Title – Judicial Activism Vis-a-Vis Environment Protection Laws:
An Analytical Study
Author – Dr. Bal Krishan Chawla[1]
“Pavan Guru Paani Pitaa Maataa Dharat Mahat”[2]
By: Jap Ji Sahib (Guru Granth Sahib)
In respect of environmental protection and nature the Salok of Japji Sahib (Guru Granth Sahib) begins, with a sweet song to all creation. “Air the guru; Water, the father; and Earth, the great mother.” Honor all of life, Naanak reminds us, for life honors us with its gifts.
Abstract
Environment Plays very important role in the life of human being as well as in the development of society. The need to improve and protect the environment is very much essential for the peaceful society, survival of humanity and other creatures on this planet. Thus, the right to clean environment has emerged as a basic human right embedded in Article 21 i.e., Right to Life and “the scope of Right to life is enlarged enough by the Indian judiciary to cover much more subjects in it which are not specifically described so in the Constitution texts”[3]. The state and the citizen are under a Constitutional obligation to improve and protect the environment, including rivers, oceans, forests, lakes, wild life and also to have compassionate feelings for the living creatures. Even our traditional wisdom also asserts the indispensable role of environment in human life and makes it enjoys upon us to ensure its preservation and protection.
Indian Judiciary Particularly, Supreme court and other state High Courts Played and Significant role to save the environment without compromising with development activities. In this regard the Indian constitution are essential for the development of environmental protection embodied in Art. 14, 21, 47, 48A, and Schedule V & VI of Indian Constitution. The environmental decision-making process stands apart from traditional Administrative Techniques in other aspects. The decisions of the Supreme Court and several other High Courts related to environmental protections are essentially based on many scientific facts, health issues, technical data, socio-economic matters and ecological conditions of the area. The environment protection laws in India developed through the instrument of PIL i.e., Public Interest Litigation. Under several Public Interest Litigations, while there is a serious threat to the public interest by the act of individual, organization or state, the judiciary makes easy for the people to approach in the judicial courts by liberalizing the concept of locus-standi.
This paper would try to discuss the problems relating to environment protection under the Indian Constitution and the Author beautifully analysis that how the judiciary deal the problems which needs positive Judicial activism in order to attain the balance between protection of Environment and development of the infrastructure.
Introduction
We don’t inherit the earth from our ancestors, we borrow it from our children.[4] The universe, which is habitation of both human beings and other creatures, is a providential bounty, and it is meant for sustenance and survival of every creature. “It needs to be harness with caution and doesn’t meant for exploitation. In wider sense, the environmental protection, is a way of looking at things: a mod of perception that is relational, global, co-operative, dynamic, political and remedial also”[5]. The scope of environmental concern matches that of the bio sphere, encircling the globe and encompassing all it resources. The focus of ecological facts upon the human environment is essentially a planetary perspective. Certain kinds of environmental problems, such as air pollution, water pollution, noise pollution & earth pollution have serious impact on all mankind and the core humanity.
Further the concept of protecting the environment and making environmental protection laws has a global vision. The dimension of environment protection laws has a more fundamental concern with the continuance of human life on this stone. In recent years, the Indian Judiciary has attained the significant position in our national and international politics. The courts have tried a lot to participate and to contribute in all important issues, whether it is management of natural resources, clean, fresh air, management of waste material, e-waste management, bio-gas plants, solar electricity generation plants, recycled plastic managing units and other administrative issues. The job of developing new laws as per changing scenario of the nation and need of the society is termed as Judicial activism. It means to interpret the ambiguous laws in plain words, to adjust the law in each and every possible situation and to make clear undefined terms in the laws, to create a new law or to exercise the powers of Judicial review upon executive and legislative actions. Judicial review also plays an important role in development of judicial activism which is self-developed principle of the court and nowhere defined in the whole Constitution. The contribution of Indian Courts in the form of PIL i.e., ‘Public Interest Litigations’, helped a lot to provide social justice and economic justice to all person and attracted the attention of Indian scholars and foreign scholars are also get attracted towards this principle. “The whole credit towards developing the principle of PIL goes to Justice P. N. Bhagwati”[6]. PIL is the outcome of Judicial activism and continuous endeavors of judiciary and it is a good mechanism to represent public issues in front of the judicial courts. The use of PIL through litigants ensures them a wide locus-standi in this regard and enlarged the scope of judicial courts through-out the nation. Dr. Upendra Baxi was an eminent jurist and well known for his hard work. He said that, “it is for the first time in India when the Apex Court of India becomes really a Supreme Court for all Indians and acted positively towards the development of new social laws”[7]. Now citizens of India can challenge the litigations affecting the large public interest like environmentally unsound practices etc., on the behalf of others, even though they may not suffer any harm directly from the incident.
