




































Ecology, Economy and Society–the INSEE Journal 3 (2): 209–213, July 2020 

 
BOOK REVIEW 
  

Can the Twain Ever Meet? Environmental 
Jurisprudence and Justice in India 
 

Manshi Asher  
 
Shibani Ghosh, ed. 2019. Indian Environmental Law: Key Concepts and Principles. 

New Delhi: Orient Blackswan. ISBN: 978-9-352-87579-5, pp. 360, ₹925 
(HB).  

Indian Environmental Law Key Concepts 
and Principles (2019), a collection of 
essays edited by Shibani Ghosh, 
discusses the evolution and 
application of various conceptual 
frameworks for understanding 
environmental jurisprudence in India. 
In the first two chapters, Lovleen 
Bhullar and Shibani Ghosh, 
respectively, draw out the 
constitutional basis and procedural 
rights that govern people‘s ―right to 
environment‖ in India today. In the 
subsequent chapters (3 to 6), the 
evolution and current usage of key 
legal principles that are considered 
critical to the making of 
environmental rules are subject to 
searching scrutiny. Notably, these 

                                                        
 Himdhara Environment Research and Action Collective, Village Kandwari, Palampur, 
Kangra 176061, Himachal Pradesh, India; manshi.asher@gmail.com. 

Copyright © Asher 2020. Released under Creative Commons Attribution-NonCommercial 
4.0 International licence (CC BY-NC 4.0) by the author.  

Published by Indian Society for Ecological Economics (INSEE), c/o Institute of Economic 
Growth, University Enclave, North Campus, Delhi 110007.  

ISSN: 2581-6152 (print); 2581-6101 (web). 

DOI: https://doi.org/10.37773/ees.v3i2.216  

https://doi.org/10.37773/ees.v3i2.216


Ecology, Economy and Society–the INSEE Journal [210] 

chapters bring into focus the debates and implications in the legal rendering 
of principles such as sustainable development (Saptarishi Bandhopadhyay), 
the polluter pays principle (Lovleen Bhullar), the precautionary principle 
(Lavanya Rajamani), and the public trust doctrine (Shibani Ghosh). These 
four essays help trace the origins of these legal doctrines in the Indian 
courts and focus, in particular, on how environmental decision-making gets 
inserted into case law. In Chapter 7, which is the final one, Dhvani Mehta 
carries out a detailed review of how compliance with judicial orders and 
their enforcement and effectiveness in terms of implementation play out on 
the ground.  

In essence, this book debates and discusses the interpretation, 
reinterpretation, distortion, and dilution of these various legal principles 
when applied in court cases. It questions the robustness of the concepts 
that currently inform existing environmental laws in India and debates 
whether they rest on sound legal premises, claims, and practices. Given that 
the themes covered by the collection are vast in scope, this brief review will 
comment on what the reader could take away from this book with regard to 
environmental jurisprudence and its implications for environmental justice 
in contemporary India.  

Since the 1980s, judicial activism in India has, in fact, often been lauded for 
contributing to environmental policy and governance. As Bhullar shows in 
the first chapter, domestic jurisprudence has clearly linked the ―right to 
environment‖ with Article 21 (Right to Life) of the Indian Constitution, 
among other articles (47, 48A, and 51A(g)), and Indian courts have played a 
critical role in this process. However, as this and the following essays in the 
book suggest, this right becomes difficult to realize due to the ―varied‖ and 
―flexible‖ application of concepts by the judiciary in environmental 
decision-making.  

Shibani Ghosh, in the following chapter, while laying out the various laws 
and rules that guarantee procedural rights—the right to information, the 
right to public participation, and the right to access to justice—argues that 
these procedural environmental rights are on ―firmer legal foundations‖ 
(103) than substantive environmental rights in India. However, given the 
systematic onslaught on procedural rights (especially in the last few years) 
with the dilution of the Right to Information Act (RTI) and the 
Environmental Impact Assessment (EIA) Notification 1994 (Ghosal 2018), 
a careful reassessment of the stability of procedural rights is called for. 

Delving into the Narmada case, Bandhopadhyay comments on the 
instrumental use of ―sustainable development‖ as a principle by Indian 
courts. He critiques the ―pick and choose‖ approach of the judiciary, 



[211] Manshi Asher 

particularly how the latter treats the notion of sustainability as a 
handmaiden of the interests of urban citizens, with their modernist vision 
of the future (150). Bhullar‘s essay highlights how the term ―polluter pays‖ 
has not been interpreted as a preventive measure. Instead, domestic courts 
have focussed on its curative rather than justice dimension. While reviewing 
its evolution, one misses the critical assessment that at their very core, 
concepts like ―polluter pays‖ were intended to only ―manage‖ the 
environmental impact of neo-liberal economic development directed at 
higher growth (and thus more corporate profit), without ever having to 
compromise on or question the idea of ―growth‖ and its inherent 
ecologically destructive or socially exploitative character (Lohman 2019).  

