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BECAUSE THE CART SITUATES THE HORSE: Unrecognized Movements Underlying the Indian Supreme Court’s Internalization of International Environmental Law
Indian Journal of International Law (2010)
  • Saptarishi Bandopadhyay, Harvard Law School
Abstract
The text that follows is intended to serve as an examination of the approaches and methods employed by the Indian Supreme Court in its effort to integrate international environmental norms such as the principle of Sustainable Development, the Precautionary Principle and the Polluter Pays Principle as part of the existing body of binding, municipal rules in India. Virtually all of Indian legal jurisprudence that speaks to this subject has been developed by the Supreme Court. Likewise, in no small part for this contribution, the Court has developed a reputation for being an activist institution that has since the mid 1980s transformed itself into a guardian of India’s natural environment. But what is forfeited in the pride parade that follows is any serious accounting of the extent to which the Court’s entanglement with international environmental rules has been substantively heavy but methodologically and argumentatively scant and even ahistorical. This is to say that the Court’s movements, as internalized, betray a startling lack of coherence and justification both within the logic of its decisions and externally i.e. with respect to how the Court chooses to view the development of international law—proceeding, instead, through rhetoric, avoidance and ultimately self-referential rationalization. From this absence of scrutiny begins the story, spread across roughly three decades of judicial decisions and related commentary, of why very little is actually understood about what the principles mean to the Court or how it may choose to apply them from one decision to the next. The commentary attempting to critique this status, proceeding, as it does, from a presumption in favour of the Court’s ability to integrate international rules, is ultimately hamstrung because of its inability to identify the broader scheme of movement, the patterns and trends evidenced by the Court’s logic and method (i.e. the how?).
Keywords
  • sustainable development,
  • precautionary principle,
  • polluter pays,
  • indian supreme court,
  • international environmental law
Disciplines
Publication Date
Spring May, 2010
Citation Information
Saptarishi Bandopadhyay, BECAUSE THE CART SITUATES THE HORSE: Unrecognized Movements Underlying the Indian Supreme Court’s Internalization of International Environmental Law 5:2 Indian Journal of International Law (May, 2010) (also available at: http://works.bepress.com/saptarishi_bandopadhyay/2)