Environmental Jurisprudence in India: From the Bhopal Gas Tragedy to Recent Climate Change Litigations

Author:  Juveriya Kazmi , Quantum University, Roorkee

Environmental jurisprudence in India, no doubt, has seen the sea change after the Bhopal Gas Tragedy of 1984, which threw environmental issues to the forefront of Indian law. The biggest industrial disaster in world history exposed the cracks in the environmental and legal framework of India, resulting in legislation waves, judicial activism, and PILs. Tracing how environmental law in India has evolved from the Bhopal Gas Tragedy to climate change litigations today, with landmark cases such as the Ganga Pollution Case or through the National Green Tribunal's role. The article also involves discussing difficulties that may be present in the implementation of environmental legislation, this falls to the fore in terms of the future of environmental jurisprudence in changing environmental conditions like those set in motion by climate change.

Environmental Law, Bhopal Gas Tragedy, National Green Tribunal, Climate Change Litigation, India, Environmental Jurisprudence, Public Interest Litigation

Environmental jurisprudence in India was up to that point still in a developing stage prior to the Bhopal Gas Tragedy of 1984. This tragic incident involved thousands of deaths and potential long-term health impacts and exposed shortcomings in India’s legal and regulatory setting for protecting the environment. It was a landmark that helped bring about significant reforms in the environmental legislation as well as judicial intervention. The Supreme Court of India and other courts began a more proactive role through PILs - Public Interest Litigations measures to protect the environment. The NGT - National Green Tribunal established in 2010 further strengthened the already sustainable judicial approach towards environmental issues in India. Environmental litigation in India today encompasses challenges such as climate change, among others.

The Paris Agreement and India's National Action Plan on Climate Change (NAPCC) have brought forth a new wave of climate litigation, where courts look at concerns through the legal eyes. This article examines the growth of environmental jurisprudence from the Bhopal Gas Tragedy to current climate change cases with an analysis of some pertinent legal milestones and the challenges India is trying to overcome in implanting the law.

• Historical Context

Environmental issues, in India, remained a peripheral phenomenon before the Bhopal Gas Tragedy. It had not developed wholesome environmental legislation, and the mechanisms to enforce laws were weak. Nevertheless, the seeds were sown for environmental jurisprudence when enactments like the Water (Prevention and Control of Pollution) Act of 1974 and the Air (Prevention and Control of Pollution) Act of 1981 were made. Such legislations, however well intentioned, lacked essence in its operation and were hardly invoked in courts.

It marked a watershed as it brought to the forefront sheer inadequacy of India's regulatory framework. The judiciary took notice of the situation and began playing an active role in shaping environmental law. The Environment Protection Act, 1986 was enacted post the tragedy, forming a cornerstone of environmental law in India. This Act went on to grant sweeping powers to the central government in respect of taking measures for protecting and improving environmental quality.

• Evolution of Environmental Laws

An ever increasing number of environmental litigation emerged through PIL mechanisms in the 1980s and 1990s. The courts gradually enlarged the scope of Article 21 of the Constitution by interpreting it to include, among its rights, the right to a healthy environment in relation to the right to life. Such landmark PILs as MC Mehta cases set precedents for enlarging environmental protections in India. Besides, the judicial activism manifested in these cases helped plug some regulatory enforcement gaps.

It was cases like MC Mehta v. Union of India-Ganga Pollution Case-soon saw courts restrain the de facto powers of the government and where judicial activism finally found a place in the environmental jurisprudence of India. Courts began to invoke doctrines such as "Polluter Pays Principle" and "Precautionary Principle" which later became part of law.

• The National Green Tribunal (NGT)

One of the landmark developments of the last decade in environmental law is the institution of the National Green Tribunal (NGT) in the year 2010. The NGT was established as a special, speedy redressal mechanism to deal with environmental disputes. Armed with the power to settle matters pertaining to environmental protection, the conservation of forests and any other forests, rivers, lakes, wetlands, and wildlife, NGT has handed down pathbreaking judgments and became an indispensable constituent of India’s environment judicial framework.

This article applies a qualitative analysis of primary and secondary legal sources. It applies case laws, statutes, and reports among other scholarly articles on environmental law. The research is based on key judicial pronouncements that have shaped environmental jurisprudence in India. Case study analysis is also used to examine landmark cases from the various dimensions of law, social, and politics. To that effect, the article employs secondary data such as academic literature on climate change litigation for historical background and context of the current developments.

