Can the Judiciary Manage the Environment? : A Case Study of Judicial Activism in India

In the late 1990s, the Indian Supreme Court issued a series of orders intended to improve the environmental conditions in Delhi, the best known of which mandated the conversion of the entire fleet of diesel-powered buses and auto-rickshaws to compressed natural gas. This judgement was a response to a public interest lawsuit filed in 1985 by the Indian lawyer M. C. Metha, charging the Indian government for the failure to fulfil its fundamental constitutional obligation of protecting Delhi s environment. Due to an active civil society and a resolute Supreme Court that forced the government to implement the environmental policies, the pollution level in Delhi was radically reduced. The Delhi order was not the first of its kind. As legally established, the state is obliged to ensure that the objectives set under the Constitution are met, and the executive shall devise suitable measures and provide machinery for the enforcement of these laws. Many enforcement agencies have, however, failed to discharge their obligations under environmental law. As a reaction to their slack performance, the Supreme Court has come to play a pivotal role in directing the executive to perform their statutory duties. In addition to enforcing the rule of law, the Court has increasingly taken the job of making regulations and sorting out guidelines. This new judicial role is the result of several reforms of the traditional judicial procedures. Most importantly, the rules governing standing have been relaxed. Although not aggrieved parties, environmentally conscious individuals may now apply directly to the Court on behalf of a group of people whose constitutional rights are violated. This new act of bringing about lawsuits in order to vindicate public rights is called public interest litigation (PIL). By assuming this new, pro-active, role the judiciary has taken important steps towards making the Constitution a living reality for Indians, and largely advanced the protection of Indian people s fundamental rights. Yet, while many environmental advocates welcome the strong stance of the Court, there may also be hidden costs to such judicial interventions. The departure from the mould of adversarial litigation has therefore raised questions about the limits of judicial action, and brought about fear of judicial excess. The main purpose of this thesis is to investigate the role of the Indian Supreme Court in addressing environmental problems. Although my case focus has been Delhi, my attempt is also to examine the more general effects of the recent pattern of PILs and judge-driven implementation of environmental law. I seek to explore the potentials and limitations of PIL as a means to fulfil the fundamental environmental rights laid down in the Indian Constitution. I question, moreover, the impacts of this trend of judicial creation and implementation of regulatory policy on future governance structures and environmental regulation, and argue that PIL, although holding the potential to be an effective mechanism for bringing and maintaining social environmental rights, cannot be a panacea for all fundamental rights violations. For India to achieve sustainable environmental improvements the implementation problem should be struck at its root. Rather than the main avenue for bringing about environmental changes, PIL should complement efforts to strengthen the executive machiner