Interestingly, Lavanya Rajamani‘s essay observes how the ―precautionary 
principle‖ has not come of age in environmental law in India, due to the 
courts‘ balancing of environmental concerns with those of ―sustainable 
development‖. Her commentary also speaks about the overreach of the 
judiciary and courts. The starkest evidence of this elite bias is in judicial 
decisions in the domain of forest conservation that is particularly made 
evident in the Godavarman case (Mate 2015).  

While discussing the public trust doctrine, Ghosh walks us through how 
Indian courts have relied on this principle in cases involving various natural 
resources, since its use in the Kamal Nath judgment of 1996. She argues 
that for the doctrine to be effective, it must be interpreted or defined more 
sharply and put in application by the executive rather than the judiciary 
alone. Given the changing nature of the state and the increasing 
privatization of public resources, there is a need to review how this doctrine 
is being rendered irrelevant.  

Dhvani Mehta in the final chapter critically analyses the issues around 
mechanisms set up by the court (like the Central Empowered Committee) 
and existing executive regulatory bodies (like the State Pollution Control 
Boards) in ensuring compliance with law and court orders. Acknowledging 
that a variety of social, political, and economic factors influence the 
functioning of these agencies, she cautions against the creation of newer 
authorities in the name of ―institutional reforms‖.  

We cannot ignore that India has suffered a 36-point drop in its global 
Environment Performance Index (EPI) as of 2018. India is now in the 
bottom 5 of 180 countries (PTI 2019). India was cited as the fourth-most 
dangerous country in the world for environmental activists in 2016 by a 
UK-based watchdog group, Global Witness. This book cites several 
instances of environmental crises in which Indian courts have intervened, 
but fails to meaningfully explain why project-affected communities 



Ecology, Economy and Society–the INSEE Journal [212] 

continue to lose their access to natural ecosystems. The Indian judiciary is 
arguably undergoing a severe internal crisis and its credibility is questionable 
as constitutional democracy weakens and incidents of political interference 
in judicial decision-making are repeatedly flagged (Bhatia 2014). Specifically, 
the highly acclaimed instrument of access to environmental justice—India‘s 
decade-old National Green Tribunal—is now being increasingly divested of 
its powers to enforce and prevent environmental destruction (Dutta 2019).  

Environmental governance in India, inside and outside of judicial territory, 
is increasingly revolving around techno-managerial solutions that further 
push for monetary valuation and commoditization of nature. It is apparent 
that collective access to and ownership of natural habitats/territories by 
marginal communities (like Adivasi people) and their right to conserve 
ecological spaces remains at the periphery of the environmental discourse, 
even today. The challenge lies before the active community of researchers, 
lawyers, practitioners, and activists to adopt a more multidisciplinary, 
holistic, and radical critique of the existing enviro-legal order in India and to 
work together towards realizing environmental justice.  

 

REFERENCE 

Ahmed Omair. 2018. ―Rights without Institutions are No Rights at All.‖ The Third 
Pole, July 26. https://www.thethirdpole.net/en/2018/07/26/rights-without-
institutions-are-no-rights-at-all/. 

Benjamin, Vipin Mathew. 2010. Has the Judiciary Abandoned the Environment? New 
Delhi: Human Rights Law Network. 

Bhatia, Gautam. 2014. ―Book Review: ‗The Shifting Scales of Justice: The Supreme 
Court in Neo-Liberal India.‘‖ Indian Constitutional Law and Philosophy, February 23. 
https://indconlawphil.wordpress.com/2014/02/23/book-review-the-shifting-
scales-of-justice-the-supreme-court-in-neo-liberal-india/.  

Dutta, Ritwick. 2019. ―Woes of the National Green Tribunal: Are the Recent 
Appointments Unconstitutional?‖ Bar and Bench, October 9. 
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unconstitutional-judicial-
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Ghosh, Shibani, ed. 2019. Indian Environmental Law Key Concepts and Principles. 
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Ghosal Aniruddha. 2018. ―Four Environmental Rules Diluted in 2018 That Will 
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https://www.news18.com/news/india/four-environmental-rules-diluted-in-2018-
that-will-have-an-impact-next-year-and-beyond-1984047.html. 

PTI. 2019. ―India Ranks 177 out of 180 in Environmental Performance Index.‖ The 
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Mate, Manoj. 2015. ―The Rise of Judicial Governance in the Supreme Court of 
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Roy Brototi. 2019. ―Environmental Rights have Been Denuded.‖ The Hindu 
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Thayyil, Naveen. 2009. ―Judicial Fiats and Contemporary Enclosures.‖ Conservation 
and Society 7 (4): 268–282. 

 

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