DR RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
Subject: Environmental law

Final Draft

on

“T N GODAVARMAN THIRUMULPAD v.
UNION OF INDIA”

UNDER THE SUPERVISION OF: SUBMITTED BY:

Assistant Professor (Law) Enrolment No- 150101141

DR RMLNLU, Section- ‘B’

Lucknow Semester-VI

Page 1 of 17
 ACKNOWLEDGMENT:

Firstly, I would like to thank respected Professor Dr. Amandeep Singh for giving me such a

golden opportunity to show my skills and capability through this project. This project is the result

of the extensive ultrapure study, hard work and labour, put into to make it worth reading. It is my

pleasure to be indebted to various people, who directly or indirectly contributed in the

development of this work and who influenced my thinking, behaviour, and acts during the course

of study. Lastly, I would like to thank the almighty and my parents for their moral support and

my friends with whom I shared my day-to-day experience and received lots of

suggestions that improved my quality of work.

Page 2 of 17
Table of Contents

RESEARCH METHODOLOGY 4
SCOPE OF THE STUDY/ LIMITATION OF THE STUDY 4
INTRODUCTION 4
THE GODAVARMAN STORY 6
CENTRAL EMPOWERED COMMITTEE (CEC) 8
COMPENSATORY AFFORESTATION MANAGEMENT AND PLANNING
AGENCY (CAMPA) 9
THE RULING AND THE FEDERAL EDIFICE 12
ALTERNATIVE MEANS TO THE END 14
CONCLUSION 16
BIBLIOGRAPHY 17

Page 3 of 17
RESEARCH METHODOLOGY

The method of research that the researcher will be employing in the project would be
‘Doctrinal Research Method’. The proposed research study will be carried out with the help
of the following strategies:

1. Studying Primary and Secondary Sources (Books, Articles)

2. Library Research

SCOPE OF THE STUDY/ LIMITATION OF THE STUDY

This study was mainly based on the primary data collected from books, legal database and
other E-sources and it primarily focus upon how environmental rights evolved as
fundamental right under Indian constitution scheme through various judicial pronouncements
and thereby filling gaps and created plethora of environmental jurisprudence to guide future
law makers to look into it.

INTRODUCTION

Over the past two decades perhaps no judiciary in the world has devoted so much time and
effort to the protection of the forests as the Supreme Court of India. The judiciary in India has
played a dominant role, especially in issues pertaining to the environment. The unique way in
which the judiciary has brought reforms in environmental jurisprudence has not only earned
it acclamation, but also subjected it to strict criticisms. The reasons for the increasing concern
of Courts in environmental governance are varied and complex. One major reason that has
raised concern about the Court’s governance role is their failure to direct implementing
agencies to discharge Constitutional and Statutory duties. This has prompted civil society
groups and the people to approach the Courts, particularly the Supreme Court for suitable
remedies, to which the court also has responded in a pro-active manner.

Page 4 of 17
The conservation of forests, and the environment at large, has been one of the major concerns
of the judiciary. Despite impressing legislative endeavors, there has been no commensurate
change in the practices of the government and their ministries, with the result being the
incorrigible damage to the environment, and the loss to life and limb in some cases still
unaccounted for. The rampant pollution of major water bodies, widespread illegal mining 1,
extensive mining activities in eco-sensitive area, all continue unabated in the name of
development, resulting in considerable damage to the environment. The ill-conceived
piecemeal legislations and the indifference exhibited by the governmental administrative
branches have forced the Court to break from its procedural shackles, inspiring the society,
prompting it to turn its attention towards the third limb of the governance to further the cause
for environmental protection. From this started the most dynamic phase of the Indian
judiciary. The court not only enlarged the locus standi but read the right to a clean and
healthy environment into right to life. With this, started a flood of litigation invoking the writ
jurisdiction of the court on issues pertaining to the environment.

One such case was filed by Mr. T.N. Godavarman, invoking writ jurisdiction of the Supreme
Court, seeking order to prevent unlawful felling of trees in the country. Consequently,
realizing the state of affairs, the Supreme Court from then on issued numerous orders under
the continuing mandamus, ensuring the protection of environment by the powers vested in it.
It reinterpreted the Forest Conservation Act, 1980, created new institutions, and conferred
additional powers on the existing ones. The court has thus molded a far-reaching and
innovative environmental jurisprudence which no other constitutional court has ever given
shape to. The Indian environmental law, as a result, has in the last two decades seen
considerable maturity and development with most principles constituting its corpus juris,
being the product of astute judicial thinking and imaginative interpretation by the courts.

