Environmental law is ‘hot law’, says SC judge BV Nagarathna

SUpreme margaret court adjudicate justness BV Nagarathna on sat described environmental jurisprudence as “hot law”, explaining that it operates in real time, grappling with uncertainty, evolving science, and the risk of irreversible harm, unlike traditional legal fields that adjudicate past conduct.Delivering the Justice SB Sinha Memorial Lecture at the National University of Study and Research in Law (NUSRL), Ranchi, justice Nagarathna said environmental law is “concerned not only with regulating past conduct, but with governing risk, preventing harm, and managing uncertainty”.Drawing on the work of legal scholar Elizabeth Fisher, the judge explained that environmental law is “hot” because it is forward-looking and precautionary, rather than merely corrective. Courts, she said, 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 field is provisional and evolving; what is considered safe at one point may later be revealed to be harmful,” she noted, underlining that legal standards must remain responsive even if it unsettles settled positions.Justice Nagarathna added that environmental law is also “hot” in an institutional sense, as courts and regulators must take decisions under intense public scrutiny and in the shadow of potential ecological damage that may be irreversible. This, she said, demands a form of judicial reasoning that is context-sensitive, precautionary, and anchored in constitutional values.Her remarks situate environmental adjudication as fundamentally different from conventional areas of law such as contracts, where rules are relatively stable. In contrast, environmental law requires “open-textured” principles capable of adapting to changing ecological realities.The judge’s lecture also foregrounded the inequities embedded in environmental harm. She emphasised that pollution, climate change, biodiversity loss, and resource depletion do not affect all individuals equally, but disproportionately impact the poor and marginalised, often those least responsible for environmental degradation.“Pollution, climate change, biodiversity loss, and resource depletion do not affect all persons equally; they tend to impact the poor, the marginalised and often those least responsible for damage,” she said, framing environmental adjudication as inherently tied to questions of equity, fairness, and justice.Positioning environmental justice within the broader constitutional framework, justice Nagarathna said environmental issues are not merely about natural resources, but about how the burdens and benefits of development are distributed across communities and generations. This uneven distribution, she noted, necessitates that courts incorporate principles of distributive fairness and intergenerational equity into decision-making.She explained that environmental justice extends 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 that this right is meaningfully realised.The lecture traced the evolution of environmental law in India, highlighting how the Supreme Court has read the right to a clean and healthy environment into Article 21, and developed key principles such as sustainable development, the polluter pays principle, the precautionary principle, the public trust doctrine, and intergenerational equity.Justice Nagarathna stressed that these principles are not static doctrines but tools to operationalise environmental justice in a context marked by uncertainty and competing interests. Courts, she said, must move beyond rigid rule application to actively shape legal responses to emerging ecological challenges.She also pointed to a growing shift in judicial thinking, from an anthropocentric approach to an ecocentric one, where nature is not viewed merely as a resource for human use, but as having intrinsic value.In concluding her remarks on judicial leadership, the judge underscored three guiding commitments for courts: sensitivity to context, principled balancing of competing interests, and precaution in the face of uncertainty. In certain cases, she added, courts may need to go further and declare ecologically fragile areas as inviolable.