Judicial Activism on Environment in India*

The Indian judiciary demonstrated willingness to exercise its power whenever the political/executive organs of the state failed to discharge their constitutional obligations effectively. This willingness has been often termed as ‘judicial activism’. Around 1980, the Indian legal system, particularly the field of environmental law, underwent a sea change in terms of discarding its moribund approach and instead, charting out new horizons of social justice. This period was characterized not only by administrative and legislative activism but also judicial activism. A subset of this has been environmental activism, which has developed in India in a very major way. One of the reasons for judicial activism in specific environmental cases has been the relaxation of the rule of locus standi giving a chance to the public to approach the Court under Articles 32 and 226 of the Indian Constitution. Also, the recognition of environmental rights as a ‘fundamental right’ under Article 21 (Right to Life) of the Indian Constitution has given a constitutional sanctity to the 'right to enjoy a clean and healthy environment'.
The development of Indian environmental law has happened, for the most part, over the last three decades, with a significant level of polarization around the latter two decades of this period.
The development of the law in this area has seen a considerable share of initiative by the Indian judiciary, particularly the higher judiciary, consisting of the Supreme Court of India, and the High Courts of the States. Particularly, 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 and healthy environment' in the Constitution. Prima facie the forms and methods adopted in the Indian context appear to be very similar to those in other common law systems, but Indian environmental jurisprudence brings out the unique characteristics of a new legal order, which has gradually been established in India. The distinguishing nature of this jurisprudence is the emerging Indian environmental jurisprudence that bears testimony to the activist role of the Indian judiciary, which has had a significant impact in many areas other than environmental law. In short, the development of environmental jurisprudence in India manifests neo-judicial environmental model created within the constitution in post-modern public law. It accommodates ideas of various experts nationally and internationally and creates interface of these ideas within the existing legal structure. The areas in the Constitution where the judiciary has innovated techniques to further the cause of environment are: directive principle of state policy and fundamental duties; fundamental rights, jurisdiction of Supreme Court and the High Courts and adoption of various international principles and creation of domestic principles to further the international obligation towards the environment.

*This Artcile here represents the Introduction of my earlier Article, with same title, published in the Survey of Social Sciences.

International Legal Aspects of Eco-Labelling in the context of North-South division on International Trade Rules*

In the contemporary world, the inter-linkages between trade and environment have become an important contentious issue at various fora in the development discourse. The debate on the ‘trade and environment linkage’ has been dominated by two principal concerns of market access and product competitiveness. In the international politico-economic interface, the debate has centered on the WTO (World Trade Organization) system, which is primarily a trade body but has come under attack from the environmental lobby (and by the developed countries) for ignoring the environmental concerns. Developing countries in particular, do not want WTO to play any role in addressing the environmental concerns as they feel that WTO's in-built provisions on trade sanctions in case of non-compliance (which in environmental context can be protection of dolphins, or sustainable production processes) has the potential of being a tool for arm twisting. In general, the linkage between trade and environment is regarded by them as another form of conditionality (green protectionism), a means to raise protective barriers and deny them market access. Amongst various trade measures for environmental purposes, ‘eco-labelling’ has turned out to be a very effective means for promoting environmental friendly products, but can be a non-tariff barrier to trade. The North accuses the South for eco-dumping and the South accuses the North of pursuing eco-imperialism or green imperialism. At present there are about 22 eco-labelling programs most of which have originated in a developed country and are emerging as a de-jure requirements and may involve additional costs and difficulties.

Developing countries hold that, since they do not have access to adequate resources to adopt patented environmental-friendly technology; the balance is tilted against them. This article analyses the international legal framework applicable to eco-labelling schemes with a view to finding out the difficulties (both procedural and substantive) encountered by the developing countries in adopting and implementing them in their trade policy measures and offers some suggestions to level the playing field in order to root out the legitimate apprehensions (with regard to these schemes) of the developing country partners in the world trade.

*This is the Abstract of my Article published in the Indian Journal of International Law, Vol. 48 (1) 2008, pp. 45-74.

India-Japan Relations

In the fast emerging New World order, India and Japan are viewing each other as natural and capable partners to complement each others needs and aspirations. Being the two mature and dynamic democracies in Asia, the two countries’ mutual partnership would contribute to regional prosperity and stability. The partnership between these two important countries is absolutely essential for greater economic development and stability of the whole Asia. There exist varied instances of common ground and complimentarity between India and Japan in the contemporary world realties.

State's Apathy towards Missing Children

India is a classic case where often the basic human rights of poor citizens are thrown into air and disregarded by the State authorities. Nobody could forget the gruesome rapes/mutilation and barbaric killings of innocent children by the M.S. Pandher & his domestic-aide Surndra Koli, who were recently sentenced to death by the Special CBI Court putting their heinous crimes into the "rarest of rare" category, deserving capital punishment. As still the horrific memories of Nithari case continue to terrify people, the recent media reports about the missing children of poor/marginalized families and daily-wage earners in the country's capital city Delhi have shocked and jolted the conscience of the people of India once again. Such terrible incidents constitute a shame and blot on any nation's face, more so, as India is ranked as the second fastest growing economy in the world. What is more worrisome is their occurrence at repeated intervals!

Often there are reports of missing children in different parts of the country. Many are never found. Many of the kidnappings/abductions end tragically in rape, assault and death. A missing child is a parent's worst nightmare. Over 34,000 children have gone missing in Delhi in the last 20 years (National Crime Records Bureau data). In recent years many children in Delhi have been declared untraceable by the Crime Branch's Missing Persons Squad.

It is a misfortune of these innocent children that despite of the guarantees and rights provided under the Constitutional provisions, specific laws and a series of judicial pronouncement and directives, the incidents of missing children are becoming a day-to-day phenomenon.

There lies a clear gap between social progress based on values, and economic growth. This mismatch calls for a balanced social engineering on a major scale based on values, combined with the current state of economic growth, so that every citizen could be able to get one's share of the fruits, the economic growth has brought about to the nation as a whole.