The enthusiasm of the judiciary has, however, not received appreciation from all quarters and
has been a subject matter of severe criticism and cynicism. “Judicial activism” has been
perceived as a red herring by the judiciary to usurp powers and create hegemony over the
executive and the legislature. The Godavarman case, which has not closed in over 15 years,
makes the critics of the judiciary even more unsympathetic and confirms their suspicion that
through this case it intends to monopolize not only the formation but also the governance of
the forest laws in India. The debate is open ended and the paper seeks to examine both
aspects of the story to come to a fitting conclusion.

1
Ambica Quarry Works v State of Gujarat (1987) 1 SCC 213

Page 5 of 17
THE GODAVARMAN STORY

The case has been accorded special importance due to its manifold contributions towards the
expansion of the forest law in India, its most significant development being the defining of
the term ‘forest’ for the first time in the history of Indian law. The reconstruction of the term
‘forest’ in the Forest Conservation Act, 1980 created a number of complexities that the
Judiciary had not anticipated. The quintessence of the Act is that the approval of the Central
Government must be sought by a user agency for use of forestland for non-forest purposes.
The objective of the Forest Conservation Act, to prevent deforestation and maintain
ecological balance, remained largely unfulfilled until the meaning of the term ‘forest’
remained disputed. Prior to the case, the word ‘forest’ was limited only to government
declared forest, irrespective of the area under the tree cover. Due to this, large areas under
good forest cover were outside the purview of the Forest (Conservation) Act, 1980. The
court's clarification expanded statutory recognition to forests irrespective of nature of
ownership and classification. With the case, the term has been accorded its dictionary
meaning, covering all statutorily recognized forests, whether designated as reserved,
protected or otherwise. The term "forest land", occurring in Section 2 of the act has been held
to also include any area recorded which has created a troublesome situation. The Court failed
to understand the intricate layout of the Indian forests, which are typically dense and occur in
patches. It has, as a consequence, overlooked many of them in the notification process,
thereby ousting them from the purview of the Forest Conservation Act. At the same time,
there were notified forest lands that had given refuge in small regions, to the tribal
communities over a span of many years and were subject to intensive agricultural practices.
Given such a circumstance, it was essential to first take some action in order to assess what
constituted “forest” in the true sense and obliterate the blurred line that put many lives and
settlements at jeopardy. Clearer demarcation of forest boundaries and resettlement of tribal
areas was the step that needed to be taken even before the Supreme Court could order that the
legally notified forests would continue to be within the ambit of the Forest Conservation Act.
In its attempt to judicial activism, while defining the term ‘forest’, the protection of the tribal
rights envisaged by Schedule V and VI of the Constitution of India seems to have been

Page 6 of 17
overlooked by the court. In fact, the court either under statutory provisions or its inherent
powers has justified its actions.

The case has emerged as the largest judicial forum on all aspects of forest management
including definition of forest, working plans, saw mills, dams, mining, infrastructure projects,
use of forest land, encroachment, across the country and is not limited to any specific location
or State. One of the most significant aspects of the ruling in the Godavarman Case has been
the order to maintain a complete record of the trees cut for the purpose of use by the
plantations, and by the states. On the positive side, the Supreme Court placed a complete ban
on the felling of trees but kept in mind the interest of the local people depending on timber
trade. It tried to strike a balance by allowing timber trade and working of wood based
industries subject to certain conditions. In its significant order dated 13.01.1998, the court
looked into the much impending issue of cross border timber trade regulation, keeping in
mind the recurrent problem of timber smuggling. The court ordered handing over of the
seized timber to the concerned state along with the offenders, vehicles and tools for
prosecution. This was a noteworthy step taken towards deterrence of the offenders as the
practice of handing over the seized timber after composition of the offence was put to an
end2.

However, the order was not free from drawbacks and has therefore called upon strict
criticisms. Studies show that with the restrictions placed on trade of timber, the mechanism
devised by the court for safeguarding the local people has not worked to their benefit (Nathan
2000). The cash incomes of the families dependent on such trade fell and they in turn were
forced to reduce their expenses, which ultimately led to lower investment in higher education
and lower standard of living. Although the study has limited scope, it nevertheless shows the
adverse effects the ruling might bring.

