The Indian courts have successfully adopted specific environmental law principles from international environmental law jurisprudence and have combined a liberal view towards ensuring social justice and the protection of human rights. These principles have been incorporated in the Indian environmental jurisprudence and play a key role in decisions of judges even when not explicitly mentioned in the concerned statute. The principles of Indian environmental law are resident in the judicial interpretation of laws and the Constitution, and encompass several internationally recognized principles, thereby providing some semblance of consistency between domestic and global environmental standards.

1. Precautionary Principle:

A new principle for guiding human activities, to prevent harm to the environment and to human health, has been emerging during the past 10 years. It is called the “principle of  precautionary action” or the “precautionary principle” in short. This principle is controversial and its definition varies in terms of viewpoint. Environmentalists and consumer advocacy organizations that demand bans and restrictions on industrial practices or products would want policy-makers to take no action unless they would do no harm. States and advocates of economic development argue that the lack of full certainty is not a justification for preventing an action that might be harmful.

In India, for the first time in Vellore Citizens Welfare Forum v. Union of India , the Supreme Court explicitly recognized the precautionary principle. as a principle of Indian environmental law. In S. Jagannath v Union of India (Shrimp Culture Case), the Supreme Court Bench headed by Justice Kuldip Singh required the authority to deal with the situation created by the shrimp industry and issued remedial directions consistent with the precautionary and polluter pays principles. In A.P. Pollution Control Board v Prof M.V. Nayudu, the Court drew out the development of the precautionary principle in clear terms.

In the Narmada Bachao Andolan v Union of India, the Court explained that:

When there is a state of uncertainty due to the lack of data or material about the extent of damage or pollution likely to be caused, then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution.. Refusing to apply the “precautionary principle” used in cases dealing with inherently polluting activities such as heavy industries, the Court accepted the contention of the respondents that the project would have a positive impact by arresting the ecological degradation presently taking place in the drought-prone areas of Gujarat and Rajasthan, leading to sustainable agriculture and spread of green cover. The generation of hydropower would avoid the air pollution that would otherwise take place by thermal generation.

The movement towards adopting the precautionary principle has definitely widened the scope of corporate accountability, but the interpretation taken by the court mitigates the relevance and incorporation of this principle in Indian Jurisprudence.

2. The .Polluter Pays. Principle:

The Supreme Court with the introduction of the principle of absolute liability in M.C Mehta v Union of India calculates environmental damages not on the basis of a claim put forward by either party, but through an examination of the situation by the Court, keeping in mind factors such as the deterrent nature of the award. . This rule has been endorsed in Indian Council for Enviro-Legal action v Union of India and Vellore Citizens welfare Forum v Union of India. However, the Supreme Court held recently that the power under Article 32 to award damages, or even exemplary damages to compensate environmental harm, would not extend to the levy of a pollution fine.

3. Sustainable Development and Inter-generational Equity:

In Narmada Bachao Andolan v. Union of India43 it was observed that: Sustainable

development means what type or extent of development can take place, which can be sustained by nature/ecology with or without mitigation.. Earlier in the Vellore Citizens Welfare forum v Union of India , the traditional concept that development and ecology were opposed to each other was rejected and sustainable development was adopted. In the Taj Trapezium case this principle was accepted and again it was said that development of industry is essential for the economy of the country but at the same time the environment and ecosystem has to be protected.

In State of Himachal Pradesh v. Ganesh Wood Products, the Supreme Court invalidated forest-based industry, recognizing the principle of inter-generational equity as being central to the conservation of forest resources and sustainable development. In the CRZNotification case 46 the courts carried forward the concern for sustainable development by expressing its concern at the adverse ecological effects, which will have to be borne by future generations.

4. Public Trust Doctrine:

The  Public  Trust  Doctrine,  evolved in M.C. Mehta  v.  Kamal Nath,  states  that  certain common  properties  such  as  rivers,  forests,  seashores  and  the  air  were  held  by  Government  in  Trusteeship  for  the  free  and  unimpeded  use  of  the  general public. Granting lease to a motel located at the bank of the River Beas  would interfere with the natural flow of the water and that the State Government had  breached  the  public  trust  doctrine. The Supreme Court enunciated Professor

Joseph Saxs doctrine of public trust in this case to further justify and perhaps extract state initiative to conserve natural resources, held that the state, as a trustee of all natural resources, was under a legal duty to protect them; and that the resources were meant for public use and could not be transferred to private ownership. This doctrine was further reiterated in M.I Builders Pvt Ltd v Radhey Shyam Sahu.

Section 14 of The Hindu Succession Act, 1956 states that,

(1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as streedhan immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Under this Section , any property acquired by a Hindu female except that which is covered by sub-section 2 before the Act came into force will became her absolute property and any property acquired by a Hindu female except that which covered by the commencement of Act will be her absolute property.

