All posts by Bennet Francis

A Critical Examination of the Environmental Jurisprudence of the Courts of India (J. M. Cha)

Authors

J. Mijin Cha

Keywords

Human Rights, Environmental Rights, Constitutional Law, India, Right to a Healthy Environment, Jurisprudence

Extract

Introduction
 
Since 1972, India has carefully crafted an extensive body of environmental jurisprudence. Through the work of the legislature, along with the judiciary, the importance of environmental protection is being considered in all aspects of the law. The judiciary in particular has been extremely active in developing this ideal. By declaring a fundamental right to a healthy environment and liberalizing locus standi requirements, the judiciary has become active and influential in this developing country.

However, in order to achieve the desired results, the judiciary often employs unconventional measures that go above and beyond traditionally accepted methods used by the courts. The result of this activism, however pure the intent may be, is a muddled body of case law that fails to set forth clearly articulated principles and ultimately results in disputes with other branches of government.

This article explores the development of environmental law in the Indian judiciary, focusing heavily on the extra-judicial measures employed by the courts. The first section addresses the evolution of environmental law in India and briefly summarizes current environmental legislation and constitutional provisions that provide environmental protection. It also addresses the concept of public interest litigation and the manner in which courts have expanded the doctrine of locus standi.

The second section discusses the reactions and responses of the courts to environmental litigation. This analysis is split into two distinct areas: procedural imbalances and substantive imbalances. The section on procedural imbalances analyzes the effect …

Citation

(2005) 10 Albany Law Environmental Outlook Journal 197

Paper

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Workers’ Rights and Pollution Control in Delhi (K.D. Alley & D. Meadows)

Authors

K.D. Alley & D. Meadows

Keywords

Human Rights, Environmental Rights, Constitutional Law, India, Right to a Clean Environment, Pollution

Abstract

Within India’s judicial interpretation of constitutional rights there exists a close link between environmental values and human rights. Yet in some instances court cases defending the right to a clean environment have actually jeopardized the job security of India’s poorest laborers and have led to abuses of human rights. One such example is the 1995 Supreme Court case MC Mehta v. Union of India, which ordered the closure and relocation of polluting industries in Delhi. In this instance the Court responded to middle-class appeals for pollution remediation through a broad reading of the constitution’s fundamental right to life principle, at the same time adversely affecting tens, even hundreds, of thousands of the city’s poorest workers.

The spotty interest of the government’s legislative and executive branches in addressing the environmental problems created by both private and public sector development initiatives has provided the impetus for legal activism in India. Parliament has enacted environmental legislation, but enforcement has been profoundly lax, and governmental pollution control boards have been lenient in regulating industrial and vehicular emissions and industrial and municipal waste treatment facilities. Moreover, projects involving air and water pollution, massive human displacement, and the destruction of natural ecosystems continue to go forward with the imprimatur of formal administrative approval, based on only perfunctory or formalistic compliance with regulatory norms.

Citation

(2004) 11 Human Rights Dialogue 15

Paper

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Some Brief Observations on Fifteen Years of Environmental Rights Jurisprudence in South Africa (L.J. Kotze and A. Plessis)

Authors

Louis J. Kotzé & Anél du Plessis

Keywords

Human Rights, Environmental Rights, Constitutional Law, South Africa

Abstract

Introduction
South Africa has recently celebrated its fifteenth year of democracy. The country has achieved much during this period in terms of realizing and upholding the founding democratic values espoused in the opening sections of the Constitution of the Republic of South Africa, 1996 (Constitution); including, among others: human dignity, the achievement of equality, the advancement of human rights and freedoms, constitutional supremacy, and the rule of law. At the same time, the inclusion of an enforceable substantive environmental right in the Constitution has sparked unprecedented development of the domestic environmental law and governance framework.
[…]
In an effort to evaluate the role that the South African courts have played in the development of constitutional environmental rights jurisprudence during the past fifteen years, this contribution commences with an introductory overview of the structure and function of the courts, with specific reference to their general role in environmental governance. The discussion subsequently turns to South Africa’s constitutional environmental right (section 24 of the Constitution), and to a succinct review of a selection of judgments in which the courts have engaged with this provision.

Citation

(2010) 3 Journal Of Court Innovation 157

Paper

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The Judiciary, the Environmental Right and the Quest for Sustainability in South Africa: A Critical Reflection (L.J. Kotze)

Author

Louis J. Kotze

Keywords

Human Rights, Environmental Rights, Constitutional Law, South Africa

Abstract

The 1996 Constitution of the Republic of South Africa explicitly provides for a comprehensive environmental right. The environmental right is part of the supreme law of the country and the entire environmental law regime. South Africa also has a vigilant judiciary, which has had various opportunities to interpret and give meaning to the environmental right. This article explores the manner in which the environmental right has been interpreted, translated and applied by the judiciary over the past 10 years. The article briefly analyses the environmental right, investigates recent judgments that reflected on the right, and concludes with a critical survey and suggestions as to future developments in this regard.

Citation

(2008) 16 Review of European Union and International Environment Law 298

Paper

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Gas Flaring, Environmental Corporate Responsibility and the Right to a Healthy Environment: The Case of the Niger Delta (B.E. Umukoro)

Author

Brown E. Umukoro

Keywords

Human Rights, Environmental Rights, Right to Life, Constitutional Law, Nigeria, Oil, Public Policy

Extract

Introduction
[…]
In this chapter, we thus discuss the national legal framework for the continuation of gas flaring in Nigeria, the advancement of the concept of threat to right to life to include harmful activities of multinational companies and how these companies can be held accountable for the environmental degradation caused by oil exploration activities in Nigeria. It then closes with some valuable suggestions for strengthening the will of the Nigerian government in overcoming its weakness in the effective enforcement of environmental laws and policies.

Citation

(2009) in Law and Petroleum Industry in Nigeria: Current Challenges, 49, Eneri and Deinduomo (Eds.), Malthouse Law Books

Paper

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