casebook

In re Court on its Own Motion v. State of Himachal Pradesh and Others (India)

India

The National Green Tribunal issues directives to the Himachal Pradesh government to tackle environmental degradation caused by tourism in the Rohtang Pass region. Mandates include pollution control, transportation restrictions and reforestation initiatives.

Credit: saiko3p, stock photo ID 1402440868

Casebook Info

In 2013, India’s National Green Tribunal (NGT) initiated its own motion to address deforestation and tourism’s adverse impacts on the Rohtang Pass, a critical region in Himachal Pradesh . Overconstruction, increased traffic, unregulated tourism and the associated air pollution and black carbon impacted snowfall in the region and disrupted animal behavior. Recognizing the ripple effects of ecosystem degradation, the NGT emphasized that environmental protection is critical for averting environmental harms that negatively impact humans.

The Indian Constitution is interpreted as granting —though it does not explicitly provide— citizens the right to a healthy, clean and respectable environment (R2HE), which obligates the State and citizens to advance its realization. Consequently, the State must safeguard the country’s forests and environment in the public’s best interest. This obligation adheres to the doctrine of sustainable development and the precautionary principle, balancing necessary development against environmental consequences.

In this notable case, the new NGT directed the Himachal Pradesh government to curtail pollution, limit transportation, shift to cleaner fuels, institute reforestation initiatives and establish a Monitoring Committee accountable for reporting on progress. This order reflects a proactive approach to harmonizing developmental needs with environmental preservation.

  • Year Filed 2013
  • Year of Most Recent Ruling 2014
  • Year of Final Ruling 2014
  • Jurisdiction India
  • Court Name National Green Tribunal (NGT)
  • Plaintiff(s) National Green Tribunal
  • Ruling On Merits
  • Respondent(s) State of Himachal Pradesh; Himachal Pradesh State Environment and Pollution Control Board; Deputy Commissioner of Kullu District; Principal Secretary (Forests)
  • Outcome Decided
  • Decision Link to the decision/ruling

Background

The National Green Tribunal (NGT), established in 2010, functions as a specialized court dedicated to environmental protection, forest conservation and swift resolution of cases, aiming to alleviate litigation burdens. Distinct from conventional courts, the NGT adheres to principles of natural justice and is not bound by civil procedure codes. It can adjudicate cases, initiate proceedings, provide remedies and establish monitoring bodies.

In 2013, the NGT took action against the Himachal Pradesh government concerning unregulated tourism and its adverse environmental impact, infringing upon citizens’ constitutionally protected right to life. Over the preceding years, tourism had surged in sensitive Himalayan regions of the State, leading to heightened local pollution in terms of waste and air quality. Studies revealed a decline in snow cover, disturbances to wildlife habitats and behaviors, diminished stream cleanliness, increased soil erosion and snow discoloration. The tourist infrastructure had exceeded ecological limits, with an estimated 40% of glacial retreat attributed to vehicular emissions in Himachal Pradesh. The environmental degradation and glacial shrinkage had broader implications, impacting other vulnerable ecological zones and causing substantial economic repercussions due to declining ecosystem services. The consequences of environmental degradation pose threats to both human health and economic stability.

The NGT underscored the rights, responsibilities, and obligations of both the state and citizens as outlined in the Indian Constitution. It emphasized the constitutional history of environmental protection and the state’s duty to safeguard fundamental rights, including the right to a clean and dignified environment (R2HE). These rights encompass socio-economic justice, health, religious freedom, and security. However, developmental needs must align with sustainable practices and consider potential adverse environmental impacts.

The NGT underscored the rights, responsibilities and obligations of the State and citizens outlined in the Indian Constitution. It emphasized the constitutional history of environmental protection and the State’s duty to safeguard fundamental rights, including the right to a clean and dignified environment (R2HE). These rights encompass socioeconomic justice, health, religious freedom and security. However, developmental needs must align with sustainable practices and consider potential adverse environmental impacts.

