ENVIRONMENTAL JUSTICE IN INDIA: The manifestation of neo-dharmic jurisprudence in postmodern public law by C . M . Abraham Thesis submitted for the degree of Doctor of Philosophy Department of Law School of Oriental and African Studies University of London May 1995 ProQuest Number: 11010620 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010620 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 ABSTRACT Within the last two decades, India has not only enacted specific legislation on environmental protection but has also virtually created a new fundamental right to a clean environment in the Constitution. The models and methods adopted in the Indian context appear, at first sight, similar to those in other common law systems. Yet, there are many subtle differences which have changed the structure and content of legal development in India. Indian environmental jurisprudence brings out the unique characteristics of a new legal order which has been gradually established in India. The distinguishing nature of this jurisprudence, as this thesis shows in detail, has three interconnected elements. First, the nature of the new Indian constitutional law regime accords greater importance to public concerns than protecting private interests. Current Indian jurisprudence shows an increased assertion of public accountability by enlarging the domain of public law. This has created new dimensions of justice based on a new public law rationale which reacts constructively to established common law models. Secondly, this jurisprudential development reflects certain aspects of Indian legal culture, through implicit and explicit reliance on autochthonous values and concepts 2 of law, encapsulated in the Indian juristic postulate of dharma. The new developments reflect distinct elements of Indian dharmic legal culture, which are markedly different from common law postulates evolved out of an individualistic, property-based private law culture. Thirdly, the emerging Indian environmental jurisprudence bears testimony to the activist role of the Indian judiciary which has also had a significant impact in many areas other than environmental law. In short, the development of environmental jurisprudence in India manifests neo-dharmic jurisprudence in postmodern public law. It accommodates ideas currently voiced by experts around the world for protecting the environment, in forms modified by the legal culture of India. 3 ACKNOWLEDGEMENTS This thesis is not a mere product of the years spent in London, particularly at SOAS as a research student, but the fruit of a seed planted nearly a decade ago, in a little known corner of the world, the state of Kerala in India. Within this decade several personalities have helped me nurture this tender jurisprudential sapling by developing my views and thoughts on the subject in many ways. To begin with, Dr. Leelakrishnan at Cochin University in Kerala, as a pioneering scout, led me into this then unchartered territory when I was an LL.M. student under his guidance. Dr. Armin Rosencranz, then a Visiting Professor at Cochin, put me into the international scene with the publication of our article in the Columbia Journal of Environmental Law. But most of all, the unique personality whose perception about law and society had the greatest impact on my juridical thinking is Justice V.R. Krishna Iyer. As young Advocates at the Kerala High Court, my wife and I were closely associated with him in some of his activities, to render access to justice at the grass-roots level, in which he engaged himself on his retirement from the Supreme Court of India. I acknowledge my sincere thanks to Dr. Werner Menski, who, as my supervisor at SOAS, guided me with many 4 attributes of a venerable postmodern Hindu by often making the task of completing this thesis quite challenging. I also thank Mr. Michael Palmer at SOAS for his comments after reading through the final draft of the whole thesis. I also acknowledge my thanks to my wife Sushila, for helping me cope with many tribulations in life during this period. Last, but not the least, our little son Matthew deserves thanks, too, for patiently yearning for his dad to finish his Ph.D. 5 TABLE OF CONTENTS Page Abstract 2 Acknowledgements 4 Table of contents 6 Chapter 1 Introduction 9 1.1 The focus of the study 9 1.2 The complexity of the present Indian scenario 13 1.3 The structure of the thesis 19 Notes to chapter 1 27 Chapter 2 The constitutional foundations of Indian environmental jurisprudence 34 2.1 The significance of the aims and ideals of the Constitution 35 2.2 The importance of the Directive Principles of State Policy 41 2.3 The evolution of the Indian public law regime 50 2.4 The extraordinary remedial powers and their modifications 62 2.5 The effect of social action litigation 67 2.6 The societal role of the Indian judiciary 71 Notes to chapter 2 77 6 Chapter 3 Public nuisance and Indian environmental jurisprudence: from common law foundations to public law models 87 3.1 Public nuisance and the common law foundations in India 88 3.2 Public nuisance under the Indian Penal Code 95 3.3 Public nuisance under the criminal and civil procedural codes in India 104 3.4 From a common law to a public law rationale for public nuisance in India 110 Notes to chapter 3 128 Chapter 4 The regulatory framework of Indian environmental statutes 138 4.1 The nature of environmental regulation 141 4.2 Evaluation of the Water Act, 1974 and the Air Act, 1981 144 4.3 Evaluation of the Environment (Protection) Act, 1986 150 4.4 The permeation of the public law rationale in Indian environmental regulation 155 4.5 The evolving Indian legal ideology on environmental regulation 162 Notes to chapter 4 167 Chapter 5 Indian legal culture and environmental jurisprudence 174 5.1 Legal systems and legal cultures 175 5.2 Dharma and its dynamics 188 7 5.3 The nature of Indian dharmic culture 191 5.4 Dharma and contemporary Indian jurisprudence 197 5.5 Indian tradition and environmentalism 206 Notes to chapter 5 220 Chapter 6 The jurisprudence on Indian environmental law 234 6.1 The juridical rationale of Ratlam 235 6.2 The juristic principles of the Mehta cases 241 6.3 The jurisprudence of 'justice without law' in Bhopal 257 6.4 The contours of Indian environmental jurisprudence 2 68 Notes to chapter 6 289 Chapter 7 Conclusion: The neo-dharmic Indian environmental jurisprudence 298 Notes to chapter 7 313 Abbreviations 315 Table of cases 316 Table of statutes 325 Bibliography 327 CHAPTER 1 INTRODUCTION 1.1 The focus of the study The development of environmental jurisprudence in India may appear, at first sight, similar to what we see in other common law countries. Yet, a closer analysis reveals that India has been developing a form of environmental jurisprudence which is significantly different from other common law systems. In fact, Indian environmental jurisprudence brings out the unique characteristics of the new legal order which has been gradually established in India during the late 197 0s and throughout the 1980s and early 1990s. India not only enacted various specific laws to control environmental pollution, but has also incorporated significant provisions for the protection of the environment into its Constitution.1 Within the last two decades, the development of environmental jurisprudence in India, following these constitutional law changes, has been remarkable in the sense that it has led to the virtual creation of a fundamental right to a clean environment in Indian law. This forms part of the public law regime established by the Constitution and appears to be based not only on modern concepts of fundamental human rights but also on indigenous notions of social justice, constituting a 9 unique human rights approach adopted through affirmative action.2 The main aim of this thesis is to bring out the distinct nature of this new Indian environmental jurisprudence by analysing its development within a broader constitutional and jurisprudential framework. In fact, the emerging Indian environmental jurisprudence has relied on three interconnected elements. First, it manifests the new Indian constitutional law rationale which now clearly accords importance to public concerns rather than to protecting private interests. Secondly, it reflects certain aspects of Indian legal culture through implicit and explicit reliance on autochthonous values based on ancient, pre-colonial indigenous notions and concepts of law. Thirdly, it bears testimony to the uniquely activist role of the higher Indian judiciary in promoting this new rationale. These three interconnected elements characterise the manner and approach adopted in the recent development of Indian environmental jurisprudence. The major purpose of the present thesis is to analyse this recent development and to show how Indian environmental jurisprudence functions not as an adjunct to the common law systems, but as an independent and yet interconnected mechanism for the legal protection of the environment. The analysis