The above stated changes could be seen while going through the observation of courts at different periods:-

In Janaki v. Narayana Swami,  Privy Council observed regarding women’s estate as “her right is of the nature of right of property, her position is that of owner; her powers in tat character are, limited…So long as she is alive , no one has vested interest in succession.”

In another case,  Kalawati v. Suraj, SC stated that in the context of section 14 “ ‘women’ does not mean any woman , but that woman who is the owner of woman’s estate. If the holder of woman’s estate had alienated the estate to a woman, that woman is not the woman whose estate is enlarged to full estate.”

“The effect of rule laid down in the Section 14 of The Hindu Succession Act, 1956 is to abrogate the stringent provisions against the proprietary rights of a female which are often regarded as evidence of her perpetual tutelage and to recognize her status as independent and absolute owner of property.”

Before the enactment of The Hindu Succession Act, 1956, Hindu women has streedhan as:-

(a)Absolute property and

(b) Limited estate.

When the constitutionality of the Act has been challenged and SC has observed that the Act has the object of enhancing women’s limited estate concept regarding property into absolute interest. It is within the spirit of court of India. Hence it is not violative of any fundamental rights especially Art.14, 15(1) of the Constitution of India.

S.14 has been given retrospective effect. But this Section has no application for those who has already inherited and alienated the property before the Act came into force. In Anandibhai v. Sundarabhai , High Court has been observed as “the expression ‘any property possessed by a female Hindu’ in Section 14 means ‘any property owned by a female Hindu’ at the date of the commencement of the Act, and, these words are prospective in their application. Any property ‘acquired before’ the commencement of the act shall be the absolute property. The expression ‘whether acquired before or after the commencement of this act’ shows that section is operative retrospectively.

There are two conditions to be fulfilled for the application of Section 14 of The Hindu Succession Act, 1956:

Ø Ownership of the property must vest in her, and

Ø She must be in the possession of the Estate when the Act came into force.

Supreme Courts and High courts have given wider connotations for the term possession. According to their observation, it can be in the form of actual and constructive possession. In Santosh v. Saraswathi, a question has been raised regarding the possession of property of female Hindu and Court held the view that where property was given to the woman by way of maintenance over which she had a right, her possession was accepted, it became her absolute property. Even when the property is in the possession of a trespasser, it has been held that she is in constructive possession.

The Golden Triangle of the Indian Constitution – Article 14, Article 19 and Article 21 – has been invoked time and again for environmental protection. The High Courts and Supreme Court of India have read the right to a wholesome environment as a part of the right to life guaranteed in Article 21 of the Constitution of India.

In the Dehradun Quarrying Case, though the orders did not articulate the fundamental right to a clean and healthy environment, the petition was treated as a writ under Article 32, which implied that the court was seeing this right in the light of a fundamental right. The Supreme Court explained the basis of this jurisdiction in the later case of Subhash Kumar v State of Bihar where the court held that the right to life is a fundamental right under Article 21 of the Constitution and it includes right of enjoyment of pollution free water, air for full enjoyment of life. and that .if anything endangers or impairs the quality of life, in derogation of laws, a citizen has a right to have a recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.. This concept has been furthered by the Supreme Court and various High Courts decisions worded differently by concretising the idea of right to a clean and healthy environment as a part of fundamental rights.

The other integral part of right to life is right to livelihood as enumerated in the Olga Tellis Case, which is again a judicial enlargement of the right to life envisaged under Article 21 of the Indian Constitution. In Olga Tellis the Court looking at the limitation of the Indian State said that to deprive a person of his right to livelihood would mean depriving him of his life. The State may not by affirmative action be compellable to provide adequate means of livelihood or work to the citizens but any person who is deprived of his right to livelihood by law can challenge the deprivation as offending the right to life conferred by Article 21. Many environmentalists think that the right to livelihood could be asserted to prevent environmentally disruptive projects that threaten to uproot tribal people and villagers for depriving their right to livelihood. The recent agitation by the farmers of Singur and Nandigram in West Bengal and Narmada Bachao Andolans (NBA) campaign against the Sardar Sarovar Dam can be understood in this perspective. However, industries see a strict environmental regime at loggerheads with the right to livelihood and clean/healthy environment of the citizens. The argument forwarded by the industry interests can be rebutted on the grounds that right to clean environment and right to livelihood are complementary rather than contradictory. If all industries follow the environmental standards, then the price of products will include all the external costs which would have to be borne by the consumers. Nevertheless, even this alternative can be questioned in a third world country like India where most people are unable to afford costlier products.

Article 14 can be invoked to challenge government sanctions for projects with high environmental impact, where permissions are arbitrarily granted without adequate consideration, for example, of their environmental impacts. Article 19(1) (g) provides that all citizens shall have the right to practice any profession, or to carry on any occupation, trade or business but with reasonable restrictions which may be placed in the interest of the general public as provided within section 19 sub clause (6), which might include total prohibition. Accordingly, in cases involving polluting industrial units, the courts face the task of balancing the environmental imperative with the right to carry on any occupation/trade or business.