The NGT found the State and government of Himachal Pradesh culpable for failing to uphold citizens’ constitutional rights to socioeconomic security and a healthy environment. Its directives mandated implementing pollution reduction programs and transportation limitations, adopting cleaner vehicle fuels in ecologically sensitive zones and initiating a reforestation initiative. The Court established a Monitoring Committee to provide quarterly reports to the NGT to ensure compliance. These reports would detail non-compliance with the Court’s directives and suggest measures for their realization.

  • Article 21 The Indian Constitution protects the fundamental right to life, which the judiciary subsequently expanded and interpreted to encompass R2HE.
  • 40% The percentage of glacial retreat that scientific studies and the court attributed to black carbon emissions.
  • Article 48A The Indian constitutional provision obligates the State and citizenry to protect the environment for present and future generations.

Plaintiff Strategies & Court Good Practices

Using an established domestic body of law

Using an established domestic body of law

The NGT heavily relied on the robust protections outlined in the Indian Constitution and the substantial history of domestic jurisprudence on rights and environmental matters, particularly evident in the precedents set by the Supreme Court before the NGT’s establishment. The Constitution explicitly safeguards various fundamental rights and imposes governmental obligations, including the right to life in Article 21, religious freedom in Article 25 and the duty of both the State and citizens to preserve the environment in Article 48(a).

Building upon Article 21, the Court elaborated on how Indian courts consistently broadened the scope of the right to life to encompass R2HE, effectively establishing a “guaranteed fundamental right” to a clean environment for current and future generations. Nonetheless, the NGT acknowledged that fundamental freedoms are not absolute and are subject to restrictions, requiring a delicate balance with other prevailing interests and rights. Balancing necessary development initiatives and access to temples in environmentally sensitive regions must weigh against the right to life and R2HE. Imposing limitations on certain rights to counterbalance fundamental interests must serve the general public, be reasonable and fall within the actor’s legislative jurisdiction.

The NGT concluded that the Centre, State and Shrine Board must weigh their obligation to protect and fulfill the R2HE against foundational socioeconomic rights. Applying the principles of sustainable development and the precautionary principle, the Court assessed whether these parties achieved that equilibrium. In this instance, the State and other involved entities had failed to strike the necessary balance and fulfill their constitutional duty.

Leveraging the Indian courts’ vested powers concerning individuals’ fundamental rights —Constitutional Articles 32 and 226— the NGT exercised its authority to impose penalties and remediate the environment by directing these parties to undertake specific actions.

Using an established international body of law to support R2HE

Using an established international body of law to support R2HE

While India follows a dualist approach to international law, the courts often draw heavily upon and reference international legal principles, especially those concerning fundamental human rights and state responsibilities. The NGT — interpreting Articles 21 and 48A of the Constitution— looked to the Universal Declaration of Human Rights (UDHR) for guidance. Previous Indian judicial decisions had referenced UDHR Article 1, emphasizing states’ duty to safeguard the dignity and rights of individuals. Additionally, UDHR Article 25(2) upholds the right to adequate living standards for health, well-being and security.

Article 21 of the Indian Constitution —affirming the right to life— encompasses the full spectrum of human personality, including socio-economic justice and dignity. By referencing the UDHR, the NGT acknowledged that “life” cannot be restricted to “mere animal existence” but includes the right to an improved standard of living and conditions, including R2HE. This reasoning expanded the narrower understanding of the right to life in the UDHR and informed the NGT’s interpretation regarding the comprehensive nature of the right to life.

Emphasizing the State’s duty to regulate or its failure to observe its due diligence obligations

Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations

The Indian Constitution stands out for imposing a unique duty on the State and its citizens to conduct due diligence to safeguard the environment —Article 48A— while also mandating the protection and realization of all other fundamental rights outlined in its Articles. Under the Indian judiciary’s interpretation of the right to life, the State bears a greater responsibility to safeguard and enhance the environment that is essential for fostering a life with dignity and “worth living.” Any limitations placed on this right —even in favor of other fundamental rights— must align with the public’s interest or serve the protection of Scheduled Tribes in addition to being reasonable and falling within the State’s legislative jurisdiction.