Environment Protection Laws and Indian Constitution
The Indian Constitution describes that the state shall make every attempt to make environment protection laws and to improve and protect the environment to safeguard the natural resources of the nation. According to the Constitution of India, it is the fundamental duty of every citizen of India to protect and improve the natural environmental and to have compassion for living creatures.
Before 42nd constitutional amendment act in 1976, our Constitution didn’t contain the provisions of environment laws in any of its three list- Union list, State List and Concurrent List. However certain environment related issues were and are found in various lists of the Indian Constitutions. “After 42nd Amendment of Indian Constitution, the provisions of environment laws are specifically provided under Article 48A contained in Part IV of The Constitution of India i.e., Directive Principles of State Policy and Article 51 A(g) i.e., ‘fundamental Duties’, which directs the state as well citizens to make the endeavor to improve and protect the environment which includes forest wild life etc. After emergency, Indian judiciary witnessed a considerable improvement and development in this field”[8].
Role of Indian Supreme Court as strong judicial activist, shifted the focus from conventional approach of treating violation of environmental laws as civil wrongs to violation of fundamental rights enshrined in the part– 4 of the Indian Constitution. Supreme Court enlarged the scope of Article 21 by embedding the right to live in pollution free environment via several landmark cases. In the case of Subash Kumar v. State of Bihar[9], Apex Court extend the scope of Article 21 of The Constitution of India i.e., Right to life, and described that right to live includes right to live in pollution free environment in it. Judicial Activism pushes the legislators also to enact desired acts in parlance of need of the society. The most important Act in this direction is Environment Protection Act, 1986 which was enacted after the horrible incident of Bhopal Gas Tragedy[10]. Although, legislatures had tried enough to cover all the relevant issues of environment, prevailing at that time and the word ‘environment’ includes air, water and land in it to enlarge the scope of the Act, still dynamic nature of society needs and demand for regular update in these prevailing acts to cover the development of infrastructure and changing scenario of the society. The act also covers the inter-relationship of human beings with each other, plants, other living creatures, micro-organisms and, movable and immovable properties. This Act empowers the central govt to take all necessary corrective measures for the sake of environment and to control the pollution. Supreme Court deduced the role of absolute liability in place of strict liability in landmark case of M. C. Mehta v. Union of India[11], which proves as a milestone in the field of environment protection laws. In the case of Charan Lal Sahu V. UBI[12], Apex Court held the validity of Bhopal Gas Disaster (Proceedings of Claims) Act, 1985 as constitutional, which provides the justice to the victims of the tragedy. In the same case, the court held that this Act provides the relief for civil liability only and for criminal liability, other legal course is also open for the victims and their dependents. In a latest incident of Virudhnagar firecracker factory blast case, The National Green Tribunal has issued notices to the State of Tamil Nadu, Central and State Pollution Control Board and the District Magistrate in the matter of blast at a firecracker factory at Virudhnagar and commented that, “no one negligent person can be left unpunished and justice must be delivered at the earliest instance”[13].
In another case of A. P. P. C. Board. v. Prof. M. V. Naidu and Ors.[14] Supreme Court recognized the Rights to sanitation and water as fundamental and embedded in Article 21 of the Constitution of India. As these rights are basic and fundamental for human beings to live the life with human dignity, these rights must not be ignored. Securing the rights of sanitation means improving the quality of life by proving the safe water, proper toilets and other sanitary services.
From the above cases it is very much evidently clear that the Apex Court i.e., Supreme Court of India, can take affirmative action commanding to the other state organs i.e., legislative and executive and can issue directions to all other state organs to comply statutory obligation of protecting the environment and doing best efforts to improve the polluted environmental conditions.
