Supreme Court Justice BV Nagarathna on Saturday described environmental law as “hot law”, explaining that it operates in real time, grappling with uncertainty, cutting-edge science and the risk of irreparable harm, unlike traditional areas of law that rule on past behaviour.
Environmental law is “not only concerned with regulating past conduct, but also with managing risk, preventing harm, and managing uncertainty,” Justice Nagarathna, while delivering a Justice SP Sinha Memorial Lecture at the National University of Studies and Research in Law (NUSRL), Ranchi, said.
Drawing on the work of legal scholar Elizabeth Fisher, the judge explained that environmental law is “hot” because it is forward-looking and precautionary, not merely corrective. She said courts are often required to act before scientific certainty emerges, making decisions in a dynamic space shaped by competing considerations of science, economics, technology, ethics and politics.
“Scientific knowledge in this area is provisional and evolving; what is considered safe at one time may later turn out to be harmful,” she noted, stressing that legal standards must remain responsive even if this destabilizes established positions.
Environmental law is also “hot” in the institutional sense, Justice Nagaratna added, as courts and regulatory bodies must make decisions under intense public scrutiny and in light of potential environmental damage that may be irreversible. This requires a form of judicial thinking that is context-sensitive, precautionary, and grounded in constitutional values, she said.
Her observations position environmental arbitration as fundamentally different from traditional areas of law such as contracts, where the rules are relatively stable. In contrast, environmental law requires “open” principles capable of adapting to changing environmental realities.
The judge’s lecture also highlighted the inequalities inherent in environmental damage. She stressed that pollution, climate change, biodiversity loss and resource depletion do not affect all individuals equally, but disproportionately affect the poor and marginalized, who are often the least responsible for environmental degradation.
“Pollution, climate change, biodiversity loss and resource depletion do not affect all people equally; rather, they tend to affect the poor and marginalized, who are often the least responsible for harms,” she said, framing environmental segregation as inherently linked to questions of fairness, equity and justice.
By placing environmental justice within the broader constitutional framework, Justice Nagaratna said that environmental issues are not just about natural resources, but about how the burdens and benefits of development are distributed across societies and generations. She noted that this unequal distribution requires courts to incorporate the principles of distributive justice and intergenerational equality into the decision-making process.
She explained that environmental justice expands the right to life under Article 21 beyond mere survival to include conditions of health, dignity and well-being. It also imposes corresponding obligations on the state and institutions to ensure the meaningful realization of this right.
The lecture traced the development of environmental law in India, highlighting how the Supreme Court read the right to a clean and healthy environment in Article 21, developing key principles such as sustainable development, the polluter pays principle, the precautionary principle, the public trust principle, and intergenerational equality.
Justice Nagaratna stressed that these principles are not fixed principles but tools for operationalizing environmental justice in a context characterized by uncertainty and competing interests. She argued that courts must go beyond applying strict rules to effectively shaping legal responses to emerging environmental challenges.
She also noted a growing shift in judicial thinking, from a human-centred to an environmentally-centred approach, where nature is viewed not just as a resource for human use, but as having intrinsic value.
Concluding her remarks on judicial leadership, the judge emphasized three guiding obligations for the courts: sensitivity to context, principled balancing of competing interests, and caution in the face of uncertainty. In some cases, she added, courts may need to go further and declare environmentally fragile areas inviolable.
