Polluting Environment, Polluted Constitution: Is a 'Polluted' Constitution Worse than a Polluted Environment?

• Main Authors: DAM, Shubhankar, Tewary, Vivek
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2005
• Subjects: Asian Studies; Environmental Law; Law
• Online Access: https://ink.library.smu.edu.sg/sol_research/765; http://dx.doi.org/10.1093/jel/eqi029
• Institution: Singapore Management University

The Indian Supreme Court has been praised as one of the most socially active courts in the world, especially so in the environmental field. Yet it is arguable that many of the benefits claimed for judicial involvement are far from real. Three phases of acti­vism are identified. In the 1970s, the Court developed the concept of environmental rights based on ensuring that the directive principles of state policy and the funda­mental right to life contained the Constitution worked in mutual support. This was followed by a period when the Court extended liability principles. The most recent and most controversial phase has involved the Court increasingly acting in an exec­utive function and effectively both making and implementing policies. The Court's enthusiasm in environmental matters has now dented India's institutional balance. By being prepared to judicialise all problems of life into problems of law, the Court has undermined the strength of citizens to engage collectively with institutions of the State--the Court should now withdraw from its self-imposed alchemist role.