Judicial Intervention in Environmental Policy: Towards a Framework to Tackle Crisis-Time Policy Making

Abstract

This research looks into the behaviour of Indian Constitutional Courts with respect to intervention in environmental matters, with a focus on the passage of the draft Environmental Impact Notification, 2020. Constitutional Courts have broad and unique powers to intervene in environmental issues. Various legal and non-legal factors determine the extent such judicial intervention. Existing studies on judicial intervention in environmental policy making reveal that the only consistency underlying such interventions is that there is no consistency. This inconsistency arises for a host of reasons, including the nature, structure and composition of Constitutional Courts. There are no existing indications, for better or worse, about which factors ought to be strengthened in order to allow for such judicial intervention. From a policy perspective, the unpredictability of such judicial intervention is untenable, since environmental policy changes, especially in the recent past, have been demonstrably anti-environment and pro-business. An added element of crisis-time policy-making also comes into play, during which time period anti-environment policies get passed under the cover of crises/disasters. This research will look at judicial intervention not just from a simplistic viewpoint of intervention in environmental policy matters, but also from the lens of crisis-time policy-making. An instance of particular interest to this research is the passage of the draft Environmental Impact Assessment (EIA) Notification 2020 during the COVID-19 pandemic. This policy is demonstrably anti-environment and while the Constitutional Courts have intervened in the matter, analysis is required as to how such intervention has taken place, to serve as a guide to deal with future instances of such policy-making. The intent behind this research is to move towards a framework for compulsory judicial intervention in crisis-time policy. This framework aims to set the foundation for dealing with future instances of such kind of policy-making.