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Environmental oversight in India
chapterposted on 06.12.2017, 00:00 by Lawson Smith
In a smooth running democracy with a comprehensive set of environmental laws, regulations and management systems, an accountable and responsive administrative system not to mention real respect for the rule of law, a set of super-added fundamental inalienable human rights in relation to the environment, would seem to be of largely symbolic, political value. However, the potential role of human rights standards extending to the environment, is most apparent where federal and state governments, such as in India, have failed to set up and adequately fund the necessary administrative and managerial systems to implement and enforce their environmental laws. Out of desperation, aggrieved parties have taken their plaints to India’s Superior Courts which on an ad hoc basis have sought to ameliorate the evident enforcement-gap by expansively interpreting and enforcing basic constitutional rights such as the “right to life” as extending to the right to live in a non-polluted environment. In the hands of India’s enlightened responsive judiciary, where both market and government failure has occurred in respect of the provision of environmental goods (clean air, water and land) a set of such environmental rights as trumps is unarguably of real value. However, in any country, having to resort to the courts to redress serious environmental “bads” is at most a second best substitute for life in a civil society that attaches high value to the environment and funds its government agencies accordingly, besides having long run adverse institutional and constitutional effects in relation to the (non)separation of legislative, executive and judicial powers of the state.