By inadequately weighing the public’s interest in the right to life, security and R2HE against economic and religious interests, the State failed to fulfill its constitutional obligation. The NGT determined that the State bore a “greater obligation” to preserve the environment. The Constitution mandates the State to act in the public’s best interest, protect life and—under Article 48A— conserve India’s forests and environment. While development may be necessary, it cannot come at the expense of the environment. The area’s environmental degradation and uncontrolled tourism underscored the State’s failure to fulfill its duty.

Take Aways

The case showcases the proactive approach of the Indian judiciary in addressing environmental and human rights concerns within the country. Anchored in a Constitution that mirrors principles from the UDHR, the judiciary had expanded the right to life to implicitly include R2HE, long before the NGT’s establishment. This recognition, coupled with the State’s and its citizens’ shared responsibility to protect the environment under Article 48A, established a robust presumption against State actions causing environmental harm.

The case highlighted an example of State actions leading to environmental degradation, which compelled the NGT to exercise its significant authority.

Terms

Element

Clean Air

Clean air is a critical substantive element of R2HE, justified by the profound impact that poor air quality can have on the right to a healthy environment and a wide range of other human rights, including the rights to life, health, food, housing and an adequate standard of living.
Element

Healthy Biodiversity and Ecosystems

R2HE includes healthy biodiversity and ecosystems among its substantive elements. This internationally recognized right encompasses the entitlement of individuals and communities to live in a balanced environment that supports diverse and thriving ecosystems. It necessitates safeguarding and preserving ecological diversity, ensuring the resilience and well-being of ecosystems and promoting the sustainability of natural habitats for present and future generations. Additionally, this right entails the protection of various species, habitats and ecological processes essential to the maintenance of a healthy and functional environment.
Element

Pollution

R2HE encompasses protection against pollution through its substantive elements – particularly the elements of Non-Toxic Environments, Clean Air, Safe and Sufficient Water and Healthy Biodiversity and Ecosystems – because pollution in excess of a certain standard may compromise the “healthy environment” to which all individuals have a right. Individuals are entitled to live in environments that are devoid of various forms of harmful pollution, including harmful contaminants, emissions and pollutants. Consequently, R2HE emphasizes the need for clean air, water, soil and surroundings that are free from contaminants detrimental to human health and well-being. It stresses the obligation of states to take action to prevent pollution. ‘Pollution’ may refer to air, water, marine, noise and/or chemical pollution.
Element

Safe and Sufficient Water

R2HE includes access to safe and sufficient water among its substantive elements. This internationally recognized right provides that every person must have affordable access to a supply of safe water in quantities adequate for essential personal and domestic uses, including drinking, sanitation, washing of clothes, food preparation and personal and household hygiene. When water is polluted, contaminated or overexploited, the right to adequate quantities of safe water is jeopardized.
Strategy

Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations

Invoking a government’s affirmative obligations under national and/or international law to regulate and implement policy to advance and monitor the protection of R2HE. One common instance of this strategy appears in the climate change context, where a plaintiff might argue that the government has taken insufficient action to mitigate climate change or reduce emissions. Another common context is that of corporate pollution, which might prompt a plaintiff to argue the government did not do enough to ensure a polluter’s compliance with environmental standards.
Strategy

Reinforcing the status of the R2HE as a fundamental and independent human right

Recognizing R2HE as a standalone human right – that is, a human right that does not depend on or emerge from any other human right or source, but which exists independently and self-sufficiently. Recognition of R2HE as a fundamental and independent human right can be accomplished, for example, by invoking the UN Resolutions on R2HE.
Strategy

