JUDICIARY AND ENVIRONMENTAL GOVERNANCE IN INDIA: FROM CONSTITUTIONAL INTERPRETATION TO JUDICIAL POLICY-MAKING

Abstract

Commentators routinely credit the Indian judiciary with having built, almost single-handedly, the doctrinal edifice of the country's environmental law. Starting from a generous reading of Article 21 and the procedural innovation of public interest litigation, the Supreme Court and the High Courts carried the precautionary principle, the polluter-pays principle and the public trust doctrine into Indian law and, through the continuing mandamus issued in T.N. Godavarman Thirumulpad, took on what now functions as an ongoing regulatory role over the nation's forests. This article offers a critical, doctrine-based examination of that trajectory, arguing that judicial involvement in Indian environmental governance is not a single, undifferentiated phenomenon. Rather, it spans a spectrum: from legitimate constitutional interpretation, through purposive gap-filling made necessary by legislative and executive inaction, to what is more accurately termed judicial policy-making — the assumption of continuing, executive-style regulatory functions for which courts possess neither institutional competence, accountability, nor reversibility. Adopting a doctrinal and analytical method, the article follows the case law chronologically, from Rural Litigation and Entitlement Kendra (1985) to the Kaziranga mining orders of 2019, locates this trajectory within the separation-of-powers debate, and proposes a framework for telling interpretation apart from policy-making. It concludes that although judicial creativity addressed a genuine accountability vacuum left by weak regulatory machinery, the long-term entrenchment of judicial oversight — through monitoring committees, continuing mandamus, and judicially created bodies such as the Central Empowered Committee — has generated governance that lacks commensurate democratic accountability, and it proposes doctrinal and institutional correctives.