The decision had repercussions of such magnitude that it resulted in the moulding of a
generous portion of the forest law in India. Firstly, no forest, National Park or Sanctuary can
be dereserved without the approval of the Supreme Court. Secondly, non-forest activities
were not permitted in any National Park or Sanctuary even if prior approval under the Forest
(Conservation) Act, 1980 had been obtained. Thirdly, an interim order in the year 2000
prohibited the removal of any dead or decaying trees, grasses, driftwood, etc. from any area
comprising a National Park or Sanctuary and directed that if any order to the contrary be
passed by any State government or other authorities, that order shall be stayed. Finally, it
2
S Upadhyay, S Chouhan, and A Vaidya: India’s Forest and the Judiciary: The Godavarman Story New Delhi:
World Wide Fund for Nature, 2009

Page 7 of 17
resulted in the constitution of new authorities, committees and agencies, most significantly
the Central Empowered Committee (CEC) and the Compensatory Afforestation Management
and Planning Agency (CAMPA).

CENTRAL EMPOWERED COMMITTEE (CEC)

The Supreme Court combined the T. N. Godavarman case with another similar writ petition
and widened its span from impeding illegal operations in specific forests into an overhauling
of the nation’s forest governance and management3. Through the first order on December 12,
1996, the Supreme Court of India deferred the felling of trees throughout the nation and
revolutionized drastically the process of licensing and functioning of forest-based industries.
Even as over 2000 interlocutory applications were endorsed by the Court and a plethora of
orders were dealt out, the case trudged along sluggishly with no signs of closure. In its
attempt to unravel the labyrinth it had created for itself, the Supreme Court assumed
administrative and law making powers beyond its jurisdiction. 4 Within no time the judiciary
found itself in a tight spot, dealing with technical administrative issues relating to disposal of
felled timber, timber pricing, licensing of timber industries, felling of shade trees, budgetary
provision for wildlife protection, disposal of infected trees, determination and utilization of
the compensation paid for conversion to non-forest purposes, confidential reports of forest
officers, and even painting of rocks in forests. In order to cope with a situation that the Court
was ill equipped to handle directly, it constituted a Central Empowered Committee (CEC)
under section 3(3) of the Environment (Protection) Act, 1986. It gave sweeping powers to
this committee to dispose of cases and made it answerable to the Supreme Court alone. The
CEC was formally adopted in 2002 through an order by the Ministry of Environment and
Forest which spelled out in clear terms the allegiance of the body. The members of the
Committee could not be removed without leave of the Hon’ble Supreme Court5. The
Committee was to function under the administrative control of the Central Government but
this was ‘subject to the orders of the Hon’ble Supreme Court’6. It had to submit quarterly

3
Environment Awareness Forum v State of Jammu and Kashmir (2001) 10 SCC 90

4
Article 141 of the Constitution of India is explicit in that the role of the Supreme Court of India is to ‘declare’
the law of the land which shall be binding on all Courts within the territory of the country. It does not give
executive hues to the functioning of the Court anywhere

5
Ministry of Environment and Forests Notification, New Delhi, 17th September, 2002. S.O. 1008 (E), 3. It
states that “The members of the Committee are appointed in their personal capacity and shall not be removed
without leave of the Hon’ble Supreme Court”

Page 8 of 17
reports to the Supreme Court instead of the Central Government 7. In addition, using the
complex nature of the case as a pretext, the Court barred the jurisdiction of the lower courts
on it and kept the case open to date under the ‘continuing mandamus’, disposing a large
number of interlocutory applications on a regular basis.

The CEC cannot be declared to be an outright success and it is debatable why so much
energy and effort was expended in the establishment of something that failed to deliver.
While large compensation demands for use of forest land, greater accountability for the
processes adopted in the conversion of forests to non-forest areas, etc. are some of the
accomplishments of the CEC, its drawbacks are equally glaring. The ban has perversely led
to trees being fell for charcoal or firewood, since the ban was only on felling for and
movement of timber. The CEC has somewhere created a hindrance in the free and proficient
working of the Ministry of Environment and Forest and the Forest Advisory Committee. The
justification that may however be proffered in favour of the Supreme Court’s decision of
constituting the CEC may be that given the pitiable condition of the forest governance in the
nation, it had been compelled to take the course it pursued. The forest records were ill
maintained and grants for land were being given rampantly. Under such circumstances the
judiciary was more than willing to play the redeemer and take things in its own hands.
Understandably, where its counterparts had wavered, it had stepped in to fill the lacunae left
by them.

