop of the Bhopal gas tragedy of 1984. Justice Kant said,

"Such creative interpretations from the Indian judiciary are more relevant in today's highly industrialized world... We have moved from private claims to regulatory compliances to PIL."
Justice Kant said.

Justice Kant also touched upon the subject of an alternative forum for environmental matters which is the National Green Tribunal (NGT) which has beens et up as an evenue for claiming damages when it comes to encironmental matters. However, the Judge apprehended that the efficacy of the Tribunals may be lacking these days. He said,

"My view is that many tribunals of late are found lacking the attributes of judicial fora like independence from executive or desired judicial expertise."

Senior Advocate Nidhesh Gupta, who was also on the panel with Justice Kant, echoed his thoughts and sought to highlight the importance of drawing a balance between development and sustainability.

Nidhesh Gupta during the Webinar hosted by the CAN Foundation
Nidhesh Gupta during the Webinar hosted by the CAN Foundation

Gupta, during his talk, also raised the concern around the efficacy of NGT and sought to make a case that orders passed by the NGT should be permitted to be appealed against under Article 226 before a High Court.

A remedy under Article 226 should be provided for against orders passed by the Teribunals, Gupta said adding further that this would also reduce a lot of the work from the Supreme Court.

Gupta opined that while the Indian Courts have time and again taken efforts towards strengthening the laws for the protection of the environment, it is executive action that has sought to do away with many of the pre-requisites before undertaking development activities. He said this while citing the example of the latest draft of the Environmental Impact Assessment notification.

Gupta stressed on how the 2020 notification and every aspect of it are in violation of settled laws laid down by the Supreme Court.

The Senior Lawyer also addressed the subject of Corporate Environmental Responsibility which is similar to the Corporate Social responsibility saying that various studies from across the world have shown that people benefit hugely whern they invest in environment.

The session was moderated by Charanya Lakshmikumaran, Partner, Lakshmikumaran and Sridharan (L&S) and Parthsarathi Jha, Associate Partner, Economic Laws Practice.

The Welcome Address was delivered by Prof. (Dr.) Nishtha Jaiswal, Vice-Chancellor, HPNLU, Shimla and the vote of thanks proposed by the CEO of CAN Foundation Siddharth R Gupta.

Watch the Full Session:

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