Judicial Activism and Environmental Jurisprudence
‘Mohith Agadi’ an eminent scholar said that, “Environment is no one’s property to destroy; it’s everyone’s responsibility to protect”[15]. The environmental jurisprudence in India developed through the instrument of PIL i.e., ‘Public Interest Litigation’. Under several Public Interest Litigations, while there is a serious threat to the public interest by the act of individual, organization or state, the judiciary makes easy for the people to approach in the judicial courts by liberalizing the concept of locus-standi.
Indian Judiciary brought almost all cases of environment pollution under the preview of Article 226 & 32 of Indian Constitution. The eagerness of the higher courts regarding the cases related to victims of environment pollution and violation of various fundamental and human rights has acquired the name and unique status of ‘Judicial Activism’.
The first leading case in this direction is “Ratlam Municipality V. Vardichand[16] in which SDM entertained the complaint filed by some residents of the Ratlam Municipality which alleges that, “workers of municipality is not giving proper attention towards drainage system and therefore they are not constructing the drains properly. Near by there are some slum-dwellers living in that area and they are causing nuisance to the whole area”. In that case SDM of Ratlam directed to the officials of the municipality of that area to prepare a master plan within 6 months and obligated them to remove the nuisance from the streets of that affected area. The orders passed by the SDM was further upheld in High Court and Supreme Court. The municipality alleges in the Supreme Court that they have not sufficient funds to remove the nuisance as directed by the SDM and High Court. But the Supreme Court remained stuck to the directions and guidelines issued by the SDM of Ratlam and commented that insufficiency of funds shall not be a defense to avoid from the fundamental duties obliged under the Constitution, that too which affects the fundamental rights of the peoples. Thereafter, no of similar cases filed before the Apex Court and there was a total change in the approach of the courts in all the matters concerning pollution issues like environment pollution. It is also important to note that the several judges inspected and done spot verification in number of cases which helps a lot to take sound decisions for the judicial officers. ”[17]
In M.C. Mehta V. Union of India,[18] (Most popularly known as ‘The Ganga pollution case’) where Apex Court had noticed that industries are flushing their waste materials and trade effluents into ‘The Holy River Ganga’, by which river is converted into the most polluted river and now it is affecting the human lives.
In this case, many big and small industries located at Jaugmau Kanpur had been disregarding the directions of state pollution control board, by which they are violating the strict laws and affecting the human lives consequentially disturbing the basic human rights. It had very bad effect upon the whole public, resident of that area. Therefore, the Apex Court gave strict guidelines and specific direction to the tanneries and industries, to either set up treatment plants or stop their industrial activities. Court gave the directions to central government, state pollution control board and district authorities for the compilation of its orders in strict manner. This was happened for the first time to give orders to the authorities for watchdog function and it gives more awareness and support to the authorities for taking anti-pollution measures which helps them to protect the environment from pollution.
The Supreme Court exercising its jurisdiction under Article 32 if the Indian Constitution directed further steps to be taken with a view to educate and create awareness among the masses about prevention of pollution. The directions in this regard include, inter alia, to cinema, exhibition halls for exhibiting slide show regarding information relating to protection of environment free of cost; dissemination of information relating to environment in national and regional languages and for broadcast on the All-India Radio. Exposure of information on Television regularly and short-term programs; education of people for their social obligation to make them aware and not to act as polluting agents or factors and lastly, environment as a compulsory curriculum of school and colleges.
In M.C. Mehta V. Union of India,[19] (Most commonly known as Calcutta tanneries case) The Supreme Court ordered relocation of the tanneries out of the congested inhabitations in this case. The Court directed to the authorities of the state government to appoint an official person with the help of the state pollution control board and other expert authorities in this field, which, after giving opportunity to the polluting industries and tanneries, would assess the loss to the ecology/ environment in the affected areas. It shall also determine the amount of compensation to be recovered from the polluters i.e., ‘industries and tanneries’, as a cost of reversing the damage to the environment. The procedural niceties have been done away in some of the cases and dimensions of the substantive content have been considerably expanded.
One of the most important reason for a rich environmental jurisprudence in India is probably the relaxation in the rule of locus standi. Courts in India, in their activist zeal, relaxed the norms of procedures that required that only affected party could file a petition. As a result of the phenomenon of public interest litigation or social action litigation, activist lawyers, public spirited citizens, academicians, research societies, NGOs could file petitions before High Court and Supreme Court for addressing the violation of fundamental rights including the right to life and right to clean environment and seek appropriate remedies even though their own rights were not directly violated as a result of the action/inaction of the state or private entity that was the cause of the grievance.
