Top court’s green governance, cause for uncertainty

UPSC Syllabus Topic: GS Paper 3-Conservation, environmental pollution and degradation

Introduction

Environmental governance in India has increasingly shifted from executive regulators to the Supreme Court of India. Over the last decade, the Court has moved beyond reviewing legality to issuing forward-looking directions that resemble regulation. This shift arose due to regulatory failure, but the Court has often continued to govern instead of restoring regulatory discipline. This has created instability for governments, regulated actors, and citizens. Top court’s green governance, cause for uncertainty.

Legal and Constitutional Basis of Environmental Governance in India

1. Constitutional Duties: Environmental protection has clear constitutional support. Article 48A places a duty on the State to protect and improve the environment. Article 51A(g) places a duty on citizens to safeguard nature. Together, they form the moral and legal base of environmental governance.
2. Right to Life: The right to life under Article 21 has been interpreted to include the right to a clean and healthy environment. In M.C. Mehta (1986), environmental quality was linked to life and dignity. In M.K. Ranjitsinh, this was expanded to include a right against the adverse effects of climate change.
3. Statutory Framework: Environmental governance is implemented through laws such as the Environment (Protection) Act, 1986, the Forest (Conservation) Act, 1980, and pollution control laws. These statutes assign duties to executive authorities for regulation, enforcement, and monitoring.
4. Regulatory Failure: Judicial intervention occurs when regulators fail to perform statutory duties. Fragmented enforcement, delayed notifications, weak monitoring, and selective exemptions create governance gaps. These gaps provide the constitutional space for judicial involvement.

Indian Judiciary’s Expanding Role in Environmental Governance

1. Role Expansion: The Court has shifted from checking legality to shaping future conduct. It now issues directions that apply across sectors and regions, moving closer to regulatory governance.
2. Continuing Mandamus: Environmental cases often run through continuing mandamus. The Court issues serial interim orders, seeks affidavits, appoints committees, and modifies directions over time.
3. Regulatory Substitution: Instead of correcting regulatory processes and stepping back, the Court often substitutes for regulators. This keeps the Court involved in governance beyond immediate correction.
4. Cross-Domain Reach: Single cases frequently expand across forests, pollution, mining, transport, and urban development. This broad reach increases institutional complexity and uncertainty.

Expansion and Contradictions of Environmental Jurisprudence

1. ESZ Orders: In June 2022, the Court mandated a minimum one-kilometre eco-sensitive zone around protected areas. In April 2023, this was diluted where prior notifications existed, after States argued that the rule was difficult to implement.
2. Vehicle Rules: In December 2015, diesel vehicles above 2000 cc were banned in the Delhi-NCR. In August 2016, the ban was replaced with a compensation charge. In 2025, broad protection against coercive action was narrowed to vehicles below Bharat Stage-IV norms.
3. Firecracker Bans: The Court imposed near-total firecracker bans in the NCR due to air pollution. These were later relaxed for festivals and limited categories such as green crackers, citing enforcement limits and public order concerns.
4. Doctrinal Shifts: In May 2025, ex post facto environmental clearances were held to violate core principles. In November, this position was recalled due to concerns about disrupting ongoing commercial activity.

Expertise and Public Challenge

1. Expert Committees: The Court relies on expert committees to address technical limits. Expert input supports decision-making but does not guarantee stability.
2. Contested Expertise: In the Aravalli mining matter, a unified definition was adopted based on committee findings. It was later placed in abeyance and a new committee was formed due to unintended legal effects.
3. Uniform Rules: Uniform environmental rules initially appear decisive. Resistance arises when ecological variation and feasibility differ across landscapes, as seen in the ESZ issue.
4. Approval Role: Governments and project proponents approach the Court for permissions before statutory scrutiny is complete. This shifts approval authority away from regulators.
5. Public Impact: Early judicial approval discourages later contestation. When rules are modified, it reshapes who can be heard and what evidence matters.

Need for Judicial Restraint and Regulatory Discipline

1. Uncertainty Harm: The core problem is not intervention itself. It is uncertainty. Environmental rules become negotiable rather than enforceable.
2. Regulatory Discipline: The Court should discipline regulators back into action. It should insist on time-bound decisions, reasons, and public data.
3. Clear Thresholds: Judicial management should be limited to defined situations. Sweeping rules that invite exceptions should be avoided.
4. Stable Governance: Stability helps governments govern, regulated actors comply, and citizens challenge harm in proper forums.

Conclusion

Environmental protection requires strong regulation, not permanent judicial governance. Courts should correct regulatory failure without replacing executive decision-making. Clear limits on intervention, predictable standards, and time-bound regulatory action can reduce uncertainty. A restrained judicial role can protect the environment while preserving institutional balance, public participation, and legal certainty.

Question for practice

Discuss how the Supreme Court’s expanding role in environmental governance has contributed to regulatory uncertainty in India, and why judicial restraint is suggested as a way forward.

Source: The Hindu