The Right to Environmental Protection in India: Many a Slip between the Cup and the Lip?

Review of European Community & International Environmental Law, 17 December 2007

India is one of the first jurisdictions to have embraced an environmental right, and ‘fostered an extensive and innovative jurisprudence’ on it. The Indian Supreme Court has held the principles of precaution, polluter pays and inter-generational equity as well as the public trust doctrine as integral to the corpus of Indian law. There is, however, many a slip between the cup and the lip, and this article explores some of these slips in detail. It argues that the constitutionally guaranteed environmental right is poorly defined, and therefore offers little guidance in making difficult judgments central to an exercise of this right. After an analysis of relevant case law, it finds that at least some of the principles intended to guide the actualization of the environmental right do little more than create a smokescreen, which renders application and implementation difficult, and obfuscates the hard questions. It also argues that the judicial discretion available to judges in public interest environmental litigation, in combination with the proliferation of imprecise rights, allows the judiciary's preferences for certain rights and certain modes of argumentation to prevail. It concludes however that, notwithstanding these concerns, the Indian Supreme Court deserves credit for having delivered a vast number of environmentally sensitive decisions, and for its willingness to embrace innovative and progressive conceptual tools in the service of environmental protection.