The Bhopal Gas Tragedy 1984 is considered a landmark case in India’s environmental jurisprudence. A leak of methyl isocyanate gas on December 2-3, 1984 from the pesticide plant owned by the Union Carbide India Limited UCIL in Bhopal killed thousands of people. The scale of the disaster also brought glaring weaknesses in India’s environmental laws and the enforcement mechanism to the fore.

• Legal Consequences of Bhopal Disaster

In the face of the disaster, there were several legal and administrative changes. The Indian government passed the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, wherein the state government was given an exclusive right to represent the victims of the disaster exclusively. On a few counts, including the fact that it was unconstitutional-but the Supreme Court upheld it, noting that it was important to ensure claims were processed in an orderly and fair manner.

The tragedy also led to the Environment (Protection) Act, 1986, which became the umbrella legislation for environmental protection in India. The Act provided the central government with significant powers of regulation and control over industries so that no environmental disaster occurred. Thereby, it set the ball rolling for India’s modern regulatory framework for the environment. Furthermore, the Public Liability Insurance Act, 1991 has been enacted to provide instant relief to persons who have been affected by accidents involving hazardous substances.

• Bhopal and the Principle of Absolute Liability

One of the significant legal impacts to be derived from Bhopal was the law of absolute liability. MC Mehta v. Union of India (Oleum Gas Leak Case, 1986) happened with the apex court holding that the principle of absolute liability was established by the argument and conclusion that industries undertaking hazardous operations are subject to an absolute and non-delegable duty not to cause harm to the environment or to the public at large. Absolute liability came to be distinguished from the older rule of strict liability. The new rule barred the traditional pleas of “acts of God” and “contributory negligence” in hazardous industries.

Bhopal Gas Tragedy thus moulded environmental jurisprudence in India by not only enunciating new legal principles like absolute liability but also underlining the necessity of strict enforcement of environmental rules and regulations.

• MC Mehta and Environmental PILs

The involvement of the Supreme Court with issues related to the environment became conspicuous after the Bhopal tragedy. One such noted protagonist of environmental jurisprudence in India was MC Mehta, public interest lawyer who filed several PILs and made Indian environmental law.

The case with which the Supreme Court dealt in the area of Ganga River pollution due to industrial effluents was that of MC Mehta v. Union of India (Ganga Pollution Case, 1985). The court ordered the closure of some tanning units and other polluting industries along the river. It set a very effective precedent-the industries cannot be allowed to continue their activities if they prove dangerous for public health and for the environment. In this case, the "Polluter Pays Principle" came into focus. Here the responsibility was vested with the polluter to bear the cost of cleaning up environmental damage caused.

Significant amongst them is MC Mehta v. Kamal Nath, 1997, whereby Public Trust Doctrine has been resorted to in order to protect the natural resources of the country. It has been held that as a trustee, the government has natural resources and has to use them in an environment-friendly manner for the greater good of the people. This judgment strongly sealed a stop on the diversion of the course of the Beas River to a hotel owned by Kamal Nath, which once again re-emphasized the overall concept of natural resources and sustenance not owned or controlled by private players at the cost of the environment.

• Vellore Citizens Welfare Forum v. Union of India (1996)

The Supreme Court has recognized the Precautionary Principle and the Polluter Pays Principle as the bedrock of Indian environmental law. The case concerned tanneries in Tamil Nadu which were emitting untreated effluents into nearby rivers, thereby harming agriculture and public health. The court held in favour of the petitioners, but keeping in view the belief that the burden of proof lies on the industrial unit to show that its operations are environmentally sustainable.

These, among scores of other cases, highlight how transformative the judiciary has been for environmental law development, filling in gaps in the legislative and executive branches.

India established the National Green Tribunal in 2010 as a significant step in institutionalizing environmental protection within India. An Act of Parliament-the National Green Tribunal Act, 2010-sets up the NGT to make provision for special tribunals for speedy disposal of cases relating to environmental issues. NGT has come out as a powerful tool to govern environmental issues such as air and water pollution, deforestation, and illegal mining.

Landmark NGT Judgments

This was one of the NGT’s landmark cases against the Art of Living Case (Yamuna Floodplain, 2017), in which the tribunal fined the Art of Living Foundation for causing damage to the Yamuna floodplains during one of their large-scale events. The very order of the tribunal reinforced this notion of protecting vulnerable ecosystems from large-scale human interventions.