COMPENSATORY AFFORESTATION MANAGEMENT AND

As part of the Interlocutory Application No. 566 of 2000 in the T. N. Godavarman Case, the
judiciary asserted that when an industrial project requires diversion of forest land for non-
forest purposes, the user agency had to seek mandatory clearance from the Ministry of
Environment and Forest (MoEF) for the same. If clearance is granted then compensation
must be paid by the user agency for the loss caused to the forestland and cover. The agency
was required to make the payment of the Net Present Value (NPV) of the diverted land. As a

6
Ministry of Environment and Forests Notification, New Delhi, 17th September, 2002. S.O. 1008 (E), 4. It
states that “Subject to the orders of the Hon’ble Supreme Court, the Committee shall function under the
administrative control of the Central Government in the Ministry of Environment & Forests with headquarters
at Delhi”

7
Ministry of Environment and Forests Notification, New Delhi, 17th September, 2002. S.O. 1008 (E), 7. It
states that “The Committee shall submit quarterly reports to the Hon’ble Supreme Court. It will be liberty to
seek clarifications or modifications needed by it from the Hon’ble Court”

Page 9 of 17
result, in 2004, the Compensatory Afforestation Fund Management and Planning Authority
(CAMPA) was founded for the purpose of supervision of money towards compensatory
afforestation, NPVs, and any other fund recoverable in pursuance of the Court’s order.

This unique approach adopted by the Supreme Court proved to be advantageous in many
respects. It aimed at creating a sense of constraint in the user agency and also brought about
the realization that for the exploitation of nature, a heavy price must be paid. The fund
enabled better forest cover in other areas as the finances were used exclusively for forest
purposes.

However, the scheme did not come without drawbacks. The biggest shortcoming of the entire
scheme was that there was no particular fashion in which the NPV could be formulated and
determined. The Authority failed in its goal of ensuring payment of compensation to a great
extent. The compensation, which was to act as a deterrent to disproportionate industrial
development, seemed to have little potential given the fact that year after year forestland was
being diverted for non-forest purposes indiscriminately. User Agencies, through one
argument or another succeeded in delaying the payment indefinitely or escaped from making
the requisite payment entirely. Most importantly, invaluable forests were pitted against
monetary terms, which is extremely saddening. There are a number of social, religious,
environmental considerations, which can never be compensated through purely fiscal means.
No requirement of planting new trees or making existing forest covers greener is imposed on
the user agencies to date as a result of which they get away by paying a small price for what
is invaluable. This puts the success of the CAMPA regime under scepticism and necessitates
immediate reforms in the scheme devised.

Face-off between the Central Empowered Committee and the Ministry of Environment and
Forest

The Forest Advisory Committee (FAC), instituted by the Ministry of Environment and Forest
(MoEF) had a pivotal role to play in environmental decision making of development in
industrial projects. When a project involved the use of forestland for non-forest purposes, the
proposal was forwarded by the State Forest Department to the FAC, which in turn screened
the application and sought requisite information, subsequently recommending or rejecting the
grant of permission. In 2006, when the term of the FAC concluded, a furor was created over
the unwarranted intervention of the Supreme Court in its reconstitution. The names of the
experts, to be part of the FAC, suggested by the court and the CEC did not receive acquiesce
of the MoEF and there was an impasse on the issue. The gravity of the situation amplified

Page 10 of 17
when the Supreme Court accepted the names of the members submitted by the MoEF but
correspondingly clipped the wings of the FAC meting out an order on 24 th April 2007 stating
that pending the ultimate decision on the issue, in the meanwhile, all clearances that would be
granted by the FAC would be subject to approval by the Supreme Court. The Court would,
before making its decision, consult the CEC in respect of each clearance. Only when the
Court would grant the approval, the matter would be placed before the Central Government
for disposal.