In most of the matters, the Courts are called upon to exercise the power of judicial review so as to examine the soundness of environmental decisions arrived at by the State and the courts have to follow the same rules of judicial review as in the matters of administrative decision making. Courts interfere with decision only where the same is vitiated by ulterior motives, bias or malafide or by blatant disregard for environment and ecology. Petitions filed to settle personal scores or filed due to enmity are not entertained. Often PILs also run the risk of becoming Publicity Interest Litigation or litigation to serve ulterior motive(s). In Subhash Kumar V. State of Bihar[20] Cost was imposed on the petitioner since he had moved the Court by way of PIL not to serve any public interest but to serve his personal interest and to settle scores with the company which was allegedly polluting the water.
However, in matters involving large projects, Courts have unfortunately shied away from their duty to protect citizen’s rights and the right to clean environment and have adopted policy of deference. Society for Protection of Silent Valley V. Union of India[21] is a matter where the Court noted that.
“It is not for us to evaluate these considerations
Again, as against the evaluation already done by the
Government. It is enough to state that we are satisfied
that the relevant matters have received attention before
the Government decided to launch the project… we are
not to substitute our opinion and notions on these
matters for those of the government.”
In another controversial and infamous town planning case[22], the Supreme Court missed the opportunity to describe the government’s duties in respect of environment protection rather than giving sole importance to the development of infrastructure. Critics of this judgment asserted that the Court had overlooked the importance of life of animals living in the Zoo and ignored it completely. Although the court agreed in the same judgment that the public interest is the paramount in all public matters and the process of distribution of natural resources must be guided by the constitutional principles including the doctrine of equality and larger public good, but it completely ignored the treasure of rare species living in the Zoo and delivered the controversial judgment for the developing the site of hotel.
In Vellor citizen welfare forum V. Union Bank of India, Justice Kuldeep Singh held that, “the traditional concept that the development and ecology are opposed to each other no longer acceptable”[23].
In case of Kinkri Devi V. State[24], the court pointed out that it is both the constitutional Directive to the state and a Constitutional Duty of the Citizens too that they will not only protect but maintain and improve the environmental quality.
International Perspective upon Environment Laws
Ban Ki Moon, Eighth Secretary General of United Nations said, “Saving our planet, lifting people out of poverty, advancing economic growth… these are one and the same fight. We must connect the dots between climate change, water scarcity, energy shortages, global health, food security and women’s empowerment. Solutions to one problem must be solutions for all.”[25] He worked very hard in the development of environment protection laws all over the world. There were many international agreements and conventions held in this regard to protect our environment.
The PARIS Agreement
The PARIS Agreement is an international treaty on climate change and is binding on all 196 parties which signed it in PARIS, on 12th December, 2015 and this treaty was came into force on 4th November, 2016. The goal of The PARIS Agreement is to control the global warming. The resolution set up in the agreement is to reach global peaking of greenhouse gas emission as soon as possible for the purpose of achieving a climate neutral world by the mid-century. This agreement is a landmark in the multilateral climate change process, because this was the first collaborated Act of 196 countries bound by the Act and these member countries have undertaken long-path goal to combat change and adapt to its effects.
The Stockholm Convention
The Stockholm Convention on Persistent Organic Pollutants is another global treaty to protect the health of human beings and the whole environment from the emission of chemicals that remain intact in the environment for long periods. These chemicals spread in the environment and accumulate in the fatty tissues of the human beings and wildlife and these are very much harmful for the human beings and environment too. Exposure to POPs may lead to serious issues of health and include many health problems like cancers, birth disorders and disordered reproductive system, dysfunctional immune system and damages to the central and peripheral nervous systems. The Stockholm Convention was adopted in 2001, which came into force in 2004. It requires positive and corrective measures from their participating members to reduce or eliminate the spread of POPs into the environment. Another motive behind this Convention was that it was not possible to reach at the desired goal of reducing POPs emission into the environment by any single state.
