Statutes
Since about the late 1980s, the Supreme Court of India has been pro-actively engaged in India's environmental issues. In most countries, it is the executive and the legislative branches of the government that plan, implement and address environmental issues; the Indian experience is different. The Supreme Court of India has been engaged in interpreting and introducing new changes in the environmental jurisprudence directly. The Court has laid down new principles to protect the environment, re-interpreted environmental laws, created new institutions and structures, and conferred additional powers on the existing ones through a series of directions and judgments.[3]
The Court's directions on environmental issues goes beyond the general questions of law, as is usually expected from the highest Court of a democratic country. The Supreme Court of India, in its order, includes executive actions and technical details of environmental actions to be implemented. Indeed, some critics of India's Supreme Court describe the Court as the Lords of Green Bench or Garbage Supervisor. Supporters of India's Supreme Court term these orders and the Indian bench as pioneering, both in terms of laying down new principles of law, and in delivering environmental justice.[3]
The reasons for the increasing interjection of India's Supreme Court in governance arenas are, experts claim, complex. A key factor has been the failure of government agencies and the state owned enterprises in discharging their Constitutional and Statutory duties. This has prompted civil society groups to file public interest complaints with the Courts, particularly the Supreme Court, for suitable remedies.
Public interest litigation and judicial activism on environmental issues extends beyond India's Supreme Court. It includes the High Courts of individual states.
India's judicial activism on environmental issues has, some suggest, delivered positive effects to the Indian experience. Proponents claim that the Supreme Court has, through intense judicial activism, become a symbol of hope for the people of India. As a result of judicial activism, India's Supreme Court has delivered a new normative regime of rights and insisted that the Indian state cannot act arbitrarily but must act reasonably and in public interest on pain of its action being invalidated by judicial intervention.[4]
India's judicial activism on environmental issues has, others suggest, had adverse consequences. Public interest cases are repeatedly filed to block infrastructure projects aimed at solving environmental issues in India, such as but not limiting to water works, expressways, land acquisition for projects, and electricity power generation projects. The litigation routinely delays such projects, often for years, whilst rampant pollution continues in India, and tens of thousands die from the unintended effects of pollution. Even after a stay related to an infrastructure project is vacated, or a court order gives a green light to certain project, new issues become grounds for court notices and new public interest litigation.[5][6][7]
Judicial activism in India has, in several key cases, found state-directed economic development ineffective and a failure, then interpreted laws and issued directives that encourage greater competition and free market to reduce environmental pollution. In other cases, the interpretations and directives have preserved industry protection, labour practices and highly polluting state-owned companies detrimental to environmental quality of India.[8] Proactive measures should be taken to conserve the depleting environment.[9]
The Indian government tried to stop Greenpeace freedom of expression in 2015.[10]