This led to a dual set of authorities whose approval now needed to be taken. Moreover, it
gave leeway to the CEC and subjected the FAC to its mercy. The CEC had the potential to
countermand the decisions of the FAC. In one of the most controversial projects related to the
Steel Plant of the South Korean multinational, POSCO, the CEC repudiated the proposal and
showed no sign of relenting. Another instance when CEC not agreed to the FAC's
recommendations was with the clearance was the Human River project in Maharashtra (Sethi
2010).

In 2007 itself the CEC was reformed and there was a change in the winds. The Director
General (Forests), MoEF was now to be a member of the CEC. The Director General is a
vital part of the FAC and plays a key role in the granting of clearance by the FAC. This
meant that since the same individual was a member of the CEC, he would in effect be
reassessing his own judgement, made by him formerly as an FAC member. This turn of
events clearly dampened the clout of the CEC and gave the FAC a semblance of autonomy. It
is also argued that since the composition of the FAC is not a contentious subject anymore, the
FAC must be freed from the bondage of the CEC. The capricious existence of the CEC that
had been under constant criticism since its inception seems to be coming to a much-
anticipated close and the MoEF is likely to be its own master. On the other hand, many see
this as a gimmick to pacify those who are antagonized by the judicial intervention. The fact
remains that as long as the order of the Supreme Court reads ‘pending the decision of the
larger question, all clearances by the FAC of fresh cases shall be subject to approval by this
court’, there will be no escaping the truth that the CEC is still very much in command.

The MoEF, however, is not impeccable either and its working has not been very transparent.
For decades, the fate of the forest dwellers was being dominated by the Ministry of
Environment and Forest. A glaring example was the operation of Kudremukh Iron Ore
Company Limited (KIOCL) in one of the most beautiful and most disputed landscapes in
Karnataka. KIOCL took over possession of 3703 hectares of land on a 30-year lease. Though

Page 11 of 17
the company’s lease ended in 1999, its operations did not. It was operational till 2005 on a
‘temporary permission granted’ by the Ministry of Environment and Forest, until an
interlocutory application was filed in the momentous Godavarman Case. After two years of
prolonged legal battle, in another ground breaking Godavarman judgment, the court ordered
cessation of all mining activities in the area. However, the matter never came to be settled as
the government, even after 5 years, continued to spend Rs. 60 crore every year to maintain
the plant and the equipment at the site. Thus, with its decision in the Godavarman case, the
court has further empowered the ministries, giving them the power to take certain actions for
detention, seizure and investigation. So, what has ultimately resulted is the empowerment of
that executive against whose action the relief was originally sought.

It is true to say that the CEC may have had an arbitrary birth but it would be equally honest to
put that the raison of its naissance is in the permissiveness of the MoEF which gave grants for
non-forest activities in an unrestrained fashion. The imprudent outlook of the executive was
directly responsible for the germination of the judicial intervention. The MoEF is yet to prove
its worth and give reasonable proof of the fact that it can function efficiently without the CEC
threatening to crack its whip every time it falters.

THE RULING AND THE FEDERAL EDIFICE

The T.N. Godavarman case is more than the ‘forest case’ as it is popularly dubbed. It not
only modeled the forest governance in India but also gave new dimensions to the Indian
federal structure. Even as the case tipped the well-devised system of checks and balances
heavily in favour of the judiciary, the effects of this change are highly debated. Many believe
that contravention of the principle of separation of powers is objectionable and stands against
the very spirit of the Indian Constitution. On the other hand, it may be advocated that
activism by one wing in order to meet the prompt needs of the people is validated.

Though the Indian Constitution does not explicitly incorporate the separation of powers the
interpreters of its letter have read the carefully conceived scheme of checks and balances
within it. The rigidity of this system has, however, been greatly disputed and even the
judiciary has differed in its interpretations. Clarity on this point came only when prominent
cases shed some light on the issue. In the landmark Indira Gandhi v. Rajnarain case, it was
held by the Court that ‘though the doctrine of rigid separation of powers in the American
sense does not obtain in India, the principles of checks and balances, underlying that doctrine
constitutes a part of the basic structure of the Constitution or one of its basic features which

Page 12 of 17
cannot be impaired even by amending the Constitution; if any such amendment of the
Constitution is made, the Court would strike it down as unconstitutional and invalid’.8

The Court through its pronouncement in the prominent case Kesavananda Bharti v Union of
India9 exalted the doctrine of separation of powers by construing it as part of the basic
sacrosanct structure of the Constitution. These and many other cases formed the essence of
the value attached to separation of powers in India. To desecrate the sanctity of this principle
is equivalent to the contravention of the Indian Constitution.