There are many other treaties and conventions in the direction of environment protection laws. The Apex Courts of other countries also played a vital role leading to the development of these treaties and conventions. Some important conventions and treaties are described below as:
- BASEL Convention, 1989[26].
- Convention of Nuclear Safety, 1994[27].
- Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes, 1999[28].
- UNECE Water Convention, 1992[29].
- RIO Declaration of Environment and Development, 1992[30].
Some countries have declared the environment rights as just constitutional rights and not fundamental right. In 2010, Kenya recognized right to a clean and healthy environment as constitutional right. This step of Constitutionalizing the right to a clean and healthy environment bear significant implications for public enforcement of environmental rights in Kenya.
In Sri Lanka also, Environmental rights are constitutional rights, not fundamental right. Article 27(14) of Sri Lankan Constitution imposes the duty upon the state to protect and improve the environment and Article 28 (f) of Sri Lankan Constitution imposes the duty upon the citizens and declared it is as fundamental duty of the citizens to protect the environment from every type of pollution. However, the courts have taken keen interest to protect the environment, still the states remained fail to tag the mark of fundamental rights upon the Environment Protection Acts. In Bulankulama v. Minister of Industrial Development through its Secretary, the notion of public interest was invoked in relation to natural resources as opposed to public power.[31]
Vienna Declaration on Human Rights, 1993 declared that democracy, development and respect for human rights and fundamental freedom are inter-related to each other and require to fulfil the developmental and environmental needs of the current and future circumstances. The interaction of today’s society with nature is so extensive that issues related to environment have assumed to affect all the humanity. Although states have improved the economic conditions but due to vast technological and industrial development, the ecological balance of natural resources got disturbed these days. “Due to industrial revolution, the global warming is also increasing and the global annual temperature has also been increased by 1 degree Celsius”[32], which is an alarming situation for all.
“UNESCO celebrates 22nd May as “International Day for Biological Diversity” all over the world, to increase the awareness and understanding of biological issues. The retreat into the private sphere and the and the desertion of most public spaces have temporarily blurred the sharing of space between humans and other species”[33].
New Dimensions in the development of Environmental Laws
The Environment not to be destroyed for the urban development
The development of infrastructure and balance of ecology must go side by side. Industrial revolution and latest technology have led to disturb the ecological balance of the universe. Global warming is another side affect of the industrial revolution at this earth. Everybody is worried by global warming, but no one alone can resolve this issue. It needs collaboration of all countries and states to work unitedly towards this direction.
In Intellectual Forum Tirupati V. State of A.P.[34], Apex Court held that state is under obligation imposed by the Indian Constitution under Art. 21 and 51A to make environment protection laws and to protect and preserve the environment. The state is also responsible to preserve and protect historical tanks on the basis of sustainable development and public trust.
Disposal of Hazards and Toxic Substance
In Lal Bahadur V. State of U.P.[35], the Apex court held that the land has absolutely vested in the state. The change of the area from green belt to residential was, in fact, inflagrant violation of the provision of Act-21, 48A, as also 51 A (g) of the Indian Constitution.
Conclusion
If we have to save the future generations, we need to save our environment first. Margaret Mead, an eminent philosopher said that, “We won’t have a society if we destroy the environment”. The above discussion makes evidently clear that historic development of the environment protection laws in India had happened after a great involvement of Indian judiciary in interpreting various judicial terms. Judiciary puts its input by entertaining many writ petitions and complaints in regards to deprivation to the environment. In most significant matter related the protection of environment the Indian Judiciary has displayed its concern for the environment and has elevated the right to habitat able environment as part of right to life. The Adoption of several doctrines and Case Law accessible by way of PIL Shows that the Judiciary has not shied aware from the matters before it and has expanded the scope of Judicial reviews.
The efforts of judiciary construct a strong foundation for environmental jurisprudence in India and help the people to aware them in favor of preservation and protection of environment as well as to themselves. The collaborative approach of Indian courts, their continuous endeavors towards making strong environment protection laws and their deep penetrative vision helps the people to grow progressively and fill them with full confidence of getting justice in the matters of environmental damage petitions and to secure them from further any such public nuisance which may cause a lot of troubles for them.