Using an established domestic body of law

Invoking well-established national laws, norms and/or legal principles in support of arguments related to R2HE. Where R2HE is present in a country’s constitution, the constitution will serve as the primary authoritative source for the right. Other, secondary sources of established domestic law commonly include statutory law and requirements governing public participation and/or the assessment of environmental risks. Environmental principles enshrined in domestic sources of law – for example, the precautionary principle – may also be emphasized to further the protection of R2HE.
Strategy

Using an established international body of law to support R2HE

Relying on well-established international treaties, norms and principles in making arguments advancing and protecting R2HE. Commonly cited international bodies of law include UN Reports, jurisprudence from international and/or regional courts, General Comments by UN bodies, Declarations and more.
Good Practices

Expansive reading of the scope and content of R2HE

An expansive definition of R2HE refers to the broad and inclusive nature or interpretation of a particular concept, document, principle or legal provision related to R2HE. Legal definitions of the complex R2HE and associated concepts often lack specificity as applied to real-world circumstances, leading many courts to ‘fill in the gaps’ by situating the right within wider contextual frameworks of law, policy and science. As the triple planetary crisis of climate change, biodiversity loss and pollution intensifies, courts are increasingly reading the scope and content of R2HE broadly to address a growing variety and number of environmental harms. By providing inclusive and robust definitions of guarantees associated with the right – for example, by confirming R2HE ensures a safe climate, protects biodiversity and/or entails a duty to regulate – courts can help to ensure and further the right’s protections and utility.
Good Practices

Flexible standing requirement

Standing refers to the capacity of a given party to have their claims heard in court. Imposing a flexible standing requirement can make it easier for an individual to bring a lawsuit by relaxing the criteria determining who has the legal right to sue. In many jurisdictions, standing – which often requires a showing of remediable and “individualized harm” linked to defendants’ actions – has posed a barrier to the adjudication of R2HE and environmental damage claims. This difficulty can be attributed in part to the complex and diffuse nature of many environmental phenomena, which makes establishing individualized injury and a causal link difficult. Some international and regional treaties incorporating R2HE emphasize that courts should adopt accommodating standing requirements in environmental defense cases. Many courts across the world have done just that, promoting access to justice by applying flexible standing requirements where parties seek to defend R2HE or environment.
Good Practices

Providing remedies

Provision of remedies is the process by which courts, after finding that a legal right has been violated or harmed, offer or provide a resolution or solution to address the harm or injustice suffered by the aggrieved party. Appropriate and effective judicial remedies play a key role in ensuring that R2HE materially protects individuals and all aspects of the environment. Remedies can vary widely in number, specificity, urgency and stringency, and those variations bear closely on whether a given remedy adequately redresses the original harm. Frequent remedies include protection and restoration measures, compensation and the creation of compliance or implementation mechanisms.

Due Diligence

The level of care, attention, and investigation that individuals, organizations, or entities must exercise to prevent harm to the environment or to ensure compliance with environmental regulations and standards. It involves taking reasonable steps to identify, understand, and mitigate potential environmental risks associated with particular activities or operations.

Intergenerational Equity

This international and environmental law principle provides that States and other entities must regard the impact of their public policies on the environment on present and future generations equally. In other words, actions that allow present generations to meet their needs and wants but sacrifice the ability of future generations to meet their basic needs and live lives of dignity contravene Intergenerational Equity.

Precautionary Principle

This environmental law principle provides that, where there exists a risk of serious and/or irreversible harm, scientific uncertainty about the extent of the harm or about the exact consequences of a particular action or process does not justify failing to implement measures to combat associated risks of environmental degradation or destruction. In other words, in the face of scientific uncertainty, authorities should still take measures to address environmental threats.

Sustainable Development

This concept and guiding principle provides that states should pursue measures that allow present generations to meet their essential needs without compromising the ability of future generations to do the same. Moreover, it recognizes the need for states to work towards their economic development while also ensuring the realization and protection of fundamental human rights. Consequently, a state seeking to achieve Sustainable Development goals is not excused from compliance with its human rights obligations, such as the duty to guarantee the R2HE.