On the other hand, cooperation and coordination are two terms that have enormous
significance and are deeply adhered to in the nation. Absolute and unmitigated separation of
the legislature, executive and judiciary is neither warranted nor necessitated. Though there
was an exhaustive list of environment legislations, the inaction of the government bodies
prompted the citizens to turn to the judiciary to address their concerns for the environment.
Not long after its judgment in the Godavarman Case, the court observed that despite the
enactment of the Environment Protection Act, 1986, there has been a considerable decline in
the quality of the environment. With the Public Interest Litigations on environment gaining
momentum, further delay in the performance of their duty by the authorities could not be
permitted.10 The performance of their duty by the government thus had to be mandated by the
court by its various orders. Thus, where the government failed the judiciary became the
beacon of hope for the people, prompting it to take up the role befitting the executive.

The intrusion of the judiciary in the domain of its counterparts has been given the
nomenclature of ‘judicial activism’ by its exponents. Judicial activism is the need of the hour
given the neglect of the other two wings. The independent judiciary may through this
instrument keep them on their toes, functioning effectively. The courts, for years, have been
reluctant in encroaching upon the powers of the executive and the legislature. They are well
aware of the working limits to which their power is confined. It was only when the Courts
were convinced that stringent and swift action was the crucial need of the hour, did they
resolve to intercede. In M C Mehta v Union of India,11 the Court stated that in spite of the
varied enactment of the Environment Protection Act, 1986, there had been a significant
deterioration in the quality of environment. Under such circumstances many consider the
8
Indira Gandhi v Rajnarain AIR 1975 SC 2299

9
AIR 1973 SC 1461

10
M C Mehta v Union of India 1998 (9) SCC 589

11
Ibid

Page 13 of 17
active participation in the form of intervention laudable. The most crucial question, however,
that remains unanswered is who draws the line that demarcates judicial activism from judicial
invasion.

The CEC is substantiated in its enthusiasm as long as it does not assume such powers that are
outside its mandate. Wherever the executive lapses, the Court may direct it to perform its
function. This is judicial activism in true spirit. But where the judiciary starts performing the
function for the executive it is sure to have overstepped the mark. Undoubtedly, the judiciary
has done a commendable task by systematizing the entire forest governance, but it may have
done so at a very high cost.

ALTERNATIVE MEANS TO THE END

The increase in the interest that the apex court showed in the matters related to the
environment, it gradually came to be seen as the first forum to be visited in such cases.
Considering the frequency and the complexities of the issues involved, it was soon desired to
set up an environment court as the court of first instance to deal with such issues in depth 12.
The demand for such specialized forums from the judiciary reached a crescendo with the
decision of the Supreme Court in A P Pollution Control Board v Prof M V Nayudu, 13 with the
acknowledgment of the difficulty experienced by the courts in adjudicating upon the
correctness of technological and scientific issues involved, considering the paucity of time
and the backlog of cases in these courts14.

Even after specific recommendation by the judiciary, citing reference to the Land and
Environment Court of New South Wales in Australia and Carnegie Commission of Science
and Technology of the United States, the only response was in the form of National
Environment Tribunal Act, 1995, which was again limited in its scope, as its functioning
confined to the handling of cases of hazardous material and was thus far from being the
Environmental Tribunal as proposed by the court.15

12
M C Mehta v Union of India (1986) 2 SCC 176

13
AIR 1999 SC 812

14
R Singh and N Vaidya: Justice through Specialization – A case for Environmental Court, Available from:
http://ssrn.com/abstract=1558973 [Accessed 14 October 2016].

15
ibid

Page 14 of 17
The Law Commission of India in its 186th Report addressed the issue, with its gaining
importance. Proposal was made to establish Environmental courts in each state to reduce the
burden on the High Courts and at the same time to ensure that such cases are decided
expeditiously. The courts were proposed to have original as well as appellate jurisdiction for
environmental cases in order to ensure precise decisions with expert advice. Although several
special statutes delegate power to the state and central governments to designate appellate
authorities, appeals except in a few cases, do not lie to a judicial body with independent
expert advice.

