SOAS Research Online

Abstract

Within the last two decades, India has not only enacted specific legislation on environmental protection but has also virtually created a new fundamental right to a clean environment in the Constitution. The models and methods adopted in the Indian context appear, at first sight, similar to those in other common law systems. Yet, there are many subtle differences which have changed the structure and content of legal development in India. Indian environmental jurisprudence brings out the unique characteristics of a new legal order which has been gradually established in India. The distinguishing nature of this jurisprudence, as this thesis shows in detail, has three interconnected elements. First, the nature of the new Indian constitutional law regime accords greater importance to public concerns than protecting private interests. Current Indian jurisprudence shows an increased assertion of public accountability by enlarging the domain of public law. This has created new dimensions of justice based on a new public law rationale which reacts constructively to established common law models. Secondly, this jurisprudential development reflects certain aspects of Indian legal culture, through implicit and explicit reliance on autochthonous values and concepts of law, encapsulated in the Indian juristic postulate of dharma. The new developments reflect distinct elements of Indian dharmic legal culture, which are markedly different from common law postulates evolved out of an individualistic, property-based private law culture. Thirdly, the emerging Indian environmental jurisprudence bears testimony to the activist role of the Indian judiciary which has also had a significant impact in many areas other than environmental law. In short, the development of environmental jurisprudence in India manifests neo-dharmic jurisprudence in postmodern public law. It accommodates ideas currently voiced by experts around the world for protecting the environment, in forms modified by the legal culture of India.