In the annals of Indian Judicial history, there are several judgments passed by the Apex Court for saving the environment and to take strict action against wrongdoers for their fault, but still some judgments are not getting their deserved level at which they were authored by the eminent Judges. It is the political will, administrative interference or some other lacuna’s which fails this ‘masterpiece work’ done by the judiciary through writing several judgments. Judiciary is actively participating in making good laws and playing its role well and only judiciary is the last organ left in which people of the country have faith now as other organs are almost get failed to achieve the desired mission.
References
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- Shyam Diwan, Armin Rosen cramz “Environmental Law and Policy in India” Second Edition
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- S. C. Shastri ‘Environmental Law’ (EBC) fifth Edition 2015
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IBR Vol. x L (4) 2013.
- Dr. Badar Ahmad “Environmental Protection and Supreme Court an Analysis” Bhatner Socio-Legal Journal Vol. 3 2016.
10) http://www.legalserviceindia.com/
[1] Asst. Professor- Seth G. L. Bihani S.D. Law P.G. College. Sri Ganganagar (Raj.)
[2] https://www.sikhnet.com/voices/pavan-guru-paani-pita-maata-dharat visited on 11.07.2021
[3] Dimple Jindal Fundamental rights to religion amidst covid -19 Turkish online Journal of Qualitative Inquiry volume 12
issue 3, July 2021, PP 5441-5456
[4] American Indian Proverb used by UNESCO in their post at https://www.facebook.com/unesco/posts/we-do-not-inherit-
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[5] Douglas M. Johnston. “24. International Environmental Law: Recent Developments and Canadian Contributions”,
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[6] https://en.wikipedia.org/wiki/Public_interest_litigation_in_India visited on 20.07.2021
[7] Upendra Baxi Taking suffering seriously: Social action litigation in the Supreme Court of India Third World Legal Studies
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[8] http://www.mea.gov.in/Images/pdf1/Part4.pdf visited on 20.07.2021
[9] Subhash Kumar V/s. State of Bihar AIR 1991 SC 420
[10] https://en.wikipedia.org/wiki/Bhopal_disaster visited on 11.07.2021
[11] M.C. Mehta V. Union of India 1987 SCR (1) 819; AIR 1987 965
[12] Charan Lal Sahu V. Union Bank of India AIR 1990 1SCC 1613
[13] https://www.livelaw.in/news-updates/ngt-virudhnagar-firecracker-factory-blast-pollution-control-board-environment-
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[14] AP State Pollution Control Board V. Professor M.V Naidu AIR 1999 SC 8/2
[15] https://www.ecomena.org/inspirational-quotes-environment/ visited on 20.07.2021
[16] https://www.supremecourtofindia.nic.in visited on 20.07.2021
[17] Ratlam Municipality V. Vardichand AIR 1980 SC 1622
[18] M.C. Mehta Vs. Union of India, AIR 1988 SC 1037
[19] M.C. Mehta V. Union of India. (1997) 2 SCC 411
[20] Id. at 3.
[21] Society for protection of Silent Valley V. Union of India WP NOS 2949 & 3050 of 1979 Kerala High Court
[22] Sachidanand Pandey V. State of West Bengal AIR 1987 SC 1109
[23] Vellor citizen welfare forum V. Union Bank of India AIR 1996 SC 2715
[24] Kinkri Devi V. State AIR 1988 H.P
[25] https://www.ecomena.org/inspirational-quotes-environment/ visited on 20.07.2021
[26] http://www.basel.int/TheConvention/Overview/TextoftheConvention/tabid/1275/Default.aspx visited on 11.07.2021
[27] https://www.iaea.org/publications/documents/infcircs/convention-nuclear-safety visited on 11.07.2021
[28] http://www.basel.int/Countries/StatusofRatifications/TheProtocol/tabid/1345/Default.aspx visited on 11.07.2021
[29] https://unece.org/env/water/text/text.htm visited on 11.07.2021
[30]https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151
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[31] S. Sarath Mathilal de silva, Constitution protection of environment: The role of Judiciary, Journal of the Royal Asiatic
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[32] https://www.nrdc.org/stories/global-warming-101 visited on 20.07.2021
[33] Audrey Azoulay, Director-General, on the occasion of the International Day for Biological Diversity 2020
[34] Intellectual Forum Tirupati Vs State of A.P. AIR 2006 SC 1350
[35] Lal Bahadur V/s State of U.P. AIR 2018
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