The proposed environment courts were to consist of three judicial members, assisted by three
environmental experts. The courts were to have jurisdiction over wide range of
environmental issues, including protection of forest and wildlife. With wide powers given to
the court, not only was the court to have a status equal to that of a civil court, it also had
certain powers equivalent to that of a writ court. The courts, it was proposed, were to have the
power to mold the relief as appropriate in the facts of every case.

With a view to ensure implementation of its orders and check on the protection of the forests,
the court order of the court forming the Central Empowered Committee is still largely
disputed. Numerous petitions are filed in the Supreme Court, which needs thorough hearing,
considering the complication of the issues involved therein. With the backlog of cases, the
burden that the Indian Judiciary today faces, it is not practical for the court to engage itself
profoundly in the matters relating to the environment. The formation of the environment
courts seems to be a much feasible alternative, especially in the light of the recommendations
by the Law Commission. Given the complexity of the situations that face the environment
today and the exhaustive analysis that it requires, it is imperative that decisions are taken not
only based on judicial thinking but also expert advice. The implementation of
recommendations calling for setting up of the environment courts would be a stepping stone
towards the protection of environment. Nowhere has the Supreme Court, in its ruling in the
Godavarman Case has taken into consideration or made any observation to the effect of the
setting up of such courts. It is high time that the activism the judiciary is showing for the
protection of the environment is directed towards making efforts for perusal of those
propositions. This would not only secure working of specialized institutions to deal with
intricate environment issues but also ensure functioning of the constitutional courts within
their powers.

Page 15 of 17
CONCLUSION

The Indian Environmental law has gained considerable maturity since the inception of
various suits propagating the cause of the environment. Sustainable development was
recognized by the court at a very naïve stage. With increase in awareness in issues relating to
environment, various principles which were adopted only at the international platform, found
recognition in the Indian laws. The precautionary principle, acknowledged as customary
international law was incorporated in the Indian environmental law.16 Gradually, polluter
pays principle, inter-generational equity, public trust doctrine17; all became fundamental to the
Indian law. With the recognition of these principles, a significant progress in the Indian law
was towards shifting of burden of proof from the person opposing the change in the status
quo to the body interfering with the ecology.

So much has been done at the global level regarding the protection of the environment that these
issues are among the prime agendas concerning the masses today. To all this, the Godavarman
ruling had its own significant contribution. Where the executive action failed, the Supreme
Court, trying to further the cause of the environment, has attracted severe criticism. However,
acknowledgment needs to be given to its efforts towards ensuring not only that these causes are
taken up by those who are empowered to, but also that their compliance is ensured. The
application of continuing mandamus suggests that instead of passing a judgment and closing the
case, the Court has taken measures to issue a series of directions to the administration, to
implement within a time-frame, and report back to Court from time to time about the progress in
implementation. The creation of the Central Empowered Committees and provisions for
obtaining timely reports on the implementation of the court’s order is an attempt to ensure that
every measure is taken for the protection of the cause which has raised great concerns in the
country. However, this dependence on judicial institution has exceeded the boundaries of its
responsibilities and has been further complicated by the vagueness of the legislative and
executive roles regarding environmental issues. The judiciary cannot forever take the
responsibility of administering the environment and ensuring the implementation of its orders. It
is imperative to endorse the efforts the judiciary has made to date and that the executive springs
into action and takes over the role the court has been playing to date.

16
Vellore Citizen’s Welfare Forum v Union of India 1996 (5) SCC 647

17
M C Mehta v Kamal Nath 1997 (1) SCC 388

Page 16 of 17
BIBLIOGRAPHY

BOOKS REFFERED:

 Environmental law and policy in India- cases, material and statues by Shyam diwan
and Armin rosencranz (2nd edition Oxford India press New-Delhi 2012)
 Environmental law and sustainable development by Dr. Indira P. Darsini & Prof.
K. Uma Devi (Regal publications New-delhi 2010)
 Environment law and climate change by sanjay kumar singh (SBS Publishers &
distributers Pvt. Ltd. New-Delhi 2010)
 Environmental protection law and policy in india by Kailash thakur (Deep and deep
publications New-Delhi 2005)

WEB SOURCES:

 https://manupatra.com/
 https://legalserviceindia.com/
 http://rostrumlegal.com/
 http://lex-warrier.in/
 http://acedmia.edu/
 http://scribd.com/

Page 17 of 17