Recently, in Sterlite Industries Case (2018), NGT closed down the Sterlite Industries copper smelter at Tamil Nadu stating environmental improprieties like emissions of toxic gases and water contamination. In this judgment, NGT showed remarkable commitment towards implementing environmental legislation even against the strong lobbies of industries.

• The Shift Toward Climate-Related Cases

Increasingly, Indian courts are realizing that climate change has a significance under law and its impact on basic rights. Indian courts may accept the fact that climate change and the resultant environmental degradation actually threatened their right to life and liberty as envisaged under Article 21 of the Constitution.

Most notable examples include Sharma v. Minister of Environment, filed in Australia but highly monitored in India where the litigants are asking for accountability from the government due to coal projects that could speed up climate change. Although not an Indian case, it inspired Indian litigants and activists to adapt similar approaches in climate litigation.

• Indian Courts on Climate Change

The Tehri Dam Case and Narmada Bachao Andolan indirectly touched issues of climate since questions like loss of biodiversity, displacement, and changed flow patterns due to big dams were part of these issues. The courts began to take cognisance of the immediate risk of climate change in the equation only very recently. For instance, in Manoj Mishra v. Union of India, the high court of Delhi discussed in some details the diverse environmental impacts of Yamuna River, which have come to light with the changes brought about by climate change in altering the rains pattern and the remedial steps that may be taken to prevent further damage.

However, India has binding international climate commitments under the Paris Agreement. To that effect, it enacted and reviewed responses for matters of emission reduction and sustainable development at the domestic policy and judicial levels. Courts have also emphasized the consideration of effects of climate in rules of urban planning, industrial development, and projects on energy.

Environmental jurisprudence remains strong in the Indian context, while a host of challenges keep haunting the enforcement of environmental laws in India. There is an acute reality of lacuna between the legal provisions and their implementation on the ground. Many progressive judgments related to environmental law find it hard to get implemented because of bureaucratic delay and lack of resources and lobbying from industries.

The pursuit of economic development often runs at odds with environmental considerations. Indeed, the fragile balance between development and sustainable development has continued to be a contentious issue-for instance, especially in large infrastructure cases.

The other notable challenge has to do with public awareness and participation. PILs have been concerned very prominently with environmental rights, but public involvement in environmental decision-making is much narrower. Effective enforcement of environmental laws would lie in the enhancement of community participation and transparency in governing the environment.

Environmental jurisprudence in India could not remain the same even after the Bhopal Gas Tragedy.  It transformed into a robust body of law that deals with an entire gamut of issues concerning the environment. Judicial activism, in the form of PILs, and establishment of the National Green Tribunal Indian courts have played a very significant role in shaping and implementing environment law. Other perennial problems include that policies on environmental protection are imbalanced with those on economic development and there lacks proper implementation of the legal framework.

India, for example, is destined to witness accelerated climatic changes; courts would be expected to come out as the most significant pacesetters in the judicial management of environmental affairs. Indian environmental jurisprudence is well-devised to handle the intricate legal issues which spring forth from environmental degradation and climatic change: the adoption of global environmental principles such as the Polluter Pays Principle, the Precautionary Principle, and the Public Trust Doctrine. These factors would be accompanied in the near future by concerted efforts in legal reform, judicial activism, and public participation to attain environmental justice in India.

1. M.C. Mehta v. Union of India, A.I.R. 1988 S.C. 1037 (India)

2. Bhopal Gas Leak Disaster (Processing of Claims) Act, No. 21 of 1985, India Code (1985).

3.  Environment (Protection) Act, No. 29 of 1986, India Code (1986).

4.  National Green Tribunal Act, No. 19 of 2010, India Code (2010).

5.  Sharma v. Minister of Env’t & Energy, [2021] FCA 560 (Austl.).

6. Public Liability Insurance Act, No. 6 of 1991, India Code (1991).

7. Narmada Bachao Andolan v. Union of India, A.I.R. 2000 S.C. 3751 (India).

8. Vellore Citizens Welfare Forum v. Union of India, A.I.R. 1996 S.C. 2715 (India).

9.  M.C. Mehta v. Kamal Nath, (1997) 1 S.C.C. 388 (India).

10. Sterlite Industries (India) Ltd. V. Union of India, (2013) 4 S.C.C. 575 (India).